against any of their Pretensions yet I must say the power they claim now-a-days to punish all sorts of misdemeanors and what they please to term a breach of Priviledge is not to be endur'd by any free-born Subject For besides that 't is needless because such offences may and by Law ought to be try'd in the ordinary Courts of Justice 't is very dangerous to the Publick least the Grand Inquest of the Nation appointed to represent the Peoples Grievances and pray redress shou'd upon this account be diverted from pursuing those weighty affairs by every sawcy Footman belonging to the meanest Burgess in their House I confess it were somewhat tolerable in the Commons to imprison and punish their own Members for words by them spoken or misdemeanors committed in the House 1. Because by 4 H. 8. c. 8. they are not punishable elsewhere for any rashness in Parliament that does not amount to Treason Felony or breach of the Peace which the Commons neither can nor I hope will as in Forty-One endeavour to protect 2ly Because 't is suppos'd the Members upon their entring into that Assembly unanimously agreed the lesser number shou'd always submit to the greater and the major Vote be observ'd as the Act and Sense of the whole House if therefore by consent and original compact every single Member submits himself to the rest he cannot complain tho' otherwise they had no authority if they imprison him for his misdemeanors because scienti volenti non fit injuria provided always they exceed not the common Rules of Justice nor the bounds of our establish'd Laws for then no private Act can bind a Subject tho' made with his own free consent as appears by Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. I cannot therefore but think the power assum'd of late years by the House of Commons over their fellow-Members to expel them the House when and for what they please without any legal Tryal which the Lords never practic'd against any of their Peers is in it self most unreasonable and of very dangerous consequence as Mr. Prynne tho' otherwise a great Champion for the Priviledges of Parliament proves at large in divers of his Treatises The practice saith he of sequestring and expelling Commons by their fellow-Commons only is a late dangerous unparliamentary Usurpation unknown to our Ancestors destructive to the Priviledges and Freedom of Parliaments and injurious to those Counties Cities and Boroughs whose Trustees are secluded the House of Commons being no Court of Justice to give either Oath or final Sentence and having no more authority to dismember their fellow-Members than any Judges Justices of the Peace or Committees have to Dis-judge Dis-justice or Dis-committee their fellow Judges Justices or Committee-men being all of equal Authority and made Members only by the King 's Writ and the Peoples Election not by the Houses or other Members Votes who yet now presume both to make and unmake seclude and recal expel and restore their fellow-Members at their pleasure contrary to the practice and resolution of former Ages to patch up a Factious Conventicle instead of an English Parliament In his legal Vindication of the Liberties of England p. 10. But whatever Power the Commons can pretend to have over their own Members to say they can lawfully punish others tho for a breach of Priviledge much less for any other Crime seems to me a very groundless Assertion not warrantable by the Ancient Law and Custom of Parliament but rather contrary to the Fundamental Constitutions of our Government First because 't is impossible to make out from whom this Power is deriv'd From the King The Factious will not own it and none can prove it For they have neither Patent nor Statute to shew for 't nor yet any Legal Prescription which is a constant immemorial Custom such as the Lords have in point of Judicature to warrant it the Ancientest President they can alledge being that of 4 Ed. 6. or the Case of Ferrers referr'd to them by the Lords in the 34 H. 8 about sevenscore years ago Do they deriâ—e it then from the People from the Freeholders and Freemen their Electors These have no such Power of themselves they can Imprison none without His Majesties Commission and what they have not sure they cannot give Nemo dat quod non habet As for the Power given by the Electors to their chosen Members who are order'd by the Writ of Summons to have from the persons they represent Plenam sufficientem potestatem 't is no Judicial Power nor Political Jurisdiction which the People have not and consequently cannot give but only a Power of consenting as well for their Principals as for themselves to the Kings Laws and Ordinances And certainly if the King be the Suprem and the only Suprem Governour of this Realm as we affirm in the Oath of Supremacy and if all Authority and Jurisdiction Spiritual and Temporal be derived and deducted from the Kings Majesty as 't is expresly declarâ—d 1 Ed. 6. c. 2. § 3. Or as Old Bracton saith Ea quae sunt Jurisdictionis pacis ad nullum pertinent nisi ad regiam dignitatem lib. 3. c. 24. Unless the Commons can make out they have their Power from the King they can have no manner of Jurisdiction and by consequence cannot lawfully Punish or Imprison any Criminal if not perchance their own Members in the Cases aforesaid Besides in the first Parliament of Queen Mary 't is declar'd That the most Ancient Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King 1 Mar. Sess. 3. c. What then are the breakers of the Commons Priviledges are they Offenders against the Dignity of the Crown or the Laws of the Realm If so they ought according to this Act to be punish'd by the King if not they are not punishable at all for to trouble any that does not offend against the Crown or the Law of the Land is very Illegal and Arbitrary and a high breach of the Liberty of the Subject Secondly because the Law has expresly provided where and how breaches of Priviledge ought to be punish'd and gives the House of Commons no power to take any cognizance of them for by several Statutes it appears that if a Parliament-man or his Menial-servant be Assaulted Beaten or Wounded in Parliament-time Proclamation shall be made where the deed is done that the Offendor shall render himself to the Kings-Bench within half a year after there to be tryed and if the Offendor will not appear he shall be Attainted of the Deed and pay to the Party griev'd his double Damages to be tax'd by the discretion of the Judges of the said Bench for the time being or by Inquest if need be and also make Fine and Ransom at the Kings will Moreover it is
King hath not His Power from Them nor They theirs from the King They Both derive their Authority from the consent of the People either tacit or express in the first institution of the Government or in the subsequent alterations of it pag. 16. Is not this a rare Assertor of the Monarchy that makes both Houses thus co-ordinate with the Prince and all the Three subordinate to the People turns the Governed into Govornours and leaves to the King the Title only but to His Subjects the Power and Dominion The Law tells us That all Authority and Jurisdiction Spiritual and Temporal is derived from the King 1 Ed. 6. c. 2. § 3. And Plowden as great a Lawyer perhaps as Mr. Hunt says That the King has the sole Government of His Subjects fol. 234 a. How then can Mr. Hunt make the People the Original of Power since all is derived from the Prince or how can either or both Houses of Parliament pretend of themselves to have any share in the Government which is wholly in the King or claim any Authority or Jurisdiction over the People but as deriv'd from the Sovereign Let us therefore explode these Republican Notions that have cost us so dear and cannot in the least avail either Parliament or People but will always make the Prince jealous of their proceedings who can better hear the complaints and humble Petitions of his dutiful Subjects the constant stile of our ancient Acts of Parliament than the Imperious dictates of his fellow-Governours for experience confirms what Lucan long since has told us Nulla fides Regni sociis omnisque potestas Impatiens consortis erit But how shou'd this new form of Corporations make their Representatives in Parliament not of the Peoples choice but of the Courts nomination is not very intelligâ—ble in my apprehension since every Cobler can tell the Free-men of Corporations and not their Officers have the sole power of electing their Representatives Where then is the danger of a Parliament of Papists and Red-coats tho' there had been no Law to disable the former from sitting in the House till they forswear themselves or abjure their principles unless the major part of the Free-men of England which I hope shall never happen be suppos'd to embrace the Popish Religion We have seen to our cost and to our shame a pretended Parliament of Red-coats and Round-heads which like the Aegyptian Locusts devour'd all the fruit of the Land and turn'd Europes Paradise into a Field of Blood and this blessing we owe to Mr. Hunt's poor harmless Dissenters which I hope will make us so wise for the future as never to give them the like opportunities It were endless to follow this lawless Scribler through every page and paragraph or severally to take notice of all his incoherences and impertinent digressions To come therefore close to the business of the Charter we must turn over many pages and step from the beginning almost to the end of his Pamphlet to find out something that may seem to the purpose Three points he offers at last in defence of the Charter which he says to the Londoners he comes to defend against theirs and he might add as well his own reason and understanding p. 31. For if he has a grain of Law or sense left he knows that of these points the first is impertinent to what he undertakes and the rest but fallacious cavillings to impose upon the Vulgar and make them obstinate to their cost First he says That the Dissenters tho' Excommunicate have a vote in the Election of their Officers 2ly That the Common-Council cannot destroy or surrender the Charter 3ly That the Sherivalties of London and Middlesex are in the City by Common or Statute-Law and consequently not to be displac'd but by Act of Parliament tho' with the consent of every individual Citizen p. 32. For the first he takes a world of pains to prove that the Excommunication of Dissenters does not render them uncapable of giving their Vote in the Election of the City-Officers And what then Is the Charter never to be forfeited while the Dissenters have a Vote or Suffrage in such Elections or are they so numerous in the Common-Council as to out-vote the Members of the Church of England are their tender consciences still so plyable as to receive the Sacrament in their Parish-Church to serve a turn and run to a Conventicle all the year after to take Tests and Oaths to get into Imployments and break all with a breath to promote the Good Old Cause nay venture to forfeit their Ears to the Pillory and their Souls to the Devil to help off an active Brother catch'd by the Tongue These are the harmless Clients of our Irish-Chief-Baron of whom we may well say with the Poet Mille adde catenas Effugiet tamen hac sceleratus vincula Proteus These I mean not the mis-led or seduc'd but the Heads and Ring-leaders of the Faction who always hold with the Hare and run with the Hound and make conscience of nothing but Conformity and yet conform for Preferment To these their deluded followers owe all the severities of late used against them and the City this so-much-talk'd-of Quo Warranto with all the unlucky consequences which Mr. Hunt says are like to attend it there being no other way to rescue the Government out of their hands or secure His Majesty's Crown and Dignity and the Lives of his good Subjects from pack'd Juries and perjur'd Ignoramus's But they have says our Lawyer an utter abhorrence against Popery and the Plot and joyn forwardly and zealously against it p. 16. 'T is true they make a great noise and bussle about that horrid Conspiracy but in reality they have done more than the Papists were able to do to stifle and confound it They attaqu'd the Church of England whilst in the heat of prosecuting the Conspirators and labour'd under the Umbrage of the Popish-Plot to carry on another of their own to subvert the establish'd Government and insensibly to decoy us into Presbytery and their darling Commonwealth as the Tryal and Condemnation of their Proto-Martyr Colledge their Green-ribbon-Clubs and Ignoramus-Juries their Vox Patriae's and Vox Populi's their Appeal from the Countrey to the City the Speech of their Noble Peer and in short the tendency of all their Seditious Libels back'd with the Depositions of several Witnesses do as plainly demonstrate as Coleman's Letters and Execution prove the wicked designs of the Papists They inveigl'd some of the principal Discoverers of the Popish-Plot to espouse their Party and vilifie the Church which frightn'd many a Loyal Gentleman that cou'd not forget the Contrivances of the late times where Popery was the First but Monarchy the Last Act of the Tragedy and made them suspect these same persons now their hand was in might at last be wrought upon to turn against the obedient Sons of the Church whom they had already stigmatiz'd with the ignominious Names of Tories Masqueraders and
Lawyer Outlaw'd Or a BRIEF ANSWER To Mr. HUNTS Defence of the CHARTER With some Useful REMARKS ON THE Commons Proceedings IN THE LAST PARLIAMENT At WESTMINSTER In a Letter to a Friend Printed by N. T. for the Author MDCLXXXIII SIR YOur importunities have at last prevail'd and since abler Pens have hitherto declin'd to espouse the quarrel I will for once force my own inclination to silence and reservedness and briefly give you my thoughts on that unlucky Pamphlet call'd A Defence of the Charter and Municipal Rights of London The Author I find is a Gentleman of the long Robe a person so well known of late for his unweary'd diligence and extraordinary faculty in scribling that I need not give you any other Character of him but that some three years ago he writ a Book in vindication of the Bishops Right of Judicature in Parliament and for this piece of service expected no less than to be made Lord-Chief-Baron of the Exchequer in Ireland But missing of that Preferment he grows peevish and angry with the Court and Clergy and to be even with both and perhaps to appease his angry Brethren of the Separation for his former Mercenary undertaking he adds a Baboons Tail to his Picture a Postscript to his Book the most virulent and malicious that has yet escap'd the hands of Justice Ever since he has continu'd firm to the Cause laid aside his useless Law and zealously imploy'd his better Talent against the Church and State in favour of the Faction and this about the Charter is the last effort of that wise Head-piece which he has stuff'd with such a miscellany of wild Paradoxes interwoven with some impertinent Truths that 't is far more difficult to digest them into method than to answer and confute them First to lay a solid foundation for his great design he tells us That Monarchs as well as Republicks have often erected Municipal Cities and by their Charters bestow'd upon them several Franchises and Priviledges as to choose their own Magistrates and governby their own Laws while subservient to the publick Laws of the Sovereign Authority pag. 1. This is certainly very true but how far it makes for the Charter of London against the Quo Warranto is a Mystery not to be comprehended by every vulgar capacity for 't is no less plain in History that not only Tyrants and Vsurpers as he mentions but just and lawful Sovereigns have divers times suppress'd such Municipal Cities for good and necessary causes as for being disloyal to their Prince or factious and seditious against the Government and then the main Question will be How far the City of London has of late been guilty of such Crimes as by Law deserve the like Punishment This in short is the plain state of the Question for 't is most unreasonable to think that any King or Republick ever gave their Municipal Cities any such Liberties or Immunities as were not forfeitable upon their abusing the Power they receiv'd when otherwise neither Prince nor People cou'd be secure from the insolence of such uncontroulable Citizens without a standing Army to keep them in awe But our Gentleman it seems is unwilling to touch upon this critical point of speculation and as the Defence of the Charter is the least part of his Pamphlet so now he runs quite from the purpose to tell the King like a dutiful Subject He may if He please take His Quietus-est and let His people govern themselves For it is impossible saith he that mankind should miscarry in their own hands pag. 2. Now since they have often miscarry'd in the hands of Princes is it not more expedient for the publick good if this Maxim will hold that the Prince shou'd mind his own private business and not trouble himself with the Government which the People can do better without Him This is Mr. Hunt's new Model of Government who out of pure love and kindness to the Monarchy chalks out a ready way for his Sovereign to ease Himself of all the thorns and prickles of His Crown and become a glorious King like His Father And therefore seems very angry that the Court i. e. the King should be troubl'd with the Power of appointing Officers in any City or Corporation in the Kingdom tho' it be found of absolute necessity for the keeping His Crown upon His Head and protecting His best Subjects from a Band of Associators and Ignoramus-Juries Oh! But by this new form of Corporations it will be in the power of a Popish Successor to put the Government of all Corporated Towns in England into the hands of Papists p 5. And without it I say it will be no less in the power of the Faction to put the same Government into the hands of Fanaticks What a Bugbear is this Popish Successor whose very Name turns the brains of a Whig into a Magnifying-glass that will transform Ants into Gyants and Mole-hills into Mountains We have as good Laws as the wit of man can devise to secure us from the encroachments of Popery and to disable Papists from bearing any Office Civil or Military either in or out of Corporations and yet this Popish Successor who possibly may never succeed this great Goliah can break through all those Laws and will certainly do it to curry favour with a handful of Papists and make himself a Slave to the Pope This is not all For this mode saith he of incorporating Cities and Towns doth ipso facto change the Government for that One of the Three States an essential part of the Government which is made up of the Representatives of the People and ought to be chosen by the People will by this means have five sixth parts of such Representatives upon the matter of the Courts nomination and not of the Peoples choice and at the next turn we shall have a Parliament of Papists and Red-coats pag. 6. O profound Politician has not our Government been Regal and Monarchical from the beginning how then can the House of Commons in comparison but a late Institution necessary not for the Being but for the Well-being of the Monarchy be an Essential part of it Or how can any Rulâ—r be term'd a Monarch that has 500 Demagogues Joynt-Governours with Him These and such other Republican Maxims have been in a great measure the main foundation of all the miseries and confusions we suffer'd under the late Tyranny of the Rump-Parliament and after our sad experience of those Tragical times surely we have reason to think that none but such as wou'd bring us back to the same calamities and sing the second part to the same Tune would now endeavour to assert or maintain them yet they are so very familiar to our Irish Chief-Baron that there is hardly a page in most of his Pamphlets but has a strong tincture of them In his great and weighty Considerations considered he says The Parliament derive Their Authority from the same Original the King derives His The