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-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
any person or persons or body-politick for any Manors Lands Tenements Hereditaments or things above-specified contrary to the words sentences and meaning of this Act shall incur the danger of the Act of Praemunire ib. § 41. What cou'd the wit of man contrive or devise more firm in Law or more satisfactory to all parties concern'd in Church or Abbey-Lands than these and several other paragraphs provided in the same Act of Parliament Why then are people by groundless and imaginary fears discompos'd or frightn'd out of their wits and made tools to drive on the Designs of some ill men against the Monarchy and the Church who will have nothing sufficient to secure them in the Religion they have not but what will unavoidably shake the very foundation of the Government 'T is true our State-Mountebanks in their Address presented in the Name of the House of Commons are so dutiful to their Sovereign as humbly to threaten this may possibly happen if the Duke succeeds We further humbly beseech Your Majesty say they in Your great Wisdom to consider whether in case the Imperial Crown of this Protestant Kingdom should descend to the Duke of York the opposition which may possibly be made to his possessing it may not only endanger the farther descent in the Royal Line but even Monarchy it self 21 Dec. 1680. But that season I hope is over and the Nation now thorowly sensible of the fatal consequences of such resolutions and can never forget the unparallell'd Tyranny of the Rump nor the doleful Tragedies that ensu'd the Quarrel between York and Lancaster which made England a Field of Blood But what has this great Prince once the peoples darling done to deserve so severe a treatment or be thought so dangerous a person to the Publick Has he defrauded any of an Ox or an Ass or was he ever found worse than his word or unjust in his dealings If he has chang'd his opinion which yet is improbable about the modes and circumstances of Religion 't is plain he has not chang'd his moral Principles nor his natural affection to his Countrey I need not instance how often he expos'd his Person to danger like a common Sea-man to fight our Battles nor how zealously he always studied the true Interest of the English Nation in opposition to French Designs a truth too well known even to his most inveterate Enemies but ill rewarded with ingratitude 'T is prodigious what tricks and arts have been us'd of late to incense the unthinking multitude against His Highness and set them a-madding with the apprehension of Stakes and Faggots and all the Chymoera's of a crack-brain'd fancy when 't is palpably evident it is not in the power of any Prince tho' the greatest Bigot of Papists to force this Nation in point of Conscience or alter the establish'd Religion since the Laws de Haeretico 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.
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