and then dissolved and that several Acts passed this is the plain Judgment of another Parliament 1. Because it says they were continued which shews they had a real being capable of being continued for a Confirmation of a void Grant has no effect and Confirmation shews a Grant only voidable so the continuance there shewed it at most but voidable and when the King came and confirm'd it all was good 2. The dissolving it then shews they had a being for as ex nihilo nihil fit so super nihil nil operatur as out of nothing nothing can be made so upon nothing nothing can operate Again the King Lords and Commons make the great Corporation or Body of the Kingdom and the Commons are legally taken for the Free-holders Inst 4. p. 2. Now the Lords and Commons having Proclaimed the King the defect of this great Corporation is cured and all the Essential parts of this great Body Politique united and made compleat as plainly as when the Mayor of a Corporation dies and another is chosen the Corporation is again perfect and to say that which perfects the great Body Politique should in the same instant destroy it I mean the Parliament is to make contradictions true simul semel the perfection and destruction of this great Body at one instant and by the same Act. Then if necessity of Affairs was a forcible Argument in 1660 a time of great peace not only in England but throughout Europe and almost in all the World certainly 't is of a greater force now when England is scarce delivered from Popery and Slavery when Ireland has a mighty Army of Papists and that Kingdom in hazard of final destruction if not speedily prevented and when France has destroyed most of the Protestants there and threatens the ruine of the Low-Countries from whence God has sent the wonderful Assistance of our Gracious and therefore most Glorious King and England cannot promise safety from that Foreign Power when forty days delay which is the least can be for a new Parliament and considering we can never hope to have one more freely chosen because first it was so free from Court-influence or likelihood of all design that the Letters of Summons issued by him whom the great God in infinite Mercy raised to save us to the hazard of his Life and this done to protect the Protestant Religion and at a time when the people were all concerned for one Common interest of Religion and Liberty it would be vain when we have the best King and Queen the World affords a full house of Lords the most solemnly chosen Commons that ever were in the remembrance of any Man Living to spend Money and lose time I had almost said to despise Providence and take great pains to destroy our selves If any object Acts of Parliament mentioning Writs and Summons c. I answer the Prededent in 1660 is after all those Acts. In private cases as much as has been done in point of necessity a Bishop Provincial dies and sede vacant a Clerk is presented to a Benefice the Presentation to the Dean and Chapter is good in this case of Necessity and if in a Vacancy by the Death of a Bishop a Presentation shall be good to the Dean and Chapter rather than a prejudice should happen by the Church lying void Surely a fortiori Vacancy of the Throne may be supplied without the formality of a Writ and the great Convention turn'd to a Real Parliament A Summons in all points is of the same real force as a Writ for a Summons and a Writ differ no more than in name the thing is the same in all Substantial parts the Writ is Recorded in Chancery so are His Highnesses Letters the proper Officer Endorses the Return so he does here for the Coroner in defect of the Sheriff is the proper Officer the People Choose by Virtue of the Letters c. quae re concordant parum differunt they agree in Reality and then what difference is there between the one and the other Object A Writ must be in Actions at Common Law else all Pleading after will not make it good but Judgment given may be Reversed by a Writ of Error Answ The case differs first because Actions between party and party are Adversary Actions but Summons to Parliament are not so but are Mediums only to have â—n Election 2. In Actions at Law the Defendant may plead to the Writ but there is no plea to a Writ for electing Members to serve in Parliament and for this I have Littleton's Argument there never was such a Plea therefore none lies Object That they have not taken the Test Answ They may take the Test yet and then all which they do will be good for the Test being the distinguishing Mark of a Protestant from a Papist when that is taken the end of the Law is performed Object That the Oaths of Allegiance and Supremacy ought to be taken and that the new ones are not legal Answ The Convention being the Supream Power have abolish'd the old Oaths and have made new ones and as to the making new Oaths the like was done in Alfreds time when they chose him King vide Mirror of Justice Chap. 1. for the Heptarchy being turn'd to a Monarchy the precedent Oaths of the seven Kings could not be the same King Alfred swore Many Precedents may be cited where Laws have been made in Parliament without the King 's Writ to summon them which for brevity's sake I forbear to mention For a farewel the Objections quarrel at our Happiness fight against our Safety and aim at that which may indanger Destruction The Present Convention a Parliament I. THat the formality of the Kings Writ of Summons is not so essential to an English Parliament but that the Peers of the Realm and the Commons by their Representatives duly Elected may legally act as the great Council and representative Body of the Nation though not summoned by the King especially when the circumstances of the time are such that such Summons cannot be had will I hope appear by these following Observations First The Saxon Government was transplanted hither out of Germany where the meeting of the Saxons in such Assemblies was at certain fixed times viz. at the New and Full Moon But after their Transmigration hither Religion changing other things changed with it and the times for their publick Assemblies in conformity to the great Solemnities celebrated by Christians came to be changed to the Feasts of Easter Pentecost and the Nativity The lower we come down in Story the seldomer we find these General Assemblies to have been held and sometimes even very anciently when upon extraordinary occasions they met out of course a Precept an Edict or Sanction is mentioned to have Issued from the King But the Times and the very place of their ordinary Meeting having been certain and determined in the very first and eldest times that we meet with any mention of
unlawful manner among others Henry Carr George Broome Edw. Berry Benj. Harris Francis Smith Sen. Francis Smith Jun. and Jane Curtis Citizens of London Which Proceedings of the said Sir Will. Scroggs are a high Breach of the Liberty of the Subject destructive to the Fundamental Laws of this Realm contrary to the Petition of Right and other Statutes and do manifestly tend to the introducing of Arbitrary Power VI. That he the said Sir Will. Scroggs in further Oppression of his Majesty's Liege People hath since his being made Chief Justice of the said Court of Kings Bench in an Arbitrary manner granted divers general Warrants for Attaching the Persons and Seizing the Goods of his Majesty's Subjects not named or described particularly in the said Warrants By means whereof many of his Majesty's Subjects have been vexed their Houses entered into and they themselves grievously oppressed contrary to Law VII Whereas there hath been a Horrid and Damnable Plot contrived and carried on by the Papists for the Murthering the King the Subversion of the Laws and Government of this Kingdom and for the Destruction of the Protestant Religion in the same All which the said Sir William Scroggs well knew having himself not only Tried but given Judgment against several of the Offenders nevertheless the said Sir Will. Scroggs did at divers times and places as well sitting in Court as otherwise openly Defame and Scandalize several of the Witnesses who had proved the said Treasons against divers of the Conspirators and had given Evidence against divers other Persons who were then untried and did endeavour to disparage their Evidence and take off their Credit whereby as much as in him lay he did traiterously and wickedly suppress and stifle the Discovery of the said Popish Plot and Encourage the Conspirators to proceed in the same to the great and apparent Danger of his Majesty's Sacred Life and of the well-established Government and Religion of this Realm of England VIII Whereas the said Sir William Scroggs being advanced to be Chief Justice of the Court of King's Bench ought by a sober grave and vertuous Conversation to have given a good Example to the King's Liege People and to demean himself answerable to the Dignity of so Eminent a Station yet he the said Sir William Scroggs on the contrary by his frequent and notorious Excesses and Debaucheries and his Prophane and Atheistical Discourses doth daily affront Almighty God dishonour his Majesty give countenance and incouragement to all manner of Vice and Wickedness and bring the highest scandal on the publick Justice of the Kingdom All which Words Opinions and Actions of the said Sir William Scroggs were by him spoken and done traiterously wickedly falsly and maliciously to alienate the Hearts of the King's Subjects from his Majesty and to set a Division between him and them and to subvert the Fundamental Laws and the Establisht Religion and Government of this Kingdom and to Introduce Popery and an Arbitrary and Tyrannical Government and contrary to his own knowledge and the known Laws of the Realm of England and thereby he the said Sir William Scroggs hath not only broken his own Oath but also as far as in him lay hath broken the King Oath to his People whereof he the said Sir William Scroggs representing his Majesty in so high an Office of Justice had the Custody for which the said Commons do Impeach him the said Sir William Scroggs of the High-Treason against our Sovereign Lord the King and his Crown and Dignity and other the High Crimes and Misdemeanours aforesaid And the said Commons by Protestation saving to themselves the Liberty of Exhibiting at any time hereafter any other Accusation or Impeachment against the said Sir William Scroggs and also of Replying to the Answer that he shall make thereunto and of Offering proofs of the Premises or of any other Impeachments or Accusations that shall be by them exhibited against him as the Case shall according to the Course of Parliament require Do pray that the said Sir Will. Scroggs Chief Justice of the Court of King's Bench may be put to Answer to all and every the Premises and may be committed to safe Custody and that such Proceedings Examinations Tryals and Judgments may be upon him had and used as is agreeable to Law and Justice and the Course of Parliaments Resolved That the said Sir William Scroggs be Impeached upon the said Articles The Humble Petition of the Right Honourable the Lord Mayor Aldermen and Commons of the City of London in Common-Council Assembled on the Thirteenth of January 1680. To the King 's most Excellent Majesty for the Sitting of this present Parliament Prorogu'd to the Twentieth Instant Together with the Resolutions Orders and Debates of the said Court Commune Concil ' tent ' in Camera Guildhall Civitatis London Die Jovis decimo tertio die Januarii Anno Domini 1680. Annoque Regni Domini nostri Carol ' Secundi nunc Regis Angl ' c. Tricesimo secundo coram Patient ' Ward Mil ' Major ' Civitatis London Thoma Aleyn Mil ' Bar ' Johanne Frederick Mil ' Johanne Lawrence Mil ' Georgio Waterman Mil ' Josepho Sheldon Mil ' Jacobo Edwards Mil ' Roberto Clayton Mil ' Aldermannis Georgio Treby Ar ' Recordatore dictae Civit ' Johanne Moore Mil ' Willielmo Pritchard Mil ' Henrico Tulse Mil ' Jacobo Smith Mil ' Roberto Jeffery Mil Johanne Shorter Mil ' Thoma Gould Mil ' Willielmo Rawsterne Mil ' Thoma Beckford Mil ' Johanne Chapman Mil ' Simone Lewis Mil ' Thoma Pilkington Ar ' Ald'ris Henrico Cornish Ar ' Ald'ro ac unum vicecom ' dictae Civitatis necnon Major ' parte Comminarior ' dictae Civitatis in Communi Concil ' tunc ibidem Assemblat ' THis Day the Members that serve for this City in Parliament having communicated unto this Court a Vote or Resolution of the Honourable House of Commons whereby that House was pleased to give Thanks unto this City for their manifest Loyalty to the King their Care Charge and Vigilance for the Preservation of his Majesty's Person and of the Protestant Religion This Court is greatly sensible of the Honour thereby given to this City and do declare That it is the fixt and uniform Resolution of this City to persevere in what they have done and to contribute their utmost Assistance for the Defence of the Protestant Religion His Majesty's Person and the Government Established It was now unanimously Agreed and Ordered by this Court That the Thanks of this Court be given to the Members that serve for this City in Parliament for their good Service done this City and their Faithfulness in discharging their Duties in that Honourable and great Assembly Upon a Petition now Presented by divers Citizens and Inhabitants of this City representing their Fears from the Designs of the Papists and their Adherents and praying this Court to acquaint his Majesty therewith and to desire That the Parliament may sit from the Day
lie under for want thereof 5. That you will use your utmost Endeavours to put a Brand upon those abominable Monsters which were the Pensioners in the late Long Parliament that thereby the Generations to come may be deterr'd from Attempting the like unheard of Villainy 6. That you will vigorously and carefully represent to the rest of your Fellow Members the present Condition of the Royal Navy as also of the Stores Castles and Forts which are under God the Bulwarks of England and that such effectual Ways and Means may be found out and prosecuted for the better Securing and Improving the Navy as also That none may be employed therein but such Persons who are of known Integrity and Loyalty both to the King and Nation and that all Debauch'd and Unskilful Persons now employ'd may be removed and Men fearing God loving Truth and hating Covetousness may be put into their Places that so our present Fears may be abated and thereby the dreadful growing Power of France may be timely check'd Gentlemen In the pursuance of these good Ends and such other as you shall think conducing to the Happiness of the King and Kingdom we shall stand by you with our Lives and Fortunes There were many more Addresses of like Nature and Purport made from divers other Parts of the Realm true Copies of which are not yet come to our hands But indeed the Re-election of so many of the former Members is it self a general Address and loudly speaks it The Voice of the People which we trust will be ratified by the Voice of Heaven No Popish Successor no French Slavery THE SPEECH Of the Honourable Henry Booth Esq Spoken in Chester March 2. 1680 1. at his being Elected one of the Knights of the Shire for that County to serve in the Parliament Summon'd to meet at Oxford the Twenty first of the said Month. Gentlemen and Countrymen I Must acknowledge that God hath been good unto me from my Cradle to this moment and of all his Providences to me there is none for which I have greater reason to bless his Holy Name than that he hath enabled me to govern my self and actions so as to gain your good opinion and kindness and I cannot but own I have your favour accompanied with all the obliging Circumstances imaginable for the first time that you were pleased to command my Service was in the Eighteen Years Parliament upon the death of Sir Foulk Lucy who had served you faithfully in that Parliament and though I was raw and unacquainted with those affairs and without any Tryal of my Integrity you ventured all you had in my hands at a time when England was in danger to be lost for want of a Vote For that Parliament chiefly consisted of such as sold their Country for private advantage and would have sold their King too if they could have made a better market I served you some time in that parliament at last it was Dissolved and a new one called and then as if you had approved of what I did you thought fit to imploy me again in that Service though you laid him aside who had been my Collegue that Parliament continued not long but was Dissolved and a new one called and then again a third time you thought me fit to represent you in Parliament though as you had done before you set him aside whom you had sent along with me and Chose a new one in his room but why you did me so Singular an honour as to continue me in your Service two Parliaments together and did not the like to the other Gentlemen it is not for me to give the reasons of it those are best known to your selves This is now the fourth time that I have waited on you on the like occasion and it is not a lessening of your former kindness that you have not changed my former Partner but rather a Confirmation of it because that the first time you have continued him is when he appears to be of my opinion and that which still adds weight to your kindness is that notwithstanding all this stir this bustle this unnecessary Charge and expence all the Stories by which I have been traduced you have not been prevailed upon to withdraw or diminish your favour Gentlemen I humbly beg your Patience to speak a few words in answer to what they say of me lest by Silence I may seem to cry Amen to their reports and Stories the first thing they reported was that I would not stand again but would decline your Service but withall they give no reason for it only it is so because they said it but what reason there is to contradict them now who said so the last time and how true it was you well remember So that this being the Second time that they have told you the self same falshoods I hope for the future that others will believe them as little as you have done It was reported that I was kill'd without giving any reasons or circumstances and that to this also they expected an implicit belief I wish they are not for an implicit faith in all things It was truly an excellent Artifice to threap you out of your Votes yet had I been kill'd had it been for your Service I should have thought my self well bestowed and rather meet than avoid the occasion of my Death They tell you also that I 〈◊〉 very obnoxious to the King but they do not tell you that I am restored to â—ny former Station of my Commission of the Peace without seeking or desiring it it cannot be imagined that his Majesty would be so Gracious to a man of whom he hath an ill opinion and it is a reflection to his Majesty to think he will do a thing of that Nature out of any regard whatsoever but when a thing carries its weight and reasons with it so that by this you may discern how all their reports are grounded being rather the effects of their desires than that the thing is truly so It seems the Gentlemen are much displeased that this County have frequently commanded those of my Family to serve them in Parliament they call it an entailing upon the Family but they are not pleased to vouchsafe the reasons why the Son may not be imployed as well as the Father in case he proves as fit for it but the truth is they would govern you and are angry that you will be your own chusers yet whether in this they design to serve you or their own ends I submit to your Judgment but as to my own particular they think the County highly that I have served you in several Parliaments Alas Gentlemen I know I am much inferiour in Parts and Learning to a great many but in saithfulness to your interest I will submit to no man but if you would observe it they would impose that upon you which they would not have done to themselves If they have a Servant who hath served them faithfully they
measure hard to be prosecute with such a deadly Dilemma of either Treason or Perjury for you see in their account if the Earl swear with an Explanation his Life is knockt down by Treason and if without an Explanation his Honour which is dearer to him than his Life is run thorow with Perjury But to compleat a fancy beyond Bedlam The Advocate urges and several Assizers agree at the same time to condemn the Earl as perjured for not explaining and for Treason for explaining Quis talia fando In the next place the Earl's Papers contain some thoughts and endeavours to remove certain mistakes which he had good ground to believe did so much prompt and precipitate the Judges to pronounce so important a Sentence against him upon so weak and sandy foundations and which were indeed either meer fancies or so frivolous that though they were true they could never excuse them before men far less exoner them before God Almighty Where laying down a true ground that nunquam concluditur in criminalibus c. and withal representing how his Advocates were questioned in so extraordinary a manner for signing their Opinion which you have above Num. 32. Where you may see how fair just and safe it was that now they dare no more plead for him He says He cannot be denied to plead for himself as he best may The first ground of mistake then that he was to represent was that he knew it had been told them it was very much His Majesty's Interest and necessary for the support of the Government to devest and render him uncapable of publick Trust Which words had been oft said and said to himself to persuade him that there was no further rigour intended But as he is very confident our gracious King will never upon any such pretence allow any innocent Person to be condemned far less to be destroyed in a picque or frolick where his Majesty can reap no advantage So he is persuaded His Majesty hath no design to render him miserable far less to cut him off without a cause And therefore concludes it is only his misfortune in his present circumstances never having access to nor being heard by his Majesty nor the Case perfectly understood by him that hath made His Majesty give so much as way to a Process to be raised or led far less to a Sentence to be pronounced against him But in effect as this Affair hath been managed all alongs and so many engaged in so extraordinary ways to act and write against him first and last nothing should appear strange or surprising However as their own Consciences and God Almighty knows how they have been brought to meddle and act as they have done So one day or other the World may likewise know it A second ground of mistake which he says may impose upon them is a confidence of His Majesty's Pardon intended for him a pretence only given out to render the Condemnation more easie yet indeed least wished for by those who were readiest to spread the report and whereof the Earl had indeed more confidence than any that talked of it if His Majesty were left to himself and had the Case fully and truly represented to him but as His Majesty needs not this false occasion to make his clemency appear which is so well known over all his Dominions by far more true and genuine discoveries so it were the heighth of injustice in their Lordships of the Justiciary to proceed to sentence against him upon such Apprehensions in case in their hearts they believe him innocent as he certainly knows they do besides they cannot but see their acting upon so unjust a ground will not only stain their names and memories but instead of alleviating rather aggravate their guilt both in their own Consciences when they reflect on it in cold blood and in the sight of God Almighty And if His Majesty on importunity and a third Application should give way to execution as he hath already given way first to the Process and then to the Sentence or if as some may design Execution shall be adventured on without the formality of a new Order as the Process was at first commenced before His Majesty's return and so is not impossible would not their Lordships be as guilty of his blood as if they had cut his Throat And in effect these are the grounds and Excuses pretended at this day in private by such of his Judges for their procedour who are not yet come to have the confidence at all Occasions to own directly what they have done A third reason why his Exculpation was not allowed he says might be because the sustaing of it might have brought other Explanations above-board and discover both these who had made and those who had accepted them and perhaps not have left their own Bench untouched But as this Artifice will not keep up the Secret And as this way of shifting is neither just nor equal so to all interested it is the meanest of Security For his Majesty's Advocate hath already told us that His Majesty's Officers can never wrong him And although the Lords and He shauld conceal what others had done it might make themselves more guilty but not prove any Exoneration to those concerned without a down-right Remission Whereas it is manifest That if their Lordships had admitted the Earl's Exculpation upon the sure and evident grounds therein contained it would not only have answered the Justice of his Case but vindicated all concerned And lastly he was to tell them that possibly they might be inclined to go on because they were already so far engaged as they knew not how to retreat with their honour but as there can be no true honour where there is manifest wrong and injustice so in the frail and fallible condition of humane things there can be no delusion more dangerous and pernicious than this that unum scelus est alio scelere tegendum And here the Earl thought to lay before them very plainly and pertinently some remarkable and excellent Rules whereby L. Chief Justice Hales a renowned Judge of our Neighbour-Nation tells he did govern himself in all Criminal Cases which adds the Earl if they took a due impression would certainly give them peace and joy when all the vain Considerations that now amuse will avail them nothing The Rules are these I. Not to be rigid in matters purely conscientious where all the harm is diversity of Judgment II. That Popular or Court-applause or distaste have no influence on any thing is to be done in point of distribution of Justice III. In a criminal Case if it be a measuring cast then to incline to mercy and acquittal IV. In criminal things that consist only of words where no harm ensues moderation is then no injustice V. To abhor all private Solicitations of what kind soever and by whomsoever VI. In matters depending not to be solicitous what men will say or think so long as the rule of
another making a Speech that no Man understood a third all the time of the reading repeating Lord have mercy upon me miserable sinner Nay even an Advocate after being debarred a few days because albeit no Clerk yet he would not take it without the benefit of his Clergy viz. the Councils Explanation was yet thereafter admitted without the Warrant of the Councils Act but all this in the Case of so many other was right and good Further the Council expresly declare the Earl to be Guilty before he had ever said one word in his own defence Thereafter some of them become his Assizers and others of them witness against him and after all they do of new concern themselves by a Second Letter to His Majesty wherein they assert That after full debate and clear probation he was found guilty of Treason c. to have a sentence past against him and that of so high a nature and so dreadful a consequence as suffers no person to be unconcerned far less their Lordships his Judges who upon grounds equally just and which is more already predetermined by themselves may soon meet with the same measure not only as Concealers of Treason but upon the least pretended disobedience or non-compliance with any Act of Parliament and after all must infallably render an account to God Almighty He bids them therefore lay their hands to their bearts and whatever they shall judge he is assured that God knows and he hopes all unblassed men in the World will or may know he is neither guilty of Treason nor any of the Crimes libelled He says he is glad how many out-do him in asserting the true Protestant Religion and their Loyalty to His Majesty only he hadds If he could justify himself to God as he can to His Majesty he is sure he might account himself the happiest man alive But yet seeing he hath a better hope in the mercy of God through Jesus Christ he thereupon rests whether he finds Justice here on Earth or not He says he will add nothing to move them either to tenderness or pity he knows that not to be the place and pretends to neither from them He pleads his Innocence and craves Justice leaving it to their Lordships to consider not so much his particular Case as what a Preparative it may be made and what may be its Consequences And if all he hath said do neither convince nor persuade them to alter their judgment yet he desires them to consider whether the Case do not at least deserve to be more fully represented and left to His Majecty's wisdom and justice seeing that if once the matter pass upon record for Treason it is undoubted that hundreds of the best and who think themselves most innocent may by the same methods fall under the like Condemnation whenever the King's Advocate shall be thereto prompted And thus you have a part of what the Earl intended to have said before pronouncing Sentence if he had not made his Escape before the day Yet some things I perceive by his Notes are still in his own breast as only proper to be said to His Majesty I find several Quotations out of the Advocate 's printed Books that it seems he was to make some use of but seeing it would have been too great an interruption to have applied them to the places designed I have subjoined them together leaving them to the Advocate 's own and all mens consideration It was by some remarked That when the Lords of Justitiary after the ending of the first days debate resolved that same night to give judgment upon it they sent for the Lord Nairn one of their number an old and infirm man who being also a Lord of the Session is so decayed through age that he hath not for a considerable time been allowed to take his turn in the Outer-house as they call it where they judge lesser Causes alone But notwithstanding both his age and infirmity and that he was gone to bed he was raised and brought to the Court to consider a Debate a great deal whereof he had not heard in full Court and withal as is informed while the Clerk was reading some of it fell of new asleep It was also remarked that the Lords of Justitiary being in all five viz. the Lord Nairn above-mentioned with the Lords Collintoun Newtoun Hirkhouse and Forret the Libel was found relevant only by the odds of three to two viz. the Lord Nairn aforesaid the Lord Newtoun since made President of the Session and the Lord Forret both well enough known against the Lord Collintoun a very ingenious Gentleman and a true old Cavalier and the Lord Hirkhouse a learned and upright Judge As for the Lord Justice General who was also present and presided his vote according to the constitution of the Court was not asked But to return to my Narrative the Earl as I have already told you did not think fit for reasons that you shall hear to stay till His Majesty's return came to the Council's last Letter but taking his opportunity made his escape out of the Castle of Edinburgh upon Tuesday the Twentieth of December about eight at night and in a day or two after came His Majesty's Answer here subjoined The King's Answer to the Council's Letter December 18. 1681. C. R. MOST dearly c. having this day received your Letter of the 14th instant giving an account that our Advocate having been ordered by you to insist in that Process raised at our instance against the Earl of Argyle he was after full debate and clear probation found guilty of Treason and Leasing-making betwixt us our Parliament and our People and the reproaching our Laws and Acts of Parliament We have now thought fit notwithstanding of what was ordered by us in our Letter to you of the 15th of November last hereby to authorize you to grant a Warrand to our Justice General and the remanent Judges of our Justice Court for proceeding to pronounce a Sentence upon the Verdict of the Jury against the said Earl nevertheless it is our express pleasure and we do hereby require you to take care that all execution of the Sentence be stopped until we shall think fit to declare our further pleasure in this Affair For doing whereof c. Which Answer being read in Council on the Thursday and the Court of Justiciary according to its last Adjournment as shall be told you being to meet upon the Friday after a little hesitation in Council whether the Court of Justiciary could proceed to the Sentence of Forfaulture against the Earl he being absent it was resolved in the affirmative And what were the grounds urged either of hesitation or resolution I cannot precisely say there being nothing on record that I can learn But that you may have a full and satisfying account I shall briefly tell you what was ordinarily discoursed a part whereof I also find in a Petition given in by the Countess of Argyle to the Lords
of Justitiary before pronouncing sentence but without any answer or effect It was then commonly said that by the old Law and Custom the Court of Justitiary could no more in the case of Treason than of any other Crime proceed further against a Person not compearing and absent than to declare him Out-Law and Fugitive And that albeit it be singular in the case of Treason that the Trial may go on even to a final Sentence though the Party be absent yet such Trials were only proper to and always reserved for Parliaments And that so it had been constantly observed until after the Rebellion in the Year 1666 But there being several Persons notourly engaged in that Rebellion who had escaped and thereby withdrawn themselves from Justice it was thought that the want of a Parliament for the time ought not to afford them any immunity and therefore it was resolved by the Council with advice of the Lords of Session that the Court of Justitiary should summon and proceed to trial and sentence against these Absents whether they compeared or not and so it was done Only because the thing was new and indeed an innovation of the old Custom to make all sure in the first Parliament held thereafter in the Year 1669. it was thought fit to confirm these Proceedings of the Justitiary in that point and also to make a perpetual Statute that in case of open Rebellion and Rising in Arms against the King and Government the Treason in all time coming might by an Order from His Majesty's Council be tried and the Actors proceeded against by the Lords of Justitiary even to final sentence whether the Traytors compeared or not This being then the present Law and custom it is apparent in the first place that the Earl's Case not being that of an open Rebellion and Rising in Arms is not at all comprehended in the Act of Parliament So that it is without question that if in the beginning he had not entered himself Prisoner but absented himself the Lords of Justiciary could not have gone further than upon a citation to have declared him Fugitive But others said that the Earl having both entered himself Prisoner and compeared and after debate having been found guilty before he made his escape the case was much altered And whether the Court could notwithstanding of the Earl's intervening escape yet go on to sentence was still debatable for it was alledged for the affirmative that seeing the Earl had twice compeared and that after debate the Court had given judgment and the Assize returned their Verdict so that had nothing remained but the pronouncing of Sentence it was absurd to think that it should be in the power of the Party thus accused and found guilty by his escape to frustrate Justice and withdraw himself from the punishment he deserved But on the other hand it was pleaded for the Earl That first It was a fundamental Rule That until once the Cause were concluded no Sentence could be pronounced Next that it was a sure Maxim in Law that in Criminal Actions there neither is or can be any other conclusion of the cause than the Parties presence and silence So that after all that had past the Earl had still freedom to add what he thought fit in his own defence before pronouncing sentence and therefore the Lords of Justiciary could no more proceed to sentence against him being escaped than if he had been absent from the beginning the Cause being in both cases equally not concluded and the principle of Law uniformly the same viz. That in Criminals except in cases excepted no final sentence can be given in absence For as the Law in case of absence from the beginning doth hold that just temper as neither to suffer the Contumacious to go altogether unpunished nor on the other hand finally to condemn a party unheard And therefore doth only declare him Fugitive and there stops So in the case of an Escape before Sentence where it cannot be said the Party was fully heard and the Cause concluded the Law doth not distinguish nor can the parity of Reason be refused Admitting then that the Cause was so far advanced against the Earl that he was found guilty Yet 1. This is but a declaring of what the Law doth as plainly presume against the Party absent from the beginning and consequently of it self can operate no further 2dly The finding of a Party guilty is no conclusion of the Cause And 3dly As it was never seen nor heard that a Party was condemned in absence except in excepted Cases whereof the Earl's is none so he having escaped and the Cause remaining thereby unconcluded the general rule did still hold and no sentence could be given against him It was also remembred that the Dyets and days of the Justice Court are peremptour and that in that case even in Civil far more in Criminal Courts and Causes a Citation to hear Sentence is constantly required which induced some to think that at least the Earl should have been lawfully cited to hear Sentence before it could be pronounced But it is like this course as confessing a difficulty and occasioning too long a delay was therefore not made use of However upon the whole it was the general Opinion That seeing the denouncing the Earl Fugitive would have wrought much more in Law than all that was commonly said at first to be designed against him And that his Case did appear every way so favourable that impartial men still wondered how it came to be at all questioned It had been better to have sisted the Process with his Escape and taken the ordinary course of Law without making any more stretches But as I have told you when the Friday came the Lords of Justiciary without any respect or answer given to the Petition above-mentioned given in by the Countess of Argyle to the Court for a stop pronounced Sentence first in the Court and then caused publish the same with all solemnity at the Mercat-Cross at Edinburgh FOrasmuch as it is found by an Assize That Archibald Earl of Argyle is guilty and culpable of the Crimes of Treason Leasing-making and Leasing-telling for which he was detained within the Castle of Edinburgh out of which he has now since the said Verdict made his Escape Therefore the Lords Commissioners of Justiciary decern and adjudge the said Archibald Earl of Argyle to be execute to the death demained as a Traytor and to underly the pains of Treason and other punishments appointed by the Laws of this Kingdom when he shall be apprehended at such a time and place and in such manner as his Majesty in his Royal pleasure shall think fit to declare and appoint And his Name Memory and Honours to be extinct And his Arms to be riven forth and delete out of the Books of Arms swa that his Posterity may never have place nor be able hereafter to bruick or joyse any Honour Offices Titles or Dignities within this Realm in
time coming and to have forfaulted amitted and tint all and sundry his Lands Tenements annual-rents Offices Titles Dignities Tacks Steedings Rowmes Possessions Goods and Geere whatsumever pertaining to him to our Sovereign Lord to remain perpetually with his Highness in property Which was pronounced for Doom 23 Dec. 1681. After the reading and publshing whereof The Earl's Coat of Arms by order of the Court was also torn and ranversed both in the Court and at the Mercat-Cross Albeit some thought that this was rather a part of the Execution which His Majesty's Letter discharges than a necessary Solemnity in the Publication and the Advocate himself says p. 61. of his printed Criminals That it should only be practised in the Crime of Perduellion but not in other Treasons The Reasons and Motives of the Earl's Escape with the Conclusion of the whole Narrative THE Earl's Escape was at first a great surprise both to his Friends and Unfriends for as it is known that his Process in the beginning did appear to the less concerned more like a piece of pageantry than any reality and even by the more concerned was accounted but a politick Design to take away his Offices and lessen his Power and Interest So neither did any of his Friends fear any greater hazard nor did most of his Unfriends imagine them to be more apprehensive Whereby it fell out that upon report of his Escape many and some of his Well-wishers thought he had too lightly abandoned a fair Estate and the probable expectation he might have had of His Majesty's favour As also some that were judged his greatest Adversaries did appear very angry as if the Earl had taken that course on purpose to load them with the odium of a design against his life And truly I am apt to think it was not only hard and uneasie for others to believe that a Person of the Earl's quality and character should upon so slender a pretence be destroyed both as to life and fortune but also that he himself was slow enough to receive the impressions necessary to ripen his Resolution and that if a few Accidents as he says himself happening a little before his escape had not as it were opened his eyes and brought back and presented to him several things past in a new light and so made all to operate to his final determination he had stayed it out to the last Which that you may the better understand you may here consider the several Particulars that together with what he himself hath since told some Friends apparently occurred to him in these his second thoughts in their following order And first you have heard in the beginning of this Narrative what was the first occasion of the Earl his declining in his Highness's favour You may also remember that his Majesty's Advocate takes notice that he debated against the Act enjoining the Test in the Parliament And as I have told you he was indeed the Person that spoke against excepting the King's Brothers and Sons from the Oath then intended for securing the Protestant Religion and the Subjects Loyalty not thinking it fit to complement with a Privilege where all possible caution appears rather to be necessary And this a Reverend Bishop told the Earl afterwards had downright fired the kiln What thereafter happened in Parliament and how the Earl was always ready to have laid all his Offices at his Majesty's feet And how he was content in Council to be held a Refuser of the Test and thereby incur an intire deprivation of all publick Trust is above fully declared and only here remembred to shew what Reason the Earl had from his first coming to Edinburgh in the end of October to think that something else was intended against him than the simple devesting him of his Employments and Jurisdictions And yet such was his assurance of his Innocence that when ordered by the Council to enter his Person in Prison under the pain of Treason he entered freely in an Hackney Coach without either hesitation or noise as you have heard 2dly The same day of the Earl's Commitment the Council met and wrote as I have told you their Letter to his Majesty above set down Num. 22. Wherein they expresly charge him with Reproaching and depraving but yet neither with Perjury nor Treason and a few days after the Earl wrote a Letter to his Highness wherein he did endeavour to remove his Offence in terms that it was said at first had given satisfaction But yet the only return the Earl had was a Criminal Summons containing an Indictment and that before any Answer was come from His Majesty And then so soon as his Majesty's Answer came there was a new Summons sent him with a new Indictment adding the Crimes of Treason and Perjury to those of Reproaching and Depraving which were in the first Libel as you have heard above whereby you may perceive how early the Design against the Earl began to grow and how easily it took encrease from the least encouragement 3dly When the Earl petitioned the Council for Advocates to plead for him Albeit he petitioned twice and upon clear Acts of Parliament yet he had no better Answer than what you have above set down And when the Earl's Petition naming Sir George Lockhart as his ordinary Advocate was read in Council his Highness openly threatned that in case Sir George should undertake for the Earl he should never more plead for the King nor him But the Earl taking Instruments upon Sir George his refusal and giving out that he would not answer a word at the Bar seeing the benefit of Lawyers according to Law was denied him Sir George and other Lawyers were allowed to assist him but still with a grudge Likewise afterwards they were questioned and convened before the Council for having at the Earl's desire signed their positive Opinion of the Case At which time it was also said in Council by his Highness That their fault was greater than the Earl's However we see that as he was the occasion of the anger so he hath only found the smart of it 4thly The whole Process with the Judgment of the Lords of Justitiary and Verdict of the Assize whereby the Earl was found guilty as you have seen notwithstanding of what hath so plainly appeared and was so strongly pleaded in his behalf of Leasing-making Depraving and Treason Is of it self a clear demonstration that either the highest punishment was intended for so high a guilt or that at least it was no small humiliation that some designed for him It being equally against reason and prudence setting aside the Interest of Justice to strain things of this nature beyond the ends truly purposed and which in effect are only the more to be suspected the more they are concealed 5thly The Process being carried on to the Verdict of the Assize and the Council being tied up by His Majesty's Letter before pronouncing Sentence to send a particular account to His Majesty of what
the Lives of all that are brought into Judgment do ultimately depend from their Verdict there lies no Appeal by finding Guilty or not Guilty they do complicately resolve both Law and Fact As it hath been the Law so it hath always been the Custom and Practice of these Juries upon all general Issues pleaded in Cases Civil as well as Criminal to judge both of the Law and Fact See the Reports of the Ld Chief Justice Vaughan p. 150 151. So it is said in the Report of the Lord Chief Justice Vaughan in Bushel's Case That these Juries determine the Law in all matters where Issue is joined and tried in the Principal Case whether the Issue be about Trespass or a Debt or Disseizin in Assizes or a Tort or any such like unless they should please to give a special Verdict with an implicite faith in the Judgment of the Court to which none can oblige them against ther wills These last 12 must be Men of equal condition with the Party indicted and are called his Peers therefore if it be a Peer of the Realm they must be all such when indicted at the Suit of the King and in the Case of Commoners every man of the 12 must agree to the Verdict freely without compulsion fear or menace else it is no Verdict Whether the Case of a Peer be harder I will not determine Our Ancestors were careful that all men of the like condition and quality presumed to be sensible of each other's infirmity should mutually be Judges each of others lives and alternately taste of Subjection and Rule every man being equally liable to be accused or indicted or perhaps to be suddenly judged by the Party of whom he is at present Judge if he be found innocent Whether it be Lord or Commoner that is indicted the Law intends as near as may be that his Equals that judge him should be his Companions known to him and he to them or at least his Neighbours or Dwellers near about the place where the Crime is supposed to have been committed to whom something of the Fact must probably be known and though the Lords are not appointed to be of the Neighbourhood to the indicted Lord yet the Law supposes them to be Companions and personally well known each unto other being presumed to be a small number as they have anciently been and to have met yearly or oftner in Parliament as by Law they ought besides their other meetings as the hereditary Councellors of the Kings of England If time hath altered the case of the Lords as to the number indifferency and impartiality of the Peers it hath been and may be worthy of the Parliament's consideration and the greater duty is incumbent upon Grand Juries to examine with the utmost diligence the Evidence against Peers before they find a Bill of Indictment against any of them if in truth it may put their Lives in greater danger It is not designed at this time to undertake a Discourse of Petit-Juries but to consider the Nature and Power of Grand Inquests and to shew how much the Reputation the Fortunes and the Lives of English-men depend upon the Conscientious performance of their Duty It was absolutely necessary for the support of the Government and the safety of every Man's Life and Interest that some should be trusted to inquire after all such as by Treasons Felonies or lesser Crimes disturbed the peace that they might be prosecuted and brought to condign punishment and it was no less needful for every man's quiet and safety that the trust of such Inquisitions should be put into the hands of Persons of understanding and integrity indifferent and impartial that might suffer no man to be falsely accused or defamed nor the Lives of any to be put in jeopardy by the malicious Conspiracies of greator small or the Perjuries of any profligate Wretches For these necessary honest Ends was the institution of Grand Juries Our Ancestors thought it not best to trust this great concern of their Lives and Interests in the hands of any Officer of the King 's or in any Judges named by him nor in any certain number of men during life lest they should be awed or influenced by great men corrupted by Bribes Flatteries or love of Power or become negligent or partial to Friends and Relations or pursue their own Quarrels or private Revenges or connive at the Conspiracies of others and indict thereupon But this trust of enquiring out and indicting all the Criminals in a County is placed in men of the same County more at least than Twelve of the most honest and most sufficient for knowledge and ability of Mind and Estate to be from time to time at the Sessions and Assizes and all other Commissions of Oyer and Terminer named and returned by the chief Sworn Officer of the County the Sheriff who was also by express Law anciently chosen annually by the People of every County and trusted with the Execution of all Writs and Processes of the Law and with the Power of the County to suppress all Violences unlawful Routs Riots and Rebellions Yet our Laws left not the Election of these Grand Inquests absolutely to the Will of the Sheriffs but have described in general their Qualifications who shall enquire and indict either Lord or Commoner They ought by the old Common-law to be Lawful Liedge-people of ripe Age not over aged or infirm and of good Fame amongst their Neighbours free from all reasonable suspicion of any design for himself or others upon the Estates or Lives of any suspected Criminals or quarrel or controversie with any of them They ought to be indifferent and impartial even before they are admitted to be sworn and of sufficient understanding and Estate for so great a Trust The ancient Law-book called Briton of great Authority says See Brit. p. 9 and 10. The Sheriffs Bailiffs ought to be sworn to return such as know best how to enquire and discover all breaches of the Peace and lest any should intrude themselves or be obtruded by others they ought to be returned by the Sheriff without the denomination of any except the Sheriff's Officers And agreeable hereunto was the Statute of 11 H. 4. in these words Item Because of late See 11 Hen. 4. Inquests were taken at Westminster of persons named to the Justices without due Return of the Sheriff of which persons some were outlawed c. and some fled to fanctuary for Treason and Felony c. by whom as well many Offenders were indicted as other lawful Liege-people of the King not guilty by Conspiracy Abetment and false imagination of others c. against the force of the Common-Law c. It is therefore granted for the Ease and Quietness of the People that the same Indictment with all its Dependences be void and holden for none for ever and that from henceforth no Indictment be made by any such persons but by Inquest of the King's Liedge-people in the manner as
that kind ought to have no place in judicial proceedings against suspected Criminals but truth is only to be regarded and for this reason the Judgments given in Court of humane Institution are in Scripture called the Judgments of God who is the God of truth Yet further If any benefit to the King could be imagined by making the Evidence to the Grand Jury publick it could not come in competition with the Law expressed in their Oath which by constant uninterrupted usage for so many Ages hath obtained the force of Law Bracton and Britton in their several Generations bear witness that it was then practised and greater proof of it needs not be sought than the Disputes that appear by the Law-Books to have been amongst the ancient Lawyers whether it was Treason or Felony for a Grand-Jury to discover either who was indicted or what Evidence was given them The Trust of the Grand Juries was thought so sacred in those Ages and their secrecy of so great concern to the Kingdom that whosoever should break their Oath therein was by all thought worthy to die Co. Instit 3d part p. 107. Rulls Indic 771. only some would have had them suffer as Traytors others as Felons And at this day it is held to be a high Misprision punishable by Fine and Impoverishment The Law then having appointed the Evidence to be given to Grand Juries in secret the King cannot desire to have it made publick He can do no wrong saith the old Maxime that is He can do nothing against the Law nor is any thing to be judged for his benefit that is not warranted by Law His Will Commands and Desires are therein no otherwise to be known He cannot change the legal Method or manner of enquiring by Juries nor vary in any particular case from the customary and general forms of judicial proceedings he can neither abridge nor enlarge the power of Juries no more than he can lessen the legal Power of the Sheriffs or Judges or by special Direction order the one how they shall execute Writs and the other how they shall give Judgments though these made by himself 'T is criminal no doubt for any to say that the King desires a Court of Justice or a Jury to vary from the direction of the Law and they ought not to be believed therein If Letters Writs or other Commands should come to the Judges for that purpose they are bound by their Oaths not to regard them but to hold them for null the Statutes of 2 E. 3.8 and 20 E. 3.1 are express That if any Writs or Commandments come to the Justices in disturbance of the Law or the Execution of the same or of right to the Parties they shall proceed as if no such Letters Writs or Commands were come to them And the substance of these and other Statutes is inserted into the Oath taken by every Judge and if they be under the most solemn and sacred Tye in the Execution of Justice to hold for nothing or none the Commands of the King under the Great Seal surely the Word or Desire of an Attorney-General in the like case ought to be less than nothing Besides they are strangely mistaken who think the King can have an Interest different from or contrary unto that of the Kingdom in the prosecution of Accused Persons His Concernments are involved in those of his People and he can have none distinct from them He is the Head of the Body Politick and the legal Course of doing Justice is like the orderly circulation of the Blood in the Natural Bodies by which both Head and Body are equally preserved and both perish by the interruption of it The King is obliged to the utmost of his Power to maintain the Law and Justice in its due course by his Coronation Oath and the Trust thereby reposed in him In former Ages he was conjured not to take the Crown unless he resolved punctually to observe it Brom. p. 1159. Mat. Paris p. 153. Bromton and others speaking of the Coronation of Richard the first delivered it thus That having first taken the Oath Deinde indutus Mantello ductus est ad Altare conjuratus ab Archiepiscopo prohibitus ex parte Dei ne hunc Honorem sibi assumat nisi in mente habeat tenere Sacramenta Vota quae superius fecit Et Ipse respondit se per Dei auxilium omnia supradicta observaturum bona fide Deinde cepit Corâ—nam de Altari tradidit eam Archiepiscopo qui posuit eam super caput Regis sic Coronatus Rex ductus est ad sedem suam Afterward cloathed with the Royal Robe he is led to the Altar and conjured by the Archbishop and forbid in the Name of God not to assume that Honour unless he intended to keep the Oaths and Vows he had before made and he answered By God's help he would faithfully observe all the Premises and then he took the Crown from off the Altar and delivered it to the Archbishop who put it upon the King's Head and the King thus Crowned is led unto His Seat The violation of which Trust cannot but be as well a wound unto their Consciences as bring great Prejudice upon their Persons and Affairs The Common-Law that exacts this doth so far provide for Princes That having their minds free from cares of preserving themselves they may rest assured that no Acts Words or Designs that may bring them into danger can be concealed from the many Hundreds of Men who by the Law are appointed in all parts of the Kingdom watchfully to take care of the King and are so far concerned in His safety that they can hope no longer to enjoy their own Lives and Fortunes in Peace than they can preserve him and the good Order which according to the Laws he is to uphold It is the joynt Interest of King and People that the ancient Rules of doing Justice be held sacred and inviolable and they are equally concerned in causing strict enquiries to be made into all Evidences given against suspected or accused Persons that the Truth may be discovered and such as dare to disturb the Publick Peace by breaking the Laws may be brought to punishment And the whole course of Judicial Proceedings in Criminal Causes shews that the People is therein equally concerned with the King whose name is used This is the ground of that distinction which Sir Ed. Coke makes between the Proceedings in Pleas of the Crown and Actions for wrongs done to the King himself In Pleas of the Crown or other common offences nusances c. Co. 3d. Inst pag. 136. principally concerning others or the Publick there the King by Law must be apprised by Indictment Presentment or other matter of Record but the King may have an Action for such wrong as is done is himself and whereof none other can have an Action but the King without being apprised by Indictment Presentment or other matter of Record
be advanced by the formality of Verdicts if Grand Juries be overawed or not suffered to enquire into the Truth to the satisfaction of their Consciences Every Man whilst he lives innocently doth under God place his hopes of security in the Law which can give no protection if its due course be so interrupted that frauds cannot be discovered Witnesses may as well favour Offenders as give false testimony against the guiltless and if they by hearing what each other saith are put into a way of concealing their villainous designs there can be no legal Revenge of the crimes already committed Others by their impunity will be encouraged to do the like And every quiet minded Person will be equally exposed unto private injuries and such as may be done unto him under the colour of Law No man can promise unto himself any security for his Life or Goods and they who do not suffer the utmost violences in their own persons may do it in their Children Friends and nearest Relations if he be deprived of the remedies that the Law ordains and forced to depend upon the Will of a Judge who may be and perhaps we may say are too often corrupted or swayed by their own Passions Interests or the impulse of such as are greater than they This mischief is aggravated by a commonly received Opinion that whosoever speaks against an accused person is the King's Witness and the worst of men in their worst designs do usually shelter themselves under that name whereas he only is the King's Witness who speaks the truth whether it be for or against him that is accused As the Power of the King 's the Power of the Law he can have no other intention than that of the Law which is to have Justice impartially administred and as he is the Father of his People he cannot but incline ever to the gentlest side unless iâ— be possible for a Father to delight in the destruction or desire to enrich himself by the confiscation of his Childrens Estates If the most wicked Princes have had different thoughts that have been obliged to dissemble them We know of none worse than Nero but he was so far from acknowledging that he desired any Man's condemnation that he looked upon the necessity of signing Warrants for the Execution of * Sne. Vit. Ner. Vtinam nescirem letteras Malefactors as a burthen and rather wished he had not learnt to write than to be obliged to do it They who by spreading such barbarous errours would create unto the King an interest different from that of his People which he is to preserve whilst they pretend to serve him in destroying of them they deprive him of his honour and dignity Justice is done in all places in the name of the chief Magistrate it being presumed that he doth embrace every one of his Subjects with equal tenderness until the guilty are by legal proofs discriminated from the Innocent and amongst us the King's name may be used in civil cases as well as criminal But it is as impossible for him rightly to desire I should be condemned for killing a Man whom I have not killed or a Treason that I have not committed as that my Land should be unjustly taken from me by a judgment in his Bench or I should be condemned to pay a debt that I do not owe. In both Cases we sue unto him for Justice and demand it as our right We are all concerned in it publickly and privately and the King as well as all the Officers of Justice are by their several Oaths obliged in their respective capacities to perform it They are bound to give their assistance to find out Offenders and the King's Attorney is by his Oath to prosecute them if he be required and he is not only the King's servant in such cases but the Nations or rather cannot otherwise serve the King than by seeing Justice done in the Nation Whensoever any Man receives an injury in his Person Wife Children Friends or Goods the King is injured in as much as he is by his Office to prevent such mischief and ought to be concerned in the Welfare of every one of his Subjects but the parties to whom the injuries are done are the immediate sufferers and the prosecution is principally made that they may be repared or revenged and other innocent persons secured by the punishment of Offenders in which the King can be no otherwise concerned than as he is to see his Office faithfully performed and his People protected The King's suit therefore is in the behalf of his People yet the Law leaves unto every man a Liberty in case of Treasons Murthers Rapes Robberies c. to sue in the King's name and crave his aid or by way of appeal in his own The same Law looks upon Felons or Traitors as publick Enemies and by authorizing every one to pursue or apprehend them teacheth us that every man in his place ought to do it The same Act whereby one or a few are injured threatneth all and every Man 's private interest so concurs with that of the publick that all depends upon the exact preservation of the Method prescribed by the Law for the impartial inquisition after suspected Offenders and most tender care of preserving such as are innocent As this cannot possibly be effected without secret and separate examinations the forbidding them is no less than to change the Course which is enjoyned by Law confirmed by custom and grounded upon Reason and Justice If on the other side any man believe that such as in the King's name prosecute suspected Delinquents ought only to try how they may bring them to be condemned he may be pleased to consider that all such persons ought according unto Law to produce no Witness whom they do not think to be true No Evidence which they do not believe good nor can conceal any thing that may justifie the accused No trick or Artifice can be lawfully used to deceive a Grand Jury or induce them to find or reject a Bill otherwise than as they are led by their own Consciences All Lawyers were anciently sworn to put no deceit upon the Courts for their Clients sake and there are Statutes still in force to punish them if they do it but there is an eternal obligation upon such as are of Counsel against persons accused of Crimes not to use such Arts as may bring the Innocent to be condemned and thereby parvert that which is not called the Judgment of Man but of God because Man renders it in the stead and by the Commandment of God such practices exalt the Jurisdiction of Tribunals but infect and polute them with that Innocent Blood which will be their overthrow And least of all can it be called a Service to the King since none could ever stand against the cry of it This is necessarily implyed in the Attorney General 's Oath to serve the King in his Kingly Office wherein the Law presumes he can
but it may move them there is no security that innocent Persons may not be brought every day into danger and trouble By this means certain mischiefs will be done whilst it is by their own confession uncertain whether they are any ways deserved by such as suffer them to the utter overthrow of all Justice If the word Probable be taken in a common rather than a nice Logical sense it signifies no more than likely or rather likely than unlikely When a matter is found to be so the Wager is not even there is odds upon one side and this may be a very good ground for betting in a Tennis Court or at a Horse-race but he that would make the Administration of Justice to depend upon such Points seems to put a very small value upon the fortunes liberties and reputations of men and to forget that those who sit in Courts of Justice have no other business there than to preserve them This continues in force though in a Diologue between a Barrister and a Grand Jury Man published under the Title of the Grand Jury Man's Oath and Office it be said p. 8. and 9. That their work is no more than to present Offences fit for a Tryal and for that Reason give in only a Verisimilar or probable Charge and others have affirmed that a far less Evidence will warrant a Grand Juries Indictment than a Petit Juries Verdict For nothing can be more opposite to the justice of our Laws than such Opinions All Laws in doubtful Cases direct a suspension of Judgment or a sentence in favour of the Accused person But if this were hearkened unto Grand Juries should upon their Oaths affirm they judge him Criminal when the Evidence is upon such uncertain grounds that they cannot but doubt whether he is so or not It cannot be hereupon said that no Evidence is so clear and full but it may be false and give the Jury occasion of doubts so as all Criminals must escape if no Indictment ought to be found unless the proofs are absolutely certain for it is confess'd that such Cases are not capable of an infallible Mathematical demonstration but a Jury that Examines all the Witnesses that are likely to give any light concerning the business in question and all Circumstances relating to the fact before them with the Lives and Credit of those tha◠testify i◠and of the Person accused may and do often find that which in their Consciences doth fully perswade them that the accused Person is guilty This is as much as the Law or their Oath doth require and such as find Bills after having made such a Scrutiny are blameless before God and Man if through the fragility inseparable from humane nature they should be led into Error For they 〈◊〉 not swear that the Bill is true but that they in their Consciences believe that it is so and if they write Ignoramus upon the Bill it is not thereby declared to be false nor the P rson accused acquitted but the matter is suspended until it can be more clearly proved as in doubtful Cases it always ought to be Our Ancestors took great Care that suspicious and probable Causes should not bring any Man's Life and Estate into danger For that reason it was ordain'd by the Stat 37 Ed 3. Cap 18. That such as made suggestions to the King should find surety to pursue and incur the same pain that the other should have had if he were attainted in case their suggestion be not found evil and that then process of the Law should be made against the Accused This manner of Proceeding hath its root on eternal and universal Reason The Law given by God unto his People Deut. 19. allotted the same Punishment unto a false witness as a person convicted The best disciplined Nations of the world learnt this from the Hebrews and made it their Rule in the administration of Justice The Grecians generally observed it and the Romans according to their Lex Talionis did not only punish death with death but the intention of committing Murther by false Accusations with the same severity as if it had been effected by any other means This Law was inviolably observed as long as any thing of regularity or equity remained amongst them and when through the wickedness of some of the Emperours or their favourites it came to be overthrown all Justice perished with it A Crew of false Informers brake out to the destruction of the best men and never ceas'd until they had ruined all the most eminent and antient Families Circumvented the Persons that by their Reputation Wealth Birth or Virtue deserved to be distinguished from the common sort of People and brought desolation upon that victorious City Tacitus complains of this Tac. Ann. 3. as the cause of all the mischiefs suffered in his Time and Country By their means the most Savage Cruelties were committed under the name of Law which thereby became a greater Plague than formerly Crimes had been No remedy could be found when those Delatores whom he calls genus hominum Publico exitio repertum Tac. Ann. 4. poenis quidem nunquam satis coercitum were invited by impunity or reward and the Miserable People groaned under this calamity until those instruments of iniquity were by better Princes put to the most cruel tho well deserved deaths The like hath been seen in many places and the domestick quiet which is now enjoyed in the Principal parts of Europe proceeds chiefly from this that every man knows the same Punishment is appointed for a false Accusation and proved Crime It is hardly seven years since Monsieur Courboyer a man of quality in Brittany suborned two of the King of France his Guards to swear Treasonable Designs against La Motte a Norman Gentleman the matter being brought to Monsieur Colbert he caus'd the Accused Person and the Witnesses to be secured until the fraud was discovered by one of them whereupon he was pardoned La Motte released Courboyer beheaded and the other false Witness hanged by the Sentence of the Parliament of Paris Though this Law seems to be grounded upon such foundation as forbids us to question the equity of it our Ancestors for Reasons best known unto themselves thought fit to moderate its Severity by the Statute of 38 Ed. 3. Cap. 9. yet then it was enacted and the Law continues in force unto this day That whosoever made complaints to the King and could not prove them against the Defendant by the process of Law limited in former Statures which is first by a Grand Jury he should be imprisoned until he had made gree to the Party of his damages and of the slander he suffered by such occasion and after shall make fine and ransom to the King which is for the common damage that the King and his People suffer by such a false accusation and defamation of any Subject And in the 42 Ed. 3. Cap. 3. To eschew the Mischiefs and damage done by
Administration of Justice Belongeth to the Office of a King But the fullest account of it in few words is in Chancellor Fortescue Chap. XIII which Passage is quoted in Calvin's Case Coke VII Rep. Fol 5. Ad Tutelam namque Legis Subditorum ac eorum Corporum bonorum Rex hujusmodi erectus est ad hanc potestatem a populo effluxam ipse habet quo ei non licet potestate alia suo populo Dominari For such a King That is of every Political Kingdom as this is is made and ordained for the Defence or Guardianship of the Law of his Subjects and of their Bodies and Goods whereunto he receiveth power of his People so that he cannot Govern his People by any other power Corollary 1. A Bargain 's a Bargain 2. A Popish Guardian of Protestant Laws is such an Incongruity and he is as Unfit for that Office as Antichrist is to be Christ's Vicar CHAP. II. Of Prerogatives by Divine Right I. GOvernment is not matter of Revelation if it were then those Nations that wanted Scripture must have been without Government whereas Scripture it self says That Government is The Ordinance of Man and of Humane Extraction And King Charles the First says of this Government in particular That it was Moulded by the Wisdom and Experience of the People Answ to XIX Prop. II. All just Governments are highly Beneficial to Mankind and are of God the Author of all Good they are his Ordinances and Institutions Rom. 13.1 2. III. Plowing and Sowing and the whole business of preparing Bread-Corn is absolutely necessary to the subsistence of Mankind This also cometh forth from the Lord of Hosts who is wonderful in Counsel and excellent in Working Isa 28. from 23. to 29th Verse IV. Wisdom saith Counsel is mine and sound Wisdom I am Vnderstanding I have strength By me Kings Reign and Princes decree Justice By me Princes Rule and Nobles even all the Judges of the Earth Prov. 8.14 V. The Prophet speaking of the Plowman saith His God doth instruct him to discretion and doth teach him Isa 28.26 VI. Scripture neither gives nor takes away Mens Civil Rights but leaves them as it found them and as our Saviour said of himself is no Divider of Inheritances VII Civil Authority is a Civil Right VIII The Law of England gives the King his Title to the Crown For where is it said in Scripture That such a Person or Family by Name shall enjoy it And the same Law of England which has made him King has made him King according to the English Laws and not otherwise IX The King of England has no more Right to set up a French Government than the French King has to be King of England which is none at all X. Render unto Caesar the things which are Caesars neither makes a Caesar nor tells who Caesar is nor what belongs to him but only requires Men to be just in giving him those supposed Rights which the Laws have determined to be his XI The Scripture supposes Property when it forbids Stealing it supposes Mens Lands to be already Butted and Bounded when it forbids removing the antient Land-marks And as it is impossible for any Man to prove what Estate he has by Scripture or to find a Terrier of his Lands there so it is a vain thing to look for Statutes of Prerogative in Scripture XII If Mishpat Hamelech the manner of the King 1 Sam. 8.11 be a Statute of Prerogative and prove all those particulars to be the Right of the King then Mishpat Haccohanim the Priest's custom of Sacrilegeous Rapine Chap. 2.13 proves that to be the Right of the Priests the same wood being used in both places XIII It is the Resolution of all the Judges of England that even the known and undoubted Prerogatives of the Jewish Kings do not belong to our Kings and that it is an absurd and impudent thing to affirm they do Coke 11. Rep. p. 63. Mich. 5. Jac. Give us a King to Judge us 1 Sam. 8.5 6 20. Note upon Sunday the Tenth of November in this same Term the King upon Complaint made to him by Bancroft Archbishop of Canterbury concerning Prohibitions was informed that when Question was made of what matters the Ecclesiastical Judges have Cognizance either upon the Exposition of the Statutes concerning Tythes or any other Thing Ecclesiastical or upon the Statute 1 Eliz. concerning the High Commission or in any other Case in which there is not express Authority by Law the King himself may decide it in his Royal person and that the Judges are but the Delegates of the King and that the King may take what Causes he shall please to determine from the Determination of the Judges and may determine them himself And the Archbishop said That this was clear in Divinity That such Authority belongs to the King by the Word of God in Scripture To which it was answered by me in the presence and with the clear consent of all the Justices of England and Barons of the Exchequer That the King in his own person cannot adjudge any Case either Criminal as Treason Felony c. but this ought to be determined and adjusted in some Court of Justice according to the Law and Custom of England And always Judgments are given Ideo consideratum est per Curiam so that the Court gives the Judgment And it was greatly marvelled That the Archbishop durst inform the King that such absolute power and authority as is aforesaid belonged to the King by the Word of God CHAP. III. Of OBEDIENCE I. NO Man has any more Civil Authority than what the Law of the Land has vested in him Nor is he one of St. Paul's Higher Powers any farther or to any other purposes than the Law has impowr'd him II. An Usurped Illegal and Arbitrary power is so far from being the Ordinance of God that it is not the Ordinance of Man III. Whoever opposes an Usurped Illegal and Arbitrary Power does not oppose the Ordinance of God but the Violation of that Ordinance IV. The 13. of the Romans commands Subjection to our Temporal Governours Verse 4. because their Office and Imployment is for the publick welfare For he is the Minister of God to Thee for Good V. The 13. of the Hebrews commands Obedience to spiritual Rulers Verse 17. Because they watch for your Souls VI. But the 13. of the Hebrews did not oblige the Martyrs and Confessors in Queen Mary's Time to obey such blessed Bishops as Bonner and the Beast of Rome who were the perfect Reverse of St. Paul's Spiritual Rulers and whose practice was murthering of Souls and Bodies according to the true Character of Popery which was given it by the Bishops who compiled the Thanksgiving for the Fifth of November but Archbishop Laud was wiser than they and in his time blotted it out The Prayer formerly run thus To that end strengthen the Hands of our Gracious King the Nobles and Magistrates of the
in your Kingdoms as here in the Roman Empire But now we refer it even to your Majesty to judg what condition we can be in to afford you any Assistance we being not only Engaged in a War with the Turks but finding our selves at the same time unjustly and barbarously Attacked by the French contrary to and against the Faith of Treaties they then reckoning themselves secure of England And this ought not to be concealed that the greatest Injuries which have been done to our Religion have flowed from no other than the French themselves who not only esteem it lawful for them to make perfidious Leagues with the sworn Enemies of the Holy Cross tending to the destruction both of us and of the whole Christian World in order to the checking our Endeavours which were undertaken for the glory of God and to stop those Successes which it hath pleased Almighty God to give us hitherto but further have heaped one Treuchery upon another even within the Empire it self The Cities of the Empire which were Surrendred upon Articles signed by the Dauphin himself have been exhausted by excessive Impositions and after their being exhausted have been Plundred and after Plundring have been Burned and Razed The Palaces of Princes which in all times and even in the most destructive Wars have been preserved are now burnt down to the ground The Churches are Robbed and such as submitted themselves to them are in a most Barbarous manner carried away as Slaves In short It is become a Diversion to them to commit all manner of Insolences and Cruelties in many places but chiefly in Catholick Countries exceeding the Cruelties of the Turks themselves which having imposed an absolute necessity upon us to secure our selves and the holy Roman Empire by the best means we can think on and that no less against them than against the Turks we promise our selves from your Justice ready assent to this That it ought not to be imputed to us if we endeavour to procure by a just War that security to our selves which we could not hitherto obtain by so many Treaties and that in order to the obtaining thereof we take measures for our mutual Defence of Preservation with all those who are equally concerned in the same Design with us It remains that we beg of God that he would Direct all things to his glory and that he would grant your Majesty true and solid Comforts under this your great Calamity we embrace you with tender Affections of a Brother At Vienna the 9th of April 1689. The Declaration of the Lords Spiritual and Temporal and Commons Assembled at Westminster concerning the Misgovernment of King James and filling up the Throne Presented to King William and Queen Mary by the right Honourable the Marquess of Hallifax Speaker to the House of Lords With His Majesties most gracious Answer thereunto WHereas the late King James the Second by the Assistance of divers Evil Counsellors Judges and Ministers Imploy'd by Him did endeavour to Subvert and Extirpate the Protestant Religion and the Laws and Liberties of this Kingdom By Assuming and Exercising a Power of Dispensing with and Suspending of Laws and the Execution of Laws without consent of Parliament By Committing and Prosecuting divers Worthy Prelates for humbly Petitioning to be Excused from concurring to the said assumed Power By 〈◊〉 and causing to be executed a Commission under the great Seal for erecting a Court called The Court of Commissioners for Ecclesiastical Causes By Levying Mony for and to the Use of the Crown by pretence of Prerogative for other time and in other manner than the same was granted by Parliament By raising and keeping a standing Army within this Kingdom in the time of Peace whithout consent of Parliament and Quartering Soldiers contrary to Law By causing several good Subjects being Protestants to be Disarmed at the same time when Papists were both Armed and Imployed contrary to Law By violating the Freedom of Election of Members to serve in Parliament By Prosecutions in the Court of King's-Bench for Matters and Causes cognizable only in Parliament and by divers other Arbitrary and Illegal Courses And whereas of late Years Partial Corrupt and Unqualified Persons have been returned and served on Juries in Tryals and particularly divers Jurors in Tryals for High-Treason which were not Free-holders And Excessive Bail hath been required of Persons committed in Criminal Cases to elude the Benefit of the Laws made for the Liberty of the Subjects And Excessive Fines have been Imposed And Illegal and Cruel Punishments inflicted And several Grants and Promises made of Fines and Forfeitures before any Convictions or Judgment against the Persons upon whom the same were to be Levied All which are utterly and directly contrary to the known Laws and Statutes and Freedom of this Realm And whereas the said late K. James the Second having abdicated the Government and the Throne being thereby vacant His Highness the Prince of Orange whom it hath pleased Almighty God to make the glorious Instrument of Delivering this Kingdom from Popery and Arbitrary Power did by the Advice of the Lords Spiritual and Temporal and divers principal Persons of the Commons cause Letters to be written to the Lords Spiritual and Temporal being Protestants and other Letters to the several Counties Cities Universities Burroughs and Cinque-Ports for the Chusing of such Persons to represent them as were of Right to be sent to Parliament to Meet and Sit at Westminster upon the 22d Day of January in this Year 1688 in order to such an Establishment as that their Religion Laws and Liberties might not again be in danger of being Subverted Upon which Letters Elections having been accordingly made And thereupon the said Lord's Spiritual and Temporal and Commons pursuant to their respective Letters and Elections being now Assembled in a Full and Free Representative of this Nation taking into their most serious Consideration the best Means for attaining the Ends aforesaid do in the first place as their Ancestors in like Case have usually done for the Vindicating and Asserting their Ancient Rights and Liberties Declare That the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is Illegal That the pretended Power of Dispensing with Laws or the Execution of Laws by Regal Authority as it hath been assumed and exercised of late is Illegal That the Commission for erecting the late Court of Commissioners for Ecclesiastical Causes and all other Commissions and Courts of the like Nature are Illegal and Pernicious That levying of Mony for or to the Use of the Crown by pretence of Prerogative without grant of Parliament for longer time or in other manner than the same is or shall be granted is Illegal That it is the Right of the Subjects to Petition the King and all Commitments and Prosecutions for such Petitioning are Illegal That the Raising or Keeping a standing Army within the Kingdom in time of Peace unless it be with