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Judgment for want of understanding that Judgment of the Lords; for nothing can be more exprefs and plain for it and fays directly, That fitting the Parliament, or within ufual times of priviledge, no Peer shall be molested, unleß for Treafon or Felony, or for refufing to give Security for the Peace. The Earl of Devonshire did all that the Judges could require of him, by finding Sureties for the Peace; and what the Judges did more, was not grounded upon that Judgment of the Lords, but was a manifeft and prefumptuous invafion and violation of the Priviledges of the whole Peerage of England.

It is very obvious how the Peerage has been undermined ever fince Hen. VII's time, what Endeavours have been used to make it lefs and lefs, firft, by multiplying the number of them; fecondly, by raifing people of mean extraction to that Dignity, both which tend to render it contemptible but nothing can make it more defpicable, than that its Priviledges fhould depend upon the beck of the King's Bench: and therefore confidering how groundless and without prefident it is, what they have done in the Cafe of the faid Earl, it is no more than probable, that they thereby aimed at pulling down the Peerage. For, what feems fo likely as it does? It carries its Evidence in its Face, for it manifeftly takes away the priviledge of the Peers, and till it does appear for what other end it was done, all Men of Sence, and that are unprejudic'd, must believe it was to pull down the Peerage; for all that can be pretended, is, either to secure the Peace, or to punish the Offence. The Earl did give Security for the Peace, and he did not defign to shift off his Tryal, bur that it should be in its proper feafon; for tho' it

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delay'd the Trial, yet it brought it to the proper time, and fo confequently the more legal and reasonable but the Judges must go out of the way of Reason and the Law, to make a breach' in the priviledge of the Peers. It is too commonly the Difcourfe every where, and I fear with too much reafon, That the Judges make very bold with the Law; but it's plain by this Judgment, that they bave ftuck the priviledges of the Peers under their Girdle. Whether it did proceed from Ignorance or Corruptneß, will appear upon what they fhall fay for themselves: it's too plain from one of them it is, and either of yours renders them unmeet to fit in that place. I do remember, that the puny Fudge gave this Reason for over-ruling the Earl's Priviledge: fays he, Your Lordship, and all the Peers, receive all your Priviledges from the King, and therefore it would be very unreasonable to make ufe of them against him: and feeing the King in concerned in this Cafe, I am of the opinion, that their Plea be over-ruled. It is faid, that he has fome Law, and therefore it's the greater prefumption in him to judge upon the Lords Priviledges, who is not qualified by Law to fit as a Judge in any Cafe, for he is a Papift, as every body fays, and fo confequently has not taken the Oaths and Teft that the Law enjoins, before he take his place on the Bench.

But as to his Doctrine which he laid down, fince it does not properly come into this Debate, will only ask him a few Queftions, Whether there was not a People before there was a King? Whether the King begot all his People; and if people of feveral Nations should be cast upon an Island, and seeing no probability of getting thence, they agree upon cer

tain Laws and Rules for the Common Good, and make choice of the wifeft Man amongst them as their King, to rule and govern them according to thofe Laws, can it then be faid, that the People received their Priviledges from him, or that he is not strictly bound to govern them by thofe Laws and no other? I defire to ask this one Queftion more: Whether the King is not bound, as well by bis Oath as by the nature of the Government, to protect and defend every Subject in bis just Rights and Properties? But allowing his Doctrine as orthodox, yet his Reason is admirable; for the Subject is not to make a defence in any Cafe, if the King have any Title or Concern in it, all Corporations must deliver up their Charters of course, whenever a Quo Warranto is brought; and, why? because it was a Grant from the King, and it would be very hard to oppose him with his own Gift: whoever holds any thing by Gift from the Crown, and tho' made as fure as the Broad Seal can make it, yet if the King think good to queftion it, the party must yield it up without infifting upon his Right, for the Reafon given by the learned Judge: for the fame Reafon every Peer, if denied his Writ, mult not demand it; nay, he muft furrender his Patent, and renounce his Title, as far as in him lies, if the King require it: And for the fame reafon, when any man is called to an account for his life, he must make no defence, but submit himself to the King's Mercy; for all we have is from the King, and nothing must be difputed when it is his pleasure to question it: This is indeed to make the King as abfolute as any thing on Earth can be, yet is withal to make him the most unjust Prince that ever fate on the English Throne. This

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fort of Justice is learnt from Children, whofe Gifts continue good no longer than the Donor remains in that kind mood. Surely nothing can more reflect Dishonour upon the King, for it makes him as unjust and uncertain as any thing can be, both which fhould not be in the Temper, much less in the Actings of a Prince.

Another Reason was given, I think, by the Chief Juttice, or elfe by Mr. Juftice Holloway, because it was abfolutely necessary for the fecuring of the Peace, it was urg'd fo far, as if the Peace could not be fecured without it. Surely all this must be but gratis dictura, for my Lord Devonshire, by finding Sureties, had done all that the Law does require for fecuring the Peace, unless they had clapt him up a close Prisoner; which they could not juftific, if he tender'd Sureties: and therefore, either my Lord Devonshire is different from all Mankind, and a different method must be made use of to fecure the Peace, or else this Argument of theirs favours not fo much of Reafon as of fomething elfe, that ought to be no Ingredient when they give Judgment in any Cafe; and it furpaffes common fence to understand, how the over-ruling my Lord's Plea could tend to the fecuring of the Peace; cither the Security which he had given muft awe him to keep the Peace, or the other could not, for he had broke the Peace again, and repeated it feveral times before he came to his Trial, yet that could not effect the Merits of the Caufe, neither could it be given in evidence at the Trial, fo as to alter the fate of the Fact; neither could the Judges, by reafon of it, enhaunce his Punishment if he were found guilty, but they must look upon it as a diftin&t Offence, and fo might require the grea

greater Security for the Peace, and for a longer

time.

Indeed it is an effectual way to prevent a man from breaking the Peace, to lay fuch a Fine upon him as is impoffible to be paid immediately, and to commit him till payment.

It is too probable that the Judges being concious how liable they have made themselves to be called in queftion for this Sawcinefs and trampling upon the Law, would debafe and bring under the Credit and Authority of this Court, because no other can take cognizance of their proceedings, fo as to correct their Errors and Mistakes; it is only here that they can be called to an account for what they do amifs, no Court can punish them but this fo that if they can once top your Lordfhips, there is nothing that they need stand in awe of, nothing to reftrain them, but they may act ad libitum, not per legem; for, let this Court be depreft, and they may fay, Of whom then need we be afraid? By what they have done already they have fufficiently fhewn to what Extravagances they will proceed when they think themselves to be out of the reach of this Court.

If once the King's Bench can fet it felf as high as the Judges have attempted by this proceeding against my Lord Devonshire, then mult the whole Nation (your Lordships not excepted) stoop to all the Extravagances and monftrous Judgments that every corrupt and ignorant fellow shall give, who shall chance to get up to the Bench; and not only this prefent Age hall feel and undergo the Mischief, but it will be entail'd upon all fucceeding Generations. Well then, did the Judges attempt that which would bring your Lordships fo low, and

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