be any distrusting of providence nor does it appear that the means in question are unlawful any further than supposing them so makes them so Obs Now you act the Whig to the life for demonstrate a thing never so plainly they 're so obstinate you shall ne'r convince them Herac. They 're very refractory fellows I must confess But have you not something somewhere concerning the Bill of Exclusion's reaching the King Obs Oh yes 't is N. 131. If the Exclusion should pass it would manifestly shew that the Government were outwitted for it would reach the King as well as the Duke Herac. Well I see the King and the Government are still convertible terms with you signifiying one and the same thing But methinks the King is in a fine case betwixt you and the Whigs for that may stand well enough for the House of Commons For they cry the King's person c. cannot be safe without the Exclusion and you that he cannot be safe with it But why do not you prove your assertion as they have pretended to do theirs Obs Why though I do it not in this very place yet look but in the page before and I have done it 'T is but drawing of one Stone out of the building many times that brings the whole fabrick upon your head Just so remove but the Duke and the King cannot stand Herac. But there 's an old rule That similitudes illustrate but do not prove And why should not the King stand though the House fall But now for my part I think the Whigs speak reason for seeing the King is reputed an Heretick by the Catholicks and when he is removed they have hopes of a Popish Successor He is apparently in double danger both as he 's taken for an Heretick and so it may be no sin to murther him and also because in their opinion he keeps a better man from the Crown and one that has more right to it And besides the Whigs still affirm and you dare not deny it that for these reasons there were several that actually undertook the Job and I know not that their designs or principles are yet changed But I care not for medling with these Edge-tools let 's pass to the power and priviledges of Parliament t is safe enough to speak freely there for mortui non mordent Obs As for the power of Parliaments The House of Commons are as much subjects to the King joyntly at severally N. 131. They are made choice of by subjects to represent as subjects Their Commission is Temporary and limited to the Ends for which they were call'd and chosen And those Ends and Powers must be circumscribed by the Qualifications and Capacities of those that chose them for the case is the same as betwixt a Trustee and his Principal N. 135. Herac. The summ of what you say is this That the House of Commons have no more power than those that chose them Now I am not of your mind Nor is there any correspondence between Free-holders and a House of Commons and a Principal and his Trustee For a Principal can both pitch upon the person and limit the Power of his Trustee but so cannot the Free-holders of their Representatives in Parliament For though they elect the Persons yet the Power is from the Law and can neither be enlarged nor abridged by the Electors You know no subject has power over the Life or Estate of his fellow-subject And yet when twelve are elected or nominated by the Sheriff they have a greater power than the King himself in depriving a man of either which they have not from their Elector but from the Law Obs No but they have their power from the King whose Minister the Sheriff is Herac. If we should grant that it would come still to the same thing for the King must owe it to the Law that he can give such a power For if he had it absolutely of himself he might himself adjudge any man to death that he thinks deserves it which you know he cannot do Obs Well but what 's this to the business Herac. 'T is only the very same case For as the King gives the Sheriff power to nominate the Jurors who after their Impannelling have a power which neither he that nominated them gave them nor themselves have singly and apart so by the several Writs directed to be proclaim'd by the Sheriffs Bailiffs c. the King gives the people a power to Elect Members for Parliament who being return'd and assembl'd in the House are by the Law and Constitution of the Government invested in a power which neither their Electors have nor themselves had before they were so assembled They have not such a power indeed as Jurors have but they have a power that is proper and peculiar to them AS they are one of the three Estates in Parliament Obs Well but with all this what kind of power is this these Commons have seeing the King is the SOLE Soveraign and they are only to do their part toward the furnishing of Materials for New Laws where they are Defective N. 135. Herac. The King indeed is a Monarch and that is as much as sole Governour not absolutely but in a limited sence and suo modo He 's sole Governour as to the Administration not sole in Legislation For I do not think the Lords and Commons to be only Labourers to serve up Materials to the King to build new Laws withal but to pursue your Metaphor they are Builders as well as He. Obs How can that be for let them Vote and Pass their Hearts out all signifies nothing without Le Roy le veult or Soit fait come il est desire Herac. 'T is true the King has a Negative Voice but consider it well and 't is no more than what either House have For let the Commons pass a Bill and the Lords can reject it and on the contrary though the rejecting House know that the King so much favour the Bill that he would most certainly pass it into an Act if they would but give their consent to it So that it is evident the consent of either House is as necessary in order to the making of an Act as the King 's is And indeed the usual preface to all Acts evidences this plainly viz. Be it Enacted by the King 's most Excellent Majesty by and with the advice and CONSENT of the Lords Spiritual and Temporal and of the Commons in Parliament Assembled and by the AVTHORITY of the same Here you have the Consent and Authority of the two Houses linked with the King 's Seeing therefore part of the power of Making Laws is in the Commons Assembled in Parliament and they have no such power out of Parliament but can then only Obey them 't is plain they are not in all respects as much subjects joyntly as severally unless to make Laws and obey them be the same thing Nor do I know to what purpose you should so much
insist upon this point unless you intend it as a bait to catch some fool with that would be nibbling at the disparaging of the King's Prerogative as you speak in another case of the Plot N. 130. Obs Why that 's the bottom on 't and I hope I shall catch some or other Herac. Well enough for the Power let 's pass to the priviledges of Parliament What do you think of them Obs As to the Power Priviledges and freedom of English Parliaments tell me what it is first and what they are and I 'll give you my Answer The four Inns of Court them selves are not able to determine what they are N. 132. I had rather forty times the King should lay me by the heels without shewing cause for it than a House of Commons and be a Slave to an Imperial Prerogative than to a popular priviledge N. 135. Herac. You were once indeed pretty near being laid by the heels but all the cunning's in catching But what signifies it what you had rather I think there is no necessity to be made slaves either to prerogative or priviledge which are both useful and wholsome enough when they do not exceed their bounds Now seeing neither you nor your four Inns of Court can tell what these priviledges are or upon what they are bottom'd I 'll tell you my opinion I think they stand much upon the same terms with Prerogative part of which is confirmed by express Law and part has no other foundation but Prescription the Kings and Queens of this Realm having exercised such a power in such and such cases time out of mind and this part of the Prerogative I look to be as firm as the other For prescription or Common usage time out of mind is Common Law in all cases Nor is there any reason why the Sovereign should not enjoy the benefit of that Maxime as well as the meanest subject nor why the House of Commons should not enjoy it as well as either 'T is true both Prerogative and Priviledge may be strained too far or something may be call'd so that is not so but shall we therefore deny there are any such things or turn them into ridicule It signifies little what you shall deny to be priviledge or I to be prerogative for I doubt the King will think himself a more competent Judge of the one and the Parliament of the other Obs Let them think what they please but it does not stand with the Constitution of this Government to suppose them to be competent Judges of their own priviledges For it is an abandoning of the very essentials of Church and State to their Mercy What if they should seise upon the Militia the King ' s Magazins and Shipping Levy Arms coin Money c. and tell ye all this is done by priviledges of Parliament It would be no more than what we have seen and suffer'd already under the same pretence Though I do not say that since the damn'd Apostasie of Fourty One and the period of that accursed Train of Rebellions we have labour'd under Many Abuses of that kind N. 135. Herac. Well this Fourty one is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 excellent at a dead lift 'T is a Fac totum the Philosophers stone a Panaceia 't is good for every thing Now do not poor I Mr. Whig know i' the world what to say But however I am resolv'd to stand to my tackle and see what can be said and will maintain that though the Parliament be held to be the sole competent Judges of their own priviledges this is neither against the constitution of the Government nor do Church and State lye at their mercy for all the Apostasie of Fourty One You will grant me that 't is necessary to all Secular Government that there should be a supreme Power from whence there should be no Appeal and that in Absolute Monarchies this is the Sovereign only but in Limited the highest or supreme Court Obs What I warrant you 'l be for Mr. Prynn's Sovereign Power of Parliaments Herac. No hold there I am not for a Parliament's usurping a Power over the King and invading his Prerogative I only affirm this that beyond the High Court of Parliament there lies no Appeal Obs Well but Appeals are only made to the House of Lords which is a Court of Record and of Judicature but what 's this to the House of Commons Herac. 'T is as much for my purpose to the one as to the other For though they be two Houses they are but one Parliament and have community of priviledges And originally they were but one House This Sir Edw. Cook while he was Speaker of the House of Commons in 35 Eliz. has made out for me At first we were all one House and sate together but the Commons sitting in presence of the King and amongst the Nobles disliked it and found fault that they had not free liberty to speak And upon this reason that they might speak more freely being out of the Royal sight of the King and not amongst the great Lords so far their Betters the House was divided and came to sit asunder A bold and worthy Knight at the time when this was sought the King desiring a reason of this their request and why they would remove themselves from their Betters answered shortly That his Majesty and the Nobles being every one a great person represented but themselves but the Commons though they were but inferiour men yet every one of them represented a thousand of men And this Answer was well allowed of But now though we be divided in Seat be we therefore divided Houses No for if any writ of Error be brought as you shall see a notable Case in 22 E. 3. this Writ must be returned in Parliament that is to the whole House and chiefly to the Upper House for We are but a Limb of the House Never any Man saw a writ returnable in the Lower House Yet I speak not this to take any priviledge from this House for it is certain whatsoever we do sitting the Parliament it is an Act of the whole Court for the Lords without the Commons and the Commons without the Lords can do nothing Vid. Journ of Parl. of Q. Eliz. page 515 516. You see here what unity and consent there is between the two Houses so that one can have no priviledge in which the other is not interested Judgments indeed upon Writs of Errour are given by the Lords but being the Writs are returned in Parliament the sentence is constructively the Commons also unless one would be so absurd as to call the House of Lords the Parliament as some do the House of Commons But to make this plainer yet You know the Upper House has no Jurisdiction over the Lower so as to take cognizance of any thing transacted therein otherwise than by desiring Conference and that the Lower House has as well over the Upper but in both cases it is improperly called Jurisdiction for at
the Conference he that can shew the plainest Precedents or the most convincing Arguments carries the thing in dispute or if either side be obstinate 't is just so good and so good the other may take its course protest against the proceeding and then sit down and be quiet Obs Well but though the Upper House are no Judges of the priviledges of the Lower nor on the contrary why may not the Judges of the Land determine of these Priviledges Herac. As for that the aforesaid Learned Lawyer brings you a precedent In Parl. 31 H. 6. Thorpe was Speaker and the Parl. being summoned to be in June it was prorogued until September in the mean time Thorpe was taken in Execution by the Duke of York he notwithstanding this thought to have had the priviledge of the Parliament At the next sessions the matter being greatly considered whether he could have a priviledge or no a Conference was had in the Cause with the Judges The Judges being required in humble sort refused except it were so that the House did command them for in the House of Parliament sayes he the Chief Judges and their Judgments are Controulable by the Court but if the House did Command them they would be Willing to inform them what in their opinions they knew and thought Ibid. Here the Judges were so far from determining what were the priviledges of Parliament that without a Command they would not so much as their opinion Obs Yes yes and you have Serjeant Topham's Case for another Precedent Herac. This is but another bait to catch some fool with I only show you the opinion of former times Obs Come come I have been but dodging with you all this time the King is the Judge of their priviledges Herac. The King's Prerogative indeed is hard enough for all their priviledges put together And if that be well husbanded and maintain'd I defie all the priviledges of Lords or Commons to do Church or State any harm though themselves be still left to be the sole Judges what they are And this will bring us to your Non-â—lich Argument of Fourty One That the Long Parliament should do all those feats you mention as Levying Arms coining of mony c. under the notion of priviledge I cannot imagine I much rather believe they did them for maintenance of their priviledges which they pretended the King went about to invade Obs Why 't is all one Herac. No but 't is not unless ones Life and the Means to guard it be the same thing I say again they pretended the King went about to invade their priviledges and therefore they raised an Army in the defence of them and coin'd money to pay the Army Obs Well and may not any Parliament pretend the same Invasion and make the like defence as well Herac No that they cannot and therefore for ever hereafter leave your bawling out of forty â—â—â— â—â—â— before God it is nothing to the purpose 〈◊〉 you know whose cause I am pleading and therefore I hope you 'l pardon this heat Obs Faith and you act their part to the life Herac. You know in fourty one c. the power of the Militia might seem somewhat a disputable point not that I question but that it truly belong'd to the King but he was not insâ—â—â—ed in it by any express Law that I know of though prescription in my opinion ought to have gone as far on the King's side as express Law But to take away any pretensions of the Parliament for the future you know that the Parliament Ann. 13. and 14. of this King chap. 3. has recogniz'd as it were or expresly acknowledg'd that the power of the Militia appertains to the Crown of this Kingdom so that for the future there cannot be the least pretence for any such claim in the Parliament unless the King will consent to the repealing of that Act which you may suppose if you will Obs Well but this is nothing to the purpose for if for all this the Parliament shall affirm that the Militia belongs to them and they be the sole Judges of their own priviledges the same things may be acted over again Herac. No they cannot for all that For not to mention the improbability nay moral impossibility of the Parliaments pretending to a power which so recent and express an Act has declar'd to be in the King yet though they should be so grossly unreasonable and bare-fac'dly factious the Kings prerogative is able to cope with them And this Prerogative Charles the First gave away when he assented to the Act of Perpetuity in passing of which if he shew'd little Policy they shew'd less gratitude in making so bad an use of so redundant a Grace But if the King will give away his Prerogative who can help it And if He will give the Parliament leave to sit as long as they please he gives away the only Antidote against their pretence of priviledge For though the King cannot determine of their priviledges so as to sentence this to be one and that not Yet he can do as much as this comes to he can prorogue or dissolve the Parliament whenever he sees reason for it and that puts an end both to them and their Priviledges And this is the incomparable Constitution of our Government If it were otherwise there lay a gap open either for arbitrary power on the King's side or for usurpation on the Parliament's For if the King might determine what were the Power and Priviledges of Parliament we might soon have a Parliament of Paris and if They might sit as long as they please they would even be the high and mighty States of Holland and the King but a Stadtholder or if you will a Staff-holder But 't is best as 't is and so long as the King shall be so wise as to keep what is his own and so gracious as to desire no more 't is impossible it should be otherwise on one side or t'other And therefore to make a Cuckow 's song of Fourty one may indeed betray something of your own nature but it signifies no more to the purpose you Chant it than baculus in angulo Obs Come Sir you are too sharp upon me But the King 's well holp up in the mean time If the Parliament will entrench on the Prerogative or will not do what He would have them He can only dissolve them and there 's all his mends What 's the King the better for being able to prevent their doing any mischief if he cannot get them to do what he sees necessary for the maintenance of the Government I am for Parliaments that are subjects as well together as asunder for a House of Commons that will do the bus'ness they were Call'd for and the bus'ness they were Sent for N. 135. Herac. Truly as to their doing what they are Sent for I believe the Whigs will not be much against it But then I doubt if they do no more the King would many
needless Obs This is damn'd close but however I could easily answer it if I durst own going to Prayers to the Queens Chapel and receiving the Body of Christ from my Confessor Herac. In the second place you are too Bare-fac'd in affirming That if the matter of a Law be Controvertible the Subject is not to dispute either the Authority of it or his Obedience Inf. Cl. Why Sir this is no more than we have been preaching these twenty years Herac. Pardon me Sir if I say you mistake For I never knew you affirm more than that a Law can make a thing that is indifferent in its own nature to become necessary as to practice But the Observator extends this to all things Controvertible which comprehends all the Articles of Faith owned by the Catholicks and rejected by the Church of England Worship of Images praying for the Dead c. In a word whatsoever is Controverted betwixt the Catholicks and Hereticks Obs Well but you know when I writ that I personated a Protestant and those have condemned such Tenets Herac. Ha ha he What are they therefore no longer Controvertible Why the Church has as well condemn'd the Protestant Tenets will the Protestants therefore under a Popish Government never controvert such Tenets more I wish you could persuade 'em to 't and then a Catholick Successor would make short work for as you say The King only is the Government Numb 131. You are likewise too open when you say That you can name at least a dozen Sets of Dissenters that are more Diabolical Hereticks than the Papists You know the most learned Doctors of the Reformed Religion have alwaies held the Pope to be Anti christ and the Church of Rome to be Idolatrous and the King-killing doctrine is avowed by none but our selves Obs Puh you would have me write to no purpose at all must not I train up my Charge to preferr Popery before Presbytery and how shall I do that if I do not give the Schismaticks a wipe now and then Herac. Well let that pass But when you come to speak against the Bill of Exclusion why took you no more pains to prove it unlawful Obs Why have I not done it sufficiently As to his Precedents I have told him N 131 That nothing is therefore well done because it has been done and it is to be suppos'd that none of his Precedents were justifiable Inf. Cl. Yes yes 't is best arguing ex concessis Obs And as to the point of Religion I do not read of any Bills of Exclusion among the Primitive Christians ibid. Herac. Admirable for it is to be supposed that the Emperours and Senate of Rome were Primitive Christians Obs And then I have prov'd it plainly unlawful by this That if any Parliament in Christendom shall preach any other Doctrine of Obedience to Magistrates than what our Saviour and his Apostles have taught us I am afraid that Parliament without repentance will go to the Devil ibid. Herac. I wish they send no body thither before them But where lies the Logick of this Argument Obs Why Sir you very well suppos'd for me before that the Emperour and Senate were primitive Christians and now give me leave to suppose for my self that first our Saviour and after him S. Peter were Emperours and the rest of the Apostles the Senate and we do not find that ever they attempted to exclude Tiberius or Nero or any other from the Throne because they were Heathens and those sure were as bad as Papists Herac. ' Pshaw but part of this Supposition is too gross For our Saviour sayes that his Kingdom was not of this world and that he came not to divide or dispose of Inheritances which implies rather than denies that such whose kingdom is of this world may dispose of Inheritances But as for S. Peter indeed if we may guess at his power and quality by the Pope's his Successour's he was Universal Monarch and if he had thought it lawful might not only have excluded an Heathen Successor but from his plenitude of power have deposed the present Heathen Possessor and given the Crown to a Christian Which because he did not do your Argument indeed is very cogent That no power on Earth can hinder any man from coming to the Crown in his course be he as bad as the Devil Obs Look you there now I see you conceive me Inf. Cl. Yes and as to the Apostles that made up the Senate you have their opinions plain in their writings Submit your selves to every ordinance of man whether it be to the King as supreme Obey them that have the rule over you Put them in mind to be subject to principalities and Powers to obey Magistrates And abundance of such like commands we have All which make it clear seeing the words are general that Emperour and Senate King and Parliament and all must obey submit and give way to the presumptive heir For seeing dispersed Jews and the meanest of the people are forewarned from rebelling against their lawful Soveraigns it follows a fortiori that the King and Parliament cannot exclude any man from the Succession Herac. Indeed Sir I think it is rather a debiliori and upon my soul if the Whigs argu'd at this rate we should call it perfect Cant and make sport enough with it But however such Arguing may do pretty well out of the pulpit for it looks like Atheism Schism and Irreligion to question or dispute any thing deliver'd there Well Mr. L. I see a word is enough to the wise you need but give the hint and your Charge have it presently Obs Yes yes my Observations are their Common places and I must leave them to improve them into Argument for I have no time for that nor does my talent much lye that way But to go on In the last place I prove the Bill of Exclusion unlawful because the King Lords and Commons can no more justifie an Unrighteous action than a private man ibid. Now Sir supposing the Bill unrighteous 't is plain they cannot pass it Herac. Well then your Argument lies thus If the passing the Bill of Exclusion be an unrighteous action the King Lords and Commons cannot pass it But such passing is an Unrighteous Action Therefore c. Obs Just so for look you get but the main point in question once granted and my life for it you win the cause Herac. Well these hypothetical syllogisms are almost as serviceable as the Doctrine of probable opinions the first to inform the reason the latter to guide the practice But what now if one should not grant you that the passing of such a Bill were an Vnrighteous action Obs If men will not believe the Apostles and primitive Christians I cannot help it But pray let 's hear what you can say in the case Herac. Faith I shall say little in the case seeing there 's more said already than I see well answer'd But this I will add You 'l grant me the
King can do no wrong Obs Yes that I will Herac. Then I say I canot see how his having the advice and consent of Lords and Commons should make him do wrong For to me it seems indifferent as to that whether the King do a thing from his own meer motion and science or by the advice of his Privy Council or of his Parliament Now Sir to do wrong or to do an unrighteous action as you term it are all one Obs Hang 't my mistake was to bring the King into the Argument for if I had only said Lords and Commons I had hit it But now I think on 't 't is not the Pope and Council but the Pope alone that is infallible and if I durst own my self a Papist this would help me to make it out Herac. It would so but the necessity of your dissembling that hinders you from making the best of your Argument However I am sure you are right in that which you instance in That it would be an unrighteous action for the King Lords and Commons to put a Man to death for refusing to swallow forty Thousand Black Bills For no Power in Heaven or Earth can oblige a man to that which is impossible But then what 's this to the Bill of Exclusion or where lies the parallel Obs Now I see you are dull Id possums quod jure possumus The first is naturally impossible and the latter morally The first cannot be done because it cannot and the latter because it ought not Herac. Here are two faults in Logick first transitus a genere ad genus and then petitio principii For you first pass from a moral to a natural action and then you are at your old way of supposing the thing in question But besides this is nothing to the purpose for the dispute was about what the King Lords and Commons could do and now you come to what a man can or can not do For I see nothing to the contrary but the King and Parliament may pass the Bill of Exclusion though a man cannot swallow 40000 black Bills Obs Come I warrant you would tye me up to the Pedantry of the Schools I hate insisting too long upon one thing for that does but confound a man I love a touch and away Herac. Yes Sir you are excellent at that And thus you prove notably That Parliaments are no essential part of the Government for if that were so in the Intervalls of Parliament there were no longer a Government N. 131 And I 'll give you such another The Common Council are no essential part of the Government of the City for if that were so in the Intervalls of Common Councils there would be no longer a Government Now Sir this Argument will not down with Citizens nor yours with any man else For hey'l be apt to distinguish between the Government and the administration of it Now the Government or more properly the Governours are the King and Parliament without whose joynt Authority no Law can be established But the putting these Laws in execution or administration of the Government that indeed is in the Kings hand or such as he will commit it to And till an Order of the King in Council shall be as valid as an Act of Parliament I doubt we shall not get it believed that the King alone is the Government But enough of this In the next place I do not well like your fastning the faults of the King's Ministers upon the King N. 130. Obs Why do you not know the mystery of that I have a double end in it First to get the Libellers punish'd and then to cast the odium of all Male-administration upon the King For you know well enough we care not what scandals and suspicious we draw upon the King so we can but preserve the Duke's esteem And hence I say that the pretended devolution of an ill thing done from the King to his Ministers is as ridiculous as to excuse a man that commits a Murder by crying he was set on ibid. Herac. So then you will have the King responsible both for his own faults and for theirs also that advised him to them This will do the King's business I 'll warrant him And yet it may be very serviceable Doctrine for a Successour as thus All the faults of his Ministers will lye upon him and seeing he cannot be called to account the greatest faults shall pass unpunisht and so no man will be afraid of serving his pleasure and then hey for arbitrary Government However since you are the Champion for the present Government it seeems but a quaint way of maintaining the King's reputation by devolving those faults upon Him that the Whigs are content to fasten upon his Ministers only but you have told me of the policy of it and I am satisfied Obs Well is there any thing else you can object against Herac. How do you make it out that Protestants may not as well exclude a Papist from the Crown as Papists a Protestant Obs Thus Either the Papists do Well in 't or Ill If the former they are not to be blam'd if the latter they are not to be imitated ibid And this Dilemma I defie any Whig of 'em all to Answer Herac. Soft â— little For I think it not hard to make out though the Papists are to be blam'd yet the Protestants may law fully do the same thing Obs Pray let 's hear you for methinks that sounds somewhat odd Herac. My enemy assaults me and endeavours to Murther me that 's ill done in him I kill him in my own defence that 's well or lawfully done by me Obs That 's true but how can you apply this to the Case in question Herac. Thus The Papists are the Assailants who if they can help it will neither let a Protestant King enjoy his Crown nor Protestant Subjects their Estates or Lives Such King and Subjects may therefore lawfully unite and combine for their mutual defence and preservation and make sure of him or them whose prevailing is sure to be their overthrow For if it be lawful for the Subjects to defend the King and Government establish'd and for the King to secure the Estates and Lives of his Subjects I do not see how it should be unlawful to disable or prevent any man from destroying them Inf. Cl. But we must not do ill that good may come of it Herac. Nor we must not do well that ill may come of it if indeed it be doing well to let one cut my King 's mine own and my Neighbours throat when I can hinder it Inf. Cl. Well but we should trust Providence Herac. We should trust providence indeed with a witness if we should believe it would protect us whether we would or no. 'T is as bad to tempt providence as to distrust it For my part I think Miracles are too rare now adayes to be depended on and therefore making use of lawful means I do not take to