of Justitiary before pronouncing sentence but without any answer or effect It was then commonly said that by the old Law and Custom the Court of Justitiary could no more in the case of Treason than of any other Crime proceed further against a Person not compearing and absent than to declare him Out-Law and Fugitive And that albeit it be singular in the case of Treason that the Trial may go on even to a final Sentence though the Party be absent yet such Trials were only proper to and always reserved for Parliaments And that so it had been constantly observed until after the Rebellion in the Year 1666 But there being several Persons notourly engaged in that Rebellion who had escaped and thereby withdrawn themselves from Justice it was thought that the want of a Parliament for the time ought not to afford them any immunity and therefore it was resolved by the Council with advice of the Lords of Session that the Court of Justitiary should summon and proceed to trial and sentence against these Absents whether they compeared or not and so it was done Only because the thing was new and indeed an innovation of the old Custom to make all sure in the first Parliament held thereafter in the Year 1669. it was thought fit to confirm these Proceedings of the Justitiary in that point and also to make a perpetual Statute that in case of open Rebellion and Rising in Arms against the King and Government the Treason in all time coming might by an Order from His Majesty's Council be tried and the Actors proceeded against by the Lords of Justitiary even to final sentence whether the Traytors compeared or not This being then the present Law and custom it is apparent in the first place that the Earl's Case not being that of an open Rebellion and Rising in Arms is not at all comprehended in the Act of Parliament So that it is without question that if in the beginning he had not entered himself Prisoner but absented himself the Lords of Justiciary could not have gone further than upon a citation to have declared him Fugitive But others said that the Earl having both entered himself Prisoner and compeared and after debate having been found guilty before he made his escape the case was much altered And whether the Court could notwithstanding of the Earl's intervening escape yet go on to sentence was still debatable for it was alledged for the affirmative that seeing the Earl had twice compeared and that after debate the Court had given judgment and the Assize returned their Verdict so that had nothing remained but the pronouncing of Sentence it was absurd to think that it should be in the power of the Party thus accused and found guilty by his escape to frustrate Justice and withdraw himself from the punishment he deserved But on the other hand it was pleaded for the Earl That first It was a fundamental Rule That until once the Cause were concluded no Sentence could be pronounced Next that it was a sure Maxim in Law that in Criminal Actions there neither is or can be any other conclusion of the cause than the Parties presence and silence So that after all that had past the Earl had still freedom to add what he thought fit in his own defence before pronouncing sentence and therefore the Lords of Justiciary could no more proceed to sentence against him being escaped than if he had been absent from the beginning the Cause being in both cases equally not concluded and the principle of Law uniformly the same viz. That in Criminals except in cases excepted no final sentence can be given in absence For as the Law in case of absence from the beginning doth hold that just temper as neither to suffer the Contumacious to go altogether unpunished nor on the other hand finally to condemn a party unheard And therefore doth only declare him Fugitive and there stops So in the case of an Escape before Sentence where it cannot be said the Party was fully heard and the Cause concluded the Law doth not distinguish nor can the parity of Reason be refused Admitting then that the Cause was so far advanced against the Earl that he was found guilty Yet 1. This is but a declaring of what the Law doth as plainly presume against the Party absent from the beginning and consequently of it self can operate no further 2dly The finding of a Party guilty is no conclusion of the Cause And 3dly As it was never seen nor heard that a Party was condemned in absence except in excepted Cases whereof the Earl's is none so he having escaped and the Cause remaining thereby unconcluded the general rule did still hold and no sentence could be given against him It was also remembred that the Dyets and days of the Justice Court are peremptour and that in that case even in Civil far more in Criminal Courts and Causes a Citation to hear Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the general Opinion That seeing the denouncing the Earl Fugitive would have wrought much more in Law than all that was commonly said at first to be designed against him And that his Case did appear every way so favourable that impartial men still wondered how it came to be at all questioned It had been better to have sisted the Process with his Escape and taken the ordinary course of Law without making any more stretches But as I have told you when the Friday came the Lords of Justiciary without any respect or answer given to the Petition above-mentioned given in by the Countess of Argyle to the Court for a stop pronounced Sentence first in the Court and then caused publish the same with all solemnity at the Mercat-Cross at Edinburgh FOrasmuch as it is found by an Assize That Archibald Earl of Argyle is guilty and culpable of the Crimes of Treason Leasing-making and Leasing-telling for which he was detained within the Castle of Edinburgh out of which he has now since the said Verdict made his Escape Therefore the Lords Commissioners of Justiciary decern and adjudge the said Archibald Earl of Argyle to be execute to the death demained as a Traytor and to underly the pains of Treason and other punishments appointed by the Laws of this Kingdom when he shall be apprehended at such a time and place and in such manner as his Majesty in his Royal pleasure shall think fit to declare and appoint And his Name Memory and Honours to be extinct And his Arms to be riven forth and delete out of the Books of Arms swa that his Posterity may never have place nor be able hereafter to bruick or joyse any Honour Offices Titles or Dignities within this Realm in
for Instances of his guilt If then all his private Papers and Notes to help his Memory in his Plea and Defence shall be taken from him by the Gaoler or the Court and given to his Prosecutors And all Advice and Assistance from Councils or Friends and his nearest Relations shall be denied him and none suffered by word or writing to inform him of the indifferency or honesty or the partiality or malice of the Pannels returned whom the Law allows him to challenge or refuse either peremptorily or for good Reasons offered should he be thus deprived of all the good provisions of the Law for his safety To what Frauds Perjuries and Subornations is not he and every man Exposed who may be accused What Deceits may there not be put upon Juries and what Probability is there of finding Security in Innocence What an admirable Execution would this be of their Commission To make diligent Inquisition after all manner of Falshoods Deceipts Wrongs and Frauds and thereupon to do Justice according to Law When at the same Time if so Managed a Method would be introduced of ruining and destroying any Man in the form of Justice Such practices would be the highest dishonour to the King imaginable whose name is used and so far Misrepresent the Kingly Office as to make that appear to have been Erected to vex and destroy the People which was intended and ordained to help and preserve them The Law so far abhors such proceedings that it intends that every Man should be strictly bound to be exactly just in their several Imployments relating to the Execution of Justice The Serjeant of the King's Council Sir George Jefferys among the rest who prosecute in the King's name and are consulted in the forming Bills of Indictment and advise about the Witnesses and their Testimonies against the Accused These if they would remember it when they are made Serjeants take an Oath Cokes 2d Institutes Pag. 214. as well and truly to serve the People whereof the party accused is one as the King himself and to minister the King's matters duely and truly after the course of the Law to their Cunning Not to use their Cunning and Craft to hide the Truth and destroy the accused if they can They are also obliged by the Statute of Westm 1. Cap. 29. To put no manner of Deceit or Collusion upon the King's Court nor secretly to consent to any such Tricks as may abuse or beguile the Court or the party be it in Causes Civil or Criminal And it is ordained that if any of them be convicted of such practices he shall be imprisoned for a year and never be heard to plead again in any Court and if the Mischievous consequence of their Treacheries be great they are Subject to further and greater punishments Our Antient Law Book called the Miror of Justice Cap. 2. Sect. 4. says That every Serjeant Pleader is chargeable by his Oath not to maintain or defend any Wrong or Falshood to his Knowledge but shall leave his Client when he shall perceive the wrong intended by him Also that he shall not move or proffer any false Testimony nor consent to any Lyes Deceits or Corruptions whatsoever in his pleadings As a further Security unto the People against all Attempts upon their Laws Exemplary Justice hath been done in several Ages upon such Judges and Justiciaries as through Corruption Submission unto unjust Commands or any other Sinister consideration have dared to swerve from them The punishments of these wicked Men remain upon Record as Monuments of their Infamy to be a Terror unto all that shall succeed them In the Reign of the Saxons the most notable Example was given by King Alfred who caus'd above forty Judges to be hanged in a Short Space for several wrongs done to the People as is related in the Mirror of Justice Some of them suffered for imposing on Juries and forcing them to give Verdicts according to their will And one as it seems had taken the Confidence to examine a Jury that he might find which of them would Submit to his Will and setting aside him who would not condemned a Man upon the Verdict of Eleven Since the Coming of the Normans our Parliaments have not been less severe against such Judges as have suffered the course of Justice to be perverted or the Rights and Liberties of the People to be invaded In the time of Edward the 1st Anno 1289. The Parliament finding That all the Judges except Two had swerv'd from their duty condemned them to several punishments according unto their Crimes Ex Chron. Anno 10. Ed. 1. ad finem As Banishment Perpetual Imprisonment or the loss of all their Estates c. Their Particular Offences are specified in a Speech made by the Arch-Bishop of Canterbury in Parliament They had broken Magna Charta Incited the King against his People Violated the Laws under pretence of expounding them and impudently presumed to prefer their own Councils to the King before the Advices of Parliament as appears by the speech c. Hereunto annext The like was done in Ed. the 2d Time when Hugh De Spencer was charged for having prevailed with the King to break his Oath to the People in doing Things against the Law by his own Authority In Edward the 3d. Time Judge Thorpe was hang'd for having in the like manner brought the King to break his Oath Dan. History p. 260 261. And the happy Reign of that great King affords many Instances of the like nature amongst which the punishment of Sir Henry Green and Sir William Skipwith deserve to be observed and put into an Equal Rank with those of his brave and victorious Grand-father In Richard the Second's Time Eleven of the Judges See all the English Histories of Walsingham Fabian Speed c. in the 11 and 12 years of Richard II. forgetting the dreadful Punishments of their Predecessors subscrib'd malicious Indictments against Law and gave false Interpretations of our Ancient Laws to the King thereby to bring many of his most Eminent and worthiest Subjects to suffer as Traytors at his Will Subjected the Authority and very Being of Parliaments to his absolute pleasure And made him believe that all the Laws lay in his own breast Hereupon sentence of death passed upon them and tho upon their repentance and confessing they had been swayed by fear and threatnings from the King Two only were Executed all the others were for ever banished as unworthy to enjoy the benefit of that Law which they had so perfidiously and basely betrayed It were an Endless work to recite all the Examples of this kind that are found in our Histories and Records but that of Empson and Dudley must not be omitted They had craftily contriv'd to abolish Grand Juries and to draw the Lives and Estates of the People into question without Indictments by them and by surprise and other wicked practices they gained an Act of Parliament for their countenance Hereupon
3. By taking the Children of Protestant Noblemen and Gentlemen sending them abroad to be bred Papists making great Funds and Donations to Popish Schools and Colleges abroad bestowing Pensions on Priests and perverting Protestants from their Religion by Offers of Places Preferments and Pensions 4. By disarming Protestants while at the same time he employed Papists in the Places of greatest Trust Civil and Military such as Chancellor Secretaries Privy Councellors and Lords of Session thrusting out Protestants to make room for Papists and intrusting the Forts and Magazines of the Kingdom in their hands 5. By Imposing Oaths contrary to Law 6. By giving Gifts and Grants for exacting of Mony without Consent of Parliament or Convention of Estates 7. By Levying and keeping on foot a standing Army in time of Peace without consent of Parliament which Army did exact Locality free and day Quarters 8. By Employing the Officers of the Army as Judges through the Kingdom and imposing them where there were held Offices and Jurisdictions by whom many of the Leiges were put to Death summarily without legal Tryal Jury or Record 9. By imposing exorbitant Fines to the Value of the Parties Estates exacting extravagant Bail and disposing Fines and Forfaulture before any Process or Conviction 10. By Imprisoning Persons without expressing the Reason and delaying to put them to Tryal 11. By causing pursue and forfault several Persons upon stretches of old and obsolete Laws upon frivolous and weak pretences upon lame and defective Probations as particularly the late Earl of Argyle to the scandal and reproach of the Justice of the Nation 12. By Subverting the Right of the Royal Boroughs the Third Estate of Parliament imposing upon them not only Magistrates but also the whole Town Council and Clerks contrary to the Liberties and express Charters without the pretence either of Sentence Surrender or Consent So that the Commissioners to Parliaments being chosen by the Magistrates and Councils the King might in effect as well nominate that entire Estate of Parliament many of the said Magistrates put in by him were avowed Papists and the Burghs were forced to pay Mony for the Letters imposing these Illegal Magistrates and Council upon them 13. By sending Letters to the chief Courts of Justice not only ordering the Judges to stop and desist sine die to determine Causes but also ordering and commanding them how to proceed in Cases depending before them contrary to the express Laws And by changing the Nature of the Judges Gifts ad vitam aut culpam and giving them Commissions ad bene placitum to dispose them to compliance by Arbitrary Courses turning them out of their Offices when they did not comply 14. By granting Personal Protections for Civil Debts contrary to Law All which are utterly and directly contrary to the known Laws Freedoms and Statutes of this Realm Therefore the Estates of the Kingdom of Scotland find and declare That King James the Seventh being a profest papist did assume the Regal Power and acted as a King without ever taking the Oath required by Law and have by advice of Evil and Wicked Counsellors invaded the Fundamental Constitution of the Kingdom and altered it from a Legal limited Monarchy to an Arbitrary and Despotick Power and hath exercised the same to the subversion of the Protestant Religion and the violation of the Laws and Liberties of the Kingdom Inverting all the Ends of Government whereby he hath forfaulted the Right to the Crown and the Throne is become vacant And whereas his Royal Highness William then Prince of Orange now King of England whom it hath pleased the Almighty God to make the glorious Instrument of delivering these Kingdoms from Popery and Arbitrary Power did by advice of several Lords and Gentlemen of this Nation at London for the time call the Estates of this Kingdom to meet the Fourteenth of March last in order to such an Establishment as that their Religion Laws and Liberties might not be again in danger of being subverted And the said Estates being now assembled in a full and free Representative of this Nation taking to their most serious consideration the best means for attaining the Ends aforesaid Do in the first place as their Ancestors in the like cases have usually done for the vindicating and asserting their Ancient Rights and Liberties declare That by the Law of this Kingdom no Papist can be King or Queen of the Realm nor bear any Office whatsoever therein nor can any Protestant Successor exercise the Regal Power until he or she swear the Coronation Oath That all Proclamations asserting an Absolute Power to cass annul and disable Laws the erecting Schools and Colleges for Jesuits the inverting Protestant Chapels and Churches to publick Mass-houses and the allowing Mass to be said are contrary to Law That the allowing Popish Books to be printed and dispersed is contrary to Law That the taking the Children of Noblemen Gentlemen and others sending and keeping them abroad to be bred Papists The making Funds and Donations to Popish Schools and Colleges the bestowing Pensions on Priests and the perverting Protestants from their Religion by offers of Places Preferments and Pensions are contrary to Law That the disarming of Protestants and imploying Papists in the Places of greatest Trust both Civil and Military the thrusting out Protestants to make room for Papists and the entrusting Papists with the Forts and Magazines of the Kingdom are contrary to Law That the Imposing Oaths without Authority of Parliament is contrary to Law That the giving Gifts or Grants for raising of Mony without the Consent of Parliament or Convention of Estates is contrary to Law That the employing Officers of the Army as Judges through the Kingdom or imposing them where there were several Offices and Jurisdictions and the putting the Lieges to death summarily and without legal Tryal Jury or Record are contrary to Law That the imposing extraordinary Fines the exacting of exorbitant Bail and the disposing of Fines and Forfaultures before Sentence are contrary to Law That the Imprisoning Persons without expressing the reason thereof and delaying to put them to Tryal are contrary to Law That the causing pursue and forfault Persons upon Stretches of old and obsolete Laws upon frivolous and weak Pretences upon lame and defective Probation as particularly the late Earl of Argyle are contrary to Law That the nominating and imposing Magistrates Councils and Clerks upon Burghs contrary to the Liberties and express Charters is contrary to Law That the sending Letters to the Courts of Justice ordaining the Judges to stop or desist from determining Causes or ordaining them how to proceed in Causes depending before them and the changing the Nature of the Judges Gifts ad vitam aut culpam unto Commissions Durante bene placito are contrary to Law That the granting Personal Protections for Civil Debts is contrary to Law That the forcing the Lieges to depone against themselves in Capital Crimes however the Punishment be restricted is contrary to Law
said Report Resolved Nemine contradicente THat Richard Thompson Clerk hath publickly defamed his Sacred Majesty preached Sedition vilified the Reformation promoted Popery by asserting Popish Principles decrying the Popish Plot and turning the same upon the Protestants and endeavoured to subvert the Liberty and Property of the Subject and the Rights and Privileges of Parliament and that he is a Scandal and Reproach to his Function And that the said Richard Thompson be impeached upon the said Report and Resolution of the House And a Committee is appointed to prepare the said Impeachment and to receive further Instructions against him and to send for Persons Papers and Records Articles of Impeachment of Sir William Scroggs Chief Justice of the Court of King ' s-Bench by the Commons in this present Parliament Assembled in their own Name and in the Name of all the Commons of England of High-Treason and other great Crimes and Misdemeanors I. THat he the said Sir William Scroggs then being Chief Justice of the Court of King's Bench hath traiterously and wickedly endeavoured to subvert the Fundamental Laws and the Establisht Religion and Government of this Kingdom of England and instead thereof to introduce Popery and an Arbitrary and Tyrannical Government against Law which he has declared by divers Traiterous and Wicked Words Opinions Judgments Practices and Actions II. That he the said Sir William Scroggs in Trinity Term last being then Chief Justice of the said Court and having taken an Oath duly to Administer Justice according to the Laws and Statutes of this Realm in pursuance of his said Traiterous Purposes did together with the rest of the said Justices of the same Court several days before the end of the said Term in an Arbitrary manner discharge the Grand Jury which then served for the Hundred of Oswaldston in the County of Middlesex before they had made their Presentments or had found several Bills of Indictment which were then before them whereof the said Sir William Scroggs was then fully informed and that the same would be tendered to the Court upon the last day of the said Term which day then was and by the known Course of the said Court hath always heretofore been given unto the said Jury for the delivering in of their Bills and Presentments by which sudden and illegal Discharge of the said Jury the Course of Justice was stopt maliciously and designedly the Presentments of many Papists and other Offenders were obstructed and in particular a Bill of Indictment against James Duke of York for absenting himself from Church which was then before them was prevented from being proceeded upon III. That whereas one Henry Carr had for some time before Publish'd every week a certain Book Intituled The weekly Packet of advice from Rome Or the History of Popery wherein the Superstitions and Cheats of the Church of Rome were from time to time exposed he the said Sir William Scroggs then Chief Justice of the Court of King's Bench together with the other Judges of the said Court before any Legal Conviction of the said Carr of any Crime did in the same Trinity Term in a most Illegal and Arbitrary manner make and cause to be entred a certain Rule of that Court against the Printing of the said Book in Haec Verba Dies Mercurii proxime post tres Septimanas Sanctae Trinitatis Anno 32 Car. II. Regis ORdinatum est quod Liber intitulat ' The weekly Packet of Advice from Rome Or The History of Popery Non ulterius imprimatur vel publicetur per aliquam personam quamcunque Per Cur ' And did cause the said Carr and divers Printers and other Persons to be served with the same which said Rule and other Proceedings were most apparently contrary to all Justice in Condemning not only what had been written without hearing the Parties but also all that might for the future be written on that Subject A manifest countenancing of Popery and discouragement of Protestants an open Invasion upon the Right of the Subject and an encroaching and assuming to themselves a Legislative Power and Authority IV. That he the said Sir William Scroggs since he was made Chief Justice of the King 's Bench hath together with the other Judges of the said Court most notoriously departed from all Rules of Justice and Equality in the Imposition of Fines upon Persons convicted of Misdemeanours in the said Court and particularly in the Term of Easter last past did openly declare in the said Court in the Case of one Jessop who was convicted of Publishing False News and was then to be sined That he would have regard to Persons and their Principles in imposing of Fines and would set a Fine of 500 l. on one Person for the same Offence for the which he would not Fine another 100 l. And according to his said Unjust and Arbitrary Declaration he the said Sir Will. Scroggs together with the said other Justices did then impose a Fine of 100 l. upon the said Jessop although the said Jessop had before that time proved one Hewit to be convicted as Author of the said false News and afterwards in the same Term did fine the said Hewit upon his said Conviction only five Marks Nor hath the said Sir Will. Scroggs together with the other Judges of the said Court had any regard to the Nature of the Offences or the Ability of the Persons in the imposing of Fines but have been manifestly partial and favourable to Papists and Persons affected to and promoting the Popish Interest in this time of imminent Danger from them And at the same time have most severely and grievously oppressed his Majesty's Protestant Subjects as will appear upon view of the several Records of Fines set in the said Court By which arbitrary unjust and partial Proceedings many of his Majesty's Liege People have been ruined and Popery countenanced under colour of Justice and all the Mischiefs and Excesses of the Court of Star-Chamber by Act of Parliament suppressed have been again in direct opposition to the said Law introduced V. That he the said Sir Will. Scroggs for the further accomplishing of his said traiterous and wicked Purposes and designing to subject the Persons as well as the Estates of his Majesty's Liege People to his lawless Will and Pleasure hath frequently refused to accept of Bail though the same were sufficient and legally tendered unto him by many Persons accused before him only of such Crimes for which by Law Bail ought to have been taken and divers of the said Persons being only accused of Offences against himself declaring at the same time That he refused Bail and committed them to Gaol only to put them to Charges and using such furious Threats as were to the terrour of his Majesty's Subjects and such scandalous Expressions as were a dishonour to the Government and to the Dignity of his Office And particularly That he the said Sir Will. Scroggs did in the Year 1679 commit and detain in Prison in such
as a Quare impedit Quare incumbravit a Writ of Attaint of Debt Detinue of Ward Escheat Scire fac pur repealer patent c. Unto which every Man must answer But no Man can be brought to answer for Publick Crimes at the King's Suit otherwise than by Indictment of a Grand Jury The whole Course of doing Justice upon Criminals from the beginning of the Process unto the Execution of the Sentence is and ever was esteemed to be the Kingdoms concernment as is evidenced by the frequent Complaints made in Parliament that Capital Offenders were pardon'd to the Peoples damage and wrong In the 13 Rich. 2. it is said that the King hearing the grievous complaints of his Commons in Parliament of the outragious mischiefs which happened unto the Realm for that Treasons Murders and Rapes of Women be commonly done and committed and the more because Charters of Pardon had been easily granted in such Cases And thereupon it was enacted That no Pardon for such Crimes should be granted unless the same were particularly specified therein and if a Pardon were otherwise granted for the Death of a Man the Judges should notwithstanding enquire by a Grand Jury of the Neighbourhood concerning the Death of every such Person and if he were found to have been wilfully Murthered such Charter of Pardon to be disallowed and provisions were made by imposing grievous Fines upon every person according to his Degree and Quality or Imprisonment who should presume to sue to the King for any Pardons of the aforesaid Crimes and that such persons might be known to the whole Kingdom their Names were to be upon several Records The like had been done in many Statutes made by several Parliaments as in the 6 Ed. 1.9 the 2 Ed. 3.2 the 10 Ed. 3.2 and the 14 Ed. 3.15 where it was acknowledged by the King in Parliament That the Oath of the Crown had not been kept by reason of the Grant of Pardons contrary to the aforesaid Statutes and Enacted that any such Charter of Pardon from thenceforth granted against the Oath of his Crown and the said Statutes the same should be holden for none In the 27 Edw. 3.2 It is further provided for preventing the Peoples damage by such Pardons That from thenceforth in every Charter of Pardon of Felony which shall be granted at any mans suggestion the said suggestion and the name of him that maketh the suggestion shall be comprised in the same Charter and if after the same suggestion be found untrue the Charter shall be disallowed and holden for none And the Justices before whom such Charter shall be alledged shall enquire of the same suggestion and that as well of Charters granted before this time as of Charters which shall be granted in time to come and if they find them untrue then they shall disallow the Charter so alledged and shall moreover do as the Law demandeth Thus have Parliaments from time to time declared that the Offences against the Crown are against the publick welfare and that Kings are obliged by their Oath and Office to cause Justice to be done upon Traytors and Felons for the Kingdom 's sake according to the ancient common-Common-Law 9 Hen 3.29 declared by Magna Charta in these words Nulli negabimus nulli vendemus nulli differemeus Justitiam VVe will sell to no Man we will not deny or defer to any Man either Justice or Right And as the publick is concerned that the due and legal Methods be observed in the Prosecution of Offenders so likewise doth the security of every single Man in the Nation depend upon it No Man can assure himself he shall not be accused of the highest crimes Let a Man's Innocence and Prudence be what it will yet his most inoffensive VVords and Actions are liable to be misconstrued and he may by Subornation and Conspiracy have things laid to his charge of which he is no ways guilty VVho can speak or carry himself with that circumspection as not to have his harmless VVords or Actions wrested to another sense than he intended VVho can be secure from having a Paper put into his Pockets or laid in his House of which he shall know nothing till his Accusation History affords many Examples of the detestable Practices in this kind of wicked Court-Paraâ—tes among which one may suffice for Instance Polib lib. 5. out of Polibius an approved Author Hermes a powerful Favourite under Antiochus the younger but a Man noted to be a favourer of Lâ—ars was made use of against the innocent and brave Epigenes He had long watch'd to kill him for that he found him a Man of great Eloquence and Valour having also Favour and Authority with the King He had unjustly but unsuccessfully accused him of Treason by false glosses put upon his faithful Advice given to the King in open Council this not prevailing he by artifice got him put out of his Command and to retire from Court which done he laid a Plot against him with the help and Council of one of his Complices Alexis and writing Letters as if they had been sent from Molon who was then in open Rebellion against his Prince for fear amongst other Reasons of the Cruelty and Treachery of Hâ—â—mes and corrupted one of Alexis's Servants with great Promises who went to Epigenes to thrust the Letters secretly among his other Writings which when he had done Alexis came suddenly to Epigenes demanding of him if he had received any Letter from Molon and when he said he had none the other said he was confident he should â—nd some wherefore entring the House to search he found the Letters and taking this occasion slew him lest if the Fact had been duly examined the Conspiracy had been discovered These things happening thus the King thought that he was justly slain in this manner the worthy Epigenes ended his days But this great Man's designs did not rest here for within a while heightned with success he so arrogantly abused His Master's Authority as he grew dangerous to the King himself as well as to those about him insomuch as Antiochus was forced for that he hated and feared Hermes to take away his Life by Stratagem thereby to secure himself By these and a Thousand other ways the most unblemish'd Innocence may be brought into the greatest danger Since then every Man is thus easily subject to question and what is one Man's Case this day may be another Man 's to morrow it is undoubtedly every Man's concern to see as far as in him lies in every case that the accused Person may have the benefit of all such provisions as the Law hath made for the defence of Innocence and Reputation Now to this end there is nothing so necessary as the secret and separate examination of Witnesses for though perhaps as hath been already observed it may be no very difficult thing for several persons who are permitted to discourse with each other freely and to hear or be told what each
of the Peace and Vnity of this Realm 3. And that such Person or Persons so to be Named Assigned Authorised and Appointed by Your Highness Your Heirs or Successors after the said Letters Patents to him or them made and delivered as is aforesaid shall have full Power and Authority by Vertue of this Act and of the said Letters Patents under Your Highness Your Heirs and Successors to exercise use and execute all the premisses according to the Tenor and Effect of the said Letters Patents any matter or cause to the contrary in any wise notwithstanding So that I take it that all manner of Ecclesiastical Jurisdiction was in the Crown by the Common Law of England and declared to be so by the said Act of 1 Eliz. 1. and by that Act a Power given to the Crown to assign Commissioners to exercise this Jurisdiction which was accordingly done by Queen Elizabeth and a High Commission Court was by her erected which sate and held Plea of all Causes Spiritual and Ecclesiastical during the Reign of Queen Elizabeth King James the First and King Charles the First till the 17th Year of his Reign Which leads me to consider the Statute of 17 Car. 1. ca. 11. which Act recites the Title of 1 Eliz. ca. 1. and Sect. 18. of the same Act and recites further Section 2. That whereas by colour of some Words in the aforesaid Branch of the said Act whereby Commissioners are authorised to execute their Commission according to the Tenor and Effect of the Kings Letters Patents and by Letters Patents grounded thereupon the said Commissioners have to the great and insufferable Wrong and Oppression of the Kings Subjects used to Fine and Imprison them and to exercise other Authority not belonging to Ecclesiastical Jurisdiction restored by that Act and divers other great Mischiefs and Inconveniences have also ensued to the Kings Subjects by occasion of the said Branch and Commissions issued thereupon and the Executions thereof Therefore for the repressing and preventing of the aforesaid Abuses Mischiefs and Inconveniences in time to come by Sect. 3. the said Clause in the said Act 1 Eliz. 1. is Repealed with a Non obstante to the said Act in these Words Be it Enacted by the Kings most excellent Majesty and the Lords and Commons in this present Parliament Assembled and by the Authority of the same That the aforesaid Branch Clause Article or Sentence contained in the said Act and every Word Matter and thing contained in that Branch Clause Article or Sentence shall from henceforth be Repealed Annulled Revoked Annihilated and utterly made Void for ever any thing in the said Act to the contrary in any wise notwithstanding And in Sect. 5. of the same Act it is Enacted That from and after the first of August in the said Act mentioned all such Commissions shall be void in these Words And be it further Enacted That from and after the said first Day of August no new Court shall be erected ordained or appointed within this Realm of England or Dominion of Wales which shall or may have the like Power Jurisdiction or Authority as the said High Commission Court now hath or pretendeth to have but that all and every such Letters Patents Commissions and Grants made or to be made by his Majesty his Heirs and Successors and all Powers and Authorities granted or pretended or mentioned to be granted thereby And all Acts Sentences and Decrees to be made by virtue or Colour thereof shall be utterly void and of none effect By which Act then the Power of Exercising Ecclesiastical Jurisdiction by Commissioners under the Broad-Seal is so taken away that it provides no such Power shall ever for the future be Delegated by the Crown to any Person or Persons whatsoever Let us then in the last place consider Whether the Act of 13 Car. 2. ca. 12 hath restored this Power or not And for this I take it that it is not restored by the said Act or any Clause in it and to make this evident I shall first set down the whole Act and then consider it in the several Branches of it that relate to this Matter The Act is Entituled An Act for Explanation of a Clause contained in an Act of Parliament made in the 17th Year of the Late King Charles Entituled An Act for Repeal of a Branch of Statute in Primo Elizabethae câ—ncerning Commissioners for Causes Ecclesiastical The Act it self runs thus Whereas in an Act of Parliament made in the Seventeenth Year of the Late King Charles Intituled An Act for Repeal of a Branch of a Stature primo Elizabethae concerning Commissioners for Causes Ecclesiastical It is amongst other things Enacted that no Arch-bishop Bisâ—â—p or Vicar-General nor any Chancellor nor Commissary of any Arch-Bishop Bishop or Vicar-General nor any Ordinary whatsoever nor any other Spiritual or Ecclesiastical Judge Officer or Minister of Justice nor any other Person or Persons whatsoever exercising Spiritual or Ecclesiastical Power Authority or Jurisdiction by any Grant Lisence or Commission of the Kings Majesty His Heirs or Successors or by any Power or Authority derived from the King his Heirs or Successors or otherwise shall from and after the First Day of August which then should be in the Year of our Lord God 1641. Award Impose or Inflict any Pain Penalty Fine Amercement Imprisonment or other Corporal Punishment upon any of the Kings Subjects for any Contempt Misdemeanor Crime Offence Matter or Thing whatsoever belonging to Spiritual or Ecclesiastical Cognizance or Jurisdiction 2. Whereupon some Doubt hath been made that all ordinary Power of Coertion and proceeding in Causes Ecclesiastital were taken away whereby the ordinary Course of Justice in Causes Ecclesiastical hath been obstructed 3. Be it therefore Declared and Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords and Commons in this present Parliament Assembled and by the Authority thereof That neither the said Act nor any thing therein contained doth or shall take away any ordinary Power or Authority from any of the said Arch-Bishops Bishops or any other Person or Persons named as aforesaid but that they and every of them exercising Ecclesiastical Jurisdiction may proceed determine Sentence execute and exercise all manner of Ecclesiastical Jurisdiction and all Censures and Coertions appertaining and belonging to the same before any making of the Act before recited in all Causes and Matters belonging to Ecclesiastical Jurisdiction according to the Kings Majesties Ecclesiastical Laws used and practised in this Realm in as ample Manner and Form as they did and might lawfully have done before making of the said Act. Sect. 2. And be it further Enacted by the Authority aforesaid That the afore recited Act of Decimo Septimo Car. and all the Matters and Clauses therein contained excepting what concerns the High Commission Court or the new Erection of some such like Court by Commission shall be and is thereby repealed to dlintents and purposes whatsoever
read to their Majesties the King returned to the Commissioners the following Answer WHen I engaged in this Vndertaking I had particular Regard and Consideration for Scotland and therefore I did emit a Declaration in relation to That as well as to this Kingdom which I intend to make good and effectual to them I take it very kindly that Scotland hath expressed so much Confidence in and Affection to Me They shall find Me willing to assist them in every thing that concerns the Weal and Interest of that Kingdom by making what Laws shall be necessary for the Security of their Religion Property and Liberty and to ease them of what may be justly grievous to them After which the Coronation-Oath was tendred to Their Majesties which the Earl of Argyle spoke word by word directly and the King and Queen repeated it after him holding Their Right Hands up after the manner of taking Oaths in Scotland The Meeting of the Estates of Scotland did Authorize their Commissioners to represent to His Majesty That that Clause in the Oath in relation to the rooting out of Hereticks did not import the destroying of Hereticks And that by the Law of Scotland no Man was to be persecuted for his private Opinion And even Obstinate and Convicted Hereticks were only to be denounced Rebels or Outlawed whereby their Moveable Estates are Confiscated His Majesty at the repeating that Clause in the Oath Did declare that He did not mean by these words That He was under any Obligation to become a Persecutor To which the Commissioners made Answer That neither the meaning of the Oath or the Law of Scotland did import it Then the King replyed That He took the Oath in that Sense and called for Witnesses the Commissioners and others present And then both Their Majesties Signed the said Coronation-Oath After which the Commissioners and several of the Scotish Nobility kissed Their Majesties Hands The Coronation OATH of England The Arch-bishop or Bishop shall say WIll You solemnly Promise and Swear to govern the People of this Kingdom of England and the Dominions thereto belonging according to the Statues in Parliament agreed on and the Laws and Customs of the same The King and Queen shall say I solemnly Promise so to do Arch-bishop or Bishop Will You to Your Power cause Law and Justice in Mercy to be Executed in all Your Judgments King and Queen I Will. Arch-bishop or Bishop Will You to the utmost of Your Power Maintain the Laws of God the true Profession of the Gospel and the Protestant Reformed Religion Established by Law And will You Preserve unto the Bishops and Clergy of this Realm and to the Churches committed to their Charge all such Rights and Priviledges as by Law do or shall appertain unto them or any of them King and Queen All this I Promise to do After this the King and Qeen laying His and Her Hand upon the Holy Gospels shall say King and Queen The Things which I have here before Promised I will Perform and Keep So help me God Then the King and Queen shall kiss the Book The Coronation OATH of Scotland WE William and Mary King and Queen of Scotland faithfully Promise and Swear by this Our solemn Oath in presence of the Eternal God that during the whole course of Our Life we will serve the same Eternal God to the uttermost of Our Power according as he has required in his most holy Word reveal'd and contain'd in the New and Old Testament and according to the same Word shall maintain the True Religion of Christ Jesus the Preaching of his holy Word and the due and right Ministration of the Sacraments now Received and Preached within the Realm of Scotland and shall abolish and gainstand all false Religion contrary to the same and shall Rule the People committed to our Charge according to the Will and Command of God revealed in his aforesaid Word and according to the laudable Laws and Constitutions received in this Realm no ways repugnant to the said Word of the Eternal God and shall procure to the utmost of Our Power to the Kirk of God and whole Christian People true and perfect Peace in all time coming That we shall preserve and keep inviolated the Rights and Rents with all just Privileges of the Crown of Scotland neither shall we transfer nor alienate the same That we shall forbid and repress in all Estates and Degrees Reif Oppression and all kind of wrong And we shall Command and Procure that Justice and Equity in all Judgments be keeped to all persons without exception as the Lord and Father of all Mercies shall be merciful to us And we shall be careful to root out all Hereticks and Enemies to the true Worship of God that shall be Convicted by the true Kirk of God of the aforesaid Crimes out of Our Lands and Empire of Scotland And we faithfully affirm the things above written by Our Solemn Oath God save King WILLIAM and Queen MARY Proposals humbly offered to the Lords and Commons in the present Convention for settling of the Government c. My Lords and Gentlemen YOV are Assembled upon Matters of the highest Importance to England and all Christendom and the result of your Thoughts in this Convention will make a numerous Posterity Happy or Miserable If therefore I have met with any Thing that I think worthy of your Consideration I should think my self wanting in that duty which I owe to my Country and Mankind if I should not lay it before You. If there be as some say certain Lineaments in the Face of Truth with which one cannot be deceiv'd because they are not to be counterfeited I hope the Considerations which I presume to offer You will meet with your Approbation That bringing back our Constitution to its first and purest Original refining it from some gross Abuses and supplying its Defects You may be the Joy of the present Age and the Glory of Posterity FIrst 'T is necessary to distinguish between Power it self the Designation of the Persons Governing and the Form of Government For 1. All Power is from God as the Fountain and Original 2. The Designation of the Persons and the Form of Government is either First immediately from God as in the Case of Saul and David and the Government of the Jews or Secondly from the Community chusing some Form of Government and subjecting themselves to it But it must be noted that though Saul and David had a Divine Designation yet the People assembled and in a General Assembly by their Votes freely chose them Which proves that there can be no orderly or lasting Government without Consent of the People Tacit or Express'd and God himself would not put Men under a Government without their Consent And in case of a Conquest the People may be called Prisoners or Slaves which is a state contrary to the Nature of Man but they cannot be properly Subjects till their Wills be brought to submit to the Government
or two Months and then they assure the Court since they can get no good by them they shall take no harm and therefore to stop them from some worthy Undertaking they by their feigned Zeal against Court Corruptions put them upon Impeaching some Treasurer Councellor or Minister of State and having spent half our time about this the rest is spent for the Clergy upon Church-Work which we have been so often put upon and tired with these many Sessions Though Partiality unbecomes a Parliament who ought to lay the whole Body that we represent alike easie Nonconformists as well as Conformists for we were chosen by both and with that Intention that we should oppress neither To lay one part therefore of the Body on a Pillow and the other on a Rack sorts our Wisdom little but our Justice worse You now see all our Shapes save only the Indigents concerning whom I need say but little for their Votes are publickly saleable for a Guinea and a Dinner every Day in the Week unless the House be upon Money or a Minister of State For that is their Harvest and then they make their Earnings suit the Work they are about which inclines them most constantly as sure Cliants to the Court. For what with gaining the one and saving the other they now and then adventure a Vote on the Country side but the dread of Dissolution makes them strait tack about The only thing we are obliged to them for is that they do nothin Gratis but make every Tax as well Chargeable to the Court as burthensom to the Countrey and save no Mans Neck but they break his Purse And yet when all is said did but the Countrey Gentry rightly understand the Interest of Liberty Let the Courtiers and Indigents do what they could they might yet at last deserve the Name of a worthy English Parliament which that we may do is not more passionately your Desire then it also is of SIR Your most Humble Servant T. E. A SPEECH MADE BY Sir William Scrogg ONE OF HIS Majesties Sergeants at Law To the Right Honourable the Lord High Chancellor Of ENGLAND AT HIS Admission to the Place of One of His Majesties Justices of the Court of Common-Pleas My Lord THAT the King's Favour is the Effect of the Duty I have paid him which your Lordship is pleas'd to call Service is the most welcome and pleasing part of his Kindness and I trust we shall still see such Times that no Man shall hope to have it or keep it on any other Account The right Application of Rewards and Punishments is the steady Justice of a Nation where though the Rewards of Kings exceed what a Subject can merit they should never reach him that demerits To return Good for Evil may be an Obligation of Charity It is never of Bounty And the taking off as they call it of an Ambitious and therefore a Factious Man by Favours is the worst way to stop or open his Mouth for he will whisper one way louder then he will speak the other And when you think you gain one Enemy you make many On such an Occasion as this I think it very proper to give your Lordship some Account what Considerations I have had in order to the Discharge of my Duty in this Place since the King 's first Intimations of his Pleasure And that respects Matters either as they stand betwixt the King and his People or betwixt Man and Man As for the First I know that the Law gives such Prerogatives to the King that to endeavour more were to desire worse and it gives to the People such Liberties that more would be Licentious What then hath a Man to do that hath Courage enough to be Honest but to Apply his Understanding to the Ministration of those Laws justly to both wherein I may say that the Cases will be rare that will be difficult in themselves They may be made so from sinister Causes when Men thinking to serve a Turn or like Pilate to please the People deliver up that which is Right to be Crucified Then they are fain to rack their Fancies to make good their Faults This makes such nice Distinctions and such strained Constructions till they leave nothing plain in the World Whereas in truth the Duty we owe to the King and his People is like the Duty we owe to God not hard to understand whatever it is to Practise This Court My Lord 't is true is properly a Court of Meum and Tuum where Prerogative and Liberty are seldom Plaintiffs or Defendants but yet 't is certain that even in private Causes Matter of Government many times intervenes and the Publick is concern'd by Consequence And therefore I think it fair and like English Honesty and Plainness something to unveil one's self in that particular that Men may know before-hand what they may expect And herein I do declare I would no more wrong or lessen the People's Liberties then I would sacrifice up my Son But then I will no more derogate from the King's Prerogative then I would betray my Father My Lord In time when Faction is so bold as to be bare-fac'd and false and seditious News is openly talk'd and greedily embrac'd when the King 's reasonable Demands are disputed and turned into Cavils and those that oppose 'em talk confidently and those that should maintain 'em speak fearfully and tenderly when the Reverence we owe to the King is paid to the People the Government is beset the King is in Danger and there is nothing wanting but Opportunity But when to prevent that Opportunity Men are afraid and hold it dangerous to avoid the Danger when we dare not call a Crime by its right name and for some find none and a Mischief must be effected before we will think it one When dangerous Attempts are minc'd and by some trivial difference Treason is distinguish'd into a Trespass when Men are forward and ventrous enough in what thwarts the Government but in supporting it seem grave and cautious nice and timorous and so fill'd with Prudentials till they are as wise as fear can make 'em The Law is enervated and becomes useless to its greatest end which is the Preservation of the whole 'T is true in Publick Causes the same Integrity is necessary as in Private But that is but part of a Judge's Duty He must be Magnanimous as well as Virtuous And I acknowledge it to be a main and principal part of my Duty as it relates to the King and his People with hearty Resolution to suppress all open Force and private Confederacies not thinking any thing little that attempts the Publick Safety for when the Motives are small the Danger is greater when Discontents exceed their Causes And for the Discharge of my Duty betwixt Party and Party it is impossible to be performed without these two Cardinal Virtues Temper and Cleanness of Hands Temper comprehends Patience Humility and Candor It seems to me that Saying Be quick
committed and also their Issues being any way assenting or privy to the same and all their Aiders Comforters and Abettors in that behalf And to the end that the intention of this Law may be effectually Executed if Her Majesties Life shall be taken away by any violent or unnatural means which God defend Be it further Enacted by the Authority aforesaid That the Lords and others which shall be of Her Majesties Privy Council at the time of such Her Decease or the more part of the same Council joyning unto them for their better Assistance five other Earls and seven other Lords of Parliament at the least foreseeing that none of the said Earls Lords or Council be known to be persons that may make any Title to the Crown those persons which were Chief Justices of either Bench Master of the Rolls and Chief Baron of the Exchequer at the time of Her Majesties Death or in Default of the said Justices Master of the Rolls and Chief Baron some other of those which were Justices of some of the Courts of Records at Westminster at the time of Her Highness Decease to supply their Places or any Four and twenty or more of them whereof Eight to be Lords of the Parliament not being of the Privy Council shall to the uttermost of their Power and Skill examine the cause and manner of such Her Majesties Death and what persons shall be any way Guilty thereof and all Circumstances concerning the same according to the true meaning of this Act and thereupon shall by open Proclamation publish the same and without any delay by all forcible and possible means prosecute to Death all their Aiders and Abettors And for the doing thertof and for the withstanding and suppressing of all such Power and Force as shall any way be levied or stirred in Disturbance of the due Execution of this Law shall by virtue of this Act have Power and Authority not only to raise and use such Forces as shall in that behalf be needful and convenient but also to use all other means and things possible and necessary for the maintenance of the same Forces and prosecution of the said Offenders And if any such Power and Force shall be levied or stirred in Disturbance of the due Execution of this Law by any person that shall or may pretend any Title to the Crown of this Realm whereby this Law may not in all things be fully Executed according to the effect and true meaning of the same That then every such person shall by virtue of this Act be therefore excluded and disabled for ever to have or claim or to pretend to have or claim the Crown of this Realm or of any other Her Highness Dominions any former Law or Statute whatsoever to the contrary notwithstanding And be it further Enacted by the Authority aforesaid and all and every the Subjects of all Her Majesties Realms and Dominions shall to the uttermost of their Power aid and assist the said Councel and all other the Lords and other Persons to be adjoyned to them for Assistance as is aforesaid in all things to be done and executed according to the effect and intention of this Law And that no Subject of this Realm shall in any wise be impeached in Body Lands or Goods at any time hereafter for any thing to be done or executed according to the Tenour of the Law any Law or Statute heretofore made to the contrary in any wise notwithstanding And whereas of late many of Her Majesties good and faithful Subjects have in the Name of God and with the Testimonies of good Consciences by one Uniform manner of Writing under their Hands land Seals and by their several Oaths voluntarily taken joyned themselves together in one Bond and Association to withstand and revenge to the uttermost all such malicious Actions and Attempts against Her Majesties most Royal Person Now for the full Explaining of all such Ambiguities and Questions as otherwise might happen to grow by reason of any sinister or wrong Construction or Interpretation to be made or inferred of or upon the words or meaning thereof Be it Declared and Enacted by the Authority of this present Parliament That the same Association and every Article and Sentence therein contained as well concerning the Disallowing Excluding or Disabling any Person that may or shall pretend any Title to come to the Crown of this Realm as also for the pursuing and taking Revenge of any person for any such wicked Act or Attempt as is mentioned in the same Association shall and ought to be in all things expounded and adjudged according to the true intent and meaning of this Act and not otherwise nor against any other person or persons A Word without Doors concerning the BILL for SUCCESSION SIR I AM very sensible of the great Honour you were pleas'd to do me in your last which I received immediately after our late unhappy Dissolution but could have wished you would have laid your Commands on some more able Person to have given you Satisfaction in the matter you there propose relating to the Duke who you seem to insinuate was like if the Parliament had continued to have received hard measure I must ingeniously confess to you I was not long since perfectly of your Opinion and thought it the highest Injustice imaginable for any Prince to be debar'd of his Native Right of Succession upon any pretence whatsoever But upon a more mature Deliberation and Enquiry I found my Error proceeded principally from the falso Notions I had took up of Government it self and from my Ignorance of the Practiâ—â—â— of all Communities of Men in all Ages whenever Self-preservation and Necessity of their Affairs obliged them to declare their Opinion in Cases of the like Nature To the knowledge of all which the following Accident I shall relate to you did very much contribute My Occasions obliging me one day to attend the coming of a Friend in a Coffee-house near Charing-Cross there happened to sit at the same Table with me Two Ingenious Gentlemen who according to the Frankness of Conversation now used in the Town began a Discourse on the same Subject you desire to be more particularly informed in and having Extolled the late House of Commons as the best number of Men that had ever sate within those Walls and that no House had ever more vigorously maintained and asserted English Liberty and Protestant Religion than they had done as far as the nature of the things that came before them and the Circumstances of time would admit to all which I very readily and heartily assented they then added That the great Wisdom and Zeal of that House had appeared in nothing more than in Ordering a Bill to be brought in for debarring the Duke of Y. from inheriting the Crown A Law they affirmed to be the most just and reasonable in the World and the only proper Remedy to establish this Nation on a true and solid Interest both Relation to the present
for securing all these appointed a Test to be taken by all who should be entrusted with the Government which bears expresly That the same should be taken in the plain and genuine sense and meaning of the words We were very careful not to suffer any to take the said Oath or Test with their own Glosses or Explications But the Earâ— of Argyle having after some delays come to Council to take the said Oath as a Privy-Councellor spoke some things which were not then heard nor adverted to and when his Lordship at his next offering to take it in Council as one of the Commissioners of Your Majesties Treasury was commanded to take it simply he refused to do so but gave in a Paper shewing the only sense in which he would take it which Paper we all considered as that which had in it gross and scandalous Reflections upon that excellent Act of Parliament making it to contain things contradictory and inconstant and thereby depraving Your Majesties Laws misrepresenting Your Parliament and teaching Your Subjects to evacuate and disappoint all Laws and Securities that can be enacted for the preservation of the Government suitable to which his Lordship declares in that Paper That he means not to bind up himself from making any alterations he shall think fit for the advantage of Church or State and which Paper he desires may be looked upon as apart of his Oath as if he were the Legislator and able to add a part to the Act of Parliament Upon serious perusal of which Paper we found our selves obliged to send the said Earl to the Castle of Edinburgh and to transmit the Paper to Your Majesty being expresly obliged to both these by Your Majesties express Laws And we have commanded your Majesties Advocate to raise a pursuit against the said Earl for being Author and having given in the said Paper And for the further prosecution of all relating to this Affair we expect Your Majesties Commands which shall be most humbly and faithfully obeyed by Edinburgh Nov. 8. 1681. Your Majesties most Humble most Faithful and most Obedient Subjects and Servants Sic Subscribitur Glencairne Winton Linlithgow Perth Roxburgh Ancram Airlie Levingstoun Jo. Edinburgen Ross Geo. Gordoun Ch. Maitland G. Mekenzie Ja. Foulis J. Drumond Novemb. 15. 1681. The Kings Answer to the Councils Letter C. R. MOst dear c. Having in one of your Letters directed unto us of the 8. Instant received a particular account of the Earl of Argyle's refusing to take the Test simply and of your proceedings against him upon the occasion of his giving in a Paper shewing the only sense in which he will take it which had in it gross and scandalous Reflections upon that excellent late Act of our Parliament there by which the said Test was enjoyned to be taken we have now thought fit to let you know that as we do hereby approve these your Proceedings particularly your sending the said Earl to our Castle of Edinburgh and your commanding our Advocate to raise a Pursuit against him for being Author of and having given in the said Paper so we do also authorize you to do all things that may concern the further prosecution of all relating to this Affair Nevertheless it is our express Will and Pleasure That before any Sentence shall be pronounced against him at the Conclusion of the Process you send us a particular account of what he shall be found guilty of to the end that after our being fully informed thereof we may signifie our further pleasure in this matter For doing whereof c. But as notwithstanding the Councils demanding by their Letter His Majesties allowance for prosecuting the Earl they before any return caused His Majesties Advocate to exhibit an Indictment against him upon the points of slandering and depraving as hath been already remarked so after having received His Majesties answer the design grows and they thought fit to order a new Indictment containing beside the former points the Crimes of Treason and Perjury which accordingly was exhibited and is here subjoyned the difference betwixt the two Indictments being only in the particulars above noted The Copy of the Indictment against the Earl of Argyle Archibald Earl of Argyle YOU are Indicted and Accused That albeit by the Common Law of all well-govern'd Nations and by the Municipal Laws and Acts of Parliament of this Kingdom and particularly by the 21st and by the 43d Act Par. 2 James 1. and by the 83d Act Par. 6. James 5. and by the 34th Act Par. 8. James 6. and the 134th Act Par. 8. James 6. and the 205th Act Par. 14. James 6. All Leasing-makers and tellers of them are punishable with tinsel of Life and Goods like as by the 107th Act Par. 7. James 1. it is statuted That no man interpret the Kings Statutes otherwise than the Statute bears and to the intent and effect that they were made for and as the makers of them understood and who so does in the contrary to be punished at the Kings will And by the 10th Act Par. 10. James 6. it is statuted That none of His Majesties Subjects presume or take upon him publickly to declare or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws or Acts of Parliament or misconstrue his proceedings whereby any mistaking may be moved betwixt his Highness his Nobility and loving Subjects in time coming under pain of death certifying them that does in the contrary they shall be reputed as seditious and wicked Instruments enemies to his Highness and to the Commonwealth of this Realm and the said pain of death shall be executed against them with all rigour to the example of others And by the second Act Ses 2. Par. 1. Char. 2. it is statuted That whosoever shall by Writing Libelling Remonstrating express publish or declare any words or sentences to stir up the people to the dislike of His Majesties Prerogative and Supremacy in causes Ecclesiastick or of the Government of the Church by Archbishops and Bishops as it is now settled by Law is under the pain of being declared incapable to exercise any Office Civil Ecclesiastick or Military within this Kingdom in any time coming Like as by the fundamental Laws of this Nation by the 130th Act Par. 8. James 6. it is declared That none of His Majesties Subjects presume to impugn the Dignity or Authority of the three Estates or to procure innevation or diminution of their Power and Authority under the pain of Treason And that it is much more Treason in any of His Majesties Subjects to presume to alter Laws already made or to make new Laws or to add any part to any Law by their own Authority that being to assume the Legislative Power to themselves with His Majesties highest and most incommunicable Prerogative Yet true it is that albeit His Sacred Majesty did not only bestow on you the said Archibald Earl of Argyle
they that make Leasings to his Grace of his Lords Barons and Leiges Act 134. Par. 8. James 6. May 22. 1584. Anent Slanderers of the King his Progenitors Estate and Realm FOrasmuch as it is understood to our Soveraign Lord and his three Estates assembled in this present Parliament what great harm and inconveniency has fallen in this Realm chiefly since the beginning of the Civil troubles occurred in the time of his Highness minority through the wicked and licentious publick and private speeches and untrue calumnies of divers of his Subjects to the disdain contempt and reproach of His Majesty his Council and proceedings and to the dishonour and prejudice of his Highness his Parents Progenitors and Estate stirring up his Highness's Subjects thereby to misliking sedition unquietness and to cast off their due obedience to His Majesty to their evident peril tinsil and destruction his Highness continuing always in love and clemency toward all his good Subjects and most willing to seek the safety and preservation of them all which wilfully needlessly and upon plain malice after his Highness's mercy and pardon oft times afore granted has procured themselves by their treasonable deeds to be cut off as corrupt Members of this Commonwealth Therefore it is statute and ordained by our Soveraign Lord and his three Estates in this present Parliament that none of his Subjects of whatsoever Function Degree or Quality in time coming shall presume or take upon hand privately or publickly in Sermons Declanations and familiar Conferences to utter any false slanderous or untrue Speeches to the disdain reproach and contempt of His Majesty his Council and proceedings or to the dishonour hurt or prejudice of his Highness his Parents and Progenitors or to meddle in the Affairs of his Highness and his Estate present by-gone and in time coming under the pains contained in the Acts of Parliament anent makers and tellers of Leasings certifying them that shall be tryed contraveeners thereof or that hear such slanderous Speeches and reports not the same with diligence the said pain shall be executed against them with all rigour in example of others Act 205. Par. 14 King James 6. June 8. 1594. Anent Leasing-makers and Authors of Slanders OUR Soveraign Lord with advice of his Estates in this present Parliament ratifies approves and for his Highness and Successors perpetually confirms the Act made by his Noble Progenitors King James the First of Worthy Memory against Leasing-makers the Act made by King James the Second entituled Against Leasing-makers and tellers of them the Act made by King James the Fifth entituled Of Leasing-makers and the Act made by his Highness's self with advice of his Estates in Parliament upon the 22d day of May 1584. entituled For the punishment of the Authors of Slanders and untrue Calumnies against the Kings Majesty his Council and proceedings to the dishonour and prejudice of his Highness his Parents Progenitors Crown and Estate as also the Act made in his Highness's Parliament holden at Linlithgow upon the 10th of December 1585. entituled Against the Authors of slanderous Speeches or Writs and statutes and ordains all the said Acts to be published of new and to be put in execution in time coming with this addition That whoever hears the said Leasings Calumnies or slanderous Speeches or Writs to be made and apprehends not the Authors thereof if it lies in his power and reveals not the same to his Highness or one of his Privy Council or to the Sheriff Steward or Bayliff of the Shire Stewards in Regality or Royalty or to the Provost or any of the Bayliffs within Burgh by whom the same may come to the knowledge of his Highness or his said Privy-Council where through the said Leasing makers and Authors of slanderous Speeches may be called tryed and punished according to the said Acts The hearer and not apprehender if it lye in his power and concealer and not revealer of the said Leasing makers and Authors of the said slanderous Specches or Writs shall incur the like pain and punishment as the principal Offender Act 107. Par. 7. King James 1. March 1. 1427. That none interpret the Kings Statutes wrongously ITem the King by deliverance of Council by manner of Statute forbids That no man interpret his Statutes otherwise than the Statutes bear and to the intent and effect that they were made for and as the maker of them understood and who so does in the contrary shall be punished at the Kings will Act 10. Par. 10. King James 6. Dec. 10. 1585. Authors of slanderous Speeches or Writs should be punished to the Death IT is statuted and ordained by our Soveraign Lord and three Estates that all his Highness's Subjects content themselves in quietness and dutiful obedience to his Highness and his Authority and that none of them presume or take upon hand publickly to declaim or privately to speak or write any purpose of reproach or slander of His Majesties Person Estate or Government or to deprave his Laws and Acts of Parliament or misconstrue his proceedings whereby any misliking may be moved betwixt his Highness and his Nobility and loving Subjects in time coming under the pain of Death certifying them that do in the contrary they shall be reputed as seditious and wicked Instruments enemies to his Highness and the Commonwealth of this Realm and the said pain of Death shall be executed upon them with all rigour in example of others Act for preservation of His Majesties Person Authority and Government May 1662. And further it is by His Majesty and Estates of Parliament declared statuted and enacted That if any person or persons shall by writing printing praying preaching libelling remonstrating or by any malicious or advised speaking express publish or declare any words or sentences to stir up the people to the hatred or dislike of His Majesties Royal Prerogative and Supremacy in Causes Ecclesiastical or of the Government of the Church by Archbishops and Bishops as it is now settled by Law That every such person or persons so offending and being legally Convicted thereof are hereby declared incapable to enjoy or exercise any place or employment Civil Ecclesiastick or Military within this Church and Kingdom and shall be liable to such further pains as are due by the Law in such Cases Act 130. Par. 8. James 6. May 22. 1584. Anent the Authority of the three Estates of Parliament THE Kings Majesty considering the Honour and the Authority of his Supreme Court of Parliament continued past all memory of man unto their days as constitute upon the free Votes of the three Estates of this ancient Kingdom by whom the same under God has ever been upholden Rebellious and Traiterous Subjects punished the Good and Faithful preserved and maintained and the Laws and Acts of Parliament by which all men are governed made and established And finding the Power Dignity and Authority of the said Court of Parliament of late years called in some doubt at least some curiously travelling
and too apt to make constructions in such according to the favour or malice they bear to the Person or Cause Are not some men apt to construct that to tend to their dishonour which was designed for their honour and to think every thing an innovation of Law or Privilege which checks their inclination and design Whereas some Judges are so violent in their Loyalty as to imagine the meanest mistakes do tend to an opposition against Authority and thus Zeal Jealousie Malice or Interest would become Judges 4. Men are so silly or may be in such haste or so confounded and the best are subject to such mistakes as that no Man could know when he were innocent simplicity might oft times become a Crime and the fear of offending might occasion offence and how uncomfortably would the people live if they knew not how to be innocent 2dly P. 47. l. 9. Of the same Book he says That the eighth point of Treason is to impugn the Dignity and Authority of the three Estates or to seek and procure the innovation and diminution of their Power and Authority Act 103. Ja. 6. p. 6. Now this being another of the Crimes charged upon the Earl hear how the Advocate there understands it But this he adds immediately is to be understood of a N. B. direct impugning of their Authority as if it were contended that Parliaments were not necessary or that one of the three Estates might be turned out Which how vastly different from his indirect forced and horrible inferences in the Earl's Case is plain and obvious 3dly Ibid. p. 58 l. 2. After having said That according to former Laws no sort of Treason was to be pursued in absence before the Justices and urging it to be reasonable he adds ' Nor is it imaginable but if it had been safe it had been granted formerly And l. 31. he says The Justices are never allowed even by the late Act of Parliament to proceed to sentence against absents but such as are pursued for Rising in Arms against the King The true reason whereof he tells us is that the Law is not so inhumane as to punish equally presumed and real guilt And that it hath been often found that men have absented themselves rather out of fear of a prevailing Faction or corrupt Witnesses c. than out of consciousness of guilt Reasons which albeit neither true nor just seeing that the Law punishes nothing even in case of absence but either manifest contumacy or Crimes fully proven And that the only reason why it allows no other Crime save Perduellion to be proceeded against in absence is because it judges no other Crime tanti yet you see how this whole passage quadrats with the Earl's Case who being neither pursued for Perduellion nor present at giving Sentence was yet sentenced in absence as a most desperate Traytor 4thly Ibid. p. 60. l. 24. Speaking of the Solemnities used in Parliament at the pronouncing Sentences for Treason viz. That the Pannel receives his Sentence kneeling and that after the doom of Forfaulture pronounced against him the Lyon and his Brethren the Heraulds in their Formalities come and tear his Coat of Arms at the Throne and thereafter hang up his Escutchion ranversed upon the Mercat-Cross He adds But this I think should only hold in the Crime of Perduellion and then goes on to add That the Children of the Delinquent are declared incapable to bruik any Office or Estate is another Speciality introduced in the punishment of Perduellion only And yet both these terrible Solemnities were practised against the Earl even by a Court of Justitiary and not in Parliament albeit he was not accused of Perduellion nor be indeed more guilty of any Crime than all the World sees 5thly Ibid. page 303. ult He says That verbal injuries are these that are committed by unwarrantable expressions as to call a Man a Cheat a Woman Whore But because expressions may vary according to the intention of the speaker therefore except the words can allow of no good sense as Whore or Thief or that there be strong presumptions against the speaker the injuriandi animus or design of injuring as well as the injuring words must be proven and the speaker will be allowed to purge his guilt by declaring his intention and his declaration without an Oath will be sufficient 2dly The pursuer should libel the design and prove it except the words clearly infer it 3dly The pursuer is presently to resent the injury and if at first the words be taken for no injury they cannot afterward become such Which things being applied to the Earl's words do evidently say That unless his words could allow of no good sense or that there were strong presumptions against him or that he could not purge his guilt by declaring his intention or that his words did clearly infer the guilt there could be no Crime of Slandering Reproaching or Depraving charged against him except the injuriandi animus as well as the words had been both libelled and proven But so it is that his words do manifestly allow of a good sense that there is not the least presumption of injury can be alledged against him That he did most plainly purge himself of all suspition of guilt by declaring his sound and upright intention and that his words do not infer either clearly or unclearly the smallest measure of guilt and withal neither was the injuriandi animus at all proven But on the contrary the words at first were taken for no injury so that they could not afterward become such as is above fully cleared Ergo Even the Advocate being Judge the Earl is no Slanderer 6thly If it were necessary I could further tell you several things that he alledges to be sufficient for purging a Man of any criminal intention As where he says Ibid. p. 563. l. 2. That in matters of fact persons even judicious following the Faith of such as understand are to be excused And l. 30. That if it appear by the meanness of the crime he should say the smallness of the deed And what can be less than the uttering of a few words in the manner that the Earl spoke them that there was no design of transgression And that the committer designed not for so small a matter to commit a crime much less such horrid ones as Depraving and Treason In that case the meanness of the transgression or deed ought to defend against the relevancy c. But to give you one instance for all how much the Advocate may one day or other be obliged to plead the innocence of his intentions to free himself of words downright in themselves slanderous and depraving an Act of Parliament much better nor he understands it and in fresh and constant observance Ibid. p. 139. towards the middle speaking of the 151 Act Ja. 6. P. 12. Whereby it is Statute That seeing divers exceptions and objections rises upon criminal Libels and parties are frustrate of Justice by the
alledged irrelevancy thereof That in time coming all Criminal Libels shall contain that the persons complained on are Art and Part of the Crimes Libelled which shall be relevant to accuse them thereof swa that no exception or objection take away that part of the Libel in time coming He says That he finds no Act of Parliament more unreasonable for the Statutory part of that Act committing the Tryal of Art and Part to Assizers seems most unjust Seeing in committing the greatest questions of the Law to the most ignorant of the Subjects it puts a sharp Sword into the hands of blind men And the reason of this Act specified in the Narrative is likewise most inept and no ways illative c. What Reproaches What Blasphemies The Earl said not one word against any Act of Parliament But on the contrary That he was confident the Parliament intended no contradiction and that he was willing to take the Test in the Parliaments sense But here the Advocate both says and Prints it That an Act of Parliament is most unreasonable and most unjust and it's reason most inept and that it puts a sharp Sword in the hands of blind men Whereof the smallest branch is infinitely more reproachful than all can be strained out of the Earl's words But Sir Speculation is but Speculation and if the Advocate when his day comes be as able to purge himself of Practical Depravations as I am inclined to excuse all his Visionary Lapses notwithstanding of the famous Title Quod quisque juris in alterum statuorit ut ipse eodem jure utatur he shall never be the worse of my censure Murther will out Or the King's Letter justifying the Marquess of Antrim and declaring That what he did in the Irish Rebellion was by Direction from his Royal Father and Mother and for the service of the Crown Ireland Aug. 22. 1663. Ever honoured Sir LAST Thursday we came to Trial with my Lord Marquess of Antrim but according to my Fears which you always surmised to be in vain he was by the King 's Extraordinary and Peremptory Letter of Favour restored to his Estate as an Innocent Papist We proved Eight Qualifications in the Act of Settlement against him the least of which made him uncapable of being restored as Innocent We proved 1. That he was to have a hand in surprizing the Castle of Dublin in the Year 1641. 2. That he was of the Rebels Party before the 15th of September 1643. which we made appear by his hourly and frequent intercourse with Renny O Moore and many others being himself the most notorious of the said Rebels 3. That he entered into the Roman-Catholick Confederacy before the Peace in 1643. 4. That he constantly adhered to the Nuncio's Party in opposition to his Majesty's Authority 5. That he sate from time to time in the Supream Council of Kilkenny 6. That he signed that execrable Oath of Association 7. That he was Commissionated and acted as Lieutenant-General from the said Assembly at Kilkenny 8. That he declared by several Letters of his own penning himself in Conjunction with Owen Ro Oneale and a constant Opposer to the several Peaces made by the Lord Lieutenant with the Irish We were seven hours by the Clock in proving our Evidence against him but at last the King's Letter being opened and read in Court Rainsford one of the Commissioners said to us That the King's Letter on his behalf was Evidence without Exception and thereupon declared him to be an Innocent Papist This Cause Sir hath tho many Reflections hath passed upon the Commissioners before more startled the Judgments of all men than all the Tryals since the beginning of their sitting and it is very strange and wonderful to all of the Long Robe that the King should give such a Letter having divested himself of that Authority and reposed the Trust in the Commissioners for that purpose And likewise it is admired that the Commissioners having taken solemn Oaths To execute nothing but according to and in pursuance of the Act of Settlement should barely upon his Majesty's Letter declare the Marquess Innocent To be short There never was so great a Rebel that had so much favour from so good a King And it is very evident to me though young and scarce yet brought upon the stage that the consequence of these things will be very bad and if God of his extraordinary mercy do not prevent it War and if possible greater Judgments cannot be far from us where Vice is Patroniz'd and Antrim a Rebel upon Record and so lately and clearly proved one should have no other colour for his Actions but the King 's own Letter which takes all Imputations from Antrim and lays them totally upon his own Father Sir I shall by the next if possible send you over one of our Briefs against my Lord by some Friend It 's too large for a Pacquet it being no less in bulk than a Book of Martyrs I have no more at present but refer you to the King's Letter hereto annexed CHARES R. RIght Trusty and well-beloved Cousins and Counsellors c. We greet you well How far we have been from interposing on the behalf of any of our Irish Subjects who by their miscarriages in the late Rebellion in that Kingdom of Ireland had made themselves unworthy of Our Grace and Protection is notorious to all men and We were so jealous in that particular that shortly after Our return into this Our Kingdom when the Marquess of Antrim came hither to present his duty to Us upon the Information We received from those Persons who then attended Us by a Deputation from Our Kingdom of Ireland or from those who at that time owned our Authority there that the Marquess of Antrim had so misbehaved himself towards Us and Our late Royal Father of blessed memory that he was in no degree worthy of the least Countenance from Us and that they had manifest and unquestionable Evidence of such his guilt Whereupon We refused to admit the said Marquess so much as into Our Presence but on the contrary committed him Prisoner to our Tower of London where after he had continued several Months under a strict restraint upon the continual Information of the said Persons We sent him into Ireland without interposing the least on his behalf but left him to undergo such a Tryal and Punishment as by the Justice of that Our Kingdom should be found due to his Crime expecting still that some heinous Matter would be objected and proved against him to make him uncapable and to deprive him of that Favour and Protection from Us which we knew his former Actions and Services had merited After many months attendance there and We presume after such Examinations as were requisite he was at last dismissed without any Censure and without any transmission of Charge against him to Us and with a License to transport himself into this Kingdom We concluded that it was then time to give him
That Parliaments are part of the frame of the Common-Law which is laid in the Law and Light of Nature right Reason and Scripture 2. That according to this Moral Law of Equity and Righteousness Parliaments ought frequently to meet for the common peace safety and benefit of the People and support of the Government 3. That Parliaments have been all along esteemed an essential part of the Government as being the most ancient honourable and Sovereign Court in the Nation who are frequently and perpetually to sit for the making and abolishing Laws Redressing of Grievances and see to the due administration of Justice 4. That as to the place of Meeting it was to be at London the Capital City the Eye and Heart of the Nation as being not only the Regal Seat but the principal place of Judicature and residence of the chief Officers and Courts of Justice where also the Records are kept as well as the principal place of Commerce and Concourse in the Nation and to which the People may have the best recourse and where they may find the best accommodation 5. The Antiquity of Parliaments in this Nation which have been so ancient that no Record can give any account of their Beginning my Lord Coke thus tracing them from the Britains through the Saxons Danes and Normans to our days So that not to suffer Parliaments to sit to answer the great ends for which they were Instituted is expresly contrary to the Common Law and so consequently of the Law of God as well as the Law of Nature and thereby Violence is offered to the Government it self and Infringement of the Peoples fundamental Rights and Liberties Secondly What we find hereof in the Statute-Law The Statute Laws are Acts of Parliament which are or ought to be only Declaratory of the Common Law which as you have heard is founded upon right Reason and Scripture for we are told that if any thing is Enacted contrary thereto it is void and null As Coke Inst l. 2. c 29. f. 15. Finch p. 3. 28 H. 8. c. 27. Doct. and Stud. The first of these Statures which require the frequent Meeting and Sitting of Parliaments agreeable to the Common Law we find to be in the time of Ed. 3. viz. 4 Ed. 3. ch 14. In these words ' Item It is accorded that a Pariament shall be holden every year once or more often if need be The next is in the 36 of the same K. Ed. 3. c. 10. viz. Item For the maintenance of the said Articles and Statutes and Redressing of divers Mischiefs and Grievances which dayly happen a Parliament shall be holden every year as at another time was ordained by a Statute viz. the aforementioned in his 4th year And agreeable hereto are those Statutes upon the Rolls viz. 5 Ed. 2. 1 R. 2. No. 95. By which Statutes it appeareth That Parliaments ought annually to meet to support the Government and to redress the Grievances which may happen in the Interval of Parliaments That being the great End proposed in their said Meetings Now for Parliaments to meet Annually and not suffered to sit to Answer the Ends but to be Prorogued or Dissolved before they have finished their Work would be nothing but a deluding the Law and a striking at the foundation of the Government it self and rendering Parliaments altogether useless for it would be all one to have No Parliaments at all as to have them turn'd off by the Prince before they have done that that they were called and intrusted to do For by the same Rule whereby they may be so turn'd off one Session they may be three Sessions and so to threescore to the breaking of the Government and introducing Arbitrary Power To prevent such intollerable Mischiefs and Inconveniencies are such good Laws as these made in this King's time and which were so Sacredly observed in after times That it was a Custom especially in the Reigns of H. 4. H 5. H. 6. to have a Proclamation made in Westminster-Hall before the end of every Session * An honest and a necessary Proclamation to be made every Parliament That all those who had any matter to present to the Parliament should bring it in before such a day for otherwise the Parliament at that day should Determine Whereby it appears the People were not to be eluded nor disappointed by surprizing Prorogations and Dissolutions to frustrate and make void the great ends of Parliaments And to this purpose saith a late Learned Author That if there was no Statute or any thing upon record extant concerning the Parliaments sitting to redress grievances yet that I must believe that it is so by the fundamental Law of the Government which must be lame and imperfect without it For otherwise the Prince and his Ministers may do what they please and their Wills may be their Laws Therefore it is provided for in the very Essence and Constitution of the Government it self and this saith our Author we may call the Common-Law which is of as much value if not more than any Statute and of which all our good Acts of Parliament and Magna-Charta it self is but Delaratory so that though the King is intrusted with the formal part of summoning and pronouncing the Dissolution of Parliaments which is done by Writ yet the Laws which oblige him as well as us have determined how and when he shall do it which is enough to shew that the King's share in the Soveraignty that is in the Parliament is cut out to him by Law and not left at his disposal The next Statute we shall mention to inforce this fundamental Right and Privilege 25 Ed. 3. c. 23. Statute of Provisors is the 25th Ed. 3. ch 23. called the Statute of Provisors which was made to prevent and cut off the Incroachments of the Bishops of Rome whose Usurpations in disposing of Benefices occasioned intollerable Grievances wherein in the Preamble of the said Statute it is expressed as followeth Whereupon the Commons have prayed our said Soveraign Lord the King that sith the Right of the Crown of England and the Law of the said Realm is such that upon the Mischiefs and Damage which happeneth to his Realm be ought and is bounden of the accord of his said People in his Parliament thereof to make Remedy and Law in avoiding the Mischiefs and Damage which thereof cometh That it may please him thereupon to provide Remedy Our Soveraign Lord the King seeing the Mischiefs and Damage before-named and having regard to the said Statute made in the time of his said Grand-Father and to the Causes contained in the same which Statute holdeth always his force and was never defeated or annulled in any point and by so much is bound by his Oath to do the same to be kept as the Law of this Realm tho that by Sufferance and Negligence it hath since been attempted to the contrary And also having regard to the grievous Complainte made to him by his
It seems therefore from the words of the Oath that there is no bound or limit set save their own understanding or Conscience to restrain them to any number or sort of persons of whom they are bound to enquire they ought first and principally to enquire of one another mutually what knowledg each of them hath of any matters in question before them the Law presumes that some at least of so many sufficient men of a County must know or have heard of all notable things done there against the publick peace for that end the Juries are by the Law to be of the Neighbourhood to the place where the crimes are committed If the parties and the facts where of they are accused be known to the Jury or any of them their own knowledg will supply the room of many Witnesses Next they ought to enquire of all such Witnesses as the Prosecutors will produce against the Accused they are bound to examine all fully and prudently to the best of their skill every Jury-man ought to ask such questions by the Fore-man at least as he thinks necessary to resolve any doubt that may arise in him either about the Fact or the Witnesses or otherwise if the Jury be then doubtful they ought to receive all such further Testimony as shall be offered them and to send for such as any of them do think able to give Testimony in the case depending If it be asked how or in what manner the Juries shall enquire the Answer is ready According to the best of their understandings They only not the Judges are sworn to search diligently to find out all Treasons c. within their charge and they must and ought to use their own discretion in the way and manner of their Enquiry No directions can legally be imposed upon them by any Court or Judges An honest Jury will thankfully accept good Advice from Judges as they are Assistants but they are bound by their Oaths to present the Truth the whole Truth and nothing but the Truth to the best of their own not the Judges knowledg Neither can they without breach of that Oath resign their Consciences or blindly submit to the dictates of others and therefore ought to receive or reject such Advices as they judge them good or bad If the Jury suspect a Combination of Witnesses against any Man's Life which perhaps the Judges do not discern and think it needful to examine them privately and separately the discretion of the Juries in such a case is their only best and lawful guide though the example of all Ages and Countries in examining suspected Witnesses privately and separately may be a good direction to them Nothing can be more plain and express than the words of the Oath are to this purpose The Jurors need not search the Law-Books nor tumble over heaps of old Records for the explanation of them Our geatest Lawyers may from hence learn more certainly our ancient Law in this case than from all the Books in their Studies The Language wherein the Oath is penned is known and understood by every Man and the words in it have the same signification as they have wheresoever else they are used The Judges without assuming to themselves a Legislative Power cannot put a new sense upon them other than according to their genuine common meaning They cannot Magisterially impose their Opinions upon the Jury and make them forsake the direct words of their Oath to pursue their glosses The Grand Inquest are bound to observe alike strictly every part of their Oath and to use all just and proper ways which may enable them fully to perform it otherwise it were to say that after men had sworn to enquire diligently after the Truth according to the best of their knowledg they were bound to forsake all the natural and proper means which their Understandings suggest for the Discovery of it if it be commanded by the Judges And therefore if they are jealous of a Combination of the Witnesses or that Corruption and Subornation hath been made use of they cannot be restrained from asking all such Questions as may conduce to the sifting out of the Truth nor from examining the Witnesses privately and separately Fort. D. Laud. Leg. Ang. cap. 26. lest as Fortescue says the saying of one should provoke or instruct others to say the like Nor are the Jury tied up to enquire only of such Crimes as the Judges shall think fit to give them directly in charge much less of such Bills only as shall be offered to them but their Enquiry ought to extend to All other Matters and Things which shall come to their Knowledg touching the present Service If they have ground to suspect that any Accusation before them proceeds from a Conspiracy they are obliged by their Oaths to turn the Enquiry that way and if they find cause not only to reject the Bills offered upon such Testimonies but to Indict such Witnesses and all the Abettors of their Villany They are carefully to examine what sort of men the Witnesses are for 't is a Rule in all Laws That Turpes à Tribunalibus arcentur Vile Persons ought to be rejected by Courts of Justice Such Witnesses would destroy Justice instead of promoting it And the Grand Jury are to take care of admitting such They may and ought if they have no certain knowledge of them to ask the Witnesses themselves of their Condition and way of living and all other Questions which may best inform them what sort of men they are 'T is true it may be lawful for the Witnesses in many cases to refuse to give answer to some demands which the Jury may make as where it would be to accuse themselves of Crimes but yet that very refusal or avoiding to give direct Answers may be of great use to the Jury whose only business is to find out the Truth and who will be in a good measure enabled to judge of the Credit of such Witnesses as dare not clear themselves of Crimes which common Fame or the knowledg of some of the Grand Inquest has charged them with If the Witnesses which come before the Grand Jury upon an Indictment for Treason should discover upon their examination that they concealed it a long time without just Impediment The presumption of Law will be strong against them that no sense of Honesty or of their duty brought them at last to reveal it It appears by Bracton that ancient Writer of our Laws Brac. L. 3. c. 3. Non morari debet c. nec debet ad aliqua negotia quamvis urgentissima se convertere quia vix permittitur ei quod retro aspiciat c. Si post intervallum accusare velit non erit de Jure audiendus S.G. Mackenzy Crim. Law lib. 26.3 that in Cases of Treason the Juries were in his days advised as now they ought to be so severe in their Enquiry within what time the Witnesses discovered the Treason after it came
false Accusations followed without number Oppression and Injustice broke forth like a Flood And to gain the King's Favour they fill'd his Coffers The Indictments against them mentioned in Anderson's Reports Pa. 156 157 are worth reading whereby they are charged with Treason for Subverting the Laws and Customs of the Land in their proceedings without Grand Juries and procuring the murmuring and hatred of the People against the King to the great danger of him and the Kingdom Nothing could satisfy the Kingdom tho ' the King was dead whom they had flattered and served but such Justice done upon them and many of their Instruments and Officers as may for ever make the Ears of Judges to tingle And it is not to be forgotten that the Judges in Queen Eliz. time in the Case of R. Cavendish in Anderson's Reports P. 152 and 155. were as they told the Queen and her Councellors by the punishment of former Judges especially of Empson and Dudley deterred from obeying her illegal Commands The Queen had sent several Letters under her Signet Great Men pressed them to obey her Patent under the Great Seal and the Reasons of their disobedience being required they answered That the Queen her self and the Judges also had taken an Oath to keep the Laws And if they should obey her Commands the Laws would not warrant them and they should therein break their Oath to the Offence of God and their Country and the Common-wealth wherein they were born And say they if we had no fear of God yet the Examples and Punishments of others before us who did offend the Laws do remember and recall us from the like Offences Whosoever being in the like places may design or be put upon the like practices will do well to consider these Examples and not to think that he who obliquely Endeavours to render Grand Juries useless is less Criminal than he that would absolutely abolish them That which doth not act according to its Institution is as if it were not in being And whoever doth without prejudice consider this matter will see that it is not less pernicious to deny Juries the use of those Methods of discovering Truth which the Law hath appointed and so by degrees turn them into a meer matter of form than openly and avowedly to destroy them Surely such a gradual Method of destroying our Native Right is the most dangerous in its consequence The safety which our Fore-fathers for many hundred of years enjoyed under this part of the Law especially and have transmitted to us is so apparent to the meanest Capacity that whoever shall go about to take it away or give it up is like to meet with the fate of Ishmael to have every man's hand against him because he is against every Man Artifices of this Kind will ruine us more silently and so with less opposition and yet as certainly as the other more moved oppression This only is the difference that one way we should be slaves immediately and the other insensibly But with this further disadvantage too that our slavery should be the more unavoydable and the faster rivited upon us because it would be under colour of Law which Practice in Time would obtain Few men at first see the danger of little changes in Fundamentals and those who design them usually act with so much craft as besides the giving specious Reasons they take great Care that the true Reason shall not appear Every design therefore of changing the Constitution ought to be most warily observed and timely opposed Nor is it only the Interest of the People that such Fundamentals should be duly guarded for whose benefit they were at first so carefully layed and whom the Judges are sworn to serve but of the King too for whose sake those pretend to act who would subvert them Our Kings as well as Judges are sworn to maintain the Laws They have themselves in several Statutes required the Judges at their peril to administer Equal Justice to every Man notwithstanding any Letters or Commauds c. even from themselves to the contrary And when any failure hath been the greatest and most powerful of them have ever been the readiest to give Redress It appears by the Preface to the Statutes of 20th Ed. 3. that the Judicial proceedings had been perverted That Letters Writs and Commands had been sent from the King and great Men to the Justices and that Persons belonging to the Court of the King the Queen the Prince of Wales had maintained and abetted Quarrels c. whereby the Laws had been violated and many wrongs done But the King was so far from justifying his own Letters or those illegal practices That the preamble of those Statutes saith they were made for the relief of the People in their sufferings by them That brave King in the height of his glory and vigor of his Age chose rather to confess his Error than to continue in it as is evident by his own words Edward by the Grace of God c. Because by divers Complaints made unto us we have perceived that the Law of the Land which we by our Oath are bound to maintain is the less well kept and Execution of the same disturbed many times by maintenances and procurements as well in the Court as the Country We greatly moved of Conscience in this matter and for this Cause desiring as much for the pleasure of God and ease and quietness of our Subjects as to save our Conscience and for to save and keep our said Oath by the Assent c. Enact That Judges shall do Justice notwithstanding Writs Letters or Commands from himself c. and that none of the King's House or belonging to the King Queen or Prince of Wales do maintain Quarrels c. King James in his Speech to the Judges in the Starchamber Anno. 1616. told them That he had after many years resolved to renew his Oath made at his Coronation concerning Justice and the promise therein contained for maintaining the Law of the Land And in the next page save one says I was sworn to maintain the Law of the Land and therefore had been perjured if I had broken it God is my Judge I never intended it And His Majesty that now is hath made frequent Declarations and Protestations of his being far from all thoughts of designing an Arbitrary Government and that the Nation might be confident he would rule by Law Now if after all this any Officer of the Kings should pretend Instructions from his Master to demand so material an alteration of proceedings in the highest Cases against Law as are above mentioned And the Court who are required to slight and reject the most solemn Commands under the Great Seal if contrary to Law should upon a verbal Intimation allow of such a Demand and so break in upon this Bulwark of our Liberties which the Law has erected Might it not give too just an occasion to suspect that all the legal securities of our Lives
lie under without a strict Inquiry into particulars is to affirm that the End can be obtained without the means necessary unto it The truth is that Grand Juries have both a larger field for their Inquiry and are in many respects better capacitated to make a strict one than the Petit Juries These last are confined as to the Person and the Crime specified in the Indictment But they are at large obliged to search into the whole matter that any ways concerns every Case before them and all the Offences contained in it all the Criminal Circumstances whatsoever and into every thing howsoever concerning the same They are bound to enquire whether their Information of Suspected Treasons or Felonies brought by Accusers be made by Conspiracy or Subornation who are the Conspirators or false Witnesses By whom abbetted or maintained Against whom and how many the Conspiracy is layed when and how and in what course it was to have been prosecuted But none of these most intricate matters which need the most strict and diligent Inquiries can come under the Cognisance of the Petit Jury They can only examine so much as relates to the Credit of those Witnesses brought to prove the Charge against the Parties â—ndicted wherein also they have neither Power nor convenient time to send for Persons or Papers if they think them needful nor to resolve any doubts of the Lawfulness and Credibility of the Testimonies Yet further if the Crimes objected are manifest 't is then the Grand Juries duty to inquire after all the Persons any ways concerned in them and the several kinds of Offences whereof every one ought joyntly or separately to be indicted as they shall discover them to have been Principals or Accessories Parties or privy thereunto or to have comforted or knowingly relieved either the Traitors or Felons or conceal'd the offences of others But the Inquisition into all these matters which require all possible strictness in searching as being of the highest importance unto the publick Justice and safety is wholly out of the Power and Trust of the Petit Juries The guilt or innocence of the Parties put upon their Trials and the Evidence thereof given is the only Objects of their Inquiries It is not their work nor within their trust to search into all the guilt or crimes of the Parties whom they try They are bound to move within the Circle of the Indictment made by the Grand Jury who are to appoint and specify the offences for which the Accused shall be tried by the Petit Jury When a Prosecutor suggests that any Man is criminal and ought to be indicted it belongs to the Grand Jury to hear all the proof he can offer and to use all other means they can whereby they may come to understand the truth of the suggestion and every thing or circumstance that may concern it Then they are carefully to examine the nature of the Facts according unto unto the Rules of the Com. Law or the express words of the Statutes whereby offences are distinguished and punishments allotted unto each of them 'T is true that upon hearing the Party or his Witnesses the Petit Jury may acquit or judge the Facts in the Indictment to be less heinous or malicious than they were presented by the Grand Jury but cannot aggravate them which being considered it will easily appear by the intent and Nature of the Powers given unto Grand Juries that they are by their Oaths obliged and their instruction to keep all injustice from entering the first gates of Courts of Judicature and to secure the innocent not only from punishment but from all disgrace vexation expence or danger To understand our Law clearly herein the Jurors must first know the lawful grounds whereupon they may and ought to indict and then what truly and justly ought to be taken for the ground of an Indictment The principal and most certain is the Jurors personal knowledge by their own eyes or ears of the Crimes whereof they indict Or so many pregnant concurring Circumstances as fully convince them of the guilt of the Accused When these are wanting the Depositions of Witnesses and their Authority are their best Guides in finding Indictments When such Testimonies make the charge manifest and clear to the Jury they are called Evidence because they make the guilt of Criminals evident and are like the light that discovers what was not seen before All Witnesses for that reason are usually called the Evidence taking their name from what they ought to be Yet Witnesses may swear directly and positively to an Accusation and be no evidence of its truth to the Jury sometimes such remarks may be made upon the Witnesses as well in relation to their Reputation and Lives as to the Matter Manner and Circumstance of their Depositions that from thence the falshood may appear or be strongly suspected It is therefore necessary to know what they mean by a probable Cause or Evidence who say that our Law requires no more for an Indictment Probable is a Logical Term relating to such propositions as have an appearance but no certainty of Truth shewing rather what is not than what is the matter of Syllogisms These may be allowed in Rhetorick which worketh upon passions and makes use of such Colours as are fit to move them whether true or false but not in Logick whose Object is Truth as it principally intends to obviate the Errours that may arise from the credit given unto appearances by distinguishing the uncertain from the certain veri simile à vero it cannot admit of such Propositions as may be false as well as true it being as impossible to draw a certain conclusion from uncertain premises as to raise a solid Building upon a tottering or sinking foundation This ought principally to be considered in Courts of Justice which are not erected to bring men into Condemnation but to find who deserves to be condemned and those Rules are to be followed by them which are least liable to desception For this Reason the Council of the Areopagites and some others of the best Judicatures that have been in the World utterly rejected the use of Rhetorick looking upon the Art of persuading by uncertain probabilities as little differing from that of deceiving and directly contrary to their ends who by the knowledge of truth desired to be led into the doing of Justice But if the Art that made use of these probabilities was banished from uncorrupted Tribunals as a hindrance unto the discovery of Truth they that would ground Verdicts totally upon them declare an open neglect of it and as it is said that uno absurdo dato mille sequuntur if Juries were to be guided by probabilities the next question would be concerning the more or less probable or what degree of probability is required to persuade them to find a Bill This being impossible to fix the whole Proceedings would be brought to depend upon the Fancies of Men and as nothing is so slight
but it may move them there is no security that innocent Persons may not be brought every day into danger and trouble By this means certain mischiefs will be done whilst it is by their own confession uncertain whether they are any ways deserved by such as suffer them to the utter overthrow of all Justice If the word Probable be taken in a common rather than a nice Logical sense it signifies no more than likely or rather likely than unlikely When a matter is found to be so the Wager is not even there is odds upon one side and this may be a very good ground for betting in a Tennis Court or at a Horse-race but he that would make the Administration of Justice to depend upon such Points seems to put a very small value upon the fortunes liberties and reputations of men and to forget that those who sit in Courts of Justice have no other business there than to preserve them This continues in force though in a Diologue between a Barrister and a Grand Jury Man published under the Title of the Grand Jury Man's Oath and Office it be said p. 8. and 9. That their work is no more than to present Offences fit for a Tryal and for that Reason give in only a Verisimilar or probable Charge and others have affirmed that a far less Evidence will warrant a Grand Juries Indictment than a Petit Juries Verdict For nothing can be more opposite to the justice of our Laws than such Opinions All Laws in doubtful Cases direct a suspension of Judgment or a sentence in favour of the Accused person But if this were hearkened unto Grand Juries should upon their Oaths affirm they judge him Criminal when the Evidence is upon such uncertain grounds that they cannot but doubt whether he is so or not It cannot be hereupon said that no Evidence is so clear and full but it may be false and give the Jury occasion of doubts so as all Criminals must escape if no Indictment ought to be found unless the proofs are absolutely certain for it is confess'd that such Cases are not capable of an infallible Mathematical demonstration but a Jury that Examines all the Witnesses that are likely to give any light concerning the business in question and all Circumstances relating to the fact before them with the Lives and Credit of those tha◠testify i◠and of the Person accused may and do often find that which in their Consciences doth fully perswade them that the accused Person is guilty This is as much as the Law or their Oath doth require and such as find Bills after having made such a Scrutiny are blameless before God and Man if through the fragility inseparable from humane nature they should be led into Error For they 〈◊〉 not swear that the Bill is true but that they in their Consciences believe that it is so and if they write Ignoramus upon the Bill it is not thereby declared to be false nor the P rson accused acquitted but the matter is suspended until it can be more clearly proved as in doubtful Cases it always ought to be Our Ancestors took great Care that suspicious and probable Causes should not bring any Man's Life and Estate into danger For that reason it was ordain'd by the Stat 37 Ed 3. Cap 18. That such as made suggestions to the King should find surety to pursue and incur the same pain that the other should have had if he were attainted in case their suggestion be not found evil and that then process of the Law should be made against the Accused This manner of Proceeding hath its root on eternal and universal Reason The Law given by God unto his People Deut. 19. allotted the same Punishment unto a false witness as a person convicted The best disciplined Nations of the world learnt this from the Hebrews and made it their Rule in the administration of Justice The Grecians generally observed it and the Romans according to their Lex Talionis did not only punish death with death but the intention of committing Murther by false Accusations with the same severity as if it had been effected by any other means This Law was inviolably observed as long as any thing of regularity or equity remained amongst them and when through the wickedness of some of the Emperours or their favourites it came to be overthrown all Justice perished with it A Crew of false Informers brake out to the destruction of the best men and never ceas'd until they had ruined all the most eminent and antient Families Circumvented the Persons that by their Reputation Wealth Birth or Virtue deserved to be distinguished from the common sort of People and brought desolation upon that victorious City Tacitus complains of this Tac. Ann. 3. as the cause of all the mischiefs suffered in his Time and Country By their means the most Savage Cruelties were committed under the name of Law which thereby became a greater Plague than formerly Crimes had been No remedy could be found when those Delatores whom he calls genus hominum Publico exitio repertum Tac. Ann. 4. poenis quidem nunquam satis coercitum were invited by impunity or reward and the Miserable People groaned under this calamity until those instruments of iniquity were by better Princes put to the most cruel tho well deserved deaths The like hath been seen in many places and the domestick quiet which is now enjoyed in the Principal parts of Europe proceeds chiefly from this that every man knows the same Punishment is appointed for a false Accusation and proved Crime It is hardly seven years since Monsieur Courboyer a man of quality in Brittany suborned two of the King of France his Guards to swear Treasonable Designs against La Motte a Norman Gentleman the matter being brought to Monsieur Colbert he caus'd the Accused Person and the Witnesses to be secured until the fraud was discovered by one of them whereupon he was pardoned La Motte released Courboyer beheaded and the other false Witness hanged by the Sentence of the Parliament of Paris Though this Law seems to be grounded upon such foundation as forbids us to question the equity of it our Ancestors for Reasons best known unto themselves thought fit to moderate its Severity by the Statute of 38 Ed. 3. Cap. 9. yet then it was enacted and the Law continues in force unto this day That whosoever made complaints to the King and could not prove them against the Defendant by the process of Law limited in former Statures which is first by a Grand Jury he should be imprisoned until he had made gree to the Party of his damages and of the slander he suffered by such occasion and after shall make fine and ransom to the King which is for the common damage that the King and his People suffer by such a false accusation and defamation of any Subject And in the 42 Ed. 3. Cap. 3. To eschew the Mischiefs and damage done by
false Accusers 'T is enacted That no man be put to answer such suggestions without presentment before the Justices i. e. by the Grand Jury It cannot surely be imagined that the suggestions made to the King and his Council had no probability in them Or that there was no colour cause or Reason for the King to put the party to answer the Accusation but the grievance and complaint was that the People suffered certain damage and vexation upon untrue and at best uncertain accusations and that therein the Law was perverted by the King and his Councils taking upon them to judge of the certainty or Truth of them which of right belonged to the Grand Jury only upon whose Judgment and Integrity our Law doth wholly rely for the indemnity of the Innocent and the punishment of all such as do unjustly molest them Our Laws have not thought fit so absolutely to depend upon the Oaths of Witnesses as to allow that upon Two or Ten mens swearing positively Treason or Felony against any Man before the Justices of Peace or all the Judges or before the King and his Council that the party accused be he either Peer of the Realm or Commoner should without further Inquiry be thereupon arraigned and put upon his Tryal for his Life Yet none can doubt but there is something of probability in such depositions nevertheless the Law Refers those matters unto Grand Juries and no man can be brought to Tryal until upon such strict inquiries as is before said the Indictment be found The Law is so strict in these Inquiries that tho the Crime be never so notorious nay if Treason should be confessed in Writing under Hand and Seal before Justices of Peace Secretaries of State or the King and Council yet before the party can be arraigned for it the Grand Jury must inquire and be satisfied whether such a Confession be clear and certain Whether there was no collusion therein Or the party induced to such confession by promise of pardon Or that some pretended partakers in the Crime may be defamed or destroyed thereby they must inquire whether the Confession was not extorted by fear threatnings or force and whether the party was truly Compos mentis of sound Mind and Reason at that Time The Stat. 5 Eliz. Cap. 1. declares the antient Common Law concerning the Trust and Duty of Juries and Enacts that none should be indicted for assisting aiding comforting or abetting Criminals in the Treasons therein made and declared unless he or they be thereof lawfully accused by such good and sufficient Testimony or Proof as by the Jury by whom he shall be indicted shall be thought good lawful and sufficient to prove him or them guilty of the said Offences Herein is declared the only True Reason of Indictments i. e. the Grand Juries Judgment that they have such Testimonies as they esteem sufficient to prove the party indicted guilty of the Crimes whereof he is accused and whatsoever the Indictment doth contain they are to present no more or other Crimes than are proved to their satisfaction as upon Oath they declare it is when they present it This exactness is not only required in the Substance of Crimes but in the Circumstances and any doubtfulness or uncertainty in them makes the Indictment and all proceedings upon it by the Petit Jury to be insufficient and void and holden for none as appears by the following Cases In Young's Case in the Lord Cook 's Reports Lib. 4. Fol. 40. An Indictment for Murther was declared void for its incertainty because the Jury had not layed certainty in what part of the body the mortal wound was given saying only that 't was about his breast the words were Vnam Plagam mortalem circitur pectus In like manner in Vaux Case Cooks Rep. Lib. 4. Fol. 44. he being indicted for poisoning Ridley the Jury had not plainly and expresly averred that Ridley drank the Poison tho' other words imply'd it and thereupon the Indictment was judged insufficient for saith the Book the matter of an Indictment ought to be full express and certain and shall not be maintained by argument or implication for that the Indictment is found by the Oath of the Neighbourhood In the 2d part of Rolls Reports p. 263. Smith and Malls Case the Indictment was quashed for incertainty because the Jury had averred that Smith was either a Servant or Deputy Smith existens servus sive deputatus are the words It was doubtless probably enough proved to the Jury that he was either a Deputy or Servant but because the Indictment did not absolutely and certainly aver his condition either of Servant or Deputy it was declared void If there be any defect of certainty in the Grand Juries Verdict no Proof or Evidence to the Petit Jury can supply it so it was judged in Wrote and Wigs Case Coke 4. Rep. Fol. 45 46 47. It was layed that Wrote was killed at Shipperton but did not aver that Shipperton was within the Verge tho in truth it was and no Averment or Oath to the Petit Jury could supply that small faileur of certainty to support the Indictment and the reason is rendred in these words viz. The Indictment being Veredictum id est dictum Veritatis a Verdict That is a saying of Truth and matter of Record ought to contain the whole Truth which is requisite by the Law for when it doth not appear 't is the same as if it were not and every material part of the Indictment ought to be found upon the Oath of the Indicters and cannot be supplied by the Averment of the Party The Grand Juries Verdict is the foundation of all judicial proceeding against Capital Offenders at the King's suit if that fail in any point of certainty both convictions and acquittals thereupon are utterly void and the proceedings against both may begin again as if they had never been tried as it appears in the Case last cited Fol. 47. Now as the Law requires from the Grand Jury particular certain and precise affirmations of Truth so it expects that they should look for the like and accept of no other from such as bring accusations to them For no Man can certainly affirm that which is uncertainly delivered unto him or which he doth not firmly believe The Witnesses that they receive for good are to depose only absolute certainties about the Facts committed That is what they have seen or heard from the accused parties themselves not what others have told them They are not to be suffered to make probable arguments and infer from thence the guilt of the accused Their depositions ought to be positive plain direct and full The Crime is to be sworn without any doubtfulness or obscurity Not in words qualified and limited to belief conceptions or apprehensions This absolute certainty required in the deposition of the Witnesses is one principal ground of the Juries most rational assurance of the Truth of their Verdict The credit also of the
Land to cut off these workers of Iniquity whose Religion is Rebellion whose Faith is Faction whose practice is murthering of Souls and Bodies and to root them out of the Confines of this Kingdom VII All the Judges of England are bound by their Oath 18 Edw. III. 20 Edw. III. Cap. 1.2 and by the duty of their place to disobey all Writs Letters or Commands which are brought to them either under the little Seal or under the great Seal to hinder or delay common Right Are the Judges all bound in an Oath and by their places to break the 13 of the Romans VIII The Engagement of the Lords attending upon the King at York June 13. 1642. which was subscribed by the Lord Keeper and Thirty Nine Peers besides the Lord Chief-Justice Banks and several others of the Privy-Council was in these words We do engage our selves not to Obey any Orders or Commands whatsoever not warranted by the known Laws of the Land Was this likewise an Association against the 13 of the Romans IX A Constable represents the King's person and in the Execution of his Office is within the purview of the 13 of the Romans as all Men grant but in case he so far pervert his Office as to break the Peace and commit Murther Burglary or Robbery on the Highway he may and ought to be Resisted X. The Law of the Land is the best Expositor of the 13 of the Romans Here and in Poland the Law of the Land There XI The 13 of the Romans is receiv'd for Scripture in Poland and yet this is expressed in the Coronation Oath in that Country Quod si Sacramentum meum violavero Incola Regni nullam nobis Obedientiam praestare tenebuntur And if I shall violate my Oath the Inhabitants of the Realm shall not be bound to yield me any Obedience XII The Law of the Land according to Bracton is the highest of all the Higher Powers mentioned in this Text for it is superior to the King and made him King Lib. 3. Cap. 26. Rex habet superiorum Deum item Legem per quam factus est Rex item Curiam suam viz. Comites Barones and therefore by this Text we ought to be subject to it in the first place And according to Melancthon It is the Ordinance of God to which the Higher Powers themselves ought to be subject Vol. 3. In his Commentary on the Fifth Verse Wherefore ye must needs be subject not only for Wrath but also for Conscience sake He hath these words Neque vero haec tantum pertinent ad Subditos sed etiam ad Magistratum qui cum fiunt Tyranni non minus dissipant Ordinationem Dei quam Seditiosi Ideo ipsorum Conscientia fit rea quia non obediunt Ordinationi Dei id est Legibus quibus debent parere Ideo Comminationes hic positae etiam ad ipsos pertinent Itaque hujus mandati severitas moveat omnes ne violationem Politici status putent esse leve peccatum Neither doth this place concern Subjects only but also the Magistrates themselves who when they turn Tyrants do no less overthrow the Ordinance of God than the Seditious and therefore their Consciences too are guilty for not obeying the Ordinance of God that is the Laws which they ought to obey So that the Threatnings in this place do also belong to them wherefore let the severity of this Command deter all men from thinking the Violation of the Political Constitution to be a light Sin Corollary To destroy the Law and Legal Constitution which is the Ordinance of God by false and arbitrary Expositions of this Text is a greater Sin than to destroy it by any other means For it is Seething the Kid in his Mothers Milk CHAP. IV. Of LAWS I. THere is no Natural Obligation wereby one Man is bound to yield Obedience to another but what is founded in paternal or patriarchal Authority II. All the Subjects of a patriarchal Monarch are Princes of the Blood III. All the people of England are not Princes of the Blood IV. No Man who is Naturally Free can be bound but by his own Act and Deed. V. Publick Laws are made by publick consent and they therefore bind every man because every man's consent is involved in them VI. Nothing but the same Authority and Consent which made the Laws can Repeal Alter or Explain them VII To judge and determine Causes against Law without Law or where the Law is obscure and uncertain is to assume Legislative power VIII Power assumed without a Man's consent cannot bind him as his own Act and Deed. IX The Law of the Land is all of a piece and the same Authority which made one Law made all the rest and intended to have them all Impartially Executed X. Law on One Side is the Back-Sword of Justice XI The Best Things when Corrupted are the Worst and the wild Justice of a State of Nature is much more desirable than Law perverted and over-rul'd into Hemlock and Oppression Copies of Two Papers Written by the Late King CHARLES II. Published by His MAJESTIES Command Printed in the Year 1686. The First Paper THE Discourse we had the other Day I hope satisfied you in the main that Christ can have but one Church here upon Earth and I believe that it is as visible as that the Scripture is in Print That none can be that Church but that which is called the Roman Catholick Church I think you need not trouble your self with entring into that Ocean of particular Disputes when the main and in truth the only Question is Where that Church is which we profess to believe in the two Creeds We declare there to believe one Catholick and Apostolick Church and it is not left to every phantastical man's head to believe as he pleases but to the Church to whom Christ left the power upon Earth to govern us in matters of Faith who made these Creeds for our Directions It were a very Irrational thing to make Laws for a Country and leave it to the Inhabitants to be the Interpreters and Judges of those Laws For then every man will be his own Judge and by consequence no such thing as either right or wrong Can we therefore suppose that God Almighty would leave us at those uncertainties as to give us a Rule to go by and to leave every man to be his own Judge I do ask any ingenuous man whether it be not the same thing to follow our own Fancy or to interpret the Scripture by it I would have any man shew me where the power of deciding matters of Faith is given to every particular man Christ left his power to his Church even to forgive Sins in Heaven and left his Spirit with them which they exercised after his Resurrection First by his Apostles in these Creeds and many years after by the Council at Nice where that Creed was made that is called by that name and by the power which they
the Nature of a Bargain and the due Circumstances belonging to an Equivalent and will now conclude with this short Word Where Distrusting may be the Cause of provoking Anger and Trusting may be the Cause of bringing Ruine the Choice is too easie to need the being explained A LETTER From a Gentleman in the City To his Friend in the Country Containing his Reasons for not Reading the Declaration SIR I Do not wonder at your Concern for finding an Order of Council published in the Gazette for Reading the King's Declaration for Liberty of Conscience in all Churches and Chappels in this Kingdom You desire to know my Thoughts about it and I shall freely tell them for this is not a time to be reserved Our Enemies who have given our Gracious King this Counsel against us have taken the most effectual way not only to ruine us but to make us appear the Instruments of our own Ruine that what Course soever we take we shall be undone and one side or other will conclude that we have undone our selves and fall like Fools To lose our Livings and Preferments nay our Liberties and our Lives in a plain and direct Opposition to Popery as suppose for refusing to read Mass in our Churches or to swear to the Trent Creed is an honorable way of falling and has the Divine Comforts of Suffering for Christ and his Religion and I hope there is none of us but can chearfully submit to the Will of God in it But this is not our present Case to read the Declaration is not to read the Mass nor to profess the Romish Faith and therefore some will judge that there is no hurt in Reading it and that to suffer for such a Refusul is not to fall like Confessors but to suffer as Criminals for disobeying the Lawful Commands of our Prince but yet we judge and we have the concurring Opinions of all the Nobility and Gertry with us who have already suffered in this Cause that to take away the Test and Penal Laws at this time is but one step from the introducing of Popery and therefore to read such a Declaration in our Churches though it do not immediately bring Popery in yet it sets open our Church Doors for it and then it will take its own time to enter So that should we comply with this Order all good Protestants would despise and hate us and men we may be easily crushed and shall soon fall with great Dishonour and without any Pity This is the Difficulty of our Case we shall be censured on both sides but with this Difference We shall fall a little sooner by not Reading the Declaration if our Gracious Prince resent this as an Act of an obstinate and peevish or factious Disobedience as our Enemies will be sure to represent it to him We shall as certainly fall and not long after if we do read it and then we shall fall unpitied and despised and it may be with the Curses of the Nation whom we have ruined by our Compliance and this is the way never to rise more And may I suffer all that can be suffered in this World rather than contribute to the sinal Ruine of the best Church in the World Let us then examine this Matter impartially as those who have no mind either to ruine themselves or to ruine the Church I suppose no Minister of the Church of England can give his Consent to the Declaration Let us then consider whether Reading the Declaration in our Churches be not an Interpretative Consent and will not with great Reason be interpreted to be so For First By our Law all Ministerial Officers are accountable for their Actions The Authority of Superiors though of the King himself cannot justifie inferior Officers much less the Ministers of State if they should execute any illegal Commands which shews that our Law does not look upon the Ministers of Church or State to be meer Machines and Tools to be managed wholly by the Will of Superiors without exercising any Act of Judgment or Reason themselves for then inferior Ministers were no more punishable than the Horses are which draw an innocent Man to Tyburn and if inferior Ministers are punishable then our Laws suppose that what we do in obedience to Superiors we make our own Act by doing it and I suppose that signifies our Consent in the Eye of the Law to what we do It is a Maxime in our Law That the King can do no Wrong and therefore if any Wrong be done the Crime and Guilt is the Ministers who does it for the Laws are the King 's publick Will and therefore he is never supposed to command any thing contrary to Law nor is any Minister who does an illegal Action allowed to pretend the King's Command and Authority for it and yet this is the only Reason I know why we must not obey a Prince against the Laws of the Land or the Laws of God because what we do let the Authority be what it will that commands it becomes our own Act and we are responsible for it and then as I observed before it must imply our own Consent Secondly The Ministers of Religion have a greater Tye and Obligation than this because they have the Care and Conduct of Mens Souls and therefore are bound to take Care that what they publish in their Churches be neither contrary to the Laws of the Land nor to the Good of the Church For the Ministers of Religion are not look'd upon as Common Cryers but what they Read they are supposed to recommend too though they do no more than Read it and therefore to read any thing in the Church which I do not consent to and approve nay which I think prejudicial to Religion and the Church of God as well as contrary to the Laws of the Land is to misguide my People and to dissemble with God and Men because it is presum'd that I neither do nor ought to read any thing in the Church which I do not in some degree approve Indeed let Mens private Opinions be what they will in the Nature of the thing he that reads such a Declaration to his People teaches them by it For is not Reading Teaching Suppose then I do not consent to what I read yet I consent to Teach my People what I Read and herein is the Evil of it for it may be it were no Fault to Consent to the Declaration but if I consent to Teach my People what I do not consent to my self I am sure that is a great one And he who can distinguish between consenting to Read the Declaration and consenting to Teach the People by the Declaration when Reading the Declaration is teaching it has a very subtile Distinguishing Conscience Now if consenting to Read the Declaration be a Consent to Teach it my People then the natural Interpretation of Reading the Declaration is That he who Reads it in such a solemn Teaching-manner Approves it If this be not
any thing clause or sentence in the said Act contained to the contrary â—â—ithstanding Sect. 3. Provided always and it is hereby Enacted That neither this Act nor any thing herein conâ—â—ined shall extend or be construed to ravive or give Force to the said Branch of the said Statute wade in the said First Year of the Reign of the said Late Queen Elizabeth mentioned in the said Act if Parliament made in the Seventeenth Year of the Reign of the said King Charles but that the said Branch of the said Statute made in the said First Year of the Reign of the said Late Queen Elizabeth scall stand and be Repealed in such sort as if this Act had never been made Sect. 4. Provided always and it is hereby Enacted That it shall not be lawful for any Arch-bishop Bishop Vicar-General Chancellor Commissary or any other Spiritual or Ecclesiastical Judge Officer or Minister or any other person having or exercising Spiritual or Ecclesiastical Jurisdiction to Tender or Administer unto any Person whatsoever the Oath usually called Ex Officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or herself of any Criminal matter or thing whereby he or she may be liable to Censure or Punishment any thing in this Statute or any other Law Custom or Vsage heretofore to the contrary hereof in any wise notwithstanding Sect. 5. Provided always That this Act or any thing therein contained shall not extend or be construed to extend to give unto any Arch Bishop Bishop or any other Spiritual or Ecclesiastical Judge Officer or other person or persons aforesaid any Power or Authority to Exercise Execute Inflict or Determine any Ecclesiastical Jurisdiction Censure or Coertion which they might not by Law have done before the Year of our Lord 1639. 2. Nor to abridge or diminish the Kings Majesties Supremacy in Ecclefiastical Matters and Affairs nor to confirm the Canons made in the Year 1640. nor any of them nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enacted by Parliament or by the established Laws of the Land as they stood in the Year of our Lord 1639. From the Title of the Act and the Act it self considered I gather First That it is an Explanatory Act of the 17th of Car. 1. as to one particular Branch of it and not introductive of any new Law Secondly That the Occasion of making it was not from any Doubt that did arise VVhether the High Commission Court were taken away or whether the Crown had Power to erect any such like Court for the future but from a Doubt that was made that all ordinary Power of Coertion and Proceedings in Causes Ecclefiastical was taken away whereby Justice in Ecclesiastical Matters was obstructed and this Doubt did arise from a Clause in 17 Car. 1. ca. 11. Sect. 4. herein mentioned to be recited in the said Act of 13 Car. 2. ca. 12. Thirdly That this Statute of 13 Car. 2. ca. 12. as appears upon the Face of it was made to the intent the ordinary Jurisdiction which the Bishops and other Ecclesiastical Persens had always exercised under the Crown might not be infringed but not to restore to the Crown the power of Delegating the Exercise of Ecclesiastical Jurisdiction by Letters Patents to Lay persons or any others and as to this nothing can be plainer than the VVords of the Act it self Sect. 2. Whereby 17 Car. 1. is repealed but takes particular care to except what concerned the High Commission Court or the new Erection of some such Court by Commission Neither did the Law-makers think this Exception in that Statute of 13 Car. 2. ca. 12. Sect. 2. to be sufficient but to put the Matter out of all doubt in the Third Section of the same Statute It is provided and Enacted That neither that Act nor any thing therein contained should extend or be construed to revive or give force to the Branch of 1 Eliz. 1. Sect. 18. but that the same Branch shâ—â—â— stand absolutely Repealed And if so then the power of the Crown to delegate the Exercise of Ecclesiastical Jurisdiction is wholly taken away for it was vested in the Crown by 1 Eliz. 1. and taken away by 17 Car. 1. ca. 11. and is in no manner restored by 13 Car. 2.12 or any other But there may arise an Objection from the VVords in the Statute of 13 Car. 2. ca. 12. that saith That that Act shall not extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical Matters and Affairs VVhence some Men would gather that the same power still remains in the Crown that was in it before 17 Car. 1. ca. 11. To which Objection I give this Answer That every Law is to be so constructed that it may not be Felo de se and that for the Honour of the Legislators King Lords and Comment Now I would appeal to the Gentlemen themselves that assert this Doctrine VVhether they can so construe the Act of 13 Car. 2. ca. 12. as they pretend to do without offering Viâ—lence to their own Reason For when the 1 Car. 1. ca. 11. had absolutely repealed the Branch of 1 Eliz. 1. that vested the power in the Crown of Delegating the Exercise of Ecclesiastical Jurisdiction and Enacts That no such Commission shall be for the future and the Act of 13 Car. 2. ca. 12. Repeals the 17 Car. 1. ca. 12. except what relates to that particular Branch there can no more of the Kings Supremacy in Ecclesiastical Matters and Affairs be saved by the saving in the 13 Car. 2. ca. 12. but what was left in the Crown by 17 Car. 1. ca. 11. And now I hope I have sufficiently evinced That all the Proceedings before the Ecclesiastical Commissioners are CORAM NON JVDICE and therefore have sufficient Reason to believe That the same would never have been set on foot by his present Majesty who had always the Character of JAMES the Just and hath promised upon his Royal VVord That he will invade no Mans Property had he not been advised thereunto by them who are better versed in the Canons of the Church of ROME than in the Laws that relate to the CROWN and CHURCH of ENGLAND A LETTER Writ by Mijn Heer Fagel Pensioner of Holland to Mr. James Stewart Advocate Giving an Account of the Prince and Princes of Orange's Thoughts concerning the Repeal of the Test and the Penal Laws SIR I Am extream sorry that my ill health hath so long hindred me from Answering those Letters in which you so earnestly desired to know of me what their Highnesses thoughts are concerning the repeal of the Penal Laws and more particularlarly of that concerning the Test I beg you to assure your self that I will deal very plainly with you in this matter and without reserve since you say that your Letters were writ by the King's knowledge and allowance I must
could they once get to have a share in the Legislation and to be legally stated in all places of Trust and Power What need we had of a legal security for our Religion in case of a Papists coming to inherit the Crown not onely the late King who thorowly knew his Brothers temper and bigottry but those Loyal Zealots who with an unhappy vigour opposed the Bill of Exclusion were sensible of and therefore besides all the security which we have for our Religion by the Statutes in force they offered many other provisions for its protection and several of them very threatning to the Monarchy which we might have had established into Laws if through our pursuit of the point of Exclusion we had not been so improvident as to despise and reject them He that dares attempt so much as he hath done in opposition unto and defiance of all our Laws what will he not have the confidence to undertake and be in a condition to accomplish if these obstructions were out of his way The Penal Laws cannot prejudice the Papists in this King's Reign seeing he can connive at the non-execution of them and the Repeal of them now cannot benefit the Papists when he is gone because if they do not behave themselves modestly we can either re-establish them or enact others which they will be as little fond of But their abrogation at this time would infallibly prejudice us and would prove to be the pulling up of the Sluces and the throwing down the Dikes which stem the deluge that is breaking in upon us and which hinder the threatning waves from overflowing us And whereas Mr. Pen would obtrude upon weak and credulous Men That if these Laws were Repealed the King is willing to give us other for our security and that he would onely exchange the security and not destroy it Letter 2d p. 11. he must pardon us if we do not easily believe him after what we know of his Majesties natural Genius and Religious Bigottry and after what we have seen and experienced in the whole course of his Government And if there be no other way of giving the King an opportunity of Keeping his word with the Church of England in preserving her and maintaining our Religion but the Repealing of the Penal and Tests Laws as he intimates unto us Good Adv. p. 50. we have not found the Royal Faith so sacred and inviolable in other instances as to rob our selves of a Legal defence and protection for to depend upon the precarious one of a bare promise which his Ghostly Fathers whensoever they find it convenient will tell him it was unlawful to make and which he can have a Dispensation for the breaking of at what time he pleaseth Nor do we remember that when he pledged his Faith unto us in so many Promises that the parting with our Laws was declared to be the condition upon which he made and undertook to perform them Neither can any have the confidence to alledge it without having recourse to the Papal Doctrine of Mental Reservation Which being one of the Principles of that Order under whose conduct he is makes us justly afraid to rely upon his word without further Security However we do hereby see with what little sincerity Mr. Pen Writes and what small regard he hath to His Majesty's honour when he tells the Church of England That if She please and like the terms of giving up the Penal and Test Laws against Papists that then the King will perform his word with her Good Adv. p. 17. but that otherways it is She who breaks with him and not he with her ib p. 44. Though something may be said for the Repealing of all Penal Laws in reference to every perswasion that is called Religion how incongruously soever it may claim that Name yet 't is inconsistent with the safety of all Civil Government and a plain betraying of the Civil Liberties as well as the established Religion in Great Brittain not to allow the precluding those from places of Trust of whose fidelity we can have no assurance And therefore as all that Mr. Pen hath alledged for abolishing the Tests is miserably silly so he hath thereby too manifestly detected the small regard he bears to the safety of the Kingdoms and the Protestant cause not to be suspected in every thing else which he hath more plausibly and reasonably asserted For as all Governments have an unquestionable Right to use means whereby to preserve themselves so 't is not onely lawful but expedient that they should have Tests by which it may be known who are fit to be trusted with the Legislative and Executive power Without this no Constitution can subsist nor Subjects be in any security under it Neither can any Reasons be advanced against the Test Laws but what are of equal force against exacting Oaths of Allegiance and Promises of Fidelity from those whom the Government thinks meet to Employ One might think that Mr. Pen should allow as much to the Parliament of England as he challengeth to himself in his Government of Pensilvania For I find that not onely such shall be precluded from a share in the Government there who shall either be convicted of ill Fame and unsober Coversation or who shall not acknowledge Jesus Christ to be the Son of God and Saviour of the World Chap. 2d of their Constitutions and Laws but that none shall be either chosen into Office or so much as admitted to choose but who solemnly declare and promise Fidelity to William Pen and his Heirs Chap. 57. This I take not onely to be equivalent unto but something more than our Tests do amount unto For whereas there may be several whom the Quakers may judge persons of unsober Conversation who may be true to the Civil Interest of their Country and willing to the utmost of their power to preserve the Peace and promote the Prosperity of it we have no ground to believe the like of Papists in relation to the welfare and safety of a Protestant State And that not onely because they acknowledge a Forraign Jurisdiction inconsistent with and paramount to ours but because they are obliged by the Principles of their Religion whensoever they find themselves able to destroy and extirpate us I 'm sure that the Motives which in 73 and 78 enforced to the Enacting of the Test Laws do at this season plead more effectually for the continuing them Nor had we so much cause then of being afraid of Popery or to be apprehensive of having our Religion overturned by Papists which were the Inducements to the making of those Laws as we have ground to dread it at this time and to be jealous of it under the present conjuncture And the more that the Roman Catholicks and their Advocates press to have these Laws abolished the more fear they excite in us of their design if they knew how to effect it and make us the more resolved to hazard all we have to
given to his Declaration and to what he hath since the Emission of it repeated both in his Speech to Mr. Penn and in his Letter to Mr. Alsop And to omit many other Instances of his kindness and Benignity to the Fanaticks whom he now so much hugs and caresseth it may not be amiss to remember them and all other Protestants of that barbarous and illegal Commission issued forth by the Council of Scotland while he as the late King 's High Commissioner had the Management of the Affairs of that Kingdom by which every Military Officer that had command over twelve Men was impower'd to impannel Juries Try Condemn and cause to be put to Death not only those who should be found to disclaim the King's Authority but such as should refuse to acknowledge the King 's new modelled Supremacy over that Church in the pursuance and Execution of which Commission some were Shot to Death others were Hang'd or Drowned and this not only during the Continuance of the Reign of his late Majesty but for above a Year and a half after the present King came to the Crown But what need is there of insisting upon such little Particulars wherein he was at all times ready to express his Malice to Protestants seeing we have not only Dr. Oates's Testimony and that of divers others but most Authentick Proofs from Mr. Coleman's Letters of his having been in a Conspiracy several Years for the Subversion of our Religion upon the meritorious and sanctified Motive of extirpating the Northern Heresie Of which beside all the Evidence that four Successive Parliaments arrived at I know several who since the Duke of York ascended the Throne have had it confirmed unto them by divers Foreign Papists that were less reserved or more ingenuous than many of that Communion use to be To question the Existence of that Plot and his present Majesties having been Accessary unto and in the Head of it argues a strange Effrontery and Impudence through casting an Aspersion of Weakness Folly and Injustice not only upon those Three Parliaments that seem'd to have retained some Zeal for English Liberties but by fastening the same Imputations upon the Long Parliament which had shewed it self at all times more Obsequious to the Will of the Court than was either for their own Honor or the Safety and Interest of the Kingdom and who had expressed a Veneration for the Royal Family that approached too much upon a degree of Idolatry Whosoever considers that Train of Counsels wherein the King was many Years engaged and whereof we felt the woful Effects in the Burning of London the frequent Prorogation and Dissolution of Parliaments the widening and exasperating Differences among Protestants the stirring up and provoking Civil Magistrates and Ecclesiastical Courts to persecute Dissenters and the maintaining Correspondencies with the Pope and Catholick Princes abroad to the dishonor of the Nation and danger of our Laws and Religion cannot avoid being apprehensive what we are now to look for at his Hands nor can be escape thinking that he esteems his Advancement to the Crown both a Reward from Heaven for what he hath done and plotted against these three Kingdoms and an Opportunity and Advantage administred to him for the Perfecting and Accomplishment of all those Designs with which he hath been so long Bigg and in Travel for the Destruction of our Religion the Subversion of our Laws and the Re-establishment of Popery in these Dominions The Conduct and Guidance under which His Majesty hath put himself and the fiery Temper of that Order to whose Government he hath resigned his Conscience may greatly add to our Fears and give us all the Jealousie and Dread that we are capable of being impressed with in reference to Matters to come that there is nothing which can be Fatal to our Religion or Persons that we may not expect the being called to conflict with and suffer For tho most of the Popish Ecclesiasticks especially the Regulars bear an inveterate Malice to Protestants and hold themselves under indispensible Obligations of eradicating whatsoever their Church stiles Heresie and have accordingly been always forward to stir up and provoke Rulers to the use and Application of Force for the Destruction of Protestants as a Company of perverse and obstinate Hereticks adjudged and condemned to the Stake and Gibbet by the infallible Chair yet of all Men in the Communion of the Romish Church and of their Religious Orders the Jesuits are they who do most hate us and whose Counsels have been most Sanguinary and always tending to influence those Monarchs whose Consciences they have had the guiding and conducting of to the utmost Cruelties and Barbarities towards us What our Brethren have had measured out to them in France through Father de la Chaise's Influence upon that King and through the bewitching Power and Domination he hath over him in the quality of his Confessor and as having the Direction of his Conscience may very well alarm and inform us what we ought to expect from His Majesty of Great Britain who hath surrendered his Conscience to the Guidance of Father Peters a Person of the same Order and of the like mischievous and bloody Disposition that the former is 'T is well observed by the Author of the Reasons against Repealing the Acts of Parliament concerning the Test that Cardinal Howard's being of such a meek and gentle Temper that is able to withstand the Malignity of his Religion and to preserve him from concurring in those mischievous Counsels which his Purple might seem to oblige him unto is the reason of his being shut out from Acquaintance with and Interest in the English Affairs transacted at Rome and that whatsoever his Majesty hath to do in that Court is managed by his Ambassador under the sole Direction of the Jesuits So that it is not without cause that the Jesuit of Liege in his intercepted and lately printed Letter tells a Brother of the Order what a wonderful Veneration the King hath for the Society and with what profound Submission he receives those Reverend Fathers and hearkens to whatsoever they represent Nor is His Majesty's being under the Influence of the Jesuits through having one of them for his Confessor and several of them for his Chief Counsellors and principal Confidents the only thing in this Matter that awakens our Fear in what we are to expect from his armed Power excited and stir'd up by that fiery Tribe but there is another Ground why we ought more especially to dread him and that is his being entred and enrolled into the Order and become a Member of the Society whereby he is brought into a greater Subjection and Dependence upon them and stands bound by Ties and Engagements of being obedient to the Commands of the General of the Jesuits and that not only in Spirituals but in whatsoever they shall pretend to be subservient to the Exaltation of the Church and for upholding the Glory of the Tripple Crown This
were prepared for in case it had succeeded and the foreign aid they had been solliciting and were promised and all for the extirpation of English Hereticks are things so modern and which we have had so many times related to us by our Fathers that it is enough barely to intimate them The Irish Massacre in which above 200000 were murder'd in cold blood and to which there was no provocation but that of hatred to our Religion and furious zeal to extirpate Hereticks ought at this time to be more particularly reflected upon as that which gives us a true scheme of the manner of the Church of Rome's converting Protestant Kingdoms and being the Copy they have a mind to write after and that in such Characters and lines of blood as may be sure to answer the Original At the season when they both entred upon and executed that hellish conjuration they were in a quiet and peaceable enjoyment of the private exercise of their Religion yea had many publick meeting-places thro the means of the Queen and many great friends which they had at Court and were neither disturbed for not coming to Church nor suffered any severities upon the account of their Profession but that would not satisfie nor will any thing else unless they may be allowed to cut the throats or make bonefires of all that will not join with them in a blind obedience to the Sea of Rome and of worshipping S. Patrick The little harsh usages which the Papists at any time met with there or in England they derived them upon themselves by their Crimes against the State and for their Conspiracies against our Princes and their Protestant Subjects For till the Pope had taken upon him to depose Queen Elizabeth and absolve her Subjects from their Allegiance and till the Papists had so far approved that Act of his Holiness as to raise Rebellions at home and enter into treasonable confederacies abroad there were no Laws that could be stiled severe enacted in England against Papists and the making of them was the result of necessity in order to preserve our selves and not from an inclination to hurt any for matters of mere Religion Such hath always been the moderation of our Rulers and so powerful are the incitements to lenity which the generality of Protestants through the influence and impression of their Religion especially they of a more generous education have been under towards those of the Roman Communion that nothing but their unwearied restlesness to disturb the Government and destroy Protestants hath been the cause either of enacting those Laws against them that are stiled rigorous or of their having been at any time put into execution And notwithstanding that some such Laws were enacted as might appear to savour of severity yet could they have but submitted to have dwelt peaceably in the Land they would have found that their mere belief and the private practice of their Worship would not have much prejudiced or endangered them and that tho the Laws had been continued unrepealed yet it was only as a Hedge about us for our protection and as Bonds of obligation upon them to their good behaviour To which may be added that more Protestants have suffered in one year by the Laws made against Dissenters and to the utmost height of the penalties which the violation of them imported and that by the instigation of Papists and their influence over the late King and his present Majesty than there have Papists from the beginning of Queen Elizabeth's Reign to this very day tho there was a difference in the punishments they underwent However we may from their many and repeated attempts against us while we had Princes that both would and could chasten their insolencies and inflict upon them what the Law made them obnoxious unto for their outrages gather and conclude what we are now to expect upon their having obtained a King imbu'd with all the persecuting and bloody principles of Popery and perfectly baptised into all the Doctrines of the Councils of Lateran and Constance And it may strengthen our faith as well as increase our fear of what is purposed against and impends over us in that they cannot but think that the suffering our Religion to remain in a condition to be at any time hereafter the Religion of the State and of the universality of the People may not only prove a means of retrieving Protestancy in France and of assisting to revenge the barbarities perpetrated there upon a great and innocent people but may leave the Roman Catholicks in England exposed to the resentment of the Kingdom for what they have so foolishly and impudently acted both against our Civil Rights and Established Religion since James II. came to the Crown and may also upon the Government 's falling into good hands and Magistrates coming to understand their true Interest which is for an English Prince to make himself the Head of the Protestant cause and to espouse their quarrel in all places give such a Revolution in Europe as will not only check the present Career of Rome but cause them repent the methods in which they have been engaged These things we may be sure the Papists are aware of and that having proceeded so far they have nothing left for their security from punishments because of crimes committed but to put us out of all capacity of doing our selves Right and them Justice and he must be dull who does not know into what that must necessarily hurry them It being then as evident as a matter of this nature is capable of what we are to expect and dread from the King both as to our Religion and Laws we may do more than presume that the late Declaration for liberty of Conscience and the Proclamation for a Toleration are not intended and designed for the benefit and advantage of the Reformed Religion and that whatsoever motives have influenced to the granting and emitting of them they do not in the least flow or proceed from any kindness and good will to Protestant Dissenters And though many of those weak and easie People may flatter themselves with a belief of an interest in the Kings favour and suffer others to delude them into a persuasion of his bearing a gracious respect towards them yet it is certain that they are People in the world whom he most hates and who when things are ripe for it and that he hath abused their credulity into a serving his Ends as far as they can be prevailed upon and as long as the present Juggle can be of any advantage for promoting the Papal Cause will be sure not only to have an equal share in his displeasure with their Brethren of the Church of England but will be made to drink deepest in the cup of fury and wrath that is mingling and preparing for all Protestants No provocation from their present behaviour tho it is such as might warm a person of very cool temper much less offences of another complexion
about him who thrust the last King out of the Throne to make room for his present Majesty much scruple to put a Protestant Successor by it if they can find another Papist as Bigotted as this to advance unto it However were they on the Throne to morrow here is both a Foreign Jurisdiction brought in and set up to Rival and control theirs and they are deprived of all means of being secured of the Loyalty and Fealty of a great number of their Subjects Nor will His Majesty's certain Knowledge and long Experience whereof he boasts in the Scots Proclamation that the Catholicks as it is their Principle to be good Christians so it is to be dutiful Subjects be enough for their Royal Highnesses to rely upon their Religion obliging them to the contrary towards Princes whom the Church of Rome hath adjudged to be Hereticks A second Instance wherein this pretended Royal Prerogative is exercised Paramount to all Laws and which nothing but a claim of Absolute Power in his Majesty can support and an Acknowledgment of it by the Subjects make them approve the Declaration for Liberty of Conscience and the Proclamation for Toleration is the stopping disabling and suspending the Statutes whereby the Tests were enacted and thereby letting the Papists in to all Benefices Offices and Places of Trust whether Civil Military or Ecclesiastick I do not speak of Suspending the Execution of those Laws whereby the being Priests or taking Orders in the Church of Rome or the being reconciled to that Church or the Papists meeting to celebrate Mass were in one degree or another made Punishable tho the King 's dispensing with them by a challenged Claim in the Crown be altogether Illegal for as divers of these Laws were never approved by many Protestants so nothing would have justified the making of them but the many Treasons and Conspiracies that they were from time to time found guilty of against the State And as the Papists of all Men have the least cause to complain of the Injustice Rigor and Severity of them considering the many Laws more Cruel and Sanguinary that are in Force in most Popish Countries against Protestants and these enacted and executed merely for their Opinions and Practices in the Matters of God without their being chargeable with Crimes and Offences against the Civil Government under which they live so were it necessary from Principles of Religion and Policy to relieve the Roman Catholicks from the forementioned Laws yet it ought not to be done but by the Legislative Authority of the Kingdoms and for the King to assume a Power of doing it in the vertue of a pretended Prerogative is both a high Usurpation over the Laws and a Violation of his Coronation Oath Nor is it any Commendation either of the Humanity of the Papists or of the Meekness and Truth of their Religion that while they elsewhere treat those who differ from them in Faith and Worship with that Barbarity they should so clamorously inveigh against the Severities which in some Reformed States they are liable unto and which their Treasons gave the Rise and Provocation unto at first and have been at all times the Motives to the Infliction of But they alone would have the Allowance to be Cruel wherein they act consonantly to their own Tenets and I wish that some Provision might be made for the future for the Security of our Religion and our Safety in the Profession of it without the doing any thing that may unbecome the Merciful Principles of Christianity or be unsuitable to the meek and generous Temper of the English Nation and that the Property of being Sanguinary may be left to the Church of Rome as its peculiar Priviledge and Glory and as a more distinguishing Character than all the other Marks which she pretends unto That which I am speaking of is the Suspending the Execution of those Laws by which the Government was secured of the Fidelity of its Subjects and by which they in whom it could not confide were merely shut out from Places of Power and Trust and were made liable to very small Damages themselves and only hindered from getting into a Condition of doing Mischief to us All Governments have a Right to use means for their own Preservation provided they be not such as are inconsistent with the Ends of Government and repugnant to the Will and Pleasure of the Supreme Sovereign of Mankind and it is in the Power of every Legislative Assembly to declare who of the Community shall be capable or incapable of publick Imploys and of possessing Offices upon which the Peace Welfare and Security of the whole Politick Body does depend Without this no Government could subsist nor the People be in Safety under it but the Constitution would be in constant danger of being Subverted and the Privileges Liberties and Religion of the Subjects laid open to be overthrown And should such a Power in Legislators be upon weak Suspitions and ill grounded Jealousies carried at any time too far and some prove to be debarred from Trusts whose being imployed would import no Hazard yet the worst of that would be only a disrespect shewn to individual Persons who might deserve more Favor and Esteem but could be of no Prejudice to the Society there being always a sufficient number of others fit for the discharge of all Offices in whom an entire Confidence may be reposed And 't is remarkable that the States General of the United Provinces who afford the greatest Liberty to all Religions that any known State in Europe giveth yet they suffer no Papists to come into Places of Authority and Judicature nor to bear any Office in the Republick that may either put them into a Condition or lay them under a Temptation of attempting any thing to the Prejudice of Religion or for the betraying the Liberty of the Provinces And as 't is Lawful for any Government to preclude all such Persons from publick Trusts of whose Enemity and ill Will to the Establishment in Church or State they have either a moral Certainty or just Grounds of Suspition so 't is no less lawful to provide Tests for their Discovery and Detection that they may not be able to mask and vizor themselves in order to getting into Offices and thereupon of promoting and accomplishing their mischievous and malicious Intentions Nor is it possible in such a case but that the Tests they are to be tried by must relate to some of those Principles by which they are most eminently distinguished from them of the National Settlement and in reference whereunto they think it most piacular to dissemble their Opinion Nor have the Papists cause to be offended that the Renouncing the Belief of Transubstantiation should be required as the distinguishing Mark whereby upon their refusal they may be discerned when all the Penalty upon their being known is only to be excluded from a Share in the Legislation and not to be admitted to Employments of Trust and Profit
commended or promised to stand by him For tho the Matter and Subject of the Arbitrary Act of him now upon the Throne be not as to every Branch of it so publickly Scandalous as some of the Arbitrary Proceedings of the late King were as relating to a Favor which Mankind hath a just Claim unto yet it is every way as Illegal being in reference to a Privilege which his Majesty hath no Authority to grant and bestow And were it not that there are many Dissenters who preserve themselves Innocent at this Juncture and upon whom the Temptation that is administred makes no Impression the World would have just ground to say that the Fanaticks are not governed by Principles but that the Measures they walk by are what conduceth to their private and personal Benefit or what lyes in a Tendency to their Loss and Prejudice And that it was not the late King's Usurping and exerting an Arbitrary and illegal Power that offended them but that they were not the Objects in whose Favor it was exercised 'T is also an Aggravation of their Folly as well as their Offence that they should revive a Practice which the Nation was grown asham'd of and whereof they who had been guilty begun to repent through having seen that all the former Declarations Assurances and Promises of the Royal Brothers which tempted to Applications of that kind were but so many Juggles peculiar to the late Breed of the Family for the deceiving of Mankind and that never one of them was performed and made good But the Transgression as well as the Imprudence of the present Addressers is yet the greater and they are the more Criminal and Inexcusable before God and Men in that they might have enjoyed all the Benefits of the King's Declaration without acknowledging the Justice of the Authority by which it was granted or making themselves the Scorn and Contempt of all that are truly Honest and Wise by their servile Adulations and their Gratulatory Scriblers unbecoming English-men and Protestants They had no more to do but to continue their Meetings as they had sometimes heretofore used to do without taking notice that the present Suspension of the Laws made their Assembling together more safe and freed them from Apprehensions of Fines and Imprisonments Nor could the King how much soever displeased with such a Conduct have at this time ventured upon the expressing Displeasure against them seeing as that would have been both to have proclaimed his Hypocrisie in saying That Conscience ought not to be constrained nor People forced in matters of mere Religion and a discovering the villainous Design in Subserviency to which the Declaration had been emitted so it were not possible for him after what he hath published to single out the Dissenters from amongst other Protestants and to fall upon all before Matters are more ripe for it might be a means of the Abortion of all his Popish Projections and of saving the whole Reformed Interest in Great Britain Neither would the Church of England-men have envied their Tranquility or have blamed their Carriage but would have been glad that their Brethren had been eased from Oppressions and themselves delivered from the grievous and dishonorable Task of prosecuting them which they had formerly been forced unto by Court-Injunctions and Commands And as they would have by a Conduct of this Nature had all the Freedom which they now enjoy without the Guilt and Reproach which they have derived upon themselves by Addressing so such a Carriage would have wonderfully recommended them to the Favor of a true English Parliament which tho it would see cause to condemn the King's Usurping a Power of Suspending the Laws and to make void his Declaration yet in gratitude to Dissenters for such a Behavior as well as in Pity and Compassion to them as English Protestants such a Parliament would not fail to do all it could to give them relief in a legal way Whereas if any thing Enflame and Exasperate the Nation to revive their Sufferings it will arise from a Resentment of the unworthy and treacherous Carriage of so many of them in this critical and dangerous Juncture But the Terms which through their Addressing they have owned the receiving their Liberty and Indulgence upon does in a peculiar manner enhance their Guilt against God and their Country and strangely adds to the Disgust and Anger which Lovers of Religion and the Laws of the Nation have conceived against them For it is not only upon the Acknowledgment of a Prerogative in the King over the Laws that they have received and now hold their Liberty but it is upon the Condition That nothing be preached or taught amongst them that may any ways tend to alienate the Hearts of the People from his Majesty's Person and Government He must be of an Understanding very near allied unto and approaching to that of an Irish-man who does not know what the Court-Sense of that Clause is and that his Majesty thereby intends that they are not to preach against Popery nor to set forth the Doctrines of the Romish Church in Terms that may prevent the Peoples being infected by them much less in Colours that may render them Hated and Abhorred To accuse the King's Religion of Idolatry or to affirm the Church of Rome to be the Apocalyptick Babylon and to represent the Articles of the Tridentine Faith as Faithful Ministers of Christ ought to do would be accounted an alienating the Hearts of their Hearers from the King and his Government which as they are in the foresaid Clauses required not to do so they have by their Addressing confessed the Justice of the Terms and have undertaken to hold their Liberty by that Tenor. And to give them their due they have been very Faithful hitherto in conforming to what the King Exacts and in observing what themselves have assented to the Equity of For notwithstanding all the Danger from Popery that the Nation is exposed unto and all the Hazard that the Souls of Men are in of being poysoned with Romish Principles yet instead of Preaching or Writing against any of the Doctrines of the Church of Rome they have agreed among themselves and with such of their Congregations as approve their Procedure not so much as to mention them but to leave the Province of defending our Religion and of detecting the Falshood of Papal Tenets to the Pastors and Gentlemen of the Church of England And being ask'd as I know some of them that have been why they do not preach against Antichrist and confute the Papal Dectrines they very gravely reply that by preaching Christ they preach against Anti-christ and that by Teaching the Gospel they refute Popery which is such a piece of fraudulent and guilful Subterfuge that I want words to express the knavery and criminalness of it What a reserve and change have I lived to see in England from what I beheld a few years ago It was but the other day that the Conformable Clergy
Protestant and a Free man and therefore the Case being thus I shall think my self false to my Country if I sit still at this time I am of Opinion that when the Nation is Deliver'd it must be by Force or by Miracle It would be too great a presumption to expect the latter and therefore our Deliverance must be by Force and I hope this is the Time for it a Price is now put into our Hands and if it miscarry for want of Assistance our Blood is upon our own Heads and he that is passive at this Time may very well expect that God will mock when the Fear of Affliction comes upon him which he thought to avoid by being indifferent If the King prevails farewel Liberty of Conscience which has hitherto been allowed not for the sake of the Protestants but in order to settle Popery You may see what to expect if he get the better and he hath lately given you of this Town a taste of the Method whereby he will maintain his Army And you may see of what sort of People he intends his Army to consist and if you have not a mind to serve such Masters then stand not by and see your Country-men perish when they are endeavouring to defend you I promise this on my Word and Honour to every Tenant that goes along with me That if he fall I will make his Lease 〈◊〉 good to his Family as it was when he went from home The thing then which â—â—se â—esire and your Country does expect from you is this That every Man that hath a toâ—rable Horse or can procure one will meet me on Boden-Downs to morrow where I Rendezvouz But if any of you is rendred unable by reason of Age or any other just Excuse then that he would mount a fitter person and put five Pounds in his Pocket Those that have not nor cannot procure Horse let them stay at home and assist with their Purses and send it to me with a particular of every Mans Contribution I impose on no Man but let him lay his Hand on his Heart and consider what he is willing to give to recover his Religion and Liberty and to such I promise and to all that go along with 〈…〉 if we prevail I will be as industrious to have him recompensed for his Charge and â—â—azard as I will be to seek it for my self This Advice I give to all that stay behind That when you hear the Papists have committed any Out-rage or any Rising that you will get together for it is better to meet your danger than expect it I have no more to say but that I am willing to lose my Life in the Cause if God see it good for I was never unwilling to die for my Religion and Country An Engagement of the Noblemen Knights and Gentlemen at Exeter to Assist the Prince of Orange in the Defence of the Protestant Religion Laws and Liberties of the People of England Scotland and Ireland WE do engage to Almighty God and to his Highness the Prince of Orange and with one another to stick firm to this Cause and to one another in the Defence of it and never to depart from it until our Religion Laws and Liberties are so far secured to us in a Free-Parliament that we shall be no more in danger of falling under Popery and Slavery And whereas we are engaged in the Common Cause under the Protection of the Prince of Orange by which means his Person may be exposed to Danger and to the desperate and cursed Designs of Papists and other bloody Men we do therefore solemnly engage to God and to one another That if any such Attempts be made upon him we will pursue not only those that made them but all their Adherents and all we find in Arms against us with the utmost Severity of just Revenge in their Ruin and Destruction and that the executing any such Attempt which God of his Infinite Mercy forbid shall not deprive us from pursuing this Cause which we do now undertake but that it shall encourage us to carry it on with all the Vigour that so Barbarous Approach shall deserve The Declaration of the Nobility Gentry and Commonalty at the Rendezvouz at Nottingham Nov. 22. 1688. WE the Nobility Gentry and Commonalty of these Northern Counties assembled together at Nottingham for the Defence of the Laws Religion and Properties according to those free-born Liberties and Priviledges descended to us from our Ancestors as the undoubted Birth-right of the Subjects of this Kingdom of England not doubting but the Infringers and Invaders of our Rights will represent us to the rest of the Nation in the most malicious dress they can put upon us do here unanimously think it our Duty to declare to the rest of our Protestant Fellow-Subjects the Grounds of our present Undertaking We are by innumerable Grievances made sensible that the very Fundamentals of our Religion Liberties and Properties are about to be rooted out by our late Jesuitical Privy Council as hath been of late too apparent 1. By the King's dispensing with all the Establish'd Laws at his pleasure 2. By displacing all Officers out of all Offices of Trust and Advantage and placing others in their room that are known Papists deservedly made incapable by the Establish'd Laws of our Land 3. By destroying the Charters of most Corporations in the Land 4. By discouraging all Persons that are not Papists preferring such as turn to Popery 5. By displacing all honest and conscientious Judges unless they would â—â—ntrary to their Consciences declare that to be Law which was meerly arbitrary 〈…〉 By branding all Men with the name of Rebels that but offered to justifie the Law 〈…〉 a legal course against the arbitrary proceedings of the King or any of his corrupt Ministers 7. By burthening the Nation with an Army to maintain the Violation of the Rights of the Subjects 8. By discountenancing the Establish'd Reformed Religion 9. By forbidding the Subjects the benefit of Petitioning and constâ—â—ing them Libellers so rendring the Laws a Nose of Wax to serve their Arbitrary 〈…〉 And many more such-like too long here to enumerate We being thus made sadly sensible oâ— he Arbitrary and Tyrannical Government that is by the Influence of Jesuitical Counsels coming upon us do unanimously declare That not being willing to deliver our Posterity over to such a Condition of Popery and Slavery as the aforesaid Oppressions inevitably threaten we will to the utmost of our power oppose the same by joining with the Prince of Orange whom we hope God Almighty hath sent to rescue us from the Oppressions aforesaid will use our utmost Endeavours for the recovery of our almost ruin'd Laws Liberties and Religion And herein we hope all good Protestant Subjects will with their Lives and Fortunes be assistant to us and not be bugbear'd with the opprobrious Terms of Rebels by which they would fright us to become perfect Slaves to their Tyrannical Insolences and Usurpations
for we assure our selves that no rational and unbyassed Person will judge it Rebellion to defend our Laws and Religion which all our Princes have sworn at their Coronations Which Oath how well it hath been observed of late we desire a Free Parliament may have the Consideration of We own it Rebellion to resist a King that governs by Law but he was always accounted a Tyrant that made his Will his Law and to resist such an one we justly esteem no Rebellion but a necessary Defence And in this Consideration we doubt not of all Honest Mens Assistance and humbly hope for and implore the great Gods Protection that turneth the Hearts of People as pleaseth him best it having been observed That People can never be of one Mind without his Inspiration which hath in all Ages confirmed that Observation Vox Populi est Vox Dei The present restoring of Charters and reversing the oppressing and unjust Judgment given on Magdalen Colledg Fellows is plain are but to still the People like Plums to Children by deceiving them for a while but if they shall by this Stratagem be fooled till this present Storm that threatens the Papists be past as soon as they shall be resetled the former Oppression will be put on with greater vigour But we hope in vain is the Net spread in the sight of the Birds For 1. the Papists old Rule is That Faith is not to be kept with Hereticks as they term Protestants tho the Popish Religion is the greatest Heresie And 2. Queen Mary's so ill observing her Promises to the Suffolk-men that help'd her to the Throne And above all 3. the Popes dispensing with the breach of Oaths Treaties or Promises at his pleasure when it makes for the service of Holy Church as they term it These we say are such convincing Reasons to hinder us from giving Credit to the aforesaid Mock-Shews of Redress that we think our selves bound in Conscience to rest on no Security that shall not be approved by a Freely Elected Parliament to whom under God we refer our Cause His Grace the Duke of Norfolk 's Speech to the Mayor of Norwich on the First of December in the Market-place of Norwich Mr. Mayor NOT doubting but you and the rest of your Body as well as the whole City and Country may be Alarmed by the great Concourse of Gentry with the numerous Appearance of their Friends and Servants as well as of your own Militia here this Morning I have thought this the most proper place as being the most publick one to give you an Account of our Intentions Out of the deep sense we had that in the present unhappy Juncture of Affairs nothing we could think of was possible to secure the Laws Liberties and Protestant Religion but a Free Parliament WE ARE HERE MET TO DECLARE That we will do our utmost to defend the same by declaring for such a Free Parliament And since His Majesty hath been pleased by the News we hear this day to order Writs for a Parliament to sit the Fifteenth of January next I can only add in the name of my Self and all these Gentlemen and others here met That we will ever be ready to support and defend the Laws Liberties and Protestant Religion And so GOD SAVE THE KING To this the Mayor Aldermen and the rest of the Corporation and a numerous Assembly did concur with his Grace and the rest of the Gentry His Grace at his lighting from his Horse perceiving great numbers of Common People gathering together called them to him and told them He desired they would not take any occasion to commit any Disorder or Outrage but go quietly to their Homes and acquainted them that the King had ordered a Free Parliament to be called The Speech of the Prince of Orange to some Principal Gentlemen of Somersetshire and Dorsetshire on their coming to joyn his Highness at Exeter the 15th of Nov. 1688. THO we know not all your Persons yet we have a Catalogue of your Names and remember the Character of your Worth and Interest in your Country You see we are come according to your Invitation and our Promise Our Duty to God obliges us to protect the Protestant Religion and our Love to Mankind your Liberties and Properties We expected you that dwelt so near the place of our Landing would have joyn'd us sooner not that it is now too late nor that we want your Military Assistance so much as your Countenance and Presence to justifie our declar'd Pretensions rather than accomplish our good and gracious Designs Tho we have brought both a good Fleet and a good Army to render these Kingdoms happy by rescuing all Protestants from Popery Slavery and Arbitrary Power by restoring them to their Rights and Properties established by Law and by promoting of Peace and Trade which is the Soul of Government and the very Life-Blood of a Nation yet we rely more on the goodness of God and the Justice of our Cause than on any Humane Force and Power whatever Yet since God is pleased we shall make use of Human Means and not expect Miracles for our Preservation and Happiness let us not neglect making use of this gracious Opportunity but with Prudence and Courage put in Execution our so honourable Purposes Therefore Gentlemen Friends and Fellow-Protestants we bid you and all your Followers most heartily Welcom to our Court and Camp Let the whole World now judg if our Pretensions are not Just Generous Sincere and above Price since we might have even a Bridge of Gold to return back But it is our Principle and Resolution rather to die in a good Cause than live in a bad One well knowing that Vertue and True Honour is its own Reward and the Happiness of Mankind Our Great and Only Design The true Copy of a Paper delivered by the Lord Devonshire to the Mayor of Darby where he quarter'd the one and twentieth of November 1688. WE the Nobility and Gentry of the Northern parts of England being deeply sensible of the Calamities that threaten these Kingdoms do think it our Duty as Christians and good Subjects to endeavour what in us lies the Healing of our present Distractions and preventing greater And as with grief we apprehend the said Consequences that may arise from the Landing of an Army in this Kingdom from Foreign parts So we cannot but deplore the Occasion given for it by so many Invasions made of late Years on our Religion and Laws And whereas we cannot think of any other Expedient to compose our Differences and prevent Effusion of Blood than that which procured a Settlement in these Kingdoms after the late Civil Wars the Meeting and Sitting of a Parliament freely and duly Chosen we think our selves obliged as far as in us lies to promote it And the rather because the Prince of Orange as appears by his Declaration is willing to submit his own Pretensions and all other Matters to their Determination We heartily Wish and
in your Kingdoms as here in the Roman Empire But now we refer it even to your Majesty to judg what condition we can be in to afford you any Assistance we being not only Engaged in a War with the Turks but finding our selves at the same time unjustly and barbarously Attacked by the French contrary to and against the Faith of Treaties they then reckoning themselves secure of England And this ought not to be concealed that the greatest Injuries which have been done to our Religion have flowed from no other than the French themselves who not only esteem it lawful for them to make perfidious Leagues with the sworn Enemies of the Holy Cross tending to the destruction both of us and of the whole Christian World in order to the checking our Endeavours which were undertaken for the glory of God and to stop those Successes which it hath pleased Almighty God to give us hitherto but further have heaped one Treuchery upon another even within the Empire it self The Cities of the Empire which were Surrendred upon Articles signed by the Dauphin himself have been exhausted by excessive Impositions and after their being exhausted have been Plundred and after Plundring have been Burned and Razed The Palaces of Princes which in all times and even in the most destructive Wars have been preserved are now burnt down to the ground The Churches are Robbed and such as submitted themselves to them are in a most Barbarous manner carried away as Slaves In short It is become a Diversion to them to commit all manner of Insolences and Cruelties in many places but chiefly in Catholick Countries exceeding the Cruelties of the Turks themselves which having imposed an absolute necessity upon us to secure our selves and the holy Roman Empire by the best means we can think on and that no less against them than against the Turks we promise our selves from your Justice ready assent to this That it ought not to be imputed to us if we endeavour to procure by a just War that security to our selves which we could not hitherto obtain by so many Treaties and that in order to the obtaining thereof we take measures for our mutual Defence of Preservation with all those who are equally concerned in the same Design with us It remains that we beg of God that he would Direct all things to his glory and that he would grant your Majesty true and solid Comforts under this your great Calamity we embrace you with tender Affections of a Brother At Vienna the 9th of April 1689. The Declaration of the Lords Spiritual and Temporal and Commons Assembled at Westminster concerning the Misgovernment of King James and filling up the Throne Presented to King William and Queen Mary by the right Honourable the Marquess of Hallifax Speaker to the House of Lords With His Majesties most gracious Answer thereunto WHereas the late King James the Second by the Assistance of divers Evil Counsellors Judges and Ministers Imploy'd by Him did endeavour to Subvert and Extirpate the Protestant Religion and the Laws and Liberties of this Kingdom By Assuming and Exercising a Power of Dispensing with and Suspending of Laws and the Execution of Laws without consent of Parliament By Committing and Prosecuting divers Worthy Prelates for humbly Petitioning to be Excused from concurring to the said assumed Power By 〈◊〉 and causing to be executed a Commission under the great Seal for erecting a Court called The Court of Commissioners for Ecclesiastical Causes By Levying Mony for and to the Use of the Crown by pretence of Prerogative for other time and in other manner than the same was granted by Parliament By raising and keeping a standing Army within this Kingdom in the time of Peace whithout consent of Parliament and Quartering Soldiers contrary to Law By causing several good Subjects being Protestants to be Disarmed at the same time when Papists were both Armed and Imployed contrary to Law By violating the Freedom of Election of Members to serve in Parliament By Prosecutions in the Court of King's-Bench for Matters and Causes cognizable only in Parliament and by divers other Arbitrary and Illegal Courses And whereas of late Years Partial Corrupt and Unqualified Persons have been returned and served on Juries in Tryals and particularly divers Jurors in Tryals for High-Treason which were not Free-holders And Excessive Bail hath been required of Persons committed in Criminal Cases to elude the Benefit of the Laws made for the Liberty of the Subjects And Excessive Fines have been Imposed And Illegal and Cruel Punishments inflicted And several Grants and Promises made of Fines and Forfeitures before any Convictions or Judgment against the Persons upon whom the same were to be Levied All which are utterly and directly contrary to the known Laws and Statutes and Freedom of this Realm And whereas the said late K. James the Second having abdicated the Government and the Throne being thereby vacant His Highness the Prince of Orange whom it hath pleased Almighty God to make the glorious Instrument of Delivering this Kingdom from Popery and Arbitrary Power did by the Advice of the Lords Spiritual and Temporal and divers principal Persons of the Commons cause Letters to be written to the Lords Spiritual and Temporal being Protestants and other Letters to the several Counties Cities Universities Burroughs and Cinque-Ports for the Chusing of such Persons to represent them as were of Right to be sent to Parliament to Meet and Sit at Westminster upon the 22d Day of January in this Year 1688 in order to such an Establishment as that their Religion Laws and Liberties might not again be in danger of being Subverted Upon which Letters Elections having been accordingly made And thereupon the said Lord's Spiritual and Temporal and Commons pursuant to their respective Letters and Elections being now Assembled in a Full and Free Representative of this Nation taking into their most serious Consideration the best Means for attaining the Ends aforesaid do in the first place as their Ancestors in like Case have usually done for the Vindicating and Asserting their Ancient Rights and Liberties Declare That the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is Illegal That the pretended Power of Dispensing with Laws or the Execution of Laws by Regal Authority as it hath been assumed and exercised of late is Illegal That the Commission for erecting the late Court of Commissioners for Ecclesiastical Causes and all other Commissions and Courts of the like Nature are Illegal and Pernicious That levying of Mony for or to the Use of the Crown by pretence of Prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is Illegal That it is the Right of the Subjects to Petition the King and all Commitments and Prosecutions for such Petitioning are Illegal That the Raising or Keeping a standing Army within the Kingdom in time of Peace unless it be with
That the using Torture without Evidence or in ordinary Crimes is contrary to Law That the sending of an Army in a Hostile manner upon any part of the Kingdom in a peaceable time and exacting of Locality and any manner of free Quarter is contrary to Law That the charging the Lieges with Law-burroughs at the King's instance and the imposing of Bands without the Authority of Parliament and the suspending the Advocates from their Imployments for not compearing when such Bands were offered were contrary to Law That the putting of Garisons on private Mens Houses in a time of peace without the consent of the Authority of Parliament is contrary to Law That the opinion of the Lords of Session in the two Causes following were contrary to Law viz. 1. That the concerting the demand of a Supply for a Forfaulted Person although not given is Treason 2. That Persons refusing to discover what are their private thoughts and judgments in relation to points of Treason or other Mens actions are guilty of Treason That the fining Husbands for their Wives withdrawing from the Church was contrary to Law That Prelacy and Superiority of any Office in the Church above Presbyters is and hath been a great and unsupportable Grievance and Trouble to this Nation and contrary to the Inclinations of the Generality of the People ever since the Reformation they having Reformed from Popery by Presbyters and therefore ought to be abolished That it is the Right and Privilege of the Subjects to protest for remand of Law to the King and Parliament against Sentences pronounced by the Lords of Session providing the same do not stop execution of the said Sentences That it is the Right of the Subjects to Petition the King and that all Imprisonments and Prosecutions for such Petitions are contrary to Law That for redress of all Grievances and for the amending strengthning and preserving of the Laws Parliaments ought to be frequently called and allowed to sit and the freedom of Speech and Debate secured to the Members And they do claim and demand and insist upon all and sundry the Premisses as their undoubted Right and Liberties and that no Declarations Doings or Proceedings to the prejudice of the People in any of the said Premisses ought in any ways to be drawn hereafter in consequence and example but that all Forfaultures Fines loss of Offices Imprisonments Banishments Pursuits Persecutions and Rigorous Executions be considered and the Parties seized be redressed To which demand of the Rights and Redressing of their Grievances they are particularly incouraged by his Majesty the King of England his Declaration for the Kingdom of Scotland of the _____ day of October last as being the only means for obtaining a full Redress and remead therein Having therefore an entire Confidence That his said Majesty the King of England will perfyte the Deliverance so far advanced by him and will still preserve them from the Violation of the Rights which they have here asserted and from all other Attempts upon their Religion Laws and Liberties The said Estates of the Kingdom of Scotland do resolve That William and Mary King and Queen of England France and Ireland â—e and Be Declared King and Queen of Scotland to Hold the Crown and Royal Dignity of the said Kingdom of Scotland to them the said King and Queen during their Lives and the longest Liver of them and that the sole and full exercise of the Royal Power be only in and exercised by him the said King in the Names of the said King and Queen during their joynt lives And after their deceases the said Crown and Royal Dignity of the said Kingdom to be to the Heirs of the Body of the said Queen Which failing to the Princess Ann of Denmark and the Heirs of her Body Which also failing to the Heirs of the Body of the said William King of England And they do pray the said King and Queen of England to accept the same accordingly And that the Oath hereafter mentioned be taken by all Protestants of whom the Oath of Allegiance and any other Oaths and Declarations might be required by Law instead thereof And that the said Oath of Allegiance and other Oaths and Declarations may be Abrogated I A. B. Do sincerely Promise and Swear That I will be Faithful and bear True Allegiance to Their Majesties King William and Queen Mary So help me God A Proclamation declaring William and Mary King and Queen of England to be King and Queen of Scotland Edinburgh April 11. 1689. WHereas the Estates of this Kingdom of Scotland by their Act of the Date of these Presents have Resolved That WILLIAM and MARY King and Queen of England France and Ireland Be and Be declared King and Queen of Scotland to hold the Crown and Royal Dignity of the said Kingdom of Scotland to them the said King and Queen during their Lives and the longest Liver of Them and that the Sole and Full Exercise of the Regal Power be only in and Exercised by the said King in the Names of the said King and Queen during their joynt Libes As also the Estates having Resolved and Enacted an Instrument of Government or Claim of Right to be presented with the Offer of the Crown to the said King and Queen They do Statute and Ordain that William and Mary King and Queen of England France and Ireland be accordingly forthwith Proclaimed King and Queen of Scotland at the Mercat Cross of Edinburgh by the Lyon King at Arms or his Deputs his Brethren Heraulds Macers and Pursevants and at the Head-Burghs of all the Shires Stewarties Bailliaries and Regalities within the Kingdom by Messengers at Arms. Extracted forth of the Meeting of the Estates by me Ja. Dalrymple Cls. God save King WILLIAM and Queen MARY The Manner of the King and Queen taking the Scotish Coronation Oath May 11. 1689. THis day being appointed for the publick Reception of the Commissioners viz. The Earl of Argyle Sir James Montgomery of Skelmerly and Sir John Dalrymple of Stair younger who were sent by the Meeting of the Estates of Scotland with an Offer of the Crown of that Kingdom to Their Majesties they accordingly at three of the Clock met at the Council-Chamber and from thence were Conducted by Sir Charles Cotterel Master of the Ceremonies attended by most of the Nobility and Gentry of that Kingdom who reside in and about this place to the Banqueting-House where the King and Queen came attended by many Persons of Quality the Sword being carried before them by the Lord Cardrosse and Their Majesties being placed on the Throne under a Rich Canopy they first presented a Letter from the Estates to his Majesty then the Instrument of Government Thirdly a Paper containing the Grievances which they desired might be Redressed and Lastly an Address to His Majesty for turning the Meeting of the said Estates into a Parliament All which being Signed by his Grace the Duke of Hamilton as President of the Meeting and
Government is ours their Servants were Slaves and their Kings and Emperours Wills were their Laws their People had no Magna Charta's to show nor Fundamental Compacts and so could plead no injustice in any command the frame of the Government Warranted all those commands that had the Royal pleasure Their Political Power was more extensive than their Moral Power The People were wholly at the Mercy of the Prince All their Laws were Acts of Grace not fundamental Reserves and inherent Rights and therefore in Spirituals they had no Cause to resist and in Temporals they might not as was observed above If they had been under limited Governments as we are we might have heard of Blows as well as Words St. Paul was never so virulent with his Tongue as when he was smitten contrary to Law Obj. 3. But the Person of the King is sacred and must not he touched Answ I say so too but it is his just Power that makes him so And therefore in dangerous times he is to be counselled and perswaded to secure himself by keeping within the Sanctuary of the Laws and holding them forth for the Publick Good by gaining the Affections of the People and being content with that measure of Power that is proper to the Government For if he doth not Right may and ought to be defended and resistance for the Publick good of Illegal Commissioned Forces is not resisting the King's Person but his Forces nor his Power but his Force without Power If none would execute the King's contradictory Commands none would resist and if he will against all Justice Prudence and Perswasions joyn with wicked Men and wilfully expose himself to the mercy of blind Bullets charge is to be given to all that none kill him wittingly or wilfully the hand that lifted him up may not pull him down God forbid that any should think of killing him de industrâ or despair of his repentance before God does nothing past can prejudice a Penitent before God and I hope not before Men thus the King's person and power will be safe in the midst of a Civil War not so safe as in peaceable times but as safe as can consist with the Subjects Right when their Religion and Laws Liberty and Property are Violently invaded And therefore if any thing befall his person by their hands it is but a chance and accidental thing which may happen also in peaceable times This shows that Resisting the King 's illegal commission'd Forces in defence of their own just Rights is not resisting the Ordinance of God and consequently no Sin and then the Conscience is not tyed otherwise than the Laws of the Land and the particular Frame of the government tyes it Obj. 4. But to resist the King or his Commissioners is against the Frame of the Government it being a Monarchy and against the Laws and Statutes of the Realm Answ If it be so it is a great Sin but as it is certain this is a Monarchy so it is certain that it is limited in the Foundation otherwise the King would have all the Legislative Power and the Parliment no Authority or Right but derived from him and then he must be Arbitrary and we Slaves and all our Laws must be acts of Grace not Fundamental Rights Not from any inherent power reserved at the Institution to our selves and never submitted to the Princes but from the gracious condescention of an Absolute Monarch which is contrary to the Story of all times which shows that the people ever claimed Liberty and Property according to their Ancient Laws and Customs not as a Gift but as a Right inherent in themselves and never Transferred Aliened or Conveyed to any King but Declared Recognized and Confirmed to them by many I shall therefore suppose what I think none can upon sufficient grounds deny that the King is bound by all the sacred Tyes of God and Man to govern by the Laws and not otherwise neither by a Foreign Law nor by one of his own framing nor by any Word or Will contrary to Law seeing nothing can have the force of Law here but what has the joynt Consent of King and Parliament and that in a Parliamentary way and this shows us in the Terms of Submission that are sworn to on both sides The King and the people by a joynt consent makes Laws and make them the common Rule betwixt them the King swears to observe the Laws and the people swear to obey the King and to leave the Execution of the Laws to the King to be managed for the publick good Therefore as long as he governs by Law he and all his Ministers are safe enough from Resistance the Resister being lyable to be punished both by God and Man and the sole administration being left to the King Subjects all but himself to Criminal process and even himself to Civil but his person and power are safe in both he may be severe in the Execution of the Laws many times but not unjust As if he will not suspend a Burthensom Law or Revive an Antiquated one when the publick good requires it This may render him uncharitable or imprudent but he is safe yet For though he be bound to proceed according to Law yet he is not tyed to proceed always according to the best Methods when there are diverse But if he stop the Courts of Justice erect new ones or proceed contrary to Law he Acts without Authority and against his own Authority and puts on a kind of a Vizard that his Subjects can neither know him nor their Duty for it is the Laws that direct them to the person of the King and their own Duty without which they could know neither And if the End be not the publick good it is downright Injustice as well as politically powerless Necessity indeed may justifie a Political unlawful Act for the Publick good As in case of an Invasion to burn a garrison rather than it should be a refuge for the Enemy or to open Sluces and to drown a part of the Country for though these things have not the form of the Law they have the reason and that is Publick good And therefore it is not Law but Necessity not the King's Command but Publick good that warrants these Acts. And when Peace returns the Injured are to have satisfaction made by the Publick not as of Charity but as of Justice which shows that the Law looks upon it as a Trespass justified only by Necessity and the Publick good And the particular Persons here have reason to be quiet and make no resistance because they shall reap double benefit by it one in the Publick good and another from the Publick Treasure But it does not follow that if the King in an angry mood should command his guards to fire Newmarket because he had lost an Horse-race there or had a mind to have a Bonefire because he had won one that the Inhabitants might not resist them Obj. 5. By what Law
Not by the Law of the Land Answ Yes By the Law of the Land a Petty Constables word would justifie Resistance better then the Kings Commission could justifie the illegal Attempt But suppose there were no Person that had the least Authority and that the resistance could not be within the prescribed Form of government yet because the force is an unauthoritative force and because there is greater necessity of the End of the government than of the Form Men may by the Law of Nature and the Law of Reason proceed to the End not without all Form but without the Political Form for those proceedings that are according to Reason are not simply under no Law but under a more extensive Law and that Law justifies resistance even of Superiors when there is no other way of defence left the people If the Case will admit of Intreaties or sober Counsels or legal Appeals they are to be used but if there be no room for these or if they take no place but illegal force be used that force may nay must be resisted or evil is consented to For he that will not serve the publick by that means when there is no other does actually consent to the ruine of it He that has his house on fire and will not stir to quench the flames though he be able is willing sure it should be burnt The Rules of prudence indeed are to be observed for if there be no probability that resistance will prevent the Evil the attempt is Folly and if resistance will do more harm than good it is inserviceable and if there be any other means effectual it is unreasonable for it ought to be the last refuge and then if the Cause be good Necessity justifies proceeding to the End Not by illegal Means but by suspending the Political Form and appealing to the Reason of Mankind and introducing the Law of Nature And this is no more than when Judgment at Common-Law is reversed in Chancery the Form of the Law gives place to Equity and sound Reason Obj. 6. But is it Rebellion Answ I Answer Rebellion is resisting the just Power of the Government and if so then it is no Rebellion to resist the unjust and usurped Power for then it would be Rebellion to resist Rebellion and there could be no such thing as a just defence against the exorbitant Power of Princes and then the King might Commission a Captain or a Collonel to role up and down in the Country and Plunder and it would be Rebellion in the Posse Cum. at least in any private Family to resist them And a private Commission to cut our Throats would tye our hands till the business were done But the resisting such Force as has neither Moral nor political power is no more Rebellion than to fight against a Wild Beast that came with Strength but no Authority to devour them The Papists indeed have taken up Arms without and against the just power of this Land not only against the Form of Law but to the overthrow of the Laws and Fundamental Rights of this Government directly against the Letter the Power and the End of the Law which is as inslaving to the Subjects as an usurping Conquest and it is no more Rebellion to resist them than Wat Tyler or Jack Cade They are Rebels who Arm against the government not they that defend it by Arms Obj. 7. But this is to usurp the Power of the Sword which by the Frame of the Government is wholly in the Kings Hand Answ The Political Power of the Sword indeed is in the King but that does not devest the Subject of all defence by Arms but only of such defence as is against or inconsistent with the Political Power If force be offered that wants Political Power whoever does it does it but in the Nature of a private Person and private Persons may resist such The Right of Self-defence is a precedent Right to all Policy and every Man has so much of it still as is not given up unto the Political Power he lives under They therefore that have given themselves up to be governed by Law only have Right to defend themselves not only against the private Assailant which is allowed in all Governments but also against illegal Force And this Resistance is no Usurpation upon the Magistrates Power because it is not an Act of Civil Authority but of Natural Right And if thousands joyn in the Attempt they are all Voluntiers a Multitude but no body Corporate and such as challenge no Authority over those they resist but deny Subjection to such unauthoritative Force For such Force wanting Political Power has no Power but Strength and Strength authorizes none to injure but Natural Right authorizes every one to defend himself so that in this case the Resister has a moral Power or Warrant but the illegal Invader none at all Obj. 8. But the Resisters ought not to do an unlawful Act to suppress such illegal Force Answ I Answer That Act is not simply Unlawful that wants Political Power the Law is made for the publick Good as the End and therefore if the prescribed means be not sufficient for the End the Law permits that other reasonable means be used otherwise People might dwell upon the Shadow till they 've lost the Substance The Posse Com. ought not by the prescribed form of Law to go into another County but if the other Country at that time had no Sheriff whereby the power of that County could not be raised to defend it self or if there were Ships in the Borders of the next County to which the Plunderers might escape if they were not hotly pursued I question not but the Posse Com. might do a commendable Act to pursue them and take them in the next County The Law was made for the publick Good and not the Publick Good for the Law and therefore when the Law cannot answer its own End or prescribes ineffectual Means any just and honest Means may be used and this is not destructive of the Law but suppletory not a violating the Form prescribed but an improving it And though a Man may be called to account for doing a Good Act in such a manner I suppose it is but to know the Truth of the Matter and to preserve the Reverence of the Laws for he is already cleared in his own Conscience and in the Breasts of all Good Men and a Pardon in that case does but declare it is so and ought of Right not of Grace to be granted For it is not necessary in respect of any Crime but in respect of some defect in the Law which had not made sufficient provision for the Publick Good Object 9. But it is against true Allegiance and an Oath must be kept though it be to our own hurt Answ True Allegiance must be proportioned to the Frame of the Government and the end of that Frame Therefore if the Frame be to restrain Arbitrary Power the Subject cannot
as long as the King is safe and his just Power and Prerogatives the Government is in no danger and there is not the least Colour imaginable that those that have surrendered their Offices and Honours the Court and the King's Favour for preserving the Government and are now ready to hazard their Lives in defence of it will ever alter it No their design is to preserve it a greater Evidence of which they could not give at present than to petition for a Free Parliament Obj. 17. But this casts dirt upon the Frame of the Government leaving room for perpetual quarrelling Answ 1. Neither this nor any other Government that I know of affords absolute means of Peace and Preservation The Government is effectual enough so far as it reaches but it is not extensive enough If the Monarch were Arbitrary then no Cause could introduce Resistance the Nation might be at Peace but the Subjects could not be safe and Liberty and Property would be lost Therefore if Safety Liberty and Property be worth the preserving they must be defended when wicked Men would wrest them from us The Constitution of this Government is such That if the King and Parliament or the King and the Subjects differ about Fundamental Rights they have no way to reconcile the Difference but by their own Consent If the King without the Parliament could determine the Difference he would be Arbitrary and if the People or the Parliament could determine it without him they would be Supream and then it could be no Monarchy and if the Judges had the determining Power they would get the Supremacy from both and if a Foreigner were to decide the Matter he would seek his own Advantage so that they must either condescend for Peace sake to one anothers Proposals so as not to destroy the Government or they must suffer the Grievance and let the Quarrel fall for a time till the injurious can be worn to a compliance or they must fight it out for that is their going to Law the Souldiers are their Jury-men and Victory is their Verdict For the Question is not about breach of Government but whether that be the Government or no and seeing this Cause transcends the executive Part of the Government it cannot be decided by Legal Progress but by Law-makers and if they cannot agree Men are at liberty to join with that side they judg in the right Reason and Conscience must be their Guide the Law cannot and they that proceed on this ground are their own Warrants on either side for neither have a Legal Power to determine the other Therefore the Power of Judging is neither Authoritative nor Civil and so argues no Superiority in those that judg but only a Power residing in reasonable Creatures or judging of their own Act of which they never were devested by any lawful Authority and therefore may lawfully use upon such Occasions and though the Government does not Warrant a Civil War in such a case yet the End and Reason of this Government does For it being fram'd to prevent the exorbitant Power of the Prince for the publick Good he that fights for the publick Good against an Usurped Power or an Arbitrary Invader of the Governments Rights is justified by the design and intendment of the Frame and consequently by the Equity of the Government though not by any prescribed Form For seeing many things are morally honest and profitable that are not reduced into positive Laws Men cannot proceed to those things if at any time they become necessary by prescribing Forms of Law because they have none and so in this case the Question being not about Breach of Law but what is Law And the Law not able to satisfy both King and People each claiming contrary Rights from the same Laws the Decision of this Case though it be very good and profitable for this Nation yet has no prescribed form of Law to direct us to and therefore both King and People are to proceed according to moral Honesty to the end of the Government that is the publick Good The Conclusion of all which is That seeing resisting of Illegal and Arbitrary Forces in defence of the Laws and Publick Interest of the Land is not against the Scriptures and consequently no Sin nor against moral Honesty and consequently no Crime not against Law but Law-breakers not against true Allegiance or any Prerogative of the Crown no Rebellion no Usurpation of the Sword nor Criminal Disobedience and not incommodious or unsafe for the Publick in respect of the impendant Injuries and Hazards it removes nor inconsistent with the Frame of Government which cannot otherwise decide an obstinate Difference betwixt King and People I cannot but conclude it is a very worthy and virtuous Act to be in Arms for defence of the Laws the King 's just Rights and the Publick Good and consequently that those Gentlemen who are in Arms for defence of our Laws Liberties and Lives against Illegal Forces Arbitrary Commands and Usurped Powers are in a virtuous Post For if the Subjects Right might not be defended by this means it would be all lost it being all one in these days to have no Right and to have no sufficient means to defend it The Doctrine of Non-resistance plainly puts all we have into an ill King's hands and the good Ones will scarce part with what they are apt to love so dearly and we parted with so freely should we therefore preach this Doctrine to our Princes and tell them that they might take what we have without danger or opposition we should teach them to try our Patience if all must be referr'd to their Consciences they will soon without the help of a Jesuit find case enough and cause enough to secure that and leave the examination of them to the latter Day hatred of our Persons love of our Estates disgust at our Words or Actions or dislike of our Religion will soon judg us unworthy of our Liberty and Property as well as it has already done of our Offices Honours and Preferments Passion and Scorn Pride and Ambition Covetousness and Prodigality would all prey upon what we had with a quiet though not with a good Conscience but especially if the King were poor and necessitous either by wilful Profuseness or Negligence for Nature would even tell him in such a Case That we had all better want than he and then farewel Property the worst you could do him was but to pet and cry a bit and perhaps that might become a Pleasure to him too and then you had nothing to rest on but that God would give you the Kingdom of Heaven for beggering your selves impoverishing the Church and giving what you had to the Devil's Service an ill Ground for such costly Hopes to stand upon 2. This Doctrine renders Government prejudicial to the greatest part of Mankind depriving them of all just Defence For the illegal Force bars them of legal Defence and the Doctrine of Non-resistance