like manner for exciting and moving the People to an Insurrection and War and he incurred the like Judgment which Cases are infinitely short of this in question and it cannot but be wondred that any man who has read them should question whether a consulting and conspiring about rising and an actual agreement and determination to rise be an overt Act of compassing the King's Death In the very Tryal of the Lord Stafford it is affirmed by Sir William Jones who was certainly of great Authority with the Authour that the meeting and consulting together is an overt Act though the thing agreed on be never put in Execution and 't is there resolved by the Judges that the same Treason may be proved by two Witnesses to several overt Acts though one speak of Words or Actions that were spoken or done at one time and place and another speak of Words or Actions at another time and place which argues that Words much more a Consult and Agreement may make an overt Act. Even in the Case of Stephen Colledge in which though the Tryal hath been censured yet the Indictment never was and in that Indictment the Treason is laid as in this Case That he traiterously imagined and compassed the King to depose kill and destroy the overt Acts are That he armed himself and advised others to arm and spoke several Words c. Here was no War levied onely a Preparation and yet that was allowed an overt Act and as for the Words if they are allowed to be one with much more reason may Meeting Consulting Concluding and Agreeing to doe As to the Objection Surely there is no weight in the first which is Page 10. that criticises upon the word fait Act and that 't is onely a meeting to agree and an agreement to doe but 't was not done Suppose they had concluded and agreed to poison or stab c. according to the Opinion in that Page this was no Treason for 't is onely agreeing and concluding upon a thing to be done but it is not done He doth in Page 13. argue that this can never be an overt Act of compassing the King's Death because levying War is a distinct species of Treason and a conspiring to levy War is not a levying War and even levying War it self cannot be assign'd as an overt Act of compassing unless the Indictment were particularly for that but surely another sort of Act that favours of another species of Treason if it naturally conduce to the accomplishing of the first species viz. that of compassing it may be assigned as an overt Act of it and Sir Henry Vane's Case is quite otherwise and there a levying War was the overt Act alledged of the compassing and allowed by all the Judges and all the Indictments in the West upon Monmouth's Rebellion were so and yet drawn by very good Advice besides what Answer can be given to the Cases which I have cited where Consults Conspiracies Practices Advices Letters Persuasions and other Motives and Preparatives to an Insurrection have been held overt Acts of an Imagination of the King's Death though no War was levied though no Insurrection was made 'T is apparent from what was said before that to take the King Prisoner or to seize his Person is a compassing of his Death and if so then to sit in Council to conspire the effecting of that is an overt Act of a compassing the King's Death and this Case amounts to that here was a Consultation to seize upon the King's Guards which could tend to nothing but the seizing of his Person and then the consequence is plain The Authour says Page 14. If it had but been alledged in the Indictment that in pursuance of the Consult and Agreement there had been a view of the Guards and a Report made that the thing was feasible this would have been more to the purpose how much more no man can tell for every Objection in the Book would have been as good against that as this The great Objection he seems to rely on is That the Law takes no notice of them for once I will suppose that it doth not and then let us observe if any Argument can be drawn from thence Perhaps the thing was not used or known when the 25 Edw. 3. was made Can nothing be Treason if the Plot laid to accomplish it be concerning a thing not in esse at the time of the Statute Certainly it may If several Malecontents should consult and agree and prepare in order to an Insurrection to seize the Tower Portsmouth Hull and Plymouth Fort would not this be an overt Act of Treason and yet our Law takes no notice of any Garrisons there or any where else they have no relation to the Militia nor were there any Arms in those places in Edward 3. his time that we reade of in our Law Books if this be otherwise Why did not the Authour find fault witâ— Rouse's Indictment which was tried much at the same time with this in question Suppose all the Gentlemen-Pensioners Grooms of the Stole Gentlemen of the Bed-chamber and the like killed in the Night and the doors in White-hall broken up and all the Swords Musquets and Pistols there taken away and yet it happened that the King's Person was left untouched would this be an Act of Burglary and Murther onely We have no law-Law-Books that take notice of Arms at White-hall or such Names as those Servants go by and suppose at the same time upon the Consult that the Conspirators did move discourse debate and conclude of an Insurrection would it not then be Treason If not nothing can be so unless the King's Person be murthered or seized and the Statute should not have said compass or imagine but seize or kill c. It suffices then that the Guards are in common Understanding known to be used and imployed for the Attendence upon and Preservation of his Person If common sense and reason be Judge no man can think but that he who intended to move an Insurrection and seize the Guards had a farther design upon the King's Person and then 't is Treason if otherwise a King of England is in a worse condition than the worst and meanest of his Subjects for a King must not cannot in or by our Law assault strike seize attach or imprison in person and consequently cannot defend himself and shall not his Servants Guards and Attendents which are all of the same nature wear a Sword or carry a Musquet before him If they doe so is it not then known that they doe it If it be commonly known to be so doth not he that seizes and destroys those Attendants endanger the King's Person And if that be so the Inference is easie It can never be it will never be allowed for Law that a seizing all the King's Guards is only a breach of the Peace unless we renounce the Law and will judge more by Inclinations and Partiships than by Reason and Precedents As to
London and deliver the Queen of Scots and that 's all There 's nothing remains in doubt but the legality or illegality of the King 's keeping Guards for the preservation of his Person they say the Law takes Care of him and therefore he is to take none of himself and that the Judges are his Guards and therefore he needs no other that Henry VII was the first other But let us reason a little can it be King that had any supposed that he should be so sacred in his Person so great in his Power and of such Authority as to make War or Peace abroad and raise Forces and suppress them at home as the Danger or Defence of his Realm should require and not be able to provide for his own Personal Safety de presenti Can he only punish by his Judges afterwards or prohibite by Proclamation before but not defend himself for the present Is it sense to suppose it The Kings of England might have and actually had Soldiers or Guards call them what you will even in times of Peace and long before Hen. VII as well as continually since I may be so bold as to defie any Man to shew me the Year the Month the Week or the Day since the Conquest by William I. that England was without armed Men actually upon Duty in some part or other of the Nation This Sheet is not intended for a studied Argument on this Subject and perhaps it would be difficult to justifie a standing Army as warrantable when there 's no occasion for it but to say he can't by force even by force provide for his own personal Safety when he apprehends it in danger as every English King hath continual reason to doe especially if some Mens Doctrine prevail it may be modestly affirmed unreasonable Hath not every Subject power to keep Arms as well as Servants in his House for defence of his Person Is not his Mansion called his Castle And yet the Law protects him too by Prohibitions à parte ante and Punishments ex parte post There are many Tenures in England which oblige to the annual payment of certain Summs towards Soldiers Wages for Defence of the King and Kingdom there are others oblige to the annual finding certain quantities of Grain in kind for the supplying the King's Castles and Garrisons as well as Houshold which being annual do demonstrate the lawfulness of their continuance even in times of Peace and their being immemorial do conclude a Common Law right in the Kings of England to have those Occasions as they do conclude him a Right to have them supplied by such like Services Nay Grand Serjeantry is either by Services of Attendence on the King's Person in time of Peace or for Military Aids in time of War The Crown may raise Forces by Commission or of the Militia to suppress Insurrections in Case the Civil Power of the Sheriff is not sufficient or ineffectual The Kings of England have the sole Power and Force of the Nation Complaints have been in Parliament against Billeting Soldiers contrary to the Will of the Hosts but never for maintaining a Guard for their own Person at their own Charge Complaints have been of a standing Army but never of a select Company for his personal preservation a Terror to the People may as well be pretended from his Coachmen Footmen or Grooms if their Numbers be great Besides for a competent Power in Arms he always may have occasion when his Subjects know nothing on 't 't is his Province to foresee and prevent as well as suppress and punish domestick Tumults and the Business of War is separately his Office and that exclusive of his Subjects any otherwise than as they are bound to obey and fight or desired to assist with Aids and Subsidies and for this to avoid a numerous Volume of Citations I 'll name one notable Roll or two in Parliament 6. Ric. II. Mem. 9. the manner and way of the prosecution of a War being given in Charge to the Commons to advise upon they answered that this nec doit nec solayt appertain al cux mes al Roy and so they did 31 Edward III. Parte prim n. 11. 21 Edward III. n. 5. It 's true in 5 Edward II. n. 4. Ordinances were made that the King without the assent of his Barons could not make War but those were repealed and dampned 15 Edw. II. Parl. Rot. M. 13. because prejudicial to the Royal Power of a King and this is sufficiently affirmed by the Act concerning the Militia in Carol. II. his time It is well known in what time Bryan Chief Justice said that if all the Subjects of England should war with the Subjects of another Kingdom that this is no War unless the King denounces it It suffices for my Friend's Point that the King may lawfully have armed Men or Guards when himself judges his Person or People to be in danger or stand in need of them And that he may when reasons of State will not admit their publication to the World But however fome standing Force the Crown ever had and ever will have though not always to such a Degree as shall be burdensome or oppressive and our old Law Books say that Arms as well as Laws are necessary for the Prince not only in but against the times of necessity I mean War or Tumult besides in Bracton lib. 3. cap. 3. de Corona 't is said that Crimen lesae Majestatis is the greatest Crime because of the greatness of the Person 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 Inserence 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 Glanvil 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 cjus 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 summ 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 Over-act to the opinion of Coke in the places 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 William Ashton Germain and Taylor and Thomas 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 Presacer 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 a Friend to write some 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 Noose 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 Pro. 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 his blind 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 p. 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 Paper 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 P. 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 T. 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 though 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 proceedings 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 or deficient or both The 5 6 8 9 and 10th Pages are all impertinent to the Point in question and contain nothing but a Vindication of his justly condemned Clamour in his former Book concerning which I 'll boldly say it in seventeen Points of twenty he is out in his Law if 't were convenient to publish the proof on 't I could make it plain His design is to shew in those Pages his Wit and Fancy more than Candor or Law for my part I am of his Friends mind that he comes not short of the old Observator for mannaging a Dialogue But all this is not to the purpose he is not come at it yet the 12 Pag. savours of the same Kidney and 13. and 14. are no better there he vents his Gall and that in Ribaldry no softer a name than Tools can be afforded to Men of Worth and Honor If himself be one as some suppose him I am sure it is not to the present Government for he plainly condemns it and declares the People i. e. his sort of them unsatisfied with it for its spatingness in vengeance and it is because others are not punished for maintaining the Law and themselves not preferred for Arraigning it some Men know my meaning He says he is only for mumbling of Judges and Counsel Causa patet But I must tell him two things 1. The Incinations of Englishmen and the Laws of the Land will never quadrate with a Common-wealth 2.