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Now I believe no man in the word uriprejudiced with a former opinion, will understand these words otherwise than thus. That, however enormous the cases shall happen to be, the Judges shall never go beyonď . the bare letter of this Law, but leave all to the safer judgment of Parliament.
And if a Parliament upon an extraordinary occasion, as that of the Genoa Embaffador, shall in their great prudence inflict any unusual punishment; by what colour of reason should that be construcd, as if they would have all the ordinary Judges hercafter do the same thing, without tarrying for their judgment?
ONE Parliament's proceeding is the best fort of precedent for another : But that it should be an example for inferiour Courts, is as preposterous and dangerous, as if a Schoolmaster should imitate a General, and instead of whipping a scholar, should put him to death by a general council of school-boys.
BESIDES, the very meaning of the clause is only to restrain the forwardness of inferiour courts; and yet this absurd interpretation enlarges their authority ; by which it is not hard to guess how it comes to be encourag'd.
Add to this also, that supposing it were fit to enlarge their power of judging any new
offence, why should not the same Parliament which first determines that offence, determine also what new power the Judges should have concerning it? whereas by their interpretation it must be understood, as if a Parliament in EDWARD the Third's time undertook to judge of new cases that might happen in ours, and increas’d the jurisdiction of future Judges in all those yet unknown cases.
Upon this vulgar error, the Parliament in my Lord of STRAFFORD's case, (bcing compos'd of some members infected with it, and of others who found it necessary to satisfy those members as well as the rest of the world in their fears about it) ex abundanti cautela, added this clause in that Act against the Earl of STRAFFORD. (“ Provided that “ no Judge or Judges, Justice or Justices « whatsoever, shall adjudge or interpret any “ Act or Thing to be Treason, in any other “ manner than he or they, should, or ought
to have done before the making of this Act, « and as if this Act had never been or made.")
This was so prudent a caution in that time of presumptuous Judges, (in imitation of the like wisdom express’d in an Act of the first of Queen Mary) that it ought not to be blam’d: tho it has accidentally con
firm'd many in their mistake about the Judges power, after that Act was pass’d, if this Proviso (last repeated) had not prevented it.
But certainly, if the Act of EDWARD the Third placed no such power in the Judges'; this clause against any such power, brought in for the greater caution, is far from giving a new interpretation to that Law, or any such addition ; especially fo dangerous a one as this would be.
It is not altogether foreign to this matter, if I observe another very common mistake about that Bill against my Lord of STRAF
Abundance of people, especially the old Cavaliers, understand this Proviso last recited as a reflection on the Bill it self; and as if his case was so very hard even in the opinion of the Parliament it felf, that it was ordered by this clause to be no precedent for the future.
This is a ridiculous error in many refpects : First, Because doing a thing in one Parliament, and ordering it to be no precedent to another, is an errant bull; since the very doing it, is, and must be a precedent at the same time 'tis ordered that it shall be none. Secondly, It would have been an unparallelld open injustice, to put one man to
death for such a crime, as even in the opinion of those who punish'd him, was not great enough to be capital in any other
per. son, or at any other time. And it will not weaken this argument to say, That it was an unjust, cruel Act, and therefore a good many dissented from it : For those dissenting members themselves could not be so uncharitable as to imagine all the members of both Houses who pass’d the Bill, not only so base and bloody as to be all the while against it in their consciences, but so foolish also as to own it in the very Bill it self. And therefore nothing can be plainer than that ?tis only a gross mistake among ignorant pcople, to think they meant it in that manner.
ACCORDINGLY, that Act of CHARLES II, which has revers'd this Bill of Attainder, and in the Preamble recited every thing imaginable in favour of that Earl, yet takes no notice of this clausę, which had more difcredited the Bill than all the rcft, if it could have been interpreted in that manner.
The last clause in the Bill is about Highway-men, who had formerly been condemn'd for Traitors, only to invest the Crown with their forfeited estates. Here it is most justly provided, that hereafter they shall only suf
fer as felons, or trespassers, according to the
I would not have communicated these rambling thoughts to any but a friend ; nor to your self neither ; if, among the several misinterpretations upon my resigningonegreat Employment, and refusing a greater, you had not suspected me of a little laziness; from which I hope this way of imploying my leisure, may be some vindication; and I wish it does not prove a much greater, by shewing I needed no other reason besides my disability, for not accepting the highest Poft in a profession I was never bred to; an honour too much, to think any man fit for, except a Lawyer.