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
entice his Reader into a patient perusal of what follows and prejudice him against the Sheet he pretends to answer He is very frank in styling it a Libellous Pamphlet and the Author some rank bigotted Papist but to what purpose no Man can divine unless it were to expose him to the rage of the Mobile but his Name was never posted and so he is safe from that danger The Assertions are two that there was neither Charge nor Proof that the Indictment and Evidence were both insufficient I must confess that it would be a mighty Addition to the Liberty of the Subject to have the Law established and declared to be what the late Judge doth argue it is for then there would be a freedom for Malecontents to endeavour their own satisaction by Conspiracies and Consults and that with impunity But as the Law was and always hath been taken to be an English Subject hath very little colour for his pretence to such a privilege as that Doctrine gives The Indictment is that at such a place and time he did compass and imagine not only to deprive the King of his Government and Royal State but to kill and put him to death and to procure a miserable Slaughter amongst the King's Subjects and to subvert the Government of England and to raise a Rebellion against the King Then follows That to fulfill and perfect these Treasons and traiterous Imaginations he together with other Traiters did then and there with them traiterously consult conspire conclude and agree to raise a Rebellion and to seise and destroy the Guards of the King's Person contra c. Now whether these last acts be not a natural and genuine Evidence of the former let any rational Man judge But I will particularly prove that this Indictment was sufficient to warrant the Judgment which the Court gave and pronounced upon a Verdict that the accused was guilty of that Fact in the Indictment and then answer the Objections started against it First there 's a sufficient Treason alledged And secondly here 's a sufficient Overt-act both these I 'll agree are necessary and if either were wanting the Indictment was naught Now it must be agreed to me that the first is clear and plain for by the Law to compass or imagine the death of the King Queen or their eldest Son is High Treason It is true by the same Law some open act of which humane Justice can take a conusance is requisite to be proved the very words of the Statute do expresly require it and in truth it is no more than what must have been had no such words been used for thoughts are secret and can never be arraigned proved or censured any otherwise than as they are discovered by some Overt act so that that Clause requiring an appearance of the compassing and imagination by some Overt-act or open Deed is no more than would have been impliedly requisite had the Clause been omitted 'T is the imagination and compassing which is the Treason that alone is the Crimen lesae Majestatis which is prohibited and condemned the Overt-act is not the Treason that 's only a necessary Circumstance without which no Court can ever take conusance of the other And it is necessary to alledge some such Deed à necessitate rei without respect to the words of that Statute I insist the longer upon this because it is used as an Objection that the Clause of proveably attaint by c. is restrictive whereas it is not so for it is only to make that first specified Treason of Imagination and Compassing to be a thing intelligible and triable and farther to prove this it is considerable that this Requisite of the Overt-act is of use and necessity barely and only in the case of that which is first mentioned viz. Compassing for the other sorts of Treason are Acts themselves whereof notice may be had as levying War violating the Queen's Bed and the like and in an Indictment you need only alledge the Facts themselves as that there was a War levied there was a carnal knowledge had and the like And this farther appears from the very Form of Indictments used ever since that Statute for there never was an Indictment and if there were it could never be good barely averring an Overt-act without an express allegation of the Compassing Then the matter results solely into this Question Whether the Fact here laid be naturally and necessarily declaratory of the Parties Imagination to destroy the King for if so the Indictment is undoubtedly good and it can never be called a constructive Treason or a thing devised by the Judge's Iterpretation of the Statute for they adjudge no more Treason than what the Statute declares and that is an Imagination of the King's Death now whatsoever is significative of a Man's intention or imagination is a sufficient Overt-deed to demonstrate that that Man had such intention or imagination and whatsoever is expressive or significative of a Mans intending compassing or imagining of the King's Death is a sufficient Overt act to prove and make such a Man a Traitor within this Law Now that a Consult about and an Agreement and Conclusion actually to seise the King's Guards and raise a Rebellion are a natural and genuine Declaration that the Person who did so consult agree and conclude did compass and imagine the Death of the King is surely plain enough for a Rebellion if succesfull can determine in nothing else but the King's Death either Natural or Civil which is all one within this Law now he that designs and intends the necessary means naturally conducing to a particular end that Man may certainly be said to intend and design that end Causa Causae est Causa Causati If the Deed tend and conduce to the Executionof the Treason that 's a sufficient overt Act says Coke 3. Inst 12. and in the same Book fol. 6. he hath these Words That he who declareth by overt Act to depose the King is a sufficient overt Act to prove that he compasseth and imagineth the Death of the King and so it is to imprison the King to get him into his Power and to manifest the same by some overt Act this is also a sufficient overt Act for the intent aforesaid In 3 Inst p. 12. 't is held that a Preparation by some overt Act to depose the King or take the King by force and strong hand or to imprison him till he hath yielded to certain Demands that is a sufficient overt Act to prove the compassing and imagination of the King's Death for that this upon the matter is to make the King a Subject and to despoil him of his Regal Office and so he says it was resolved by all the Judges of England Hill 1. Jac. 1. in the Case of the Lord Cobham Lord Gray Watson and Clark Seminary Priests and so he tells us in the same place that it had been resolved by the Justices in the Case of the Earls E. and S.
THE MAGISTRACY AND GOVERNMENT OF ENGLAND VINDICATED In Three PARTS CONTAINING I. A Justification of the English Method of Proceedings against Criminals c. II. An Answer to several Replies c. III. Several Reasons for a General Act of INDEMPNITY Printed in the Year MDCXC 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. IN the present Age when the variety and multiplicity of new Prints is such that the money and time required for their purchase and perusal is more than an ordinary Gentleman can reasonably allow it may deservedly be thought a Nusance to the publick to have their numbers increased especially since the Complaint of the ingenious Authour of the Trimmers Character that for this very cause he could almost have wished himself unable to read but yet the Support of Magistracy and Government is a noble Theme so usefull to the publick and so generally agreeable to the humour of Mankind that the mere Subject will I presume be an Excuse for this Publication if any thing can be so 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 daubed with plentifull Title Pages like so many Histriomastrixes of Will Prinn'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 a Gentleman of the long Robe would appear in Print 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 Railery 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 But none imagined that Satyrs and Invectives upon past Proceedings should be writ by Lawyers who expect a farther Benefit from their Profession by the Grace and Favour of the Government which if they happen to acquire according to their Expectations I would only remember them that Mocking is catching in the Proverb There was once upon a time a certain Master of Arts who whilst at Cambridge did ridicule and expose the Clergy of the English Church by writing the pretended Causes of their Contempt but the Templers said that he whilst at London did give an occasion for a third Part to the same Tune or at least a new Edition of the Book with Additions by the Authour himself even of his own dull as proper for the like use In petty Corporations they who have most complained of others hardships have frequently outdone their Predecessors when once they have got their places A whining complaining Servant doth often prove a peevish imperious Master and I am sure in the Inns of Court the most noisie troublesome and mutinous Students and Barristers make the stiffest and most magisterial Benchers I make no application but I leave the Reader to doe what he pleaseth Better things are to be hoped of all concerned in publick Government 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 though made by Authours of Age Experience Figure and Learning I will not say Candour 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 the Censure or Applause of every Reader Besides 't is generaly presusumed that an Authour 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 Tryall 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 engage so frequently in such Consults as he unhappily did Some blamed the Jury most censured the Witnesses but very few arraigned either Counsel 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 it continued till the present Revolution Then the Memory of that unfortunate Gentleman was revived by the publication of a Defence of his Innocency the Name subscribed to the Title-page is so great that I should be affraid to proceed but that I am resolved not to be known and therefore if any thing falls from my Pen indecent or disrespectfull he must excuse it as a privilege claimed by Authours especially of Books that have no Name to them To begin at the end for what purpose was that Pamphlet printed It could not be for the good of the Nation as a means for consumption of Paper for as I have been told that 's a French Commodity It could not be for the Bookseller's profit only for a reason to be guessed