virtually prefent; efpecially in that fupreme Court, at the upper end of which his throne is ever under a canopy, and where he comes himself on all folemn occafions.

OTHERS are of opinion, That at this time when fuch care was taken to limit treafons, and retrench so many as were before at the common Law, it could not be the meaning of that cautious Parliament, in the fame act of fecurity to the subjects, to set up an arbitrary power, tho' in the highest Court, of making new treasons as often as the Judges fhould bring it before them: And therefore they conclude, fince these words (the King and his Parliament) are in their plain fignification (an Act of Parliament), and fince the reason also appears to be on that fide, because an Act for limitation of treasons would hardly establish an unlimited power to declare new ones; that it ought to be thus underfood, viz. That fince there may happen crimes of fo 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 claufe is an additional caution for the security of the subject, in reftraining

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ftraining those who are but too apt to make inferences of feverity, in flattery to that Government from which they expect advancement. But, at the fame 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 unufual punishments, by that arbitrary power which is fafely entrusted no where else.

THESE two opinions have been argued very much of late years fince the Earl of STRAFFORD's business; and they who maintain them, have yet agreed in this; that by that claufe of King EDWARD, whatever cafe fhall be determin'd either in the Lord's houfe (according to one opinion) or by an Act of Parliament (according to the other) that determination fhall be a new fettlement of the Law for the future; and that crime must be judg'd treason in Westminster-hall for ever after, by force of this ftatute of EDWARD the Third: And therefore (fay they) to avoid that inconvenience of encreafing the number of treafons, that Act against the Earl of STRAFFORD expreffly forbids it to go farther, or be a precedent to inferior Courts; without which caution, it must have been now

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a fettled treason for any man to say and do those things that were prov'd against that Earl; fome of which are of so ambiguous a nature, that fo prudent a Parliament was very much divided in the interpretation of them; and therefore univerfally agreed, that fuch a dubious cafe fhould never be fubject 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 deftroy'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 cafes of others, is only as I have express'd it above, for fear the ordinary Courts below fhould follow, and perhaps miftake the precedent, according to this claufe of EDWARD the Third and not in the leaft to confine a future Parliament (which is impoffible) or to cenfure themfelves as doing a thing then, which even they who did it thought it too fevere ever to be done again: For either of those

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those intentions, of confining a future Par liament, or of cenfuring themselves, is such a weakness, as not only the Three Estates of a Nation, but no three men in it are poffibly to be imagin'd capable of. Whereas it was very wife and just in them to confider that, altho by the neceffity of the times and iniquity of thofe arbitrary defigns in which my Lord of STRAFFORD was fo very able an inftrument, it was thought juft and fit to destroy one man, in order to fave the whole; yet such a cafe was much too nice for inferior Judges to determine, or imitate them in; and therefore they reftrain'd them by that particular clause in the Bill against my Lord of STRAFFORD, which has made fo 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, there is another interpretation of it; which fupposes, that it neither meant there fhould be an Act of Parliament to declare a new treafon, nor that one Houfe of Parliament alone fhould be trufted with fuch an arbitrary power; but that by the word (Parliament) is to be

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understood the Two Houses together, which conftitute it; with whom the King too is fuppos'd to be virtually present, who yet have not power in themselves alone to declare a new treafon, without authority given them by this claufe. Whereas it was wholly unneceffary, in cafe an Act of Parliament was meant; because a King, Lords, and Commons (who must all join to pafs an Act) have need of no fuch claufe 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 ftill on my fide, while I am difputing against the third.

THE first opinion was that of the Houfe of Lords only being meant in this claufe ; with which I must needs differ, tho' unwillingly, for these reasons.

FIRST, Because fo great and arbitrary a power as this, can never be fuppos'd given by Three Estates to only one of them; by which the lives and fortunes of all the fubjects in England would be at the difpofal of the Peers,