sometimes even very anciently when upon extraordinary Occasions they met out of Course a Precept an Edict or Sanction is mentioned to have issued from the King But the times and the very place of their ordinary Meeting having been certain and determined in the very first and eldest times that we meet with any mention of such Assemblies which times are as ancient as any Memory of the Nation it self hence I infer that no Summons from the King can be thought to have been necessary in those Days because it was altogether needless Secondly The Succession to the Crown did not in those Days nor till of late Years run in a course of lineal Succession by right of Inheritance But upon the Death of a Prince those Persons of the Realm that composed the then Parliament assembled in order to the choosing of another That the Kingdom was then Elective though one or other of the Royal Blood was always chosen but the next in lineal Succession very seldom is evident from the Genealogies of the Saxon Kings from an old Law made at Calchuyth appointing how and by whom Kings shall be chosen and from many express and particular Accounts given by our old Historians of such Assemblies held for electing of Kings Now such Assemblies could not be summon'd by any King and yet in Conjunction with the King that themselves set up they made Laws binding the King and all the Realm Thirdly After the Death of King William Rufus Robert his elder Brother being then in the Holy Land Henry the youngest Son of King William the first procur'd an Assembly of the Clergy and People of England to whom he made large Promises of his good Government in case they would accept of him for their King and they agreeing that if he would restore to them the Laws of King Edward the Confessor then they would consent to make him their King He swore that he would do so and also free them from some Oppressions which the Nation had groan'd under in his Brothers and his Fathers time Hereupon they chose him King and the Bishop of London and the Archbishop of York set the Crown upon his Head which being done a Confirmation of the English Liberties pass'd the Royal Assent in that Assembly the same in Substance though not so large as King Iohn's and King Henry the thirds Magna Charta's afterwards were Fourthly After that King's Death in such another Parliament King Stephen was elected and Mawd the Express put by though not without some Stain of Perfidiousness upon all those and Stephen himself especially who had sworn in her Father's Life-time to acknowledg her for their Sovereign after his Decease Fifthly In King Richard the firsts time the King being absent in the Holy Land and the Bishop of Ely then his Chancellor being Regent of the Kingdom in his Absence whose Government was intolerable to the People for his Insolence and manifold Oppressions a Parliament was convened at London at the Instance of Earl Iohn the King's Brother to treat of the great and weighty Affairs of the King and Kingdom in which Parliament this same Regent was depos'd from his Government and another set up viz. the Arch-Bishop of Roan in his stead This Assembly was not conven'd by the King who was then in Palestine nor by any Authority deriv'd from him for then the Regent and Chancellor must have call'd them together but they met as the Historian says expresly at the Instance of Earl Iohn And yet in the Kings Absence they took upon them to settle the publick Affairs of the Nation without him Sixthly When King Henry the 3 d. died his eldest Son Prince Edward was then in the Holy Land and came not home till within the third Year of his Reign yet immediately upon the Father's Death all the Prelates and Nobles and four Knights for every Shire and four Burgesses for every Borough assembled together in a great Council and setled the Government till the King should return made a new Seal and a Chancellor c. I infer from what has been said that Writs of Summons are not so essential to the being of Parliaments but that the People of England especially at a time when they cannot be had may by Law and according to our old Constitution assemble together in a Parliamentary way without them to treat of and settle the publick Affairs of the Nation And that if such Assemblies so conven'd find the Throne vacant they may proceed not only to set up a Prince but with the Assent and Concurrence of such Prince to transact all publick Business whatsoever without a new Election they having as great Authority as the People of England can delegate to their Representative II. The Acts of Parliaments not formal nor legal in all their Circumstances are yet binding to the Nation so long as they continue in force and not liable to be questioned as to the Validity of them but in subsequent Parliaments First The two Spencers Temp. Edvardi Secundi were banished by Act of Parliament and that Act of Parliament repealed by Dures Force yet was the Act of Repeal a good Law till it was annull'd 1 Ed. 3. Secondly Some Statutes of 11 Rich. 2. and Attainders thereupon were repealed in a Parliament held Anno 21. of that King which Parliament was procur'd by forc'd Elections and yet the Repeal stood good till such time as in 1 Henry 4. the Statutes of 11 Rich. 2. were revived and appointed to be firmly held and kept Thirdly The Parliament of 1 Hen. 4. consisted of the same Knights Citizens and Burgesses that had served in the then last dissolved Parliament and those Persons were by the King's Writs to the Sheriffs commanded to be returned and yet they passed Acts and their Acts tho never confirmed continue to be Laws at this Day Fourthly Queen Mary's Parliament that restored the Pope's Supremacy was notoriously known to be pack'd insomuch that it was debated in Queen Elizabeth's time whether or no to declare all their Acts void by Act of Parliament That course was then upon some prudential Considerations declined and therefore the Acts of that Parliament not since repealed continue binding Laws to this Day The Reason of all this is Because no inferior Courts have Authority to judg of the Validity or Invalidity of the Acts of such Assemblies as have but so much as a Colour of Parliamentary Authority The Acts of such Assemblies being entred upon the Parliament-Roll and certified before the Judges of Westminster-Hall as Acts of Parliament are conclusive and binding to them because Parliaments are the only Judges of the Imperfections Invalidities Illeâ—â—lities c. of one another The Parliament that call'd in King Charles the second was not assembled by the King 's Writ and yet they made Acts and the Royal Assent was had to them many of which indeed were afterwards confirmed but not all and those that had no Confirmation are undoubted Acts of Parliament without it and have ever
were the first that suffered Persecution under her And after she had put to death near three hundred Persons without respect to Quality Age or Sex it pleased God to put an end to the Romish Cruelty and Idolatry by her unexpected and unlamented Death Nor is her Memory preserved from Oblivion by any thing but her repeated Acts of Cruelty and Injustice This was the Success that attended her this the Happiness the Liberty the Religion establish'd in the English Nation during her sive Years Tyranny That I may not detain the Reader any longer I will conclude this Advice to our Learned Pamphleteer That for the future he do not so positively ascribe all unhappy Accidents as frequent Wars and Rebellions the Effusion of English Blood the unfortunate End of some of our Princes to the Divine Vengeance upon them for the Usurpations he accuses them of since if he will consult our Historians he may find that Edward II. Richard II. and the Incomparable Prince King Charles I. though their Title from William the Conqueror is indisputable were far unhappier than any of the Usurpers he mentions That in Edward the Fourth's and Henry the Eighth's Reign a great deal of English Blood was shed both at Home and Abroad though their Right was unquestionable and universally acknowledged And that as to the promiscuous good or ill Success of all Affairs in this lower World the observation of the Wisest of Princes and of Men is very often exactly verified There is one Event to the Righteous and to the Wicked To the Prince who ascends the Throne by an unquestionable Right and to him that ascends it by Violence and Usurpation To the Prince that religiously performs the Solemn Oath taken at his Coronation and to him that wilfully breaks through all the Obligations he is under and endeavours by the most base Methods to dissolve the Establish'd Government The following Paper was published by Mr. Samuel Iohnson in the Year 1686. for which he was sentenc'd by the Court of Kings-Bench Sir Edward Herbert being Lord Chief Justice to stand three times on the Pillory and to be whipp'd from Newgate to Tyburn Which barbarous Sentence was executed An Humble and Hearty Address to all the English Protestants in this present Army GENTLEMEN NEXT to the Duty which we owe to God which ought to be the principal Care of Men of your Profession especially because you carry your Lives in your Hands and often look Death in the Face The second Thing that deserves your Consideration is The Service of your Native Country wherein you drew your first Breath and breathed a free English Air. Now I would desire you to consider how well you comply with these two main Points by engaging in this present Service Is it in the Name of God and for his Service that you have joined your selves with Papists who will indeed fight for the Mass-Book but burn the Bible and who seek to Extirpate the Protestant Religion with Your Swords because they cannot do it with their Own And will you be Aiding and Assisting to set up Mass-Houses to erect that Popish Kingdom of Darkness and Desolation amongst as and to train up all our Children in Popery How can you do these Things and yet call your selves Protestants And then what Service can be done your Country by being under the Command of French and Irish Papists and by bringing the Nation under a Foreign Yoke Will you help them to make forcible Entry into the Houses of your Country-men under the Name of Quartering directly contrary to Magna Charta and the Petition of Right Will you be Aiding and Assisting to all the Murders and Outrages which they shall commit by their void Commissions Which were declared Illegal and sufficiently blasted by both Houses of Parliament if there had been any need of it for it was very well known before That a Papist cannot have a Commission but by the Law is utterly Disabled and Disarmed Will you exchange your Birth-right of English Laws and Liberties for Martial or Club-Law and help to destroy all others only to be eaten last your selves If I know you well as you are English Men you hate and scorn these Things And therefore be not unequally yoaked with Idolatrous and Bloody Papists Be Valiant for the Truth and shew your selves Men. The same Considerations are likewise humbly offered to all the English Seamen who have been the Bulwark of this Nation against Popery and Slavery ever since Eighty Eight Several Reasons for the Establishment of a Standing Army and Dissolving the Militia 1. BEcause the Lords Lieutenants Deputy Lieutenants and the whole Militia that is to say the Lords Gentlemen and Free-holders of England are not fit to be trusted with their own Laws Lives Liberties and Estates and therefore ought to have Guardians and Keepers assigned to them 2. Because Mercenary Souldiers who fight for twelve Pence a Day will fight better as having more to lose than either the Nobility or Gentry 3. Because there are no Irish Papists in the Militia who are certainly the best Souldiers in the World for they have slain Men Women and Children by Hundreds of Thousands at once 4. Because the Dragooners have made more Converts than all the Bishops and Clergy of France 5. The Parliament ought to establish one standing Army at the least because indeed there will be need of Two that one of them may defend the People from the other 6. Because it is a thousand pities that a brave Popish Army should be a Riot 7. Unless it be Established by Act of Parliament the Justices of Peace will be forced to suppress it in their own Defence for they will be loth to forfeit an hundred Pounds every day they rise out of Complement to a Popish Rout. 13. H. 4. c. 7.2 H. 5. c. 8. 8. Because a Popish Army is a Nullity For all Papists are utterly disabled and punishable besides from bearing any Office in Camp Troop Band or Company of Souldiers and are so far disarmed by Law that they cannot wear a Sword so much as in their Defence without the allowance of four Justices of the Peace of the County And then upon a March they will be perfectly inchanted for they are not able to stir above five Miles from their own Dwelling-house 3. Iac. 5. Sect. 8 27 28 29.35 Eliz. 2.3 Iac. 5. Sect. 7. 9. Because Persons utterly disabled by Law are utterly Unauthorized and therefore the void Commissions of Killing and Slaying in the Hands of Papists can only enable them to Massacre and Murder A Discourse of Magistracy of Prerogative by Divine Right of Obedience and of the Laws CHAP. I. Of MAGISTRACY I. RELATION is nothing else but that State of Mutual Respect and Reference which one Thing or Person has to another II. Such are the Relations of Father and Son Husband and Wife Master and Servant Magistrate and Subject III. The Relations of a Father Husband and Master are really distinct and different that is
notwithstanding any want of thâ— Kings Writs or Writ of Summons or aâ—y defect whatsoever and as if the King had been present at the beginning of the Parliament this I take to be a full Judgment in full Parliament of the case in question and much stronger than the present case is and this Parliament continued till the 29 th of December next following and made in all thirty seven Acts as aboâ—e mentioned The 13 Caroli 2. chap. 7. a full Parliament called by the Kings Writ recites the other of 12 Caroli 2. and that after his Majesties return they were continued till the 29 th of December and then dissolved and that several Acts passed this is the plain Judgment of another Parliament 1. Because it says they were continued which shews they had a real being capable of being continued for a Confirmation of a void Grant has no effect and Confirmation shews a Grant only voidable so the continuance there shewed it at most but voidable and when the King came and confirm'd it all was good 2. The dissolving it then shews they had a being for as ex nihilo nihil sit so super nihil nil operatur as out of nothing nothing can be made so upon nothing nothing can operate Again the King Lords and Commons make the great Corporation or Body of the Kingdom and the Commons are legally taken for the Free-holders Inst. 4. p. 2. Now the Lords and Commons having Proclaimed the King the defect of this great Corporation is cured and all the Essential parts of this great Body Politique united and made compleat as plainly as when the Mayor of a Corporation dies and another is chosen the Corporation is again perfect and to say that which perfects the great Body Politique should in the same instant destroy it I mean the Parliament is to make contradictions true simul semel the perfection and destruction of this great Body at one instant and by the same Act. Then if necessity of Affairs was a forcible Argument in 1660 a time of great peace not only in England but throughout Europe and almost in all the World certainly 't is of a greater force now when England is scarce delivered from Popery and Slavery when Ireland has a mighty Army of Papists and that Kingdom in hazard of final destruction if not speedily prevented and when France has destroyed most of the Protestants there and threatens the ruin of the Low-Countries from whence God has sent the wonderful Assistance of our Gracious and therefore most Glorious King and England cannot promise safety from that Forreign Power when forty days delay which is the least can be for a new Parliament and considering we can never hope to have one more freely chosen because first it was so free from Court-influence or likelihood of all design that the Letters of Summons issued by him whom the great God in infinite Mercy raised to save us to the hazard of his Life and this done to protect the Protestant Religion and at a time when the people were all concerned for one Common interest of Religion and Liberty it would be vain when we have the best King and Queen the World affords a full house of Lords the most solemnly chosen Commons that ever were in the remembrance of any Man Living to spend Mony and lose time I had almost said to despise Providence and take great pains to destroy our selves If any object Acts of Parliament mentioning Writs and Summons c. I answer the Precedent in 1660 is after all those Acts. In private cases as much has been done in point of necessity a Bishop Provincial dies and sede vacant a Clerk is presented to a Benefice the Presentation to the Dean and Chapter is good in this case of Necessity and if in a Vacancy by the Death of a Bishop a Presentation shall be good to the Dean and Chapter rather than a prejudice should happen by the Church lying void Surely â fortiori Vacancy of the Throne may be supplied without the formality of a Writ and the great Convention turn'd to a Real Parliament A Summons in all points is of the same real force as a Writ for a Summons and a Writ differ no more than in name the thing is the same in all Substantial parts the Writ is Recorded in Chancery so are His Highnesses Letters the proper Officer Endorses the Return so he does here for the Coroner in defect of the Sheriff is the proper Officer the People Choose by virtue of the Writ so they did freely by Virtue of the Letters c. quae re concordant parum differunt they agree in Reality and then what difference is there between the one and the other Object A Writ must be in Actions at Common Law else all Pleadings after will not make it good but Judgment given may be Reversed by a Writ of Error Answ. The case differs first because Actions between party and party are Adversary Actions but Summons to Parliament are not so but are Mediums only to have an Election 2. In Actions at Law the Defendant may plead to the Writ but there is no plea to a Writ for electing Members to serve in Parliament and for this I have Littleton's Argument there never was such Plea therefore none lies Object That they have not taken the Test. Answ. They may take the Test yet and then all which they do will be good for the Test being the distinguishing Mark of a Protestant from a Papist when that is taken the end of the Law is performed Object That the Oaths of Allegiance and Supremacy ought to be taken and that the new ones are not legal Answ. The Convention being the Supream Power have abolish'd the old Oaths and have made new ones and as to the making new Oaths the like was done in Alfreds time when they chose him King vide Mirror of Justice Chap. 1. for the Heptarchy being turn'd to a Monarchy the precedent Oaths of the seven Kings could not be the same King Alfred swore Many Precedents may be cited where Laws have been made in Parliament without the King 's Writ to summon them which for brevity's sake I forbear to mention For a farewel the Objections quarrel at our Happiness fight against our Safety and aim at that which may indanger Destruction The Amicable Reconciliation of the DISSENTERS to the CHURCH of ENGLAND being a Model or Draught for the Universal Accommodation in the Case of Religion and the Bringing in all Parties to Her Communion Humbly presented to the Consideration of Parliament WHereas there are several parties of Christians in the Nation who must and will ever differ in their Opinions about the Church and Discipline of it in the Question which is of Christ's Institution it is not our Disputes about the Church â—s Particular which are rather to be mutually forborn and every party left herein to their own Perswasion but a common Agreement in what we can agree and that