whilst these Brothers lived and held together they were as a strong Fortress one to the other the Admirals Courage supporting the Protectors Authority and the Protectors Authority maintaining the Admirals Stoutness but the Admiral once gone the Protectors Authority as wanting support began to totter and fell at last to utter ruine Besides there was at this time amongst the Nobility a kind of Faction Protestants who favour'd the Protector for his own sake and other of the Papal inclination who favour'd him for his Brothers sake But his Brother being gone both sides forsook him even his own side as thinking they could expect little assistance from him who gave no more assistance to his own Brother Bakers Chronicle p. 307. What a noise they make about these terrible Bugbears Popery and Slavery as if both were inseparable and actually breaking in upon the Nation or rather come as far as the Lobby of the House of Commons For my part tho I have no reason to be fond of either the one being no less contrary to my Nature than the other to my Principles yet I cannot be startl'd at every shadow nor believe that the Duke having already spent the Prime of his days let him succeed never so soon will be able to introduce amongst us any new much less the Popish Religion Neither can I be perswaded contrary to common sense and the experience of so many Ages but that the Papists are as fond of their Liberty and Property and consequently as great enemies to Slavery as any Protestant whatsoever For to them we owe the unparallel'd Common-Law of this Realm Magna Charta and all those wholesom Statutes grounded thereupon to them we are oblig'd for the incomparable Frame of our well-temper'd Monarchy which affords very much to the Industry and Happiness of the Subject yet preserves enough for the Majesty and Prerogative of any King that will own his People as Subjects and not as Slaves or Villains Who then but a Fool or a Mad-man wou'd think Slavery the unavoidable consequence of that Religion the Professors whereof even in the time of their blindest zeal and greatest darkness for since then they are much refin'd made such impregnable Bulwarks against it and provided such wholesome Laws to defend themselves from all the encroachments of Arbitrary Power Insomuch that the high and mighty Pope himself who often endeavour'd to enslave this Kingdom and make it Tributary to his avarice found to his great grief that tho some ignorant Bigots wou'd contribute to fill his Coffers yet the generality of the Nation were so tender of their own and their Princes Rights that they always oppos'd him with true English Courage as appears not only by hundreds of adjudg'd Cases reported in our law-Law-Books but by divers Records and Acts of Parliament For 25 Ed. 3. Stat. of Provisors 't is enacted That such persons as obtain Provisions or collation of Benefices from Rome and thereupon disturb the Presentees of the King or of other Patrons of Holy Church or of their Advowees The said Provisors their Procurators Executors and Notaries shall be attached by their body and brought in to Answer And if they be convict they shall abide in Prison without being let to Mainprise or Bail or otherwise delivered till they have made Fine and Ransom to the King at his Will and gree to the Party that shall feel himself grieved And nevertheless before they be delivered they shall make full renunciation and find Surety that they shall not attempt such things in time to come nor sue any Process by them nor by other against any man in the Court of Rome nor in any part elsewhere for any such Imprisonments or Renunciations nor any other thing depending of them And in the same year it was Enacted that he that purchas'd a Provision in Rome for an Abbey shou'd be out of the Kings Protection and any man might do with him as with the Kings Enemy 25 Ed. 3. c. 22. 2â— Ed. 3. c. 1. upon the grievous Complaints of the Lords and Commons in Parliament It was ordain'd that all People of the Kings Lâ—geance of what condition that they be which shall draw any out of the Realm in Plea whereof the cognizance pertaineth to the Kings Court or of things whereof Judgements be given in the Kings Court or which do Sue in any other Court to defeat or impeach the Judgements given in the Kings Court if they appear not within two months after warning given shall be put out of the Kings Protection and their Lands Goods and Chattles forfeit to the King and their Bodies wheresoever they may be found shall be taken and Imprisoned and Ransomed at the Kings will 13 R. c. 2. 'T is Enacted That if any do accept of a Benefice of Holy Church contrary to this Statute and that duly prov'd he shall within six Weeks next after such acceptation be exiled and banished out of the Realm for ever and his Lands and Tenements Goods and Chattles shall be forfeit to the King And if any Receive any such person banished coming from beyond the Sea or being within the Realm after the said six Weeks knowing thereof he shall be also exiled and banished and incurr such forfeiture as afore is said And their Procurators Notaries Executors and Summoners shall have the pain and forfeiture aforesaid And c. 3 It is ordained and established That if any man bring or send within the Realm or the King's power any Summons Sentence or Excommunication against any person of what condition that he be for the cause of making motion assent or execution of the said Statute of Provisors he shall be taken arrested and put in Prison and forfeit all his Lands and Tenements Goods and Chattels for ever and incur the pain of life and of member And if a Prelate make execution of such Summons Sentences or Excommunications that his Temporalties be taken and abide in the Kings hands till due redress and correction thereof be made And if any person of less Estate than a Prelate of what condition that he be make such execution he shall be taken arrested and put in Prison and have Imprisonment and make fine and ransom by the discretion of the Kings Councel 16 R. 2. 't is declar'd That the Crown of England which hath been so free at all times that it hath been in no earthly subjection but immediately subject to God in all things touching the Regalty of the same Crown ought not to be submitted to the Pope nor the Laws and Statutes of the Realm by him defeated and avoided at his will in perpetual destruction of the Sovereignty of the King our Lord His Crown His Regalty and of all His Realm And moreover the Commons affirmed That the things attempted by the Pope be clearly against the King's Crown and His Regality used and approved of in the time of all his Progenitors Wherefore they and all the Leige-Commons of the same Realm will stand by the King and
and accorded for the good governance of the Commons that no man be put to answer without Presentment before Justices or matter of Record or by due Process and Writ Original according to the Old Law of the Land and if any thing be done to the contrary it shall be void in Law and holden for error What are we the better I say to have these and several other Statutes to the same purpose if they are not of force to secure us on all sides from the slavish yoke of Arbitrary Power If a breach be once made in these great Bulwarks of our Liberties and that even by those Sentinels appointed to guard us from all Illegal Incroachments where is our Security What will it avail the flock that they are safe from Wolves if they are in danger to be devour'd by the very Dogs that shou'd defend them Or to what purpose shou'd people struggle to avoid Scylla if at the same time they suffer themselves to be swallow'd up in Charybdis 'T is an old saying Infeliciter aegrotat cui plus mali venit a medico â—uam a morbo and we have found this too true by a dear-bought experience God preserve us from receiving any further confirmations of it from those State-Empyricks that labour to make us exchange the reality for the name and the substance for the shadow or Liberty 'T is plain by the foregoing Statutes that no man ought to be taken or Imprison'd without being brought to Answer by due course of Law and that none can be brought thus to answer without Presenâ—ment before Justices or matter of Record or by due Process and Writ Original according to the old Law of the Land What pretence then have the House of Commons who can bring none to Answer in this manner to any right or legal power to take or Imprison any Criminal whatsoever 'T is true the Common and generally all men in Authority are inclin'd to enlarge their own Jurisdiction and stretch it as far as possible but sure a bare Vote of that House in favour of themselves or a late practice never heard of in former Ages shall not be of force enough in any Court of Justice to elude the solemn Acts of King and Parliament Besides these Statutes too plain to admit of any comment even by the Common Law of this Realm no Subject can Imprison another but our Ancient Courts of Record and such as have the Kings express Commission for so doing I say Courts of Record because as appears by divers adjudg'd Cases in our Law Reports no other Court can Fine or Imprison the Subject Courts saith Coke which are not of Record cannot impose a Fine or commit any to Prison lib. 8. f. 38. And again Nulla Curia quae Recordum non habet potest imponere finem neque aliquem mandare carceri quia ista tantummodo spectant ad Curias de Recordo Now our best Lawyers will tell us that the House of Commons is no Court of Record nay properly speaking is no Court at all 1. Because there is no Court but what is establish d by the Kings Patent by Act of Parliament or by the Common-Law i.e. the constant immemorial custom of former Ages Plowdens Comment fol. 319. and Coke 1 Instit. f. 260. But the House of Commons cannot pretend to have any Patent or Act of Parliament to be a Court and yet the Common-Law makes nothing for their purpose For they were never own'd as such nor ever had as much as a journal-Journal-Book much less Records till Ed. 6's time And moreover it was never heard before Sir Edward Cokes fancy there were two distinct Courts in the same Parliament since therefore the House of Lords is undoubtedly the Supream Court of all England they are properly the High Court of Parliament and consequently the House of Commons is no Court in Law Secondly There is no Court without a power of Tryal but the House of Commons have no power to try any Crime or Offence for they cannot nor ever pretended to examine upon Oath And therefore since there can be no legal tryal without Witnesses nor are Witnesses of any force in Law unless examin'd upon Oath the House of Commons not claiming the power to administer Oaths cannot bring any matter to a Tryal and consequently can be no Court. I must confess Sir Edward Coke who in his latter days thinking himself disoblig'd was no friend to the Monarchy and therefore took a great deal of pains to extol the Power of the Commons in opposition to the Kings Prerogative and the Jurisdiction of the Lords is or at least pretends to be of another opinion In the 4th part of his Institutes he tells us That the House of Commons is to many purposes a distinct Court p 28. which he very Learnedly proves by this rare Demonstration That upon signification of the Kings pleasure to the Speaker they do and may Prorogue or Adjourn themselves and are not Prorogu'd or Adjourned by the House of Lords ib. Whereas to say nothing of Commissioners for examining Witnesses or regulating any publick business of Arbitrators Referees and the like every Committee of Lords and Commons tho never so few in number must upon this account be a distinct Court because they may thus Adjourn and Prorogue themselves without their respective Houses But he goes on and to prove the House of Commons is not only a Court but a Court of Judicature and Record he says p. 23. That the Clerks Book of the House of Commons is a Record and so declared by Act of Parliament 6 H. 8. c. 16. Whereas that House as I have already hinted had no such Book as a Journal much less any Authentick Record before the first year of Edward the sixth all their material Proceedings till then being drawn in Minutes by a Clerk appointed to attend them for that purpose and by him entr'd of Record in the House of Lords And therefore the words of the Statute are That the Speakers License for Members going into the Country be entred of Record in the Book of the Clerk of the Parliament appointed for the Commons House Which undoubtedly must be meant not of the Commons tho order'd now and then to wait upon them but of the Lords Clerk who alone is stil'd Clerk of the Parliament I omit that altho the Act had expresly call'd the Commons Book a Record yet this cou'd no more make it so than the words of the Common-Law Recordari facias loquelam in Curia Comitatus vel Baronis tui Recordum illud habere coram Justiciariâ—s nostris c. us'd in the Writt for removing a Plaint out of the Court-Baron or County-Court to the Common-Pleas can prove the County-Court and Court-Baron to be Courts of Record which yet Coke himself denyes in several places of his Institutes See 1 Inst. f. 117. and 260. and Rolls in his Abridg. f. 527. This is not all the Lords and Commons must be made all Fellows
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