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A47876 The lawyer outlaw'd, or, A brief answer to Mr. Hunts defence of the charter with some useful remarks on the Commons proceedings in the last Parliament at Westminster, in a letter to a friend. L'Estrange, Roger, Sir, 1616-1704. 1683 (1683) Wing L1266; ESTC R25476 42,596 42

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binding themselves by that Act which yet must bind the King tho it might as well be alleadg'd He did not intend it he boldly concludes with threatning and daring the Judges to do their duty Precibusque minas regaliter addit The same reasons says he which may be given for discharging such as are not Committed for breach of Priviledge if it be grounded on the Act for the Habeas Corpus will hold as strong for discharging of Persons Committed for breach of Priviledge and so consequently deprive this House of all its Power and Dignity and make it insignificant This is so plain and obvious that all the Judges ought to know it and I think it below you to make any Resolve therein but rather leave the Judges to do otherwise at their Peril and let the Debate fall without any question See the Debates of the House pag. 217. Was not this a rare Assertor of our Liberties who instead of allowing us the benefit of the Laws wou'd have us all made Beasts of burden to maintain the Grandeur of some Arbitrary Demagogues in the House of Commons and be content to turn Gally-Slaves rather than their Power shou'd become useless or insignificant But I find this daring Speech did not frighten all the Judges for Baron Weston to his immortal Renown had still the courage to grant the Habeas Corpus and rather expose himself to the malice of the Faction than deny or delay Justice contrary to his Oath Our Religion and Liberty being thus secur'd have we not reason to be fond of these worthy Patriots who tugg'd so hard against Popery the better to bring in Presbytery and to make sure that the Prince shou'd not use Arbitrary Power took all possible care to keep it in their own possession It was the Kings Prerogative in the days of yore to have the Power of making War and Peace and declaring who shou'd be counted Friends and who reputed Enemies to the Kingdom But now the Tribunes of the People are willing to ease him of that trouble and take upon themselves by the following Vote to declare some of His Majesties best Subjects and most Faithful Friends Enemies to the King and Kingdom Resolved That all persons who advis'd His Majesty in His last Message to this House to insist upon an Opinion against the Bill for excluding the Duke of York have given pernicious Councel to His Majesty and are promoters of Popery and Enemies to the King and Kingdom And this extravagant Vote they are pleas'd particularly to apply to four Noble Peers of the Realm exposing them to the Rable without the least colour of proof for Promoters of Popery and Enemies to their Soveraign for no other reason but because they were truly Loyal and free from the contagious leaven of the Faction What a happiness it is to live within the Walls of the House of Commons where the Knave becomes Honest and the Fool a Politician where People are sure never to be in the wrong but always impeccable and may freely rail and reflect upon their Betters which without doors wou'd cost them very dear Yet I cannot but wonder why these Noblemen unless they as well as many others took that Character for a mark of Honour from the givers have taken no course at least with the Printer and Bookseller if not with the then Speaker for ordering such Scandalous Votes to be publish'd contrary to express Acts of Parliament For if the Kings immediate Command cannot be allow'd as a good excuse in Law for any Illegal Act so that altho the Prince be unaccountable yet the Minister is to suffer for his Obedience sure a Vote of the House of Commons shall not be thought of force at least out of Parliament-time to Protect any Offender from Justice because whatever Title the Members within the sacred Walls of the House may claim in some Cases to impunity their Officers and Servants who execute their Illegal Commands abroad cannot in the least pretend to have any But how shou'd these Noblemen be enemies to the King and Kingdom for their advising His Majesty against the Bill of Exclusion when the whole House of Peers few discontented Lords Dissenting who by their Lives and Conversation never shew'd themselves the truest Protestants nor the best Subjects openly declar'd against it and upon the first reading threw it out of doors is a Mystery not easily to be understood His Majesty in His Message to the Commons declar'd He was confirm'd in His Opinion against that Bill by the Judgment of the House of Lords who rejected it why then are four Lords singl'd out and not the whole House declar'd Promoters of Popery and Enemies to the King and Kingdom The reason some will guess that the Leading Members saw matters were not yet ripe to shew themselves bare-fac'd or discover the bottom of their Designs and once more to Vote the House of Lords dangerous and useless and therefore to be laid aside But why the Opposers of the Bill of Exclusion enemies to the King and Kingdom When 't is made plain even to Demonstration in several Treatises publish'd these four years past about the Succession that the Promoters of that Bill tho some perhaps meant otherwise were in fact Enemies to the Monarchy and no Friends to the King nor to the True Protestant Religion 'T is strange that such as loudly exclaim against Popery shou'd have the face at the same time to practice the worst of Popish or rather Jesuitical Principles and endeavour to force their Soveraign to disinherit His only Brother upon a bare suspicion of his being of another Religion which Henry the 3. of France being tender of the Monarchy and of the Hereditary Right of Succession was so far from offering to the King of Navarre tho a known Protestant and but a remote Kinsman that he cou'd never be perswaded to give the Royal Assent to the Bill which the powerful influence of the Factious Duke of Guise got pass'd by the three Estates for his Exclusion Oh! but say they Popery and Slavery will break in upon us if the Duke succeeds And I am sure Anarchy and Presbytery and an Intestine Civil War will undoubtedly follow if he be excluded the King expos'd to danger and the Kingdom to ruine How fatal it prov'd to Henry 6. that he suffer'd the good Duke of Gloucester to be made away by his Prosecutors which made way for his own Deposition and consequently for his untimely end Historians do abundantly testify and Baker tells us how the great Duke of Somerset then Protector by Sacrificing his Brother the Lord Admiral to the malice of his Enemies in hopes to stop their mouths by yielding to their demands clear'd the way for himself to the Scaffold A Warrant saith this Historian was sent under the hand of his Brother the Protector to cut off his Head wherein as afterwards it prov'd he did as much as if he had laid his own Head upon the Block For
any person or persons or body-politick for any Manors Lands Tenements Hereditaments or things above-specified contrary to the words sentences and meaning of this Act shall incur the danger of the Act of Praemunire ib. § 41. What cou'd the wit of man contrive or devise more firm in Law or more satisfactory to all parties concern'd in Church or Abbey-Lands than these and several other paragraphs provided in the same Act of Parliament Why then are people by groundless and imaginary fears discompos'd or frightn'd out of their wits and made tools to drive on the Designs of some ill men against the Monarchy and the Church who will have nothing sufficient to secure them in the Religion they have not but what will unavoidably shake the very foundation of the Government 'T is true our State-Mountebanks in their Address presented in the Name of the House of Commons are so dutiful to their Sovereign as humbly to threaten this may possibly happen if the Duke succeeds We further humbly beseech Your Majesty say they in Your great Wisdom to consider whether in case the Imperial Crown of this Protestant Kingdom should descend to the Duke of York the opposition which may possibly be made to his possessing it may not only endanger the farther descent in the Royal Line but even Monarchy it self 21 Dec. 1680. But that season I hope is over and the Nation now thorowly sensible of the fatal consequences of such resolutions and can never forget the unparallell'd Tyranny of the Rump nor the doleful Tragedies that ensu'd the Quarrel between York and Lancaster which made England a Field of Blood But what has this great Prince once the peoples darling done to deserve so severe a treatment or be thought so dangerous a person to the Publick Has he defrauded any of an Ox or an Ass or was he ever found worse than his word or unjust in his dealings If he has chang'd his opinion which yet is improbable about the modes and circumstances of Religion 't is plain he has not chang'd his moral Principles nor his natural affection to his Countrey I need not instance how often he expos'd his Person to danger like a common Sea-man to fight our Battles nor how zealously he always studied the true Interest of the English Nation in opposition to French Designs a truth too well known even to his most inveterate Enemies but ill rewarded with ingratitude 'T is prodigious what tricks and arts have been us'd of late to incense the unthinking multitude against His Highness and set them a-madding with the apprehension of Stakes and Faggots and all the Chymoera's of a crack-brain'd fancy when 't is palpably evident it is not in the power of any Prince tho' the greatest Bigot of Papists to force this Nation in point of Conscience or alter the establish'd Religion since the Laws de Haeretico comb●rendo which in Queen Maries time were in force and warranted the Cruelties then committed upon the Protestants as the Statutes made by Queen Elizabeth do the executing of Priests and Jesuits as Traytors both uncharitable and ill-becoming a Christian-Magistrate are now happily repeal'd and abolish'd Why then shou'd people be bugbear'd out of their senses with imaginary fears of Smithfield-Faggots or think that the Duke who never advis'd his own Children to become Papists wou'd offer tho' able to compel any other to renounce his Religion If He has express'd some kindness for such Romanists as had signaliz'd their Loyalty to His FATHER here or to His BROTHER Abroad when those that now call themselves true Protestants openly absur'd his Title 't is an instance of his gratitude and good nature but no Argument of his approving the Opinions of that Party And yet we have no better proof than such groundless whispers and surmises unless we believe the ridiculous Salamunca Doctor 's peeping through the Key-hole of his being a Papist or any way inclin'd to the Popish Communion How false then is the Preamble and therefore justly rejected had there been no other reason by the House of Lords of the intended Bill of Exclusion That the Duke of York is notoriously known to have been perverted from the Protestant to the Popish Religion Or the extravagant Vote whereon they grounded this Abortive Bill Resolved That the Duke of York's being a Papist and the hopes of his coming such to the Crown hath given the greatest countenance and encouragement to the present designs and conspiracies against the King and the Protestant Religion 2 Nov. 1680. Whereas it might with greater Truth and Justice be Resolved That the late endeavours of some Leading men in the House of Commons in favour of the Fanaticks and their declaring That if His Majesty should come by any Violent Death they would revenge it to the utmost upon the Papists has given the greatest countenance and encouragement to Colledge and his Accomplices to conspire against the King and the Church and has openly expos'd His Majesties sacred Life to the blind zeal of the Faction to whom besides the prospect of destroying their enemies it was a great temptation to commit the villany that they cou'd safely leave it at anothers door Thus Sir I have given you in short my Opinion on Mr. Hunts Defence of the Charter and for your further satisfaction have added some Remarks on the Proceedings of our worthy Patriots so much commended by that Gentleman in the last Parliament at Westminster There remains a great deal more to be said as well of this as of the other that follow'd at Oxford but some earnest business requiring my attendance I will at present give you no further trouble only speak a word or two to the general Calumny cast by the Factions on all that dare oppose their Designs and which I cannot well expect to escape viz. That we are no Friends to Parliaments But I appeal to any man of Sense whether I who wou'd have the Commons freely enjoy their Priviledges yet confin'd within their Ancient and Legal bounds or the Fanatick that labours to make their Power absolute and uncontroulable be a greater friend to that Honourable Assembly And whether they can possibly have more pernicious enemies than such as make them Controullers instead of Councellors to their Soveraign and Competitors with him in the Government when their Being wholly depends on his Will and Pleasure and can expect to fit no longer than during their good Behaviour How Fatal the Insolencies of the 3d. Estate in France Anno 1614. prov'd to that Nation in general who never since had the like Assembly is particularly observ'd by several Historians 'T is true we have no reason to mistrust any such thing having so good and so gracious a Prince as has solemnly engag'd His Royal word That no Irregularities in Parliament shall ever make Him out of Love with Parliaments Declar. p. 9. Besides that our Constitution is such that we cannot reasonably fear it Nevertheless Policy as well as Duty requires that the Commons give no such distast for the future as will justly occasion even any long intermission of their meeting since Parliaments provided they behave themselves with Prudence and Moderation Are the best method as His Majesty says for healing the Distempers of the Kingdom and the only means to preserve the Monarchy in that due credit and respect which it ought to have both at hom and abroad Ibid. FINIS * In making our ancient Laws saith the great Antiquary Mr Selden the Commons did petere the Lords assentire the King concludere in his Judicature in Parliament pag. 132. pag. 27. * 4 Ed. 3. 14. 36 Ed. 3. 10. * 16 Car. 2. 1. * Ne frena animo permitte calenti da spacium tenuemque moram male cuncta ministrat impetus * You all know that Rex è Lex loquens and you often heard me say that the King's will and intention being the speaking Law ought to be Luce clarius And again In any Case wherein no positive Law is resolute Rex e Judex for he is Lex loquens and is to supply the Law where the Law wants * Ib. f. 60. Beechers Case The like he hath fol. 120. Bonham's Case and lib. 11. f. 43. Godfrey's Case and in several other places * Dyer f. 60. a. says the Parliament consists of three parts viz. the KING as chief Head the LORDS the chief and principal Members of the Body and the COMMONS the inferiour Members * Coke 4. Inst. p. 25. 31 H. 6. n. 26 27. * Mich. 12. Ed. 4. Rot. 20. in the Exchequer * Hill 14 E. 4. Rot. 7. * Dyer fol. 59. * 8 H. 6. Rot. Parl. n. 57. * 39 H. 6. n. 9. * 14 Ed. 4. n. 55. * The Lords themselves cannot by Priviledge of Parliament set any at Liberty by their immediate Orders to the Gentleman vsher or Serjeant at Arms but only by a Writ of Priviledge from the Lord Keeper as appears 43 Elizab. D'ewes Journals p. 608. * See Prynn's Remarks on Coke's 4 Inst. p. 42. * None can be Judge and Party Coke's 8 Reports Dr. Bouham's Case f. 118. b. * The constant Custom of the Commons even to this day to stand bare with their Hats in their hands while the Lords sit cover'd at all Conferences and Tryals is a plain Argument they are not Fellows or Colleagues in Judgment * 10 Jan. 1681 80 * 7 Jan. 1680. * 2 R. 2. 5. 11 R. 2. 11. c. de Scandalis Magnatum * 25 Ed. 3. Statute of Provisors * 38 Ed. 3. Stat. 2. c. 1. 2 H. c. 4. 7. H. 4. c. 6. 3 H. 5. c. 4. * The same is resolved 12 H. 4. f. 16. 14 H. 4. f. 14. 8 H. 6. f. 3. 20 H. 6. 1. 35 H. 6. 42. 7 E. 4. 14. 12 E. 4. 16. * 1 2 Phil. Mar. c. 8. num 32. * Volentes ac decernentes quod dictorum bonorum Ecclesiasticorum ram mobilium quam immobilium possessores praefati non possiut in praesenti nec in posterum seu per Conciliorum Generalium vel Provincialium dispositiones seu Decretales Rom. Pontificum Epistolas seu aliam quamconque censuram Ecclesiasticam in dictis bonis seu eorundem possessione molestari vel inquietari 1 2 Phil. Mar. c. 8. num 33.