's or his King's word And though this were a sufficient reason for the mild course taken by the new Act injoyning the Oaths yet certainly the Nation does attribute that course very much to the mild Nature of the King who would not too hastily exact a Complyance nor too severely punish the want of it though certainly the accepting of him for King and swearing Allegiance to him is a matter of far greater moment than any opposition King James met with from the Church and so might deserve a severer punishment than for not obeying an illegal Mandate Our Author misses no opportunity of telling what is doing in Scotland but he is not so forward to tell us News from Ireland He tells us the Scotch Clergy are obliged to pray for the King and Queen under pain of Deprivation and pray why should they not But does not tell us that the Bishop of Dunkell was deprived by the late King for Voting or Arguing in Parliament according to his Conscience neither does he give us any account of the pretended Act of Parliament in Ireland taking away many of the Rights of the Clergy without any pretended fault nor of their Act repealing the Acts of Settlement which almost renders useless another of their Acts attainting our Nobility Gentry and Clergy only for being in England Here is Fangs and Claws with a witness and of so weak a Government that one would think these Acts were designed for nothing else than to shew the Temper of the Man and those that influence him The fourth Article is against the Court of the Commissioners for Ecclesiastical Causes To which he says That the Statute repealing the first of Elizabeth hath a Salvo for the King's Supremacy so that there was an appearance of Law to justifie that Commission and that our Parliament meddle with Ecclesiastical matters also Our Author is pretty modest in this Answer pretending but to an Appearance of Law to justifie the late Commission-Court So that now I am not only to argue against the Court but also to shew how little that very Appearance really was which I think will be best done by considering the Statutes of 170 Car. primi C. 110. and the 13. Car. secundi Cap. 12. In the first we will find that the Clause of the Statute of the Queen which Erected the first Ecclesiastical Commission-Court is repealed In this I do not find any Salvo for the King's Supremacy but there is a Clause of another nature to wit That no new Court shall be Erected with the like Power Jurisdiction or Authority as the former had or pretended to have and that all such Commissions made or to be made by his Majesty his Heirs or Successors and all Sentences and Decrees by colour thereof shall be utterly void and of none effect By the 13th of King Charles the second part of this Statute is repealed but what relates to the High Commission or the new Erecting of such another Court is not this Statute has the Salvo I suppose our Author means So that now the matter is shortly thus The first Statute suppresses the High Commission-Court in being and prohibits the Erecting of any such other for the future and Enacts some other things forreign to this matter which by Charles the second 's Statute are repealed But as to the High Commission-Court it confirms the former with the Author 's Salvo that this Act shall not extend to abridge the King's Supremacy in Ecclesiastical Affairs Now though this Statute had by this Clause been Felo de se yet still by the first Statute the Erecting any such new Court is prohibited for the Salvo only is That nothing in that Act shall abridge the King's Supremacy but does not say that nothing in the former shall To obviate this our Author put his Salvo in the first rather than in the other But I say further That though the Salvo had been where our Author would have it or that the Clause had been That nothing in either of the Acts should abridge the Supremacy or to make the matter a little plainer Suppose it had been literally worded provided that the King by his Supremacy may Erect such a Court when he thinks fit the matter had been but little mended for the Enacting part that no such Court should be Erected had been good and the Proviso void for it is a known Rule in Law That the Proviso or Exception must not wholly destroy the preceding Grant though it may lessen or qualifie it As for instance If one grant to me all his Trees and afterwards adds a Proviso except all his Trees the Grant is good and the Proviso void because it would tender the Grant wholly useless but he may except all his Trees in such a place or twenty or any number by name because there is a subject both for the Grant and Exception So a Proviso in the Act might have preserved the Supremacy in Wales or any particular place but being general it is void or rather has no operation on the matter positively Enacted though it may preserve the Supremacy in other matters This Article complains as much of the Executing as the Issuing this illegal Commission To which since our Author says nothing I will only add That though the Law had been plain for the Prerogative in this case as to the Erecting of the Court yet since King Charles who was looked upon as a Protestant did not think fit to put this Power in execution during the Twenty-four years he lived after the Statute which implies That either there was no need of such a Court or that he thought he had no Power of Erecting it it was a bold step in the late King to venture on it but perfect madness as he managed the matter When the Statute was in force the Proceedings were for the Correction and Reformation of such Offences as by the Ecclesiastical Jurisdiction could lawfully be corrected and reformed during the continuance of that Court which was near an hundred years The Proceedings there were only against persons that disobeyed the King's Laws never one was punished by them for not obeying a Letter but the Bishop of London the disobeying the King 's Arbitrary and Illegal Mandates was never looked upon as a crime before the late times And for a further instance and proof of their illegal Proceedings the Commissioners that acted in pursuance of the Statute could not proceed against persons for small Crimes or such as could be remedied by the ordinary For which reason we find in our Books that a Prohibition went out of the Temporal Courts to stop their Proceedings against one for Adultery as Judge Hutton tells us in Isabel Peel's Case unless in such Cases as were very exorbitant and notorious Now unless we have lost another the most secret Adultery of the Commandments is a greater Offence and a little more expresly prohibited than the Contempts punished in that Court. In Drake's Case a Prohibition went to stop
their Proceedings against him for Alimony although this was one of the Articles their Commission authorizes them to hear and determine Here the Court looked on their Authority to be from the Statute not the Commission This is a full Judgment and many more might be instanced against those that assert That the King by his Supremacy or the Common Law could Erect such a Court though the Statute were repealed for in this Case he gave Authority to decree Alimony in Cases of severity but because the Statute gave none such their Proceedings were stopped by a Prohibition It is wonderful to me and seems something like an infatuation That the Projectors of that Court did not to gain some credit to it and in return for all the mischiefs they intended find out some real Criminals to make Examples of so that the Nation might sometimes be satisfied with their Judgments though they could not be with their Jurisdiction When we see vengeance over-take notorious Offendors it is but rarely that we inquire whence the blow comes and if we do we are seldom over-strickt in the matter But since they omitted this common piece of Policy after-times will rather suspect that they had not Power by the Commission to punish such Offendors then either that so populous a Nation should want fit Objects for their wrath or that so famed Politicians should contemn so prudent a course All the account I can give of this matter is that Quos Jupiter vult perdere prius dimentat The fifth Article is Levying Money for other time and in other manner than the same was granted by Parliament this he confesses ought not to have been done by the Petition of Right and some older Statutes he mentions which is a Confession of the justness of the Complaint But then what he did of this kind he says was by vertue of a Lease King Charles the Second was impowred to grant for three years This is another instance how small a matter was sufficient lately for Appearance of Law good enough to wrest the Legislative Power out of its proper course For this Lease our Author here speaks of was pretended but to be made by the Commissary of the Treasury the Fifth of February the day before King Charles dyed and when he was lying void of all reason and sence if not of life This looks so like a trick that it supersedes all necessity of enquiry Whether King Charles had power to make a Lease of that part of his Revenue granted him for Life only for any longer time than his Life But to shew the illegality of that Proceeding and the insincerity of the Author I will give the full account of this matter And first it is to be observed that the late King upon his first coming to the Crown levied Money on several Branches of the Revenue setled on King Charles for Life The Subsidies of Tonnage and Poundage and other sums of Money payable on Merchandises Exported and Imported were granted expresly by the Statute to King Charles during life yet the late King by his Proclamation of the 9th of February directs that the same shall be Collected as in the time of his Brother Herein he pretends to no other Law for this but that it is his Will and Pleasure the necessity â—f the Government requiring the same there is no three years Lease in this Case nor any pretence that King Charles did or could make any such so that as to this our Author's assertion is false But indeed as to the Excise the late King made use of that pretence and by his Proclamation of the 16th of February tells us That the late King's Commissioners of the Treasury did on the fifth of February contract and agree with Sir Peter Apsly Sir Benjamin Bathurst and James Grahme that they should receive the Duty of Excise for three years from the date thereof at the Rent of 550000 Pounds per annum And being certified by the Opinion of the Judges that the said Contract is good and valid in Law to the intent that the said persons may have no pretence of with-holding their Rent and that the Subjects may not incur the Penalties inflicted by the Laws of Excise for not making due Entries or Non-payment or concealing any part of the said Duty during the said three years He does publish to all his Subjects that the Judges have certified him their Opinions that the said Contract hath continuance notwithstanding the decease of his Brother His Will and Pleasure therefore is and he thereby Commands the Commissioners of the Excise and other Officers that they be Aiding and Assisting to the said persons in Collecting and Levying the said Duties and that all persons chargeable with the payment thereof do make due Entries and pay the same upon the pains and penalties to be inflicted thereupon according to the Laws of Excise Though these Proclamations were equally illegal yet the first was certainly the more generous it goes roundly to work and tells us in plain terms he wanted the Money and therefore would take it whereas the other pretends to be countenanced by the Law but instead thereof has only that of the Lawyers the Moiety of the Rent therein mentioned is a fair sum to be gained for three years by the private Opinion of the Judges which is sufficiently confuted by a bare stating of the Case The Excise was granted by two Acts of Parliament the one Moiety by one Act the other Moiety thereof by another The first is called a Grant of certain Impositions for the increase of his Majesty's Revenue during his life And Enacts That the Duties therein mentioned shall be paid to the King during his life ' the other Act lays the same Imposition on the several Liquors therein mentioned and Enacts expresly That the same shall be paid to the King his Heirs and Successors for ever Which being the Statutes of one Parliament shews plainly that it was intended that the one half of the Duty should dye with the King otherwise there was no need of two Acts and the reason of the difference is obvious for the last Moiety of this Duty was granted to the Crown in satisfaction of the Profits of the Court of Wards and for the Abolishing of the King 's Pre-emption and Purveyance in which the Crown had an Inheritance In both these Acts there is a Clause for making Leases not exceeding three years which was laid hold on to continue this Tax on us for three years longer than the express time we granted Had this Lease been made bona fide and in King Charles's health it would have been but a frivolous pretence but considering the time it was made it was the smallest way ever was laid hold of by a sinking Cause Our Author comes next to represent our present Condition to us and though he make a fearful Picture of it it is not so dreadful as Popery and Arbitrary Power in their best Dress He says we must pay great
parts thereof And as to the first we will find That he was so far from Governing according to Law that so soon as he thought himself out of the danger of the Monmouth Rebellion by his Victory over him in the West and Triumph on Tower-hill and that his severe Prosecution of the remainder of that Party had secured him against all other opposition his whole Government was a perfect opposition to the Law after that most of the great Employments of the Nation were disposed of by him to persons by Law uncapable of them At Court we had a Secretary and Privy-Seal Lords of the Treasury and Privy-Counsellors with their President of that sort in the Administration of Justice we had Judges Sheriffs Justices of the Peace with a long c. of unqualified persons in the Cities our Mayors and other Magistrates were so the Army which was wholly against Law was made more illegal by its unqualified Officers and the other persons whereof it consisted the Tower in ill hands and the very Church not free of such Vermin the chief Government of Ireland given to one that designed to dismember it from this Crown Were not our Persons imprisoned against Law witness the Seven Bishops Were we not disseised of our Estates against Law and without Tryal witness Dr. Hough Were not Taxes levied on us without and against Law witness the Custom-house Books Were not some of us Hanged up as Criminals without any colour of Law at least less than was for the Dispensing Power or Ecclesiastical Commission so little as could not satisfie him that was well satisfied in both the other These are Instances of the breach of the Law in the case of our Liberties Lives and Properties and that our Souls might be endangered were not Schools and Churches opened to the Romish Clergy Had any of their Converts the reward due to them by Law and to keep us under these Oppressions without redress Were not our Parliaments put off and Prorogued from time to time and not suffered to sit at the end of three years as the Law requires This was the condition of the Executive Power And as for the Legislative it was far worse and wholly over-thrown by the claim of an Absolute power to which we were to submit without reserve the Dispensing with the Ecclesiastical Laws implied a Power of Dispensing with all the rest and the Dispensing with any one was an Usurpation on the Legislative For to what end should the Parliament make Laws if they were to be of force only during the King's pleasure If that were so all their costs and pains could not ensure them one Law for so long time as would be requisite for their Journey home and as the Suspension of one Law is certainly the making of another As for instance the Law imposes Twelve-pence for not coming to Church on Sunday the Proclamation suspending that Act enacts that I may stay at home or go to a worse place without paying any thing so it seems to me that the last is the higher Power for to controle an Act requires more Authority than contributed to the first making of it as the daily experience of our Courts shews us the King's-Bench controles the rest but no inferiour Court puts any check to the proceedings thereof Lastly The Kings of England never claimed nor exercised such a Power before 62 and 72 and then the Endeavours were but faint the Crown wished for such a Power and afterwards on the Remonstrance of the Commons promised it should never be drawn into Consequence or Example The imposing Taxes and Oaths on the Subject was always looked upon as another branch of the Legislative Power but both were exercised by the late King As to the last part mentioned we have seen the late King corrupting the Elections by the meanest Arts a perpetual regulation of the Corporations until they could find a Sett of Men that would engage to chuse such persons as should be recommendeâ— by the Court and daily displacing all persons that would not engage their Votes But this was not all the injury done us in relation to the House of Commons we had Sheriffs and Mayors not qualified for their Offices so not capable of guiding the Elections Formerly under weak Princes and in ill times there has been attempts made against the Constitution of the Kingdom but never so Universal an one or with such success as now neither was it ever attempted before this Reign to pack a whole House of Commons New Creations has done something of that sort on the Peers and there has been Irregularities in particular Elections but it was never attempted before to rob us of the whole House of Commons at present the Crown neither claims nor aims at any of these things now the Law runs in its old channel and that it may still do so the King has given us Judges of the ablest of their profession and the Chancery from a State-Courtâ— is now become a Court of Conscience the Crown pretends to no absolute Authority either in suspending or altering our Laws the King concurs with his People in all Laws they have prâ—pared for his Royal Assent and wishes to be no greater than the Laws of England make him with respect to the House of Commons he has seized on no Charters nor used any Regulations but the present Members of that House are the most unanimously chosen that ever any were And now let the World judge whether our Religion Laws and Liberties are not in a better condition than in the late Reign Our Author tells us that the second Article shews the ways and means King James used to effect what he was charged with in the first which is an assuming and exercising a Power of dispensing with and suspending Laws and the execution of them without Act of Parliament Our Author is so modest as not to deny this or the fatal consequences thereof to the Kingdom but excuses it as done by colour of the Prerogative whereas the Prerogative is nothing but the Law of the Land and a part of it with which the King is intrusted for the good of his People He then tells us That the present Parliament have made some Acts that Abrogate old and others that are new Laws But unless he shews us that the King assumes 〈◊〉 Power to himself the Times are not parallel and that is what he promised to make appear Our Author in this and in other Sections is witty or thinks himself so upon our present Parliament calling them Self-created and that they have assumed God's Prerogative of creating themselves out of nothing as if God had done so For the taking off that Assertion and clearing of that matter I must desire you to remember that the Essential parts of an English Parliament are the Lords Spiritual and Temporal and the Commons chosen by the several Shires and Towns of the Nation as their Representatives Now the Convention that met at Westminster the 22d of
January last was composed of these not a County City or Borough of England but appeared there by their Representatives and the whole Peers did or might have appeared by themselves or Proxies so that here was a Parliament in substance and the Author will not pretend that any thing was wanting but the King 's Writ to call them together To which I say first That anciently when Parliaments met at the King's Court on fixed times as the Feast of the Nativity and other Feasts every year we have no account of any Summons because the Time and Place of meeting being known that was needless But these Times are so dark that I will not insist much on this nor on the Election of our Kings in the Saxon Times which was done by an Assembly convened certainly without the King 's Writ or any Authority from one I confess that in the ordinary Administration of Affairs the King's Writ is requisite to bring the Nation to a great Council But this is not required so much for any Authority derived from thence as to keep up an agreement and harmony in the Government if this were otherwise all Members could sit in the House of Commons that have such a Writ authorizing their Election which not so especially in long-liv'd Parliaments such as King Charles the Second's was there a Majority of the House might have been of such as were Elected by vertue of a Warrant from the Speaker In 73 about Thirty Members Elected by vertue of the King's Writs were not suffered to sit but were dismissed the House and the Speaker Issued Warrants for new Elections so that in these cases the Authority seems to proceed more from the Speaker's Warrant than the King 's Writ But I say that from this usual practise it does not follow that the Estates may not Assemble otherwise in extraordinary Cases As in this Hereditary Monarchy Suppose the Royal Family were extinct must the Nation remain still in confusion never come into any form of Government because we cannot have the King 's Writ to Summon a Parliament that is unreasonable therefore the Representatives of the Nation must meet and settle the Government without any Writ of Summons this is no impossible supposition though it never happened in this Kingdom because it has happened in other places and upon such occasions the Government has been re-settled by the States Next Supposing that on the Death of the reigning King his Son or Successor is far distant this is no fictitious supposition because it really happened In what condition must we be until the return of our King or directions from him The Authority of our Judges Sheriffs c. determined with the King's Life so they cannot act therefore in this necessity to avoid Anarchy and Confusion the States of the Kingdom must meet and settle the Government by appointing Officers and doing what else is requisite for the safety of the Kingdom And this they did upon the Death of Henry the Third without any Writ or Authority from his absent Son After the Death of William Rufus the Crown of this Kingdom was given to King Henry by an Assembly of the people not chosen by Writ this shews also the regard they had in those days to the Lineal succession These instances shew that the King 's VVrit of Summons is not so essentially necessary to the Being of Parliaments but that the people of England may and have assembled in some cases without them of which we have a very late instance in the Parliament to which the Royal Family is much obliged and to which the Nation was more obliged than to any but the one now sitting I mean the Parliament that brought back the Royal Family This Parliament met without the King 's VVrit and was called in the Name of the Keepers of the Liberties of England and yet fate made Laws and acted as a Parliament with King Charles the second for several Months together and yet no Man can say there was so great reason for their continuing together as for the present Parliaments we had not then so many Enemies abroad and at home the Kingdom was in full quiet the French and Irish were not then our avowed Enemies nor ready to devour us a forty days delay then had not put us in the power of either of them as probably it had now done and if the King had now taken that course the consequence had only been the trouble of Electing the same persons a-new and postponing the necessary preparations for our security for two Months at least And if we further compare the Case in question with these I have mentioned we will find that it has much the advantage in other circumstances for that Parliament laboured under more difficulties than the want of VVrits of Summons a doubt that the Long Parliament was then in being by vertue of King Charles the First 's unfortunate Act that it should not be dissolved without their own consent and in 59 King Charles was at Breda or not much further off and he would gladly have Issued VVrits if they had been desired of him but his Brother cancelled and tore those he had once Issued that Parliament met without any request from the Body of the people this at the Express request of the City of London and almost the whole Nation and if that Parliament was called by those that Exercised the chief Authority in the Nation so was this by him that at our own desire had taken the Administration of Affairs upon him though the Royal Line was not extinct yet in October last the Kingdom was left as much in confusion and without government as if that misfortune had befallen us a Parliament by VVrits we could not have and without a Parliament it was impossible to settle the Kingdom so that we had no choice but either to continue without any Government as we were or to meet in Parliament as we did which being formerly done in other Countries as well as our own And since the King is pleased to consult with them we must acquiesce in their Judgments and obey them as the Legislative power of this Kingdom notwithstanding our Author's Jests here and his Assertions in the fourth Article That this is done without precedent or colour of Law The third Article Article is His committing and prosecuting the Bishops for humbly Petitioning to be excused from consenting to the said assumed Power of Suspending the Laws and their execution For answer to which our Author refers us to what he said on this subject before and therefore so do I. He tells us further on this Head That the present Government remembring the Proverb Felix quem faciunt is resolved to avoid the Rocks the last split upon which I look upon to be no ill news For now if we will take the Author's word there will be no further attempts against our Church or Religion our Laws or Properties but God-bethanked we have better assurance than the Author