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A43107 A reply to a sheet of paper, intituled, The magistracy and government of England vindicated, or, A justification of the English method of proceedings against criminals, by way of answer to the defence of the late Lord Russel's innocence, &c. written by John Hawles ... Hawles, John, Sir, 1645-1716. 1689 (1689) Wing H1189; ESTC R12198 38,849 39

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two that the Elder should fain himself mad and the Custody of him and his Estate should be begged by the younger It was done as agreed The King returning the elder would needs be compos mentis which the younger would by no means admit but kept him in private and in the dark By accident the elder found a way to discover the Oppression to a Friend and desired him to consider how to relieve him Accordingly the Friend suggested this matter to the Chancery which Court made an Order for the youngers bringing the Elder Brother into Court which was done the poor man being relieved from imprisonment and darkness and having not convers'd with any person but the above Friend for a long time and that but once during his Confinement was overjoyed when in Court and consequently very lavish of his Tongue of which the younger Brothers Council took notice and said My Lord you may easily see what this Man is in his Understanding by his much talking To which the suspected Mad-man replyed as to the Council Sir if you had been restrained from speaking so long as I have been you would be glad to make use of the liberty of your Tongue when allow'd you upon which the Custody of him and his Estate was discharged but I own it was the saying of a suspected Mad-man and therefore not worth regarding or applying I confess I should have guess'd that one of those four Reasons had been the Motive of writing this Sheet of Paper for I cannot call it a Book and I will not be so unmannerly as to call it a Libel or Pamphlet because if if it was not written yet it was perused and appoved of by all the Criminals in my Lord Russells Sufferings but that the Author himself gives us the reason of writing it by way of excuse that it was for the support of the Government he writ it It is true he says the support of the Magistracy and Government is a noble Theme so that the Words made one hope he intended his Discourse of Magistracy and Government in general But in that he as much deceives the Reader as in his Title Page for there is not one word in his Discourse more of Magistracy or Government than that Encomium But I find he intended nothing but the Justification of the Government in the particular Act of putting the Lord Russell to death and therefore If I had been his Adviser he should never have made so large a Porch but made it suitable to his House and entitled it The Magistracy and Government of England vindicated in condemning and executing the Lord Russel and if the Author had a mind to it tho he needed not I would be content he should have added by way of Answer to the defence of the late Lord Russells Innocence c. the Paper in no part of it pretending to more than what that Title fully comprehends and being so is one of the hightest Atfronts that ever was put upon the Legislative Power which out of a Sense of that Lords Innocence and of the Irregular Proceedings against him so cunningly couch'd that it was at least doubtful whether by any ordinary Course of Law right might have been done to his Memory and Children have thought fit by an Act for that purpose to reverse the Attainder At this time of day none would have thought that a necessity should happen of writing upon such a Topick when every English Protestant was entertaining himself with the pleasing prospect of Impartial due and indifferent Administrations when Authority was becoming amiable and easie to the People when the People were inclining to a zeal and affection for the Honour of Magistrates in short when the Law was recovering its clouded credit in this Conjuncture none expected to see all the Pillars and Posts in the Town dawbed with plentiful Title Pages like so many Histriomastrix's of Will. Prynn's directing their Spectators to Books of Obloquy and Reproach not only on the Persons and Opinions but the Authority of Judges when neither of the three are corrigible or so much as censurable any otherwise than in and by a Parliament much less was it expected that Gentlemen of the Long Robe would appear in Print for to ridicule their own Profession and expose our Law even to the scorn of Foreigners It would not have been so very strange to have seen a Doctor of the Commons exercising his Wit and Raillery on the Common Law Proceedings when he saw his dearest Diana I mean his Excommunication-Process in danger of becoming useless and a fair occasion given him for such an Essay from the Disgust of the People against Westminster-Hall Had any thing of this kind been done in the time of the Government which this Paper pretends to vindicate it was ten to one but that he had taken a walk from Aldgate to Newgate for it and from thence to Tyburn and it was well if he escaped a swing there it might have been High Treason within the Stat. of Edw. the 3d. for it scandalized the Government consequently alienated the Affections of the Subject from the king which tends to an Insurrection or Rebellion consequently is compassing and imagining the death of the King and so the last is as natural a consequence from the first as King Pepin is from Napkin Nipkin But this Author had the good Fortune to write in a better time when we are not only entertaining our selves with the Prospect of but we are well assured impartial Justice will be administred c. But for all the Authors lushious commendations of future times methinks he a little forgets himself for if Authority is but becoming amiable and easie to the People and the People but inclining to Zeal for the Honour of Magistrates and the Law but recovering its clouded Credit there was a time when Authority was not amiable or easie to the People nor the People inclining to Zeal for the Honour of Magistrates and the Law clouded and if he admits that it will be hard for him to vindicate the Government in those times and even against himself he shews a necessity of enquiring into the reason of those things We do not applaud but accuse the negligence or wretchlessness of that man who recovering out of a great sickness be it a Feavor or the like doth not consider what threw him into that Distemper whether it was a Cold a Surfeit or what else to avoid the like Disease another time And it is plain that Persons that can stand by and see others though their nearest Relations desected do not do it as taking pleasure in seeing the Corps of their deceased Friends mangled but to know what carried them out of this World to prevent the like disaster if they could in the surviving What hath been may be again It is fit therefore at this time to see the Cause why Authority was not amiable to the People and why the People had not an affection for the Magistracy and Government
as is to be seen in my Lord Bacon's Elements much less doth it prove that the Consequence of a Design to seize the Guards is to kill depose or imprison the King For time was when the Kings of England were very safe and at at full liberty without Guards and to say truth no one instance in our English Histories can be given That a King hath been killed deposed or imprisoned for want of Guards I know it hath been pretended that King Charles the First had not went from White-hall if he had had Guards but that is but a Conjecture And it is a doubt whether his departure was forcible or voluntary Guards may defend a Prince from a sudden Attempt and scarcely so for Henry the Third and Henry the Fourth of France were killed the first in the midst of his Army the last in the midst of his Guards but not from the violence of the People a Prince is safe in the love of his Subjects and without it Guards are but of little use There were two late Kngs who did not well know whether they were not Prisoners to their own Armies and Mahomet the Fourth Emperour of the Turks was a Prisoner for some time to his own Guards when he thought himself at perfect liberty so little difference there is between Guards for a Prince's safety or his safe imprisonment I purposely omit speaking to the Cases of the Lord Cobham and Gray Watson and Clark because I intend to answer them last of all and for the same reason I speak not of Sir Walter Rawleigh's Case because it was the same with the other though the Author cunningly Musters them as distinct Cases The Case of the Earls of E. and of S. is reported short by the Author for their Indictment and Fact was for designing to take the Queen into their Custody and for that end assembled a multitude of armed Men which is actual levying War and so makes nothing towards proving the Matter in Question which is a Conspiracy to levy War without actual levying War. Cardinal Poole's Case is to as little purpose for in the Book that Cardinal Poole wrote which was in the 27th of Henry VII in which as my Lord Coke says 3 Instit fol. 14. from whence the Author had the Case there was this passage In Anglia nunc sparsum est hoc semen ut vix à Turcico internosci queat idque authoritate unius coaluit And in the precedent part of the Letter names the King and though more Treasons in the Indictment than one are mixt together yet the Indictment did then as it hath of late conclude contra formam Stat. which may be interpreted All or any Statutes precedent to that Fact enacting Treason And if the Author will look back he will find it enacted by the 26th of Henry VIII cap. 13. That to publish that the King was an Heretick Schismatick or an Infidel was High Treason and I would fain know whether the above passage is not a good proof of publishing that the King was an Infidel and so it was Treason within the above Statute But nothing can be inferred from an Indictment never pleaded unto as was Poole's The Case of Dr. Story is as little to the purpose who as Cambden says was to have been charged with consulting with one Prestall a Man addicted to Magical Illusions against the Queen's Life and always cursing her in his Graces and for having conspired the destruction of Her and of the King of Scots and shewed the Duke of Alva's Secretary the way to invade England to which Indictment he would not plead and therefore was condemned There is no doubt but the Indictment against Story was legal and standing mute he was legally condemned but whether his accusation was only perswading the Duke of Alva to invade England does not appear nay the contrary appears by Cambden and my Lord Coke quotes the Case to prove Story being born a Subject was not an Enemy but a Traitor besides it must be remembred that at that time there were Acts of Hostility between the Queen and the Duke of Alva and so Story may well be guilty of Treason by the Clause in the Stat. E. 3. of adhering to the Queen's Enemies and in the exposition of that Clause doth my Lord Coke cite Story 's Case as if he had been attainted on that Clause And though the Author quotes my Lord Dier yet the Case was put to the Judges otherwise than the Author relates for he says If a Subject beyond Sea invite a Prince to invade the Realm and no Invasion follow that Offence that is and if the Practice be for the death of the Prince what Offence this is and how and where it shall be tryed and these Offences says the Book were held by the Justices to be High Treason for that an Invasion with great Power cannot be but that it will tend to the destruction or peril of the Prince but it is plain that if the Judges did deliver that as the reason of their Judgment they needed not have done it for that Story 's Accusation without that reason was High Treason within the first Branch of the Stat. of Ed. 3. it being for compassing the Queen's Death and was so put to the Judges And it is plain notwithstanding the report of that Book the Judges did not give that reason for their resolution or if they did there was little credit given to it for in April following as the Author says it was enacted That the intention of levying War should be High Treason during the Queen's Life which was very absurd if the opinion of the Judges was such as reported or if it were such and it were believed it had been proper rather to have declared That the intention of levying War was High Treason within the first Branch of Edward III. And it is plain If the Opinion of the Judges in Story 's Case was such as reported it gained no credit with my Lord Coke who takes notice of that Case and yet expresly says that a bare Conspiracy to levy War is not Treason within the Stat. of Ed. 3. and takes notice of the 13th of the Queen which says he is Expired The Case of Coleman is well remembred to be for Conspiring to take away the King's Life by other sort of ways than levying War and to say Truth there was such Proofs and Suspicions of the thing confirmed by what after happened that the Author if but in tenderness to his Party ought to have spared that Case As for Balshall's Case I did not think it worth my time to look the record of it I find the Author hath it out of a Paper called Animadversions upon the Lord Russel's Speech and that Author hath it out of Dr. Nalson's Collections and to say Truth the style of that and his Paper are so alike that they seem to be writ by the same Hand I think the Author might have fitted himself with a Case out of