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A40071 An answer to the paper delivered by Mr. Ashton at his execution to Sir Francis Child ... together with the paper itself. Fowler, Edward, 1632-1714.; Ashton, John, d. 1691.; Child, Francis, Sir, 1642-1713.; Stillingfleet, Edward, 1635-1699. 1690 (1690) Wing F1695; ESTC R30132 19,700 32

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better became a dying man to judge more charitably of his Fellow Subjects Had he never heard of the Law of England requiring Allegeance to the King on account of the Possession of the Crown and that our most eminent Lawyers in peaceable and quiet Times have been of that Opinion Methinks at least that should make modest men not so peremptory in such a Charge for it is to make such an Oath unlawful which the Law makes not only lawful but a Duty And when the greatest Lawyers this Nation hath had thought this a part of our Law shall such who confess themselves unskilful in the Law charge the Nation with Perjury for taking an Oath which the Law requires But if our Law did not require it there is such a general consent in mankind about it that it seems to me to be a Law of Nations That an Oath of Fidelity should follow Possession because otherwise there would be infinite snares to the Consciences of all such who are required to obey but are not bound to enquire into the Rights of War Is it Perjury and Rebellion in the new French Conquests for the Inhabitants to take Oaths of Fidelity to the French King If not how comes it to be so here Is there not the same Right of War here as abroad Was it Perjury and Rebellion in the Subjects of the King of Spain in Portugal to take a new Oath of Allegeance to the Duke of Braganza when he was declared King And yet they were all sworn before not only to the King of Spain but to his Heirs And even the Duke himself had not only taken this Oath but the Spaniard particularly charged him with Perjury and great Ingratitude Yet the obligation to his Countries good was then thought to overrule that Personal Obligation to the King of Spain But if they were all guilty of Perjury and Rebellion how came the other Princes of Europe so frankly and readily to own his Government and the French as much and as early as any sending Assistance by Sea and Land to support it But in this Revolution of Portugal the best Title was the Success of War sounded on a remote Title to the Crown when the King of Spain had enjoyed the Possession of that Crown to the Third Generation But it may be said That the Practices of other People are to be no Rule ●o us and that we are not to be guided by bad Precedents abroad but by the Principles and Doctrins of our own Church This were to the purpose if our Church had any where declared Taking such an Oath to be Perjury But where is that done I confess I can find no such thing And if Mr Ashton or his Friends had made such a Discovery they ought to have told the World of it But if there be no such Declaration to be met with then we are left to the General Rules of Conscience and the Common Reason of Mankind according to which I see no ground for this heavy Charge of Perjury and Rebellion in our present Case But although Mr. Ashton be so abundantly satisfied in the Design he mentions that if he had ten thousand Lives he would sacrifice them all in so good and necessary a Work yet the Remainder of his Speech is spent in clearing his Innocency as to the Fact for which he was Condemned If it was so Meritorious an Act to Die in such a Cause a Man might have been tempted to be thought Guilty But before he could think fit to Die in Charity with all the World he saith several things with a Design to blacken the Iudges the Iury and the Government The Iudges he Accuses of a Severe Charge and the Hard Measure he received As to the latter it is a very odd kind of Hard Measure when he was so very little sensible of it then that he said He did not Complain of the Court fo 112. and more fully afterwards fo 115. I cannot but own I have had a fair Trial for my Life Where was the Hard Measure then Therefore this could not be Mr. Ashton's Sense unless he would contradict himself and those who would free him from it must take these Words to have been written by others who thought to serve another End by it and were not so near giving an Account for such Calumnies The severity of the Charge lay in applying the Statute 25 Edw. 3. to his Fact Which was a Design to carry into France a Treasonable Scheme and Project of an Invasion in order to the deposing the King and Queen This last the Judges declared had been always held to be High-Treason All the Question was then Whether such a Fact were an Overt-Act of such a Design and so it was left to the Jury whether Mr. Ashton intended to go over with such a Design or not If there be any Severity here it must be in the Law and that all those who suffer by a Law are apt to complain of He particularly chargeth that Iudge and that Iury-man who did he saith signally contrary to common Iustice expose themselves to destroy him This is a very hard Charge from a Dying man and ought to have great Evidence to reconcile it to common Charity but he offers none The Iury were to Act according to their Consciences and if they did so how could they expose themselves contrary to common Iustice to destroy him But what Evidence doth he give that they did not so Some have told him that he was the first man that was ever Condemned for High Treason upon bare suspicion or Presumption and that contrary to my Lord Cook and other Eminent Lawyers Opinions The main point as to the Iury was Whether they were satisfied in their Consciences that Mr. Ashton intended to go into France with such a Design And where the Fact lies in the Intention there can be no direct Evidence without seeing the Hea●t but it must be gathered from a Concurrence of Circumstances strong enough to determine an honest mans Judgment And such the Iury believed to be in his Case My Lord Cooks words are on the Case of Treason That the Compassing Intent or Imagination thô secret is to be tried by the Peers and to be discovered by Circumstances precedent concomitant and subsequent with all endeavour evermore for the safety of the King It is true he saith afterwards Fol. 1● That conjectural Presumptions or Inferences or strains of Wit are not sufficient but there must be good and manifest Proof but still this Proof must be such as the thing will bear for there can be no direct and plain proof of a secret Intention Either therefore no man can be justly Condemned for a secret Intention manifested by an Overt-Act or there must be such a Proof allowed as is sufficient to satisfie a mans Conscience although it come not up to plain and direct Evidence as it is opposed to the highest degree of Presumption But it may be said that the Presumption lies in judging