His Crown and His Regalty in the cases aforesaid and in all other cases attempted against Him His Crown and His Regalty in all points to live and to die These and several other Statutes too tedious 〈◊〉 to be inserted have been provided in former ages when the Pope's power was at the highest and provided even by Popish Kings and Popish Parliaments to secure themselves and the Nation from all Papal encroachments Neither have our Judges been less severe against the Popes unwarrantable pretensions who in pursuance of the Common-Law of the Land tho' no Statute had been made to that purpose judg'd it a very hainous Crime in any Subject of England to obey or put them in execution In the Reign of King Edward I when a Subject brought a Bull of Excommunication from Rome against another Subject of this Realm and publish'd it to the Lord Treasurer of England this was by the Common-Law of the Land adjudg'd Treason against the King his Crown and Dignity 30 lib. Ass. pla 19. Brook tit Praemunire pl◠10. An Excommunication by the Archbishop albeit it be disallow'd by the Pope or his Legate is to be allow'd neither ought the Judges give any allowance of any such Sentence of the Pope or his Legate 16 E. 3. tit Excom 4. An Excommunication under the Popes Bull is of no force to disable any man in England And the Judges said That he that pleadeth such Bulls tho they concern the Excommunication of a Subject were in a hard Case if the King would extend his Justice against him 30 E. 3. lib. Ass. pl. 19. The King presented to a Benefice and his Presentee was disturb'd by one that had obtain'd Bulls from Rome for which offence he was confin'd to perpetual Imprisonment 21 Ed. 3. f. 40. One Morris being elected Abbot of Waltham sent to Rome for a Bull of confirmation But it was resolved by all the Judges that this Bull was against the Laws of England and that the Abbot for obtaining the same was fallen into the King's mercy whereupon all his Possessions were seiz'd into the King's hands 46 Ed. 3. tit Praemunire 6. In the Reign of Ed. 4. the Pope granted to the Prior of St. Johns to have Sanctuary within his Priory But it was resolved by the Judges that the Pope had no power to grant Sanctuary within this Realm and therefore by judgment of the Law the same was disallowed 1 H. 7. f 20. In the same King's Reign a Legate from the Pope came to Callis to have come into England But the King and his Councel would not suffer him to come within the Kingdom until he had taken an Oath that he should attempt nothing against the King or his Crown 1 H. 7. f. 10. And in the Reign of H. 7. the Pope had excommunicated all such persons whatsoever as had bought Allom of the Florentines But it was resolved by all the Judges of England that the Popes Excommunication ought not to be obeyed or to be put in execution within the Realm of England 1 H. 7. f. 10. These and many other such Cases you may see in the first part of Coke's 5 th Reports Now if not only the Judges but the Representative-wisdom of the Nation even King Lords and Commons in the thickest mist of Popish ignorance were so resolute against the Bishop of Rome and so careful to preserve their own Rights and Liberties inviolable who can be so silly as to believe that a Popish Prince in this Kingdom and at this time of the day when Popery it self is much refin'd and the whole Nation irreconcilably bent against it will ever submit to any Papal Usurpation much less make himself or his People Slaves to the Court of Rome Alas says one but our sweet Abbey-Lands are in danger to be lost and reassum'd by the Popish Clergy what course then shall we take to secure them Believe me if the Law will not do it I know no other way but a project I hear shortly to be set on foot for Insuring all the Church-Lands in the Kingdom these 40 years to come The parties concern'd will propose very reasonable terms and will undertake the squinting Trimmer who maliciously whispers about he wou'd take seven years purchase for his Church-Lands in case of a Popish Successor shall have fourteen well secur'd whenever the Duke succeeds But why our Abbey-Lands more in danger than any other part of our Estates since we have the same security for the one as for the other and both as firmly secur'd as the Law can make them or the wit of man devise 'T is well known that the Popish Clergy in Queen Maries time the better to forward the peoples reconciliation with the Church of Rome by their Petition to the Queen consented that all the Church-Lands dispos'd of to Lay-men shou'd be settl'd on the Possessors and their Heirs for ever without any danger of revocation And this was approv'd of by the Pope's Legate a latere Cardinal Pool willing and ordaining as he says that the present possessors of Ecclesiastical Goods as well movable as immovable shall not at this time nor in time to come be disquieted nor molested in the possession of the said Goods either by the disposal or order of any General or Provincial Councils or by the Decretal Epistles of the Bishop of Rome or by any other Ecclesiastical Censure whatsoever And besides this to crown the work beyond all exception and bind it with a triple Cord which is not easily broken all is confirm'd in full Parliament by the Queen by the Cardinal and Clergy and by the Lords and Commons by whom 't is enacted That all and every Article Clause Sentence and Proviso contained or specified in any Act or Acts of Parliament concerning or touching the assurance or conveyance of any the said Monasteries Priories Nunneries Commandries Deanries Prebends Colledges Chantries Hospitals Houses of Fryers Rectories Vicarages Churches Chappels Archbishopricks Bishopricks and other Religious and Ecclesiastical houses and places or any of them or in any ways concerning any Manors Lands Tenements Profits Commodities Hereditaments or other the things before specified to the said K. H. 8. or K. Ed. 6. or either of them or any other person or persons or Body-politick or Corporate and every of them and all and every Writing Deed and Instrument concerning the assurance of any the same shall stand remain and be in as good force effect and strength and shall be pleaded and taken advantage of to all intents constructions and purposes as the same should might or could have been by the Laws and Statutes of this Realm in case this present Act had never been had or made 1. 2 Phil. Mar. c. 8 § 39. And 't is further enacted That whosoever shall by any Process obtained out of any Ecclesiastical Court within this Realm or without or by pretence of any spiritual Jurisdiction or otherwise contrary to the Laws of this Realm inquiet or molest
whilst these Brothers lived and held together they were as a strong Fortress one to the other the Admirals Courage supporting the Protectors Authority and the Protectors Authority maintaining the Admirals Stoutness but the Admiral once gone the Protectors Authority as wanting support began to totter and fell at last to utter ruine Besides there was at this time amongst the Nobility a kind of Faction Protestants who favour'd the Protector for his own sake and other of the Papal inclination who favour'd him for his Brothers sake But his Brother being gone both sides forsook him even his own side as thinking they could expect little assistance from him who gave no more assistance to his own Brother Bakers Chronicle p. 307. What a noise they make about these terrible Bugbears Popery and Slavery as if both were inseparable and actually breaking in upon the Nation or rather come as far as the Lobby of the House of Commons For my part tho I have no reason to be fond of either the one being no less contrary to my Nature than the other to my Principles yet I cannot be startl'd at every shadow nor believe that the Duke having already spent the Prime of his days let him succeed never so soon will be able to introduce amongst us any new much less the Popish Religion Neither can I be perswaded contrary to common sense and the experience of so many Ages but that the Papists are as fond of their Liberty and Property and consequently as great enemies to Slavery as any Protestant whatsoever For to them we owe the unparallel'd Common-Law of this Realm Magna Charta and all those wholesom Statutes grounded thereupon to them we are oblig'd for the incomparable Frame of our well-temper'd Monarchy which affords very much to the Industry and Happiness of the Subject yet preserves enough for the Majesty and Prerogative of any King that will own his People as Subjects and not as Slaves or Villains Who then but a Fool or a Mad-man wou'd think Slavery the unavoidable consequence of that Religion the Professors whereof even in the time of their blindest zeal and greatest darkness for since then they are much refin'd made such impregnable Bulwarks against it and provided such wholesome Laws to defend themselves from all the encroachments of Arbitrary Power Insomuch that the high and mighty Pope himself who often endeavour'd to enslave this Kingdom and make it Tributary to his avarice found to his great grief that tho some ignorant Bigots wou'd contribute to fill his Coffers yet the generality of the Nation were so tender of their own and their Princes Rights that they always oppos'd him with true English Courage as appears not only by hundreds of adjudg'd Cases reported in our Law-Books but by divers Records and Acts of Parliament For 25 Ed. 3. Stat. of Provisors 't is enacted That such persons as obtain Provisions or collation of Benefices from Rome and thereupon disturb the Presentees of the King or of other Patrons of Holy Church or of their Advowees The said Provisors their Procurators Executors and Notaries shall be attached by their body and brought in to Answer And if they be convict they shall abide in Prison without being let to Mainprise or Bail or otherwise delivered till they have made Fine and Ransom to the King at his Will and gree to the Party that shall feel himself grieved And nevertheless before they be delivered they shall make full renunciation and find Surety that they shall not attempt such things in time to come nor sue any Process by them nor by other against any man in the Court of Rome nor in any part elsewhere for any such Imprisonments or Renunciations nor any other thing depending of them And in the same year it was Enacted that he that purchas'd a Provision in Rome for an Abbey shou'd be out of the Kings Protection and any man might do with him as with the Kings Enemy 25 Ed. 3. c. 22. 2â— Ed. 3. c. 1. upon the grievous Complaints of the Lords and Commons in Parliament It was ordain'd that all People of the Kings Lâ—geance of what condition that they be which shall draw any out of the Realm in Plea whereof the cognizance pertaineth to the Kings Court or of things whereof Judgements be given in the Kings Court or which do Sue in any other Court to defeat or impeach the Judgements given in the Kings Court if they appear not within two months after warning given shall be put out of the Kings Protection and their Lands Goods and Chattles forfeit to the King and their Bodies wheresoever they may be found shall be taken and Imprisoned and Ransomed at the Kings will 13 R. c. 2. 'T is Enacted That if any do accept of a Benefice of Holy Church contrary to this Statute and that duly prov'd he shall within six Weeks next after such acceptation be exiled and banished out of the Realm for ever and his Lands and Tenements Goods and Chattles shall be forfeit to the King And if any Receive any such person banished coming from beyond the Sea or being within the Realm after the said six Weeks knowing thereof he shall be also exiled and banished and incurr such forfeiture as afore is said And their Procurators Notaries Executors and Summoners shall have the pain and forfeiture aforesaid And c. 3 It is ordained and established That if any man bring or send within the Realm or the King's power any Summons Sentence or Excommunication against any person of what condition that he be for the cause of making motion assent or execution of the said Statute of Provisors he shall be taken arrested and put in Prison and forfeit all his Lands and Tenements Goods and Chattels for ever and incur the pain of life and of member And if a Prelate make execution of such Summons Sentences or Excommunications that his Temporalties be taken and abide in the Kings hands till due redress and correction thereof be made And if any person of less Estate than a Prelate of what condition that he be make such execution he shall be taken arrested and put in Prison and have Imprisonment and make fine and ransom by the discretion of the Kings Councel 16 R. 2. 't is declar'd That the Crown of England which hath been so free at all times that it hath been in no earthly subjection but immediately subject to God in all things touching the Regalty of the same Crown ought not to be submitted to the Pope nor the Laws and Statutes of the Realm by him defeated and avoided at his will in perpetual destruction of the Sovereignty of the King our Lord His Crown His Regalty and of all His Realm And moreover the Commons affirmed That the things attempted by the Pope be clearly against the King's Crown and His Regality used and approved of in the time of all his Progenitors Wherefore they and all the Leige-Commons of the same Realm will stand by the King and
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-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 combâ—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.
Church-Papists In short they contriv'd so many shams and silly stories as made the very truth questionable and when they saw the English Plot was not like to embroil the Nation they invited a number of profligate wretches out of Ireland gave them Cloaths and Money in abundance and took so much pains to set up these unmanageable Tools that in fine they dash'd both Plots to pieces one against the other Are we not then beholding to our true-blew-Protestants after all these fine exploits for their abhorrence against Popery and the Plot and to Mr Hunt for his zealous vindication of their Proceedings He was formerly suspected to be a man of no Religion but now like a generous Soul he owns his Party in their greatest distress and openly declares against the Church of England as Betrayers of God's Cause and the Peoples Liberties Some of little understanding among you saith he that thus behave your selves are excusable as misguided by some of your Ministers who are in good earnest begging Preferments Dignities and Benefices for themselves by offering and betraying our Church to a voluntary Martyrdom p. 12. I need not comment upon this scurrilous Reflection 't is enough to say 't is the product of Mr. Hunt's own Brains who according to his Fee tho' against his conscience spoke for his Clyents for Lawyers he tells us and who more fit to know have Opinions to sell at any time tho' they have not the least colour of Reason to support them p. 19. If this Confounder both of Law and Gospel be thus for fouling his own Nest we need not wonder at his frequent snarlings at the Loyal and Christian Resolutions of our Reverend Clergy or expect better usage from a man that openly sides with the Enemies of our Church I come now to his second point which is so wild and so extravagant a paradox as deserves rather to be laugh'd at by men of sense than to be answer'd or confuted since besides several that have done it within these two years past there are not many Corporations in England whose Charters have not been surrendred by their Common-Council without so much as consulting their Common-halls and yet were never question'd for it as Betrayers of their Trust or of the Liberties of the People But he drives home the Nail in his 3d. assertion where he says that the Sherivalties of London and Middlesex or the right of choosing their Sheriffs the main point now in dispute and what most concerns the King after our late experience to have in His own disposal cannot be parted with without an Act of Parliament tho' with the consent of every individual Citizen But sure the Gentleman is not in earnest for I hope he will allow us that tho' alone they cannot yet with the consent and approbation of the Common-hall or of every Citizen the Common-Council may surrender the Charter who then the Charter being thus surrendred has the power of choosing the Sheriffs when the Corporation the City and the County is dissolv'd neither Mayor nor Alderman Citizen nor Free man to found The Inhabitants in general cannot choose them for they have no right now to do it neither do they receive any new power by the surrender of the Charter and yet the Free-men cannot when there is no such thing in being no more in London than in Westminster or any other Dissolv'd Corporation But to be short in a Case so plain since the Gentleman requires an Act of Parliament for displacing the Citizens Right of choosing their Sheriffs here is One ready to his hand for taking away upon their neglect or misgovernment all their Franchises and Liberties and consequently this power of electing their own Officers and Magistrates an Act found by the prudence of our Ancestors so necessary for to maintain the publick Peace and keep that over-grown City within the bounds of duty that Henry IV. tho' he sought occasions to ingratiate himself with the People of London the better to secure his Usurpation yet cou'd not be wrought upon by their intreaties to have any material part of it alter'd much less annull'd or repeal'd The Act take as followeth 280 Edwardi 3 i. cap. 10 o. BEcause that the Errors Defaults and Misprisions which be notoriously used in the City of London for default of good Governance of the Mayor of the Sheriffs and the Aldermen cannot be enquired nor found by people of the same City it is ordained and established That the said Mayor Sheriffs and Aldermen which have the Governance of the same City shall cause to be redressed and correated the Defaults Errors and Misprisions above-named and the same duly punish from time to time upon a certain pain that is to say at the first Default a Thousand Marks to the King and at the second Default two Thousand Marks and at the third default that the Franchise and Liberty of the City be taken into the King's hand And be it begun to enquire upon them at St. Michael next coming so that if they do not cause to be made due redress as afore is said it shall be enquired of their Defaults by Enquests of people of Foreign Counties that is to say of Kent Essex Sussex Hertford Buckingham and Berk as well at the King's Suit as others that will complain And if the Mayor Sheriffs and Aldermen be by such Enquests thereto assigned Indiaed they shall be caused to come by due Process before the King's Justices which shall be to the same assigned out of the said City before whom they shall have their Answer as well to the King as to the Party And if they put them in Enquests such Enquests shall be taken by Foreign People as afore is said And if they be Attainsed the said pain shall incurr and be levied of the said Mayor Sheriffs and Aldermen for default of their Governance And nevertheless the Plaintiffs shall recover the treble Damages against the said Mayor Sheriffs and Aldermen And because that the Sheriffs of London be Parties to this business the Constable of the Tower or his Lieutenant shall serve in the place of the Sheriffs to receive the Writs as well Originals of the Chancery as Judicials under the Seal of the Justices to do thereof execution in the said City And Process shall be made by Attachment and Distress and by Exigent if need be so that at the King's Suit the Exigent shall be awarded after the first Capias returned and at the third Capias returned at the Suit of the Party And if the Mayor Sheriffs and Aldermen have Lands or Tenements out of the City Process shall be made against them by Attachments and Distresses in the same Counties where the Lands or Tenements be And that every of the said Mayors Sheriffs and Aldermen which do appear before the said Justices shall answer particularly for himself as well at the peril of other which be absent as of himself And this Ordinance shall be holden firm and stable notwithstanding any manner
odious names of Abhorrers are forc'd to bear the brunt and suffer as Betrayers of the peoples Rights and Liberties for obeying their Sovereigns Proclamation tho' not repugnant to any known Law or Statute but approv'd of by the Judges and other Sages of the Law and conformable to an express Act of Parliament in the like case provided 13 Car. 2. c. 5. 'T is the peoples Right I know or to speak more properly 't is their Duty to petition their Prince for relief and redress of their Grievances but still 't is the undoubted Prerogative of the Sovereign to judge whether such Grievances be real or pretended fit to be granted or necessary to be rejected And when upon weighty considerations as the Subject ought in duty to suppose the Prince openly expresses his dislike to such Petitions to importune him any further is very unmannerly and plainly tending to Sedition 'T is an undutiful part in Subjects saith our British Solomon to press their King wherein they know before-hand he will refuse them In his Speech to the Parliament anno 1609. The evil consequences of these tumultuous Petitions are too well known to those that remember our late unhappy Confusions to be dwelt upon or describ'd in so small a Treatise 'T is enough that the wisdom of the Nation both King and Parliament after His Majesty's miraculous Restauration have declar'd It hath been found by sad experience that tumultuous and other disorderly soliciting and procuring of hands by private persons to Petitions Complaints Remonstrances Declarations and other Addresses to the King or to both or either Houses of Parliament for alteration of matters establish'd by Law redress of pretended Grievances in Church or State or other publick Concernments have been made use of to serve the ends of Factious and Seditious persons gotten into power to the violation of the publick Peace and have been a great mens of the late unhappy Wars Confusions and Calamities in this Nation 13 Car. 2. c. 5. Besides our Lawyers tell us and King James declares in his Speech to the Parliament on the last of March 1607 That Rex est Lex loquens and where the Law is silent the King's will is a temporary Law Upon what account then were the Abhorrers of the late tumultuous Petitions so exactly resembling those of Forty and so contrary to His Majesty's express Orders and Proclamation censur'd or imprison'd what Crime have they committed or Law have they violated or can there be any transgression where there is no Law or Punishment where there is no Transgression Oh! say they tho' there be no positive Law directly against Abhorrers yet 't is the great Fundamental Law Lex consuetudo Parliamenti and the Priviledge of Parliament that they may judge what Crimes are punishable ex post facto and by their arbitrary Power punish any man for what they please This I must confess is a pretty knack to help us off at a dead lift and will serve as well to vindicate the most exorbitant proceedâ—ngs of a mad Parliament as self-preservation is generally wrested to justifie the horrid Conspiracies of Rebellious Subjects It proves the great Earl of Strafford has been lawfully Executed tho' his very Enemies then gave us reason to believe and both King and Parliament since have declar'd him Innocent And the known Laws of the Land are at this rate very defective since they are not the entire Rule of the peoples Civil Obedience but are further liable to be try'd by that mysterious Riddle Lex consuetudo Parliamenti which neither our Fathers nor We were able to understand 'T is an undoubted Maxim both in Law and Reason that promulgation is absolutely necessary to the obligation of all positive constitutions insomuch that the immediate Laws even of the Almighty are not obligatory where they were never preach'd or made known How then comes it to pass that so many Loyal Subjects and good Protestants have been troubl'd upon the account of those mystical Riddles Lex consuetudo Parliamenti and the Priviledges of Parliament which were never publish'd or made known to the people but lie dormant in the House of Commons till started up as occasion requires It were to be wish'd that Honourable Senate wou'd so far oblige the Nation as to give them a true description of this Law and Custom of Parliament and an exact account of their Priviledges that people might in some measure for the future be able to shun those dangerous rocks and not be surpriz'd or shipwrack'd on such hidden shelves Till then all those loud pretences of securing the Subject from Slavery and Arbitrary Government must seem very ridiculous to the sober and judicious who as they cannot be easily impos'd upon by outward appearances to believe peoples words not suitable to their actions will be apt to mistrust that what these Gentlemen so stifly oppose in others they design wholly for themselves But to come closer to the purpose let us suppose the Parliament has this Arbitrary Prerogative to turn our most innocent actions into misdemeanors and make what they please a breach of Priviledge yet by what Authority can the House of Commons alone pretend to execute that Power or take upon them to be sole Judges that cannot act as Justices of the Peace Our Ancestors it seems have brought their Hogs to a fair Market who have struggled for many Ages to preserve themselves and Posterity from the unbounded rule of Arbitrary pleasure and having wrested that Power from their Soveraign like wise Politicians have left it in the hands of their Fellow-Subjects nay of their Attorneys and Servants to whom as such they always allow'd their daily wages for their attendance in Parliament 'T is certainly an odd kind of Liberty that the people can neither be Fin'd nor Imprison'd by their Soveraign unless for transgressing some known penal Law of the Land but their Deputies and Trustees may uncontroulably punish them for any thing they are pleas'd to call Criminal Is this the great happiness of Freeborn Subjects instead of one to have five hundred Masters and see the Fundamental Laws of the Nation Magna Charta and all the good Statutes confirming and explaining the same thus eluded and made useless by a pretended Custom of Parliament What are we the better at this rate that by the Great Charter of the Liberties of England c. 29 't is declar'd That no Freeman shall be taken or Imprison'd or be disseiz'd of his Freehold or Liberties or his Free Customs or be Outlaw'd or Exil'd or in any manner destroy'd but by the lawful Judgement of his Peers or by the Law of the Land Or that 28 Edw. 3. c 3. 't is enacted That no man of what estate or condition he be shall be put out of his Land or Tenements nor taken nor Imprison'd nor disinherited nor put to death without being brought to Answer by due Process of Law Or to omit many others that 42 Ed. 3. c. 3. It is assented
against any of their Pretensions yet I must say the power they claim now-a-days to punish all sorts of misdemeanors and what they please to term a breach of Priviledge is not to be endur'd by any free-born Subject For besides that 't is needless because such offences may and by Law ought to be try'd in the ordinary Courts of Justice 't is very dangerous to the Publick least the Grand Inquest of the Nation appointed to represent the Peoples Grievances and pray redress shou'd upon this account be diverted from pursuing those weighty affairs by every sawcy Footman belonging to the meanest Burgess in their House I confess it were somewhat tolerable in the Commons to imprison and punish their own Members for words by them spoken or misdemeanors committed in the House 1. Because by 4 H. 8. c. 8. they are not punishable elsewhere for any rashness in Parliament that does not amount to Treason Felony or breach of the Peace which the Commons neither can nor I hope will as in Forty-One endeavour to protect 2ly Because 't is suppos'd the Members upon their entring into that Assembly unanimously agreed the lesser number shou'd always submit to the greater and the major Vote be observ'd as the Act and Sense of the whole House if therefore by consent and original compact every single Member submits himself to the rest he cannot complain tho' otherwise they had no authority if they imprison him for his misdemeanors because scienti volenti non fit injuria provided always they exceed not the common Rules of Justice nor the bounds of our establish'd Laws for then no private Act can bind a Subject tho' made with his own free consent as appears by Clark's Case against the Mayor and Burgesses of St. Albans Coke lib. 5. p. 64. I cannot therefore but think the power assum'd of late years by the House of Commons over their fellow-Members to expel them the House when and for what they please without any legal Tryal which the Lords never practic'd against any of their Peers is in it self most unreasonable and of very dangerous consequence as Mr. Prynne tho' otherwise a great Champion for the Priviledges of Parliament proves at large in divers of his Treatises The practice saith he of sequestring and expelling Commons by their fellow-Commons only is a late dangerous unparliamentary Usurpation unknown to our Ancestors destructive to the Priviledges and Freedom of Parliaments and injurious to those Counties Cities and Boroughs whose Trustees are secluded the House of Commons being no Court of Justice to give either Oath or final Sentence and having no more authority to dismember their fellow-Members than any Judges Justices of the Peace or Committees have to Dis-judge Dis-justice or Dis-committee their fellow Judges Justices or Committee-men being all of equal Authority and made Members only by the King 's Writ and the Peoples Election not by the Houses or other Members Votes who yet now presume both to make and unmake seclude and recal expel and restore their fellow-Members at their pleasure contrary to the practice and resolution of former Ages to patch up a Factious Conventicle instead of an English Parliament In his legal Vindication of the Liberties of England p. 10. But whatever Power the Commons can pretend to have over their own Members to say they can lawfully punish others tho for a breach of Priviledge much less for any other Crime seems to me a very groundless Assertion not warrantable by the Ancient Law and Custom of Parliament but rather contrary to the Fundamental Constitutions of our Government First because 't is impossible to make out from whom this Power is deriv'd From the King The Factious will not own it and none can prove it For they have neither Patent nor Statute to shew for 't nor yet any Legal Prescription which is a constant immemorial Custom such as the Lords have in point of Judicature to warrant it the Ancientest President they can alledge being that of 4 Ed. 6. or the Case of Ferrers referr'd to them by the Lords in the 34 H. 8 about sevenscore years ago Do they deriâ—e it then from the People from the Freeholders and Freemen their Electors These have no such Power of themselves they can Imprison none without His Majesties Commission and what they have not sure they cannot give Nemo dat quod non habet As for the Power given by the Electors to their chosen Members who are order'd by the Writ of Summons to have from the persons they represent Plenam sufficientem potestatem 't is no Judicial Power nor Political Jurisdiction which the People have not and consequently cannot give but only a Power of consenting as well for their Principals as for themselves to the Kings Laws and Ordinances And certainly if the King be the Suprem and the only Suprem Governour of this Realm as we affirm in the Oath of Supremacy and if all Authority and Jurisdiction Spiritual and Temporal be derived and deducted from the Kings Majesty as 't is expresly declarâ—d 1 Ed. 6. c. 2. § 3. Or as Old Bracton saith Ea quae sunt Jurisdictionis pacis ad nullum pertinent nisi ad regiam dignitatem lib. 3. c. 24. Unless the Commons can make out they have their Power from the King they can have no manner of Jurisdiction and by consequence cannot lawfully Punish or Imprison any Criminal if not perchance their own Members in the Cases aforesaid Besides in the first Parliament of Queen Mary 't is declar'd That the most Ancient Statutes of this Kingdom do give assign and appoint the correction and punishment of all Offenders against the Regality and Dignity of the Crown and the Laws of this Realm unto the King 1 Mar. Sess. 3. c. What then are the breakers of the Commons Priviledges are they Offenders against the Dignity of the Crown or the Laws of the Realm If so they ought according to this Act to be punish'd by the King if not they are not punishable at all for to trouble any that does not offend against the Crown or the Law of the Land is very Illegal and Arbitrary and a high breach of the Liberty of the Subject Secondly because the Law has expresly provided where and how breaches of Priviledge ought to be punish'd and gives the House of Commons no power to take any cognizance of them for by several Statutes it appears that if a Parliament-man or his Menial-servant be Assaulted Beaten or Wounded in Parliament-time Proclamation shall be made where the deed is done that the Offendor shall render himself to the Kings-Bench within half a year after there to be tryed and if the Offendor will not appear he shall be Attainted of the Deed and pay to the Party griev'd his double Damages to be tax'd by the discretion of the Judges of the said Bench for the time being or by Inquest if need be and also make Fine and Ransom at the Kings will Moreover it is