THat the Church hath had its Persecutors and Opposers we all know; And that the Temple should meet with Disturbances and Discomposures none of us should wonder. If the one had her Convul­sions, we may allow the other an Ague fit. But that the Priests who live by the Altar [Page 2] should extinguish the Incense, and demolish the Altar, this may lawfully raise our Admi­ration: And this is our Case. Our High Priests and infallible Popes are not like those in the Old Law, who would strike their Trident into the Pot and go away contented with their share: But with Ely's Sons they cry out, nay Give us all, or we will take it by force; Rather than they will loose one jot of their Power, the House must loose all its peace. I cannot but blush at these things, and heartily wish I had no cause to relate them; every stroke my Pen makes gives a scratch in my own breast, and my desires are that I might withdraw my eyes from these things, and going backward cover the nakedness of these men, who are so drunk with their own prosperity, that they cannot forbear reeling into the greatest extra­vagances. But it is a ridiculous Modesty to hide that themselves make so palpable.

For why should I be ashamed to speak that which they have not bin ashamed to act. The way then to vindicate the Society is to seperate the Innocent Sheep from the Gray-bearded Goats, and lay the Sin at the right door, and then per­chance the sence or shame of it may cause A­mendment. That the World therefore may more plainly see into the justice of our Cause, [Page 3] I shall unbowell the whole matter, and show you the naked state of our Business. Our Case is truly and impartially thus,

The Gentlemen of the Bench in a Parlia­ment at Allhallon-tide last make an Act for keeping of Christmass, and in order to that choose some of the Noblemen of the House (according to Custome) grand Officers. In the close of the Term the fickle Gentlemen wheel about, and begin to see a vanity in keep­ing that Festival, and therefore make a thing called an Act, whereby they dissolve (for so the words of the Act are) the Commins from the Saturday before Saint Thomas day, till the Saturday after Epiphany. And who­soever comes into Commins in that time is to be expelled the House, and forfeit his Cham­ber. In the same Parliament they make ano­ther Act (and 'tis pity these two should be parted) whereby it is enacted, That when any one is expelled the House, or put out of Com­mins, or doth advise any one to go out of Commins, or assist and abet him that is put, or those that do put themselves out of Com­mins, shall be uncapable of being called to the Bench or Barre, and have what other pu­nishments shall be thought fit to be inflicted on him or them so offending. This being done in the last gasp of the Term when there [Page 4] were but few in Commins, and the rest of the Gentlemen dispersed, they could not have any opportunitie of redresse. In the Vaecation the Gentlemen being stirred up by this Alarum, meet, and were informed by many grave and prudent persons, that they had an undoubted right to keep Christmass, which could not be impeded by any Act of the Bench whatsoe­ver, and that the Government of the House did then devolve it self on them, and that the neglect of this priviledge might prove a great weakning, if not the utter ruine of it. Upon these grounds the Gentlemen fixed their reso­lutions of a Christmass. But that they might proceed with all possible modesty and pru­dence, they attend upon that Gentleman cal­led the Sollicitor, lay open their Grievance, inform him of their intentions, and (which pleased him very much) beseech his advice. He professed his ignorance of the making that Act, and the deep resentment He had of it, heartily wishing he were Master of so much power as to revoke it, or that he were so happy as to have had a House in in the Town fit for our reception, that we might keep Christmass with him. He told us he had known such Acts as these sometimes observed, and sometimes rejected, so that there were Presidents on both sides. These [Page 5] smooth words, and this loose way, and not [...]rohibiting, we interpeted a tacite consent, [...]nd close encouragement; so that then (think­ [...]ng our selves happy in so ingenious and able Patron) we put our Resolutions into prac­ [...]ce, and go on in celebrating that Solemnity. But this last Term comming into Commins, we soon found what small correspondency [...]s in some Persons between their thoughts [...]nd words, and that cool expressions are of­ [...]en attended with actions of another temper; For the Master of the Bench did expell one Gentleman, and put two out of Commins. The rest of the Gentlemen owning the Inte­ [...]est of these Heroical persons that suffered for [...]heir sake, and standing up in the vindication of their priv [...]ledges, there ensued this Contest [...]nd clash. And this is the true Original and [...]ight state of our present Condition. In this Case I shall first handle it abstractly, and shew [...]hat the Bench have no Authority that can [...]nable them to make such an Act. Second­ [...]y, That conceding them such a Power, yet [...]aking the whole matter as it is cloathed with [...]ll the circumstances, this particular Case will not be within the reach of that Act. So [...]hat the penalty inflicted was unjust and ille­ [...]al. To prove the first I shall enquire, (and [Page 6] think my self happy if I meet with a resoluti­on, and turn proselyte to the Informer) How this superlative Authority came vested in them. All the wayes I can imagine are these three, either by the Nature or constitution of the Society, or by stipulation or paction, or else by Custome. But I can find no firm foun­dation their Government can have on any of these.

And first for the nature of the Society.

For the nature of the Society it is undoubt­edly voluntary; for it never was incorporated; nay untill King James his time we never had a Grant of the Fabrick, but were merely Te­nants at will under the King; And that these were only places of reception for the conve­niency of converse and other occasions to those that intended the study of the Law, is evident from the Names of Inne, or Hospitium, which is Domus quae Bud. in So­lenc. ff. de offic. pro­cons. liberaliter & sine prohibitione veni­enti hospiti patet. Like to thse were the antient Hostells in Cam­bridge, Caj. Histor. Cant. pag. 47. And the Halls in Oxford. And the Gild's or those that associated them­selves Sir Hen. Spel­man, Glos. voce gild. on a religious account. But none of these Societies were ever [Page 7] presumed to attempt the imposing of Laws on their Fellows without their consent; For indeed what can be more absurd than to ima­gine, where there is a parity, that the Smal­ler part can have a Despotical power over the Greater, and make what Laws they please, and the other lye under a necessity of obedi­ence. Nay how frivolous would this Law (if it can be called a Law) be, when no real punishment can be inflicted on the Offender; for he may when he pleases withdraw him­self, and lawfully bid defiance to that Sta­tute. So that their Laws will have a different effect from the Laws of the whole World beside; For whereas other Laws do (or should) amend a Common-wealth, ours can produce nothing but the Houses destruction; for if they are distastfull to us, we may all of us if we please retreat out of their reach, and so the society must fall.

But the thing is so clear, that I shall have more charity than to think any mans judge­ment so weak as not to grant this Proposition, That it is impossible for absolute Authority & Equality to consist in the same Person with respect to the same Subject. And now I shall proceed. But first I will remove an Objecti­on out of my way that I may pass more freely. [Page 8] 'Tis this, some may say those distinctions of Bench, Barre, and under the Barre, show a per­fect inequality and absolutely destroy the for­mer supposed parity. To this the Answer is plain, These are only distinctions in respect of priority of time, and standing, not of power and jurisdiction. And consequenrly being on­ly gradual, have not the energy in them as to put such a vast difference between us as that of Lord and Vassal, and certainly that trafiti­on is too nimble, and the consequence invalid to pass and conclude from a priority in time, a superiority of power and dominion, especi­ally if that old Maxime holds true Gradus non variat speciem. But again, those small re­mains & vestigia that we have of what our former Condition was, give light enough to see this fallacy. For the style of all the an­tient Orders of the House runs, the Fellows of the Society of the Inner. Temple, and even at this day their own Acts are so worded, Be it en­acted that none of the Fellows of this House come into Commins at Christmass. Now I pray what means this Fellowship? wherein con­sists this [...], this community, &c? What is it only in reverend complyance, and humble submission to all their Masterships commands? an implicite Faith in all their [Page 9] Acts? If so, it is ill done their Masterships do not undeceive the world, and show them how the doting Philosophers, and Alciat, Cujace, Grotius and those ignorant Lawyers mis-in­formed them in saying Socii in sua societate sant aequales. And (as being their Servant I am bound) I do humbly advice them out of a tender respect to their good, to do it quickly; for till then many that are only honest plain men may think, that the Puny of the House being included in that name of Fellow as well as the gravest Bencher, ought in the Govern­ment of the House, wherein his interest is con­cerned as much as the other, to have a Fellow­ship or Community equally with him, and not to have his Purse dispos'd, or his Cham­ber seized for the breach of an Act, to the making of which he never gave consent, nei­ther by himself nor Representative. And this I think is the true and only notion of the word Fellow, except their Masterships take it in the catachrestical sence, as when we say a proud silly Fellow, and that is nothing to our purpose.

As for Stipulation or Paction, that this gave birth to their Power; I think themselves do not affirm it. If they do fix it here, it is necessary they should shew where; [Page 10] when, by whom, and upon what ground this Paction was made. For if they do not this, they must pardon us if we be so favourable to our Ancestors, as to think them wiser than to part with their Liberty on a trivial, or no ac­count. But supposing they could prove such a Contract, yet we are out of the reach of it; for the Society being voluntary those Persons could only oblige themselves, and they dying their Paction perished with them. For to impose it on Posterity; what power had they? I am sure the Law of the Land could give them none, they had no Patent to enable them, and to take such a power to themselves I think they could not, certainly it is against the Civil law, L [...] ult. de Collegiis, ff: So that this Compact could have the countenance of no Law, except that of So­lons, which give liberty to men to make a So­ciety for robbing and plundering [...] Bodin de Rep. l. 3. c. 7.

The whole stress therefore of their Autho­rity is upheld by Custome, but I am afraid we shall find it too weak a support for so large a Power as they have usurpt. For let us look into the nature of Custom, and we shall find it be conversant only about Particulars, and never to dilate it self to an Universality. For [Page] example, such a Town or place hath by a ta­cite consent of the People time out of mind, used to do such or such a thing, this is lawfull; but who ever heard of such a Place or Person where by Custom they may do what they please. A man by Custom may hunt in my Grounds, but who can imagine a Custom whereby he may do what he will upon my Lands? We shall not deny the Gentlemen of the Bench what they can rationally pretend to. We are so good Moralists as to have a Reverence for Gray hairs, and give Age its due respect, and God forbid but that they should have priority and precedency, let the Pharisee have the first place in the Synagogue; Nay let them manage the Affaires of the House. But they must pardon us if we en­deavour to stop their Custom when it comes to invade our Purses, and take away our Mo­ny without our consent; drive us out of the Society and dis-seize us of our Freehold, dis­grace us in the face of the Nation, and injuri­ously throw us into Prison. That the smaller part of a Society can do these things, and Custom legitimate, it I cannot think: I am sure it is the Opinion of a very learned Man, and no mean Lawyer, That for One Person, or the Smaller part of a Society to have a Jurisdic­tion [Page] over the rest, is an absolute destruction of the Society, Si universos coe [...]cendi jus habet, non Collegium sed dominatus in summo principe, Bod. de Rep. l. 3. c. 7. Nay farther, he shows in this Chapter, That if the Major part or two parts of three should make a Law to oblige themselves to decide all Controversies among themselves, or concerning any thing that reflects on the private interest of the Fel­lows, it would be insignificant, except it had the consent of every individual Person. Nay these things being against the Law of the Land, that a private Society can by any Cu­stom make them lawfull is a thing impossible, and the attempt of it may make them Collegi­um illicitum an unlawfull Assembly; And this the law of the xii. Tables agrees to, where spea­king even of Incorporated Societies it sayes, Pactionem quam velint, sibi ferre, dum ne quid ex publica lege corrumpant. And again, to make up this Custom there is wanting an un­interrupted praescription and tacite consent. For there never passed ten, (nay I dare boldly say five, nor three years without a sharp questio­ning and a loud exclaiming against their En­croachments. Nay those small Index's, the remains and ruines of our shipwracked Liberties sufficiently show, that these things were not [Page] so ab initio; what means it that the Gentlemen of the Bar have a Liberty to come into the Par­liament, but as it were into Pythagoras School, or like Mutes attending a Caball of Bashaws, they must not dare to whisper? What do these Persons (the generality of whom, are grave and sage men) onely come to see how the Senators sit, or to learn to propose a Question? I should be apt to believe they had (before Craft and the Ambition of a sole Dominion thrust them out) as free a Vote as the best Bencher; and that which in­creases my Suspition is, that the fear of this, least any Noble Spirit should attempt to snatch at this lost liberty makes them never to debate things in the Parliament, but in a clan­cular way they agree upon it at the Bench-table, or a private Chamber, and when they come to the Parliament chamber, the proper place to discuss them, as soon as they are set, the Treasurer sayes, All that are of Opinion, that (suppose it the Question) the Author of this Pamphlet shall be hang'd, drawn and quar­tered for his High Treason against the Bench, let them say, I. As soon as the Eccho hath answered the Business is agreed, and they rise, and so there's an end of an Inner-Temple Parliament. What does the antient [Page] Custom of having one of the Bench, one of the Barre, and one under the Bar to sit upon the Accounts, but loudly speak the prudence and care of our Ancestors that none of us should be prejudiced one peny? But what a vast difference is there between the subtilty of these daies and the sincerity of those times? For that Noble Gentleman who hath suffered (how justly all the World speaks) so much, and bin the Martyr of this Cause, had the first cloud of the Benches distaste raised against him for nought else but asserting this antient, con­stantly practised, and just Custom. Wherein he did like a good Phineas stand in the Gappe, and made the Plague cease for that time. But their displeasure did not so, but festering into a rank Malice, hath showed it self in the seve­rest way Anger and an high fury could invent. Let any man but read Fortescue, where he dis­courseth of the Innes of Court, and show me the least sign of a Lording Bench in those daies; He sayes, Ibi vix unquam sedicio, jurgium, aut murmur resonat, & tamen delinquentes non alia quam poenâ solum a communione Societatis suae amotione plectuntur, Fortesc. de laud. leg. Ang. c. 49. Here you see the calm peace of our Golden age, when pride and ambition had not prompted Men to engrosse Power. There was [Page] then no Fineing, no Seizing of Chambers, no hurrying to Prison, nor expulsion out of the House, it was only am [...]tio à communione Societatis, it was not extrusio è Societate. Thus then it is plain, that the power which the Bench take is only usurpt, for it is contrary to the Nature and Constitution of the Society; It hath no ground on paction or contract, Nor is it in the power of Custome to con­firm it, nay as far as we can guesse, it is oppo­site to the more Antient Customs of the House; And consequently, the Acts made by, and grounded on this power, being un­just, illegal, and tyrannical, the breach of them is no offence, and to impose and inflict a punishment for the non-observance of them, is to adde injustice to injustice, and aggravate their Crime.

Thus I have done with the First Part, I shall now proceed to the Second, and shew how that granting them power to make that Act; yet upon the whole matter, the Case will be so circumstantiated, as to take off the penalty, so that the rigorous prosecuting it, is either wholly unjust, or at the best but sum­mum jus. That this may the better appear, we must look back on the previous Circum­stances.

[Page] The last Christmas was Twelve-month we had the Thanks of the Bench for keeping Christmas, and that usually sum of Money allowed out of the Treasury given us. At the Parliament on Allhollantide last, which is the proper Parliament for that Solemnity, they vote a Christmas, and give a being to it, by choosing some of the best Persons of Ho­nour of the Society for Grand Officers. Af­terwards they stifle that Embrio themselves first formed. Here I shall humbly enquire, Whether the keeping that Festival, or our manner of keeping it, be unfit or undecent, if so, their Masterships were very much to blame to give us thanks last year, and more to blame to have any thoughts to revive it again, as the first Order plainly shews they had. But about the latter end of November it was when their eyes were enlightned, and they made this damning Act, where we may observe the time and manner of promulgation of it, which was in the very conclusion of the Term, when few Gentlemen were in Commins, and then it is fixed at the Screen for an hour or two, and so taken (whether for the rarity or the shame of it I know not) and lockt up where we must ne're see it more. Now that such an Act as this, which did con­travene [Page] a constant Custome, should have such a clancular surreptitious promulgation as this, is something strange, for there is very few of us that know, except it be by report, that there is such an Act, and none can tell (having only a reading of it) what Salvo's may be in it, and what the extent of it is. The Gentlemen thinking they had as much right to govern then, as the Bench in Term time, and that an Act of theirs was no more obli­ging to them in this respect, than an Act of a Christmas Parliament was to the Bench, and supposing that rule to be true, consuetudinem praescriptam aliâ consuetudine praescriptâ contra­ria tolli, gloss. si que in l. nemo s [...] temporalis. They resolve on keeping of Christmas, and that they might avoid the Censure of rash­nesse and heat, which is often incident to youth, they resolve to proceed soberly, and therefore attend the Solicitor, and informe him of their proceedings; he gave them his Answer as I informed you before in the state of the Businesse; We desired the Keyes, he refusing them, we were forced to break o­pen the doors and take possession of our right, and how the affairs of that time were mana­ged; how free from disturbance and those in­conveniences which usually attend such a [Page] confluence, we leave to those Gentlemen, persons of no mean Quality, that daily ho­noured us with their Company, to speak im­partially. In short then I shall propose this Quaere, That when the Gentlemen had thanks for their former Christmass, and that this last Christmass had its beginning from the Bench it self, though afterwards in a close and undermining way they supprest it, so that the Gentlemen could not have a legal redress then, notwithstanding that they proceeded in vindicating their Privileges with all mode­ration, they go to the Solicitor, he giving them no absolute prohibition, they execute their intentions, but with such quietnesse and freedom from disorder, as might from mo­derate persons have merited Commendati­ons; and having ended that, and put a period sooner then usuall to the Solemnity, that they might not in the least transgresse, they return with calm and composed Spirits into Com­mins; I say, I should ask any Rational man, whether for these Actions the Gentlemen deserved to have two of them put out of Commins, another not only expelled the House, dispossessed of his Chamber, which is his Free-hold, defamed and disgraced with an industrious Malice, but sent where passion [Page 19] and fury hurries him to Prison, without let­ting him open his mouth in his own defence, or objecting the least suspition of Crime, as if that Clause in Magna Charta, Nullus liber homo capiatur vel Imprisonetur, had some tacite Exception, which excludes a Gentleman of the Temple from the benefit of it. Now who can imagine this punishment to be Adaequate to the Offence? Who is so blind as not to see a vast desparity between the one and the other: Nay one more conclusion we may lawfully draw from these premisses, which is this, That the Gentlemen of the Bench have a far larger respect and care of their own Grandeur and Honour, then the Credit, Reputation and Peace of the House: For, what else speaks this violence and earnestnesse? Had they any bowells of compassion or pitty, cer­tainly these dissensions and discomposures would move them? Had they any love or affection for the Society, they could not choose but recede from these punctilio's of Honour, nay even give up some of their power, that there might be a happy compo­sure & an amicable correspondence between us? But I have alwayes observed, that where there is any thing of Honour or Profit, th [...]t we must have no share in, that is our Lords [Page] and Masters Lot, not fit for Boyes; but if there is any thing of Danger or Cost, oh then the Young Gentlemen must be consulted with, and of this I will give you own pregnant in­stance. In the worst times of our late unhap­py troubles, Mr. Johnson the Minister going to a living in the Country, Mr. Tombes comes with a Letter of Commendation from the Committee of Safety to the Bench, to chuse him into the vacant place; It happens they had no Affection for the man, but refuse him they dare not, for fear the Westminster Juncto should prove Benchers to them, and serve them as they serve us, to escape the Hornes of this Dilemma, they find this expedient: They say, we have but single Votes, it is the Young Gentlemen being more numerous, as they please; well, the Gentlemen are called, and Vote, Mr. Tombes is exploded, the Benches work is done, and the Gentlemen may set their hearts at rest for any more chus­ing a Minister, for when he comes really to be chosen, then the Tune is new set; What, Boyes have an Election, do they know how to chuse a Minister, or what belongs to sound Doctrine? Thus you see the kindnesse of these Gentlemen, that in those sullen and captious times, when the least suspition was [Page] enough to have ruined a Man, and there were many of as good, if not better Fortunes than themselves, whom they cared not to sacri­fice to those ravenous Times, so they might but escape free themselves. This un­gentile, nay I had almost said unhuman De­meanor, with their generally slight and su­percilious Carriage towards us, indeed does something move my choller, but I have pa­tience enough, when I think these Actions are sufficient punishment to themselves, and the Infamy which cleaves to them carries sting e­nough to excuse a Satyr.

To conclude therefore I shall give you a short Character of the Government of the House, as stands now, that as you have seen what it ought to be, so now you may see what it is. It is a kind of Judaical, Presbyte­rian, Fanatical Regimen, which savors some­thing of a Sanhedrim with the Nasi; it hath a huge smack of a rigid excommunicating Classis with a Superintendent; it smells very strong of a Rump-Parliament; it is a Company of Grave men to whom supersides a Judas or Treasurer. The foundation of their Government is Custom, by this they have power to make Laws which bind all but themselves. By Custom Drun­kenesse causes neither Sin, nor sickness in a [Page] Bencher. By Custom he may sleep at Church, and it is expulsion and forfeiture of Chamber for a young student to wake him, and disturb his delightfull Dreams, and all that assist, a­bet, or counsel him in so horrid an Act are to be put out of Commins. By Custom he is to have at Dinner and Supper four or five Dishes of Meat, and as much good Wine as he can handsomely bear, with a Bottle or two to carry to his Chamber to accomplish the Work, and besides Commins for a Man or two, and all this for fourteen or sixteen shillings a week, and that to be paid when his Mastership thinks fit; when as the Custom is, That a young Student must pay nine shillings a week for Loyns of Mutton, Pottage and Small beer. By Custom he is to have Cham­bers for him and his Wife, but if she multiply much (and 'tis a discredit to the Society if she don't) if a Naboth be the next Wall to this Ahab it is but expelling him the House, and begging the Vineyard, and so he may enlarge his Quarters. If any of these Customs chance to be questioned, who do you think is the Judge? why the Reverend Butler is called, and when the Colossus is advanced, the mouth of the Bench opens, and asks him, if this hath not been the constant Custom of the House. [Page 23] The inspired Oracle answers, I my self can safely swear, 'thas been the Custom for this Forty year, and my Predecessor swore it had been so e're since the Conquerors daies. Then the charming Orator with a composed Countenance, ha­ving ordered his Gown and his Gloves gravely begins thus,

Now what man of Ingenuity had not ra­ther be Author of such a Speech than Master of 1000l. But Gentlemen I hope you have so much discretion as to see into the fallacy of such fair words, so much care of your Privi­leges and Liberty as not to sacrifice them to the will and pleasure of One whom the puffy and aery name of an Orator hath so swelled beyond the bounds of Reason or a moderate Ambition, that he vainly fancies it the Duty of ye all to submit to his Dictates, to yield Obedience to all those Laws, the extrava­gant Capriccio's of an humerous Brain can invent. But the humble advice of your Ser­vant (who hath a desire, though not a corre­spondent [Page 27] ability to serve you) is, that where that Reason and Justice bids you submit, let no men be more foreward or ready in Obe­dience than your selves: and on the contra­ry, when Pride and Ambition do endeavour to oppresse you, let none show more cou­rage or spirit in asserting a good Cause.