and acquainted his Lordship That there was a Woman apprehended and rescued by a couple of Gallants that had confessed she had a hand in burning the City and was at such a Tavern Whereupon the L. C. called to a Captain in the Street and ordered him to go with that Man and apprehend the Woman that he should direct him to Whereupon he goes with the Citizen and takes her with the first Gallant who stood up highly in her defence and carries them both to an Ale-house on the other side of the way The Citizen perceiving that nothing would be done with her leaves his Name with the Captain and where he might be found but was never called for to justifie the Words spoken by her A Woman standing in White-Chappel with a Company about her was ask'd what the matter was She said that she met two young Men in that place and asked them how it was with the Fire They answered 'T is now almost out if it can be kept so but the Rogues renew it with their Fire-balls As saith another Woman Young men if you have a heart to it you may be hired to throw them It was ask'd her What was become of the Woman that spake thus She answered That she had apprehended her and delivered her to the under Beadle of White-Chappel Parish The Woman falling under the Accusation not being able to deny it there being many Witnesses at that time that heard it She was delivered to Sir John Robinson but heard of no more One from France writes to his Correspondent in London to know the truth of what was muttered in Paris Whether London was laid in ashes or no. The Letter being dated a Week before the Fire began From Surrey in or near Darkin a Person in ordinary habit who was yet observed to take place of all the Nobility and Gentry among the Papists seeing the People of Darkin mourn for the burning of the City he spake slightingly of it telling them they should have something else to trouble themselves for and that shortly Darkin should be laid as low as London Whereupon the People made at him and one Tr. H. a great Papist rescues him and sends him away in his Coach to London This was deposed before Sir Adam Brown a Justice of Peace and a Member of Parliament These following Relations for Substance were delivered to Sir Robert Brooks Chair-man of the Committee a little before the Prorogation of the Parliament A true Relation made by one of the Grand Jury at Hick ' s-Hall at a general quarter-Quarter-Sessions presently after the Fire in London who was upon Trial of some of those that fired the City THat near West-Smithfield in Chicklane there was a Man taken in the very Act of firing a House by the Inhabitants and Neighbours and carrying him away through Smithfield to have him before a Justice for the Fact committed the King's Life Guard perceiving it made up unto them and demanded their Prisoner from them but they refused to let him go The Life-Guard Men told them That he was one of the King's Servants and said We will have him And thereupon they drew out their Swords and Pistols and rescued him out of the Peoples hands by force of Arms. A Bill of Indictment was brought against him and two or three Witnesses did swear unto it and the Bill was found by the Grand-Jury who did carry it to the Old Baily and presented it to the Lord Chief Justice but it came to no further Trial nor was ever seen after at the Old Baily so far as this Person upon his best Enquiry could ever hear or learn Concerning an House-keeper at So-ho who fired his own Dwelling-house FIrst he secured all his Goods in his Garden and then went in and fired his House which when he had done he endeavoured to get away out at his Fore-door A Neighbour demanded of him Who had fired his House He answered The Devil Upon that his Neighbour bad him stand or he would run his Halbert into his Guts His answer was If you do there are enough left behind me to do the Work Whereupon he was secur'd and a Bill of Indictment brought against him and about three Witnesses did swear to it And his Son came in as Witness against him who was demanded by the Foreman What he could say as to the firing of his Father's House He said That his Father did fire it with a Fire-ball It was demanded of him Whether he did fire it above stairs or below He answered Above stairs The Bill was likewise found but the Petty-jury did not find him guilty A Maid was taken in the Street with two Fire-balls in her Lap Some did demand of her Where she had them She said One of the King's Life-guard threw them into her Lap. She was asked Why she had not caused him to be apprehended She said That she knew not what they were She was indicted for this and the Bill found against her and turned over to the Old Baily but no Prosecution upon it In the time of the Fire a Constable took a French-man firing an house seized on him and going to a Magistrate with him met his R. H. the D. Y. who asked the Reason of the Tumult One told him that a French-man was taken firing a House His H. called for the Man who spake to him in French The D. asked Who would attest it The Constable said I took him in the Act and I will attest it The D. took him into his Custody and said I will secure him But he was heard of no more On Monday the third of September there was a French-man taken firing a house and upon searching of him Fire-balls were found about him At which time four of the Life-Guard rescued the French-man and took him away from the People after their usual manner in the whole time of the Fire One Mr. Belland a French-man living at Maribone who bought great store of Pastboard for a considerable time before the Fire of the City of London to the Quantity of twenty gross in one Shop and much more elsewhere was asked by a Citizen What he did with all that Past-board He answered that he made Fire-works for the King's Pleasure The Citizen asked him What doth the King give you He replyed Nothing only I have respect at Court The Citizen said Take heed Mr. Belland you do not expend your Estate and then lose your Respect at Court for you are at a great Charge Belland answered Sir do you think this a great matter I use all this my self But if you did see all the great quantities I have made elsewhere in three several places three four and five miles off you would say something Another time the Stationer with whom he dealt for the Past-board being at his house in Maribone and wondring at the many Thousands of Fire-works that lay piled up of several sorts he said Sir do you wonder at this If you should see the quantity that I
houses in Holborn at the same time That he was at the Fire in the Temple but was not engaged to do any thing in it And said that Gyfford told him that there were English French and Irish Roman Catholicks enough in London to make a very good Army and that the King of France was coming with 60000 Men under pretence to shew the Dauphin his Dominions but it was to lay his Men at Deep Bulloign Callis and Dunkirk to be in an hours Warning to be Landed in England and he doubted not but it would be by the middle of June and by that time all the Catholicks here will be in readiness all were to rise in order to bring him in That the Papists here were to be distinguished by Marks in their Hatts that the said Father Gyfford doubted not but he should be an Abbot or a Bishop when the work was over for the good service he hath done That at their Meeting Father Gyfford used to tell them it was no more sin to kill a Heretick then a Dog and that they did God good Service in doing what Mischiefs they could by firing their houses That it was well Sir Edmondbury Godfrey was Murdered for he was their Devilish Enemy That Coleman was a Saint in Heaven for what he had done And saith he is fearful he shall be Murthered for this Confession Father Gyfford having sworn him to Secresie and told him he should be Damned if he made any Discovery and should be sure to be killed and that he should take the Oaths because he was a House-keeper and that it was no sin And saith That Gyfford and Roger _____ told him when their Forces meet about the middle of June then have at the VOTES and ADDRESSES Of the Honourable House of Commons ASSEMBLED IN PARLIAMENT Made this present Year 1673 Concerning Popery and other Grievances March 29. 1673. The Parliaments Address to his Majesty for the Removal of Grievances in England and Ireland WE your Majesties most Loyal Subjects the Commons in this present Parliament assembled conceiving our selves bound in necessary Duty to your Majesty and in Discharge of the Trust reposed in us truly to inform your Majesty of the Estate of your Kingdom And though we are abundantly satisfied that it hath been your Royal Will and Pleasure that your Subjects should be governed according to the Laws and Customs of this Realm yet finding that contrary to your Majesties gracious Intention some Grievances and Abuses are crept in We crave Leave humbly to represent them to your Majesties Knowledge and Desire 1. That the Imposition of 12 d. per Chaldron upon Coals for the providing of Convoys by Vertue of an Order from Council dated the 15th of May 1672 may be recalled and all Bonds taken by Virtue thereof cancelled 2. That your Majesties Proclamation of the 24th of December 1672 for preventing of Disorders which may be committed by Soldiers and whereby the Soldiers now in your Majesties Service are in a manner exempted from the ordinary Course of Justice may likewise be recalled 3. And whereas great Complaints have been made out of several parts of this Kingdom of divers Abuses committed in Quartering of Soldiers That your Majesty would be pleased to give Order to redress those Abuses and in particular that no Soldiers be hereafter Quartered in any private Houses and that due Satisfaction may be given to the Inn-keepers or Victuallers where they lye before they remove 4. And since the continuance of Soldiers in this Nation will necessarily produce many Inconveniences to your Majesties Subjects We do humbly present it as our Petition and Advice That when this present War is ended all your Souldiers which have been raised since the last Session of Parliament may be Disbanded 5. That your Majesty would be likewise pleased to consider of the Irregularities and Abuses in pressing Soldiers and to give Order for the Prevention thereof for the future 6. And although it hath been the Course of former Parliaments to desire Redress in their Grievances before they proceeded to give a Supply yet we have so full Assurance of your Majesties Tenderness and Compassion towards your People that we humbly prostrate our selves at your Majesties feet with these our Petitions desiring your Majesty to take them into your Princely Consideration and to give such Orders for the Relief of your Subjects and the Removing these Pressures as shall seem lest to your Roâ—al Wisdâ—m Address touching Ireland WE your Majesties most Loyal Subjects the Commons in this present Parliament assembled taking into Consideration the great Calamities which have formerly befallen your Majesties Subjects of the Kingdom of Ireland from the Popish Recusants there who for the most part are profest Enemies to the Protestant Religion and the English Interest and how they make use of your Majesties gracious Disposition and Clemency are at this time grown more insolent and presumptuous than formerly to the apparent Danger of that Kingdom and your Majesties Protestant Subjects there the Consequence whereof may likewise prove very fatal to this your Majesties Kingdom of England if not timely prevented And having seriously weighed what Remedies may be most properly applied to those growing Distempers do in all Humility present your Majesty with these our Petitions 1. That for the Establishment and Quieting the Possessions of your Majesties Subjects in that Kingdom your Majesty would be pleased to maintain the Act of Settlement and Explanatory Act thereupon and to recall the Commission of Enquiry into Irish Affairs bearing Date the 17th of January last as containing many new and extraordinary Powers not only to the Frejudice of particular Persons whose Estates and Titles are thereby made liable to be questioned but in a manner to the Overthrow of the Acts of Settlement And if pursâ—â—d may be the Occasion of great Charge and Attendance to many of your Subjects in Ireland and shake the Peace and Security of the whole 2. That your Majesty would give Order that no Papist be either continued or hereafter admitted to be Judges Justices of the Peace Sheriffs Coroners or Mayors Sovereigns or Portrieves in that Kingdom 3. That the Titular Popish Archbishops Bishops Vicars-General Ablâ—â—s and all other exercising Ecclesiastical Jurisdiction by the Popes Authority and in particular Peter Talbot pretended Archbishop of Dublin for his notorious Disloyalty to your Majesty and Disobedience and Contempt of your Laws may be commanded by Proclamation forthwith to depart out of Ireland and all other your Majesties Dominions or otherwise to be prosecuted according to Law And that all Convents Seminaties and Publick Popish Scholes may be dissolved and suppressed and the Secular Priests commanded to depart under the Penalty 4 That no Irish Papist be admitted to inhabit in any part of that Kingdom unless duly licensed according to the aforesaid Acts of Settlemenâ— and that your Majesty would be pleased to recall your Letters of the 26th of February 1671. And the Proclamation thereupon whereby general Licence is
out of the Hands of the Possessor than purely those of his own Conscience which is worthy Mr. Considerer's highest Consideration I shall only take notice of one Objection more and then conclude fearing I have too much trespass'd on your Patience already It 's very hard says he that a man should lose his Inheritance because he is of this or that Perswasion in Matters of Religion And truly Gentlemen were the Case only so I should be intirely of his mind But alass Popery whatever Mr. Considerer is pleas'd to insinuate in not an harmless innocent Perswasion of a Number of Men differing from others in matters relating to Christian Religion but is really and truly a different Religion from Christianity it self Nor is the Inheritance he there mentions an Inheritance only of Black-Acre and White Acre without any Office annexed which requires him to be par Officio But the Government and Protection of several Nations the Making War and Peace for them the Preservation of their Religion the Disposal of Publick Places and Revenues the Execution of all Laws together with many other things of the greatest Importance are in this Case claimed by the Word Inheritance which if you consider and at the same time reflect upon the Enslaving and Bloody Tenents of the Church of Rome more particularly the Hellish and Damnable Conspiracy those of that Communion are now carrying on against our Lives our Religion and our Government I am confident you will think it as proper for a Wolf to be a Shepherd as it is for a Papist to be the Defender of our Faith c. The Old Gentleman had no sooner ended his Discourse but I returned him my hearty Thanks for the Trouble he had been pleased to give himself on this Occasion and I could not but acknowledge he had given me great Satisfaction in that Affair what it will give thee Charles I know not I am sure I parted from him very Melancholy for having been a Fool so long Adieu I am thy Affectionate I. D. A Collection of Speeches IN THE House of Commons In the Year 1680. The Lord L. Speech My Lords MAny have been the Designs of the Papists to subvert this poor Nation from the Protestant Religion to that of the See of Rome and that by all the undermining Policies possibly could be invented during the Recess of Parliament even to the casting the Odium of their most Damnable Designs on the Innocency of his Majesties most Loyal Subjects We have already had a taste of their Plottings in Ireland and find how many unaccountable Irish Papists dally arrive which we have now under Consideration My Lord Dunbarton a great Romanist has Petitioned for his stay here alledging several Reasons therein which in my Opinion make all for his speedy Departure for I can never think his Majesty and this Kingdom sufficiently secure till we are rid of those Irish Cattel and all others besides for I durst be bold to say that whatsoever they may pretend there is not one of them but have a destructive Tenet only they want Power not Will to put it in force I would not have so much as a Popish Man nor a Popish Woman to remain here nor so much as a Popish Dog or a Popish Bitch no not so much as a Popish Cat that should pur or mew about the King We are in a Labyrinth of Evils and must carefully endeavour to get out of them and the greatest danger of all amongst us are our conniving Protestants who notwithstanding the many Evidences of the Plot have been industrious to revile the Kings Witnesses and such an one is R L'E who now disappears being one of the greatest Villains upon the Earth a Rogue beyond my Skill to delineate has been the Bugbear to the Protestant Religion and traduced the King and Kingdoms Evidences by his notorious scribling Writings and hath endeavoured as much as in him lay to eclipse the Glory of the English Nation he is a dangerous rank Papist proved by good and substantial Evidence for which since he has walked under another disguise he deserves of all Men to be hanged and I believe I shall live to see that to be his State He has scandalized several of the Nobility and detracted from the Rights of his Majesty's great Council the Parliament and is now fled from Justice by which he confesses the Charge against him and that shows him to be guilty My humble Motion is that this House Address to his Majesty to put him out of the Commission of Peace and all other Publick Employments for ever Speeches in the Honourable House of Commons Mr. Speaker IN the Front of Magna Charta it is said Nulli negabimus nulli differimus Justitiam we will defer or deny Justice to no Man to this the King is Sworn and with this the Judges are intrusted by their Oaths I admire what they can say for themselves if they have not read this Law they are not fit to sit upon the Bench and if they have I had almost said they deserve to lose their Heads Mr. Speaker The State of the poor Nation is to be deplored that in almost all ages the Judges who ought to be Preservers of the Laws have endeavoured to destroy them and that to please a Court-Faction they have by Treachery attempted to break the Bonds asunder of Magna Charta the great Treasury of our Peace it was no sooner passed but a Chief Justice in that day perswades the King he was not bound by it because he was under Age when it was passed But this sort of Insolence the next Parliament resented to the ruine of the pernicious Chief Justice In the time of Richard the Second an unthinking dissolute Prince there were Judges that did insinuate into the King that the Parliament were only his Creatures and depended on his Will and not on the Fundamental Constitutions of the Land which Treacherous Advice proved the Ruine of the King and for which all those evil Instruments were brought to Justice In his late Majesties Time his Misfortunes were occasioned chiesly by the Corruptions of the Long Robe his Judges by an Extrajudicial Opinion give the King Power to raise Money upon an extraordinary Occasion without Parliament and made the King Judge of such Occasions Charity prompts me to think they thought this a Service to the King but the sad Consequences of it may convince all Mankind that every illegal Act weakens the Royal Interest and to endeavour to introduce Absolute Dominion in these Realms is the worst of Treasons because whilst it bears the Face of Friendship to the King and Designs to be for his Service it never fails of the contrary effect The two great Pillars of the Government are Parliaments and Juries it is this gives us the Title of Free-born English-men for my Notion of Free-English-men is this that they are ruled by Laws of their own making and tried by Men of the same Condition with themselves The Two great
Is he a wise man who if his house be falling by reason of too much weight upon the roof will lay more upon it rather than propt it up and take off some of the weight So they who take the Church to consist of Ceremonies must pardon me that I am not of their opinion since the word of God warrants no such thing and my reason tells me that they are too much interested in the cause to be fit judges for with them he is accounted a good Son of the Church who keeps a great stir about Ceremonies though he live never so ill a life and perhaps is drunk when he performs his Devotion but if a man seem to be indifferent as to Ceremonies and make them no more than indeed they be yet in Practice Conforms more than he that makes a great noise about them though he live never so godly a life and as near as he can to the rule of God's word yet he is a Fanatick and an enemy to the Church but God Almighty tells us he will have mercy and not Sacrifice Gentlemen They who accuse me for an enemy to the King and Church have left you out of the story but I hope I shall not forget you but remember on whose errand I am sent and as I have hitherto stuck to your interest I hope nothing will draw me aside from it and if I know my own heart I am perswaded that neither rewards threats hopes nor fears will prevail upon me I desire nothing but to promote God's glory and the interest of the King and people and if it shall please God to let me see the Protestant Religion and Government established I shall think I have lived long enough and I shall be willing at that instant to resign my breath Gentlemen I thought good to say this to you and I thank you for your patience and hope I shall so behave my self in your Service that I shall make it appear I am sensible of the honour you have done me I humbly thank you all An Account of the Proceedings at the Sessions for the City of Westminster against Thomas Whitfield Scrivener John Smallbones Woodmonger and William Laud Painter for Tearing a Petition prepared to be presented to the King's Majesty for the Sitting of the Parliament With an Account of the said Petition presented on the 13th instant and His Majesty's Gracious Answer IT being the undoubted Right of the Subjects of England Vide the Resolutions of the Law Cook Jurisdict of Courts 79. Hobart 220. Vel. Magna Chart. Exl. Spencer 51. Vide the Proclamations of K. Charles I. and warranted by the Law of the Land and the general Practice of all former Times in an humble manner to apply themselves to His Majesty in the Absence of Parliaments by Petition for the Redress of their Grievances and for the obtaining such things as they apprehend necessary or beneficial to the safety and well being of the Nation And it being their Duty to which they are bound by the expres words of the Oath of Allegiance * I do Swear from my Heart That I will hear Faith and true Allegiance to His Majesty His Heirs and Successors and Him and Them will Defend to the uttermost of my power against all Conspiracies and Attempts whatsoever which shall be made against His or Their Persons Their Crown and Dignity And will do my best endeavour to disclose and make known unto His Majesty His Heirs and Successors all Treasons and Trayterous Conspiracies which I shall know or hear of to be against him or any of them to represent to Him any danger which they apprehend Threatning His Royal Person or His Government divers Persons in and about the City of Westminster considering the too apparent and unspeakable Danger His Majesty and His Kingdoms are in from the Hellish Plots and Villainous Conspiracies of the Bloody Papists and their Adherents and conceiving no sufficient or at least so fit Remedy could be provided against it but by the Parliament by whom alone several Persons accused of these accursed Designs can be brought to Tryal did prepare and sign a Petition humbly representing to His Majesty the imminent danger His Royal Person the Protestant Religion and the Government of this Nation were in from that most damnable and hellish Popish Plot branched forth into several the most Horrid Villainies For which several of the principal Conspirators stand impeached by Parliament and thereby humbly praying that the Parliament might Sit upon the 26th of January to try the Offenders and to Redress the important Crievances no otherways to be redressed of which Thomas Whitfield John Smallbenes and William Laud Inhabitants in Westminster taking notice upon the 20th day of December last they sent to Mr. William Horsley who had signed and promoted the Petition and in whose custody it was to bring or send it to them for that they desired to sign it And thereupon Mr. Horsley attended them and producing the Petition in which many Persons had joyned he delivered it at their request to be by them read and signed but Mr. Whitfield immediately tore it in pieces and threw it towards the Fire and Smallbones catching it up said That he would not take 10 s. for the Names and then they declared that they sent for it for that very purpose and owned themselves all concerned in the design Upon Mr. Horsley's complaint hereof to a Justice of the Peace a Warrant was granted against them and they being taken thereupon after examination of the matter were bound to appear and answer it at the next quarter Sessions of the Peace for the City of Westminster and upon Friday the 9th of January instant the Sessions being holden and there being present several Justices of the Peace that are eminent Lawyers the matter was brought before them and the Grand Jury Indicted the said Whitfield Smallbones and Laud as followeth viz. The City Borough and Town of Westminster in the County of Middlesex THe Jurors for our Soveraign Lord the King upon their Oath do present that whereas the Subjects and Liege People of the Kings and Queens of this Realm of England by the Laws and Customs of the Realm have used and been accustomed to represent their Publick Grievances by Petition or by any other submissive way And that the 20th day of December in the one and Thirtieth Year of the Reign of our Soveraign Lord Charles the Second by the Grace of God of England Scotland France and Ireland King Defender of the Faith c. at the Parish of St. Martin's in the Fields within the Liberty of the Dean and Chapter of the Collegiate Church of St. Peter of the City Borough and Town of Westminster in the County of Middlesex a Petition written in paper was prepared and Subscribed with the hands of divers the said King's Subjects and Liege People to the Jury unknown and to our said Soveraign Lord King Charles the Second Directed and to our said Soveraign Lord
recites the daily Experiences that many of his Majesty's Subjects that adhere in their Hearts to the Popish Religion by the Infection drawn from thence by the wicked and devillish Counsel of Jesuits Seminaries and other like Persons dangerous to the Church and State are so far perverted in the point of their Loyalties and due Allegiance to the King's Majesty and the Crown of England as they are ready to entertain and execute any Treasonable Conspiracies and Practices And for the better Trial how his Majesty's Subjects stand affected in point of their Loyalties and due Obedience Enacts that it shall be lawful for any Bishop in his Diocess or any two Justices of the Peace whereof one to be of the Quorum within the Limits of their Jurisdiction out of the Session to require any Person of the age of eighteen Years or above which shall be convict or indicted of Recusancy other than Noblemen c. or which shall not have received the Sacrament twice within the Year then next past or any Person passing in or through the Country unknown that being examined upon Oath shall confess or not deny him or her self to be a Recusant and to take the Oath therein after expressed viz. c. The Oath of Allegiance So that by the occasion of imposing the Oath and by the appointing it to be tendred only to Papists or suspected Papists it is apparent that the Design of the Law-makers was to detect such Persons as were perverted or in danger to be perverted in their Loyalty by Infection drawn from the Popish Religion The form of the Oath makes it yet more evident being wholly levell'd against any Opinion of the Lawfulness of deposing the King or practising any Treason against him upon pretence of his being excommunicated or deprived by the Pope and against any Opinion of the Pope's Power to discharge Subjects from their Oaths of Fidelity to their Princes It runs thus viz. I A. B. Do truly and sincerely profess testify and declare in my Conscience before God and the World that our Soveraign Lord King James is lawful and rightful King of this Realm and of all his Majesty's Dominions and Countries And that the Pope neither of himself nor by any Authority of the Church or See of Rome or by any other means with any other hath any Power or Authority to depose the King or to dispose any of his Majesty's Kingdoms or Dominions or to authorize any Foreign Prince to invade or annoy him or his Countries or to discharge any of his Subjects of their Allegiance or Obedience to his Majesty or to give licence or leave to any of them to bear Arms raise Tumults or to offer any Violence or Hurt to his Majesty's Royal Person State or Government or to any of his Majesty's Subjects within his Majesty's Dominions Also I do swear from my Heart that notwithstanding any Declaration or Sentence of Excommunication or Deprivation made or granted or to be made or granted by the Pope or his Successors or by any Authority derived or pretended to be derived from him or his See against the said King his Heirs and Successors or any Absolution of the said Subjects from their Obedience I will bear Faith and true Allegiance to his Majesty his Heirs and Successors and him and them will defend to the uttermost of my Power against all Conspiracies and Attempts whatsoever which shall be made against his or their Persons their Crown and Dignity by reason or colour of any such Sentence or Declaration or otherwise and will do my best endeavour to disclose and make known unto his Majesty his Heirs and Successors all Treasons and traiterous Conspiracies which I shall know or hear of to be against him or any of them And I do further swear that I do from my Heart abhor and detest and abjure as impious and heretical this damnable Doctrine and Position That Princes which be excommunicated or deprived by the Pope may be deposed or murthered by their Subjects or any other whatsoever And I do believe and in Conscience am perswaded that neither the Pope nor any Person whatsoever hath Power to absolve me of this Oath or any part thereof which I acknowledg by good and lawful Authority to be lawfully administred unto me and I do renounce all Parsons and Dispensations to the contrary And all these things I do plainly and sincerely acknowledg and swear according to these express words by me spoken and according to the plain and common Sense and Vnderstanding of the same words without any Equivocation or mental Evasion or secret Reservation whatsoever And I do make this Recognition and Acknowledgment heartily willingly and truly upon the true Faith of a Christian So help me God And the Statute of 7 Jacobi cap. 6. recites that Whereas by a Statute made in the third Year of the said King's Reign the form of an Oath to be ministred and given to certain Persons in the same Act mentioned is limited and prescribed tending only to the Declaration of such Duty as every true and well affected Subject not only by bond of Allegiance but also by the Commandment of Almighty God ought to bear to the King his Heirs and Successors Which Oath such are infected with Popish Superstition do oppugne with many false and unsound Arguments the just defence whereof the King had therefore undertaken and worthily performed to the great contentment of all his Subjects notwithstanding the Gainsayings of Contentious Adversaries And to shew how greatly the King 's Loyal Subjects do approve the said Oath they beseech his Majesty that the said Oath be administred to all his Subjects The Pope and Authority of the See of Rome run through the first Paragraph Notwithstanding any Declaration or Sentence of Excommunication c. Governs the second Paragraph Excommunicated and deprived the Pope are the material words in the third Paragraph The fourth is added in Majorem cautelam in opposition to the Popish Doctrine of Dispensing with Oaths Absolving Subjects from their Allegiance Equivocations Mental Evasions c. So that as the Oath of Supremacy did but enforce the Antient Oath of Fealty with an acknowledgment of the Queen 's supream Authority in Ecclesiastial Causes and things as well as Temporal and a Renunciation of all Foreign Jurisdictions so the Oath of Allegiance does but enforce the same old Oath of Fealty by obliging the Subjects of England expresly to disown any lawful Authority in the Pope or See of Rome to depose invade or annoy the King his Dominions or Subjects And notwithstanding any Sentence of Excommunication Deprivation c. by the Pope c. to bear Faith and true Allegiance to the King his Heirs and lawful Successors And to abjure that Position that it is lawful to depose Princes that are Excommunicated or Deprived by the Pope Whatever is added is either Oath over and above what was exprest in the old Oath of Fealty is but as Explanatory of it and branching it out
be grantable against the Commissioners upon the Statute of 2 H. 5. if they do not deliver the Copy of the Libel to the Party Whereto they all answered That that Statute is intended where the Ecclesiastical Judge proceeds ex Officio ore tenus Thirdly Whether it were an Offence punishable and what Punishment they deserved who framed Petitions and collected a multitude of hands thereto to prefer to the King in a publick cause as the Puritans had done with an intimation to the King That if he denied their Sute many thousands of his Subjects would be discontented Whereto all the Justices answered That it was an Offence finable at Discretion and very near to Treason and Felony in the Punishment For they tended to the raising of Sedition Rebellion and Discontent among the People To which Resolution all the Lords agreed And then many of the Lords declared That some of the Puritans had raised a false Rumor of the King how he intended to grant a Toleration to Papists Which Offence the Justices conceived to be heinously finable by the Rules of the Common Law either in the Kings Bench or by the King and his Councel or now since the Statute of 3 H. 7. in the Star-Chamber And the Lords severally declared how the King was discontented with the said false Rumor and had made but the Day before a Protestation unto them that he never intended it and that he would spend the last drop of Bloud in his Body before he would do it and prayed that before any of his Issue should maintain any other Religion than what he truly professed and maintained that God would take them out of the World I doubt not but yourself and every English Protestant will joyn with this Royal Petitioner and will heartily say Amen But you desire to know if I think the Resolution of the Judges in this case ought to deter us from humbly Petitioning his Majesty that this Parliament may effectually sit on the 26th day of January next In order to this give me leave to observe to you As it is most certain that a great Reverence is due to the Unanimous Opinion of all the Judges so there is a great difference to be put between the Authority of their Judgments when solemnly given in Cases depending before them and their sudden and extrajudicial Opinions The Case of Ship-money it self is not a better proof of this than that which you have now read as you will now see if you consider distinctly what they say to the several Questions proposed to them As to their Answer to the first Question it much concerns the Reverend Clergy to enquire whither they did not mistake in it And whether the King by his Proclamation can make new constitutions and oblige them to obedience under the Penalty of Deprivation Should it be so and should this unhappy Kingdom ever suffer under the Reign of a Popish Prince he might easily rid himself of such obstinate Hereticks and leave his Ecclesiastical Preferments open for Men of better Principles He will need only to publish a Proclamation that Spittle and Salt should be used in Baptism that Holy-water should be used and Images set up in Churches and a few more such things as these and the Business were effectually done But if you will believe my Lord Chief Justice Cook 12. Co. 19. 12. Co. 49. he will tell you that it was agreed by all the Judges upon Debate Hill 4to Jacobi that the King cannot change his Ecclesiastical Law and you may easily remember since the whole Parliament declared That he could not alter or suspend them I have the uniform Opinion of all the Judges given upon great Deliberation Co. Mag. Char. 616. Mich. 4to Jac. to justifie me if I say that our Judges here were utterly mistaken in the Answer which they gave to the second Question I will not cite the numerous subsequent Authorities since every man knows that it is the constant practice of Westminster-Hall at this Day to grant Prohibitions upon refusal to give a Copy of Articles where the Proceedings in the Ecclesiastical Courts are ex Officio You see there was a kind of ill Fate upon the Judges this day as usually there was when met in the Star-chamber and that they were very unfortunate in answering two of the three Questions proposed to them let us go on to consider what does principally concern us at present their Answer to the last Question You have just done reading it and therefore I need not repeat to you either the Doubt or the Solution of it but one may be allowed to say modestly that it was a sudden Answer 'T is possible the Lords then present were well enough inform'd when they were told that such kind of Petitioning was an Offence next to Treason and Felony but I dare be so bold as to say That at this Day not a Lawyer in England would be the wiser for such an Answer they would be confounded and not know whether it were Misprision of Treason which seems an Offence nearest to Treason or Petty-larceny which seems nearest to Felony You will be apt to tell me that I mistake my Lords the Judges and they spoke not of the nature of the crime but the manner of the Punishment but this will mend the matter but little for since the Punishments of those two Crimes are so very different you are still as much in the dark as ever what these ambiguous words mean Well but we will agree that the Crime about which the Enquiry was made was a very great one When Men arrive to such Insolence as to threaten their Prince it will be but little excuse to them to call their Menaces by the soft and gentle Name of Petitions But you would know for what and in what manner we are at present to Petition 13 Car. 2. c. 5 and I will give you a plain and infallible Rule It is the Statute 13 Car. 2. c. 5. Be it enacted c. that no person or persons whatsoever shall solicite labour or procure the getting of hands or other consent of any persons above the number of twenty or more to any Petition Complaint Remonstance Declaration or other Addresses to the King or both or either Houses of Parliament for alteration of matters established by Law in Church or State unless the matter thereof have been first consented to and ordered by three or more Justices of the County or by the major part of the Grand Jury of the County or Division of the County where the same matter shall arise at their publick Assizes or General quarter-Quarter-Sessions or if arising in London by the Lord Mayor Aldermen and Commons in Common Council assembled and that no person or persons whatsoever shall repair to His Majesty or both or either of the Houses of Parliament upon Pretence of presenting or delivering any Petition Complaint Remonstrance or Declaration or other Addresses accompanied with excessive Number of People not at
proved Thus was that man hanged upon that Confession only though the promise that drew it from him doth appear upon Record and can be proved by good and clear Evidence And from this your Majesty may judge what credit may be given to such men We do not at present enlarge on other particulars though of great importance such as Monopolies selling places of Honors turning men of known integrity out of their Imployments to which they had a good and just right during their lives the profits of one of the most considerable of these being sequestred for sometime and applyed for the Dutchess of Lauderdales use the treating about and receiving of great bribes by the Duke and Dutchess of Lauderdale and the Lord Hatton and particularly from the Towns of Edenborough Abberdeen Lynlythgo and many others for procuring from your Majesty Warrants for illegal impositions within these Towns the manifest and publick perverting of Justice in the Session besides the most signal abuses of the Mint and Copper Coin that are most grievous to all your Subjects But the number of these is so great and they will require so many Witnesses to be brought hither for proving them that we fear it would too much trouble your Majesty now to examine them all but your Majesty shall have a full account of them afterwards One thing is humbly offered to your Majesty as the root of these and many other oppressions which is that the Method of governing that Kingdom for several years hath been That the Lord Hatton and his adherents frame any Letter that they desire from your Majesty to your Council and send it to the Duke of Lauderdale who returns it signed and this is brought to the Council upon which if at any time a debate ariseth concerning the matter of that Letter as being against or with Law and when it is proposed that a representation of that should be made to your Majesty then the Lord Hatton in his insolent way calls to have it put to the question as if it were a crime to have any Warrant either debated or represented to your Majesty which is procured by the Duke of Lauderdale or himself and this is ecchoed by his Party and by this means any further debating is stopped There are some other particulars relating to these heads that are to be offered to your Majesty in other Papers which are not added here lest your Majesty should now be troubled with too long a Paper The Impeahment of the Duke and Dutchess of Lauderdale with their Brother My Lord Hatton Presented to His Majesty by the City of Edenbourgh The matters of Fact particularly relating to the Town of Edenbourgh humbly offered for your Majesties Information Before the Matter of Fact be spoken to it is necessary that your Majesty be informed of one thing upon which this whole Affair hath moved THe City of Edenbourgh had at several times given considerable sums of Money to the Duke of Lauderdale amounting to upward of Twelve Thousand pounds Sterlin and the Lord Hatton Brother to the said Duke being inraged by that their former practice and being arrived to great height and influence in the Administration of Your Majesties Affairs in Scotland did thereupon resolve on a Designe of getting Money for himself also from them as will appear to your Majesty by the following Narration but the Magistrates at that time and such others as had then the Principal Influence in the Administration of Affairs in that Town being honest Men of good Fortunes and not to be brought to comply with his Design he bethought himself of all ways to vex them and knowing they did much value the Prosperity of the Town he thought that the first means for promoting that his Design was to have them threatned with removing Your Majesties Publique Judicatures from that City to Sterlin and perswaded his Brother the Duke of Lauderdale to move Your Majesty to that purpose but being disappointed of that project by Your Majesties Royal Wisdom Your Majesty looking upon it as if it were to declare to the World that You were jealous of so great a Part of that Your Ancient Kingdom he bethought himself of new ways to accomplish his Design for which he judged nothing so proper and effectual as to disturb them in the choice of their Magistrates and Town-Counsel and by all means possible to get some of his own chusing fit for his own ends brought into the Administration of the Affairs of that City In order to which being impatient of any longer delay he laid hold of what follows being the first occasion that offer'd though a very frivolous one At Michaclmas 1674 The said City of Edenbourgh being to go about the Election of their Magistrates for the ensuing year there was procured a Letter from Your Majesty to Your Privy Counsel commanding them to forbid the Magistrates and Town Counsel to proceed in their Elections but to continue the Magistrates that then were till Your Majesty's further pleasure should be known the reason suggested to Your Majesty for it was taken from this Circumstance That the Election ought to be made upon the Tuesday after Michaelmas and it happening this year that Michaelmas fell to be on a Tuesday they were resolved to proceed to their Elections upon Michaelmas-day Though this was a very small Matter and upon very good and prudent Considerations resolved as will afterward appear yet was it represented to Your Majesty as a Factious Design and an Innovation of dangerous Consequence tending to create and maintain Faction in that City contrary to Your Majesties Service Your Majesties foresaid Letter being intimated to the Magistrates and Town-Counsel they did immediately give exact obedience to the same They did also represent to Your Majesties Privy Council the Rights that they had for chusing their own Magistrates which had been granted to them by many of Your Majesties Royal Ancestors and confirmed by many Parliaments by vertue of which they humbly conceived they ought to be suffered to proceed in their Elections They did also represent to Your Majesties Privy Council the Reasons which had moved them to resolve of making their Elections on the said Tuesday being Michaelmas day which in short were that by their Constitution they were obliged upon the Friday before Michaelmas to make the List out of which the Magistrates are to be chosen after the doing of which there is a Surcease and Vacation of all ordinary Courts of Judicature within the Town and the whole time is spent by the Common People and Tradesmen of the Town in Rioting and Drinking until the Elections be finished which in this case would have been Twelve days which they did in Prudence think they ought to shorten not conceiving it contrary in the least to the established Rules of their Election 2. On these things they did humbly crave Your Majesties Privy Council would be pleased to represent to Your Majesty that thereby they might be freed from the suspicion of any
nothing in the Test consistent with either And 3dly If the Protestant Religion and the Earl his reference to it be nothing then is not only the Council sadly reproached who in their Explanation declare this to be the only thing sworn to in the first part of the Test but our Religion quite subverted as far as this Test can do it But next for the Treason the Advocate says That the Earl expresly declares he means not by the Test to bind up himself from wishing or endeavouring in his station and in a lawful way any alteration he shall think for the advantage of Church or State whereby says he the Earl declares himself and others loosed from any obligation to the Government and from the duty of all good Subjects and that they may make what alterations they please A direct contrariety instead of a just consequence as if to be tied to Law Religion and Loyalty were to be loosed from all three Can there be a flatter and more ridiculous contradiction Next the Advocate pretends to found upon the fundamental Laws of this and all Nations Whereby it is Treason for any Man to make any alterations he thinks fit for the advantage of Church or State But first The Earl is not nor cannot be accused of so much as wishing much less endeavouring or making any alteration either in Church or State only he reserves to himself the same freedom for wishing which he had before his Oath and that all that have taken it do in effect say they still retain 2dly For a man to endeavour in his station and in a lawful way such alterations in Church or State as he conceives to their advantage not repugnant to Religion and Loyalty is so far from being Treason that it is the duty of every Subject and the sworn Duty of all His Majesty's Councellors and of all Members of Parliament But the Advocate by fancying and misapplying Laws of Nations wresting Acts of Parliaments adding taking away chopping and changing words thinks to conclude what he pleases And thus he proceeds That the Treason of making Alterations is not taken off by such qualifications of making them in a lawful way in ones station to the advantage of Church or State and not repugnant to Religion or Loyalty But how then Here is a strange matter Hundreds of Alterations have been made within these few years in our Government and in very material Points and the King 's best Subjects and greatest Favourites have both endeavoured and effectuate them And yet because the things were done according to the Earl's qualifications instead of being accounted Treason they have been highly commended and rewarded The Treasury hath been sometimes in the hands of a Treasurer sometimes put into a Commission backward and forward And the Senators of the College of Justice the right of whose places was thought to be founded on an Act of Parliament giving His Majesty the prerogative only of presenting are now commissioned by a Patent under the great Seal both which are considerable alterations in the Government which some have opposed others have wished and endeavoured and yet without all fear of Treason on either hand only because they acted according to these qualifications in a lawful way and not repugnant to Religion and Loyalty But that which the Advocate wilfully mistakes for it is impossible he could do it ignorantly is that he will have the endeavouring of alterations in general not to be of it self a thing indifferent and only determinable to be good or evil by its qualifications as all men see it plainly to be but to be forsooth in this very generality intrinsically evil a Notion never to be admitted on Earth in the frail and fallible condition of humane Affairs And then he would establish this wise Position by an example he adduces That rising in Arms against the King for so sure he means it being otherwise certain that rising in Arms in general is also a thing indifferent and plainly determinable to be either good or evil as done with or against the King's Authority is Treason and says If the Earl had reserved to himself a liberty to rise in Arms against the King tho he had added in a lawful manner yet it would not have availed because and he says well This being in it self unlawful the qualification had been but shams and contrariae facto But why then doth not his own reason convince him where the difference lies viz. That rising in Arms against the King is in it self unlawful whereas endeavouring alterations is only lawful or unlawful as it is qualified and if qualified in the Earl's Terms can never be unlawful But says the Advocate The Earl declares himself free to make all alterations and so he would make Men believe that the Earl is for making All or Any without any reserve whereas the Earl's words are most express that he is Neither for making all or any but only for wishing and endeavouring for such as are good and lawful and in a lawful way which no Man can disown without denying common reason nor no sworn Councellor disclaim without manifest Perjury But the Advocate 's last conceit is That the Earl's restriction is not as the King shall think fit or as is consistent with the Law but that himself is still to be judge of this and his Loyalty to be the standard But first The Earl's restriction is expresly according to Loyalty which in good sense is the same with according to Law and the very thing that the King is ever supposed to think Secondly As neither the Advocate nor any other hitherto have had reason to distinguish the exercise and actings of the Earlâ—s Loyalty from those of His Majesty's best Subjects so Is it not a marvellous thing that the Advocate should profess to think for in reality he cannot think it the Earl's words His Loyalty which all men see to be the same with his Duty and Fidelity or what else can bind him to his Prince capable of any quibble far more to be a ground of so horrid an accusation And whereas the Advocate says The Earl is still to be judge of this It is but an insipid calumny it being as plain as any thing can be That the Earl doth nowise design His thinking to be the rule of Right and Wrong but only mentions it as the necessary application of these excellent and unerring Rules of Religion Law and Reason to which he plainly refers and subjects both his thinking and himself to be judged accordingly By which it is evident that the Earl's restriction is rather better and more dutiful than that which the Advocate seems to desiderate And if the Earl's restrictions had not been full enough it was the Advocate 's part before administrating the Oath to have craved what more he thought necessary which the Earl in the Case would not have refused But it is believed the Advocate can yet hardly propose restrictions more full and suitable to Duty
of Justitiary before pronouncing sentence but without any answer or effect It was then commonly said that by the old Law and Custom the Court of Justitiary could no more in the case of Treason than of any other Crime proceed further against a Person not compearing and absent than to declare him Out-Law and Fugitive And that albeit it be singular in the case of Treason that the Trial may go on even to a final Sentence though the Party be absent yet such Trials were only proper to and always reserved for Parliaments And that so it had been constantly observed until after the Rebellion in the Year 1666 But there being several Persons notourly engaged in that Rebellion who had escaped and thereby withdrawn themselves from Justice it was thought that the want of a Parliament for the time ought not to afford them any immunity and therefore it was resolved by the Council with advice of the Lords of Session that the Court of Justitiary should summon and proceed to trial and sentence against these Absents whether they compeared or not and so it was done Only because the thing was new and indeed an innovation of the old Custom to make all sure in the first Parliament held thereafter in the Year 1669. it was thought fit to confirm these Proceedings of the Justitiary in that point and also to make a perpetual Statute that in case of open Rebellion and Rising in Arms against the King and Government the Treason in all time coming might by an Order from His Majesty's Council be tried and the Actors proceeded against by the Lords of Justitiary even to final sentence whether the Traytors compeared or not This being then the present Law and custom it is apparent in the first place that the Earl's Case not being that of an open Rebellion and Rising in Arms is not at all comprehended in the Act of Parliament So that it is without question that if in the beginning he had not entered himself Prisoner but absented himself the Lords of Justiciary could not have gone further than upon a citation to have declared him Fugitive But others said that the Earl having both entered himself Prisoner and compeared and after debate having been found guilty before he made his escape the case was much altered And whether the Court could notwithstanding of the Earl's intervening escape yet go on to sentence was still debatable for it was alledged for the affirmative that seeing the Earl had twice compeared and that after debate the Court had given judgment and the Assize returned their Verdict so that had nothing remained but the pronouncing of Sentence it was absurd to think that it should be in the power of the Party thus accused and found guilty by his escape to frustrate Justice and withdraw himself from the punishment he deserved But on the other hand it was pleaded for the Earl That first It was a fundamental Rule That until once the Cause were concluded no Sentence could be pronounced Next that it was a sure Maxim in Law that in Criminal Actions there neither is or can be any other conclusion of the cause than the Parties presence and silence So that after all that had past the Earl had still freedom to add what he thought fit in his own defence before pronouncing sentence and therefore the Lords of Justiciary could no more proceed to sentence against him being escaped than if he had been absent from the beginning the Cause being in both cases equally not concluded and the principle of Law uniformly the same viz. That in Criminals except in cases excepted no final sentence can be given in absence For as the Law in case of absence from the beginning doth hold that just temper as neither to suffer the Contumacious to go altogether unpunished nor on the other hand finally to condemn a party unheard And therefore doth only declare him Fugitive and there stops So in the case of an Escape before Sentence where it cannot be said the Party was fully heard and the Cause concluded the Law doth not distinguish nor can the parity of Reason be refused Admitting then that the Cause was so far advanced against the Earl that he was found guilty Yet 1. This is but a declaring of what the Law doth as plainly presume against the Party absent from the beginning and consequently of it self can operate no further 2dly The finding of a Party guilty is no conclusion of the Cause And 3dly As it was never seen nor heard that a Party was condemned in absence except in excepted Cases whereof the Earl's is none so he having escaped and the Cause remaining thereby unconcluded the general rule did still hold and no sentence could be given against him It was also remembred that the Dyets and days of the Justice Court are peremptour and that in that case even in Civil far more in Criminal Courts and Causes a Citation to hear Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the general Opinion That seeing the denouncing the Earl Fugitive would have wrought much more in Law than all that was commonly said at first to be designed against him And that his Case did appear every way so favourable that impartial men still wondered how it came to be at all questioned It had been better to have sisted the Process with his Escape and taken the ordinary course of Law without making any more stretches But as I have told you when the Friday came the Lords of Justiciary without any respect or answer given to the Petition above-mentioned given in by the Countess of Argyle to the Court for a stop pronounced Sentence first in the Court and then caused publish the same with all solemnity at the Mercat-Cross at Edinburgh FOrasmuch as it is found by an Assize That Archibald Earl of Argyle is guilty and culpable of the Crimes of Treason Leasing-making and Leasing-telling for which he was detained within the Castle of Edinburgh out of which he has now since the said Verdict made his Escape Therefore the Lords Commissioners of Justiciary decern and adjudge the said Archibald Earl of Argyle to be execute to the death demained as a Traytor and to underly the pains of Treason and other punishments appointed by the Laws of this Kingdom when he shall be apprehended at such a time and place and in such manner as his Majesty in his Royal pleasure shall think fit to declare and appoint And his Name Memory and Honours to be extinct And his Arms to be riven forth and delete out of the Books of Arms swa that his Posterity may never have place nor be able hereafter to bruick or joyse any Honour Offices Titles or Dignities within this Realm in
shall Act not only contrary to but to the Destruction of the Fundamental Laws of the Kingdom And how Harmonious such Justice will be the Text tells us Deut. 27.17 Cursed be he that removeth his Neighbours Land mark and all the People shall say Amen That this present Session may have a happy Issue to answer the great ends of Parliaments and therein our present Exigencies and Necessities is the incessant Cry and longing Expectation of all the Protestants in the Land The Security of English-mens Lives or the Trust Power and Duty of the Grand Juries of England Explained according to the Fundamentals of the English Government and the Declarations of the same made in Parliament by many Statutes THE Principal Ends of all Civil Government and of Humane Society were the Security of Mens Lives Liberties and Properties mutual assistance and help each unto other and provision for their common benefit and advantage and where the Fundamental Laws and Constitution of any Government have been wisely adapted unto those Ends such Countries and Kingdoms have increased in Vertue Prowess Wealth and Happiness whilst others through the want of such excellent Constitutions or negect of preserving them have been a Prey to the Pride Lust and Cruelty of the most Potent and the People have had no assurance of Estates Liberties or Lives but from their Grace and Pleasure They have been many times forced to welter in each other's Blood in their Master's quarrel for Dominion and at best they have served like Beasts of burthen and by continual base subserviency to their Master's Vices have lost all sense of true Religion Virtue and Manhood Our Ancestors have been famous in their Generations for Wisdom Piety and Courage in forming and preserving a Body of Laws to secure themselves and their Posterities from Slavery and Oppression and to maintain their Native Freedoms to be subject only to the Laws made by their own Consent in their general Assemblies and to be put in execution chiefly by themselves their Officers and Assistants to be guarded and defended from all Violence and Force by their own Arms kept in their own hands and used at their own charge under their Prince's Conduct entrusting nevertheless an ample Power to their Kings and other Magistrates that they may do all the good and enjoy all the happiness that the largest Soul of man can honestly wish and carefully providing such means of correcting and punishing their Ministers and Councellors if they transgressed the Laws that they might not dare to abuse or oppress the People or design against their freedom or welfare This Body of Laws our Ancestors always esteemed the best Inheritance they could leave to their Posterities well knowing that these were the sacred Fence of their Lives Liberties and Estates and an unquestionable Title whereby they might call what they had their own or say they were their own Men The inestimable value of this Inheritance moved our Progenitors with great resolution bravely from Age to Age to defend it and it now falls to our lot to preserve it against the Dark Contrivances of a Popish Faction who would by Frauds Sham-Plots and Infamous Perjuries deprive us of our Birth-rights and turn the points of our Swords our Laws into our own Bowels they have impudently scandalized our Parliaments with Designs to overturn the Monarchy because they would have excluded a Popish Successor and provided â—or the Security of the Religion and Lives of all Protestants They have caused Lords and Commoners to be for a long time kept in Prisons and suborned Witnesses to swear matters of Treason against them endeavouring thereby not only to cut off some who had eminently appeared in Parliament for our ancient Laws but through them to blast the Repute of Parliaments themselves and to lessen the Peoples Confidence in those great Bulwarks of their Religion and Government The present purpose is to shew how well our Worthy Fore-fathers have provided in our Law for the safety of our Lives not only against all attemps of open Violence by the severe punishment of Robbers Murtherers and the like but the secret poisonous Arrows that fly in the dark to destroy the Innocent by false Accusation and Perjuries Our Law-makers foresaw both their dangers from the Malice and Passion that might cause some of private condition to accuse others falsly in the Courts of Justice and the great hazards of Worthy and Eminent Mens Lives from the Malice Emulation and Ill Designs of Corrupt Ministers of State or otherwise potent who might commit the most odious of Murthers in the form and course of Justice either by corrupting of Judges as dependant upon them for their Honour and great Revenue or by bribing and hiring men of depraved Principles and desperate Fortunes to swear falsly against them doubtless they had heard the Scriptures and observed that the great men of the Jews sought out many to swear Treason and Blasphemy against Jesus Christ They had heard of Ahab's Courtiers and Judges who in the Course and Form of Justice by false Witnesses murthered Naboth because he would not submit his Property to an A bitrary Power Neither were they ignorant of the Ancient Roman Histories and the pestilent false Accusers that abounded in the Reign of some of those Emperors under whom the greatest of Crimes was to be virtuous Therefore as became good Legislators they made as prudent Provinon as perhaps any Country in the World enjoys for equal and impartial Administration of Justice in all the concerns of the Peoples Lives that every man whether Lord or Commoner might be in safety whilst they lived in due obedience to the Laws For this purpose it is made a Fundamental in our Government that unless it be by Parliament See Lâ— Cook 's Instit 3d part p. 40. See Mag. Chart. Cooke's â—d part of Insâ—â—t p. 50 51. no man's Life should be touched for any Crime whatsoever save by the Judgment of at least 24 Men that is 12 or more to find the Bill of Indictment whether he be Peer of the Realm or Commoner and 12 Peers or above if a Lord if not 12 Commoners to give the Judgment upon the general Issue of not guilty joined of these 24 the first 12 are called the Grand Inquest or the Grand Jury for the extent of their power and in regard that their number must be no more than 12 sometimes 23 or 25 never were less than 13. Twelve whereof at least must agree to every Indictment or else 't is no legal Verdict If 11 of 21 or of 13 should agree to find a Bill of Indictment it were no Verdict The other Twelve in Commoners Cases are called the Petit-Jury and their number is ever Twelve but the Jury for a Peer of the Realm may be more in number though of like Authority The Office and Power of these Juries is Judicial they only are the Judges from whose Sentence the Indicted are to expect Life or Death upon their Integrity and Understanding
do no wrong But the greatest of all wrongs and that which hath been most destructive unto Thrones is by Fraud to circumvent and destroy the Innocent This is to turn a Legal King into a Nimrod a Hunter of Men This is not to act the part of a Father or a Shepherd who is ready to lay down his Life for his Sheep but such as the Psalmist complains of who eat up the People as if they eat Bread Jezebel did perhaps applaud her own Wit and think she had done a great Service to the King by finding out Men of Belial Judges and Witnesses to bring Naboth to be stoned but that unregarded Blood was a Canker or the Plague of Leprosie in his Throne and Family which could not be cured but by its overthrow and extinction But if the Attorney General cannot serve the King by abusing Juries and subverting the Innocent he can as little gain an advantage to himself by falsifying his Oath by the true meaning whereof he is to prosecute Justice Impartially and the Eternal Divine Law would annul any Oath or Promise that he should have taken to the contrary even though his Office had obliged him unto it The like Obligation lies upon Jurors not to suffer themselves to be deluded or persuaded that the Judges King's Council or any others can dispense with that Oath or any part of it which they have taken before God unto the whole Nation nor to think that they can swerve from the Rules set by the Law without a damnable breach of it The pwoer of relating or dissolving Conscientious Obligations acknowled in the Pope makes a great part of the Roman Superstition and that grand Impostor could never corrupt Kingdoms and Nations to their destruction and the Establishment of his Tyranny until he had brought them to believe he could dispense with Oaths taken by Kings unto their Subjects and by Subjects to their Kings nor impose so extravagant an Errour upon either until he had persuaded them he was in the place of God It is hard to say how the Judges or King's Council can have the same Power unless it be upon the same Title but we may be sure they may as well dispense with the whole Oath as any part of it and can have no pretence unto either unless they have the Keys of Heaven and Hell in their keeping It is in vain to say the King as any other man may remit the Oath taken unto and for himself He is not a party for himself but in the behalf of his People and cannot dispose of their Concernments without their Consent which is given only in Parliament The King's Council ought to remember they are in criminal Cases of Council unto every man in the Kingdom It is no ways referred unto the Direction of the Judges or unto them whether that secrecy enjoyned by Law be profitable unto the King or Kingdom They must take the Law as it is and render Obedience unto it until it be altered by the Power that made it To this end the Judges by Acts of Parliament viz. 18 Ed. 3. cap. 8. and 20 Ed. 3. cap. 1. are sworn to serve the People Ye shall serve our Lord the King and his People in the Office of Justice c. Ye shall deny to no man common Right by the King's Letters nor no other mans nor for no other cause and in default thereof in any point they are to forfeit their Bodies Lands and Goods This proves them to be the Peoples Servants as well as the Kings Further by the express words of the Commissions of Oyer and Terminer they are required to assist every man that suffers injury and make diligent inquisition after all manner of falshoods deceits offences and wrongs done to any man and thereupon to do Justice according to the Law so that in the whole proceedings in order unto Tryal and in the Tryals themselves the Thing principally intended which several persons are severally in their capacities obliged to pursue is the discovery of Truth The Withesses are to depose the Truth the whole Truth and Nothing but the Truth Thereupon the Council for the King are to prosecute The Grand Jury to present and the Petit Jury to try These are several Offices but all to the same End 'T is not the Prisoner but the Crime that is to be pursued This primarily the Offender but by consequence and therefore such Courses must be taken as may discover that and not such as may ensnare him When the Offence is found the impartial Letter of the Law gives the Doom and the Judges have no share in it but the pronouncing of it Till then the Judges are only to preside and take Care that every man else who is employed in this necessary Affair do his duty according to Law So that upon result of the whole transaction impartial Justice may be done either to the Acquittal or condemnation of the Prisoner Hereby it is manifest why the Judges are obliged by Oath To Serve the People as well as the King And by Commission To Serve every One that Suffers Injuries As they are to See that Right be done to the King and His injur'd Subjects in discovering of the Delinquent So they are to be of Council with the Prisoner whom the Law supposeth may be ignorant as well as innocent and therefore has provided that the Court shall be of Council for him and as well inform him of what Legal advantages the Law allows him as to resolve any point of Law when he shall propose it to them And it seems to be upon the presumption of this steady impartiality in the Judges thus obliged by all that is held Sacred before God and man to be unbyassed that the Prisoner hath no Council for if the Court faithfully perform their duty the Accused can have no wrong or hardship and therefore needs no Adviser Now suppose a man perfectly innocent and in some measure knowing in the Law should be accused of Treason or Felony If the Judges shall deny unto the Grand Jury the liberty of examining any Witnesses except in open Court where nothing shall be offered that may help to clear the Prisoner but every Thing aggravated that gives colour for the Accusation such Persons only produced as the King's Council or the Prosecutors shall think fit to call of whose Credit also the Jury must not inquire but shall be controll'd and brow-beaten in asking Questions of such unknown Witnesses for their own Satisfaction if they have any Tendency to discover the Infamy of these Witnesses or the Falshood of their Testimony How can Innocence secure any Man from being arraigned And if the Oath of the Judges should be as much forgotten in the further Proceedings upon the Trial where in Cases of Treason the Prisoner shall have all the King's Council commonly not the most unlearned prepared with studied Speeches and Arguments to make him black and odious and to Strain all his words and to alledge them
for Instances of his guilt If then all his private Papers and Notes to help his Memory in his Plea and Defence shall be taken from him by the Gaoler or the Court and given to his Prosecutors And all Advice and Assistance from Councils or Friends and his nearest Relations shall be denied him and none suffered by word or writing to inform him of the indifferency or honesty or the partiality or malice of the Pannels returned whom the Law allows him to challenge or refuse either peremptorily or for good Reasons offered should he be thus deprived of all the good provisions of the Law for his safety To what Frauds Perjuries and Subornations is not he and every man Exposed who may be accused What Deceits may there not be put upon Juries and what Probability is there of finding Security in Innocence What an admirable Execution would this be of their Commission To make diligent Inquisition after all manner of Falshoods Deceipts Wrongs and Frauds and thereupon to do Justice according to Law When at the same Time if so Managed a Method would be introduced of ruining and destroying any Man in the form of Justice Such practices would be the highest dishonour to the King imaginable whose name is used and so far Misrepresent the Kingly Office as to make that appear to have been Erected to vex and destroy the People which was intended and ordained to help and preserve them The Law so far abhors such proceedings that it intends that every Man should be strictly bound to be exactly just in their several Imployments relating to the Execution of Justice The Serjeant of the King's Council Sir George Jefferys among the rest who prosecute in the King's name and are consulted in the forming Bills of Indictment and advise about the Witnesses and their Testimonies against the Accused These if they would remember it when they are made Serjeants take an Oath Cokes 2d Institutes Pag. 214. as well and truly to serve the People whereof the party accused is one as the King himself and to minister the King's matters duely and truly after the course of the Law to their Cunning Not to use their Cunning and Craft to hide the Truth and destroy the accused if they can They are also obliged by the Statute of Westm 1. Cap. 29. To put no manner of Deceit or Collusion upon the King's Court nor secretly to consent to any such Tricks as may abuse or beguile the Court or the party be it in Causes Civil or Criminal And it is ordained that if any of them be convicted of such practices he shall be imprisoned for a year and never be heard to plead again in any Court and if the Mischievous consequence of their Treacheries be great they are Subject to further and greater punishments Our Antient Law Book called the Miror of Justice Cap. 2. Sect. 4. says That every Serjeant Pleader is chargeable by his Oath not to maintain or defend any Wrong or Falshood to his Knowledge but shall leave his Client when he shall perceive the wrong intended by him Also that he shall not move or proffer any false Testimony nor consent to any Lyes Deceits or Corruptions whatsoever in his pleadings As a further Security unto the People against all Attempts upon their Laws Exemplary Justice hath been done in several Ages upon such Judges and Justiciaries as through Corruption Submission unto unjust Commands or any other Sinister consideration have dared to swerve from them The punishments of these wicked Men remain upon Record as Monuments of their Infamy to be a Terror unto all that shall succeed them In the Reign of the Saxons the most notable Example was given by King Alfred who caus'd above forty Judges to be hanged in a Short Space for several wrongs done to the People as is related in the Mirror of Justice Some of them suffered for imposing on Juries and forcing them to give Verdicts according to their will And one as it seems had taken the Confidence to examine a Jury that he might find which of them would Submit to his Will and setting aside him who would not condemned a Man upon the Verdict of Eleven Since the Coming of the Normans our Parliaments have not been less severe against such Judges as have suffered the course of Justice to be perverted or the Rights and Liberties of the People to be invaded In the time of Edward the 1st Anno 1289. The Parliament finding That all the Judges except Two had swerv'd from their duty condemned them to several punishments according unto their Crimes Ex Chron. Anno 10. Ed. 1. ad finem As Banishment Perpetual Imprisonment or the loss of all their Estates c. Their Particular Offences are specified in a Speech made by the Arch-Bishop of Canterbury in Parliament They had broken Magna Charta Incited the King against his People Violated the Laws under pretence of expounding them and impudently presumed to prefer their own Councils to the King before the Advices of Parliament as appears by the speech c. Hereunto annext The like was done in Ed. the 2d Time when Hugh De Spencer was charged for having prevailed with the King to break his Oath to the People in doing Things against the Law by his own Authority In Edward the 3d. Time Judge Thorpe was hang'd for having in the like manner brought the King to break his Oath Dan. History p. 260 261. And the happy Reign of that great King affords many Instances of the like nature amongst which the punishment of Sir Henry Green and Sir William Skipwith deserve to be observed and put into an Equal Rank with those of his brave and victorious Grand-father In Richard the Second's Time Eleven of the Judges See all the English Histories of Walsingham Fabian Speed c. in the 11 and 12 years of Richard II. forgetting the dreadful Punishments of their Predecessors subscrib'd malicious Indictments against Law and gave false Interpretations of our Ancient Laws to the King thereby to bring many of his most Eminent and worthiest Subjects to suffer as Traytors at his Will Subjected the Authority and very Being of Parliaments to his absolute pleasure And made him believe that all the Laws lay in his own breast Hereupon sentence of death passed upon them and tho upon their repentance and confessing they had been swayed by fear and threatnings from the King Two only were Executed all the others were for ever banished as unworthy to enjoy the benefit of that Law which they had so perfidiously and basely betrayed It were an Endless work to recite all the Examples of this kind that are found in our Histories and Records but that of Empson and Dudley must not be omitted They had craftily contriv'd to abolish Grand Juries and to draw the Lives and Estates of the People into question without Indictments by them and by surprise and other wicked practices they gained an Act of Parliament for their countenance Hereupon
and Properties are unable to protect us And may not such fears rob the King of his greatest Treasure and Strength the Peoples hearts when they dare not rely upon him in his Kingly Office and trust for safety and protection by the Laws Our English History affords many instances of those that have pretended to serve our King in this manner by undermining the Peoples Right and Liberties whose practices have sometimes proved of fatal consequence to the Kings themselves but more frequently ended in their own destruction But after all imagining it could be made out that this Method of private Examinations by a Grand Jury which from what has been said before hath appeared to be so extremely necessary for the publick good and to every private man's security were inconvenient or mischievous and therefore fit to be changed yet being so Essential a part of the Common Law it is no otherwise alterable than by Parliament We find by Presidents that the bare forms of Indictments could not be reformed by the Judges The words Depopulatores agrorum Insidiator es viarum Vi Armis Baculis Cultellis Arcubus sagittis could not be left out but by advice of the Kingdom in Parliament A Writ issued in the time of K. Ed. 3. giving power to hear and determine Offences and all the Justices resolved Cok. 4. Inst Pag. 164. That they could not lawfully act having their Authority by Writ where they ought to have had it by Commission Tho' it was in the form and words that the Legal Commission ought to be John Knivett Chief Justice by Advice of all the Judges resolved that the said Writ was Contra Legem And where divers Indictments were before them found against T.S. the same and all that was done by colour of that Writ was Damned If in such seeming little Things as these and many others that may be instanced the Wisdom of the Nation hath not thought fit to intrust the Judges but reserved the Consideration of them to the Legislative Power It cannot be imagined that they should subject to the discretion and pleasure of the Judges those important Points in the Established course of the administring Justice whereupon depends the safety of all the Subjects Lives and Fortunes If Judges will take upon themselves to alter the constant practice they must either alter the Oath of the Grand Jury or continue it If they should alter it so as to make it sail with any such new Method and thus in appearance charitably provide that the Grand Jury should not take a mock Oath or forswear themselves they then make an incroachment upon the Authority of Parliaments who only can make new or change old Legal Oaths and all the proceedings thereupon would be void If they should continue constantly to impose the same Oath as well when they have notice from the King that the Jury shall not be bound to keep his Secrets and their own as when they have none they must assume to make the same form of Law to be of force and no force and the same words to bind the Conscience as they will have them whereby they would prophane the Natural Religion of an Oath and bring a foul scandal upon Christianity by trifling worse than Heathens in that sacred matter and whilst the Judges find themselves under the necessity of administring the Oath unto Grand Juries and not suffer them to observe it according unto their Consciences they would confess the illegality of their own Proceedings and can never be able to repair the Breaches by pretending a tacite Implication if the King will but must unavoidably fall under that approved Maxim of our Law Maledicta est Interpretatio quae corrumpit Textum It is a Cursed Interpretation that dissolves the Text. There are Two Vulgar Errours concerning the duty of Grand Juries which if not removed will in time destroy all the benefit we can expect from that Constitution by turning them into a meer matter of form which were designed for so great Ends. Many have of late thought and affirmed it for Law that the Grand Jury is neither to make so strict inquiry into matters before them nor to look for so clear Evidence of the Crime as the Petit Jury but that of their Presentments being to pass a second Examination they ought to Indict upon a superficial Inquiry and bare probabilities Whereas should either of these Opinions be admitted the prejudice to the Subject would be equal to the total laying aside Grand Juries there being in truth no difference between arraigning without any Presentment from them at all and their Presenting upon slight grounds For the first that Grand Juries ought not to make so strict Inquiry it were to be wisht that we might know how it comes to pass that an Oath should be obligatory unto a Petit Jury and not unto the Grand Or in what Points they may lawfully and with good Conscience omit that Exactness whether in relation to the Witnesses and their credibility Or the fact and all its circumstances Or the Testimony and its weight Or lastly in reference to the Prisoner and Probability of his guilt And withal upon what grounds of Law or Reason their Opinion is founded On the contrary he that will consider either the Oath they take or the Commission where their duty is described will find in all Points that there lies an equal Obligation upon them and the Petit Juries They swear diligently to inquire and true Presentment make c. and to Present the Truth the whole Truth and nothing but the Truth c. And in the Commission of Oyer and Terminer their duty with that of the Commissioners is thus described Ad Inquirendum per Sacramentum Proborum legalium hominum c. per quos rei veritas melius sciri poterit de quibuscunque proditionibus c. confoederationibus Falsis allegantiis nec non Accessoriis Eorundem c. per quoscunque qualitercunque habit fact perpetrat sive Commiss Et per quos Et per quem cui vel quibus quando qualiter vel quomodo de aliis articulis Circumstantiis praemis eorum aliquod vel aliqua qualitercunque concernen To inquire by the Oath of honest and lawful Men c. By whom the Truth of the matter may be best known of all manner of Treasons c. Confederacies false Testimonies c. As also the Accessories c. by whomsoever or howsoever done perpetrated or committed by whom or to whom how in what way or in what manner And of other Articles and Circumstances premised and of any other Thing or Things howsoever concerning the same Now for any Man after this to maintain that Grand Juries are not to inquire or not carefully is as much as in plain terms to say they are bound to act contrary to the Commission and their Oath And to affirm that they can discharge their duty according to the Obligations of Law and Conscience which they
remember if they please that as once there was a time when the Court turned out or chid those Justices who were forward in the Execution of the Laws against Nonâ—nformists because they were then in so low a Condition that the Court was afraid the Church of England might indeed be established in its Uniformity So when the Nonconformists were by some Liberty grown stronger and set themselves against the Court Interest in the Election of Sheriffs and such like things then all those Justices were turned out who hung back and would not execute the Laws against them and Justices pickt out for the purpose who would do it severely Nay the Clergy were called upon and had Orders sent them to return the Names of all Nâ—nconformisis in their several Parishes that they might be proceeded against in the Courts Ecclesiastical And here I cannot forget the Order made by the Middlesex Justices at the Sessions at Hicks's Hall Jan. 13. 1681. Where they urge the Execution of the Act of 22 C. 2. against Conventicles because in all probability they will destroy both Church and State This was the reason which moved them to call upon Consiables and all other Officers to do their Doty in this Matter Nay to call upon the B. of London himself that he would use his utmost endeavers within his Jurisdiction that all such Persons may be Excommumcate This was a bold stroke proceeding from an unusual degree of Zeal which plainly enough signifies that the Bishops were not so forward as the Jaestices in the prosecuting of Dissenters Who may do well to remember that the House of Commons a little before this had been so kind to them that those Justices would not have dared to have been so severe as they were at Hicks's Hall if they had not been set on by Directions from White-Hall For in their Order they press the Execution of the Statute 1 Eliz. and 3 Jac. 1. for levying Twelve Pence a Sunday upon all those that do not come to Church Whereas the House of Commons Nov. 6. 1680. had Resolved Nemine Contradicente That it is the Opinion of this House That the Acts of Parliament made in the Reign of Queen Eâ—zâ—beth and King James against Popish Recusants ought not to be extended against Protestant Dâ—ssenters VI. Who should not forget how backward the Clergy of London especially were to comply with this Design of reviving the Execution of the Laws against them What Courses they took to save them from this Danger and what Hatred they incurred for being so kind to them Which in truth wâ—â— Kindness to themselves for now they saw plainly that Nothing was intended but the Destruction of us both by setting us in our turns one against the other Many indeed were possessed with the old Opinion that the Dissenters aimed at the Overthrow of the Government bâ—th in Church and State which made them the more readily joyn with those who were employed to suppress them by turning the Loge of the Laws upon them But both these were most industriously promoted by the Court who laboured might and main to have this believed that they who were called Wings intended the Ruine of the Church and of the Monarchy too and therefore none had the Court favour but they alone who were for the ruining of them all others were frown'd upon and branded with the Name of Trimmers who they adventured at last to say were worse than Whigs Meerly because they seeing through the Design desired those ugly Names of Whig and Tory might be laid aside and perswaded all to Moderation Love Vnity and Peace If any Man had these dangerous Words in his Mouth he had a Mark set upon him and was lookt upon as an Enemy as soon as he discovered any Desires of Reconciliation No Peace with Dissenters was then as much in some Mens Mouths as no Peace with Rome had been in others They were all voted to Destruction and it was an unpardonable Crime so much as to mention an Accommodation Such things as these ought not to be forgotten VII But if they list not to call them to mind though they be of fresh Memory yet let them at least consider what they have had at their Tongues end ever since they knew any thing That the Church or Rome is a persecuting Church and the Mother of Persecution Will they then be deluded by the present Sham of Liberty of Conscience which they of that Church pretend to give It is not in their Power no more than in their Spirit They neither will nor can give Liberty of Conscience but with a Design to take all Liberty from us That Church must be obeyed and there it no middle Choice among them between Turn or Burn Conform or be undone What Liberty do they give in any Country where their Power is established What Liberty can they give who have determined that Hereticks ought to be rooted out Look into France with which we have had the strictest Alliance and Friendship along time and behold how at this Moment they compel those to go to Mass who they know abhor it as an abominable Idolatry Such a violent Spirit now acts them that they stick not to prophane their own most holy Mysteries that they may have the Face of an Vniversal Conformity without the least Liberty For the New Converts as they are called poor Wretches are known to be mere outward Compliers in their Hearts abominating that which they are forced eternally to worship They declare as much by escaping form this Tyranny over their Consciences and bewailing their sinful Compliance whensoever they have an Opportunity And they that cannot escape frequently protest they have been constrained to adore that which they believe ought not to be adored And when they come to die refuse to receive the Romish Sacrament and thereupon are dragg'd when dead along the Streets and thrown like dead Dogs upon the Dunghils Unto what a height of Rage are the Spirits of the Romish Clergy inflamed that it perfectly blinds their Eyes and will not let them see how they expose the most sacred thing in all their Religion the Holy Sacrament which they believe to be Jesus Christ himself to be received by those who they know have no Reverence at all for it but utterly abhor it For they force them by all manner of Violence to adore the Host against their Will and then to eat what they have adored though they have the greatest reason to believe that those poor Creatures do not adore it That is the Church of Rome will have her Mysteries adored by all though it be by Hypocrites None shall be excused but whether they believe or not believe they shall be compelled to do as that Church doth Nothing shall hinder it for the Hatred and Fury wherewith they are now transported is so exceeding great that it makes them as I have said offer Violence even to their own Religion rather than suffer any Body not to conform to it VIII
any thing clause or sentence in the said Act contained to the contrary â—â—ithstanding Sect. 3. Provided always and it is hereby Enacted That neither this Act nor any thing herein conâ—â—ined shall extend or be construed to ravive or give Force to the said Branch of the said Statute wade in the said First Year of the Reign of the said Late Queen Elizabeth mentioned in the said Act if Parliament made in the Seventeenth Year of the Reign of the said King Charles but that the said Branch of the said Statute made in the said First Year of the Reign of the said Late Queen Elizabeth scall stand and be Repealed in such sort as if this Act had never been made Sect. 4. Provided always and it is hereby Enacted That it shall not be lawful for any Arch-bishop Bishop Vicar-General Chancellor Commissary or any other Spiritual or Ecclesiastical Judge Officer or Minister or any other person having or exercising Spiritual or Ecclesiastical Jurisdiction to Tender or Administer unto any Person whatsoever the Oath usually called Ex Officio or any other Oath whereby such person to whom the same is tendred or administred may be charged or compelled to confess or accuse or to purge him or herself of any Criminal matter or thing whereby he or she may be liable to Censure or Punishment any thing in this Statute or any other Law Custom or Vsage heretofore to the contrary hereof in any wise notwithstanding Sect. 5. Provided always That this Act or any thing therein contained shall not extend or be construed to extend to give unto any Arch Bishop Bishop or any other Spiritual or Ecclesiastical Judge Officer or other person or persons aforesaid any Power or Authority to Exercise Execute Inflict or Determine any Ecclesiastical Jurisdiction Censure or Coertion which they might not by Law have done before the Year of our Lord 1639. 2. Nor to abridge or diminish the Kings Majesties Supremacy in Ecclefiastical Matters and Affairs nor to confirm the Canons made in the Year 1640. nor any of them nor any other Ecclesiastical Laws or Canons not formerly confirmed allowed or enacted by Parliament or by the established Laws of the Land as they stood in the Year of our Lord 1639. From the Title of the Act and the Act it self considered I gather First That it is an Explanatory Act of the 17th of Car. 1. as to one particular Branch of it and not introductive of any new Law Secondly That the Occasion of making it was not from any Doubt that did arise VVhether the High Commission Court were taken away or whether the Crown had Power to erect any such like Court for the future but from a Doubt that was made that all ordinary Power of Coertion and Proceedings in Causes Ecclefiastical was taken away whereby Justice in Ecclesiastical Matters was obstructed and this Doubt did arise from a Clause in 17 Car. 1. ca. 11. Sect. 4. herein mentioned to be recited in the said Act of 13 Car. 2. ca. 12. Thirdly That this Statute of 13 Car. 2. ca. 12. as appears upon the Face of it was made to the intent the ordinary Jurisdiction which the Bishops and other Ecclesiastical Persens had always exercised under the Crown might not be infringed but not to restore to the Crown the power of Delegating the Exercise of Ecclesiastical Jurisdiction by Letters Patents to Lay persons or any others and as to this nothing can be plainer than the VVords of the Act it self Sect. 2. Whereby 17 Car. 1. is repealed but takes particular care to except what concerned the High Commission Court or the new Erection of some such Court by Commission Neither did the Law-makers think this Exception in that Statute of 13 Car. 2. ca. 12. Sect. 2. to be sufficient but to put the Matter out of all doubt in the Third Section of the same Statute It is provided and Enacted That neither that Act nor any thing therein contained should extend or be construed to revive or give force to the Branch of 1 Eliz. 1. Sect. 18. but that the same Branch shâ—â—â— stand absolutely Repealed And if so then the power of the Crown to delegate the Exercise of Ecclesiastical Jurisdiction is wholly taken away for it was vested in the Crown by 1 Eliz. 1. and taken away by 17 Car. 1. ca. 11. and is in no manner restored by 13 Car. 2.12 or any other But there may arise an Objection from the VVords in the Statute of 13 Car. 2. ca. 12. that saith That that Act shall not extend to abridge or diminish the Kings Majesties Supremacy in Ecclesiastical Matters and Affairs VVhence some Men would gather that the same power still remains in the Crown that was in it before 17 Car. 1. ca. 11. To which Objection I give this Answer That every Law is to be so constructed that it may not be Felo de se and that for the Honour of the Legislators King Lords and Comment Now I would appeal to the Gentlemen themselves that assert this Doctrine VVhether they can so construe the Act of 13 Car. 2. ca. 12. as they pretend to do without offering Viâ—lence to their own Reason For when the 1 Car. 1. ca. 11. had absolutely repealed the Branch of 1 Eliz. 1. that vested the power in the Crown of Delegating the Exercise of Ecclesiastical Jurisdiction and Enacts That no such Commission shall be for the future and the Act of 13 Car. 2. ca. 12. Repeals the 17 Car. 1. ca. 12. except what relates to that particular Branch there can no more of the Kings Supremacy in Ecclesiastical Matters and Affairs be saved by the saving in the 13 Car. 2. ca. 12. but what was left in the Crown by 17 Car. 1. ca. 11. And now I hope I have sufficiently evinced That all the Proceedings before the Ecclesiastical Commissioners are CORAM NON JVDICE and therefore have sufficient Reason to believe That the same would never have been set on foot by his present Majesty who had always the Character of JAMES the Just and hath promised upon his Royal VVord That he will invade no Mans Property had he not been advised thereunto by them who are better versed in the Canons of the Church of ROME than in the Laws that relate to the CROWN and CHURCH of ENGLAND A LETTER Writ by Mijn Heer Fagel Pensioner of Holland to Mr. James Stewart Advocate Giving an Account of the Prince and Princes of Orange's Thoughts concerning the Repeal of the Test and the Penal Laws SIR I Am extream sorry that my ill health hath so long hindred me from Answering those Letters in which you so earnestly desired to know of me what their Highnesses thoughts are concerning the repeal of the Penal Laws and more particularlarly of that concerning the Test I beg you to assure your self that I will deal very plainly with you in this matter and without reserve since you say that your Letters were writ by the King's knowledge and allowance I must
he is Immorally or Unchristianly used They that subject themselves to anothers Discretion devest themselves of all defence But they that reserve property and liberty to themselves may justly defend them when they are unjustly invaded Had the King an arbitrary power which he did abuse to vex the Protestants I for my part should think my self obliged to suffer and not to resist as I believe did all the Primitive Christians but seeing he has no political power to use me as he lists and the most absolute Monarch has no moral power to do an unjust Act to his Subject I should be a senseless Fool if without any Obligation either from God or Man I should stand Blows rather than withstand them The Truth is Non-resistance stretch'd thus far under this government would make us like the Two Fools that went to the Field to fight with one Staff with which Vice Versa he that had it cudgell'd the other who stood all the while with his Hands in his pocket Valiantly bearing all the blows his Brother Fool thought good to lay on 2. Others conclude otherwise against this Doctrine and say The King having the Sacred Power Lodged in him may not be resisted though he act without or against that power for reverence of that Just power of God that is in him This looks like a piece of Courtship to God and smells more of Superstition than Divinity God requires no Honor to the prejudice of Justice or the advancement of Injustice but this too Devout kind of Reverence would inable a bad Prince to injure the Innocent and would leave Justice defenceless on Earth Just power is a Sanctuary indeed but the Sanctuary is of no larger extent than the power This is evident by the Tenour of all Commissions the granter must have a competent power of what he grants and that warrants the Executor to proceed to the End of the grant but the having power to one purpose cannot protect a Man from Resistance if he proceed to another The Chimney man that is irresistable in his Office is resistable if he gather the Corn in the Town-fields And the King that receives his Commission from the King of Heaven to execute the Law and is therefore Irresistable in the execution of it is yet resistable if he shut up all the Courts of Justice and abuse his Subjects contrary to Law In this case he acts not by the power of God but his Own by an Arm of Flesh or the Strength of Wicked men not by any political power or moral power but by the Savage power of a Beast or the malicious power of Hell And how any Honor should accrue to God by a Voluntary submitting to such a power is beyond my comprehension they are most likely to Honor God that stand up most for his power and will submit to no other I have brought in these Two Objections here because the Declaration is the most specious and obvious Plea for Non-resistance and is usually back'd with one of these Conceits that either want of political power is but abuse of political power or that a limited political power is a Sanctuary for unlimited Actions in whomsoever it rests Obj. 12. But to resist such Forces as are Commission'd by the King is against the Royal Prerogative of the Crown Answ The King has no Prerogative except such as are wrapt up in honorary Formalities but what the Law gives him we must not therefore presume a Prerogative and then conclude it Law but first find the Law and by it prove the Prerogative and when we have found the Prerogative it must be measured by what the Publick Good will bear and not by what the Absoluteness of the Prerogative will admit For no Prerogative can be used that is against the frame of the government or the publick good Interpretations of Law therefore ought rather to favour Liberty and Property than Prerogative because the benefiting of the Subject comes nearer to the End of the government than the excessive Honouring the Prince Honorary Prerogatives are in their Degree necessary and not superfluous there must be something to maintain the Reverence of Magistrates but they ought to give way to publick Interest and the rest are nothing but powers placed in the King to do good with and not good or ill as he pleases A Prerogative therefore cannot destroy a Law but it may supply its Defects pardoning a Condemn'd Innocent or a hopeful penitent or dispencing with a Law to one that by particular Accident the Law in its Rigour would undo But no Prerogative can impower the King to destroy the peoples liberty or property That dispencing power that like a State Opium casts all the Laws asleep and is an Engine of publick Mischief is no Prerogative belonging to the Crown of England but a Vice that does not belong to it For it brings guilt upon the King and damage upon the Subject and is a real diminution of the Dignities of the Crown For it and such like serve only to Impower the King to do Mischief with securely that is they give an Immunity from punishment but not from guilt As suppose the King by such a claimed Prerogative should shut up all the Courts of Justice so that none should be had he might be free from punishment but not from guilt he is clear by Necessity only not by Right the Case Transcends the Frame of the government none can Judge him that has neither Equals nor Superiors and so he escapes because he cannot be punished not because he deserves it not Thus the pretended Prerogative bespatters him and so leaves him Obj. 13. But it is against the Supremacy for the Supreme ought to have the Supreme credit both in judging what is Law and what is for the Publick Good Answ As the King is Supreme in the Executive part so the Parliament have a share in the Legislative which I take to be the very Apex of Supremacy and therefore they ought to have their share in interpreting Laws as well as the King or his Judges because none knows the meaning so well as the Makers if they be alive and if they be dead none knows the publick Necessities so well none so unlikely to deceive or be deceived being so numerous none likely to be so faithful and so unlikely to be cortupted having so great an interest in the publick good none like to be so effectual in working a compliance in the Peoples hearts seeing it is in effect their own Determination But yet they cannot do it without the King for that would place his Parliament above himself The King indeed is Supreme in the Legislative part as well as in the Executive part but he has not the whole Supremacy in the Legislative part as he has in the Executive He is the Head of that Body in which it rests but the Power like the Soul of Man is in the whole Body though most eminently in the Head The Parliament have their Existence