Objections against the Negative answered.

Obj. 1. The Collateral Heir to the Crown Fugam fecit, therefore he ought to be Excluded without Summons or Hearing.

Answ. 1. The known Law of God, Nations, Nature, and Scripture is contrary; Joh. 7. 51. Doth our Law Judge any man before it hear him?

Answ. 2. The known Law of the Land is contrary, both Common Law and Statute; and particularly the Statutes of Magna Charta, and the Petition of Right.

[Page 2] Answ. 3. There is no Malefactor, yea Felon, ought to be found guilty of a Fugam fecit, nor forfeit any thing for the same, untill he is brought to the Bar, Ar­raigned, put to Tryal, and found Innocent of the Fe­lony.

Object. 2. To Attaint or Condemn of any Crime by Par­liament without Summons and Hearing, may perhaps be un­lawful. But it doth not follow therefore, That EXCLU­SION of RIGHT without Summons and Hearing, is unlawful.

Answ. 1. To Exclude from Right, without Summons and Hearing, is as contrary to the Law of God, Nations, Nature and Scripture, as to Condemn of Crime.

Answ. 2. 'Tis as contrary to the Law of the Land both Common and Statute, and particularly, the Sta­tutes of MAGNA CHARTA, AND PETITION OF RIGHT.

Obj. 3. The Press is open to the Papist, and the Prote­stant afraid to Print; whereby the Protestant Religion and Liberty is Condemned without Hearing, and it will be im­possible to Extirpate Popery and Slavery, without Free Liberty of Printing to the Protestant; neither do the Kingdoms of Darkness either of Pope or Turk build them­selves on any deeper Fundamental, than that the first per­mits no Printing but by Episcopal Licence; and the Other permits no Printing at all: neither can any Humane Rea­son be given Why the Doctrine of Wickliff, which compre­hended the whole Protestant Religion in far greater Purity than Luther or Calvin have done since, and was far more terrible to the Church of Rome than either of theirs; yet gave them not so great an overthrow as the two latter have done; But only this, That Wickliff lived in a Time before [Page 3] the Invention of Printing was found; And Luther and Calvin since, From which Interdiction of the Press by the Papist to the Protestant, whereby the Protestant Religion and Liberty, are condemn'd without Hearing, is objected this Conclusion. That it is a just Retaliation to Condemn and Exclude the pretended Popish Religion and Liberty without Hearing, as they have done the Protestant.

Answ. It is more just and easie for the Parliament to punish such Persons as have contrary to the Law against Monopolies, Magna Charta, and Petition of Right Impri­soned, Fined, or Pillory'd the Subject for Using the Lawful Trade of Printing without their Licences, by Example of Punishment on which Monopolists, The Protestant will be restored to his Native Liberty of de­fending his Religion in Print.

Obj. 4. The Publick Offices of Temporal and Spiritual Judges, Magistrates and Sheriffs, are believed great part of them to have been placed contrary to the Acts of Parlia­ment, on the Recommendations of Papists or their Trustees; It will be therefore impossible to obtain any ordinary Legal Proceedings against the Collateral Heir from such Judges who are his Creatures. The Honourable Parliament there­fore have been necessitated to have recourse to the Extra­ordinary way of endeavouring an Act of Exclusion, without Summons or Hearing.

Answ. The Cause of Succession is not now depend­ing before Inferior Judges, Temporal or Spiritual; but before the Supreme Court of the King and Parliament; And the time is a time of Peace, and not of War, the ordinary proceedings therefore of Peace ought now to be used; which are Summons and Hearing. And not the Extraordinary without them, as in a time of War.

Obj. 5. It will be too late to delay, till a War or Rebellion break out and surprize the Protestant with a Massacre, see­ing Persons recommended by Papists have already contrary to all Acts of Parliament, seized by themselves or Agents, on the Military as well as Civil and Ecclesiastical Offices and Power, and on the Commands of the Forces by Land and Sea, with the Publick Magazines of Arms and Treasure, intended by the Parliament to be given and received for the Defence of the Protestant.

Answ. It is less delay, and more justly and easily done by His Majestie's Assent to Summon all such Prin­cipal Persons, having so offended against the Acts of Parliament, as His Majesty and his High Court of Par­liament shall think fit, to appear in Person before His Majesty and Parliament, to answer to such things as shall be objected against them; on whose appearance, none doubts His Majesty and his Parliaments Power, by such ways as to their Wisdom and Justice seem fit, to prevent their acting in any way of Rebellion and Massa­cre against the safety of His Majesty, and of his Prote­stant Subjects; or in case of their Refusal, Contempt, or Neglect to appear, to take such further course as shall be by God's assistance most just, and conducible to the same ends.

Obj. 6. The Declaring of the Lineal Heir to be the Pro­testant Successor, is an Exclusion of the Collateral Heir from Succession. But the declaring of the Lineal Heir to be the Protestant Successor, may be without Summons of the Colla­teral Heir; Therefore there may be an Exclusion of the Collateral Heir without Summons. The Major cannot be denyed, and the Minor is plain; for after the Death of Queen Elizabeth, there were no less than Sixteen Preten­ders to the Succession of the Crown, who discover'd them­selves, and more there might be undiscovered; whereby if a [Page 5] particular Summons were in such case necessary, the Preten­ders would be very difficult, and many times impossible to be found and Summon'd: And fraudulently to evade such Summons they might convey themselves into parts beyond Sea, or places concealed or dangerous to Summon; or Sum­moners not to be got who would dare to Summon them, where­by it would not lye in the Power of King and Parliament to make any Settlement of the Succession of the Kingdoms to prevent Civil Wars, and all future Calamities incident to the Incertainty of a Successor.

Answ. 1. It is granted, That a Lineal Protestant Heir may be Declared without Summons of the Collateral, and that this doth sufficiently Exclude the Collateral from the Succession; but this Declarator doth neither Exclude the Collateral Heir from Summons or Hear­ing; for though the Parliament do not actually Summon, or give him notice; yet their Proceeding in Voting a Protestant Successor is so Notorious and Publick, it gives sufficient and general notice in Law to all Persons pretending any Right and Liberty to ad­dress themselves to make their Claim, and to be heard on the same, and time likewise before it can pass the Negatives of the other House and the King.

Answ. 2. This is Conform to the Judicial Proceed­ing in ordinary Courts of Justice, wherein is allowed Admissio Tertii propter interesse; The receit of a Third Person, if he will address himself by Petition to have his Right heard.

Answ. 3. This is Conform to the Proceedings in Fines, wherein if the Party Interested will make his Claim, he shall be heard: But if he neglect, it is his own fault, and he is concluded by Non-claim, and this is held just in private Rights, much more ought it to be, and greater necessity there is allowable, Finem Li­tibus [Page 6] imponere in Publick Rights of so great Conse­quence as Successions to the Crown; wherein it is suf­ficient, if Liberty is allowed to Pretenders to make their Claims, and to be heard, though there be not those de­lays of Time and Formalities allowed, as in Discussion of private Rights, the same being inconsistent with the imminent Dangers of Kingdoms. But an Act of Exclusion of Right, neither allows notice in Deed or Law, nor what time may without danger be allow'd for Hearing, nor Admissio Tertii propter Interesse, nor Claim to be made; But takes away the Right of Parties interested sine facto aut defectu, contrary to the common Rule, Ne­mo debet rem suam sine facto aut Defectu suo amittere.

Obj. 7. An Act of Exclusion may be of any Person from Succession in Elective Kingdoms, without Summons or Hearing; But the Three Kingdoms are Elective Kingdoms, therefore an Act of Exclusion from Succession may be with­out Summons or Hearing.

Answer. It is acknowledged, That the Kingdoms of England, Scotland, and Ireland, and of all other Na­tions, have been originally Elective by the People, till by the assent of the same People, the same were by Positive Laws made Hereditary: And as to the Posi­tive Laws of Great Britain, not only the Common Law, but the Acts of Parliament are full and clear in it, That the Succession of the Crown is Hereditary to the King's Eldest Sons, is particularly enacted in the Statute 25 E. 8. cap. 2. De Proditionibus. And by the Statutes of Kenneth the Third, and Malcolm Macken­neth the Second, as related by Buchanan, Lib. 6. Rer. Scot. p. 191. 196. And Anno 10 H. 7. a Right pro­fitable Act was made before Sir Edward Poynings, then Deputy or Provost in Ireland, whereby it is Enacted,

And Coke saith, 4 Part 351. That, Hill. 10. Jac. Regis, It was resolved by the two Chief Justices and Chief Barons, That this word (late) in the beginning of this Act, had the sense of (before) so that the Act extended to Magna Charta, and to all Acts of Parliament of Eng­land, made before this Act of 10 H. 7. And by conse­quence to the Act of 25 E. 3. cap. 2. So that by the Acts of Parliament both of England, Scotland, and Ire­land, nothing can be more clear than the making the Succession of all the Three Kingdoms Hereditary to the King's Eldest Son. So, 1 Eliz. cap. 3. A Recognition is made by Act of Parliament, that the Crown law­fully descended to Queen Elizabeth, as the next Lineal Heir to H. 8. And 1 Jac. cap. 1. The like Recognition is made by Act of Parliament of the Descent of the Crown to King James, as lawful Heir from H. 7. Un­less therefore these general Acts of Parliament of Eng­land, Scotland, and Ireland so antiently made, and the particular Acts of Recognition of two Protestant Parli­aments so lately made, all declaring the Succession of the Crown to be Hereditary, be first repealed by new Acts, this Objection, That the Kingdoms are Elective, contrary to both Common and Statute Law, will sig­nifie nothing.

Reasons for the Negative.

1. It would be very dishonourable to the Protestant Religion, and the Supreme Court, which ought to give Example of Justice to Inferior Courts, to do any thing Injust: And though Parliaments in time of Popery De facto used to Exclude men of their Rights, and Con­demn them without Summons or Hearing, and the same is continually practised by the inhumane Cruel­ty of the Romish Inquisition; yet, thanks be to God, it never was, nor we hope will be practised by any Pro­testant Parliament, neither was it in time of War it self; but there were always Commissioners of Claims to hear private Rights; and if the Publick were neces­sitated to make use of them, or to change private Pro­perty or Possession to Publick benefit, they made accor­ding to Conscience full compensation in value to the Owners.

2. The Exclusion of Princes from any Right with­out Summons and Hearing, gives a Dangerous Prece­dent to Exclude all meaner Subjects from their Rights without Summons and Hearing; neither is it possible Magna Charta and the Petition of Right, if they fall as to one, can stand as to the other.

3. His Majesty and the Major part of Protestants in his Honourable Parliament, will never assent to any thing Injust or Dishonourable. It were vain therefore to attempt it.

4. It will be inconsistent with Humane Society, and destructive to Innocent and Guilty Papists and Prote­stants alike.

5. It will give a pretence to Foreign Popish Princes, and Inquisitions to justifie their barbarous Proceedings against Protestants beyond Sea.

6. The Talio of a Legem quam Tuleras feras, may in [Page 9] the Interval of a Parliament, be return'd by the Prose­cution and Power of Papists in publick Offices, Mili­tary and Civil, on any Member of Parliament, as was on Tho. Cromwell Earl of Essex, who sollicited and pressed the Judges to give an Extrajudicial Opinion, that the Parliament might attaint a man of High Trea­son, without Summons and Hearing; which was soon after executed by H. 8. on the said Earl of Essex him­self, who solicited the said Judges to deliver such Opi­nion; which shews that Malum Consilium est Consultori pessimum, on which Coke 4 Part, fol. 37. hath these words: I had it of Sir Thomas Gawdye Knight, a grave and Reverend Judge of the King's Bench, who lived at that time, King H. 8. commanded him to attend the Chief Justices; and to know, Whether a man that was forth-coming, might be attainted of High Treason by Parliament, and never called to answer? The Judges an­swer'd, That it was a DANGEROUS QUESTION, and that the High Court of Parliament ought to give Examples to Inferior Courts for proceeding according to Justice, and no Inferior Court could do the like; and they thought that the High Court of Parliament would never do it. But being by the Express Com­mandment of the King, and by the said Earl pressed to give a direct Answer; They said, That if he be At­tainted by Parliament, it could not come in question afterwards, whether he were called, or not called to answer. And albeit their Opinion was according to Law, yet might they have made a better answer; for by the Statutes of Magna Charta, cap. 29. 5. E. 3. cap. 9. and 28 E. 3. cap. 5. No Man ought to be Condemned with­out answer, &c. which they might have certified, but facta tenent multa, quae fieri prohibentur, the Act of At­tainder being passed by Parliament, did bind as they Resolved. The Party against whom this was intended, [Page 10] was never called in Question, but the first Man after the said Resolution, that was so attainted and never called to answer, was the said Earl of Essex; where­upon that Erroneous and Vulgar Opinion amongst our Historians grew, That he died by the same Law which he himself had made. The Rehearsal of the said At­tainder, can work no prejudice; for that I am confi­dently perswaded, That such Honourable and Worthy Members shall be from time to time of both Houses of Parliament, as never any such Attainder, where the Party is forth-coming, shall be had without hearing of him.

7. The Papist cannot be pleased better, nor any thing more for his advantage done, than by Act of Parliament to Exclude the Collateral Heir without Summons or Hearing; because he knoweth the next Parliament for him will make the Act of Exclusion NULL and VOID; though they can alledge no other Reason for Error, than that he was not according to the LAW of GOD, NATIONS, NATURE, SCRIP­TURE, MAGNA CHARTA, and PETITION of RIGHT, Summon'd and Heard: as appears was done in a great Case concerning Thomas and Henry Earls of Lancaster, which is thus recited; Coke 2 Part. fol. 48. Thomas Earl of Lancaster was destroyed, That is, ad­judged to Die as a Traitor, and put to Death in 14 E. 2. and a Record thereof made: And Henry Earl of Lanca­ster his Brother, and Heir was restored, for two Princi­pal Errors in the proceeding against the said Thomas,

1. Quod non fuit araniatus, & ad Responsionem positus tempere pacis, eo quod cancellaria, & aliae curiae Regis fuer' apertae, in quibus Lex fiebat unicuique, prout fieri consuevit.

2. Quod contra cartam de Libertatibus, cum dictus Thomas fuit unus parium, & Magnatum Regni, in qua continetur (and reciteth this Chapter of Magna Charta, specially [Page 11] quod Dominus Rex non super eum ibit, nec mittet, nisi per Legale Judicium par [...]um suorum, tamen per Recordum prae­dictum, Tempore Pacis abs (que) arainamento Responsione, seu Legali Judicio parium suorum, contra Legem, & contra te­norem Magnae Chartae.) Here appears that an Act of Parliament made purposely to exclude Thomas Earl of Lancaster, and his Brother Henry Earl of Lancaster from the Crown, is made Void and Null by a Parliament called after by Henry, who succeeded, and was after King Henry the Fourth, on assigning no other Errors but these Two, Viz. (1) That he was not Arraigned nor brought to answer, though it was in a time of Peace, when the Chancery, and other the King's Courts were open, in which Justice was done to every one, as hath been accustomed to be done. (2.) Because against the Charter of Liberties, when the said Thomas was one of the Peers and great Men of the Kingdom (and recited the Chapter of Magna Charta) especially, That our Lord the King shall not pass upon him, nor condemn him, unless by the Lawful Tryal of his Peers; yet by the Record aforesaid in a time of Peace, without Arraignment, Answer, or Lawful Tryal of his Peers a­gainst the Law, and against the Tenor of Magna Char­ta, &c. he was Condemned. And such Exclusion with­out Summons and Hearing, will advance the Reputa­tion of the Title of the Collateral Heir, and disparage and draw suspition of weakness on the Title of the Li­neal Heir; because men use not to deny Hearing to any but to those whose right is better than their own, and whom they are not able to answer, but by stopping their Mouths, and not suffering them to prove or dispute against their own false pretences. So did Edward the Fourth deal with Sir John Mortimer, whom he could not deny to be true next & Lawful Heir to the Crown, as Coke relateth 4th Part, fol. 38. And saith as evil was the proceeding against Sir John Mortimer, third Son of [Page 12] Edmond the second Earl of Marsh (descended from Lio­nel Duke of Clarence) who was Indicted of High Trea­son for certain words; in effect, That Edmond Earl of March should be King by Right of Inheritance; and that he himself was next Rightful Heir to the Crown after the said Earl of March; wherefore if the said Earl should not take it upon him, he would: And that he would go into Wales and raise an Army of 20000 Men, &c. which Indictment (without any Arraignment or Pleading) being meerly feigned to blemish the Title of Mortimers, and withal being insufficient in Law, as by the same appeareth, was confirmed by Authority of Parliament: And the said Sir John being brought into the Parlia­ment, without Arraignment or putting to Answer, Judgment in Parliament was given against him upon the said Indictment; That he should be carried to the Tower of London, and Drawn through the City to Tyborn, and there Hanged, Drawn, and Quarter'd, his Head to be set on London Bridge, and his four Quarters on the four Gates of London; as by Record of Parliament appeareth, Rot. Par. 2. H. 6. Nu. 18.

8. Admit the Law should be proved doubtful in the point, whether an Act of Exclusion may be lawful or not, yet the Rule is undoubted, quod dubites ne feceris, when the same end may be better obtained in a way not at all doubtful, it would seem therefore very conten­tious to cast all on a Querie in Law, to spare the labour of so small a Punctilio as Summons, when the same may be done with less labour, and the proceedings made clear and indisputable in Law by giving it.

9. Admit an Act of Exclusion might possibly be pro­ved Lawful in some case of Necessity without Sum­mons; yet it is a Rule Non recur [...]itur ad remedium Ex­traordinarium nisi deficit ordinarium, it is already shewn, Here is no such case of Necessity; The time is of Peace, and not of War; the place is in the High Court of Par­liament, and not in the Camp.

10. It were a very dangerous thing to Expose so great a Treasure as SALUS POPULI to such Disputes as nothing can resolve but the Sword, when God hath vouchsafed so great a Mercy as a Protestant King, and Protestant Parliament, giving so great Hopes of satisfy­ing all desires, just honourable and necessary to publick Safety in Peace.

Objections against an Act of Oblivion.

Obj. 1. If an Act of Oblivion should pass, then will all the Prisoners in the Tower and other Prisons charged with Treason, be again let loose, All Jesuits, Seminaries, corrupted Judges, Spiritual and Tem­poral, Donatees, Pensioners, Seisers or Receivers of the Publick Trea­sure, Magazines and Arms would be cleared from all account and re­stitution, and Papists be in better Condition than Protestants.

Answ. No Act of Oblivion useth to be without Exceptions, which the King and Parliament may insert, as it shall please to direct them.

Obj. 2. Papists though dispossessed of Publick Offices, Forts and Fleets, yet may retain their old, and provide new Arms in secret for the Field, which is more dangerous; for the Forts will again open their Gates to him who Conquers in the Field, and the Fleets return again to his Possession who takes the Sea Towns; there can be no Security there­fore against Papists, but Banishment, which cannot consist with an Act of Oblivion.

Answ. 1. Banishment is not necessary of Lay-Papists, seeing the Acts of Parliament have already banish'd their Priests and Jesu­its, and made it High Treason for them to come into or remain in England or Ireland; without whose Diabolical Temptations, there appears no reason why the Lay-Papist should not desire the Peace & Safety of their Native Country, & their own Estates, and to injoy their Conscience, Liberty, and Property as free from Violation as the Protestants do themselves, rather than hazard all they have on the Event of Rebellion or Invasion.

[Page 14] Answ. 2. Banishment is either imposed as a Punishment or a Policy; if as a Punishment, it is unjust and contrary to Magna Charta to Banish before Summons and Hearing; for that will pu­nish the Innocent and Guilty alike. If the Banishment is for Po­licy, this seems most unpolitick; For first, this inforces all Potent Papists to fly to a Foreign Enemy, who is ready to receive and form them and their followers into an Army, and to joyn his own Forces with them against their own Country. 2. This gives them a good Cause or pretence to fight against their Country with Foreigners in a se Defendendo, and for Recovery of their own, and to associate themselves on the same or like Grounds as Pro­testants have associated. 3. It is that which the subtle Jesuit de­sires to draw the unpolitick Protestant to, that seeing he is him­self Banished by the Law, that an Army of English Papists may be Banished with him, that so he may turn head with them on those who have made them desperate by the Injustice of making no distinction between the Innocent and Guilty, and to take the Resolution of Ʋna salus victis nullam Sperare salutem; Touching which, Histories are full of Examples of Kingdoms destroyed by the Banishment of but one single Person, and much more by draw­ing many into a wrongful Exile. Very much more might be an­swer'd of the Danger of so deceitful an Expedient against Pa­pists; which for Brevity is here omitted.

Reasons for an Act of Oblivion.

1. It being proved before, That no Act of Exclusion ought to be with­out Summons and Hearing, it necessarily follows, that whosoever is Summon'd before any Judge to be heard, he ought to have Protection eundo morando & redeundo, and Summons ad Forum non tutum may justly be ex­cepted against, and a Protection only eundo morando & redeundo, is insuf­ficient to make Forum Tutum without an Act of Oblivion.

2. It cannot be hoped, that the Papists being in possession by their Agents of so much of the Arms and Forces by Land and Sea (and the Protestant disarmed) will deliver up their Arms, and hazard their Lives on a Tryal of Law, without an Act of Oblivion.

3. Difficile est in tot humanis Erroribus sola innocentia vivere. An Act of Obli­vion may be as safe and necessary for the Protestant as the Papist, unless they both intend to play off their Heads one to another alternis vicibus, as they did in the late Civil Wars, by the running of the Dice to make sport for Foreigners.

4. Histories are full, how all Intestine Discords, Seditions, Treasons, Rebellions, Civil Wars, and in particular the late unhappy Civil Wars in the Three Kingdoms have been accorded, and their Continuance prevented by Acts of Oblivion, and the happy Restauration of His pre­sent Majesty, and Peace in Three Kingdoms, made and Established by the chief means next under God of an Act of Oblivion.