against the Incroachments of Arbitrary Power In pursuance of which Great and Good Ends we shall always be ready as we are obliged to adhere to you our Honoured Representatives with the utmost hazard of our Persons and Estates City of Chichester the same Day After the Unanimous Choice of John Braman and Richard Farington Esquires who serv'd for that City in the late Parliament they had the Sence of that Eminent City delivered to them by a Worthy Person in the Name and by the Consent of the rest in the following Speech Gentlemen THe Faithful discharge of the like high Trust we formerly gave you is the true Inducement of our chusing you again And as we heartily thank you for your past worthy Behaviour in Parliament and in a particular manner for your being for the Bill of Exclusion for the Bill of Uniting all His Majesty's Subjects for Vindicating our almost lost Right of Petitioning for frequent Parliaments and for your endeavour to call those wretched Pensioners to an Account that betray'd the Nation in the late Long Parliament So we pray you to persevere in your faithful Service of us until the Nation be throughly secured against Popery and Arbitrary Power And since that Famous and Renowned Bulwark of the Protestant Religion the ever-to-be-honoured City of London have commanded their Sheriffs to present their Thanks to the true English and Noble Earl of Essex and by him to the rest of those Right Honourable Peers for their late Excellent Petition and Advice to His Majesty so we being willing to imitate so Good and Great an Example do desire you in our names to present in like manner our humble and hearty Thanks to the said Earl and those Noble Lords Borough of Colchester February 15. 1680 1. After the Election made a great Number of the Free-Burgesses of this Corporation agreed upon the following Address to be presented to their Representatives To the Honourable Sir Harbottle Grimston Baronet and Samuel Reynolds Esq now chosen Burgesses for our Corporation of Cochester in the County of Essex WE the Free-Burgesses of the said Corporation being deeply sensible of the unspeakable danger threatning His Majesty's Life and the Protestant Religion and the well established Government of this Kingdom from the Hellish Designs of the Papists and their wicked Adherents And that our Religion and Liberties can only under God be secured to us and our Posterity by wholsome Advice in Parliament Have now chosen you to represent us there in confidence of your Integrity and Courage to discharge so great a Trust in this time of Imminent Danger And we do desire you to allow us to speak our stedfast Resolution with utmost hazard of our Lives and Fortunes to shew our Approbation of what shall be resolved in Parliament for maintaining the Protestant Religion and our Liberties against Popery and Arbitrary Government And we hope you will endeavour to the utmost of your Power to disable James Duke of York and all other Popish Pretenders from Inheriting the Imperial Crown of this Realm And we shall pray for your good success Here we cannot but inform the Reader That the Notorious Thompson in his Popish Intelligence of the 15th of March would insinuate as if there were no such Address by Printing a Story That the Mayor Aldermen and some others of this Town being Assembled on February 28. 1680 1. A Printed Paper purporting to be the manner of the Election and containing also an Address made to the Members c. was read amongst them and that none of the Assembly would own his Consenting to or making that Paper or Address Touching which it must be Noted 1. That the Mayor and several of these Gentlemen were disobliged by being Out-Voted and much offended because they could not carry it for their Friend Sir Walter Clarges and so had no Reason to Address to the Members duly and fairly Elected because they had vigorously appeared for a contrary Party 2. That there are in that Pamphlet in relating the manner of the Election some galling Truths or if you please Reflections which possibly had better been spared and therefore no wise man would own the making it But for the Address it self 't is certain That it was agreed upon consented unto and will be Justified by the far greater part of the Electors of this Antient and Eminently Loyal Borough of which 't was thought fit here to give this brief Account for obviating any slanderous Objection that might be made on that occasion The Address of the Gentlemen and Free-holders of Bedford To the Right Honourable the Lord Russel and Sir Humphrey Munnox Elected Knights for that Shire on the 14th of February 1680 1. WHen it pleased His Majesty to summon His Peers and Commons of this His Realm to meet Him at Westminster in the last Parliament we accordingly then Chose You to Act on our behalf And being abundantly satisfied not only in Your Courage Integrity and Prudence in general but also in Your particular Care and faithful conscientious Endeavours 1. To assert our Right of Legal Petitioning for Redress of our just Grievances and to punish those who were studious to betray it 2. To secure the Meeting and Sitting of frequent Parliaments already by Law provided for for the preservation of our Lives Liberties and Estates and for the support of His Sacred Majesty and even of the Government it self 3. To Repeal the Act of the 35th of Elizabeth whereby all true Protestants might possibly in case of a Popish Successor from which God of his infinite Mercy defend us be liable to utter Ruine Abjuration and perpetual Banishment .4 To secure his Majesty's Royal Person the Protestant Religion and well Established Government of this Realm 5. To destroy and root out Popery 6. To use the most effectual means conducing to so good an End viz. The Exclusion of a a Popish Successor both by name and otherwise We have therefore now chosen you again to represent us in like manner in this Parliament called to be held at Oxford in full Trust and Confidence that with the same Courage and Integrity you will persevere in the same good Endeavours pursuing all things that by joynt consent of your Fellow-Members shall be found for our publick Good and Safety And in full assurance that you will not consent to the disposal of any of our Moneys till we are effectually secured against Popery and Arbitrary Power do resolve by Divine Assistance to stand by you therein The Address of the Gentry and Free-holders of the County of Suffolk to their Representatives Chosen the 14th of February 1680 1. presented to them by Sir Philip Skippon in the name and by consent of the rest of the Electors To the Honourable Sir Sam. Barnardiston and Sir Will. Spring Baronets Knights of the Shire for the County of Suffolk Gentlemen WE the Free-holders of this County having chosen you our Representatives in the last Parliament in which we had satisfactory Demonstration of your
of the Peace and Vnity of this Realm 3. And that such Person or Persons so to be Named Assigned Authorised and Appointed by Your Highness Your Heirs or Successors after the said Letters Patents to him or them made and delivered as is aforesaid shall have full Power and Authority by Vertue of this Act and of the said Letters Patents under Your Highness Your Heirs and Successors to exercise use and execute all the premisses according to the Tenor and Effect of the said Letters Patents any matter or cause to the contrary in any wise notwithstanding So that I take it that all manner of Ecclesiastical Jurisdiction was in the Crown by the Common Law of England and declared to be so by the said Act of 1 Eliz. 1. and by that Act a Power given to the Crown to assign Commissioners to exercise this Jurisdiction which was accordingly done by Queen Elizabeth and a High Commission Court was by her erected which sate and held Plea of all Causes Spiritual and Ecclesiastical during the Reign of Queen Elizabeth King James the First and King Charles the First till the 17th Year of his Reign Which leads me to consider the Statute of 17 Car. 1. ca. 11. which Act recites the Title of 1 Eliz. ca. 1. and Sect. 18. of the same Act and recites further Section 2. That whereas by colour of some Words in the aforesaid Branch of the said Act whereby Commissioners are authorised to execute their Commission according to the Tenor and Effect of the Kings Letters Patents and by Letters Patents grounded thereupon the said Commissioners have to the great and insufferable Wrong and Oppression of the Kings Subjects used to Fine and Imprison them and to exercise other Authority not belonging to Ecclesiastical Jurisdiction restored by that Act and divers other great Mischiefs and Inconveniences have also ensued to the Kings Subjects by occasion of the said Branch and Commissions issued thereupon and the Executions thereof Therefore for the repressing and preventing of the aforesaid Abuses Mischiefs and Inconveniences in time to come by Sect. 3. the said Clause in the said Act 1 Eliz. 1. is Repealed with a Non obstante to the said Act in these Words Be it Enacted by the Kings most excellent Majesty and the Lords and Commons in this present Parliament Assembled and by the Authority of the same That the aforesaid Branch Clause Article or Sentence contained in the said Act and every Word Matter and thing contained in that Branch Clause Article or Sentence shall from henceforth be Repealed Annulled Revoked Annihilated and utterly made Void for ever any thing in the said Act to the contrary in any wise notwithstanding And in Sect. 5. of the same Act it is Enacted That from and after the first of August in the said Act mentioned all such Commissions shall be void in these Words And be it further Enacted That from and after the said first Day of August no new Court shall be erected ordained or appointed within this Realm of England or Dominion of Wales which shall or may have the like Power Jurisdiction or Authority as the said High Commission Court now hath or pretendeth to have but that all and every such Letters Patents Commissions and Grants made or to be made by his Majesty his Heirs and Successors and all Powers and Authorities granted or pretended or mentioned to be granted thereby And all Acts Sentences and Decrees to be made by virtue or Colour thereof shall be utterly void and of none effect By which Act then the Power of Exercising Ecclesiastical Jurisdiction by Commissioners under the Broad-Seal is so taken away that it provides no such Power shall ever for the future be Delegated by the Crown to any Person or Persons whatsoever Let us then in the last place consider Whether the Act of 13 Car. 2. ca. 12 hath restored this Power or not And for this I take it that it is not restored by the said Act or any Clause in it and to make this evident I shall first set down the whole Act and then consider it in the several Branches of it that relate to this Matter The Act is Entituled An Act for Explanation of a Clause contained in an Act of Parliament made in the 17th Year of the Late King Charles Entituled An Act for Repeal of a Branch of Statute in Primo Elizabethae câ—ncerning Commissioners for Causes Ecclesiastical The Act it self runs thus Whereas in an Act of Parliament made in the Seventeenth Year of the Late King Charles Intituled An Act for Repeal of a Branch of a Stature primo Elizabethae concerning Commissioners for Causes Ecclesiastical It is amongst other things Enacted that no Arch-bishop Bisâ—â—p or Vicar-General nor any Chancellor nor Commissary of any Arch-Bishop Bishop or Vicar-General nor any Ordinary whatsoever nor any other Spiritual or Ecclesiastical Judge Officer or Minister of Justice nor any other Person or Persons whatsoever exercising Spiritual or Ecclesiastical Power Authority or Jurisdiction by any Grant Lisence or Commission of the Kings Majesty His Heirs or Successors or by any Power or Authority derived from the King his Heirs or Successors or otherwise shall from and after the First Day of August which then should be in the Year of our Lord God 1641. Award Impose or Inflict any Pain Penalty Fine Amercement Imprisonment or other Corporal Punishment upon any of the Kings Subjects for any Contempt Misdemeanor Crime Offence Matter or Thing whatsoever belonging to Spiritual or Ecclesiastical Cognizance or Jurisdiction 2. Whereupon some Doubt hath been made that all ordinary Power of Coertion and proceeding in Causes Ecclesiastital were taken away whereby the ordinary Course of Justice in Causes Ecclesiastical hath been obstructed 3. Be it therefore Declared and Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords and Commons in this present Parliament Assembled and by the Authority thereof That neither the said Act nor any thing therein contained doth or shall take away any ordinary Power or Authority from any of the said Arch-Bishops Bishops or any other Person or Persons named as aforesaid but that they and every of them exercising Ecclesiastical Jurisdiction may proceed determine Sentence execute and exercise all manner of Ecclesiastical Jurisdiction and all Censures and Coertions appertaining and belonging to the same before any making of the Act before recited in all Causes and Matters belonging to Ecclesiastical Jurisdiction according to the Kings Majesties Ecclesiastical Laws used and practised in this Realm in as ample Manner and Form as they did and might lawfully have done before making of the said Act. Sect. 2. And be it further Enacted by the Authority aforesaid That the afore recited Act of Decimo Septimo Car. and all the Matters and Clauses therein contained excepting what concerns the High Commission Court or the new Erection of some such like Court by Commission shall be and is thereby repealed to dlintents and purposes whatsoever
any thing clause or sentence in the said Act contained to the contrary â—â—ithstanding Sect. 3. Provided always and it is hereby Enacted That neither this Act nor any thing herein conâ—â—ined shall extend or be construed to ravive or give Force to the said Branch of the said Statute wade in the said First Year of the Reign of the said Late Queen Elizabeth mentioned in the said Act if Parliament made in the Seventeenth Year of the Reign of the said King Charles but that the said Branch of the said Statute made in the said First Year of the Reign of the said Late Queen Elizabeth scall stand and be Repealed in such sort as if this Act had never been made Sect. 4. Provided always and it is hereby Enacted That it shall not be lawful for any Arch-bishop Bishop Vicar-General Chancellor Commissary or any other Spiritual or Ecclesiastical Judge Officer or Minister or any other person having or exercising Spiritual or Ecclesiastical Jurisdiction to Tender or Administer unto any Person whatsoever the Oath usually called Ex Officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or herself of any Criminal matter or thing whereby he or she may be liable to Censure or Punishment any thing in this Statute or any other Law Custom or Vsage heretofore to the contrary hereof in any wise notwithstanding Sect. 5. Provided always That this Act or any thing therein contained shall not extend or be construed to extend to give unto any Arch Bishop Bishop or any other Spiritual or Ecclesiastical Judge Officer or other person or persons aforesaid any Power or Authority to Exercise Execute Inflict or Determine any Ecclesiastical Jurisdiction Censure or Coertion which they might not by Law have done before the Year of our Lord 1639. 2. Nor to abridge or diminish the Kings Majesties Supremacy in Ecclefiastical Matters and Affairs nor to confirm the Canons made in the Year 1640. nor any of them nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enacted by Parliament or by the established Laws of the Land as they stood in the Year of our Lord 1639. From the Title of the Act and the Act it self considered I gather First That it is an Explanatory Act of the 17th of Car. 1. as to one particular Branch of it and not introductive of any new Law Secondly That the Occasion of making it was not from any Doubt that did arise VVhether the High Commission Court were taken away or whether the Crown had Power to erect any such like Court for the future but from a Doubt that was made that all ordinary Power of Coertion and Proceedings in Causes Ecclefiastical was taken away whereby Justice in Ecclesiastical Matters was obstructed and this Doubt did arise from a Clause in 17 Car. 1. ca. 11. Sect. 4. herein mentioned to be recited in the said Act of 13 Car. 2. ca. 12. Thirdly That this Statute of 13 Car. 2. ca. 12. as appears upon the Face of it was made to the intent the ordinary Jurisdiction which the Bishops and other Ecclesiastical Persens had always exercised under the Crown might not be infringed but not to restore to the Crown the power of Delegating the Exercise of Ecclesiastical Jurisdiction by Letters Patents to Lay persons or any others and as to this nothing can be plainer than the VVords of the Act it self Sect. 2. Whereby 17 Car. 1. is repealed but takes particular care to except what concerned the High Commission Court or the new Erection of some such Court by Commission Neither did the Law-makers think this Exception in that Statute of 13 Car. 2. ca. 12. Sect. 2. to be sufficient but to put the Matter out of all doubt in the Third Section of the same Statute It is provided and Enacted That neither that Act nor any thing therein contained should extend or be construed to revive or give force to the Branch of 1 Eliz. 1. Sect. 18. but that the same Branch shâ—â—â— stand absolutely Repealed And if so then the power of the Crown to delegate the Exercise of Ecclesiastical Jurisdiction is wholly taken away for it was vested in the Crown by 1 Eliz. 1. and taken away by 17 Car. 1. ca. 11. and is in no manner restored by 13 Car. 2.12 or any other But there may arise an Objection from the VVords in the Statute of 13 Car. 2. ca. 12. that saith That that Act shall not extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical Matters and Affairs VVhence some Men would gather that the same power still remains in the Crown that was in it before 17 Car. 1. ca. 11. To which Objection I give this Answer That every Law is to be so constructed that it may not be Felo de se and that for the Honour of the Legislators King Lords and Comment Now I would appeal to the Gentlemen themselves that assert this Doctrine VVhether they can so construe the Act of 13 Car. 2. ca. 12. as they pretend to do without offering Viâ—lence to their own Reason For when the 1 Car. 1. ca. 11. had absolutely repealed the Branch of 1 Eliz. 1. that vested the power in the Crown of Delegating the Exercise of Ecclesiastical Jurisdiction and Enacts That no such Commission shall be for the future and the Act of 13 Car. 2. ca. 12. Repeals the 17 Car. 1. ca. 12. except what relates to that particular Branch there can no more of the Kings Supremacy in Ecclesiastical Matters and Affairs be saved by the saving in the 13 Car. 2. ca. 12. but what was left in the Crown by 17 Car. 1. ca. 11. And now I hope I have sufficiently evinced That all the Proceedings before the Ecclesiastical Commissioners are CORAM NON JVDICE and therefore have sufficient Reason to believe That the same would never have been set on foot by his present Majesty who had always the Character of JAMES the Just and hath promised upon his Royal VVord That he will invade no Mans Property had he not been advised thereunto by them who are better versed in the Canons of the Church of ROME than in the Laws that relate to the CROWN and CHURCH of ENGLAND A LETTER Writ by Mijn Heer Fagel Pensioner of Holland to Mr. James Stewart Advocate Giving an Account of the Prince and Princes of Orange's Thoughts concerning the Repeal of the Test and the Penal Laws SIR I Am extream sorry that my ill health hath so long hindred me from Answering those Letters in which you so earnestly desired to know of me what their Highnesses thoughts are concerning the repeal of the Penal Laws and more particularlarly of that concerning the Test I beg you to assure your self that I will deal very plainly with you in this matter and without reserve since you say that your Letters were writ by the King's knowledge and allowance I must
such Assemblies which times are as ancient as any Memory of the Nation it self hence I infer that no Summons from the King can be thought to have been necessary in those days because it was altogether needless Secondly The Succession to the Crown did not in those days nor till of late years run in a course of Lineal Succession by right of Inheritance But upon the death of a Prince those Persons of the Realm that Composed the then Parliament Assembled in order to the choosing of another That the Kingdom was then Elective though one or other of the Royal Blood was always chosen but the next in Lineal Succession very seldom is evident from the Genealogies of the Saxon Kings from an old Law made at Calchuyth appointing how and by whom Kings shall be chosen and from many express and particular Accounts given by our old Historians of such Assemblies held for Electing of Kings Now such Assemblies could not be Summon'd by any King and yet in conjunction with the King that themselves set up they made Laws binding the King and all the Realm Thirdly After the Death of King William Rufus Robert his Elder Brother being then in the Holy Land Henry the younger Son of King William the First procured an Assembly of the Clergy and People of England to whom he made large Promises of his good Government in case they would accept of him for their King and they agreeing that if he would restore to them the Laws of King Edward the Confessor then they would consent to make him their King He swore that he would do so and also free them from some oppressions which the Nation had groan'd under in his Brothers and his Fathers time Hereupon they chose him King and the Bishop of London and the Archbishop of York set the Crown upon his Head Which being done a Confirmation of the English Liberties passed the Royal Assent in that Assembly the same in substance though not so large as King John's and King Henry the Third's Magna Charta's afterwards were Fourthly After that King's Death in such another Parliament King Stephen was Elected and Mawd the Empress put by though not without some stain of perfidiousness upon all those and Stephen himself especially who had sworn in her Fathers Life-time to acknowledge her for their Soveraing after his decease Fifthly In King Richard the First 's time the King being absent in the Holy Land and the Bishop of Ely then his Chancellor being Regent of the Kingdom in his Absence whose Government was intolerable to the People for his Insolence and manifold Oppressions a Parliament was convened at London at the Instance of Earl John the Kings Brother to treat of the great and weighty affairs of the King and Kingdom in which Parliament this same Regent was depos'd from his Government and another set up viz. the Arch-Bishop of Roan in his stead This Assembly was not conven'd by the King who was then in Palaestine nor by any Authority deriv'd from him for then the Regent and Chancellor must have call'd them together but they met as the Historian says expresly at the Instance of Earl John And yet in the Kings Absence they took upon them to settle the publick Affairs of the Nation without Him Sixthly When King Henry the 3d. died his Eldest Son Prince Edward was then in the Holy Land and came not home till within the third year of his Reign yet immediately upon the Fathers Death all the Prelates and Nobles and 4 Knights for every Shire and 4 Burgesses for every Borough Assembled together in a great Council and setled the Government till the King should return Made a new Seal and a Chancellor c. I infer from what has been said that Writs of Summons are not so Essential to the being of Parliaments but that the People of England especially at a time when they cannot be had may by Law and according to our old Constitution Assemble together in a Parliamentary way without them to treat of and settle the publick Affairs of the Nation And that if such Assemblies so conven'd find the Throne Vacant they may proceed not only to set up a Prince but with the Assent and Concurrence of such Prince to transact all Publick business whatsoever without a new Election they having as great Authority as the People of England can deligate to their Representatives II. The Acts of Parliaments not Formal nor Legal in all their Circumstances are yet binding to the Nation so long as they continue in Force and not liable to be questioned as to the Validity of them but in subsequent Parliaments First The two Spencers Temp. Edvardi Secundi were banished by Act of Parliament and that Act of Parliament repealed by Dures Force yet was the Act of Repeal a good Law till it was Annulled 1 Ed. 3. Secondly Some Statutes of 11 Rich. 2. and attainders thereupon were repealed in a Parliament held Ann. 21. of that King which Parliament was procured by forced Elections and yet the Repeal stood good till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept Thirdly The Parliament of 1 Hen. 4. consisted of the same Knights Citizens and Burgesses that had served in the then last dissolved Patliament and those Persons were by the Kings Writts to the Sheriffs commanded to be returned and yet they passed Acts and their Acts tho never confirmed continue to be Laws at this day Fourthly Queen Mary's Parliament that restored the Popes Supremacy was notoriously known to be pack'd inso much that it was debated in Queen Elizabeth's time whether or no to declare all their Acts void by Act of Parliament That course was then upon some prudential considerations declined and therefore the Acts of that Parliament not since repealed continue binding Laws to this day The reason of all this is Because no inferiour Courts have Authority to judge of the Validity or Invalidity of the Acts of such Assemblies as have but so much as a colour of Parliamentary Authority The Acts of such Assemblies being Entred upon the Parliament-Roll and certified before the Judges of Westminster-Hall as Acts of Parliament are conclusive and binding to them because Parliaments are the only Judges of the Imperfections Invalidities Illegalities c. of one another The Parliament that call'd in King Charles the Second was not assembled by the Kings Writ and yet they made Acts and the Royal assent was had to them many of which indeed were afterwards confirmed but not all and those that had no Confirmation are undoubted Acts of Parliament without it and have ever since obtained as such Hence I inferr that the present Convention may if they please assume to themselves a Parliamentary Power and in conjunction with such King or Queen as they shall declare may give Laws to the Kingdom as a legal Parliament The Thoughts of a Private Person about the Justice of the Gentlemens Vndertaking
Authorities out of this Realm as also for restoring and uniting to the Imperial Crown of this Realm the antient Jurisdictions Authorities Superiorities and Preheminences to the same of Right belonging and appertaining by reason whereof the Subjects of this Realm were kept in good order and disburthened of divers great and intolerable Charges and Exactions until such time as all the said good Laws and Statutes by one Act of Parliament made in the first and second Years of the Reigns of King Philip and Queen Mary were clearly repealed and made void by reason of which Act of Repeal the Subjects of England were eftsoons brought under an usurped Foreign Power and Authority and yet remained in that Bondage to their intolerable Charges and then Enacts that for the repressing of the said usurped Foreign Power and the restoring of the Rights Jurisdictions and Preheminences appertaining to the Imperial Crown of this Realm The said Act made in the first and second Years of the said late King Philip and Queen Mary except as therein is excepted be repealed void and of none effect The said Act of Primo Elizabethae proceeds First to revive by express words many Statutes that had been made in King Henry the Eighth's time and repealed in Queen Mary's and Secondly to abolish all Foreign Authority in these words viz. And to the intent that all Vsurped 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. May it please your Highness that it may be Enacted That no Foreign Prince Person Prelate State or Potentate Spiritual or Temporal shall at any time after the last day of this Session of Parliament use enjoy or exercise any manner of Power Jurisdiction Superiority Authority Preheminence or Priviledg Spiritual or Ecclesiastical within this Realm c. but the same shall be clearly abolished out of this Realm c. Any Statute Custom c. to the contrary notwithstanding Thirdly The said Act restores in the next Paragraph to the Imperial Crown of this Realm such Jurisdictions Priviledges Superiorities c. Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority had heretofore been or might lawfully be exercised or used c. Fourthly the Act impowers the Queen to assign Commissioners to exercise Ecclesiastical Jurisdiction And Fifthly For the better observation and maintenance of this Act imposes upon Ecclesiastical and Temporal Officers and Ministers c. the Oath commonly call'd the Oath of Supremacy which runs thus viz. The Oath of SUPREMACY I A. B. do utterly testify and declare in my Conscience that the Queen's Highness is the only Supream Governour of this Realm and of all other her Highness's Dominions and Countries as well in all Spiritual or Ecclesiastical Things and Causes as Temporal and that no Foreign Prince Person Prelate State or Potentate hath or ought to have any Jurisdiction Power Superiority Preheminence or Authority Ecclesiastical or Spiritual within this Realm And therefore I do utterly renounce and forsake all Foreign Jurisdictions Powers Superiorities and Authorities and do promise that from henceforth I shall bear Faith and true Allegiance to the Queen's Highness her Heirs and lawful Successors and to my Power shall assist and defend all Jurisdictions Priviledges Preheminencies and Authorities granted or belonging to the Queen's Highness her Heirs and Successors or united and annexed to the Imperial Crown of this Realm So help me God and by the Contents of this Book It cannot but be obvious to every impartial Peruser of the Statute especially if he have the least knowledg of what Condition the Government of this Nation was reduced to by Papal Encroachments and Usurpations That the Makers of this Law and the Sense of this Oath was no other in general than that the People of this Realm should bear Faith and true Allegiance even in Matters relating to Ecclesiastical Jurisdiction to the Queen's Highness her Heirs and lawful Successors and not to the Pope or any foreign pretended Jurisdiction What the several Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the Queen her Heirs and Successors are in particular and what the Jurisdictions Priviledges Preheminences and Authorities United and Annexed to the Imperial Crown of this Realm are in particular is not material here to be discoursed of though the several Statutes made in King Henry the Eighth's time and King Edward the Sixth's and revived in Queen Elizabeth's will unfold many of them and clear the distinction which the OATH makes betwixt Authorities granted or belonging to the King and Authorities united and annexed to the Imperial Crown and Mr. Prynn's History of the Pope's intolerable Usurpations upon the Liberties of the Kings and Subjects of England and Ireland together with Sir Roger Twisden's Historical Vindication of the Church of England in point of Schism will in a great measure acquaint the Curious how matters stood with us here with respect to Church-Government before the Pope had wrested the Ecclesiastical Jurisdiction almost wholly out of the hands of our Kings our Parliaments and Courts of Justice In short those Jurisdictions c. are such as the Antient Laws Customs and Usages of the Realm or latter Acts of Parliament have Created Given Limited and Directed The Makers of this Law did not design to impose upon the People of England any new Terms of Allegiance but to secure the old ones exclusive of any Pretences of the Pope or See of Rome Nor are there any words in this Oath more strong more binding to Duty and Allegiance than are words which the old Oath of Fealty is conceived in which all Men were antiently obliged and may yet be required to take to the King in the Court-Leet at twelve years of Age which runs thus viz. You shall swear that from this day forward you shall be true and faithful to our Soveraign Lord King James and his Heirs And Faith and Truth shall bear of Life and Limb and terrene Honour And you shall not know nor hear of any ill or damage intended to him that you shall not defend So help you Almighty God This is as full and comprehensive as the Oath of Supremacy I do promise that I shall bear faith and true Allegiance to the Queen's Highness her Heirs and lawful Successors and to my power shall assist and defend all Jurisdictions c. So that the true sense and meaning of the Oath of Supremacy is this viz. I will be true and faithful to our Soveraign Lord the King his Heirs and lawful Successors and will to my Power assist and defend all his Rights notwithstanding any pretence made by the Pope or any other Foreign Power to exercise Jurisdiction within the Realm all which Foreign Power I utterly renounce in Matters Ecclesiastical as well as Temporal The Oath of Allegiance is appointed by the Act of 3 Jac. 1. Chap. 4. Intituled An Act for discovering and repressing of Popish Recusants It
consult their own good but he comes only at the time of Enacting bringing his Royal Authority with him as it were to set the Seal thereof to the Indenture already prepared by the People for the King is Head of the Parliament in regard of his Authority not in regard of his Reason or Judgment as if it were to be opposed to the Reason or Judgment of both Houses which is the Reason both of King and Kingdom and therefore do they as consult so also interpret Laws without him supposing him to be a Person replenished with Honour and Royal Authority not skilled in Laws nor to receive Information either of Law or Councel in Parliamentary Affairs from any saving from that supreme Court and highest Councel of the King and Kingdom which admits no counterpoise being intrusted both as the wisest Counsel and justest Judicature Fourthly either the choise of the People in Parliament is to be the Ground and Rule of the Kings Assent or nothing but his Pleasure and so all Bills tho' never so necessary for publick Good and Preservation and after never so much pains and consultation of both Houses may be rejected and so they made meer Cyphers and we brought to that pass as neither to have no Laws or such only as come immediately from the King who oft is a man of Pleasure and little seen in publick Affairs to be able to judge and so the Kingdoms great Councel must be subordinated either to his meer Will and then what Difference between a free Monarchy and an absolute saving that the one rules without Councel and the other against it or at the best but to a Cabinet Councel consisting commonly of Men of private Interests but certainly of no publick Trust Ob. But if the King must consent to such Laws as the Parliament shall chuse eo nomine they may then propound unreasonable things to him as to consent to his own Deposing or to the lessening his own Revenue c. Ans So that the issue is whether it be fitter to trust the Wisdom and Integrity of our Parliament or the Will and Pleasure of the King in this case of so great and publick Concernment In a word the King being made the Fountain of Justice and Protection to his People by the fundamental Laws or Constitution of this Kingdom he is therefore to give life to such Acts and Things as tend thereunto which Acts depend not upon his Pleasure but though they are to receive their greater Vigour from him yet are they not to be suspended at pleasure by him for that which at first was intended by the Kingdom for an honourable way of Subsistence and Administration must not be wrested contrrry to the nature of this Polity which is a free and mist Monarchy and not absolute to its Destruction and Confusion so that in case the King in his Person should decline his Duty the King in his Courts is bound to perform it where his Authority properly resides for if he refuse that Honour which the Republick by its fundamental Constitution hath conferred upon him and will not put forth the Acts of it for the end it was given him viz. for the Justice and Safety of his People this hinders not but that they who have as fundamentally reserved a Power of being and well-being in their own hands by the Concurrence of Parliamentary Authority to the Royal Dignity may thereby provide for their own Subsistence wherein is acted the Kings juridical Authority though his personal pleasure be withheld for his legal and juridical Power is included and supposed in the very being and consequently in the Acts of Courts of Justice whose being he may as well suspend as their Power of Acting for that without this is but a Cypher and therefore neither their being nor their acting so depend upon him as not to be able to act and execute common Justice and Protection without him in case he deny to act with them and yet both so depend upon him as that he is bound both in Duty and Honour by the Constitution of this Polity to act in them and they for him so that according to that Axiom in Law The King can do no wrong because his juridical Power and Authority is always to controle his personal Miscarriages London's Flames Revivd OR AN ACCOUNT OF SEVERAL INFORMATIONS Exhibited to a Committee appointed by PARLIAMENT September the 25th 1666. To Enquire into the BURNING of LONDON WITH Several other Informations concerning other Fires in Southwark Fetter-Lane and elsewhere UPon the Second of September 1666. the Fire began in London at one Farriner 's House a Baker in Pudding-Lane between the Hours of One and Two in the Morning and continued burning until the Sixth of September following consuming as by the Surveyors appears in Print Three hundred seventy three Acres within the Walls of the City of London and Sixty three Acres and Three Roods without the Walls There remains Seventy five Acres and Three Roods yet standing within the Walls unburnt Eighty nine Parish Churches besides Chappels burnt Eleven Parishes within the Walls yet standing Houses burnt Thirteen thousand and two hundred Per Jonas Moore Ralph Gatrix Surveyors UPon the 18th Day of September 1666. the Parliament came together And upon the 25th of the same Month the House of Commons appointed a Committee to enquire into the Causes of the late Fire before whom the following Informations were given in and proved before the Committee as by their Report will more clearly appear bearing date the 22th of January 1666. and upon the 8th of February following the Parliament was Prorogued before they came to give their Judgment thereupon Die Martis 25 Septembris 1666. 18 Car. 2. Resolved c. THat a Committee be appointed to enquire into the Causes of the late Fire and that it be referred to Sir Charles Harbord Mr. Sandys Col. Birch Sir Robert Brook Sir Thomas Littleton Mr. Prin Mr. Jones Sir Solomon Swale Sir Thomas Tomlins Mr. Seymour Mr. Finch Lord Herbert Sir John Heath Mr. Milward Sir Richard Ford Mr. Robert Milward Sir William Lowther Sir Richard Vatley Sir Rowland Beckley Sir Thomas Allen Mr. Whorwood Mr. Coventry Serj. Maynard Sir John Talbot Mr. Morley Mr. Garraway Sir Francis Goodrick Col. Strangeways Sir Edward Massey Sir Edmond Walpool Sir Robert Atkins Sir Thomas Gower Mr. Trevor Sir Thomas Clifford Sir Henry Caesar Sir John Monson Sir John Charleton Lord Ancram Mr. Pepis Sir Richard Everard Mr. Crouch Mr. Merrel Sir William Hickman Sir Richard Brown Mr. Maynard And they are to meet to Morrow at Two of the Clock in the After-noon in the Speaker's Chamber and to send for Persons Papers and Records William Goldsbrough Cler. Dom. Com. October 9. 1666. Ordered that these Members following be added to the Committee appointed to Enquire into the Causes of the late Fire viz. Sir John Pelham Mr. Hugh Buscowen Mr. Giles Hungerford Sir William Lewis Sir Gilbert Gerrard Sir John Brampstone Mr. Milward Mr. Buscowen
not unknown to your Majesty how restless the Endeavours and how bold the Attempts of the Popish Party for many years last past have been not only within this but other your Majesties Kingdoms to introduce the Romish and utterly to extirpate the true Protestant Religion The several Approaches they have made towards the compassing this their Design assisted by the Treachery of perfidious Protestants have been so strangely successful that 't is matter of Admiration to Us and which we can only ascribe to an Over-ruling Providence that your Majesties Reign is still continued over Us and that We are yet assembled to consult the means of our preservation This bloody and restless Party not content with the great Liberty they had a long time enjoyed to excercise their own Religion privately amongst themselves to pertake of an equal Freedom of their persons and Estates with your Majesties Protestant Subjects and of an Advantage above them in being excused from chargeable Offices and Employments hath so far prevailed as to find countenance for an open and avowed practice of their Superstition and Idolatry without controul in several parts of this Kingdom Great swarms of Priests and Jesuits have resorted hither and have here exercised their Jurisdiction and been daily tampering to pervert the Consciences of your Majesties Subjects Their Opposers they have found means to disgrace and if they were Judges Justices of the Peace or other Magistrates to have them turned out of Commission and in contempt of the known Laws of the Land they have practised upon people of all Ranks and qualities and gained over divers to their Religion some openly to profess it others secretly to espouse it as most conduced to the service thereof After some time they became able to influence matters of State and Government and thereby to destroy those they cannot corrupt The continuance or Prorogation of Parliaments has been accommodated to serve the purposes of that Party Money raised upon the People to supply your Majesties extraordinary Occasions was by the prevalence of Popish Councils imployed to make War upon a Protestant State and to advance and augment the dreadful Power of the French King though to the apparent hazard of this and all other Protestant Countries Great numbers of your Majesties Subjects were sent into and continued in the service of that King notwithstanding the apparent Interest of your Majesties Kingdoms the Addresses of the Parliament and your Majesties gracious Proclamations to the contrary Nor can We forbear to mention how that at the beginning of the same War even the Ministers of England were made Instruments to press upon that State the acceptance of one demand among others from the French King for procuring their peace with him that they should admit the publick exercise of the Roman Catholick Religion in the United Provinces the Churches there to be divided and the Romish Priests maintained out of the publick Revenue At home if Your Majesty did at any time by the Advice of Your Privy-Council or of Your two Houses of Parliament Command the Laws to be put in Execution against Papists even from thence they gained advantage to their Party while the edge of those Laws was turned against Protestant Dissenters and the Papists escaped in a manner untoucht The Act of Parliament enjoining a Test to be taken by all Persons admitted into any Publick Office and intended for a security against Papists coming into Employment had so little effect that either by Dispensations obtained from Rome they submitted to those Tests and held their Offices themselves or those put in their places were so favourable to the same Interests that Popery it self has rather gained than lost ground since that Act. But that their business in hand might yet more speedily and strongly proceed at length a Popish Secretary since Executed for his Treasons takes upon him to set afoot and maintain correspondencies at Rome particularly with a Native Subject of Your Majesties promoted to be a Cardinal and in the Courts of other Forreign Princes to use their own form of Speech for the subduing that Pestilent Heresie which has so long domineered over this Northern World that is to root the Protestant religion out of England and thereby to make way the more easily to do the same in other Protestant Countries Towards the doing this great Work as Mr. Coleman was pleased to call it Jesuits the most dangerous of all Popish Orders to the Lives and Estates of Princes were distributed to their several Precincts within this Kingdom and held joint Councils with those of the same Order in all Neighbour Popish Countries Out of these Councils and Correspondencies was hatcht that damnable and hellish Plot by the good Providence of Almighty God brought to light above two Years since but still threatning us wherein the Traitors impatient of longer delay reckoning the prolonging of Your Sacred Majesties Life which God long Preserve as the Great Obstacle in the way to the Consummation of their hopes and having in their prospect a Proselyted Prince immediately to succeed in the Throne of these Kingdoms resolved to begin their Work with the Assassination of Your Majesty to carry it on with Armed Force to destroy Your Protestant Subjects in England to Execute a second Massacre in Ireland and so with ease to arrive at the suppression of our Religion and the subversion of the Government When this Accursed Conspiracy began to be discovered they began the smothering it with the Barbarous Murther of a Justice of the Peace within one of Your Majesties own Palaces who had taken some Examinations concerning it Amidst these distractions and fears Popish Officers for the Command of Forces were allowed upon the Musters by special Orders surreptitionsly obtained from Your Majesty but Counter-Signed by a Secretary of State without ever passing under the Tests prescribed by the aforementioned Act of Parliament In like manner above fifty new Commissions were granted about the same time to known Papists besides a great number of desperate Popish Officers though out of Command yet entertain'd at half pay When in the next Parliament the House of Commons were prepared to bring to a legal Tryal the principal Conspirators in this Plot that Parliament was first Prorogued and then Dissolved The Interval between the Calling and Sitting of this Parliament was so long that now they conceive Hopes of covering all their past Crimes and gaining a seasonable time and advantages of practising them more effectually Witnesses are attempted to be corrupted and not only promises of Reward but of the Favour of your Majesty's Brother made the Motives to their Compliance Divers of the most considerable of your Majesty's Protestant Subjects have Crimes of the highest nature forged against them the Charge to be supported by Subornation and Perjury that they may be destroyed by Forms of Law and Justice A Presentment being prepared for a Grand Jury of Middlesex against your Majesty's said Brother the Duke of York under whose Countenance all the
Book called The Weekly Pacquet of Advice from Rome is Illegal and Arbitrary thereby usurping to themselves Legislative Power to the great Discouragement of the Protestants and for the Countenancing of Popery III. That it is the Opinion of this House That the Court of King's Bench in the Imposition of Fines on Offenders of late Years have acted Arbitrarily Illegally and Partially favouring Papists and Persons Popishly affected and excessively oppressing His Majesty's Protestant Subjects IV. That it is the Opinion of this House That the refusing sufficient Bail in these Cases wherein the Persons committed were Bailable by Law was Illegal and a high Breach of the Liberties of the Subject V. That it is the Opinion of this House That the said Expressions in the Charge given by the said Baron Weston were a Scandal to the Reformation and tending to raise Discord between His Majesty and His Subjects and to the Subversion of the Ancient Constitution of Parliaments and of the Government of this Kingdom VI. That it is the Opinion of this House That the said Warrants are Arbitrary and Illegal The Resolutions of the Commons for the Impeachment of the said Judges Resolved THat Sir William Scroggs Knight Chief Justice of the Court of King's Bench be Impeached upon the said Report and the Resolutions of the House thereupon Resolved That Sir Thomas Jones one of the Justices of the said Court of King's Bench be Impeached upon the said Report and Resolutions of the House thereupon Resolved That Sir Richard Weston one of the Barons of the Court of Exchequer be Impeached upon the said Report and Resolutions of the House thereupon Ordered That the Committee appointed to prepare an Impeachment against Sir Francis North Chief Justice of the Court of Common-Pleas do prepare Impeachments against the said Sir William Scroggs Sir Thomas Jones and Sir Richard Weston upon the said Report and Resolutions Ordered That the said Report and several Resolutions of this House thereupon be printed and that Mr. Speaker take care in the Printing thereof apart from this Days other Votes The Report from the Committee of the Commons in Parliament appointed by the Honourable House of Commons to Consider the Petition of Richard Thompson of Bristol Clerk And to Examine Complaints against him And the Resolution of the Commons in Parliament upon this Report for his Impeachment of high Crimes and Misdemeanours Friday Decemb. 24. 1680. At the Committee appointed to take into Consideration the Petition of Richard Thompson Clerk and to Examine the Complaints against him In the First Place THe Committee read unto the said Thompson the Heads of the Complaint against him Which for the most part he denying desired to have his Accusers brought Face to Face Whereupon the Committee proceeded to the Examination of Witnesses to prove the said Complaint The First Witness Examined saith That there being a great Noise and Rumor that Mr. Thompson had prepared a Sermon to be Preached on the Thirtieth of January 1679. the said Witness went to the said sermon and did hear Mr. Thompson publickly declare That the Presbyterians were such Persons as the very Devil Blush't at them and that the Villain Hamden grudged and made it more Scruple of Conscience to give Twenty Shillings to the KING for supplying his Necessities by Ship-Money and Loan which was His Right by Law than to raise Rebellion against Him And that the Presbyterians are worse and far more Intolerable than either Priests or Jesuites The Second saith That hearing a great Talk and Noise spread of a Sermon to be Preached by Mr. Thompson on the Thirtieth of January 1679. was minded to hear the same and accordingly did at which he writ some Notes amongst which he saith That Mr. Thompson openly preached That the Devil Blush't at the Presbyterians and that the Villain Hamden grudged more to give the KING Twenty Shillings which was his just due by Law Ship-money and Loan than to raise Rebellion against Him and that a Presbyterian-Brother qua talis was as great a Traitour by the Statute as any Priest or Jesuite whatsoever That he heard that Mr. Thompson said That he hoped the Presbyterians would be pulled out of their Houses and the Jails filled with them and wish't their Houses burnt The Third saith That he was Cited to the Bishop's Court to Receive the Sacrament last Easter but being out of Town at that Time did Receive it at a Place called Purl in Wiltshire and that a Month after he came Home Was again Cited to the said Court and he did accordingly appear and told the Court That he hoped his Absence and Business might be accepted for a Lawful Excuse Upon which Mr. Thompson immediately said That they would proceed to Excommunicate him Upon which this Informant produced his Certificate of which the Chancellor approved and said It was Lawfull Hereupon Mr. Thompson said That his Receiving the Sacrament from any other Minister than the Minister of the Parish wherein he dwelled Was Damnation to his Soul and that he would maintain this Doctrine The Fourth saith That being at Bristol-Fair he heard a great talk and noise of a Satyr-Sermon prepared and designed to be Preached by Mr. Thompson against the Presbyterians on the Thirtieth of January 1679 and that very many resorted to hear him In which Sermon the said Mr. Thompson declared and said That there was a great Talk of a Plot but says he a Presbyterian is the man And further added That the Villain Hamden scrupled to give the King 20s upon Ship-Money and Loan which was his due by law but did not Scruple to raise Rebellion against Him The Fifth saith That Mr. Thompson in a Sermon preached the Thirtieth of January 1679. did say That the Presbyterians did seem to out-vie Mariana and that Calvin was the first that Preached the King-Killing Doctrine and that after he had quoted Calvin often said If this be true then a Presbyterian-Brother qua talis is as great a Traitor as any Priest or Jesuite And that then he condemned all the Proceedings of Parliaments The Sixth saith That the said Mr. Thompson had utter'd many scandalous words concerning the Act for Burying in Woollen affirming That the makers of that Law were a Company of Old Fools and Fanaticks and that he would bring a School-Boy should make a better Act than that and Construe it when he had done The Seventh saith That Mr. Thompson in a Sermon by him Preached while Petitions for the sitting of this Parliament were on Foot speaking of a Second Rebellion by the Scotch who had Framed a Formidable Army and came as far as Durham to deliver a Petition forsooth that they seemed rather to Command than Petition their Sovereign to grant And Comparing that Petition with the then Petition on Foot greatly inveigh'd against it and scoffed much at it The Eighth saith That Mr. Thompson when the Petition was on foot for the sitting of this Parliament used at the Funeral Sermon of one Mr. Wharton these
for securing all these appointed a Test to be taken by all who should be entrusted with the Government which bears expresly That the same should be taken in the plain and genuine sense and meaning of the words We were very careful not to suffer any to take the said Oath or Test with their own Glosses or Explications But the Earâ— of Argyle having after some delays come to Council to take the said Oath as a Privy-Councellor spoke some things which were not then heard nor adverted to and when his Lordship at his next offering to take it in Council as one of the Commissioners of Your Majesties Treasury was commanded to take it simply he refused to do so but gave in a Paper shewing the only sense in which he would take it which Paper we all considered as that which had in it gross and scandalous Reflections upon that excellent Act of Parliament making it to contain things contradictory and inconstant and thereby depraving Your Majesties Laws misrepresenting Your Parliament and teaching Your Subjects to evacuate and disappoint all Laws and Securities that can be enacted for the preservation of the Government suitable to which his Lordship declares in that Paper That he means not to bind up himself from making any alterations he shall think fit for the advantage of Church or State and which Paper he desires may be looked upon as apart of his Oath as if he were the Legislator and able to add a part to the Act of Parliament Upon serious perusal of which Paper we found our selves obliged to send the said Earl to the Castle of Edinburgh and to transmit the Paper to Your Majesty being expresly obliged to both these by Your Majesties express Laws And we have commanded your Majesties Advocate to raise a pursuit against the said Earl for being Author and having given in the said Paper And for the further prosecution of all relating to this Affair we expect Your Majesties Commands which shall be most humbly and faithfully obeyed by Edinburgh Nov. 8. 1681. Your Majesties most Humble most Faithful and most Obedient Subjects and Servants Sic Subscribitur Glencairne Winton Linlithgow Perth Roxburgh Ancram Airlie Levingstoun Jo. Edinburgen Ross Geo. Gordoun Ch. Maitland G. Mekenzie Ja. Foulis J. Drumond Novemb. 15. 1681. The Kings Answer to the Councils Letter C. R. MOst dear c. Having in one of your Letters directed unto us of the 8. Instant received a particular account of the Earl of Argyle's refusing to take the Test simply and of your proceedings against him upon the occasion of his giving in a Paper shewing the only sense in which he will take it which had in it gross and scandalous Reflections upon that excellent late Act of our Parliament there by which the said Test was enjoyned to be taken we have now thought fit to let you know that as we do hereby approve these your Proceedings particularly your sending the said Earl to our Castle of Edinburgh and your commanding our Advocate to raise a Pursuit against him for being Author of and having given in the said Paper so we do also authorize you to do all things that may concern the further prosecution of all relating to this Affair Nevertheless it is our express Will and Pleasure That before any Sentence shall be pronounced against him at the Conclusion of the Process you send us a particular account of what he shall be found guilty of to the end that after our being fully informed thereof we may signifie our further pleasure in this matter For doing whereof c. But as notwithstanding the Councils demanding by their Letter His Majesties allowance for prosecuting the Earl they before any return caused His Majesties Advocate to exhibit an Indictment against him upon the points of slandering and depraving as hath been already remarked so after having received His Majesties answer the design grows and they thought fit to order a new Indictment containing beside the former points the Crimes of Treason and Perjury which accordingly was exhibited and is here subjoyned the difference betwixt the two Indictments being only in the particulars above noted The Copy of the Indictment against the Earl of Argyle Archibald Earl of Argyle YOU are Indicted and Accused That albeit by the Common Law of all well-govern'd Nations and by the Municipal Laws and Acts of Parliament of this Kingdom and particularly by the 21st and by the 43d Act Par. 2 James 1. and by the 83d Act Par. 6. James 5. and by the 34th Act Par. 8. James 6. and the 134th Act Par. 8. James 6. and the 205th Act Par. 14. James 6. All Leasing-makers and tellers of them are punishable with tinsel of Life and Goods like as by the 107th Act Par. 7. James 1. it is statuted That no man interpret the Kings Statutes otherwise than the Statute bears and to the intent and effect that they were made for and as the makers of them understood and who so does in the contrary to be punished at the Kings will And by the 10th Act Par. 10. James 6. it is statuted That none of His Majesties Subjects presume or take upon him publickly to declare or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws or Acts of Parliament or misconstrue his proceedings whereby any mistaking may be moved betwixt his Highness his Nobility and loving Subjects in time coming under pain of death certifying them that does in the contrary they shall be reputed as seditious and wicked Instruments enemies to his Highness and to the Commonwealth of this Realm and the said pain of death shall be executed against them with all rigour to the example of others And by the second Act Ses 2. Par. 1. Char. 2. it is statuted That whosoever shall by Writing Libelling Remonstrating express publish or declare any words or sentences to stir up the people to the dislike of His Majesties Prerogative and Supremacy in causes Ecclesiastick or of the Government of the Church by Archbishops and Bishops as it is now settled by Law is under the pain of being declared incapable to exercise any Office Civil Ecclesiastick or Military within this Kingdom in any time coming Like as by the fundamental Laws of this Nation by the 130th Act Par. 8. James 6. it is declared That none of His Majesties Subjects presume to impugn the Dignity or Authority of the three Estates or to procure innevation or diminution of their Power and Authority under the pain of Treason And that it is much more Treason in any of His Majesties Subjects to presume to alter Laws already made or to make new Laws or to add any part to any Law by their own Authority that being to assume the Legislative Power to themselves with His Majesties highest and most incommunicable Prerogative Yet true it is that albeit His Sacred Majesty did not only bestow on you the said Archibald Earl of Argyle
those vast Lands Jurisdictions and Superiorities justly forfaulted to His Majesty by the Crimes of your deceased Father preferring your Family to those who had served His Majesty against it in the late Rebellion but also pardoned and remitted to you the Crimes of Leasing-making and misconstruing His Majesties and his Parliaments proceedings against the very Laws above-written whereof you were found guilty and condemned to die therefore by the High Court of Parliament the 25th of August 1662. and raised you to the Title and Dignity of an Earl and being a Member of all His Majesties Judicatures Notwithstanding of all these and many other favours you the said Archibald Earl of Argyle being put by the Lords of His Majesties Privy-Council to take the Test appointed by the Act of the last Parliament to be taken by all persons in publick Trust you instead of taking the said Test and swearing the same in the plain genuine sense and meaning of the words without any equivocation mental reservation or evasion whatsoever you did declare against and defame the said Act and having to the end you might corrupt others by your pernicious sense drawn the same in a Libel of which Libel you dispersed and gave abroad Copies whereby ill impressions were given of the King and Parliaments proceedings at a time especially when His Majesties Subjects were expecting what submission should be given to the said Test and being desired the next day to take the same as one of the Commissioners of His Majesties Treasury you did give into the Lords of His Majesties Privy-Council and owned twice in plain judgment before them the said defamatory Libel against the said Test and Act of Parliament declaring That you had considered the said Test and was desirous to give obedience as far as you could whereby you clearly insinuated that you was not able to give full obedience In the second Article of which Libel you declare That you were confident the Parliament never intended to impose contradictory Oaths thereby to abuse the people with a belief that the Parliament had been so impious as really and actually to have imposed contradictory Oaths and so ridiculous as to have made an Act of Parliament which should be most deliberate of all humane actions quite contrary to their own intentions after which you subsumed contrary to the nature of all Oaths and to the Acts of Parliament above cited that every man must explain it for himself and take it in his own sense by which not only that excellent Law and the Oath therein specified which is intended to be a Fence to the Government both of Church and State but all other Oaths and Laws shall be rendered altogether useless to the Government If every man take the Oaths imposed by Law in his own sense then the Oath imposed is to no purpose for the Legislator cannot be sure that the Oath imposed by him will bind the takers according to the design and intent for which he appointed it and the Legislative Power is taken from the Imposers and settled in the taker of the Oath and so he is allowed to be the Legislator which is not only an open and violent depraving of His Majesties Laws and Acts of Parliament but is likewise a settling of the Legislative Power on private Subjects who are to take such Oaths In the third Article of that Paper you declare That you take the Test in so far only as it is consistent with it self and the Protestant Religion by which you maliciously intimate to the people That the said Oath is inconsistent with it self and with the Protestant Religion which is not only a down right depraving of the said Act of Parliament but is likewise a misconstruing of His Majesties and the Parliaments proceedings and misrepresenting them to the people in the highest degree and in the tenderest points they can be concerned and implying that the King and Parliament have done things inconsistent with the Protestant Religion for securing of which that Test was particularly intended In the Fourth Article you do expresly declare that you mean not by taking the said Test to bind up your self from wishing and endeavouring any alteration in a lawful way that you shall think fit for advancing of Church and State whereby also it was designed by the said Act of Parliament and Oath That no man should make any alteration in the Government of Church and State as it is now established and that it is the Duty of all good Subjects in humble and quiet manner to obey the present Government Yet you not only declare your self but by your example you invite others to think themselves loosed from that Obligation and that it is free for them to make any alteration in either as they shall think fit concluding your whole Paper with these words And this I understand as a part of my Oath which is a treasonable invasion upon the Royal Legislative Power as if it were lawful for you to make to your self an Act of Parliament since he who can make any part of an Act may make the whole the Power and Authority in both being the same Of the which Crimes above mentioned you the said Archibald Earl of Argyle are Actor Art and Part which being found by the Assize you ought to be punished with the pains of Death fortâ—ulture and escheat of Lands and Goods to the terror of others to commit the like hereafter An Abstract of the several Acts of Parliament upon which the Indictment against the Earl of Argyle was grounded Concerning raisers of Rumours betwixt the King and his people Chap. 20.1 Statutes of King Robert 1. IT is defended and forbidden That no man be a Conspirator or Inventer of Narrations or Rumours by the which occasion of discord may arise betwixt the King and his people And if any such man shall be found and attainted thereof incontinent be shall be taken and put in Prison and there shall be surely keeped up ay and while the King declare his will anent him Act 43. of Par. 2. King James 1. March 11. 1424. Leasing-makers forfault Life and Goods ITem It is ordained by the King and whole Parliament that all Leasingmakers and tellers of them which may engender discord betwixt the King and his people wherever they may be gotten shall be challenged by them that power has and ryne Lâ—â—e and Goods to the King Act 83. Par. 6. James 5. Dec. 10. 1540. Of Leasing-makers ITem Touching the Article of Leasing-makers to the Kings Grace of his Barons great men and Leiges and for punishment to be put to them therefore the Kings Grace with advice of his three Estates ratifies and approves the Acts and Statutes made thereupon before and ordains the same to be put in execution in all points and also Statutes and ordains That if any manner of person makes any evil Information of his Highness to his Barons and Leiges that they shall be punished in such manner and by the same punishment as
they that make Leasings to his Grace of his Lords Barons and Leiges Act 134. Par. 8. James 6. May 22. 1584. Anent Slanderers of the King his Progenitors Estate and Realm FOrasmuch as it is understood to our Soveraign Lord and his three Estates assembled in this present Parliament what great harm and inconveniency has fallen in this Realm chiefly since the beginning of the Civil troubles occurred in the time of his Highness minority through the wicked and licentious publick and private speeches and untrue calumnies of divers of his Subjects to the disdain contempt and reproach of His Majesty his Council and proceedings and to the dishonour and prejudice of his Highness his Parents Progenitors and Estate stirring up his Highness's Subjects thereby to misliking sedition unquietness and to cast off their due obedience to His Majesty to their evident peril tinsil and destruction his Highness continuing always in love and clemency toward all his good Subjects and most willing to seek the safety and preservation of them all which wilfully needlessly and upon plain malice after his Highness's mercy and pardon oft times afore granted has procured themselves by their treasonable deeds to be cut off as corrupt Members of this Commonwealth Therefore it is statute and ordained by our Soveraign Lord and his three Estates in this present Parliament that none of his Subjects of whatsoever Function Degree or Quality in time coming shall presume or take upon hand privately or publickly in Sermons Declanations and familiar Conferences to utter any false slanderous or untrue Speeches to the disdain reproach and contempt of His Majesty his Council and proceedings or to the dishonour hurt or prejudice of his Highness his Parents and Progenitors or to meddle in the Affairs of his Highness and his Estate present by-gone and in time coming under the pains contained in the Acts of Parliament anent makers and tellers of Leasings certifying them that shall be tryed contraveeners thereof or that hear such slanderous Speeches and reports not the same with diligence the said pain shall be executed against them with all rigour in example of others Act 205. Par. 14 King James 6. June 8. 1594. Anent Leasing-makers and Authors of Slanders OUR Soveraign Lord with advice of his Estates in this present Parliament ratifies approves and for his Highness and Successors perpetually confirms the Act made by his Noble Progenitors King James the First of Worthy Memory against Leasing-makers the Act made by King James the Second entituled Against Leasing-makers and tellers of them the Act made by King James the Fifth entituled Of Leasing-makers and the Act made by his Highness's self with advice of his Estates in Parliament upon the 22d day of May 1584. entituled For the punishment of the Authors of Slanders and untrue Calumnies against the Kings Majesty his Council and proceedings to the dishonour and prejudice of his Highness his Parents Progenitors Crown and Estate as also the Act made in his Highness's Parliament holden at Linlithgow upon the 10th of December 1585. entituled Against the Authors of slanderous Speeches or Writs and statutes and ordains all the said Acts to be published of new and to be put in execution in time coming with this addition That whoever hears the said Leasings Calumnies or slanderous Speeches or Writs to be made and apprehends not the Authors thereof if it lies in his power and reveals not the same to his Highness or one of his Privy Council or to the Sheriff Steward or Bayliff of the Shire Stewards in Regality or Royalty or to the Provost or any of the Bayliffs within Burgh by whom the same may come to the knowledge of his Highness or his said Privy-Council where through the said Leasing makers and Authors of slanderous Speeches may be called tryed and punished according to the said Acts The hearer and not apprehender if it lye in his power and concealer and not revealer of the said Leasing makers and Authors of the said slanderous Specches or Writs shall incur the like pain and punishment as the principal Offender Act 107. Par. 7. King James 1. March 1. 1427. That none interpret the Kings Statutes wrongously ITem the King by deliverance of Council by manner of Statute forbids That no man interpret his Statutes otherwise than the Statutes bear and to the intent and effect that they were made for and as the maker of them understood and who so does in the contrary shall be punished at the Kings will Act 10. Par. 10. King James 6. Dec. 10. 1585. Authors of slanderous Speeches or Writs should be punished to the Death IT is statuted and ordained by our Soveraign Lord and three Estates that all his Highness's Subjects content themselves in quietness and dutiful obedience to his Highness and his Authority and that none of them presume or take upon hand publickly to declaim or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws and Acts of Parliament or misconstrue his proceedings whereby any misliking may be moved betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of Death certifying them that do in the contrary they shall be reputed as seditious and wicked Instruments enemies to his Highness and the Commonwealth of this Realm and the said pain of Death shall be executed upon them with all rigour in example of others Act for preservation of His Majesties Person Authority and Government May 1662. And further it is by His Majesty and Estates of Parliament declared statuted and enacted That if any person or persons shall by writing printing praying preaching libelling remonstrating or by any malicious or advised speaking express publish or declare any words or sentences to stir up the people to the hatred or dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastical or of the Government of the Church by Archbishops and Bishops as it is now settled by Law That every such person or persons so offending and being legally Convicted thereof are hereby declared incapable to enjoy or exercise any place or employment Civil Ecclesiastick or Military within this Church and Kingdom and shall be liable to such further pains as are due by the Law in such Cases Act 130. Par. 8. James 6. May 22. 1584. Anent the Authority of the three Estates of Parliament THE Kings Majesty considering the Honour and the Authority of his Supreme Court of Parliament continued past all memory of man unto their days as constitute upon the free Votes of the three Estates of this ancient Kingdom by whom the same under God has ever been upholden Rebellious and Traiterous Subjects punished the Good and Faithful preserved and maintained and the Laws and Acts of Parliament by which all men are governed made and established And finding the Power Dignity and Authority of the said Court of Parliament of late years called in some doubt at least some curiously travelling
eminence and worth And I here shall set it under my Hand to witness against all my Informers that none did with more passion nor shall with more continued zeal witness themselves to be true Honourers of you than he who desires infinitely to be esteemed My Lord Your most Humble Servant GLENCAIRN What I cannot well write I hope this discreet Gentleman will tell you in my Name and I shall only beg leave to say that I am your most Noble Ladies Humble Servant After the reading of which order and letters which yet the Court refused to record The Earl's Advocate or Council Sir George Lockhart said in his defence as follows Sir George Lockhart 's Argument and Plea for the Earl of Argyle SIR George Lockhart for the Earl of Argyle alledgeth That the Libel is not Revelant and whereupon he ought to be but to the knowledge of an Inquest For It is alledged in the general That all Criminal Libels whereupon any persons Life Estate and Reputation can be drawn in question should be founded upon clear positive and express Acts of Parliament and the matter of Fact which is libelled to be the Contravention of those Laws should be plain clear and direct Contraventions of the same and not argued by way of Implications and Inferences Whereas in this Case neither the Acts of Parliament founded upon and libelled can be in the least the foundation of this Libel nor is the Explication which is pretended to be made by the Pannel at the time of the taking of his Oath if considered any Contravention of those Laws which being premised and the Pannel denying the Libel as to the whole Articles and Points therein contained it is alledged in special That the Libel in so far as it is founded upon the 21st Chap. Stat. 1. Robert 1. and upon 83d Act Par. 6. James 5. the 43d Act Par. 2. James 1. and upon the 83d Act Par. 10. James 5. and upon 84th Act Par. 8. James 6. and upon the 10th Act Par. 10. James 6. and upon the 2d Act Par. 1. Ses 2. of His Sacred Majesty and inferring thereupon That the Pannel by the pretended Explication given in by him to the Lords of His Majesties Privy-Council as the sense of the Oath he had taken doth commit the Crime of Leasing-making and depraving His Majesties Laws The Inference and subsumption is most unwarrantable and the Pannel tho any such thing were acknowledged or proved can never be found guilty of contraveening these Acts of Parliament In respect it is evident upon perusal and consideration of these Acts of Parliament that they only concern the case of Leasing-making tending to Sedition and to beget Discord betwixt His Majesty and His Subjects and the dislike of His Majesties Government and the reproach of the same And the said Laws and Acts of Parliament were never understood or libelled upon in any other Sense And all the former Acts of Parliament which relate to the crime of Leasing-making in general terms and under the qualification foresaid as tending to beget discord betwixt his Majesty and his Subjects are explained and fully declared as to what is the true meaning and import thereof by the 134th Act Par. 8. James 6. which relates to the same Crime of Leasing-making and which is expresly described in these terms To be wicked and licentious publick and private Speeches and untrue Calumnies to the disdain and contempt of His Majesties Council and Proceedings and to the dishonour and prejudice of his Highness and his Estate stirring up his Highness's Subjects to misliking and Sedition and unquietness which being the true sense and import of the Acts of Parliament made against Leasing-makers there is nothing can be inferred from the Pannel's alledged Explication which can be wrested or construed to be a Contravention of these Laws In respect First It is known by the whole tenor of his Life and graciously acknowledged by His Sacred Majesty by a Letter under His Royal Hand that the Pannel did ever most zealously vigorously and faithfully promote and carry on His Majesties Service and Interest even in the worst and most difficult times Which is also acknowledged by a Pass under the Earl of Middleton's hand who had then a special Commission from His Majesty for carrying on His Majesties Service in this Kingdom as Lieutenant General under His Majesty and by a Letter under the Earl's hand of the dateâ— both which do contain high expressions of the Pannels Loyalty and of the great Services he had performed for His Majesties interest and His Majesty as being conscious thereof and perfectly knowing the Pannels Loyalty and his zeal and faithfulness for his Service did think fit to entrust the Pannel in Offices and Capacities of the greatest trust of the Kingdom And it is a just and rational presumption which all Laws makes and infers That the words and expressions of persons who by the tenor and course of their Lives have expressed their Duty and Loyalty to His Majesties Interest are ever to be interpreted and understood in meliorem partem And by way of Implication and Inference to conclude and and infer crimes from the same which the user of such words and expressions never mean'd nor designed is both unreasonable and unjust 2. As the foresaid Acts of Parliament made against Leasing makers and depravers of His Majesties Laws only proceed in the terms aforesaid where the words and speeches are plain tending to beget discord between the King and his Subjects and to the reproach and dislike of his Government and when the same are spoke and vented in a subdolous pernicious and fraudulent manner So they never were nor can be understood to proceed in the case of a person offering in the presence of a publick Judicature whereof he had the honour to be a Member his sincere and plain meaning and apprehension of what he conceived to be the true sense of the Act of Parliament imposing and enjoyning the Test There being nothing more opposite to the Acts of Parliament made against Leasing-making and venting and spreading abroad the same upon seditious designs than the foresaid plain and open declaration of his sense and apprehension what was the meaning of the said Act of Parliament And it is of no import to infer any crime and much less any of the crimes libelled albeit the Pannel had erred and mistaken in his apprehension of the Act of Parliament And it were a strange extention of the Act of Parliament made against Leasing-makers requiring the qualifications foresaid and the Acts against depraving His Majesties Laws to make the Pannel or any other person guilty upon the mistakes and misapprehensions of the sense of the Laws wherein men may mistake and differ very much and even eminent Lawyers and Judges So that the Acts of Parliament against Leasing making and depraving His Majesties Laws can only be understood in the express terms and qualifications foresaid Like as it neither is libelled nor can be proven that
any thing a greater reproach on the Parliament or a greater ground of mislike to the people And whereas it is pretended That all Laws and Subsumptions should be clear and these are only inferences It is answered That there are some things which the Law can only forbid in general and there are many inferences which are as strong and natural and reproach as soon or sooner than the plainest defamations in the world do for what is openly said of reproach to the King does not wound him so much as many seditious insinuations have done in this Age and the last So that whatever was the Earls design albeit it is always conceived to be unkind to the Act against which himself debated in Parliament yet certainly the Law in such cases is only to consider what effect this may have amongst the people and therefore the Acts of Parliament that were to guard against the misconstruing of His Majesties Government do not only speak of what was designed but where a disliking may be caused and so judgeth ab effectu And consequentially to the same emergent reason it makes all things tending to the raising of dislike to be punishable by the Act 60. Parl. 6. Q. Mary and the 9. Act Parl. 20. James VI. So that the Law designed to deter all men by these indefinite and comprehensive expressions And both in this and all the Laws of Leasing-making the Judges are to consider what falls under these general and comprehensive words Nor could the Law be more special here since the makers of Reproach and Slander are so various that they could not be bound up or exprest in any Law But as it evidently appears that no man can hear the words exprest if he believe this paper but he must think the Parliament has made a very ridiculous Oath inconsistent with it self and the Protestant Religion the words allowing no other sense and having that natural tendency even as if a man would say I love such a man only in so far as he is an honest man he behooved certainly to conclude that the man was not every way honest So if your Lordships will take measures by other Parliaments or your Predecessors ye will clearly see That they thought less than this a defaming of the Government and misconstruing His Majesties proceedings For in Balmerino's Case the Justices find an humble Supplication made to the King himself to fall under these Acts now cited Albeit as that was a Supplication so it contained the greatest expressions of Loyalty and offers of Life and Fortune that could be exprest yet because it insinuates darkly That the King in the precedeing Parliament had not favoured the Protestant Religion and they were sorry he should have taken Notes with his own hands of what they said which seems to be most innocent yet he was found guilty upon those same very Acts And the Parliament 1661. found his Lordship himself guilty of Leasing-making tho he had only written a Letter to a private Friend which requires no great care nor observation but this paper which was to be a part of his own Oath does because after he had spoken of the Parliament in the first part of this Letter he thereafter added That the King would know their Tricks which words might be much more applicable to the private persons therein designed than that the words now insisted on can be capable of any such Interpretation And if either Interpretations upon pretext of exonering of Conscience or otherwise be allowed a man may easily defame as much as he pleases And have we not seen the King most defamed by Covenants entered into upon pretence to make him great and glorious by Remonstrances made to take away his Brother and best Friend upon pretence of preserving the Protestant Religion and his Sacred person And did not all who rebelled against him in the last Age declare That they thought themselves bound in duty to obey him but still as far as that could consist with their respect to the Protestant Religion and the Laws and Liberties which made all the rest ineffectual And whereas it is pretended That by these words I take the same in as far as it is consistent with it self and the Protestant Religion nothing more is meant but that he takes it as a true Protestant His Majesties Advocate appeals to your Lordships and all the Hearers if upon hearing this expression they should take it in this sense and not rather think that there is an inconsistency For if that were possible to be the sense what need he say at all As far as it is consistent with it self Nor had the other part As far as it is consistent with the Protestant Religion been necessary for it is either consistent with the Protestant Religion or otherwise they were Enemies to the Protestant Religion that made it Nor are any Lawyers or others in danger by pleading or writing for these are very different from and may be very easily pleaded without defaming a Law and an Oath when they go to take it But if any Lawyer should say in pleading or writing That the Test was inconsistent or which is all one that it were not to be taken by any man but so far as it was consistent with it self and the Protestant Religion no doubt this would be a crime even in pleading tho pleading has a greater allowance than deliberate swearing has And as there is nothing wherein there is not some inconveniency so the inconveniency of defaming the Government is much greater than that of any private mans hazard who needs not err except he please Whereas it is pretended That before the Earl gave in this Explication there were other Explications spread abroad and Answers read to them in Council and that the Council it self gave an Explication It is answered That if this paper be Leasing-making or misconstruing His Majesties proceedings and Treasonable as is contended then a thousand of the like offences cannot excuse it And when the King accused Noblemen Ministers and others in the year 1661. for going on in the Rebellions of that Age first with the Covenanters and then with the Usurpers it was found no Defence That the Nation was over-grown with those Crimes and that they were thought to be duties in those days Yea this were to invite men to offend in multitudes And albeit sometimes these who follow the examples of multitudes may thereby pretend this as an excuse to many yet this was never a formal defence against Guilt nor was ever the chief of the Offenders favourable on that Head And it is to be presumed That the Earl of Argyle would rather be followed by others than that he would follow any example But His Majesties Advocate does absolutely decline to debate a point that may defame a constant and standing Act of Parliament by leaving upon record a memory of its being opposed Nor were this Relevant except it could be said the Council had allowed such Explications which reflected
the frailty of humane Affairs and Constitutions and vicissitude of things and circumstances do constantly require in the most exact Constitutions under Heaven And the clause does not so much as import that there is a present necessity of alteration but it was a necessary and rational prospect That albeit at present all things under Heaven had been done to secure the Religion and Government yet there might occur Cases that would require new helps alterations and remedies And it is not pretended in this Case for the Pannel That he desires to alleviate or take off words truly treasonable or having an ill design by the mixing of fair and safe dutiful and submissive Expressions which indeed are Protestations contrariae facto For there is nothing in his Explanation that either in his design or in the words themselves being rationally and naturally interpreted can infer the Crimes libelled or any of them And the Pannel's known Principles and known Practices do not only clear that Loyalty that he has profest before the Lords of Justitiary and instructed by unquestionable Docuements but they put him far from the suspicion of these damnable Principles related in the Reply Of which the whole tract of his Life hath been an intire evidence of his abhorrency and detestation And in the last place It is thought strange why that should be represented as an affront or disgrace to the Government That the Parliament imposed a Test which the Pannel is not able to take simply And it is not pretended That he hath defamed written or spoken against the Test it self or for the inconvenience of it but only that he hath not been able to see the good ground upon which it may be simply taken And this were to condemn him for want of sight or sense when the Law hath punished no man for not taking the Test but only turned him out of the Government And it is as strange an Inference That because the Pannel declares He believes the Parliament meaned no Contradiction and would take the Test in as far as it is consistent that therefore he said the Parliament imposed Contradictions Which is so far from a rational Induction that the Contradiction of these Subsumptions in all congruity of Language and Sense is necessarily true And therefore the last part of that Clause in so far as it is consistent is a Consequence inferred upon the former viz. I believe the Parliament designed to impose no Contradictions ergo I take the Test as consistent and in so far as it must be consistent if the Parliament did not impose Contradictions as certainly they have not and to convince the world that in this sense this Explanation is receivable it was proposed in Council and allowed and therefore without the highest reflection it cannot now be quarrelled Sir George Lockhart 's second Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR George Lockhart Duplies That the Defender repeats and oppones his former Desences which are no ways eluded nor satisfied by the Reply made by His Majesties Advocate And altho it be easie for the Kings Advocate out of his zeal to pretend and argue Crimes of the highest Nature upon Inferences and Consequences neither consistent with the Pannel's designs nor with his words and expressions yet there cannot be a more dangerous foundation laid for the security and interest of the Government and the security and protection of the Subjects than that Crimes should be inferred but from clear evident and express Laws and plain palpable Contravention of these Laws it being both against the Laws of God and Man that a Man should be made an Offender for a word and especially for expressions which according to Sense and Reason and considering the time and place where they were spoken by the Pannel viz. as a Member of His Majesties Privy-Council and in presence of his Royal Highness and the Members of Council and when required to take the Test were safe and Innocent and it were against all Law and Reason to suppose that the Pannel either did or designed to do any thing which may or did import the Crimes libelled against him And whereas it is pretended That the Oath required and imposed by Act of Parliament was for the security of the Government and that the Pannel by his Explanation does evade the Oath by taking it only so far as it is consistent with the Protestant Religion and his own Loyalty whereof he was Judge It is answered That the pretence is most unwarrantable and the security of His Majesties Government is not at all endangered as God forbid it should tho the Pannel and a Thousand more had simply refused the Test or had taken it in a sense which does not satisfie the Law it being competent to publick Authority to consider whether the Pannels Oath in the terms of the Explication wherein he did take it does satisfie the Act of Palriament or not And if not there can be no rational consequence inferred thereupon but that he is holden as a Refuser of the Oath and liable to the Certification of the Act of Parliament of not assuming and continuing in any publick Trust And no more was intended or designed by the Act of Parliament it self than strictly to make the Oath in the true and genuine sense and meaning of the Parliament an indispensible qualification of persons admitted to publick Trust So that it is not at all material to dispute whether the Pannel's Explication can be looked upon as a full satisfaction of the Act which whether it should or not it can import no Crime against him it not being consistent with Sense and Reason that a person who absolutely refuseth the Test upon the scrupulosity of his Conscience albeit he be not capable of publick Trust should be notwithstanding looked upon as guilty of no Crime and yet another who was willing to go to a greater length albeit he did demur and scruple as to the full length that he should be reputed criminal and guilty of a Crime 2. The Pannel repeats and conjoyns with this the grounds above mentioned contained in his Defences viz. That neither the Crimes libelled nor any other Crime were ever pretended or made use of against any others who did spread abroad Objections of an high nature which yet were so favourably looked upon as to be construed only to proceed from scrupulosity of Conscience as also the satisfaction endeavoured is in such terms and by such condescensions as do take in and justifie the whole terms of the Explication libelled It is of great moment and whereof the Lords of Justitiary are desired to take special notice both for clearing the absolute innocence of the Pannel's meaning and intention and to take off all possible misconstruction that can be wrested or detorted from the tenor and expressions of the libelled Explication That the Pannel was put to and required to take the Oath before the Lords of His Majesties Privy-Council did pass
hours without intermission it adjourned till the next day being Tuesday the 13th of December at Two of the Clock in the Afternoon And then the Earl being again brought to the Bar the following Interloquutour that is Judgment and Sentence of the Lords of Justitiary on the foregoing debate was read and pronounced in open Court Edinburgh December 12. 1681. The Interloquutour of the Lords of Justitiary THE Lords Justice General and Commissioners of the Justitiary having considered the Libel and Debate they sustain the defence proponed for the Earl of Argyle the Pannel in relation to the perjury Libelled viz. That he emitted this Explanation at or before his taking the Test first before his Royal Highness His Majesties High Commissioner and the Lords of His Majesties Privy Council relevant to elude that Article of the Libel The Lords sustain the Libel as being founded upon the Common Law and Explication Libelled and upon Act 130. Parl. 8. James VI. to infer the pain of Treason They likewise sustain the Libel as founded upon the 10. Act Parl. 10. James VI. to infer the pain of Death and likewise sustain that part of the Libel anent Leasing making and Leasing-telling to infer the particular pains mentioned in the several Acts Libelled And repel the whole other defences duplies and quadruplies and remits the Libel with the defences anent the Perjury to the knowledge of an Assize Thereafter the Assize that is the Jury being constitute and sworn viz. List of the Assizers Marquiss Montross E. Middleton E. Airlie E. Perth P. Cr. E. Dalhousie E. Roxburgh P. C. E. Dumfries E. Linlithgow P. Cr. Lord Lindoors Lord Sinclare Lord Bruntisland Laird of Gosfoord Laird of Claverhouse Laird of Balnamoon Laird of Park Gordon HIS Majesties Advocate adduced four Witnesses to prove the points of the Indictment remitted to the knowledge of the Assize viz. John Drummond of Lundie then Governour of the Castle of Edinburgh now Treasurer Deputy Sir William Paterson and Mr. Patrick Menzies Clerks of the Privy Council and H. Stevenson their under Clerk Who deponed That on the 4th of November the Earl did give in an unsubscribed Explanation of the Test which he refused to sign One of the Witnesses also adding That he heard him make the same Explanation the day before in Council and that it was there accepted Then His Majesties Advocate asked if the Earl would make use of his Exculpation for eliding the Perjury Libelled to wit That he had emitted the same Explanation before taking the Test in presence of his Royal Highness and the Council To which the Earl answered That seeing they had sustain'd the Libel as to the alledged Treason he would not trouble them about the Perjury especially the matter of Fact referred by the Interloquutour to his probation being of it self so clear and notour Fut the truth is the Interloquutour pronounced was so amazing that both the Earl and his Advocates were struck with deep silence for they plainly perceived that after such a Judgment in the case all further endeavours would be in vain it being now manifest that seeing the Earls innocence had so little availed as that his plain and honest words purely uttered for the necessary satisfaction of his own conscience and clearing of his Loyalty had been construed and detorted to infer Leasing-making Depraving and Treason the Tongues of men and Angels as some of his Advocates also said could not do any good and therefore neither did the Earl nor they object any thing either against the Assizers or Witnesses though liable to obvious and unanswerable exceptions Nor did the Earls Advocates say any thing to the Assize as the custom is and as in this case they might well have done to take off the force of the Evidence and to demonstrate that the Depositions instead of proving the Indictment did rather prove the Earls defences But as I have said they now plainly saw that all this had been unnecessary work and in effect were of opinion that after so black and dreadful a sence put upon what the Earl had spoke and done in such fair and favourable circumstances there could be nothing said before such a Court which might not expose themselves to the like hazard and more easily be made liable to the same mis-construction But upon this silence the Advocate taking Instruments protests whether in form only or from a real fear let others judge for an Assize of Error in case the Assizers should Assoil or acquit Whereupon the Assize removing was inclosed and after some time returned their Verdict which was read in open Court of this tenour The Verdict of the Assize THE Assize having Elected and Chosen the Marquess of Montrose to be their Chancellor they all in one voice find the Earl of Argyle guilty and culpable of the Crimes of Treason Leasing-making and Leasing-telling And find by plurality of Votes the said Earl innocent and not guilty of Perjury And then the Court again adjourned And the Privy-Council wrote the following Letter to His Majesty Halyrud-House December 14. 1681. The Councils Letter to the King desiring leave to pronounce Sentence against the Earl of Argyle May it please Your Sacred Majesty IN Obedience to Your Majesty's Letter dated the 15th of November last we ordered Your Majesty's Advocate to insist in that Process raised at your Instance against the Earl of Argyle And having allowed him a long time for his appearance and any Advocates he pleased to employ and Letters of Exculpation for his Defence He after full Debate and clear Probation was found guilty of Treason Leasing-making betwixt Your Majesty Your Parliament and Your People and the reproaching of Your Laws and Acts of Parliament But because of Your Majesty's Letter ordaining us to send Your Majesty a particular account of what he should be found guilty of before the pronouncing of any Sentence against him we thought it our duty to send Your Majesty this account of our and Your Justices proceedings therein And to signifie to Your Majesty with all Submission That it is usual and most fit for Your Majesty's Service and the Advantage of the Crown that a Sentence be pronounced upon the Verdict of the Assize without which the Process will be still imperfect After which Your Majesty may as you in Your Royal Prudenee and Clemency shall think fit Ordain all farther execution to be sisted during Your Majesty's pleasure Which shall be dutifully obeyed by Your MAJESTY's Most Humble Most Faithful and most Obedient Subjects and Servants Sic Subscribitur Alex. St. And. Athol Douglas Montrose Glencairn Wintoun Linlithgow Perth Roxburgh Dumfries Strathmore Airlie Ancram Livingstoun Jo. Edinburgens Elphingstoun Dalziell Geo. Gordon Ch. Maitland Geo. Mckenzie G. Mckenzie Ramsay J. Drummond THE Earl as well as the Lords of Privy Council waited some days for the Answer of this Letter But the Earl making his escape a day or two before it came I shall take occasion to entertain you in the mean time with an account of
nothing in the Test consistent with either And 3dly If the Protestant Religion and the Earl his reference to it be nothing then is not only the Council sadly reproached who in their Explanation declare this to be the only thing sworn to in the first part of the Test but our Religion quite subverted as far as this Test can do it But next for the Treason the Advocate says That the Earl expresly declares he means not by the Test to bind up himself from wishing or endeavouring in his station and in a lawful way any alteration he shall think for the advantage of Church or State whereby says he the Earl declares himself and others loosed from any obligation to the Government and from the duty of all good Subjects and that they may make what alterations they please A direct contrariety instead of a just consequence as if to be tied to Law Religion and Loyalty were to be loosed from all three Can there be a flatter and more ridiculous contradiction Next the Advocate pretends to found upon the fundamental Laws of this and all Nations Whereby it is Treason for any Man to make any alterations he thinks fit for the advantage of Church or State But first The Earl is not nor cannot be accused of so much as wishing much less endeavouring or making any alteration either in Church or State only he reserves to himself the same freedom for wishing which he had before his Oath and that all that have taken it do in effect say they still retain 2dly For a man to endeavour in his station and in a lawful way such alterations in Church or State as he conceives to their advantage not repugnant to Religion and Loyalty is so far from being Treason that it is the duty of every Subject and the sworn Duty of all His Majesty's Councellors and of all Members of Parliament But the Advocate by fancying and misapplying Laws of Nations wresting Acts of Parliaments adding taking away chopping and changing words thinks to conclude what he pleases And thus he proceeds That the Treason of making Alterations is not taken off by such qualifications of making them in a lawful way in ones station to the advantage of Church or State and not repugnant to Religion or Loyalty But how then Here is a strange matter Hundreds of Alterations have been made within these few years in our Government and in very material Points and the King 's best Subjects and greatest Favourites have both endeavoured and effectuate them And yet because the things were done according to the Earl's qualifications instead of being accounted Treason they have been highly commended and rewarded The Treasury hath been sometimes in the hands of a Treasurer sometimes put into a Commission backward and forward And the Senators of the College of Justice the right of whose places was thought to be founded on an Act of Parliament giving His Majesty the prerogative only of presenting are now commissioned by a Patent under the great Seal both which are considerable alterations in the Government which some have opposed others have wished and endeavoured and yet without all fear of Treason on either hand only because they acted according to these qualifications in a lawful way and not repugnant to Religion and Loyalty But that which the Advocate wilfully mistakes for it is impossible he could do it ignorantly is that he will have the endeavouring of alterations in general not to be of it self a thing indifferent and only determinable to be good or evil by its qualifications as all men see it plainly to be but to be forsooth in this very generality intrinsically evil a Notion never to be admitted on Earth in the frail and fallible condition of humane Affairs And then he would establish this wise Position by an example he adduces That rising in Arms against the King for so sure he means it being otherwise certain that rising in Arms in general is also a thing indifferent and plainly determinable to be either good or evil as done with or against the King's Authority is Treason and says If the Earl had reserved to himself a liberty to rise in Arms against the King tho he had added in a lawful manner yet it would not have availed because and he says well This being in it self unlawful the qualification had been but shams and contrariae facto But why then doth not his own reason convince him where the difference lies viz. That rising in Arms against the King is in it self unlawful whereas endeavouring alterations is only lawful or unlawful as it is qualified and if qualified in the Earl's Terms can never be unlawful But says the Advocate The Earl declares himself free to make all alterations and so he would make Men believe that the Earl is for making All or Any without any reserve whereas the Earl's words are most express that he is Neither for making all or any but only for wishing and endeavouring for such as are good and lawful and in a lawful way which no Man can disown without denying common reason nor no sworn Councellor disclaim without manifest Perjury But the Advocate 's last conceit is That the Earl's restriction is not as the King shall think fit or as is consistent with the Law but that himself is still to be judge of this and his Loyalty to be the standard But first The Earl's restriction is expresly according to Loyalty which in good sense is the same with according to Law and the very thing that the King is ever supposed to think Secondly As neither the Advocate nor any other hitherto have had reason to distinguish the exercise and actings of the Earlâ—s Loyalty from those of His Majesty's best Subjects so Is it not a marvellous thing that the Advocate should profess to think for in reality he cannot think it the Earl's words His Loyalty which all men see to be the same with his Duty and Fidelity or what else can bind him to his Prince capable of any quibble far more to be a ground of so horrid an accusation And whereas the Advocate says The Earl is still to be judge of this It is but an insipid calumny it being as plain as any thing can be That the Earl doth nowise design His thinking to be the rule of Right and Wrong but only mentions it as the necessary application of these excellent and unerring Rules of Religion Law and Reason to which he plainly refers and subjects both his thinking and himself to be judged accordingly By which it is evident that the Earl's restriction is rather better and more dutiful than that which the Advocate seems to desiderate And if the Earl's restrictions had not been full enough it was the Advocate 's part before administrating the Oath to have craved what more he thought necessary which the Earl in the Case would not have refused But it is believed the Advocate can yet hardly propose restrictions more full and suitable to Duty
another making a Speech that no Man understood a third all the time of the reading repeating Lord have mercy upon me miserable sinner Nay even an Advocate after being debarred a few days because albeit no Clerk yet he would not take it without the benefit of his Clergy viz. the Councils Explanation was yet thereafter admitted without the Warrant of the Councils Act but all this in the Case of so many other was right and good Further the Council expresly declare the Earl to be Guilty before he had ever said one word in his own defence Thereafter some of them become his Assizers and others of them witness against him and after all they do of new concern themselves by a Second Letter to His Majesty wherein they assert That after full debate and clear probation he was found guilty of Treason c. to have a sentence past against him and that of so high a nature and so dreadful a consequence as suffers no person to be unconcerned far less their Lordships his Judges who upon grounds equally just and which is more already predetermined by themselves may soon meet with the same measure not only as Concealers of Treason but upon the least pretended disobedience or non-compliance with any Act of Parliament and after all must infallably render an account to God Almighty He bids them therefore lay their hands to their bearts and whatever they shall judge he is assured that God knows and he hopes all unblassed men in the World will or may know he is neither guilty of Treason nor any of the Crimes libelled He says he is glad how many out-do him in asserting the true Protestant Religion and their Loyalty to His Majesty only he hadds If he could justify himself to God as he can to His Majesty he is sure he might account himself the happiest man alive But yet seeing he hath a better hope in the mercy of God through Jesus Christ he thereupon rests whether he finds Justice here on Earth or not He says he will add nothing to move them either to tenderness or pity he knows that not to be the place and pretends to neither from them He pleads his Innocence and craves Justice leaving it to their Lordships to consider not so much his particular Case as what a Preparative it may be made and what may be its Consequences And if all he hath said do neither convince nor persuade them to alter their judgment yet he desires them to consider whether the Case do not at least deserve to be more fully represented and left to His Majecty's wisdom and justice seeing that if once the matter pass upon record for Treason it is undoubted that hundreds of the best and who think themselves most innocent may by the same methods fall under the like Condemnation whenever the King's Advocate shall be thereto prompted And thus you have a part of what the Earl intended to have said before pronouncing Sentence if he had not made his Escape before the day Yet some things I perceive by his Notes are still in his own breast as only proper to be said to His Majesty I find several Quotations out of the Advocate 's printed Books that it seems he was to make some use of but seeing it would have been too great an interruption to have applied them to the places designed I have subjoined them together leaving them to the Advocate 's own and all mens consideration It was by some remarked That when the Lords of Justitiary after the ending of the first days debate resolved that same night to give judgment upon it they sent for the Lord Nairn one of their number an old and infirm man who being also a Lord of the Session is so decayed through age that he hath not for a considerable time been allowed to take his turn in the Outer-house as they call it where they judge lesser Causes alone But notwithstanding both his age and infirmity and that he was gone to bed he was raised and brought to the Court to consider a Debate a great deal whereof he had not heard in full Court and withal as is informed while the Clerk was reading some of it fell of new asleep It was also remarked that the Lords of Justitiary being in all five viz. the Lord Nairn above-mentioned with the Lords Collintoun Newtoun Hirkhouse and Forret the Libel was found relevant only by the odds of three to two viz. the Lord Nairn aforesaid the Lord Newtoun since made President of the Session and the Lord Forret both well enough known against the Lord Collintoun a very ingenious Gentleman and a true old Cavalier and the Lord Hirkhouse a learned and upright Judge As for the Lord Justice General who was also present and presided his vote according to the constitution of the Court was not asked But to return to my Narrative the Earl as I have already told you did not think fit for reasons that you shall hear to stay till His Majesty's return came to the Council's last Letter but taking his opportunity made his escape out of the Castle of Edinburgh upon Tuesday the Twentieth of December about eight at night and in a day or two after came His Majesty's Answer here subjoined The King's Answer to the Council's Letter December 18. 1681. C. R. MOST dearly c. having this day received your Letter of the 14th instant giving an account that our Advocate having been ordered by you to insist in that Process raised at our instance against the Earl of Argyle he was after full debate and clear probation found guilty of Treason and Leasing-making betwixt us our Parliament and our People and the reproaching our Laws and Acts of Parliament We have now thought fit notwithstanding of what was ordered by us in our Letter to you of the 15th of November last hereby to authorize you to grant a Warrand to our Justice General and the remanent Judges of our Justice Court for proceeding to pronounce a Sentence upon the Verdict of the Jury against the said Earl nevertheless it is our express pleasure and we do hereby require you to take care that all execution of the Sentence be stopped until we shall think fit to declare our further pleasure in this Affair For doing whereof c. Which Answer being read in Council on the Thursday and the Court of Justiciary according to its last Adjournment as shall be told you being to meet upon the Friday after a little hesitation in Council whether the Court of Justiciary could proceed to the Sentence of Forfaulture against the Earl he being absent it was resolved in the affirmative And what were the grounds urged either of hesitation or resolution I cannot precisely say there being nothing on record that I can learn But that you may have a full and satisfying account I shall briefly tell you what was ordinarily discoursed a part whereof I also find in a Petition given in by the Countess of Argyle to the Lords
alledged irrelevancy thereof That in time coming all Criminal Libels shall contain that the persons complained on are Art and Part of the Crimes Libelled which shall be relevant to accuse them thereof swa that no exception or objection take away that part of the Libel in time coming He says That he finds no Act of Parliament more unreasonable for the Statutory part of that Act committing the Tryal of Art and Part to Assizers seems most unjust Seeing in committing the greatest questions of the Law to the most ignorant of the Subjects it puts a sharp Sword into the hands of blind men And the reason of this Act specified in the Narrative is likewise most inept and no ways illative c. What Reproaches What Blasphemies The Earl said not one word against any Act of Parliament But on the contrary That he was confident the Parliament intended no contradiction and that he was willing to take the Test in the Parliaments sense But here the Advocate both says and Prints it That an Act of Parliament is most unreasonable and most unjust and it's reason most inept and that it puts a sharp Sword in the hands of blind men Whereof the smallest branch is infinitely more reproachful than all can be strained out of the Earl's words But Sir Speculation is but Speculation and if the Advocate when his day comes be as able to purge himself of Practical Depravations as I am inclined to excuse all his Visionary Lapses notwithstanding of the famous Title Quod quisque juris in alterum statuorit ut ipse eodem jure utatur he shall never be the worse of my censure Murther will out Or the King's Letter justifying the Marquess of Antrim and declaring That what he did in the Irish Rebellion was by Direction from his Royal Father and Mother and for the service of the Crown Ireland Aug. 22. 1663. Ever honoured Sir LAST Thursday we came to Trial with my Lord Marquess of Antrim but according to my Fears which you always surmised to be in vain he was by the King 's Extraordinary and Peremptory Letter of Favour restored to his Estate as an Innocent Papist We proved Eight Qualifications in the Act of Settlement against him the least of which made him uncapable of being restored as Innocent We proved 1. That he was to have a hand in surprizing the Castle of Dublin in the Year 1641. 2. That he was of the Rebels Party before the 15th of September 1643. which we made appear by his hourly and frequent intercourse with Renny O Moore and many others being himself the most notorious of the said Rebels 3. That he entered into the Roman-Catholick Confederacy before the Peace in 1643. 4. That he constantly adhered to the Nuncio's Party in opposition to his Majesty's Authority 5. That he sate from time to time in the Supream Council of Kilkenny 6. That he signed that execrable Oath of Association 7. That he was Commissionated and acted as Lieutenant-General from the said Assembly at Kilkenny 8. That he declared by several Letters of his own penning himself in Conjunction with Owen Ro Oneale and a constant Opposer to the several Peaces made by the Lord Lieutenant with the Irish We were seven hours by the Clock in proving our Evidence against him but at last the King's Letter being opened and read in Court Rainsford one of the Commissioners said to us That the King's Letter on his behalf was Evidence without Exception and thereupon declared him to be an Innocent Papist This Cause Sir hath tho many Reflections hath passed upon the Commissioners before more startled the Judgments of all men than all the Tryals since the beginning of their sitting and it is very strange and wonderful to all of the Long Robe that the King should give such a Letter having divested himself of that Authority and reposed the Trust in the Commissioners for that purpose And likewise it is admired that the Commissioners having taken solemn Oaths To execute nothing but according to and in pursuance of the Act of Settlement should barely upon his Majesty's Letter declare the Marquess Innocent To be short There never was so great a Rebel that had so much favour from so good a King And it is very evident to me though young and scarce yet brought upon the stage that the consequence of these things will be very bad and if God of his extraordinary mercy do not prevent it War and if possible greater Judgments cannot be far from us where Vice is Patroniz'd and Antrim a Rebel upon Record and so lately and clearly proved one should have no other colour for his Actions but the King 's own Letter which takes all Imputations from Antrim and lays them totally upon his own Father Sir I shall by the next if possible send you over one of our Briefs against my Lord by some Friend It 's too large for a Pacquet it being no less in bulk than a Book of Martyrs I have no more at present but refer you to the King's Letter hereto annexed CHARES R. RIght Trusty and well-beloved Cousins and Counsellors c. We greet you well How far we have been from interposing on the behalf of any of our Irish Subjects who by their miscarriages in the late Rebellion in that Kingdom of Ireland had made themselves unworthy of Our Grace and Protection is notorious to all men and We were so jealous in that particular that shortly after Our return into this Our Kingdom when the Marquess of Antrim came hither to present his duty to Us upon the Information We received from those Persons who then attended Us by a Deputation from Our Kingdom of Ireland or from those who at that time owned our Authority there that the Marquess of Antrim had so misbehaved himself towards Us and Our late Royal Father of blessed memory that he was in no degree worthy of the least Countenance from Us and that they had manifest and unquestionable Evidence of such his guilt Whereupon We refused to admit the said Marquess so much as into Our Presence but on the contrary committed him Prisoner to our Tower of London where after he had continued several Months under a strict restraint upon the continual Information of the said Persons We sent him into Ireland without interposing the least on his behalf but left him to undergo such a Tryal and Punishment as by the Justice of that Our Kingdom should be found due to his Crime expecting still that some heinous Matter would be objected and proved against him to make him uncapable and to deprive him of that Favour and Protection from Us which we knew his former Actions and Services had merited After many months attendance there and We presume after such Examinations as were requisite he was at last dismissed without any Censure and without any transmission of Charge against him to Us and with a License to transport himself into this Kingdom We concluded that it was then time to give him
some instance of Our Favour and to remember the many Services he had done and the Sufferings he had undergone for his Affections and Fidelity to Our Royal Father and Our self and that it was time to redeem him from those Calamities which yet do lie as heavy upon him since as before Our happy Return And thereupon We recommend him to You Our Lieutenant that you should move Our Council there for preparing a Bill to be transmitted to Us for the Re-investing him the said Marquess into the possession of his Estate into that Our Kingdom as had been done in some other Cases To which Letter you Our said Lieutenant returned us answer That you had informed Our Council of that Our Letter and that you were upon consideration thereof unanimously of Opinion that such a Bill ought not to be transmitted to Us the Reason whereof would forthwith be presented to Us from our Council After which time We received the inclosed Petition from the said Marquess which We referred to the considerations and examinations of the Lords of Our Privy Council whose Names are mentioned in that Our Reference which is annexed to the said Petition who thereupon met together and after having heard the Marquess of Antrim did not think fit to make any Report to Us till they might see and understand the Reasons which induced you not to transmit the Bill We had proposed which Letter was not then come to Our Hands After which time We have received your Letter of the 18th of March together with several Petitions which had been presented to you as well from the Old Soldiers and Adventurers as from the Lady Marchioness of Antrim all which We likewise transmitted to the Lords Referees Upon a second Petition presented to Us by the Lord Marquess which is here likewise enclosed commanding Our said Referees to take the same into their serious consideration and to hear what the Petitioner had to offer in his own Vindication and to report the whole matter to Us which upon a third Petition herein likewise inclosed We required them to expedite with what speed they could By which deliberate Proceedings of ours you cannot but observe that no importunity how just soever could prevail with Us to bring Our Self to a Judgment in this Affair without very ample Information Our said Referees after several Meetings and perusal of what hath been offered to them by the said Marquess have reported unto Us That they have seen several Letters all of them the hand-writing of Our Royal Father to the said Marquess ☞ and several Instructions concerning his treating and joining with the Irish in order to the King's Service by reducing to their Obedience and by drawing some Forces from them for the Service of Scotland That besides the Letters and Orders under His Majesty's Hand they have received sufficient Evidence and Testimony of several private Messages and Directions sent from Our Royal Father and from Our Royal Mother with the privity and with the Directions of the King Our Father by which they are persuaded that whatever Intelligence Correspondence or Actings the said Marquess had with the Confederate Irish Catholicks was directed or allowed by the said Letters Instructions and Directions and that it manifestly appears to them that the King Our Father was well pleased with what the Marquess did ☞ after he had done it and approved the same This being the true state of the Marquess his Case and there being nothing proved upon the first Information against him nor any thing contained against him in your Letter of March 18. but that you were informed he had put in his Claim before the Commissioners appointed for executing the Act of Settlement and that if his Innocency be such as is alledged there is no need of transmitting such a Bill to us as is desired and that if he be Nocent it consists not with the Duty which you owe to Us to transmit such a Bill as if it should pass into a Law must needs draw a great prejudice upon so many Adventurers and Soldiers which are as is alledged to be therein concerned We have considered of the Petition of the Adventurers and Soldiers which was transmitted to Us by you the Equity of which consists in nothing but that they have been peaceably in possession for the space of seven or eight years of those Lands which were formerly the Estate of the Marquess of Antrim and others who were all engaged in the late Irish Rebellion and that they shall suffer very much and be ruined if those Lands should be taken from them And We have likewise considered another Petition from several Citizens of London near sixty in number directed to our Self wherein they desire That the Marquess his Estate may be made liable to the payment of his just Debts that so they may not be ruined in the favour of the present Possessors who they say are but a few Citizens and Soldiers who have disbursed very small Sums thereon Upon the whole matter no man can think We are less engaged by Our Declaration and by the Act of Settlement to protect those who are Innocent and who have faithfully endeavoured to serve the Crown how unfortunate soever than to expose to Justice those who have been really and maliciously guilty And therefore we cannot in Justice but upon the Petition of the Marquess of Antrim and after the serious and strict Inquisition into his Actions declare unto you That We do find him Innocent from any malice or rebellious Purpose against the Crown and that what he did by way of Correspondence or Compliance with the Irish Rebels was in order to the Service of Our Royal Father and warranted by his Instructions and the Trust reposed in him and that the benefit thereof accrued to the Service of the Crown and not to the particular advantage and benefit of the Marquess And as we cannot in justice deny him this Testimony so We require You to transmit Our Letter to Our Commissioners that they may know our Judgment in this Case of the Lord of Antrim's and proceeded accordingly And so we bid you heartily farewel Given at our Court at White-Hall July 10. in the 15th Year of Our Reign 1683. By His Majesty's Command HENRY BENNET Entred at the Signet-Office July 13. 1663. To Our Right Trusty and Right entirely Well-beloved Cousin and Counsellor James Duke of Ormond Our Lieutenant-General and General Governour of Our Kingdom of Ireland and to the Lords of Our Council of that Our Kingdom Vox Populi Or The Peoples Claim to their Parliament's Sitting to Redress Grievances and to provide for the Common Safety by the known Laws and Constitutions of the Nation SInce the wonderful Discovery and undeniable Confirmation of that horrid Popish Plot which designed so much ruine and mischief to these Nations in all things both Civil and Sacred and the unanimous Sense and Censure of so many Parliaments upon it together with so many publick Acts of Justice upon so many
him and it can give none to destroy its self and those it protects but the contrary Bracton in his Comments pag. 487. tells us Bracton p. 487. That although the Common Law doth allow many Prerogatives to the King yet it doth not allow any that He shall wrong or hurt any by His Prerogative Therefore 't is well said by a late Worthy Author upon this point That what Power or Prerogative the Kings have in Them ought to be used according to the true and genuine intent of the Government that is for the Preservation and Interest of the People And not for the disappointing the Councils of a Parliament towards reforming Grievances and making provision for the future Execution of the Laws and whenever it is applied to frustrate those ends it is a Violation of Right and Infringement of the King's Coronation Oath who is obliged to Pass or Confirm those Laws His People shall cluse And tho he had such a Prerogative by Law yet it should not be so used especially in time of Eminent danger and distress The late King in His Advice to His Majesty that now is in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 239. Tells him That his Prerogative is best shewed and exercised in Remitting rather than exacting the Rigor of the Laws there being nothing worse than Legal Tyranny Nor would he have him entertain any Aversion or Dislike of Parliaments The Late King's advice to His Majesty which in their right Constitution with freedom and Honour will never Injure or Diminish His Greatness but will rather be as interchangings of Love Loyalty and Confidence between a Prince and His people It is true some Flatterers and Traytors have presumed in defiance to their Countries Rights to assert that such a boundless Prerogative belongs to Kings As did Chief Justice Trisilian c. in R. 2â—s time Advising him that he might Dissolve Parliaments at pleasure and that no Member should be called to Parliament nor any Act past in either House without His Approbation in the first place and that whoever advis'd otherwise were Traytors But this Advice you read was no less fatal to himself than pernicious to his Prince Bakers Chron. p. 147 148 and 159. King James in His Speech to the Parliament 1609. Gives them assurance That he never meant to Govern by any Law but the Law of the Land tho it be disputed among them as if he had an intention to alter the Law and Govern by the absolute power of a King but to put them out of doubt in that matter tells them That all Kings who are not Tyrants or Perjured will bound themselves within the limits of their Laws And they that persuade the contrary are Vipers and Pests both against them and the Commonwealth Wilson K. J. p. 46. The Conclusion 1. IF this be so That by so great Authority viz. so many Statutes in force The sundamental of the Common Law the Essentials of the Government it self Magna Charta The King's Coronation Oath so many Laws of God and Man The Parliament ought ro sit to Redress Grievances and provide for Common Safety especially in times of Common Danger And that this is eminently so who can doubt that will believe the King so many Parliaments The Cloud of Witnesses the Publick Judicatures their own sense and experience of the manifold Mischiefs which have been acted and the apparent Ruine and Confusion that impends the Nation by the restless Attempts of a bloody Interest if speedy Remedy is not applied Then let it be Queried Whether the People having thus the Knife at the Throat Cities and Habitations Fired and therein their Persons fried Invasions and Insurrections threatned to Destroy the King and Subjects Church and State and as so lately told us upon Mr. Fitz Harris's Commitment the present Design on Foot was to Depose and Kill the King and their only remedy hoped for under God to give them relief Relief thus from time time cut off viz. Their Parliaments who with so much care cost and pains are Elected sent up and Intrusted for their help turned off ré infecta and rendred so insiguificant by those frequent Prorogations and Dissolutions Are they not therefore justified in their important Cries in their many Humble Petitions to their King Fervent Addresses to their Members earnest Claims for this their Birth-right here Pleaded which the Laws of the Kingdom consonant to the Laws of God and Nature has given them 2. If so what then shall be said to those who advise to this high Violation of their Countries Rights to the infringing so many just Laws and exposing the Publick to those desperate hazards if not a total Ruine If King Alfred as Andrew Horne in his Mirror of Justice tells us hanged Darling Segnor Cadwine Cole and Forty Judges more for Judging contrary to Law and yet all those false Judgments were but in particular and private Cases What death do those Men deserve who offer this violence to the Law it self and all the Sacred Rights of their Country If the Lord Chief Justice Thorp in Ed. 3d's time for receiving the Bribery of One hundred pounds was adjudged to be Hanged as one that had made the King break his Oath to the People How much more guilty are they of making the King break His Coronation Oath that persuade him to Act against all the Laws for holding Parliaments and passing Laws therein which he is so solemnly sworn to do And if the Lord Chief Justice Tresilian was Hanged Drawn and Quartered for Advising the King to Act contrary to some Statutes only What do those deserve that advise the King to Act not only against some but against all these Ancient Laws and Statutes of the Realm And if Blake the King's Council but for assisting in the matter and drawing up Indictments by the King's Command contrary to Law tho it is likely he might Plead the King's Order for it yet if he was Hang'd Drawn and Quartered for that What Justice is due to them that assist in the Total Destruction of all the Laws of the Nation and as much in them lies their King and Country too And if Vsk the under-Sheriff whose Office is to Execute the Laws for but endeavouring to aid Tresilian Blake and their Accomplices against some of the Laws was also with Five more Hang'd Drawn and Quartered What punishment may they deserve that Aid and endeavour the Subversion of all the Laws of the Kingdom And if Empson and Dudley in Henry the Eighth's time tho two of the King 's Privy Council were Hanged for Procuring and Executing an Act of Parliament contrary to the Fundamental Laws of the Kingdom and to the great vexation of the People so that tho they had an Act of Parliament of their side yet that Act being against the known Laws of the Land were Hang'd as Traytors for putting that Statute in Execution Then what shall become of those who have no such Act to shelter themselves under and who
Good and Faithful Subjects to Us and our Royal Predecessors by hazarding and many of them actually losing their Lives and Fortunes in their Defence though of another Religion and the Maintenance of their Authority against the Violences and Treasons of the most violent Abettors of these Laws Do therefore with Advice and Consent of Our Privy Council by Our Soveraign Authority Prerogative Royal and Absolute Power aforesaid Suspend Stop and disable all Laws or Acts of Parliament Customs or Constitutions made or executed against any of our Roman Catholick Subjects in any time past to all intents and purposes making void all Prohibitions therein mentioned pains or penalties therein ordain'd to be Inflicted so that they shall in all things be as free in all Respects whatsoever not only to Exercise their Religion but to enjoy all Offices Benefices and others which We shall think fit to bestow upon them in all time coming Nevertheless it is our Will and Pleasure and we do hereby command all Catholicks at their highest Pains only to Exercise their Religious Worship in Houses or Chappels and that they presume not to Preach in the open Fields or to invade the Protestant Churches by force under the pains aforesaid to be inflicted upon the Offenders respectively nor shall they presume to make Publick Processions in the High-Streets of any of Our Royal Burghs under the Pains above mentioned And whereas the Obedience and Service of our good Subjects is due to Us by their Allegiance and Our Soveraignty and that no Law Custom or Constitution Difference in Religion or other Impediment whatsoever can exempt or discharge the Subjects from their Native Obligations and Duty to the Crown or hinder us from Protecting and Employing them according to their several Capacities and Our Royal Pleasure nor Restrain Us from Conferring Heretable Rights and Priviledges upon them or vacate or annul these Rights Heretable when they are made or conferred And likewise considering that some Oaths are capable of being wrested by men of sinistrous Intentions a practice in that Kingdom fatal to Religion as it was to Loyalty Do therefore with Advice and Consent aforesaid Cass Annul and Discharge all Oaths whatsoever by which any of Our Subjects are incapacitated or disabled from holding Places or Offices in our said Kingdom or enjoy their Hereditary Right and Priviledges discharging the same to be taken or given in any time coming without Our special Warrant and Consent under the pains due to the Contempt of Our Royal Commands and Authority And to this effect We do by Our Royal Authority aforesaid Stop Disable and Dispense with all Laws enjoyning the said Oaths Tests or any of them particularly the first Act of the first Session of the first Parliament of King Charles the Second the Eleventh Act of the foresaid Session of the foresaid Parliament the sixth Act of the third Parliament of the said King Charles the twenty first and twenty fifth Acts of that Parliament and the thirteenth Act of the first Session of * Our late Parliament in so far allanerly as concerns the taking the Oaths or Tests therein prescrib'd and all others as well not mentioned as mentioned and that in place of them all our good Subjects or such of them as We or our Privy Council shall require so to do shall take and swear the following Oath allanerly I A. B. do acknowledge testifie and declare that JAMES the Seventh by the Grace of God King of Scotland England France and Ireland Defender of the Faith c. is rightful King and Supream Governour of these Realms and over all persons therein and that it is unlawful for Subjects on any pretence or for any cause whatsoever to rise in Arms against Him or any Commissionated by Him and that I shall never so rise in Arms nor assist any who shall so do and that I shall never resist His Power or Authority nor ever oppose His Authority to His Person as I shall answer to God but shall to the utmost of my power Assist Defend and Maintain Him His Heirs and Lawful Successors in the Exercise of their Absolute Power and Authority against all Deadly So help me God And seeing many of Our good Subjects have before Our pleasure in these Matters was made publick incurred the Guilt appointed by the Acts of Parliament above-mentioned or others We by Our Authority and Absolute Power and Prerogative Royal above-mentioned of Our certain Knowledge and innate Mercy give Our ample and full Indemnity to all those of the Roman Catholick or Popish Religion for all things by them done contrary to Our Laws or Acts of Parliament made in any time past relating to their Religion the Worship and Exercise thereof or for being Papists Jesuits or Traffickers for hearing or saying of Mass concealing of Priests or Jesuits breeding their Children Catholicks at home or abroad or any other thing Rite or Doctrine said performed or maintained by them or any of them And likewise for holding or taking of Places Employments or Offices contrary to any Law or Constitution Advices given to Us or our Council Actions done or generally any thing perform'd or said against the known Laws of that Our Ancient Kingdom Excepting always from this Our Royal Indemnity all Murthers Assassinations Thefts and such like other Crimes which never used to be comprehended in Our General Acts of Indemnity And We command and require all Our Judges or others concerned to explain this in the most ample Sense and Meaning Acts of Indemnity at any time have contained Declaring this shall be as good to every one concerned as if they had Our Royal Pardon and Remission under Our Great Seal of that Kingdom And likewise indemnifying Our Protestant Subjects from all pains and penalties due for hearing or preaching in Houses providing there be no Treasonable Speeches uttered in the said Conventicles by them in which case the Law is only to take place against the Guilty and none other present providing also that they Reveal to any of Our Council the Guilt so committed As also excepting all Fines or Effects of Sentences already given And likewise Indemnifying fully and freely all Quakers for their Meetings and Worship in all time past preceeding the publication of these presents And we doubt not but Our Protestant Subjects will give their Assistance and Concourse hereunto on all Occasions in their Respective Capacities In consideration whereof and the ease those of Our Religion and others may have hereby and for the Encouragement of Our Protestant Bishops and the Regular Clergy and such as have hitherto lived orderly We think fit to declare that it never was Our Principle nor will We ever suffer Violence to be offered to any Man's Conscience nor will We use Force or Invincible Necessity against any Man on the account of his Perswasion nor the Protestant Religion but will protect Our Bishops and other Minsters in their Functions Rights and Properties and all Our Protestant Subjects in the free Exercise of their
Government is ours their Servants were Slaves and their Kings and Emperours Wills were their Laws their People had no Magna Charta's to show nor Fundamental Compacts and so could plead no injustice in any command the frame of the Government Warranted all those commands that had the Royal pleasure Their Political Power was more extensive than their Moral Power The People were wholly at the Mercy of the Prince All their Laws were Acts of Grace not fundamental Reserves and inherent Rights and therefore in Spirituals they had no Cause to resist and in Temporals they might not as was observed above If they had been under limited Governments as we are we might have heard of Blows as well as Words St. Paul was never so virulent with his Tongue as when he was smitten contrary to Law Obj. 3. But the Person of the King is sacred and must not he touched Answ I say so too but it is his just Power that makes him so And therefore in dangerous times he is to be counselled and perswaded to secure himself by keeping within the Sanctuary of the Laws and holding them forth for the Publick Good by gaining the Affections of the People and being content with that measure of Power that is proper to the Government For if he doth not Right may and ought to be defended and resistance for the Publick good of Illegal Commissioned Forces is not resisting the King's Person but his Forces nor his Power but his Force without Power If none would execute the King's contradictory Commands none would resist and if he will against all Justice Prudence and Perswasions joyn with wicked Men and wilfully expose himself to the mercy of blind Bullets charge is to be given to all that none kill him wittingly or wilfully the hand that lifted him up may not pull him down God forbid that any should think of killing him de industrâ or despair of his repentance before God does nothing past can prejudice a Penitent before God and I hope not before Men thus the King's person and power will be safe in the midst of a Civil War not so safe as in peaceable times but as safe as can consist with the Subjects Right when their Religion and Laws Liberty and Property are Violently invaded And therefore if any thing befall his person by their hands it is but a chance and accidental thing which may happen also in peaceable times This shows that Resisting the King 's illegal commission'd Forces in defence of their own just Rights is not resisting the Ordinance of God and consequently no Sin and then the Conscience is not tyed otherwise than the Laws of the Land and the particular Frame of the government tyes it Obj. 4. But to resist the King or his Commissioners is against the Frame of the Government it being a Monarchy and against the Laws and Statutes of the Realm Answ If it be so it is a great Sin but as it is certain this is a Monarchy so it is certain that it is limited in the Foundation otherwise the King would have all the Legislative Power and the Parliment no Authority or Right but derived from him and then he must be Arbitrary and we Slaves and all our Laws must be acts of Grace not Fundamental Rights Not from any inherent power reserved at the Institution to our selves and never submitted to the Princes but from the gracious condescention of an Absolute Monarch which is contrary to the Story of all times which shows that the people ever claimed Liberty and Property according to their Ancient Laws and Customs not as a Gift but as a Right inherent in themselves and never Transferred Aliened or Conveyed to any King but Declared Recognized and Confirmed to them by many I shall therefore suppose what I think none can upon sufficient grounds deny that the King is bound by all the sacred Tyes of God and Man to govern by the Laws and not otherwise neither by a Foreign Law nor by one of his own framing nor by any Word or Will contrary to Law seeing nothing can have the force of Law here but what has the joynt Consent of King and Parliament and that in a Parliamentary way and this shows us in the Terms of Submission that are sworn to on both sides The King and the people by a joynt consent makes Laws and make them the common Rule betwixt them the King swears to observe the Laws and the people swear to obey the King and to leave the Execution of the Laws to the King to be managed for the publick good Therefore as long as he governs by Law he and all his Ministers are safe enough from Resistance the Resister being lyable to be punished both by God and Man and the sole administration being left to the King Subjects all but himself to Criminal process and even himself to Civil but his person and power are safe in both he may be severe in the Execution of the Laws many times but not unjust As if he will not suspend a Burthensom Law or Revive an Antiquated one when the publick good requires it This may render him uncharitable or imprudent but he is safe yet For though he be bound to proceed according to Law yet he is not tyed to proceed always according to the best Methods when there are diverse But if he stop the Courts of Justice erect new ones or proceed contrary to Law he Acts without Authority and against his own Authority and puts on a kind of a Vizard that his Subjects can neither know him nor their Duty for it is the Laws that direct them to the person of the King and their own Duty without which they could know neither And if the End be not the publick good it is downright Injustice as well as politically powerless Necessity indeed may justifie a Political unlawful Act for the Publick good As in case of an Invasion to burn a garrison rather than it should be a refuge for the Enemy or to open Sluces and to drown a part of the Country for though these things have not the form of the Law they have the reason and that is Publick good And therefore it is not Law but Necessity not the King's Command but Publick good that warrants these Acts. And when Peace returns the Injured are to have satisfaction made by the Publick not as of Charity but as of Justice which shows that the Law looks upon it as a Trespass justified only by Necessity and the Publick good And the particular Persons here have reason to be quiet and make no resistance because they shall reap double benefit by it one in the Publick good and another from the Publick Treasure But it does not follow that if the King in an angry mood should command his guards to fire Newmarket because he had lost an Horse-race there or had a mind to have a Bonefire because he had won one that the Inhabitants might not resist them Obj. 5. By what Law
ensuing shall presume so maliciously to call or alledge or object against any other Person or Persons any Name or Names or other words of Reproach any way leading to revive the Memory of the late Differences or the occasion thereof That then every such Person so as aforesaid offending shall forfeit c. It is no matter for the Penalty it is too cheap a one the King wishes it had been greater and therefore hath by His just Prerogative and 't is well for us He hath such a Prerogative added another Penalty more insupportable even His high Displeasure against all who shall swerve from this Clause in the Act. Give me leave to tell you that as many Name or Names or other words of Reproach are expresly against the Letter and punishable accordingly so evil and envious looks murmuring and discontented hearts are as directly against the Equity of this Statute a direct breach of the Act of Indempnity and ought to be be punished too And I believe they may be so You know Kings are in some sense called Gods and so they may in some degree be able to look into mens hearts and God hath given us a King who can look as far into mens hearts as any Prince alive and he hath great skill in Physiognomy too you would wonder what Calculations He hath made from thence and no doubt if He be provoked by evil looks to make a further Enquiry into mens hearts and finds those corrupted with the Passions of Envy and Uncharitableness He will never choose those hearts to trust and rely upon He hath given us a Noble and Princely Example by opening and stretching His Arms to all who are worthy to be His Subjects worthy to be thought Englishmen by extending His heart with a pious and grateful joy to find all His Subjects at once in His Arms and Himself in theirs and shall we fold our arms towards one another and contract our hearts with Envy and Malice to each other by any sharp memory of what hath been unneighbourly or unkindly done heretofore What is this but to rebell against the Person of the King against the excellent Example and Vertue of the King against the known Law of the Land this blessed Act of Oblivion My Lords and Gentlemen The King is a Suitor to you makes it His Suit very heartily That you will joyn with Him in restoring the whole Nation to its primitive Temper and Integrity to its old good Manners its old good Humour and its old good Nature Good Nature a Vertue so peculiar to you so appropriated by God Almighty to this Nation that it can be translated into no other Language hardly practised by any other People and that you will by your Example by the Candor of your Conversation by your Precepts and by your Practise and by all your Interest teach your Neighbours and your Friends how to pay a full Obedience to this Clause of the Statute how to learn this excellent Art of Forgetfulness Let them remember and let us remember how ungracious how undecent how ugly the Insolence the Fierceness the Bruitishness of their Enemies appeared to them and we may piously and reasonably believe that Gods Indignation against them for their want of Bowels for their not being Englishmen for they had the hearts of Pagans and Infidels sent a Whirlwind in a moment to blow them out of the World that is out of a capacity to do more mischief in the World except we practise their Vices and do that our selves which we pretend to detest them for Let us not be too much ashamed as if what hath been done amiss proceeded from the humour and the temper and the nature of our Nation The Astrologers have made us a fair excuse and truly I hope a true one all the motions of these last twenty Years have been unnatural and have proceeded from the evil Influence of a malignant Star and let us not too much despise the Influence of the Stars And the same Astrologers assure us that the Malignity of that Star is expired the good Genius of this Kingdom is become Superiour and hath mastered that Malignity and our own good old Stars govern us again and their Influence is so strong that with our help they will repair in a Year what hath been decaying in twenty and they only shall have no excuse from the Star who continue their Malignity and own all the ill that is past to be their own by continuing and improving it for the time to come If any body here or any where else be too much exalted with what he hath done or what he hath suffered and from thence thinks himself waranted to reproach others let him remember the story of Nicephorus it is an excellent story and very applicable to such Distempers He was a pious and a religious man and for his Piety and Religion was condemned to the fire when he was led to Execution and when an old Friend who had done him injury enough fell at his feet and asked him Pardon the poor Man was so elevated with the Triumph he was going unto with the Glory of Martyrdom that he refused to be reconciled unto him upon which he was disapointed of his end and for this Uncharitableness the Spirit of God immediately forsook him and he apostatized from the Faith Let all those who are too proud of having been as they think less faulty then other Men and so are unwilling to be reconciled to those who have offended them take heed of the Apostacy of Nicephorus and that those fumes of Envy and Uncharitableness and Murmuring do not so far transport and intoxicate them that they fall into those very Crimes they value themselves for having hitherto declined But My Lords and Gentlemen whilest we conspire together to execute faithfully this part of the Bill to put all old Names and Terms of Distinction into utter Oblivion let us not find new Names and Terms to keep up the same or a worse Disstinction If the old Reproaches of Cavalier and Round-head and Malignant be committed to the Grave let us not find more significant and better words to signifie worse things let not Piety and Godliness grow into terms of Reproach and disstinguish between the Court and the City and the Countrey and let not Piety and Godliness be measured by a morosity in Manners an affectation of Gesture a new mode and tone of Speaking at least let not our Constitutions and Complexions make us be thought of a contrary Party and because we have not an affected austerity in our looks that we have not Piety in our hearts Very merry Men have been very godly Men and if a good Conscience be a continual Feast there is no reason but Men may be merry at it You Mr. Speaker have this Day made a noble Present to the King Do you think if you and your worthy Companions had brought it up with folded Arms down-cast Looks with Sighs and other Instances of Desperation it
inferiour Condition being but an Off-spring of this Root be interpreted or brought in Plea against this primary and radical Constitution without Guilt of the highest Treason and destructive Enmity to the Publick-weal and Polity because by the very Constitution of this Kingdom all Laws or interpretation of Laws tending to Confusion or Dissolution are ipso facto void In this case we may allude and say That the Covenant which was 400 Years before the Law an after-after-Act cannot disanul it Ob. It may be objected That this Discourse seems to make our Government to be founded in Equity not in Law or upon that common rule of Salus Populi which is alike common to all Nations as well as any And so what Difference Ans The Fundamental Laws of England are nothing but the Common Laws of Equity and Nature reduced into a particular way of Policy which Policy is the ground of our Title to them and interest in them For though it is true that Nature hath invested all Nations in an equal right to the Laws of Nature and Equity by a common Bounty without respect of Persons yet the several Models of external Government and Policy renders them more or less capable of this their common Right For though they have an equal Right in Nature to all the Laws of Nature and Equity yet having fundamentally subjected themselves by their Politick Constitutions unto a Regal Servitude by Barbarism or the like they have thereby much disabled and disvested themselves of that common Benefit But on the contrary where the outward Constitution or Polity of a Republick is purposely framed for the consirming and better conserving this common Right of Nature and Equity as in ours there is not only a common Right but also a particular and lawful Power joyned with this Right for its Maintenance and Supportation For whereas other People are without all supreme Power either of making Laws or raising Monies both these Bodies of Supremacy being in the arbitrary hands only of the Sovereign Magistrate amongst many Nations these with us are in the hands of the supreme Government not Governour or Court of Judicature to wit the King and Parliament here the People like Free-men give Money to the King he doth not take it and offers Laws to be enacted doth not receive them so Now in such a constituted Kingdom where the very Constitution its self is the fundamental Law of its own Preservation as is this mixt Regiment of ours consisting of King and Parliament as Head and Body comprehending Monarchy Aristocracy and Democracy there the fundamental Laws are like fundamental Truths in these two Properties First they are comprehended in a very little room to wit Honour and Safety and Secondly they have their influence into all other inferiour Laws which are to be subjected to them and correspondent with them as lawful Children and natural Branches Ob. But in Process of time there are many written Laws which seem at least to contradict this fundamental Constitution and are not they binding notwithstanding it Ans The Constitution of this Kingdom which gave its being and which is the radical and fundamental Law thereof ought therefore to command in chief for that it never yields up its Authority to those inferiour Laws which have their being from it nor ought they which spring from it tend to the Destruction of it but on the contrary it is to derive its radical Virtue and Influence into all succeeding Laws and they like Branches are to make the root flourish from whence they spring with exhibiting the lively and fructifying Virtue thereof according to the Nature and Seasons of succeeding times things incident in after-ages not being able to be foreseen and particularly provided for at the beginning saving in the fundamental Law of Salus Populi politickly established nor can any Laws growing out of that root bear any other Fruit then such as the nature thereof dictates for for a particular branch to ruine the whole Foundation by a seeming sense contrary to it or differing from it is very absurd for then how can it be said Thou bearest not the root but the root thee Laws must always relish of and drink in the Constitution or Polity where they are made and therefore with us the Laws wherein the King is nominated and so seems to put an absolute Authority into his hands must never so be construed for that were with a breath to blow down all the Building at once but the King is there comprehended and meant under a two-sold Notion First as trusted being the Head with that Power the Law confer'd upon him for a Legal and not an Absolute Purpose tending to an honourable Preservation not an unnatural Dissolution Secondly as meaning him juridically not abstractly or personally for so only the Law takes notice of the King as a juridical Person for till the Legislative Power be absolutely in the King so that Laws come down from him to his People and go not up from them to him they must never be so interpreted for as they have a juridical being and beginning to wit in Parliament so must they have a suitable Execution and Administration to wit by the Courts and legal Ministers under the Kings Authority which according to the Constitution of this Kingdom he can no more suspend for the good of his People than the Courts can theirs or if he do to the publick hazard then have the Courts this Advantage that for publick Preservation they may and must provide upon that Principle The King can do no Wrong neither in witholding Justice nor Protection from his People So that then Salus Populi being so principally respected and provided for according to the nature of our Constitution and Polity and so being Lex legum or the Rule of all Laws branching thence then if any Law do by Variation of Times Violence of Tyranny or Misprision of Interpreters vary there-from it is a Bastard and not a Son and is by the lawful Parents either to be reduced or cast out as gendring unto Bondage and ruine of the Inheritance by attempting to erect an absolute and arbitrary Government Nor can this equitable Exposition of particular Statutes taken from the Scope of the politick Constitution be denyed without overthrow of just and legal Monarchy which ever tends to publick Good and Preservation and the setting up of an unjust and illegal Tyranny ruling if not without Law yet by abused Laws turning them as conquered Ordnance upon the People The very Scripture it self must borrow from its Scope and Principles for Explanation of particular Places else it will be abused and as it is through that Default unto Heresies See we not how falsly Satan quoted true Scripture to Christ when he tempted him only by urging the Letter without the Equity or true Intention and Meaning We are to know and do things Verum vere justum juste else we neither judge with righteous Judgment nor obey with just Obedience Ob. But is not the
Parliament guilty of exercising an arbitrary Power if their Proceedings be not regulated by written Laws but by Salus Populi Ans For the Parliament to be bound up by written Laws is both destructive and absurd First it is destructive it being the Fundamental Court and Law or the very Salus Populi of England and ordained as to make Laws and see them executed so to supply their Deficiency according to the present Exigency of things for publick Preservation by the Prerogative of Salus Populi which is universally in them and but particularly in particular Laws and Statutes which cannot provide against all future Exigents which the Law of Parliaments doth and therefore are not they to be limits to this And it would yet be further destructive by cutting the Parliament short of half its Power at once for it being a Court both of Law and Equity as appears by the Power of making Laws which is nothing but Equity reduced by common Consent into Polity when ever it is circumscribed by written Laws which only is the Property of inferiour Courts it ceaseth to be supreme and divests it self of that inherent and uncircumscribed Power which Salus Populi comprehends Secondly as it is destructive so also it is absurd for the Legislative Power which gives Laws is not to receive Laws saving from the nature and end of its own Constitution which as they give it a being so they endow it with Laws of Preservation both of it self and the whole which it represents I would not herein be mis-understood as if the Parliament when as it only doth the Office of inferiour Courts judging between Party and Party were not limitted by written Laws there I grant it is because therein it only deals between meum and tuum which particular written Laws can and ought to determine so that its superlative and uncircumscribed Power I intend only as relating to the Universe and the Affairs thereof wherein it is to walk by its fundamental Principles not by particular Precepts or Statutes which are made by the Parliament between King and People not between People and Parliament they are ordained to be Rules of Government to the King agreeing with the Liberty and Property of the People and Rules of Obedience to the People without detainment of their Freedom by the Exercise of an illegal usurped and unconsented Power whereunto Kings especially in hereditary Monarchies are very prone which cannot be suspected by a Parliament which is representatively the Publick intrusted for it and which is like to partake and share with the Publick being but so many private Men put into Authority pro tempore by common Consent for common Good Nor is the Parliament hereby guilty of an arbitrary Government or is it destructive to the Petition of Right when as in providing for Publick-weal it observes not the letter of the Law First because as aforesaid that Law was not made between Parliament and People but by the People in Parliament between the King and them as appears by the whole tenour of it both in the complaining and praying parts which wholly relate to the King Secondly because of the common Consent that in the representative Body the Parliament is given thereunto wherein England in her Polity imitates Nature in her Instincts who is wont to violate particular Principles for publick Preservation as when light things descend and heavy ascend to prevent a Vacuum And Thirdly because of the equitable Power which is inherent in a Parliament and for publick Good is to be acted above and against any particular Statute or all of them And Fourthly because the end of making that Law to wit the publick Preservation is fulfilled in the breaking of it which is lawful in a Parliament that is chosen by the whole for the whole and are themselves also of the Body though not in a King for therein the Law saith Better a mischief than an inconvenience But it may be objected Though it be not arbitrary for the Parliament to go against written Law yet is it not so when they go against the Kings Consent which the Law even the fundamental Law supposeth in Parliamentary Proceedings This hath been answered That the King is juridically and according to the intention of the Law in his Courts so that what the Parliament consults for the publick Good That by Oath and the Duty of his Office and Nature of this Polity he is to consent unto and in case he do deny it yet in the Construction of the fundamental Law and Constitutions of this Kingdom he is conceived to grant it supposing the Head not be so unnatural to the Body that hath chosen it for good and not for evil But it will be answered Where is the Kings Negative Voice if the Parliament may proceed without his Consent I answer That there is no known nor written Law that gives him any and things of that nature are willingly believed till they be abused or with too much Violence claimed That his Majesty hath fundamentally a Right of Consent to the Enacting of Laws is true which as aforesaid is part of that honourable Trust constituted in him And that this Royal Assent is an Act of Honour and not of Absolute and Negative Power or Prerogative appears by these following Reasons First by his Oath at the Coronation mentioned in one of the Parliaments Declarations where he doth or should swear to confirm and grant all such good Laws as his People shall choose to be observed not hath chosen for First The word concedis in that Oath were then unnecessary the Laws formerly Enacted being already granted by foregoing Kings and so they need no more Concession or Confirmation else we must run upon this Shelf that all our Laws die with the old King and receive their being anew by the new Kings Consent Secondly hereby the first and second Clause in that Interrogatory viz. Concedis justas leges permittas protegendas are confounded and do but idem repetere Thirdly Quas Vulgus elegerit implies only the Act of the People in a disjunctive sense from the Act or Consent of the King but Laws already made have more than Quas Vulgus elegerit they have also the Royal Consent too so that that Phrase cannot mean them wherein the Act or Consent of the King is already involved Secondly by the Practise of requiring the Royal Assent even unto those very Acts of Subsidies which are granted to himself and for his own use which it is supposed he will accept of and yet Honoris gratia is his Royal Assent craved and contributed thereunto Thirdly by the Kings not sitting in Parliament to debate and consult Laws noâ— are they at all offered him by the Parliament to consider of but to consent to which yet are transmitted from one House to another as well to consult as consent to shewing thereby he hath no part in the consultory part of them for that it belongs only to the People in Parliament to discern and
houses in Holborn at the same time That he was at the Fire in the Temple but was not engaged to do any thing in it And said that Gyfford told him that there were English French and Irish Roman Catholicks enough in London to make a very good Army and that the King of France was coming with 60000 Men under pretence to shew the Dauphin his Dominions but it was to lay his Men at Deep Bulloign Callis and Dunkirk to be in an hours Warning to be Landed in England and he doubted not but it would be by the middle of June and by that time all the Catholicks here will be in readiness all were to rise in order to bring him in That the Papists here were to be distinguished by Marks in their Hatts that the said Father Gyfford doubted not but he should be an Abbot or a Bishop when the work was over for the good service he hath done That at their Meeting Father Gyfford used to tell them it was no more sin to kill a Heretick then a Dog and that they did God good Service in doing what Mischiefs they could by firing their houses That it was well Sir Edmondbury Godfrey was Murdered for he was their Devilish Enemy That Coleman was a Saint in Heaven for what he had done And saith he is fearful he shall be Murthered for this Confession Father Gyfford having sworn him to Secresie and told him he should be Damned if he made any Discovery and should be sure to be killed and that he should take the Oaths because he was a House-keeper and that it was no sin And saith That Gyfford and Roger _____ told him when their Forces meet about the middle of June then have at the VOTES and ADDRESSES Of the Honourable House of Commons ASSEMBLED IN PARLIAMENT Made this present Year 1673 Concerning Popery and other Grievances March 29. 1673. The Parliaments Address to his Majesty for the Removal of Grievances in England and Ireland WE your Majesties most Loyal Subjects the Commons in this present Parliament assembled conceiving our selves bound in necessary Duty to your Majesty and in Discharge of the Trust reposed in us truly to inform your Majesty of the Estate of your Kingdom And though we are abundantly satisfied that it hath been your Royal Will and Pleasure that your Subjects should be governed according to the Laws and Customs of this Realm yet finding that contrary to your Majesties gracious Intention some Grievances and Abuses are crept in We crave Leave humbly to represent them to your Majesties Knowledge and Desire 1. That the Imposition of 12 d. per Chaldron upon Coals for the providing of Convoys by Vertue of an Order from Council dated the 15th of May 1672 may be recalled and all Bonds taken by Virtue thereof cancelled 2. That your Majesties Proclamation of the 24th of December 1672 for preventing of Disorders which may be committed by Soldiers and whereby the Soldiers now in your Majesties Service are in a manner exempted from the ordinary Course of Justice may likewise be recalled 3. And whereas great Complaints have been made out of several parts of this Kingdom of divers Abuses committed in Quartering of Soldiers That your Majesty would be pleased to give Order to redress those Abuses and in particular that no Soldiers be hereafter Quartered in any private Houses and that due Satisfaction may be given to the Inn-keepers or Victuallers where they lye before they remove 4. And since the continuance of Soldiers in this Nation will necessarily produce many Inconveniences to your Majesties Subjects We do humbly present it as our Petition and Advice That when this present War is ended all your Souldiers which have been raised since the last Session of Parliament may be Disbanded 5. That your Majesty would be likewise pleased to consider of the Irregularities and Abuses in pressing Soldiers and to give Order for the Prevention thereof for the future 6. And although it hath been the Course of former Parliaments to desire Redress in their Grievances before they proceeded to give a Supply yet we have so full Assurance of your Majesties Tenderness and Compassion towards your People that we humbly prostrate our selves at your Majesties feet with these our Petitions desiring your Majesty to take them into your Princely Consideration and to give such Orders for the Relief of your Subjects and the Removing these Pressures as shall seem lest to your Roâ—al Wisdâ—m Address touching Ireland WE your Majesties most Loyal Subjects the Commons in this present Parliament assembled taking into Consideration the great Calamities which have formerly befallen your Majesties Subjects of the Kingdom of Ireland from the Popish Recusants there who for the most part are profest Enemies to the Protestant Religion and the English Interest and how they make use of your Majesties gracious Disposition and Clemency are at this time grown more insolent and presumptuous than formerly to the apparent Danger of that Kingdom and your Majesties Protestant Subjects there the Consequence whereof may likewise prove very fatal to this your Majesties Kingdom of England if not timely prevented And having seriously weighed what Remedies may be most properly applied to those growing Distempers do in all Humility present your Majesty with these our Petitions 1. That for the Establishment and Quieting the Possessions of your Majesties Subjects in that Kingdom your Majesty would be pleased to maintain the Act of Settlement and Explanatory Act thereupon and to recall the Commission of Enquiry into Irish Affairs bearing Date the 17th of January last as containing many new and extraordinary Powers not only to the Frejudice of particular Persons whose Estates and Titles are thereby made liable to be questioned but in a manner to the Overthrow of the Acts of Settlement And if pursâ—â—d may be the Occasion of great Charge and Attendance to many of your Subjects in Ireland and shake the Peace and Security of the whole 2. That your Majesty would give Order that no Papist be either continued or hereafter admitted to be Judges Justices of the Peace Sheriffs Coroners or Mayors Sovereigns or Portrieves in that Kingdom 3. That the Titular Popish Archbishops Bishops Vicars-General Ablâ—â—s and all other exercising Ecclesiastical Jurisdiction by the Popes Authority and in particular Peter Talbot pretended Archbishop of Dublin for his notorious Disloyalty to your Majesty and Disobedience and Contempt of your Laws may be commanded by Proclamation forthwith to depart out of Ireland and all other your Majesties Dominions or otherwise to be prosecuted according to Law And that all Convents Seminaties and Publick Popish Scholes may be dissolved and suppressed and the Secular Priests commanded to depart under the Penalty 4 That no Irish Papist be admitted to inhabit in any part of that Kingdom unless duly licensed according to the aforesaid Acts of Settlemenâ— and that your Majesty would be pleased to recall your Letters of the 26th of February 1671. And the Proclamation thereupon whereby general Licence is
any one time with above the Number of ten Persons upon the Pain of incurring a Penalty not exceeding the Sum of 100 l. in Money and Three Months Imprisonment without Bail or Mainprize for every Offence which Offence to be prosecuted at the Court of Kings-bench or at the Assizes or general Quarter-Sessions within six Months after the Offence committed and proved by two or more credible Witnesses Here you observe the Parliament who set themselves directly to obviate all the Inconveniences which might arise to the Government from tumultuous petitioning will not allow that great Numbers should joyn in Petitions for alteration of the Laws because it is possible ill Men should abuse such Liberty unless the matter of the Petition be conâ—â—â—ted to in such a manner as the Act directs but in all other Cases they leave the Subjects to their undoubted Liberty as well knowing that from thence there could arise no possible Inconvenience but on the contrary that to bar the People of that humble way of making their Wants known might force them upon worse ways of doing it And therefore I must tell you that you do my Lord Chancellor great Injustice if you think his Speech tends to deter Men from all manner of petitioning No that wise and eloquent Lord who receives every day so many Petitions will I suppose be content the King should receive some too It never yet was thought * It is the Right of all People that apprehend themselves aggrieved to approach his Majesty by Petition Mr. Finch's Argument in the Trial of the Seven Bishops f. 105. The Subjects have a Right to Petition the King in all their Grievances so say all our Books of Law and so says the Statute 13 Car. 2. Sergeant Levinz in the same Trial fol. 121. It was one Article against the Earl of Strafford That he Issued out a Proclamation and Warrant of Restraint to inhibit the Kings Subjects to come to the Fountain their Sovereign to deliver their Complaints of their Wrongs and Oppressions Rushw in his Trial 721. seditious or tumultuous in any Government for the Subjects in an humble manner to beg That he who has the only Power to do it would redress their Grievances 'T is the way by which we apply our selves to the King of Heaven who knows all our Wants and yet expects from us that we should daily express them to him in humble Petitions And the Wisdom of the Church which has appointed Liturgies and Forms of Common-Prayer seems to instruct us that God is pleased when huge Numbers joyn in the same Petition Why should not then suppliant Subjects with like Humility and in like manner address themselves to the God on Earth Especially since Kings cannot know our Desires or our Grievances till we our selves inform them what they are I remember some wicked Councellors of Darius did once obtain a Law to be made that none should Petition any one but the King for thirty Days but there never yet was found so absurd a States-man as to advise a Law that Subjects should not supplicate their Prince 'T is probable it would be well for some Favourites who are near a King if such a Right could be taken from the People for then all their false Suggestions and Informations might pass undiscovered but 't is impossible that a King should long be safe in such a Condition I will suppose a malicious States-man intending to raise a Jealousie in the Mind of the Sovereign should inform him in dangerous times that he was not beloved by his People and that he was not to trust them How could the Subjects in such a Case recover the Prince's good Opinion in the Absence of a Legal Representative but by humble and affectionate Addresses Or suppose some good Protestant Prince should be so unfortunate as to have some Councellors near him who are conceal'd and others whose Crimes make them fear Parliaments it is easie to suppose that the one sort will be filling his Ears with Stories that a great part of his Kingdom are inclined to Popery and the other sort that the best of his Subjects are quite out of Love with Parliaments as factious and seditious Assemblies Into what unfortunate Circumstances would such a Prince be apt to fall if his People were percluded from Addressing themselves and opening their Desires to him I might go on to trouble you with infinite Instances of this Nature but there is no want of any in so plain a case 'T is the Doctrine of our Church that the only Arms of Subjects are Prayers Petitions Supplications and Tears and they are no Friends either to the King or Church Hâ—b 220. Wrenhams Case Vet. Magn. Chart. Exil Hugi. De Spencer 51. who would disarm us of these My Lord Chief Justice Hobbart tell us That it is lawful for any Subject to petition to the King for Redress in an humble and modest manner for says he Access to the Sovereign must not be shut up in case of the Subjects Distresses It was one of the Crimes for which the Spencers were banished by Parliament that they hindred the King from receiving and answering Petitions from great Men and others And as it is our unquestionable Right Be the Right of the Subject never so clear manifest and acknowledged by all yet if his own be detained from him by the King he hath no other Writ or Account to recover but a mere Petition Supplicare Celsitudini c. A Learned Judge's Argument about Impositions Printed 1641. p. 26. so in all Ages the Usage has been by Petition to inform our King of our Grievances In the Reign of King Ed. 2. and Ed. 3. Petitions were frequent for Redress of publick Grievances and for Parliaments especially out of Ireland though that is a conquer'd Nation as may be seen in the close Rolls of the Reigns of those two Kings One Instance I will give you for your Satisfaction but I will tire you with no more for that would be endless 'T is Claus 10. Ed. 2. M. 28. Claus 10. E. 2. M. 28. intus Pro communitate Hiberniae Intus pro Communitate Hiberniae Rex Dilect fideliter suis Justa Cancellar Thesaur suis Hib. salutem ex parte populi nostri terrae praedict per Petitionem suam coram nobis Concilio nostro exhibitum nobis est cum instantia supplicare quod cum c. In the 5th year of King Richard the II. the whole Body of the Realm petition'd Cookes Jurisdiction of Courts p. 79. Burarts History of the Reformation Pag. 231. Procl Dat. 7. Feb. 11. Jac. that the most wise and able men within the Realm might be chosen Chancellors King Henry the 8. told his Subjects then in Arms against him in York-shire that they ought not to have rebell'd but to have applied themselves to him by Petition King James by a Proclamation publisht in the 12th year of his Reign begins thus The Complaints lately exhibited to us
certain that in all Absolute Governments the poorest Countreys are always most favourably dealt with When the Ancient Nobility and Gentry there cannot enjoy their Royalties their Shrevaldoms and their Stewardaries which they and their Ancestors have possessed for several hundreds of years but that now they are enjoyned by the Lords of the Council to make Deputations of their Authorities to such as are their known Enemies Can we expect to enjoy our Magna Charta long under the same Persons and Administration of Affairs If the Council-Table there can Imprison any Nobleman or Gentleman for several years without bringing him to Trial or giving the least Reason for what they do can we expect the same Men will preserve the Liberty of the Subject here I will acknowledge I am not well vers'd in the particular Laws of Scotland but this I do know that all the Nothern Countries have by their Laws an undoubted and inviolable Right to their Liberties and Properties yet Scotland hath out-done all the Eastern and Southern Countries in having their Lives Liberties and Estates subjected to the Arbitrary Will and Pleasure of those that Govern They have lately plundered and harrassed the richest and wealthiest Countries of that Kingdom and brought down the Barbarous Highlanders to devour them and all this without almost a colourable Pretence to do it Nor can there be found a Reason of State for what they have done but that those wicked Ministers designed to procure a Rebellion at any Rate which as they managed was only prevented by the miraculous Hand of God or otherwise all the Papists in England would have been Armed and the fairest Opportunity given in the just time for the Execution of that Wicked and Bloudy Design the Papists had and it is not possible for any Man that duly considers it to think other but that those Ministers that Acted that were as guilty of the Plot as any of the Lords that are in question for it My Lords I am forced to speak this the plainer because till the Pressure be fully and clearly taken off from Scotland 't is not possible for me or any Thinking Man to believe that Good is meant us here We must still be upon our Guard apprehending that the Principle is not changed at Court and that these Men that are still in Place and Authority have that Influence upon the Mind of our Excellent Prince that he is not nor cannot be that to us that his own Nature and Goodness would incline him to I know your Lordships can order nothing in this but there are those that hear me can put a perfect Cure to it until that be done the Scottish Weed is like Death in the Pot Mors in Olla But there is something too now I consider that most immediately concerns us their Act of Twenty two thousand Men to be ready to invade us upon all Occasions This I hear that the Lords of the Council there have treated as they do all other Laws and expounded it into a standing Army of Six thousand Men. I am sure we have Reason and Right to beseech the King that that Act may be better considered in the next Parliament there I shall say no more for Scotland at this time I am afraid your Lordships will think I have said too much having no concern there But if a French Noble-Man should come to dwell in my House and Family I should think it concern'd me to ask what he did in France for if he were there a Felon a Rogue a Plunderer I should desire him to live elsewhere and I hope your Lordships will do the same thing for the Nation if you find the same cause My Lords give me leave to speak two or three Words concerning our other Sister Ireland thither I hear is sent Douglas's Regiment to secure us against the French Besides I am credibly informed that the Papists have their Arms restored and the Protestants are not many of them yet recovered from being the suspected Party the Sea-Towns as well as the In-land are full of Papists That Kingdom cannot long continue in the English Hands if some better Care be not taken of it This is in your Power and there is nothing there but is under your Laws therefore I beg that this Kingdom at least may be taken in consideration together with the State of England For I am sure there can be no Safety here if these Doors be not shut up and made sure THE INSTRUMENT OR Writing of Association THAT THE True Protestants of ENGLAND entred into IN THE Reign of Q. Elizabeth FOrasmuch as Almighty God hath Ordained Kings Queens and Princes to have Dominion and Rule over all their Subjects and to preserve them in the Possession and Observation of the true Christian Religion according to his holy Word and Commandment And in like sort that all Subjects should Love Fear and Obey their Soveraign Princes being Kings or Queens to the utmost of their Power at all times to withstand pursue and suppress all manner of Persons that shall by any means intend and attempt any thing dangerous or hurtful to the Honour States or Persons of their Soveraigns Therefore we whose Names are or shall be subscribed to this Writing being Natural Born Subjects of this Realm of England and having so gracious a Lady our Soveraign Elizabeth by the Ordinance of God our most rightful Queen Reigning over us these many Years with great Felicity to our inestimable Comfort And finding lately by divers Depositions Confessions and sundry Advertisements out of Foreign Parts from credible Persons well known to her Majesties Council and to divers others That for the furtherance and Advancement of some pretended Title to the Crown it hath been manifested that the Life of our gracious Soveraign Lady Queen Elizabeth hath been most dangerously to the Peril of her Person if Almighty God her perpetual Defender of his Mercy had not revealed and withstood the same By whose Life we and all other her Majesties True and Loyal Subjects do enjoy an inestimable benefit of Peace in this Land do for the Reasons and Causes before alledged not only acknowledge our selves most justly bound with our Lives and Goods for her Defence in her Safety to persecute suppress and withstand all such Intenders and all other her Enemies of what Nation Condition and Degree whatsoever they shall be or by what Council or Title they shall pretend to be her Enemies or to attempt any Harm upon her Person but do further think it our bounden Duties for the great Benefit of Peace Wealth and Godly Government we have more plentifully received these many Years under her Majesties Government then any of our Forefathers have done in any longer time of any other Progenitors Kings of this Realm Do declare and by this Writing make manifest our bounden Duties to our said Sovereign Lady for her Safety And to that end We and every of us First Calling to Witness the Name of Almighty God do Voluntarily and
most willingly bind our selves every one of us to the other joyntly and severally in the Band of one Firm and Loyal Society And do hereby Vow and Promise by the MAJESTY OF ALMIGHTY GOD That with our whole Powers Bodies Lives and Goods and with our Children and Servants We and every of us will faithfully serve and humbly obey our said Sovereign Lady Queen Elizabeth against all States Dignities and Earthly Powers whatsoever and will as well with our joynt and particular Forces during our Lives withstand offend and pursue as well by Force of Arms as by all other means of Revenge all manner of Persons of what State soever they shall be and their Abettors that shall attempt any Act Council or Consent to any thing that shall tend to the Harm of her Majesties Royal Person and will never desist from all manner of Forcible Pursuit against such Persons to the utter Extermination of them their Counsellors Aiders and Abettors And if any such wicked Attempt against her most Royal Person shall be taken in hand or procured whereby any that have may or shall pretend Title to come to this Crown by the untimely Death of her Majesty so wickedly procured which God for his Mercy sake forbid may be avenged We do not only bind our selves both joyntly and severally never to Allow Accept or Favour any such pretended Successor by whom or for whom any such detestable Act shall be Attempted or Committed as unworthy of all Government in any Christian Realm or Civil State But do also further Vow and Protest as we are most bound and that in the Presence of the Eternal and Everlasting God to Prosecute such Person and Persons to Death with our joynt or particular Forces and to ask the utmost Revenge upon them that by any means we or any of us can devise and do or cause to be devised and done for their utter Overthrow and Extirpation And to the better Corroboration of this our Loyal Band and Association We do also testifie by this Writing that we do confirm the Contents hereof by our Oaths corporally taken upon the Holy Evangelist with this express Condition That no one of us shall for any respect of Persons or Causes or for Fear or Reward separate our selves from this Association or fail in the Prosecution thereof during our Lives upon pain of being by the rest of us prosecuted and supprest as perjur'd Persons and as Publick Enemies to God our Queen and to our Native Country To which Punishment and Pains we do voluntarily submit ourselves and every of us without Benefit of any Colour or Pretence In Witness of all which Premises to be inviolably kept we do to this Writing put our Hands and Seals and shall be most ready to accept and admit any other hereafter to this Society and Association The ACT of Parliament of the 27th of Queen Elizabeth in Confirmation of the same FOrasmuch as the good Felicity and Comfort of the whole Estate of this Realm consisteth only next under God in the Surety and Preservation of the Queens most excellent Majesty And for that it hath manifestly appeared that sundry wicked Plots and Means have of late been devised and laid as well in Foreign Parts beyond the Seas as also within this Realm to the great indangering of his Highness most Royal Person and to the utter Ruine of the whole Commonweal if by Gods merciful Providence the same had not been revealed Therefore for preventing of such great Perils as might hereafter otherwise grow by the like detestable and divilish Practices at the humble Suit and earnest Petition and Desire of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled and by the Authority of the same Parliament Be it Enacted and Ordained if at any Time after the end of this present Session of Parliament any open Invasion or Rebellion shall be had or made into or within any of Her Majesties Realms or Dominions or any Act attempted tending to the hurt of her Majesties most Royal Person by or for any Person that shall or may pretend any Title to the Crown of this Realm after her Majesties Decease or if any thing shall be compassed or imagined tending to the hurt of her Majesties Royal Person by any person or with the Privity of any person that shall or may pretend Title to the Crown of this Realm that then by Her Majesties Commission under Her Great Seal the Lords and other of Her Highness Privy Council and such other Lords of Parliament to be Named by her Majesty as with the said Privy Council shall make up the Number of Four and twenty at the least ving with them for their Assistance in that behalf such of the Judges of the Courts of Record at Westminster as Her Highness shall for that purpose assign and appoint or the more part of the same Council Lords and Judges shall by virtue of the Act have Authority to examine all and every the Offences aforesaid and all Circumstances thereof and thereupon to give Sentence or Judgment as upon good proof the matter shall appear unto them And that after such Sentence or Judgment given and Declaration thereof made and published by Her Majesties Proclamation under the Great Seal of England all persons against whom such Sentence or Judgment shall be so given and published shall be excluded and disabled for ever to have or claim or to pretend to have or claim the Crown of this Realm or of any Her Majesties Dominions any former Law or Statute whatsoever to the contrary in any wise notwithstanding And that thereupon All Her Highness Subjects shall and may lawfully by virtue of this Act and Her Majesties Direction in that behalf by forcible and possible means pursue to Death every such wicked person by whom or by whose means assent or privity any such Invasion or Rebellion shall be in Form aforesaid denounced to have been made or such wicked Act attempted or other thing compassed or imagined against Her Majesties Person and all their Aiders Comforters and Abettors And if any such detestible Act shall be Executed against her Highness most Royal Person whereby Her Majesties Life shall be taken away which God of his great mercy forbid that then every such person by or for whom any such Act shall be executed and their Issues being any wise assenting or privy to the same shall by virtue of this Act be excluded and disabled for ever to have or claim or pretend to have or claim the said Crown of this Realm or of any other Her Highness Dominions any former Law or Statute whatsoever to the contrary in any wise notwithstanding And that all the Subjects of this Realm and all other Her Majesties Dominions shall and may lawfully by virtue of this Act by all forcible and possible means pursue to Death every such wicked Person by whom or by whose means any such detestible Fact shall be in Form hereafter expressed denounced to have been
committed and also their Issues being any way assenting or privy to the same and all their Aiders Comforters and Abettors in that behalf And to the end that the intention of this Law may be effectually Executed if Her Majesties Life shall be taken away by any violent or unnatural means which God defend Be it further Enacted by the Authority aforesaid That the Lords and others which shall be of Her Majesties Privy Council at the time of such Her Decease or the more part of the same Council joyning unto them for their better Assistance five other Earls and seven other Lords of Parliament at the least foreseeing that none of the said Earls Lords or Council be known to be persons that may make any Title to the Crown those persons which were Chief Justices of either Bench Master of the Rolls and Chief Baron of the Exchequer at the time of Her Majesties Death or in Default of the said Justices Master of the Rolls and Chief Baron some other of those which were Justices of some of the Courts of Records at Westminster at the time of Her Highness Decease to supply their Places or any Four and twenty or more of them whereof Eight to be Lords of the Parliament not being of the Privy Council shall to the uttermost of their Power and Skill examine the cause and manner of such Her Majesties Death and what persons shall be any way Guilty thereof and all Circumstances concerning the same according to the true meaning of this Act and thereupon shall by open Proclamation publish the same and without any delay by all forcible and possible means prosecute to Death all their Aiders and Abettors And for the doing thertof and for the withstanding and suppressing of all such Power and Force as shall any way be levied or stirred in Disturbance of the due Execution of this Law shall by virtue of this Act have Power and Authority not only to raise and use such Forces as shall in that behalf be needful and convenient but also to use all other means and things possible and necessary for the maintenance of the same Forces and prosecution of the said Offenders And if any such Power and Force shall be levied or stirred in Disturbance of the due Execution of this Law by any person that shall or may pretend any Title to the Crown of this Realm whereby this Law may not in all things be fully Executed according to the effect and true meaning of the same That then every such person shall by virtue of this Act be therefore excluded and disabled for ever to have or claim or to pretend to have or claim the Crown of this Realm or of any other Her Highness Dominions any former Law or Statute whatsoever to the contrary notwithstanding And be it further Enacted by the Authority aforesaid and all and every the Subjects of all Her Majesties Realms and Dominions shall to the uttermost of their Power aid and assist the said Councel and all other the Lords and other Persons to be adjoyned to them for Assistance as is aforesaid in all things to be done and executed according to the effect and intention of this Law And that no Subject of this Realm shall in any wise be impeached in Body Lands or Goods at any time hereafter for any thing to be done or executed according to the Tenour of the Law any Law or Statute heretofore made to the contrary in any wise notwithstanding And whereas of late many of Her Majesties good and faithful Subjects have in the Name of God and with the Testimonies of good Consciences by one Uniform manner of Writing under their Hands land Seals and by their several Oaths voluntarily taken joyned themselves together in one Bond and Association to withstand and revenge to the uttermost all such malicious Actions and Attempts against Her Majesties most Royal Person Now for the full Explaining of all such Ambiguities and Questions as otherwise might happen to grow by reason of any sinister or wrong Construction or Interpretation to be made or inferred of or upon the words or meaning thereof Be it Declared and Enacted by the Authority of this present Parliament That the same Association and every Article and Sentence therein contained as well concerning the Disallowing Excluding or Disabling any Person that may or shall pretend any Title to come to the Crown of this Realm as also for the pursuing and taking Revenge of any person for any such wicked Act or Attempt as is mentioned in the same Association shall and ought to be in all things expounded and adjudged according to the true intent and meaning of this Act and not otherwise nor against any other person or persons A Word without Doors concerning the BILL for SUCCESSION SIR I AM very sensible of the great Honour you were pleas'd to do me in your last which I received immediately after our late unhappy Dissolution but could have wished you would have laid your Commands on some more able Person to have given you Satisfaction in the matter you there propose relating to the Duke who you seem to insinuate was like if the Parliament had continued to have received hard measure I must ingeniously confess to you I was not long since perfectly of your Opinion and thought it the highest Injustice imaginable for any Prince to be debar'd of his Native Right of Succession upon any pretence whatsoever But upon a more mature Deliberation and Enquiry I found my Error proceeded principally from the falso Notions I had took up of Government it self and from my Ignorance of the Practiâ—â—â— of all Communities of Men in all Ages whenever Self-preservation and Necessity of their Affairs obliged them to declare their Opinion in Cases of the like Nature To the knowledge of all which the following Accident I shall relate to you did very much contribute My Occasions obliging me one day to attend the coming of a Friend in a Coffee-house near Charing-Cross there happened to sit at the same Table with me Two Ingenious Gentlemen who according to the Frankness of Conversation now used in the Town began a Discourse on the same Subject you desire to be more particularly informed in and having Extolled the late House of Commons as the best number of Men that had ever sate within those Walls and that no House had ever more vigorously maintained and asserted English Liberty and Protestant Religion than they had done as far as the nature of the things that came before them and the Circumstances of time would admit to all which I very readily and heartily assented they then added That the great Wisdom and Zeal of that House had appeared in nothing more than in Ordering a Bill to be brought in for debarring the Duke of Y. from inheriting the Crown A Law they affirmed to be the most just and reasonable in the World and the only proper Remedy to establish this Nation on a true and solid Interest both Relation to the present
Nature and consequently the Ordinance of God but that the different forms of Government whether to reside in One Few or Many or whether it shall be continued by Succession or by Election together with the different measures and limitations of Power and Authority in Governours of the same kind in several Countries all these things I say are ordained by and purely depend upon positive and humane Laws From whence it will necessarily follow That the same human Authority residing in King Lords and Commons here in England which gave Being to those Laws for the good of the Community is Superintendent over them and both may and ought to make any Addition to or Alteration of them when the publick Good and Welfare of the Nation shall require it unless you will admit That an Human Authority establishing any thing intentionally for the common good of the Society which in tract of time by reason of unforeseen circumstances and emergencies proves destructive of it has by that Act concluded it self and made that accidental Evil moral and unchangeable which to affirm is sensless and repugnant And now Sir I hope by this time said the old Gentleman you begin to think that the Bill for disabling the Duke was not so unjust and unreasonable as was pretended and that the course of Succession being founded upon the same bottom with other Civil Constitutions might likewise as justly have been altered by the King Lords and Commons as any other Law or Custom whatever And here I might conclude but because a late Pensionary Pen has publickly arraign'd the Wisdom Loyalty and Justice of the Honourable House of Commons on the account of this Bill I will ex abundanti add a word or two more to that particular Whereupon he pluck'd a Paper out of his Pocket entituled Great and weighty Considerations relating to the Duke and Successor of the Crown c. Which as soon as he had read unto us You see here said he the true Temper of those men of whom I first gave you caution There never was an Endeavour though in a Legal and Parliamentary way after any Reformation either in Church or State but the Promoters of it were sure to be branded by them with the odious imputations of Fanaticism and Faction Nay if the Country-Electors of Parliament-men will not pitch upon such Rake-hells of the Nation as are usually proposed by them but on the contrary make use of their Freedom and Consciences in chusing able upright and deserving persons and if good men thus chosen do but according to their Duty in the House enquire into publick Grievances pursue in a legal course notorious Offenders and consult and advise the Security of the Government and Protestant Religion the high Church-man immediately swells and in a passion tells you That all this proceeds from the old Phanatick Leven not yet worn out amongst the People That we are going back again to Forty One and acting over afresh the Sins of our Forefathers Thus ignorantly do they complement the Times and Persons they endeavour to expose by appropriating to them such Virtues as were common to good men in all Ages But enough of this In the next place pray observe how hypocritically the Considerer puts this Question viz. Whether Protestant Religion was not settled in this Nation by the same mighty hand of God that establish'd Jeroboam in the Kingdom of Israel And then adds Whether we like that wicked King should so far despair of God's Providence in preserving the work of his own Hands as never to think it safe unless it be establish'd on the Quick-sands of our own wicked Inventions viz. the Bill against the Duke And throughout his whole Discourse he frequently calls all Care of preserving our Religion a Mistrust of God's Providence and on that score calls out to the Nation O ye of little Faith c. Now I will allow him That the least Evil is not to be done that the greatest and most important Good may ensue But that the Bill for disabling the Duke is highly justifiable both by the Laws of God and Constitution of our Government I think by my former Discourse I have left no room to doubt And the Considerer having scarce attempted to prove the contrary it 's preposterously done of him to give us his Use of Reproof before he has clear'd his Doctrine However I owe him many thanks for putting me in mind how Protestant Religion was first establish'd here in England it was indeed by the mighty Hand of God influencing the publick Councils of the Nation so that all imaginable care was taken both by Prince and People to rescue themselves from under the Romish Yoke and accordingly most excellent Laws were made against the usurpation and tyranny of that Man of Sin Our noble Ancestors in those days did not palliate a want of Zeal for their Religion with a lazy pretence of trusting in God's Providence but together with their Prayers to and Affiance in Heaven they joyned the Acts of their own Duty without which they very well knew they had no reason to expect a Blessing from it But now be pleased to take notice of the Candor of this worthy Considerer nothing less will serve his turn than the proving all the Voters for the Bill guilty of the highest Perjury For says he they have all sworn in the Oath of Allegiance to bear Faith and true Allegiance to His Majesty his Heirs and Successors but the Duke is Heir ergo c. A very hopeful Argument indeed But what if it should happen as it is neither impossible nor very improbable to imagin it that the next Heir to the Crown should commit Treason and conspire the Death of the present Possessor and for this Treason should not only be attainded by Parliament but executed too Pray Mr. Considerer would the Parliament in this case be guilty of Murder and Perjury I am confident you will not say it If therefore the next Heir become obnoxious to the Government in a lower degree why may not the same Authority proportion the Punishment and leave him his Life but debar him of the Succession This I say only to shew the absurdity of his Argument My Answer is this No man can bear Allegiance to two persons at the same time nor can Allegiance be ever due to a Subject and therefore my Obligation by the word Heir in the Oath does not commence till such Heir has a present Right to or actual Possession of the Crown which if he never attains either by reason of Death or any other Act that incapacitates and bars him then can my Obligation to him by the word Heir in the Oath never have a beginning But besides all this it cannot be denied but Mr. Considerer's Doctrine does bring great Inconveniences on Succession for the next Heir by his way of arguing is let loose from all the Restrictions and Penalties of Humane Laws and has no other tyes upon him not to snatch the Crown
and undoubted Priviledges of the People have been lately invaded by the Judges that now sit in Westminster-hall they have Espoused Proclamation against Law they have discountenanced and opposed several legal Acts that tended to the sitting of this Honourable House they have grasped the Legislative Power into their own Hands as in that Instance of Printing the Parliament was considering that matter but they in the interim made their private Opinion to be Law to supersede the Judgment of this House They have discharged Grand Juries on purpose to quel their Presentments and shelter great Criminals from Justice and when Juries have presented their Opinion for the sitting of this Parliament they have in disdain thrown them at their Feet and told them they would be no Messengets to carry such Petitions and yet in a few days after have encouraged all that would spit their Venom against the Government they have served an Ignorant and Arbitrary Faction and been the Messengers of Abhorrences to the King Mr. Speaker What we have now to do is to load them with shame who have bid defiance to the Law they are guilty of Crimes against Nature against the King against their Knowledge and against Posterity The whole frame of Nature doth loudly and daily petition to God their Creator and Kings like God may be addressed to in like manner by Petition not Command They likewise knew it was lawful to petition Ignorance can be no Plea and their Knowledge aggravates their Crimes The Children unborn are bound to curse such Proceedings for 't was not petitioning but Parliaments they abhorr'd The Atheist pleads against a God not that he disbelieves a Deity but would have it so Tresilian and Belknap were Judges too their Learning gave them Honour but their Villanies made their Exit by a Rope The end of my Motion therefore is That we may address warmly to our Prince against them let us settle a Committee to enquire into their Crimes and not fail of doing Justice upon them that have perverted it let us purge the Fountain and the Streams will issue pure November the 17th being appointed for consideration of His Majesty's Message the Order being read it was moved by a worthy Member THAT as long as Popery hangs over us we could do nothing and we ought to represent our condition to the King and then when we had secured our Religion and Property we should be ready to do any thing that might make the King happy and great A Second I am sorry that Tangier that is a Supply is moved for at so unseasonable a time I confess Tangier is of great moment but we have now in hands that which is of greater moment than ten Tangiers put together The consideration of that before we are secure in our Religion at home is as when an Enemy was landed we should afterwards go to fortifie the Coasts of Kent And being told us by His Majesty we should secure our selves against Popery by all ways but meddling with the Succession and should rest there we are prevented of what is our preservation And the providing for Tangier now will be the weakening of our Security When Tangier was put into the hands of the English first there was an Article that there should continue a Popish Church and the Religion that belonged to it to continue their Lives but not to be replenish'd with new And if it be enquir'd into I believe it will be found the number of them is not yet decreased It is not long since there was a Popish Governour there many Papists and Souldiers gone thither lately from Ireland It is not a little Sum that will do what is needful there and if it should be a considerable one that should be given for it it may be made use of to raise an Army there so that we run into a great Inconveniency by providing for it I think we ought to consider well of it before we do And yet I am not for sullenly saying we will raise no Money but for clearly stating the Case by an Address to the King A Third I am only to acquaint you That Tangier is not to be maintained without your Support A Fourth All things are to be considered comparatively and if it be made an Argument against the Duke's Bill that is at the Head of an Army in Scotland and that in Ireland there are ten Papists to one Protestant his great interest in the Fleet and being Admiral and Tangier being a Seminary of Papists then sure you have a special Argument to take Tangier into your Consideration and Money may be for that Service But then this Parliament do not ask Petitions of Grace but of Right And will you part with your Money without any Security You have often done so and what are you the better for it I long for the time when we may give Money to make the King great but if things must go on as they do I am for a plain Bargain to know what we shall have for our Money For my part I only desire our Security but if we should give Money I suppose you will take care what hands we put it in and there ought to be a Trust Let us Address His Majesty A Fifth We are told Tangier is of Importance it is a Nursery of Papists And we are likewise told The Irish sent thither a part of the Irish Army and they take the Oath that is no Security Was not the Lord Bellassis Governour of Tangier and Hull and the Pensioners Captain all at a time and took the Oaths those Souldiers for ought I know may be brought hither and the asking for a Supply for it at this time is very unreasonable because Parliaments have been put off two or three years and whilst there are people that dare make a difference between the King and this House we shall never be safe Let us represent our Condition as boldly as may stand with good manners It is not to be endured to see the Duke preferred before the King as he was as if Arguments of his Greatness and Power were Arguments strong enough to hinder the Bill He hath violated the Law and we needed not to have gone this way to work if we could have had Justice against him but he is too great for that let us Address His Majesty A Smith If Tangier be wholly under the Duke's Care and Protection and such a Seminary for Papists as hath been represented I think no motion to have a Supply for it is unseasonable and am against it order the bringing in the state of it A Seventh I spoke the fence of the City formerly and do so now again and in the name of the greatest part of the Commonalty of the City of London and we do declare That we are ready to give Money half we have nay all and be content to set up again and get new Estates if we can but be secured The burning of London justly laid upon the Papists and
although we do not in the least question your Faithfulness to the true Interest of this Nation nor your Prudence in the Management thereof yet esteeming it greatly our Duty in this unhappy Juncture wherein our Religion Lives Liberties Properties and all that is dear unto us are in such iminent danger to signifie our pressing Dangers unto You. And accordingly we do request That in the next Parliament wherein we have chose You to Sit and Act That You will with the greatest Integrity and most undaunted Resolution joyn with and assist the other Worthy Representatives and Patriots of this Nation in the searching into and preventing the Horrid and Hellish Villâ—nies Plots and Designs of that wicked and restless sort of People the Papists both in this and the Neighbouring Kingdoms And making some honourable Provision for the Discovery thereof In securing to us the Enjoyment of the True Protestant Religion and the well established Government of this Kingdom In Promoting the happy and long prayed for Union among all His Majesties Protestant Subjects In Repealing the 35th of Elizabeth the Corporation-Act and all other Acts which upon experience have proved injurious to the true Protestant Interest In Asserting the Peoples unquestionable Rights of Petitioning In removing our just Fears by reason of the great Forces in this Kingdom under the Name of Guards which the Law hath no knowledge of In preventing the Misery Ruine and utter Destruction which unavoidably must come upon this and the neighbouring Nations if James Duke of York or any other Papist shall ascend the Royal Throne of this Kingdom And lastly in securing to us our Legal Right of Annual Parliaments which under God will unquestionably prove the highest security of all that is good and desirable to us and our Posterity after us Always assuring our selves that you will not in any wise consent unto any Money-Supply until we are effectually secured against Popery and Arbitrary Power And particularly we desire you to give the most hearty Thanks of this County to that Noble Peer the Earl of Essex and by him to the rest of those Noble and Renowned Peers who were pleased lately and so seasonably to offer their Petition and Advice to His Majesty In the pursuance of all which Needful Worthy and Excellent Ends we shall as in duty bound stand by you with our Lives and Fortunes A Letter of Thanks from the Grand-Jury of the County of Worcester to the Knights of this Shire Dated Jan. 12. 1680. Honoured Sirs WE the Grand-Jury of the County of Worcester at the General Quarter Sessions of the Peace held for the said County the 11th day of Jan. in the 32d year of the King's Majesties Reign do hereby in the behalf of our selves and the County for which we serve return you our most hearty Thanks for your constant and unwearied Attendance upon the Service of His Majesty and your Country in this present Parliament in a Time of such iminent danger And especially of your concurrence in those Methods that have been taken for the Security of His Majesties Sacred Person the Protestant Religion and the Properties of His Majesties Subjects against the Hellish Plots of the Papists and their Adherents And we do humbly request your continuance therein and shall ever pray for the preservation of the Person of our most Gracious Sovereign and that God will direct and unite his Councils and upon all occasions testifie that we are Honoured Sirs Your very Humble Obliged and Thankful Servants This was signed by all the said Grand-Jury and directed to the Honourable Colonel Samuel Sandys and Thomas Foley Esquires Members of this present Parliament A Letter from the Ancient and Loyal Borough of North-Allerton in Yorkshire Dated Jan. 14. 1680. to their Burgesses in Parliament Honoured Sirs THe unexpected and sudden News of this Day 's Post preventing us from sending those due Acknowledgments which the greatness of your Services for Publick Good have merited from us we have no better way now left us to express our Gratitude and the highest Resentments of your Actions before and in your last Sessions of Parliament than to manifest our Approbation thereof by an Assurance that if a Dissolution of this present Parliament happen since you have evidenced so sufficiently your Affections to His Majesties Royal Person and Endeavours for the preserving the Protestant Religion our Laws and Liberties we are now resolved if you are pleas'd to continue with us to continue you as our Representatives And do therefore beg your Acceptance thereof and farther that you will continue your Station during this Prorogation faithfully assuring you that none of us desire to give or occasion you the Expence or Trouble of a Journey in order to your Election if such happen being so sensible of the too great expence you have been at already in so carefully discharging the Trust and Confidence reposed in you by Gentlemen Your Obliged and Faithful Friends and Servants Signed by the Burgesses and Electors of North-Allerton and directed to Sir Gilbert Gerrard and Sir Henry Calverly Burgesses for the Borough of North-Allerton in Yorkshire The same day the Grand-Jury of Reading Presented the following Paper to the Mayor of that Town Berkshire ss The Petition of the Grand-Jury of the Borough of Reading at the Sessions holden at the said Borough Jan. 14. 1680. To the Right Worshipful the Mayor and Aldermen of the Town and Borough of Reading The Humble Petition of the Grand-Jury of the said Town in behalf of themselves and others the Inhabitants of the same Sheweth THat your Petitioners are deeply sensible of the Great and Iminent Dangers and Mischiefs that threaten Us as well as the whole Nation by the implacable Malice and Endeavour of our Enemies to introduce Popery and Arbitrary Government to Subvert the Protestant Religion and our well-establisht Laws and to deprive us of our undoubted Rights and Liberties We therefore humbly entreat you that you would take it into your consideration that no Person whatsoever may be imployed encouraged or empowered to act in any wise in this Corporation that hath been Voted and Deemed in Parliament a Betrayer of the Rights of the People of England And your Petitioners shall Pray c. Soon after the Amazing Dissolution happened and His Majesty having then Declared his pleasure to Summon and Hold the next Parliament not at Westminster which in all Ages has been generally the usual place of Convening those Assemblies as being most conveniently situate near the Metropolis of the Kingdom where all Persons may be much better accommodated than elsewhere but at the City of Oxford several Noble Lords thought it their Duty humbly to Represent the Inconveniencies which in their apprehensions would attend such chargeable Removal and submissively to offer their Advice to His Majesty to alter that Resolution in the following Petition which being presented to His Majesty by that Noble Peer of approved Loyalty and Prudence the Right Honourable the Earl of Essex His Lordship
Returns And that some effectual Provision may be made for the meeting of frequent Parliaments and for their sitting to redress Grievances and to make such wholsome Laws as shall be necessary for the welfare of this Nation 7. That some effectual course be taken to give a check to Prophaneness and Debauchery which threaten Ruine or at least exceeding great Prejudice to the Kingdom In prosecuting of all which worthy Acts we shall endeavour your Defence with our Lives and Fortunes The Humble Address of the Young Men of the Borough of Taunton To Edmund Prideaux and John Trenchard Esquires who were Unanimously chosen by the Inhabitants to be Representatives of the said Borough to serve in this Parliament which is to Sit at Oxford March 21 1680 1. SIRS THough we are not immediately Concern'd in the Electing Members to Serve in Parliament yet being deeply sensible that we shall bear an equal share with others in the same Common Danger and Universal Slavery which Hell and Rome have been and still are with joint and unwearied Endeavours attempting to involve these Protestant Nations in we cannot without charging our selves with unparallell'd Ingratitude omit the returning you our hearty Thanks for that good and eminent Service you did both us and the Nation in the late Dissolved Parliament That you did with such inflamed Zeal with such undaunted Courage and Resolution endeavour the Security of our Religion Liberty and Property against that cursed Popish Faction who were the Invaders of them particularly we deem our selves infinitely obliged for the great Care you manifested in the preservation of His Majesty's Sacred Person in your strenuous prosecution of the Horrid and Damnable Popish Plot and in that your Attempts were so Brisk and Vigorous from the preventing of an Arbitrary and Tyrannical Power which we cannot but Unanimously abhor Liberty and Property being an Inheritance which as Englishmen we are born unto And above all we commend your Courage and Prudence in prosecuting that happy Expedient of Excluding a Popish Successor from Inheriting the Imperial Crown of this Realm without which we judge it utterly impossible that the Protestant Religion can be secured to us or that our necks can be long free from that Romish Yoke which neither we nor our Fathers were able to bear And now sith it hath pleased our Gracious King to Issue forth His Royal Proclamation signifying His pleasure to meet His People again in Parliament We cannot but Address our selves to you the Representatives of this Borough Humbly Requesting That you would according to the Trust Reposed in you Vigorously prosecute those Counsels that have a Tendency to an happy Settlement of Affairs both in Church and State particularly our Unanimous Request to you is 1. That forasmuch as the late Horrid and Hellish Plot hath according to the Votes of the preceeding Parliaments received Life and Countenance from James Duke of York you would expedite a Bill for the utter Incapacitating him ever to sway the Scepter of these Kingdoms and that the Bill of Association may be annexed whereby all His Majesty's Subjects may be enabled to oppose him or any of his Accomplices in case he should attempt to possess himself of the same 2. To take such Measures as your Wisdom shall agree upon for the Uniting of the Protestant Interest in these Nations 3. That the Artillery and Militia of the Nation be setled in the Hands of Men of known Integrity Courage and Conduct and that all Papists and Popishly affected Persons now in places of Publick Trust be Discharged which if effected may be ameans to prevent those great Fears and Jealousies which are apt otherwise to be nourished amongst us 4. That you proceed to the Tryal of the Popish Lords together with all other Criminal Offenders and go on sifting to the bottom that Execrable Plot which hath been and we must fear still is carried on to take away His Majesty's Life whom God long preserve to root out the Fundamental Laws of this Realm as also to introduce Popery into the Church and Tyranny into the State 5. That you take Cognizance of the Illegal and Arbitrary Proceedings of Courts as well Ecclesiastical as Civil as you have begun that so the Laws may not be wrested against the Protestant Dissenters nor stretched in favour of Popish Recusants As also to consider the unpresidented Finings and Imprisonings whereby many of His Majesty's truly Loyal Subjects have been grievously oppressed 6. That you would speedily think of some good Expedient for the Regulating of Elections as also for Removing of those Oaths and Tests which have proved no small hinderance to divers Worthy Protestants from being Useful Instruments in Serving their King and Country in Church and State These things worthy Sirs we humbly offer to your Considerations not as Directors but Remembrancers out of a Principle of Loyal Zeal for his Majesty's Security and our Countries Tranquility And assure your selves in the Prosecution of these truly Noble Designs we will defend you with our Lives and Fortunes accounting our dearest Blood a Tribute due to the Safety of our King and Country when called for in their Defence The Address of the Ancient Town of Winchelsea a Branch of the Cinque-Ports To their Barons Sir Steven Lenord and Creswel Draper Esquire elected in their absence March 4. and ordered by the Mayor and Jurates to be presented to them the said Mr. Draper serving for them in the last Parliament Mr. Draper YOu may assure your self That we are very highly satisfied with your unwearied Pains as also of your honest Discharge of the great Trust we reposed in you in the last Parliament by our hearty Thanks we now return you and by our Unanimous Electing you again to serve for us in the next Parliament to be holden at Oxford And Gentlemen as for you both WE know you are so sensible of our Condition that we need not tender you our Thoughts in many particulars only the Preservation of his Sacred Majesty's Person our Religion and Properties which are of the greatest Concern and most dear unto us And especially in order thereunto we commend unto you and desire you to use your utmost Endeavours 1. That there may be a full and perfect Discovery of that most Hellish and Damnable Popish Plot in England and Ireland and all other Sham-Plots which have been wickedly Contriving and Acting for many years past 2. That effectual Means be used for Uniting all his Majesty's Protestant Subjects against the common Enemy both at home and abroad 3. That all effectual Means and Ways may be provided to secure us against a Popish Successor and particularly against James Duke of York 4. That you will endeavour as far as in you lies That a Law may be made for putting our Free-Lands and Houses under a Voluntary Register that thereby this Kingdom may be a just and honourable Fund whereby Moneys may be taken up upon all urgent Occasions and so prevent the great Ruines we now
Earl unless they had his Royal Highness's and their Lordships special License and Warrant to that effect which is usual in the like Cases And by the said Petition humbly supplicated that his Highness and the Council would give special Order and Command to the said Sir George Lockhart the said Earls ordinary Advocate to consult and plead for him in the foresaid Criminal Process without incurring any hazard upon that account His Royal Highness and Lords of the said Privy Council did refuse the desire of the said Petition but allowed any Lawyers the Petitioner should employ to consult and plead for him in the Process of Treason and other Crimes to be pursued against him at the instance of His Majesties Advocate And also the said Alexander Dunbar having and holding in his hands another Act of the said Lords of Privy Council of the date the 24th of the said month relative to and narrating the said first Act and proceeding upon another supplication given in by the said Earl to the said Lords craving That his Royal Highness and the said Lords would interpose their Authority by giving a positive and special Order and Warrant to the said Sir George Lockhart to consult and plead with him in the foresaid Criminal Process conform to the tenor of the Acts of Parliament mentioned and particularized in the said Petition and frequent and known practice in the like cases which was never refused to any Subjects of the meanest quality His Royal Highness and Lords of Privy Council having considered the foresaid Petition did by the said Act adhere to their former Order allowing Advocates to appear for the said Earl in the Process foresaid as the said Acts bear and produced the said Acts and Procuratory foresaid to the said Sir George Lockhart who took the same in his hands and read them over successive and after reading thereof the said Alexander Dunbar Procurator and in name and behalf foresaid solemnly required the said Sir George Lockhart as the said Noble Earls ordinary Advocate and as a Lawyer and Advocate upon the said Earls reasonable expence to consult and advise the said Earls said Process at any time and place the said Sir George should appoint to meet thereupon conform to the foresaid two Acts of Council and Acts of Parliament therein mentioned appointing Advocates to consult in such matters which the said Sir George Lockhart altogether refused Whereupon the said Alexander Dunbar as Procurator and in Name foresaid asked and took Instruments one or more in the hands of me Notary publick undersubscribed And these things were done within the said Sir George Lockhart's Lodging on the South side of the Street of Edinburgh in the Lane-Mercat within the Dining-room of the said Lodging betwixt Four and Five hours in the Afternoon Day Month Year Place and of His Majesties Reign respective foresaid before Robert Dicksone and John Lesly Servitors to John Camphell Writer to His Majesties Signet and Dowgall Mac. Alester Messenger in Edinburgh with divers others called and required to the Premisses Ita esse Ego Johannes Broun Notarius publicus in Premissis requisitus Attestor Testantibus his meis signo subscriptione manualibus solitis consuetis Broun Witnesses Robert Dicksone Dowgall Mac. Alester John Lesly Decemb. 5. 1682. The Opinion of divers Lawyers concerning the Case of the Earl of Argyle WE have considered the Criminal Letters raised at the instance of His Majesties Advocate against the Earl of Argyle with the Acts of Parliament contained and narrated in the same Criminal Letters and have compared the same with a Paper or Explication which is libelled to have been given in by the Earl to the Lords of His Majesties Privy-Council and owned by him as the sense and explication in which he did take the Oath imposed by the late Act of Parliament Which Paper is of this tenor I have considered the Test and am very desirous to give chedience as far as I can c. And having likewise considered that the Earl after he had taken the Oath with the explication and sense then put upon it it was acquiesced to by the Lords of Privy-Council and he allowed to take his place and to sit and Vote And that before the Earls taking of the Oath there were several papers spread abroad containing objections and alledging inconsistencies and contradictions in the Oath and some thereof were presented by Synods and Presbyteries of the Orthodox Clergy to some of the Bishops of the Church It is our humble Opinion that seeing the Earls design and meaning in offering the said Explication was allenarly for the clearing of his own Conscience and upon no facrious or seditious design and that the matter and import of the said paper is no contradiction of the Laws and Acts of Parliament it doth not at all import any of the Crimes libelled against him viz. Treason Leasing making depraving of His Majesties Laws or the Crime of Perjury but that the glosses and inferences put by the Libel upon the said paper are altogether strained and unwarrantable and inconsistent with the Earls true design and the sincerity of his meaning and intention in making of the said Explication Wednesday the 12th of December the day of compearance assigned to the Earl being now come he was brought by a guard of Souldiers from the Castle to the place appointed for the Trial and the Justice Court being met and fenced the Earl now Marquess of Queensberry then Justice-General the Lords Nairn Collingtoun Forret Newtoun and Hirkhouse the Lords of Justitiary sitting in Judgment and the other formalities also performed the Indictment above set down Num. 24. was read and the Earl spoke as follows The Earl of Argyle's Speech to the Lord Justice General and the Lords of the Justitiary after he had been arraigned and his Indictment read My Lord Justice General c. I Look upon it as the undeniable priviledge of the meanest Subject to explain his own words in the most benign sense and even when persons are under an ill Character the misconstruction of words in themselves not ill can only reach a presumption or aggravation but not any more But it is strange to alledge as well as I hope impossible to make any that know me believe that I could intend any thing but what was honest and honourable suitable to the Principles of my Religion and Loyalty tho I did not explain my self at all My Lord I pray you be not offended that I take up a little of your time to tell you I have from my Youth made it my business to serve His Majesty faithfully and have constantly to my power appeared in his Service especially in all times of difficulty and have never joined nor complied with any Interest or Party contrary to His Majesties Authority and have all along served him in his own way without a frown from His Majesty these thirty years As soon as I passed the Schools and Colledges I went to travel to France and Italy and
the Pannel before he was called and required by the Lords of His Majesties Privy-Council to take Oath did ever by word or practice use any reproachful speeches of the said Act of Parliament or of His Majesties Government But being required to take the Oath he did humbly with all submission declare what he apprehended to be the sense of the Act of the Parliament enjoyning the Test and in what sense he had freedom to take the same 3. The Act of Parliament enjoyning the Test does not enjoyn the same to be taken by all persons whatsoever but only prescribes it as a qualification without which persons could not assume or continue to act in publick Trust Which being an Oath to be taken by so solemn an invocation of the Name of Almighty God it is not only allowable by the Laws and customs of all Nations and the Opinion of all Divines and Casuists Popish or Protestant but also commended that where a Party has any scrupulosity or unclearness in his conscience as to the matter of the Oath that he should exhibit and declare the sense and meaning in which he is willing and able to take the Oath And it is not at all material whether the scruples of a mans conscience in the matter of an Oath be in themselves just or groundless it being a certain maxim both in Law and Divinity that Conscientia etiam erronea ligat And therefore tho the Pannel had thought fit for the clearing and exoneration of his own conscience in a matter of the highest concern as to his peace and repose to have exprest and declared the express sense in which he could take the Oath whether the said sense was consistent with the Act of Parliament or not yet it does not in the least import any matter of reproach or reflection upon the justice or prudence of the Parliament in imposing the said Oath but alenarly does evince the weakness and scrupulosity of a mans conscience who neither did nor ought to have taken the Oath but with an explanation that would have saved his conscience to his apprehension Otherwise he had grosly sinned before God even tho it was Conscientia errans And this is allowed and prescribed by all Protestant Divines as indispensibly necessary and was never thought to import any crime and is also commended even by Popish Casuists themselves who tho they allow in some cases of mental reservations and equivocations yet the express declaration of the sense of the party is allowed and commended as much more ingenious and tutius Remedium Conscientiae ne illaqueeter as appears by Bellarmine de Juramento and _____ upon the same Title de Interpretatione Juramenti and Lessius that famous Casuist de Justitia Jure Dubitatione 8 9. utrum si quis salvo animo aliquid Juramento promittat obligetur quale peccatum hoc sit And which is the general opinion of all Casuists and all Divines as may appear by Amesius in his Treatise de Conscientia Sanderson de Juramento Praelectione secunda And such an express Declaration of the sense and meaning of any party when required to take an Oath for no other end but for the clearing and exoneration of his own Conscience was never in the opinion of any Lawyer or any Divine construed to be the Crime of Leasing-making or of defamatory Libels or depraving of publick Laws or reproaching or misconstruing of the Government but on the contrary by the universal suffrage of all Protestant Divines there is expresly required in Cases of a scrupulous Conscience an abhorrence and detestation of all reserved senses and of all Amphibologies and Equivocations which are in themselves unlawful and reprobate upon that unanswerable Reason that Juramentum being the highest Act of Devotion and Religion in eo requiritur maxima simplicitas and that a party is obliged who has any scruples of Conscience publickly and openly to clear and declare the same 4. Albeit it is not controverted but that a Legislator imposing an Oath or any publick Authority before whom the Oath is taken may after hearing of the Sense and Explication which a person is willing to put upon it either reject or accept of the same if it be conceived not to be consistent with the genuine sense of the Oath Yet tho it were rejected it was never heard of or pretended that the offering of a sense does import a Crime but that notwithstanding thereof Habetur pro Recusante and as if he had not taken the Oath and to be liable to the certification of Law as if he had been a Refuser 5. The Pannel having publickly and openly declared the sense in which he was free to take the Oath it is offered to be proved that he was allowed and did accordingly proceed to the taking of the Oath and did thereafter take his place and sit and Vote during that Sederunt of Privy Council So as the pretended Sense and Explication which he did then emit and give can import no Crime against him 6. It is also offered to be proved that before the Pannel was required to take the Oath or did appear before his Royal Highness and Lords of Privy-Council to take the same there were a great many Papers spread abroad from persons and Ministers of the Orthodox Clergy and as the Pannel is informed some thereof presented to the Bishops of the Church in the name of Synods and Presbyteries which did in downright terms charge the Test and Oath with alledged contradictions and inconsistencies And for satisfaction whereof some of the Learned and Reverend Bishops of the Church did write a learned and satisfying Answer called A Vindication of the Test for clearing the Scruples Difficulties and Mistakes that were objected against it And which Vindication and Answer was exhibited and read before the Lords of His Majesties Privy Council and allowed to be printed and from which the Pannel argues 1. That it neither is nor can be pretended in this Libel that the alledged Explication wherein he did take the Oath does propose the scruples of his Conscience in these terms which were proposed by the Authors of these Objections which do flatly and positively assert that the Oath and Test do contain matters of inconsistency and contradiction whereas all that is pretended in this Libel with the most absolute violence can be put upon the words is arguing Implications and Inferences which neither the words are capable to bear nor the sincerity of the Earls intention and design nor the course of his by-past life can possibly admit of And yet none of the persons who were the Authors of such papers were ever judged or reputed Criminal or Guilty and to be prosecuted for the odious and infamous Crimes libelled of Treason Leasing-making Perjury and the like 2. The Pannel does also argue from the said matter of Fact that the alledged Explication libelled can neither in his intention and design nor in the words infer or import any Crime against him because
before his being required or appearing to take the Oath there were spread abroad such Scruples and Objections by some of the Orthodox Clergy and others so that the Earl can never in any sense be construed in his Explication wherein he took the Oath to have done it animo infamandi and to declaim against the Government for the Scruples and Objections that were spread abroad by others were a fair and rational occasion why the Earl in any sense or explication which he offered might have said that he was confident the Parliament never intended to impose contradictory Oaths and this is so far from importing the insinuation and inferenâ— made by the Libel that thereby the Parliament were so impious as to impose contradictory Oaths as on the contrary considering the circumstances fore-mentioned that there were papers spread abroad insinuating That there were inconsistencies and contradictions contained therein the said expression was an high Vindication of the Honour and Justice of the Parliament against the Calumnies and Mis-representations which were cast upon it and was also a just Rise for the Pannel for the clearing and exonoration of his own Conscience in the various senses and apprehensions which he found were going abroad as to the said Test humbly to offer his sense in which he was clear and satisfied to take the Oath 7. To the Libel in so far as it is founded upon the Act of Parliament viz. Act 130. Par. 8. James 6. declaring That none should presume to impugn the Dignity or Authority of the three Estates of Parliament or procure any Invasion or diminution thereof under the pain of Treason as also in so far as it is pretended in the Libel That the Pannel by offering the sense and explication libelled has assumed the Legislative power which is incommunicable and has made a Law or a part of a Law It is answered The Libel is most groundless and irrelevant and against which the Act of Parliament is opponed which is so plain and evident upon the reading thereof that it neither is nor can be subject to the least cavillation And the plain meaning whereof is nothing else but to impugn the Authority of Parliaments as if the King and Parliament had not a Legislative Power or were not the highest Representative of the Kingdom or that any of the three Estates were not essentially requisite to constitute the Parliament And besides there is nothing more certain than that the occasion of the said Act its being made was in relation to the Bishops and Clergy and there is nothing in the pretended Explanation that can be wrested to import the least Contravention of the said Act or to be an impugning of the three Estates of Parliament or a seeking any innovation therein And it is admired with what shadow of Reason it can be pretended that the Pannel has assumed a Legislative power or made a part of a Law seeing all that is contained in the alledged Explication libelled is only a Declaration of the Earls sense in which he was satisfied to take the Oath and so respected none but himself and for the clearing of his own Conscience which justly indeed the Word of God calls a Law to himself without any incroaching upon the Legislative power And where was it ever debated but that a man in the taking of an Oath if as to his apprehensions he thought any thing in it deserved to be cleared might declare the same or that his exhibiting at the time of the taking of the Oath his sense and explication wherein he did take it was ever reputed or pretended to be the assuming of a Legislative power it being the universal practice of all Nations to allow this liberty and which sense may be either rejected or accepted as the Legislator shall think fit importing no more but a parties private sense for the exoneration of his own Conscience And as to that Member of the Libel founded upon Act 19. Par. 3. Queen Mary it contains nothing but a Declaration of the pain of Perjury and there is nothing in the Explication libelled which can in the least be inferred as a Contravention of the said Act in respect if it should be proved That the Pannel at the time of the taking of the Oath did take it in the words of the said Explication as his sense of the Oath it is clear that the sense being declared at the time of taking the Oath and allowed as the sense wherein it was taken the Pannel can only be understood to have taken it in that sense And although publick Authority may consider whether the sense given by the Pannel does satisfie the Law or not yet that can import no more though it was found not to satisfie but to hold the Pannel as a Refuser of the Oath but it is absolutely impossible to infer the Crimes of perjury upon it being as is pretended by the Libel the â—annel did only take it with the Declaration of the Sense and Explication Libelled 8. As the Explication libelled does not at all import all or any of the Crimes contained in the said Libel so by the common principles of all Law where a person does emit words for the clearing and exoneration of his own Conscience altho there were any ambiguity or unclearness or involvedness in the tenor or import of the expressions or words yet they are ever to be interpreted Interpretatione benigna favorabili according to the general Principles of Law and Reason And it never was nor can be refused to any person to interpret and put a congruous sense upon his own words especially the Pannel being a person of eminent Quality and who hath given great demonstration and undeniable evidences of his fixt and unalterable Loyalty to His Majesties Interest and Service and at the time of emitting the said Explication was invested and intrusted in publick Capacities And it is a just and rational interpretation and caution which Sanderson that judicious and eminent Casuist gives Praelect 2. That dicta facta principum parentum rectorum are ever to be looked upon as benignae Interpretationis and that Dubia sunt interpretanda in meliorem partem And there is nothing in the Explication libelled which without detortion and violence and in the true sense and design of the Pannel is not capable of this benign Interpretation and construction especially respect being had to the Circumstances wherein it was emitted and given after a great many Objections Scruples and alledged Inconsistencies were owned vented and spread abroad which was a rise to the Earl for using the expressions contained in the pretended Declaration libelled 10. These words whereby it is pretended the Pannel declares he was ready to give obedience as far as he could first do not in the least import That the Parliament had imposed any Oath which was in it self unlawful but only the Pannels scrupulosity and unclearness in matter of Conscience And it is hoped it cannot be a Crime because all men cannot
depraving His Majesties Laws For if such Foundations were laid Judges and Lawyers had a dangerous employment there being nothing more ordinary than to fall into differences and mistakes of the sense and meaning of the Laws and Acts of Parliament But such Crimes cannot be inferred but with and under the qualifications above mentioned of malicious and perverse designs joyned with licentious wicked and reproachful speeches spread abroad to move Sedition and dislike of the Government And the said Laws were never otherwise interpreted nor extended in any case And therefore the Explication libelled neither as taken complexly nor in the several expressions thereof nor in the design of the ingiver of the same can in Law import against him all or any of the Crimes libelled In like manner the Pannel conjoyns with the grounds above-mentioned the Proclamation issued forth by His Majesties privy Council which acknowledges and proceeds upon a Narrative that scruples and jealousies were raised and spread abroad against the Act of Parliament enjoyning the Test For clearing and satisfaction whereof the said Proclamation was issued forth and is since approved by His Sacred Majesty The Kings Advocates Argument and Plea against the Earl of Argyle HIS Majesties Advocate for the foundation of his Debate does represent That His Majesty to secure the Government from the Rebellious Principles of the last Age and the unjust Pretexts made use of in this from Popery and other Jealousies as also to secure the Protestant Religion and the Crown called a Parliament and that the great security resolved on by the Parliament was this excellent Test in which that the old jugling Principles of the Covenant might not be renewed wherein they still swore to serve the King in their own way the Parliament did positively ordain That this Oath should be taken in the plain genuine meaning of the words without any evasion whatsoever Notwithstanding whereof the Earl of Argyle by this Paper does invent a new way whereby no man is at all bound to it For how can any person be bound if every man will only obey it as far as he can and as far as he conceives it consistent with the Protestant Religion and with it self and reserve to himself notwithstanding thereof to make any alteration that he thinks consistent with his Loyalty And therefore His Majesties Advocate desires to know to what the Earl of Argyle or any man else can be bound by this Test what the Magistrate can expect or what way he can punish his Perjury For if he be bound no farther than he himself can obey or so far as this Oath is consistent with the Protestant Religion or it self quomodo constat to whom or what is he bound And who can determine that Or against what alteration is the Government secured since he is Judg of his own alteration So that that Oath that was to be taken without any evasion is evaded in every single word or Letter and the Government as insecure as before the Act was made because the taker is no farther bound than he pleases From which it cannot be denied but his Interpretation destroys not only this Act but all Government since it takes away the security of all Government and makes every mans Conscience under which Name there goes ordinarily in this Age Humour and Interest to be the rule of the takers obedience Nor can it be conceived to what purpose Laws but especially Oaths needed to be made if this were allowed or how this cannot fall under the 197th Act Par. 7. James 6. whereby it is statuted That no man interpret the Statutes otherwise than the maker understood For what can be more contrary to the taking of them in the makers sense than that every man should obey as far as they can and be allowed to take them in a general sense so far as they are consistent with themselves and the Protestant Religion without condescending wherein they do not agree with the Protestant Religion and that they are not bound not to make any alteration which they think good for the States For all these make the rule of obedience in the taker whereas the positive Law makes it to be in the maker Or how could they be punished for Perjury after this Oath For when he were quarrelled for making alterations against this Oath and so to be perjured he might easily answer That he took this Oath only in so far as it was consistent with the Protestant Religion and with a Salvo that he might make any alteration that he thought consistent with his Loyalty And as to these Points upon which he were to be quarrelled he might say he did not think them to be inconsistent with his Loyalty think we what we pleased and so needed not to be perjured except he pleased to decide against himself for in these Generals he reserves to himself to be still Judge And this were indeed a fine security for any Government And by the same rule that it looses this Oath it shews a way of loosing all Oaths and Obedience and consequently strikes at the root of all Laws as well as this whereas to shun all this not only this excellent Statute 107. has secured all the rest but this is common Reason And in the opinion of all Divines as well as Lawyers in all Nations Verba juramenti intelliguntur secundum mentem intentionem ejus cui fit juramentum Which is set down as the grand position by Sanderson whom they cite pag. 137. and is sounded upon that Mother-Law Leg. 10. Cui interrogatus f.f. de interrogationibus in Jure faciendis and without which no man can have sense of Government in his head or practise it in any Nation Whereas on the other hand there is no danger to any tender Conscience since there was no force upon the Earl to take the Oath but he took it for his own advantage and might have abstained 2. It is inferred from the above-written matter of Fact That the Earl is clearly guilty of contravention of the 10. Act Parl. 10 James VI. whereby the Leiges are commanded not to write any purpose of Reproach of His Majesties Government or misconstrue his proceedings whereby any misliking may be raised betwixt his Highness his Nobility or his people And who can read this paper without seeing the King and Parliament reproached openly in it For who can hear that the Oath is only taken as far as it is consistent with it self and the Protestant Religion but must necessarily conclude that in several things it is inconsistent with it self and the Protestant Religion For if it were not inconsistent with it self and the Protestant Religion why this Clause at all but it might have been simply taken For the only reason of hindering it to be taken simply was because of the inconsistency ergo there behooved necessarily to be an inconsistency And if there be any inconsistency with the Protestant Religion or any contradiction in the Oath it self can there be
upon the King and the Government For the writing an answer is no allowance but a condemning Nor can the Council allow any more than they can remit And tho it may justly be denied that the Council heard even the Earls own Explanation yet the hearing or allowing him to sit is no Relevant Plea because they might very justly have taken a time to consider how far it was fit to accuse upon that Head And it is both just and fit for the Council to take time and by express Act of Parliament the negligence of the King Officers does not bind them For if this were allowed Leading men in the Council might commit what Crimes they pleased in the Council which certainly the King may quarrel many years after And tho all the Council had allowed him that day any one Officer of State might have quarrelled it the next day As to the Opinion of Bellarmine Sanderson and others it is ever contended that the principles of the Covenant agree very well with those of the Jesuites and both do still allow Equivocations and Evasions But no solid Orthodox Divine ever allowed That a man who was to swear without any Evasion should swear so as he is bound to nothing as it is contended the Earl is not for the Reasons represented And as they still recommend That when men are not clear they might abstain as the Earl might have done in this case so they still conclude That men should tell in clear terms what the sense is by which they are to be bound to the State Whereas the Earl here tells only in the general and in most ambigious terms That he takes it as far as he can obey and as far as it is consistent with the Protestant Religion and that he takes it in his own sense and that he is not bound by it from making alterations but as far as he thinks it for the advantage of Church or State which sense is a thousand times more doubtful than the Test and is in effect nothing but what the taker pleases himself As to the Treason founded on His Majesties Advocate founds it first upon the Fundamental and Common Laws of this and all Nations whereby it is Treason for any man to make any alteration he shall think for the advantage of Church or State which he hopes is a principle cannot be denied in the general And whereas it is pretended That this cannot be understood of mean alterations and of alterations to be made in a lawful way It is answered That as the thing it self is Treason so this Treason is not taken off by any of these qualifications because he declares he will wish and endeavour any alteration he thinks fit and any alteration comprehends all alterations that he thinks fit Nam propositio indefinita aequipollet universali And the word any is general in its own nature and is in plain terms a reserving to himself to make alterations both great and small And the restriction is not all alterations that the King shall think fit or are consistent with the Laws and Acts of Parliament but he is still to be Judge of this and his Loyalty is to be the Standard Nor did the Covenanters in the last Age nor do these who are daily executed decline that they are bound to obey the King simply but only that they are bound to obey him no otherwise than as far as his Commands are consistent with the Law of God of Nature and of this Kingdom and with the Covenant And their Treason lies in this And when it is asked them Who shall be judge in this they still make themselves Judges And the reason of all Treason being that the Government is not secure it is desired to be known what way the Government can be secured after this paper since the Earl is still Judge how far he is obliged and what is his Loyalty And if this had been sufficient the Covenant had been a very excellent paper for they are there bound to endeavour in their several stations to defend the Kings person but when the King challenged them how they came to make War against him their great Refuge was That they were themselves still Judges as to that And for illustrating this power the Lords of Justitiary are desired to consider Quid Juris if the Earl or any man else should have reserved to himself in this Oath a liberty to rise in Arms or to oppose the lineal Succession tho he had added In a lawful manner for the thing being in it self unlawful this is but sham and Protestatio contraria facto And if these be unlawful notwithstanding of such additions so much more must this general reservation of making any alterations likewise be unlawful notwithstanding of these additions For he that reserves the general power of making any alteration does a fortiori reserve power to make any alteration tho never so fundamental For all particulars are included in the General and whatever may be said against the particulars may much more strongly be said against the general 2. The 130. Act Par. 8. James VI is expressly founded on because nothing can be a greater diminution of the power of the Parliament than to introduce a way or means whereby all their Acts and Oaths shall be made insignificant and ineffectual as this paper does make them for the Reasons represented Nor are any of the Estates of Parliament secure at this rate but that they who reserved a general power to make all alterations may under that â—eneral come to alter any of them 3. What can be a greater impugning of the Dignity and Authority of Parliaments than to say That the Parliament has made Acts for the security of the Kingdom which are in themselves ridiculous inconsistent with themselves and the Protestant Religion And as to what is answered against invading the Kings Prerogative and the Legislative power in Parliaments in adding a part to an Oath or Act is not relevantly inferred since the sense of these words And this I understand as a part of my Oath is not to be understood as if any thing were to be added to the Law but â—â—ly to the Oath and to be an interpretation of the Oath It is replied That after this no man needs to add a Caution to the Oath in Parliament But when he comes to take the Oath do the Parliament what they please he will add his own part Nor can this part be looked upon as a sense for if this were the sense before this paper he needed not understand it as a part of it for it wanted not that part And in general as every man may add his own part so the King can be secure of no part But your Lordships of Justitiary are desired to consider how dangerous it would be in this Kingdom and how ill it would sound in any other Kingdom That men should be allowed to reserve to themselves liberty to make any alteration they thought fit in Church or
State as to the legality of which they were themselves to be Judges and how far from degree to degree this at last may come to absolute Anarchy and how scandalous a thing as well as unsecure this new way may look in an Age wherein we are too much tracing the steps of our rebellious Progenitors in the last whose great defection and error was That they thought themselves and not the King the Authors of Reformation in Church and State And no man ever was barred by that that the way he was upon was not a lawful way for if it be allowed to every man to take his own way every man will think his own way to be the lawful way As to the Perjury it is founded on this First That Perjury may be committed not only by breaking an Oath but even in the swearing of it viz. To swear it with such Evasions as make the Oath ineffectual for which Sanderson is cited pag. 138. Alterum Perjurii genus est novo aliquo excogitato Commento Juramenti vim declinare aut eludere Jurans tenetur sub pâ—na Perjurii implere Secundum Intentionem deferentis both which are here For the Earl being bound by the very Oath to swear in the genuine meaning without any evasion he has sworn so as he has evaded every word there being not one word to which it can be said particularly he is bound as is said And it is undeniable that he has not sworn in the sense of the makers of the Law but in his own sense which is Perjury as is said And consequentially whatever sense may be allowed in ambiguous Cases yet there can be none where the Paper clearly bears Generals And where he declares That he takes it in his own sense His Majesties Advocate declares he will not burden himself that Copies were disperst tho it is certain since the very Paper it self by the giving in is chargeable with all that is above charged upon it Sir John Dalrymple's Defence and Plea for the Earl of Argyle by way of Reply upon the King's Advocate SIR John Dalrymple replies for the Pannel That since the solid grounds of Law adduced in the Defences have received no particular Answers in relation to the common consent of all Casuists viz. That a party who takes an Oath is bound in Conscience to clear and propose the terms and sense in which he does understand the Oath Nor in relation to the several Grounds adduced concerning the legal and rational Interpretation of dubious Clauses And since these have received no Answers the Grounds are not to be repeated but the Proctors for the Pannel do farther insist on these Defences 1. It is not alledged That any Explanation was given in by the Pannel to any person or any Copy spread before the Pannel did take the Test in Council So that it cannot be pretended That the many Scruples that have been moved concerning the Test did arise from the Pannel's Explication But on the contrary all the Objections that are answered and obviated in the Pannel's Explication were not only privately muttered or were the thoughts of single or illiterate persons but they were the difficulties proposed by Synods and Presbyteries long before the Pannel came from home or was required to take the Test So that the general terms of the Acts of Parliament founded upon in the Libel are not applicable to this Case For as these Laws in relation to Leasing-makers are only relative to atrocious wilful Insinuations or misconstructions of His Majesties Person or Government or the open depraving of his Laws so the restrictive Cause whereby sedition or misconstructions may be moved raised or engendered betwixt His Majesty and his Liedges cannot be applied to this Case where all these Apprehensions and Scruples were on foot and agitated long before the Pannel's Explanation As it cannot be pretended That any new dust was raised by the Pannel's Explanation so it is positively offered to be proved That there is not one word contained in this Explanation but that either these individual words or much worse had been publickly proposed and verbatim read in Council without the least discouragement or the least objection made by any Member of the Council And where a Writing ex proposito read in so high a Court was universally agreed upon without the alteration of a Syllable how can it be pretended That any person thereafter using the said individual terms in any Explanation and far easier terms that they shall incur the high and infamous Crimes libelled And the question is not here Whether the Council was a proper Judicature to have proposed or imposed a sense or allowed any Explanation of the Test to be published but that it is impossible that a sense they allowed or being publickly read before them and which the Kings Advocate did not controul that this should import Treason or any Crime And tho the Pannels Advocate will not pursue or follow the Reply that has been made to this point yet certainly no man of sober sense will think that it is fit to insinuate that so high a Judicature might have authorised or acquiesced in such Explanations as the Liedges thereafter should be entrapped to have used If the Pannel had officiously or ulteroneously offered a sense or Explanation of His Majesties Laws which the Laws themselves could not have born it might justly have been alledged that he was extra ordinem and medling in a matter he was not concerned in but where the Act of Council did enjoyn and he was required and cited to that effect It could neither be constructed as ostentation or to move or encourage Scruples or Resistance but it was absolutely necessary either for to have refused the Test or else to have declared what he thought to be the true and genuine meaning of it And there being so many objections publickly moved and known his Explanation was nothing else but to clear That he did not look upon these Scruples and Objections moved by others as well sounded and rational in themselves and therefore he was able to take the Test in that sense the Council had heard or allowed And it is not controverted that the sense of the Legislator is the genuine sense both of Laws and Oaths And if a person were only interpreting the meaning of either a Law or an Oath imposed he should deprave and misconstruct the Law and Oath if he rendred it wittingly and willingly in terms inconsistent with the meaning of the imposer But there is a great difference betwixt taking of Oaths and interpreting Oaths For when a man comes to take an Oath except his particular sense did agree with the genuine meaning of the imposer he cannot take that Oath tho he may very well interpret and declare what is the sense of the Legislator which he may know and yet perhaps not be able to take the Oath And therefore when there is any doubtfulness in an Oath and a party is bound to take it
of the Kings Officers cannot prejudg his Interest It is answered The Pannel is very confident that neither the Lords of His Majesties Privy Council consisting of persons of eminent Loyalty and Judgment nor His Majesties Officers were capable of any such escape as is pretended and if the tenor of the Pannel's Explication did in the least import the high and infamous Crimes libelled as beyond all peradventure it does not it were strange how the same being contained in the aforesaid Vindication and the whole Clauses thereof justified that this should have been looked on as no Crime and allowed to be published And the Pannel neither does nor needs to make farther use thereof but to convince all dis-interested persons that his Explication can import no Crime And whereas it is pretended That the Crime of Treason is inferred from the fundamental Laws of the Kingdom and from that Clause of the Pannel's Explication whereby he declares he is not bound up by any thing in this Oath not to endeavour any alteration in a lawful way which being an indefinite proposition is equipollent to an universal and is upon the matter coincident with a Clause which was rebellious in its consequences contained in the Solemn League and Covenant It is answered That it is strange how such a plain and innocent Clause whereby beyond all question he does express no more than was naturally imported the Crime of Treason which no Lawyer ever allowed except where it was founded upon express Law Luce Meridiana Clarior And indeed if such stretches and inferences can make men guilty of Treason no man can be secure And the words in the Pannel's Declaration are plain and clear yet non sunt cavillanda and import no more but that in his station and in a lawful way and consistent with the Protestant Religion and his Loyalty he might endeavour any alteration to the advantage of Church and State And was there ever any loyal or rational Subject that does or can doubt that this is the natural import of the Oath And indeed it were a strange Oath if it were capable of another sense and being designed for the security of the Government should bind up mens hands to concur for its advantage And how was it possible that the Pannel or any other in the capacity of a Privy-Councellor or a Member of the Parliament would have satisfied his Duty and Allegiance in other terms And whereas it is pretended that there was the like case in the pretended League and Covenant it is answered The Assertion is evidently a Mistake and tho it were the Argument is altogether inconsequential For that League and Covenant was treasonable in it self as being a Combination entred into without His Majesties Authority and was treasonable in the glosses that were put upon it and was imposed by absolute violence on the Subjects of this Kingdom And how can the Pannel be in the least supposed to have had any respect to the said League and Covenant when he had so often taken the Declaration disowning and renouncing it as an unlawful and sinful Oath and concurred in the many excellent Laws and Acts of Parliament made by His Majesty condemning the same as seditious and treasonable And whereas it is pretended That the Pannel is guilty of Perjury having taken the Oath in another sense than was consistent with the genuine sense of the Parliament and that by the Authority cited he doth commento eludere Juramentum which ought always to be taken in the sense of him that imposeth the Oath It is answered The Pretence is most groundless and Perjury never was nor can be inferred but by the commission or omission of something directly contrary to the Oath And altho it is true That where an Oath is taken without any Declaration of the express sense of the persons who take it it obliges sub poena Perjurii in the sense not of the taker but of the imposer of the Oath because expressing no Sense Law and Reason presumes there is a full acquiescence in the sense and meaning of the imposer of the Oath and then if an Oath be not so taken he that takes it is guilty of Perjury Yet there was never Lawyer nor Divine Popish or Protestant but agree in this That whatever be the tenor of the Oath if before the taking thereof the party in express terms does publickly and openly declare the sense in which he takes it it is impossible it can infer the Crime of Perjury against him in any other sense this not being Commentum excogitatum after the taking of the Oath And if this were not so how is it possible in Sense and Reason that ever any Explication or Sense could solve the Scruples of a mans Conscience For it might be always pretended That notwithstanding of the express sense wherein he took it he should be guilty of Perjury from another sense And that this is the irrefragable opinion of all Divines of whatever peswasion is not only clear from the Authority above-mentioned even those who allow of reserved senses but more especially by the universal suffrage of all Protestant Divines who tho they do abominate all thoughts of Subterfuges or Evasions after taking of the Oath yet they do always allow and advise for the safety and security of a doubting and scrupulous Conscience that they should express and declare before the taking of the Oath the true sense and meaning wherein they have freedom to take it and for which Sandersone de Juramento is cited Prelct 6. Sect. 10. pag. 75. where his words are Sane ut inter Jurandum omnia recte fiant expedit ut de verborum sensu inter omnes partes quarum interest liquido constet quod veteribus dictum liquido Jurare And an Oath being one of the highest Acts of Devotion containing Cultum Latriae there is nothing more consonant to the Nature of all Oaths and to that Candor Ingenuity and Chrstian simplicity which all Law and Religion requires in such cases The Kings Advocate 's Third Plea against the Earl of Argyle HIS Majesties Advocate conceives he has nothing to answer as to depraving Leasing-making and mis-interpreting c. save that this Oath was only designed to exclude Recusants and consequently the Pannel may thereby be debarred from his Offices but not made guilty of a Crime To which he Triplies 1. If ever the Earl had simply refused that had been true but that did not at all excuse from defaming the Law for a defamer is not punished for refusing but for defaming 2. It he had simply refused the Government had been in no more hazard but if men will both retain their places and yet take the same in such words as secure not the Government it were strange to think that the design of the Law being to secure against mens possessing who will not obey that yet it should allow them possession who do not obey Nor is the refuser here in a better case than the Earl
Justice is exactly kept VII And lastly Never to ingage themselves in the beginning of a Cause but reserve themselves unprejudged till the whole business be heard Then the Earl goes on and makes notes for Additional Defences reducible to these Heads I. The absolute innocence af his Explication in its true and genuine meaning from all crime or offence far more from the horrible Crimes libelled II. The impertinency and absurdity of His Majesty's Advocate 's Arguings for inferring the Crimes libelled from the Earl's words III. The reasonableness of the Exculpation IV. The Earl's Answers to the Advocate 's groundless Pretences for aggravating of his Case As to the first The Earl waving what hath been said from common Reason and Humanity it self and from the whole tenour and circumstances of his Life comes close to the point by offering that just and genuine Explanation of his Explication which you have above Num. 21. I have delayed hitherto to take the Oath appointed by the Parliament to be taken betwixt and the first of January next But now being required near two months sooner to take it this day peremptorily or to refuse I have considered the Test and have seen several Objections moved against it especially by many of the Orthodox Clergy notwithstanding whereof I have endeavoured to satisfy my self with a just Explication which I here offer that I may both satisfy my Conscience and obey Your Highness and your Lordships Commands in taking the Test though the Act of Parliament do not simply command the thing but only under a certification which I could easily submit to if it were with Your Highness's favour and might be without offence But I love not to be singular and I am very desirous to give obedience in this and every thing as far as I can and that which clears me is that I am confident whatever any man may think or say to the prejudice of this Oath the Parliament never intended to impose contradictory Oaths and because their sense they being the Framers and Imposers is the true sense and this Test enjoined is of no private interpretation nor are the King's Statutes to be interpreted but as they bear and to the intent they are made therefore I think no man that is no private Person can explain it for another to amuse or trouble him with it may be mistaken glosses But every man as he is to take it so is to explain it for himself and to endeavour to understand it notwithstanding all these Exceptions in the Parliament's which is its true and genuine sense I take it therefore notwithstanding any scruple made by any as far as it is consistent with it self and the Protestant Religion which is wholly in the Parliament's sense and their true meaning Which being present I am sure was owned by all to be the securing of the Protestant Religion founded on the Word of God and contained in the Confession of Faith recorded J. 6. p. 1. c. 4. And not out of Scruple as if any thing in the Test did import the contrair But to clear my self from Cavils as if thereby I were bound up further than the true meaning of the Oath I do declare That by that part of the Test that there lies lies no obligation on me c. I mean not to bind up my self in my station and in a lawful way still disclaiming all unlawful endeavours To wish and endeavour any alteration I think According to my Conscience to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty And by my Loyalty I understand no other thing than the words plainly bear to wit the duty and allegiance of all Loyal Subjects and this Explanation I understand as a part not of the Test or Act of Parliament but as a qualifying part of my Oath that I am to swear and with it I am willing to take the Test if your Royal Highness and your Lordships allow me Or otherwise in submission to your Highness and the Councils pleasure I am content to be held as a Refuser at present Which Explanation doth manifestly appear to be so just and true without violence or straining so clear and full without the least impertinency so notore and obvious to common sense without any Commentary so loyal and honest without ambiguity and lastly so far from all or any of the Crimes libelled that it most evidently evinceth that the words thereby explained are altogether innocent And therefore it were lost time to use any Arguments to enforce it Yet seeing this is no trial of wit but to find out common sense let us examine the Advocate 's fantastical Paraphrase upon which he bottoms all the alledged Crimes and see whether it agrees in one jot with the true and right meaning of the Earl's words and as you may gather from the Indictment it is plainly thus I have considered the Test which ought not to be done and am very desirous to give obedience as far as I can but am not willing to give full obedience I am confident the Parliament never intended to impose contradictory Oaths that is I am confident they did intend to impose contradictory Oaths and therefore I think no man can explain it but for himself that is to say every man may take it in any sense he pleases to devise and thereby render this Law and also all other Laws tho not at all concerned in this Affair useless and so make himself a Legislator and usurp the Supreme Authority And I take it in so far as it is consistent with it self and the Protestant Religion whereby I suppose that it is not at all consistent with either nor was ever intended by the Parliament it should be consistent And I declare that by taking this Test I mean not to bind up my self in my station and in a lawful way to wish or endeavour any alteration I think to the advantage of Church or State not repugnant to the Protestant Religion and my Loyalty Whereby I declare my self and all others free from all obligation to the Government either of Church or State as by Law established and from the duty and Loyalty of good Subjects Resolving of my self to alter all the Fundamentals both of Law and Religion as I shall think fit And this I understand as a part of my Oath that is as a part of the Act of Parliament by which I take upon me and usurp the Royal Legislative Power Which sense and Explanation as it consists of the Advocate 's own words and was indeed every word necessar to infer these horrible Crimes contained in the Indictment so to speak with all the modesty that truth will allow I am sure it is so violent false and absurd that the greatest difficulty must be to believe that any such thing was alledged far more received and sustained in judgment by Men professing only reason far less Religion But thirdly If neither the Earl's true genuine and honest sense nor this
one short Answer viz. That if the Earl's Paper did infer the Crimes charged on it a thousand the like offences cannot excuse it And His Majesty is free to pursue the Offenders when and in what order he thinks fit which Answer doth indeed leave the Council and all concerned in His Majesty's mercy But that it doth no way satisfy the Earl's Plea is manifest For the first ground of Exculpation viz. That before the Earl did offer his Explanation a great many Papers writ by the Orthodox Clergy and others were abroad charging the Test with Contradictions c. was not alledged by the Earl merely to justify his Explanation by the multitude of the like Papers and so to provide for an escape in the croud But the Earl having most rationally pleaded that his Explanation was given in by him after these many Scruples and Objections raised by others were abroad it was a good Plea from a most pregnant circumstance clearing both the design and sense of his words from the foul aspersions of reproaching and depraving thrown upon them Seeing the words spoken by him under the motive of such a circumstance by all fair rules of interpretation instead of being judged misconstruing and depraving could only be understood as a seasonable asserting of the Integrity of the Parliament's Intentions and the uprightness of the Earl's Conscience Which Argument being in reason unanswerable it necessarly follows that the Advocate 's return to the first ground was neither sufficient nor pertinent and that therefore the Exculpation was unjustly repelled But next The second ground of Exculpation is so far from being answered by the Advocate that it does not appear it was so much as understood For the Earl's Argument being That words allowed and approven by the Council can never fall under the Accusation either of Leasing-making or slandering His Majesty's Proceedings or depraving Laws and Acts of Parliament as is evident in it self and granted by the Advocate where he says that an Explanation tho reflecting on the King and Government which the Earl's was not yet if allowed by the Council is to be sustained But so it is that the Council hath allowed the words contained in this Explanation contraverted both in themselves and also in their equivalent and far more important Expressions As for instance not only by accepting the Earl's Explanation as shall be cleared in the next place but by giving warrand for the publication of the Bishop of Edinburgh his Vindication wherein first for obviating the contradictions objected from the Confession of Faith he positively asserts that by the Test men do not swear to own every Article of that Confession and yet the Test binds expresly to believe that Confession to be founded on and agreeable to the Word of God and never to consent to any alteration contrary thereto or inconsistent therewith So that he gives both the Test and the Parliament the Lye And then for removing another Scruple he tells us That by the Test men are not bound up from regular endeavours to rectify or better the Established Government both of Church and State which is clearly the same thing but not so well cautioned with that which in the Earl's Case is made a ground of Treason From which it unquestionably follows that the Earl's words having been allowed and approved by the Council could never in Law or Reason be thereafter made a ground of accusation by any much less by themselves Now I desire to know where the Advocate in all his Plea doth so much as notice far less answer this Defence or what his telling us A thousand Offences of the like nature doth not excuse one either doth or can signify seeing this Argument for the Earl instead of pleading excuses doth justify the matter and for ever purge all shadow of offence or ground of quarrel which will be yet more apparent when you shall add to this the third ground of the Earl's Exculpation viz. That the Explanation whereupon the Earl was indicted was publickly by himself declared in Council and by the Council allowed and accepted Insomuch as after he had given his Explanation as the sense wherein he was free to swear the Test the Oath was thereupon administrat to him and he received to sit and vote as a Councellor Whereby it is evident That by this allowance and acceptance the Earl's Explanation became the Councils as much as if after the Earl's pronouncing the words they had verbatim repeated them and told him they were satisfied he should swear the Test in these terms And whether this ought not to be a sufficient exoneration to the Earl let all men judge The Advocate makes a noise That in the case of an Oath required the Taker ought to swear it in the sense of the Imposer which none doubts and then runs out That the Earl in place of taking it in the Imposers sense did unwarrantably intend a sense of his own to the eluding and frustrating of the obligation of this and all other Oaths But all this is nothing to the purpose for waving that in the Earl's Case it is most impertinent to talk of his obtruding of a sense to the eluding and frustrating of the obligation of his Oath seeing his Oath was not then given or at all in being it is expresly alledged by the Earl and notour that the Explanation tendered by him when called to take the Test was accepted by the Council and the Oath thereupon administrated and so the Earl freely joins issue with the Advocate and acknowledging that the Taker of the Oath ought to swear in the sense of the Imposer subsumes in terminis that he himself did swear so and not otherwise inasmuch as he did swear in a sense accepted by the Council before he gave his Oath as is evident 1. By their commanding him to sit after he had sworn and 2. In that neither the Advocate nor any other had ever the confidence to quarrel his sitting as a breach of the Law which no doubt they had done if not convinced that by taking the Oath he had satisfied the Act of Parliament which things in true dealing and the construction of all honest men are the same as if the Oath had been required of him by the Council in the very sense and words of this Explanation Neither is it material whether the Explanation offered by the Earl doth deserve as certainly it doth not these many ill names which the Advocate would fix upon it because though it had been much worse than it is yet being offered to the Council and submitted to their judgment and they having accepted of it the thing became quasi res judicata and cannot be retracted without subverting the surest Rules both of Truth and Government The Advocate indeed tells us 1. That the Council heard not the Earl's Explanation But I have already told you they did hear it and the Earl is still ready to prove it And suppose some say they did not hear it
of Justitiary before pronouncing sentence but without any answer or effect It was then commonly said that by the old Law and Custom the Court of Justitiary could no more in the case of Treason than of any other Crime proceed further against a Person not compearing and absent than to declare him Out-Law and Fugitive And that albeit it be singular in the case of Treason that the Trial may go on even to a final Sentence though the Party be absent yet such Trials were only proper to and always reserved for Parliaments And that so it had been constantly observed until after the Rebellion in the Year 1666 But there being several Persons notourly engaged in that Rebellion who had escaped and thereby withdrawn themselves from Justice it was thought that the want of a Parliament for the time ought not to afford them any immunity and therefore it was resolved by the Council with advice of the Lords of Session that the Court of Justitiary should summon and proceed to trial and sentence against these Absents whether they compeared or not and so it was done Only because the thing was new and indeed an innovation of the old Custom to make all sure in the first Parliament held thereafter in the Year 1669. it was thought fit to confirm these Proceedings of the Justitiary in that point and also to make a perpetual Statute that in case of open Rebellion and Rising in Arms against the King and Government the Treason in all time coming might by an Order from His Majesty's Council be tried and the Actors proceeded against by the Lords of Justitiary even to final sentence whether the Traytors compeared or not This being then the present Law and custom it is apparent in the first place that the Earl's Case not being that of an open Rebellion and Rising in Arms is not at all comprehended in the Act of Parliament So that it is without question that if in the beginning he had not entered himself Prisoner but absented himself the Lords of Justiciary could not have gone further than upon a citation to have declared him Fugitive But others said that the Earl having both entered himself Prisoner and compeared and after debate having been found guilty before he made his escape the case was much altered And whether the Court could notwithstanding of the Earl's intervening escape yet go on to sentence was still debatable for it was alledged for the affirmative that seeing the Earl had twice compeared and that after debate the Court had given judgment and the Assize returned their Verdict so that had nothing remained but the pronouncing of Sentence it was absurd to think that it should be in the power of the Party thus accused and found guilty by his escape to frustrate Justice and withdraw himself from the punishment he deserved But on the other hand it was pleaded for the Earl That first It was a fundamental Rule That until once the Cause were concluded no Sentence could be pronounced Next that it was a sure Maxim in Law that in Criminal Actions there neither is or can be any other conclusion of the cause than the Parties presence and silence So that after all that had past the Earl had still freedom to add what he thought fit in his own defence before pronouncing sentence and therefore the Lords of Justiciary could no more proceed to sentence against him being escaped than if he had been absent from the beginning the Cause being in both cases equally not concluded and the principle of Law uniformly the same viz. That in Criminals except in cases excepted no final sentence can be given in absence For as the Law in case of absence from the beginning doth hold that just temper as neither to suffer the Contumacious to go altogether unpunished nor on the other hand finally to condemn a party unheard And therefore doth only declare him Fugitive and there stops So in the case of an Escape before Sentence where it cannot be said the Party was fully heard and the Cause concluded the Law doth not distinguish nor can the parity of Reason be refused Admitting then that the Cause was so far advanced against the Earl that he was found guilty Yet 1. This is but a declaring of what the Law doth as plainly presume against the Party absent from the beginning and consequently of it self can operate no further 2dly The finding of a Party guilty is no conclusion of the Cause And 3dly As it was never seen nor heard that a Party was condemned in absence except in excepted Cases whereof the Earl's is none so he having escaped and the Cause remaining thereby unconcluded the general rule did still hold and no sentence could be given against him It was also remembred that the Dyets and days of the Justice Court are peremptour and that in that case even in Civil far more in Criminal Courts and Causes a Citation to hear Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the general Opinion That seeing the denouncing the Earl Fugitive would have wrought much more in Law than all that was commonly said at first to be designed against him And that his Case did appear every way so favourable that impartial men still wondered how it came to be at all questioned It had been better to have sisted the Process with his Escape and taken the ordinary course of Law without making any more stretches But as I have told you when the Friday came the Lords of Justiciary without any respect or answer given to the Petition above-mentioned given in by the Countess of Argyle to the Court for a stop pronounced Sentence first in the Court and then caused publish the same with all solemnity at the Mercat-Cross at Edinburgh FOrasmuch as it is found by an Assize That Archibald Earl of Argyle is guilty and culpable of the Crimes of Treason Leasing-making and Leasing-telling for which he was detained within the Castle of Edinburgh out of which he has now since the said Verdict made his Escape Therefore the Lords Commissioners of Justiciary decern and adjudge the said Archibald Earl of Argyle to be execute to the death demained as a Traytor and to underly the pains of Treason and other punishments appointed by the Laws of this Kingdom when he shall be apprehended at such a time and place and in such manner as his Majesty in his Royal pleasure shall think fit to declare and appoint And his Name Memory and Honours to be extinct And his Arms to be riven forth and delete out of the Books of Arms swa that his Posterity may never have place nor be able hereafter to bruick or joyse any Honour Offices Titles or Dignities within this Realm in
but not at all by the Main-guard and then after the great Gate was opened and the lower Guard drawn out double to make a Lane for his Company one of the Guard who opened the Gate took him by the Arm and viewed him but it pleased God he was not discerned When he was out he was not fully resolved whither to go Home he had judged safest but he thought it might breed Mistakes and Trouble that he designed not So he resolved to go for England and to take the Road That by Post he might be His Majesty's first informer of his escape But being disappointed of Horses that he expected he found that the notice of his escape was got before him and soon after as he came the length of Newcastle heard that His Majesty had given way to pronounce Sentence against him according as he had apprehended from the circumstances and other grounds I have told you which made him judge it would be an undiscreet presumption in that state to offer himself to his Majesty while he knew none durst address him and so he rather chused to shift in the wide World till His Majesty might be at some greater freedom both to understand his Case and apply suitable Remedies His Majesty's clear and excellent understanding and gracious and benign disposition do fully assure him that His Majesty doth not in His thoughts charge him with the least Disloyalty and that he hath no Complacence in his ruine But if His Majesty do at present lye under the pressure of some unlucky influences not so easie to his Royal inclinations the Earl it seems thinks it reasonable to wait patiently for a better opportunity It may indeed appear strange that Innocence and Honour oppressed in his Person almost beyond a parallel should not ere now have constrained him to some publick Vindication especially when to the horrid Sentence given against him his Adversaries have further prevailed to cause His Majesty dispose not only of his Heritable Offices and Jurisdictions the pretended eye-sore but also upon his whole Estate and Fortune with as little consideration of the Earl's personal Interest as if he had fallen for the blackest Treason and most atrocious Perduellion But besides that some things are of themselves so absurdly wicked that all palliating pretences do only render them the more hateful and the very simple hearing doth strike with an horrour not to be heightned by any representation Next that the Earl being so astonishingly overtaken for words as fairly and honestly uttered as he could possibly devise doth with reason apprehend that there is nothing he can say in this matter though with the serenest mind and in the greatest truth and fobriety that may not be construed to flow from a design to lay blame where hitherto he hath been tender to give any ground of offence I say besides these things he is withal I know most firmly persuaded That if ever he shall have the happiness to be once heard by His Majesty and in his presence allowed to explain a few Particulars in Duty here omitted His Majesty's Justice and Goodness will quickly dispel all the Clouds that now hang over him and restore him to that favour wherein he hath sometime reckoned himself very happy and which he will ever be most ready to acknowledg And therefore all that in the mean time he judged necessary or would give way to was that for preserving the remembrance of so odd a Transaction until a more seasonable juncture some Memorials should be drawn and deposited in sure keeping which being grown under my hand unto this Narrative I thought I could not better observe his Order than by transmitting it to your faithful custody I have carefully therein observed the Truth in point of fact avouching nothing but upon the best and clearest evidence can possibly be expected nor have I as to the manner licenced or indulged my self in any severity of expression which I thought could be justly in such a case omitted without betraying the Cause Yet if you now or any other hereafter shall judge that I do sometime exceed let it not be imputed to him for as he did indeed charge me to guard against any more warm or vehement expression than the merit and exigence of the subject do indispensibly require so I am assured that he silently and patiently waits on the Lord committing his way to him and trusting in him that he may bring it to pass and that He shall bring forth his righteousness as the light and his judgment as the noon-day POSTSCRIPT SIR HAving in this Narrative sometimes adduced as you have seen the Advocate 's own Authority ad hominem I shall here as I promised subjoin such passages out of his Printed Book as though they deserved not a place above may yet make a pertinent Postscript And omitting what in that Book called The Laws and Customs of Scotland in Matters Criminal he frequently repeats from the known grounds of Law of the nature of Crimes and the design of Criminal Laws viz. That as there can be no Crime without a fraudulent purpose either apparent or proven So it was the design of Lawgivers only to punish such Acts as are designedly malicious I desire you only to consider the particulars following And 1. Pag. 11. l. 7. of his Book of Criminals having made the question Whether what tends to a Crime not perfected doth fall under the Statue or Law by which that Crime to which it approaches is punished He instances in the Crime of Misconstruing His Majesty's Government and Proceedings or depraving his Laws which as he says is punishable by death Ja. 6. Par. 10. Act 10. And then further moves Whether Papers as tending to misconstrue His Majesty's Proceedings and Government or bearing insinuations which may raise in the people jealousy against the Government be punished by that Law Which being one of the great Crimes pretended and libelled against the Earl I shall here omitting his Reasons in the affirmative which have not the least ground in the Earl's Case as you have heard represent to you how exactly he himself and others have acted for the Earl's overthrow all these dangerous and pernicious things from which he argues in the Negative His words then are these And that such insinuations and tendencies are not punished criminally He says 1. It is the interest of mankind to know expresly what they are to obey especially where such great Certifications are annexed as in Crimes 2. The Law having taken under its consideration this guilt has punished the actual misconstruing or depraving but has not declared such insinuations or tendencies punishable Et in statutis casus omissus habetur pro omisso 3. This would infallibly tend to render all Judges Arbitrary for tendencies and insinuations are in effect the product of conjecture and Papers may seem innocent or criminal according to the zeal or humour as well as malice of Judges Men being naturally prone to differ in such consequential inferences
That Parliaments are part of the frame of the Common-Law which is laid in the Law and Light of Nature right Reason and Scripture 2. That according to this Moral Law of Equity and Righteousness Parliaments ought frequently to meet for the common peace safety and benefit of the People and support of the Government 3. That Parliaments have been all along esteemed an essential part of the Government as being the most ancient honourable and Sovereign Court in the Nation who are frequently and perpetually to sit for the making and abolishing Laws Redressing of Grievances and see to the due administration of Justice 4. That as to the place of Meeting it was to be at London the Capital City the Eye and Heart of the Nation as being not only the Regal Seat but the principal place of Judicature and residence of the chief Officers and Courts of Justice where also the Records are kept as well as the principal place of Commerce and Concourse in the Nation and to which the People may have the best recourse and where they may find the best accommodation 5. The Antiquity of Parliaments in this Nation which have been so ancient that no Record can give any account of their Beginning my Lord Coke thus tracing them from the Britains through the Saxons Danes and Normans to our days So that not to suffer Parliaments to sit to answer the great ends for which they were Instituted is expresly contrary to the Common Law and so consequently of the Law of God as well as the Law of Nature and thereby Violence is offered to the Government it self and Infringement of the Peoples fundamental Rights and Liberties Secondly What we find hereof in the statute-Statute-Law The Statute Laws are Acts of Parliament which are or ought to be only Declaratory of the Common Law which as you have heard is founded upon right Reason and Scripture for we are told that if any thing is Enacted contrary thereto it is void and null As Coke Inst l. 2. c 29. f. 15. Finch p. 3. 28 H. 8. c. 27. Doct. and Stud. The first of these Statures which require the frequent Meeting and Sitting of Parliaments agreeable to the Common Law we find to be in the time of Ed. 3. viz. 4 Ed. 3. ch 14. In these words ' Item It is accorded that a Pariament shall be holden every year once or more often if need be The next is in the 36 of the same K. Ed. 3. c. 10. viz. Item For the maintenance of the said Articles and Statutes and Redressing of divers Mischiefs and Grievances which dayly happen a Parliament shall be holden every year as at another time was ordained by a Statute viz. the aforementioned in his 4th year And agreeable hereto are those Statutes upon the Rolls viz. 5 Ed. 2. 1 R. 2. No. 95. By which Statutes it appeareth That Parliaments ought annually to meet to support the Government and to redress the Grievances which may happen in the Interval of Parliaments That being the great End proposed in their said Meetings Now for Parliaments to meet Annually and not suffered to sit to Answer the Ends but to be Prorogued or Dissolved before they have finished their Work would be nothing but a deluding the Law and a striking at the foundation of the Government it self and rendering Parliaments altogether useless for it would be all one to have No Parliaments at all as to have them turn'd off by the Prince before they have done that that they were called and intrusted to do For by the same Rule whereby they may be so turn'd off one Session they may be three Sessions and so to threescore to the breaking of the Government and introducing Arbitrary Power To prevent such intollerable Mischiefs and Inconveniencies are such good Laws as these made in this King's time and which were so Sacredly observed in after times That it was a Custom especially in the Reigns of H. 4. H 5. H. 6. to have a Proclamation made in Westminster-Hall before the end of every Session * An honest and a necessary Proclamation to be made every Parliament That all those who had any matter to present to the Parliament should bring it in before such a day for otherwise the Parliament at that day should Determine Whereby it appears the People were not to be eluded nor disappointed by surprizing Prorogations and Dissolutions to frustrate and make void the great ends of Parliaments And to this purpose saith a late Learned Author That if there was no Statute or any thing upon record extant concerning the Parliaments sitting to redress grievances yet that I must believe that it is so by the fundamental Law of the Government which must be lame and imperfect without it For otherwise the Prince and his Ministers may do what they please and their Wills may be their Laws Therefore it is provided for in the very Essence and Constitution of the Government it self and this saith our Author we may call the common-Common-Law which is of as much value if not more than any Statute and of which all our good Acts of Parliament and Magna-Charta it self is but Delaratory so that though the King is intrusted with the formal part of summoning and pronouncing the Dissolution of Parliaments which is done by Writ yet the Laws which oblige him as well as us have determined how and when he shall do it which is enough to shew that the King's share in the Soveraignty that is in the Parliament is cut out to him by Law and not left at his disposal The next Statute we shall mention to inforce this fundamental Right and Privilege 25 Ed. 3. c. 23. Statute of Provisors is the 25th Ed. 3. ch 23. called the Statute of Provisors which was made to prevent and cut off the Incroachments of the Bishops of Rome whose Usurpations in disposing of Benefices occasioned intollerable Grievances wherein in the Preamble of the said Statute it is expressed as followeth Whereupon the Commons have prayed our said Soveraign Lord the King that sith the Right of the Crown of England and the Law of the said Realm is such that upon the Mischiefs and Damage which happeneth to his Realm be ought and is bounden of the accord of his said People in his Parliament thereof to make Remedy and Law in avoiding the Mischiefs and Damage which thereof cometh That it may please him thereupon to provide Remedy Our Soveraign Lord the King seeing the Mischiefs and Damage before-named and having regard to the said Statute made in the time of his said Grand-Father and to the Causes contained in the same which Statute holdeth always his force and was never defeated or annulled in any point and by so much is bound by his Oath to do the same to be kept as the Law of this Realm tho that by Sufferance and Negligence it hath since been attempted to the contrary And also having regard to the grievous Complainte made to him by his
was used c. returned by the Sheriffs c. without any denomination to the Sheriffs See Coke's Instit 3d part fol. 33. c. according to the Law of England and if any Indictment be made hereafter in any point to the contrary the same be also void and holden for none for ever See also the Statute of Westm 2d cap. 38. and Articul super Cortas cap. 9. So careful have our Parliaments been that the power of Grand Inquests might be placed in the hands of good and worthy men that if one man of a Grand Inquest though they be Twenty three or more should not be Liber Legalis Homo or such as the Law requires and duly returned without denomination to the Sheriff all the Indictments found by such a Grand Jury and the proceedings upon them are void and null So it was adjudged in Searlet's Case I know too well that the Wisdom and Care of our Ancestors in this Institution of Grand Juries hath not been of late considered as it ought nor the Laws concerning them duly observed nor have the Gentlemen and other men of Estates in the several Counties discerned how insensibly their Legal Power and Jurisdiction in their Grand and Petit Juries is decayed and much of the means to preserve their own Lives and Interests taken out of their hands 'T is a wonder that they were not more awakened with the Attempt of the late L. Ch. K. who would have usurped a Lordly Dictatorian power over the Grand Jury of Somersetshire and commanded them to find a Bill of Indictment for Murther for which they saw no Evidence and upon their refusal he not only threatned the Jury but assumed to himself an Arbitrary Power to fine them Here was a bold Battery made upon the ancient Fence of our Reputations and Lives If that Justice's Will had passed for Law all the Gentlemen of the Grand Juries must have been theâ— basest Vassals to the Judges and have been penally obliged Jurare in Verba Magistri to have sworn to the Directions or Dictates of the Judges But thanks be to God the late long Parliament though filled with Pensioners could not bear such a bold Invasion of the English Liberty but upon the Complaint of one Sir Hugh Windham Foreman of the said Jury and a Member of that Parliament the Commons brought the then Chief Justice to their Bar to acknowledge his fault whereupon the Prosecution ceased The Trust and Power of Grand Juries is and ought to be accounted amongst the greatest and of most concern next to the Legislative The Justice of the whole Kingdom in Criminal Cases almost wholly depending upon their Ability and Integrity in the due execution of their Office Besides the Concernments of all Commoners the Honour Reputation Estates and Lives of all the Nobility of England are so far submitted to their Censure that they may bring them into question for Treason or Felony at their Discretion Their Verdict must be entred upon Record against the greatest Lords and process must legally go out against them thereupon to imprison them if they can be taken or to outlaw them as the Statutes direct and if any Peer of the Realm though innocent should justly fear a Conspiracy against his Life and think fit to withdraw the direction of the Statutes in proceeding to the Outlawry being rightly pursued he could never reverse the Outlawry as the Law now stands save by Pardon or Act of Parliament Hence it appears that in case a Grand Jury should be drawn to indict a Noble Peer unjustly either by means of their own weakness or partiality or a blind submission to the Direction or Opinion of Judges One such failure of a Jury may occasion the Ruine of any of the best or greatest Families in England I mention this extent of the Grand Juries Power over all the Nobility only to shew their joint Interest and Concern with the Commons of England in this ancient Institution The Grand Juries are trusted to be the princpal means of preserving the Peace of the whole Kingdom by the terror of executing the Penal Laws against Offenders by their Wisdom Diligence and Faithfulness in making due Inquiries after all Breaches of the Peace and bringing every one to answer for his Crime at the peril of his Life Limb and Estate that every man who lives within the Law may sleep securely in his own House 'T is committed to their Charge and Trust to take care of bringing Capital Offenders to pay their Lives to Justice and lesser Criminals to other punishments according to their several demerits The Courts or Judges or Commissioners of Oyer and Terminer and of Goal-Delivery are to receive only from the Grand Inquest all Capital Matters whatsoever to be put in issue tried and judged before them by the Petit Juries The whole stream of Justice in such Cases either runs freely or is stopped and disturbed as the Grand Inquests do their Duties either faithfully and prudently or neglect or ornit them And as one part of their Duty is to indict Offenders so another part is to protect the Innocent in their Reputations Lives and Interests from false Accusers and malicious Conspirators They are to search out the Truth of such Informations as come before them and to reject the Indictment if it be not sufficiently proved and farther if they have reasonable suspicion of Malice or wicked Designs against any Man's Life or Estate by such as offer a Bill of Indictment the Laws of God and of the Kingdom bind them to use all possible means to discover the Villany and if it appear to them whereof they are the Legal Judges to be a Conspiracy or malicious Combination against the Accused they are bound by the highest Obligations upon Men and Christians not only to reject such a Bill of Indictment but to indict forthwith all the Conspirators with their Abettors and Associates Doubtless there hath been Pride and Covetousness Malice and desire of Revenge in all Ages from whence have sprung false Accusations and Conspiracies but no Age before us ever hatched such Villanies as our Popish Faction have contrived against our Religion Lives and Liberties No History affords an Example of such Forgeries Perjuries Subornations and Combinations of infamous Wretches as have been lately discovered amongst them to defame Loyal Innocent Protestants and to shed their guiltless Blood in the Form and Course of Justice and to make the King 's most faithful Subjects appear to be the vilest Traitors unto him In this our miserable State Grand Juries are our only security inasmuch as our Lives cannot be drawn into jeopardy by all the malicious Crafts of the Devil unless such a number of our honest Countrymen shall be satisfied in the truth of the Accusations For prevention of such Plotters of wickedness as now abound was that Statute made in the 42 of E. 3.3 See the Stat. 42 E. 3.3 in these words To eschew the mischiefs and damage done to divers
that kind ought to have no place in judicial proceedings against suspected Criminals but truth is only to be regarded and for this reason the Judgments given in Court of humane Institution are in Scripture called the Judgments of God who is the God of truth Yet further If any benefit to the King could be imagined by making the Evidence to the Grand Jury publick it could not come in competition with the Law expressed in their Oath which by constant uninterrupted usage for so many Ages hath obtained the force of Law Bracton and Britton in their several Generations bear witness that it was then practised and greater proof of it needs not be sought than the Disputes that appear by the Law-Books to have been amongst the ancient Lawyers whether it was Treason or Felony for a Grand-Jury to discover either who was indicted or what Evidence was given them The Trust of the Grand Juries was thought so sacred in those Ages and their secrecy of so great concern to the Kingdom that whosoever should break their Oath therein was by all thought worthy to die Co. Instit 3d part p. 107. Rulls Indic 771. only some would have had them suffer as Traytors others as Felons And at this day it is held to be a high Misprision punishable by Fine and Impoverishment The Law then having appointed the Evidence to be given to Grand Juries in secret the King cannot desire to have it made publick He can do no wrong saith the old Maxime that is He can do nothing against the Law nor is any thing to be judged for his benefit that is not warranted by Law His Will Commands and Desires are therein no otherwise to be known He cannot change the legal Method or manner of enquiring by Juries nor vary in any particular case from the customary and general forms of judicial proceedings he can neither abridge nor enlarge the power of Juries no more than he can lessen the legal Power of the Sheriffs or Judges or by special Direction order the one how they shall execute Writs and the other how they shall give Judgments though these made by himself 'T is criminal no doubt for any to say that the King desires a Court of Justice or a Jury to vary from the direction of the Law and they ought not to be believed therein If Letters Writs or other Commands should come to the Judges for that purpose they are bound by their Oaths not to regard them but to hold them for null the Statutes of 2 E. 3.8 and 20 E. 3.1 are express That if any Writs or Commandments come to the Justices in disturbance of the Law or the Execution of the same or of right to the Parties they shall proceed as if no such Letters Writs or Commands were come to them And the substance of these and other Statutes is inserted into the Oath taken by every Judge and if they be under the most solemn and sacred Tye in the Execution of Justice to hold for nothing or none the Commands of the King under the Great Seal surely the Word or Desire of an Attorney-General in the like case ought to be less than nothing Besides they are strangely mistaken who think the King can have an Interest different from or contrary unto that of the Kingdom in the prosecution of Accused Persons His Concernments are involved in those of his People and he can have none distinct from them He is the Head of the Body Politick and the legal Course of doing Justice is like the orderly circulation of the Blood in the Natural Bodies by which both Head and Body are equally preserved and both perish by the interruption of it The King is obliged to the utmost of his Power to maintain the Law and Justice in its due course by his Coronation Oath and the Trust thereby reposed in him In former Ages he was conjured not to take the Crown unless he resolved punctually to observe it Brom. p. 1159. Mat. Paris p. 153. Bromton and others speaking of the Coronation of Richard the first delivered it thus That having first taken the Oath Deinde indutus Mantello ductus est ad Altare conjuratus ab Archiepiscopo prohibitus ex parte Dei ne hunc Honorem sibi assumat nisi in mente habeat tenere Sacramenta Vota quae superius fecit Et Ipse respondit se per Dei auxilium omnia supradicta observaturum bona fide Deinde cepit Corâ—nam de Altari tradidit eam Archiepiscopo qui posuit eam super caput Regis sic Coronatus Rex ductus est ad sedem suam Afterward cloathed with the Royal Robe he is led to the Altar and conjured by the Archbishop and forbid in the Name of God not to assume that Honour unless he intended to keep the Oaths and Vows he had before made and he answered By God's help he would faithfully observe all the Premises and then he took the Crown from off the Altar and delivered it to the Archbishop who put it upon the King's Head and the King thus Crowned is led unto His Seat The violation of which Trust cannot but be as well a wound unto their Consciences as bring great Prejudice upon their Persons and Affairs The common-Common-Law that exacts this doth so far provide for Princes That having their minds free from cares of preserving themselves they may rest assured that no Acts Words or Designs that may bring them into danger can be concealed from the many Hundreds of Men who by the Law are appointed in all parts of the Kingdom watchfully to take care of the King and are so far concerned in His safety that they can hope no longer to enjoy their own Lives and Fortunes in Peace than they can preserve him and the good Order which according to the Laws he is to uphold It is the joynt Interest of King and People that the ancient Rules of doing Justice be held sacred and inviolable and they are equally concerned in causing strict enquiries to be made into all Evidences given against suspected or accused Persons that the Truth may be discovered and such as dare to disturb the Publick Peace by breaking the Laws may be brought to punishment And the whole course of Judicial Proceedings in Criminal Causes shews that the People is therein equally concerned with the King whose name is used This is the ground of that distinction which Sir Ed. Coke makes between the Proceedings in Pleas of the Crown and Actions for wrongs done to the King himself In Pleas of the Crown or other common offences nusances c. Co. 3d. Inst pag. 136. principally concerning others or the Publick there the King by Law must be apprised by Indictment Presentment or other matter of Record but the King may have an Action for such wrong as is done is himself and whereof none other can have an Action but the King without being apprised by Indictment Presentment or other matter of Record
be advanced by the formality of Verdicts if Grand Juries be overawed or not suffered to enquire into the Truth to the satisfaction of their Consciences Every Man whilst he lives innocently doth under God place his hopes of security in the Law which can give no protection if its due course be so interrupted that frauds cannot be discovered Witnesses may as well favour Offenders as give false testimony against the guiltless and if they by hearing what each other saith are put into a way of concealing their villainous designs there can be no legal Revenge of the crimes already committed Others by their impunity will be encouraged to do the like And every quiet minded Person will be equally exposed unto private injuries and such as may be done unto him under the colour of Law No man can promise unto himself any security for his Life or Goods and they who do not suffer the utmost violences in their own persons may do it in their Children Friends and nearest Relations if he be deprived of the remedies that the Law ordains and forced to depend upon the Will of a Judge who may be and perhaps we may say are too often corrupted or swayed by their own Passions Interests or the impulse of such as are greater than they This mischief is aggravated by a commonly received Opinion that whosoever speaks against an accused person is the King's Witness and the worst of men in their worst designs do usually shelter themselves under that name whereas he only is the King's Witness who speaks the truth whether it be for or against him that is accused As the Power of the King 's the Power of the Law he can have no other intention than that of the Law which is to have Justice impartially administred and as he is the Father of his People he cannot but incline ever to the gentlest side unless iâ— be possible for a Father to delight in the destruction or desire to enrich himself by the confiscation of his Childrens Estates If the most wicked Princes have had different thoughts that have been obliged to dissemble them We know of none worse than Nero but he was so far from acknowledging that he desired any Man's condemnation that he looked upon the necessity of signing Warrants for the Execution of * Sne. Vit. Ner. Vtinam nescirem letteras Malefactors as a burthen and rather wished he had not learnt to write than to be obliged to do it They who by spreading such barbarous errours would create unto the King an interest different from that of his People which he is to preserve whilst they pretend to serve him in destroying of them they deprive him of his honour and dignity Justice is done in all places in the name of the chief Magistrate it being presumed that he doth embrace every one of his Subjects with equal tenderness until the guilty are by legal proofs discriminated from the Innocent and amongst us the King's name may be used in civil cases as well as criminal But it is as impossible for him rightly to desire I should be condemned for killing a Man whom I have not killed or a Treason that I have not committed as that my Land should be unjustly taken from me by a judgment in his Bench or I should be condemned to pay a debt that I do not owe. In both Cases we sue unto him for Justice and demand it as our right We are all concerned in it publickly and privately and the King as well as all the Officers of Justice are by their several Oaths obliged in their respective capacities to perform it They are bound to give their assistance to find out Offenders and the King's Attorney is by his Oath to prosecute them if he be required and he is not only the King's servant in such cases but the Nations or rather cannot otherwise serve the King than by seeing Justice done in the Nation Whensoever any Man receives an injury in his Person Wife Children Friends or Goods the King is injured in as much as he is by his Office to prevent such mischief and ought to be concerned in the Welfare of every one of his Subjects but the parties to whom the injuries are done are the immediate sufferers and the prosecution is principally made that they may be repared or revenged and other innocent persons secured by the punishment of Offenders in which the King can be no otherwise concerned than as he is to see his Office faithfully performed and his People protected The King's suit therefore is in the behalf of his People yet the Law leaves unto every man a Liberty in case of Treasons Murthers Rapes Robberies c. to sue in the King's name and crave his aid or by way of appeal in his own The same Law looks upon Felons or Traitors as publick Enemies and by authorizing every one to pursue or apprehend them teacheth us that every man in his place ought to do it The same Act whereby one or a few are injured threatneth all and every Man 's private interest so concurs with that of the publick that all depends upon the exact preservation of the Method prescribed by the Law for the impartial inquisition after suspected Offenders and most tender care of preserving such as are innocent As this cannot possibly be effected without secret and separate examinations the forbidding them is no less than to change the Course which is enjoyned by Law confirmed by custom and grounded upon Reason and Justice If on the other side any man believe that such as in the King's name prosecute suspected Delinquents ought only to try how they may bring them to be condemned he may be pleased to consider that all such persons ought according unto Law to produce no Witness whom they do not think to be true No Evidence which they do not believe good nor can conceal any thing that may justifie the accused No trick or Artifice can be lawfully used to deceive a Grand Jury or induce them to find or reject a Bill otherwise than as they are led by their own Consciences All Lawyers were anciently sworn to put no deceit upon the Courts for their Clients sake and there are Statutes still in force to punish them if they do it but there is an eternal obligation upon such as are of Counsel against persons accused of Crimes not to use such Arts as may bring the Innocent to be condemned and thereby parvert that which is not called the Judgment of Man but of God because Man renders it in the stead and by the Commandment of God such practices exalt the Jurisdiction of Tribunals but infect and polute them with that Innocent Blood which will be their overthrow And least of all can it be called a Service to the King since none could ever stand against the cry of it This is necessarily implyed in the Attorney General 's Oath to serve the King in his Kingly Office wherein the Law presumes he can
do no wrong But the greatest of all wrongs and that which hath been most destructive unto Thrones is by Fraud to circumvent and destroy the Innocent This is to turn a Legal King into a Nimrod a Hunter of Men This is not to act the part of a Father or a Shepherd who is ready to lay down his Life for his Sheep but such as the Psalmist complains of who eat up the People as if they eat Bread Jezebel did perhaps applaud her own Wit and think she had done a great Service to the King by finding out Men of Belial Judges and Witnesses to bring Naboth to be stoned but that unregarded Blood was a Canker or the Plague of Leprosie in his Throne and Family which could not be cured but by its overthrow and extinction But if the Attorney General cannot serve the King by abusing Juries and subverting the Innocent he can as little gain an advantage to himself by falsifying his Oath by the true meaning whereof he is to prosecute Justice Impartially and the Eternal Divine Law would annul any Oath or Promise that he should have taken to the contrary even though his Office had obliged him unto it The like Obligation lies upon Jurors not to suffer themselves to be deluded or persuaded that the Judges King's Council or any others can dispense with that Oath or any part of it which they have taken before God unto the whole Nation nor to think that they can swerve from the Rules set by the Law without a damnable breach of it The pwoer of relating or dissolving Conscientious Obligations acknowled in the Pope makes a great part of the Roman Superstition and that grand Impostor could never corrupt Kingdoms and Nations to their destruction and the Establishment of his Tyranny until he had brought them to believe he could dispense with Oaths taken by Kings unto their Subjects and by Subjects to their Kings nor impose so extravagant an Errour upon either until he had persuaded them he was in the place of God It is hard to say how the Judges or King's Council can have the same Power unless it be upon the same Title but we may be sure they may as well dispense with the whole Oath as any part of it and can have no pretence unto either unless they have the Keys of Heaven and Hell in their keeping It is in vain to say the King as any other man may remit the Oath taken unto and for himself He is not a party for himself but in the behalf of his People and cannot dispose of their Concernments without their Consent which is given only in Parliament The King's Council ought to remember they are in criminal Cases of Council unto every man in the Kingdom It is no ways referred unto the Direction of the Judges or unto them whether that secrecy enjoyned by Law be profitable unto the King or Kingdom They must take the Law as it is and render Obedience unto it until it be altered by the Power that made it To this end the Judges by Acts of Parliament viz. 18 Ed. 3. cap. 8. and 20 Ed. 3. cap. 1. are sworn to serve the People Ye shall serve our Lord the King and his People in the Office of Justice c. Ye shall deny to no man common Right by the King's Letters nor no other mans nor for no other cause and in default thereof in any point they are to forfeit their Bodies Lands and Goods This proves them to be the Peoples Servants as well as the Kings Further by the express words of the Commissions of Oyer and Terminer they are required to assist every man that suffers injury and make diligent inquisition after all manner of falshoods deceits offences and wrongs done to any man and thereupon to do Justice according to the Law so that in the whole proceedings in order unto Tryal and in the Tryals themselves the Thing principally intended which several persons are severally in their capacities obliged to pursue is the discovery of Truth The Withesses are to depose the Truth the whole Truth and Nothing but the Truth Thereupon the Council for the King are to prosecute The Grand Jury to present and the Petit Jury to try These are several Offices but all to the same End 'T is not the Prisoner but the Crime that is to be pursued This primarily the Offender but by consequence and therefore such Courses must be taken as may discover that and not such as may ensnare him When the Offence is found the impartial Letter of the Law gives the Doom and the Judges have no share in it but the pronouncing of it Till then the Judges are only to preside and take Care that every man else who is employed in this necessary Affair do his duty according to Law So that upon result of the whole transaction impartial Justice may be done either to the Acquittal or condemnation of the Prisoner Hereby it is manifest why the Judges are obliged by Oath To Serve the People as well as the King And by Commission To Serve every One that Suffers Injuries As they are to See that Right be done to the King and His injur'd Subjects in discovering of the Delinquent So they are to be of Council with the Prisoner whom the Law supposeth may be ignorant as well as innocent and therefore has provided that the Court shall be of Council for him and as well inform him of what Legal advantages the Law allows him as to resolve any point of Law when he shall propose it to them And it seems to be upon the presumption of this steady impartiality in the Judges thus obliged by all that is held Sacred before God and man to be unbyassed that the Prisoner hath no Council for if the Court faithfully perform their duty the Accused can have no wrong or hardship and therefore needs no Adviser Now suppose a man perfectly innocent and in some measure knowing in the Law should be accused of Treason or Felony If the Judges shall deny unto the Grand Jury the liberty of examining any Witnesses except in open Court where nothing shall be offered that may help to clear the Prisoner but every Thing aggravated that gives colour for the Accusation such Persons only produced as the King's Council or the Prosecutors shall think fit to call of whose Credit also the Jury must not inquire but shall be controll'd and brow-beaten in asking Questions of such unknown Witnesses for their own Satisfaction if they have any Tendency to discover the Infamy of these Witnesses or the Falshood of their Testimony How can Innocence secure any Man from being arraigned And if the Oath of the Judges should be as much forgotten in the further Proceedings upon the Trial where in Cases of Treason the Prisoner shall have all the King's Council commonly not the most unlearned prepared with studied Speeches and Arguments to make him black and odious and to Strain all his words and to alledge them
of England though I could never yet comply with or rise up to all the heights of many People I wish with all my Soul all our unhappy Differences were removed and that all sincere Protestants would so far consider the Danger of Popery as to lay aside their Heats and agree against the Common Enemy and that the Church-men would be less severe and the Dissenters less scrupulous For I think Bitterness and Persecution are at all times bad but much more now For Popery I look on it as an Idolatrous and Bloody Religion and therefore thought my self bound in my station to do all I could against it And by that I foresaw I should proture such great Enemies to my self and so powerful ones that I have been now for some time expecting the worst And blessed be God I fall by the Axe and not by the Fiery Tryal Yet whatever apprehensions I had of Popery and of my own severe and heavy share I was like to have under it when it should prevail I never had a thought of doing any thing against it basely or inhumanely but what could well consist with the Christian Religion and the Laws and Liberties of this Kingdom And I thank God I have examin'd all my actings in that matter with so great care that I can appeal to God Almighty who knows my heart that I went on sincerely without being moved either by Passion By-ends or ill-design I have always loved my Country much more than my life and never had any Design of changing the Government which I value and look upon as one of the best Governments in the World and would always have been ready to venture my life for the preserving it and would have suffered any Extremity rather than have consented to any Design to take away the King's Life Neither ever had Man the impudence to propose so base and barbarous a thing to me And I look on it as a very unhappy and uneasy part of my present Condition That in my Indictment there should be so much as mention of so vile a Fact tho' nothing in the least was said to prove any such Matter but the contrary by the Lord Howard Neither does any body I am confident believe the least of it So that I need not I think say more For the King I do sincerely pray for him and wish well to him and to the Nation That they may be happy in one another that he may be indeed the Defender of the Faith That the Protestant Religion and the Peace and Safety of the Kingdom may be preserved and flourish under his Government and that He in his Person may be happy both here and hereafter As for the share I had in the Prosecution of the Popish Plot I take God to witness That I proceeded in it in the Sincerity of my heart being then really convinced as I am still that there was a Conspiracy against the King the Nation and the Protestant Religion And I likewise profess That I never knew any thing either directly or indirectly of any Practice with the Witnesses which I look upon as so horrid a thing that I could never have endured it For I thank God Falshood and Cruelty were never in my Nature but always the farthest from it imaginable I did believe and do still That Popery is breaking in upon the Nation and that those who advance it will stop at nothing to carry on their Design I am heartily sorry that so many Protestants give their helping hand to it But I hope God will preserve the Protestant Religion and this Nation Though I am afraid it will fall under very great Tryals and very sharp Sufferings And indeed the Impiety and Prophaneness that abounds and appears so scandalously bare-fac'd every where gives too just reason to fear the worst things which can befall a People I pray God prevent it and give those who have shew'd Concern for the Publick Good and who have appear'd hearty for the true Interest of the Nation and the Protestant Religion Grace to live so that they may not cast a reproach on that which they endeavour to advance which God knows has often given me many sad thoughts And I hope such of my Friends as may think they are touch'd by this will not take what I say in ill part but endeavour to amend their ways and live suitable to the Rules of the true Reformed Religion which is the only thing can administer true Comfort at the latter end and revive a man when he comes to Dye As for my present Condition I bless God I have no repining in my heart at it I know for my Sins I have deserved much worse at the hands of God so that I chearfully submit to so small a Punishment as the being taken off a few years sooner and the being made a Spectacle to the World I do freely forgive all the World particularly those concerned in taking away my life and I desire and conjure my Friends to think of no Revenge but to submit to the holy Will of God into whose Hands I resign my self entirely But to look back a little I cannot but give some touch about the Bill of Exclusion and shew the Reasons of my appearing in that Business which in short is this That I thought the Nation was in such danger of Popery and that the expectation of a Popish Successor as I have said in Parliament put the King's life likewise in such danger that I saw no way so effectual to secure both as such a Bill As to the Limitations which were proposed if they were sincerely offered and had pass'd into a Law the Duke then would have been excluded from the power of a King and the Government quite alter'd and little more than the name of a King left So I could not see either Sin or Fault in the one when all People were willing to admit of t'other but thought it better to have a King with his Prerogative and the Nation easie and safe under him than a King without it which must have bred perpetual Jealousies and a continual struggle All this I say only to justifie my self and not to enflame others Though I cannot but think my Earnestness in that matter has had no small influence in my present Sufferings But I have now done with this World and am going to a Kingdom which cannot be moved And as to the Conspiring to seize the Guards which is the Crime for which I am Condemned and which was made a constructive Treason for taking away the King's Life to bring it within the Statue of Ed. the 3d. I shall give this true and clear account I never was at Mr. Shepheard's with that Company but once and there was no undertaking then of securing or seizing the Guards nor none appointed to view or examine them Some Discourse there was of the feasibleness of it and several times by accident in general Discourse elsewhere I have heard it mention'd as a thing might
Land to cut off these workers of Iniquity whose Religion is Rebellion whose Faith is Faction whose practice is murthering of Souls and Bodies and to root them out of the Confines of this Kingdom VII All the Judges of England are bound by their Oath 18 Edw. III. 20 Edw. III. Cap. 1.2 and by the duty of their place to disobey all Writs Letters or Commands which are brought to them either under the little Seal or under the great Seal to hinder or delay common Right Are the Judges all bound in an Oath and by their places to break the 13 of the Romans VIII The Engagement of the Lords attending upon the King at York June 13. 1642. which was subscribed by the Lord Keeper and Thirty Nine Peers besides the Lord Chief-Justice Banks and several others of the Privy-Council was in these words We do engage our selves not to Obey any Orders or Commands whatsoever not warranted by the known Laws of the Land Was this likewise an Association against the 13 of the Romans IX A Constable represents the King's person and in the Execution of his Office is within the purview of the 13 of the Romans as all Men grant but in case he so far pervert his Office as to break the Peace and commit Murther Burglary or Robbery on the Highway he may and ought to be Resisted X. The Law of the Land is the best Expositor of the 13 of the Romans Here and in Poland the Law of the Land There XI The 13 of the Romans is receiv'd for Scripture in Poland and yet this is expressed in the Coronation Oath in that Country Quod si Sacramentum meum violavero Incola Regni nullam nobis Obedientiam praestare tenebuntur And if I shall violate my Oath the Inhabitants of the Realm shall not be bound to yield me any Obedience XII The Law of the Land according to Bracton is the highest of all the Higher Powers mentioned in this Text for it is superior to the King and made him King Lib. 3. Cap. 26. Rex habet superiorum Deum item Legem per quam factus est Rex item Curiam suam viz. Comites Barones and therefore by this Text we ought to be subject to it in the first place And according to Melancthon It is the Ordinance of God to which the Higher Powers themselves ought to be subject Vol. 3. In his Commentary on the Fifth Verse Wherefore ye must needs be subject not only for Wrath but also for Conscience sake He hath these words Neque vero haec tantum pertinent ad Subditos sed etiam ad Magistratum qui cum fiunt Tyranni non minus dissipant Ordinationem Dei quam Seditiosi Ideo ipsorum Conscientia fit rea quia non obediunt Ordinationi Dei id est Legibus quibus debent parere Ideo Comminationes hic positae etiam ad ipsos pertinent Itaque hujus mandati severitas moveat omnes ne violationem Politici status putent esse leve peccatum Neither doth this place concern Subjects only but also the Magistrates themselves who when they turn Tyrants do no less overthrow the Ordinance of God than the Seditious and therefore their Consciences too are guilty for not obeying the Ordinance of God that is the Laws which they ought to obey So that the Threatnings in this place do also belong to them wherefore let the severity of this Command deter all men from thinking the Violation of the Political Constitution to be a light Sin Corollary To destroy the Law and Legal Constitution which is the Ordinance of God by false and arbitrary Expositions of this Text is a greater Sin than to destroy it by any other means For it is Seething the Kid in his Mothers Milk CHAP. IV. Of LAWS I. THere is no Natural Obligation wereby one Man is bound to yield Obedience to another but what is founded in paternal or patriarchal Authority II. All the Subjects of a patriarchal Monarch are Princes of the Blood III. All the people of England are not Princes of the Blood IV. No Man who is Naturally Free can be bound but by his own Act and Deed. V. Publick Laws are made by publick consent and they therefore bind every man because every man's consent is involved in them VI. Nothing but the same Authority and Consent which made the Laws can Repeal Alter or Explain them VII To judge and determine Causes against Law without Law or where the Law is obscure and uncertain is to assume Legislative power VIII Power assumed without a Man's consent cannot bind him as his own Act and Deed. IX The Law of the Land is all of a piece and the same Authority which made one Law made all the rest and intended to have them all Impartially Executed X. Law on One Side is the Back-Sword of Justice XI The Best Things when Corrupted are the Worst and the wild Justice of a State of Nature is much more desirable than Law perverted and over-rul'd into Hemlock and Oppression Copies of Two Papers Written by the Late King CHARLES II. Published by His MAJESTIES Command Printed in the Year 1686. The First Paper THE Discourse we had the other Day I hope satisfied you in the main that Christ can have but one Church here upon Earth and I believe that it is as visible as that the Scripture is in Print That none can be that Church but that which is called the Roman Catholick Church I think you need not trouble your self with entring into that Ocean of particular Disputes when the main and in truth the only Question is Where that Church is which we profess to believe in the two Creeds We declare there to believe one Catholick and Apostolick Church and it is not left to every phantastical man's head to believe as he pleases but to the Church to whom Christ left the power upon Earth to govern us in matters of Faith who made these Creeds for our Directions It were a very Irrational thing to make Laws for a Country and leave it to the Inhabitants to be the Interpreters and Judges of those Laws For then every man will be his own Judge and by consequence no such thing as either right or wrong Can we therefore suppose that God Almighty would leave us at those uncertainties as to give us a Rule to go by and to leave every man to be his own Judge I do ask any ingenuous man whether it be not the same thing to follow our own Fancy or to interpret the Scripture by it I would have any man shew me where the power of deciding matters of Faith is given to every particular man Christ left his power to his Church even to forgive Sins in Heaven and left his Spirit with them which they exercised after his Resurrection First by his Apostles in these Creeds and many years after by the Council at Nice where that Creed was made that is called by that name and by the power which they
and it is in these Words Which all our Subjects are to obey without reserve And this is the carrying Obedience many sizes beyond what the Grand Seignior ever yet claimed For all Princes even the most violent Pretenders to Absolute Power 'till Lewis the Great 's time have thought it enough to oblige their Subjects to submit to their Power and to bear whatsoever they thought good to impose upon them but till the Days of the late Conversions by the Dragoons it was never so much as pretended that Subjects were bound to Obey their Prince without Reserve and to be of his Religion because he would have it so Which was the only Argument that those late Apostles made use of so it is probable this qualification of the Duty of Subjects was put in here to prepare us for a terrible le Roy le veut and in that case we are told here that we must Obey without Reserve and when those Severe Orders come the Privy Council and all such as execute this Proclamation will be bound by this Declaration to shew themselves more forward than any others to obey without Reserve and those poor pretensions of Conscience Religion Honour and Reason will be then reckoned as Reserves upon their Obedience which are all now shut out III. These being the grounds upon which this Proclamation is founded we ought not only to consider what Consequences are now drawn from them but what may be drawn from them at any time hereafter for if they are of force to justify that which is inferred from them it will be full as just to draw from the same premises an Abolition of the Protestant Religion of the Rights of the Subjects not only to Church-Lands but to all Property whatsoever In a word it Asserts a Power to be in the King to command what he will and an Obligation in the Subjects to Obey whatsoever he shall Command IV. There is also mention made in the Preamble of the Christian Love and Charity which his Majesty would have established among Neighbours but another dash of a Pen founded on this Absolute Power may declare us all Hereticks and then in wonderful Charity to us we must be told that we are either to Obey without Reserve or be burnt without Reserve We know the Charity of that Church pretty well It is indeed fervent and burning and if we have forgot what has been done in former Ages France Savoy and Hungary have set before our Eyes very fresh Instances of the Charity of that Religion While those Examples are so green it is a little too imposing on us to talk to us of Christian Love and Charity No doubt His Majesty means sincerely and his Exactness to all his Promises chiefly to those made since he came to the Crown will not suffer us to think an unbecoming Thought of his Royal Intentions but yet after all tho' it seems by this Proclamation that we are bound to Obey without Reserve it is hardship upon hardship to be bound to Believe without Reserve V. There are a sort of People here Tolerated that will be hardly found out and these are the Moderate Presbyterians Now as some say that there are very few of those People in Scotland that deserves this Character so it is hard to tell what it amounts to and the calling any of them Immoderate cuts off all their share in this Grace Moderation is a quality that lyes in the mind and how this will be found out I cannot so readily guess If a Standard had been given of Opinions or Practices then one could have known how this might have been distinguished but as it lies it will not be easy to make the Discrimination and the declaring them all immoderate shuts them out quite VI. Another Foundation laid down for repealing all Laws made against the Papists is That they were Enacted in King James the Sixth's Minority with some harsh expressions that are not to be insisted on since they shew more the heat of the Penner than the Dignity of the Prince in whose name they are given out But all these Laws were ratifyed over and over again by King James when he came to be of full Age and they have received many Confirmations by King Charles the First and King Charles the Second as well as by his present Majesty both when he represented his Brother in the Year 1681 and since he himself came to the Crown so that whatsoever may be said concerning the first Formation of those Laws they have received now for the course of a whole hundred Years that are lapsed since King James was full of Age so many Confirmations that if there is any thing certain in Humane Government we might depend upon them but this new coyned Absolute Power must carry all before it VII It is also well known that the whole Settlement of the Church Lands and Tythes with many other things and more particularly the Establishment of the Protestant Religion was likewise enacted in King James's minority as well as those Penal Laws so that the Reason now made use of to annul the penal Laws will serve full as well for another Act of this Absolute Power that shall abolish all those and if Maximes that unhinge all the Securities of Human Society and all that is sacred in Government ought to be lookt on with the justest and deepest prejudices possible one is tempted to lose the respect that is due to every thing that carries a Royal Stamp upon it when he sees such grounds made use of as must shake all Settlements whatsoever for if a prescription of 120 Years and Confirmations reiterated over and over again these 100 Years past do not purge some Defects in the first Formation of those Laws what can make us secure But this looks so like a fetch of the French Prerogative Law both in their Processes with Relation to the Edict of Nantes and those concerning Dependences at Mets that this seems to be a Copy from that famous Original VIII It were too much ill nature to look into the History of the last Age to examine on what grounds those Characters of Pious and Blessed given to the Memory of Q Mary are built but since K. James's Memory has the Character of Glorious given to it if the Civility of the fair Sex makes one unwilling to look into one yet the other may be a little dwelt on The peculiar Glory that belongs to K. James's Memory is that he was a Prince of great Learning and that he imployed it chiefly in writing for his Religion of the Volume in Folio in which we have his Works two thirds are against the Church of Rome one part of them is a Commentary on the Revelation proving that the Pope is Antichrist another part of them belonged more naturally to his Post Dignity which is the warning that he gave to all the Princes and States of Europe against the Treasonable and Bloody Doctrines of the Papacy The first Act he did
Protestant Religion in the Churches And that We will and hereby promise on Our Royal Word to maintain the possessors of Church Lands formerly belonging to Abbeys or other Churches of the Catholick Religion in their full and free possession and right according to Our Laws and Acts of Parliament in that behalf in all time coming And We will imploy indifferently all our Subjects of all Perswasions so as none shall meet with any Discouragement on the account of his Religion but be advanced and esteemed by Us according to their several Capacities and Qualifications so long as We find Charity and Unity maintained And if any Animosities shall arise as We hope in God there will not We will shew the severest Effects of Our Royal Displeasure against the Beginners or Fomenters thereof seeing thereby Our Subjects may de deprived of this general Ease and Satisfaction We intend to all of them whose Happiness Prosperity Wealth and Safety is so much Our Royal Care that We will leave nothing undone which may procure these Blessings for them And lastly to the End all our good Subjects may have Notice of this Our Royal Will and Pleasure We do hereby command Our Lyon King at Arms and his Brethren Heraulds Macers Pursevants and Messengers at Arms to make timous Proclamation thereof at the Marcat-Cross of Edinburgh And besides the printing and Publishing of this Our Royal Proclamation it is Our express Will and Pleasure that the same be past under the great Seal of that Our Kingdom per saltum * without passing any other Seal or Register In Order whereunto this shall be to the Directors of Our Chancelary and their Deputies for writing the same and to Our Chancellor for causing our Great Seal aforesaid to be appended thereunto a sufficient Warrand Given at Our Court at Whitehall the twelfth day of Febr. 1686. and of Our Reign the Third Year By His Majesties Command MELFORT God save the King His Majesties Gracious DECLARATION to all His Loving Subjects for Liberty of Conscience JAMES R. IT having pleased Almighty God not only to bring Us to the Imperial Crown of these Kingdoms through the greatest difficulties but to preserve Us by a more than ordinary Providence upon the Throne of Our Royal Ancestors there is nothing now that we so earnestly desire as to Establish our Government on such a Foundation as may make Our Subjects happy and unite them to Us by Inclination as well as by Duty Which We think can be done by no Means so effectually as by granting to them the free Exercise of their Religion for the time to come and add that to the perfect Enjoyment of their Property which has never been in any case Invaded by Us since Our coming to the Crown Which being the two things Men value most shall ever be preserved in these Kingdoms during Our Reign over them as the truest Methods of their Peace and Our Glory We cannot but heartily wish as it will easily be believed That all the People of Our Dominions were Members of the Catholick Church yet We humbly thank Almighty God it is and hath of long time been Our constant Sense and Opinion which upon diverse Occasions We have Declared That Conscience ought not to be constrained nor People forced in Matters of meer Religion It has ever been directly contrary to Our Inclination as We think it is to the Interest of Government which it destroys by Spoiling Trade Depopulating Countries and Discouraging Strangers and finally that it never obtained the End for which it was employed And in this We are the more confirmed by the Reflections We have made upon the Conduct of the Four last Reigns For after all the frequent and pressing Endeavours that were used in each of them to reduce this Kingdom to an exact Conformity in Religion it is visible the Success has not answered the Design and that the Difficulty is invincible We therefore out of Our Princely Care and Affection unto all Our Loving Subjects that they may live at Ease and Quiet and for the increase of Trade and encouragement of Strangers have thought fit by virtue of Our Royal Prerogative to Issue forth this Our Royal Declaration of Indulgence making no doubt of the Concurrence of Our Two Houses of Parliament when We shall think it convenient for them to Meet In the first place We do Declare That We will Protect and Maintain Our Arch-Bishops Bishops and Clergy and all other our Subjects of the Church of England in the free Exercise of their Religion as by Law Established and in the quiet and full Enjoyment of all their Possessions without any Molestation or Disturbance whatsoever We do likewise Declare That it is Our Royal Will and Pleasure That from henceforth the Execution of all and all manner of Penal Laws in Matters Ecclesiastical for not coming to Church or not Receiving the Sacrament or for any other Non-conformity to the Religion Established or for or by reason of the Exercise of Religion in any manner whatsoever be immediately Suspended And the further Execution of the said Penal Laws and every of them is hereby Suspended And to the end that by the Liberty hereby Granted the Peace and Security of Our Government in the Practice thereof may not be endangered We have thought fit and do hereby straitly Charge and Command all Our Loving Subjects That as We do freely give them Leave to Meet and Serve God after their own Way and Manner be it in private Houses or Places purposely Hired or Built for that use So that they take especial care that nothing be Preached or Taught amongst them which may any ways tend to Alienate the Hearts of Our people from Us or Our Government and that their Meetings and Assemblies be peaceably openly and publickly held and all Persons freely admitted to them And that they do signifie and make known to some one or more of the next Justices of the Peace what place or places they set apart for those uses And that all Our Subjects may enjoy such their Religious Assemblies with greater Assurance and Protection We have thought it Requisite and do hereby Command That no Disturbance of any kind be made or given unto them under pain of our Displeasure and to be further proceeded against with the uttermost Severity And forasmuch as We are desirous to have the Benefit of the Service of all Our Loving Subjects which by the Law of Nature is inseparably annexed to and inherent in Our Royal Person And that none of Our Subjects may for the future be under any Discouragement or Disability who are otherwise well inclined and fit to serve Us by reason of some Oaths or Tests that have been usually Administred on such Occasions We do hereby further Declare That it is Our Royal Will and Pleasure That the Oaths commonly called The Oaths of Supremacy and Allegiance and also the several Tests and Declarations mentioned in the Acts of Parliament made in the 25th and 30th Years of
meet for the meaning of this seems plain that His Majesty is resolved that they shall never meet till he receives such Assurances in a new round of Closetting that he shall be put out of doubt concerning it VII I will not enter into the Dispute concerning Liberty of Conscience and the Reasons that may be offered for it to a Session of Parliament for there is scarce any one point that either with relation to Religion or Politicks affords a greater variety of matter for Reflection and I make no doubt to say that there is abundance of Reason to oblige Parliaments to review all the Penal Laws either with relation to Papists or to Dissenters but I will take the boldness to add one thing that the King 's Suspending of Laws strikes at the root of this whole Government and subverts it quite for if there is any thing certain with relation to English Government it is this that the Executive Power of the Law is entirely in the King and the Law to fortifie him in the Management of it has cloathed him with a vast Prerogative and made it unlawful on any pretence whatsoever to resist him whereas on the other hand the Legislative Power is not so entirely in the King but that the Lords and Commons have such a share in it that no Law can either be made repealed or which is all one suspended but by their consent so that the placing this Legislative Power singly in the King is a subversion of this whole Government since the Essence of all Governments consists in the Subjects of the Legislative Authority Acts of Violence or Injustice committed in the Executive part are such things that all Princes being subject to them the peace of mankind were very ill secured if it were not unlawful to resist upon any pretence taken from any ill Administrations in which as the Law may be doubtful so the Facts may be uncertain and at worst the publick Peace must always be more valued than any private Oppressions or Injuries whatsoever But the total Subversion of a Government being so contrary to the Trust that is given to the Prince who ought to execute it will put men upon uneasie and dangerous Inquiries which will turn little to the Advantage of those who are driving matters to such a doubtful and desperate Issue VIII If there is any thing in which the Exercise of the Legislative Power seems indispensable it is in those Oaths of Allegiance and Tests that are thought necessary to Qualifie men either to be admitted to enjoy the protection of the Law or to bear a share in the Government for in these the Security of the Government is chiefly concerned and therefore the total Extinction of these as it is not only a Suspension of of them but a plain repealing of them so it is a Subverting of the whole Foundation of our Government For the Regulation that King and Parliament had set both for the Subjects having the protection of the State by the Oath of Allegiance and for a share in the places of Trust by the Tests is now pluckt up by the roots when it is declared That these shall not at any time hereafter be required to be taken or subscribed by any persons whatsoever for it is plain that this is no Suspension of the Law but a formal repeal of it in as plain words as can be conceived IX His Majesty says that the Benefit of the Service of all his Subjects is by the Law of Nature inseparably annexed to and inherent in his Sacred Person It is somewhat strange that when so many Laws that we all know are suspended the Law of Nature which is so hard to be found out should be cited but the Penners of this Declaration had best let that Law lie forgotten among the rest and there is a scurvy Paragraph in it concerning self-Preservation that is capable of very unacceptable Glosses It is hard to tell what Section of the Law of Nature has markt either such a Form of Government or such a Family for it And if his Majesty renounces his Pretensions to our Allegiance as founded on the Laws of England and betakes himself to this Law of Nature he will perhaps find the Counsel was a little too rash but to make the most that can be the Law of Nations or Nature does indeed allow the Governours of all Societies a Power to serve themselves of every Member of it in the cases of Extream Danger but no Law of Nature that has been yet heard of will conclude that if by special Laws a sort of men have been disabled from all Imployments that a Prince who at his Coronation Swore to maintain those Laws may at his pleasure extinguish all these Disabilities X. At the end of the Declaration as in a Poscript His Majesty assures his Subjects that he will maintain them in their Properties as well in Church and Abbey Lands as other Lands but the chief of all their Properties being the share that they have by their Representatives in the Legislative Power this Declaration which breaks thro' that is no great Evidence that the rest will be maintained and to speak plainly when a Coronation Oath is so little remembred other Promises must have a proportioned degree of Credit given to them as for the Abbey Lands the keeping them from the Church is according to the Principles of that Religion Sacriledge and that is a mortal Sin and there can no Absolution be given to any who continue in it and so this Promise being an Obligation to maintain men in a mortal Sin is nul and void of it self Church-Lands are also according to the Doctrine of their Canonists so immediately God's Right that the the Pope himself is the only Administrator and Dispencer but is not the master of them he can indeed make a truck for God or let them so low that God shall be an easie Landlord but he cannot alter God's Property nor translate the Right that is in him to Sacrilegious Laymen and Hereticks XI One of the Effects of this Declaration will be the setting on foot a new run of Addresses over the Nation for there is nothing how impudent and base soever of which the abject flattery of a slavish Spirit is not capable It must be confest to the Reproach of the Age that all those strains of flattery among the Romans that Tacitus sets forth with so much just scorn are modest things compared to what this Nation has produced within these seven Years only if our Flattery has come short of the Refinedness of the Romans it has exceeded theirs as much in its loathed Fulsomeness The late King set out a Declaration in which he gave the most solemn Assurances possible of his adhering to the Church of England and to the Religion established by Law and of his Resolution to have frequent Parliaments upon which the whole Nation fell as it were into Raptures of Joy and Flattery but though he lived four
they have Strength and Power to supply the want of Arguments and according to practice in these Cases the weaker are never thought to have an ill Bargain if they have any thing left them So that the first Qualification of an Equivalent must be that the Appraisers be indifferent else it is only a Sound there can be nothing real in it For where the same party that proposeth a Bargain claimeth a Right to set the Value or which is worse hath power too to make it good the other may be forced to submit to the Conditions but he can by no means ever be perswaded to treat upon them IV. The next thing to be considered is that to make an Equivalent in reality an equal thing in the Proposer it must be a better thing than that which is required by him just as good is subject to the Hazard of not being quite so good It is not easie to have such an even Hand as to make the Value exactly equal besides according to the Maxim in Law Melior conditio possidentis the Offer is not fair except the thing offered is better in Value than the Thing demanded There must be Allowance for removing what is fixed and there must be something that may be a Justification for Changing The Value of things very often dependeâ—h more upon other Circumstances than upon what is meerly intrinsick to them therefore the Calculation must be made upon that Foot perhaps in most Cases and particularly the Want which one of the Parties may have of the Thing he requireth maketh it more valuable to him than it is in it self If the Party proposing doth not want the Thing he would have in Exchange his requiring it is importinent If he doth his want of it mâ—st go into the Appraisement and by consequence every Proposer of an Equivalent must offer a better Thing or else he must not take it unkindly to be refused except the other Party hath an equal Want of the same Thing which is very improbible since naturally he that wanteth most will speak first V. Another thing necessary to the making a fair Bargain is that let the Parties who treat be they never so unequal in themselves yet as to the particular thing proposed there must be an exact Equality as far as it relateth to the full Liberty of Taking or Refusing Concurring or Objecting without any consequence of Revenge or so much as Dissatisfaction for it is impossible to treat where it is an Affront to differ in that Case there is no mean between the two Extreams either an open Quarrel or an intire Submission the Way of Bargaining must be equal else the Bargain it self cannot be so For Example the Proposer is not only to use equal Terms as to the Matter but fair ones in the Manner too There must be no Intimations of Anger in case of Refusal much less any open Threatning Such a Stile is so ill suited to the usual way of Treating that it looketh more like a Breach of the Peace than the making a Bargain It would be yet more improper and less agreeing with the Nature of an Equivalent if whilst two Men are a chaffering about the Price one of them should actually take the thing in question at his own Rate and afterwards desire to have his Possession confirmed by a formal Agreement such a Proceeding would not only destroy that Particular Contract but make it impossible to have any other with the Party that could be guilty of such a Practice VI. Violence preceding destroyeth all Contracts and even though the Party that offereth it should have a right to the thing he so taketh yet it is to be obtained by legal Means else it may be forfeited by his Irregularity in the Pursuit of it The Law is such an Enemy to Violence and so little to be reconciled to it that in the Case of a Rape the Punishment is not taken off tho the Party injured afterward consenteth The Justice of the Law hath its Eye upon the first Act and the Maxim of Volenti non fit injuria doth not in this Case help the Offender it being a Plea subsequent to the Crime which maketh it to be rejected as a thing wrong dated and out of time In taking away Goods or Money it is the same thing The Party Robbed by giving them afterwards to the Taker does not exempt him from the Punishment of the Violence Quite contrary the Man from whom they were taken is punishable if he doth not Prosecute If the Case should be that a Man thus taking away a thing without Price claimeth a Right to take it then whether it is well or ill founded is not the Question but sure the Party from whom it is so taken whilst he is treating to Sell or Exchange it can never make a Bargain with so arbitrary a Chapman there being no Room left after that to talk of the Value VII To make an equal Bargain there must be a Liberty of differing not only in every thing that is really Essential but in every thing that is thought so by either Party and most especially by him who is in Possession of the thing demanded His Opinion must be a Rule to him and even his Mistake in the Value though it may not convince the Man he hath to deal with yet he will be justified for not accepting what is offered till that Mistake is fairly rectified and over-ruled When a Security is desired to be changed that Side which desireth it must not pretend to impose upon the other so as to dictate to them and tell them without debate that they are safe in what is proposed since of that the Counsel on the other Side must certainly be the most competent Judges The Hand it cometh from is a great Circumstance either to invite or discourage in all Matters of Contract the Qualifications of the Party offering must suit with the Proposition it self else let it be never so fair there is Ground for Suspition VIII What Men are of a Temper that they think they have Wrongâ— done them if they have not always the better side of a Bargain If they happen to be such as by Experience have been found to have an ill Memory for their Word If the Character they bear doth not recommend their Justice where-ever their Interest is concern'd In these Cases thinking Men will avoid Dealing not only to prevent Surprize but to cut off the Occasions of Difficulty or Dispute It is yet more discouraging when there are either a precedent Practice or standing Maxims of gross Partiality in assuming a Priviledge of Exemption from the usual Methods of equal Dealing To illustrate this by an Instance Suppose that in any Case the Church of Rome should have an Interest to promote a Bargain let her way of Dealing be a little examin'd which will direct those with whom she treateth how far they are to rely upon what she proposeth to them We may begin with the Quality in the
Laws a Penalty in any one particular Law can have no effect but what is precarious It may have a loud Voice to threaten but it has not an Hand to give a Blow for as long as the Governing Power is in possession of this Prerogative let who will chuse the Meat if they chuse the Cooks it is they that will give the Taste to it So that it is clear that the Rigor of a Penalty will not in all cases fix a Bargain neither is it universally a true Position that the Increase of Punishment for the Breach of a new Law is an Equivalent for the Consent to part with an old one XVIII In most Bargains there is a Reference to the time to come which is therefore to be considered as well as that which cometh within the Compass of the present Valuation Where the Party contracting hath not a full Power to dispose what belongeth on him or them in Reversion who shall succeed after him in his Right he cannot make any part of what is so limited to be the Condition of the Contract Further he cannot enjoyn the Heir or Successor to forbear the Exercise of any Right that is inherent to him as he is a Man neither can he restrain him without his own Consent from doing any Act which in it self is lawful and liable to no Objection For Example a Father cannot stipulate with any other Man that in Consideration of such a thing done or to be done his Son shall never Marry because Marriage is an Institution established by the Laws of God and Man and therefore no Body can be so restrained by any Power from doing such an Act when he thinketh fit being warranted by a Authority that is not to be controuled XIX Now as there are Rights inherent in Mens Persons in their single Capasities there are Rights as much fixed to the Body Politick which is a Creature that never dieth For instance There can be no Government without a Supream Power that Power is not always in the same Hands it is in different Shapes and Dresses but still where ever it is Lodged it must be unlimited It hath â—â—â—risdiction over every thing else but it cannot have it above it self Supream Power can be no more limited than Infinity can be measured because it ceaseâ—h to be the thing it s very being is dissolved when any bounds can be put to it Where this Supreme Power is mixed or divided the shape only differeth the Argument is still the same The present State of Venice cannot restrain those who succeed them in the same power from having an entire and unlimited Sovereignty they may indeed make present Laws which shall retrench their present Power if they are so disposed and those Laws if not repealed by the same Authority that enacted them are to be observed by the succeeding Senate till they think fit to abrogate them and no longer for if the Supreme Power shall still reside in the Senate perhaps composed of other Men or of other minds which will be sufficient the necessary consequence is that one Senate must have as much right to alter such a Law as another could have to make it XX. Suppose the Supreme Power in any State should make a Law to enjoyn all subsequent Law-makers to take an Oath never to alter it it would produce these following Absurdities First All Supreme Power being instituted to promote the safety and benefit and to prevent the prejudice and danger which may fall upon those who live under the protection of it the consequence of such an Oath would be that all Men who are so trusted shall take God to witness that such a Law once made being judged at the time to be advantagious for the publick though afterwards by the vicissitude of times or the variety of accidents or interests it should plainly appear to them to be destructive they will suffer it to have its course and will never repeal it Secondly If there could in any Nation be found a set of Men who having a part in the Supreme Legislative Power should as much as in them lieth betray their Country by such a criminal engagement so directly opposite to the nature of their Power and to the Trust reposed in them If these Men have their power only for life when they are dead such an Oath can operate no farther and though that would be too long a Lease for the Life of such a Monster as an Oath so composed yet it must then certainly give up the Ghost It could Bind none but the first makers of it another generation would never be tied up by it Thirdly In those Countries where the Supreme Assemblies are not constant standing Courts but called together upon occasions and composed of such as the People chuse for that time only with a Trust and Character that remaineth no longer with them than that Assembly is regularly dissolved such an Oath taken by the Members of a Senate Diet or other Assembly so chosen can have very little effect because at the next meeting there may be quite another set of Men who will be under no Obligation of that kind The Eternity intended to that Law by those that made it will be cut off by new Men who shall succeed them in their power if they have a differing Taste or another Interest XXI To put it yet further Suppose a Clause in such a Law that it shall be criminal in the last degree for any Man chosen in a subsequent Assembly to propose the repealing it and since nothing can be Enacted which is not yet first proposed by this means it seemeth as if a Law might be created which should never die But let this be Examined First Such a Clause would be so destructive to the being of such a Constitution as that it would be as reasonable to say that a King had right to give or sell his Kingdom to a Foreign Prince as that any number of Men who are intrusted with the Supreme Power or any part of it should have a right to impose such shackles upon the Liberty of those who are to succeed them in the same Trust The ground of that Trust is that every Man who is chosen into such an Assembly is to do all that in him lieth for the good of those who chose him The English of such a Clause would be that he is not to do his best for those that chose him because though he should be convinc'd that it might be very fatal to continue that Law and therefore very necessary to repeal it yet he must not repeal it because it is made a Crime and attended with a Penalty But secondly to shew the emptiness as well as injustice of such a Clause it is clear that although such an Invasion of Right should be imposed it will never be obeyed There will only be Deformity in the Monster it will neither sting nor bite Such Law-givers would only have the honour of attempting a contradiction
the Nature of a Bargain and the due Circumstances belonging to an Equivalent and will now conclude with this short Word Where Distrusting may be the Cause of provoking Anger and Trusting may be the Cause of bringing Ruine the Choice is too easie to need the being explained A LETTER From a Gentleman in the City To his Friend in the Country Containing his Reasons for not Reading the Declaration SIR I Do not wonder at your Concern for finding an Order of Council published in the Gazette for Reading the King's Declaration for Liberty of Conscience in all Churches and Chappels in this Kingdom You desire to know my Thoughts about it and I shall freely tell them for this is not a time to be reserved Our Enemies who have given our Gracious King this Counsel against us have taken the most effectual way not only to ruine us but to make us appear the Instruments of our own Ruine that what Course soever we take we shall be undone and one side or other will conclude that we have undone our selves and fall like Fools To lose our Livings and Preferments nay our Liberties and our Lives in a plain and direct Opposition to Popery as suppose for refusing to read Mass in our Churches or to swear to the Trent Creed is an honorable way of falling and has the Divine Comforts of Suffering for Christ and his Religion and I hope there is none of us but can chearfully submit to the Will of God in it But this is not our present Case to read the Declaration is not to read the Mass nor to profess the Romish Faith and therefore some will judge that there is no hurt in Reading it and that to suffer for such a Refusul is not to fall like Confessors but to suffer as Criminals for disobeying the Lawful Commands of our Prince but yet we judge and we have the concurring Opinions of all the Nobility and Gertry with us who have already suffered in this Cause that to take away the Test and Penal Laws at this time is but one step from the introducing of Popery and therefore to read such a Declaration in our Churches though it do not immediately bring Popery in yet it sets open our Church Doors for it and then it will take its own time to enter So that should we comply with this Order all good Protestants would despise and hate us and men we may be easily crushed and shall soon fall with great Dishonour and without any Pity This is the Difficulty of our Case we shall be censured on both sides but with this Difference We shall fall a little sooner by not Reading the Declaration if our Gracious Prince resent this as an Act of an obstinate and peevish or factious Disobedience as our Enemies will be sure to represent it to him We shall as certainly fall and not long after if we do read it and then we shall fall unpitied and despised and it may be with the Curses of the Nation whom we have ruined by our Compliance and this is the way never to rise more And may I suffer all that can be suffered in this World rather than contribute to the sinal Ruine of the best Church in the World Let us then examine this Matter impartially as those who have no mind either to ruine themselves or to ruine the Church I suppose no Minister of the Church of England can give his Consent to the Declaration Let us then consider whether Reading the Declaration in our Churches be not an Interpretative Consent and will not with great Reason be interpreted to be so For First By our Law all Ministerial Officers are accountable for their Actions The Authority of Superiors though of the King himself cannot justifie inferior Officers much less the Ministers of State if they should execute any illegal Commands which shews that our Law does not look upon the Ministers of Church or State to be meer Machines and Tools to be managed wholly by the Will of Superiors without exercising any Act of Judgment or Reason themselves for then inferior Ministers were no more punishable than the Horses are which draw an innocent Man to Tyburn and if inferior Ministers are punishable then our Laws suppose that what we do in obedience to Superiors we make our own Act by doing it and I suppose that signifies our Consent in the Eye of the Law to what we do It is a Maxime in our Law That the King can do no Wrong and therefore if any Wrong be done the Crime and Guilt is the Ministers who does it for the Laws are the King 's publick Will and therefore he is never supposed to command any thing contrary to Law nor is any Minister who does an illegal Action allowed to pretend the King's Command and Authority for it and yet this is the only Reason I know why we must not obey a Prince against the Laws of the Land or the Laws of God because what we do let the Authority be what it will that commands it becomes our own Act and we are responsible for it and then as I observed before it must imply our own Consent Secondly The Ministers of Religion have a greater Tye and Obligation than this because they have the Care and Conduct of Mens Souls and therefore are bound to take Care that what they publish in their Churches be neither contrary to the Laws of the Land nor to the Good of the Church For the Ministers of Religion are not look'd upon as Common Cryers but what they Read they are supposed to recommend too though they do no more than Read it and therefore to read any thing in the Church which I do not consent to and approve nay which I think prejudicial to Religion and the Church of God as well as contrary to the Laws of the Land is to misguide my People and to dissemble with God and Men because it is presum'd that I neither do nor ought to read any thing in the Church which I do not in some degree approve Indeed let Mens private Opinions be what they will in the Nature of the thing he that reads such a Declaration to his People teaches them by it For is not Reading Teaching Suppose then I do not consent to what I read yet I consent to Teach my People what I Read and herein is the Evil of it for it may be it were no Fault to Consent to the Declaration but if I consent to Teach my People what I do not consent to my self I am sure that is a great one And he who can distinguish between consenting to Read the Declaration and consenting to Teach the People by the Declaration when Reading the Declaration is teaching it has a very subtile Distinguishing Conscience Now if consenting to Read the Declaration be a Consent to Teach it my People then the natural Interpretation of Reading the Declaration is That he who Reads it in such a solemn Teaching-manner Approves it If this be not
called The Publick Occurrences which came out to day and cannot but set you right as to his News about the Reading of the Declaration on Sunday He tells you That several Divines of the Church of England in and about this City eminent for their Piety and Moderation did yesterday Read his Majesties late Declaration in their Churches according to the Order in that behalf but some to the great surprize of their Parishoners were pleased to decline it You in the Country are from this Account to believe that it was Read here by the generality of the Clergie and by the eminent Men among them But I can and do assure you that this is one of the most impudent Lyes that ever was Printed For as to this City which hath above a Hundred Parishes in it it was Read only in Four or Five Churches all the rest and best of the Clergy refusing it every where I will spare their Names who read it but should I mention them it would make you who knows this City a little heartily to deride H. C's Account of them And for the Surprize he talks of the contrary of it is so true that in Woodstreet where it was read by one Dr. M. the People generally went out of the Church This I tell you that you may be provided for the future against such an Impudent Lyar who for Bread 〈…〉 and put about the Nation the falfest of things I am Yours AN ANSWER To the City Minister's LETTER from his Country Friend SIR IT is not for me now to acknowledge my private Debt to you for the favour of your Letter since the publick is as much concern'd in it as I and if I may judge of all by the compass of my Neighbourhood and Acquaintance I may assure you they are not insensible of your Obligation though they are ignorant of the Author The Country as far as my Intelligence reaches has followed the Example of the City and refused to read the Declaration of Indulgence according to a certain Order said to be the Kings which we in the Country can scarce believe to be His. For it has neither been signified to the Ordinaries according to the usual manner nor could those that dispersed it give any Account whence it came to them I have heard indeed that an Act of Council concerning it has been published in the Gazette which I never saw and if I had I should scarce have thought Authentick For I always took that Paper as for its Authority to have been all of a piece and that we were no more bound to take notice of any Order published there under any penalty than we are to believe all the News from Poland or Constantinople Nay though this Order had come to us in due form yet had we had great reason to suspect something of surreption and surprize upon his Majesty in this matter and that it could not proceed from his Majesty's free and full consent for we cannot yet forget his repeated professions of kindness to us and of satisfaction in our Principles and Duty and having done nothing since which might forfeit his goed Opinion we are unwilling to believe that it is His Majesties own mind and pleasure to loud us with such an Order as we cannot execute with any congruity safety or good Conscience I. As to his Majesties Declaration We of all his Majesties Subjects are the least concern'd in it and with all duty be it spoken we cannot see that our legal Establishment receives any Addition by this Declaration For there are yet thanks be to God no Penal Laws to which our Congregations are obnoxious and therefore we do not stand in need of any Toleration Yet it is upon us only that the Reading of it is imposed An Act which cannot well be construed otherwise than as a soliciting and tempting our own people to forsake our Communion If this Declaration must needs be read in any Religious Assemblies ' in reason surely it should be in those who wholly owe their substance to it It would better have become the Roman than the Protestan Chappels But in the Koman Church Indulgence hath another signification and belongs to those only that frequent their Churches but not to such as leave them for with them this is the only sin that is not capable of Indulgence But the Priests desire to be excus'd lest while they proclaim Toleration to others they bring an Interdict upon themselves Or why I pray was not Father Pen Ordered to publish it in his Meetings Or the worthy Mr. Lob the reputed Father of this Project why had not he the benefit of his own Invention and a Patent for being the sole Publisher of it within his own Pound Or why was not my Lord Mayor's private and elect Congregation thought worthy of so great a grace Surely it is not to draw upon us the envy of the Distenters that the honour of publishing this Declaration is impos'd upon us alone when it belongs to all other Communions in the Kingdom except our own And it we refuse it I hope it will be imputed to our Modesty for we are not ambitious of being impertinent or busie bodies in other mens matters A certain person much greaten than he deserves but perhaps not so high is said to have used the Words of Rabshaketh upon this occasion That the Church of England Clergy should eat their own Dung Isa 36.12 This sentence might better have become a Messenger of the King of Affyria than a pretended Counsellour of our own Prince though some make a question to which King he belongs But God be thanked we are not yet so straitly besieg'd as to be reduc'd to that extremity and though by the permission of God We should be reduc'd to so miserable a Condition We should I hope by the Grace of God be content to endure that and worse extremities if possible rather than Betray or Surrender the City of God But before that comes it is possible that the Throat that belch'd out this Nasty Insolence may be stopp'd with something which it cannot swallow II. Besides there are some passages in the Declaration which in Conscience we cannot read to our People though it be in the King's Name for among others we are to Read these Words We cannot but heartily wish as will easily be believed that all the People of our Dominions were Members of the Catholick Church Our People know too well the English of this and could not but be strangely surpriz'd to hear us tell them that it would be an acceptable thing to the King that they should leave the Truth and our Communion and turn Papists The Wish of a King when solemnly Declared is no light insignificant thing but has real influence and effect upon the minds of Men. It was but a Wish of Henry the Second that cut off F. Becket then Archbishop of Canterbury Councils and Courts of Justice too often bend to a King's Wishes though against their own
ordinary capacity needs not put his Natural Talent on the Rack to refute them The very first position of the paper viz. That Ireland is in a better way of Thriving under the Government of a Native than an Englishman by which I suppose you mean one not barely so by Birth but by Inclination Interest Education Religion c. is so false that it contradicts the Experience and Reason of Mankind and disgusts one so much in the front of the Letter that I was tempted to fling it away unread judging it not worth the loss of so much time if the rest should prove of the same kind as indeed I found it upon perusal but having ventured through it I looked upon my self obliged to say something by way of Answer since in the opinion of some sort of Men the not Answering though even the most trifling Pamphlet is given out to be the Inability of the party to reply to the weight of such Arguments as are contained in it I will not insist much upon the constant practice of all the predecessors of our English Kings and their Counsellors ever since the Conquest of Ireland who made it an establisht Maxim in relation to that Kingdom That none but an Englishman should be Chief Governour insomuch that till within these two Years that practice gave occasion to the common erroneous opinion That a man born in Ireland however otherwise qualified was thereby incapacitated from being Lord Deputy It is certain that long before the Reformation when Matters of Religion made no distinction between the Natives of each Country this was the settled and unalter'd Rule Have we any reason then to alter it now that Religion is put into the Scale and become the additional weight which never fails giving the advantage to the side it espouses and adheres to or rashly to condemn the wise proceedings of the Ancestours of our Kings and contrary to the opinion of the VVorld judge our Author's Irish Understanding better than all the English ones that have been heretofore Our Author will certainly allow Ireland to be a conquered Country and consequently that the Conquerors have Right to establish Laws with such Restrictions and Limitations as shall seem fitting and convenient towards the keeping it in their Hands and the Welfare of the Inhabitants which are of two Sorts the British Planters and the Natives I shall prove that it has been and still is the Advantage of both these that Ireland should be governed by an English Man By the way I would have it understood that I do not pretend to put these two Interests into any Ballance I know the British Interest does so far outweigh the other that it were a Wrong done it to bring them into any Competition more than two parts of three of the Lands of Ireland being by the several Rebellions of the Irish in British Hands and for the Quality Temper Industry c. there is no Comparison besides that if one of two Parties is to be pleased though by the Detriment of the other 't is but just that the Conquerors who have Right to give Law should be indulged how much more when it is consistent with the Welfare of the Irish themselves if they understood their own Good I am convinced that whatever has been done in favour of the Natives is pure Grace and cannot be claimed as a just Debt any otherwise than since it has been confirmed by our Laws and Acts of Parliament He that reflects on 1641. will readily assent to this which makes me admire at the pertness of our Author in Capitulating as if we stood upon even Ground with them but 't is plain he considers the Interest but of one Party in that Kingdom and though he names Ireland often he means the Native Irish Papist only But I proceed To prove that it is the Interest of the British that Ireland should be governed by an Englishman Ineed say no more than that they all ardently desire it and People are the best Judge of their own Necessities The common Maxim That Interest will not lye holds good here to some purpose The ill Effects the contrary Method has had on their Persons and Estates is but too visible Whoever had seen Ireland four Years ago and would compare its Condition with what it is now from the most thriving and flourishing Country of Europe from a place of the briskest Trade and best paid Rents in Christendom it is fallen in one Year and a half 's time to Ruine and Desolation in the most frequent Cities empty Houses and melancholly Countenances in the best people'd Counties unmanur'd neglected Fields and Solitariness Such a one I say might justly exclaim Heu Quantum mutatus ab illo But it would be impertinent to insist any longer on this I must now prove That 't is the Advantage of the very Natives themselves who have long been uneasie under the English Government and often endeavour'd to shake it off to be ruled and guided by that Nation they hate so much They are beholding to us for reducing them from a State of Barbarity which left but little difference between them and Brutes We taught them to Live to Eat Drink and Lodge like humane Creatures if they esteem this any Advantage and do not really prefer their Native Wildness to all the Benefits of civil Society Trade Agriculture Merchandizing Learning c. and if the Gentleness of the English Government could have had any Influence on them they had no reason to be discontented at it They had the equal Protection of the Laws in relation to their Estates and Persons they bore but their just Proportion in all Taxes and Cesses Their Lands improved in Value by the Means of their British Neighbours and their Rents were much better paid than formerly whilest themselves were Masters of the whole Island They had a large Connivance for the Exercise of their Religion and were even allowed to hold a National Synod of their own Clergy in Dublin Anno 1666. The poor Natives were not oppressed when their severe Land-Lords the Irish Gentry by their cruel Extortions Casherings Duties and Days Labour ruined them who as soon as the English Manners prevailed among them as they were introduced with Difficulty enough there was need of the Authority of Acts of Parliament to constrain them for their own Good lived plentifully and in convenient Houses had their Share of the current Coin and proportion of all other Necessaries to the Life and Well-being of Man which now they want insomuch that several of them have been heard to curse my Lord Tyrconnel for to his Government they attribute their Misery and acknowledge they never lived so well as under the Direction of the English Rulers nor expected to do so again till they were restored to the Helm See the Force of Truth which compels the Confession of it even from the Mouths of its Adversaries One may easily perceive by our Authers manner of arguing where the Shoo
pinches he is really concerned that Ireland is not altogether an independent Kingdom and in the Hands of its own Natives he longs till the Day when the English Yoak of Boudage shall be thrown off Of this he gives us broad Hints when he tells us That England is the only Nation in the World that impedes their Trade That a Man of English Interest will never Club with them as he phrases it or project any thing which may tend to their Advantage that will be the least Bar or Prejudice to the Trade of England Now why a Man of English Interest unless he will allow none of that Nation to be an able and just Minister to his Prince should be partial to ruine one Kingdom to avoid the least Inconveniency of the other contrary to the positive Commands of his King I cannot imagine For since it is the Governour 's Duty to Rule by Law and such Orders as he shall receive from His Majesty I know no Grounds for our Authors Arraigning the whole English Nation in saying That no one Man among them of what Perswasion soever will be true either to the Laws or his Majesty's positive Orders which shall seem repugnant to the smallest Conveniencies of England This is a glory reserved only as it seems for his Hero my Lord Tyrconnel The Imbargo upon the West India Trade and the Prohibition of Irish Cattel are the two Instances given It were to be wished indeed for the Good of that Kingdom that both were taken off and I question not but to see a Day wherein it shall seem proper to the King and an English Parliament to Repeal those Laws a Day wherein they will consider us as their own Flesh and Blood a Colony of their Kindred and Relations and take care of our Advantages with as little Grudging and Repining I am sure they have the same and no stronger Reason as Cornwal does at Yorkshire There are Instances in sevral Islands in the East-Indies as far distant as Ireland is from England that make up but one Kingdom and govern'd by the same Laws but the Wisdom of England will not judge it time fitting to do this till we of Ireland be one Mans Children either in Reality or Affection we wish the latter and have made many Steps and Advances towards it if the Natives will not meet us half way we cannot help it let the Event lie at their own Doors But after all I see not how those Instances have any manner of relation to the English Chief Governors in Ireland they were neither the Causes Contrivers nor Promoters of those Acts. The King and an English Parliament did it without consulting them if they had 't is forty to one my Lord of Ormond and the Council whose Stake is so great in Ireland would have hindred it as much as possible Our Author's Argument proves indeed That 't is detrimental to Ireland to be a subordinate Kingdom to England and 't is plain 't is that he drives at let him disguise it as much as he will but the conclusion he would prove cannot at all be deduced from it Shortly I expect he will speak plainer and in down right Terms propose That the two Kingdoms may be governed by different Kings Matters seem to grow ripe for such a dilloyal Proposition If these Acts and not the Subjection to an English King were the Grievances they would be so to the British there as well as to the Natives but though we wish them Repealed we do not repine in the mean time if the British who are the most considerable Trading part of that Nation and consequently feel the ill Effects of those Acts more sensibly can be contented why the Natives should not acquiesce in it unless it be for the forementioned Reasons I cannot see Our Author allows that there are different ways of obeying the King 't is a Point gained for us and proves there may be such a Partiality exercised in executing his Majesties Commands as may destroy the very Intent of them and yet taking the Matter strictly the King is obeyed but a good Minister will consider his Masters Intentions and not make use of a Word that may have a double Sence to the Ruine of a Kingdom nor of a Latitude of Power wherewith he is intrusted to the Destruction of the most considerable Party in it Far be it from us to think it was his Majesties Intentions to depopulate a flourishing Country to undo Multitudes of laborious thriving Families in it to diminish and destroy his own Revenue to put the Sword into Mad-mens Hands who are sworn Enemies to the British No! His Majesty who is willing that Liberty of Trade as well as Conscience should equally flourish in all parts of his Dominions that recommends himself to his Subjects by his Impartiality in distributing Offices of Trust and from that Practice raises his greatest Argument to move his People to Repeal the Penal Laws never intended that some general Commands of his should be perverted to the Destruction of that People his Intention is to protect His Majesty Great as he is cannot have two Consciences one calculated for the Latitude of England another for Ireland We ought therefore to conclude in respect to the King that his Commands have been ill understood and worse executed and this may be done as our Author confesses and the King undoubtedly obeyed but such an Obedience is no better than a Sacrifice of the best Subjects the King has in this Kingdom Our Author has given very good Reasons why the Natives may be well content with their present Governor but I cannot forbear laughing at those he has found out to satisfie the poor British with My Lord Tyrconnel's most Excellent Charitable English Lady His high sounding Name TALBOT in great Letters a Name that no less frightens the Poor English in Ireland then it once did the French a Name which because he is in possession of I will not dispute his Title to but I have been credibly informed that he has no relation to that most Noble Family of Shrewsbury though my Lord Tyrconnel presumes to bear the same Coat of Arms a Name in short which I hope in time Vox praetereae nihil A Second Reason is drawn from his Education We have heard and it has never yet been contradicted that my Lord Tyrconnel from his Youth upwards has constantly born Arms against the Brittish If our Author will assure us of the contrary I am apt to believe â—i Excellency will give him no thanks who lays the foundation of his Merit upon the Basis of his constant adherence to the Iâ—ish Party What use of Consolation can be drawn from this head by the Brittish is beyond my skill to conâ—preâ—â—nd A third Reason is drawn from his Stake in England the Author would do well to shew us in what Country this lies that we may know where to find Reprisals hereafter for since he offers this for our Security 't is fit
it hath been to cut the Tacklings and to steer contrary to the Pilot's Directions he thinks such safer by far shut up under Hatches then set at Liberty or employ'd to do mischief As for his supposition of 30000 men to be sent out of Ireland into Handers I cannot tell what to make on 't Let them crack the Shell that hope to find the Kernel in it For my part I despair though the readiness of the English Souldiers of Ireland who at twenty four hours warning came into England to serve His Majesty in the time of Monmouth's Rebellion ought to have been remembered to their advantage and might serve to any unprejudic'd person as a Pattern of the Loyalty and good Inclinations of all the Protestants in that Kingdom if his Majesty had had occasion for them VVhether the Parliament will Repeal the Test for those several weighty Reasons our Author says are fitter for contemplation than Discourse tho methinks it would be pleasant to see a House of Common sit like the Brethren at a silent Meeting is not my Province to determine As likewise VVhether they will so much consider that Grand Reason the King will have it so for his Conscience and theirs may differ or what the diffenters will do I cannot tell One thing I am sure of there will be no such Stumbling-block in the way of the King's desires when they meet as the present condition of Ireland they will be apt when His Majesty tells them they shall have their equal shares in Employments when they have Repealed the Laws to say Look at Ireland see what is done there where the Spirit of Religion appears bare fac'd and accordingly compute what may become of us when we have removed our own legal Fences since they now leap over those Hedges what may we expect when they are quite taken away Poyning's Law is a great grievance to our Author and here in one word he discovers that 't is the dependance this Kingdom has on England he quarrels at 'T is fit the Reader should understand that Law enacted when Poynings was Lord Deputy makes all the English Acts of Parliament of force in Ireland we are therefore so fond of that Law and cover so much to preserve our dependance on England that all the Arguments our Author can bring shall not induce us to part with it I will not reflect in the least on the Courage of the Irish I know there are several brave men among them but they have had the misfortune to fall under the Consideration of as our Author softens it but the plain sence is been beaten by a warlike Nation And I question not unless they behave themselves modestly in their Prosperity they will again fall under the Consideration of the same Nation 't is better we should live in peace and quietness but the Choice is in their hands and if they had rather come under our consideration again than avoid it let them look to the Consequence Another advantage which may accrue to Ireland by a Native as a Governour our Author reckons to be His personal knowledge of the Tories and their Harbourers and his being thereby better capacitated to suppress them Malicious People would be apt to infer from this Suggestion that his Excellency had occasion formerly to be familiarly acquainted with such sort of Cattle I have heard indeed that one of our bravest English Princes Henry the during the Extravagancies of his youth kept Company with publick Robbers and often shar'd both in the Danger and Booty But as soon as the Death of his Father made way for his Succession to the Crown he made use of his former acquaintance of their Persons and Haunts to the extirpating and dissolving the greatest knot of Highway-men that ever troubled England My Lord therefore in imitation of this great Prince no doubt will make use of his Experience that way to the same end And I readily assent to the Author that no English Governour can be so fit to clear that Kingdom of Tories and that for the same reason he gives us There are two other Advantages remaining one is his Excellency's having already made different Parties in that Kingdom the Objects of his Love and Hatred let the Offences of the one or the Merits of the other be never so conspicuous Whether the Brittish can draw any comfort from his Excellency's knowledge of them this way is fit to be debated The other is the probality of his getting the Statute for benefit of Clergy in favour of Cow-Stealers and House Robbers Repealed and where by the way there is a severe Rebuke given to our English Priests for their ill-placed Mercy to Irish Offenders A fault I hope they will be no more guilty of Whether these Advantages be so considerable as to move his Majesty to continue a Man for other more weighty Reasons absolutely destructive to this Kingdom or whether some of them might not be performed by an English Governour His Majesty is the only Judge Only this I am sure of The King if he were under any Obligations to His Minister has fully discharged them all and has shewed himself to be the best of Masters in giving so great and honourable an Employment to his Creature and continuing him in it so long notwithstanding the decrease of his own Revenue and the other visible bad effects of his Management the Impoverishment of that Kingdom amounting to at least two Millions of Mony And His Majesty may be now at liberty without the least imputation of Breach of promise to his Servant to restore us to our former flourishing condition by sending some English Nobleman among us whose contrary Methods will no doubt produce different effects To conclude methinks the comparison between His Majesty and Philip of Macedon when he was drunk is a little too familiar not to say unmannerly and that between Antipater and my Lord Tyrconnel is as great a Complement to the latter But provided my Lord be commended which was our Author's chief design he cares not tho' the comparison does not hold good in all points 't is enough that we know we are Govern'd by such a Prince that neither practises such Debauches himself nor allows of them in his Servants But we are not beholding to the Author for the knowledge of this should a Foreigner read his Pamphler or get it interpreted to him he would be apt and with reason to conclude that His Majesty as much resembled Philip in a Debauch as my Lord Tyrconnel doth sober Antipater I have now done with all that seems of any weight in our Author's Pamphlet and can see nething in his Postscript that deserves an Answer All that I will say is That his Recipes bear no proportion to our desperate Disease and he will prove not to be a Physitian but a pretending Quack who by ill applied Medicines will leave us in a worse Condition than he found us I shall conclude with telling you That your Letter which enclosed
Power in Ecclesiastical Matters truly stated HIS present Majesty having erected an High-Commission Court to enquire of and make redress in Ecclesiastical Matters c. Q. Whether such a Commission as the Law now stands be good or not And I hold that the Commission is not good And to maintain my Opinion herein I shall in the first place briefly consider what Power the Crown of England had in Ecclesiastical or Spiritual Matters for I take them to be synonymous Terms before 17 Car. 1. ca. 11. And Secondly I shall particularly consider the Act of 17 Car. 1. ca. 11. And Thirdly I shall consider 13 Car. 2. ca. 12. And by that time I have fully considered these three Acts of Parliament it will plainly appear that the Crown of England hath now no Power to erect such a Court. I must confess and do agree That by the Common Law all Ecclesiastical Jurisdiction was lodged in the Crown and the Bishops and all Spiritual Persons derived their Jurisdiction from thence And I cannot find that there were any Attempts by the Clergy to divest the Crown of it till William the First 's Time and his Successors down to King John the Pope obtained four Points of Jurisdiction First Sending of Legates into England Secondly Drawing of Appeals to the Court of Rome Thirdly Donation of Bishopricks and other Ecclesiastical Benefices And Fourthly Exemption of Clerks from the Secular Power Which four Points were gained within the space of an hundred and odd Years but with all the Opposition imaginable of the Kings and their People and the Kingdom never came to be absolutely inslaved to the Church of Rome till King John's Time and then both King and People were and so continued to be in a great measure in Henry the Third's Time and so would in all likelihood have continued had not wise Edward the First opposed the Pope's Usurpation and made the Statute of Mortmain But that which chiefly brake the Neck of this was That after the Pope and Clergy had endeavoured in Edward the Second's Time and in the beginning of Edward the Third to usurp again Edward the Third did resist the Usurpation and made the Statutes of Provisors 25 Ed. 3. and 27 Ed. 3. And Richard the Second backed those Acts with 16 Rich. 2. ca. 5. and kept the Power in the Crown by them Laws which being interrupted by Queen Mary a bloody Bigot of the Church of Rome during her Reign there was an Act made in 1 Eliz-ca 1. which is Intituled Keeble's Stat. An Act to restore to the Crown the ancient Jurisdiction over the Estate Ecclesiastical and Spiritual and abolishing all foreign Powers repugnant to the same From which Title I collect three things First That the Crown had anciently a Jurisdiction over the Estate Ecclesiastical and Spiritual Secondly That that Jurisdiction had for some time been at least suspended and the Crown had not exercised it Thirdly That this Law did not introduce a new Jurisdiction but restored the old but with restoring the old Jurisdiction to the Crown gave a Power of delegating the Exercise of it And as a Consequence from the whole that all Jurisdiction that is lodged in the Crown is subject nevertheless to the Legislative Power in the Kingdom I shall now consider what Power this Act of 1 Eliz. 1. declares to have been anciently in the Crown and that appears from Sect. 16 17 18. of the same Act. Section 16. Abolisheth all Foreign Authority in Cases Spiritual and Temporal in these VVords And to the intent that all the Vsurped and Foreign Power and Authority Spiritual and Temporal may for ever be clearly extinguished and never to be used or obeyed within this Realm or any other Your Majesties Dominions or Countries 2 May it please Your Highness that it may be further Enacted by the Authority aforesaid that no Foreign Prince Person Prelate State or Potentate Spiritual or Temporal shall at any time after the last Day of this Session of Fâ—â—liament use enjoy or exercise any manner of Power Jurisdiction Superiority Authority Preheminence or Priviledge Spiritual or Ecclesiastical within this Realm or within any other Your Majesties Dominions or Countries that now be or hereafter shall be but from thenceforth the same shall be clearly Abolished out of this Realm and all other Your Highness's Dominions for ever any Statute Ordinance Custom Constitutions or any other Matter or Cause whatsoever to the contrary in any wise notwithstanding And after the said Act hath abolished all Foreign Authority in the very next Section Sect. 17. It annexeth all Ecclesiastical Jurisdiction to the Crown in these VVords And that also it may likewise please your Heghness That it may be Established and Enacted by the Authority aforesaid That such Jurisdictions Priviledges Superiorities and Preheminencies Spiritual and Ecclesiastical as by any Spiritual or Ecclesiastical Power or Authority hath heretofore been or may lawfully be exercised or used for the Visitation of the Ecclesiastical State and Persons and for Reformation Order and Correction of the same and of all manner of Errors Heresies Schisms Abuses Offences Contempts and Enormities shall for ever by Authority of this present Parliament be Vnited and Annexed to the Imperial Crown of this Realm From these VVords That such Jurisdiction c. as by any Spiritual or Ecclesiastical Power or Authority had then-to-fore been exercised or used were annexed to the Crown I observe That the Four things aforesaid wherein the Pope had incroached were all restored to the Crown and likewise all other Ecclesiastical Jurisdiction that had been exercised or used in this Kingdom and did thereby become absolutely vested in the Crown Then Section 18. Gives a Power to the Crown to assign Commissioners to excrcise this Ecclesiastical Jurisdiction in these VVords And that Your Highness Your Heirs and Successors Kings or Queens of this Realm shall have full Power and Authority by Virtue of this Act by Letters Patents under the Great Seal of England to Assign Name and Authorize when and as often as Your Highness Your Heirs or Successors shall think meet and convenient and for such and so long time as shall pleass Your Highness your Heirs or Successors such Person or Persons being natural born Subjects to Your Highness Your Heirs or Successors as Your Majesty Your Heirs or Successors shall think meet to Exercise Vse Occupy and Execute under Your Highness Your Heirs and Succâ—ssors all manner of Jurisdictions Priviledges and Preheminencies in any wise touching or concerning any Spiritual or Ecclesiastical Jurisdiction within these Your Realms of England and Ireland or any other Your Highness's Dominions and Countries 2. and to visit Reform Redress Order Correct and Amend all such Errors Heresies Schisms Abuses Offences Contempts and Enormities whatsoever which by any manner of Spiritual or Ecclesiastical Power Authority or Jurisdiction can or may lawfully be Reformed Ordered Redressed Corrected Restrained and Amended to the pleasure of Almighty God the Increase of Vertue and the Conservation
shift Instruments and to betake themselves to the Nonconformists whose assistance the better to engage they have not only suspended all the Penal Laws to which the Dissenters were liable but have endeavoured to fill ' them with jealousy and apprehension of danger from the Test Acts tho at the same time they know that Nonconformists never either did or could receive prejudice by them Only they are sensible that if they could work up that easie people into such a belief they should thereby not only obtain their concurrence and abettment for the rescinding of those Laws that are at present the only great remaining Fence about our Religion and upon the abrogation whereof nothing could hinder the Papists from getting into a condition to extirpate it but make them a formed and united Body with themselves against the Prince and Princess of Orange who have with so much Wisdom Courage and Integrity declared that they are against the having them repealed And as the Dissenters cannot have so far renounced all regard both to honesty and to a good name as to be fond of being herded with the Papists or thank our Author for it so they must be become void of all sense and understanding if they suffer themselves to be either wheedled or frighted into an opinion of their being subject to receive any dammage by the Tests it being so expresly contrary both to the Terms of those Laws and to their own experience Nor can they be so far abandoned of God nor prove so treacherous to the Nation Posterity and the whole Protestant Interest thro' Europe as to cooperate to the Repeal of them by destroying that great Fence about the Reformed Religion in England and to put the Papists into capacity both of subverting it there and every where else And setting aside a few mercenary fellows among them there is no ground to fear after we have had so many proofs of their zeal for the Protestant Religion and English Liberties in the worst of times and under the greatest Temptations that they should at this season when all others behave themselves with so much Integrity and Courage be accessory to so villanous a thing The ill success which the Court hath met with in the several Towns and City's since the late Regulation of the Corporations sufficiently shews that the Dissenters who were put into Magistracy in hopes by them to have compassed the packing of a Parliament are no less careful of preserving the Test Laws than they of the Church of England Communion were who were displaced to make way for them And to discover the grossness of the abuse which our Author without regard to Truth or Ingenuity endeavours to put upon them as if they were judged by their Highnesses to be incapable of Trusts and Employments or any ways concluded to stand under those restraints by the Test which the Roman Catholicks do there is not one word in Mijn Heer Fagel's Letter whereby they are said to be subject unto them or by which there is any ground administred of fancying they are put into the same rank with the Papists and whereby to fear that they may hereafter come to be treated accordingly But in stead of this they are expresly told that Their Highnesses do both allow and desire the abrogation of all the Penal Laws against Dissenters and the having them freed from the severity of them and that they do not only consent but heartily approve of their having an entire liberty granted them for the full exercise of their Religion without any trouble or hindrance or being left exposed to the least molestation or inconvenience upon that account And to testifie how far the Nonconformists are from being in the least menaced by those Laws it is again Declared that the only reason why their Highnesses refuse to consent to the having them repealed is because that they have no other tendency save to Secure the Reformed Religion from the Designs of the Papists by containing provisions in the vertue of which those only may be kept out of Office who can not testifie that they are of the Reformed and not of the Roman Catholick Religion Which as it is the highest evidence imaginable of their own stedfastness and integrity in the Reformed Religion and of the compassion and love which they equally bear to all who profess it and how careful they will at all times be to have it maintained and supported so it is the putting such a merit upon all Protestants that it should engage their prayers for their happy extation to the Throne and make them ambitious as well as willing and ready to hazard their lives and Fortunes for the securing the Succession unto them if any should be so wicked as to go about to preclude them But I must pay a further attendance upon our Author and accompany him to the fifth particular which I promised to consider namely that according to his own foolish and incoherent way of writing while he pretends to commend and justify the proceeding of His Majesty of Great Brittain he publisheth the villany of the Papal Church and proclaims the dishonour and injustice of diverse Eminent Monarchs and Princes of the Romish Communion His Panegyricks upon the King of England are so many just Satyr's upon the Church of Rome the Monarch of France and the Duke of Savoy c. For if it be becoming a Christian to be of a contrary judgment to those who are for persecuting such as differ from the publick and established Religion and if it be a sentiment worthy of a Royal mind that none ought to be oppressed for their Consciences in Divine Matters what characters of irreligion ignominy wickedness are due unto them who judge it to be meritorious to destroy sincere Christians for no other pretended Crime save that they cannot believe as the Pope and the Church of Rome do Surely our Author must either be extreamly ignorant of the Doctrine of his own Church and of the bloody and barbarous practices pursuant thereunto both at this day and for many ages past or else he must be the most unsincere miscreant that ever writ or at best be guilty of the inconsistency and folly as to continue in the Communion of a Church whose Articles of Faith he condemns as Antichristian and whose practices according to the Terms made necessary for Salvation he abhorreth both as unworthy of Royal Minds and contrary to Christian Piety But tho nothing can render a false man honest or a foolish Man wise yet seeing something may be done towards the curing a person's ignorance if he be teachable or at least to shew his obstinacy and that the fault is in his will not in his Understanding if he will not learn and be convinced I shall therefore both acquaint him a little with the Doctrine of that Church and briefly put him in remembrance how these of the Romish Fellowship have therefore persecuted Christians and still continue so to do only for differing
equally partake in publick Trusts and Employments He must pardon me if I not only say he is mistaken but that it is a down-right Falsehood and that herein he betrays his wonted ignorance or at least gives us a new discovery of the insincerity that is natural to him Nor would he have vented this in so general Terms but that he did foresee if he should have condescended to particulars how easy it would have been for persons of very ordinary acquaintance either with History or the World to have both contradicted and refuted him And if there were some one or other small City where by reason of the Fewness of those of one Religion to exercise the Government and to take care of the Welfare of the Society those of the other Religion are sometimes received into Employments in order to prevent the inconveniencies which the want of a competent number of Magistrates would be attended with and where the Jealousie and Fear of being swallowed up by some envious and potent Neighbour may lay them under a necessity of agreeing better together than otherwise they would or than the principles of some of them incline them unto must we thence conclude that it ought to be so in a great Kingdom where there is so vast a number of Protestants admirably qualified with Wisdom Interest and Estates to discharge all the Offices of the Government and to manage the universal care of the Society without running the hazard of the many mischiefs that would accompany the taking the Papists into partnership with them Nor could Mijn Heer Fagel in representing what is safe or unsafe to so great and noble a Nation take notice of what is practised upon necessity in some mean Town or Corporation supposing that it were there as our Author alledgeth without transgressing against all the Rules both of prudence and decency But as the Pensionary had no where in his Letter affirmed that there were not any States or Cities in which the Protestants and Papists bear Office in Government together but had only said that Reason and Experience do shew us how impossible it will be for them when joyned together in places of Trust and publick Employments to maintain a good Correspondence and to live peaceably with one another so this is found to be so just a truth and so pertinently observed that in all the places where it hath been practised tho not in Germany as our Author ignorantly suggests they have not only lived in continual heats and dissentions but have often come to open Hostility against each other Nor hath it meerly fallen out thus in private and particular States within themselves but the like evils have often followed and ensued where more States have associated into Union for the common preservation of the Generality and where the Government hath been in some in the hands of Protestants and in others executed by Roman Catholicks Of this we have diverse Examples in the Cantons of Switzerland where thro the Magistrates being in some Cantons of the Reformed and in others of the Roman Catholick Religion they have not only been often hindred from joyning and acting vigorously as they ought to have done for the interest of all and the benefit of the common Confederation and Union but they have sometimes come to open ruptures and have been embarqued in War against one another And forasmuch as our Author makes bold to say That there was never any Christian Kingdom where the Religion that the Prince professeth and which had in former ages been Dominant was so far laid aside and banished that his Subjects professing the same with himself were shut out and precluded from Trusts and Employments I will take the freedom to tell him that it is so gross and palpable a Falsehood that none but a person of his ignorance and impudence would have had the face to have asserted it For there are Christian Kingdoms that have done more than this amounts unto and who to prevent the danger of having Papists preferred to Trusts and Employments in case a Prince of their Religion should come to the Throne have been so wise as to declare Roman Catholicks incapable either of obtaining or keeping the Soveraignty And it was in the vertue of such a Law and by reason of the dread of it that Christina Queen of Sweden upon the having taken up a resolution to turn Papist chose to demit her Crown before she declared her self as knowing that immediately after such a Declaration she would have been deposed from the Throne and possibly not have had so liberal an allowance assigned her afterwards as by that conduct she did obtain Nor is it unknown to any except it be to such as our Author is for natural and acquired accomplishments that there were not only Laws in Scotland for precluding a Popish Prince from coming to the Government but that the same thing was imployed in the English Oaths of Allegiance and Supremacy as being Oaths of such a frame and nature that it had been most incongruous to impose them upon Subjects to a King of the Roman Catholick Religion And tho these two Nations did not improve the advantage which they had by means of their legal provisions to hinder the present King from inheriting the Crowns of the respective Realms yet those Laws serve to inform us how far some Christian Kingdoms thought it lawful to go and to what heighth to Act not only against Popish Subjects but against Catholick Princes themselves Yea the time was that the very Papists were so far from condemning the having men of their Religion debarred from Trusts and Employments in Protestant Kingdoms under a Popish Prince that they made the Test Laws by which they are shut out from Offices and Declared incapable of them the great Argument against the necessity of having the Bill passed for excluding the Duke of York from the Crown and improved them as the main Engine for allaying the fears of the Nation under the apprehensions they had of his being a Roman Catholick and coming to the Throne But by their different Language now from what it was then all Englishmen understand how far they are to be believed in other cases and whether the many promises which they do make at this time in order to a further design and the putting a new Trick upon the Nation ought to be depended on by them whom they have already deceived And whereas upon Mijn Heer Fagel's having observed that the conduct of Roman Catholicks is much more severe towards Protestants than that of those of the Reformed Religion towards Papists our Author is pleased to reply that in order to judge as we should of that different procedure we are to consider whether it be not less just to banish a Religion that had been so long dominant as the Roman Catholick had been than to withstand the introduction of a new Religion that would depress and supplant the old All I shall say in reference to this is
Penal Laws against Papists yet to do it in their present Circumstances and at such a conjuncture as this were the highest act of folly in the world and a betraying both their own safety and that of their Religion Had the Roman Catholicks forbore to assume a liberty till it had been legally given them they had been the more capable objects of such a Grace but to bestow it upon them after they have in contempt and defiance of all our Laws taken it 't were to justify their usurpation and approve their crime Could they have been contented with the private practice of their Worship and the non-exaction of the penalties to which our Statutes make them liable without leaping into all Offices of Trust and Command and invading our Seats of Judicature our Churches and our Universities their modesty might have wrought much upon the generosity and candor of all sort of Protestants but their audacious wresting all power into their hands and their laying aside all those that have either any zeal for our Civil Rights or for the Protestant Religion is enough to kindle our further indignation in stead of influencing us to thoughts of moderation and lenity And should we once begin to cancel our Laws according to the measure and proportion that they break them and usurp upon them no man can tell where that will terminate and they will be sure to turn it into an encouragement to further attempts For having in compliance with their Impudence and to absolve them from the guilt of their Crimes and Treasons abrogated the Laws against Popery they will not fail in a little while to betake themselves to the same Methods for obtaining the abolition of all the Laws for Protestancy 'T is but for the King to declare that he will have all his Subjects to be of his own Religion and then by the Logick of the late Cant which he used in his Speech to the Council at Windsor That they who are not for him are against him we must immediately either turn Papists or be put into the same List with them and be thought worthy of the same Royal Displeasure which they are become obnoxious unto who cannot find it to be their duty and interest to destroy the Tests And Mr. Pen's Argument of being afraid of His Majesties and the Papists power and yet to provoke it Good Advice p. 43. will hold in the one case as well as in the other Nor do I see but that the Court may improve another Topick of his against us Ibid. p. 44. viz. That we were ill Courtiers by setting him up first to give him Roast-meat and then to beat him with the Spit by refusing to be of his Religion To which I may add that the brutal severities exercised towards Protestants in France and Piedmont are but ill inducements to prevail upon a Reformed Nation to give Liberty to Papists 'T is an Axiom founded in the light of Nature as well as an Oracle of Revelation That with what measure any do mete unto others it shall be measured to them again and that whatsoever any would that we should do to them they should do so to us Would the Papists once perswade Catholick Rulers to give Indulgence to those of our Religion it would be an argument that they acted sincerely in their pleading against Penal Laws for matters of Religion and would mightily prevail upon all of the Reformed Communion to Repeal such Statutes as are Enacted against them But while they continue and increase their Persecution against us in all places where they have power I do not see how they can reasonably expect that we should believe them either to be just or honest or to deserve any measure of lenity Reprizals are the onely methods whereby to bring them to peaceable and equal Terms Had Protestant Princes and States given Papal Soveraigns to understand that they would act upon the same square that they do and retaliate upon those of the Romish Faith whatsoever should be inflicted because of Religion upon those of ours I have ground to think that the Clergy in France and Savoy would have had more discretion than to have been Instrumental in stirring up the late Persecutions and of instigating Rulers to such unparallelled Barbarities 'T is not many years since a Prince in Germany begun to treat Protestants with an unjust severity and to Banish them his Countrey contrary to his word and the Stipulation he had made with them but upon the Duke of Brandenburg's both threatning and beginning to do so by the Roman Catholicks in his Dutchy of Cleve the other Prince immediately forbare his rigour and the Protestants had fair Quarter allowed them And therefore if Mr. Pen and his Catholick Friends in stead of reproaching the Church of England of justifying by her principle the King of France and the Inquisition would prevail for abolishing the one and for putting an end to Persecution by the other they would thereby do more for inclining the Nations to Tolerate Papists than either by all their invidious Satyrs against the conformable Clergy or by their Panegyricks upon a Popish Monarch and the Romish Church In the mean time 't is most unreasonable for them to demand or expect and unwise as well as unseasonable for British Protestants to consent to the Abrogation of the Tests and the Repealing of the Penal Laws against Papists Moreover though 't is possible that we might defend our selves against the dangers that might ensue upon it had we a Prince of our own Religion on the Throne yet it would be to surrender our selves unto their power and to expose our selves to their Discretion should we venture to do it while a Papist of His Majesties humour hath the weilding of the Scepter One of the main Arguments by which Mr. Pen would perswade us against all apprehension of danger from the Papists in case the Test and Penal Laws were abolished is the inconsiderableness of their number in comparison of Protestants Good Advice p. 49. And yet if there be so many ill Men in the Nation as he intimates Letter 3d. p. 12. who being of no Religion are ready upon the motives of worldly Interest to take upon them the profession of any were it not for fear of being at one time or another called to an account I do not see but that as the Papists through having the King on their side are already possessed of what he stiles the Artificial Strength of the Kingdom why they may not in a short while were those Laws once destroyed by which the Atheistical and profane sort of Men are kept in awe come to obtain too much of the natural strength of it and raise their number to a nearer equality to that of Protestants And though they should never multiply to any near proportion yet we may easily imagine what a few hands may be able to do when Authorized by a Popish Soveraign and seconded by a well-disciplin'd Army commanded by Roman Catholicks
there being sincere Christians and true Englishmen among those of all Judgments and Societies of Protestants and among none more than those of the Communion of the Church of England It were the height of Wickedness as well as the most prodigious Folly to imagine that the Conformists have abandoned all Fidelity to God and cast off all care of themselves and their Country upon a mistaken Judgment of being Loyal and Obedient to the King The contrary is plain enough they knew as well as any that the giving to Caesar the Things that are Caesar's lay them under no Obligation of surrendring unto him the Things that are God's nor of sacrificing unto the Will of the Sovereign the Priviledges reserved unto the People by the Fundamental Rules of the Constitution and by the Statutes of the Realm And they understand as well as others that the Laws of the Land are the only measures of the Prince's Authority and of the Subjects Fealty and where they give him no Right to Command they lay them under no tye to Obey And though here and there a Dissenter has written against Popery with good Success yet they have been mostly Conformable Divines who have triumphed over it in elaborate Discourses and who have beaten the Romish Scriblers off the Stage Nor can it be thought that they who have so accurately related and vindicated the History and asserted and defended the Doctrine of the Reformation should either tamely relinquish or be wanting in all due and legal Ways to uphold and maintain it And though some few of the Nonconformists have with sufficient strength and applause used their Pens against Arbitrariness in detecting the Designs of the Royal Brothers yet they who have generally and with greatest Honour appeared for our Laws and Legal Government against the Invasions and Usurpations of the Court have been Theologues and Gentlemen of the Church of England Nor in case of further Attempts for altering the Constitution and enslaving the Nation will they shew themselves unworthy the having descended from Ancestors whose Motto in the high Places of the Field was nolumus Leges Angliae mutari They who have so often justified the Arms of the Vnited Netherlands against their Rightful Princes the Kings of Spain and so unanswerably vindicated their casting off Obedience to those Monarchs when they had invaded their Priviledges and attempted to establish the Inquisition over them cannot be ignorant what their own Right and Duty is in behalf of the Protestant Religion and English Liberties for the Security whereof we have not only so many Laws but the Coronation Oaths and Stipulations of our Kings And those Gentlemen of the Church of England who appeared so vigorously in three Parliaments for excluding the Duke of York from the Succession to the Crown by reason of a Jealousy of what through being a Papist he would attempt against our Religion and Priviledges in case he were suffered to ascend the Throne cannot be now to seek what becomes them towards him having seen and felt what before they only apprehended and feared For if the Law that entaileth the Succession upon the next of Kin and obligeth the Subjects to admit and receive him not only may but ought to be dispensed with in case the Heir thro' having imbib'd Principles which threaten the Safety and are inconsistent with the Happiness of the People hath made himself incapable to inherit we know by a short Ratiocination how far we stand bound to a Prince on the Throne who by Transgressing against the Laws of the Constitution hath abdicated himself from the Government and stands virtually Deposed For whosoever shall offer to Rule Arbitrarily does immediately cease to be King de jure seeing by the Fundamental Common and Statute Laws of the Realm we know none for Supream Magistrate and Governor but a limited Prince and one who stands circumscribed and bounded in his Power and Prerogative And should the Dissenters entertain a belief that the Conformists are less concerned and zealous than themselves for the Protestant Religion and Laws of the Kingdom they would not only Sin and offend against the Rules of Charity but against the Measures of Justice and daily Evidences from Matters of Fact For neither they nor we owe our Conversion to God and our practical Holiness to the Opinions about Discipline Forms of Worship and Ceremonies wherein we differ but the Doctrines of Faith and Christian Obedience wherein we agree 'T is not their being for a Liturgy a Surpliss or a Bishop that hath heretofore influenced them to subserve the Court in Designs tending to Absoluteness but they were seduced unto it upon Motives whereof they are now ashamed and the ridiculousness and folly of which they have at last discever'd Nor is the multitude of profligate and scandalous persons with which the Church of England is crowded any just impeachment of the Purity of her Doctrine in the Vitals and Essentials of Religion or of the Vertue and Piety of many of her Members For as it is her being the only Society established by Law that attracts those Vermin to her Bosom so it is her being restrained by Law from debarring them that keeps them there to her reproach and to the grief of many of her Ecclesiasticks Neither is it the fault of the Church of England that the Agents and Factors for Popery and Arbitrary Power have chosen to pass under the name of her Sons but it proceeds partly from their Malice as hoping by that means to disgrace her with all true English-men as well as with Dissenters and partly from their Craft in order thereby the better to conceal their Design and to shrowd themselves from the Censure and Punishment which had it not been for that Mask they would have been exposed unto and have undergone And I dare affirm that besides the Obligations from Religion which the Conformists are equally under with Dissenters for hindring the introduction of Popery there are several Inducements from interest which sway them to prevent its establishment wherein the Dissenters are but little concerned For though Popery would be alike afflictive to the Consciences of Protestants of all Persuasions yet they are Gentlemen and Ministers of the Church of England whole Livings Revenues and Estates have been threatned in case it had come to be established Nor would the most Loyal and obsequious Levites provided they resolve to continue Protestants be willing that their Personages and Incumbencies to which they have have no less Right by Law than the King hath to the Excise and Customs should be taken from them and bestowed upon Romish Priests by an Act of Despotical Power and of unlimited Prerogative And for the Gentlemen as I think few of them would hold themselves obliged to part with their purses to High-way-Padders though such should have a pattent from the King to rob whomsoever they met upon the Road so there will not be many inclined to suffer their Mannours and Abbey-Lands to which they have so
which they cannot help but bear his Misfortune and Lot with Patience in himself and with Compassion and Charity towards them and have his Indignation raised only against that Court which forced them to be instrumental in their Oppression and Trouble The Protestant Dissenters could not be so far void of sense as to think that the Person lately in the Throne bore them any good-Will but his drift was to screw himself into a Supremacy and Absoluteness over the Law and to get such an Authority confessed to be vested in him as when he pleased he might subvert the Established Religion and set up Popery Forby the same Power that he can dispense with the Penal Statutes against the Nonconformists he may also dispense with those against the Roman Catholicks And whosoever owneth that he hath a Right to do the first doth in effect own that he hath a Right to do the last For if he be allowed a Power for the superseding some Laws made in reference to Matters of Religion he may challenge the like Power for the superseding others of the same kind And then by the same Authority that he can suspend the Laws against Popery he may also suspend those for Protestancy And by the same Power that he can in defiance of Law indulge the Papists the Exercise of their Religion in Houses he may establish them in the publick Celebration of their Idolatry in Churches and Cathedrals yea whereas the Laws that relate to Religion are enacted by no less Authority than those that are made for the Preservation of our Civil Rights should the K. be admitted to have an Arbitrary Power over the one it is very like that by the Logick of Whitehall he might have challeng'd the same Absoluteness over the other Nor do I doubt but that the eleven Judges who gratified him with a Despoticalness over the former would when required grant him the same over the latter I know the Dissenters have been under no small Temptations both by reason of being hindred from enjoying the Ordinances of the Gospel and because of many grievous Calamities which they suffer for their Nonconformity of making Applications to the K. for some Relief by his suspending the Execution of the Laws but they must give me leave to add that they ought not for the obtaining of a little Ease to have betrayed the Kingdom and Sacrifice the Legal Constitution of the Government to the Lust and Pleasure of a Popish Prince whom nothing less would serve than being Absolute and Despotical And had he once been in the quiet Possession of an Authority to dispense with the Penal Laws the Dissenters would not long have enjoyed the Benefit of it Nor could they have denied him a Power of reviving the Execution of the Law which is part of the Trust deposited with him as Supreme Magistrate who have granted him a Power of Suspending the Laws which the Rules of the Government precluded him from And as he might whensoever he pleased cause the Laws to which they were Obnoxious to be executed upon them so by virtue of having an Authority acknowledged in him of superceding the Laws he might deprive them of the Liberty of meeting together to the number of Five a Grace which the Parliament thought fit to allow them under all the other Severities to which they were subjected Nor needs there any further Evidence that the Prince's challenging such a Power was an Usurpation and that the Subjects making any Application by which it seem'd allowed to him was a betraying of the Ancient Legal Government of the Kingdom whereas the most Obsequious and Servile Parliament to the Court that ever England knew not only denied this Prerogative to the late King Charles but made him renounce it by revoking his Declaration of Indulgence which he had emitted Anno 1672. And as it will be to the perpetual Honour of some of the Dissenters to have chosen rather to suffer the Severities which the Laws make them liable unto than by any Act and Transaction of theirs to undermine and weaken either the Church or the State so it will be a means both of endearing them we hope not only to the Prince of Orange now by a miraculous Providence brought in amongst us but to future Parliaments and of bringing them and the Conformists into an Union of Counsels and Endeavours against Popery and Tyranny for ever which is at this season a thing so indispensibly necessary for their common Preservation Especially when through a new and more threatning Alliance and Confederacy with France than that in 72 the King had not only engaged to act by and observe the same Measures towards Protestants in England which that Monarch hath vouchsafed the World a Pattern and Copy of in his carriage towards those of the Reformed Religion in France but had promised to disturb the Peace and Repose of his Neighbours and to commence a War in conjunction with that Prince against Foreign Protestants For as the King 's giving Liberty and Protection to the Algerines to frequent his Havens and sell the Prizes which they take from the Dutch is both a most infamous Action for a Prince pretending to be a Christian and a direct Violation of his Alliance with the States General so nothing can be more evident than that he thereby sought to render them the weaker for him to assault and that he was resolved if some unforeseen and extraordinary Providence had not interposed and prevented to declare War against them the next Summer in order whereunto great Remises of Money were already ordered him from the French Court So that the Indulgence which he pretends to be inclinable to afford the Dissenters was not an effect of Kindness and Good-will but an Artifice whereby to oblige their Assistance in destroying those Abroad of the same Religion with themselves Which if he could once compass it were easie to foresee what Fate both the Dissenters and they of the Communion of the Church of England were to expect Who as they would not then have known whither to retreat for shelter so they would have been destitute of Comfort in themselves and deprived of Pity from others not only for having through their Divisions made themselves a Prey to the Papists at Home but for having been accessary to the Ruin of the Reformed State Abroad and which was the Asilum and Sanctuary of all those that were elsewhere oppressed and persecuted for Religion Gloria Deo Optimo Maximo Honos Principi nostri celcissimo pientissimo A Representation of the Threatning Dangers Impending over Protestants in Great Britain With an Account of the Arbitrary and Popish Ends unto which the Declaration for Liberty of Conscience in England and the Proclamation for a Toleration in Scotland are designed THey are great Strangers to the Transactions of the World who know not how many and various the Attempts of the Papists have been both to hinder all Endeavours towards a Reformation and to overthrow and subvert it
Means for preserving themselves 't is become a necessary Duty and an indispensible Service to Mankind to deal plainly and above-board that so by describing Kings as they are and setting them in a true and just Light we may prevent the Peoples being further imposed upon or if through suffering themselves to be still deceived they come to fall under Miseries and Persecutions they may lay all their Distresses and Desolations at the Door of their own Folly in not having taken care how to avoid what they were not only threatned with but whereof they were warned and advertised History of the Times For as I am not of Sir Roger l'Estrange's mind That if we cannot avoid being distrustful of our Safety yet it is extremely Vain foolish and extravagant to talk of it so I am very sensible how many of the French Ministers by painting forth their King more like a God than a Man and by possessing their People with a belief of Wisdom Justice Grace and Mercy in Him of which they knew him destitute they both emboldned Him to attempt what he hath perpetrated and laid them under Snares which they knew not how to disentangle themselves from in order to escape it Nor would the King of England have acted with that neglect of the future Safety of the Papists nor have exposed them to the Resentment and hereafter Revenge of three Nations by the Arbitrary and Illegal Steps he hath made in their Favor if he intended any thing less than the putting Protestants for ever out of Capacity and Condition of calling them to a Reckoning and exacting an Account of them which neither He nor they about him can have the weakness to think they have sufficiently provided against without compelling us by an Order of à la mode France Missionaries to turn Catholicks or by adjudging us to Mines and Galleys according to the Versailles President for our Heretical Stubbornness or which is the more expeditious way of Converting three Kingdoms to cause Murther the Protestant Inhabitants according to the Pattern which his Loyal Irish Catholicks endeavored to have set anno 1641. for the Conversion of that Nation Had his Majesty been contented with the bare avowing and publishing himself to be of the Communion of the Church of Rome and of challenging a Liberty though against Law for the Exercise of his Religion it might have awakened our Pity and Compassion to see him embrace a Religion where there are so many Impediments of Salvation and in doing whereof he was become obnoxious unto the Imprecation of his Grandfather who wished the Curse of God to fall upon such of his Posterity as should at any time turn Papists but it would have raised no intemperate Heats in the Minds of any against him much less have alienated them from the Subjection and Obedience which are due unto their Sovereign by the Laws of the several Kingdoms and the Fundamental Rules of the respective Constitutions Or could He have been contented with waving the rigorous Execution of the Laws against Papists of whatsoever Quality Rank or Order they were and with the bestowing personal and private Favors upon those of his Religion it would have been so far from begetting Rancor or Discontent in his Protestant Subjects that they would not only have connived at and approved such a Procedure and those little Benignities and Kindnesses but had the Papists quietly acquiesced in them and modestly improved them it might have been a means of reconciling the Nation to more Lenity towards them for the future and might have influenced our Legislators when God shall vouchsafe us a Protestant on the Throne to moderate the Severities to which by the Laws in being they are obnoxious and to render their Condition as easie and safe as that of other Subjects and only to take care for precluding them such Places of Power and Trust as should prevent their being able to hurt us but could bring no damage or inconvenience upon themselves But the King instead of terminating here and allowing only such Graces and Immunities to the Papists as would have been enough for the placing them in the private Exercise of their Religion with Security to them and without any threatning Danger to us He hath not only suspended all the penal Laws against Roman Catholicks but He hath by an usurped Prerogative that is paramount to the Rules of the Constitution and to all Acts of Parliament dispensed with and disabled the Laws that enjoin the Oath of Allegiance and Supremacy and which appoint and prescribe the Tests that were the Fences which the Wisdom of the Nation had erected for preserving the Legislative Authority securing the Government and keeping Places of Power Magistracy and Office in the hands of Protestants and thereby of continuing the Protestant Religion and English Liberties to our selves and the Generations that shall come after us And as if this were not sufficient to awaken us to a Consideration of the danger we are in of having our Religion supplanted and overthrown He hath not only advanced the most violent Papists unto all Places of Military Command by Sea and Land but hath establish'd many of them in the chief Trusts and Offices of Magistracy and Civil Judicature so that there are scarce any continued in Power and Employment save they who have either promised to turn Roman Catholicks or who have engaged to concur and assist to the Subverting our Liberties and Religion under the Mask and Disguise of Protestants 'T is already evident that it is beyond the help and relief of all Peaceable and Civil means to preserve and uphold the Protestant Religion in Ireland and that nothing but Force and an intestine War can retrieve it unto and re-establish it there in any degree of Safety Nor is it less apparent from the Arbitrary and Tyrannous Oath ordained to be required of His Majesties Protestant Subjects in Scotland whereby they are to swear Obedience to Him without Reserve that our Religion is held only precariously in that Kingdom and that whensoever He shall please to command the Establishment of Popery and to enjoin the People to enter into the Communion of the Church of Rome he expects to have his Will immediately conformed unto and not to be disputed or controlled But lest what we are to expect from the King as to the Extirpation of the Reformed Religion and the inflicting the utmost Severities upon his Protestant Subjects that Papal Rage armed with Power can inable him unto may not so fully appear from what hath been already intimated as either to awaken the Dissenters out of the Lethargy into which the late Declaration hath cast them or to quicken those of the Church of England to that zealous care vigilancy and use of all Lawful means for preserving themselves and the Protestant Religion that the impendent Danger wherewith they are threatned requires at their hands I shall give that farther Confirmation of it from Topicks and Motives of Credibility Moral Political
and Historical as may serve to place it in the brightest Light and fullest Evidence that a matter future and yet to come which is only the object of our prospect and dread and not of our feeling and experience is capable of It ought to be of weight upon the minds of all English Protestants that the King of Great Britain is not only an open and avow'd Papist but as most Apostates use to be a fiery Bigot in the Romish Religion and who as the Leige Letter from a Jesuit to a Brother of the Order tells us is resolved either to Convert England to Popery or to dye a Martyr Nor were the Jewish Zealots of whose rageful Transports Josephus gives us so ample an Account nor the Dervises among the Turks and Indians of whose mad Attempts so many Histories make mention more brutal in their Fanatical Heats than a Popish Bigot useth to be when favored with Advantages of exerting his Animosity against those who differ from him if he be not carefully watched against and restrained Beside the innumerable Instances of the Tragical Effects of Romish Bigottry that are to be met with in Books of all kinds we need go no farther for an Evidence of it than to consult the Life of Dominick the great Instigator and Promoter of the Massacre of the Waldenses and the Founder of that Order which hath the Management of the Bloody Inquisition together with the Life of Henry the Third of France who contrary to the Advice of Maximilian the Emperor and the repeated Intreaties of the wisest of his own Counsellors the Chancellor de l' Hospital and the President de Thou not only revived the War and Persecution against his Reformed Subjects after he had seen what Judgments the like Proceedings had derived upon his Predecessors and how prejudicial they had proved to the Strength Glory and Interest of his Crown and Kingdom but he entred into a League with those that fought to depress abdicate and depose him and became the Head of a Faction for the destroying that part of his Subjects upon whom alone he could rely for the defence of his Person and support of his Dignity Nor were the Furies of the Duke de Alva heretofore or the present Barbarities of Louis the Fourteenth so much the Effects of their haughty and furious Tempers as of their Bigottry in their inhuman and sanguinary Religion That the King of England is second to none in a blind and rageful Popish Zeal his Behaviour both while a Subject and since he arrived at the Crown doth not only place it beyond the limits of a bare Suspition but affords us such Evidences of it as that none in consistency with Principles of Wisdom and Discretion can either question or contradict it To what else can we ascribe it but to an excessive Bigottry That when the Frigot wherein he was Sailing to Scotland anno 1682. struck upon the Sands and was ready to sink he should prefer the Lives of one or two pitiful Priests to those of Men of the greatest Quality and receive those Mushroons into the Boat in which himself escaped while at the same time he refused to admit not only his own Brother-in-Law but divers Noblemen of the Supremest Rank and Character to the benefit of the same means of Deliverance and suffered them to perish though they had undertaken that Voyage out of pure respect to his Person and to put an Honor upon him at a Season when he wanted not Enemies Nor can it proceed from any thing but a violent and furious Bigottry that he should not only disoblige and disgust the two Universities of whose Zeal to his Service he hath receiv'd so many seasonable and effectual Testimonies but to the Violation both of the Laws of God and the Kingdom offer force to their Consciences as well as to their Rights and Franchises and all this in favor of Father Francis whom he would illegally thrust into a Fellowship in Cambridge and of Mr. Farmer whom he would arbitrarily obtrude into the Headship of a College in Oxford who as they are too despicable to be owned and stood for in Competition against two famous Universities whose greatest Crime hath been an Excess of Zeal for his Person and Interest when he was Duke of York and a measure of Loyalty and Obedience unto him since he came to the Crown beyond what either the Rules of Christianity or the Laws of the Kingdom exact from them so he hath ways enough of expressing Kindness and Bounty to those two little contemptible Creatures and that in Methods as beneficial to them as the Places into which he would thrust them can be supposed to amount unto and I am sure with less Scandal to himself and less Offence to all Protestants as well as without offering Injury to the Rights of the University or of compelling those learned grave and venerable Men to perjure themselves and act against their Duties and Consciences The late Proceedings towards Dr. Burnet are not only contrary to all the Measures of Justice Law and Honor but argue a strange and furious Bigottry in His Majesty for Popery there being nothing else into which a Man can resolve the whole Tenor of his present Actings against Him seeing setting aside the Doctor 's being a Protestant and a Minister of the Church of England and his having vindicated the Reformation in England from the Calumnies and Slanders wherewith it was aspersed by Sanders and others of the Roman Communion and the approving himself in some other Writings worthy of the Character of a Reformed Divine and of that esteem which the World entertains of him for Knowledge in History and all other parts of good Learning there hath nothing occurred in the whole Tenor and Trace of his Life but what instead of Rebuke and Censure hath merited Acknowledgments and the Retributions of Favor and Preferment from the Court. Whosoever considers his constant Preaching up Passive Obedience to such a Degree and Height as he hath done may very well be surprised at the whole Method of their present Actings towards him and at the same time that they find cause to justifie the Righteousness of God in making them the Instruments of his Persecution whom in so many ways he had sought to oblige they may justly conclude that none save a Bigotted Papist could be the Author of so insuitable as well as illegal and unrighteous Returns For as to all whereof he is accused in the Criminal Letters against him bearing date the 19th of April 1687. I my self am both able to assert his Innocence and dare assure the World that none of the Persons whom he is charged to have conspired with against the King would have been so far void of Discretion knowing his Principles as to have transacted with him in Matters of that kind but whether his Letters since that to the Earl of Middletoune with the Paper inclosed in one of them have administred any Legal Ground for their Second Citation
that upon pretended Occasions arising from the Abuse of this Indulgence or for some alledged Crimes wherein they and all other Protestants are to be involved tho their supineness and excess of Loyalty continue to be their greatest Offences this Liberty will not only be withdrawn and the old Church of England Severities revived but some of the new à là mode à France Treatments come upon the Stage and be pursued against them and all other perverse and obstinate British Hereticks The Declaration for Liberty of Conscience being injurious to the Church of England and not proceeding from any inward and real good Will to the Dissenters it will be worth our pains to inquire into and make a more ample Deduction of the Reasons upon which it was granted that the Grounds of emitting it being laid under every Man's view they who have Addressed may come to be asham'd of their Simplicity and Folly they who have not may be farther confirm'd both of the Unlawfulness and Inconveniency of doing it and that all who preserve any regard to the Protestant Religion and the Laws of England may be quickened to the use of all legal and due means for preventing the mischievous Effects which it is shapen for and which the Papists do promise themselves from it The Motives upon which His Majesty published the Declaration may be reduced to three of which as I have already made some mention so I shall now place every one of them in its several and proper light and give such Proofs and Evidence of their being the great and sole Inducements for the Emitting of it that no rational Man shall be able henceforth to make a doubt of it The first is the King's winding himself into a Supremacy and Absoluteness over the Law and the getting it acknowledged and calmly submitted unto and acquiesced in by the Subjects The Monarchies being Legal and not Despotical bounded and regulated by Laws and not to be exercised according to mere Will and Pleasure was that which he could not digest the thoughts of when a Subject and had been heard to say That he had rather Reign a day in that Absoluteness that the French King doth than an Age tied up and restrained by Rules as his Brother did And therefore to perswade the Prince of Orange to approve what he had done in dispensing with the Laws and to obtain him and the Princess to joyn with His Majesty and to employ their Interest in the Kingdom for the Repealing the Test Acts and the many other Statutes made against Roman Catholicks he used this Argument in a Message he sent to their Royal Highnesses upon that Errand that the getting it done would be greatly to the Advantage and for the increase of the Prerogative but this these two noble Princes of whose Ascent to the Throne all Protestants have so near and comfortable a Prospect were too Generous as well as Wise to be wheedled with as knowing that the Authority of the Kings and Queens of England is great enough by the Rules of the Constitution without grasping at a new Prerogative Power which as the Laws have not vested in them so it would be of no use but to inable them to do hurt And indeed it is more necessary both for the Honor and Safety of the Monarch and for the Freedom and Security of the People that the Prerogative should be confined within its ancient and legal Channels than be left to that illimited and unbounded Latitude which the late King and his present Majesty have endeavored to advance and screw it up unto That both the Declaration for Liberty of Conscience in England and the Proclamation for a Toleration in Scotland are calculated for raising the Sovereign Authority to a transcendent Power over the Laws of the two Kingdoms may be demonstrated from the Papers themselves which lay the Dispensing Power before us in terms that import no less than his Majesty's standing Free and absolved from all Ties and Restraints and his being cloathed with a Right of doing whatsoever he will For if the Stile of Royal Pleasure to suspend the Execution of such and such Laws and to forbid such and such Oaths to be required to be taken and this in the virtue of no Authority declared by the Laws to be resident in his Majesty but in the virtue of a certain vagrant and indeterminate thing called Royal Prerogative as the Power exercised in the English Declaration is worded and expressed be not enough to enlighten us sufficiently in the matter before us the Stile of Absolute Power which all the Subjects are to obey without reserve whereby the King is pleased to chalk before us the Authority exerted in the Scots Proclamation for the stopping disabling and dispensing with such and such Laws as are there referred unto and for the granting the Toleration with the other Liberties Immunities and Rights there mentioned is more than sufficient to set the Point we are discoursing beyond all possibility of rational controll As 't is one and the same Kind of Authority that is claimed over the Laws and Subjects of both Kingdoms tho for some certain reasons it be more modestly designed and expressed in the Declaration for a Liberty in England that it is in the Proclamation for a Toleration in Scotland so the utmost that the Czar of Mosco the great Mogul or the Turkish Sultan ever challenged over their respective Dominions amounts only to an Absolute Power which the King both owns the Exertion of and makes it the Fountain of all the Royal Acts exercised in the forementioned Papers And as the improving this challenged Absolute Power into an Obligation upon the Subjects to obey his Majesty without reserve is a Paraphrase upon Despotical Dominion and an advancing it to a Pitch above what any of the Ancient or Modern Tyrants ever dream'd of and beyond what the most servile part of Mankind was ever acquainted with till the present French King gave an Instance of it in making his mere Will and pleasure to be the Ground and Argument upon which his Reformed Subjects were to renounce their Religion and to turn Roman Catholicks so it is worth considering whether His Majesty who glories to imitate that Foreign Monarch may not in a little time make the like Application of this Absolute Power which his Subjects are bound to obey without reserve and whether in that case they who have Addressed to thank him for his Declaration and thereby justified the Claim of this Absolute Power being that upon which the Declaration is superstructed and from which it emergeth can avoid paying the Obedience that is demanded as a Duty in the Subject inseparably annexed thereunto That which more confirms us that the English Declaration and the Scots Proclamation are not only designed for the obtaining from the Subjects an Acknowledgment of an Absolute Power vested in the King but that no less than the Usurpation and Exercise of such a Power can warrant and support them are
seeing it hath been and still is their Custom to require the Belief of the Corporal Presence in the Sacrament as that upon the not Acknowledgment whereof we are to be accounted Hereticks and to stand condemned to be Burnt which is somewhat worse than the not being allowed to sit in the Two Houses of Parliament or to be shut out from a Civil or Military Office Neither are they required to Declare much less to Swear that the Doctrine of Transubstantiation is False or that there is no such thing as Transubstantiation as is affirmed in a Scurrilous Paper written against the Loyalty of the Church of England but all that is enjoyned in the Test Acts is that 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 Prrson whatsoever Tho the Parliament was willing to use all the Care they could for the discovering Papists that the Provision for our Security unto which those Acts were designed might be the more effectual yet they were not so void of Understanding as to prescribe a Method for it which would have exposed them to the World for their Folly 'T is much different to say Swear or Declare that I do believe there is not any Transubstantiation and the saying or declaring that there is not a Transubstantiation the former being only expressive of what my Sentiment or Opinion is and not at all affecting the Doctrine it self to make or unmake it other than what it is independently upon my Judgment of it whereas the latter does primarily Affect the Object and the Determination of its Existence to such a Mode as I conceive it and there are a thousand things which I can say that I do not believe but I dare not say that they are not Now as 't is the dispensing with these Laws that argues the King's assuming an Absolute Power so the Addressing by way of Thanks for the Declaration wherein this Power is exerted is no less than an owning and acknowledging of it and that it rightfully belongs to him There is a third thing which Shame or Fear would not suffer them to put into the Declaration for Liberty of Conscience in England but which they have had the Impudence to insert into the Proclamation for a Toleration in Scotland which as it carries Absolute Power written in the forehead of it so it is such an unpresidented Exercise of Despoticalness as hardly any of the Oriental Tyrants or even the French Leviathan would have ventured upon For having stop'd disabled and suspended all Laws enjoyning any Oaths whereby our Religion was secured and the Preservation of it to us and our Posterity was provided for he imposeth a new Oath upon his Scots Subjects whereby they are to be bound to defend and maintaim him his Heirs and lawful Successors in the Exercise of their Absolute Power and Authority against all deadly The imposing an Oath upon Subjects hath been always look'd upon as the highest Act of Legislative Authority in that it affects their Consciences and requires the Approbation or Disapprobation of their Minds and Judgments in reference to whatsoever it is enjoyned for whereas a Law that affects only Mens Estates may be submitted unto tho in the mean time they think that which is exacted of them to be Unreasonable and Unjust And as it concerns both the Wisdom and Justice of Law-givers to be very tender in ordaining Oaths that are to be taken by Subjects and that not only from a care that they may not prostitute the Name of God to Prophanation when the matter about which they are imposed is either light and trivial or dubious and uncertain but because it is an Exercise of Jurisdiction over the Souls of Men which is more than if it were only exercised over their Goods Bodies and Privileges so never any of our Kings pretended to a Right of enjoyning and requiring an Oath that was not first enacted and specified in some Law and it would have been heretofore accounted a good Plea for refusing such or such an Oath to say there was no Statute that had required it It was one of the Articles of High Treason and the most material charged upon the Earl of Strafford that being Lord Deputy of Ireland he required an Oath of the Scots who inhabited there which no Law had ordained or prescribed which may make those Counsellors who have advised the King to impose this new Oath as well as all others that shall require it to be taken upon his Majesty's bare Authority to be a little apprehensive whether it may not at some time rise in Judgment against them and prove a Forfeiture of their Lives to Justice And as the imposing an Oath not warranted by Law is an high Act of Absolute Power and in the King an altering of the Constitution so if we look into the Oath it self we shall find this Absolute Power strangely manifested and displayed in all the Parts and Branches of it and the People required to Swear themselves his Majesty's most obedient Slaves and Vassals By one Paragraph of it they are required to Swear that it is unlawful for Subjects on any pretence or for any Cause whatsoever to rise in Arms against him or any Commissioned by him and that they shall never resist his Power or Authority which as it may be intended for a Foundation and means of keeping Men quiet when he shall break in upon their Estates and overthrow their Religion so it may be designed as an Encouragement to his Catholick Subjects to set upon the Cutting Protestants Throats when by this Oath their Hands are tied up from hindering them It is but for the Papists to come Authorised with his Majesty's Commission which will not be denied them for so meritorious a Work and then there is no Help nor Remedy but we must stretch out our Necks and open our Breasts to their Consecrated Swords and Sanctified Daggers Nay if the King should transfer the Succession to the Crown from the Rightful Heir to some zealous Romanist or Alienat and dispose of his Kingdoms in way of Donation and Gift to the Pope or to the Society of the Jesuits and for the better securing them in the Possession hereafter should invest and place them in the Enjoyment of them while he lives the Scots are bound in the virtue of this Oath tamely to look on and calmly to acquiesce in it Or should his Physicians advise him to a nightly Variety of Matrons and Maids as the best Remedy against his malignant and venomous Heats all of that Kingdom are bound to surrender their Wives and Daughters to him with a dutiful Silence and a profound Veneration And if by this Oath he can secure himself from the Opposition of his Dissenting Subjects in case through recovery of their Reason a Fit of ancient Zeal should surprize them he is otherways
of his Understanding fully declares it However here is such a stroke and exercise of Absolute power as Dissolves the Government and brings us all into a State of Nature by discharging us from the ties which by virtue of Fundamental Stipulations and Statute Laws we formerly lay under forasmuch as we know no King but a King by Law nor no Power he hath but a legal Power Which through disclaiming by a challenge that the whole Legislative Authority does reside in himself he hath thrown the Gantler to three Kingdoms and provokes them to a tryal whether he be ablest to maintain his Absoluteness or they to justifie their being a free People And by virtue of the same Royal will and pleasure that he annuls which he calls suspending the Laws enjoyning the Tests and the Oaths of Allegiance and Supremacy and commands that none of these Oaths and Declarations shall at any time hereafter be required to be taken he may in some following Royal Papers give us White-hall or Hampton Court Edicts conformable to those at Verfailles which at all times hereafter we shall be bound to submit unto and stand obliged to be ruled by instead of the Common Law and Statute Book Nor is the taking upon him to stamp us new Laws exclusively of Parliamentary concurrence in the virtue of his Royal Prerogative any thing more uncouth in it self or more disagreeable to the Rules of the Constitution and what we have been constantly accustomed unto than the cassing disabling and abrogating so many old ones which that obsolete out of date as well as ill favoured thing upon Monarchs called a Parliament had a share in the enacting of I will not say that our Addressers were conscious that the getting an Absolute Power in his Majesty to be owned and acknowledged was one of the Ends for which the late Declaration was calculated and emitted but I think I have sufficiently demonstrated both that such a power it issueth and flows from and that such a power is plainly exercised in it Which whether their coming now to be told and made acquainted with it may make them repent what they have done or at least prevent their being accessory to the support of this Power in other mischievous effects that are to be dreaded from it I must leave to time to make the discovery it being impossible to foretell what a People fallen into a phrenzie may do in their paroxisms of distraction and madness Nor was the scruing himself into the possession of an Absolute power and the getting it to be owned by at least a part of the people the only Motive to the publishing the Declaration for Liberty of Conscience in England and the Proclamation for a Toleration in Scotland but a second inducement that sway'd unto it was the undermining and subverting the Protestant Religion and the opening a door for the introduction and establishment of Popery Nor was it from any compassion to Dissenters that these two Royal Papers were emitted but from his Majesty's tender love to Papists to whom as there arise many advantages for the present so the whole benefit will be found to redound to them in the issue We are told as I have already mentioned that the King is resolved to convert England or to die a Martyr and we may be sure that if he did not think the suspending the penal Laws and the dispensing with requiring of the Tests and the granting Liberty and Toleration to be means admirably adapted thereunto he would not have acted so inconsistently with himself nor in that opposition to his own designs as to have disabled these Laws and vouchsafed the Freedom that results thereupon Especially when we are told by the Liege Jesuit that the King being sensible of his growing old finds himself thereby obliged to make the greater haste and to take the larger steps lest through not living long enough to effect what he intends he should not only lose the glory of converting three Kingdoms but should leave the Papists in a worse condition than he found them His Highness the Prince of Orange very justly concludes this to be the thing aim'd at by the present Indulgence and therefore being desired to approve the Suspension of the Test Acts and to co-operate with his Majesty for the obtaining their being Repealed was pleased to answer That while he was as well as professeth himself a Protestant he would not act so unworthily as to betray the Protestant Religion which he necessarily must if he should do as he was desired Her Royal Highness the Princess of Orange has likewise the same apprehension of the tendency of the Toleration and Indulgence and therefore was pleased to say to some Scots Ministers that did themselves the honor and performed the duty that became them in going to wait upon her that she greatly commended their having no accession to the betraying of the Protestant Religion by their returning home to take the benefit of the Toleration What an indelible Reproach will it be to a company of men that pretend to be set for the defence of the Gospel and who stile themselves Ministers of Jesus Christ to be found betraying Religion thro justifying the Suspension of so many Laws whereby it was established and supported and whereby the Kingdoms were fenced about and guarded against Popery while these two noble Princes to the neglect of their own Interest in His Majesty's Favour and to the provoking him to do them all the prejudice he can in their Right of Succession to the Imperial Crown of Great Britain do signifie their open dislike of that Act of the King and that not only upon the account of its Illegality and Arbitrariness but by reason of its tendency to supplant and undermine the Reformed Religion And they are strangely blind that do not see how it powerfully operates and conduceth to the effecting of this and that in more ways and methods than are easie to be recounted For thereby our divisions are not only kept up at a time when the united Counsels and strength of all Protestants is too little against the craft and power of Rome but they who have Addressed to thank the King for his Royal Papers and become a listed and enrolled Faction to abet and stand by the King in all that naturally follows to be done for the maintaining his Declaration and justifying of the usurped Authority from which it issues 'T is matter of a melancholy consideration and turns little to the credit of Dissenters that when they of the Church of England who had with so great indiscretion promoted things to that pass which an easie improvement of would produce what hath since ensued are through being at last enlightned in the designs of the Court come so far to recover their wits as that they can no longer do the service they were wont and which was still expected from them there should be a new Tribe of men muster'd up to stand in their room and who by their
Fear or Courtship have enrolled themselves into the List of Addressers and under pretence of giving thanks to the King for his promise of protecting the Archbishops Bishops and Clergy and all other of the Church of England in the free exercise of their Religion as by Law established have cut the throat of their Mother at whose breasts they have suck'd till they are grown fat both by acknowledging the usurped Prerogative upon which the King assumes the Right and Authority of emitting the Declaration and by exchanging the legal standing and security of their Church into that precarious one of the Royal Word which they fly unto as the bottom of her Subsistence and trust to as the wall of her defence And as most of the Members of the Separate Societies are free from all accession to Addressing and the few that concurred were merely drawn in by the wheedle and importunity of their Preachers so they who are of the chiefest Character and greatest reputation for Wisdom and Learning among the Ministers have preserved themselves from all folly and treachery of that kind The Apostle tells us that not many wise not many noble are called which as it is verified in many of the Dissenting Addressers so it may serve for some kind of Apology for their low and sneaking as well as for their indiscreet and imprudent behaviour in this matter And it is the more venial in some of them as being not only a means of ingratiating themselves as they fansie with the King who heretofore had no very good opinion of them but as being both an easie and compendious method of Attoning for Offences against the Crown of which they were strongly suspected and a cheap and expenceless way of purchasing the pardon of their Relations that had stood actually accused of High Treason Nor is it to be doubted but that as the King will retain very little favour and mercy for Fanaticks when once he has served his Ends upon them so they will preserve as little kindness for the Papists if they can but obtain relief in a legal way And as there is not a People in the Kingdom that will be more loyal to Princes while they continue so to govern as that Fealty by the Laws of God or Man remains due to them so there are none of what Principles or Communion soever upon whom the Kingdom in its whole interest come to lye at stake may more assuredly and with greater confidence depend than upon the generality of Dissenting Protestants and especially upon those that are not of the Pastoral Order The severities that the Dissenters lay under before and their deliverance from Oppression and Disturbance now seconded with the Kings expectation and demands of thanksgiving Addresses were strong Temptations upon men void of generosity and greatness of spirit and who are withal of no great political Wisdom nor of prospect into the Consequences of Councils and Tricks of State to act as illegally in their thanks as his Majesty had done in his bounty So that whatsoever Animadversion they may deserve should they be proceeded against according to their demerit yet it is to be hoped that both they and the Addressers of the former stamp may all find room in an Act of Indemnity and that the Mercy of the Nation towards them will triumph over and get the better of its Justice As it would argue a strange and judicial infatuation should they proceed to farther excesses and think to escape the Punishment due to one Crime by committing and taking sanctuary in another thro improving their Complements into actions of Treachery so all their hope of Pardon as well as of Lenity and Moderation from a true Protestant and rightly constituted Authority depends upon their conduct and behaviour henceforward and their not suffering themselves to be hurried and deluded into a cooperation with the Court for the obtaining of a Popish Parliament All their endeavours of that kind would but more clearly detect and manifest their treachery to Religion and the Kingdom it not being in their power to out-vote the honest English part of the People so as to help the King to such a House of Commons as he desires and were it possible that thro their assistance in conjunction with violence and tricks used in Elections and Returns by the Court such a House of Commons might be obtained as would be serviceable to Arbitrary and Papal Ends yet neither the King nor they would be the nearer the compassing what is aim'd at it being demonstrable that the majority of the House of Lords are never to be wrought over to justifie this illegal Declaration or to grant the King a Power of Suspending Laws at his pleasure nor to give their Assent to a Bill for Repealing the Test Acts and the Statutes that enjoyn and require the Oaths of Allegiance and Supremacy And if they should be so far left of God and betray'd by those among themselves whom the Court hath gained as to become guilty of so enormous an act of folly and villany and should the Election of the next Parliament be the happy juncture they wait for and the improving their interest as well as the giving their own Votes for the Choice of Papists into the House of Commons be what they mean by an essential proof of their Loyalty and of the sincerity of their humble Addresses See Mr. Alsop's Speech to the King and that whereby they intend to demonstrate that the greatest thing they have promised is the least thing they will perform for his Majesties service and satisfaction as in that case they will deserve to forfeit all hopes of being forgiven so it would be an infidelity to God and Men and a cruelty to our selves and our Posterity not to abandon them as betrayers of Religion expunge them out of the Roll of Protestants strip them of all that wherein free Subjects have a Legal Right and not to condemn them to the utmost punishments which the Laws of the Kingdom adjudge the worst of Traitors and Malefactors unto There are some who thro hating of them do wish their miscarrying and offending to so unpardonable a degree that they may hereafter be furnished with an advantage both of ruining them and the whole Dissenting Party for their sakes But as the love that I bear unto them and the perswasion and belief I have of the truth of their Religious Principles do make me exceeding sollicitous to have them kept and prevented from being hurried and transported into so fatal and criminal a behaviour so I desire to make no other excuse for my plain dealing towards them but that of Solomon who tells us that faithful are the wounds of a friend while the kisses of an Enemy are deceitful and that he who rebukes a man shall find more favour afterwards than he who flattereth with the tongue POSTSCRIPT SInce the foregoing Sheets went to the Press and while they were Printing off there is come to my hands a new
at York Nov. 1688. Wherein is shewed That it is neither against Scripture nor Moral honesty to defend their Just and Legal Rights against the Illegal Invaders of them Occasioned then by some Private Debates and now submitted to better Judgments The present Undertaking of the Gentlemen at York Nov. 88. taken into Consideration wherein is shewed That it is neither against Scripture nor moral Honesty to defend their Just and Legal Rights against the Illegal and Unjust Invaders of them by way of Objection and Answer 1. THat it is not against Scripture is shewed Obj. 1 2 3. 2. That it is not inconsistent with the Frame of the Government in General Obj. 4. 3. Not against the Law but the Law-breakers Obj. 5. 4. Not Rebellion Obj. 6. 5. No Vsurpation of the Power of the Sword Obj. 7. 6. No unlawful Act in a moral Sense Obj. 8. 7. Not against true Allegiance Obj. 9. 8. Not against the Declaration in a Legal Sense Obj 10. 9. Not against Political Power but Force without Political Power Obj. 11. 10. Not against any Royal Prerogative in general Obj. 12. 11. Not against the Supremacy Obj. 13. 12. Not Criminal Disobedience Obj. 14. 13. Not incommodious or unsafe for the Publick in respect of the present and approaching Evils in removes Obj. 15 16. 14. No disparagement to the Frame of the Government that cannot otherwise decide an obstinate difference between King and People Obj. 17. Lastly The Conclusion shewing That Non-resistance of illegal Force does in effect make all Monarchs Arbitrary and the People Slaves The Thoughts of a Private Person c. MEn have three Rules to walk by which we may call Laws that is Nature Reason and Religion and answerable to these three a Christian hath three Principles that is Sensitive Rational and Spiritual which I take to be the distinction that St. Paul makes 1 Thes 5.23 I pray God your whole Spirit Soul and Body be preserved blameless unto the coming of our Lord Jesus Christ Nature considers all Men as single Persons and directs them to Self-interest and Self-preservation as the chief end Reason considers Men as sociable Creatures and directs them to unite the Government for the publick Good inclusive of their own Safety as the chief End And the Spirit considers Men as Candidates for Heaven and directs them to live according to the Word of God that they may attain Eternal Happiness the chief End of Man All these have the divine Warrant and are of force where the Lower is not superseded by the Higher A single Person is not to expose himself to ruin unless it be for the Publick good and the Publick are not to expose themselves to Beggary and Slavery unless it be for the Kingdom of Heaven Now though these Rules may be considered separate and apart yet they all ought to be in a Christian Government Laws for the publick Good do not destroy the Law of Nature but supersede it for a greater Good and the Laws of God do not destroy the Law of Reason but supersede it for a higher end and so makes it still more Reasonable to do so Nothing therefore can justifie a Private Injury but the Publick Good and nothing can hinder the Publick Good for being carried on but Sin For these Laws are not destructive but supportive of one another and all supportive of Man When a Man cannot defend himself by the Method and Measures of the Publick as in case of sudden Assaults he may by the Law of Nature break the Peace and smite his Adversary to save his own life because humane Laws can reward no Person 's obedience with so good a thing as life and therefore the publick good excepted his life is to be preferred before all forms of Law But it is not so with the Laws of God for if I be urged to deny my Faith or dye I must dye rather than break God's Law because God will give me a better Life and an infinite Reward Necessity can suspend a positive Law of Man that is merely such but it cannot supersede what is established by God or Nature an Act therefore that is civilly Unlawful may notwithstanding be Lawful because it is not Lawless but under a more extensive Law If it be according to the Laws of God or sound Reason the Conscience is safe and the Act commendable before God and good Men though it be against the form of Political Law For though it be against the Form it is not against the Reason of that Law and the Form not being extensive enough of Man's safety it must give place to necessity and absolve him of his duty when his duty would destroy him The Safety of Man shows us both the Necessity and End of humane Government for when private Persons found they could not be Safe they were willing to enter into Compacts and Associations and reposite their private Safety in the publick Interest And therefore if after this Association some of their Fellows will break the Covenants and go about to destroy the Rest it is lawful both by the Laws of God and Man for the injured to defend themselves and by the Laws and Compacts by them made and consented to on both sides for the publick Good Otherwise it would be unlawful to resist Injustice and consequently a Thief or a Robber Object 1. But you will say in all Governments there are Superiours and Inferiours and God has made Obedience a part of Religion and consequently conducive to a higher end than the Publick Good and therefore if the Governours break the Laws and introduce a Publick Evil for a Private Interest they must not be resisted upon pain of Damnation Answ This were a good Plea if it were true but God is not the Patron of Injustice and therefore he gives no Prince or Potentate more Authority over the People than the Tables of the Government express and of these there are diverse degrees Those that are Govern'd by the will of their Prince whose Word is a Law if he command their Persons for Slaves or Estates to serve his Ambition they must obey and God requires it of them because it is the Princes Right Arbitrary Princes have a Political Power to treat a Subject cruelly and inhumanely their Immorality is an offence against God not injustice to the Subject who had given up himself to be used at their discretion But those that are to rule by Laws made for the Publick good and such as render the Subjects Freemen not Slaves such as secures their Religion Liberty and Property if these Princes contrary to Law imprison their persons or seize their Estates they do it unjustly without God's Warrant or any Political Authority and may be resisted or else we might not resist the Devil should he creep into the Court in a Jesuits habit and Haman-like get a Commission to cut all our Throats If I be called to suffer for my Religion or the Faith of Christ I am bound to
Not by the Law of the Land Answ Yes By the Law of the Land a Petty Constables word would justifie Resistance better then the Kings Commission could justifie the illegal Attempt But suppose there were no Person that had the least Authority and that the resistance could not be within the prescribed Form of government yet because the force is an unauthoritative force and because there is greater necessity of the End of the government than of the Form Men may by the Law of Nature and the Law of Reason proceed to the End not without all Form but without the Political Form for those proceedings that are according to Reason are not simply under no Law but under a more extensive Law and that Law justifies resistance even of Superiors when there is no other way of defence left the people If the Case will admit of Intreaties or sober Counsels or legal Appeals they are to be used but if there be no room for these or if they take no place but illegal force be used that force may nay must be resisted or evil is consented to For he that will not serve the publick by that means when there is no other does actually consent to the ruine of it He that has his house on fire and will not stir to quench the flames though he be able is willing sure it should be burnt The Rules of prudence indeed are to be observed for if there be no probability that resistance will prevent the Evil the attempt is Folly and if resistance will do more harm than good it is inserviceable and if there be any other means effectual it is unreasonable for it ought to be the last refuge and then if the Cause be good Necessity justifies proceeding to the End Not by illegal Means but by suspending the Political Form and appealing to the Reason of Mankind and introducing the Law of Nature And this is no more than when Judgment at Common-Law is reversed in Chancery the Form of the Law gives place to Equity and sound Reason Obj. 6. But is it Rebellion Answ I Answer Rebellion is resisting the just Power of the Government and if so then it is no Rebellion to resist the unjust and usurped Power for then it would be Rebellion to resist Rebellion and there could be no such thing as a just defence against the exorbitant Power of Princes and then the King might Commission a Captain or a Collonel to role up and down in the Country and Plunder and it would be Rebellion in the Posse Cum. at least in any private Family to resist them And a private Commission to cut our Throats would tye our hands till the business were done But the resisting such Force as has neither Moral nor political power is no more Rebellion than to fight against a Wild Beast that came with Strength but no Authority to devour them The Papists indeed have taken up Arms without and against the just power of this Land not only against the Form of Law but to the overthrow of the Laws and Fundamental Rights of this Government directly against the Letter the Power and the End of the Law which is as inslaving to the Subjects as an usurping Conquest and it is no more Rebellion to resist them than Wat Tyler or Jack Cade They are Rebels who Arm against the government not they that defend it by Arms Obj. 7. But this is to usurp the Power of the Sword which by the Frame of the Government is wholly in the Kings Hand Answ The Political Power of the Sword indeed is in the King but that does not devest the Subject of all defence by Arms but only of such defence as is against or inconsistent with the Political Power If force be offered that wants Political Power whoever does it does it but in the Nature of a private Person and private Persons may resist such The Right of Self-defence is a precedent Right to all Policy and every Man has so much of it still as is not given up unto the Political Power he lives under They therefore that have given themselves up to be governed by Law only have Right to defend themselves not only against the private Assailant which is allowed in all Governments but also against illegal Force And this Resistance is no Usurpation upon the Magistrates Power because it is not an Act of Civil Authority but of Natural Right And if thousands joyn in the Attempt they are all Voluntiers a Multitude but no body Corporate and such as challenge no Authority over those they resist but deny Subjection to such unauthoritative Force For such Force wanting Political Power has no Power but Strength and Strength authorizes none to injure but Natural Right authorizes every one to defend himself so that in this case the Resister has a moral Power or Warrant but the illegal Invader none at all Obj. 8. But the Resisters ought not to do an unlawful Act to suppress such illegal Force Answ I Answer That Act is not simply Unlawful that wants Political Power the Law is made for the publick Good as the End and therefore if the prescribed means be not sufficient for the End the Law permits that other reasonable means be used otherwise People might dwell upon the Shadow till they 've lost the Substance The Posse Com. ought not by the prescribed form of Law to go into another County but if the other Country at that time had no Sheriff whereby the power of that County could not be raised to defend it self or if there were Ships in the Borders of the next County to which the Plunderers might escape if they were not hotly pursued I question not but the Posse Com. might do a commendable Act to pursue them and take them in the next County The Law was made for the publick Good and not the Publick Good for the Law and therefore when the Law cannot answer its own End or prescribes ineffectual Means any just and honest Means may be used and this is not destructive of the Law but suppletory not a violating the Form prescribed but an improving it And though a Man may be called to account for doing a Good Act in such a manner I suppose it is but to know the Truth of the Matter and to preserve the Reverence of the Laws for he is already cleared in his own Conscience and in the Breasts of all Good Men and a Pardon in that case does but declare it is so and ought of Right not of Grace to be granted For it is not necessary in respect of any Crime but in respect of some defect in the Law which had not made sufficient provision for the Publick Good Object 9. But it is against true Allegiance and an Oath must be kept though it be to our own hurt Answ True Allegiance must be proportioned to the Frame of the Government and the end of that Frame Therefore if the Frame be to restrain Arbitrary Power the Subject cannot
bars them of Corporal and so Man under one of the best Governments in the World is left naked in the midst of Savage Beasts for homo lupus and must not though he be able make any defence for himself Thus all the Rights of Society and Nature are sacrificed to the Lust and Age of a wicked King and his evil Instruments and the Body Politick is really in a worse Condition than an unlimited Multitude for they may defend themselves if they will against any Enemy but these have an Enemy and may not defend themselves though in never so just a Cause and what is worst of all must hold their own Hands whilst others cut their Throats Lastly This Doctrine would make all Monarchs Arbitrary Monarchs and a like in effect for if the Subjects may not nor ought if they were able resist the Prince any further than by refusing to join with him then he were Arbitrary and might do what he pleas'd without opposition he had but a Moral Restraint and the most absolute Monarch had that upon him and all Limitations in the Fundamentals of Government would be idle and superfluous because they contained only such Rights as others might take from us at pleasure and we might not defend or oppose But the end of limitted Monarchies is not that the Monarch might not lawfully or rightfully oppress for an Arbitrary Monarch is bound to all that but the end of all Limitations in Government is That the Prince may want Means as well as Right to oppress that he may not be able to injure the Subject at all either lawfully or unlawfully they are limitted to govern by Laws that they may want Means as well as Right to include the Subjects Property But the Doctrine of Non-resistance give them Means for a Temptation and is indeed but a fair Bait to draw them into a Snare An Enquiry into the Measures of Submission to the SUPREAM AUTHORITY And of the Grounds upon which it may be lawful or necessary for Subjects to defend their Religion Lives and Liberties THis Enquiry cannot be regularly made but by taking in the first place a true and full view of the Nature of Civil Society and more particularly of the Nature of Supream Power whether it is lodged in one or more Persons I. It is certain that the Law of Nature has put no difference nor subordination among Men except it be that of Children to Parents or of Wives to their Husbands so that with relation to the Law of Nature all Men are born free and this Liberty must still be supposed entire unless so far as it is limited by Contracts Provisions and Laws For a Man can either bind himself to be a Slave by which he becomes in the power of another only so far as it was provided by the Contract since all that Liberty which was not expresly given away remains still entire so that the Plea for Liberty always proves it self unless it appears that it is given up or limited by any special Agreement II. It is no less certain that as the light of Nature has planted in all Men a natural Principle of the Love of Life and of a Desire to preserve it so the common Principles of all Religion agree in this that God having set us in this World we are bound to preserve that Being which he has given us by all just and lawful Ways Now this Duty of Self-preservation is exerted in Instances of two sorts the one are in the resisting of violent Aggressors the other are the taking of just Revenges of those who have invaded us so secretly that we could not prevent them and so violently that we could not resist them In which Cases the Principle of Self-preservation warrants us both to recover what is our own with just Damages and also to put such unjust Persons out of a capacity of doing the like Injuries any more either to our selves or to any others Now in these Instances of Self-preservation this difference is to be observed that the first cannot be limited by any slow Forms since a pressing Danger requires a vigorous Repulse and cannot admit of Delays whereas the second of taking Revenges or Reparations is not of such haste but that it may be brought under Rules and Forms III. The true and Original Notion of Civil Society and Government is that it is a Compromise made by such a Body of Men by which they resign up the right of demanding Reparations either in the way of Justice against one another or in the way of War against their Neighbours to such a single Person or to such a Body of Men as they think fit to trust with this And in the management of this Civil Society great distinction is to be made between the Power of making Laws for the Regulating the Conduct of it and the Power of Executing those Laws The Supream Authority must still be supposed to be lodged with those who have the Legislative Power reserved to them but not with those who have only the Executive which is plainly a Trust when it is separated from the Legislative Power and all Trusts by their Nature import that those to whom they are given are accountable even though it should not be expresly specified in the words of the Trust it self IV. It cannot be supposed by the Principles of Natural Religion that God has authorized any one Form of Government any other way than as the general Rules of Order and of Justice oblige all Men not to subvert Constitutions nor disturb the Peace of Mankind or invade those Rights with which the Law may have vested some Persons for it is certain that as private Contracts lodg or translate private Rights so the publick Laws can likewise lodg such Rights Prerogatives and Revenues in those under whose Protection they put themselves and in such a manner that they may come to have as good a Title to these as any private Person can have to his Property so that it becomes an Act of high Injustice and Violence to invade these which is so far a greater Sin than any such Actions would be against a private Person as the publick Peace and Order is preferrable to all private Considerations whatsoever So that in truth the Principles of natural Religion give those that are in Authority no Power at all but they do only secure them in the possession of that which is theirs by Law And as no Considerations of Religion can bind me to pay another more than I indeed owe him but do only bind me more strictly to pay what I owe so the Considerations of Religion do indeed bring Subjects under stricter Obligations to pay all due Allegiance and Submission to their Princes but they do not at all extend that Allegiance further than the Law carries it And though a Man has no divine Right to his Property but has acquired it by human Means such as Succession or Industry yet he has a security for the Enjoyment of it
Cesar 's and both St. Paul in his Epistle to the Romans and St. Peter in his General Epistle have very positively condemned that pernicious Maxim but without any formal Declarations made of the Rules or Measures of Government And since both the People and Senate of Rome had acknowledged the Power that Augustus had indeed violently usurped it became Legal when it was thus submitted to and confirmed both by the Senate and People and it was established in his Family by a long Prescription when those Epistles were writ so that upon the whole matter all that is in the New Testament upon this Subject imports no more but that all Christians are bound to acquiesce in the Government and submit to it according to the Constitution that is settled by Law XI We are then at last brought to the Constitution of our English Government so that no general Considerations from Speculations about Sovereign Power nor from any Passages either of the Old and New Testament ought to determin us in this matter which must be fixed from the Laws and Regulations that have been made among us It is then certain that with relation to the executive Part of the Government the Law has lodged that singly in the King so that the whole Administration of it is in him but the Legislative Power is lodged between the King and the Two Houses of Parliament so that the Power of making and repealing Laws is not singly in the King but only so far as the Two Houses concur with him It is also clear that the King has such a determined extent of Prerogative beyond which he has no Authority as for instance if he levies Money of his People without a Law impowring him to it he goes beyond the Limits of his Power and asks that to which he has no right so that there lies no obligation on the Subject to grant it and if any in his Name use Violence for the obtaining it they are to be looked on as so many Robbers that invade our Property and they being violent Aggressours the Principle of Self-preservation seems here to take place and to warrant as violent a Resistance XII There is nothing more evident than that England is a free Nation that has its Liberties and Properties reserved to it by many positive and express Laws if then we have a right to our Property we must likewise be supposed to have a right to preserve it for those Rights are by the Law secured against the Invasions of the Prerogative and by consequence we must have a right to preserve them against those Invasions It is also evidently declared by our Law that all Orders and Warrants that are issued out in opposition to them are null of themselves and by consequence any that pretend to have Commissions from the King for those ends are to be considerd as if they had none at all since those Commissions being void of themselves are indeed no Commissions in the Construction of the Law and therefore those who act in vertue of them are still to be considered as private Persons who come to invade and disturb us It is also to be observed that there are some Points that are justly disputable and doubtful and others that are so manifest that it is plain that any Objections that can be made to them are rather forced Pretences than so much as plausible Colours It is true if the Case is doubtful the Interest of the publick Peace and Order ought to carry it but the Case is quite different when the Invasions that are made upon Liberty and Property are plain and visible to all that consider them XIII The main and great Difficulty here is that though our Government does indeed assert the Liberty of the Subject yet there are many express Laws made that lodg the Militia singly in the King that make it plainly unlawful upon any pretence whatsoever to take Arms against the King or any commissioned by him And these Laws have been put in the form of an Oath which all that have born any Employment either in Church or State have sworn and therefore those Laws for the assuring our Liberties do indeed bind the King's Conscience and may affect his Ministers yet since it is a Maxim of our Law that the King can do no wrong these cannot be carried so far as to justify our taking Arms against him be the Transgressions of Law ever so many and so manifest And since this has been the constant Doctrine of the Church of England it will be a very heavy Imputation on us if it appears that though we held those Opinions as long as the Court and the Crown have favoured us yet as soon as the Court turns against us we change our Principles XIV Here is a true Difficulty of this whole Matter and therefore it ought to be exactly considered 1. All general Words how large soever are still supposed to have a tacit exception and reserve in them if the Matter seems to require it Children are commanded to obey their Parents in all things Wives are declared by the Scripture to be subject to their Husbands in all things as the Church is unto Christ And yet how comprehensive soever these Words may seem to be there is still a reserve to be understood in them and though by our Form of Marriage the Parties swear to one another till Death them do part yet few doubt but that this Bond is dissolved by Adultery though it is not named for odious things ought not to be suspected and therefore not named upon such Occasions But when they fall out they carry still their own force with them 2. When there seem to be a Contradiction between two Articles in the Constitution we ought to examin which of the two is the most evident and the most important and so we ought to fix upon it and then we must give such an accommodating sense to that which seems to contradict it that so we may reconcile those together Here then are two seeming Contradictions in our Constitution The one is the Publick Liberty of the Nation the other is the renouncing of all Resistance in case that were invaded It is plain that our Liberty is only a thing that we enjoy at the King's Discretion and during his Pleasure if the other against all Resistance is to be understood according to the utmost extent of the Words Therefore since the chief Design of our whole Law and of all the several Rules of our Constitution is to secure and maintain our Liberty we ought to lay that down for a Conclusion that it is both the most plain and the most important of the two And therefore the other Article against Resistance ought to be so softned as that it do not destroy this 3. Since it is by a Law that Resistance is condemned we ought to understand it in such a sense as that it does not destroy all other Laws And therefore the intent of this Law must only
relate to the Executive Power which is in the King and not to the Legislative in which we cannot suppose that our Legislators who made that Law intended to give up that which we plainly see they resolved still to preserve entire according to the Antient Constitution So then the not resisting the King can only be applied to the Executive Power that so upon no pretence of ill Administrations in the Execution of the Law it should be lawful to resist him but this cannot with any reason be extended to an Invasion of the Legislative Power or to a total Subversion of the Government For it being plain that the Law did not design to lodg that Power in the King it is also plain that it did not intend to secure him in it in case he should set about it 4. The Law mentioning the King or those Commissionated by him shews plainly that it only designed to secure the King in the Executive Power for the word Commission necessarily imports this since if it is not according to Law it is no Commission and by consequence those who act in virtue of it are not commissionated by the King in the Sense of the Law The King likewise imports a Prince clothed by Law with the Regal Prerogative but if he goes to subvert the whole Foundation of the Government he subverts that by which he himself has his Power and by consequence he annuls his own Power and then he ceases to be King having endeavoured to destroy that upon which his own Authority is founded XV. It is acknowledged by the greatest Assertors of Monarchial Power that in some Cases a King may fall from his Power and in other Cases that he may fall from the Exercise of it His deserting his People his going about to enslave or sell them to any other or a furious going about to destroy them are in the opinion of the most Monarchical Lawyers such Abuses that they naturally divest those that are guilty of them of their whole Authority Infancy or Phrenzy do also put them under the Guardianship of others All the crowned Heads of Europe have at least secretly approved of the putting the late King of Portugal under a Guardianship and the keeping him still Prisoner for a few Acts of Rage that had been fatal to a very few persons And even our Court gave the first countenance to it though of all others the late King had the most reason to have done it at least last of all since it justified a younger Brother's supplanting the Elder yet the evidence of the thing carried it even against Interest Therefore if a King goes about to subvert the Government and to overturn the whole Constitution he by this must be supposed either to fall from his Power or at least from the Exercise of it so far as that he ought to be put under Guardians and according to the Case of Portugal the next Heir falls naturally to be the Guardian XVI The next thing to be considered is to see in Fact whether the Foundations of this Government have been struck at and whether those Errors that have been perhaps committed are only such Malversations as ought to be imputed only to human Frailty and to the Ignorance Inadvertencies or Passions to which all Princes may be subject as well as other Men. But this will best appear if we consider what are the Fundamental Points of our Government and the chief Securities that we have for our Liberties The Authority of the Law is indeed all in one word so that if the King pretends to a Power to dispence with Laws there is nothing left upon which the Subject can depend and yet as if Dispensing Power were not enough if Laws are wholly suspended for all time coming this is plainly a repealing of them when likewise the Men in whose hands the Administration of Justice is put by Law such as Judges and Sheriffs are allowed to tread all Laws under foot even those that infer an Incapacity on themselves if they violate them this is such a breaking of the whole Constitution that we can no more have the Administration of Justice so that it is really a Dissolution of the Government since all Trials Sentences and the Executions of them are become so many unlawful Acts that are null and void of themselves The next thing in our Constitution which secures to us our Laws and Liberties is a free and Lawful Parliament Now not to mention the breach of the Law of Triennial Parliaments it being above three years since we had a Session that enacted any Law Methods have been taken and are daily a taking that render this impossible Parliaments ought to be chosen with an entire Liberty and without either Force or Preingagements whereas if all Men are required beforehand to enter into Engagements how they will vote if they are chosen themselves or how they will give their Voices in the Electing of others This is plainly such a preparation to a Parliament as would indeed make it no Parliament but a Cabal if one were chosen after all that Corruption of Persons who had preingaged themselves and after the Threatning and Turning out of all Persons out of Imployments who had refused to do it and if there are such daily Regulations made in the Towns that it is plain those who manage them intend at last to put such a number of Men in the Corporations as will certainly chuse the Persons who are recommended to them But above all if there are such a number of Sheriffs and Mayors made over England by whom the Elections must be conducted and returned who are now under an Incapacity by Law and so are no Legal Officers and by consequence those Elections that pass under their Authority are null and void if I say it is clear that things are brought to this then the Government is dissolved because it is impossible to have a Free and Legal Parliament in this state of things If then both the Authority of the Law and the Constitution of the Parliament are struck at and dissolved here is a plain Subversion of the whole Government But if we enter next into the particular Branches of the Government we will find the like Disorder among them all The Protestant Religion and the Church of England make a great Article of our Government the latter being secured not only of old by Magna Charta but by many special Laws made of late and there are particular Laws made in K. Charles the First and the late King's time securing them from all Commissions that the King can raise for Judging or Censuring them if then in opposition to this a Court so condemned is erected which proceeds to judg and censure the Clergy and even to disseise them of their Freeholds without so much as the form of a Trial though this is the most indispensable Law of all those that secures the Property of England and if the King pretends that he can require the Clergy
out of the Hands of the Possessor than purely those of his own Conscience which is worthy Mr. Considerer's highest Consideration I shall only take notice of one Objection more and then conclude fearing I have too much trespass'd on your Patience already It 's very hard says he that a man should lose his Inheritance because he is of this or that Perswasion in Matters of Religion And truly Gentlemen were the Case only so I should be intirely of his mind But alass Popery whatever Mr. Considerer is pleas'd to insinuate in not an harmless innocent Perswasion of a Number of Men differing from others in matters relating to Christian Religion but is really and truly a different Religion from Christianity it self Nor is the Inheritance he there mentions an Inheritance only of Black-Acre and White Acre without any Office annexed which requires him to be par Officio But the Government and Protection of several Nations the Making War and Peace for them the Preservation of their Religion the Disposal of Publick Places and Revenues the Execution of all Laws together with many other things of the greatest Importance are in this Case claimed by the Word Inheritance which if you consider and at the same time reflect upon the Enslaving and Bloody Tenents of the Church of Rome more particularly the Hellish and Damnable Conspiracy those of that Communion are now carrying on against our Lives our Religion and our Government I am confident you will think it as proper for a Wolf to be a Shepherd as it is for a Papist to be the Defender of our Faith c. The Old Gentleman had no sooner ended his Discourse but I returned him my hearty Thanks for the Trouble he had been pleased to give himself on this Occasion and I could not but acknowledge he had given me great Satisfaction in that Affair what it will give thee Charles I know not I am sure I parted from him very Melancholy for having been a Fool so long Adieu I am thy Affectionate I. D. A Collection of Speeches IN THE House of Commons In the Year 1680. The Lord L. Speech My Lords MAny have been the Designs of the Papists to subvert this poor Nation from the Protestant Religion to that of the See of Rome and that by all the undermining Policies possibly could be invented during the Recess of Parliament even to the casting the Odium of their most Damnable Designs on the Innocency of his Majesties most Loyal Subjects We have already had a taste of their Plottings in Ireland and find how many unaccountable Irish Papists dally arrive which we have now under Consideration My Lord Dunbarton a great Romanist has Petitioned for his stay here alledging several Reasons therein which in my Opinion make all for his speedy Departure for I can never think his Majesty and this Kingdom sufficiently secure till we are rid of those Irish Cattel and all others besides for I durst be bold to say that whatsoever they may pretend there is not one of them but have a destructive Tenet only they want Power not Will to put it in force I would not have so much as a Popish Man nor a Popish Woman to remain here nor so much as a Popish Dog or a Popish Bitch no not so much as a Popish Cat that should pur or mew about the King We are in a Labyrinth of Evils and must carefully endeavour to get out of them and the greatest danger of all amongst us are our conniving Protestants who notwithstanding the many Evidences of the Plot have been industrious to revile the Kings Witnesses and such an one is R L'E who now disappears being one of the greatest Villains upon the Earth a Rogue beyond my Skill to delineate has been the Bugbear to the Protestant Religion and traduced the King and Kingdoms Evidences by his notorious scribling Writings and hath endeavoured as much as in him lay to eclipse the Glory of the English Nation he is a dangerous rank Papist proved by good and substantial Evidence for which since he has walked under another disguise he deserves of all Men to be hanged and I believe I shall live to see that to be his State He has scandalized several of the Nobility and detracted from the Rights of his Majesty's great Council the Parliament and is now fled from Justice by which he confesses the Charge against him and that shows him to be guilty My humble Motion is that this House Address to his Majesty to put him out of the Commission of Peace and all other Publick Employments for ever Speeches in the Honourable House of Commons Mr. Speaker IN the Front of Magna Charta it is said Nulli negabimus nulli differimus Justitiam we will defer or deny Justice to no Man to this the King is Sworn and with this the Judges are intrusted by their Oaths I admire what they can say for themselves if they have not read this Law they are not fit to sit upon the Bench and if they have I had almost said they deserve to lose their Heads Mr. Speaker The State of the poor Nation is to be deplored that in almost all ages the Judges who ought to be Preservers of the Laws have endeavoured to destroy them and that to please a Court-Faction they have by Treachery attempted to break the Bonds asunder of Magna Charta the great Treasury of our Peace it was no sooner passed but a Chief Justice in that day perswades the King he was not bound by it because he was under Age when it was passed But this sort of Insolence the next Parliament resented to the ruine of the pernicious Chief Justice In the time of Richard the Second an unthinking dissolute Prince there were Judges that did insinuate into the King that the Parliament were only his Creatures and depended on his Will and not on the Fundamental Constitutions of the Land which Treacherous Advice proved the Ruine of the King and for which all those evil Instruments were brought to Justice In his late Majesties Time his Misfortunes were occasioned chiesly by the Corruptions of the Long Robe his Judges by an Extrajudicial Opinion give the King Power to raise Money upon an extraordinary Occasion without Parliament and made the King Judge of such Occasions Charity prompts me to think they thought this a Service to the King but the sad Consequences of it may convince all Mankind that every illegal Act weakens the Royal Interest and to endeavour to introduce Absolute Dominion in these Realms is the worst of Treasons because whilst it bears the Face of Friendship to the King and Designs to be for his Service it never fails of the contrary effect The two great Pillars of the Government are Parliaments and Juries it is this gives us the Title of Free-born English-men for my Notion of Free-English-men is this that they are ruled by Laws of their own making and tried by Men of the same Condition with themselves The Two great