against 25 E. 3. in raising or bearing Arms or maintaining them against the King ipso facto ceases to be a Member of Parliament for that a Rebel and a Parliament-man are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And also if thought fit that the Judges of the Land consulting together should have declared as they did in King James his time in that case about Watson and Clerk the Seminary Priests that the Kings Coronation was but a Ceremony and that without it the King was a complete King that that Long Parliament was dissolved from such a day as they should have found by Law that it was dissolved or annulled whether it was from the time of His late Majesties expulsion from his Parliament as before or from the time of voting to live and dye with the Earl of Essex or of their Votes of no further addresses to the King who called them to consult with him whether they did not then openly dissolve themselves by refusing to consult with him or from his death when they could consult no more with him And also if thought fit that it should have been so declared and enacted that though the King had passed an Act that the Parliament should sit till they were dissolved by an Act of Parliament and that if it had been expressed that it should be so notwithstanding that His Majesty should dye in the interim yet such an Act could not bind him nor his Successor especially when in that Act for continuing that Parliament till by such Act it should be dissolved there is no such mention that it should continue after his death that called it and that the King cannot be concerned at leastwise concluded any wayes in any Act of Parliament to his damage prejudice or diminution of his royal Prerogative or Authority except at least he explicitely and freely consent to it be specially comprized and named in that Act to that purpose or whether he can though he so consent it following plainly that if by taking up Arms or bearing Arms against the King a Parliament-man ceases to be so nor can sit any longer in the House Then in that case none ought truly to be accounted secluded or excluded Members but onely these that would uot then vote to live and dye with the Earl of Essex nor would assent to the raising of arms against the King but thereupon left the House or were expelled thence either by the Votes of the rest or by menaces just fear that might incidere in constantem virum or by tumultuous force so that if the Parliament if not by the reasons aforesaid yet at least by the death of the King being dissolved as to think the contrary is most void of reason or truth if I say it had not been so dissolved then those secluded or excluded Members they onely ought to have been restored and none of the rest that acted against the King by taking up Arms against him or acting against him ought to have been restored Such offended against the Act of 25 E. 3. raising Arms against the King c. counterfeiting or making a new Great Seal c. and their being Members of Parliament being as before inconsistent and for the void places His Majesty to issue out Writs for free legal and new Elections And also that the keeping of the Records in the Tower The keeping of the Records in the Tower should be in the hands of a known trusty Loyalist and none other in regard of the danger of imbezelling or corrupting them by any person of other principles not affected to Monarchical government by Law established to the great damage of the King and his Subjects And also that the Militia The Militia and all Offices and places of trust and concernment for the peace and safety of the Kingdoms and for the prevention of future Faction Sedition and disturbance of such peace and endangering such safety should be committed onely to the hands and especially for a competent space of time as by such free and legal Parliament or by His Majesty shall be agreed upon of known experienc'd Loyalists and not to any that may be reasonably presumed or suspected to be otherwise That rule may somtimes hold and not be rejected Qui semel est malus semper praesumitur esse malus presertim in eodem genere delicti And also if thought fit Oaths of Allegeance and Supremacy explained that the Oaths of Allegeance and Supremacy should have had some explanation alteration or emendation especially in that point of not resisting the King In the second Homily of Obedience which book is confirmed by Act of Parliament it is there expressed in terminis as the Doctrine of the church of Engl. that it is not lawful in any case to resist the King That this should expresly have been put into these Oaths and that all persons whatsoever which are to take the Oaths of Allegeance or Supremacy or that have taken them may take them with such emendations it being too notorious what strange interpretations have been made of these Oaths as that they were made onely against the Papal power and as though nothing else were to be resisted And in the beginning of the Rebellion in Scotland the orthodox Divines of Aberdeen maintaining according to that Doctrine of the Church of England That in no case the King is to be resisted and that so to do was contrary to Gods Words and to the opinion and practice of the primitive Christians The other Divines fomentors of that Rebellion expresly denied this and alledged that the reason why the primitive Christians resisted not was because deerant illis vires the very same reason that Bellarmine gives for he same so well do these two Factions concur Though by the History of those times it appears and Tertullian openly pleads it against the Emperor that it was not for want of strength for they had enough but that it was contrary to their conscience guided by Gods Word so to resist And therefore why not much need that all persons whatsoever should take this Oath to declare their opinion in this point And also Robbery the law to be â—â—tered if thought fit that the Law concerning Robbery ought to be in many cases and especially for the first offence mitigated and not made capital but that restitution be made to the party robbed and if the Robber be not able to do it then to be forced to work it out Which course some think would probably more terrifie idle persons that turn thieves who had rather dye desperately then lead perhaps a long and wearisom life Hereby many may repent and amend and do good service to their King and Countrey The party robbed also hereby gets restitution which seldom or never happens as the Law now is Our Law contrary to the practice in other parts of the Christian world hereby becomes harder then the Levitical Laws Some have hereupon said that the Gospel the Spirit killeth and the Letter giveth
been writ about that ridiculous contradiction in adjecto of the two Houses coordination with the King the Monarch when as before is specified the King is the Head the Lords Spiritual and Temporal and the Commons the three Estates by several Acts of Parliament specified Lippis tonsoribus notum yet urged for designs mischievous abominably as we have felt As also that trayterous distinction of the Spensers Spensers Treason 'twixt the Kings Person and Office by two Acts of Parliament declared Treason yet in these late times maintained by too many Goodwins book for the justification of the murther of the late King and many other of that kind Goodwins book justifying the murther of the King Mr. Bucks book of Richard the third wherein he seems to impugne the right of the King from the daughter of King Edward the fourth wife to King Henry the seventh Mr. Bucks book of Richard 3. too much leaning to if not affirming Richard the thirds right by that monstrous Act of Parliament that illegitimates Edward the fourths issue In Sir Edward Cooks book entituled The third part of the Institutes of the Law of England Sir Edw. cooks Writings concerning High Treason and other Pleas of the Crown 1658. Printed at London by M. Flesher for W. Lee and D. Pakeman § Le Roy pag. 7. he puts it down there for Law upon the Statute of 25 E. 3. c. 2. De proditionibus That if Treason be committed against a King de facto and non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto and a Pardon granted by a King de jure that is not also de facto is void Strange would have been the consequence of this if Cromwell had been made King as some desired and a loyal man should have killed him in order to the restitution of the true King de jure our dread Soveraign King Charles the second Or should a loyal man for the same end have killed him though he had but de facto non de jure the title of Protector how far would that have extended by the words in the same § may be considered where he sayes that Statute of E. 3. is to be understood of a King regnant and as follows there and as he sayes most truly a Queen regnant is within these words Nostre Seigneur le Roy for she hath the Office of a King So perhaps it deserves to be examined whether some of note and power in the time of Cromwells Usurpation did not affirm that Cromwell was within these words Nostre Seigneur le Roy. In regard Sir Edward Cooks Writings are by many held in high repute and some have not stuck to style him the Oracle of the Law therefore his Writings require to be more strictly looked into and that if any errors be found therein they may be detected and expunged as being more dangerous then in other mens Writings not of so great repute Corruptio optimi est pessima Also it was advised Illegal and seditious speeches if it shall be thought fit that such Speeches as have been publickly made by any Judges or noted Lawyers upon the Bench or in any publick Assemblies against the Regal or Subjects Right or the Law of Nations which may give just offence to our Neighbours may be taken notice of and publickly declared against Such us that when that Act of 25 E. 3. was alledged to justifie Cromwells Usurpation and that Seigneur le Roy in that Statute included Cromwell the usurping Protector And that speech of a great Lawyer at the tryal of the Portugal Ambassadors brother when it was alledged that he was by the Law of Nations to be sent back cum postulatu to his Master the King of Portugal to be by him punished for his offence committed here and that that Commission for trying him here without the consent of the Portugal Ambassador was the first Commission that ever was granted here to try any Ambassador or his servant without the Ambassadors consent Even the Bishop of Ross Ambassador from Mary Queen of Scotland though she was de facto deposed or forced to renounce the Crown there when he had committed a great offence yet was onely dismiss'd and not further questioned But to all this and much more that Lawyer replied What have we to do with the Law of Nations if it be contrary to the Law of England One pretended afterwards to excuse him and that he spoke but according to the words in the Statute of 21 H. 8.21 where it is said We are free from any subjection to any mans Laws but onely to such as have been devised made and ordeined within this Realm for the wealth of the same c. which words are intended against the Papal Usurpation imposing Laws upon us As also if it be thought fitting The illegal Preface to the Propositions at the Isle of Wight that that Preface to the Propositions sent by the House to the late King at the Isle of Wight which seem to strike at if not to take away the Kings Negative voice in Parliament expresly contrary to many Acts of Parliament the Kings most known Prerogative and the most known Custom and Law of the Land be declared illegal and derogatory to His Majesties Prerogative and just right As also if it shall be thought fitting Rectifying of translation of some words that the translation of the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in Rom. 13.1 to higher powers altered to the supreme powers for so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 1 Pet. 2.13 is translated whether to the King as supreme The two Houses and Powers inferior many degrees to them have by some been interpreted to be meant by higher powers and strangely hath it been wrested if not exclusive of the King As also if it shall be thought fitting that that expression about the time of His Majesties coming over Illegal Declaration in one of the Declarations or Remonstrances that the Government was by the King Lords and Commons being derogatory to His Majesties Prerogative and Legislative power and the Government being in him radically and but derivatively and subordinately in any others for and under him Therefore to be considered of altered and amended As also The Printing-press if it shall be thought fit that the Presse be carefully looked into that no seditious Books or Pamphlets be vented to poyson the people or to confirm any in their bad principles The want of this care hath grown into a great Seminary of mischief which if nothing but our sad experience of it should make us more wary for the future As also A body of the Law to be framed if it shall be thought fit that according as was begun by the late Lord Chancellor the Lord Viscount St. Albanes which as 't is said King James put him upon a Body of the Laws should be digested and compiled
Parliaments accounting what has been once done there quo jure qua injuria right and good and to be deduced into practice even those strange irregular acts in the tumultuous times of Richard the second and Henry the fourth nay we have seen how Spensers Treason distinguishing the person and office of the King so declared to be Treason by Act of Parliament many ages since even urged for right to instance no more Some have advised that such precedents acts and proceedings should have been examined and by publick Declaration by Act of Parliament purged or abolished or declared illegal And that Acts of Oblivion c. if but for that reason of preventing that male construction of citing ill precedents for Law that an inspection should have been made into the Acts of Amnesty and Oblivion passed in the first years of the Long Parliament and also that passed this last Parliament We have seen especially if we looked Northward how soon after such Acts of Indempnity and Amnesty the Delinquents as though they thought themselves justified in their former crimes fell again into the same And that there should in those past and due care be had for the same in the future have been a specification made of the crimes and offences intended there to have been pardoned and put into oblivion lest otherwise implicitely and insensibly they might have been taken not to be crimes and Loyalty and Fidelity tacitly at least accounted crimes and so creep into precedent and example for the future And that the first Paragraphs in the late Act of Pardon Indempnity and Oblivion might if thought fit be considered of where in the first place are pardoned All and all manner of Treasons Misprisions of Treason Murthers Felonies and Offences crimes c. counselled commanded acted or done since the first day of January 1637. by any persons before the 24 day of June 1660 c. by vertue or colour of any command power authority commission warrant or instructions from His late Majesty King Charles or His Majesty that now is Though there might be some obliquity error or abuse in the execution of Commissions from their Majesties yet some stumble at these expressions of Treasons Murther c. to be committed by Commission from the King as without all question was committed by Commissions granted by others and yet here they look like equal and eaven crimes which no loyal man can own It neither hurts nor hinders the pardon but rather more strengthens it that the crimes pardoned are specified and let the application be made onely to them that are guilty of them not to the guiltlesse and such as deserve honour and reward for that which some would at least imply to be criminal much lesse no ignominy or reproach Surely the Loyal party that acted according to the known Laws for so acting needed not His Majesties pardon Facinus quos inquinat aequat Some men cannot think themselves cleared except they can taint others guiltlesse with the imputation at least of these crimes whereof they themselves onely are culpable and it is a question whether their true meaning be not that they would have an Exculpation a term we have more lately had from the North and even a justification from their known crimes at least to be accounted no greater crimes then the actions of those that acted by the Kings authority according to the known Laws of the Land which they well know are no crimes but the contrary It is obvious to every eye how some have sweat to have justified all the illegal Acts of the Long Parliament Some make little or nothing of the endeavours that then were to have killed the late King in Battel but onely of putting him to death in cold bloud And that Restitution of some goods where the property is not altered if thought fit that such goods whereof the property is not altered as Houshold-stuff Plate Furniture of beds Pictures Hangings eminent Jewels or such like plundered or taken away wrongfully either by pretended Sequestrations spoil or otherwise should be restored to the owners or in some cases a just value repaid for them with a just consideration to be had of the parties from whom they were taken and of their actings and not to remain as they do in the view of the owners perhaps purposely in despight exposed to such publick view This works contrary to His majesties pious intention and that Act of Oblivion it continues does not abolish the memory of our former divisions when the spoiled shall see as a continual Eye-sore their proper goods in the possession of the spoiler whilest the spoiled for want of them perhaps is ready to starve and perhaps the spoiler makes his livelyhood out of them if not steps of preferment too The Heathen Poet could say of the Civil wars of Rome Bella geri placuit nullos habitura triumphos But surely this looks like a continued triumph after the Warre Some have wished that that motion in the last Parliament Reparation to persons spoyled or Assembly or Convention that ended in December 1660. made in the Lords House might be renewed that the spoyed party might at least in some good measure be repaired by some publick Tax made for that purpose and due consideration to be had of such suffering spoyled persons that constant never-changing Loyalty may have some encouragement and comfort besides that of a good conscience Some have wished that it might have been by Act of Parliament declared Touching the Long Parliament if thought fit that the Long Parliament notwithstanding that Act for the continuing of it till it should be dissolved by Act of Parliament was dissolved or declared void and null from such a day as should have been by advice of the Judges and learned in the Laws agreed upon And that also if thought fit consideration should have been had particularly from what time that dissolution annulling or making void should have commenced whether from the time that His late Majesty was driven from the Parliament by tumults and riots which as is known some if not many Members especially of the then Commons House in that Long Parliament that took up Arms against the King were so far from causing to be suppressed though His Majesty desired it that they were set on by them as is notorious And also if thought fit that if not from that time yet from the time they voted to live and dye with the Earl of Essex by them voted to be their General against the King and upon the matter causing those Members to leave the House that would not vote with them And whether that His Majesty calling them afterwards a Parliament as they alledged when they were in Arms against him though perhaps His Protestation to the contrary was entred in the council-Council-book could any wayes entitle them to a lawful Parliament And also if thought fitting that it should have been by Act of Parliament declared that any Member of Parliament offending
be amended The stealing of men or women Stealing of men c. girles or boyes by these extraordinary thieves called Spirits or others to be carried into remote Plantations where probably their Parents shall ever hear of them Shall we provide good Laws against the stealing of our Cattel and our Goods and not of our Children Such kind of Plagiaries have been more taken notice of in other parts and severely punished St. Paul 1 Tim. 1.10 amongst those against whom the Laws are made reckons up the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Men-stealers And also Against delays in Courts if thought fitting that a select Committee should be appointed to consider of the dilatory proceedings in all Laws both Ecclesiastical and Temporal delaying of justice being almost as bitter as injustice and the promise is as well not to delay justice as to do justice many instances might be given of delayes in justice and perhaps none more then in actions upon the Writ of Formedon especially where there are many Copartners which I have heard some Common Lawyers complain of And also that sueh a select Committee should consider of Fees in all Courts Fees in all Courts and to fix a settled rule for them that onely such may be taken as cannot justly be grievous to the Subject and yet may be sufficient for the Officers that receive them due consideration being had of their respective qualities pains charges and all incidents and circumstances concerning them and of the great rates of all commodities raised exceeding highly since the time that such Fees were settled especially in Ecclesiastical Courts 21 H. 8. this hath alwayes been a consideration for the raising of Fees And also Against the non-examining of witnesses upon oath in the Defendants defence if it shall be thought fitting that the practice of the Laws touching Non-admission of witnesses to be sworn upon oath in defence of the party prosecuted against by the King should be amended And whether it seem not strange to some that A. B. being indicted at London for killing C. D. at Barwick upon Tweed in such a place there on such a day about such time of the day and the accused party endeavouring by the negative pregnant to defend himself would prove that that very day he was perhaps at St. Michaels Mount in Cornwal about the same time of the day and so could not be then at Barwick and he produces sufficient witnesses upon this yet they must not be examined upon oath and why should the Jury rather believe witnesses without oath then sworn witnesses especially when they hear no just exceptions against the sworn witnesses which haply the Defendant cannot at least upon an instant give perhaps having not heard of them till the very time of their production against him at his tryal and the cause being heard so summarily as is usual and so exceeding small time of defence given that he cannot possibly enquire after them to refute their testimony by just exceptions against them The usual answer is Witnesses must not be examined upon oath against the King as though it concerned not the King as much to save a guiltless man as to hang a guilty It was accounted a good speech of that Roman Emperor that said Mallem unum servare civem quam decem occidere hostes And also if it be thought fitting Against the examination of witnesses in the hearing of one another that witnesses should not be examined as usually they are at our common tryals both in civil and criminal causes openly in the hearing of one another when it is to be feared that it hath happened sometimes that the craftiest witnesse has been put on to speak first and he hath thereby given aim dangerously to the rest Should any object that in such summary proceedings it cannot well be otherwise May it not be answered that 't is to be feared there may be more haste then good speed and they might be examined privately and apart not in the hearing of one another even in such summary causes almost in as short time and according to the course of the Civil Law that examines so apart their testimonies when all taken might be published and if need be even in their own presence to confirm them viva voce Daniels hearing of the cause 'twixt the two Elders and Suzanna seems to be summary and yet he takes that course had he not done so probably it had gone hard with Suzanna for it scarce can be supposed but if the two Elders had been examined in the hearing of one another they would have jumped in their testimony and not varied as they did in the species of the Trees no doubt the latter would have concurred with the former And also That persons wrongfully accused may have reparations from the accuser if it be thought fit that though the parties be accused in the Kings behalf as commonly they are in cases of Extortion or other crimes of offences yet if upon the traverse they defend themselves and prove themselves to be guiltless they should have due reparation both in point of reputation and trouble and charges from the party that caused them to be so indicted otherwise 't is very possible and probable especially in point of supposed Extortion for any man to be undone when one or many malitious or ignorant men or both may so and very often indict any man who though he prove himself never so guiltless and that it is no extortion but that the accuser was mistaken and that it proceeded from his ignorance or malice or both yet he shall have no reparation and it is well known that some so indicted could have proved themselves guiltless but knowing it was very chargeable and to have justified themselves so often as some malicious or ignorant men would have indicted them would have quite ruined them in their fortunes therefore to prevent that have betrayed their own innocence confessed themselves guilty of the accusation and paid the Fine or Mulct as many degrees easier This is hard Crudelis est sibi ipsi qui famam suam negligit what then qui prodit May it not be enquired then if it be not fitting that both a more easie and less chargeable course might be taken upon the traverse and also that the guiltless accused party should be duly repaired both in reputation and in charges and trouble though I am not so rigid as to think upon a Lex talionis but in some few special cases Also That the Act for abolishing the Court of Wards and Tenures may be repealed if it be thought fitting that the Tenures and Privileges taken away from His Majesty in that Act of abolishing of the Court of Wards and the Wardships also should be restored onely if any abuses have been crept in in the execution they may be regulated and amended as that very able and most industrious Gentleman Fabian Philipps Esquire hath learnedly aad fully set forth in that book of his