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Of Parliament - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 2 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 2.
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Henry Vane, The Tryal of Sir Henry Vane
Sir Henry Vane, 1613-1662
Sir Henry Vane, Kt.
The Kings Bench,Westminster, June the 2d. and 6th. 1662.
With what he intended to have Spoken the Day of his Sentence, (June 11.) for Arrest of Judgment, (had he not been interrupted and over-ruled by the Court) and his Bill of Exceptions.
With other Occasional Speeches,&c.
Also his Speech and Prayer,&c. on the Scaffold.
Printed in the Year, 1662.
With the exception of the regicides, Sir Henry Vane was one of only two parliamentarians specifically excluded by the Convention Parliament from pardon after the Restoration.
Vane began his political career when he served briefly as governor of the Massachusetts Bay colony. Back in England he became joint treasurer of the navy and was actually employed in the expenditure of ship money. He sat for Hull in the Commons of the Short and Long Parliaments where he joined those working to abolish episcopacy. He was a vigorous, lifelong proponent of religious toleration. It was he who discovered the council notes of his father that sealed the fate of the Earl of Strafford.
During the civil war, Vane was one of the leaders of Parliament and a close ally of Oliver Cromwell. He believed the people were the source of all just power, but after the king’s surrender he hoped for some accommodation with him. Vane was so offended by Pride’s Purge that he abandoned the Commons until after Charles’s trial and execution. Nor would he sit on the new Council of State until the stipulation that he take an oath approving the king’s execution and the abolition of monarchy was dropped. He was very active in Commonwealth affairs but left government again in 1653 upon Cromwell’s eviction of the Rump. He regarded this as a betrayal of the cause. In 1656 he made his feelings public in a tract, “Healing Question propounded and resolved,” which blamed the imposition of the protectorate for the divisions that had arisen among the supporters of the Rump. He openly called for a convention to devise a new constitution, one that would provide for liberty and the common good of all adherents of the old cause. Not surprisingly, Vane was summoned before the Council. He was ordered to give a bond that he would do nothing against the government. His refusal earned him several months of imprisonment.
In 1659 Vane returned to government to sit in Richard Cromwell’s parliament and in the restored Long Parliament that followed, apparently hoping to curb the power of protectors on the one hand, and to prevent the return of monarchy on the other. But his reputation was destroyed when he continued at his post as commissioner of the admiralty after 13 October when General John Lambert turned out the Long Parliament and then attempted to reconcile the army and the Parliament. Once the Long Parliament was restored by Monck, its members expelled Vane to general rejoicing. After the Restoration the Convention Parliament excluded him from pardon as a “person of mischievous activity.” Most of Vane’s former colleagues chose to flee or made their peace with the Crown. Vane remained to face a charge of high treason, prepared to die an unrepentant martyr to the “good old cause.”
To his surprise Vane was charged with crimes against Charles II, not Charles I. He was no lawyer but defended himself ably, despite the prohibition against his consulting with anyone or summoning any witnesses—typical liabilities under which those charged with treason labored. Even then he might have been pardoned, but his tenacious adherence to the sovereignty of people and Parliament and his plea that, along with the great majority of Englishmen, he had merely obeyed the “de facto” government, precluded any hope of clemency. His execution was set for the anniversary of the battle of Naseby. Vane’s speech on the scaffold was purposely drowned out by the beat of drums. Fortunately the account of his trial and his scaffold speech were published, albeit anonymously. His scaffold speech alone appeared in two other editions. Vane’s comportment at the end and adherence to his principles earned him much respect. Pepys reckoned the king had lost more than he had gained by the execution.
The Tryal of Sir Henry Vane Knight, at the Kings Bench, Westminster, June the 2d. and 6th. 1662.
Thou shalt not be detained with any flourishing Preface. ’Tis true; whether we consider the Person or Cause, so much might pertinently be said, as (were the Pen of some ready Writer imployed therein) a large Preamble might seem to need but a very short Apology, if any at all. Yet, by that time we have well weighed what this Sufferer hath said for himself, and left behind him in writing, it will appear, that there needed not any tongue of the Learned, to form up an Introduction thereunto, but meerly the hand of a faithful Transcriber of his own Observations, in defence of himself and his Cause. Rest assured of this, thou hast them here fully and clearly represented.
The necessity of this course for thy information, as to the truth of his Case, be pleased to consider on these following accounts. He was much overruled, diverted, interrupted, and cut short in his Plea (as to a free and full delivery of his mind upon the whole matter at the Bar) by the Judges of the King’s-Bench, and by the King’s Counsel. He was also denied the benefit of any Counsel to speak on his behalf.1
And what he did speak at the Bar and on the Scaffold, was so disgustful to some, that the Books of those that took Notes of what passed all along in both places, were carefully called in and suppressed. It is therefore altogether unpossible to give thee a full Narrative of all he said, or was said to him, either in Westminster-Hall, or on Tower-Hill.
The Defendant foreseeing this, did most carefully set down in writing, the substance of what he intended to enlarge upon, the three dayes of his appearance at the King’s-Bench Bar, and the day of his Execution. Monday June 2. 1662, was the day of his Arraignment. Friday June 6. was the day of his Trial, and the Jurors’ Verdict. Wednesday June 11. was the day of his Sentence. Saturday June 14. was the day of his Execution on Tower-Hill, where limitations were put upon him, and the interruptions of him by many hard speeches and disturbing carriages of some that compassed him about upon the Scaffold, as also by the sounding of Trumpets in his face to prevent his being heard, had many eye and ear witnesses.
Upon these considerations, I doubt not, it will appear indispensably necessary, to have given this faithful Transcript of such Papers of his, as do contain the most substantial and pleadable grounds of his publick actings, any time this twenty years and more, as the only means left of giving any tolerable account of the whole matter, to thy satisfaction. Yet such Information as could be picked up from those that did preserve any Notes, taken in Court or at the Scaffold, are here also recorded for thy use, and that, faithfully, word for word.
Chancellor Fortescue2doth right worthily commend the Laws of England, as the best now extant and in force, in any Nation of the world, affording (if duely administered) just outward liberty to the People, and securing the meanest from any oppressive and injurious practices of Superiours against them. They give also that just Prerogative to Princes, that is convenient or truly useful and advantagious for them to have; that is to say, such as doth not enterfere with the People’s just Rights, the intire and most wary preservation of which, as it is the Covenant-duty of the Prince, so is it his best security and greatest honour. ’Tis safer and better for him to be loved and rightly feared by free Subjects, than to be feared and hated by injured slaves.
The main fundamental Liberties of the free People of England, are summed up and comprehended in the 29th Chapter of Magna Charta. These words;
No freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free-customs, or be outlawed or exiled, or any otherwise destroyed. Nor will we pass upon him, or condemn him, but by lawful Judgement of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man, either Justice or Right.
Lord Chief Justice Cook observes here nine famous branches of the Law of England, couched in this short Chapter, and discourses upon them to good purpose.3He saith also, that from this Chapter, as out of a root, many fruitful branches of the Law of England have sprung.
As for the very leading injury to other wrongings of the Subject, (to wit, the restraint or imprisonment of his person) so curious and tender is the Law in this point, that (sayes Cook) no man is to be attached, arrested, taken, or restrained of his liberty, by petition or suggestion to the King or to his Council, unless it be by Indictment or Presentment of good and lawful men (of the neighbourhood) where such deeds be done.
This great Charter of England’s Liberties, made 9 Hen. 3. and set in the front of all succeeding Statute-Laws or Acts of Parliament, (as the Standard, Touch-stone or Jury for them to be tried by) hath been ratified by about two and thirty Parliaments, and the Petition of Right, 3. Caroli.
The two most famous Ratifications hereof, entituled, Confirmationes Chartarum, & Articuli super Chartas, were made 25 and 28 of Edw. I.
All this stir about the great Charter, some conceive very needless, seeing that therein are contained those fundamental Laws or Liberties of the Nation, which are so undeniably consonant to the Law of Nature, or Light of Reason, that Parliaments themselves ought not to abrogate, but preserve them. Even Parliaments may seem to be bounded in their Legislative Power and Jurisdiction, by divine Equity and Reason, which is an eternal and therefore unalterable Law. Hence is it, that an Act of Parliament that is evidently against common Right or Reason, is null andvoid in itself, without more ado. Suppose a Parliament by their Act should constitute a man Judge in his own cause, give him a meer Arbitrary power; such Act would be in itself void.
This is declared to be the ground of that exemplary Justice done upon Empson and Dudley,4 (as acting contrary to the People’s Liberties in Magna Charta) whose Case is very memorable in this point. For, though they gratified Henry 7th in what they did, and had an Act of Parliament for their Warrant, made the 11th of his Reign, yet met they with their due reward from the hands of Justice, that Act being against Equity and common Reason, and so, no justifiable ground or apology for those infinit Abuses and Oppressions of the People, they were found guilty of.
The Statute, under colour whereof they acted, ran to this effect. Be it enacted, that the Justices of the Assizes, and Justices of the Peace upon Information for the King, before them to be made, have full power and authority by their discretion, to hear and determine all offences and contempts. Having this ground, they proceeded against the People, upon meer Information, in the execution of Penal Laws, without any Indictment or Presentment by good and lawful men, but only by their own Promoters or Informers, contrary to the 29th of Magna Charta, which requires, That no free-man be proceeded against, but by lawful Judgement of his Peers, or by the Law of the Land.
Secondly, This Act allowed them to hear and determine arbitrarily, by their own discretion, which is not according to the Law and Custom of England. And Cook sayes, ’Tis the worst (and most aggravated) oppression of all, that is done under the colour of Law, or disguise of Justice.
Such a Statute or Act of Parliament, is, not only against the light of Reason, but against the express letter of unrepealed Statute-Law; 42. Edw. 3. 1. It is assented and accorded, That the great Charter, and the Charter of Forest be holden and kept in all points, and if any Statute be made to the contrary, that shall be holden for none.
This also is consonant to the first chapter of the great Charter itselfe, made 9. Hen. 3. We have granted to all the free men of our Realm, these Liberties underwritten, to have and to hold to them and their heirs, of Us and our Heirs, forever.
But what if this great Charter itself had never been made? had England been to seek for righteous Laws and just Liberties? nothing lesse. The same Liberties and Laws were ratified before that, in the great Charter made the seventeenth year of King John, and mentioned (among others) by Matthew Paris.
And to what yet amounted the matter of all these Grants, but what the Kings themselves were bound before to observe, by the Coronation Oaths, as the antient fundamental Laws or Customs of this Land? This we may find in Mr. Lambard’s Translation of the Saxon Laws,5from the time of King Ina, who began anno 712; to Hen. 1. who began 1100. Amongst the Saxons, King Alfred is reputed the most famous and learned Compiler of our Laws, which were still handed along from one King to another, as the unalterable Customs of the Kingdom. In the 17th chapter of Edward the Confessor’s Laws, The mention of the duty of a King (which, if not performed, nec nomen Regis in eo constabit)6is remarkable. And Mr. Lambard tells us, that even William the Conqueror, did ratifie and observe the same Laws that his kinsman Edward the Confessor did, as obliged by his Coronation Oath.
So then, neither the great Charter in King John’s time, nor that of 9. Hen. 3. were properly a new Body of Law, but a Declaration of the antient fundamental Laws, Rights and Liberties of this Nation, in Brittish, Saxon, Danish and Norman times, before. This, Cook in his Proemto the second part of his Institutes, observes; where he notes also, that this Charter is not called great, for quantity of words, (a sheet of Paper will contain it) but for the great importance and weight of its matter.
Through the advice of Hubert de Burgo Chief Justice of England, Edward the first, in the eleventh year of his Reign, did, in a Council held at Oxford, unjustly cancel this great Charter, and that of Forest: Hubert therefore was justly sentenced according to Law, by his Peers, in open Parliament. Then, 25 Ed. 1. The Statute, called, Confirmationes Chartarum was made, in the first chapter whereof, the Magna Charta is peculiarly called the Common Law. 25. Ed. 1. cap. 2. Any Judgment given contrary to the said Charter, is to be undone and holden for naught. And cap. 4. Any that by word, deed, or counsel, go contrary to the said Charter, are to be excommunicated by the Bishops; and the Arch-Bishops of Canterbury and York are bound to compel the other Bishops to denounce sentence accordingly, in case of their remisness or neglect.
The next famous sticklers to Hubert de Burgo, for Arbitrary Domination, were the two Spencers, father and son,7by whose rash and evil counsel (sayes Cook) Edward the second was seduced to break the Great Charter, and they were banished for their pains.
By these passages we may observe, how the People would still be strugling (in and by their Representatives) for their Legal Rights and Just Liberties; to obviate the Encroachers whereof, they procured several new Ratifications of their old Laws, which were indeed in themselves unrepealable, even by Parliaments, if they will act as men, and not contradict the Law of their own Reason, and of the common Reason of all mankind.
By 25 Ed. I. cap 1. Justices, Sheriffs, Mayors, and other Ministers, thathave the Laws of the Land to guide them, are required to allow the said Charter to be pleaded in all its points, and in all causes that shall come before them in Judgment.
This is a clause (sayes Cook) worthy to be written in letters of gold; That the Laws are to be the Judges’ guides, (and therefore not the Judges, the guides of the Laws, by their arbitrary glosses) which never yet misguided any that certainly knew and truly followed them. In consonancy herewith, the Spaniard sayes, Of all the three learned Professions, The Lawyer is the only lettered man, his business and duty being to follow the plain literal construction of the Law, as his guide, in giving Judgment. Pretence of mystery here, carries in the bowels of it, intents, or at least a deep suspition of arbitrary domination. The mind of the Law is not subject to be clouded, disturbed or perverted by passion or interest. ’Tis far otherwise with Judges; therefore ’tis fitter and safer the Law should guide them, than they the Law. Cook on the last mentioned Statute affirms, That this great Charter, and the Charter of Forest, are properly the Common Law of this Land, or the Law that is common to all the People thereof.
2 Ed. 3. cap. 8. Exact care is taken, that no Commands by the Great or Little Seal, shall come to disturb or delay Common Right. Or, if such Commands come, the Justices are not thereby to leave to do Right, in any point. So 14 Ed. 3. 14. 11 Ric. 2. 10. The Judges’ Oath, 18 Ed. 3. 7. runs thus:
If any force come to disturb the execution of the Common Law, ye shall cause their bodies to be arrested and put into Prison. Ye shall deny no man Right by the King’s Letters, nor counsel the King anything that may turn to his dammage or disherison.8
The late King in his Declaration at Newmarket, 1641, acknowledged the Law to be the Rule of his Power. And his Majesty that now is, in hisSpeech to both Houses, the 19th of May last, said excellently, The good old Rules of Law are our best security.
The Common Law then, or Liberties of England, comprized in the Magna Charta and the Charter of Forest, are rendered as secure, as authentick words can set them, from all Judgments or Precedents to the contrary in any Courts, all corrupting advice or evil counsel of any Judges, all Letters or Countermands from the King’s Person, under the Great or Privy Seals; yea, and from any Acts of Parliament itself, that are contrary thereunto. As to the Judges, no question, they well know the story of the 44 corrupt Judges, executed by King Alfred, as also of Tresillian, Belknap, and many others since.
By 11 Hen. 7. cap. 1. They that serve the King in his Wars, according to their duty of Allegiance, for defence of the King and the Land, are indempnified; If against the Land, and so not according to their Allegiance, the last clause of that chapter seems to exclude them from the benefit of this Act.
6. Hen. 8. 16. Knights and Burgesses of Parliament are required not to depart from the Parliament, till it be fully finished, ended or prorogued.
28 Ed. 3. cap. 3. No man is to be imprisoned, disherited, or put to death, without being heard what he can say for himself.
4 Ed. 3. 14. and 36 Ed. 3. 10. A Parliament is to be holden every year, or oftener if need be.
1 Ric. 3. cap. 2. The subjects of this Realm are not to be charged with any new imposition, called a Benevolence.
37 Ed. 3. c. 18. All those that make suggestions against any man to the King, are to be sent with their suggestions before the Chancellor, Treasurer, and his grand Council, and there to find surety that they will pursue their suggestions; and are to incur the same pain, the party by them accused should have had, if attained, in case the suggestion be found evil, or false.
21 Jacobi, cap. 3. All Monopolies and Dispensations, with Penal Laws, are made void, as contrary to the great Charters.
These quotations of several Statutes, as Ratifications and Restorers of the Laws of the Land, are prefixed to the following Discourses and Pleas of this Sufferer, as certain, steady, unmovable Landmarks, to which he oft relates. The rouling Seas have other Laws, peculiar to themselves, as Cook observes (on that expression, Law of the Land) in his Comment on the 29th Chapter of Magna Charta. Offences done upon the High Sea, the Admiral takes conusance of, and proceeds by the Marine Law.
But have those steady Land-marks, though exactly observed and never so pertinently quoted and urged by this Sufferer, failed him, as to the securing of his Life? ’Tis because we have had Land-floods of late; Tumults of the People, that are compared to the raging Seas, Psal. 65. 7.
The first Paper of this deceased Sufferer, towards the defence of his Cause and Life, preparatory to the Trial, (as the foundation of all that follows) before he could know how the Indictment was laid, (and which also a glance back to any crime of Treason since the beginning of the late War, that the Attorney General reckoned him chargeable with, shews to be very requisit) take as followeth.
Memorandums touching my Defence.
The Offence objected against me, is levying War, within the Statute 25 Ed. 3.9 and by consequence, a most high and great failure in the duty which the Subject, according to the Laws of England, stands obliged to perform, in relation to the Imperial Crown and Soveraign Power of England.
The crime, if it prove any, must needs be very great, considering the circumstances with which it hath been accompanied: For it relates to, and takes in a series of publick action, of above twenty years continuance. It took its rise and had its root in the Being, Authority, Judgment, Resolutions, Votes and Orders of a Parliament, and that, a Parliament not only authorized and commissionated in the ordinary and customary way, by his Majestie’s Writ of Summons, and the People’s Election and Deputation, subject to Adjournment, Discontinuance, and Dissolution, at the King’s will; but which by express Act of Parliament, was constituted in its continuance and exercise of its Power, free from that subjection, and made therein wholly to depend upon their own will, to be declared in an Act of Parliament, to be passed for that purpose, when they should see cause. To speak plainly and clearly in this matter; That which is endeavoured to be made a Crime and an Offence of such an high nature in my person, is no other than the necessary and unavoidable Actings of the Representative Body of the Kingdom, for the preservation of the good People thereof, in their allegiance and duty to God and his Law, as also from the imminent dangers and destruction threatened them, from God’s and their own Enemies.
This made both Houses in their Remonstrance (May 26. 1642.) protest; If the Malignant spirits about the King, should ever force or necessitate them to defend their Religion, the Kingdom, the Priviledges of Parliament, and the Rights and Liberties of the Subjects, with their Swords; The Blood and Destruction that should ensue therupon, must be wholly cast upon their account, God and their own consciences telling them, that they were clear; and would not doubt, but that God and the whole world would clear them therein.
In his Majestie’s Answer to the Declaration of the two Houses, (May 19. 1642.) he acknowledgeth his going into the House of Commons to demand the five Members, was an errour: And that was it, which gave the Parliament the first cause to put themselves in a posture of defence, by their own Power and Authority, in commanding the Trained-Bands of the City of London, to guard and secure them from Violence, in the discharge of their Trust and Duty, as the two Houses of Parliament, appointed by Act, to continue, as above-mentioned.10
The next cause was, his Majestie’s raising Forces at York, (under pretence of a Guard) expressed in the humble Petition of the Lords and Commons (May 23. 1642.) wherein they beseech his Majesty to disband all such Forces, and desist from any further designs of that nature, otherwise they should hold themselves bound in duty towards God, and the Trust reposed in them by the People, and the Fundamental Laws and Constitutions of this Kingdom, to employ their care and utmost power, to secure the Parliament, and preserve the peace and quiet of the Kingdom.
May 20. 1642, The two Houses of Parliament gave their Judgment, in these Votes.
First, That it appears that the King (seduced by wicked Counsel) intends to make War against the Parliament, who in all their Consultations and Actions have proposed no other end to themselves, but the Care of his Kingdoms, and the performance of all Duty and Loyalty to his Person.
Secondly, That whensoever the King maketh War upon the Parliament, it is a breach of Trust reposed in him by his People, contrary to his Oath, and tending to the dissolution of this Government.
Thirdly, That whosoever shall serve or assist him in such Wars, are Traitors by the fundamental Laws of this Kingdom, and have been so adjudged by two Acts of Parliament, and ought to suffer as Traitors.
Die Jovis, Octob. 8. 1642, In the Instructions agreed upon by the Lords and Commons about the Militia, They declare, That the King (seduced by wicked Counsel) hath raised War against the Parliament, and other his good Subjects.
And by the Judgment and Resolution of both Houses, bearing date Aug. 13. 1642, upon occasion of his Majestie’s Proclamation for suppressing the present Rebellion under the Command of Robert Earl of Essex, They do unanimously publish and declare, That all they who have advised, declared, abetted, or countenanced, or hereafter shall abet and countenance the said Proclamation, are Traitors and Enemies to God, the King and Kingdom, and guilty of the highest degree of Treason that can be committed against the King and Kingdom, as that which invites his Majestie’s Subjects to destroy his Parliament, and good People, by a Civil War; and by that means, to bring ruine, confusion and perpetual slavery upon the surviving part of a then wretched Kingdom.
The Law is acknowledged by the King, to be the only Rule, by which the People can be justly governed; and that, as it is his duty, so it shall be his perpetual, vigilant care, to see to it. Therefore he will not suffer either or both Houses by their Votes, without or against his Consent, to enjoin anything that is forbidden by the Law, or to forbid anything that is enjoined by the Law.
The King does assert in his Answer to the House’s Petition, (May 23. 1642.) That He is a part of the Parliament, which they take upon them to defend and secure; and that his Prerogative is a part of, and a defence to the Laws of the Land.
In the Remonstrance of both Houses, (May 26. 1642.) They do assert; That if they have made any Precedents this Parliament, they have made them for posterity, upon the same or better grounds of Reason and Law, than those were, upon which their Predecessors made any for them; and do say, That as some Precedents ought not to be Rules for them to follow, so none can be limits to bound their Proceedings, which may and must vary, according to the different condition of times.
And for the particular, with which they were charged, of setting forth Declarations to the People who have chosen and entrusted them with all that is dearest to them, if there be no example for it in former times; They say, it is because there never were such Monsters before, that attempted to disaffect the People towards a Parliament.
They further say; His Majestie’s Towns are no more his care than hisKingdom, nor his Kingdom than his People, who are not so his own, that he hath absolute power over them, or in them, as in his proper Goods and Estate; but fiduciary, for the Kingdom, and in the paramount right of the Kingdom. They also acknowledge the Law, to be the safeguard and custody of all publick and private Interests. They also hold it fit, to declare unto the Kingdom, (whose Honour and Interest is so much concerned in it) what is the Priviledge of the great Council of Parliament, herein; and what is the Obligation that lies upon the Kings of this Realm, as to the passing such Bills as are offered to them by both Houses, in the name, and for the good of the whole Kingdom, whereunto they stand engaged, both in Conscience and Justice, to give their Royal Assent.
First, In Conscience; in respect of the Oath that is, or ought to be taken by them, at their Coronation, as well to confirm by their Royal Assent, all such good Laws as the People shall chuse, (whereby to remedy such inconveniencies as the Kingdom may suffer) as to keep and protect the Laws already in being.
The form of the Oath is upon Record, and asserted by Books of good authority. Unto it relation is had, 25 Ed. 3. entituled, The Statute of Provisors of Benefices.
Hereupon, The said Commons prayed our said Lord the King, (since the Right of the Crown of England, and the Law of the said Realm, is such, that upon the mischiefs and dammages which happen to this Realm, he ought and is bound by his Oath, with the accord of his People in Parliament, to make Remedy and Law, for the removing thereof) That it may please him to ordain Remedy.
This Right, thus claimed by the Lords and Commons, The King doth not deny, in his Answer thereunto.
Secondly, In Justice the Kings are obliged as well as in Conscience, in respect of the Trust reposed in them, to preserve the Kingdom by the making of new Laws, where there shall be need, as well as by observing of Laws already made; a Kingdom being many times as much exposed to ruine for want of a new Law, as by the violation of those that are in being.
This is a most clear Right, not to be denied, but to be as due from his Majesty to his People, as his Protection. In all Laws framed by both houses, as Petitions of Right, they have taken themselves to be so far Judges of the Rights claimed by them, That when the King’s Answer hath not been in every point, fully according to their desire, they have still insisted upon their Claim, and never given it over, till the Answer hath been according to their demand, as was done in the late Petition of Right, 3. Caroli.
This shews, the two Houses of Parliament are Judge between the King and the People in question of Right, as in the Case also of Ship-money and other illegal Taxes; and if so, why should they not also be Judge in the Cases of the Common Good and Necessity of the Kingdom, wherein the Kingdom hath as clear a Right to have the benefit and remedy of the Law, as in any other matter, saving Pardon and Grants of Favour?
The Malignant Party are they, that not only neglect and despise, but labour to undermine the Law, under colour of maintaining it. They endeavour to destroy the Fountain and Conservators of the Law, the Parliament. They make other Judges of the Law, than what the Law hath appointed. They set up other Rules for themselves to walk by, than such as are according to Law; and dispence with the Subjects’ obedience, to that which the Law calls Authority, and to their Determinations and Resolutions, to whom the Judgment doth appertain by Law: Yea, though but private persons, they make the Law to be their Rule, according to their own understanding only, contrary to the Judgment of those that are the competent Judges thereof.
The King asserts, That the Act of Sir John Hotham11 was levying War against the King, by the letter of the Statute, 25 Ed. 3. cap. 2.
The Houses state the Case, and deny it to be within that Statute; saying, If the letter of that Statute be thought to import this; That no War can be levied against the King, but what is directed and intended against his Person; Or, that every levying of Forces for the defence of the King’s Authority, and of his Kingdom, against the personal Commands of the King, opposed thereunto, (though accompanied with his presence) is Treason, or levying War against the King. Such Interpretation is very far from the sense of that Statute, and so much the Statute itself speaks, beside the authority of Bookcases. For if the clause of levying War had been meant only against the King’s Person, what need had there been thereof, after the other branch in the same Statute, of compassing the King’s death, which would necessarily have implied this? And because the former doth imply this, it seems not at all to be intended, at least, not chiefly, in the latter branch, but the levying War against his Laws and Authority; and such a levying War, though not against his Person, is a levying War against the King; whereas the levying of Force against his personal Commands, though accompanied with his Presence, and not against his Laws and Authority, but in the maintenance thereof, is no levying of War against the King, but for him, especially in a time of so many successive plots and designs of Force against the Parliament and Kingdom, of probable Invasion from abroad, and of so great distance and alienation of his Majestie’s affections from his Parliament and People, and of the particular danger of the Place and Magazine of Hull, of which the two Houses sitting, are the most proper Judges.
In proclaiming Sir John Hotham Traitor, they say, The breach of the Priviledge of Parliament was very clear, and the subversion of the Subject’s common Right. For though the Priviledges of Parliament extend not to these cases, mentioned in the Declaration of Treason, Felony, and breach of the Peace, so as to exempt the Member of Parliament from Punishment, or from all manner of Process and Trial, yet it doth priviledge them in the way and method of their Trial and Punishment, and that the Parliament should first have the Cause brought before them, that they may judge of the Fact, and of the grounds of their Accusation, and how far forth the manner of their Trial may or may not concern the Priviledge of Parliament: Otherwise, under this pretext, the Priviledge of Parliament in this matter, may be so essentially broken, as thereby the very Being of Parliaments may be destroyed. Neither doth the sitting of a Parliament suspend all or any Law, in maintaining that Law, which upholds the Priviledge of Parliament, which upholds the Parliament, which upholds the Kingdom.
They further assert; That in some sense, they acknowledge the King to be the only person, against whom Treason can be committed, that is, as he is King, and that Treason which is against the Kingdom, is more against the King, than that which is against his Person; because he is King: For Treason is not Treason, as it is against him as a man, but as a man that is a King, and as he hath, and stands in that relation to the Kingdom, entrusted with the Kingdom, and discharging that Trust.
They also avow, That there can be no competent Judge of this or any the like case, but a Parliament; and do say, that if the wicked Counsel about the King could master this Parliament by force, they would hold up the same power to deprive us of all Parliaments, which are the ground and pillar of the Subject’s Liberty, and that which only maketh England a free Monarchy.
The Orders of the two Houses carry in them Law for their limits, and the Safety of the Land for their end. This makes them not doubt but all his Majestie’s good Subjects will yeeld obedience to his Majestie’s Authority, signified therein by both Houses of Parliament: for whose encouragement, and that they may know their Duty in matters of that nature, and upon how sure a ground they go, that follow the Judgment of Parliament for their guide. They alledge the true meaning and ground of that Statute, 11. Hen. 7. cap. 1.12 printed at large in his Majestie’s Message, May 4; This Statute provides, that none that shall attend upon the King and do him true service, shall be attainted, or forfeit anything.
What was the scope of this Statute?
Answer. To provide, that men should not suffer as Traitors for serving the King in his Wars, according to the duty of their Allegiance. But if this had been all, it had been a very needless and ridiculous Statute. Was it then intended (as they seem to make it, that print it with his Majestie’s Message) that those should be free from all crime and penalty, that should follow the King and serve him in War, in any case whatsoever, whether it were for or against the Kingdom or the Laws thereof? That cannot be: for that could not stand with the duty of their Allegiance, which, in the beginning of this Statute, is expressed to be, to serve the King for the time being in his Wars, for the defence of him and the Land. If therefore it be against the Land, (as it must be, if it be against the Parliament, the Representative Body of the Kingdom) it is a declining from the duty of Allegiance, which this Statute supposes may be done, though men should follow the King’s Person in the War. Otherwise, there had been no need of such a Proviso in the end of the Statute, that none should take benefit thereby, that should decline from their Allegiance.
That therefore which is the Principal Verb in this, is the serving of the King for the time being, which cannot be meant of a Perkin Warbeck,13 or any that should call himself King, but such a one, as (whatever his Title might prove, either in himself or in his Ancestors) should be received and acknowledged for such, by the Kingdom, the Consent whereof cannot be discerned but by Parliament; the Act whereof, is the Act of the whole Kingdom, by the personal Suffrage of the Peers, and the Delegate Consent of the Commons of England. Henry 7th therefore, a wise Prince, to clear this matter of contest, happening between Kings de facto and Kings de jure, procured this Statute to be made, That none shall be accounted a Traitor for serving in his Wars, the King for the time being; that is, him that is for the present allowed and received by the Parliament in behalf of the Kingdom. And as it is truly suggested in the Preamble of the Statute; It is not agreeable to reason or conscience, that it should be otherwise, seeing men should be put upon an impossibility of knowing their duty, if the Judgment of the highest Court should not be a Rule to guide them. And if the Judgment thereof is to be followed, when the question is, who is King? much more, when the question is, what is the best service of the King and Kingdom? Those therefore that shall guide themselves by the Judgment of Parliament, ought (whatever happen) to be secure and free from all account and penalties, upon the ground and equity of this Statute.
To make the Parliament countenancers of Treason, they say, is enough to have dissolved all the bands of service and confidence between his Majesty and his Parliament, of whom the Law sayes, a dishonourable thing ought not to be imagined.
This Conclusion then is a clear Result from what hath been argued; That in all Cases of such difficulty and unusualness, happening by the over-ruling Providence of God, as render it impossible for the Subject to know his duty, by any known Law or certain Rule extant, his relying then, upon the Judgment and Reason of the whole Realm, declared by their Representative Body in Parliament, then sitting, and adhering thereto, and pursuing thereof, (though the same afterwards be by succeeding Parliaments, judged erroneous, factious and unjust) is most agreeable to right Reason and good Conscience; and in so doing, all persons are to be free and secure from all Account and Penalties, not only upon the ground and equity of that Statute, 11 Hen. 7. but according to all Rules of Justice, natural or moral.
* * *
The Valley of Jehoshaphat, considered and opened, by comparing 2. Chron. 20. with Joel 3.
It was the saying of Austine; Nothing falls under our senses, or happens in this visible World, but is either commanded or permitted from the invisible and unintelligible Court and Pallace of the highest Emperor and universal King, who is the chief over all the kings of the earth. For although he hath both commanded and permitted a subordinate external Government over Men, administered by man, for the upholding of Justice in human Societies, and for the peace, welfare, and safety of men that are made in God’s Image; yet, he hath not so entirely put the Rule of the whole earth out of his own hands, but that in cases of eminent in justice and oppression (committed in Provinces, States and Kingdomes, contrary to his Lawes, to their own, and the very end of Magistracy, which is the conservation of the People’s just Rights and Liberties) He that is higher than the highest amongst men, doth regard, and will shew by some extraordinary interposition of his, that there are higher than they.
Such a seasonable and signal appearance of God, for the Succor and Relief of his People, in their greatest Straits and Exigencies, (when they have no might, visible Power, or armed Force, to undertake the great company and multitude that comes against them, nor know what to do, save only to have their eyes towards him) is called in Scripture, The day of the Lord’s Judgment. Then the Battel and cause of the Quarrel, will appear to be not so much theirs, as the Lord’s: and the frame of their heart will be humble before the Lord, believing in the Lord, and believing his Prophets, for their good success and establishment.
This Dispensation is very lively described under the Type, and by the Name of The Valley of Jehoshaphat, as to the Season and Place wherein God will give forth a signal appearance of himself in Judgement, on the behalf of his People, for a final decision of the Controversie between them and their enemies. It Litterally and Typically fell out thus, as is at large recorded, 2 Chron. 20.
By way of allusion to this, and upon occasion of the like, yea, and far greater Extreamities, which God’s People in the last dayes, are to be brought into, is that Prophesie, Joel 3. for a like, yea, a far greater and more signal appearance of God for their Deliverance and Rescue, in order to a final Decision of the Controversie, between his People and the Inhabitants of the earth, by his own Judgement. This is there called, The Valley of Jehoshaphat, in which the Lord will sit to Judge all his enemies round about. In this Battel and great Decision of his People’s Controversie, he will cause his Mighty Ones to come down from Heaven, to put in their sickle as reapers in this Vintage and Harvest, when the wickedness is great. Unto this, Revel. 14. 14, 20. refers, which doth plainly evidence, that this grand Decision is to fall out in the very last of times, and probably, is that, which will make way to the Rising of the Witnesses, and will be accompanied with that Earthquake, in which shall be slain, of men seven thousand, and the tenth part of the City will thereupon fall, Rev. 11.
It is expressed, Joel 3. That in this day of the Lord, wherein he will near, in the Valley of Decision, the Heavens and the Earth shall shake, by the Lord’s own roaring out of Sion; and he himself will be the Harbour, Hope and Strength of his People. The Sun and Moon of earthly Churches and Thrones of Judicature, that contest with them, shall be darkened, and the Stars, (even the choicest and most illuminated gifted Pastors & Leaders, in the earthly Jerusalem Churches, with their most refined Forms of Worship, resisting the power of true spiritual Godliness) shall withdraw their shining. Even their holy flesh will pass off from them and consume away upon their spiritual lewdness, and confident opposing the Faith of God’s Elect, Jer. 11. 17. Their very Eyes will consume away in their holes, with which they say, we see; and for which, Christ tells the Pharisees, in like case, that therefore their sin remaineth. (John 9. 41). Or, there remaineth no more benefit from Christ’s Sacrifice, for their sin; and therefore only a fearful looking for of the fiery and devouring indignation, Heb. 10. 26, 27.
Here’s that, the great confidence and boast of many professing Churches and eminent Pastors in the earthly Jerusalem Fabrick, or House on the sand, will come to, Ezek. 13. and Mat. 7. Their very Eyes, their high enlightenings and excellent spiritual Gifts, their supernatural or infused human Learning, that’s admitted only as an adorning and accomplishment of the natural man, (unaccompanied with that Fire-Baptisme, that’s performed by the unspeakable gift of the Spirit itself, for the transforming of the natural man into spiritual) even these Eyes becoming evil, (Mat. 6.23.) and this light, opposing and preferring itself to the more excellent discerning and marvellous light in spiritual Believers, are turned by the just Judgement of God, into the greatest and most fatal blindness and darkness of all. Their tongues also, though the tongues of men and angels, for excellency and dexterity of expressing what they see, with the formentioned eyes, will consume away in their mouth, (Zech. 14.12.) and leave them exposed to become, and accordingly be dealt with, as meer sounding brass and tinckling Cymbals, (1 Cor. 12.31. and 13. 1.) giving no certain sound, and right warning to the Battels of the Lord, the good fight of Faith.
This comes to pass through their confidence in those attainments, which may be, and oft are turned into an Idol of jealousie, and spiritual whoredom, Ezek. 16. 1, 15.
All these considerations of Church and State, put together, afford great ground of enquiry, as to the Condition of the times in which we live, how far the face which they bear, (and which God hath put upon them, in the course of his Providences, for some years now past) doth speak or signifie the near approach of any such extraordinary and signal appearance or day of God’s Judgement, for the Decision of his own or his People’s quarrel and controversie with the prophane Heathen that are round about them, waiting for an advantage, utterly and universally to remove and root them out from off the face of the whole earth?
That which hath been acted upon the Theater of these Nations, amongst us, in the true state of our Controversie, seems to be reducible to this following Querie;
Whether the Representative Body of the Kingdom of England, in Parliament assembled, and in their Supream Power and Trust made indissolvable, unless by their own Consent and free Vote, and this by particular and express Statute, have not had a just and righteous Cause? A Quarrel more God’s, than their own?
1. It may appear they had; First, from the Ground of their undertaking the War; Was it not in their own and the Kingdom’s just and necessary defence, and for the maintaining of the publick Rights and Liberties of both?
2. Secondly, Was it not undertaken upon mutual Appeals of both Parties to God, desiring him to judge between them, to give the Decision and Issue by the Law of War, (when no other Law could be heard) as the definitive Sentence in this Controversie, from the Court of Heaven?
3. Thirdly, Pursuant to such Decision, did they not recover and repossess the Kingdom’s original and primitive freedom? Did they not endeavour to conserve and secure it, as due to them by the Law of God and of Nature? For man was made in God’s Image, and all Adam’s Posterity are properly one Universal Kingdom on earth, under the Rule and Government of the Son of God, both as Creator and Redeemer.
By virtue of this original and primitive Freedom so recovered, they were at their own choice, whether to remain in, and retain this their true freedom (unresigned and unsubjected to the Will of any Man) under the Rule of the Son of God and his Lawes, or else to set up a King or any other Form of Government over them, after the manner of other Nations. In this latter case, it is acknowledged, that when a Commonwealth or People, do choose their first King, upon condition to obey him and his Successors, Ruling justly; they ought to remain subject to him, according to the Law, and tenor of the Fundamental Compact with him, on whom they have transferred their Authority. No Jurisdiction remaineth in them (after that free and voluntary Act of theirs) either to Judge the Realm, or determine who is the true Successor, otherwise than is by them reserved and stipulated, by their Fundamental Laws and Constitutions of Government.
And though the righteousness of this Cause (contained in the forementioned particulars) be such, as carries in it its own evidence; yet, as (as things have fallen out) it is come to be oppressed and buried in the grave of Malefactors; in the room of which, a contrary Judgement and Way, is visibly owned, upheld, and intended to be prosecuted to the utmost, for its own fast-rooting and establishment; and this, by the common Consent and Association of Multitudes. What then remaines for the recovery and restitution of that good old Cause and Way, but such a seasonable and signal appearance of God, (as aforesaid) in the Valley of Jehoshaphat? What but the taking things immediately into his own hands, for administration of Judgement, and giving the last and final decision? Especially, since what was foretold by Daniel, is remarkably accomplished amongst us, to wit, that the visible Power of God’s People should be broken and scattered, so as that they should have no might remaining in and with them, to go against the Multitudes, that design and resolve their Ruine.
There is not any remedy left to them, wherein they may expect success, but from such a signal day of the Lord’s immediate appearance in Judgement on their behalf. For their sakes therefore, O Lord, return thou on high, (Psal. 7.7.) take thy Throne of Judicature over men, from which thou hast seemed to have departed, and execute that righteous Judgement, which thou hast seemed for a season to have suspended, upon wise and holy ends best known to thy self.
In such a dark and gloomy day, those that truely fear the Lord, are directed and required by him, not to fear or be dismayed, because he will be with them. They are encouraged in the way of Faith only, to expect this deliverance; even to stand still, as having no need to fight in this Battel, but only to see the Salvation of the Lord, through believing.
Antient Foundations, when once become destructive to those very ends for which they were first ordained, and prove hinderances, to the good and enjoyment of human Societies, to the true Worship of God, and the Safety of the People, are for their sakes, and upon the same Reasons to be altered, for which they were first laid. In the way of God’s Justice they may be shaken and removed, in order to accomplish the Counsels of his Will, upon such a State, Nation, or Kingdom, in order to his introducing a righteous Government, of his own framing.
This may have been the cause of our Wanderings as it were in a Wilderness, and of God’s bringing us back again into Egypt, after our near approach to the Land of Rest; that we have no better known, and had no more care to prosecute, what he principally intended in and by all our Changes and Removes, in the course of his Providence. Yea we have added this also, to the rest of our sins, that we have improved the Gifts and Deliverances that God bestowed upon us, another way, and to another end than was by him intended, as well as Providentially intimated, by that holy Decree of his, in the Decision, declared at the Trial in his Martial Court, with points of Swords.
Here the great Controversie that had been depending many Ages between Rulers and the Ruled, (as to the Claimes of the one in point of Prerogative; and of the other in their Spiritual and Temporal Freedoms) was after many heats & colds, many skirmishings and battels, at last decided by the Sword. This is a way of Trial allowed by the known common Law of England, and the Law in force throughout all Nations. By this, the Verdict is given forth from a Court of such a Nature, as from whence there is no further appeal; Especially since after the Trial past, quiet possession was given to the Conquerors, and continued some years. Upon this, Reason and Gratitude to God, obliged us to such a prosecution as might answer the true end of Government; and in especial after that manner, as might be most to God’s well-pleasing.
The Powerful Being which by success of Armes, as given to the People’s Representative Body in Parliament, did communicate to it essentiallity, according to the nature of that Being, for which it was ordained. For that Being, with Power of continuing together at their own pleasure, were as the Soul and Body, unseperated, and they might have performed things necessary at present, for the safety and preservation of the Body they represented. They might have been a good help to settle righteous Government, in a constitution most acceptable to God, and beneficial to the Governed, on the Foundation of God’s Institution, and the People’s Ordination, in consent together, laid by the Power of God and the People’s own Swords, in the hands of their faithful Trustees.
It would imply a high contempt of God and his Dispensations, so signal amongst us, to communicate the benefit of them to his opposers. The right of choosing and being chosen into places of Trust in the Government, was returned by the Law of the Sword (which is paramount to all human Laws) into its primitive exercise, which is warranted by the Law of God and of Nature. By that Law the most famous Monarchies of the World in all Ages were first constituted and setled; and by it God decided our Cause, looking for an event and fruit answerable to the benefit by him given; even such a Government, as God would have given us the Pattern of (had we sought it, as was our duty) whereby Justice and Mercy should have been daily administered according to his will, to the bringing on the new Heavens and new Earth, wherein Righteousness might dwell.
The Vessel of this Commonwealth now weather-beaten and torn, seems to be more in danger, than that wherein Jonah would have fled to Tarus: For though we have cast forth a great part of our goods to secure it, this has done us but small good. That Ship had but one Delinquint aboard, which occasioned the Storm; and his being thrown into the Sea, brought immediate safety. They had also many skilful Seamen to guide it, but all our Pilots are cast over-board, and none left in appearance, but guilty Passengers. Nay, admit with Jonah, both the Commonwealth and Cause be brought into most desperate Exigents and Extreamities, from whence there is no more appearing redemption for them, than such as they have, that go down quick into the grave and belly of the Whale; yet they may be preserved, even by that which naturally of itself is irrecoverably destructive to them, and be employed again in service by him against whom they have been so ungratefully rebellious after former great deliverances. So infinite are God’s Mercies, yea, so exceeding Merciful are the severest of his Judgements and Dispensations towards his People.
Thus may both People and Army be deprived of their Power, and another party let in to plague and root out from amongst us, such as are more wicked than themselves, and so make room for a more righteous Generation, which will begin all things anew.
By the course of things acted amongst us, God’s sentence on our behalf is made void, and that seems given away forever, which was recovered by the Sword. Our troubles are only prorogued. No Faith or Contract is thought meet to be kept with Rebels and Hereticks, when by acquired Power it may be broken. ’Twas the great folly and self-flattery of some, to think it would be otherwise. It is most certainly true, that no Time or Prescription, is a just Bar to God’s and the People’s Right.
To murmure against God’s Verdict, and resist his Doom, so solemnly given and executed amongst us, in the sight and concurring acknowledgement of the Nations round about, is to become adversaries to God, and to betray our Countrey. If God then do think fit to permit such a dispensation to pass upon us, it is for the punishement of our sins, and for a plague to those that are the Actors therein; to bring more swift exemplary vengeance upon them. Such as have discharged a good Conscience in what may most offend the higher Powers, are not to fear, though they be admitted to the exercise of their Rule, with an unrestrained Power, and revengeful mind.
Though from that Mountain, the Storm that comes, will be very terrible, yet some are safest in Storms, as experience shews. Yea best therein by God’s Mercies, when their greatest enemies think most irrecoverably to undo them.
Our late Condition held much resemblance with that of the Jewes, and we deserve as well to be rejected as they were. If Christ were in the flesh amongst us, as he was with them, we are as likely to prefer theeves and murtherers before him, and crucifie him.
The present necessity in a righteous Cause is to be submitted to, and we are not to be discouraged by the danger, which to some seems threatened us, from former or present Laws. For no man that acts for common safety, when the Sword hath absolute power, and shall also command it, can justly be questioned afterwards for acting contrary to some former Laws, which could be binding no longer than whilst the Civil Sword had Soveraignty.
What People under Heaven have had more Experiments of God’s timely assistance in all their Extreamities, than Englishmen, as well with respect to times past, as within our remembrance? Are the like Mercies recorded of any Nation? In their times of greatest Confusion they were preserved. They were a living active Body without a Head: A Bush burning in the Flames of a Civil War, yet not consumed: A People when without a Government, not embued with one another’s Blood. A wonder to all Neighbours round about, and many signal Changes brought about without Blood, which indubitably evidences that God is in the Bush: and would gather us together as Chickens under a Hen, to be brooded by him, if we were not most stubbornly hardened.
Our sins have been the cause, that our Counsels, our Forces, our Wit, our Conquests, and our-Selves have been destructive to ourselves, to each other, and to a happy advancement towards our long expected and desired Settlement. Until these sins of ours be repented truly and throughly, all the Wisdom and Power upon Earth shall not avail us, but every day, every attempt, will encrease our Troubles, until there be a final extirpation of all that hinders God’s Work; When this once is, nothing shall harm us, God being a sure refuge against all evils, if we reconcile ourselves to him by Faith and Repentance. Then, even those things that are most mischievous in their own natures, shall be made our advantage and security.
The People’s Cause whom God after trial hath declared free, is a righteous one, though not so prudently and righteously managed as it might and ought to have been. God’s doom therefore is justly executed upon us, with what intent and jugglings soever it was prosecuted by men.
Man’s corruption makes him more firmly to adhere to that which is good: in which case, it is not many times, Virtue so much as Necessity that keeps men Constant; having no other means of safety and subsistance for the most part.
The goodness of any Cause is not meerly to be judged by the Events, whether visibly prosperous or unprosperous, but by the righteousness of its Principles: nor is our Faith and Patience to fail under the many fears, doubts, wants, troubles, and Power of Adversaries, in the passage to the recovery of our long lost Freedom. For it is the same Cause with that of the Israelites of old, of which we ought not to be ashamed or distrustful.
How hath it fared with the Cause of Christ generally, for more now than 1600 years, being made the common object of scorn and persecution, not from the base and foolish only, but from the noblest and wisest persons in the World’s esteem? Yet, though our Sufferings and the time of our warfare seems long, it is very short, considering the perpetuity of the Kingdom which at last we shall obtain, & wherein we shall individually reign with the chief Soveraign thereof. For whereas all the Kingdoms of the World have not yet lasted 6000 years, this is everlasting and without end. They that overcome by not loving their lives unto the death, (Rev. 12.11.) shall be Pillars in the House of this everlasting Kingdom, never to be removed. They shall be Kings and Priests to God, sitting with him upon his Throne, subjecting the Nations, and reigning with him for ever and ever. This is a Kingdom that consists with the Divinity of Christ, and humanity of men. Such a reign of Christ upon earth, as will not be without Laws agreeable to human Nature, nor without Magistrates appointed as Officers under him; in which Election, God and the People shall have a joint concurrence. God’s Throne in men’s Consciences must then be resigned, and his People permitted to enjoy the Liberties, due to them by the Laws of Grace and Nature. Into this, God’s own immediate hand can now only lead us, by his own coming to Judgement in the Valley of Jehoshaphat.
Earl of Shaftesbury, Two Speeches
Anthony Ashley Cooper,
Earl of Shaftesbury, 1621-1683
I. The Earl of Shaftsbury’s Speech in the House of Lords the 20th. of October, 1675.
II. The D. of Buckingham’s Speech in the House of Lords the 16th. of November 1675.
Together with the Protestation, and Reasons of several Lords for the Dissolution of this Parliament; Entred in the Lords Journal the day the Parliament was Prorogued, Nov. 22d. 1675.
Printed Anno Domini. 1675.
Prior to the civil war the constitutional energies of the two houses were devoted to defining the balance between themselves and the Crown. After the Restoration much of their focus was directed toward defending their roles vis-à-vis each other. A dispute over their judicial roles in the case of Shirley v. Fagg provoked Shaftesbury’s speech reprinted below. The speech is of particular interest because in it Shaftesbury explains the key role the House of Lords was believed to play within English government. The views and speeches of the members of Parliament were supposed to be confidential, which is presumably the reason the publisher claimed “Two Speeches” was printed in Amsterdam.
Shaftesbury had been a notorious, albeit probably principled, side-changer during the civil war, joining the royal cause in mid-1643 only to desert it within the year as he became fearful of the king’s aims. He was active in Interregnum governments and urged Cromwell to accept the crown. When Cromwell refused Shaftesbury resigned from the Council of State. Like Vane he sat in Richard Cromwell’s parliament, but unlike Vane he supported the return of monarchy. Shaftesbury joined Charles’s “cabinet council” in 1670 and two years later became lord chancellor. As chancellor he fought for religious toleration in the form of Charles’s unpopular declaration of indulgence. He abruptly switched, however, and vehemently supported the Test Act against Catholics, perhaps because he had learned of the king’s secret promise to Louis XIV to convert. In November 1673 Shaftesbury was dismissed from office and became a leader of the opposition and creator of the group that was to become the Whigparty. It was as leader of the opposition that he spoke on behalf of the jurisdiction of the Lords.
The case of Shirley v. Fagg arose when the plaintiff, Dr. Shirley, lost a case in Chancery and appealed to the Lords against Sir John Fagg, an MP for Steyning. In an earlier dispute, Skinner v. The East India Company, the Commons had challenged the Lords’ right to original jurisdiction and won. Now they claimed this appeal was also a breach of privilege that infringed upon their role as a court. To demonstrate the seriousness with which they regarded the matter they sent Fagg to the Tower as punishment for appearing before the Lords and arrested four barristers due to appear in a similar case. Shaftesbury and the opponents of the nonresisting test bill have been accused of goading the Commons into immoderate actions in this case in order to block consideration of that bill. Even if the accusation were true, such a scheme would have failed if the case had not raised a serious constitutional issue. With Shaftesbury’s urging the Lords stood upon their right to hear appeals, even when a member of the Commons was involved. All other business came to a halt, and the king felt obliged to prorogue Parliament. The Lords’ view ultimately prevailed, for the Commons dropped its objections to the supreme appellate jurisdiction of the Lords.
“The Duke of Buckingham’s Speech,” also listed on the title page, is not included in this volume. A list of errata that had been called for by the printer and had “escaped the Press through hast” has been incorporated.
The Earl of Shaftsbury’s Speech in the House of Lords, upon the Debate of Appointing a Day for the Hearing Dr. Shirley’s Cause,1the 20th of October, 1675.
Our All is at Stake, and therefore You must give me leave to speak freely before We part with it. My Lord Bishop of Salisbury is of Opinion, that we should rather appoint a day to consider what to do upon the Petition; than to appoint a day of hearing: And my Lord Keeper, for I may name them at a Committee of the whole House tells Us in very Eloquent and Studied Language, That he will Propose Us a way far less liable to Exception, and much less Offensive and Injurious to our own Priviledges, than that of appointing a day of Hearing. And I beseech Your Lordships, did you not after all these fine Words expect some Admirable Proposal! But it ended in this. That Your Lordships should appoint a day, nay very long day to Consider what You would do in it. And my Lord hath undertaken to convince you, that this is Your only Course by several undeniable Reasons; the first of which is: That ’tis against your Judicature to heer this Cause which is not proper before Us, nor ought to be relieved by Us. To this my Lords give me leave to Answer, that I did not expect from a man Professing the Law; that after an Answer by Orders of the Court was put in, and a day had been appointed for Hearing, which by some Accident was set aside, and the Plaintiffe moving for a second day to be assigned that ever without hearing Counsel on both sides; the Court did enter into the Merits of the Cause. And if your Lordships should do it here in a Cause attended with the Circumstances this is, it would not only be an apparent Injustice, but a plain Subterfuge to avoid a Point you durst not maintain.
But my Lord’s second Reason speaks the Matter more clearly, for that is: Because ’tis a doubtful case, whether the Commons have not Priviledge, and therefore my Lord would have You, To appoint a farther and a very long day to consider of it, which in plain English is, that Your Lordships should confess upon Your Books, that you conceive it on second Thoughts a doubtful Case, for so Your Appointing a day to Consider will do, and that for no other Reason, but because my Lord Keeper thinks it so, which I hope will not be a Reason to prevail with Your Lordships; since we cannot yet by experience tell that his Lordship is capable of thinking Your Lordships in the Right, in any Matter against the Judgement of the House of Commons; ’tis so hard a thing even for the ablest of men to change ill Habits.
But my Lord’s third Reason, is the most Admirable of all which he Styles Unanswerable, viz. That Your Lordships are all convinced in Your Consciences that this (if prosecuted) will cause a Breach. I beseech Your Lordships, consider whether this Argument thus applied would not overthrow the Law of Nature, and all the Laws of Right and Property in the World: For ’tis an Argument, and a very good one, that You should not stand or insist on Claims, where You have not a clear Right; or where the Question is not of Consequence and of Moment, in a Matter that may produce a Dangerous Pernitious Breach between Relations, Persons, Bodies politick joined in Interest, and High Concerns together. So on the other hand, if the Obstinancy of the Party in the wrong, shall be made an unanswerable Argument for the other Party to recede and give up his just Rights, How long shall the People keep their Liberties, or the Princes or Governours of the World their Prerogatives! How long shall the Husband maintain his dominion, or any man his Property from his Friend, or his Neighbour’s Obstinancy? But my Lords when I hear my Lord Keeper open so Eloquently the Fatal Consequences of aBreach: I cannot forbear to fall into some admiration how it comes to pass: That (if the Consequences be so fatall) the King’s Ministers in the House of Commons, of which there are several that are of the Cabinet, and have daily resort to His Majesty and have the Direction and Trust of his Affaires: I say that none of these should press these Consequences there, or give the least stop to the Carreer of that House in this Business; but that all the Votes concerning this Affair, nay even that very Vote, That no Appeal from any Court of Equity is cognisable by the House of Lords, should pass nemine contradicente.2 And yet all the great Ministers with us here, the Bishops and other Lords of greatest dependance on the Court contend this point, as if it were pro Aris & focis.3 I hear his Majesty in Scotland hath been pleased to declare against Appeals in Parliament, I cannot much blame the Court if they think (the Lord Keeper, and the Judges being of the King’s Naming, and in His Power to change) that the Justice of the Nation is safe enough, and I my Lords may think so too, during this King’s time, though I hear Scotland not without reason complain already. Yet how future Princes may use this Power, and how Judges may be made not men of Ability or Integrity, but men of Relation and Dependance, and who will do what they are commanded; and all men’s Causes come to be Judged, and Estates disposed of as Great Men at Court please.
My Lords, the Constitution of our Government hath provided better for Us, and I can never believe so Wise a Body as the House of Commons, will prove that Foolish woman, which plucks down her House with her hands.
My Lords, I must presume in the next place to say something to what was offered by my Lord Bishop of Salsbury, a man of Great Learning and Abilities, and always versed in a stronger and closer way of Reasoning, than the Business of that Noble Lord I answered before did accustome him too, and that Reverend Prelate hath stated the matter very fair upon two Heads.
The first, whether the hearing of Causes and Appeals, and especially in this Point where the Members have priviledge, be so Material to us, that it ought not to give way to the Reason of State, of greater Affairs that pressed us at the time.
The second was, If this Business be of that Moment, yet whether the appointing a day to consider of this Petition; would prove of that consequence, and prejudice to your Cause.
My Lords, to these give me leave in the first place to say, that this Matter is no less than Your whole Judicature, and Your Judicature is the life and soul of the Dignity of the Peerage of England, you will quickly grow burdensome, if you grow useless, you have now the greatest and most useful end of Parliament principally in you, which is not to make new Laws but to redress Grievances, and to Maintain the Old Land-Marks. The House of Commons’ Business is to complain, Your Lordships’ to redress, not only the Complaints from them that are the Eyes of the Nation, but all other particular persons that address to You. A Land may Groan under a Multitude of Laws I believe Ours does, and when Laws grow so multiplied, they prove oftener Snares, than Directions and Security to the People. I look upon it as the ignorance and weakness of the latter Age, if not worse, the effect of the Designes of ill men; that it is grown a general opinion, that where there is not a particular direction in some Act of Parliament the Law is defective, as if the Common Law had not provided much better, Shorter, and Plainer for the Peace and Quiet of the Nation than intricate, long, and perplexed Statutes do: which has made Work for the Lawyers, given power to the Judges, lessened Your Lordships’ Power, and in a good measure unhinged the security of the People.
My Lord Bishop tells You, That Your whole Judicature is not in question, but only the priviledge of the House of Commons, of their Membersnot appearing at Your Barr. My Lords, were it no more, yet that for Justice and the People’s sake You ought not to part with. How far a Priviledge of a House of Commons, their Servants, and those they own, doth extend Westminster Hall, may with Griefe tell Your Lordships. And the same Priviledge of their Members being not sued, must be allowed by Your Lordships, as well, and what a failer of Justice this would prove whilst they are Lords for life, and you for Inheritance, let the World Judge; for my part I am willing to come to Conference whenever the Dispute shall begin again, and dare undertake to your Lordships, that they have neither Precedent, Reason, nor any Justifiable pretence to show against us; and therefore my Lords, if you part with this undoubted Right meerly for the asking, where will the asking stop! And my Lords, we are sure it doth not stop here, for they have already nemine Contradicente! Voted against Your Lordships’ power of Appeals from any Court of Equity! So that you may plainly see where this Caution and reason of State means to stop, not one jot short of laying your whole Judicature aside, for the same reason of passing the King’s Money, of not interrupting good Laws, or whatever else must of necessity avoid all Breach upon what score soever. And your Lordships plainly see the Breach will be as well made upon your Judicature in general as upon this, so that when your Lordships have appointed a day; a very long day, or to consider whether Dr. Shirley’s Cause be not too hot to handle. And when you have done the same for Sir Nicholas Stoughton whose Petition I hear is coming in, your Lordships must proceed to a Vote to lay all private Business aside for six Weeks, for that Phrase of private Business hath obtained upon this last Age, upon that which is your most publique Duty and Business; namely the Administration of Justice. And I can tell your Lordships, besides the reason that leads to it, that I have some intelligence of the designing such a Vote: For on the second day of your sitting, at the rising of the Lords House there came a Gentleman into the Lobby belonging to a very great Person, and askt in great haste are the Lords up? have they passed the Vote? And being asked what Vote? He answered the Vote of no Private Business for six Weeks.
My Lords, if this be your Business, see where you are, if ye are to Postpone our Judicature for fear of offending the House of Commons for six Weeks: that they in the interim may passe the Money, and other acceptable Bills that His Majesty thinks of Importance; are so many wise men in the House of Commons to be laid asleep, and to pass all these acceptable things; and when they have done, to let us to be let loose upon them.
Will they not remember this next time there is want of Money? Or may not they rather be assured by those Ministers that are amongst them, and go on so unanimously with them, that the King is on their side in this Controversie, and when the publique Businesses are over, our time shall be too short to make a Breach or vindicate ourselves in the Matter? And then I beg your Lordships where are you; after you have asserted but the last Session your right of Judicature, so highly even in this Point, and after the House of Commons had gone so high against you on the other hand, as to post up their Declaration and Remonstrances on Westminster Hall Doors, the very next Session after you postpone the very same Causes, and not only those, but all Judicatures whatever. I beseech your Lordships, will not this prove a fatal precident and confession against yourselves? ’Tis a Maxim, and a rational one amongst Lawyers, that one Precedent where the Case hath been Contested, is worth a 1000 where there hath been no Contest. My Lords, in saying this I humbly suppose I have given a sufficient answer to my Lord Bishop’s second Question; Whether the appointing a day to consider what you will do with this Petition of that consequence to your right, for it is a plain confession, that it is a doubtful Case, and that infinitely stronger than if it were a new thing to you never heard of before; For it is the very same Case, and the very same thing desired in that Case, that you formerly ordered and so strongly asserted; so that upon time, and all the deliberation imaginable, you declared yourselves to become doubtful, and you put yourselves out of your own hands, into that power that you have no reason to believe on your side in this Question.
My Lords, I have all the duty imaginable to his Majesty, and should with all submission give way to anything that he should think of Importance to his affairs: But in this Point it is to alter the constitution of the Government, if you are asked to lay this aside; And there is no reason of State can be an Argument to your Lordships to turn yourselves out of that Interest you have in the constitution of the Government, ’tis not only your concern that you maintain yourselves in it, but ’tis the concern of the Poorest man in England that you keep your Station. ’Tis your Lordship’ concern, and that so highly, that I will be bold to say the King can give none of you a requital or recompence for it, what are empty Titles? What is present Power, or Riches and a great Estate, wherein I have no firme nor fixed property? ’Tis the constitution of the Government and Maintaining it that secures your Lordships and every man else in what he hath. The Poorest Lord, if the Birthright of the Peerage be maintained, has a Fair Prospect before him for himself or his Posterity: But the greatest Title with the greatest present Power and Riches, is but a mean creature, and maintains those absolute Monarchies no otherwise than by servile low flatteries and upon uncertain terms.
My Lords, ’Tis not only your Interest, but the Interest of the Nation that you Maintain your Rights, for let the House of Commons and Gentry of England think what they please, there is no Prince that ever governed without Nobility or an Army: if you will not have one; you must have t’other, or the Monarchy cannot long support, or keep itself from tumbling into a Democratical Republique. Your Lordships and the people have the same cause, and the same Enemies. My Lords, would you be in favour with the King? ’Tis a very ill way to it, to put yourselves out of a future capacity, to be considerable in his service. I do not find in Story, or in Modern Experience, but that ’tis better, and a man is much more regarded that is in a capacity and opportunity to serve, than he that hath wholly deprived himself of all for his Prince’s service. And I therefore declare that I will serve my Prince as a Peer, but will not destroy the Peerage to serve him.
My Lords, I have heard of 20 foolish Modells and Expedients to secure the Justice of the Nation, and yet to take this Right from your Lordships as the King by his Commission appointing Commoners to hear Appeals; or that the twelve Judges should be the persons, or that persons should be appointed by Act of Parliament, which are all not only to take away your Lordships’ just Right, that ought not to be altered any more than any other part of the Government, but are in themselves when well weighed Ridiculous. I must deal freely with your Lordships, these things could never have risen in men’s minds, but that there has been some kind of Provocation that has given the first rise of it. Pray my Lords forgive me, if on this occasion I put you in mind of Committee Dinners, and the Scandal of it, those Droves of Ladies that attended all Causes; ’twas come to that pass, that men even Hired or Borrowed of their Friends’ handsom Sisters or Daughters to deliver their Petitions. But yet for all this I must say, that your Judgments have been Sacred, unless in one or two Causes, and those we owe most to that Bench; from whence we now apprehend most danger.
There is one thing I had almost forgot to speak to, Which is the Conjuncture of time, the Hinge upon which your reason of State turns; and to that my Lords give me leave to say, if this be not a time of Leisure for you to vindicate your Priviledges, you must never expect one. I could almost say that the Harmony, good Agreement, and Concord that is to be prayed for at most other times, may be fatall to us now, we owe the Peace of this last two years and the disingagement from the French interest to the two Houses differing from the Sense and Opinion of Whitehall, so at this time, the thing in the World this Nation hath most reason to apprehend, is a General Peace, which cannot now happen without very advantagious Terms to the French, and Disadvantagious to the House of Austria. We are the King’s great Counsellors and if so, have Right to differ, and give contrary Councels to these few are nearest about him, I fear they would advance a General Peace, I’m sure I would advise against it, and hinder it at this time by all the ways imaginable. I heartily wish nothing from you may add weight and reputation to those Councels would assist the French. No Money for Ships, nor Preparation you can make, nor Personal assurances our Prince can have, can secure us from the French if they are at leisure, he is grown the most Potent of us all at Sea. He has Built 24 Ships this last year; and has 30 more in number than we besides the advantage that our Ships are all out of Order, and his so exquisitely provided for, that every Ship has his particular Store-house. ’Tis incredible the Money he hath, and is bestowing in making Harbors, he makes nature itself give way to the vastness of his Expence. And after all this shall a Prince so Wise, so intent upon his affairs, be thought to make all these preparations to Saile over Land, and fall on the back of Hungary, and Batter the walls of Kaminit’z, or is it possible he should oversee his Interest in seizing of Ireland, a thing so feasible to him, if he be master of the Seas, as he certainly now is; and which when attained gives him all the Southern, Mediteranian, East and West India Trade, and renders him both by Scituation and excellent Harbors, perpetual Master of the Seas without Dispute.
My Lords, to conclude this point, I fear the Court of England is greatly mistaken in it, and I do not wish them the reputation of the concurrance of the Kingdom: And this out of the most sincere Loyalty to his Majesty, and love to my Nation.
My Lords, I have but one thing more to trouble you with, and that peradventure is a consideration of the greatest weight and concern, both to your Lordships, and the whole Nation. I have often seen in this House, that the Arguments, with strongest reason, and most convincing to the Lay Lords in General have not had the same effect upon the Bishops’ Bench; but that they have unanimously gone against us in matters, that many of us have thought Essential and undoubted Rights; And I consider, that ’tis not possible, that Men of great Learning, Piety, and Reason, as their Lordships are, should not have the same care of doing right, and the same conviction, what is right upon clear reason offered, that other your Lordships have. And therefore, my Lords, I must necessarily think, we differ in principles; And then ’tis very easie to apprehend what is the clearest sense to men of my principle, may not at all perswade or affect the Conscience of the best man of a different one. I put your Lordships the case plainly, as ’tis now before us. My principle is, That the King is King by Law, and by the same Law that the poor Man enjoys his Cottage; and so it becomes the concern of every man in England, that has but his liberty, to maintain and defend, to his utmost, the King in all his Rights and Prerogatives. My Principle is also, That the Lords House, and the Judicature and Rights belonging to it, are an Essential part of the Government, and Established by the same Law; The King governing and administering Justice by His House of Lords, and advising with both His Houses of Parliament in all important matters, is the Government I own, am born under, and am obliged to. If ever there should happen in future ages (which God forbid) a King governing by an Army, without His Parliament, ’tis a Government I own not, am not obliged to, nor was born under. According to this Principle, every honest man that holds it, must endeavour equally to preserve the frame of the Government, in all the parts of it, and cannot satisfie his Conscience to give up the Lords House for the Service of the Crown, or to take away the just rights and priviledges of the House of Commons to please the Lords. But there is another Principle got into the World, my Lords, that hath not been long there; for Arch-Bishop Laud was the first Author that I remember of it: And I cannot find, that the Jesuites, or indeed the Popish Clergy hath ever owned it, but some of the Episcopal Clergy of our British Isles: and ’tis withal, as ’tis new, so the most dangerous destructive Doctrine to our Government and Law, that ever was. ’Tis the first of the Cannons published by the Convocation, 1640. That Monarchy is of Divine Right. This Doctrine was then preached up, and maintained by Sibthorp, Manwaring,4 and others, and of later years, by a Book published by Dr. Sanderson, Bishop of Lincoln, under the name of Arch-Bishop Usher,5 and how much it is spread amongst our Dignified Clergy, is very easily known. We all agree, That the King and His Government, is to be obeyed for Conscience’ sake; and that the Divine Precepts, require not only here, but in all parts of the World, Obedience to Lawful Governours. But that this Family are our Kings, and this particular frame of Government, is our lawful Constitution, and obliges us, is owing only to the particular Laws of our Country. This Laudean Doctrine was the root that produced the Bill of Test6 last Session, and some very perplexed Oaths7 that are of the same nature with that, and yet imposed by several Acts of this Parliament.
In a word, if this Doctrine be true, our Magna Charta is of no force, our Laws are but Rules amongst ourselves during the King’s pleasure. Monarchy, if of Divine Right, cannot be bounded or limited by human Laws, nay, what’s more, cannot bind itself; and All our Claims of right by the Law, or Constitution of the Government, All the Jurisdiction and Priviledge of this House, All the Rights and Priviledges of the House of Commons, All the Properties and Liberties of the People, are to give way, not only to the interest, but the will and pleasure of the Crown. And the best and worthiest of Men, holding this principle, must Vote to deliver up all we have, not only when reason of State, and the separate Interest of the Crown require it, but when the will and pleasure of the King is known, would have it so. For that must be, to a man of that principle, the only rule and measure of Right and Justice. Therefore, my Lords, you see how necessary it is, that our Principles be known, and how fatal to us all it is, that this Principle should be suffered to spread any further.
My Lords, to conclude, your Lordships have seen of what consequence this matter is to you, and that the appointing a day to consider, is no less than declaring yourselves doubtful, upon second and deliberate thoughts, that you put yourselves out of your own hands, into a more than a moral probability, of having this Session made a precedent against you. You see your Duty to yourselves and the People; and that ’tis really not the interest of the House of Commons, but may be the inclination of the Court, that you loose the Power of Appeals; but I beg our House may not be Felo de se,8 but that your Lordships would take in this affair, the only course to preserve yourselves, and appoint a day, this day 3 weeks, for the hearing Dr. Shirley’s Cause, which is my humble motion.
Henry Scobell, Power of the Lords and Commons in Parliament
H. S. [Henry Scobell, d. 1660]
In point of
At the Request of a Worthy Member of the House of Commons.
LONDON, Printed in the Year, 1680.
This short history of the power of Parliament from the time of the Norman Conquest and, in particular, the role of the Commons as a court is customarily attributed to Henry Scobell, clerk of Parliament during the Interregnum.
Scobell died twenty years before its publication. But if the attribution is correct in 1648 its author had been granted the clerkship of the Parliament for life. Scobell also served as censor and was therefore responsible for licensing newspapers and political pamphlets. With Oliver Cromwell’s eviction of the Rump Parliament in 1653 Scobell became assistant secretary to the Council of State and, when Oliver’s first parliament convened, he was reappointed clerk. However, he was less popular with subsequent parliaments. In 1656/57 he was replaced as clerk, and the following year the restored Rump Parliament took exception to some of his past actions. Its members ordered a bill brought in to repeal the act granting Scobell his lifetime appointmentas clerk and began to investigate his behavior during the 1650s. Scobell died in 1660.
During the 1650s Scobell had written and published a series of tracts on parliamentary methods, proceedings, and acts, some of which were republished after his death. The tract reprinted here fits into this genre. Scobell had, at least once before, signed a tract with his initials. There is no record this tract appeared during Scobell’s lifetime. It may have been a report he had composed that remained many years in manuscript. The motive of its publication in 1680 was to enhance the prestige of Parliament and the House of Commons as a court at a crucial time. Its publication coincided with the campaign to boost the status of Parliament as part of the effort to exclude the Catholic Duke of York from the succession. Two further editions of the tract appeared after the Glorious Revolution.
The Power of the Lords and Commons in Parliament, &c.
To give you as short an account of your Desires as I can; I must crave leave to lay you, as a Foundation, the Frame or First Model of this State.
When, after the Period of the Saxon Time, Harald had advanced himself into the Royal Seat; the Great men, (to whom but lately he was no more than Equal either in Fortune or Power) disdaining this Act of Arrogancy and Ambition, called in William Duke of Normandy, (the most Active Prince of any in these Western Parts, and renowned for the Victories that he had successfully Atchieved against the French King, then the most Potent Monarch in Europe).
This Duke led along with him to this work of Glory many of the Younger Sons of the best Families of Normandy, Picardy and Flanders; who, as Voluntiers, accompanied the undertaking of this Fortunate Man.
The Usurper being Slain, and the Crown, by War, gained; to secure Certain to his Posterity what he had so Suddenly gotten, he shared out his Purchase retaining in Each County a Portion, to support the Soveraign Dignity, which was styled Demenia Regni; (now the Ancient Demesnes) and assigning to others his Adventurers such Proportions, as engaged to himself the Dependency of their Personal Service (such Lands only excepted, as, in Free Alms, were allotted to the Church). These were termed Barones Regis, or the King’s Immediate Free-holders; for the word Baro imported then no more.
As the King to These, so These to their Followers, Subdivided part of their Shares into Knights-Fees, and their Tenants were called, Barones Comitis, or the like; for we find, as in the King’s Writ, so in Theirs, Baronibus suis al François & Anglois, to their Barons, as well French as English; the Royal Gifts, for the most part, extending to whole Counties or Hundreds; an Earl being Lord of the One, and a Baron of the Inferiour Donations to Lords of Townships or Mannours.
And as the Land, so was also the Course of Judicature divided, even from the Meanest to the Highest Portion; each Several had his Court of Law, preserving still the Custom of our Ancestors the Saxons, who jura per Pagos reddebant, distributed Justice throughout each Village. And these were termed Court Barons, or the Freeholders’ Court, (twelve usually in number) who with the Thame, or Chief Lord, were Judges.
The Hundred-Court was next, where the Hundredis, or Aldermannus (Lord of the Hundred) with the chief Lord of each Township within their Limits, judged. God’s People observed This form; in the Publick Centureonis & Decam Judicabant Plebem omni tempore, Hundreds and Decennaries administering Justice to the People at all times.
The County-Court, or Generale Placitum, was the next. This was to supply the Defect, or remedy the Corruption of the Inferiour: For Ubi Curiae Dominorum probantur defecisse, pertinet ad Vice Comitem Provinciarum; where the Hundred-Court was found Defective, matters were referred to the Lord of the County. The Judges here were Comites & Barones Comitatus, qui Liberas, in hoc. Terras habeant; Earls and Barons of the County, that were Free-holders in the same.
The last and Supreme Court, and proper to our Question, was Generale Placitum apud London, the General Council at London; Universalis Synodus, the Universal Synod, in Charters of the Conquerour, Capitalis Curiae, the Capital Court; by Glanvil, Magnum & Commune Concilium coram Rege, & Magnatibus suis; the Great and Common Council before the King and his Nobles.
In the Rolls of Henry the Third, It is not Stative, but summoned by Proclamation. Ediciture Generale Placitum apud London (says the Book of Abingdon) whither Duces, Principes, Satrapre, Rectores, & Causidici ex omni parte confluxerunt ad istam Curiam, saith Glanvil, the General Assembly was called at London; whither Dukes, Princes, Peers, Rectors, and Lawyers resorted from all Quarters: And Causes were referred propter aliquam dubitationem quae emergit in Comitatu cum Comitatus nescit dijudicare; upon any Question or Difficulty which the County Court was not able to solve. Thus did Ethelweld, Bishop of Winchester, transfer his Suit against Leostine from the County ad Generale Placitum, or the General Assembly. In the time of King Etheldred, Queen Edgine against Goda, from the County appealed to King Etheldred at London, Congregatis Principibus & Sapientibus Angliae, where the Princes and Wise Men of the Land were met together. A Suit between the Bishops of Winchester and Durham, in the time of S. Edward, Coram Episcopis & Principibus Regni in praesentia Regis ventilata & finita; was handled and determined by the Bishops and Princes of the Realm in the presence of the King. In the 10th year of the Conquerour, Episcopi, Comites & Barones Regni potestate adversis Provinciis, ad Universalem Synodum, pro causis audiendis & tractandis, convocati; the Bishops, Earls and Barons of the Realm, &c. being assembled at the Universal Council to hear and determine Controversies, (says the Book of Westminster). And This continued all along in the succeeding King’s Reign, until toward the end of Henry the Third.
As this Great Court or Council, (consisting of the King and Barons) ruled the important Affairs of State, and controlled all Inferiour Courts; so were there certain Officers, whose transcendant Power seemed to be set for the circumscribing the Execution of the Prince’s Will; as the Steward, Constable, and Marshal, fixed upon Families in Fee, for many Ages. They (as Tribunes of the People, or Ephori among the Lacedemonians) growing by unmanly Courage terrible to Monarchy, fell at the feet and mercy of the King, when the daring Earl of Leicester was slain at Evesham.
This Chance, and the dear Experience Henry the Third himself had made at the Parliament at Oxford, in the fortieth year of his Reign; together with the Memory of the many straits his Father1 was driven unto, especially at Runny-Mead near Stanes; brought this King to begin what his Successors fortunately finished; in lessening the Strength and Power of his Great Lords. And this was effected by searching into the Regality they had usurped over their peculiar Soveraigns, whereby they were found to be (as the Book of St. Albans termeth them) quot Domini, tot Tyranni, how many Lords, so many Tyrants; and by weakening that Influence and Sway which they carried in the Parliaments, by commanding the Service of many Knights, Citizens, and Burgesses, to the Great Council.
Now began the frequent sending of Writs to the Commons; Their assent not only used in Money, Charge, and making Laws, (for, before, all Ordinances passed by the King and Peers) but their Consent also in Judgements of all Qualities whether Civil or Criminal. In proof whereof I will produce some few succeeding Precedents out of Record.
When Adamor (that proud Prelate of Winchester, the King’s Half Brother) had aggrieved the State by his formidable Insolence; he was banished by the joint sentence of the King, the Lords, and Commons. And this appeareth expressly, by the Letter sent to Pope Alexander the Fourth, who expostulated a Revocation of him from Exile because he was a Church-man, and so not Subject to any Censure. In This the answer is Si Dominus Rex aut Majores Regni hoc vellent (meaning his Revocation) Communitas tamen, Ipsius Ingressum in Angliam iam Nulla tenus sustineret; though the King and Lords should consent to his Revocation, yet would the Commons never allow of it. The Peers Subscribe this Answer with their Names, and Petrus de Mountford vice Locius Communitatis, as Speaker, or Proctor of the Commons.
For by that Style Sir John Tiptoft (Prolocutor) affirmeth under his Arms the Deed of Entail of the Crowns by King Henry the fourth, in the eighth year of his Reign, for all the Commons.
The Banishment of the two Spencers in the fifteenth of Edward 2d. Prelates, Comites, & Barones, & les autres Peeres de la Terre, & Communes de Royaulme, the Prelates, Earles, and Barons, and the rest of the Peers of the Realm, and Commons of the Land, do give Consent and Sentence to the Revocation and Reversement of the Former Sentence; the Lords and Commons accord; and so it is expressed in the Roll.
In the first of Edward the 3d. when Elizabeth the Widdow of Sir John de Burgo, complained in Parliament, that Hugh Spencer the Younger, Robert Boldock, and William Cliffe his Instruments had by Duresse forced her to make a Writing to the King, whereby she was despoiled of all her Inheritance; Sentence is given for her in these words; Pur ceo que avis est al Evesques, Counts, & Barons, & autres Grandes, & a tout Cominalte de la Terre, que le dit script est fait contre Ley & tout manere de Raison, si faist le dit Escript per agard del Parliament dampue alloquens al livre a la dit Elizabeth, Forasmuch as it appeareth unto the Bishops, Earls, and Barons, and all the Commonalty of the Land, that the said Writing was made against all Law and Reason, it is adjudged by Parliament, &c.
In An. 4. Edward 3. it appeareth by a Letter to the Pope, that to the Sentence given against the Earl of Kent the Commons were Parties, as well as the Lords and Peers; for the King directed their Proceedings in these words, Comitibus Magnatibus, Baronibus, & aliis de Communitate dicti Regni ad Parliamentum illud congregatis iniunximus; ut super his discernerent & judicarent, quod Rationi & Justitiae conveniret, habere prae Oculis solum Deum, qui eum concordi unanimi sententia tanquam Reum criminis laesae Majestatis morti adjudicarent eius sententia, &c. We have commanded the Earls, Peers, Barons, and others of the Commonalty of the said Realm assembled in Parliament, to determine in this matter according to Reason and Justice, having only God before their Eyes; and by an unanimous consent they have sentenced him to death, as guilty of High-Treason.
When in the 50th year of Edward 3. the Lords had pronounced the Sentence against Richard Lions otherwise than the Commons agreed, they appealed to the King, and had Redress, and the Sentence entered to their Desires.
When, in the first Year of Richard the Second, William Weston, and John Jennings, were Arraigned in Parliament for surrendering certain Forts of the King’s; the Commons were Parties to the Sentence against them given, as appeareth by a Memorandum annexed to That Record. In the first of Henry the Fourth, although the Commons referre, by Protestation, the pronouncing of the Sentence of Deposition against King Richard the Second unto the Lords; yet are they equally Interressed in it; as appeareth by the Record: For there are made Proctors, or Commissioners, for the whole Parliament, one Bishop, one Abbott, one Earl, one Baron, and two Knights (Gray and Erpingham) for the Commons. And to infer that because the Lords pronounced the Sentence, the point of Judgment should be only Theirs, were as absurd, as to conclude that no Authority was vested in any other Commissioner of Oyer and Terminer, than in the Person of that Man only that speaketh the Sentence.
In the 2d. of Henry 5. The Petition of the Commons importeth no less than a Right they had to Act and Assent to all things in Parliament; and so it is answered by the King. And had not the adjourned-Roll of the Higher-House been left to the sole Entry of the Clerk of the Upper-House, (who, either out of neglect to observe due Form, or on set purpose to obscure the Commons-Right, and to flatter the Power of those who he, immediately served, omitted them), there would have been frequent Examples of all Times to clear This doubt, and to preserve a just Interest to the Commonwealth. And how conveniently it suits with Monarchy to maintain This Form, lest others of that well-framed Body knit under one Head, should swell too Great and Monstrous, may be seen with half an Eye; it being (in my Opinion) at least equally Liable to suffer a-fresh under an Aristocracy, as a Democracy.
SIR, I am Your most humble Servant. H. S.
Earl of Shaftesbury, Two Seasonable Discourses
[Anthony Ashley Cooper, Earl of Shaftesbury, 1621-1683]
Concerning this present
Printed in the Year, 1675.
This tract has been attributed to the Earl of Shaftesbury, then leader of the opposition and a staunch critic of both Court policy and the long, Cavalier Parliament.
Shaftesbury was intent upon getting the Cavalier Parliament, sitting since 1661, finally dissolved. Many of its members were in the pay of the Court and clearly it was no longer representative of the country. Shaftesbury was not disinterested in the matter. He had been dismissed from the Privy Council in May 1674 and promptly became a leader of the opposition in Parliament. He hoped fresh elections would give his side a majority. When Parliament reconvened in October 1675, he made dissolution a priority. Shaftesbury had a penchant for summoning up serious constitutional issues to achieve political ends.In this instance legitimate and probing questions were raised about the ability of a parliament sitting for a great many years to carry out its constitutional function. On 20 November 1675 Lord Mohun, one of Shaftesbury’s opposition group, moved in the Lords for a dissolution. After a heated debate the motion was defeated by two votes. Two days later Parliament was prorogued although for the unprecedented period of fifteen months. In 1677 when it reconvened, Shaftesbury would claim this long prorogation made it unlawful and attempted once again to force a dissolution. His assertion of illegality landed him in the Tower of London, where he was held for a year.
The tract reprinted here appeared in two editions. Again the tactic was used of publishing and publicizing parliamentary debate.
The Debate or Arguments for Dissolving This Present Parliament, and the Calling Frequent and New Parliaments.
As they were delivered in the House of Lords, November the 20th. 1675.
That it is according to the Constitution of the Government, the ancient Laws and Statutes of this Realm, that there should be frequent and new Parliaments, and the practice of all Ages, till this last, hath been accordingly; Parliaments, both long before and after the Conquest, were held three times a year, viz. Easter, Whitsontide, and Christmas, during the space of Eight Days for each time, and so continued with some variations, as to the times of Calling, and length of Holding; but always very short untill the Reign of Edward 3 in the fourth year of whose Reign there was a Law made, That Parliaments should be holden every year once, or more often, and how this Law is to be understood, whether of a New Parliament every Year, or calling the Old, is most manifest, by the practice, not only of all the Ages before, but of some Hundred of Years since that Law: Prorogations or Long Adjournments, being a thing never heard of untill latter Years.
And it is most unreasonable, that any particular number of Men should for many Years ingross so great a Trust of the People, as to be their Representatives in the House of Commons; And that all other the Gentry; and the Members of Corporations of the same Degree and Quality with them, should be so long excluded. Neither is it agreeable with the nature of Representatives to be continued for so long a time; and those that choose them, not to be allowed frequent opportunity of changing the hands; in which they are obliged to put so great a trust. The mutual correspondence and Interests of those who choose and are chosen; admitting of great variations in length of time. How many in this present House of Commons are there, whose business and acquaintance has not given them the occasion of the correspondence of one Letter, (for these many Years) with any Person of those places for whom they serve? How many may there be in future Parliaments, if continued as long as This, that may be Protestants when they are chosen, and yet may come in so many Years justly to be suspected to have changed their Religion? Nay, How many in this present Parliament are there, who were by the People when they were of the same adequate Interest with them, and in length of time, by the Favour and Goodness of the Prince, and their own great Merits, are become Officers in the Court, and about the Revenue? This is not spoken to reflect on them, for many of them have behaved themselves very worthy of those places; but yet themselves cannot say, that they are equally as free to act for those that choose them, as they were before: Nor are they of the same Interest, as when they were chosen; for now they gain, and have the advantage by the People’s payments. And if they should say, They are the same Men they were, We may call their Fellow Members that have sat with them to Witness, whether the Proverb be not true, that Honores mutant mores,1 whether they have the same Opinion, and the same Freedom they had before. Nay, may it not be said without offence, that even in this House of Commons, there are not a few, who, when they were chosen, were lookt upon as Men of Estates; and are either since grown or discovered to be of that indigent condition, that they are much fitter to receive the publick maintenance, than give the publick money; and it may be charitably supposed, that those Gentlemen are so modest, as to be willing to lay down, if they could, the publick Trust. But ’tis most certain, that those places they serve for, would not be willing to continue them in it. There is no question, but ’tis the King’s undisputed Prerogative to call and end Parliaments when he please, and no man, nor number of men can limit him a time; but the greatest Prince cannot avoid the being limited by the nature of things; Representatives of the People are necessary to the making Laws, and there is a time when it is morally demonstrable, that men cease to be Representatives, there being Circumstances and Proprieties that distinguish everything as well as Person in the World. So that to conclude this head, We Owe the Prince the observance of his time and place both for calling and duration of Parliaments, and the Prince owes us, not only the frequencies of Parliaments, but that our Representations should be preserved to us in them.
And further, if you consider the constitution of our Government, where the King as Head (from whom all the vital and animal Spirits are diffused through the Body) has the care of all, whose Interest is to seek the welfare of the whole; all being his, the strength of the Nation being his strength, the riches his riches, the glory and honour, his glory and honour, and so on the contrary. But least passion mistake flattery, or the ill designs of those about the Prince, should make him grow cross to his Real, and follow a destructive imaginary Interest: There is an Estate of Hereditary Nobility, who are by Birth-right the Councellors of the Kingdom, and whose Interest and Business it is, to keep the Ballance of the Government steady, that the Favourites and great Officers, exceed not their bounds, and oppress the People, that Justice be duely Adminstered, and that all parts of the Government be preserved entire. Yet even These may grow insolent (a Disease Greatness is liable to) or may by Offices, Dependencies, hopes of Preferment, and other accidents, become, as to the major part of them, rather the obsequious flatterers of the Court, than true supporters of the publick and English Interest, and therefore the Excellence of our Government, affords us another Estate of Men, which are the Representatives of the Free-holders, Cities, principal Burroughs, and Corporations of England, who by the Old Law, were to be new chosen once a year, if not oftener, so that they perfectly gave the sence of those that chose them, and were the same thing as if those were present that chose, they so newly coming from them, and so quickly returning to give an account of their Fidelity, under the penalty of shame, and no further Trust.
Thus you have in our English Government, the House of Commons affording the Sence, the Mind, the Information, the Complaints, the Grievances, and the desires of all those People for whom they serve, throughout the whole Nation. The People are thus secure, no Laws can be made, nor Money given, but what themselves, though at home, fully consent and agree to. The Second Estate in this Government, is the Lords, who are the Councill, the Wisdom, and Judgment of the Nation, to which their Birth, Education, and constant imployment, being the same in every Parliament, prepares and fits them. The last, and supream of all, is the King, One who gives Life and Vigour to the proceedings of the other Two; The Will and Desires of the People, though approved by the Wisdom and Judgment of the Lords, are Abortive, unless he bids them be an Act.
Human reason can hardly contrive a more excellent Government. But if you will alter this Government, in any of the Three Parts of it, the disorders and Inconveniencies incident to the nature of such alteration, must necessarily follow; As for instance, the long continuance of any such as are entrusted for others, especially of such as have so great a power over the Purse of the Nation, must necessarily produce Caballs, and Parties, and the carrying on of private Interests and Court-Factions, rather than the publick good, or the true Interest either of the King or Kingdom. How vastly is the priviledge of a Parliament man encreased since the middle of the Reign of Henry 8.? Before, it was several times agreed by all the Judges, and observed as the Law, That a Member and his Servants, were exempted only from Arrests and Outlawries, but might be impleaded, sued, and Attached by his Land and Goods; yet now they must not be sued in any Case, nor dispossessed of anything during the time of Priviledge; nay, these two last Sessions the Priviledge must extend to exempt them even from the Judicature of Parliament itself: As also before the same King’s Reign the House of Commons never thought of Judicature, as being in the nature of their Constitution uncapable of it. But since they are not only become Judges of their own Priviledges, condemning and imprisoning their fellow-Subjects at pleasure, and without an Oath, and also Judges of all Elections, by which very often they, and not the places, chuse their fellow-members: But now ’tis come to that, that the House of Commons pass sentence on the Lords’ proceedings, make new crimes, and add Preinstruments to them by their own Authority. If you will ask the reason of this change, ’tis plain that Parliaments began in Henry 8’s time to be longer than they ought, That Prince knowing that long Parliaments were fitted to make great Changes, they have been too frequent since, but never of that length as this. Besides all this, the long continuance of Representatives renders them liable to be corrupted and won off from the Publique-Interest; it gives them time to settle their Cabals and Interest at Court, and takes away the great Security the Nation has; that if it be possible to happen that the Spiritual Lords because of their great dependence on the Crown, the Popish Lords being under the pressure of so severe Laws, together with the Court Lords and great Officers should in any future Age make up a greater number of the House of Lords, and should pass things very prejudicial to the Publick, yet all should prove ineffectual, and the Nation remain safe in an House of Commons lately chosen that have not had time to learn new Sentiments, or to put off their old Principles at a good Market. How great has been the modesty of this present House of Commons, that having had the Purse of the Nation thus long in their hands, as being those that first begun the Grants of Subsidies and Aids to the King, and so by consequence have all the Addresses made to them, whenever the wants of the Crown (which in this active Age are very often) require it, that they have not made use of it to the prejudice of the Publick, or to their own advantage. It was a very high Temptation, and might easily have rendered them in their own Opinion more than Lords, and they are rather to be commended that they insisted on no higher Terms with the Lords House, than wondered at for what they did. Considering the matter, ground and the circumstances wherein they stood, and yet they were certainly mistaken, and not a little forgot themselves, when they would not allow the Lords House a power of lessening the Summs in any Bill of Subsidie or Aid that they had once set;2 which was not only directly contrary to the Interest of the People that chose them, but against the ancient and express Rule and Custom of Parliament, whereby it is clear if the Commons grant five Subsidies, and the Lords agree but to four, that Bill of Subsidie need not be sent down to the Commons for their consent to such an alteration. And they certainly were grown very high in their own Opinion, and had a very low esteem for the Lords, when they neglected the safety of their best Friends in that House, and did almost with scorn refuse the passing of the Bill for the more fair and equal Trial of Peers, which in several Sessions was sent down to them. How great were the apprehensions of all sober and wise Men at every meeting of this present Parliament during these late years, and how much is to be ascribed to the goodness of our Prince, and to the vertue of the Members of this present House of Commons, that Honours, Offices, Pensions, Money, Imployments and Gifts had not been bestowed and accepted, and the Government, as in France, Denmark and other Countries, made absolute and at the will of the Prince? How easie this may be done in future Ages under such Princes, and such an House of Commons as may happen, if long and continued Parliaments be allowed for Law, may be made some measure of by this, where though the Prince had no design, and the Members of the House of Commons have shewed so great Candor and Self-denial, yet the best Observers are apt to think that we owe it to the strong and opposite Factions at Court, that many things of great Alterations have not passed.
And moreover, it cannot be passed over with silence, nor considered without great thoughts of heart, to what a price a Member of the House of Commons place is come. In former times when Parliaments were short and frequent, The Members constantly received their wages both of their Counties and Burroughs; many of the poorer Burroughs petitioned to be excused from sending Members, as not being able to bear their charge; and were so. Laws were made in favour of the Gentry, that Corporations should compel none but their Freemen of their own Town to serve for them; Nay you shall find in all the ancient Returns of Writs for Knights of the Shires, their Sureties for their appearance returned with them. But now the case is altered, £.1500 and £.2000 and lately £.7000 is a price Men pay to be intrusted: ’Tis to be hoped the Charity of those worthy Persons, and their Zeal for the Publique Interest has induced them to be at this Expence; But it were better to be otherwise, and there is a scurvy English Proverb, That Men that buy dear, cannot live by selling cheap. And besides all these, the very priviledge of the Members, and of those they protect in a Parliament of so long duration, is a pressure that the Nation cannot well support itself under; So many thousand Suits of Law stopt, so vast a Sum of Money withheld from the right owners, so great a quantity of Land unjustly possessed, and in many Cases the length of time securing the possession, and creating a Title. And ’tis an Observation not unworthy the making, that all this extent of Priviledge beyond its due bounds has first risen from the Members of the House of Commons; That House to this day pretends to forty days’ priviledge before and after Parliament, the House of Lords but twenty, and yet the priviledge of Parliament is the same to both: and if the House of Commons obtain their forty days to become Law and Custom, the Lords will certainly enjoy the same priviledge. But the cure of this Evil is very easy in frequent and short Parliaments, The Members will affect no larger priviledges than are necessary and useful to them, for such as oppress and injure others cannot expect a second choice, and the present time is but short.
To all this there are two Objections that make a great sound, but have really nothing of weight in them; The first Objection is, That the Crown is in danger if you call a new Parliament. If those men be in earnest that urge this, it were to be wished they would consider well what are the Men are likely to be chosen; and they are not difficult to be guest at through the whole Kingdom, Men of Quality, of Estates, and of the best Understanding. Such will never affect change, or disturb the King’s Government. A New Parliament will be the Nation, and that will never stick at finall matters to render themselves acceptable to their Prince. Would the King have acquaintance with his People? This is his way. Would he have yet more the love of his People? Thus he is sure to have it. Would the King have a considerable sum of Money to pay his Debts and put him at ease? Thus he cannot fail of it, nay he shall have it as a pledge of endearment between him and his people, they give it themselves, and they know the King receives it as from them. The English Nation are a generous people, and have at all times exprest themselves ready to supply even the Humours, and Excesses of their Princes, and some of the best beloved Princes we have had were such as by Warr, or otherwise put us to most Expence: Witness Edward the 1st, Edward the 3d, and Henry the 5th; but then always they were satisfied that the Honour of the Nation was preserved, and whatever private or personal Excesses the Prince had, yet the Nation was secure, there was no design upon them, neither should their money or their strength be used against them. All this is the happiness of our present state under our most gracious King. But how shall the People know and be secure it is so, but by those they annually send up to Parliament from amongst themselves; Whereas if the King should have a great Sum of Money given by this Parliament, it would be lookt upon as theirs, not as the People’s gift, and the best of Men with their Circumstances cannot avoid the suspicion, when they give much to have received some; and men will not so chearfully undergo the Burthen of a Tax, and their own Wants in the time of this general Poverty, when they apprehend others have the Thanks, and perhaps the Reward of their Sufferings.
The second Objection is with great apprehensions and passion urged by the Bishops; That the Church and this Parliament fall together. Which Objection how vain it is you will easily confess, if (as was said before) the persons that are like to be chosen be considered, The dissenting Protestants may very probably find more Favour and ease, but the Church can never suffer, either in her Lands or Dignities she now enjoys, by an House of Commons consisting of Men of the best Quality and Estates in England, as the next certainly will do. But, on the other side, what do the Bishops mean by this Assertion? Most certainly it is not their intent to make the Interest of the Church and the Nation direct opposit and inconsistent one with the other; and yet in saying this they confess, that this House of Commons are not the true Representatives of those they serve for; that the People and they are of different minds; that if they were to choose again, they would choose other men of other sentiments. And it must be confessed that whatever is not natural is by force, and must be maintained by force. A standing Parliament and a standing Army are like those Twins that have their lower parts united, and are divided only above the Navel; they were born together, and cannot long outlive each other. Certainly that man is no friend to the Church that wishes it a third incorporated with those two.
To conclude this Debate, the continuance of this present Parliament any longer is unpracticable; the breach this House of Commons has made upon the Lords is as unlikely to be repaired with these present Men, as it is to be renewed by another House of Commons of a new Election. If you consider the Power, the Courtship, and the Addresses that these Men have for so many years enjoyed and received, they may almost be forgiven if they think themselves greater Men than the Lords in the higher House; besides it is very well known that many of the ablest and most worthy Patriots amongst them have carried this Difference to the greatest height with this only design, that by this means they might deliver the Nation from the danger and pressure of a long continued Parliament: Whereas a new chosen House of Commons, especially if it were fixt, and known that it could not remain long, could not be apprehended to have any affectation to exceed their just bounds, nor to renew a Contest, where the Interest of the People is manifestly on the Lords’ side; for besides the undoubted Right and constant Practice that the Lords enjoy in the Case of Appeals from Courts of Equity, all other Expedients when well considered, give the Crown, the Favourites and Ministers the power over every man’s Estate in England.
Thus you see ’tis the Interest of all sorts of men to have a New Parliament; This will give the King constant and never-failing Supplies with the hearts and good-will of his People: This will not only preserve the Church in the Honours, Dignities and Revenues she now enjoys, and make her the Protectrix and Asylum of all the Protestants through Europe, but will also encrease the Maintenance of the Ministry in Corporations and great Towns, which is now much wanting, and of great concern to the Church. This will procure the dissenting Protestants Ease, Liberty, and Protection. The Papists may justly expect by this to be delivered from that grievous pressure of penal Laws they lie under, if they can be contented with being deprived of access to Court, bearing Offices or Arms. The great Officers and Ministers may under this enjoy their places undisturbed and in quiet, and be secure with a moderate Conduct, and reasonable Condescentions to attain that in a new Parliament which they have by experience found is impossible in the old. In a word, there is not to be imagined an Interest against this, unless there be an inveterate party still remaining in our World, who to compass their Revenge, and repair their broken Fortunes, would hope to see the Act of Oblivion set aside, and this happy Monarchy turned into an absolute, Arbitrary, Military Government; But Charity bids us hope there are no such Men.
Earl of Shaftesbury, A Letter from a Person of Quality
[Anthony Ashley Cooper, Earl of Shaftesbury, 1621-1683]
From a Person of
Printed in Year, 1675.
This anonymous pamphlet records the extraordinary debate that took place in the House of Lords in April 1675 over the nonresisting test bill. It provides a rare opportunity to eavesdrop on discussion in the Lords on a matter of great constitutional importance. According to the bill’s opponents, had the proposed oath been instituted it would have frozen the government of both church and state and made the civil government far more authoritarian. The tract was published early in the following session and caused an uproar. It is usually attributed to Shaftesbury although on occasion to his secretary John Locke instead. Locke denied authorship. If not personally written by Shaftesbury, it was most likely dictated by him to Locke or written under his direction and scrutiny.
The wrangle treated in the tract began on 15 April 1675 when a bill was introduced into the House of Lords that would have required all members of Parliament and other officeholders to swear that it was unlawful “on any pretence whatsoever” to take arms against the king or those commissioned by him or to endeavor “any alteration in the government in church or state as it is by law established.” The bishops had suggested the imposition of such a loyalty oath the previous February. Had it become law it would have restricted legislative initiatives and prevented fundamental change or reform in church or state. Moreover, there were well-founded suspicions that the bill was meant to justify a standing army.
The nonresisting test bill was vigorously opposed by a substantial group of lords led by the Earl of Shaftesbury. The passionate debate in the House of Lords continued for seventeen days—the Lords oftensitting until nine at night, sometimes until midnight. The king regarded the bill of such moment that he was personally present during the discussions. Despite the bitter opposition to it, a group of peers and bishops managed to win approval for all the main clauses in the bill although in one instance only by a single vote.
Unable to defeat the bill in the Lords, its opponents’ attention turned to the Commons. There the bill would probably have passed had it not been overshadowed by the dispute between the two houses over their respective jurisdiction in the case of Shirley v. Fagg. In fact, opposition politicians are believed to have exacerbated that quarrel chiefly to block the Commons’ consideration of the test bill. If that was the intent they succeeded. The jurisdictional dispute reached such a pitch that all business ground to a halt, and on 9 June the king felt constrained to prorogue Parliament. The attempt to pass the nonresisting test was dropped.
The “Letter from a Person of Quality, to His Friend in the Country” appeared in a single edition early in November 1675. It was enormously effective in galvanizing public opinion but outraged many members of Parliament because it violated the confidentiality of parliamentary debate. On 8 November a complaint was lodged against the tract in the House of Lords. On that House’s orders it was publicly burnt two days later and a committee established to enquire into its author, publisher, and printer. Its author was never determined. A single answer to the tract appeared in 1676 written by Marchamont Nedham, a journalist employed by the Court to aim literary darts at the opposition.
A Letter from a Person of Quality, to His Friend in the Country.
This Session being ended, and the Bill of the Test1 neer finished at the Committee of the whole House; I can now give you a perfect Account of this STATE MASTERPIECE. It was first hatcht (as almost all the Mischiefs of the World have hitherto been) amongst the Great Church Men, and is a Project of several Years’ standing, but found not Ministers bold enough to go through with it, until these new ones, who wanting a better Bottom to support them, betook themselves wholly to this, which is no small Undertaking if you consider it in its whole Extent.
First, to make a distinct Party from the rest of the Nation of the High Episcopal Man, and the Old Cavalier, who are to swallow the hopes of enjoying all the Power and Office of the Kingdom, being also tempted by the advantage they may receive from overthrowing the Act of Oblivion,2 and not a little rejoicing to think how valiant they should prove, if they could get any to fight the Old Quarrel over again; Now they are possest of the Arms, Forts, and Ammunition of the Nation.
Next they design to have the Government of the Church Sworne to as Unalterable, and so Tacitely owned to be of Divine Right, which though inconsistent with the Oath of Supremacy;3 yet the Church Men easily break through all Obligations whatsoever, to attain this Station, the advantage of which, the Prelate of Rome hath sufficiently taught the World.
Then in requital to the Crown, they declare the Government absolute and Arbitrary, and allow Monarchy as well as Episcopacy to be Jure Divino, and not to be bounded, or limited by human Laws.
And to secure all this they resolve to take away the Power, and opportunity of Parliaments to alter anything in Church or State, only leave them as an instrument to raise Money, and to pass such Laws, as the Court, and Church shall have a mind to. The Attempt of any other, how necessary soever, must be no less a Crime than Perjury.
And as the topstone of the whole Fabrique, a pretence shall be taken from the Jealousies they themselves have raised, and a real necessity from the smallness of their Partie to encrease, and keep up a standing Army, and then in due time the Cavalier and Church man, will be made greater fools, but as errant Slaves as the rest of the Nation.
In order to this, The first step was made in the Act for Regulating Corporations,4 wisely beginning, that in those lesser Governments which they meant afterwards to introduce upon the Government of the Nation, and making them Swear to a Declaration, and belief of such propositions as themselves afterwards upon debate, were enforced to alter, and could not justifie in those words; so that many of the Wealthiest, Worthiest, and Soberest Men, are still kept out of the Magistracy of those places.
The next step was in the Act of the Militia,5 which went for most of the chiefest Nobility and Gentry, being obliged as Lord-Lieutenants, Deputy-Lieutenants, &c. to Swear to the same Declaration, and Belief, with the addition only of these words In pursuance of such Military Commissions, which makes the Matter rather worse than better. Yet this went down smoothly as an Oath in fashion, a testimony of Loyalty, and none adventuring freely to debate the matter, the humor of the Age like a strong Tide, carries Wise and good Men down before it. This Act is of a piece, for it establisheth a standing Army by a Law, and swears Us into a Military Government.
Immediately after this, Followeth the Act of Uniformity,6 by which all the Clergy of England are obliged to subscribe, and declare what the Corporations, Nobility, and Gentry, had before Sworn, but with this additional clause of the Militia Act omitted. This the Clergy readily complied with; for you know That sort of Men are taught rather to obey, than understand, and to use that Learning they have, to justify, not to examine what their Superiors command. And yet that Bartholomew day7 was fatal to our Church, and Religion, in throwing out a very great Number of Worthy, Learned, Pious, and Orthodox Divines, who could not come up to this, and other things in that Act. And it is an Oath upon this occasion worth your knowledg, that so great was the Zeal in carrying on this Church affair, and so blind was the Obedience required, that if you compute the time of the passing this Act, with the time allowed for the Clergy to subscribe the Book of Common Prayer thereby established; you shall plainly find it could not be Printed, and distributed so, as one Man in forty could have seen and read the Book they did so perfectly Assent and Consent to.
But this Matter was not compleat until the Five Mile Act8 passed at Oxford, wherein they take an opportunity to introduce the Oath in the terms they would have it. This was then strongly opposed by the Lord Treasurer Southampton, Lord Wharton, Lord Ashley, and others not only in the Concern of those poor Ministers that were so severely handled, but as it was in itself, a most Unlawful, and Unjustifiable Oath; however, the Zeal of that time against All Nonconformists, easily passed the Act.
This Act was seconded the same Sessions at Oxford by another Bill in the House of Commons, to have imposed that Oath on the whole Nation; and the Providence by which it was thrown out, was very remarkable; for Mr. Peregrine Bertie, being newly chosen, was that morning introduced into the House by his Brother the now Earl of Lindsey, and Sir Thomas Osborn now Lord Treasurer, who all Three gave their Votes against that Bill; and the Numbers were so even upon the division, that their three Votes carried the Question against it. But we owe that Right to the Earl of Lindsey, and the Lord Treasurer, as to acknowledg that they have since made ample Satisfaction for whatever offence they gave either the Church or Court in that Vote.
Thus our Church became Triumphant, and continued so for divers years, the dissenting Protestant being the only Enemy, and therefore only persecuted, whilest the Papists remained undisturbed being by the Court thought Loyal, and by our Great Bishops not dangerous, they differing only in Doctrine, and Fundamentalls; but, as to the Government of the Church, that was in their Religion in its highest Exaltation.
This Dominion continued unto them, untill the Lord Clifford, a Man of a daring and ambitious spirit, made his way to the chief Ministery of Affairs by other, and far different measures, and took the opportunity of the War with Holland, the King was then engaged in, to propose the Declaration of Indulgence, that the Dissenters of all sorts, as well Protestants as Papists, might be at rest, and so vast a number of People, not be made desperate, at Home, while the King was engaged with so potent an Enemy abroad. This was no sooner proposed, but the Earl of Shaftsbury a Man as daring but more Able, (though of principles and interest, Diametrically opposite to the other) presently closed with it, and perhaps the opportunity I have had by my conversation with them both, who were Men of diversion, and of free and open Discourses where they had a confidence; may give you more light into both their Designs, and so by consequence the aimes of their Parties, than you will have from any other hand. My Lord Clifford did in express Terms, tell me one day in private Discourse; That the King, if He would be firm to Himself, might settle what Religion He pleased, and carry the Government to what height He would; for if Men were assured in the Liberty of their Conscience, and undisturbed in their Properties, able and upright Judges made in Westminster-Hall to judg the Causes of Meum and Tuum, and if on the Other hand the Fort of Tilbury was finished to bridle the City, the Fort of Plymouth to secure the West, and Armes for 20,000 in each of these, and in Hull for the Northern parts, with some addition, which might be easily and undiscernedly made to the Forces now on foot, there were none that would have either Will, Opportunity, or Power to resist.But he added withall, he was so sincere in the maintenance of Propriety, and Liberty of Conscience, that if he had his Will, though he should introduce a Bishop of Durham, (which was the Instance he then made, that See being then vacant) of another Religion, yet he would not disturb any of the Church beside, but suffer them to dye away, and not let his change (how hasty soever he was in it) overthrow either of those principles, and therefore, desired he might be thought an honest Man as to his part of the Declaration,9for he meant it really. The Lord Shaftsbury (with whom I had more freedom) I with great assurance, asked what he meant by the Declaration, for it seemed to me (as I then told him) that it assumed a Power to repeal and suspend all our Laws, to destroy the Church, to overthrow the Protestant Religion, and to tolerate Popery. He replied half angry, That he wondered at my Objection, there being not one of these in the Case: For the King assumed no power of repealing Laws, or suspending them, contrary to the will of his Parliament, or People, and not to argue with me at that time the power of the King’s Supremacy, which was of another nature than that he had in Civills, and had been exercised without exception in this very case by His Father, Grandfather, and Queen Elizabeth, under the Great Seal to Forreign Protestants, become subjects of England, nor to instance in the suspending the Execution of the two Acts of Navigation and Trade, during both this, and the last Dutch War in the same words, and upon the same necessity, and as yet, without Clamour that ever we heard. But, to pass by all that, this is certain, a Government could not be supposed whether Monarchical, or other of any sort, without a standing Supream Executive power, fully enabled to Mitigate, or wholly to suspend the Execution of any penal Law, in the Intervalls of the Legislative power, which when assembled, there was no doubt but wherever there lies a Negative in passing of a Law, there the address or sense known of either of them to thecontrary, (as for instance of either of our two Houses of Parliament in England) ought to determine that Indulgence, and restore the Law to its full execution: For without this, the Laws were to no purpose made, if the Prince could annull them at pleasure; and so on the other hand, without a Power always in being of dispensing upon occasion, was to suppose a constitution extreamly imperfect and unpracticable, and to sure those with a Legislative power always in being, is, when considered, no other than a perfect Tyranny. As to the Church, he conceived the Declaration was extreamly their Interest; for the narrow bottom they had placed themselves upon, and the Measures they had proceeded by, so contrary to the Properties, and Liberties of the Nation, must needs in short time, prove fatall to them, whereas this led them into another way to live peaceably with the dissenting and differing Protestants, both at home and abroad, and so by necessary and unavoidable Consequences, to become the Head of them all; For that place is due to the Church of England, being in favor, and of neerest approach to the Most powerful Prince of that Religion, and so always had it in their hands to be the Intercessors and Procurers of the greatest Good and Protection, that party throughout all Christendom, can receive. And thus the Arch Bishop of Canterbury might become, not only Alterius Orbis, but Alterius Religionis Papa,10and all this addition of Honor and Power attained without the least loss or diminution of the Church; It not being intended that one living Dignity, or Preferment should be given to Any but those, that were strictly Conformable. As to the Protestant Religion, he told me plainly, It was for the preserving of That and that only that he heartily joined in the Declaration; for besides that, he thought it his Duty to have care in his Place and Station, of those he was convinced, were the People of God and feared Him, though of different persuasions; he also knew nothing else but Liberty, and Indulgence that could possibly (as our case stood) secure the Protestant Religion in England; and he begged me to consider, if the Church of England should attain to a rigid, blind, and undisputed Conformity, and that power of our Church should come into the hands of a Popish Prince, which was not a thing so impossible, or remote, as not to be apprehended, whether in such a case, would not all the Armes and Artillery of the Government of the Church, be turned against the present Religion of it, and should not all good Protestants tremble to think what Bishops such a Prince was like to make, And whom those Bishops would condemn for Hereticks, and that Prince might burn; Whereas if this which is now but a Declaration, might ever by the Experience of it, gain the Advantage of becoming an Established Law, the true Protestant Religion would still be kept up amongst the Cities, Towns, and Trading places, and the Worthiest, and Soberest (if not the greatest) part of the Nobility, and Gentry, and People. As for the toleration of Popery he said, It was a pleasant Objection, since he could confidently say that the Papists had no advantage in the least by the Declaration, that they did not as fully enjoy, and with less noise, by the favor of all the Bishops before. It was the Vivacity of the Lord Keeper, that they were named at all, for the whole advantage was to the dissenting Protestants, which were the only Men disturbed before; and yet he confest to me, that it was his opinion, and always had been, that the Papists ought to have no other pressure laid upon them, but to be made uncapable of Office, Court, or Armes, and to pay so much as might bring them at least to a ballance with the Protestants, for those chargable Offices they are liable unto; and concluded with this that he desired me seriously to weigh, whether Liberty and Propriety were likely to be maintained long in a Countrey like Ours, where Trade is so absolutely necessary to the very being, as well as prosperity of it, and in this Age of the World, if Articles of Faith and Matters of Religion should become the only accessible ways to our Civil Rights.
Thus Sir, You have perhaps a better acount of the Declaration, than you can receive from any other hand, and I could have wisht it a longer continuance, and better Reception than it had: for the Bishops took so great Offence at it, that they gave the Alarum of Popery through the whole Nation, and by their Emissaries the Clergy (who by the Connexture and Subordination of their Government, and their being posted in every Parish, have the Advantage of a quick dispersing their Orders, and a sudden and universal Insinuation of whatever they please) raised such a cry, that those good and sober Men, who had really long feared the Encrease and continuance of Popery, had hitherto received, began to believe the Bishops were in earnest; their Eyes opened, though late, and therefore joined in heartily with them; so that at the next meeting of Parliament, the Protestants’ Interest was run so high, as an Act came up from the Commons to the House of Lords in favor of the dissenting Protestants, and had passed the Royal Assent for the Excluding all Papists from Office, in the Opposition the Lords, but for want of time, Besides, another excellent Act passed of which, the Lord Treasurer Clifford fell, and yet to prevent his ruine, this Sessions had the speedier End. Notwithstanding, the Bishops attained their Ends fully, the Declaration being Cancelled, and the great Seal being broken off from it, The Parliament having passed an Act in favor of the Dissenters, and yet the sense of both Houses sufficiently declared against all Indulgence but by Act of Parliament. Having got this Point, they used it at first with seeming Moderation, there were no general Directions given for prosecuting the Nonconformists, but here and there some of the most Confiding Justices, were made use of to try how they could receive the Old Persecution; for as yet the Zeal raised against the Papists, was so great, that the worthiest, and soberest, of the Episcopal party, thought it necessary to unite with the dissenting Protestants, and not to divide their Party, when all their Forces were little enough. In this posture the Sessions of Parliament that began Oct. 27. 1673. found Matters, which being suddenly broken up, did nothing.
The next Sessions which began Jan 7. following, the Bishops continued their Zeal against Papists, and seemed to carry on in joining with the Countrey Lords, many excellent Votes in order to a Bill, as in particular, That the Princes of the Blood-Royal should all Marry Protestants, and many others, but their favor to dissenting Protestants was gone, and they attempted a Bargain with the Countrey Lords, with whom they then joined not to promote anything of that nature, except the bill for taking away Assent and Consent; and renouncing the Covenant.11
This Session was no sooner ended without doing anything, but the whole Clergy were instructed to declare that there was now no more danger of the Papists. The Fanatic (for so they call the dissenting Protestant) is again become the only dangerous Enemy, and the Bishops had found a Scotch Lord, and two new Ministers,12 or rather Great Officers of England, who were desperate and rash enough, to put their Master’s business upon so narrow and weak a bottom; And that old Covenanter Lauderdale, is become the Patron of the Church, and has his Coach and table filled with Bishops. The Keeper and the Treasurer are of a just size to this affair, for it is a certain rule with the Church Men, to endure (as seldom as they can) in business, Men abler than themselves. But his Grace of Scotland was least to be executed of the Three, for having fallen from Presbitery, Protestant Religion, and all principles of Publick good and private friendship, and become the Slave of Clifford to carry on the Ruine of all that he had professed to support, does now also quit even Clifford’s generous Principles, and betake himself to a sort of Men, that never forgive any Man the having once been in the right; and such Men, who would do the worst of things by the worst of means, enslave their country, and betray them, under the mask of Religion, which they have the publick Pay for, and charge off; so seething the Kid in the Mother’s milk. Our Statesmen and Bishops being now as well agreed, as in Old Laud’s time, on the same principles; with the same passion to attain their end, they in the first place give orders to the Judges in all their Circuits to quicken the Execution of the Laws against Dissenters; a new Declaration13 is published directly contrary to the former, most in words against the Papists, but in the Sense, and in the close, did fully serve against both, and in the Execution, it was plain who were meant. A Commission besides, comes down directed to the principal Gentlemen of each country, to seize the Estates of both Papists and Fanatics, mentioned in a List annexed, wherein by great misfortune, or skill, the Names of the Papists of best quality and fortune (and so best known) were mistaken, and the Commission rendered ineffectual as to them.
Besides this, the great Ministers of State did in their common publick assure the party, that all the places of Profit, Command, and Trust, should only be given to the old Cavalier; no Man that had served, or been of the contrary Party, should be left in any of them; And a direction is issued to the Great Ministers before mentioned, and Six or seven of the Bishops to meet at Lambeth-House, who were like the Lords of the Articles in Scotland, to prepare their compleat Modell for the ensuing Session of Parliament.
And now comes this memorable Session of Aprill 13.75 then, which never any came with more expectation of the Court, or dread and apprehension of the People; the Officers, Court Lords, and Bishops, were clearly the major Vote in the Lords House, and they assured themselves to have the Commons as much at their dispose when they reckoned the number of the Courtiers, Officers, Pensioners encreased by the addition of the Church and Cavalier party, besides the Address they had made to Men of the best quality there by hopes of Honor, great employment, and such things as would take. In a word, the French King’s Ministers, who are the great Chapmen of the World,14 did not out-doe ours at this time, and yet the overruling hand of God has blown upon their Politicks, and the Nation is escaped this Session, like a Bird out of the Snare of the Fowler.
In this Sessions the Bishops wholly laid aside their Zeal against Popery. The Committee of the whole House for Religion, which the Country Lords had caused to be set up again by the example of the former Sessions, could hardly get, at any time, a day appointed for their Sitting, and the main thing designed for a Bill voted in the former Session, viz. the marrying our Princes to none but Protestants, was rejected and carried in the Negative by the unanimous Votes of the Bishop’s Bench; for I must acquaint you that our great Prelates were so neer an Infallibility, that they were always found in this Session of one mind in the Lords House; yet the Lay Lords, not understanding from how excellent a Principle this proceeded, commonly called them for that reason the dead Weight, and they really proved so in the following business, for the third day of this Session this Bill of Test was brought into the Lords House by the Earl of Lindsey. Lord High Chamberlain, a person of great quality, but in this imposed upon, and received its first reading and appointment for the second without much opposition; the Country Lords being desirous to observe what weight they put upon it, or how they designed to manage it.
At the second reading, the Lord Keeper, and some other of the Court Lords, recommended the Bill to the House in Set and Elaborate Speeches, the Keeper calling it A moderate Security to the Church and Crown, and that no honest Man could refuse it, and whosoever did, gave great suspicion of Dangerous, and Anti-Monarchicall Principles, the other Lords declaime very much upon the Rebellion of the late Times, the great number of Fanatics, the dangerous principles of rebellion still remaining, carrying the Discourse on as if they meant to trample down the Act of Oblivion, and all those whose Securities depended on it, But the Earl of Shaftsbury and some other of the Country Lords, earnestly prest that the Bill might be laid aside, and that they might not be engaged in the debate of it; or else that that Freedom they should be forced to use in the necessary defence of their Opinion, and the preserving of their Laws, Rights, and Liberties, which this Bill would overthrow, might not be misconstrued: For there are many things that must be spoken upon the debate, both concerning Church and State, that it was well known they had no mind to hear. Notwithstanding, this the great Officers and Bishops called out for the Question of referring the Bill to a Committee; but the Earl of Shaftsbury, a Man of great Abilities, and knowledg in Affairs, and one that, in all these variety of changes of this last Age, was never known to be either bought or frighted out of his publick Principles, at Large opened the mischievous, and ill designs, and consequences of the Bill, which as it was brought in required all Officers of Church and State, and all Members of both Houses of Parliament, to take this Oath following.
I, A. B. do declare that it is not Lawful upon any pretence whatsoever, to take up Armes against the King, and that I do abhorr that Traiterous position of taking Armes by His authority, against His Person, or against those that are commissioned by Him in pursuance of such Commission; And I do swear that I will not at any time endeavor the Alteration of the Government, either in Church or State, so help me God. The Earl of Shaftsbury and other Lords, spake with such convincing Reason, that all the Lords, who were at liberty from Court-Engagements, resolved to oppose to the uttermost, a Bill of so dangerous consequence; and the debate lasted Five several days before it was committed to a Committee of the whole House, which hardly ever happened to any Bill before. All this and the following debates were managed chiefly by the Lords, whose Names you will find to the following Protestations; the First whereof, was as followeth.
We whose Names are under Written being Peers of this Realm, do according to our Rights and the ancient Usage of Parliaments, declare that the Question having been put whether the Bill (entitled an Act to prevent the danger which may arise from Persons disaffected to the Government) doth so far intrench upon the Priviledges of This House; that it ought therefore to be cast out. It being resolved in the Negative, We do humbly conceive that any Bill which imposeth an Oath upon the Peers with a Penalty, as this doth, that upon the refusal of that Oath, They shall be made uncapable of Sitting and Voting in this House, as it is a thing unprecedented in former Times, so is it, in Our humble Opinion, the highest Invasion of the Liberties and Priviledges of the Peerage, that possibly may be, and most destructive of the Freedom, which they ought to enjoy as Members of Parliament, because the priviledges of Sitting and Voting in Parliament is an Honor they have by Birth, and a Right so inherant in them, and inseparable from them, as that nothing can take it away, but what by the Law of the Land, must withal, take away their Lives, and corrupt their Blood; upon which ground we do here enter our Dissent from that Vote, and our Protestation against it
The next Protestation was against the Vote of committing the Bill in the words following;
The Question being put whether the Bill Entituled An Act to prevent the Dangers, which may arise from Persons disaffected to the Government,should be commited, It being carried in the Affirmative, and We after several days’ debate, being in no measure Satisfied, but still apprehending that this Bill doth not only subvert the Priviledges, and birthright of the Peers, by imposing an Oath upon them with the penalty of losing their Places in Parliament; but also, as We humbly conceive, stick at the very root of Government; it being necessary to all Government to have freedom of Votes and Debates in those, who have power to alter, and make Laws, and besides, the express words of this Bill, obliging every Man to abjure all Endeavors to alter the Government in the Church; without regard to anything that rules of Prudence in the Government, or Christian compassion to Protestant Dissenters, or the necessity of Affairs at any time, shall or may require. Upon these Considerations, We humbly conceive it to be of dangerous consequence to have any Bill of this Nature, so much as Committed, and do enter our Dissents from that Vote and Protestation against it,
Which Protestation was no sooner entered and subscribed the next day, but the great Officers and Bishops raised a storm against the Lords that had Subscribed it; endeavouring not only some severe proceedings against their persons, if they had found the House would have born it, but also to have taken away the very liberty of Entering Protestations with Reasons; but that was defended with so great Ability, Learning, and Reason by the Lord Holles, that they quitted the Attempt, and the Debate run for some hours either wholly to raze the Protestation out of the Books, or at least some part of it, the Expression of Christian compassion to Protestant Dissenters being that, which gave them most offence; but both these ways were so disagreeable to the honor and priviledg of the House, and the Latter to common Sense and Right, that they despaired of carrying it, and contented themselves with having voted That the Reasons given in the said Protestation, did reflect upon the Honor of the House, and were of dangerous consequence. And I cannot here forbear to mention the Worth, and Honor, of that Noble Lord Holles, suitable to all his former life, that whilst the Debate was at the height, and the Protesting Lords in danger of the Tower; he begged the House to give him leave to put his Name to that Protest, and take his Fortune with those Lords, because his sickness had forced him out of the House the day before, so that not being at the Question, he could not by the rules of the House Sign it. This Vote against those twelve Lords begat the next day this following Protestation signed by 21.
Whereas it is the undoubted priviledg of each Peer in Parliament when a Question is past contrary to his Vote and judgment, to enter his Protestation against it, and that in pursuance thereof, the Bill entituled An Act to prevent the dangers which may arise from persons disaffected to the Government, being conceived by some Lords to be of so dangerous a Nature, as that it was not fit to receive the countenance of a Committment, those Lords did protest against the Commitment of the said Bill, and the House having taken exceptions at some expressions in their Protestation; those Lords who were present at the Debate, did all of them severally and voluntarily declare, That they had not intention to reflect upon any Member, much less upon the whole House, which, as is humbly conceived, was more than in strictness did consist with that absolute freedom of Protesting, which is inseparable from every Member of this House, and was done by them meerly out of their great Respect to the House, and their earnest desire to give all satisfaction concerning themselves, and the clearness of their intentions. Yet the House not satisfied with this their Declaration but proceeding to a Vote, that the reasons given in the said Protestation do reflect upon the honor of the House, and are of dangerous consequence;which is in our humble Opinion, a great discountenancing of the very liberty of Protesting. We whose Names are under Written, conceive ourselves, and the whole House of Peers, extreamly concerned that this great Wound should be given (as we humbly apprehend) to so essential a priviledg of the whole peerage of this Realm, as their liberty of Protesting, do now (according to our unquestionable Right) make use of the same liberty to enter this our Dissent from, and Protestation against the said Vote,
After this Bill being committed to a Committee of the whole House, the first thing insisted upon by the Lords against the Bill; was, that there ought to be passed some previous Votes to secure the Rights of Peerage, and Priviledg of Parliament before they entered upon the debate, or Amendments of such a Bill as this; and at last two previous Votes were obtained, which I need not here set down, because the next Protestation hath them both in terminis.
Whereas upon the debate on the Bill entituled An Act to prevent the Dangers which may arise from Persons disaffected to the Government, It was ordered by the house of Peers the 30th of Aprill last, that no Oath should be imposed by any Bill, or otherwise, upon the Peers with a penalty in case of Refusal, to lose their Places, or Votes in Parliament, or liberty to debate therein; and whereas also, upon debate of the same, the Bill was ordered the Third of this instant May, that there shall be nothing in this Bill, which shall extend to deprive either of the Houses of Parliament, or any of their Members, of their just ancient Freedom, and priviledg of debating any Matter or business which shall be propounded, or debated in either of the said Houses, or at any Conference or Committee, of both, or either of the said Houses of Parliament, or touching the Repeal, or Alteration of any Old, or preparing any new Laws, or the redressing any publick Grievance; but that the said Members of either of the said Houses, and the assistance of the House of Peers, and every of them, shall have the same freedom of Speech, and all other Priviledges whatsoever, as they had before the making of this Act.
Both which Orders were passed as Previous directions unto the Committee of the whole House, to whom the said Bill was committed, to the end that nothing should remain in the said Bill, which might any ways tend towards the depriving of either of the Houses of Parliament, or any of their Members, of their ancient freedom of Debates, or Votes, or other their priviledges whatsoever. Yet the House being pleased, upon the report from the Committee, to pass a Vote, That all Persons who have, or shall have Right to sit and Vote in either House of Parliament, should be added to the first enacted Clause in the said Bill, whereby an Oath is to be imposed upon them as Members of either House, which Vote We whose Names are under Written being Peers of this Realm, do humbly conceive, is not agreeable to the said two Previous Orders, and it having been humbly offered, and insisted upon by divers of us, that the Proviso in the late Act Entituled An Act for preventing Dangers, that may happen from Popish Recusants; might be added to the Bill depending, Whereby the Peerage of every Peer of this Realm, and all their Priviledges, might be preserved in this Bill, as fully as in the said late Act. Yet the House not pleasing to admit of the said Proviso, but proceeding to the passing of the said Vote, We do humbly upon the Grounds aforesaid, and according unto our undoubted Right, enter this our Dissent from, and Protestation against the same.
This was their last Protestation; for after this they altered their Method, and reported not the Votes of the Committee, and parts of the Bill to the House, as they past them, but took the same Order as is observed in other Bills, not to report unto the House, untill they had gone through with the Bill, and so report all the Amendments together. This they thought a way of more Dispach and which did prevent all Protestations, untill it came to the House; for the Votes of a Committee, though of the whole House, are not thought of that weight, as that there should be allowed the entering a Dissent of them, or Protestation against them.
The Bill being read over at the Committee, the Lord Keeper objected against the form of it, and desired that he might put it in another Method, which was easily allowed him, that being not the Dispute. But it was observeable the Hand of God was upon them in this whole Affair; their Chariot-wheels were taken off, they drew heavily. A Bill so long designed, prepared, and of that Moment to all their Affairs, had hardly a sensible Composure.
The first part of the Bill that was fallen upon; was, whether there should be an Oath at all in the Bill, and this was the only part the Court-Party defended with Reason: for the whole Bill being to enjoin an Oath, the House might reject it, but the Committee was not to destroy it. Yet the Lord Hallifax did with that quickness, Learning, and Elegance, which are inseparable from all his Discourses, make appear, that as there really was no Security to any State by Oaths, so also, no private Person, much less Statesman, would ever order his Affairs as relying on it, no Man would ever sleep with open Doors, or unlockt up Treasure, or Plate, should all the Town be sworn not to Rob; So that the use of multiplying Oaths had been most commonly to Exclude, or disturb some honest Consciencious Men, who would never have prejudiced the Government. It was also insisted on by that Lord and others, that the Oath imposed by the Bill, contained Three Clauses, the two former Assertory, and the last Promissory, and that it was worthy the Consideration of the Bishops, Whether Assertory Oaths, which were properly appointed to give testimony of a matter of Fact, whereof a Man is capable to be fully assured by the evidence of his Senses, be lawfully to be made use of to Confirm, or Invalidate Doctrinal Propositions, and whether that Legislative power, which imposes such an Oath, doth not necessarily assume to itself and Infallibility? And, as for Promissory Oaths, It was desired that those Learned Prelates would consider the Opinion of Grotius de jure Belli & pacis, lib. 2. cap. XIII. who seems to make it plain that those kind of Oaths are forbidden by our Saviour Christ, Mat. 5.34, 37. and whether it would not become the Fathers of the Church, when they have well weighed that and other places of the New Testament; to be more tender in multiplying Oaths, than hitherto the great Men of the Church have been? But the Bishops carried the Point, and an Oath was ordered by the major Vote.
The next thing in Consideration, was about the Persons that should be enjoined to take this Oath; and those were to be, all such as enjoyed any beneficial Office or Employment, Ecclesiastical, Civill, or Military; and no farther went the Debate for some hours, untill at last the Lord Keeper rises up, and with an eloquent Oration, desires to add Privy Counsellors, Justices of the Peace, and Members of both Houses; The two former particularly mentioned only to usher in the latter; which was so directly against the two Previous Votes, the first of which was enrolled amongst the standing Orders of the House, that it wanted a Man of no less assurance in his Eloquence to propose it, and he was driven hard, when he was forced to tell the House, that they were Masters of their own Orders, and Interpretation of them.
The next consideration at the Committee was the Oath itself, and it was desired by the Countrey Lords, that it might be clearly known, whether it were meant all for an Oath, or some of it a Declaration, and some an Oath? If the latter, then it was desired it might be distinctly parted, and that the Declaratory part should be subscribed by itself, and not sworn. There was no small pains taken by the Lord Keeper and the Bishops, to prove that it was brought in; the two first parts were only a Declaration, and not an Oath, and though it was replied that to declare upon one’s Oath, or to abhorr upon one’s Oath, is the same thing with I do Swear; yet there was some difficulty to obtain the dividing of them, and that the Declaratory part should be only Subscribed, and the rest Sworn to.
The Persons being determined, and this division agreed to, the next thing was the parts of the Declaration, wherein the first was; I A. B. do declare that it is not lawful upon any pretence whatsoever, to take up Armes against the King. This was liable to great Objections; for it was said it might introduce a great change of the Government, to oblige all the Men in great Trust in England, to declare that exact Boundary, and Extent, of the Oath of Allegiance, and inforce some things to be Stated, that are much better involved in Generals, and peradventure are not capable of another way of expression, without great wrong on the one side, or the other. There is a Law of 25 Edward 3. that Armes shall not be taken up against the King, and that it is Treason to do so, and it is a very just and reasonable Law; but it is an idle question at best, to ask whether Armes in any case can be taken up against a lawful Prince, because it necessarily brings in the debate in every Man’s mind, how there can be a distinction then left between Absolute, and Bounded Monarchies, if Monarchs have only the fear of God, and no fear of human Resistance to restrain them. And it was farther urged; that if the chance of human Affairs in future Ages, should give the French King a just Title and Investiture in the Crown of England, and he should avowedly own a design by force, to change the Religion, and make his Government here as Absolute as in France, by the extirpation of the Nobility, Gentry, and principal Citizens of the Protestant Party, whether in such, or like Cases, this Declaration will be a Service to the Government, as it is now establisht. Nay, and it was farther said, that they overthrow the Government that suppose to place any part of it above the fear of Man: For in our English Government, and all bounded Monarchies, where the Prince is not absolute, there every individual Subject is under the fear of the King, and His People, either for breaking the Peace, or disturbing the common Interest that every Man hath in it, or if he invades the Person or Right of his Prince, he invades his whole People, who have bound up in him, and derive from Him, all their Liberty, Property, and Safety. As also the Prince himself, is under the fear of breaking that Golden Chain and Connexture between Him and his People, by making his interest contrary to that they justly and rightly claim. And therefore neither our Ancestors, nor any other Country free like ours, whilst they preserved their Liberties, did ever suffer any mercenary, or standing Guards to their Prince, but took care that his Safety should be in Them, as theirs was in Him. Though these were the Objections to this Head, yet they were but lightly touched, and not fully insisted upon, until the debate of the second Head, where the Scope of the Design was opened clearer, and more distinct to every Man’s capacity.
The second was, And that I do abhorr that Traiterous Position of taking Armes by His Authority against His person. To this was objected, That if this be meant an Explanation of the Oath of Allegiance to leave men without pretense to oppose where the individual person of the King is, then it was to be considered, that the proposition as it is here set down is universal, and yet in most cases the position is not to be abhorred by honest or wise men: For there is but one case, and that never like to happen again, where this position is in danger to be Traiterous, which was the Case of the Long Parliament, made perpetual by the King’s own Act, by which the Government was perfectly altered, and made inconsistent with itself; but it is to be supposed the Crown hath sufficient warning, and full power to prevent the falling again into that danger. But the other cases are many, and such as may every day occurr, wherein this position is so far from Traiterous, that it would prove both necessary and our duty. The Famous instance of Henry 6 who being a soft and weak Prince, when taken Prisoner by his Cousin Edward 4. that pretended to the Crown, and the great Earl of Warwick, was carried in their Armies, gave what orders and Commissions they pleased, and yet all those that were Loyal to him adhered to his Wife and Son, fought in a pitcht battel against him in person, and retook him. This was directly taking up Armes by His Authority against his person, and against those that were Commissioned by Him, and yet to this day no Man hath ever blamed them, or thought but that, if they had done other, they had betrayed their Prince. The great Case of Charles 6. of France, who being of a weak and crazie Brain, yet governed by himself, or rather by his Wife, a Woman of passionate, and heady humour, that hated her Son the Dolphin, a vigorous and brave Prince, and passionately loved her Daughter; so that She easily (being pressed by the Victory of Henry 5. of England) complied to settle the Crown of France upon Him, to marry her Daughter to Him, and own his Right, contrary to the Salique Law. This was directly opposed with Armes and Force by the Dolphin, and all good French Men, even in his Father’s lifetime. A third instance is that of King James of blessed Memory, who when he was a Child, was seized, and taken Prisoner by those, who were justly thought no friends to His Crown, or Safety, and if the case should be put, that a future King of England of the same temper with Henry 6. or Charles 6 of France, should be taken Prisoner by Spaniard, Dutch, or French, whose overgrowing power should give them thoughts of vast Empire, and should, with the person and Commission of the King, invade England for a Conquest, were it not suitable to our Loyalty to join with the Son of that King, for the defence of his Father’s Crown and Dignity, even against his Person and Commission? In all these and the like cases it was not justified, but that the strict Letter of the Law might be otherwise construed, and when wisely considered, fit it should be so, yet that it was not safe either for the Kingdom, or person of the King and his Crown, that it should be in express words sworn against, for if we shall forswear all Distinctions, which ill Men have made ill use of, either in Rebellion or Heresy, we must extend the Oath to all particulars of Divinity, and Politiques. To this the aged Bishop of Winchester replied, That to take up Armes in such cases, is not against, but for the person of the King. But his Lordship was told that he might then as well, nay much better, have left it upon the Old Oath of Allegiance, than made such a wide gapp in his new Declaration.
The third and last part of the Declaration was or against those that are Commissioned by him. Here the mask was plainly pluckt off, and Arbitrary Government appeared bare-faced, and a standing Army to be established by Act of Parliament, for it was said by several of the Lords, That if whatever is by the King’s Commission, be not opposed by the King’s Authority, then a standing Army is Law whenever the King pleases; and yet the King’s Commission was never thought sufficient to Protect, or justify any man, where it is against his Authority, which is the Law; this allowed alters the whole Law of England, in the most essential and Fundamental parts of it, and makes the whole Law of property to become Arbitrary, and without effect, whenever the King pleases.
For instance, if in a Suit with a great Favourite, a man recovers House and Lands, and by course of Law be put into Possession by the Sheriff, and afterwards a Warrant is obtained by the interest of the person, to command some Souldiers of the standing Army to take the possession and deliver it back, in such a case, the man in possession may justify to defend himself, and killing those who shall violently endeavour to enter his house, the party, whose house is invaded, takes up Armes by the King’s Authority against those, who are Commissioned by him. And it is the same case, if the Souldiers had been Commissioned to defend the House against the Sheriff, when he first endeavored to take the possession according to Law; neither could any Order, or Commission of the King’s, put a stop to the Sheriff, if he had done his duty in raising the whole force of that County to put the Law in execution; neither can the Court, from whom that Order proceeds, (if they observe their oaths, and duty) put any stop to the execution of the Law in such a case, by any commance or commission from the King whatsoever; Nay, all the Guards, and standing forces in England, cannot be secured by any Commission from being a direct Riot, and unlawful Assembly, unless in time of open War and Rebellion. And it is not out of the way to suppose, that if any King hereafter, shall contrary to the petition of Right, demand, and levie Money by Privy-Seal, or otherwise, and cause Souldiers to enter, and distrain for such like illegall Taxes, that in such a case any Man may by Law defend his house against them; and yet this is of the same nature with the former, and against the words of the Declaration. These instances may seem somewhat rough, and not with the usual reverence towards the Crown, but they alleadged, they were to be excused, when all was concerned, And without speaking thus plain, it is refused to be understood; and, however happy we are now, either in the present Prince, or those we have in prospect, yet the suppositions are not extravagant, when we consider, Kings are but Men, and compassed with more temptations than others; And, as the Earl of Salisbury, who stood like a Rock of Nobility, and English Principles, excellently replied to the Lord Keeper, who was pleased to term them remote Instances, that they would not hereafter prove so, when the Declaration had made the practise of them Justifiable.
These Arguments enforced the Lords for the Bill to a change of this part of the Declaration, so that they agreed the second, and third parts of it, should run thus; And I do abhorr that Traiterous position of taking Armes by His Authority, against his person, or against those, that are commissioned by Him according to Law, in time of Rebellion, or War, acting in pursuance of such Commission. Which mends the matter very little; for if they mean the King’s Authority, and his lawful Commission, to be two things, and such as are capable of Opposition, then it is as dangerous to the Liberties of the Nation, as when it run in the former words, and we only cheated by new Phrasing of it. But if they understand them to be one and the same thing, as really and truly they are, then we are only to abhorr the Treason of the position of taking Armes by the King’s Authority against the King’s Authority, because it is Non-sense, and not practicable; and so they had done little but confest, that all the Clergy and many other Persons, have been forced by former Acts of this present Parliament, to make this Declaration in other words, that now are found so far from being Justifiable, that they are directly contrary to Magna Charta our Properties, and the Established Law and Government of the Nation.
The next thing in course was, the Oath itself, against which the Objection lay so plain, and so strong at the first entrance, Viz. That there was no care taken of the Doctrine, but only the Discipline of the Church. The Papists need not scruple the taking this Oath; for Episcopacy remains in its greatest Lustre, though the Popish Religion was introduced, but the King’s Supremacy is justled aside by this Oath, and makes better room for an Ecclesiastical One, in so much that with this, and much more, they were inforced to change their Oath, and the next day bring it in as followeth. I do swear that I will not endeavour to alter the Protestant Religion or the Government either of Church or State. By this they thought they had salved all, and now began to call their Oath A Security for the Protestant Religion, and the only good design to prevent Popery, if we should have a Popish Prince. But the Countrey Lords wondered at their confidence in this, since they had never thought of it before, and had been but the last preceeding day of the Debate by pure Shame compelled to this Addition; for it was not unknown to them, that some of the Bishops themselves had told some of the Roman Catholick Lords of the House, that care had been taken that it might be such an Oath, as might not bear upon them. But let it be whatever they would have it, yet the Countrey Lords thought the addition was unreasonable, and of as dangerous consequence as the rest of the Oath. And it was not to be wondered at, if the addition of the best things, wanting the Authority of an express divine Institution, should make an Oath not to endeavor to alter, just so much worse by the addition. For as the Earl of Shaftsbury very well urged, that it is a far different thing to believe, or to be fully persuaded of the truth of the Doctrine of Our Church; and to swear never to endeavor to alter; which last, must be utterly unlawful, unless you place an Infallibility either in the Church, or Your Self, you being otherwise obliged to alter, whenever a clearer, or better light comes to you; and he desired leave to ask, where are the Boundaries, or where shall we find, how much is meant by the Protestant Religion. The Lord Keeper thinking he had now got an advantage, with his usual Eloquence, desires it might not be told in Gath, nor published in the Streets of Askalon, that a Lord of so great Parts, and Eminence and professing himself for the Church of England, should not know what is meant by the Protestant Religion. This was seconded with great pleasantness by Divers of the Lords the Bishops; but the Bishop of Winchester, and some others of them were pleased to condescend to instruct that Lord, that the Protestant Religion was comprehended in 39 Articles, the Liturgie, the Catechisme, the Homilies, and the Canons. To this the Earl of Shaftsbury replied, that he begged so much Charity of them to believe, that he knew the Protestant Religion so well, and was so confirmed in it, that he hoped he should burn for the witness of it, if Providence should call him to it: But he might perhaps think some things not necessary, that they accounted Essential, nay he might think some things not true, or agreeable to the Scripture, that they might call Doctrines of the Church. Besides when he was to swear never to endeavor to alter, it was certainly necessary to know how far the just extent of this Oath was; but since they had told him that the Protestant Religion was in those 5 tracts, he had still to ask, whether they meant those whole Tracts were the Protestant Religion, or only that the Protestant Religion was contained in all those, but that every part of these was not the Protestant Religion. If they meant the former of these then he was extreamly in the dark to find the Doctrine of Predestination in the 18. and 17. Article to be owned by so few great Doctors of the Church, and to find the 19. Article to define the Church directly as the Independents do. Besides the 20. Article stating the Authority of the Church is very dark, and either contradicts itself, or says nothing, or what is contrary to the known Laws of the Land; besides several other things in the 39 Articles, have been Preached, and Writ against by Men of great Favor, Power, and Preferment in the Church. He humbly conceived the Liturgie was not so sacred, being made by Men the other day, and thought to be more differing from the dissenting Protestants, and less easy to be complied with, upon the advantage of a pretense well known unto us all of making alterations as might the better unite us; instead whereof, there is scarce one alteration, but widens the breach, and no ordination allowed by it here, (as it now stands last reformed in the Act of Uniformity) but what is Episcopall; in so much that a Popish Priest is capable, when converted, of any Church preferment without Reordination; but no Protestant Minister not Episcopally ordained, but is required to be reordained, as much as in us lies unchurching all the forreign Protestants, that have not Bishops, though the contrary was both allowed, and practised from the beginning of the Reformation till the time of that Act, and several Bishops made of such, as were never ordained Priests by Bishops. Moreover the Uncharitableness of it was so much against the Interest of the Crown, and Church of England (casting off the dependency of the whole Protestant party abroad) that it would have been bought by the Pope and French King at a vast summ of Money; and it is difficult to conceive so great an advantage fell to them meerly by chance, and without their help; so that he thought to endeavor to alter, and restore the Liturgy to what it was in Queen Elizabeth’s days might consist with his being a very good Protestant.
As to the Catachisme, he really thought it might be mended, and durst declare to them, it was not well that there was not a better made.
For the Homilies he thought there might be a better Book made, and the 3. Homily of Repairing and keeping clean of Churches, might be omitted.
What is yet stranger than all this, The Canons of our Church are directly the old Popish Canons, which are still in force, and no other; which will appear, if you turn to the Stat. 25. Henry 8. cap. 19 confirmed and received by I. Elizabeth where all those Canons are established, untill an alteration should be made by the King in pursuance of that Act; which thing was attempted by Edward the 6th. but not perfected, and let alone ever since, for what reasons the Lords the Bishops could best tell; and it was very hard to be obliged by Oath not to endeavour to alter either the English Common-Prayer book, or the Canon of the Mass. But if they meant the latter, That the Protestant Religion is conteined in all those, but that every part of those is not the Protestant Religion, then he apprehended it might be in the Bishops’ Power to declare ex post facto what is the Protestant Religion or not, or else they must leave it to every man to judge for himself, what parts of those books are or are not, and then their Oath had been much better let alone. Much of this nature was said by that Lord, and Others, and the great Officers, and Bishops were so hard put to it, that they seemed willing, and convinced to admit of an Expedient. The Lord Wharton an Old and Expert Parliament Man of eminent Piety and Abilities, beside a great Friend to the Protestant Religion, and Interest of England, offered as a cure to the whole Oath, and what might make it pass in all the 3 parts of it, without any farther debate, the addition of these words at the latter end of the Oath, Viz. as the same is or shall be established by Act of Parliament, but this was not endured at all, when the Lord Grey of Rollston, a worthy and true English Lord, offered another Expedient, which was the addition of words, by force or fraud, to the beginning of the Oath, and then it would run thus, I do swear not to endeavor by force or fraud to alter; this was also a cure that would have passed the whole Oath, and seemed as if it would have carried the whole House. The Duke of York and Bishop of Rochester both seconding it; but the Lord Treasurer, who had privately before consented to it, speaking against it, gave the word and sign to that party, and it being put to the question, the major Vote answered all arguments, and the Lord Grey’s Proposition was laid aside.
Having thus carried the question, relying upon their strength of Votes, taking advantage that those expedients that had been offered, extended to the whole Oath, though but one of the 3 Clauses in the Oath had been debated, the other two not mentioned at all, they attempted strongly at nine of the Clock at night to have the whole Oath put to the question, and though it was resolutely opposed by the Lord Mohun, a Lord of great courage, and resolution in the Publick Interest, and one whose own personal merits, as well as his Father’s, gave him a just title to the best favors of the Court; yet they were not diverted but by as great a disorder as ever was seen in that House proceeding from the rage those unreasonable proceedings had caused in the Country Lords, they standing up in a clump together, and crying out with so loud a continued Voice Adjourn, that when silence was obtained, Fear did what Reason could not do, cause the question to be put only upon the first Clause concerning Protestant Religion, to which the Bishops desired might be added, as it is now established, and one of the eminentest of those were for the Bill added the words by Law; so that, as it was passed, it ran, I A. B. do swear that I will not endeavor to alter the Protestant Religion now by Law established in the Church of England. And here observe the words by Law do directly take in the Canons though the Bishops had never mentioned them. And now comes the consideration of the latter part of the Oath which comprehends these 2 Clauses, viz. nor the Government either in Church or State, wherein the Church came first to be considered. And it was objected by the Lords against the Bill that it was not agreeable to the King’s Crown and Dignity, to have his Subjects sworn to the Government of the Church equally as to Himself; That for the Kings of England to swear to maintain the Church, was a different thing from enjoining all His Officers, and both His Houses of Parliament to swear to them. It would be well understood, before the Bill passed, what the Government of the Church (we are to swear to) is, and what the Boundaries of it, whether it derives no Power, nor Authority, nor the exercise of any Power, Authority, or Function, but from the King as head of the Church, and from God as through him, as all his other Officers do?
For no Church or Religion can justify itself to the Government, but the State Religion, that ownes an entire dependency on, and is but a branch of it; or the independent Congregations; whilest they claim no other power, but the exclusion of their own members from their particular Communion, and endeavor not to set up a Kingdom of Christ to their own use in this World, whilest our Saviour hath told us, that His Kingdom is not of it, for otherwise there would be Imperium in imperio,15 and two distinct Supream Powers inconsistent with each other, in the same place, and over the same persons. The Bishops alleadged that Priesthood and the Power thereof, and the Authorities belonging thereunto were derived immediately from Christ, but that the license of exercising that Authority and Power in any Country is derived from the civil Magistrate: To which was replied, that it was a dangerous thing to secure by Oath, and Act of parliament those in the excercise of an Authority, and power in the King’s Country, and over His Subjects, which being received from Christ himself, cannot be altered, or limitted by the King’s Laws; and that this was directly to set the Mitre above the Crown. And it was farther offered, that this Oath was the greatest attempt that had been made against the King’s Supremacy since the Reformation; for the King in Parliament may alter, diminish, enlarge, or take away any Bishoprick; He may take any part of a Diocess, or a whole Diocess, and put them under Deans, or other Persons; for if this be not lawful, but that Episcopacy should be jure divino, the maintaining the Government: as it is now, is unlawful; since the Deans of Hereford, and Salisbury, have very large tracts under their jurisdiction, and several Parsons of Parishes have Episcopal jurisdiction; so that at best that Government wants alteration, that is so imperfectly settled. The Bishop of Winchester affirmed in this debate several times, that there was no Christian Church before Calvin that had not Bishops; to which he was answered that the Albigenses a very numerous People, and the only visible known Church of true believers, of some Ages, had no Bishops. It is very true, what the Bishop of Winchester replied, that they had some amongst them, who alone had power to ordain, but that was only to commit that power to the Wisest, and Gravest Men amongst Them, and to secure ill, and unfit Men from being admitted into the Ministery; but they exercised no jurisdiction over the others. And it was said by divers of the Lords, that they thought Episcopal Government best for the Church, and most suitable for the Monarchy, but they must say with the Lord of Southampton upon the occasion of this Oath in the Parliament of Oxford, I will not be sworn not to take away Episcopacie, there being nothing, that is not of Divine Precept, but such circumstances may come in human affairs, as may render it not Eligible by the best of Men. And it was also said, that if Episcopacy be to be received as by Divine Precept, the King’s Supremacy is overthrown, and so is also the opinion of the Parliaments both in Edward 6. and Queen Elizabeth’s time; and the constitution of our Church ought to be altered, as hath been shewed. But the Church of Rome itself hath contradicted that Opinion, when She hath made such vast tracts of ground, and great numbers of Men exempt from Episcopal jurisdiction. The Lord Wharton upon the Bishop’s claim to a Divine Right, asked a very hard question, viz. whether they then did not claim withall, a power of Excommunicating their Prince, which they Evading to answer, and being pressed by some other Lords, said they never had done it. Upon which the Lord Hallifax told them that that might well be; for since the Reformation they had hitherto had too great a dependance on the Crown to venture on that, or any other Offence to it, and so the debate passed on to the third Clause, which had the same exceptions against it with the two former, of being unbounded How far any Man might meddle, and how far not, and is of that extent, that it overthrew all Parliaments, and left them capable of nothing but giving Money. For what is the business of Parliaments but the alteration, either by adding, or taking away some part of the Government, either in Church or State? And every new Act of Parliament is an alteration; and what kind of Government in Church and State must that be, which I must swear upon no alteration of Time, emergencie of Affairs, nor variation of human Things, never to endeavor to alter? Would it not be requisite that such a Government should be given by God himself, and that withall the Ceremonie of Thunder, and Lightening, and visible appearance to the whole People, which God vouchsafed to the Children of Israel at Mount Sinai? and yet you shall nowhere read that they were sworn to it by any oath like this: nay on the Contrary, the Princes and the Rulers, even those recorded for the best of them, did make several variations. The Lord Stafford, a Noble Man of great Honor and Candour, but who had been all along for the Bill, yet was so far convinced with the debate, that he freely declared, there ought to be an addition to the Oath, for preserving the freedom of debates in Parliament. This was strongly urged by the never to be forgotten, Earl of Bridgwater, who gave reputation, and strength to this Cause of England; as did also those worthy Earls Denbigh, Clarendon, and Aylisbury, Men of great Worth and Honor. To Salve all that was said by these, and the Other Lords, The Lord Keeper and the Bishops urged, that there was a Proviso, which fully preserved the Priviledges of Parliament, and upon farther enquiry there appearing no such, but only a Previous vote, as is before mentioned, they allowed that that Previous vote should be drawn into a Proviso, and added to the Bill, and then in their opinion the Exception to the Oath for this cause was perfectly removed; but on the other side it was offered, that a positive absolute Oath being taken, a Proviso in the Act could not dispence with it without some reference in the body of the Oath, unto that Proviso; but this also was utterly denied, untill the next day, the debate going on upon other matters, the Lord Treasurer, whose authority easily obtained with the major Vote, reassumed what was mentioned in the Debates of the proceeding days, and allowed a reference to the Proviso, so that it then past in these words, I A. B. do swear that I will not endeavor to alter the Protestant Religion now by Law Establisht in the Church of England, nor the Government of this Kingdom in Church, or State, as it is now by Law established, and I do take this Oath according to the meaning of this Act and the Proviso contained in the same, so help me God.
There was a passage of the very greatest observation in the whole debate, and which with most clearness shewed what the great Men and Bishops aimed at, and should in order have come in before, but that it deserved so particular a consideration, that I thought best to place it here by itself, which was, that upon passing of the Proviso for preserving the Rights, and Priviledges of Parliaments made out of the Previous Votes, It was excellently observed by the Earl of Bullingbrook, a Man of great Abilitie, and Learning in the Laws of the Land, and perfectly stedfast in all good English Principles, that though that Proviso did preserve the freedom of Debates and Votes in Parliament, yet the Oath remained notwithstanding that Proviso upon all Men, that shall take as a prohibition either by Speech, or Writing, or Address, to endeavor any alteration in Religion, Church, or State; nay also upon the Members of both Houses otherwise than as they speak, and vote in open Parliaments or Committees: for this Oath takes away all private Converse upon any such affairs even one with another. This was seconded by the Lord De la mer, whose Name is well known, as also his Worth, Piety, and Learning; I should mention his great Merits too, but I know not whether that be lawful, they lying yet unrewarded. The Lord Shaftsbury presently drew up some words for preserving the same Rights, Priviledges, and Freedoms, which Men now enjoy by the Laws established, that so by a side Wind we might not be deprived of the great Liberty we enjoy as English Men, and desired those words might be inserted in that Proviso before it past. This was seconded by many of the formentioned Lords, and prest upon those terms, that they desired not to countenance, or make in the least degree anything lawful, that was not already so, but that they might not be deprived by this dark way of proceeding of that Liberty was necessary to them as Men, and without which Parliaments would be rendered useless. Upon this all the great Officers showed themselves, nay the Duke of Lauderdale himself, though under the Lord of two Addresses, opened his mouth, and together with the Lord Keeper, and the Lord Treasurer, told the Committee in plain terms, that they intended, and designed to prevent Caballing, and conspiracies against the Government that they knew no reason why any of the King’s Officers should consult with Parliament Men about Parliament business, and particularly mentioned those of the Armie, Treasury, and Navy; and when it was Objected to them, that the greatest part of the most knowing Gentry were either Justices of the Peace, or of the Militia, and that this took away all converse, or discourse of any alteration, which was in truth of any business in Parliament, and that the Officers of the Navy, and Treasury, might be best able to advise what should be fit in many cases; and that withall none of their Lordships did offer anything to salve the inconvenience of Parliament Men being deprived of discoursing one with another, upon the matters that were before them. Besides it must be again remembered, that nothing was herein desired to be countenanced, or made lawful, but to preserve that that is already Law, and avowedly justified by it; For without this addition to the Proviso, the Oath rendered Parliaments but a Snare not a Security to the People. Yet to all this was answered sometimes with passion, and high words, sometimes with Jests, and Raillery (the best they had) and at the last the major Vote answered all objections, and laid aside the addition tendered.
There was another thing before the finishing of the Oath, which I shall here also mention, which was an additional Oath tendered by the Marquess of Winchester, who ought to have been mentioned in the first, and chiefest place for his conduct, and support in the whole debate, being an expert Parliament Man, and one whose Quallity, Parts, and Fortune, and owning of good Principles, concurr to give him one of the greatest places in the esteem of good men. The additional Oath tendered, was as followeth, I do swear that I will never by Threats, Injunctions, Promises, Advantages, or Invitation, by or from any person whatsoever, nor from the hopes, or prospect of any Gift, Place, Office, or Benefit whatsoever, give my Vote other than according to my Opinion and Conscience, as I shall be truly, and really persuaded upon the debate of any business in Parliament; so help me God.
This Oath was offered upon the occasion of swearing Members of Parliament, and upon this score only, that if any new Oath was thought fit (which that Noble Lord declared his own Judgment perfectly against) this certainly was (all considerations, and circumstances taken in) most necessary to be a part, and the nature of it was not so strange if they considered the Judge’s Oath,16 which was not much different from this. To this the Lord Keeper seemed very averse, and declared in a very fine Speech, that it was an Useless Oath; for all Gifts, Places, and Offices, were likeliest to come from the King, and no Member of Parliament in either House, could do too much for the King, or be too much of His side, and that Men might lawfully, and worthily, have in their Prospect, such Offices, or Benefits from Him. With this the Lords against the Bill, were in no tearms satisfied, but plainly spoke out that Men had been, might, and were likely to be, in either House, too much for the King, as they called it, and that whoever did endeavour to give more power to the King, than the Law and constitution of the Government had given, especially if it tended to the Introducing an Absolute and Arbitrary Government might justly be said to do too much for the King, and to be corrupted in his judgment by the prospect of advantages, and rewards; Though, when it is considered that every deviation of the Crown towards Absolute power, lessens the King in the love, and the affection of his People, making Him become less their Interest, A wise Prince will not think it a Service done Him.
And now remains only the last part of the Bill, which is the penalty different according to the quallifications of the Persons All that are, or shall be Privy Counsellors, Justices of the Peace, or possessors of any beneficial Office, Ecclesiastical, Civill, or Military, are to take the Oath when summoned, upon pain of £.500 and being made uncapable of bearing Office, the Members of both Houses are not made uncapable but liable tothe penalty of £.500 if they take it not. Upon all which the considerations of the Debate were, That those Officers, and Members of both Houses are of all the Nation the most dangerous to be sworn into a mistake, or change of the Government, and that, as to the Members of both Houses, the penalty of £.500 was directly against the latter of the 2. Previous Votes, and although they had not applied the penalty of Incapacity unto the Members of both Houses, because of the first Previous Vote in the Case of the Lords, neither durst they admit of a Proposition made by some of themselves, that those that did not come up, and Sit as Members, should be liable to the taking the Oath, or penalty, untill they did so. Yet their Ends were not to be compassed without invading the latter Previous Vote, and contrary to the Rights and Priviledges of Parliament enforce them to swear, or pay £.500 every Parliament, and this they carried through with so strong a Resolution, that having experienced their misfortunes in replies for several hours, not one of the party could be provoked to speak one word. Though, besides the former arguments, it was strongly urged, that this Oath ought to be put upon Officers with a heavier penalty than the Test was in the Act of the immediate preceding Session against the Papists, by which any Man might sit down with the loss of his Office, without being in the danger of the penalty of £.500 and also that this Act had a direct retrospect (which ought never to be in Penall Laws) for this Act punishes Men for having an Office without taking this Oath, which office, before this Law pass, they may now lawfully enjoy without it. Yet notwithstanding it provides not a power, in many cases, for them to part with it, before this Oath overtake them; For the clause whoever is in Office the 1. September will not relieve a Justice of the Peace, who, being once Sworn; is not in his own power to be left out of commission; and so might be instanced in several other cases; as also the members of the House of Commons were not in their own power to be unchosen; and as to the Lords, they were subjected by it to the meanest condition of Mankind, if they could not enjoy their Birthright, without playing Tricks suitable to the Humour of every Age, and be enforced to swear to every fancy of the present times. Three years ago it was All Liberty and Indulgence,17 and now it is Strict and Rigid Conformity and what it may be, in some short time hereafter, without the Spirit of Prophesying might be shrewdly guessed by a considering Man. This being answered with silence, the Duke of Buckingham, whose Quality, admirable Wit, and unusual pains, that he took all along in the debate against this Bill, makes me mention Him in this last place, as General of the party, and coming last out of the Field, made a Speech late at night of Eloquent, and well-placed Nonsense, showing how excellently well he could do both ways, and hoping that might do, when Sense (which he often before used with the highest advantage of Wit, and Reason) would not; but the Earl of Winchilsea readily apprehending the Dialect, in a short reply, put an end to the Debate, and the major Vote ultima ratio Senatuum, & Conciliorum,18 carried the Question as the Court, and Bishops would have it.
This was the last Act of this Tragi-Comedy, which had taken up sixteen or seventeen whole days’ debate, the House sitting many times till eight or nine of the Clock at night, and sometimes till Midnight; but the business of priviledg between the two Houses gave such an interruption, that this Bill was never reported from the Committee to the House.
I have mentioned to You divers Lords, that were Speakers, as it fell in the Debate, but I have not distributed the Arguments of the debate to every particular Lord. Now you know the Speakers, your curiosity may be satisfied, and the Lords I am sure will not quarrel about the division. I must not forget to mention those great Lords, Bedford, Devonshire, and Burlington, for the Countenance and support they gave to the English Interest. The Earl of Bedford was so brave in it, that he joined in three of the Protests; So also did the Earl of Dorsit, and the Earl of Stamford, a Young Noble Man of great hopes, The Lord Eure, the Lord Viscount Say and Seal, and the Lord Pagitt in two; the Lord Audley and the Lord Fitzwater in the 3d. and the Lord Peter, a Noble Man of great Estate, and always true to the maintenance of Liberty, and Property in the first. And I should not have omitted the Earl of Dorset, Lord Audley, and the Lord Peter amongst the Speakers: for I will assure you they did their parts excellently well. The Lord Viscount Hereford was a steady Man among the Countrey Lords; so also was the Lord Townsend, a Man justly of great Esteem, and power in his own countrey, and amongst all those that well know him. The Earl of Carnarvon ought not to be mentioned in the last place, for he came out of the Countrey on purpose to oppose the Bill, stuck very fast to the Countrey party, and spoke many excellent things against it. I dare not mention the Roman Catholick Lords, and some others, for fear I hurt them; but thus much I shall say of the Roman Catholick Peers, that if they were safe in their Estates, and yet kept out of Office, their Votes in that House would not be the most unsafe to England of any sort of Men in it. As for the absent Lords, the Earl of Ruttland, Lord Sandys, Lord Herbert of Cherbury, Lord North, and Lord Crew, ought to be mentioned with Honor, having taken care their Votes should maintain their own interest, and opinions; but the Earls of Exceter, and Chesterfield, that gave no proxies this Sessions, the Lord Montague of Boughton, that gave his to the Treasurer, and Lord Roberts his to the Earl of Northampton, are not easily to be understood. If you ask after the Earl of Carlisle, the Lord Viscount Falconbridge, and the Lord Berkeley of Berkeley Castle, because you find them not mentioned amongst their old Friends, all I have to say, is That the Earl of Carlisle stept aside to receive his Pension, the Lord Berkeley to dine with the Lord Treasurer, but the Lord Viscount Falconberg, like the Noble Man in the Gospel, went away sorrowfull, for he had a Great Office at Court; but I despair not of giving you a better account of them next Sessions, for it is not possible when they consider that Cromwell’s Major General, Son in law, and Friend,19 should think to find their Accounts amongst Men that set up on such a bottom.
Thus Sir, You see the Standard of the new Partie is not yet set up, but must be the work of another Session, though it be admirable to me, how the King can be enduced to venture His Affairs upon such weak Counsels, and of so fatal consequences; for I believe it is the first time in the World, that ever it was thought adviseable, after fifteen years of the highest Peace, Quiet, and Obedience, that ever was in any Countrey, that there should be a pretense taken up, and a reviving of former miscarriages, especially after so many Promises, and Declarations, as well as Acts of Oblivion, and so much merit of the Offending party, in being the Instruments of the King’s Happy Return, besides the putting so vast a number of the King’s Subjects in utter despair of having their crimes ever forgotten; and it must be a great Mistake in Counsels, or worse, that there should be so much pains taken by the Court to debase, and bring low the House of Peers, if a Military Government be not intended by some. For the Power of Peerage, and a standing Army are like two Buckets, the proportion that one goes down, the other exactly goes up; and I refer you to the consideration of all the Histories of ours, or any of our neighbor Northern Monarchies, whether standing forces Military, and Arbitrary government, came not plainly in by the same steps, that the Nobility were lessened; and whether whenever they were in Power, and Greatness, they permitted the least shadow of any of them. Our own Countrey is a clear instance of it; For though the White Rose and the Red changed fortunes often to the ruine, slaughter and beheading of the great Men of the other side; yet nothing could enforce them to secure themselves by a standing force. But I cannot believe that the King Himself will ever design any such thing; for He is not of a temper Robust, and Laborious enough, to deale with such a sort of Men, or reap the advantages, if they be any, of such a Government, and I think, He can hardly have forgot the treatment his Father received from the Officers of his Army, both at Oxford, and Newark; T’was an hard, but almost an even choice to be the Parliament’s Prisoner, or their Slave; but I am sure the greatest prosperity of his Armes could have brought him to no happier condition, than our King his Son hath before him whenever he please. However, This may be said for the honor of this Session, that there is no Prince in Christendom hath at a greater expence of Money, maintained for two Months’ space, a Nobler, or more useful dispute of the Politiques, Mystery, and secrets of Government, both in Church and State, than this has been; Of which noble design no part is owing to any of the Countrey Lords, for they several of them begged, at the first entrance into the Debate, that they might not be engaged in such disputes, as would unavoidably produce divers things to be said, which they were willing to let alone. But I must bear them witness, and so will you, having read this, that they did their parts in it, when it came to it, and spoke plain like old English Lords.
I shall conclude with that, upon the whole matter, is most worthy your consideration, That the design is to declare us first into another Government more Absolute, and Arbitrary, than the Oath of Allegiance, or old Law knew, and then make us swear unto it, as it is so established: And less than this the Bishops could not offer in requital to the Crown for parting with its Supremacy, and suffering them to be sworn to equal with itself. Archbishop Laud was the first Founder of this Device; in his Canons of 1640.20 you shall find an Oath very like this, and a Declaratory Canon preceding that Monarchy is of divine Right, which was also affirmed in this debate by our Reverend Prelates, and is owned in Print by no less Men than Arch Bishop Usher, and B. Sanderson; and I am afraid it is the avowed opinion of much the greater part of our dignified Clergie. If so, I am sure they are the most dangerous sort of Men alive to our English Government, and it is the first thing ought to be lookt into, and strictly examined by our Parliaments; ’tis the leaven that corrupts the whole lump; for if that be true, I am sure Monarchy is not to be bounded by human Laws, and the 8. chap. of I. Samuel,21 will prove (as many of our Divines would have it) the Great Charter of the Royal Prerogative, and our Magna Charta that says Our Kings may not take our Fields, our Vineyards, our Corn, and our Sheep is not in force, but void and null, because against divine Institution; and you have the Riddle out, why the Clergy are so ready to take themselves, & impose upon others such kind of Oaths as these, they have placed themselves, and their possessions upon a better, and a surer bottom (as they think) than Magna Charta, and so have no more need of, or concern for it. Nay what is worse, they have truckt away the Rights and Liberties of the People in this, and all other countries wherever they have had opportunity, that they might be owned by the Prince to be Jure Divino, and maintained in that Pretention by that absolute power and force, they have contributed so much to put into his hands; and that Priest, and Prince may, like Castor and Pollux, be worshipt together as Divine in the same temple by Us poor Lay-subjects; and that sense and reason, Law, Properties, Rights, and Liberties, shall be understood as the Oracles of those Deities shall interpret, or give signification to them, and never be made use of in the world to oppose the Absolute, and Freewill of either of them.
Sir, I have no more to say, but begg your Pardon for this tedious Trouble, and that you will be very careful to whom you communicate any of this.
Anon, Vox Populi
To Redress Grievances, and Provide for the Common Safety;
The known Laws and Constitutions of the Nation:
Humbly Recommended to the KING and Parliament at their Meeting at OXFORD, the 21th of March.
Rex merito debet Retribuere Legi, quia Lex tribuit ei, facit enim Lex quod ipse sit Rex. Bracton, lib. 3.c.9 fol. 107.
The King ought deservedly to give the Law his due, because the Law gave it him; for the Law makes him a King.
Prov. 22.28. Remove not the Ancient Land-mark (or Bound) which thy Fathers have set.
Printed for Francis Smith at the Elephant and Castle near the Royal Exchange in Cornhill, 1681.
This anonymous pamphlet was part of the new Whig party’s campaign to pressure Charles II to agree to a bill that would exclude his Catholic brother, James, from the throne. Charles had countered these efforts by abruptly proroguing or dismissing parliaments, which had the effect of terminating any pending exclusion bill and aborted the influence of the Whig-dominated House of Commons. When the Parliament of March 1679 returned from its summer recess the following October, Charles immediately prorogued it for a full year. Members resumed business in October 1680 only to find the Parliament dissolved barely four months later. It was a newly elected parliament summoned to convene at Oxford in March 1681 to which this tract is addressed. The repeated disruptions of parliaments justified complaints that little useful business had been accomplished.
“Vox Populi,” however, rises above its immediate political moment by assembling timely legal maxims amplifying the importance of law and Parliament and emphasizing the limitations of the monarch. It then provides a brief history of the antiquity and significance of parliaments. All this harked back to the views of the men of the 1640s and the “good old cause,” a similarity that enabled the Crown and the Tories to raise the spectre of Whigs intent upon another civil war.
“Vox Populi” may have energized Whigs but was ignored by Charles, who peremptorily dismissed the new parliament on 28 March 1681 merely a week after it convened. A secret stipend from Louis XIV ensured that this was the last parliament Charles would ever need to call.
Or, the Peoples Claim to Their Parliaments Sitting, to Redress Grievances and to Provide for the Common Safety, by the Known Laws and Constitutions of the Nation.
Recommended to the King and Parliament at their meeting at Oxford, &c.
Since the Wonderful Discovery and undeniable Confirmation of that horrid Popish Plot which designed so much ruine and mischief to these Nations, in all things both Civil and Sacred, and the unanimous Sence and Censure of so many Parliaments upon it, together with so many publick Acts of Justice upon so many of the Traitors; it was comfortably hoped before thirty Months should have past over after the Detection thereof, some effectual Remedies might have been applied to prevent the further attempts of the Papists upon us, and better to have secured the Protestants in their Religion, Lives and Properties. But by sad experience we have found, that notwithstanding the Vigorous Endeavours of three of our Parliaments to provide proper and wholsome Laws to Answer both ends: Yet so prevalent has this Interest been, under so potent a head the D. of Y.1 as to stifle in the Birth all those hopeful Parliament-Endeavours; by those many Surprizing and Astonishing Prorogations and Dissolutions which they have procured, whereby our fears and Dangers have Manifestly increased, and their Spirits heightened and incouraged to renew and Multiply fresh Plottings and Designs upon us.
But that our approaching Parliament may be more successeful for our Relief before it be too late, by being permitted to sit to Redress our Grievances, and to perfect those Good Bills which have been prepared by the former Parliaments to this purpose; these following Common Law Maxims respecting King and Parliament, and the Common and Statute Laws themselves (to prevent such unnatural Disappointments and Mischiefs) providing for the sitting of Parliaments till Grievances be redressed, and publick Safety secured and provided for, are tendered to consideration.
Some known Maxims taken out of the Law-Books.
1. Respecting the King.
That the Kings of England can do nothing as Kings but what of right they ought to do.
That the King can do no wrong, nor can he die.
That the King’s Prerogative and the Subject’s Liberty are determined by Law.
That the King hath no Power but what the Law gives him.
That the King is so called from Ruling well, Rex a bene Regendo [viz. according to Law] Because he is a King whilst he Rules well, but a Tyrant when he Oppresses.
That Kings of England never appear more in their glory, splendor and Majestick Soveraignty, than in Parliaments.
That the Prerogative of the King cannot do wrong, nor be a Warrant to do wrong to any. Plowd. Comment. fol. 246.
2. Respecting the Parliament.
That Parliaments constitute and are laid in the Essence of the Government.
That a Parliament is that to the Common-Wealth which the Soul is to the Body, which is only able to apprehend and understand the symptoms of all Diseases which threaten the Body politick.
That a Parliament is the Bulwark of our Liberty, the boundary whichkeeps us from the Innundation of Tyrannical Power, Arbitrary and unbounded Will-Government.
That Parliaments do make new and abrogate Old Laws, Reform Grievances in the Common-Wealth, settle the Succession, grant subsidies; And in summe, may be called the great Physician of the Kingdom.
From whence it appears and is self evident if Parliaments are so absolutely necessary in this our constitution, That they must then have their certain stationary times of Session, and continuance, for providing Laws, essentially necessary for the being, as well as the well being of the People; and Redressing all publick Grievances, either by the want of Laws, or of the undue Execution of them in being, or otherwise. And suitable hereunto are those Provisions made by the Wisdom of our Ancestors as recorded by them both in the Common and Statute-Law:
First, What we find hereof in the Common Law.
The Common Law, (saith my Lord Coke), is that which is founded in the immutable Law and light of Nature, agreeable to the Law of God, requiring Order, Government, Subjection and Protection, &c. Containing ancient usages, Warrented by Holy Scripture, and because it is generally given to all, it is therefore called Common.
And further saith, That in the Book called The Mirror of Justice appeareth the whole frame of the ancient common Laws of this Realm from the time of K. Arthur, 516. till near the Conquest; which Treats also of the Officers as well as the diversity and Distinction of the Courts of Justice (which are Officinae Legis) and particularly of the High Court of Parliament by the name of Council General or Parliament; so called from Parler-la-ment, speaking judicially his mind: And amongst others gives us the following Law of King Alfred who Reigned about 880.
Le Roy Alfred Ondeigna pur usage perpetual que a deux foits per l’an ou plus sovene pur mistier in temps de peace se Assembler a Londres, pur Parliamenter surle guidement del people de dieu coment gents soy garderent de pechers, viverent in quiet, receiverent droit per certain usages et saints’ Judgments.
King Alfred Ordaineth for a usage perpetual, that twice a year or oftner if need be, in time of peace, they shall Assemble themselves at London, to Treat in Parliament of the Government of the People of God, how they should keep themselves from Offences, should live in quiet, and should receive right by certain Laws and holy Judgments.
And thus (saith my Lord Coke) you have a Statute of K. Alfred as well concerning the holding of this Court of Parliament twice every year at the City of London, as to manifest the threefold end of this great and Honourable Assembly of Estates; As,
First, That the Subject might be kept from offending; that is, that Offences might be prevented both by good and provident Laws, and by the due Execution thereof.
Secondly, That men might live safely and in quiet.
Thirdly, That all men might receive Justice by certain Laws and holy Judgments; that is, to the end that Justice might be the better administered, that Questions and Defects in Laws might be by the High Court of Parliament planed, reduced to certainty and adjudged. And further tells us that this Court being the most Supream Court of this Realm, is a part of the frame of the Common Laws, and in some cases doth proceed Legally, according to the ordinary course of the Common Law, as it appeereth, 39 E. 3. f. Coke Inst. ch. 29. fol. 5. To be short, of this Court it is truly said, Si vetestatem spectes est antiquissima, si dignitatem est honoratissima, si jurisdictionem est capacissima. If you regard Antiquity, it is the most Ancient, if Dignity the most Honourable, if Jurisdiction the most Soveraign.
And where question hath been made whether this Court continued during the Heptarchy, let the Records themselves make answer, of which he gives divers Instances in the times of King Ine, Offa, Ethelbert. After the Heptarchy, K. Edward Son of Alfred, K. Ethelston, Edgar, Ethelred, Edmond, Canutus. All which (he saith) and many more are extant and publickly known; proving by divers arguments, that there were Parliaments, unto which the Knights and Burgesses were summoned both before, in, and after the Reign of the Conqueror, till Hen. 3. time; and for your further satisfaction herein, see 4. E. 3. 25. 49 Ed. 3. 22, 23. 11 H. 4. 2. Litl. lib. 2. c. 10.
Whereby we may understand,
1. That Parliaments are part of the frame of the Common Law, [which is laid in the Law and Light of Nature, right Reason and Scripture].
2. That according to this Moral Law of Equity and Righteousness, Parliaments ought frequently to meet for the common peace, safety and benefit of the People, and support of the Government.
3. That Parliaments have been all along esteemed an essential part of the Government, as being the most ancient, honourable and Soveraign Court in the Nation, who are frequently and perpetually to sit, for the making and abolishing Laws, Redressing of Grievances, and see to the due administration of Justice.
4. That as to the place of Meeting, it was to be at London the Capital City, the Eye and Heart of the Nation, as being not only the Regal Seat, but the principal place of Judicature, and residence of the chief Officers, and Courts of Justice, where also the Records are kept, as well as the principal place of Commerce and Concourse in the Nation, and to which the People may have the best recourse, and where they may find the best accomodation.
5. The Antiquity of Parliaments in this Nation, which have been so ancient that no Record can give any account of their Beginning, my Lord Coke thus tracing from the Brittans, through the Saxons, Danes and Normans to our days.
So that not to suffer Parliaments to sit to answer the great ends for which they were Instituted, is expressely contrary to the Common Law, and so consequently of the Law of God as well as the Law of Nature, and thereby Violence is offered to the Government itself, and Infringement of the People’s fundamental Rights and Liberties.
Secondly, What we find hereof in the Statute-Law.
The Statute Laws are Acts of Parliament which are (or ought to be) only Declaratory of the Common Law, which as you have heard is founded upon right Reason and Scripture; for we are told, that if anything is enacted contrary thereto, it is void and null: As Coke Inst. 1. 2. c. 29. f. 15. Finch p. 3. 28 H. 8. c. 27. Doct. and Stud.
The first of these Statutes which require the frequent Meeting and Sitting of Parliaments, agreeable to the Common Law, we find to be in the time of Ed. 3. viz. 4 Ed. 3. & ch. 14. In these words:
Item it is accorded that a Parliament shall be holden every Year once, or more often if need be.
The next is in the 36 of the same K. Ed. 3. c. 10. viz.
Item, For the maintenance of the said Articles and Statutes, and Redressing of divers Mischiefs and Grievances which daily happen, A Parliament shall be holden every year, as at another time was ordained by a Statute, viz. the aforementioned, in his 4th year. And agreeable hereto, are those Statutes upon the Rolls, viz. 5 Ed. 2.-1 R. 2. No. 95.
By which Statutes it appeareth, that Parliaments ought Annually to meet, to support the Government, and to redress the Grievances which may happen in the Interval of Parliaments; That being the great End proposed in their said Meetings. Now, For Parliaments to meet Annually, and not suffered to sit to Answer the Ends, but to be Prorogued or Dissolved before they have finished their Work, would be nothing but a deluding the Law, and a striking at the foundation of the Government itself, and rendering Parliaments altogether Useless; for it would be all one to have No Parliaments at all, as to have them turned off by the Prince before they have done that they were called and intrusted to do. For by the same Rule whereby they may be so turned off One Session, they may be three Sessions, and so to threescore, to the breaking of the Government, and introducing Arbitrary Power. To Prevent such intollerable Mischiefs and Inconveniencies, are such good Laws as these made in this King’s time, and which were so Sacredly observed in after times, That it was a Custom, especially in the Reigns of Henry 4. Henry 5. Henry 6. to have a Proclamation made in Westminster-Hall before the end of every Session, That all those who had any matter to present to the Parliament, should bring it in before such a day, for otherwise the Parliament at that Day should Determine. Whereby it appears the People were not to be eluded nor disappointed by surprizing Prorogations and Dissolutions, to frustrate and make void the great ends of Parliaments.
And to this purpose saith a late Learned Author, That if there was no Statute, or anything upon record extant, concerning the Parliament’s sitting to redress grievances, yet that I must believe, that it is so by the fundamental Law of the Government, which must be Lame and imperfect without it; [For, otherwise the Prince and his Ministers may do what they please, and their Wills may be their Laws].
Therefore it is provided for in the very Essence and Constitution of the Government itself; and this (saith our Author) we may call the Common Law, which is of as much value (if not more) than any Statute, and of which all our good Acts of Parliament and Magna Charta, itself is but Declaratory; so that though the King is intrusted with the formal part of summoning and pronouncing the dissolution of Parliaments, which is done by Writ; yet the Laws which Oblige him (as well as us) have determined how, and when he shall do it; which is enough to shew, that the King’s share in the Soveraignty, that is in the Parliament, is cut out to him by Law, and not left at his disposal.
The Next Statute we shall mention, to inforce this fundamental Right and Priviledge, is the 25th Ed. 3. ch. 23. called the Statute of Provisors, which was made to prevent and Cut off the Incroachments of the Bishops of Rome, whose Usurpations in disposing of Benefices occasioned intollerable Grievances, wherein, in the Preamble of the said Statute, it is expressed as followeth.
Whereupon the Commons have prayed our said Soveraign Lord the King, that sith the Right of the Crown of England, and the Law of the said Realm is such, that upon the Mischiefs and Damage which happeneth to his Realm, he ought and is bounden of the accord of his said People in his Parliament, thereof to make Remedy and Law, in avoiding the Mischiefs and Damage which thereof cometh; That it may please him thereupon to provide Remedy. Our Soveraign Lord the King seeing the Mischiefs and Damage before named, and having regard to the said Statute made in the time of his said Grandfather, and to the Causes contained in the same, which Statute holdeth always his force, and was never defeated or annulled in any point, and by so much is bound by his Oath to do the same, to be kept as the Law of this Realm, though that by Sufferance and Negligence it hath since been attempted to the contrary. And also having regard to the grievous Complaints made to him by his People in divers Parliaments holden heretofore, Willing to ordain Remedy for the great Damages and Mischiefs which have happened and daily do happen by the said Cause, &c. By the assent of all the great Men and Commonality of his said Realm, hath Ordained and Established, &c.
In which preamble of the Statute we may observe, (1.) The intollerable grievance and burden, which was occassioned by the illegal Incroachments of the See of Rome. (2.) The many Complaints the People had made, who in those dark times, under Popery were sensible of, groaning under those Burdens. (3.) The Endeavours used in vain by former Parliaments to Redress the same, And to bring their Laws in being, to have their Force and Effect. (4.) The acknowledgment of the King and Parliament, that the Obligation hereto was upon the King.
(1.) From the Right of the Crown, which obliged every King to pass good Laws. (2.) The Statute in force. (3.) The King’s Oath to keep the Old and pass new Laws for his People’s safeguard, which they should tender to him. (4.) From the sence of the People, expressed in their Complaints; and, (5.) From the Mischief and Damage which would otherwise ensue.
And therefore by the desire and accord of his People, He passes this famous Law. The Preamble whereof, is here recited.
Another Statute to the same purpose you find 2. R. 2. No. 28
Also the Commons in Parliament, pray, that for as much as Petitions and Bills presented in Parliament by divers of the Commons, could not heretofore have their Respective Answers; That therefore both their Petitions and Bills in this present Parliament, as also others which shall be presented in any future Parliament, may have a good and Gracious Answer and Remedy ordained thereupon before the departing of every Parliament: And that to this purpose, a due Statute be ensealed [or Enacted] at this present Parliament, to be and remain in Force for all times to come.
To which the King Replied:
The King’s Answer.
THE King is pleased that all such Petitions delivered in Parliament, of things (or matters) which cannot otherwise be determined; A good and Reasonable Answer shall be made and given before the Departure of Parliament.
In which excellent Law we may observe, (1.) A Complaint of former remisness, their Bills having aforetime been passed by, their Grievances Unredressed, by unseasonably Dissolving of Parliaments before their Laws could pass. (2.) That a Law might pass in that very Parliament to rectifie that Abuse for the future. And, (3.) That it should not pass for a temporary Law, but for perpetuity being of such absolute Necessity, that before the Parliaments be dismissed, Bills of common Right might pass.
And the King agreed hereto.
Suitable hereto, we have my Lord Chief Justice Coke, that great Oracle of the Law, in his Instit. 4. B. p. 11. Asserting, Petitions being truly preferred (though very many) have been Answered by the Law and Custom of Parliament, before the end of Parliament.
This appears saith he, by the ancient Treatise De Mode tenendi Parliamentum, in these Words faithfully Translated. The Parliament ought not to be ended while any Petition dependeth undiscussed, or at the least to which a determinate Answer is not made. Rot. Par. 17. E. 3. No. 60. 25 E. 3. No. 60. 50 E. 3. No. 212. 2 R. 2. 134. 2. R. 2. No. 38. 1 H. 4. 132. 2 H. 4. 325. 113.
And that one of the principal ends of calling Parliaments, is for redressing of Grievances that daily happen, 36 E. 3. c. 10. 18 E. 3. c. 14. 50 E. 3. No. 17. Lyons Case, Rot. Par. 1. H. 5. No. 17. 13 H. 4. No. 9.
And that as concerning the departing of Parliaments, It ought to be in such a manner: saith Modus Tenendi. viz. To be demanded, yea and publickly Proclaimed in the Parliament, and within the Palace of the Parliament, whether there be any that hath delivered a Petition to the Parliament, and hath not received Answer thereto; if there be none such, it is to be supposed, that every one is Satisfied, or else Answered unto at the least, so far forth as by the Law he may be. And which custom was observed in after Ages, as you have heard before.
Concerning the Antiquity and Authority of this Ancient Treatise, called Modus tenendi Parliamentum (saith my Lord Coke) whereof we make often use in our Institutes: Certain it is, that this Modus wasRehearsed and Declared before the Conqueror at the time of his Conquest, and by him approved for England, and accordingly he according to Modus held a Parliament for England, as appears 21 E. 3. fo. 60.
Whereby you clearly perceive, that these wholsome Laws are not only in full agreement with the Common Law and declarative thereof, but in full accord with the Oath and Office of the Prince, who has that great trust by the Law lodged with him for the good and benefit, not hurt and mischief of the People, viz.
First, these Laws are very suitable to the Office and Duty of a Ruler, and the end for which he was instituted by God himself, who commands him to do Judgment, and Justice to all; especially, to the Oppressed, and not to deny them any request for their relief, protection or welfare, 2. Sam. 22.3. 1 Chron. 13.1, to 5. 2 Chron. 18.104.22.168. &c. Est. 1. 13. Our Law Books enjoining the same, as Bracton Lib. 1. c.2. Lib. 3. c.9. fol. 107. &c. Fortiscue, ch. 9. so. 15.c.7. fol. 5. 11. Coke 7. Book Reports, Calvin’s Case f. 11.
Secondly, they are also in full Harmony with the King’s Coronation Oath Solemnly made to all his Subjects, viz. To grant, fullfil, and defend all rightful Laws which the Commons of the Realm shall choose, and to strengthen and maintain them after his Power.
Thirdly, These Laws are also in full agreement, and oneness with Magna Charta itself, that Antient Fundamental Law which hath been Confirmed by at least Forty Parliaments, viz. We shall deny, We shall defer to no Man Justice and Right, much less to the whole Parliament and Kingdom, in denying or deferring to pass such necessary Bills which the People’s needs call for.
Object. But to all this which hath been said, it may be objected, That several of our Princes have otherwise practised by Dissolving or [as laterly used, by] Proroguing Parliaments at their pleasures, before Grievances were Redressed, and Publick Bills of Common Safety Passed, and that as a Priviledge, belonging to the Royal Prerogative.
Answ.To which it is Answered, That granting they have so done: First, it is most manifest that doth not therefore create a right to them so to do; according to that known maxime, a facto ad jus non valet Consequentia, especially, when such Actions are against so many express and positive Laws, such Principles of Common Right and Justice, and so many particular Ties and Obligations upon themselves to the contrary.
Secondly, But if it had been so, yet neither can Prerogative be pleaded to Justify such Practices, because the King has no Prerogative, but what the Law gives him; and it can give none to destroy itself, and those it protects, but the contrary. Bracton in his Comments, pag. 487. tells us, That although the Common Law doth allow many Prerogatives to the King, yet it doth not allow any, that He shall wrong, or hurt any by his Prerogative. Therefore ’tis well said, by a late Worthy Author upon this point, That what Power or Prerogative the Kings have in Them, ought to be used according to the true and genuine intent of the Government; that is for the Preservation and Interest of the People. And not for the disappointing the Councils of a Parliament, towards reforming Grievances, and making provision for the future Execution of the Laws; and whenever it is applied to frustrate those ends, it is a Violation of Right, and Infringment of the King’s Coronation Oath, who is obliged to Pass or Confirm those Laws His People shall chuse. And tho He had such a Prerogative by Law, yet it should not be used, especially in time of Eminent danger and distress. The late King in his Advice to his Majesty that now is, in his Eikon Basilike 239. Tells him that his Prerogative is best shewed, and exercised, in Remitting, rather than exacting the Rigor of the Laws, there being nothing worse than Legal Tyranny.
Nor would he have him entertain any Aversion or Dislike of Parliaments, which in their right Constitution, with freedom and honour, will never Injure or Diminish His Greatness, but will rather be as interchangings of Love, Loyalty and Confidence, between a Prince and his People.
It is true, some Flatterers and Traitors have presumed, in defiance to their Countries’ Rights, to assert that such a boundless Prerogative belongs to Kings. As did Chief Justice Trisilian, &c. in Richard 2’s time; Advising him that he might Dissolve Parliaments at pleasure; and, that no Member should be called to Parliament, nor any Act past in either House, without His Approbation in the first place; and, that whoever advised otherwise were Traitors. But this Advice you read was no less Fatal to himself, than Pernicious to his Prince. Baker’s Chron. p. 147, 148, and 159.
King James in his Speech to the Parliament 1609. Gives them assurance, That he never meant to Govern by any Law, but the Law of the Land; tho it be disputed among them, as if he had an intention to alter the Law; and Govern by the absolute power of a King; but to put them out of doubt in that matter, tells them, That all Kings who are not Tyrants, or Perjured, will bound themselves within the limits of their Laws. And they that persuade the contrary, are Vipers and Pests, both against them and the Common-wealth. Wilson. K. J. p. 46.
1. If this be so, That by so great Authority (viz. so many Statutes in force, The fundamentals of the Common Law, the Essentials of the Government itself, Magna Charta, The King’s Coronation Oath, so many Laws of God and Man); the Parliament ought to sit to Redress Grievances and provide for Common Safety, especially in times of Common Danger. (And that this is eminently so, who can doubt, that will believe the King; so many Parliaments, The Cloud of Witnesses, the Publick Judicatures, their own sense and experience of the manifold Mischiefs which have been acted, and the apparent Ruine and Confusion that impends the Nation, by the restless Attempts of a bloody Interest, if speedy Remedy is not applied.)
Then let it be Queried, Whether the People having thus the Knife at the Throat, Cities and Habitations Fired, and therein their Persons fried, Invasions and Insurrections threatened to Destroy the King and Subjects, Church and State; and as so lately told us, (upon Mr. Fitz Harris’s commitment),2 the present Design on Foot was to Depose and Kill the King; and their only remedy hoped for under God to give them Relief thus from time to time, Cut off, viz. Their Parliaments, who with so much care, cost and pains are Elected, sent up, and Intrusted for their help, turned off re infecta,3 and rendered so insignificant by those frequent Prorogations and Dissolutions.
Are they not therefore justified in their important Cries, in their many Humble Petitions to their King, Fervent Addresses to their Members, earnest Claims for this their Birthright here Pleaded, which the Laws of the Kingdom, consonant to the Laws of God and Nature, has given them?
2. If so, what then shall be said to those who advise to this high Violation of their Countrie’s Rights, to the infringing so many just Laws, and exposing the Publick to those desperate hazards, if not a total Ruine?
If King Alfred (as Andrew Horne in his Mirror of Justice tells us) hanged Darking, Segnor, Cedwine, Cole, and Forty Judges more, for Judging contrary to Law; and yet all those false Judgments were but in particular and private Cases; What Death do those Men deserve, who offer this violence to the Law itself, and all the Sacred Rights of their Country? If the Lord Chief Justice Thorp in Edward 3’s time, for receiving the Bribery of One hundred pounds was adjudged to be Hanged as one that had made the King break his Oath to the People; How much more guilty are they of making the King break his Coronation Oath that perswade him to Act against all the Laws for holding Parliaments, and passing Laws therein, which he is so solemnly sworn to do? And if the Lord Chief Justice Tresilian was Hanged, Drawn, and Quartered for Advising the King to Act contrary to some Statutes only; what do those deserve that advise the King to Act not only against some, but against all these Ancient Laws and Statutes of the Realm?
And if Blake the King’s Council but for Assisting in the Matter and drawing up Indictments by the King’s Command contrary to Law, though it is likely he might Plead the King’s Order for it, yet if he was Hanged, Drawn and Quartered for that, what Justice is due to them that assist in the Total Destruction of all the Laws of the Nation, and as much as in them lies, their King and Country too? And if Usk the under Sherif (whose Office it is to Execute the Laws) for but endeavouring to aid Tresilian, Blake and their Accomplices against some of the Laws, was also with Five more Hanged, Drawn and Quartered; What punishment may they deserve that Aid and endeavour the Subvertion of all the Laws of the Kingdom? And if Empson and Dudley in Henry the Eight’s time, though two of the King’s privy Councel, were Hanged for Procuring and Executing an Act of Parliament contrary to the Fundamental Laws of the Kingdom, and to the great vexation of the People; so that though they had an Act of Parliament of their side, yet that Act being against the known Laws of the Land, were Hanged as Traitors for putting that Statute in Execution: then what shall become of those who have no such Act to shelter themselves under, and who shall Act not only contrary to, but to the Destruction of the Fundamental Laws of the Kingdom, and how Harmonious such Justice will be, the Text tells us, Deut. 27.17. Cursed be he that removeth his Neighbour’s Landmark: and all the People shall say, Amen.
That this present Session may have a happy Issue, to answer the great ends of Parliaments, and therein our present Exigencies and Necessities, is the incessant Cry and longing Expectation of all the Protestants in the Land.
[1. ]The defendant in a treason trial of this period was typically not permitted counsel, although Vane should have been allowed to make a full plea on his own behalf.
[2. ]Sir John Fortescue, lord chief justice of the King’s Bench in the fifteenth century, was known in the seventeenth century for his treatise De Laudibus Legum Angliae, first printed in 1537.
[3. ]This is a reference to Sir Edward Coke’s Second Institute, “Commentary on Magna Carta,” which was published in 1642 by order of the House of Commons.
[4. ]Sir Richard Empson and Edmund Dudley, financial advisors to Henry VII, were bitterly hated for the manner in which they carried out a system of extortions intended to enrich the Crown. Both were executed in 1510 on a charge of constructive treason for having urged friends to arm themselves during Henry VII’s last illness.
[5. ]William Lambarde’s work Archaionomia, first printed in 1568, was a collection and paraphrase of the Anglo-Saxon laws. A second edition of this work was published by Whelock in Cambridge, 1644.
[6. ]The name of the King agreeth not unto him.
[7. ]Hugh Despenser, a royal official, and his son Hugh the younger, the favorite of Edward II, held great power, even over the king. After Edward was captured in a general uprising of English magnates, Despenser the younger was executed and Edward forced to abdicate in favor of his heir Edward III.
[8. ]To disinherit or deprive of his rightful position.
[9. ]The statute of 25 Edward III. cap. 2 (1352) contained the stipulation that to “levy war against our lord the king in his realm” is treason. Pollock and Maitland find that Edward III was the first English king since the Conquest “who could afford to make such a declaration.” See Frederick Pollock and Frederic Maitland, The History of English Law, 2d ed. (Cambridge, 1968), 2:505.
[10. ]The king’s answer is reprinted in volume 1, 145-77.
[11. ]In the summer of 1642 Hotham was sent by Parliament to Hull where the major English arsenal outside London was located, and there refused entrance to the King and his retinue.
[12. ]11 Henry VII, cap. 1 (1495), An Act that no person going with the King to the wars shall be attaint of treason, known as the De facto Act. This act ensured that no one could be accused of treason for obeying the king at the time in question. See Geoffrey Elton, The Tudor Constitution, 2d ed. (Cambridge, 1982), 2.
[13. ]Perkin Warbeck was a notorious pretender to the throne in the late fifteenth century. He claimed he was Richard, Duke of York, son of Edward IV. He was banished by Henry VII but welcomed by James IV of Scotland. Warbeck proclaimed himself Richard IV in 1496 and was captured as he led an uprising to seize the crown.
[1. ]The functions of the House of Lords included serving as a supreme court and also trying persons impeached by the House of Commons. When Dr. Shirley appealed to the House of Lords against Sir John Fagg, a member of the Commons, however, the Commons refused to allow Fagg to answer while Parliament was sitting and voted the suit a breach of their privilege. See David Ogg, England in the Reign of Charles II (London, 1972), 470-71.
[2. ]With no one contradicting.
[3. ]For [in favor of] altars and hearths.
[4. ]See, for example, Robert Sibthorpe, “Apostolike Obedience. Shewing the Duty of Subjects to pay Tribute and Taxes to their Princes, according to the Word of God” (London, 1627) and Maynwaring, vol. 1, 56-71.
[5. ]Robert Sanderson, an Anglican theologian and chaplain to Charles I and later Bishop of Lincoln, wrote a preface to a book written by James Ussher, Archbishop of Armagh, at the command of Charles I and published by Sanderson, entitled “The Power communicated by God to the Prince, and the Obedience required of the Subject” (London, 1661).
[6. ]25 Car. II, cap. 2, An Act for preventing dangers which may happen from Popish recusants, 1673.
[7. ]Acts passed by the Cavalier Parliament that imposed special oaths were the Corporation Act, 13 Car. II, st. 2, cap. 1 (1661); the Militia Act of 1662, 14 Car. II, cap. 3; the Uniformity Act, 14 Car. II, cap. 4 (1662); the Five Mile Act, 7 Car. II, cap. 2 (1665).
[8. ]May not kill itself.
[1. ]Henry III was the son of King John.
[1. ]Honors change customs.
[2. ]See House of Commons, 13 April 1671, CJ, IX, 235, 239, 509.
[1. ]The “test” here referred to should not be confused with the Test Act of 1673, which aimed to keep Catholics from holding public office.
[2. ]The Act of Oblivion, 12 Car. II, cap. 11, An Act of free and general pardon, indemnity and oblivion, 1660 pardoned those who had opposed the royal cause during the “late distractions” with some few exceptions.
[3. ]The Act of Supremacy, 1 Eliz. I, cap. 1 (1559) contained the Oath of Supremacy, which acknowledged the English monarch as “the only supreme governor” of the realm “as well in all spiritual or ecclesiastical things or causes as temporal, and that no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, preeminence or authority ecclesiastical or spiritual within this realm.” Anyone refusing to take the oath suffered loss of ecclesiastical or temporal and lay promotion and office and was disabled thereafter from retaining or exercising any such office.
[4. ]The Corporation Act, 13 Car. II, st. 2, cap. 1 (1661) required town officials to take an oath declaring “it is not lawful upon any pretence whatsoever to take arms against the king. . . . I do abhor the traitorous position of taking arms by his authority against his person or against those that are commissioned by him.”
[5. ]The Militia Act of 1662, 14 Car. II, cap. 3, An Act declaring the sole right of the Militia to be in the King, and for the present ordering and disposing the same required that no peer would be capable of serving as a lieutenant or deputy lieutenant unless he swore “that it is not lawful upon any pretence whatsoever to take arms against the king, and that I do abhor that traitorous position that arms may be taken by his authority against his person or against those that are commissioned by him in pursuance of such military commissions.”
[6. ]The Uniformity Act, 14 Car. II, cap. 4 (1662) included an oath swearing “unfeigned assent and consent to all and every thing contained and prescribed in and by the book entitled the Book of Common Prayer” and a second oath similar to that required of militia officers foreswearing taking arms against the king and including a declaration to “conform to the liturgy of the Church of England as it is now by law established; and I do declare that I do hold there lies no obligation upon me or any other person from the oath commonly called the Solemn League and Covenant to endeavour any change or alteration of government either in Church or State. . . .”
[7. ]The Act of Uniformity was to take effect on St. Bartholomew’s Day 1662. The choice of day seems unpolitic as it doubtless reminded the aggrieved nonconformists of the notorious St. Bartholomew’s Day massacre, 23-24 August 1572, a massacre of Protestants in Paris and the French provinces.
[8. ]The Five Mile Act, 7 Car. II, cap. 2 (1665) forbids nonconformist ministers and unlicensed preachers from coming within five miles of the parish where they had been the incumbent unless they first consented to “the use of all things contained in the Book of Common Prayer,” or subscribed to the declaration contained in the Uniformity Act and, in addition, swore an oath identical to that in the Militia Act and Uniformity Act with the additional requirement “that I will not at any time endeavour any alteration of government either in Church or State.”
[9. ]References to the “Declaration” here and on the following pages are to Charles II’s Declaration of Indulgence of 15 March 1672. The king bowed to pressure and cancelled the Declaration on 8 March 1673.
[10. ]Thus the Archbishop of Canterbury might become Pope not only of another world, but also of another religion.
[11. ]In February 1675 an Order in Council and royal Declaration were issued insisting upon enforcement of the laws against nonconformists.
[12. ]The reference is to the “Scotch Lord,” James Maitland, Duke of Lauderdale. The two new ministers are Sir Thomas Osborne, Earl of Danby, appointed Lord Treasurer in October 1673 and Heneage Finch, Earl of Nottingham, appointed Lord Keeper of the Seals the same year.
[13. ]Charles had issued orders in January 1675 calling for the enforcement of the laws against Nonconformists and Catholics.
[14. ]Chapmen were traders or peddlers.
[15. ]A kingdom within a kingdom.
[16. ]Judges had to take an oath to do common right to all the king’s people, notwithstanding any command of the king to the contrary.
[17. ]The reference is to Charles II’s Declaration of Indulgence of 1672.
[18. ]The ultimate purpose of senates and of councils.
[19. ]The reference is to Henry Ireton.
[20. ]Archbishop William Laud’s Canons of 1640, “Constitutions and canons ecclesiastical, treated upon by the . . . convocations . . . of Canterbury and York . . . ,” imposed an oath upon all archbishops, bishops, priests, and deacons “for the preventing of all innovations in doctrine and government.” In addition to swearing that the doctrine, discipline, and church government as established in the Church of England contained all things necessary to salvation, they had to swear not to “ever give my consent to alter the government of this Church . . . as it stands now established.”
[21. ]In this chapter of the Bible the people of Israel ask Samuel, their elderly judge, to allow them to have a king like other peoples. Samuel resists but at God’s urging warns them of the ill consequences of monarchy. When they still persist God instructs Samuel to “make them a king.”
[1. ]Charles II’s brother James, Duke of York.
[2. ]Edward Fitzharris was an Irish Catholic informer employed by the Court against the Whigs. The House of Commons attempted to impeach him, presumably in hopes of implicating Danby and the Duke of York in the Popish Plot. When the Lords refused to cooperate the Commons passed a resolution of the House of Commons that no inferior court could proceed against Fitzharris. Nevertheless he was brought to trial in King’s Bench in 1681 charged with a seditious libel and an intent to bring in the French to overthrow the king. He was found guilty and executed.
[3. ]An incomplete thing.