when it is so agreeable to human kind and how the Credit of the Law came to be clouded and even at this time when we are recovering at least if not recovered out of the Disease When we desponded of a Recovery it was as foolish to think of the Causes as it is of a dying man past hopes to bethink himself what brought him into that Sickness It is a vain thing to say that the Authority of Judges exempts them from an enquiry into and censure of their Opinions A Judge is omne exceptione major in respect of the Suitor so that he cannot except against a Judge as he may against a Juror but his Opinion is censurable by all and punishable if he act against his Knowledge and as I think his Opinion is censurable so I think his person ought to be pointed at and named in Justice to the Innocent least a Person Innocent should be suspected or concluded to be the man whose Opinion is censured I confess when I read the Character of the Trimmer wherein the Author says he could almost have wished he could not have read I cannot but remember that there was a time when I could have wished I had not read a Word of Law for it was impossible to think how many men lost their Lives and were ruined in their Estates not only without but even against Law but those that saw it must not only commiserate them but in some sort bear a part in their Sufferings And the matter went a little further for none was secure but it might be his own turn at some time or another and his being a Lawyer no way secured him it rather indangered him for he was capable of being a Spy and a Discoverer and in that respect the most Ignorant which the Lawyers call Lay Gents were the most unconcerned they still thought there was some sort of Justice and that if they were innocent they were safe And on this Rock the Lord Russell Collonel Sidney and Mr. Cornish split When the Lawyers and better advised fled I think it is not only excusable but the Duty of Lawyers to discover the Erroneous Opinions and much more the wilfully illegal Practices of Judges and of Persons of their own Profession who were indeed authorised and sworn to execute Justice but practised the contrary their Patents neither did nor ought to exempt them from censure more than it does from punishment If they have done according to Law or according to the best of their Understandings the first can do them no harm and the last ought not to be inflicted on them but if they have acted contrary to both I think they ought to be discovered and exposed nay I think a Lawyer is not safe in concealing them If it were so fatal to the Lord Russel which as the Author says was so much pitied in his Fall to be knowing of matters treated of in several Consults and not discover them to the Government a Lawyer may well suspect that it may be as great a Crime in him to know several Persons tho of his own Profession guilty of actions more hainous than the matters treated of in those Consults and not discover them If a Lawyer should be guilty of Murder and another of his Profession should know it and not discover it would it be an excuse for him to say that that other was a Gentleman of the long Robe And what reason is there for the Gentleman of the long Robe to be so Civil to these Criminals though of their own Profession Were not they the Persons who in affront to the Inns of Courts and in defiance of the Law hanged up two of their own Profession before the Gates of three of the Inns of Court and if the fourth Inn escaped it was not for want of good Will but Opportunity And had they not till of late hanged up the parboiled Quarters of two Persons at Temple-Bar whereof one was a Barrister at Law in affront to the two Neighbouring Inns of Court to shew the power of these Criminals rather than their knowledge in the Law to the reproach of their Profession and exposing our Law to the scorn even of Forreigners The Doctors of the Commons have been but little to blame their Oppressions if any have been very modereate their 's never extended farther than the restraint of Persons ours have been loaded with Fetters and generally ended with Blood and therefore I will not use the Person of a Doctor of Commons to ridicule expose or accuse the Proceedings of the late Times but I will set up John a Stiles and John a Nokes the ordinary Plaintiff and Defendant in our Law to accuse expose ridicule and defend Dialogue wise the late Proceedings in Capital Matters the last Part of this Paragraph being best answered in that manner But beforehand I must tell you their Characters John a Stiles is a Man no way concerned in the Proceedings of the late Times and is a meer Lay man that is to say a Man who understands nothing of Law but reasonably sensible and has the Curiosity to read all Pamphlets and Books which come out in Print John a Nokes was a Common Lawyer of no great note or understanding but zealous to vindicate the Law they were acquaintance often met and discoursed at a private Table in a Coffee-house And John a Stiles began J. S. Having nothing else to do I have read over some printed Tryals of Persons who suffered particularly of Edward Fitzharris Stephen Colledge William Lord Russell Colonel Sydney and Mr. Cornish and the Charge to and Discourse with the Grand Jury which passed on the Earl of Shaftsbury and I cannot but wonder that so many wise Heads as have been laid together to frame the Common and Statute Law of England should make or allow it to be so very uncertain as it is and even in the Matters of greatest concern I mean Capital Matters which I thought had been certain For I remember Howell in his Dodonaes Grove wherein he makes use of our Names in Civil Matters commends the English Method as a late Author hath called it of Proceedings against Criminals at an high rate but to me nothing seems more uncertain and between you and I I hope those Prints may never light into Forreigners hands for if they do it will expose our Professors of the Law and even the Law it self to their scorn J. N. I own the uncertainty of the Law is the greatest Reproach you can give it though a mighty advantage to the Professors of it There is a Liberty given by it of giving Judgment any way they please and still they have an Authority or Precedent to bear them out and where the Law is doubtful you cannot blame a Judge if he takes Instructions and a Gratuity for his pains in private But I do not admit our Law is uncertain I challenge any Man to shew me out of the Tryals you mentioned or any other Printed and Licensed that
Spain which fell out in 88. and Protestant Subjects were not safe in assisting and had no encouragement to assist their Protestant Princess as long as there was fear they might be in danger of their being punished by a Popish Successor for which reason they were of Opinion That the Popish Successor might not only be excluded but might and ought to be the Law being of their side removed out of the World which was done in 1587 for which when Davison was questioned in the Star-Chamber the Lord Grey was against his being punished and would have had him rewarded for which he gave his Reasons in a very eloquent Speech remembred by Cambden This as it had reason provok'd her Son who was to be and was the Successor to the Crown Some time after the Earl of Essex having lost that Favour and Power which he thought he deserved at Court as it is natural betook himself to the Successor and though it was concealed for some time he became a great Favourite to K. James the First The L. Cobham and Raleigh were profest Enemies to the Earl of Essex who gave them a greater advantage over him than they could have hoped for by breaking out into an act of open Rebellion for which they took care he should not escape His Death was much regretted by K. James though he durst not take notice of it to the Queen The Queen dying those three Persons had reason to fear punishment from the King and therefore would have had if they could have prevailed the King admitted on Articles but being not able to carry that point the Lord Cobham and Raleigh thought to have made their peace by meeting the King on his Journey congratulating his Succession to the Crown and offering him their Service but were not permitted to come to him and had Word sent them They might spare their labour which presaged no good to them The King came to London in May and in July following was the pretended Plot discovered and in November following the pretended Delinquents were tryed at Winchester together with Watson and Clark Their Accusations were in general first to set the Crown on the Lady Arabella's Head and to seize the King. Secondly to have a Toleration of Religion Thirdly to procure Aid and Assistence from foreign Princes Fourthly to turn out of Court such as they disliked and place themselves in Offices Of these the first Article is Treason what Crimes the rest are is doubtful what of them was proved against the Lords Cobham and Gray Watson and Clark or how their Tryals were managed doth not appear But Sir Walter Raleigh's Tryal does appear and is much like the L. Russel's and therefore of some Circumstances of it I think it is fit to take notice Instead of Consults c. in the L. Russel's Tryal the cant-Words of the surprizing the Bie and the Main were made use of in Sir Walter 's interpretable as the Council thought fit at least it was astonishing to the Jury which was all that was design'd by the Council and fatal to the Prisoners I have no mind to run through all the ramble of Sir W. Raleigh's Tryal as it is printed before his History of the World because the parallel is too exact and sticks too close to the Memory of Persons gone only I will say That if Sir Walter Raleigh was guilty of the things he was accused of by the Witnesses though the Accusation did not amount to a legal Proof it was high Treason but if the L. Russell was guilty of the things he was accused of he was not guilty of high Treason But yet I think it is fit to take notice of some extraordinary things in Sir Walter 's Tryal particularly that when the Prisoner said he was tryed by the Spanish Inquisition if he was try'd by Circumstances without two Witnesses it was told him that was a treasonable Speech It was told him by the Court that the Statutes of the 25. Ed. 3. and 5. Ed. 6. were repealed it was told him that his Accuser need not be brought face to face to him nor subscribe his Confession 't was enough that there were Hands of credible Persons to testifie the Examination it was told him that a Man might be condemned by the Testimony of one Witness nay even without a Witness in Treason He was accused that he heard the Lord Cobham speak of Pensions from Spain he said he could not stop the Lord Cobham's mouth he was accused with having given the L. Cobham a Book treating against the King's Title to the Crown he said he did not give the L. Cobham the Book the Lord took it off his shelf and that himself never read it or urg'd it the Attorney said that was cunning Sir Walter reply'd That all that made for him was call'd cunning what made against him was probable The Prisoner was told that by Law his Accuser not only need not be brought face to face to accuse him but the Witness ought not to be produced lest he should recant what he had said One Dyer testified That a Gentleman he knew not whom at Lisbon told him Don Cobham and Don Raleigh would cut the King's Throat before he was crown'd the Attorney told him he was by when the Earl of Essex dyed Sir Walter produced a Letter from the L. Cobham wherein he acquitted Sir Walter of all he had accused him of the Jury found him guilty Sir Walter said the Jury must do as they were directed he complained of the wrong the Attorney did him Brook said that what he did in that matter was to try faithful Subjects and that he had a Commission for so doing but produced none Sir Walter in his Speech on the Stage took notice of several Calumnies raised of him particularly that he had spoke dishonourably of the King to a French-man and had rejoiced at the Earl of Essex his Death both which he denied Now why the Author quotes this Case as a Case for him I cannot imagine neither the Fact Accusation or Resolution of it in any point coming up to his purpose for Sir Walter and the rest were accused of the Main which was the destroying the King and his Cubbs and setting up the Lady Arabella for Queen or at least for designing to imprison the King till he yielded to their Demands and therefore what occasion was there for such a Resolution of the Judges as is pretended that conspiring to levy War was high Treason within the Statute of Ed. 3. Nor can I find in any Book nor do I believe there was any such Resolution My L. Coke indeed says in that case it was resolved That a design to imprison the King was high Treason but in the same breath says that a Conspiracy to levy War is not Treason But if the Author intends to vindicate the late Government by shewing that in former as well as in later times there have been found Persons of the long Robe who have by irregular means brought
does not distinguish it in its reason from that in dispute He denies the Authority and Law of Dr. Story 's Case which no body ever denied before him He says that in the Lord Cobham 's Case there were People assembled but gives not any Answer to what the Antidote affirmed viz. that the Overt-act taken notice of in the little Book called The Pleas of the Crown was only the conspiring to make an Insurrection He doth confess that in the Lord Gray 's Case there was only a Conspiracy He says that in Sir H. Vane 's and Plunket 's Case there were several other Ingredients to mount them to Treason but what they were no body must learn at least not from the Author for he names none of them He consumes half a page in an Encomium upon the Judiciousness of that Court which made a consciencious legal Scruple whether the Murther of a Mistress by her Servant were Petit Treason by reason of the difference of her Gender but at last he tells us That the Judges of the Common Pleas did upon much deliberation satisfie those of the King's Bench that Master and Mistress were in effect but one The Indictment contained no new constructive Treason but only that which was plainly and directly declared in and by 25 Edw. 3. if the letters of it make words and the word sense and one man may be allowed able to read them as well as another Since the writing of the last Paragraph there came to my hands another Pamphlet written by a New Observator but I suppose the Judges that shall be will correct that sort of Licentiousness which he assumes in his Remarks which if they do not they 'll have fine easie Places on 't as well as their Predecessours and much good may it doe them Aetas parentum pejor avis tulit Nos nequiores mox daturos Progeniem vitiosiorem Horat. The Truth is the Indictment though I think it was not good yet it was the least defective of any thing in that whole prosecution the Evidence was the most defective which the Authour dares not bite at and yet the Authour doth not pretend it amounted to more than an intention to levy War which is not Treason within the Statute of Edw. 3. he quotes indeed a great many Cases to prove his Thesis to every one of which something shall be hereafter said only at present I cannot but wonder at the assurance of any man who pretends to understand the Law when the Parliament which is the supreme Court of Judicature in the Nation hath so often adjudged that it is not Treason within the Stat. of Ed. 3. that he should think to confront and over-rule those Judgments by Judgments given at Westm or at the Assizes Surely it is as ridiculous as if in any Court at Westm a Counsel should think to ever-rule a Judgment given there by the Authority of a Judgment given in an inferiour Court by a Steward or a Bailiff that Person was excusable because he did not pretend to understand Law who said in Parliament that if they did not doe him right there he would not abide by it but would bring the Matter into Westminster-Hall For is not the Stat. of C. 2. which makes a Conspiracy to levy War during the King's life an express Judgmt of the Parliamt that it was not Treason within the St. of E. 3. is not the St. of the 13. of the Q. which made it Treason during her Life another express Judgmt in the same Case to the same purpose And is not the Judgmt of the Parliamt as it is the supreme Court of the Nation of more Authority than any Judgmt in Westm Hall and much more than any Judgmt at the Assizes or Sessions Besides consider the Parliamt which consists of all the Nobility assisted with all the Judges and of the best of the Gentry and assisted with Lawyers and none can doubt which Judgmt ought to carry most authority with it Consider the imputation which is laid on the St. of E. 3 by such construction a St. seemed to be penn'd with all Wisdom and circumspection imaginable out of a sense of what the Subjects had suffered by the uncertainty of the Law before and which in all ages hath been applauded for the best penn'd Act to be found and which in all ages hath been made the Standard of Treasons for when out of Flattery or in compliance with the King Treasons have been multiplied out of a sense of the mischief they have afterward still been restrained to the St. of E. 3. and yet by this construction that St. is made guilty of an absurd tautologie for if conspiring to levy War be compassing the K's death which by that St. was Treason it was absurd afterwards to say that actual levying War should be Treason because a War cannot be actually levied without a Conspiracy to do it though there might have been a Conspiracy to levy War and yet not afterwards actually levied And the true Reason of the difference is this What tends to the mischief of the King's Person every one knows but what is War is not so certainly known Those who went to throw down Enclosures did not think it to be levying War though it were so and it would be hard to make their consulting to do it high Treason I do not instance in this as a parallel Case with the matter in question but only to shew that what is War or not War is not so easily known as at first sight apprehended and the Makers of this Statute who had smarted by pretence of levying War were more strict in penning the Clause of War than they were in penning the Clause of Compassing c. In the time of Henry the Fourth in the Earl of Northumberland's Case it was doubted whether his riding armed with a Force for a private Revenge was not levying War which was a Doubt so great that it was resolved in Parliament to be only a Trespass And if what is War is so uncertain the intention of levying it is more uncertain Let any one but remember how narrowly Blague escap'd but for talking of the feasibleness of taking the Tower. Now though I agree That conspiring to depose or imprison the King is high Treason within the first branch of the Statute of Edward the Third because they destroy him in his politick Capacity it is no manner of inference to say therefore conspiring to levy War is high Treason within that Statute because if the Conspiracy took effect the Death or Deposing the King doth not naturally much less necessarily follow nay it very rarely hath so done And let any one examine our Histories it will not be found to be a Consequence once in forty times whereas if a Conspiracy to depose or imprison the King if it take its effect he is actually deposed or imprisoned The first Conspiracy is remote the last is next the Deposing a distinction of great use in our Law and in Treason
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
of an Heathen Authour J. S. But he seems to me to be an Author of great sence But you and I have wandred extravigantly from the first subject-matter proposed What have you to say why your Law is not certain J. N. It is your fault you have served me as the Persons in Ovid's Metamorphosis were drawn me from one matter to another and I humour'd you in it in order to give you a satisfactory Answer and I think I have done it for I say the Law is certain the Expounders of it have been uncertain J. S. Why then you would vindicate the Law by aspersing the Judges whom you call Expounders of it But pray if the Law be so for calling Parliaments as you have laid it down why would any Persons advise the King He was not obliged to call One. J. N. In the last part your Question you seem to have lost your Memory you said some Persons had done amiss I owned it and said they were punishable for it in Parliament and I dare say neither you nor I if we were in their Circumstances would have given any other Advice to the King. And as to the first part of your Question if you will think of it again you will be of my Opinion That when the same Man on the same Fact and Law is of different Opinions it is the Man not the Law is uncertain and that I take to be a Vindication of the Law which was the thing I undertook J.S. There is some Reason in what you say and I 'll consider of it and tell you what I think the next time I meet you here Since the Press seems open and Lawyers Books are published without a License another may assume the same Liberty with equal Authority and with more reason when his Province is only to correct the misrepresentations of things actions and persons tho' made by Authors of Age Experience Figure and Learning I will not say Candor or Honesty especially since they are private Men and having vented their own thoughts in print they remain no longer theirs but are equally exposed to be Censure or Applause of every Reader Besides 't is generally presumed that an Author expects a publick Animadversion or otherwise he would never have become such He presumes his Arguments irrefragable and then an Answer does him no mischief and if they are otherwise he deserves it And surely he stands as liable to be corrected by others as others were to be censured by him And it is more warrantable certainly to Write and Print for the Vindication of former Proceedings than it can be either candid or gentile to arraign or expose them especially since to do so is and must needs be mischievous to past present and future Governments as Experience will unquestionably teach us but the other is and will be of service to future Administrations by maintaining the Reputation and Credit of Judiciary Proceedings It is well known that the Lord Russel being so unfortunate as to fall under the Accusation of Treason was the most pitied of any under those Circumstances by all who knew either his Family or personal Character great expectations were then had of the issue of that Trial the event gave great occasion for Discourse afterwards and almost ever since the Printing of his last Speech with the several Answers to it did much augment the talk It cannot but be remembred how various and different the Sentiments of most were upon that subject the Debates concerning it generally concluded in a pity to his Person and Relations as a great Misfortune upon both and in truth upon the Nation that a Gentleman of such Qualifications should be guilty of so much Inadvertency to say no worse as to ingage so frequently in such Consults as he unhappily did Some blamed the Jury most censured the Witnesses but very few arraigned either Council or Court and in truth the fairness and indifferency of that Trial was such that his own Relations were pleased and his Enemies angry with those that then sate upon the Bench and thus is continued till the present Revolution I think it is not warrantable to Write or Print for the vindication of former Proceedings if by those Proceedings are meant the Proceedings against the Lord Russel Colonel Sydney Mr. Cornish and seveal others and I think it is not only candid and gentile but the Duty of every Subject who knows them to be illegal as I do to arraign and expose them and the rather because tho it may be mischievous to the past yet I am sure it is beneficial to the present and future Governments as Experience hath and will unquestionably teach us and I am well satisfied that the discrediting the Judiciary Proceedings of those Times will be a service to future Administrations for we well know that illegal Presidents which have past sub silentio have by length of time gained Credit The Lord Russell was indeed unfortunate to have lived in those times when he thought it was his Duty to be active for the Protestant Religion Liberty and Property and every knowing Man was sensible that at that time it was impossible for him to escape an Accusation of Treason and being accused to escape a Condemnation for that pretended Crime The honest but ignorant in the Proceedings of those times had indeed great expectations of the issue of his Trial but the Tories as well as honest Lawyers who knew the Proceedings of those times which the Author of the Sheet would vindicate made no doubt but he was a dead Man from the time he was seized After his Speech came out there were no various Sentiments of the subject all agreed he was Innocent none pitied him for that which was before pity in the honest was turned into anger and all the rest were enraged to find a Man reproach his Enemies in his Grave and therefore I cannot but remember some passages of two Books the one called The Antidote against Poison wherein the Author chargeth the Paper called The Lord Russel 's Speech That the Reader would not find the Ingenuity Sincerity or plain Stile of a dying Gentleman in it but the Dialect of an Artist used to shadow Truth with ambiguous Expressions and handles it as if he were to take Exceptions to an Answer in Chancery 't is true he pretends the Speech was composed by another Person and not his Lordship but since his Lordship owned it to be his it was the same thing as if he had composed it himself and that Book chargeth his Lordship with Folly and Falshood at the same time The other called Succinct Remarks on the Speech of the late Lord Russel wherein the Author treats his Lordship as one of the Modern Traitors and challenges all the Jesuites in Europe to stuff a Speech with such Equivocations as the Protestant Jesuit the Lord Russel had his and Jesuit Traitor and Hippocrite Coventry-blew Protestant-Lord and the like was the Dialect of that Pamphlet Besides Jack Ketch's Vindication
this Realm and that was held an Overt-act of imagining the King's Death In the Lord Cobham 's and Sir Walter Rawleigh 's Case a Conspiracy Consult and Agreement to promote an Insurrection and procure an Invasion was held an Overt-act I Jac. 1. and their meeting consulting and agreeing was laid as an Overt-act though discovered before the thing took effect Dr. Story 's Case which is mentioned by the Lords Dyer and Coke was no more than a Practice and Persuasion to promote an Insurrection and Invasion and the Overt-act that was alleadged was the writing of Letters for that purpose which is no more influential towards it nor so much as frequently meeting consulting and conspiring and at last concluding and agreeing to make an Insurrection The Case of Mr. Coleman was no other for whatsoever the Indictment laid the Evidence was only of Letters to the like effect as to this point with those of Dr. Story and that Case of Dr. Story was before the 13 Eliz. which made a new Treason during her Life for the Tryall was in Hillary Term and the Parliament did not begin till April following A Machination or Agreement to raise a Rebellion naturally tends to the Destruction both of King and People and an Advice to it hath been adjudged so as in the Reign of Hen. 4. one Balshal going from London found one Bernard at Plow in the Parish of Ofley in the County of Hartford Balshal told him that King Ric. 2. was alive in Scotland which was false for he was then dead and advised him to get Men and go to King Richard in Mich. 3. Hen. 4. Rot. 4. you 'll find this adjudged Treason Throgmorton 's Case is as plain for his was only a Conspiracy to levy War within this Realm he did not joyn in the Execution and the Conspiracy alone was declared to be a sufficient Overt-act by the Judges 'T is no Answer to it to say that a War was afterwards levied for quoad him 't was a bare Consult his Offence was no more than that In Sir Henry Vane 's Case meeting and consulting were alleadged and held to be Overt-acts The Case of Constable mentioned in Calvin 's Case was only an Act tending to deposing the Queen as dispersing Bills in the Night that Edw. 6. was alive in France and held an Overt-act declarative of his compassing her Death and he was executed for it and in the Report of Calvin 's Case you have several other Cases mentioned where endeavours to withdraw Subjects from their Allegiance have been adjudged Overt-acts of this species of Treason the compassing c. The word Compass in the Statute is of a larger extent than only to mean an actual Assault on the King's Person and an endeavour to cut his Throat it most certainly implies any consult or practice of another thing directly which may produce that effect as dissuading people from their Fidelity such was Owen 's Case in K. James 1st's time in the 13th year of that Reign his Advice was to this effect That King James being excommunicated by the Pope might be killed by any man and that so to doe was no Murther for being convicted by the Pope's Sentence he might be slaughtered without a fault as an Executioner hangs a Criminal condemned by Law and for this he was hang'd as a Traitor He that denies the Title to the Crown and endeavours to set it upon another's Head may doe this without a direct and immediate desiring the Death of him that wears it so said Saint-John in his Argument against the Earl of Strafford and yet this is Treason as was adjudged in the Case of Burton and in the Duke of Norfolk's Case 13 Eliz. This denying of the Title with Motives though but impliedly of Action against it hath been adjudged an Overt-act of compassing the King's Death as it was in John Sparhawk 's Case Pasch 3 Hen. 4. Rot. 12. The like was the Case of John Awater who was indicted for a Treason of that ture in Kent and the Indictment removed into B. R. Trin. 18 Ed. 4. see Rot. 17. and he was thereupon afterwards outlawed as a Traitour and so was Thomas Heber at the same time and words significative of an actual intention have been held so as are the opinions in Yelver 107. 197. Arthur Crohagan 's Case Cro. Car. 332. and abundance of others might be named as they are reported in our Law Books but I do not particularly mention them for that their Authority in some of them is very slender and may be ill used to the straining of rash and unadvised Words into a signification of a man's compassing when perhaps the man never thought as he spoke however all of them do evince that advised and deliberate Preparations moving to a danger to the King's Person have all along been held Overt-acts of a compassing his Death and some of them prove that Preparatives and Motives to the levying of a War have been held Treason as was Sir William Ashton of Suffolk 31 Hen. 6. mentioned in Cro. Car. 119. for making Ballads reflecting upon the King and writing Letters to the Men of Kent exciting them to rise to aid the then Duke of York c. ad guerram levandam and no mention of any War actually levied Germain and Taylor 's Indictment hath very little more in it mentioned than the like Preparations and Incitements to a Rebellion and yet the Treason there laid was a compassing the King's Death anno 2 Edw. 4. as at large appears in the same Report of Cro. Car. amounts to no more than the Indictment in question viz. That he compassed the King's Death and to accomplish that Intention he dispersed divers Writings c. ad intentionem that the People should rise and levy War c. the Judgment in that Case Drawing Hanging and Quartering the like is Collingbourn 's Case 2. Rich. 3. in the same Rep. 122 where he is indicted in 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 Tryall of the Lord Stafford is it 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 Tryall 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 Over-acts are That he armed himself and advised others to arm and spoke several Words c. Here was no War levied only 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 Meeting Consulting and Agreeing to doe As to the Objections surely there is no weight in the first which is Page 10. that criticises upon the Word fait Act and that 't is only a meeting to agree and an agreement to do 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 only agreeing and concluding upon a thing to be done but it is not done He doth in p. 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 cann't be assign'd as an Overt-act of compassing unless the Indictment were particularly for that but surely another sort of Act that savours of another species of Treason if it naturally conduce to the accomplishing of the first species viz. that of compassing it may be assign'd as an Overt-act of it and Sir H. Vane 's Case is quite otherwise and there a levying War was the Overt-act alleadged 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 every good Advice besides what Answer can be given to the Cases 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 K's Death tho' no War was levied no Insurrection had 'T is apparent from what has been said before that to take the K. 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 compassing the K's Death and this Case amounts to that here was a Consultation to seize upon the K's Guards which could tend to nothing but the seizing of his Person and then the consequence is plain The Author says p. 14. If it had but been alleadged 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 fecible 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 23 Ed. 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 Stat. 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 Ed. 3. his time that we read of in our law-Law-Books if this be otherwise why did not the Author find fault with 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 Whitehall broken up and all the Swords Musquets and Pistols there taken away and yet it happened that the K's Person was left untouch'd would this be an Act of Burglary and Murther only We have no Law Books that take notice of Arms at Whitehall 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 K's Person be murthered or seized and the St. 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 Attendance 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 K'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 Attendants which are all of the same nature wear a Sword or carry a Musquet before him If they do 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 K'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 K'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 the distinction between an actul seizing them and a Consult and Agreement to seize them what I have urged before overthrows it and what the Author says doth no maintain it for both have a tendency to the execution of the Treason intended I will not take the pains to remark upon all the Inconsistencies of the Concessions and Denials in the Book they are obvious to the Readers As to his Quarrel at the K's Guards as an illegal thing and terrible to the People somewhat of the French growth I hope the K. will always preserve them for his own personal Preservation notwithstanding the Authur's Opinion As to his temporary Laws which declare Words Treason most part of them were affirmative of the old Law and were made only in compliment to a new crowned Head when they prohibited nothing but what was before so and for the rest no Conclusion could be made from them for the maintenance of his Assertion if the had repeated them which since he does not nor will I. As to the Cases cited by the Authour of the Antidote which I have mentioned he agrees to Constable 's Case but