<!DOCTYPE ETS PUBLIC "-//UMDLPS//DTD EEBOPROOF 2.0//EN">
<ETS>
<TEMPHEAD>
<REVDESCR>
<CHANGE>
<DATE>2011-03-04</DATE>
<RESPSTMT>
<NAME>Megan Marion</NAME>
<RESP>MURP</RESP>
</RESPSTMT>
<ITEM>Checklist: x Add TEMPHEAD, change DATE, validate xAdd DIV TYPEs, validate xReview structure, use FRONT,BODY, BACK or rarely GROUP xCheck PB placement and completeness, ensure sequence of N="" xProof title page(s) xCheck HEAD TRAILER ARGUMENT EPIGRAPH OPENER CLOSER SIGNED SALUTE BYLINE xCheck ^, oe, abq, italic I / J, _Initals, space between &amp;c. xCheck # @ -- UNCLEAR LB FIGURE xCheck q; startq endq Q xCorrect illegibles from proofsheet xCheck illegible page, para, line, span, word, dollar signs Final validate
Corrected [ ] illegible groups out of [ ]. Converted [ ] illegible groups to GAP DESC="illegible". DONE</ITEM>
</CHANGE>
</REVDESCR>
</TEMPHEAD>
<EEBO>
<IDG S="marc" R="UM" ID="A70545">
<STC T="W">L693</STC>
<BIBNO T="oclc">12877218</BIBNO>
<VID>94869</VID>
</IDG>
<TEXT LANG="eng">
<FRONT>
<DIV1 TYPE="title page">
<PB REF="1">
<P>THE <HI>Two great Que&s;tions,</HI> WHEREON In this pre&s;ent Juncture of AFFAIRS, THE PEACE &amp; SAFETY OF HIS Maie&s;tie's Per&s;on;</P>
<P>And of all HIS <HI>Prote&s;tant Subjects</HI> In His Three KINGDOMS next under <HI>GOD</HI> Depend: Stated, Debated, and Humbly Submitted to the Con&s;ideration of Supreme Authority, As re&s;olved by CHRIST.</P>
<Q>Doth our Law judge any man before it hear him? <BIBL>Jo. 7. 51.</BIBL></Q>
<Q>I &s;ay unto you, Love your Enemies, <BIBL>Matth. 44.</BIBL></Q>
<P><HI>LONDON,</HI> Printed for the Author, 1681.</P>
<PB REF="2">
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="text">
<PB N="1" REF="2">
<HEAD>The Two Great QUESTIONS whereon in this pre&s;ent Juncture of Affairs, the Peace and Safety of His Maje&s;tie's Per&s;on, and all his Prote&s;tant Subjects in his Three King|doms, next under God depend; Stated, De|bated, and humbly Submitted to the Con&s;i|deration of Supreme Authority.</HEAD>
<DIV2 N="1" TYPE="question">
<HEAD>QUEST. 1.</HEAD>
<P><HI>WHether an Act of Exclu&s;ion either of the Li|neal or Collateral Heir to the Crown, ought to be pa&s;s'd without Lawful Summons and Hear|ing?</HI> Neg.</P>
<DIV3 TYPE="part">
<HEAD>Objections again&s;t the Negative an&s;wered.</HEAD>
<P>Obj. 1. <HI>The Collateral Heir to the Crown</HI> Fugam fecit, <HI>therefore he ought to be Excluded without Summons or Hearing.</HI></P>
<P><HI>An&s;w.</HI> 1. The known Law of God, Nations, Nature, and Scripture is contrary; <HI>Joh.</HI> 7. 51. <HI>Doth our Law Judge any man before it hear him?</HI></P>
<P><HI>An&s;w.</HI> 2. The known Law of the Land is contrary, both Common Law and Statute; and particularly the Statutes of <HI>Magna Charta, and the Petition of Right.</HI></P>
<P><PB N="2" REF="3">
<HI>An&s;w.</HI> 3. There is no Malefactor, yea Felon, ought to be found guilty of a <HI>Fugam fecit,</HI> nor forfeit any thing for the &s;ame, untill he is brought to the Bar, Ar|raigned, put to Tryal, and found Innocent of the Fe|lony.</P>
<P>Object. 2. <HI>To Attaint or Condemn of any Crime by Par|liament without Summons and Hearing, may perhaps be un|lawful. But it doth not follow therefore, That EXCLU|SION of RIGHT without Summons and Hearing, is unlawful.</HI></P>
<P><HI>An&s;w.</HI> 1. To Exclude from <HI>Right,</HI> without Summons and Hearing, is as contrary to the Law of God, Nations, Nature and Scripture, as to Condemn of Crime.</P>
<P><HI>An&s;w.</HI> 2. 'Tis as contrary to the Law of the Land both Common and Statute, and particularly, the Sta|tutes of <HI>MAGNA CHARTA, AND PETITION OF RIGHT.</HI></P>
<P>Obj. 3. The Pre&s;s is open to the Papi&s;t, and the Prote|&s;tant afraid to Print; whereby the Prote&s;tant Religion and Liberty is Condemned without Hearing, and it will be im|po&s;&s;ible to Extirpate Popery and Slavery, without Free Liberty of Printing to the Prote&s;tant; neither do the Kingdoms of Darkne&s;s either of Pope or Turk build them|&s;elves on any deeper Fundamental, than that the fir&s;t per|mits no Printing but by Epi&s;copal Licence; and the Other permits no Printing at all: neither can any Humane Rea|&s;on be given Why the Doctrine of <HI>Wickliff,</HI> which compre|hended the whole Prote&s;tant Religion in far greater Purity than <HI>Luther</HI> or <HI>Calvin</HI> have done &s;ince, and was far more terrible to the Church of <HI>Rome</HI> than either of theirs; yet gave them not &s;o great an overthrow as the two latter have done; But only this, That <HI>Wickliff</HI> lived in a Time before
<PB N="3" REF="3"> the Invention of Printing was found; And <HI>Luther</HI> and <HI>Calvin</HI> &s;ince, From which Interdiction of the Pre&s;s by the Papi&s;t to the Prote&s;tant, whereby the Prote&s;tant Religion and Liberty, are condemn'd without Hearing, is objected this Conclu&s;ion. That it is a ju&s;t Retaliation to Condemn and Exclude the pretended Popi&s;h Religion and Liberty without Hearing, as they have done the Prote&s;tant.</P>
<P>An&s;w. <HI>It is more ju&s;t and ea&s;ie for the Parliament to puni&s;h &s;uch Per&s;ons as have contrary to the Law again&s;t</HI> Monopolies, Magna Charta, <HI>and</HI> Petition of Right <HI>Impri|&s;oned, Fined, or Pillory'd the Subject for U&s;ing the Lawful Trade of Printing without their Licences, by Example of Puni&s;hment on which Monopoli&s;ts, The Prote&s;tant will be re&s;tored to his Native Liberty of de|fending his Religion in Print.</HI></P>
<P>Obj. 4. The Publick Offices of Temporal and Spiritual Judges, Magi&s;trates and Sheriffs, are believed great part of them to have been placed contrary to the Acts of Parlia|ment, on the Recommendations of Papi&s;ts or their Tru&s;tees; It will be therefore impo&s;&s;ible to obtain any ordinary Legal Proceedings again&s;t the Collateral Heir from &s;uch Judges who are his Creatures. The Honourable Parliament there|fore have been nece&s;&s;itated to have recour&s;e to the Extra|ordinary way of endeavouring an Act of Exclu&s;ion, without Summons or Hearing.</P>
<P>An&s;w. <HI>The Cau&s;e of Succe&s;&s;ion is not now depend|ing before Inferior Judges, Temporal or Spiritual; but before the Supreme Court of the King and Parliament; And the time is a time of Peace, and not of War, the ordinary proceedings therefore of Peace ought now to be u&s;ed; which are Summons and Hearing. And not the Extraordinary without them, as in a time of War.</HI></P>
<PB N="4" REF="4">
<P>Obj. 5. <HI>It will be too late to delay, till a War or Rebellion break out and &s;urprize the Prote&s;tant with a Ma&s;&s;acre, &s;ee|ing Per&s;ons recommended by Papi&s;ts have already contrary to all Acts of Parliament, &s;eized by them&s;elves or Agents, on the Military as well as Civil and Eccle&s;ia&s;tical Offices and Power, and on the Commands of the Forces by Land and Sea, with the Publick Magazines of Arms and Trea&s;ure, intended by the Parliament to be given and received for the Defence of the Prote&s;tant.</HI></P>
<P><HI>An&s;w.</HI> It is le&s;s delay, and more ju&s;tly and ea&s;ily done by His Maje&s;tie's A&s;&s;ent to Summon all &s;uch Prin|cipal Per&s;ons, having &s;o offended again&s;t the Acts of Parliament, as His Maje&s;ty and his High Court of Par|liament &s;hall think fit, to appear in Per&s;on before His Maje&s;ty and Parliament, to an&s;wer to &s;uch things as &s;hall be objected again&s;t them; on who&s;e appearance, none doubts His Maje&s;ty and his Parliaments Power, by &s;uch ways as to their Wi&s;dom and Ju&s;tice &s;eem fit, to prevent their acting in any way of Rebellion and Ma&s;&s;a|cre again&s;t the &s;afety of His Maje&s;ty, and of his Prote|&s;tant Subjects; or in ca&s;e of their Refu&s;al, Contempt, or Neglect to appear, to take &s;uch further cour&s;e as &s;hall be by God's a&s;&s;i&s;tance mo&s;t ju&s;t, and conducible to the &s;ame ends.</P>
<P>Obj. 6. <HI>The Declaring of the Lineal Heir to be the Pro|te&s;tant Succe&s;&s;or, is an Exclu&s;ion of the Collateral Heir from Succe&s;&s;ion. But the declaring of the Lineal Heir to be the Prote&s;tant Succe&s;&s;or, may be without Summons of the Colla|teral Heir; Therefore there may be an Exclu&s;ion of the Collateral Heir without Summons. The</HI> Major <HI>cannot be denyed, and the</HI> Minor <HI>is plain; for after the Death of Queen</HI> Elizabeth, <HI>there were no le&s;s than Sixteen Preten|ders to the Succe&s;&s;ion of the Crown, who di&s;cover'd them|&s;elves, and more there might be undi&s;covered; whereby if a</HI>
<PB N="5" REF="4">
<HI>particular Summons were in &s;uch ca&s;e nece&s;&s;ary, the Preten|ders would be very difficult, and many times impo&s;&s;ible to be found and Summon'd: And fraudulently to evade &s;uch Summons they might convey them&s;elves into parts beyond Sea, or places concealed or dangerous to Summon; or Sum|moners not to be got who would dare to Summon them, where|by it would not lye in the Power of King and Parliament to make any Settlement of the Succe&s;&s;ion of the Kingdoms to prevent Civil Wars, and all future Calamities incident to the Incertainty of a Succe&s;&s;or.</HI></P>
<P><HI>An&s;w.</HI> 1. It is granted, That a Lineal Prote&s;tant Heir may be Declared without Summons of the Collateral, and that this doth &s;ufficiently Exclude the Collateral from the Succe&s;&s;ion; but this Declarator doth neither Exclude the Collateral Heir from Summons or Hear|ing; for though the Parliament do not actually Summon, or give him notice; yet their Proceeding in Voting a Prote&s;tant Succe&s;&s;or is &s;o Notorious and Publick, it gives &s;ufficient and general notice in Law to all Per&s;ons pretending any Right and Liberty to ad|dre&s;s them&s;elves to make their Claim, and to be heard on the &s;ame, and time likewi&s;e before it can pa&s;s the Negatives of the other Hou&s;e and the King.</P>
<P><HI>An&s;w.</HI> 2. This is Conform to the Judicial Proceed|ing in ordinary Courts of Ju&s;tice, wherein is allowed <HI>Admi&s;&s;io Tertii propter intere&s;&s;e;</HI> The receit of a Third Per&s;on, if he will addre&s;s him&s;elf by Petition to have his Right heard.</P>
<P><HI>An&s;w.</HI> 3. This is Conform to the Proceedings in Fines, wherein if the Party Intere&s;ted will make his Claim, he &s;hall be heard: But if he neglect, it is his own fault, and he is concluded by Non-claim, and this is held ju&s;t in private Rights, much more ought it to be, and greater nece&s;&s;ity there is allowable, <HI>Finem Li|tibus</HI>
<PB N="6" REF="5" MS="y">
<HI>imponere</HI> in Publick Rights of &s;o great Con&s;e|quence as Succe&s;&s;ions to the Crown; wherein it is &s;uf|ficient, if Liberty is allowed to Pretenders to make their Claims, and to be heard, though there be not tho&s;e de|lays of Time and Formalities allowed, as in Di&s;cu&s;&s;ion of private Rights, the &s;ame being incon&s;i&s;tent with the imminent Dangers of Kingdoms. But an Act of Exclu&s;ion of Right, neither allows notice in Deed or Law, nor what time may without danger be allow'd for Hearing, nor <HI>Admi&s;&s;io Tertii propter Intere&s;&s;e,</HI> nor Claim to be made; But takes away the Right of Parties intere&s;ted <HI>&s;ine facto aut defectu,</HI> contrary to the common Rule, <HI>Ne|mo debet rem &s;uam &s;ine facto aut Defectu &s;uo amittere.</HI></P>
<P>Obj. 7. <HI>An Act of Exclu&s;ion may be of any Per&s;on from Succe&s;&s;ion in Elective Kingdoms, without Summons or Hearing; But the Three Kingdoms are Elective Kingdoms, therefore an Act of Exclu&s;ion from Succe&s;&s;ion may be with|out Summons or Hearing.</HI></P>
<P><HI>An&s;wer.</HI> It is acknowledged, That the Kingdoms of <HI>England, Scotland,</HI> and <HI>Ireland,</HI> and of all other Na|tions, have been originally Elective by the People, till by the a&s;&s;ent of the &s;ame People, the &s;ame were by Po&s;itive Laws made Hereditary: And as to the Po&s;i|tive Laws of <HI>Great Britain,</HI> not only the Common Law, but the Acts of Parliament are full and clear in it, That the Succe&s;&s;ion of the Crown is Hereditary to the King's Elde&s;t Sons, is particularly enacted in the Statute 25 <HI>E.</HI> 8. <HI>cap.</HI> 2. <HI>De Proditionibus.</HI> And by the Statutes of <HI>Kenneth</HI> the Third, and <HI>Malcolm Macken|neth</HI> the Second, as related by <HI>Buchanan, Lib.</HI> 6. <HI>Rer. Scot.</HI> p. 191. 196. And <HI>Anno</HI> 10 <HI>H.</HI> 7. a Right pro|fitable Act was made before Sir <HI>Edward Poynings,</HI> then Deputy or Provo&s;t in <HI>Ireland,</HI> whereby it is Enacted,</P>
<PB N="7" REF="5">
<FLOATEXT LANG="eng" TYPE="act">
<P><HI>That all Statutes late made within the Realm of</HI> Eng|land, <HI>concerning or belonging to the Common or Pub|lick Weal of the &s;ame, from henceforth be deemed Good and Effectual in the Law, and over that be ac|cepted, u&s;ed, and executed within this Land of</HI> Ire|land, <HI>in all Points, at all times requi&s;ite, according to the Tenor and Effect of the &s;ame.</HI></P>
</FLOATEXT>
<P>And <HI>Coke</HI> &s;aith, 4 <HI>Part</HI> 351. That, <HI>Hill.</HI> 10. <HI>Jac. Regis,</HI> It was re&s;olved by the two Chief Ju&s;tices and Chief Barons, That this word <HI>(late)</HI> in the beginning of this Act, had the &s;en&s;e of <HI>(before)</HI> &s;o that the Act extended to <HI>Magna Charta,</HI> and to all Acts of Parliament of <HI>Eng|land,</HI> made before this Act of 10 <HI>H.</HI> 7. And by con&s;e|quence to the Act of 25 <HI>E.</HI> 3. <HI>cap.</HI> 2. So that by the Acts of Parliament both of <HI>England, Scotland,</HI> and <HI>Ire|land,</HI> nothing can be more clear than the making the Succe&s;&s;ion of all the Three Kingdoms Hereditary to the King's Elde&s;t Son. So, 1 <HI>Eliz. cap.</HI> 3. A Recognition is made by Act of Parliament, that the Crown law|fully de&s;cended to Queen <HI>Elizabeth,</HI> as the next Lineal Heir to <HI>H.</HI> 8. And 1 <HI>Jac. cap.</HI> 1. The like Recognition is made by Act of Parliament of the De&s;cent of the Crown to King <HI>James,</HI> as lawful Heir from <HI>H.</HI> 7. Un|le&s;s therefore the&s;e general Acts of Parliament of <HI>Eng|land, Scotland,</HI> and <HI>Ireland</HI> &s;o antiently made, and the particular Acts of Recognition of two Prote&s;tant Parli|aments &s;o lately made, all declaring the Succe&s;&s;ion of the Crown to be Hereditary, be fir&s;t repealed by new Acts, this Objection, That the Kingdoms are Elective, contrary to both Common and Statute Law, will &s;ig|nifie nothing.</P>
</DIV3>
<DIV3 TYPE="part">
<PB N="8" REF="6">
<HEAD>Rea&s;ons for the Negative.</HEAD>
<P N="1">1. It would be very di&s;honourable to the Prote&s;tant Religion, and the Supreme Court, which ought to give Example of Ju&s;tice to Inferior Courts, to do any thing Inju&s;t: And though Parliaments in time of Popery <HI>De facto</HI> u&s;ed to Exclude men of their Rights, and Con|demn them without Summons or Hearing, and the &s;ame is continually practi&s;ed by the inhumane Cruel|ty of the <HI>Romi&s;h Inqui&s;ition;</HI> yet, thanks be to God, it never was, nor we hope will be practi&s;ed by any Pro|te&s;tant Parliament, neither was it in time of War it &s;elf; but there were always Commi&s;&s;ioners of Claims to hear private Rights; and if the Publick were nece&s;|&s;itated to make u&s;e of them, or to change private <HI>Pro|perty</HI> or Po&s;&s;e&s;&s;ion to Publick benefit, they made accor|ding to Con&s;cience full compen&s;ation in value to the Owners.</P>
<P N="2">2. <HI>The Exclu&s;ion of Princes from any Right with|out Summons and Hearing, gives a Dangerous Prece|dent to Exclude all meaner Subjects from their Rights without Summons and Hearing; neither is it po&s;sible</HI> Magna Charta <HI>and the</HI> Petition of Right, <HI>if they fall as to one, can &s;tand as to the other.</HI></P>
<P N="3">3. His Maje&s;ty and the Major part of Prote&s;tants in his Honourable Parliament, will never a&s;&s;ent to any thing Inju&s;t or Di&s;honourable. It were vain therefore to attempt it.</P>
<P N="4">4. It will be incon&s;i&s;tent with Humane Society, and de&s;tructive to Innocent and Guilty Papi&s;ts and Prote|&s;tants alike.</P>
<P N="5">5. It will give a pretence to Foreign Popi&s;h Princes, and Inqui&s;itions to ju&s;tifie their barbarous Proceedings again&s;t Prote&s;tants beyond Sea.</P>
<P N="6">6. The <HI>Talio</HI> of a <HI>Legem quam Tuleras feras,</HI> may in
<PB N="9" REF="6"> the Interval of a Parliament, be return'd by the Pro&s;e|cution and Power of Papi&s;ts in publick Offices, Mili|tary and Civil, on any Member of Parliament, as was on <HI>Tho. Cromwell</HI> Earl of <HI>E&s;&s;ex,</HI> who &s;ollicited and pre&s;&s;ed the Judges to give an Extrajudicial Opinion, that the Parliament might attaint a man of High Trea|&s;on, without Summons and Hearing; which was &s;oon after executed by <HI>H.</HI> 8. on the &s;aid Earl of <HI>E&s;&s;ex</HI> him|&s;elf, who &s;olicited the &s;aid Judges to deliver &s;uch Opi|nion; which &s;hews that <HI>Malum Con&s;ilium e&s;t Con&s;ultori pe&s;&s;imum,</HI> on which <HI>Coke</HI> 4 <HI>Part, fol.</HI> 37. hath the&s;e words<HI>:</HI> I had it of Sir <HI>Thomas Gawdye</HI> Knight, a grave and Reverend Judge of the King's Bench, who lived at that time, King <HI>H.</HI> 8. commanded him to attend the Chief Ju&s;tices; and to know, <HI>Whether a man that was forth-coming, might be attainted of High Trea&s;on by Parliament, and never called to an&s;wer?</HI> The Judges an|&s;wer'd, That it was a <HI>DANGEROUS QUESTION,</HI> and that the High Court of Parliament ought to give Examples to Inferior Courts for proceeding according to Ju&s;tice, and no Inferior Court could do the like; and they thought that the High Court of Parliament would never do it. But being by the Expre&s;s Com|mandment of the King, and by the &s;aid Earl pre&s;&s;ed to give a direct An&s;wer; They &s;aid, That if he be At|tainted by Parliament, it could not come in que&s;tion afterwards, whether he were called, or not called to an&s;wer. And albeit their Opinion was according to Law, yet might they have made a better an&s;wer; for by the Statutes of <HI>Magna Charta, cap.</HI> 29. 5. E. 3. <HI>cap.</HI> 9. and 28 E. 3. <HI>cap.</HI> 5. <HI>No Man ought to be Condemned with|out an&s;wer,</HI> &amp;c. which they might have certified, but <HI>facta tenent multa, quae fieri prohibentur,</HI> the Act of At|tainder being pa&s;&s;ed by Parliament, did bind as they Re&s;olved. The Party again&s;t whom this was intended,
<PB N="10" REF="7"> was never called in Que&s;tion, but the fir&s;t Man after the &s;aid Re&s;olution, that was &s;o attainted and never called to an&s;wer, was the &s;aid Earl of <HI>E&s;&s;ex;</HI> where|upon that Erroneous and Vulgar Opinion among&s;t our Hi&s;torians grew, That he died by the &s;ame Law which he him&s;elf had made. The Rehear&s;al of the &s;aid At|tainder, can work no prejudice; for that I am confi|dently per&s;waded, That &s;uch Honourable and Worthy Members &s;hall be from time to time of both Hou&s;es of Parliament, as never any &s;uch Attainder, where the Party is forth-coming, &s;hall be had without hearing of him.</P>
<P N="7">7. The Papi&s;t cannot be plea&s;ed better, nor any thing more for his advantage done, than by Act of Parliament to Exclude the Collateral Heir without Summons or Hearing; becau&s;e he knoweth the next Parliament for him will make the Act of Exclu&s;ion <HI>NULL and VOID;</HI> though they can alledge no other Rea&s;on for Error, than that he was not according to the <HI>LAW of GOD, NATIONS, NATURE, SCRIP|TURE, MAGNA CHARTA,</HI> and <HI>PETITION of RIGHT,</HI> Summon'd and Heard: as appears was done in a great Ca&s;e concerning <HI>Thomas</HI> and <HI>Henry</HI> Earls of <HI>Lanca&s;ter,</HI> which is thus recited; <HI>Coke</HI> 2 <HI>Part. fol.</HI> 48. <HI>Thomas</HI> Earl of <HI>Lanca&s;ter</HI> was de&s;troyed, That is, ad|judged to Die as a Traitor, and put to Death in 14 <HI>E.</HI> 2. and a Record thereof made: And <HI>Henry</HI> Earl of <HI>Lanca|&s;ter</HI> his Brother, and Heir was re&s;tored, for two Princi|pal Errors in the proceeding again&s;t the &s;aid <HI>Thomas,</HI></P>
<P N="1">1. <HI>Quod non fuit araniatus, &amp; ad Re&s;pon&s;ionem po&s;itus tempere pacis, eo quod cancellaria, &amp; aliae curiae Regis fuer' apertae, in quibus Lex fiebat unicuique, prout fieri con&s;uevit.</HI></P>
<P N="2">2. <HI>Quod contra cartam de Libertatibus, cum dictus Thomas fuit unus parium, &amp; Magnatum Regni, in qua continetur</HI> (and reciteth this Chapter of <HI>Magna Charta,</HI> &s;pecially
<PB N="11" REF="7">
<HI>quod Dominus Rex non &s;uper eum ibit, nec mittet, ni&s;i per Legale Judicium par<GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">um &s;uorum, tamen per Recordum prae|dictum, Tempore Pacis ab&s;&abque; arainamento Re&s;pon&s;ione, &s;eu Legali Judicio parium &s;uorum, contra Legem, &amp; contra te|norem Magnae Chartae.)</HI> Here appears that an Act of Parliament made purpo&s;ely to exclude <HI>Thomas</HI> Earl of <HI>Lanca&s;ter,</HI> and his Brother <HI>Henry</HI> Earl of <HI>Lanca&s;ter</HI> from the Crown, is made Void and Null by a Parliament called after by <HI>Henry,</HI> who &s;ucceeded, and was after King <HI>Henry</HI> the Fourth, on a&s;&s;igning no other Errors but the&s;e Two, <HI>Viz.</HI> (1) That he was not Arraigned nor brought to an&s;wer, though it was in a time of Peace, when the Chancery, and other the King's Courts were open, in which Ju&s;tice was done to every one, as hath been accu&s;tomed to be done. (2.) Becau&s;e again&s;t the Charter of Liberties, when the &s;aid <HI>Thomas</HI> was one of the Peers and great Men of the Kingdom (and recited the Chapter of <HI>Magna Charta)</HI> e&s;pecially, That our Lord the King &s;hall not pa&s;s upon him, nor condemn him, unle&s;s by the Lawful Tryal of his Peers; yet by the Record afore&s;aid in a time of Peace, without Arraignment, An&s;wer, or Lawful Tryal of his Peers a|gain&s;t the Law, and again&s;t the Tenor of <HI>Magna Char|ta,</HI> &amp;c. he was Condemned. And &s;uch Exclu&s;ion with|out Summons and Hearing, will advance the Reputa|tion of the Title of the Collateral Heir, and di&s;parage and draw &s;u&s;pition of weakne&s;s on the Title of the Li|neal Heir; becau&s;e men u&s;e not to deny Hearing to any but to tho&s;e who&s;e right is better than their own, and whom they are not able to an&s;wer, but by &s;topping their Mouths, and not &s;uffering them to prove or di&s;pute again&s;t their own fal&s;e pretences. So did <HI>Edward</HI> the Fourth deal with Sir <HI>John Mortimer,</HI> whom he could not deny to be true next &amp; Lawful Heir to the Crown, as <HI>Coke</HI> relateth <HI>4th Part, fol.</HI> 38. And &s;aith as evil was the proceeding again&s;t Sir <HI>John Mortimer,</HI> third Son of
<PB N="12" REF="8">
<HI>Edmond</HI> the &s;econd Earl of <HI>Mar&s;h</HI> (de&s;cended from <HI>Lio|nel</HI> Duke of <HI>Clarence)</HI> who was Indicted of High Trea|&s;on for certain words; in effect, That <HI>Edmond</HI> Earl of <HI>March</HI> &s;hould be King by Right of Inheritance; and that he him&s;elf was next Rightful Heir to the Crown after the &s;aid Earl of <HI>March;</HI> wherefore if the &s;aid Earl &s;hould not take it upon him, he would: And that he would go into <HI>Wales</HI> and rai&s;e an Army of 20000 Men, <HI>&amp;c.</HI> which Indictment (without any Arraignment or Pleading) being meerly feigned to blemi&s;h the Title of <HI>Mortimers,</HI> and withal being in&s;ufficient in Law, as by the &s;ame appeareth, was confirmed by Authority of Parliament: And the &s;aid Sir <HI>John</HI> being brought into the Parlia|ment, without Arraignment or putting to An&s;wer, Judgment in Parliament was given again&s;t him upon the &s;aid Indictment; <HI>That he &s;hould be carried to the Tower of</HI> London, <HI>and Drawn through the City to</HI> Tyborn, <HI>and there Hanged, Drawn, and Quarter'd, his Head to be &s;et on</HI> London <HI>Bridge, and his four Quarters on the four Gates of London;</HI> as by Record of Parliament appeareth, <HI>Rot. Par.</HI> 2. <HI>H.</HI> 6. <HI>Nu.</HI> 18.</P>
<P N="8">8. Admit the Law &s;hould be proved doubtful in the point, whether an Act of Exclu&s;ion may be lawful or not, yet the Rule is undoubted, <HI>quod dubites ne feceris,</HI> when the &s;ame end may be better obtained in a way not at all doubtful, it would &s;eem therefore very conten|tious to ca&s;t all on a Querie in Law, to &s;pare the labour of &s;o &s;mall a Punctilio as Summons, when the &s;ame may be done with le&s;s labour, and the proceedings made clear and indi&s;putable in Law by giving it.</P>
<P N="9">9. Admit an Act of Exclu&s;ion might po&s;&s;ibly be pro|ved Lawful in &s;ome ca&s;e of Nece&s;&s;ity without Sum|mons; yet it is a Rule <HI>Non recur <GAP DESC="illegible" RESP="UOM" EXTENT="1 letter">itur ad remedium Ex|traordinarium ni&s;i deficit ordinarium,</HI> it is already &s;hewn, Here is no &s;uch ca&s;e of Nece&s;&s;ity; The time is of Peace, and not of War; the place is in the High Court of Par|liament, and not in the Camp.</P>
<PB N="13" REF="8">
<P N="10">10. It were a very dangerous thing to Expo&s;e &s;o great a Trea&s;ure as <HI>SALUS POPULI</HI> to &s;uch Di&s;putes as nothing can re&s;olve but the Sword, when God hath vouch&s;afed &s;o great a Mercy as a Prote&s;tant King, and Prote&s;tant Parliament, giving &s;o great Hopes of &s;atisfy|ing all de&s;ires, ju&s;t honourable and nece&s;&s;ary to publick Safety in Peace.</P>
</DIV3>
</DIV2>
<DIV2 N="2" TYPE="question">
<HEAD>QUEST. 2.</HEAD>
<P><HI>Whether an Act of Oblivion ought at pre&s;ent to be granted both to the Lineal and Collateral Heir of the Crown and their Adherents?</HI> Aff.</P>
<DIV3 TYPE="part">
<HEAD>Objections again&s;t an Act of Oblivion.</HEAD>
<P>Obj. 1. If an Act of Oblivion &s;hould pa&s;s, then will all the Pri&s;oners in the <HI>Tower</HI> and other Pri&s;ons charged with Trea&s;on, be again let loo&s;e, All Je&s;uits, Seminaries, corrupted Judges, Spiritual and Tem|poral, Donatees, Pen&s;ioners, Sei&s;ers or Receivers of the Publick Trea|&s;ure, Magazines and Arms would be cleared from all account and re|&s;titution, and Papi&s;ts be in better Condition than Prote&s;tants.</P>
<P>An&s;w. <HI>No Act of Oblivion u&s;eth to be without Exceptions, which the King and Parliament may in&s;ert, as it &s;hall plea&s;e to direct them.</HI></P>
<P>Obj. 2. <HI>Papi&s;ts though di&s;po&s;&s;e&s;&s;ed of Publick Offices, Forts and Fleets, yet may retain their old, and provide new Arms in &s;ecret for the Field, which is more dangerous; for the Forts will again open their Gates to him who Conquers in the Field, and the Fleets return again to his Po&s;&s;e&s;&s;ion who takes the Sea Towns; there can be no Security there|fore again&s;t Papi&s;ts, but Bani&s;hment, which cannot con&s;i&s;t with an Act of Oblivion.</HI></P>
<P><HI>An&s;w.</HI> 1. Bani&s;hment is not nece&s;&s;ary of Lay-Papi&s;ts, &s;eeing the Acts of Parliament have already bani&s;h'd their Prie&s;ts and Je&s;u|its, and made it High Trea&s;on for them to come into or remain in <HI>England</HI> or <HI>Ireland;</HI> without who&s;e Diabolical Temptations, there appears no rea&s;on why the Lay-Papi&s;t &s;hould not de&s;ire the Peace &amp; Safety of their Native Country, &amp; their own E&s;tates, and to injoy their Con&s;cience, Liberty, and Property as free from Violation as the Prote&s;tants do them&s;elves, rather than hazard all they have on the Event of Rebellion or Inva&s;ion.</P>
<P><PB N="14" REF="9" MS="y">
<HI>An&s;w.</HI> 2. Bani&s;hment is either impo&s;ed as a Puni&s;hment or a Policy; if as a Puni&s;hment, it is unju&s;t and contrary to <HI>Magna Charta</HI> to Bani&s;h before Summons and Hearing; for that will pu|ni&s;h the Innocent and Guilty alike. If the Bani&s;hment is for Po|licy, this &s;eems mo&s;t unpolitick; For fir&s;t, this inforces all Potent Papi&s;ts to fly to a Foreign Enemy, who is ready to receive and form them and their followers into an Army, and to joyn his own Forces with them again&s;t their own Country. 2. This gives them a good Cau&s;e or pretence to fight again&s;t their Country with Foreigners in a <HI>&s;e Defendendo,</HI> and for Recovery of their own, and to a&s;&s;ociate them&s;elves on the &s;ame or like Grounds as Pro|te&s;tants have a&s;&s;ociated. 3. It is that which the &s;ubtle Je&s;uit de|&s;ires to draw the unpolitick Prote&s;tant to, that &s;eeing he is him|&s;elf Bani&s;hed by the Law, that an Army of <HI>Engli&s;h</HI> Papi&s;ts may be Bani&s;hed with him, that &s;o he may turn head with them on tho&s;e who have made them de&s;perate by the Inju&s;tice of making no di&s;tinction between the Innocent and Guilty, and to take the Re&s;olution of <HI>&V;na &s;alus victis nullam Sperare &s;alutem;</HI> Touching which, Hi&s;tories are full of Examples of Kingdoms de&s;troyed by the Bani&s;hment of but one &s;ingle Per&s;on, and much more by draw|ing many into a wrongful Exile. Very much more might be an|&s;wer'd of the Danger of &s;o deceitful an Expedient again&s;t Pa|pi&s;ts; which for Brevity is here omitted.</P>
</DIV3>
<DIV3 TYPE="part">
<HEAD>Rea&s;ons for an Act of Oblivion.</HEAD>
<P N="1">1. It being proved before, That no Act of Exclu&s;ion ought to be with|out Summons and Hearing, it nece&s;&s;arily follows, that who&s;oever is Summon'd before any Judge to be heard, he ought to have Protection <HI>eundo morando &amp; redeundo,</HI> and Summons <HI>ad Forum non tutum</HI> may ju&s;tly be ex|cepted again&s;t, and a Protection only <HI>eundo morando &amp; redeundo,</HI> is in&s;uf|ficient to make <HI>Forum Tutum</HI> without an Act of Oblivion.</P>
<P N="2">2. It cannot be hoped, that the Papi&s;ts being in po&s;&s;e&s;&s;ion by their Agents of &s;o much of the Arms and Forces by Land and Sea (and the Prote&s;tant di&s;armed) will deliver up their Arms, and hazard their Lives on a Tryal of Law, without an Act of Oblivion.</P>
<P N="3">3. <HI>Difficile e&s;t in tot humanis Erroribus &s;ola innocentia vivere.</HI> An Act of Obli|vion may be as &s;afe and nece&s;&s;ary for the Prote&s;tant as the Papi&s;t, unle&s;s they both intend to play off their Heads one to another <HI>alternis vicibus,</HI> as they did in the late Civil Wars, by the running of the Dice to make &s;port for Foreigners.</P>
<P N="4">4. Hi&s;tories are full, how all Inte&s;tine Di&s;cords, Seditions, Trea&s;ons, Rebellions, Civil Wars, and in particular the late unhappy Civil Wars in the Three Kingdoms have been accorded, and their Continuance prevented by Acts of Oblivion, and the happy Re&s;tauration of His pre|&s;ent Maje&s;ty, and Peace in Three Kingdoms, made and E&s;tabli&s;hed by the chief means next under God of an Act of Oblivion.</P>
</DIV3>
</DIV2>
</DIV1>
</BODY>
<BACK>
<DIV1 TYPE="errata">
<P>ERRATA. <HI>Pag.</HI> 13. <HI>line</HI> 21. <HI>read</HI> &s;hall plea&s;e God to direct them.</P>
<PB REF="9">
</DIV1>
</BACK>
</TEXT>
</EEBO>
</ETS>
