Francis Hargrave THE WORKS OF THE Right Honourable Henry late L. Delamer AND Earl of Warrington CONTAINING His Lordships Advice to His Children Several Speeches in Parliament c. WITH MANY OTHER Occasional Discourses On the AFFAIRS of the Two Last Reigns BEING Original Manuscripts Written with His Lordships own Hand Never before Printed LONDON Printed for John Lawrence at the Angel and John Dunton at the Raven in the Poultrey 1694. TO The Right Honourable THE EARL OF WARRINGTON My Lord SInce my late Lord Warrington your Father trusted me with the care of your Education your Lordship has made so great a Progress in all things which I Taught you that I am now forced to procure you another Tutor You are become in a little time a great Master of several Languages and most parts of Philosophy and I may say without flattery that your Lordship hath Genius Learning and Piety enough to make one of the Best and the most Accomplish't Gentleman in England But yet your Quality requires something more for it is not enough for one in your Lordships High Station to be Humanist Geographer Historian and I may add a good Man too he must be also a States-man and a Politician but being neither my self I must repeat the same thing over again to my Shame and to your Credit that your Lordship wants a better Master Amongst several of the most Eminent Men which I could recommend to your Lordship I found none so Learned nor indeed so fit to make deep Impressions upon your Mind as your Lordships Noble Father whose Writings belongs to you as well as his Estate I don't doubt but you will strive to get the best share of his Learning nor can you fail of an Extream Delight by drawing Sciences but of the same Spring from whence your Noble Blood did flow His Book then being yours both by Inheritance and by the particular gift of its Authour it would be unjust to present it to any other but your Lordship and needless to recommend it or beg your acceptance for 't Therefore omitting any longer Preface in Recommendation of these Golden Remains I 'll only take leave to make this Observation upon them That as there is nothing wanting in them for your Lordship's Instruction both by Humane Learning and Solid Devotion I have fitted you with the Master that I look't for and whom you wanted From whom having obtained all the Qualifications which your Noble Soul is capable of you have no more to wish for but that you may live and practice 'em and it will be to me both a great Satisfaction and Honour to see my Work finisht by the same Artist who put it first into my hands and trusted me with the beginning of it It will be enough for me that I have put my hands to such a Master-piece and shall be highly honoured if your Lordship take notice of my Endeavours and sufficiently Rewarded if you grant your Protection to him who has no other Ambition than to be Your Lordships Most Humble most Obedient and most Devoted Servant J. Dela Heuze THE CONTENTS I. HIS Lordships Advice to his Children page 1 II. An Essay upon Government p. 36 III. Reasons why King James Ran away from Salisbury p. 56 IV. Observations upon the Attainder of the late Duke of Monmouth with some Arguments for the Reversing thereof p. 70 V. Of the Interest of Whig and Tory which may with most safety be depended on by the Government on the account either of Fidelity or Numbers In a Letter to a Friend p. 82 VI. A Discourse shewing who were the true Incouragers of Popery Written on the occasion of King James 's Declaration of Indulgence p. 88 VII A Speech in Parliament for the Bill of Exclusion That the next of Blood have no Absolute Right to the Crown p. 94 VIII A Speech against Arbitrary and Illegal Imprisonments by the Privy Council Several Laws for the Restraint of this Power Instance of the Exercise of this Power on Sir Gilbert Gerrard about a Black-Box An Objection answered p. 100 IX A Speech against the Bishops Voting in case of Blood Lord Coke 's Opinion against it An Act of Parliament Good to which their Consent is not had Bishops no Peers though Lords of Parliament p. 107 X. A Speech against the Pensioners in the Reign of King Charles II. p. 115 XI A Speech for the sitting of Parliaments and against King Charles the seconds Favourites p. 121 XII A Speech in Parliament on the occasion of some Justices being put out of Commission in the said Reign p. 129. XIII A Speech for the Banishing the Papists p. 133 XIV A Speech on the Corruption of the Judges Laws to prevent it Some Instances thereof particularly Sir George Jeffreys when Judge of Chester p. 138 XV. Some Observations on the Prince of Orange's Declaration On the Exit of King Charles II. and Entrance of the late King whose Administration becoming Exorbitant brought on the Present Revolution The Arbitrary Proceeding of K. James excellently set forth by the Declaration c. In a Charge to the Grand Jury p. 353 XVI A Speech against the Asserters of Arbitrary Power and the Non-Swearers p. 385 XVII A Perswasive to Union upon King James his design to Invade England in the Year 1692. p. 401 XVIII Some Reasons against Prosecuting the Dissenters upon the Poenal Laws p. 412 XIX A Discourse proving the reasonableness of the present Revolution from the Nature of Government p. 421 XX. Whether a Conspiracy to Levy War is an Overt Act of Conspiring or Imagining the Death of the King p. 437 XXI Reasons for an Union between the Church and the Dissenters p. 457 XXII Of the Absolute Power Exercised in the late Reigns and a Defence of King Williams Accession to the Throne Election the Original of Succession Succession not very Ancient Division among Protestants a step to Arbitrary Power Enemies to the Act of Indulgence Disaffected to the Government p. 467 XXIII A Speech concerning Tyranny Liberty Religion Religious Contentions Laws of Advantage to the State cannot hurt the Church Of Conquest Of God's ways of Disposing Kingdoms and against Vice p. 483 XXIV The Legality of the Convention-Parliament though not called by Writ p. 509 XXV A Resolution of Two Important Questions 1. Whether the Crown of England be Hereditary 2. Whether the Duke of York ought to be Excluded p. 541 XXVI The Case of William Earl of Devonshire for striking Collonel Culpepper p. 563 XXVII Arguments against the Dispensing Power p. 583 XXVIII Prayers which his Lordship used in his Family p. 597 XXIX Some Memoirs of the Methods used in the Two last Reigns The Amazing Stupidity of those that would reduce us again into the same Condition p. 613 XXX Some Arguments to prove that there is no Presbyterian but a Popish Plot and against the Villany of Informing in 1681. p. 627 XXXI Monarchy the best Government and the English beyond all other With some Rules for the Choice
send for any person but without that they cannot and therefore I do not see wherein a Justice of Peace has a greater power than the Privy Council or if he had yet it would not be so great a Mischief for he can only send for any person that is in the County but the Privy Council are not limited to this or that County but their power extends all over England But besides it is unjust to be punisht without a cause and restraint or being debarr'd of Liberty is a punishment and whoever he be that would have the Privy Council to exercise this Power when he has known what it is to be brought up by a Messenger upon an Idle Story let him then tell me how he likes it and answer me if he can A SPEECH AGAINST THE Bishops Voting In Case of BLOOD OF all the things that were started to hinder the success of the last Parliament and is like to be so great a stumbling-block in the next That of the Bishops Voting in Case of Blood was and will be the chief Now they that deny that the Bishops have right to Vote in Case of Blood do labour under two great difficulties first because this is a new thing at least it is very long since the like Case has come into debate And next because they are put to prove a negative which is a great disadvantage But Truth will appear from under all the false glosses and umbrages that men may draw over it And I doubt not to make it evident that the Bishops have no right to Vote in Case of Blood at least I hope I shall not be guilty of obstinacy if I do not alter my opinion till what I have to say be answered It is strange the Bishops are so jealous of their Cause as not to adventure it on their great Diana the Canon Law by which they are expresly forbidden to meddle in case of Blood Perhaps they would do by the Canon Law as it is said by the Idolaters in the Old Testament that part of the timber they made a god and fell down and worshipped it the rest of it they either burnt in the fire or cast it to the dunghil For they tell you that the Canon Law was abolisht by the Reformation and that none but Papists yeild obedience to it and therefore now they are not tyed up by the Canon Law but may sit and Vote in case of Blood if they please I should be very glad if they were as averse to Popery in every thing else and particularly that they would leave Ceremonies indifferent and not contend so highly for them whereby they make the breach wider and heighten the differences among Protestants in the doing of which they do the Pope's work most effectually I wish they would consent to have a new Book of Canons for those that are now extant are the old Popish Canons I like Bishops very well but I wish that Bishops were reduced to their primitive Institution for I fear whilst there is in England a Lord Bishop the Church will not stand very steddily But I will leave this though I need say no more and proceed to other things that are very clear as I conceive My Lord Cook in the Second Part of his Institutes the first Chapter treating of Magna Charta when he reckons up the Priviledges of the Church he tells us that Clergy-men shall not be elected or have to do in secular Office and therefore he tells us that they are discharged of such and such burdens that Lay persons were subject to and good reason it should be so that they might with greater ease and security attend the business of their Function that is to govern and instruct the Church But whether they had these Immunities granted them that they might study the Pleas of the Crown and Law Cases or else that they might apply themselves to the work of the Ministry let any Man judge for saith he Nemo militans Deo implicet se negotiis secularibus And if to sit and judge in case of Blood be not a secular Matter I have no more to say and I hope my Lord Cook 's Authority will be allowed And because as I conceive that my Lord Cook 's Authority may pass Muster in this point I will offer some things out of him that will make it evident that the Bishops are only Lords of Parliament and not Peers and if so it is against the Law of England for them to sit and judge upon any Peer for his Life for the Law says that every Man shall be tried by his Peers In the Second Part of his Institutes the first Chapter he tells us that every Arch-Bishop that holds of the King per Baroniam and called by Writ to Parliament is a Lord of Parliament But in the 14th Chapter when he reckons up who are Pares in the Lords House he says not a word of the Bishops but repeats all the other Degrees of Lords as Dukes c. And without doubt he would not have made so great an omission if the Bishops ought to have been taken into the number Besides this if the Bishops be Pares how comes it to pass that an Act of Parliament shall be good to which their consent is not had passed by the King Lords Temporal and Commons But it was never allowed for an Act of Parliament where the Lords Temporal had not given their Vote And for proof hereof see my Lord Cook in his Chap. De Asportatis Religiosorum where he gives you several Instances of Acts of Parliament that passed and the Bishops absent But then in the Third Part of his Institutes he there puts the matter out of all controversie and shews that Bishops are to be tried by Commoners for says he in the second Chap. treating of Petty Treason None shall be tried by his Peers but only such as sit there ratione Nobilitatis as Dukes c. and reckons the several Degrees and not such as are Lords of Parliament ratione Baroniarum quas tenent in Jure Ecclesiae as Arch-Bishops and Bishops and formerly Abbots and Priors but they saith he shall be tryed by the Country that is by the Free-holders for that they are not of the Degree of Nobility So that with submission this is as clear as any thing in the World If the point be so clear that the Bishops may Vote in case of Blood it would do well that some Presidents were produced by which it might appear that they have ever done it at least that they have made use of it in such times when the Nation was in quiet and matters were carried fairly for Instances from Times of Confusion or Rebellion help rather to pull down than support a Cause But my Lord Cook in his Chap. that I mentioned even now De Asportatis Religiosorum gives you several Presidents where the Bishops when Capital Matters were to be debated in the Lords House withdrew themselves particularly 2 of
Rich. II. the Arch-Bishop of Canterbury made a solemn protestation in the Parliament for himself and the Clergy of his Province for that Matters of Treason were to be entreated of whereat by the Canonical Law they ought not to be present they therefore absented themselves But in regard I have hitherto voucht my Lord Cook for what I have said I desire that it may be observed that he wrote since the Reformation and what was Law when he wrote is Law at this day unless it be changed by some Act of Parliament made since and therefore he that denies my Lord Cook to have written Law must produce some Act of Parliament whereby it does appear that the Law is altered since his time Besides this the Bishops and other Clergy were called to Parliament very uncertainly sometimes more sometimes fewer and sometimes none at all as it was in Edw. I. time Therefore seeing the case to be thus That the Bishops are not Peers but only Lords of Parliament That an Act of Parliament is good though they be absent That they are to be tried by Commoners And that when Capital Matters were to be debated they have withdrawn themselves declaring at the same time that they ought not to have to do in such things And also that they have not so absolute a Right to sit and Vote in the House as the Temporal Lords have because they are called to Parliament so uncertainly I shall be glad to hear what can be said to make their Right unquestionable But if all this were set aside yet it remains on their part to prove that they have sate in Judgment upon the Peers I am apt to believe they will be hardly put to it to produce any President out of good Times when the Nation was in quiet and the Law had its course Nay I think they can scarcey find any that the Proceeds of that Parliament when it was done were not repealed by Act of Parliament and stand so at this day And I should also be glad to see that when a Peer has been tried out of Parliament that any Bishop was ever nominated to sit upon that Lord accused for out of Parliament if a Peer be tryed for his life it is by a select Number named by the King and if the Bishops have Right to sit and Vote upon the Peers it is strange methinks that there is not any Instance to be found where the Bishops or any of them have been named to Judge a Lord out of Parliament Now the reason as I conceive how this comes to pass is because it was never known that a Bishop was tried by the Lords out of Parliament and therefore they cannot try a Lord out of Parliament because they are not Peers for the Lords have never tryed any Bishop but in Parliament and that was always upon Impeachments and not otherwise And upon an Impeachment they may try other Commoners as well as Bishops Besides this it is plain that the Clergy even in the time of Popery would not have to do with Blood in any case whatsoever For when they engrossed all Offices and Places of Honour or profit you shall not find any Bishop that was Lord Chief Justice of the Kings Bench or Judge of any Court where Mens Lives were to be meddled with and the Clergy were not so ignorant or backward in their Interest as to let slip such profitable places had it suited with their Function I have often considered with my self what it is that has induced so many of the Temporal Lords to contend for the Bishops in this case I cannot perceive but that it is against themselves that they strive for without doubt the fewer that the Temporal Lords are the more considerable they are and why they should strive to make themselves less I cannot comprehend neither can any reason be assigned but that which is obvious to every Mans Thoughts That there is some secret power that governs their Lordships in this Affair But without doubt this powerful hand would not be able to turn the Scales so very much if Nobility had been bestowed only on such as deserved Honour But when Interest prevails above Merit no wonder that a Word or a Look do command so absolutely And yet there is this to be said for the Lord's House that there are a great many Lords who retain the Worth and Honour of their Ancestors That notwithstanding being frowned upon displaced and all possible discouragements yet have they shewed themselves to be Men of English Principles that they will serve the King as Englishmen but will not give up any of their just Rights to please him If the Bishops had never so clear a Right in this matter the it is to be consider'd that whatever Right they have that it was gained in the times of Superstition and Blindness when the Clergy Usurped and Lorded it over the Nation and therefore in regard that England has now recovered its Eye-sight and Understanding they are very unthankful if they do not reduce every thing to its proper Station And if the Bishops are prohibited by a Law not to Vote in Case of Blood or are abridged in any other Matter where the Interest of the King and People require yet the Church is not prejudiced for my Lord Cook tells us in the second part of his Institutes Nec debet dici in praejudicium Ecclesiae libertatis quod pro Rege Reipublicae necessarium invenitur And whether it be not for the Interest of the King and People that the Bishops shall not Vote in case of Blood I submit to any Man that wishes well to England Now I would fain be satisfied why our Bishops are more forward to have to do in case of Blood than the Bishops and Clergy in the time of Popery it 's plain they always declined it but ours will adventure a Kingdom upon it It 's true they will withdraw upon the Tryal of the Five Popish Lords but they will not upon Tryal of my Lord D s Pardon yet thus far they condescend that when Judgment is to be pronounced they will withdraw Very well First it is confessed on all hands that if my Lord D s Pardon do not hold good he dyes for it And next I would willingly understand the difference in this case when a Man is tryed for his Life before several Judges and all of them though he is Innocent resolve that he shall be pronounced guilty but they withdraw themselves and leave one of their Brethren to pass the Sentence Now the question is Whether the rest that were absent are not as guilty of shedding Innocent Blood as he who pronounced the Sentence And so on the contrary for any other thing whatever And whether this does not reach the case in hand I humbly submit But the truth of the matter is the Bishops do know that if my Lord D s Pardon be allowed then Arbitrary Power comes in with a Powder And then will be their Harvest
be a God of Order and therefore since all Government in general does Originally proceed from God that Administration is rather an Vsurpation than Government that commands or permits the Disturbance of the Subjects in the Enjoyment or Possession of their Rights and Properties And therefore it will follow That it is more for Gods glory that every man do sit safe and quiet under his Vine and Fig-Tree than to be oppressed Oppression intimates a wrong or Injustice and God will not Authorize that which he has declared to be unjust for just and righteous are all his ways Oppression will make a wise man mad which shews that Subjects have a right in their Properties as well as Kings have to their Crowns If there were not some such Right there could be no Oppression or Injustice for Oppression or Injustice iâ— when that which is anothers Right is detained or taken from him against his consent If Naboth had not had a Right in his Vineyard Ahab need not to have Capitulated with him to have it for a Garden of Herbs neither would God have visited Ahabs Family for the Blood of Naboth And I never knew any man to maintain the Doctrine That all our Rights and Properties were in the Crown but he hoped thereby to encrease his Estate And few ever pretended to be of that Opinion that were not broken in their Fortunes or aimed at their Neighbours If therefore Peace and Order is the end of Government and that it is more for Gods glory that every man sit safe under his Vine and Fig-Tree then it will follow That a King may forfeit his Crown by â—eason of Male Administration for otherwise it will follow that God made the World for the Pomp and Grandure of Kings and not for his own Glory that there is no such thing as Property no such thing as Right or Injustice that there are no Laws but his Will and Pleasure nor any thing to guide him but his own Fancy The CASE QUERY Whether a Conspiracy to Levy War is an Overt Act of Conspiring or Imagining the Death of the King IT has been declared in the Affirmative by some modern Precedents But whethen those Judgements did Proceed from Ignorance of the Laws or to serve a Turn will be enquired into when the time comes that the plain English may be spoke that is necessary to open and discover the truth of the Case There are several things which may give occasion to make it be so generally received in the Affirmative but it has chiefly proceeded from making Distinctions where the Law has not distinguished which is altogether forbid if Rules in Law are of any Authority or signify any thing for non est distinguendum ubi Lex non distinguit And therefore this Opinion will easily be refuted by considering these things which follow First Whether any Court the Parliament excepted can Try a man upon an Indictment for High Treason that is grounded upon Common Law Secondly To what end and intent the Statute 25. Ed 3 Chap. 2. was enacted Thirdly Whether Couspiring the Death of the King and Levying of War are distinct Species of Treason Fourthly Whether every Law is not to be construed most strictly to restrain the mischief against which it was enacted Fifthly What is the true meaning and signification of being provably attainted by Overt Deed As to the first it seems to be out of doubt that at this day there is no such thing as an Indictment at Common Law for High Treason tho for other things there is because there is no Precedent of it since the Statute 25. Edw. 3. for every Prisoner that is Arraigned for Treason does commonly demand of the Court upon what Statute he is Indicted and it is always answered upon such a Statute and the particular Statute is named Besides every Impeachment before the Lords in Parliament is grounded upon some Statute and if so a Fortiori no inferiour Court can try the Prisoner upon an Indictment for High Treason grounded upon Common Law For the Law which delights in Certainty especially in Case of Life will not allow of an Indictment at Common Law because no Issue can be joyned upon it by reason of the uncertainty As to the Second To what end and intent the Statute 25 Edw. 3. was made Edw. 3. was a great Prince and Victorious Captain which gained him a very great Renown but that which made his Name the greater and his Fame the more lasting was those good and beneficial Laws which were enacted in his time by which he restored and beautifyed this Government which had been defaced and almost destroyed by the illegal Proceedings during his Fathers irregular Reign and of all the Oppressions under which the Nation groaned at that time there was none that lay heavier upon them than that extravagant License which the Judges took to Interpret and call any thing Treason and this appears by the particular Joy which the whole Land expressed at the making of the aforesaid Statute For tho' he call'd Parliaments very frequently and none of them prov'd abortive for every one of them produced good Laws yet that Parliament which was held in his 25th Year did more than all the rest and of all the Beneficial Laws which were then enacted the Second Statute whereby Treason was reduced to a certainty gave the People greatest cause to lift up their Hearts and Voice in Thankfulness to God and the King because the Jaws of that devouring Beast were broken which had torn in pieces so many Families and threatned destruction to the rest So that this Statute was made to restrain all Treasons that may be made by inference or implication and to limit the Judges so strictly that they may not call any thing Treason but what is literally such within in the Statute for it is there provided That if any such like Treasons shall come before any of the Justices that they must slay without going to Judgement till the Cause be declared before the King and his Parliament And all subsequent Statutes of Treasm are as so many Confirmations of this Law for they had been needless 〈◊〉 the judges could have called any thing Treason but what is literally within that Statute and that Statute had been made to no purpose if it had not so strictly restrained the Judges And my Lord Chancellor Notingham was of Opinion That even the Lords in Parliament could not proceed upon an Indictment of High Treason unless the Fact alledged in it were first declared by some Statute to be Treason As to the third thing It never was not ever will be denyed that Compassing the Death of the King and Levying of War are two distinct Species of Treason unless all Treasons are of the same kind but if there are several sorts of Treasons then it will follow that these are also distinct Because in every Statute of Treason which mentions Conspiring the Death of the King and Levying of War they are named
some do vainly pretend This I say because I am afraid it is something our Case at this time and so the Nation must languish to satisfy the Imaginâ—â—ions of some People who are afraid of their Shadows How the Church can be hurt by any Laws that concern the State is not easily to be comprehended if those Laws Establish no other Gospel than that which was delivered by our Saviour Nothing can hurt the Church but it self and it is never in more danger than when it is in its greatest Pomp and Grandure The deceit of this is very plain because they that bawl most of the Danger the Church is in have the least of Religion in their Lives for those who live and understand better see the folly of it as also that Doctrine of Passive Obedience and Nonresistance which many cry'd up as the Corner Stone of the Church A Burden which they were forward to lay upon other peoples Shoulders yet when it came to their own turn none was so uneasy under it as they for when their Rights came to be toucht No mens Mouths was so full of Liberty and Property as theirs But now that the Storm is blown over they are angry that that Liberty is granted to others which they promised to consent to and are returned to where they were in supporting that Arbitary Doctrine and to that end they are inventing new Titles to the Crown for this King and Queen which demonstrates what Steddy men these are since in the late times they would not allow any Title to be good but Succession yet now they can submit to any other how contrary soever to Succession provided they can thereby keep up this Arbitrary Doctrine and get their turns served and first they find out for this King and Queen a Title by Conquest I hope they are mistaken for if the case be so we are all Slaves and instead of being rid of Arbitrary Power by this Revolution we have helpt to Saddle and Bridle our selves For the people that are conquered hold all they have at the will and pleasure of him who did subdue them But how were we conquer'd did the Nation conquer it self if it did it was an odd thing and altogether new Or who was conquer'd not they who actually appear'd in Arms against King James nor those who wisht him somewhere else and that was by much the greatest part of the Nation It is so senceless a Notion that it only serves to discover the ignorance or knavery of those who go about to maintain it and I suppose we shall hear no more of it because the Lords and Commons in Parliament by an unanimous Vote have condemn'd it The Next thing talkt of is Gods ways of disposing of Kingdoms whence they would pretend that the King and Queen received the Crown from God Almightys immediate donation It is Blasphemy to exclude the power of God in any Case and to exclude the people from having had an immediate hand in bestowing the Crown is a new intelligible sort of Politick for the drift of this Notion is to make us Slaves by reason That whatever is the immediate Act of God and a declaration of his pleasure Man has nothing more to do but to yield an intire obedience and submission to it So that when a King receives his Crown immediately from God any Provisions or Limitations that can be made by Men comes too late to circumscribe his Power But is this our Case which way did God declare that this Man should Reign over us Or who foresaw upon what Head the Crown would be placed till the Lords and Commons came to a Resolution in it and therefore it will follow That the King and Queen received their Crown from the Hands of the People upon such Terms as they gave it and God has not done any thing to exempt them from the Performance of those Conditions However there are those who hoped to make their Court to their present Majesties by starting and maintaining those two Notions Viz. of Conquest and God's ways of disposing of Kingdoms with what success I leave to every mans observation and only say this That is will be an happy Age when Kings are so much disposed to the good of their People that such Flatterers will meet with no Incouragement from them I come now to speak of Swearing and Drinking and I do believe that the horrible Prophanation of God's Name was never so common as in this Age. That great and dreadful Name before which we ought to Fear and Tremble is used with more familiarity than the meanest thing you can think on It is a very unfortunate thing whenever we take the Name of God irreverently into our Mouths altho' it happen when we are under some Provocation yet it Administers cause for Humiliation and a more narrow Observation of our selves for the future but is in no sort a Justification of us Therefore to fill their mouths with horrible Oaths when they are cool and in temper and to swear in common Discourse is a dreadful hearing And really it is come to that pass that men don't think they express themselves well and modishly unless they interlard every Sentence with an Oath or two and that which is strangely ridiculous is that some cannot ask another man how he does without wishing his own Damnation How this is to be remedied is the Question for since it could not be prevented from growing to the height to which it is gotten it will be so much the more difficult to suppress it for if in any case it can be said That the number of Offenders is too big for the Law it must be allowed to be so in this That Law has provided very well for the Punishment of such as offend herein per Statute 21st Jacob. C. 20. They forfeit twelve Pence per Oath If this were duly put in Execution I am perswaded it would work a great Cure These Customary Swearers would with more wariness open their Lips when they found that their Oaths cost them so dear and I am the rather of this opinion because I have observed That when a common Swearer is in the presence of any person whose Authority or Quality has an awe over him scarcely an Oath slips from him tho' he speaks never so much And therefore it is very much to be wisht that Magistrates would more strictly inform themseves of such as offend herein and give them the punishment which their Offence deserves The next thing is the Sin of Drunkenness which calls aloud for redress it being now so common and universal that People of all Ages Sex and conditions are infected with it to that degree that it is become the Reproach of the Nation which is now as remarkable for this Sin as it was for the Excellency of our Government during the Reign of Queen Elizabeth And it may be Observed That from the time that this Government began to decay that this beastly Custom took its Rise I
so great draw him aside and then we shall see Peace in our Israel I doubt not Gentlemen but you will do your Parts and this is all that I have to trouble you with at this time THE LEGALITY Of the Convention-Parliament Though not called by Writ IT 's a new sort of Doctrine That where there is a Power to do a greater thing there cannot also be to do a less The Lords who are born Counsellors to the King and Kingdom the Members of the House of Commons were all duely chose by such as had Right to Elect Members for Parliament The two Houses meet at the same day and first declare the Throne vacant and then fill it with this King and Queen and they thus Elected these Lords acknowledge to be our Rightful and Lawful Soveraign Lord and Lady which is the greatest thing that the two Houses are capable of doing and have thereby according to the Maxims of those very Lords altered the Government in a most Essential point of it and yet say they All Subsequents tho' with the Concurrence and Consent of this lawful King and Queen are invallid unless supported by the Authority of this or some other Parliament because the last was not called by Writ in due form of Law So that the Representatives of the Nation Assembled without a Writ can only do one thing and that the highest to make a King And by like Reason If when Assembled by Writ can do every thing but the greatest But it is against all manner of Reason and Policy to suppose that the Power that can make a King cannot do every thing else that is necessary to settle the Government If those Gentlemen had understood the true meaning of Writs and been so ingenious as to confess it they would not have made that an Objection against the Validity of the last Parliament Writs are necessary in their proper time but not so necessary as to give the Essence to a Parliament for if there be any weight in this Reason a Writ is as necessary as the Consent of the Nation by their Legal Representatives to Establish any thing into a Law Writs can amount to no more than the Means by which the Parliament is concerned It will be granted that the present Writ of Summons was Established by the Government and not by the King and it cannot be deny'd that wherever the power of the Government rests it may if it see Cause direct that Parliaments shall be convened in any other manner or by any other means than by Writ For it is not the Writ that makes a man a true Representative but the Election of those who have right to choose for that place For otherwise the Sheriff or other Officer might have return'd whom he saw good and Elections would be needless But the Law has more expresly shewed that it is the Election that makes the Person a Right Member and so consequently the Election of the People is that which gives the Essence to a Parliament because the Law has under greivious pains commanded That Election shall be free And since the Constitution of the Government makes choice of Writs for the Canvening of the Representative Body of the Nation why was not the Parliament as duely concerned and the Acts they passed as good since it was impossible to be Summoned in due form and these Gentlemen might as well have insisted That a Nation may want a Power to help it self as to object against the Validity of the last Parliament because called without Writ By the Weight that they lay upon a Writ they do seem to make a Writ more necessary to a Parliament than our Allegiance is to the Government and if that be so that which is only a Circumstance in the Government is more to be regarded than what is necessary to the Peace of it But to grant that Absurdity What is it that has given the Sanction to these new Oaths that our sitting and Voting in Parliament has not put us under all the Disabilities of 30 Caroli for we are certainly within that Statute if the last Parliament had not power to alter those Oaths and if it had what else they did is as valid for all or none of those Acts are good If it be destructive of the Monarchy to declare those Laws to be good it may be also said to be alike destructive when the proper and only means to support it is made use of For the Nation had no other way left of coming to a Settlement A RESOLUTION OF Two Important Questions I. Whether the Crown of England be Hereditary II. Whether the Duke of York ought to be excluded SIR THE Questions that you have proposed to me are of such a nature that they require a very strict consideration because they are of the greatest moment in our present condition and therefore you have done me a great honour to command my Thoughts upon them in regard you might have had your Queries resolved by persons much more able than I am but since you desire my Opinion I will give it you very faithfully As I remember the first thing that you was in doubt of was Whether the Crown of England be Hereditary or no and to that I answer negatively That it is not Hereditary And in order to the clearing of this I will in the first place give you a short historical account of Matter of Fact till K. James I think it will not be denied that from the first known Times in this Island after that they had Kings till the Conquest but that the People Elected him for their King whom they best liked without regard had to the Issue of the deceased King and also that they deposed them very frequently and set up others in their stead when upon tryal they were found unfit for the purpose He that says otherwise confesses himself either not to have read our English Story or that he understood not what he read and if your self doubts the truth of what I affirm I will at any time give you a particular account of it till the entrance of the Normans William the First commonly called the Conqueror we must begin with him who it 's most certain had no Right or Title to the Crown by Inheritance or Descent and it is as true that he did not gain it by Conquest for Edgar Etheling who was alive and in England when William came in had an unquestionable right by Descent and therefore whilst he was alive William could not pretend any Title by Inheritance but must find out some other way to come to the Crown and therefore he pretended one while a Compact between him and Harold and again That it was left to him by Edward the Confessor by his Will yet he found that all these were but empty sounds for although he had a potent Army by which he might have done great things yet that Army only brought him into England but it was the Election of the People that
given in a superiour of which no such President is to be found in regular times scarcely in the most confused and disorderly 2. Because it is in Case of Priviledge which is the most tender part of every Court for if the Rights and Priviledges of any Court are made light of the Court itself will soon come to nothing because they are as it were the most effential part of it if not the very Essence of the Court for what signifies a Court if its Orders cannot be executed It is better that a Court were not than that its Priviledges should not be duly observ'd for without that it becomes a Snare and Mischief to the People rather than an Advantage 3. Because by this they have set the Feet above the Head for as they have by this declared themselves to be superior to the Lords so it will naturally follow that a Quarter-sessions may reverse their Orders or suspend their Priviledges and a more inferiour Court shall supersede what the Quarter-sessions does And thus it must go on till the course of Nature is inverted 4. Because they may as well deny a Lord or over-rule any other Priviledge as well as this and so consequently when the House of Lords is not actually sitting every Peer must be beholden to the Judges for every Priviledge that he enjoys 5. If this Judgment be according to Law then may the King's Bench try a Peer for Misdemeanor at the very time when the House of Lords is sitting and consequently the House must want a Member if the King's Bench sees it good to have it so and what a confusion would it make and the consequence of it would be is easily discern'd the want of one Member makes that House think itself to be lame as was seen in the Case of the Earl of Arundale 3 Car. How many Petitions did the Lords make and how many Messages passed to and fro between the King and them who would not proceed to any business till he was restored to his place in that House for they told the King That no Lord of Parliament the Parliament sitting or within the usual times of priviledge of Parliament is to be imprison'd or restrain'd without Sentence or Order of the House unless it be for Treason or Felony or for refusing to give Security for the Peace Surely the Judges did not give that Judgment for want of understanding that Judgment of the Lords for nothing can be more express and plain for it and says directly That sitting the Parliament or within usual times of priviledge no Peer shall be molested unless for Treason or Felony or for refusing to give Security for the Peace The Earl of Devonshire did all that the Judges could require of him by finding Sureties for the Peace and what the Judges did more was not grounded upon that Judgment of the Lords but was a manifest and presumptuous invasion and violation of the Priviledges of the whole Peerage of England It is very obvious how the Peerage has been undermined ever since Hen. VII's time what Endeavours have been used to make it less and less first by multiplying the number of them secondly by raising people of mean extraction to that Dignity both which tend to render it contemptible but nothing can make it more despicable than that its Priviledges should depend upon the beck of the King's Bench and therefore considering how groundless and without president it is what they have done in the Case of the said Earl it is no more than probable that they thereby aimed at pulling down the Peerage For what seems so likely as it does It carrics its Evidence in its Face for it manifestly takes away the priviledge of the Peers and till it does appear for what other end it was done all Men of Sence and that are unprejudic'd must believe it was to pull down the Peerage for all that can be pretended is either to secure the Peace or to punish the Offence The Earl did give Security for the Peace and he did not design to shift off his Tryal but that it should be in its proper season for tho' it delay'd the Trial yet it brought it to the proper time and so consequently the more legal and reasonable but the Judges must go out of the way of Reason and the Law to make a breach in the priviledge of the Peers It is too commonly the Discourse every where and I fear with too much reason That the Judges make very bold with the Law but it 's plain by this Judgment that they have stuck the priviledges of the Peers under their Girdle Whether it did proceed from Ignorance or Corruptness will appear upon what they shall say for themselves it 's too plain from one of them it is and either of yours renders them unmeet to sit in that place I do remember that the puny Judge gave this Reason for over-ruling the Earl's Priviledge says he Your Lordship and all the Peers receive all your Priviledges from the King and therefore it would be very unreasonable to make use of them against him and seeing the King is concerned in this Case I am of the opinion that their Plea be over-ruled It is said that he has some Law and therefore it 's the greater presumption in him to judge upon the Lords Priviledges who is not qualified by Law to sit as a Judge in any Case for he is a Papist as every body says and so consequently has not taken the Oaths and Test that the Law enjoins before he take his place on the Bench. But as to his Doctrine which he laid down since it does not properly come into this Debate I will only ask him a few Questions Whether there was not a People before there was a King Whether the King begot all his People and if people of several Nations should be cast upon an Island and seeing no probability of getting thence they agree upon certain Laws and Rules for the Common Good and make choice of the wisest Man amongst them as their King to rule and govern them according to those Laws can it then be said that the People received their Priviledges from him or that he is not strictly bound to govern them by those Laws and no other I desire to ask this one Question more Whether the King is not bound as well by his Oath as by the nature of the Government to protect and defend every Subject in his just Rights and Properties But allowing his Doctrine as orthodox yet his Reason is admirable for the Subject is not to make a defence in any Case if the King have any Title or Concern in it all Corporations must deliver up their Charters of course whenever a Quo Warranto is brought and why because it was a Grant from the King and it would be very hard to oppose him with his own Gift whoever holds any thing by Gift from the Crown and tho' made as sure as the Broad Seal can make it
cum grano salis for if the Fine be immoderate or else he has not the Money then ready but either offers Security to pay it or else prays for some time and in the interim to stand upon his Recognizance in either of these Cases to commit for not paying the Fine into Court is not justifiable because it is to punish for not doing an Impossibility for Lex non legit ad impossibilia Secondly It is not justifiable because if the Fine be paid the Law is as much satisfied if it be paid five years hence as if it be paid then immediately into Court for the Law does not suppose that the most wealthy man does carry so much Money about him Thirdly It is very unreasonable because it does in a great part disable the person to pay the Fine for if he be a man that manages his own Affairs his Writings that are necessary to make the Security may be so dispos'd of that it will be difficult to come at them besides there being a necessity upon him to have the Money those of whom he is to have it will be very apt to hold him to harder terms for the World is so unnatural and brutish that one man is but too prone to make his Advantages upon the Misfortunes and Necessities of another and that Proverb Homo homini lupus is in no Case more true than in the business of Money ARGUMENTS AGAINST The Dispensing Power THAT which Sir M.H. Resolved by Lord Chancellor Egerton no Non obstante could dispense with the Law about Sale of Offices Coke 234. foresaw and prophecied is now fulfilled viz. That our Slavery whenever it happen'd was rather to be feared from the Twelve Redcoats in Westminster-ball than from 12000 standing Forces for this Opinion if from henceforward it shall be Law then has our Freedom received a dreadful Wound in the Head for we shall hold all our Rights and Properties but precariously even no longer than it is the King's pleasure to have it so But be it as it will and how clear soever it may appear to the Judges yet at present it does confound the Vnderstandings of all People besides because till now it has been hidden from the Eyes of our ablest Sages of the Law wrapt up in such Clouds and thick Darkness that the most discerning of them have not been able to pry into it and therefore it passes all our Understandings that this Sett of Judges who had not Law enough to employ them at the Bar before they were raised to the Bench should find out the Secret and give an Absolute Opinion for which there is not any president to be produced and therefore shrewdly to be suspected that it is not grounded upon Law no more than those Opinions were for which several Judges have been hanged The Law of England has ever been reputed to be as plain and intelligible as that of the Jews which was written on the Palms of their Hands save only when Judges are ignorant and needy and are assured that Parliaments are at a great distance and then only are such Opinions as those given for their Ignorance makes them assured their Poverty makes them leap before they look and when Parliaments seem very remote under that shelter they grow bold But it is to be hoped that such Opinions as these will pass for Law no longer than the Nation is govern'd without a Parliament which sooner or later will come as certain as that there will be a Day of Judgment It is strange that these Judges should understand so great a Mystery as this unless there be as great Vertue in a Judge's Gown as was in the Mantle of Elijah and if so how happens it that the same Spirit has not rested on those who have sate before them on the Bench but if a double Portion of that Excellent Spirit is rested upon our present Judges that they are able to dive into so great a Mystery as this and see so much further than any who have been before them surely they are also endowed with the Tongue of Angles and so can explain this matter to the Understandings of the People which in Duty they are bound to do or else in time with the price of their Heads they may come to give the true Reasons of this their Opinion 1. That the Kings of England are Soveraign Princes 2. That the Laws of England are the King's Laws 3. That therefore it is an incident inseparable Prerogative in the Kings of England as in all other Soveraign Princes to dispense with all Penal Laws in particular Cases and upon particular necessary Reasons 4. That of these Reasons and Necessities the King himself is the sole Judge and which is consequent thereupon 5. That this is not a Trust invested in or granted to the King but the ancient Remains of the Soveraign Power and Prerogative of the Kings of England which never was yet taken from them nor can be Therefore in this Case such Dispensation being pleaded by the Defendant and such Dispensation being allow'd by the Demurrer of the Plaintiff and this Dispensation appearing upon Record to come time enough to save the Defendant from the forfeiture Judgment ought to be given for the Defendant quod querens nil capiat per billam Soveraign Power is of a vast extent that is as much as unlimited and to which no Bounds is or can be set That the Kings of England in Parliament have a Soveraign Power is true that with the Consent and Concurrence of the Lords and Commons he may do what he will is without question and it is as certain that out of Parliament his Power is limited and confined within certain Bounds and Limits which he cannot pass without doing violence to Justice and the Laws for there are two Powers in the King the one in Parliament and that is Soveraign the other out of Parliament which may be directed and controuled by the former and therefore called Potestas subordinata pag. 10. Rights of the People p. 9. Argument of Property therefore his Power is Soveraign only sub modo for out of Parliament many of his Acts are not only questionable but void in themselves Rights of the Kingdom 83. for what he shall do against Law those Acts bind no more than if they were a Child's he cannot command one man to kill another he cannot pardon a common Nusance nor an Appeal at the suit of the Party And multitudes of the like Instances might be given for if the King's power out of Parliament was as great as in Parliament then there 's an end of the Policy of this Government and the Barons Wars was only to beat the Air. It is most certain that till these late days during which we have been so very much Frenchified Roads are called the King's Highway but the Freehold is in the Lord of the Soil and of the Profits growing there as Trees c. Terms of the Law 56. that
of every Man is under the protection of the Law even Persons Condemned Outlawed or Attainted to Kill or Execute them in any other manner than the Law directs is Criminal In case of Outlawry for Treason or Felony in the Kings Bench if the Party be apprehended in time of a Vacation no Warrant can go out to execute him before the next Term but he is till then to remain in Prison that so he may not only be heard what he can say for himself wherefore Execution should not be awarded but that also the Law may be satisfied that he is the very Person named in the Outlawry and even a Prisoner condemn'd at the Bar cannot be executed till there is a Rule of Court or other order for it Now it is conceived that the Duke of Monmouth ought not to have been executed till he had been brought before the King's Bench or some other Court that could properly judge and distinguish whether he were the very Person Attainted by that Act for had he been brought to the Bar and there deny'd that he was the same Person a Jury must thereupon have been impanelled to try whether he were the proper Person or not For the Law delights in certainty and will not go out of so grave and considerate a way especially in so solemn a case as Blood where it cannot be too cautious one Man may be so like another that it is not easie to distinguish them when asunder and a mistake in such a kind would be a great blot upon the Justice of any Government when it is occasion'd by precipitancy and haste but we have lately seen such unfortunate times when there was a willing disposition to commit such Mistakes if any Colour of Law could have been found for it But setting all these things aside and were there not so many extraordinary things in the Case yet something ought to be done for the sake of the Dukes Children surely a great deal of compassion is due to them considering upon what score their Father lost his Head by reason that the Cause of his Rising in Arms was no other than that which prevailed with the Prince of Orange to make a descent into England that is to deliver us from Popery and Slavery there being nothing that differences those two Cases but that the one had success and the other miscarried and therefore can it be politick to leave that Attainder unrevers'd as a reproach upon the Duke and his Posterity for what he did Besides if this Attainder be not revers'd it will be an utter discouragement upon all others for the future to attempt the rescue of their Country if no regard shall be had to their Posterity in case they don't succeed I am verily perswaded that if the Prince of Orange had miscarried in his late Attempt to deliver us every Man that had suffered in that cause would have expected that when ever it was in the power of the Nation to have had a mark of favour be set upon their Posterity at least that of right their Families were to be put in Statu quo There will be very small inducement for any to be concern'd for the Publick when nothing but success will make the Publick take care of them when the Vertue of a People is so far depraved as to forget those that have serv'd them they do not after that long retain a true sense of Liberty and are easily perswaded to part with their freedom and so long as this Attainder remains in force it hangs over the Nation like a dreadful Omen for so long as it is in force we consent to the Justice of it and how can that be Just which we would not have done to our selves for certainly no Man would like to be Judged by such Law as took off the Duke of Monmouth and therefore what can be said that his Attainder should not be revers'd THE INTEREST OF Whigg and Tory. A LETTER to a Friend THough others may be more fortunate in their Conceptions yet I am confident that no Body imploys their thoughts so often and with more Affection to His Majesties Service than I do It is very obvious that the Kings Affairs are much perplex'd Vast supplys are necessary and there is but a dark prospect where the Money will be had or if the Nation were in more Wealthy Circumstances the Divisions that are amongst us would much obstruct the giving so much as is needful at this time But the greatest difficulty which the King has to struggle with will be from the High Church or Tory Party and the more he trusts or confides in them the harder game he will have to play For give me leave to say the King can never be safe in depending upon them till they change their Principles or he do foregoe his own No Man can have so mean a thought of the King that he will ever have so little Honour or Justice either to deny or go counter to what he has profess'd and practised in the whole course of his Life And it 's very plain that it is Private Interest and not the Publick good is the Principle by which that party has been acted And though they have sometimes seemed very zealous to serve the Crown yet they have never gone further with any King than so long as they could serve themselves of him and therefore unless they are govern'd by a more Publick Principle or have given more ample testimonies of their true affection to the King than they have done to those that have been before him the more Countenance he gives them the more he strengthens the hands that will be lift up against him if a fair occasion offer it self The Seven Bishops who were sent to the Tower for refusing to read K. James's Declaration were highly applauded for that Action as a Service done the Publick but if their own particular Interest had not prevailed with them they would not have been so forward to read the Declaration of K.C. that struck more directly at the heart of the Government and reproach all that shew'd a dislike of it If that Party has given any instances of their Affection to this King either they are not publickly known or not well understood but what they have done on the contrary are too notorious to admit of a Dispute It was that Party that contended so obstinately for the Regency and when the matter came to be decided by a Vote in the House of Lords there was but one Bishop that gave his Vote against the Regency Who are they besides those of that Party and the Papists that at this day refuse to take the Oaths Five of the Seven Bishops have so done It was that Party in the House of Lords that opposed the imposing the Oaths with the penalty especially on the Clergy It 's that Party that so much favours the Papists of this day and if any Protestants are found to be in a Plot with the Papists they are
all of that Party Every thing moved in Parliament for our settlement receives its opposition from that Party and I do averr that amongst that Party there are none of them who have been preferred by the King have given a Vote but have opposed every thing that was for the Publick good Whatever tends to recal K. James or to facilitate his readmission is vigorously disputed for by that Party And tho' they now stand so stifly for his Interest yet they passively lookt on whilst he was driven out of this Kingdom which is an undeniable Argument that they either wanted Courage or Interest and a defect in either of them makes them rather to be despised than fear'd for if they had neither Courage nor Interest to serve K. James in whom they have so much inclination it will not much mend the matter when this King is in the same Case They have not the face to justifie the late Illegal Proceedings yet are very busie to keep in and get into Imployments the very Persons that were then made use of I don't desire that these People should be removed to make more room for me for I am very well satisfied with the Post I am in and with all possble thankfulness acknowledge his Majesties Grace and Favour but I say this because I wish that every Man the King makes use of were altogether as honest and affectionate to his Service as I am and as able to serve him as I am willing I was and am of opinion that the King made a very wrong step when he employed so many of that Party because it would unavoidably abate the Zeal of many of his Friends and I fear it has had this further bad effect to make those People believe that either he is afraid of them or that they are necessary to him whose utmost hopes or expectations were to shroud themselves under an Act of Oblivion I am far from reflecting upon what the King has done for it lyes heavy upon my Spirits as oft as I think of it but I should rejoyce if I could offer any thing to help the King to make the best of a bad bargain For he has a very ticklish game in his hands If he should now all at once discard that Party no doubt it would confound his business very much for the present and on the other hand if he do not so carry it towards Friends till with more convenience he may put them off that they may see it is necessity and not choice that makes him take this course he will be in great danger of loosing most if not all of them and if so the King will be in very untoward Circumstances For then he will be under the necessity of depending wholly upon this Party and consequently he must run up to all the excess that they have formerly practised and yet he shall not be sure of them for as soon as they can make a better bargain they 'l leave him to shift for himself This I conceive to be the Kings Case and I wish any thing could be thought on that would do his business effectually I do highly approve the Kings Method relating to Ecclesiastical matters in giving of the Church Preferments to none but Moderate Men and of Exemplary Lives for hereby the fierceness of the High Church-Men will be abated and the over-niceness of the Dissenters taken off and consequently bring both sides to better temper which is the first and principal step in order to uniting of Protestants In like manner if the King would for the future dispose of all such places as become vacant to none but Moderate Men and especially give the preference to such as deserv'd well of him this would be to the satisfaction of his Friends and could give no cause of offence to the contrary Party it would let his friends see what further kindness he intended them and the other would have no cause to complain or if they did they would loose ground by it And further to displace such as in Parliament Vote against the Interest of the King and Kingdom I think cannot be a question I am far from thinking it to be justifiable to displace Men for Voting according to their Consciences but when Men are for promoting of that which is against the Publick or for bringing in K James or bringing on Confusion to continue such in Imployment must discourage the Kings Friends and to put them out can offend none but such as whose good or ill will is equally to be regarded Besides the present juncture of Affairs there seems to be but one objection against turning out these sort of Men immediately and that is the doubt in what Interest the bulk of England lies This is a thing that may certainly be known but it would be a great deal more than this Paper can allow of to make it clearly out and yet I will humbly offer one thing that will in a few words give a great deal of light into it That when we have had two State Officers in the same station of different Parties it 's reasonable to suppose that all Persons that have business will apply themselves to the one or the other according to the Interest they are of if then it shall fall out that he who espouses the true Interest of his Country has three times the business of the other I conceive it no mean Argument where the weight of England is Much more I could say upon this Subject and I fear I have already exceeded the bounds of a Letter Yet if what I have said is worth your pains of reading there is no Body to whom I can with so much satisfaction communicate my Thoughts nor will better improve any advantage that may be made by it than your self But if I have not said much to the purpose I hope the honesty of my Inclination will obtain your pardon and continue me the honour of c. A Discourse shewing who were the true Incouragers of Popery Written on the occasion of King James his Declaration of Indulgence UPon the late Declaration of Indulgence many having absented themselves from the Church our high Church-men have from hence taken occasion to lay it down as a Maxime That if Popery be Establisht here in England the Dissenters are the only cause and occasion of it and by the Thunder and Noise that they make in their Pulpits and all other places a great many others are perswaded to be of their opinion yet I cannot assent to it though I am far from turning Advocate either for the Declaration or those that make use of it yet as a moderate and just Man I would set the Saddle on the right Horse and I am perswaded that any impartial considering Man will when he thinks on it seriously find That it is by the help not so much of the Dissenters as the high Church that Popery has put foot into the Stirrup and is ready to mount into the Saddle But yet
and here 's the short and long of the case And therefore the Parliament must never yield that the Bishops shall Vote in case of Blood for the consequence of it will be to alter the very Frame of our Government and cursed be he that removes his Neighbours Landmark A SPEECH AGAINST THE PENSIONERS IN K. Charles II. Reign WIthout doubt the last Parliament had great Matters in agitation and the inquiry they made about the Pensioners of the preceding Parliament was no small one but rather one of the chief things they had in hand for had they been permitted to have perfected that it had been a good recompence for the disappointment which the Nation sustain'd in their other expectations by the suddain Prorogation And without all question nothing is fitter for the thoughts of a Parliament than to take into consideration how to punish them that had proved the Pest and had almost if not altogether ruin'd the Nation and how to prevent the like mischief for the future The Name of a Pensioner is very distastful to every English Spirit and all those who were Pensioners I think are sufficiently despised by their Country-men And therefore I will mention only two or three things that will lye at their doors before I offer my advice what is to be done Breach of Trust is accounted the most infamous thing in the World and this these Men were guilty of to the highest degree Robbery and Stealing our Law punishes with Death and what deserve they who beggar and take away all that the Nation has under the Protection of disposing of the Peoples Money for the honour and good of the King and Kingdom And if there were nothing more than this to be said without doubt they deserve a high censure Besides the giving away such vast Sums without any colour or reasonable pretence There is this great mischief will follow upon it Every man very well knows that it has put the King into an extraordinary way of expence And therefore when he has not such great supplyes it must of necessity bring the King into great want and need And shall not only give him an ill opinion of all Parliaments that do not supply him so extravagantly but perhaps put him to think of ways to get Money that otherwise would never have entred into his thoughts so that whatever ill may happen of this sort these Pensioners are answerable for it Furthermore they have layd us open to all our Enemies whoever will invade may not doubt to subdue us For they have taken from us the Sinews of War that is Money and Courage all our Money is gone and they have exhausted the Treasure of the Nation and when People are poor their Spirits are low so that we are left without a defence and who must we thank for bringing us into this despicable condition but these Gentlemen who notwithstanding this had the face to style themselves the Kings Friends and all those who opposed their practices were Factious and Seditious They had brought it to that pass that Debates could not be free if a Gentlemans Tongue happen to lye a little awry in his Mouth presently he must be called to the Bar or if that would not do whensoever any Gentleman that had a true English Spirit happen'd to say any thing that was bold presently away to seek the King and tell him of it and often times more than the Truth And thus they indeavoured to get an ill Opinion in the King of his best Subjects And their practice was the more abominable because their Words and Actions gave the occasion to force those smart Expressions from the Gentlemen that spoke them for their honest hearts were fired with true Zeal to their King and Countrey when they beheld the impudence and falseness of those Pensioners It 's true we find that in or about the 10th year of Richard II. it was indeavoured to get a Corrupt Parliament for our English Story says that the King sent for the Justices and Sheriffs and enjoyn'd them to do their best that none should be chosen Knights and Burgesses but such as the King and his Council should name but we find it could not be effected The next that occurs to my thoughts is that in the 4th year of Henry IV. the Parliament that was called at Coventry named the Lay-mens Parliament for the Sheriffs were appointed that none should be chosen Knights or Burgesses that had any skill in the Laws of the Land The next that I remember is that in Henry VI. time in the year 1449 or 50 when the Duke of Suffolk was Accused by the Commons and Committed to the Tower the King Dissolved that Parliament not far unlike our case of my Lord D but it differs in this that Suffolk was Committed to the Tower as of right he ought but we were deny'd that Justice against D only Henry VI. made the cases thus far even that he set Suffolk at liberty after he had Dissolv'd that Parliament Soon after a Parliament was called wherein great care was taken in choosing of Parliament Men that should favour Suffolk But they so far failed of their purpose that his appearance at the Parliament gave great distaste to the House of Commons and they were so far incensed that they began the Parliament with a fresh Accusation against him and others So that you may see that it was not in the power of the Court to corrupt the House of Commons In the time of Henry VIII about the 20th year of his Reign when the Parliament was active against Pluralities and Non-Residence there was an Act passed to release to the King all such Sums of Money as he had borrowed at the Loan in the 15th year of his Reign it 's said that it was much opposed but the reason that is given why it passed is because the House was mostly the Kings Servants but it gave great disturbance to the Nation And this is the only case that I can remember that comes any thing near to our Pensioners but we cannot find that they or any Parliament took Money to Vote So that we must conclude that there was never any Pensioners in Parliament till this Pack of Blades were got together Therefore Sir what will you do Shall these Men escape shall they go free with their Booty Shall not the Nation have Vengeance on them who had almost given up the Government It was they who had perverted the ends of Parliaments Parliaments have been and are the great Refuge of the Nation that which cures all its Diseases and heals it Soars But the Men had made it a Snare to the Nation and at best had brought it to be an Engine to give Money If therefore these go away unpunisht we countenance what they have done and make way to have Pensioners in every Parliament but far be any such thought from any Man that sits within these Walls And having said this I will in the next place humbly offer
their Favourites do for the most part pick up mean Men people of no Fortunes or Estates upon whom it is that they place their favour to so high a degree And therefore it 's for their Interest to advise the King to govern by an Army for if he prevails then they are sure to have what heart can wish or if he fail yet they are but where they were they had no thing and they can loose nothing There is no Man but very plainly sees that there are People about His Majesty who advise him to shake off the Fetters of the Lawes and to govern Arbitrarily and I wish that their Advice have not prevailed for the most part yet I think His Majesties own Inclinations do not bend that way for he seems to love quiet and ease which no Prince can have that Rules by an Army Therefore before we can expect that His Majesty will come in to us these People of Arbitrary Principles must be removed from his Throne for whilest there are the same Advisers we must expect the same Advice whilest there are the same Councellors we must expect the same Results And this alone will not do it it 's but the first step to our happyness the Principles or Maxims of State must be removed it 's not taking away this or the other Man and putting in another to act by the same Rules that will cure our Disease but it 's the change of Principles that must do it You may remember in the last Parliament the change that was made in the Privy Council and Ministers and upon the first news of it I met with a Gentleman that had a great Service for White-Hall says he I hope now you are pleas'd what can you expect more from His Majesty I replyed I like it well yet not so very well for said I all is well that ends well for all is not Gold that glisters I am not sure that these Men that are put out have not left their Principles behind them when those are gone I shall like it very well The Man was angry and flung away saying you are hard to please and says I you are easie and so we parted And I pray you how much Wooll have we had after all this cry what benefit have we reaped by that change Do not we see that unless they would act by the Maximes of their Predecessors they must do nothing and therefore several did desire leave to go off Some of these worthy Lords and Gentlemen that did so are now in my eye and I shall ever honour them for it I cannot forget the promises made to the Parliament at the same time and how well they have been kept Therefore I think it 's very plain that till these Principles are removed from White-hall that all our labour and pains will end in nothing The way then as I conceive to do this is to lay before His Majesty the state of the case let us shew him how unable these Men are to serve him and how destructive to his Interest it is to follow their Advices and that he can be Safe and Great only by closing with his Parliament Would His Majesty be Safe alas what can his Creatures do just nothing they have no Power nor have they Will further than it serves for their own advantage But His Majesty is safe in his Parliament for it is the Interest of every Man in England to preserve and defend His Majesties governing by his Parliament Does he want Money to make him easie I pray what can he expect from the Catterpillers his Favourites their care is not how to serve him but to make their own Fortunes But from his Parliament he need not want very plentiful supplies to preserve the Honour of himself and the Kingdom Would he maintain his Dominions and Rights what can his Creatures do but when he closes with his Parliament he can neither want the Heads Hearts and Purses of his People to serve him so that whatever His Majesty would have it is only to be had by his Parliament For his Favourites cannot in the least contribute to make him Safe or Honourable or whatever else a King may want or desire All the Use a King can have from His Favourites is to have Stories and Lies to set him at variance with his People I hope when the Case is laid before His Majesty that he will close with us but if his Judgment is so prepossessed that it will not convince him of his Interest then we must conclude that it is with him as it was with Rehoboam who forsook the Council of the Old Men and inclined to that of the Young Men who councelled him to tell the People that his little Finger should be thicker than his Fathers Loynes And I pray what was the effect of that huffing Speech Why Ten Tribes were taken from him and it was not his Young Men that could recover them for him again neither was it without a Parliament that his Majesty was brought into England I hope his Majesty has not forgot it Let them advise what they will but I am confident they will think on 't a good while before they will adventure to put those Arbitrary Councils into Execution it will prove a hot matter to handle For though I hope no Man here will lift up his hand against His Majesty yet we may oppose any Man that does seek to invade our Properties And for my own part I will Pistol any Subject be he the greatest in England that shall in deavour to deprive me of my just Right Let us do what we can to effect an Union between the King and his People and leave that Success to God Almighty and his will be done A SPEECH On the Occasion of some JUSTICES Being put out of COMMISSION I Was in hopes that some Gentlemen would have prevented me in what I have to say for I fear the House is under a great mistake as to those Gentlemen of the House who are put out of the Commission of the Peace For it is to speak to that chiefly I stand up I acknowledge that it is an unanswerable thing that other Gentlemen were put out but no doubt it was upon very weighty and warrantable grounds that the Gentlemen of the House were put out For without doubt His Majesty or who he be that advised him to it did think it reasonable and were sensible that we who attend the service of our Country in this place do spend our Time and Money and neglect our own Affairs and therefore when we come home its fit that we have a time of rest and that we be eased both in our Bodies and Purses and be at leasure to settle our own concerns and not that we should be tossed from one chargeable and troublesome Imployment to another So that we have great cause to be thankful for the care that is taken of us Besides there is a further regard had to us for this is a
have it or not for a power in a King to Oppress and Burden his Subjects is inconsistent with the true Nature and design of Prerogative which was given to the Crown to relieve the Subject where the Law was too keen the better to further the publick Peace If the Prerogative be set above the Law it will quickly devour it for there is no difference betwixt making the King Absolute and destroying the Law because then all our Laws and Statutes are only Rules during his pleasure and a King that desires to sit at ease will not find his reckoning in it for if the Prerogative be once raised above the Law he thereby quits his best Title to the Crown and leaves the decision of the Right to the Sword and then he that has the sharpest will prove by that Rule to have the best Right but he that has a better Title will not claim under the Sword What has been said may in a great measure expose that vile and ridiculous Doctrine of Passive Obedience and Nonresistance which the Example of David sufficiently refutes and no man can pretend to Justify but either because he wants common Sence or in hopes of Preferment will if he can outface all manner of Truth However it was so useful to carry on the Design of Popery and Slavery that all possible ways was tryed to propagate this Doctrine and all Discouragements put upon those who did any thing to lessen the credit of it Just like the policy of the Romish Priests who forbid the Laity the use of any Books that may give them better Light and it is very strange that this Doctrine did not obtain more Credit considering how it was supported both by the Palpit and Press But God be praised that the Nation preserved its understanding and that the time is come that the Truth may be spoke in publick And I would have stopt but that I conceive it to be convenient to say something to let you see how senceless and impudent they are who profess themselves to be Protestants and yet are dissatisfyed that the late K. James is set aside and King William placed upon the Throne And first I do say that I thought it my Duty to draw my Sword in the Defence of my Religion and Government and I did and do think it as lawful to reject the late K. James as to place K. William on the Throne And I hope to satisfy all that hear me that the present Settlement is Justifyed both by the Laws of God of Nature and the ancient Government If what is done were rather expedient then lawful yet one would think that particular persons might acquiesce in what is done by the collective Wisdom of the Nation I mean the Lords and Commons and I shall ever believe that man to be mistaken who thinks himself either more wise or Just than the two Houses of Parliament Till the Prince of Orange Landed I am perswaded that most were of Opinion that we had but this Choice left us either to Turn or Burn and I am inclinable to think that all such as are for recalling K. James are prepared to turn and I wish every man that has a mind to have him here again were with him I know not whether it would be best for them but I am sure it would be so for every man that wishes well to England But to speak more home and directly I take it That there was a People before there was a King That they set the King over them for their good That the Obligation of Protection and Subjection is Mutual That a King by reason of his Male Administration may forfeit his Crown That the End of Government is Peace and Order That it is more for Gods glory for every man to sit safely under his Vine than to be oppressed That no Government can be destitute of a Power to relieve it self That the whole is better than a part That this late Settlement is no new thing the like having been done in all Kingdoms and Governments To suppose there was a King before there was a People is as ridiculous as to suppose a man to be born before he is begot or that a man can live without Food or run before he can go and it will follow that a King may be a King of nothing for what is a King if he have no people Multitudes of other Absurdities will follow so that I need not say any thing more to it And I think the next thing is as plain that it is for their good when a People sets a King over them For to what other intent can it be done all things are done for some end and a People cannot be supposed to be void of the Principle of self preservation since that is inherent in Brutes and Plants and nothing that either breaths or grows but endeavours to preserve it self and can it then be imagined that a People would choose a King for their hurt rather than for their good Indeed sometimes in Judgment to a People God has blinded their Eyes in their choice they have made but their Intention was otherwise And I take it to be as clear that the Obligation of Protection and Subjection is Mutual for the very Nature of all Agreements proves it for in any thing of that nature if one side be bound and the other at Liberty it demonstrates the folly or Rashness of the one Party and cunning or good Fortune of the other and cannot so properly be called a Bargain as a Submission Subjection is really an Effect of Protection and arises from it otherwise Parents would have it in their choice to provide for or neglect their Children and tho' their Right is from Nature and for that Reason more Arbitrary than when it proceeds from compact yet no man will deny but that Parents are bound to Educate and provide all other Necessaries for their Children as far as their Substance will enable them and that nothing can discharge them of this Obligation but the Notorious Disobedience and wickedness of their Children The Nature of our Allegiance proves that the Obligation is mutual because the King takes the Coronation Oath before the Subjects swear to him which shews that our Allegiance is Conditional and such it is in all regular Governments for what can induce one man to obey another but that he ingages to protect him for if I am bound to obey where I have not an Assurance of Protection then if a Tyger or other Monster could get into the Throne I should then be under the same Obligation of Obedience but the reason of this is so obvious to every one of common Sence that I will say no more to it I think it will not be disputed that the End of Government is Peace and Order if not for these it must be for Confusion because there is no Medium between Peace and Confusion now God could not intend the latter because he has declared himself to
the King strove to please the People and they were willing to gratifie him by conniving at his Faults But besides all this the Law of Nature is to be considered and this Law cannot be extinguished by any other Laws whatsoever And this I never heard any man deny The Law of Nature commands Self-preservation and then I would ask whether I am to obey him that will destroy me If we shall have a Prince that plainly declares either by his Words or Actions that he will change our Government and Religion or that he will give us up to a Foreigner or else that he will govern by a standing Army and take away our Properties must I obey him must I not endeavour to rescue my Self and Country from Ruine for in the Saxons time Treason did not relate to any thing but the Government and the general Concern of the Nation and not to the single Person of the King and now though it be Treason to kill the King yet it is only in order to the Publick Good and therefore with the Saxons all Indictments against Legience concluded Feloniae Proditoriae but against the Person of the King only Feloniae But in our days we find things are crept in that is difficult to tell how or when they came in And you shall find in all our ancient Laws that whatever was decreed or enacted was for the Common Good and the King was not concerned otherwise than so far as related to the Common-wealth though I know in our days another Opinion is asserted which I am sure cannot be maintained That all things must give place to the King 's particular Interest For my own part I will obey the King but I think my Obedience is obliged no further than what he commands is for the Common Good Our Government ever since the Conquest has proceeded upon the Saxon Principles and they were grounded upon Self-preservation which I do not find to be repeated by any Act of Parliament for all our Lawyers do agree That it is Treason to subvert the Government and if so without doubt our Allegiance the Laws of God and of Nature command us to defend them I will detain you no longer but only to consider this one thing Whenever we have a Popish King we must expect an alteration at least in our Religion for though he take all the Oaths and Declarations that can be devised yet it ever stands in the way to oppose the Interest of Rome they must all give place and it is meritorious to break those Engagements for that purpose or at worst hand be certainly pardoned if he presume to do it without a Dispensation and it is no more in his power to preserve our Religion than it is for him to work an Impossibility And therefore whether it is better to oppose a Popish Successor seeing we have the practice of our Forefathers to justifie us in it and besides he cannot if he would defend us or else to suffer him to rest in the Throne to destroy all we have and bring in a Religion that will damn Millions of Souls from Generation to Generation And if we may not defend our Religion then we must absolutely depend upon Providence in every thing and not put out our Hand to help our selves up when we are fallen into a Ditch This is the Case and here is an end of all Human Policy but without doubt it is our Duty to do our Endeavours and leave the Success to God Almighty and his Will be done THE CASE OF WILLIAM EARL Of Devonshire ON Sunday the 24th of April 1687. the said Earl meeting on Collonel Culpepper in the Drawing Room in White-hall who had formerly affronted the said Earl in the said King's Palace for which he had not received any satisfaction he spake to the said Collonel to go with him into the next Room who went with him accordingly and when they were there the said Earl required of him to go down Stairs that he might have Satisfaction for the Affront done him as aforesaid which the Collonel refusing to do the said Earl struck him with his Stick as is suppos'd This being made known to the King the said Earl was required by the-Lord Chief Justice Wright by Warrant to appear before him with Sureties accordingly April 27. he did appear and gave Bail in 30000 l. to appear the next day at the King's Bench himself in 10000 l. and his four Suretles in 5000 l. a piece who were the Duke of Somerset Lord Clifford the Earl of Burlington's Son Lord De-la-mere and Tho. Wharton Esq eldest Son to Lord Wharton The Earl appeared accordingly next morning and then the Court told him that his Appearance was recorded and so he had Leave to de part for that time but upon the sixth of May he appear'd there again and being then requir'd to plead to an Information of Misdemeanour for striking the said Collonel in the King's Palace he insisted upon his Priviledge That as he was a Peer of England he could not be tryed for any Misdemeanour during the Priviledge of Parliament and it being then within time of Priviledge he refused to plead the Court took time to consider of it till Monday which was the last day of the Term and the Earl then appeared and delivered in his former Plea in Parchment the Judgment given by the House of Lords in the Case of the Earl of Arundale 3 Car. was urged on the behalf of the Earl viz. That no Lord of Parliament the Parliament then sitting or within the usual times of priviledge of Parliament is to be imprison'd or restrain'd without sentence or order of the House unless it be for Treason or Felony or for refusing to give Surety for the Peace And also that the like Priviledge was about two years before allow'd in the Case of my Lord Lovelace The Court over-rul'd the Earl's Plea and requir'd him to plead to the Information the first day of the next Term and to be a Plea as of this Term and so he had Leave to depart but his Sureties were not called for to see if they would continue as his Bail The next Term he appeared and pleaded guilty to the Information and so the last day of the Term the Court did award That he should pay a Fine of 30000 l. be committed to the King's Bench till it be paid and to find Sureties for the Peace for a year To all which Proceeding and Judgment three notorious Errors may be assign'd I. The over-ruling of the Earl's plea of Priviledge II. The Excessiveness of the Fine III. The Commitment till it be paid 1. The over-ruling the Earl's plea of Priviledge is a thing of that vast consequence that it requires a great deal of time to comprehend it aright and is of so great an extent that more may be said of it than any one man can say The Judgment seems to be very unnatural because an inferiour Court has taken upon it to reverse a Judgment