Selected quad for the lemma: england_n
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A60124
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A second vindication of the magistracy and government of England by way of an answer to the several replies &c.
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Shower, Bartholomew, Sir, 1658-1701.
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1689
(1689)
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Wing S3658; ESTC R37550
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16,902
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8
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answer to my Friend's Sheet the Reader may perhaps expect some new Matter not so much for confirmation as to give occasion for a further further defence In Sir Fr. Moor's Rep. fol 621. pl. 849 on the Tryals of the Earls of Essex and Southampton before the then High Steward the Justices did there resolve that when the Queen sent to the Earl of Essex the Keeper of her Great Seal and others with a Command to him to disperse the Persons armed which he had in his House and to come to her and he did refuse to do so and continued the Armour and armed Persons in his House that this was Treason and they did also resolve that when he went with a Troop of Captains and others from his House to the City of London and there prayed Aid of the Citizens to assist him in defence of his Life and to go with him to Court that he might get into the Queens presence that he might be sufficiently powerful to remove from her his Enemies who were there attendant that this was High Treason because it tended to a Force on the Queen c. I make no inference let the Reader do that 't is plain that an actual mental intention of hurt is not material in the one Case or the other As the Duke of Norfolk's Case is related by Cambden in his History of Q Eliz. 163. the Treason which the Duke confessed was a Plot to seize upon the Tower of 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 Hen. VII was the first King who had any other But let us reason a little Can it be 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 prohibit 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 actual 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 do 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 Sums 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 attendance 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 eux 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 Wars 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 anothers 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 some standing Force the Crown ever had and ever will have tho not always to such a degree as shall be burdensom 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
or deficient or both The 5 6 7 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 managing a Dialogue But all this is not to the purpose he is not come at it yet he 12. page savours of the same Kidney the 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 unsatified with it for its sparingness 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 inclinations of Englishmen and the Laws of the Land will never quadrate with a Common-wealth 2. His supposed Criminals do not depend on their Number but the Law which ought and will justifie them if it doth not please let it be changed by Parliament or if the Author thinks that a tedious way let us burn all our Law Books at once and then perhaps his Remarks and Reply will be thought to be Reason and himself the greatest and only Lawyer in the Realm but till then he must give others leave to know and to say that they know he is mistaken for Resolutions and Opinions pursuant and agreeable to the Opinions and Rules of former Ages I mean frequent and repeated Presidents approved by the Lawyers of the Age that used them I say these will be Law to the end of the World unless altered by new Statutes And now we are come to debate the Question all that is past is upon the Times and not the Point In page 18. is his Reasoning part which is no more than was said before in c. To redargue him I must repeat if therefore he will observe what is said by the Sheet pag 22. I will say no more on 't but submit to the Judgment of the Reader he says the inferences are Ridiculous I say they are Rational and Genuine the single issue is if his or my friends Arguments are the most Logical and Natural let the Reader judg Now for Authority Let us see if he urges any on his side or answers that on the other He admires pag. 24 at the assurance of the Sheet Author and others admire at his He says the Parliament had often adjudged it but none can shew any Judgment in the House of Lords or Vote of the Commons House to that purpose I have shewn the Sense of the present Parliament in the Point of Guards and his temporary Laws are already answered nor would any Mâ—n but he and one more pretend that they are Judgments in the Case Surely it will not be pretended that his Case of the Earl of Northumberlands in Hen. 4. time is any thing to the purpose Nor is it any Argument to say no King of England was ever killed for want of Guards Now for Cases page 26. He saith that in the Earl of Essex's Case there was an actual War Levyed and that as I said before destroys the Argument from the different sorts of Treason As to Cardinal Pool's Case he only says there was another Statute in force then but no Record or History says that he was indicted on any other then the 25. Edw. 3. As to Dr. Story 's Case he tells a long Tale out of Camden about the Fact but answers not one word to the Indictment whatsoever the Evidence was the Indictment was as the Sheet alledges and that is enough His answer to Coleman's Case is that that things hapning afterwards proved more but the Evidence was no more than what my Friend alledges As to Sir Henry Vane's Case his answer is his own hearsay of what was proved but the Judgment he never perused argued like a Lawyer As to Constable's Case and the rest he gives no answer but only that a repetition of a number of Cases makes a mutter and a noise and so it does when they Govern and Rule the matter in question and are not answered Owen's Case he says the Author presses it strangely and that is all He says the Cases of Burton Duke of Norfolk Awater Heber and Crohagn are not to the purpose let the Reader judg if they are not pertinent As to the Opinion of the Judges in the Lord Stafford's Case he doth not mention it but says the reviving that Case might have been spared and that is all a pretty answer as to Colledg's Case he talks of a proof of a self Defence but nothing to the Point it was urged for As to the Cases of Lord Cobham Gray and Rawleigh in 32. 33 34 55. pag. Setting aside his scandalous Invectives and Reflections upon those Times Ministers and Governments he no ways attempts to answer the Argument drawn from them viz. that the Charge was the same as in the Case in Dispute Now do I appeal to any Man of Sense and Reason that will Read and Think closely if the Repliant hath offered any one Argument more than the Lord Russel's Case Defence and Justification had alledged If he hath shewn any one Judgment where such Indictment was resolved naught If he hath given any answer to Dr. Story 's Collingborn's Sir William Ashton's Burdet's and Sir Henry Vane's Indictment in short if he hath answered any two of the Cases cited or if he hath done any thing but reflect on past and late times and if the Indictment remain not good both for matter and form notwithstanding all these pretended Replies Upon the whole matter I desire the Reader to peruse the Books cited and to judg if there be not presidents enough unanswered to justifie the Indictment in question and that the Recorder gave a good Judgment upon the Verdict that affirmed its truth quod fuit Probandum To conclude Since the Repliant is in love with Horace I would advise him to consider one hint of his Forum putealque Libonis Mandabo siccis Hor. FINIS