the Devilish Powder Plot which is still as much to the purpose of his Reply as the story of Transmigration of Souls was to that of his Defence only Meekness is transparent in his Stile Humility in the Title Page and true Christian Charity in his Menaces of an exception out of the Act of Indempnity which he repeats three or four times at least as if his whole interest were designed to promote it The Gentlemans Danger is from publick and scandalous Actings in the Eye of the World which were says he labouring to Support the Government every Man knows what sort lashing the innocent with a bitter and sharp Tongue and inveigling of Juries with Rhetorical flourishes Now to examin a little these three monstrous Transgressions let us go backwards as to the last a Duty can never be a Crime every Servant owes Truth to his Master while such every Advocate is to do his utmost and a failure in it had deserved the worst both of Names and Punishments which the Repliant could invent or his interest procure For all Mankind must agree that the now Servants of the present Crown are obliged to do the like upon the like occasion if otherwise the Jacobites side will be the saâ—est I will not reflect on the weakness of the Juries that were thus inveigled if any such there were but rather suppose that the Oaths of Witnesses not the Pleading of Counsel did govern their Consciences As to the second that is false and needs no other answer As to the first that Gentlemans Honor and Merit afterwards is as remarkable as his Fault at first if it were any but however he is likely to have abundance of Company in Desert at least if not in Censure for a Duke of York's Creature is certainly as Culpable as a King James's Servant And Andrew Marvels Characters in his growth of Popery will be as true a Directory to decypher Criminals as the four Volumes of noted Tryals And perhaps if the Ordinance of May 10. 1650. should chance to be revived danger and fear may seize other Men as well as those that lately served past Governments it is therefore thought adviseable for all to sit down quiet and forgive and forget what is past but serve God and their Majesties for the future and not belabour the Excepting one another for if any should be such Fools the Knaves will get the better on it and the Righteous scarcely be saved So much for Religion Now for the Law if we can find it But because the Defender seems somewhat displeased at the repetition of that unhappy Lords name whose Case gives occasion for the present question Let us there put it like Mooters John a Styles was Indicted for that he at such a time and place did Compass to deprive his Natural Lord the King that then was of his Regal State and to destroy his Life and to Subvert the Government and raise a Rebellion and to fulfil that imagination he together with others did then and there consult and agree to raise a Rebellion against the said King and to seize and destroy the Guards of the said Kings Person contrary to c. The question was not whether J. S. was Guilty Nor if the Witnesses Swore false Whether his Attainder were fit to be Reversed But the dispute was whether that Indictment were Legal Whether supposing J. S. to be found Guilty the Court that pronounced the Sentence of Treason against him ought to have Arrested such Judgment on the motion of J. S. that the Indictment was insufficient The Sheet argues that the Indictment was good and consequently the Sentence pursuant thereto was warrantable by the Laws of this Land. The Argument seems founded both upon the Reason of Things and the Authority of Presidents First The reason alledged was that the last part which in Lawyers terms is called an Overt Act was a natural and genuine Sense or Declaration or Overt signification of the first part which is an internal secret Thought i. e. the Imagination and Compassing which is the Treason Prohibited and Condemned That the latter directly and consequentially tending and conducing in the common Sense and Reason of all Mankind excepting the Defender and two or three more to the accomplishment of the former makes a good and sufficient charge within the Stat. Ed. 3. A Repetition is tedious and an Abridgment is scarcely possible the whole Sheet being but a Breviate I shall therefore refer you thereto Secondly The Authorities there urged are either the Opinions of Judges and other Lawyers or Precedents of Indictments of the like or the same nature from which the Legality of this may be justly concluded The substance of them on the whole matter is that Overt Acts to Depose the King or despoil him of his Regal Office or take him by Force or strong Hand or to Imprison his Person till he yields to the demands of those who practise such endeavours are sufficient Overt Acts to prove the Compassing and Imagination of his Death That Levying War causing an Insurrection promoting an Invasion nay that Consults Conspiracies Practices Advices Letters Persuasions and other Motives and preparations to an Insurrection or Invasion though none succeed have been held Overt Acts of Imagining the Kings Death I will not repeat the Cases but as occasion offers from the other side The Objections there mentioned and answered from the Penning of the Statute are too trivial to deserve a remembrance nor would they have ever been thought otherwise but that J. S. was a Noble Person and the Defender a great Man and the Prefacer thought so too either by himself or others These and such like ingredients have made some semblance of difficulty and in truth had there been a real doubt in the Case the Author of the Remarks on that Tryal who wanted neither Sense nor Will to Censure it had his Opinion so inclined I say he would certainly have faln foul on it in those invidious Observations of his upon the late Times He quarrels with the Legallity of the Jurors The Defender with that of the Indictment and both with the Evidence The Author of the Sheet differs from them in the two first but agrees with them in the last that Testimony delivered for fear of Life or hopes of Pardon or other Reward is hardly Creditable but that is not the Point Let us see if the Replication doth overthrow the Charge as insufficient and for my part I cannot find a Line of Argument in it but only it is naught because it is naught The Consulting and Concluding to make an Insurrection and Rebellion and seize the Kings Guards is not a Declaration of the Parties compassing the King's Deposal or Death and why Because Conspiring to Levy War is not a Levying War and Levying War is a distinct Treason this is the substance of the tenth Page if I can read The Sheet said and truly That Levying War it self might be alledg'd as an overt-Overt-act of the Compassing and
hath been so frequently and meeting and agreeing to rebel and seize the Guards hath a direct tendency to promote a Demise of the King either natural or civil and therefore might as well be alledged an Overt-act as most things whatsoever I had almost forgot one Clause and that is the unnecessariness of making 13 Car. 2. if it should be as the Advocate argues I suppose he means the first Paragraph for the second is agreed to be introductive of a new Law c. but the first is only a Paraphrase upon the 25 Edw. 3. It is thus That if any Person or Persons whatsoever shall within the Realm or without compass imagin invent devise or intend death or destruction or any bodily harm tending to death or destruction maim or wounding imprisonment or restraint of the person of our Sovereign Lord the King or to deprive or depose him from the style honor or kingly name of the imperial Crown of this Realm or of any other his Majesties Dominions or Countries or to levy war against his Majesty within this Realm or without or to move or stir any Foreigner or Strangers with force to invade this Realm or any other his Majesties Dominions and Countries being under his obeysance and such compassings imaginations inventions devices or intentions or any of them shall express utter or declare by any printing writing preaching or malicious advised speaking being legally convicted thereof by the Oaths of two lawful and credible Witnesses vpon Tryal or otherwise convicted or attainted by due course of Law then every such c. shall c. Now what is all this but a confirmation of the old Statute inwords at length which was agreed to be so in the House of Commons 1 Jac. 2. when a motion was made to renew that Law the Lawyers Answer was that the 25 Edw. 3. did the same thing and a Man may boldly say it that here 's nothing declar'd Treason but what had been adjudg'd so before and Attainders and Executions had pursuant to it The Sheet mentions Cases enough and to the purpose tho some think otherwise but I 'll not repeat them In the 11th page the Reader is referr'd to the justification in the half sheet and therefore let 's examin that a little a third part of it is spent upon the Evidence but that is not within my Province which is only to vindicate the Vindication As to the rest the force of it if any seems only to be founded on his first Assertion the conspiring to do a thing is not the doing a thing and he quotes two great Mens Names for it I would have agreed that tho he had spar'd the Authority to justifie it but this is sufficiently answered in the Sheet He offers an Argument from the late Statutes declaring Treasons because they were temporary but I answer as the Sheet doth they were in affirmance of the old Law and I can shew him three or four temporary and an hundred other Acts of Parliament that are so and therefore that is no Argument at all but I am as the Party I justifie was confin'd to a Sheet and therefore cannot enlarge He lays down a Rule for construction of Statutes that a thing particulariz'd in one part is not to be construed within the general words of another part but that Rule hath near fourscore Exceptions in the Books besides it come not to this Case for here 's compassing the King's Death made Treason and declar'd by overt-Overt-act then levying War is made Treason Now says the Repliant nothing can be an Overt-act of and conduce to promote and accomplish the first that doth any ways concern the latter I say it is a non sequitur for there are several Instances mentioned in the Sheet which respect the levying War and yet are a genuine evidence of the intention and compassing and if so the Judges who have ruled such Indictments to be good did neither assume an arbitrary Power nor transgress any Rule of Law as the half Sheet insinuates Then the Lord Cobham's Case is endeavoured to be answerd by a Wonder that Sir Edward Coke late Lord Chief Justice and then Sheriff should differ from Mr. Attorny Coke for we know his thoughts in Sir Walter Rawleigh's time and his Speeches in Car. I. his time they are as different each from the other as the times were and in this particular that Gentleman hath had more followers than precedents but the Query is What is law Then Sir Henry Vane's Case is endeavoured to be answered by this that Syderfin mentions not the overt-Overt-act in the Indictment but he doth say the Treason alledg'd was a compassing the King's Death and every Man knows what Sir Hen. Vane did to accomplish that he neither sign'd the Warrant to execute that Murder nor was he actually concern'd in it the Justifier says he does not remember it printed any where but in Syderfin's Reports for the refreshment of his Memory I 'll tell him of another Book where it is and that 's Keble's First Volume of Reports 304. and there the Indictment is said to be for Compassing the King's Death and endeavouring to accomplish the Treason by Changing and Usurping the Government and Levying War which Case doth directly overthrow all the Defenders Justifiers and Repliants Arguments from the distinctness or difference of the sort of Treason Then for Dr. Story 's Case he says 't is hard to justifie it for Law whereas there are above forty places in our printed Law Books where 't is cited and agreed to be Law Now 't is pretty odd that a Case so resolved and so ratified should one Hundred and eighteen Years after be arraigned in print for 't was Hill. 13. Eliz. if any thing be Law that is so and not distinguishable from this Case in question but that the Evidence was different which the Justifier would make a reason to invalidate this Indictment the Logick of it passeth all Understanding besides 't is very observable that the Benches were fill'd both with Learning and Integrity in 1571. and 1662. neither of those times were Tory or Popish and in Dyer 298. the reason given was that it could not tend but to the great peril of the King's Person and therefore an attempt to promote such Invasion tho none followed was adjudg'd as aforesaid In 2. Anderson pl. 2. fo 5. Grant's Case 't was held that when any person intendeth or contriveth to levy War for a thing which the Queen by her Law or Justice ought or may do in Government as Queen it 's not material whether they intend any hurt to her Person but if they intend to levy War against the Office and Authority of the Queen that 's enough and that resolution overthrows the Justifiers Notion that J. S. his Design was only to defend the Laws tho the 13 Eliz. also was then in force it 's a good Argument to answer that pretence Now I have repeated and observed all the Replication or Justification offers in
against whom 't is committed his description of it is presumptio contra personam ipsius Regis then when he particularizes the several sorts of Treason the first which he names is Si quis ausu temerario machinatus sit in i. e. towards mortem domini Regis vel aliquid egerit vel agi procuraverit ad seditionem Domini Regis vel exercitus sui licet id quod in voluntate habuerit non perduxerit ad effectum I 'll make no Inference there needs no Paraphrase the words are plain an Act tending to the destruction of the King's Host is High Treason against his Person agere ad seditionem exercitus regis est presumptio contra personam Regis presumptio contra personam Regis est crimen lesae Majestatis Now can Bracton be thought to speak only of Treasons in time of War Glanvill lib. 14. c. 1. crimen lesae Majestatis dicitur de seditione Domini Regis vel regni vel exercitus and Fleta lib. 1. c. 20. De seductione exercitus sui cap. 21. the same words seductionem ejus vel exercitus sui this was the sense of the old Law and is very appositely applicable to the Case in question as I could easily shew would my Paper bear it There is one thing which I had quite forgot and that is that the Instrument of Grievances which the Prudence of the present Parliament hath provided complains of a Standing Army the Answer is easie 't is not of Personal Guards and the wise enquiry of the House of Commons into the quantum requisite to maintain such and such Forces during the present occasion and of the Expences of the Crown in Houshold Courts Guards c. afterwards do plainly shew that that was not the intended Grievance Now to sum up what is not answered at all or endeavoured to be so by the Defender nothing is said to the reason of the thing or the necessity and nature of an Overt-act to the opinion of Coke in theplaces cited to the Case of Sir Walter Rawleigh the Case of the Cardinal the Case of Mr. Coleman the Case of Constable the Case of Owen the Case of Burton the Cases of Sparhauke Awater and Heber the Indictment against Sir Willam Ashton Germain and Taylor and Tho. Burdett Collingbourne and Colledge nor to the Opinion of the Judges in the Lord Stafford's Case as if 't were all impertinent but the Reader is Judge if it be so Now for the Prefacer I 'll be as short upon him as he was upon my Friend he said that the Sheet needed a Vindication and I have given it one and if this needs another I hope the Crown will find some Friend to write a Third he seems so us'd to the word Libel that he cannot forbear calling it an infamous one he says it has not one true material word in it I 'll remember him of one that mocking is catching in the Proverb that is A Grumbletonian in the Stirrup generally proves a Tyrant in the Saddle that 's enough for him to remember If he wants any more truth and that he may not say this hath none in 't Treasons are easier committed than distinguish'd by some Men especially and the reason why I say this is because of his Octavo Preface when he is grumbling still for I always thought that he had smarted too much for Libelling on Ministers of State and Male-Administrations to venture again but when a Priest meddles with Law he is like an Apothecary at Politicks he generally runs himself into a Nooze for he 'll never leave off till he 's advanced one way or another To conclude the design of the Sheet was to justifie the Prerogative of the King and Queen and the Rights of their Crown and the Republican is angry that either should have any and from thence flames the Passion nay rather than it should be allowed they 'll attempt another Change from which good Lord deliver us Prov. 28.2 During the composure of the Premises News was brought me that another Pen had been procured to attack the Vindication viz. The Author that runs a muck at all Mankind except his own Patroons A deserved and full remark upon so voluminous a Book is not here to be expected however this Appendix may serve for an Advertisement to the World that the new Repliant is in several particulars obliged to Solicitor Coke and the other Regicides defence on their Tryals for much of his Materials time is wanting to shew the Parallel at present 't is fit to be observed that hisblind side also is apparent and consequently capable of a sufficient Answer and to give my Reader a Specimen thereof I 'll take notice of a few amongst many Mistakes both in Fact and Law which he hath wilfully committed In the first Page he says That to justifie what hath been taken ill accuses the present Government of Injustice which is false In Page 2. he says That the Vindication ventures on a Point of Law which it pretends is the result of the Evidence given there 's no such pretence in the whole Paper the only Debate was upon the Indictment He says in the same Page that it 's said his Relations were pleased with the justness of the Tryal it only says His Relations were pleased and his Enemies angry with those who then sate upon the Bench and that 's true for some of his Relations cannot deny it the Fact is so well known The last line of Page 3. and first of the next are also false for 't was neither written perus'd nor approv'd by any of his pretended Criminals I believe they thought the Point too clear to need a Vindication but this is just like his wonted positiveness in his Remarks where for instance he says That one of the Judgments he cavils at was the first that was ever given without Argument or Reasons delivered in Court which is also false for in Plowden's Comment 459. In Sir Tho. Wroth's Case the Author takes express notice that the reasons of the Judgment were not disclosed when the same was pronounced and Fifty other Cases I could name him of the same but one Instance is enough to falsifie a general indefinite Position tho there are several more even in that very Book But to run over his Volume Pag 2. is only a farther scurrilous Reflection to vindicate his own Remarks and an impertinent bombast of words on the Phrase of English procedings The 3. P. assigns four Reasons of Printing the two last are applicable to himself only and he thinks so of the fourth or else his Story is foolish like In the 4. P. he boulsters up himself in his Railery by resorting to his refuge of the Parliaments Authority that reversed the Judgment which all Men agree to be just but it was not because the Recorder did not arrest the Judgment on that trivial Exception to the Indictment but because the Prosecution was supposed malicious and the Evidence supposed false