204 TRACTS on all SUBJECTS. Hatton, Treasurer, Deputy of Scotland, managed all the Affairs and Councils there, exactly as he received Inftructions from his Brother the Duke of Lauderdale here: According to which, thofe in that Country, which these Creatures talk now of the difcovered Plot, to be only a malicious Forgery of two Rogues, Oates and Bedlow. Two SPEECHES made in the Houfe of PEERS. The one November 20, 1675 ; the other in November, 1678. By the Earl of SHAFTSBURY. hip cau Pro fho whe pro dies if th gun shal thei his wh Bre The Earl of SHAFTSBURY'S SPEECH to the Houfe of LORDS, upon the Debate of appointing a Day for hearing Dr. SHIRLEY'S Caufe, 20 November, 1675. My Lords, UR All is at Stake, therefore you must give me leave to fpeak freely before we part with it: My Lord Bishop of Salisbury is of Opinion, that we should rather appoint a Day to confider what to do upon the Petition, than to appoint a Day of Hearing; and, my Lord Keeper (for I may name them at a Committee of the whole Houfe) tells us in very eloquent and studied Language, that he will propofe us a way, far lefs liable to Exception, and, much Jefs offenfive and injurious to our own Privilege, than that of appointing a Day of Hearing, and I befeech your Lordships, did you not after all these fine Words expect fome admirable Propofal? But it ended in this, that your Lordfhips fhould appoint a Day, (nay, a very long Day) to confider what you would do in it. And my Lord hath undertaken to convince you, that this is your only Course by feveral undeniable Reasons, the first of which is, that it is against our Judicature to hear this Caufe (which is not proper before us) nor ought to be relieved by us. To this, my Lords, give me leave to answer, that I did, not expect from a Man profeffing the Law, that after an anfwer by Order of the Court was put in, and a Day hath been appointed for Hearing (which by fome Accident was fet afide) and the Plaintiff moving for a fecond Day to be affigned, that ever without hearing the Counsel on both Sides, the Court did enter into the Merits of the Caufe, and if your Lordships fhould do it here, in a Cause attended with the Circumstances this is, it would not only be an apparent Injuftice, but a plain Subterfuge to accord a Point you durft not maintain. But, my Lords, fecond Reafon fpeaks the Matter more clearly, for that is, because it is a doubtful Case, whether the Commons have not Privilege? And therefore, my Lord would have you to appoint a further Day to confider of it, which in plain English is, that your Lordships fhould confefs upon your Books, that you conceive upon fecond Thoughts, a doubtful Cafe, for fo your appointing a fecond Day will do, and that for no other Reason, but because my Lord Keeper thinks it fo, I hope will not be a Reafon to prevail with your Lordships, fince we cannot yet by Experience tell, that his Lordship is capable of thinking your Lordships in the right in any Matter against the Judgment of the Houfe of Commons; it is too hard a Thing for the ableft of Men to change ill Habits: But, my Lords, the Reason is the most admirable of all, which he ftiles unanswerable, viz. That your Lordfhips are all convinced in your own Confciences, that this if profecuted will cause a Breach: I befeech your Lordships confider whither this Argument thus applied would not overthrow the Law of Nature, and all the Laws of Right and Property in the World; for it is an Argument, and a very good one, that you fhould not ftand or infift upon Claims, where you have not a clear Right, or where the Question is not of Confequence, and of Moment in a Matter that may produce a dangerous and pernicious Breach between Relations, Perfons or Bodies Politick joined in Interest in high Concerns together. So on the other hand, if the Obstinacy of the Party in the Wrong fhall be made an unaniwerable Argument, for the other Party to recede and give up his juft Rights; how long Thall the People keep their Liberties, or the Princes the Governors of the World their Prerogative? How long the Hufband maintain his Dominion, or any Man his Property, from his Friends or Neighbours Obftinacy? But, my Lords, when I hear my Lord Keeper open fo eloquently the fatal Confequences of a Breach, I cannot forbear to fall into fome Admiration how it comes to pafs, that if the Conféquences be fo fatal, the King's Minifters in the House of Commons (of which there are feveral that are of the Cabinet, and have daily refort to his Majefty) and have the Direction and Truft of his Affairs; I fay, that none of those should prefs the Confequences there, or give the leaft stop to the Career of that Houfe in this Bufinefs, but all the Votes concerning this Affair, nay, even that Vote that no Appeals from any Court of Equity is cognizable by the House of Lords, fhould pafs Nemine Contradicente, and yet all the great Minifters with us here, the Bishops and other Lords of greatest Dependance upon the Court, contend this Point, as if it was pro aris & focis. I hear his Majefty in Scotland hath been pleased to declare against Appeals in Parliament, and I cannot much blame the Court, if they think (the Lord Keeper and the Judges being of his Majefty's making, and of his Power to change) that the Juftice of the Nation is fafe enough, and I, my Lords, may think fo too (during this King's Time) though I hear Scotland (not without Reafon) complain already, yet how future Princes may'ufe this Power, and how Judges may be made (not Men of Ability and Integrity) but Men of Relation and Dependance, and who will do what they are commanded, and all Men's Caufes come to be judged, and Eftates difpofed of as great Men of the Court pleafe. My Lords, the Conftitution of our Government hath provided better for us, and I can never believe fo wife a Body as the House of Commons will prove that foolish Woman, which pulls down her Houfe with her own Hands. My Lords, I muft prefume in the next Place, to fay fomething to what was offered by my Lord Bishop of Salisbury (a Man of great Learning and Ability) and always verfed in a clofer and ftronger way of Reafoning, than the Bufinefs of that noble Lord I answered before, did accuftom him to, and the reve rend Prelate hath ftated the Matter very fair on two Heads.: The The firft is, whether hearing of Caufes and Appeals, and especially in this Point where the Members have Privilege, be fo material to us, that it ought not, to give way to the Reafon of State, and greater Affairs that prefs us at this Time. The fecond was, if this Bufinefs be of that Moment, yet whether the appointing a Day to confider of this Petition, would prove of that Confequence and Pre judice to our Caufe. My Lords, to this give me leave in the firft Place to fay, that your Matter is no lefs than your whole Judicature, and your Judicature is the Life and Soul of your Dignity and Peer Right of England; you will quickly grow burdenfome, if you grow ufelefs; you have now the greatest and moft ufeful Ends of Parliament principally in you, which is not to make new Laws, but to redress Grievances, and to maintain the old Land-Mark. The Houfe of Commons Bufinefs is to complain, your Lordships to redrefs, not only them that are the Eyes of the Nation, but all other particular Perfons that addrefs to you. A Land may groan under a Multitude of Laws (and I believe ours doth) and when Laws grow fo multiplied, they prove oftener Snares than Directions and Security of the People; I look upon it as Ignorance and Weaknefs of the latter Age (if not worse, the Effect of the Design of ill Men) that it is grown a general Opinion, that where there is not particular Direction in fome Acts of Parliament, the Law is defective, as if the common Law had not provided much better, fhorter and plainer for the Peace and Quiet of the Nation, than intricate long and perplexed Statutes do, which hath made Work for the Lawyers, given Power to the Judges, leffened your Lordship's Power, and in a Meature unhinged the Security of the People. My Lord Bishop tells you, that your whole Judicature is not in queftion, but only the Privilege of the Houfe of Commons, of their Members not appearing at your Bar: My Lords, were it no more yet for Juftice and the People's fake, you ought not to part with it, how far a Privilege of the Houfe of Commons, their Servants and thofe they own doth extend, Westminster-Hall may with Grief tell your Lordships, and the fame Privilege of their Members being not fued, must be allowed to your Lordfhips as well, and what a Salver of Juftice you would prove whilft they are Lords for Life, and you for Inheritance, let the World judge, for my Part I am willing to come to a Conference, whenever the Dispute shall begin again, and dare undertake to your Lordships, that they have neither Precedent, Reason, nor any juftifiable Pretence to fhew against us; and therefore, my Lords, if you part with this your undoubted Right, meerly for afking, where will this ftop? And, my Lords, we are fure it doth not ftop here, for they have already (Nemine Contradicente) voted against your Lordships Power of Appeals from any Court of Equity, fo that you may plainly fee where this Caution and Reafon of State means to ftop, not one jot fhort of laying your Judicature afide for the fame Reafon of paffing the King Money, of not interrupting good Laws (or what ever elfe) muft of Neceffity avoid a Breach upon what Score foever, and your Lordfhips plainly fee the Breach will be made upon your Judicature, as upon thofe ; fo that when your Lordfhips have appointed a Day (a very long Day) to confider whether Dr. Shirley's Cafe be not too hot to handle, and when you have done the fame for Sir Nicholas Staughton (whofe Petition I hear is coming in) your Lord hips muft proceed to a Vote to lay all private Business aside for fix Weeks; for that Phrafe fprivate Business hath obtained upon this laft Age, upon that which is your most I publick publick Duty and Business, namely the Adminiftration of Juftice; and I can tell your Lordships befides, the Reason that leads to it, that I have fome Intelligence of denying fuch a Vote; for upon the fecond Day of our Sitting, at the rifing of the Lord's Houfe, there came a Gentleman into the Lobby, belonging to a very great Perfon, and afked in great Hafte, are the Lords up, have they paffed the Vote; and being afked what Vote, he answered of no private Business for fix Weeks. My Lords, if this be your Bufinefs, fee where you are, if we are to poft from our Judicature for fear of offending the Houfe of Commons for fix Weeks; that they in the interim may pafs the Monies, and other acceptable Bills, that his Majefty thinks of Importment. There are two many wife Men of the Houfe of Commons to be laid afleep, and to pafs all thofe acceptable Things; and when they have done, to let us be let loofe upon them, will they not remember this next Time there is Want of Money, or may they not rather be affured by thofe Ministers that are among them, (and go on fo unanimously with them) that the King is on their fide in this Controverfy, and when the publick Business is over, our Time fhall be too short to make a Breach, or vindicate ourselves in the Matter; And then I beg your Lordthips, where are you after you have affented? but the laft Seffion your Right of the Judicature fo highly, even in this Point, and after the House of Commons had gone fo highly against you on the other hand, as to poft up their Declarations and Remonftrances upon Weltminster-Hall Door, the very next Seffion after you poft down the very fame Caufes, and not only thofe but all Judicature whatsoever. I befeech your Lordfhips, will not this prove a fatal Precedent and Confeffion against yourselves? It is a Maxim and a rational one among the Lawyers, that one Precedent where the Cafe has been contefted, is worth a thoufand where there hath been no Conteft. My Lords, in faying this, I humbly fuppofe I have given a fufficient Answer to my Lord Bishop's two Queftions, whether the appointing of a Day to confider what you will do with the Petition, which is of that Confequence to your Rights, that it is a doubtful Cafe, and infinitely, ftronger than if it were a new Thing to you never heard of before; for it is that very fame Cafe, and very fame Thing defired in that Cafe that you formerly ordered, and fo ftrangely affected; fo that upon Time all the Deliberations imaginable, you declare yourselves to become doubtful, and you put yourfelves out of your own Hands into that Power you have no Reafon to believe on your Side in this Queftion. My Lords, I have all the Duty imaginable to his Majesty, and fhould with all Submiffion give way to any Thing that he fhould think of Importance to his Affairs; But in this Point, it is to alter the Conftitution of the Gavernment. If you are afked to lay this afide, and there is no Reafon of State can be an Argument to your Lordships to turn yourfelves out of that Intereft, you having the Conftitution of the Government. It is not only your Concern that you maintain your felves in it, but it is the Concern of the poorest Men in England, that you keep your Station. It is your Lordships Concern, and that fo highly, that I will be bold to fay, that the King can give none of Requital or Recompence for it. What are empty Titles, what is prefent Power or Riches, or a great Eftate, wherein I have no fixed or firm Property? It is the Constitution of the Government, and maintaining that fecures your Lordships, and every Man elfe in what he hath. The pooreft Lord, if the Birth-right of Peerage be main tained, tained, hath a fair Profpect before him for himself and his Pofterity. But the greatest Title, with the greatest prefent Power and Riches, is a mean Creature, and maintains this an abfolute Monarchy, no other wife than by fervile and low Flatteries upon uncertain Terms. My Lords, it is not only your Intereft by the Intereft of the Nation, that you maintain your Rights. For let the House of Commons and Gentry think what they pleafe, there is no Prince that ever governs without a Nobility or Army, if he will, if you will not have one, you must have another, for the Monarchy cannot long fupport, or keep itself from tumbling into a Democratical Republick: Your Lordships and the People have the fame Caufe, and the fame Enemies. My Lords, would you be in Favour with your King, it is a very ill way to it, to put yourselves out of a future Capacity, to be confiderable in his Service. I do not find in Story, or in modern Experience, but that it is better, and a Man is much regarded that is still in a Capacity and Opportunity to ferve, than he that hath wholly deprived himself of all for his Prince's Service; and therefore declare that I will ferve my Prince as a Peer, but I will not deftroy the Peerage to ferve him. My Lords, I have heard of twenty foolish Models and Expedients to fecure the Juftice of the Nation, and yet to take this Right f.om your Lordships, as the King by his Commiffion appointing Commoners to hear Appeals, or that the Twelve Judges fhould be the Perfons, or the Perfons fhould be appointed by Act of Parliament, which are all not only to take away your Lordships firft Rights, that ought not to be altered any more than any other Part of his Government, but are in themselves (when well weighed) ridiculous. I muft deal freely with your Lordfhips, thefe Things could never have rifen in Men's Minds, but that there hath been fome kind of Provocation that hath given the first rise to it. I pray, my Lords, forgive me, if upon this Occafion I put you in mind of committing diverfe, and the Scandal of it. Thofe Droves of Ladies that attend all Caufes; it was come to that pass, that Men even hired or borrowed of their Friends handfome Sifters, or Daughters to deliver their Petitions. And yet for all this, I muft fay, that your Judgments have been facred, unlefs in one or two Causes, and thofe are moft to that Bench from whence I apprehend most Danger. There is one Thing I had almost forgot, which is the Conjuncture of Time, the Thing upon which our Reason of State turns. And fo, my Lords, give me leave to fay, if this be not a Time of Leifure for you to vindicate your Privileges, you must never expect one; I could almost say, that the Harmony, good Agreement, and Concord, that is to be prayed for at most other Times, may be fatal to us now. We owe the Peace of these two laft Years, and the Difingagement from the French Intereft, to the Houfe differing from the Senfe and Opinion of Whitehall. So at this time, of all Things in the World this Nation hath moft Reason to apprehend dangerous is a general Peace, which cannot now happen without very advantageous Terms to the French, and disadvantagious to the House of Austria. We are the King's Counsellors; and if fo, have right to differ and give contrary Counfels to thofe that are nearest about him: I fear the Words advance a general Peace, I am fure I would advise against it, and hinder it at this time by all the ways imaginable. I heartily wifh, nothing from you may add Weight and Reputation to thofe Councils that would affift the French. No Money for Ships, nor Preparations you can make, perfonal Affurance, our Prince can |