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SECONDLY, Because in those lesser cases of appeals from Chancery, and Writs of Error, where only money is concern’d; yet it inay be observ'd, that even there an arbitrary decision of the Lords is submitted to, only that it may be taken from the Chancellor and the Judges : And indeed by setting up an assembly to which we may in those cases appeal, the subjects are not expos’d, but rather secur'd against too much power in the Chancery, and in other Courts below.
THIRDLY, Tho' it must be confess’d, that by the word (Parliament) is sometimes meant only the House of Lords; as when causes are said to be brought into Parliament, or the like; yet that is only because the other House has nothing to do in such matters, and therefore it needs no explanation: and 'tis the same when we speak of Elec. tions to Parliament, where the House of Commons alone must needs be understood, because there are no Elections into the other House. But how is it posible that in a new Law, and of the greatest importance imaginable, and for the quiet settlement of all people's minds for the future, it should be meant of one House only, and yet express’d
ambiguously, or rather indeed plainly to the contrary, by the word (Parliament) which is an assembly necessarily compos'd of two Houses?
I can imagine no reply will be made to this, unless st could be pretended that in the time when this Act was made, the word (Parliament) always signified the House of Lords only; even just as the word (Peers) does now : But it is manifestly the contrary in all the histories and records of that
age. THE Second opinion was, That by these words (the Judges shall tarry till the cause be shew'd and declar'd before the King and his Parliament) it is intended there should be a new Act of Parliament in any such case, before the party bc condemn’d; and after that, the Judges and Juries shall find the same fact Treason ever after.
Now to this I have these objections.
ist, THERE is nothing in these words importing any obligation on the Judges after the case hath once been stated, and brought into Parliament; they are only directed to stay proceedings, and to bring it hither.
AND 2dly, If the Judges had been so oblig’d, yet that had been a good argument
against our interpreting it to be meant of an Act of Parliament, and so one part of this opinion destroys the other : For, to what purpose should a Parliament in EDWARD the Third's time authorise, or direct all future Parliaments ? 'Tis authorising, to declare that what those Parliaments enact, shall be Law; and it is directing, to say, That whenever such Law shall pass, inferiour Courts should act ever after by the same measure. Whereas certainly the prudence of a present Parliament is likely to judge better of what new power should be then given the Judges, than one in EDWARD the Third's time, so many hundred years before any such new crime was committed.
The other interpretation of this clause was, That both Houses were meant by the word (Parliament) for, say they, it was needless to authorise King, Lords, and Commons, who have always an unlimited power; and it had been giving too great an authority to onc House only, viz. the House of Lords ; and therefore the nieaning must needs be, that a Parliament compos'd of both Houses should interpret all such cases which are too hard for the Judges, and not express’d in this Law plainly enough for them to presume to mcddle with it,
Now this perhaps would be a plausible interpretation, if the words had not been (before the King and his Parliament.) For, tho' to the first opinion of its being meant of the House of Lords only, the mentioning a King is no objection ; because his name is always used in a Court of Judicature, where he is supposed to be virtually present; and because Westminster-ball it self where the Judges sate was anciently a part of that house where the King liv'd : Yet to those who take it to be meant of both Houses, it is a very good objection; because there is no colour of reason for the King's being so nam'd in the clause, if the two Houses are enabled by it to declare new Treasons without him, and perhaps even against his opinion,
THE two Houses of Parliament have certainly a very great authority as well as credit in this nation ; and whatever they concur in, will bear such a weight along with it, as to break through almost any opposition, But yet there are bounds set even to the Royal Prerogative, and to the two Houses also; by which no alteration is allow'd to be made by them alone in any Law, much less in this the most important of all our
Laws. An Act too sacred to be changed by any power less than omnipotent ; I mean the Legislature, consisting of King, Lords, and Commons joined together.
But now my greatest task begins; and I find it much easier to make objections, than to establish any thing that shall be liable to none. However, if I went no farther in a natter of so much difficulty, it may be of fome use to expose all erroneous interpretations; since any positive mistake of this clause is fatal, and a thousand times more dangerous, than a modest doubtfulness under so great an uncertainty.
YEt because it may be of some little use to my self, and cannot in the least be
prejudicial to others; I am resolv'd to guess a little what the meaning of this oraculous clause should be, which runs in these words : f“ And because that many other like cases « of Treason may happen in time to come, < which a man cannot think nor declare
at this present time; it is accorded, That
if any other case, supposed Treason, which " is not above specify'd, doth happen before
any Justices, the Justices shall tarry without going to judgment of the Treason, 'till the cause be show'd and declar'd before