Selected quad for the lemma: duty_n
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A55052
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An impartial account of the state of New England, or, The late government there, vindicated in answer to the Declaration which the faction set forth when they overturned that government : with a relation of the horrible usage they treated the governour with , and his Council, and all that had His Majesty's commission : in a letter to the clergy there / by John Palmer.
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Palmer, John, 1650-1700?
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1690
(1690)
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Wing P246; ESTC R37740
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24,245
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41
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6. Who are meant by abject Persons from New York wants an Explanation for none of the Gentlemen that came from thence now in any Authority but are well known to have liv'd there for a long time in Esteem and Reputation enough to merit a better Epethite of all good and honest Men and I believe it will one day appear that their Faithful discharge of their Duties their constancy and steadiness to the Church and Laws of England and unshaken Loyalty and Fidelity to the Crown was their greatest Crime I am not well acquainted what Fees were taken but this I know that a Committee of the Council were appointed to make a settlement of Fees for all Officers throughout the Government which was effected approved of and sent to England and if any one have exceeded those Limits they deserve to be called to account but it ought to be in a due course of Law For the personal miscarriages of a Ministerial Officer are no sufficient Warrant for an Insurrection neither ought the whole Government to be Subverted because Tom or Harry are ill Men. The Authority can but provide good and wholsome Laws for the punishment of Evil doers and cause those Laws to be put in execution against Offenders But if any one doth me a personal wrong for which I have a Remedy by Law and I will not take it I ought not to quarrel with the Government for 't is my own Fault and I might have redress if I would Personal Crimes must be censured Personally and a Government ought no more to be scandalized and aspersed because an Extortioner is in it than because there is a Felon or a Traitor 7. I need not tell you that the Statute Laws of England are Printed at large and that many Abridgments of them are so likewise and easie enough to be procured neither can it be but very well known that all the Acts of the Governour and Council were solemnly published with Sound of Trumpet as soon as made and Authentick Copies afterwards transmitted to the Clerks of each respective County throughout the Territory Why then it should be said that it was impossible to know the Laws I see no reason unless by it is meant the Common Law and if so you may as well quarrel because every common Person doth not understand Euclid or Aristotle for the knowledge of the Law cannot be attained without great Industry Study and Experience and every Capacity is not fitted for such an Undertaking Ex quovis Ligno non fit Mercurius If this was a Grievance What a miserable condition are they in now that instead of not knowing the Law there is no Law for them to know 8. What rash or indiscreet Expressions may fall from any single Person of the Council either in his private or politick Capacity I will not undertake to justifie all Men are not endued with qualifications alike every one in that Station ought to give his Opinion as he himself understands the Matter and if any one have unadvisedly uttered Words so disagreeable I know no Body injur'd by it neither can the Government be justly censur'd for it 9. That the Privileges of Magna Charta and other Liberties of English-men were denied them is a thing which can never be made appear however admitting it I have sufficiciently discuss'd that Point in the Third Article By the Persons said to be severely Fined for peaceably objecting against raising of Taxes without an Assembly I conjecture are meant the Ipswich-men who were so far from a peaceable objecting that they assembled themselves in a riotous manner and by an Instrument conceived in Writing did Associate and oblige themselves to stand by each other in opposition to the Government and by their Example influenced their Neighbours to do the like And this by the Law is esteemed an Offence of that Nature that it is next door to Rebellion for which they were Indicted Tryed and Convicted either by Verdict or their own Confession 10. I cannot justifie that Sheriffs who doth either pick or pack a Jury 't is both repugnant tothe Law and his Oath and he deserves no favour that can be Guilty of such a Crime but let him first be known and the thing proved for I do not remember any one that hath been Convicted nor so much as accused for such an Offence Judgments upon Demurers and Defaults are so practicable and warrantable by the Law that nothing can excuse the enumerating them amongst the Grievances in the Declaration but the Pen-man's want of Knowledge in that Profession 'T is a Maxime Volenti non fit injuria and when both Plantiff and Defendant do by a joynt consent submit to the determination of the Court or by their own negligence make default Who hath the wrong Where is the Injury This hath been a practico so frequently used in your former Government though under another Name that no body can be ignorant of it 11. That any one hath been Imprisoned without being charged with Crime or Misdemeanour is an Allegation which I dare be bold to say can never be proved I have heard indeed an Habeas Corpus demanded upon the Statute of the 31. C. 2. was denied in Major Appleton's Case who was one of the Ipswich-men before-mentioned but let any considering Man peruse the Act and I believe he will be easily convinced that it is particularly limitted to the Kingdom of England besides he was committed only because he would not find Sureties for the good Behaviour and the question was not whether he should be Bailed for upon finding the said Sureties he must have been discharged of course so that it was not the want of an Habeas Corpus detain'd him in Prison but his own wilful and obstinate Humour if they do but consider well how many Gentlemen lie now in stinking Goals and close Prisons without either Mittimus or Crime laid to their charge and without the allowance of an Habeas Corpus although demanded I am sure they cannot but blush when they read that part of the Declaration 12. That Jurymen were fined and imprisoned for refusing to lay their hands to the Book I presume is a mistake probably they may have been fined for their contempt and sent to Prison for not paying that Fine which by the Law may be Justified for evrey Court may fine any man for a contempt in open Court and they themselves are Judges of the Contempt Whether it be a forcing of Conscience or not I shall leave to Casuists but I am very well satisfied it is not comprehended within the late Indulgence Yet admit it were the Judges are sworn to do their Duties in their Offices according to the Laws of the Land Prescription is a good and sufficient Law the form of laying the Hand upon the Book hath been the only modus of Swearing time out of mind therefore the laying the Hand on the Book in Swearing is a good Law and the Judges cannot dispence with it Salvo Sacramento
Magistrates have for several Weeks declared their Opinion and voted to lay themselves at His Majesty's Feet by an humble submission and resignation of themselves to his Majesty's pleasure not being willing to contend with his Majesty in a course of Law but by the next opportunity to dispatch their Agents fully impowered to make their Submission according to his Majesty's said Declaration but by no means can at present obtain the consent of the Depuries whereby to make it an Act of the Corporation and therefore have agreed with them to a power of Attorneyship to save a Default in hopes that further time will prevail to dispatch their Agents accordingly and shall earnestly endeavour to give the People a better understanding before the next Ship Sail from hence His Majesty by this finding that all the easie means he had used could not bring them to any answer for the Crimes and Misdemeanors laid to their charge nor produce any thing else but baffles and delays gave Order to his Attorney-General to sue out a Writ of Scire Facias from the High Court of Chancery against the Governour and Company which was accordingly done directed to the Sheriffs of London c. and made returnable in Easter-Term in the 36th Year of His Majesty's Reign wherein they were required to make known to the said Governour and Company at London That they appear in His Majesty's High Court of Chancery at Westminster on the Day of the return thereof to shew cause wherefore the said Charter for the Reasons in the said Writ of Scire Facias mentioned and contained should not be made void null and cancell'd and the Liberties and Privileges thereby granted to the said Governour and Company be Seized into the King's Hands upon which Writ the said Governour and Company not appearing another Writ of Scire Facias of the same Tenor issued forth returnable in Trinity-Term then next following when the said Governour and Company appeared by their constituted Attorney and Council but refused to Plead to the said Writ only moved for time to send to New England which not being agreeable with the Rules and Practice of the Court in such Cases could not be allowed but in Favour to them a Rule was made That unless they Pleaded by the first day of the then next Michaelmas-Term Judgment should be entered by Default And in that Term for default of Pleading Judgment was entered on His Majesty's behalf and the said Charter adjudged to be void null and cancell'd and that the Liberties and Privileges of the said Governour and Company be Seiz'd into the King's Hands which was accordingly done by the Exemplification of the said Judgment in the Reign of K. James the Second and by His Majesty's Commission to a President and Council to take the Government of this Countrey All which Proceedings are most just and legal according to the Rules and Practice of the Law of England and agreeable with many Precedents of the like Nature both ancient and modern Besides all Companies Corporations or Bodies Politick made or granted by Letters Patents or Charter from His Majesty for any part or places beyond the Seas are by themselves or Agents to be alwaies ready to answer His Majesty in any of his Courts at Westminster when he shall think fit to order any Suit or Writ to be Sued or Prosecuted against them and are supposed to be resident in or about London or Westminster for that purpose as the East-India Royal African Bermoodos and Hudsons-bay Companys are who have their Trade Factories Collonys and Plantations abroad in Asia Africa and America And in the like state or condition were the Company or Corporation of Massathusets-Bay in New England to be according to the Capacities given them by their Incorporation of Suing and being Sued Pleading and being Impleaded as appears by the Dogget-Book of the Council when the Charter was first Granted wherein if they have neglected their Duty as well as exceeded their Powers and Privileges granted and would not put themselves into a condition to be heard when they ought and might it is not His Majesty nor the proceedings of His Courts that are to be blamed but themselves 3. That there was a Commission sent to the President and the successive one to Sir Edmond Andros are both true but that they were Illegal is a Position too confidently asserted by the Pen-man who seems to be more a Clergyman than a Lawyer but because the well clearing up of this point will be of great service to the subsequent Discourse 't will not be amiss that it be throughly considered I shall therefore lay down this as a certain Maxime both consonant to Reason and the Laws of the Land That those Kingdoms Principalities and Collonies which are of the Dominion of the Crown of England and not of Empire of the King of England are subject to such Laws Ordinances and Forms of Government as the Crown shall think fit to establish New England and all the Plantations are subject to the Dominion of the Crown of England and not to the Empire of the King of England Therefore the Crown of England may Rule and Govern them in such manner as it shall think most fit For the proof of which I shall instance Wales which was once a Kingdom or Territory govern'd by its own Laws but when it became of the Dominion of the Crown of England either by Submission or Conquest it became subject also to such Laws as King Edward the First to whom they submitted thought fit to impose as may plainly appear in the Preamble of the Statute of Rutland Leges consuetudines partium illarum hactenus usitatas coram Nobis preceribus Regni nostri fecimus recitari quibus diligenter auditis plenius intellectis quasdam illarum de consilio Procerum predictorum delevimus quasdam permissimus quasdam correximus etiam quasdam alias adjiciendas faciendas decrevinis eas de caetero in terris nostris in partibus illis perpetua firmitate teneri observari volumus in forma subscripta We have caused the Laws and Customs of those parts hitherto used to be recited before Us and the Peers of Our Realm which being diligently heard and more fully understood some of them by the Advice of Our Peers aforesaid We have obliterated some We have allowed and some We have corrected And have also Deereed That some others shall be made and We will that for the future they be holden and observed in Our Lands in those parts with perpetual Firmness in manner hereinafter expressed Then follow the Ordinances appointing Writs original and judicial in many things varying from those of England and a particular manner of proceeding And again in the close of the same Statute Et ideo vobis Mandamus quod praemissa de caetero in omnibus observetis ita tantum quod quotiescunque quandocunque ubicunque Nobis placuerit possimus praedicta Statuta earum partes singulas