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virtually present; especially in that supreme Court, at the upper end of which his throne is ever under a canopy, and where he comes himself on all folemn occasions.
OTHERS are of opinion, That at this time when such care was taken to limit treasons, and retrench so many as were before at the common Law, it could not be the mcaning of that cautious Parliament, in the same act of security to the subjects, to set up an arbitrary power, tho' in the highest Court, of making new treasons as often as the Judges should bring it before them: And therefore they conclude, since these words (the King and his Parliament) are in their plain fignifacation (an Act of Parliament), and since the reason also appears to be on that side, because an Act for limitation of treasons would hardly establish an unlimited power to declare new ones ; that it ought to be thus understood, viz. That since there may happen crimes of so dangerous a nature, as to appear before the Judges of equal guilt with those which are mention'd in this Act; yet they are here strictly forbid to meddle with them. So this clause is an additional caution for the security of the subject, in re
straining those who are but too apt to make inferences of severity, in flattery to that Government from which they expect advancenicit.
But, at the same time, in terrorem, all is refer'd to a Parliament (King, Lords, and Commons) who, for extraordinary crimes against the publick good, may provide as unusual punishments, by that arbitrary power which is safely entrusted no where else.
THESE tivo opinions have been argụed very much of late years since the Earl of STRAFFORD's business; and they who maintain them, have yet agreed in this ; that by that clause of King EDWARD, whatever case shall be determin'd either in the Lord's house (according to one opinion) or by an Act of Parliament (according to the other) that determination shall be a new settlement of the Law for the future; and that crime must be judg’d treason in Westminster-hall for ever after, by force of this statute of EDWARD the Third : And therefore (say they) to avoid that inconvenience of encreasing the number of treasons, that Act against the Earl of STRAFFORD expressly forbids it to go farther, or be a precedent to inferior Courts; without which caution, it must have been now
a settled treason for any man to say and do those things that were prov'd against that Earl; some of which are of so ambiguous a nature, that so prudent a Parliament was very much divided in the interpretation of them; and therefore universally agreed, that such a dubious case should never be subject to the determination of common Judges and Jury.
I know very well, at that time, (as 'tis usual in Parliament debates) and often fince, it has been urg'd as a reproach to that proceeding against my Lord STRAFFORD, that even in the Act which destroy'd him, yet care is taken against any such severity for the future.
BUT that is a perfect mistake in some, and a meer fallacy in others; for the care of that Parliament for the future, in the cases of others, is only as I have express’d it above, for fear the ordinary Courts below should follow, and perhaps mistake the precedent, according to this clause of EDWARD the Third : and not in the least to confine a future Parliament (which is impossible) or to censure themselves as doing a thing then, which even they who did it thought it too severe ever to be done again : For either of
those intentions, of confining a future Parliament, or of censuring themselves, is such a weakness, as not only the Three Estates of a Nation, but no three men in it are possibly to be imagin'd capable of.
Whereas it was very wise and just in them to consider that, altho' by the necessity of the times and iniquity of those arbitrary designs in which my Lord of STRAFFORD was so very able an instrument, it was thought just and fit to destroy onę man, in order to save the whole ; yet such a case was much too nice for inferior Judges to determine, or imitate them in ; and therefore they restrain’d them by that particular clause in the Bill against my Lord of STRAFFORD, which has made so much noise in the world; but without which, it is very probable the Judges would have made as much mischief.
BESIDES these two opinions of that clause in the Act of 25 EDWARD III, therę is another interpretation of it; which supposes, that it neither meant there should be an Act of Parliament to declare a new treason, nor that one House of Parliament alone should be trusted with such an arbitrary power; but that by the word (Parliament) is to be
understood the Two Houses together, which constitute it; with whom the King too is supposid to be virtually present, who yet have not power in themselves alone to declare a new treason, without authority given them by this clause.
Whereas it was wholly unnecessary, in case an Act of Parliament was meant; because a King, Lords, and Commons (who must all join to pass an Act) have need of no such clause either to empower or defend them.
Tho' all these three opinions have been countenanc'd by very able men, I hope it will be no arrogance to make objections to them all. However, I fhall have two of them still on my fide, while I am disputing against the third.
The first opinion was that of the House of Lords only being meant in this clause ; with which I must needs differ, tho' unwillingly, for these reasons.
FIRST, Because so great and arbitrary a power as this, can never be suppos'd given by Three Estates to only one of them ; by which the lives and fortunes of all the subjects in England would be at the disposal of the Peers,