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A34178 The Compleat statesman demonstrated in the life, actions, and politicks of that great minister of state, Anthony, Earl of Shaftesbury : containing an account of his descent, his administration of affairs in the time of Oliver Cromwell, his unwearied endeavours to restore His Most Sacred Majesty, his zeal in prosecuting the horrid Popish Plot, several of his learned speeches during his being Ld. Chancellor, his two commitments to the Tower, the most material passages at his tryal, with many more considerable instances unto His Lordships going for Holland. Dunton, John, 1659-1733. 1683 (1683) Wing C5658; ESTC R35656 48,139 160

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the Earl of Arlington and the Lord Clifford were promoted To his happy Councils do both King and Kingdom owe for the happy Conduct of things for divers years so that now he seemed to be incorporate into the heart of his Prince the Events of his Advices were commonly agreeable to what he at first proposed so that it may be said of him as was spoken of Polibius that as Scipio so the King seldom miscarried in any thing that was carried on by his Advice so that at length he seemed to be the Royal Oracle In fine such was the Opinion which his wise Administration had gained that as he sate in one of the highest places in his Masters favour so he was preferred to the highest Trust of Honour in the Kingdom he was made Chancellor of the Exchequer and afterwards Lord High Chancellor of England about the beginning of the Year 1672. Now was the Kings Conscience as it were entrusted to his care and management this was the highest Orb a Subject was capable to move in but with what Sagacity Honour and Integrity he acquitted himself in that great Employment the Transactions of the Court of Chancery at that time can best witness Justice ran in an equal channel the cause of the Rich did not swallow up the Rights of the Poor he that was oppressed found Relief and the Oppressor a Rebuke suitable to his crime the usual delays of that Court were much abated and all the Transactions thereof were managed with the greatest Judgment and Equity As an Instance of his constant adhering to the Interest of his Master and the commune Bonum or Weal of the publick you may take a copy of his Thoughts from that excellent Speech made by him in favour of the Subject in the Exchequer Jan. 24. 1673. at Baron Thurland's taking the Oath a copy whereof follows Mr. Serj. Thurland The King of his Grace and Favour hath made choice of you to be one of the Barons of the Exchequer he designed to place you in a Court of more profit though not of more Dignity but your own Modesty and Virtue hath chosen this Court where you thought you could serve the K. best And I could not omit to mention it here to your Honour it being the greatest Instance of a good man that he had rather be found serviceable than rich His Majesty hath had large proof of your former services besides he takes you upon the credit of that Recommendation that hath justly the best place with him I mean his Royal Brothers Some few things it is fit I should here mention to you and leave with you as Admonitions or rather Remembrances In the first place you are to maintain the Kings Prerogative and let not the Kings Prerogative and the Law be two things with you For the Kings Prerogative is Law and the principal part of it and therefore in maintaining that you maintain the Law The Government of England is so excellently interwoven that every part of the Prerogative hath a broad mixture of the Interest of the Subject the ease and safety of the people being inseparable from the greatness and security of the Crown In the next place let me advise you that you acquaint your self with the Revenue as also with the ancient Records Precedents and Practices of this Court for want of which knowledge I have seen this Court a most excellent Common Pleas when at the same time I could not say so much for it as an Exchequer In the third place let me recommend to you so to manage the Kings Justice and Revenue as the King may have most profit and the Subject least vexation Raking for old Debts the number of Informations Projects upon Concealments I could not find in the 11 years Experience I have had in this Court ever to advantage the Crown but such proceedings have for the most part delivered up the Kings good Subjects into the hands of the worst of Men. There is another thing I have observed in this Court which I shall mind you of which is when the Court hearkens too much to the Clerks and Officers of it and are too apt to send out process when the Money may be raised by other ways more easie to the people I do not say that the Kings Duty should be lost or that the strictest course should not be taken rather than that be but when you consider how much the Officers of this Court and the Undersheriffs get by process upon small summs more than the Kings Duty comes to and upon what sort of people this falls to wit the Farmer Husbandman and Clothier in the Country that is generally the Collector Constable and Tythingman and so disturbs the industrious part of the Nation you will think it fit to make that the last way when no other will serve Give me leave also to mind you of one thing more which is in your Oath That the Kings needs ye shall speed before all other that is the business of the Revennue of the Crown you are to dispatch before all other and not turn your Court into a Court of Common Pleas and let that justle out what you were constituted for In the last place let me conclude with what concerns all my Lords the Judges as well as you let me recommend to you the Port and way of Living suitable to the Dignity of your place and what the King allows you There is not any thing that gains more Reputation and Respect to the Government than that doth and let me tell you Magistrates as well as Merchants are supported by Reputation His particular Application to prevent any misunderstanding between the King and his Parliament is very obvious to any that shall but look into his Speeches to the Parliament during his Chancellorship and with how great concern he still vindicated his Masters Actions He acquitted himself in all the great Emergencies of this High Employment with that universal Applause and satisfaction as seldom happens to men in such an envied station The vilest of his Detractors not being able to fasten any Imputation upon his conduct in those great and weighty Trusts he was advanced to So little of self appeared in his Actions that it may be modestly affirmed of him he made his own Interest strike sail to the publick and his care for others seemed more than for himself and at the time of his highest Elevation he would not neglect the meanest Suitors that applied themselves to him Thus having gradually traced the Advancement of this great Minister to the highest pitch of Honor where he appeared sicut Luna inter Stellas minores I shall now take notice of his Relinquishment of that High Employment and what other contingencies have happened to him since About November 1673. His Majesty was pleased to send for the Lord Chancellor to White-Hall where he resigned the Great Seal of England to His Majesty and was dismist from being under-Under-Treasurer of the Exchequor which place was conferred on
other Discourse with the L. Shaftesbury the said Earl told him that the Duke of Bucks's Mother was descended of the Family of the Plant aginets naming some of the Edwards and that in her Right he should have the Barony of Ross and in her Right had as good a Title to the Crown of England as ever any Stewart had John Macknamara deposed That a little after the Parliament had been dissolved at Oxford the Earl of Shaftesbury said to him That the King was Popishly affected that he took the same methods that his Father before him took which brought his Head to the block and said We will also bring his thither and that the Earl had said the King deserved to be deposed as much as ever King Richard the second did Denis M●…cnamara declared that my Lord Shaftesbury had said The King was a man that ought not to be believed and that ●…e ought to be deposed as well as Richard the second that the Dutchess o●… Mazarine was one of his Cabinet Council that he did nothing but by her Advice Edward Ivey said that the Earl of Shafton soon after the Parliament was dissolved at Oxford speaking against the King said he was an unjust man and unfit to reign that he was a Papist in his heart and would introduce Popery That another time he heard him exclaim against the King and that they designed to depose him and set another in his stead Bernard Dennis deposed that amongst divers other things the Lord Shaftesbury had told him that they intended to have England under a Common-Wealth and no Crown to have no supream head particular Man or King nor owe Obedience to a Crown Lord Chief Justice told the Jury they intended to call no more Witnesses against the Earl of Shaftesbury the Jury being charged only with that Mr. Papillion desired to know what S●…atute the Indictment was grounded upon my Lord Chief Justice said it was contra formam Statut ' which might be understood Statutorum or Statuti so they might go upon all Statutes that might be the form o that Indictment The Jury desired to know whether any of the Witnesses stood indicted or no. To which the Lord Chief Justice answered they were not properly here to examine the credibility of the Witnesses for that would be a matter upon a Tryal before a Petty Jury where the King would be heard to defend the credibility of his Witnesses if any thing were objected against them That they were to see whether the Statute were satisfied in having matter that was Treasonable and witnessed by Two Men who are intended Prima facie credible unless of their own Knowledg they knew any thing to the contrary Mr. Papillion prayed his Lordships Opinion whether his Lordship thought they were within the compass of their own Understandings and Consciences to give Judgment for if they were not left to consider the credibility of the Witnesses they could not satisfie their Consciences To which the Lord Chief Justice replied that they ought to go according to the Evidence unless there were any thing to their own knowledg and that i●… they expected to enter into proofs concerning the credit of the Witnesses it were impossible to do Justice at that rate The Jury withdrew and the Court adjourned till Three a Clock When met the Jury put many questions to the Witnesses of which for brevity I can but take notice of some Mr. Gwin was asked by the Foreman whose writing the Paper was to which he answered he could not tell whether it was in the Closet before he came there he said it was certainly in the closet for there he found it he knew not the particular Paper but all the Papers in the bag were there They asked whether he knew not of a Discourse of an Association in Parliament He said he was not of the last Parliament but had heard an Association talked of Then the Foreman asked Mr. Secretary Jenkins whether he knew not of a Debate in Parliament concerning an Association whether he remembred not that it was read upon occasion of the Bill The Secretary answered that he was not present at the Debate that there was an answer to a Message from the House of Commons had somthing in it which did strongly imply somthing of an Association that he heard such a thing spoke of but was not present at the Reading Being asked the date of the Warrant for my Lord Shaftesbury's commitment he must he said refer himself to the Warrant that he thought it was about the beginning of July Being asked whether all the Witnesses had been examined before the Committee he answered they were and he was present at the Examination Being asked again whether all he said he knew not whether all but he was sure he was at the Examination of several but could not tell how many Then the Jury examined the rest of the Witnesses one by one Booth being asked whether he had easie admittance into my Lords company said he ever went with Capt. Wilkinson and had easie admittance whether Captain Wilkinson were with him every time he said no not every time not this time to divers other questions he answered That he had been in Orders that he had not been indicted for Fellony that he did not directly know any one man of the Fifty beside himself that he never was with my Lord but at his own House that he was never desired to be a Witness against my Lord until he had intimated something of it till he was told of Brownrigg the Yorkshire Attorney concerning somwhat my Lord had said to Irish men he then said he was sure there was somthing as to that purpose to English men that he thought he had no Commission to offer him a Reward that he was not acquainted with Callaghan nor Downing never heard their names nor was in their company that he knew of that he knew not one Mr. Shelden nor Mr. Marriot only had heard of one Marriot that belong'd to the D. of Norfolk but never was in his company nor discoursed with from him but had heard from Baines about Brownrigg about Irish Witnesses Mr. Godfrey asked whether he had never heard of Irish Witnesses sent down by Mr. Marriot to the Isle of Ely Then the L. Ch. Just. said We have given you all the Liberty in the World hoping you would ask pertinent questions but these are trifles he did not expect that any wise men would have asked such questions Then he asked of Mr. Godfrey what it was to the purpose whether Mr. Marriot sent any Irish Witnesses to his Tennant or no. To which the Foreman told his Lordship that he had it under the hand of the Clerk of the Council Mr. Turbervil answered to several questions that he had the Discourse with my Ld. Shaftesbury about the beginning of February and about July 4. communicated it to Mr. Secretary Jenkins The Foreman then asking whether he had met with no body about the beginning of July
to the Tryal of the said Earl and shall therefore now hasten to the Meeting of the Parliament at Oxford where Business of as high nature was agitated as ever came before the consideration of a Parliament no less than the preservation of the King's Majesty the Protestant Religion and the good people of England all which were now as much as ever Invaded by the Bloody Designs of the Papists This Parliament met the 21th of March 1681. in the Convocation-House at Oxford The House of Lords Sare in the Geometry School where was a Throne and State Erected for His Majesty in which His Majesty being Seated in His Royal Robes declared himself to both Houses to the Effect following That the unwarrantable Proceedings of the last House of Commons were the reason of his parting with them for that he who would never use Arbitrary Government himself would not suffer it in Others That whoever calmly considered the Assurances he had renewed to that last Parliament and what he had Recommended to them His Forein Alliances the Examination of the Plot and the Preservation of Tangier and reflect upon their unsuitable Returns might rather wonder at his Patience than that he grew weary of their Proceedings that it was his Interest and should be his Cause as much as Theirs to Preserve the Liberty of the Subject the Crown not being safe when that is in danger That by Calling this Parliament so soon he let them see that no Irregularities of Parliament should make him out of love with them by which means he gave them another opportunity to provide for the Publick Security and had given one Evidence more that he had not neglected his part That he hoped the ill Success of former Heats would dispose them to a better Temper That as for the further prosecution of the Plot Trial of the Lords c. he omitted to press them as being obvious to consideration and so necessary for the Publick Safety But desired them not to lay so much weight upon any One Expedient against Popery as to determine that all other were ineffectual That what he had so often declared touching the Succession he should not recede from But that to remove all reasonable fears that might arise touching the possibility of a ` Popish Successor if means could be found out that in such a case the Administration should remain in Protestant hands he should be ready to hearken to any such Expedient by which Religion might be secured and Monarchy not destroyed Lastly He advised them to make the known and Establisht Laws of the Land the Rule and Measure of their Votes The 22th the Commons having chosen their Speaker presented him to His Majesty in the Lords House Little beside was done until the 25. when the House considered an Act for Repeal of the Act 35 Eliz. which had passed both Houses in the last Parliament but had not been tendered to His Majesty for his Royal Assent A conference was desired with the Lords as to matters relating to the constitution of Parliaments in passing of Bills Another Message was ordered to be sent to the Lords to put them in mind that the Commons had form●…ly by their Speaker demanded Judgment of High Treason at their Bar against the Earl of Danby and therefore to desire their Lordships to appoint a day to give Judgment against him the said Earl upon the said Impeachment The same day the Examination of Edward Fitz-Harris relating to the popish Plot was read in the House upon which the said Examination was ordered to be Printed the said Fitz-Harris to be impeached at the Lords Bar and a Committee appointed to draw up Articles against him But the House of Lords rejected the Impeachment of Mr. Fitz-Harris whereby a stop was put to their proceedings And on the 28th in the morning the Commons were sent for to the House of Lords where His Majesty told them That their Beginnings had been such that he could expect no good success of this Parliament and therefore His Majesty thought fit to dissolve them And my Lord Chancellor having declared them dissolved His Majesty came the same night to White-Hall I must beg the Readers pardon if he think I have in this Relation deviated from my Theam which was the Earl of Shafton but nothing of a popish Plot hath been yet brought upon the stage wherein he hath not been level'd at he certainly knowing how destructive the Interest of the Papists is to the Government and People of England hath set himself to the hazard of his Life and Family to oppose them The next thing that appeared on the Booksellers stalls was a paper with this Title The Protestation of the Lords Upon rejecting the Impeachment of Mr. Fitz-Harris giving for Reasons why it was the undoubted Right of the Commons so to do because great Offences that influence the Parliament were most effectually determined in Parliament nor could the complaint be determined any where else For that if the party should be indicted in the Kings-Bench or any other inferiour Court for the same offence yet it were not the same suit an Impeachment being at the suit of the People but an Indictment at the suit of the King Besides that they conceived it to be a denial of Justice in regard that the House of Peers as to Impeachments proceeding by vertue of their Judicial not their Legislative Power could not deny any suitor but more especially the Commons of England no more than the Courts of Westminster or any other inferiour Courts could legally deny any suit or criminal cause regularly brought before them Signed according to the Printed Copy by the following Peers Monmouth Kent Huntingdon Bedford Salisbury Clare Stamford Sunderland Essex Shaftesbury Maclefield Mordant Wharton Paget Grey of Wark Herbert of Cherbury Cornwallis Lovelace Crew Finding the Earl of Shaftesburys Name amongst the other Noble Peers and Patriots I thought it not improper to insert the copy in this place it being the last Act of that great Man upon the publick stage For since that time he hath rather been passive as will further appear by the remaining Discourse We shall only remember that at his return from Oxford the Earl left a massy piece of Plate as a Gift to Baliol Colledg as also did that Heroick Prince James Duke of Monmouth which will be to posterity a Testimony of their Magnificence and Bounty And now to return to what remains for the finishing this Tragical story I shall mention only what is already printed either in Captain Wilkinson's Information Colledg's Trial or else is matter of Fact or set forth in the Trial of this great Peer himself Only I cannot omit that on the 15th of Aug. 1681. Mrs. Fitz-Harris gave a deposition upon Oath that her Husband a little before his Execution not only told her what great offers he had made him if he would at first have charged that Infamous and Treasonable Libel for which he was after executed on this worthy Peer
timely prevented that there is no hurt done yet the very Design if it be but uttered and spoken and any waies signified by any Discourse that this was made Treason by this Act. Formerly it was said and said truly That words alone were not Treason but that since this Act words that import any Malicious Design against the King's Life or Government any Traiterous Intention in the Party such words are Treason now within this Act. Then as to the Indictments that were to be brought before them he advised them to consider 1. Whether the matter contained in them and which were to be given in Evidence were matter of Treason within the former or the latter Act of Parliament and if they doubted they were to enquire of the Court and they should be directed as to matter of Law And they were to examine whether the matters Evidenced to them were Testified by two Witnesses for without two Witnesses no man could be Impeached within those Laws If one man should swear to words that import●… 〈◊〉 〈◊〉 〈◊〉 D●…sign or Intention 〈◊〉 〈◊〉 〈◊〉 time and in one place and another Testifie to Traiterous words spoken at another time and another place that these were two good Witnesses which had been solemnly resolved by all the Judges of England upon a solemn occasion 2. That they were to enquire whether upon what Evidence should be given them there should be any reason or ground for the King to call the persons to account if there were probable ground it was as much as they were to enquire into He urged pretty much to this purpose and then told them Compassion or Pity was neither their Province nor his that there was no room for that in Enquiries of such a nature that it was reserved to a Higher and Superiour Power from whence theirs was derived Therefore he required them to consider such Evidence 〈◊〉 should be given them and prayed God to direct them in their Enquiry that Justice might take place Then a Bill of High ●…son reason was offer'd against the E. of ●…esbury and Sir Francis Withc●… moved that the Evidence might be heard in Court Then the Lord Chief Justice told the Jury that the King's Council desired and they could not deny it that the Evidence might be publickly given and prayed them to take their places and hear the Evidence that should be given The Jury desired a Copy of their Oath which the Court granted and then withdrew after some time they returned and then the Clerk called them by their Names Then the Foreman gave the L. C. J. an account that it was the Opinion of the Jury that they ought to Examine the Witnesses in private and it hath been the constant practice of our Predecessors to do it and they insisted upon it as their Right to Examine in private because they were bound to keep the K's Secrets which could not be done if the Examination were in Court Whereupon the L. C. J. told 'em that perhaps some late usage had brought them into that Errour that it was their Right that the Witnesses were alwaies sworn in Court and surely he said Evidence was alwaies given in Court formerly That it was for their advantage as well as the King 's that nothing might be done clandestinly that by their keeping Counsel was meant keeping secret their own private Debates To which the Foreman replied That he begg'd his Lordships pardon if he were in a mistake The Jury apprehend they were bound by the very words of their Oath to Examine in private for it says They shall keep the King 's Secrets and their own Counsels That there could be no Secret in publick Then Mr. Papillion spoke to this purpose That they had heard that what had been the Custom of England had been the Law of England and if it had been the Antient Usage and Custom of England that had never been altered from time to time Divers other Arguments were used on both sides but at last the Court denied a private Examination then the Foreman told the Court that the Jury desired it might be Recorded that they had insisted upon it as their Right but if the Court over-ruled it they must submit This was likewise refused by the Court. Then Sheriff Pilkington desired that the Witnesses might be put out of Court and called in one by one but he was refused it and told it was not his Duty And Mr. Attorney General said he appeared against the King However it was afterward granted to the Jury Then was Read the Indictment against Anthony Earl of Shaftesbury for High Treason against His Majesty which being too long here to insert we are forced to omit The Jury desired a ●…ist of the Witnesses Names but they were told they would have them Endorsed on the back of the Indictment when that was delivered to them Then the Foreman acquainted the Court that the Jury desired a Copy of the Warrant by which the Earl of Shaftesbury was Committed because there might several Questions depend upon it But my Lord Chief Justice answered That was not in the power of the Court to grant for that it was in the hands of the Lieutenant of the Tower which he kept for his Indemnity and they could not demand it of him upon any terms Then Mr. Papillion moved that they might hear what the Witnesses had to give in Evidence one by one and that after the Jury might withdraw to consider what proper Questions to ask them and after might come down again which the Court granted Then all the Witnesses were ordered to go out of the Court and to be called in one by one This done Will. Blith●… Esq was produced and a Paper delivered in Mr. Blithwayt gave account that that Paper was put into his hands by Mr. Gwin Clerk of the Council who had seized it amongst others in my Lord Shaftesbury's house and that he had took that and others out of a Velvet Bagg which Mr. Gwin had lockt up in the great Trunk Then Mr. Gwin testified that he had the great Hair Trunk in my Lord Shaftesbury's house when he was sent there to search for Papers by Order of the Council the second of July my Lord as soon as he came there delivered him the Keys and said He would seal them up with his own Seal but afterwards sent Mr. Gwin word if he pleased he might put his own Seal that he had taken a note how he had parted several parcels of Papers that there were several sorts of them in the great Hair Trunk and there was a Velvet Bag into which he had put some Papers that were loose in my Lord's Closet above Stairs that he had put his Seal upon the Trunk and being sent another way had put it into the Custody of Mr. Blithwait The Lord Chief Justice asked Mr. Gwin whether all the Papers in the Velvet Bag were in my L. Shaftesbury's Closet and whether there was nothing in that Bag but what he had taken in
Si●… John Duncomb In the Afternoon of the same day the Earl of Shaftesbury was visited by Prince Rupert with divers other great Lords at Exeter House where they gave his Lordship Thanks for his Faithful and Honourable Discharge of that great Employment Thus this mighty Minister who had to the universal satisfaction of all good Men been raised to that degree of Interest in his Masters favour without a murmur laid all his Honours at his Masters Feet and was observed not to abate of the chearfulness of his Temper upon the loss of his honorary Employment I shall conclude this part with a touch of this Earl's Character which saith His choice Sagacity Strait solv'd the Knot that subtle Lawyers tied And through all Foggs discern'd th' oppressed side Banish'd delays so this noble Peer Became a Star of Honor in our Sphere A needful Atlas of our State c. The 16th of Feb. 1676. The Honourable Earl of Shaftesbury was sent a Prisoner to the Tower by Order of the House of Lords There were at the same time committed the E. of Salisbury and the L. Wharton The Form of the Warrant for their Commitment was as followeth Ordered by the Lords Spiritual and Temporal in Parliament Assembled That the Constable of His Majesties Tower of London His Deputy or Deputies shall receive the Bodies of James Earl of Salisbury Anthony Earl of Shaftesbury and Philip Lord Wharton Members of this House and keep them in safe Custody within the said Tower during His Majesties pleasure and the pleasure of this House for their High Contempts Committed against this House And this shall be sufficient Warrant on that behalf To the Constable of the Tower J. Browne Cler. Par. The 27th and 29th of Jan. 1677. The E. of Shaftesbury was brought to the King's-Bench-Bar upon the Return of an Alias Habeas Corpus directed to the Constable of the Tower where the Council for the Earl prayed that the Return might be filed and the Friday following appointed for Debating the sufficiency of the Return and my Lord was remanded until that day On Friday the Earl was brought into Court again and his Council argued the Insufficiency of the Return After Mr. Williams Mr. Wallop Mr. Smith had shewed divers weighty Reasons in behalf of the Earl that that Court might relieve him they were opposed by the Solicitor General and the Attorney General who brought divers Instances why that Court could not discharge a person Committed by Parliament whereupon the Earl of Shaftesbury is said to have spoke to this purpose My Lords I did not intend to have spoken one word in this business but something hath been objected and laid to my Charge by the King's Council Mr. Attorney and Mr. Solicitor that enforceth me to say something for your better satisfaction They have told you that my Council in their Arguments said That this Court was greater than the House of Peers which I dare to Appeal to your Lordships and the whole Court that it was never spoken by them I am sure it was not by any direction of mine What is done by my Council and by me is that this is the most proper Court to resort unto where the Liberty of the Subject is concerned The Lord's House is the Supream House of Judicature in the Kingdom but yet there is a Jurisdiction that the Lord's House does not meddle with The King's Council hath mentioned as a wonder that a Member of the Lord's House should come hither to diminish the Jurisdiction of the Lords I acknowledge them to be Superiour to this or any other Court to whom all Appeals and Writs of Errour are brought and yet there are Jurisdictions that they do not Challenge and which are not natural to them or proper for them They claim not to meddle in Original Causes and so I might mention in other things and I do not think it a kindness to any Power or Body of Men to give them some Power that is not natural or proper to their Constitutions I do not think it a kindness to the Lords to make them Absolute and above the Law for so I humbly conceive this must do if it be adjudged that they by a General Warrant or without any particular Cause Assigned do Commit me or any other man to a perpetual and indefinite Imprisonment And my Lords I am not so inconsiderable a person but what you do in my Case must be Law for every man in England Mr. Attorney is pleased to say I am a Member of the Lord's House and to lay weight on the word Member It is true I am one of them and no man hath a greater Reverence or Esteem for the Lords than my self but my Lords I hope my being a Peer or a Member of either House shall not lose my Priviledge of being an English man or make me to have less Title to Magna Charta or the other Laws of English Liberty My Opinion is not with one of my Council who argued very learnedly that the Passing an Act by the King 's Royal Assent can make a Session because the usual promise was not in it It was without any Instruction of mine to mention that point The King's Council tells your Lordships of the Laws and Customs of Parliament and if this were so I should submit but this Case of mine is primae Impressionis and is a new way such as neither Mr. Attorney nor Mr. Solicitor can shew any President of and I have no other Remedy or place to Apply to than the way I take Mr. Attorney confesseth that the King's pleasure may Release me without the Lords If so this Court is Coram Rege this Court is the proper place to determine the King's pleasure This Court will and ought to Judge of an Act of Parliament void if it be against Magna Charta much more may Judge an Order of the House that is put in Execution to deprive any Subject of his Liberty And if this Order or Commitment be a Judgment as the King's Council affirms then it is out of the Lords hands and properly before your Lordships as much as the Acts which were lately Passed which I presume you will not refuse to Judge of notwithstanding that the King's Atorney General saith this Parliament is still in being I take it something ill that Mr. Attorney tells me I might have Applied elsewhere My Lord I have not omitted what became my Duty toward the King for besides the Oath of Allegiance I took as a Peer or an English man there is something in my Breast that will never suffer me to depart from the Duty and Respect that I owe him but I am here before him he is alwaies supposed to be here present and he alloweth his Subjects the Law My Lord They speak much of the Custom of Parliament but I do affirm there is no Custom of Parliament that ever their Members were put out of their own Power and the Inconveniencies of it will be endless Mr.