the King strove to please the People and they were willing to gratifie him by conniving at his Faults But besides all this the Law of Nature is to be considered and this Law cannot be extinguished by any other Laws whatsoever And this I never heard any man deny The Law of Nature commands Self-preservation and then I would ask whether I am to obey him that will destroy me If we shall have a Prince that plainly declares either by his Words or Actions that he will change our Government and Religion or that he will give us up to a Foreigner or else that he will govern by a standing Army and take away our Properties must I obey him must I not endeavour to rescue my Self and Country from Ruine for in the Saxons time Treason did not relate to any thing but the Government and the general Concern of the Nation and not to the single Person of the King and now though it be Treason to kill the King yet it is only in order to the Publick Good and therefore with the Saxons all Indictments against Legience concluded Feloniae Proditoriae but against the Person of the King only Feloniae But in our days we find things are crept in that is difficult to tell how or when they came in And you shall find in all our ancient Laws that whatever was decreed or enacted was for the Common Good and the King was not concerned otherwise than so far as related to the Common-wealth though I know in our days another Opinion is asserted which I am sure cannot be maintained That all things must give place to the King 's particular Interest For my own part I will obey the King but I think my Obedience is obliged no further than what he commands is for the Common Good Our Government ever since the Conquest has proceeded upon the Saxon Principles and they were grounded upon Self-preservation which I do not find to be repeated by any Act of Parliament for all our Lawyers do agree That it is Treason to subvert the Government and if so without doubt our Allegiance the Laws of God and of Nature command us to defend them I will detain you no longer but only to consider this one thing Whenever we have a Popish King we must expect an alteration at least in our Religion for though he take all the Oaths and Declarations that can be devised yet it ever stands in the way to oppose the Interest of Rome they must all give place and it is meritorious to break those Engagements for that purpose or at worst hand be certainly pardoned if he presume to do it without a Dispensation and it is no more in his power to preserve our Religion than it is for him to work an Impossibility And therefore whether it is better to oppose a Popish Successor seeing we have the practice of our Forefathers to justifie us in it and besides he cannot if he would defend us or else to suffer him to rest in the Throne to destroy all we have and bring in a Religion that will damn Millions of Souls from Generation to Generation And if we may not defend our Religion then we must absolutely depend upon Providence in every thing and not put out our Hand to help our selves up when we are fallen into a Ditch This is the Case and here is an end of all Human Policy but without doubt it is our Duty to do our Endeavours and leave the Success to God Almighty and his Will be done THE CASE OF WILLIAM EARL Of Devonshire ON Sunday the 24th of April 1687. the said Earl meeting on Collonel Culpepper in the Drawing Room in White-hall who had formerly affronted the said Earl in the said King's Palace for which he had not received any satisfaction he spake to the said Collonel to go with him into the next Room who went with him accordingly and when they were there the said Earl required of him to go down Stairs that he might have Satisfaction for the Affront done him as aforesaid which the Collonel refusing to do the said Earl struck him with his Stick as is suppos'd This being made known to the King the said Earl was required by the-Lord Chief Justice Wright by Warrant to appear before him with Sureties accordingly April 27. he did appear and gave Bail in 30000 l. to appear the next day at the King's Bench himself in 10000 l. and his four Suretles in 5000 l. a piece who were the Duke of Somerset Lord Clifford the Earl of Burlington's Son Lord De-la-mere and Tho. Wharton Esq eldest Son to Lord Wharton The Earl appeared accordingly next morning and then the Court told him that his Appearance was recorded and so he had Leave to de part for that time but upon the sixth of May he appear'd there again and being then requir'd to plead to an Information of Misdemeanour for striking the said Collonel in the King's Palace he insisted upon his Priviledge That as he was a Peer of England he could not be tryed for any Misdemeanour during the Priviledge of Parliament and it being then within time of Priviledge he refused to plead the Court took time to consider of it till Monday which was the last day of the Term and the Earl then appeared and delivered in his former Plea in Parchment the Judgment given by the House of Lords in the Case of the Earl of Arundale 3 Car. was urged on the behalf of the Earl viz. That no Lord of Parliament the Parliament then sitting or within the usual times of priviledge of Parliament is to be imprison'd or restrain'd without sentence or order of the House unless it be for Treason or Felony or for refusing to give Surety for the Peace And also that the like Priviledge was about two years before allow'd in the Case of my Lord Lovelace The Court over-rul'd the Earl's Plea and requir'd him to plead to the Information the first day of the next Term and to be a Plea as of this Term and so he had Leave to depart but his Sureties were not called for to see if they would continue as his Bail The next Term he appeared and pleaded guilty to the Information and so the last day of the Term the Court did award That he should pay a Fine of 30000 l. be committed to the King's Bench till it be paid and to find Sureties for the Peace for a year To all which Proceeding and Judgment three notorious Errors may be assign'd I. The over-ruling of the Earl's plea of Priviledge II. The Excessiveness of the Fine III. The Commitment till it be paid 1. The over-ruling the Earl's plea of Priviledge is a thing of that vast consequence that it requires a great deal of time to comprehend it aright and is of so great an extent that more may be said of it than any one man can say The Judgment seems to be very unnatural because an inferiour Court has taken upon it to reverse a Judgment
my thoughts what is to be done In the first place I do propose that every Man of them shall on their knees confess their fault to all the Commons and that to be done at this Bar one by one Next That as far as they are able that they refund all the Money they have received for secret Service Our Law will not allow a Thief to keep what he has got by stealth but of course orders restitution and shall these proud Robbers of the Nation not restore their ill gotten goods And lastly I do propose that they be Voted incapable of serving in Parliament for the future or of injoying any Office Civil or Military and order a Bill to be brought in to that purpose For it 's not fit that they who were so false and unjust in that Trust should ever be trusted again This Sir is my Opinion but if the House shall incline to any other way I shall readily comply provided a sufficient mark of Infamy be set on them that the People may know who bought and Sold them A SPEECH For the Sitting of PARLIAMENTS And against FAVOURITES A King of England at the head of his Parliament is in his full strength and power and in his greatest Splendor and Glory It is then that he can do great things and without a Parliament he is not very formidable Therefore when Kings leave off the use of Parliaments and rely upon the Advice of particular Favourites they forsake their chiefest Interest they lay aside the Staff that supports them to lean upon a broken Reed that will run into their hands and this is proved by the Example of former Kings What Kings perform'd such Enterprizes and did such wonderful things as those who still consulted their Parliaments And who had more the Command of the Peoples Purses than those Kings who met the Natives frequently in Parliament As Witness Hen. I. Edw. I. Edw. III. Hen. V. Hen. VIII Q. Eliz. and what Kings were so mean and obscure despised by their Neighbours and abhorr'd by their Subjects as those who left off the use of Parliaments and doted upon their Favourites As witness Will. II. King John Henry III. Edward II. Richard II. Henry VI. And I think it 's undeniable that when the King leaves off Parliaments he forsakes his Interest he refuses the good and chooses the bad I wish it could not be said that for two years last past the use of Parliaments has almost been laid aside It 's too true that Parliaments have been delayed and there is but a little between delaying and denying and the first step to a denyal is to delay Every Man knows the great need we have had of a Parliament these Seventeenth Months and why has it not met till now It 's very well known how earnestly it was desired by all good Protestants and true Englishmen and what applications have been made to His Majestie that it might sit and it could not be obtain'd till now And it is not to be forgotten how often it has been Prorogued and the Notice that has been given to the Nation of the several Prorogations the first time that we heard of them was by the Gazett in which is seldom any thing of truth and then out comes a Proclamation for a Prorogation about a day or two before the day of meeting When Gentlemen have disposed their Affairs that they may attend at the Parliament and possibly were on their Journey towards London upon the Road they meet the News of the Prorogation very good usage and there is nothing to be said in Justification of such short Notice but that when His Majesty by His Proclamation had appointed a farther time for the meeting of the Parliament that in plain English no Man must believe it would meet For if Gentlemen did believe it they would prepare for it and if they are prepared it 's but reasonable that sufficient Notice should be given to prevent them Certainly they who advised the King in this matter intended that none of His Majesties Proclamations should have any credit For His Majesty he put out several Proclamations against the Papists and we see how they are regarded not the least obedience yielded to them And this giving of such short notice was certainly done on purpose that those Proclamations should neither be obeyed nor believed Thus is the K. abused thus does he loose the hearts of his People and thus is the Nation abused What will become of us when we cannot believe what His Majesty says Out of Parliament the King cannot speak to his People in a more notable way than by Proclamation and as the matter is order'd these are not regarded In a Subject nothing is more Infamous than to say of him that his word is not to be relyed on he does not regard what he says And therefore what Villains are they who by their Advice do bring the King but into the suspition of it This delaving of Parliaments seems to portend the laying of Parliaments aside and if so an Army will follow for the King must govern either by a Parliament or an Army for one of them he must have now the way to get rid of Parliaments is this First Although they meet sometimes yet something must be started to hinder their success or if that wont do Prorogue or Dissolve them before any thing be finisht and thus Parliaments will be made useless and this being done it will not be long before they become burdensome and then away with them for good and all Kings only then grow out of conceit with Parliaments when their Favourites are so overgrown and their Actions are so exorbitant that they will not indure to be scann'd by a Parliament And therefore to save themselves they perswade the King to keep off the Parliament though it be to his great hurt For the last Trump at the Day of Judgment will not be more terrible to the World than the sound of an approaching Parliament is to unjust Ministers and Favourites That State is sick of a grievous Distemper when Kings neglect their Parliaments and adhere to Favourites and certainly that woe is then fallen upon that Nation which Solomon denounces for says he woe to that Nation whose King is a Child And without question he meant a Child in Understanding and not in Years We have had in England Kings who when they were Children by the help of a wise Council have govern'd very well But after that they took matters into their own hands it went very ill with England as Richard II. Henry VI. who whilest they were Children the Government was steer'd aright but their understanding not growing as fast as their Years they assumed the Government before they were ready for it and so managed matters that it 's better not to name them than to reckon them in the Catalogue of the Kings And there is yet another reason why great Favourites should advise against Parliaments Kings that dote too much upon
given in a superiour of which no such President is to be found in regular times scarcely in the most confused and disorderly 2. Because it is in Case of Priviledge which is the most tender part of every Court for if the Rights and Priviledges of any Court are made light of the Court itself will soon come to nothing because they are as it were the most effential part of it if not the very Essence of the Court for what signifies a Court if its Orders cannot be executed It is better that a Court were not than that its Priviledges should not be duly observ'd for without that it becomes a Snare and Mischief to the People rather than an Advantage 3. Because by this they have set the Feet above the Head for as they have by this declared themselves to be superior to the Lords so it will naturally follow that a Quarter-sessions may reverse their Orders or suspend their Priviledges and a more inferiour Court shall supersede what the Quarter-sessions does And thus it must go on till the course of Nature is inverted 4. Because they may as well deny a Lord or over-rule any other Priviledge as well as this and so consequently when the House of Lords is not actually sitting every Peer must be beholden to the Judges for every Priviledge that he enjoys 5. If this Judgment be according to Law then may the King's Bench try a Peer for Misdemeanor at the very time when the House of Lords is sitting and consequently the House must want a Member if the King's Bench sees it good to have it so and what a confusion would it make and the consequence of it would be is easily discern'd the want of one Member makes that House think itself to be lame as was seen in the Case of the Earl of Arundale 3 Car. How many Petitions did the Lords make and how many Messages passed to and fro between the King and them who would not proceed to any business till he was restored to his place in that House for they told the King That no Lord of Parliament the Parliament sitting or within the usual times of priviledge of Parliament is to be imprison'd or restrain'd without Sentence or Order of the House unless it be for Treason or Felony or for refusing to give Security for the Peace Surely the Judges did not give that Judgment for want of understanding that Judgment of the Lords for nothing can be more express and plain for it and says directly That sitting the Parliament or within usual times of priviledge no Peer shall be molested unless for Treason or Felony or for refusing to give Security for the Peace The Earl of Devonshire did all that the Judges could require of him by finding Sureties for the Peace and what the Judges did more was not grounded upon that Judgment of the Lords but was a manifest and presumptuous invasion and violation of the Priviledges of the whole Peerage of England It is very obvious how the Peerage has been undermined ever since Hen. VII's time what Endeavours have been used to make it less and less first by multiplying the number of them secondly by raising people of mean extraction to that Dignity both which tend to render it contemptible but nothing can make it more despicable than that its Priviledges should depend upon the beck of the King's Bench and therefore considering how groundless and without president it is what they have done in the Case of the said Earl it is no more than probable that they thereby aimed at pulling down the Peerage For what seems so likely as it does It carrics its Evidence in its Face for it manifestly takes away the priviledge of the Peers and till it does appear for what other end it was done all Men of Sence and that are unprejudic'd must believe it was to pull down the Peerage for all that can be pretended is either to secure the Peace or to punish the Offence The Earl did give Security for the Peace and he did not design to shift off his Tryal but that it should be in its proper season for tho' it delay'd the Trial yet it brought it to the proper time and so consequently the more legal and reasonable but the Judges must go out of the way of Reason and the Law to make a breach in the priviledge of the Peers It is too commonly the Discourse every where and I fear with too much reason That the Judges make very bold with the Law but it 's plain by this Judgment that they have stuck the priviledges of the Peers under their Girdle Whether it did proceed from Ignorance or Corruptness will appear upon what they shall say for themselves it 's too plain from one of them it is and either of yours renders them unmeet to sit in that place I do remember that the puny Judge gave this Reason for over-ruling the Earl's Priviledge says he Your Lordship and all the Peers receive all your Priviledges from the King and therefore it would be very unreasonable to make use of them against him and seeing the King is concerned in this Case I am of the opinion that their Plea be over-ruled It is said that he has some Law and therefore it 's the greater presumption in him to judge upon the Lords Priviledges who is not qualified by Law to sit as a Judge in any Case for he is a Papist as every body says and so consequently has not taken the Oaths and Test that the Law enjoins before he take his place on the Bench. But as to his Doctrine which he laid down since it does not properly come into this Debate I will only ask him a few Questions Whether there was not a People before there was a King Whether the King begot all his People and if people of several Nations should be cast upon an Island and seeing no probability of getting thence they agree upon certain Laws and Rules for the Common Good and make choice of the wisest Man amongst them as their King to rule and govern them according to those Laws can it then be said that the People received their Priviledges from him or that he is not strictly bound to govern them by those Laws and no other I desire to ask this one Question more Whether the King is not bound as well by his Oath as by the nature of the Government to protect and defend every Subject in his just Rights and Properties But allowing his Doctrine as orthodox yet his Reason is admirable for the Subject is not to make a defence in any Case if the King have any Title or Concern in it all Corporations must deliver up their Charters of course whenever a Quo Warranto is brought and why because it was a Grant from the King and it would be very hard to oppose him with his own Gift whoever holds any thing by Gift from the Crown and tho' made as sure as the Broad Seal can make it
their Favourites do for the most part pick up mean Men people of no Fortunes or Estates upon whom it is that they place their favour to so high a degree And therefore it 's for their Interest to advise the King to govern by an Army for if he prevails then they are sure to have what heart can wish or if he fail yet they are but where they were they had no thing and they can loose nothing There is no Man but very plainly sees that there are People about His Majesty who advise him to shake off the Fetters of the Lawes and to govern Arbitrarily and I wish that their Advice have not prevailed for the most part yet I think His Majesties own Inclinations do not bend that way for he seems to love quiet and ease which no Prince can have that Rules by an Army Therefore before we can expect that His Majesty will come in to us these People of Arbitrary Principles must be removed from his Throne for whilest there are the same Advisers we must expect the same Advice whilest there are the same Councellors we must expect the same Results And this alone will not do it it 's but the first step to our happyness the Principles or Maxims of State must be removed it 's not taking away this or the other Man and putting in another to act by the same Rules that will cure our Disease but it 's the change of Principles that must do it You may remember in the last Parliament the change that was made in the Privy Council and Ministers and upon the first news of it I met with a Gentleman that had a great Service for White-Hall says he I hope now you are pleas'd what can you expect more from His Majesty I replyed I like it well yet not so very well for said I all is well that ends well for all is not Gold that glisters I am not sure that these Men that are put out have not left their Principles behind them when those are gone I shall like it very well The Man was angry and flung away saying you are hard to please and says I you are easie and so we parted And I pray you how much Wooll have we had after all this cry what benefit have we reaped by that change Do not we see that unless they would act by the Maximes of their Predecessors they must do nothing and therefore several did desire leave to go off Some of these worthy Lords and Gentlemen that did so are now in my eye and I shall ever honour them for it I cannot forget the promises made to the Parliament at the same time and how well they have been kept Therefore I think it 's very plain that till these Principles are removed from White-hall that all our labour and pains will end in nothing The way then as I conceive to do this is to lay before His Majesty the state of the case let us shew him how unable these Men are to serve him and how destructive to his Interest it is to follow their Advices and that he can be Safe and Great only by closing with his Parliament Would His Majesty be Safe alas what can his Creatures do just nothing they have no Power nor have they Will further than it serves for their own advantage But His Majesty is safe in his Parliament for it is the Interest of every Man in England to preserve and defend His Majesties governing by his Parliament Does he want Money to make him easie I pray what can he expect from the Catterpillers his Favourites their care is not how to serve him but to make their own Fortunes But from his Parliament he need not want very plentiful supplies to preserve the Honour of himself and the Kingdom Would he maintain his Dominions and Rights what can his Creatures do but when he closes with his Parliament he can neither want the Heads Hearts and Purses of his People to serve him so that whatever His Majesty would have it is only to be had by his Parliament For his Favourites cannot in the least contribute to make him Safe or Honourable or whatever else a King may want or desire All the Use a King can have from His Favourites is to have Stories and Lies to set him at variance with his People I hope when the Case is laid before His Majesty that he will close with us but if his Judgment is so prepossessed that it will not convince him of his Interest then we must conclude that it is with him as it was with Rehoboam who forsook the Council of the Old Men and inclined to that of the Young Men who councelled him to tell the People that his little Finger should be thicker than his Fathers Loynes And I pray what was the effect of that huffing Speech Why Ten Tribes were taken from him and it was not his Young Men that could recover them for him again neither was it without a Parliament that his Majesty was brought into England I hope his Majesty has not forgot it Let them advise what they will but I am confident they will think on 't a good while before they will adventure to put those Arbitrary Councils into Execution it will prove a hot matter to handle For though I hope no Man here will lift up his hand against His Majesty yet we may oppose any Man that does seek to invade our Properties And for my own part I will Pistol any Subject be he the greatest in England that shall in deavour to deprive me of my just Right Let us do what we can to effect an Union between the King and his People and leave that Success to God Almighty and his will be done A SPEECH On the Occasion of some JUSTICES Being put out of COMMISSION I Was in hopes that some Gentlemen would have prevented me in what I have to say for I fear the House is under a great mistake as to those Gentlemen of the House who are put out of the Commission of the Peace For it is to speak to that chiefly I stand up I acknowledge that it is an unanswerable thing that other Gentlemen were put out but no doubt it was upon very weighty and warrantable grounds that the Gentlemen of the House were put out For without doubt His Majesty or who he be that advised him to it did think it reasonable and were sensible that we who attend the service of our Country in this place do spend our Time and Money and neglect our own Affairs and therefore when we come home its fit that we have a time of rest and that we be eased both in our Bodies and Purses and be at leasure to settle our own concerns and not that we should be tossed from one chargeable and troublesome Imployment to another So that we have great cause to be thankful for the care that is taken of us Besides there is a further regard had to us for this is a
the Crime and without whose concurrence and assistance it could not have been effected should fall within the condemnation of the Law Petty Lacinary is stealing of a thing under the value of 12d tho it is a small offence yet the fre uency of its being committed requires your care to suppress it I would in particular recommend to you to take notice of Sabbath-breaking And Customary Swearing There are several other offences that are inquirable of by you but I omit to mention them because I believe your own observation will help you therein Only thus much I will observe in general that whatever is an offence against the Publick falls within your inquiry and having said this I will keep you no longer from your business Some Reasons against the Prosecuting the Dissenters upon the Penal Laws I Will offer my Thoughts as to the Prosecuting of Protestant Dissenters at this time upon the Penal Laws But what I design to propose is only what sways with me and not to impose upon any Man but to leave every one to approve or dislike it according to the reasons I shall give To prosecute them who agree with us in the same Doctrines as it is not practiced in any other part of the World no not by the Papists themselves so I fear it will look like a playing of their game for them For it is confessed by the Jesuits that they have found it the most infallible way to bring in Popery into any place by somenting the divisions amongst Protestants And if a Moderation be ever necessary without question it is at this time expedient and the House of Commons were of this opinion when they passed this Vote Jan. 10. 1680 1. That is the opinion of this House That the Prosecution of Protestant Dissenters upon the Penal Laws is at this time grievous to the Subject a weakning the Protestant Interest an encouragement to Popery and dangerous to the Peace of the Kingdom Now how far this ought to be regarded I leave to every Man to consider but to my own particular there seems to be great reason and prudence in it considering our present circumstances If it shall so fall out since the making of the Act of the 22d of this King against Seditious Conventicles that the Dissenters have not at their Meetings preach'd any Doctrine but what tends to instruct and persuade Men to do their duty to their God their King and their Country then we ought to remember his Majesties Declaration from Breda April 14. 1660. which I find in print in these words We do declare a Liberty to tender Consciences and that no Man shall be disquieted or called in question for differences of Opinion in matters of Religion which do not disturb the Peace of the Kingdom and that we shall be ready to consent to such an Act of Parliament as upon mature deliberation shall be offered to us for the full granting that Indulgence Though we are unhappy by reason of the want of a Law for the uniting of all Protestants yet I conceive that this Declaration of his Majesty's is a very plain admonition to us to use a tenderness towards those who preach sound Doctrine and live peaceably with us and for my part I have not heard of any to be accused for Preaching unsound Doctrine or Sedition if there be any such spare them not but let the utmost severity of the Law pass upon them and let them suffer for evil-doing But if there is no proof against them for preaching Sedition or Rebellion it 's hard to punish Men upon a Supposition who worship God in a way that may be acceptable to him And though I can and do conform to what the Church enjoyns yet I have so much charity as to believe that the Protestant Dissenters are in a direct way to Heaven though they do not use the Ceremonies commanded by the Church provided that they worship God in fear with a good Conscience and live according to the Rule of his Word If they love Mercy do justly and walk humbly with God But if a Man professing himself to be of this or that Church shall believe that he may take greater liberty because of his profession I fear it will not much avail him at the last day It 's the Heart that God regards he requires Mercy rather than Sacrifice The Protestants in France are at this time under great Persecution and if we continue to prosecute the Protestant Dissenters here what incouragement can they have to come over hither in hopes of bettering their condition since they will be under the same circumstances with our Dissenters and if not here where can they hope to be relieved And thus their condition is made desperate The prosecution of Dissenters at this time must be for one of these Reasons as I apprehend Out of regard to our Oath or under pretence of serving the Church to assist Popery or else because we are persuaded that they cut off the late King's head If it be out of regard to the Oath then it must be remembred that there lies the same obligation upon us to all other Laws that are within our Charge but we are more especially bound to execute those Laws which immediately respect the glory of God and the common Good and there are several Laws which if duly executed would tend more to the glory of God than prosecuting of Dissenters As common Prophaneness and open Debauchery and the great abuse of Sunday and prophaning of God's Worship by coming drunk to Church and when the Service is over return again to their tippling and spend the rest of the day at that work and yet think they do very well they think they can go to their Houses justified because they can roar and swear they love the King and the Church and wish the confusion of all people who do not with them run to the same excess Whereas they are not to be trusted by the one and are a reproach to the other And the knowledge of these things might easily be come at if we made it as much our business to inquire after these things and incouraged the Informers thereof as much as we do the Informers against the Dissenters The second Reason of prosecuting Dissenters is Under pretence of serving the Church to assist Popery but this is so abominable a piece of Hypocrisie that I hope no Man who professes himself a Protestant will ever be guilty of it The third and last Reason is Because we are persuaded that it was the Dissenters who cut off the late King's head But that can be no inducement because first there is no such publick Judgment passed for it is not declared who did it and there are more who believe it was the Papists than that believe it was the Dissenters and it 's most probable the Papists did it by reason of the great joy at Rome upon the News and the Papists here in England said publickly That now their greatest
Earth and not for his own Glory whereby he would become the Author of all the Oppression and Violence that they shall commit Secondly If these Texts are not taken in a limited Sence they cannot be reconciled with other Places in Scripture and thereby God Almighty would contradict himself both of which are no less than Blasphemy to conceive of him And when these are compared with other Texts that do explain them they will be found to be Arguments to prove that the Power of Kings is limited by Law and the Right which they claim in the Crown is from the Constitution of the Government and not by Gods immediate appointment For as to that Expression By me Kings Reign he that looks into the Story will find that these Words are not a Declaration of the Right or Power of Kings but are enumerated amongst the many and great things that are done by Wisdom all which would be too tedious to mention at this time or if they were declaratory of the Kingly Power yet they are far from leaving Kings at large in the exercise of that Power for the Words that follow in the some Verse and Princes decree Justice do plainly Argue That Kings Reign no longer by God than they decree Justice not when they Govern by their Will without the Guidance of the Law So that by this it is clear that Kings and Gouernours are restrained within certain bounds and limits of Justice and Right according to the establisht Government The next thing to which I will give an answer is these Words Where the word of a King is there is power and who may say unto him what doest thou Every Command of the King so far as it is warranted by the Law is not to be disputed but to be obeyed for Conscience sake And it is the Interest of every man to enforce an obedience to it because it is for the Common Good But that a Man must be bound to obey any Commands whereby no advantage accrues to him or the Publick and is really to the detriment of both I no more understand than that a man ought to be his own Executioner in any Case And if the Commands of the King are to be obeyed without disputing the Legality of them then it will follow That all his Commands are equally Just or else that his Fiat makes that â—ust and lawful which was not so in it self and then by parity of reason his Command shall make that unlawful which was just and reasonable in it self and at this rate no man can tell whether he act with or against the Law till the King has declared his pleasure Now whether this does not rather confound and destroy the very End of Government than support it I leave to every man of common Sence to Judge and I think tho more might yet it need not be said to make it clear that this Text of Scripture is far from proving That Kings of Right have an unlimited and absolute power Let every Soul be subject to the higher Powers c. I take the meaning of these Words to be this That Government in general is of Divine Institution and that when any People and those that they set over them have entred into a mutual Stipulation of Protection and Obedience under such Rules of Policy and Justice as are not inconsistent with the Word of God this constitution is hereby so far ordained by God that it must be submitted to not only for Worth but also for Conscience sake so long as those in Authority do Govern according to the Prescripts of the Constitution And those words must be understood in this or some such like Sence for if they are taken Literally then it will follow That God prescribed the Model of every Government but no such Direction is to be found in Holy VVrit concerning any Government except that of his peculiar People the Israelites and besides every Government under the Sun would have been of the same shape if God had directed the Model of them but they cannot be taken literally because 1 Pet. 2.13 says Submit your self to every Ordinance of man for the Lords sake whether it be to the King as Supreme or unto Governors ' as unto them that are sent by him for the punishment of Evil doers and for the praise of them that do well And from these Words I take it to be clear that it was left to every People to form such a Constitution of Government as best suited their own Inclinations But if God had more expresly delivered him as to the form of Government yet that of Romans 13. Let every Soul is no warrant for the absolute Power of Kings for the 3d. and 4th Verses in that Chapter restrains it within bounds where it says For Rulers are not a Terrour to good works but to the evil Wilt thou then not be afraid of the Power do that which is good and thou shalt have praise of the same for he is the Minister of God to thee for good but if thou do that which is evil be afraid for he beareth not the Sword in vain for he is the Minister of God a Revenger to execute Wrath upon him that doeth evil These Words are as expresly restrictive of the Kingly power as Words can be in any case where he is to Protect or Punish is positively directed and not left to his discretion to call it Good or Evil according to his power or fancy but the Execution of his Power is to be guided by the Rules of Gods word and of the Government If God had prescribed one or more Models of Government for the World yet he would not have allowed that to be lawful in Kings which he has so often and severely reproved and punisht and under great Penalties he has restrained their Administration within the bounds of Justice and Judgment and because therein he has only delivered his pleasure in general therefore Kings are to submit to such Explanation of what is Just and right as the Constitution of the Government has declared For if this Explanation rested in the Breast of Kings the Condition of Subjects would be worse than that of Brutes unless Kings were endued with the Wisdom and Purity of an Angel of Light If Brutes be so chased and hunted that they are forced to leave their Native Soil yet wherever they can find rest for the Soal of their Foot they will meet with Food and Lodging and all other Necessaries But when by reason of Oppression and Bondage men are necessitated to quit their Habitations and Country must inevitably perish unless relieved by the Charity of others It is therefore plain that an absolute Power in any King must be gained either by force or fraud because God has not conferred any such Authority and it cannot be supposed that men in their Wits and without constraint would put into anothers hand a power that may hurt them when it depended upon their pleasure whether he should
have it or not for a power in a King to Oppress and Burden his Subjects is inconsistent with the true Nature and design of Prerogative which was given to the Crown to relieve the Subject where the Law was too keen the better to further the publick Peace If the Prerogative be set above the Law it will quickly devour it for there is no difference betwixt making the King Absolute and destroying the Law because then all our Laws and Statutes are only Rules during his pleasure and a King that desires to sit at ease will not find his reckoning in it for if the Prerogative be once raised above the Law he thereby quits his best Title to the Crown and leaves the decision of the Right to the Sword and then he that has the sharpest will prove by that Rule to have the best Right but he that has a better Title will not claim under the Sword What has been said may in a great measure expose that vile and ridiculous Doctrine of Passive Obedience and Nonresistance which the Example of David sufficiently refutes and no man can pretend to Justify but either because he wants common Sence or in hopes of Preferment will if he can outface all manner of Truth However it was so useful to carry on the Design of Popery and Slavery that all possible ways was tryed to propagate this Doctrine and all Discouragements put upon those who did any thing to lessen the credit of it Just like the policy of the Romish Priests who forbid the Laity the use of any Books that may give them better Light and it is very strange that this Doctrine did not obtain more Credit considering how it was supported both by the Palpit and Press But God be praised that the Nation preserved its understanding and that the time is come that the Truth may be spoke in publick And I would have stopt but that I conceive it to be convenient to say something to let you see how senceless and impudent they are who profess themselves to be Protestants and yet are dissatisfyed that the late K. James is set aside and King William placed upon the Throne And first I do say that I thought it my Duty to draw my Sword in the Defence of my Religion and Government and I did and do think it as lawful to reject the late K. James as to place K. William on the Throne And I hope to satisfy all that hear me that the present Settlement is Justifyed both by the Laws of God of Nature and the ancient Government If what is done were rather expedient then lawful yet one would think that particular persons might acquiesce in what is done by the collective Wisdom of the Nation I mean the Lords and Commons and I shall ever believe that man to be mistaken who thinks himself either more wise or Just than the two Houses of Parliament Till the Prince of Orange Landed I am perswaded that most were of Opinion that we had but this Choice left us either to Turn or Burn and I am inclinable to think that all such as are for recalling K. James are prepared to turn and I wish every man that has a mind to have him here again were with him I know not whether it would be best for them but I am sure it would be so for every man that wishes well to England But to speak more home and directly I take it That there was a People before there was a King That they set the King over them for their good That the Obligation of Protection and Subjection is Mutual That a King by reason of his Male Administration may forfeit his Crown That the End of Government is Peace and Order That it is more for Gods glory for every man to sit safely under his Vine than to be oppressed That no Government can be destitute of a Power to relieve it self That the whole is better than a part That this late Settlement is no new thing the like having been done in all Kingdoms and Governments To suppose there was a King before there was a People is as ridiculous as to suppose a man to be born before he is begot or that a man can live without Food or run before he can go and it will follow that a King may be a King of nothing for what is a King if he have no people Multitudes of other Absurdities will follow so that I need not say any thing more to it And I think the next thing is as plain that it is for their good when a People sets a King over them For to what other intent can it be done all things are done for some end and a People cannot be supposed to be void of the Principle of self preservation since that is inherent in Brutes and Plants and nothing that either breaths or grows but endeavours to preserve it self and can it then be imagined that a People would choose a King for their hurt rather than for their good Indeed sometimes in Judgment to a People God has blinded their Eyes in their choice they have made but their Intention was otherwise And I take it to be as clear that the Obligation of Protection and Subjection is Mutual for the very Nature of all Agreements proves it for in any thing of that nature if one side be bound and the other at Liberty it demonstrates the folly or Rashness of the one Party and cunning or good Fortune of the other and cannot so properly be called a Bargain as a Submission Subjection is really an Effect of Protection and arises from it otherwise Parents would have it in their choice to provide for or neglect their Children and tho' their Right is from Nature and for that Reason more Arbitrary than when it proceeds from compact yet no man will deny but that Parents are bound to Educate and provide all other Necessaries for their Children as far as their Substance will enable them and that nothing can discharge them of this Obligation but the Notorious Disobedience and wickedness of their Children The Nature of our Allegiance proves that the Obligation is mutual because the King takes the Coronation Oath before the Subjects swear to him which shews that our Allegiance is Conditional and such it is in all regular Governments for what can induce one man to obey another but that he ingages to protect him for if I am bound to obey where I have not an Assurance of Protection then if a Tyger or other Monster could get into the Throne I should then be under the same Obligation of Obedience but the reason of this is so obvious to every one of common Sence that I will say no more to it I think it will not be disputed that the End of Government is Peace and Order if not for these it must be for Confusion because there is no Medium between Peace and Confusion now God could not intend the latter because he has declared himself to
be a God of Order and therefore since all Government in general does Originally proceed from God that Administration is rather an Vsurpation than Government that commands or permits the Disturbance of the Subjects in the Enjoyment or Possession of their Rights and Properties And therefore it will follow That it is more for Gods glory that every man do sit safe and quiet under his Vine and Fig-Tree than to be oppressed Oppression intimates a wrong or Injustice and God will not Authorize that which he has declared to be unjust for just and righteous are all his ways Oppression will make a wise man mad which shews that Subjects have a right in their Properties as well as Kings have to their Crowns If there were not some such Right there could be no Oppression or Injustice for Oppression or Injustice iâ— when that which is anothers Right is detained or taken from him against his consent If Naboth had not had a Right in his Vineyard Ahab need not to have Capitulated with him to have it for a Garden of Herbs neither would God have visited Ahabs Family for the Blood of Naboth And I never knew any man to maintain the Doctrine That all our Rights and Properties were in the Crown but he hoped thereby to encrease his Estate And few ever pretended to be of that Opinion that were not broken in their Fortunes or aimed at their Neighbours If therefore Peace and Order is the end of Government and that it is more for Gods glory that every man sit safe under his Vine and Fig-Tree then it will follow That a King may forfeit his Crown by â—eason of Male Administration for otherwise it will follow that God made the World for the Pomp and Grandure of Kings and not for his own Glory that there is no such thing as Property no such thing as Right or Injustice that there are no Laws but his Will and Pleasure nor any thing to guide him but his own Fancy The CASE QUERY Whether a Conspiracy to Levy War is an Overt Act of Conspiring or Imagining the Death of the King IT has been declared in the Affirmative by some modern Precedents But whethen those Judgements did Proceed from Ignorance of the Laws or to serve a Turn will be enquired into when the time comes that the plain English may be spoke that is necessary to open and discover the truth of the Case There are several things which may give occasion to make it be so generally received in the Affirmative but it has chiefly proceeded from making Distinctions where the Law has not distinguished which is altogether forbid if Rules in Law are of any Authority or signify any thing for non est distinguendum ubi Lex non distinguit And therefore this Opinion will easily be refuted by considering these things which follow First Whether any Court the Parliament excepted can Try a man upon an Indictment for High Treason that is grounded upon Common Law Secondly To what end and intent the Statute 25. Ed 3 Chap. 2. was enacted Thirdly Whether Couspiring the Death of the King and Levying of War are distinct Species of Treason Fourthly Whether every Law is not to be construed most strictly to restrain the mischief against which it was enacted Fifthly What is the true meaning and signification of being provably attainted by Overt Deed As to the first it seems to be out of doubt that at this day there is no such thing as an Indictment at Common Law for High Treason tho for other things there is because there is no Precedent of it since the Statute 25. Edw. 3. for every Prisoner that is Arraigned for Treason does commonly demand of the Court upon what Statute he is Indicted and it is always answered upon such a Statute and the particular Statute is named Besides every Impeachment before the Lords in Parliament is grounded upon some Statute and if so a Fortiori no inferiour Court can try the Prisoner upon an Indictment for High Treason grounded upon Common Law For the Law which delights in Certainty especially in Case of Life will not allow of an Indictment at Common Law because no Issue can be joyned upon it by reason of the uncertainty As to the Second To what end and intent the Statute 25 Edw. 3. was made Edw. 3. was a great Prince and Victorious Captain which gained him a very great Renown but that which made his Name the greater and his Fame the more lasting was those good and beneficial Laws which were enacted in his time by which he restored and beautifyed this Government which had been defaced and almost destroyed by the illegal Proceedings during his Fathers irregular Reign and of all the Oppressions under which the Nation groaned at that time there was none that lay heavier upon them than that extravagant License which the Judges took to Interpret and call any thing Treason and this appears by the particular Joy which the whole Land expressed at the making of the aforesaid Statute For tho' he call'd Parliaments very frequently and none of them prov'd abortive for every one of them produced good Laws yet that Parliament which was held in his 25th Year did more than all the rest and of all the Beneficial Laws which were then enacted the Second Statute whereby Treason was reduced to a certainty gave the People greatest cause to lift up their Hearts and Voice in Thankfulness to God and the King because the Jaws of that devouring Beast were broken which had torn in pieces so many Families and threatned destruction to the rest So that this Statute was made to restrain all Treasons that may be made by inference or implication and to limit the Judges so strictly that they may not call any thing Treason but what is literally such within in the Statute for it is there provided That if any such like Treasons shall come before any of the Justices that they must slay without going to Judgement till the Cause be declared before the King and his Parliament And all subsequent Statutes of Treasm are as so many Confirmations of this Law for they had been needless 〈◊〉 the judges could have called any thing Treason but what is literally within that Statute and that Statute had been made to no purpose if it had not so strictly restrained the Judges And my Lord Chancellor Notingham was of Opinion That even the Lords in Parliament could not proceed upon an Indictment of High Treason unless the Fact alledged in it were first declared by some Statute to be Treason As to the third thing It never was not ever will be denyed that Compassing the Death of the King and Levying of War are two distinct Species of Treason unless all Treasons are of the same kind but if there are several sorts of Treasons then it will follow that these are also distinct Because in every Statute of Treason which mentions Conspiring the Death of the King and Levying of War they are named
manner put in ure any of the Acts abovesaid That then all and singular Persons by whose speaking deed act or other the means above specified to the number of twelve so raised shall be adjudged Felons If any Persons to the number of forty or above shall Assemble together by forcible manner unlawfully and of their own authority to the intent to put in ure any of the things above specified or to do other Felonies or Rebellions act or acts and so shall continue together by the space of three Hours after Proclamation shall be made at or nigh the place where they shall be so assembled or in some Market Town thereunto next ajoyning and after Notice thereof to them given then every person so willingly assembled in forcible manner and so continuing together by the space of three Hours shall be adjudged a Felon The things provided against by this Statute are plainly and directly a levying of War yet are they declared to be but Felony But it may be objected that by Statute 3d. and 4th Edw. 6. Those Offences were made Treason it is very true yet it does not alter the Case but rather proves the Point For first it being made Treason by Statute proves that it was not so in it self Secondly Because in the two next succeeding Reigns it is declared to be but Felony for the Statute of Queen Mary is confirmed by Statute 1st Eliz. 16. and therefore the Argument is the stronger because those two Queens were of different Religions Thirdly Because when a thing is declared an Offence by Act of Parliament and is afterwards made a less Offence it proves that it was not so great an Offence in it self but that the necessary Circumstances of Time and Affairs require it should then be such But the Case is yet stronger because in some Cases it may be but a Trespass to levy War as it was in the Case of the Earl of Northumberland 5th Henry 4. He did actually raise Forces and such as was taken to be a levying of War for which he was questioned before the Lords and tryed for High Treason but tho' the Lords did believe the Fact yet they adjudged it but a Trespass because the Power raised were not against the King but some Sabjects This precedent seems to carry great weight in it first because it is a Judgment given in the highest Court of Judicature and Secondly Because it was given so soon after the making of the Statute 25th Edw. 3. and therefore they must be supposed to understand the meaning of the Statute full as well as succeeding Ages The Case of those who aided Sir John Oldcastle might be also urged if there were occasion but what has been already said is sufficient yet one Clause in that Statute 25 Edward 3d. is not to be passed over in silence because it puts the matter out of Dispute and the Clause is as follows If percase any man of this Realm ride Arm'd covertly or secretly with Men or Arms against any other to Slay him or Rob him or take him or retain him till he hath made Fine or Ransom for to have his Deliverance it is not the mind of the King nor his Council that in such case it shall be adjudged Treason but it shall be judged Felony or Trespass according to the old Laws of the Land of old times used This proves That altho' the Statute had made it Treason yet that it was not so in it self and therefore it will follow that if a War may be levy'd which is neither Treason nor Felony so it is unnatural that a Conspiracy to Levy War should be construed to be an Overt Act of Compassing the Kings Death Thus the Second thing Objected has received a full answer and likewise the first in a great measure but to put all out of doubt a few words shall be added to give a compleat answer to the first also If the Consequences on all hands be duely considered the danger will be found to lye on the other hand yet be it as great as it can be pretended let it be considered that the Law has settled the point and so it must stand till by the same Authority it be alter'd for the Rule in Law is not to be forgot Nemo Legibus Sapientior It is to be pretended that out of a tender regard that the Law and all Subjects ought to have for the Kings Life that a Conspiracy to Levy War is taken to be an Overt of Compassing the Kings Death To this it may be answered by way of question How comes it about that this Age should have a greater care and tenderness of the Kings Life than our Porefathers had Can it be Imagined that they did not understand the Nature of the Government as well as we do nor did know of what Consequence to the Publick the Preservation of the Kings Life is Can it be thought that they did not duely weigh and consider the consequence on all hands Yet however were there never so many Defects in it seeing it is settled by Law it cannot be altered but by the same Power for if it may then let the Consequence be duly considered of leaving it in the Breast of the Judges to rectify the Mistakes or Desects be they Fictions or real for then when a turn is to be served the Law shall always be defective and so in effect they shall Legem dare Treason will then be reduced to a certainty that is if the Judges please otherwise not There will be no need of Parliaments for the Judges shall both declare and make Law What will all our Laws signify tho made and penned with all the Wisdom and Consideration that a Parliament is capable of if the Judges are not to be tyed up and guided by those Laws it renders Parliaments useless and sets the Judges above a Parliament They can undo what the other has done the Parliament Chains up some unruly Evil or Mischief and the Judges let it loose again But besides where is this dangerous Consequence as is objected Indeed there had been some weight in the Objection had a Conspiracy to levy War been left wholly unpunishable but the Law has provided a punishment commensurate to the Offence and tho' it does not extend to Life yet is sufficient to deterr Men from the Commission of it yet if a Conspiracy to levy War is to be punisht in a high degree as a War when levyed this would be to punish Thoughts as highly as Deeds which if it be just yet it is Summum jus VVhere the Law has provided a Punishment for an Offence the Judge can pass no other Judgment upon the Prisoner no no more than the Executioner can execute the condemned Person in any other manner than according to the Sentence passed upon him without incurring the Guilt of Felony for the one is but the Officer to declare or promote the Law and the other the Minister to Execute it Therefore upon what has been said
particular interest as well as his duty does indispensibly oblige him to do what in him lyes to support it In order to this that which is now more especially expected from us is first To inquire into the neglects of those in whom the Law has reposed any trust and Second to discover those who have broken or violated the Laws that such criminals may be brought to condign punishment And since the execution of the Laws is our proper business and that the Laws should have their course is absolutely necessary to the being of the Government It may not be impertinent as I conceive at this time to say something of the Nature of Government and particularly of our own constitution or rather it seems necessary to take all occasions to explain it considering what variety of opinions there is amongst us of that which is or ought to be the Supreme authority or power in England Many wise and learned men have written of the Nature of Government and given excellent definitions of it but of all others Plato seems to me to have done it in the fewest and plainest words which are these Government or Law says he is to preserve the huge and indigested lump of a Multitude and to bring all disorder into proportion so as to become an harmony And Next to him is the learned Aquinas says that it is a rational ordinance for the advancing of the publick good Several others have spoken to the same purpose which I omit because I will be as little tedious as I can Two things I have observed from hence first That order and peace is or ought to be the end of every Government And second That in every Government there is some particular principle that runs through the whole Scheme of that Constitution and that as that principle is followed or neglected so accordingly it goes ill or well with the publick that is when those who are intrusted with the executive power do pursue that principle every thing moves regularly and the Government is firm and stable But when they steer by any other Measures the State does unavoidably fall into disorders and Convulsions and that whoever he be that is placed at the head of the Government if he desires to have the Hearts and Prayers of his People whilst he lives and that after-Ages shall bless his Memory It is necessary first That in general he resolve to Govern well And Secondly Throughly and rightly to apprize himself of that principle that is the Soul of the Government or at least-that he be advised by such as are most likely to know it and will give him faithful Counsel Otherwise he will be like a Traveller that in the Night misses his way upon some large Plain wandering he knows not whither and is more likely to meet with some disaster than to find his way Having said this it is natural for you to expect that I should tell you what that Principle is which is the Life and Foundation of this Government If I am not much mistaken and I am verily perswaded that I am not I take it to be this That every Subject of England has so clear a property in his Life Goods and Estate and every thing else which he possesses that they cannot be taken from him nor ought he to be disturbed in the Injoyment of them without his voluntary Consent or for some Offence against the Law And in the next Place that there be not a Failure in Justice that is That no man be left without remedy where his Right is concern'd and that every Criminal be pun sht according to the Demerits of his Offence I am apt to believe that every man will think that this is very agreeable to Natural Reason and then I don't see how it can be inconsistent with the Prerogative of the Crown altho' I know that not very long since and I fear yet there are some who carry the Prerogative much higher placing it above the Law but nothing save the Iniquity of the times and the Depravity of such mens Manners could support or give Countenance to so senseless a thought For they are very ignorant of the Nature of Prerogative if they think it is a Powet to do Hurt and not to do Good Certainly the Kings Prerogative is to help and relieve the People where the Edge of the Law is too sharp and keen and not a Power by which he may Oppress and Destroy his Subjects Men are to be Govern'd by a Power that is guided by Reason unless we can suppose they have no more understanding and are of no greater Value than the Beasts that Perish It was said by one who was a very competent Judge in the Case as I remember it was Sir John Fortescue That it is a greater Power in a Prince to be restrained by Law from oppressing than to have an absolute Regal Power And says another great Author The way if Governing must be both right and clear as well as is the End And how this can be expected when a King is guided by no other Rule than that of his Will and Pleasure I don't see no more than that a man can depend upon the Weather Does not all the Examples of it that ever were prove that absolute Power and Oppression are inseparable and the one as naturally proceeds from the other as the Effect does from the Cause It 's a Riddle to me how that Prince can be called Gods Ordinance who assumes a Power above what the Law has invested him with to the grieving and oppressing of his Subjects May not the Plague Famine or Sword as well be called Gods Ordinance since one no less than the other is sent by him for the Punishment of that People he so Visits We may reasonably suppose that Order and Peace is much rather the End of Government than Oppression and Violence because God is a God of Order and when he sent the greatest Blessing upon Earth it was Peace and tho' God was often very wrath with the Kings of Israel and Judah for their Idolatry yet the Innocent Blood that they shed and the Violence and Oppression which they committed provoked him more highly and with his severest Judgements has always testityed his Displeasure against it I could run out into a large Discourse upon this Subject but I will stop here because I am perswaded that what I have already said is sufficient to convince any one that is unprejudiced That an absolute Power is so far from being the Right of a King of England that the exercise of such a Power is unlawful in any King I know very well that in the late Reigns this Doctrine would not have been indured to have said less than this would have lost a man his head For whoever would not comply with Arbitrary power was called Factious and an opposer of the Government But is it not Nonsence or very near a Kin to it to call that Seditious that is for bringing things
yet if the King think good to question it the party must yield it up without insisting upon his Right for the Reason given by the learned Judge for the same Reason every Peer if denied his Writ must not demand it nay he must surrender his Patent and renounce his Title as far as in him lies if the King require it And for the same reason when any man is called to an account for his life he must make no defence but submit himself to the King's Mercy for all we have is from the King and nothing must be disputed when it is his pleasure to question it This is indeed to make the King as absolute as any thing on Earth can be yet is withal to make him the most unjust Prince that ever sate on the English Throne This sort of Justice is learnt from Children whose Gifts continue good no longer than the Donor remains in that kind mood Surely nothing can more reflect Dishonour upon the King for it makes him as unjust and uncertain as any thing can be both which should not be in the Temper much less in the Actings of a Prince Another Reason was given I think by the Chief Justice or else by Mr. Justice Holloway because it was absolutely necessary for the securing of the Peace it was urg'd so far as if the Peace could not be secured without it Surely all this must be but gratis dictura for my Lord Devonshire by finding Sureties had done all that the Law does require for securing the Peace unless they had clapt him up a close Prisoner which they could not justifie if he tender'd Sureties and therefore either my Lord Devonshire is different from all Mankind and a different method must be made use of to secure the Peace or else this Argument of theirs savours not so much of Reason as of something else that ought to be no Ingredient when they give Judgment in any Case and it surpasses common sence to understand how the over-ruling my Lord's Plea could tend to the securing of the Peace either the Security which he had given must awe him to keep the Peace or the other could not for he had broke the Peace again and repeated it several times before he came to his Trial yet that could not effect the Merits of the Cause neither could it be given in evidence at the Trial so as to alter the state of the Fact neither could the Judges by reason of it enhaunce his Punishment if he were found guilty but they must look upon it as a distinct Offence and so might require the greater Security for the Peace and for a longer time Indeed it is an effectual way to prevent a man from breaking the Peace to lay such a Fine upon him as is impossible to be paid immediately and to commit him till payment It is too probable that the Judges being concious how liable they have made themselves to be called in question for this Sawciness and trampling upon the Law would debase and bring under the Credit and Authority of this Court because no other can take cognizance of their proceedings so as to correct their Errors and Mistakes it is only here that they can be called to an account for what they do amiss no Court can punish them but this so that if they can once top your Lordships there is nothing that they need stand in awe of nothing to restrain them but they may act ad libitum not per legem for let this Court be deprest and they may say Of whom then need we be afraid By what they have done already they have sufficiently shewn to what Extravagances they will proceed when they think themselves to be out of the reach of this Court If once the King's Bench can set it self as high as the Judges have attempted by this proceeding against my Lord Devonshire then must the whole Nation your Lordships not excepted stoop to all the Extravagances and monstrous Judgments that every corrupt and ignorant fellow shall give who shall chance to get up to the Bench and not only this present Age shall feel and undergo the Mischief but it will be entail'd upon all succeeding Generations Well then did the Judges attempt that which would bring your Lordships so low and raise their Court so high to set it above all reach or controul especially if they did promise to themselves Impunity if not Reward which they might have expected had it been in the Reign of an arbitrary Prince who would be a great gainer by the fall of this Court because then the Skreen betwixt the King and People is taken away This is the first time that an inferiour Court did take upon it to invalid the Priviledges of a superiour Superiour Courts do sometimes set aside the Orders and Proceedings of Inferiour Courts and yet in that case they proceed with that caution that it is never done but when there is manifest Error and the Law not duly pursued and observed but in no case was it known that they ever meddled with their priviledges If what the Judges have done is good I cannot tell what Power and Jurisdiction they may not pretend to for no bounds nor limits can be set to the King's Bench it may assume as great a power in Civil Affairs as the High Commission does in Ecclesiastical in their Actings not to be tyed up to any Rules or Method but to vary and alter them as well as the Law when occasion or humor serves the proceedings shall be as summary or as delatory as they think fit and your Lordships shall no more than other people be exempted from the exercise of that power Therefore if your Lordships will not prevent the Mischief from spreading it self over the whole Nation yet I hope you will take notice of the Injury you have suffer'd in the Case of my Lord Devonshire and to do your selves Right The Law has for the most part left Fines to the Discretion of the Judges yet it is to be such a Discretion as is defin'd by my Lord Coke fol. 56. Discretio est discernere per legem quid sit Justans not to proceed according to their own Will and private Affection for Talis discretio discretionem confundit as Wing at says fol. 201. So that the Question is not Whether the Judges could fine my Lord Devonshire but Whether they have kept themselves within the bounds and limits which the Law has set them It is so very evident as not to be made a Question whether in those things which are left to the Discretion of the Judges that the Law has set them bounds and limits which as God says to the Waves of the Sea Hitherto shalt thou go and no farther for either they are so restrained or else the Law does suppose them to be exempted from those Frailties and Passions which do attend the rest of Mankind But as they cannot be suppos'd to be void of Passions and Infirmities no less than other
cum grano salis for if the Fine be immoderate or else he has not the Money then ready but either offers Security to pay it or else prays for some time and in the interim to stand upon his Recognizance in either of these Cases to commit for not paying the Fine into Court is not justifiable because it is to punish for not doing an Impossibility for Lex non legit ad impossibilia Secondly It is not justifiable because if the Fine be paid the Law is as much satisfied if it be paid five years hence as if it be paid then immediately into Court for the Law does not suppose that the most wealthy man does carry so much Money about him Thirdly It is very unreasonable because it does in a great part disable the person to pay the Fine for if he be a man that manages his own Affairs his Writings that are necessary to make the Security may be so dispos'd of that it will be difficult to come at them besides there being a necessity upon him to have the Money those of whom he is to have it will be very apt to hold him to harder terms for the World is so unnatural and brutish that one man is but too prone to make his Advantages upon the Misfortunes and Necessities of another and that Proverb Homo homini lupus is in no Case more true than in the business of Money ARGUMENTS AGAINST The Dispensing Power THAT which Sir M.H. Resolved by Lord Chancellor Egerton no Non obstante could dispense with the Law about Sale of Offices Coke 234. foresaw and prophecied is now fulfilled viz. That our Slavery whenever it happen'd was rather to be feared from the Twelve Redcoats in Westminster-ball than from 12000 standing Forces for this Opinion if from henceforward it shall be Law then has our Freedom received a dreadful Wound in the Head for we shall hold all our Rights and Properties but precariously even no longer than it is the King's pleasure to have it so But be it as it will and how clear soever it may appear to the Judges yet at present it does confound the Vnderstandings of all People besides because till now it has been hidden from the Eyes of our ablest Sages of the Law wrapt up in such Clouds and thick Darkness that the most discerning of them have not been able to pry into it and therefore it passes all our Understandings that this Sett of Judges who had not Law enough to employ them at the Bar before they were raised to the Bench should find out the Secret and give an Absolute Opinion for which there is not any president to be produced and therefore shrewdly to be suspected that it is not grounded upon Law no more than those Opinions were for which several Judges have been hanged The Law of England has ever been reputed to be as plain and intelligible as that of the Jews which was written on the Palms of their Hands save only when Judges are ignorant and needy and are assured that Parliaments are at a great distance and then only are such Opinions as those given for their Ignorance makes them assured their Poverty makes them leap before they look and when Parliaments seem very remote under that shelter they grow bold But it is to be hoped that such Opinions as these will pass for Law no longer than the Nation is govern'd without a Parliament which sooner or later will come as certain as that there will be a Day of Judgment It is strange that these Judges should understand so great a Mystery as this unless there be as great Vertue in a Judge's Gown as was in the Mantle of Elijah and if so how happens it that the same Spirit has not rested on those who have sate before them on the Bench but if a double Portion of that Excellent Spirit is rested upon our present Judges that they are able to dive into so great a Mystery as this and see so much further than any who have been before them surely they are also endowed with the Tongue of Angles and so can explain this matter to the Understandings of the People which in Duty they are bound to do or else in time with the price of their Heads they may come to give the true Reasons of this their Opinion 1. That the Kings of England are Soveraign Princes 2. That the Laws of England are the King's Laws 3. That therefore it is an incident inseparable Prerogative in the Kings of England as in all other Soveraign Princes to dispense with all Penal Laws in particular Cases and upon particular necessary Reasons 4. That of these Reasons and Necessities the King himself is the sole Judge and which is consequent thereupon 5. That this is not a Trust invested in or granted to the King but the ancient Remains of the Soveraign Power and Prerogative of the Kings of England which never was yet taken from them nor can be Therefore in this Case such Dispensation being pleaded by the Defendant and such Dispensation being allow'd by the Demurrer of the Plaintiff and this Dispensation appearing upon Record to come time enough to save the Defendant from the forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam Soveraign Power is of a vast extent that is as much as unlimited and to which no Bounds is or can be set That the Kings of England in Parliament have a Soveraign Power is true that with the Consent and Concurrence of the Lords and Commons he may do what he will is without question and it is as certain that out of Parliament his Power is limited and confined within certain Bounds and Limits which he cannot pass without doing violence to Justice and the Laws for there are two Powers in the King the one in Parliament and that is Soveraign the other out of Parliament which may be directed and controuled by the former and therefore called Potestas subordinata pag. 10. Rights of the People p. 9. Argument of Property therefore his Power is Soveraign only sub modo for out of Parliament many of his Acts are not only questionable but void in themselves Rights of the Kingdom 83. for what he shall do against Law those Acts bind no more than if they were a Child's he cannot command one man to kill another he cannot pardon a common Nusance nor an Appeal at the suit of the Party And multitudes of the like Instances might be given for if the King's power out of Parliament was as great as in Parliament then there 's an end of the Policy of this Government and the Barons Wars was only to beat the Air. It is most certain that till these late days during which we have been so very much Frenchified Roads are called the King's Highway but the Freehold is in the Lord of the Soil and of the Profits growing there as Trees c. Terms of the Law 56. that