ADVERTISEMENT REmarks upon the Tryals of Edward Fitzharris Stephen Colledge Count Coningsmark the Lord Russell Collonel Sidney Henry Cornish and Charles Bateman As also on the Earl of Shaftsbury 's Grand Jury Wilmore 's Homine Replegiando and the Award of Execution against Sir Thomas Armstrong By John Hawles Barrister of Lincolns-Inn Printed for Jacob Tonson at the Judges Head in Chancery-Lane near Fleetstreet MDCLXXXIX A REPLY TO A Sheet of Paper INTITULED The MAGISTRACY and GOVERNMENT OF ENGLAND VINDICATED OR A Justification of the English Method of Proceedings against Criminals by way of Answer to the Defence of the late Lord RUSSEL'S Innocence c. Sic est acerba fata Romanos agunt Scelusque fraternae necis Ut immerentis fluxit in terram Remi Sacer nepotibus cruor Hor. Epod. 7. Written by John Hawles Barrister of Lincolns-Inn LONDON Printed for Israel Harrison at Lincolns-Inn Fore-gate and Jacob Tonson at the Judges-Head in Chancery-Lane near Fleet-street MDCLXXXIX A REPLY TO THE MAGISTRACY and GOVERNMENT OF ENGLAND VINDICATED c. HAving read and considered a sheet of Paper Entitled The Magistracy and Government Vindicated or a Justification of the English Method of Proceeding against Criminals by way of Answer to the Defence of the late Lord Russel ' s Innocence c. I could not but wonder at the Imprudence of the Publisher and of those who applauded it it being far from a satisfactory Answer and in truth in serves only to refresh the Memory of things which the criminally concerned in have reason to wish forgotten It must likewise be remembred that whoever justifies what is generally taken to have been ill done in the former Reigns in consequence accuses the present Government of Injustice the setting things right which supposes them to have been out of Order being the true reason and support of the present Government I do not say that any thing heretofore supposed to have been ill done or that any Person supposed to have had an hand in those things supposed to have been ill done ought therefore to own himself as he is reputed to be an ill Man or that the matter condemned as a wicked and illegal thing ought therefore to be so conceded by him as that he should not vindicate himself from the Aspersion of having an hand in the Matter he is supporsed to be guilty of or if he had an hand in it that he should not defend himself by shewing the Matter was no Crime But I am sure the Person who vindicates himself ought to be very circumspect in so doing There is a very great difference between pardoning all Criminals and declaring that no Man supposed a Criminal hath done any thing amiss the first is an Act of grace the last argues the Persons guilty of Injustice who suppose a Man to be a Criminal which Opinion they afterwards retract and own themselves in an Error I know it is a very inviduous thing to look back and see all the things which were ill done for about nine years past all that at present I 'le say is that of all the illegal Prosecutions the Prosecutions in Capital matters justly gave most Offence and if my Lord Russel was not illegally prosecuted rudely handled and without such Cause as the Law says is good Cause put to death I will agree that there was no reason to find fault with any thing done before the first of December 1688. I do not say but that the Injustice to Stephen Colledge Collonel Sydney and Mr. Cornish was more palpable but I say the usage of my Lord Russel appeared to be equally unjust all which the Author of the above-mentioned Sheet thought to slurr over by insinuating it was the English Method of proceedings which he calls a justification of the English Method of Proceedings in Criminal Matters c. And by those words at first sight one would think that the Author writ to some Foreigners or if they were Englishmen to Persons who did not understand the English method of Proceedings and if so it would have been fit for him to have set down what the English Method of proceedings was which he does not and if he intended the Paper to be the English method of proceedings against the Lord Russell vindicated he ought to have exprest what the method of proceedings against him was and have shewed the Objections and vindicated it by shewing the Reasons of those proceedings which he hath not done The truth is instead of treating of the matter according to the purport of the Title he only falls on those who find fault with those proceedings and ventures on a Point of Law which he pretends is the result of the Evidence given against the Lord Russell without shewing what Crime the Evidence against the Lord Russell proved him Guilty of I will not in this place shew the unfair Proceedings nor how far the Evidence against him proved him guilty nor what Crime the Evidence amounted unto it will come more properly in where it is said his Relations were satisfied with the justness of his Tryal In the intended Reply to this Answer I thought it better to repeat the very words of the Answer I intended the Reply to that it might not be said I wrested the Sence of the words of it and if I omit some Clauses of the Answer it is because they are only Reflections on the Persons pretended to be answered and do not go to the Matter or Repetitions of that said before and therefore are not worth taking notice of In the present Age when the variety and multiplicity of new Prints is such that the Money and time required for their purchase and perusual is more than an ordinary Gentleman can reasonably allow it may deservedly be thought a nusance to the publick to have their numbers encreased especially since the complaint of the ingenious Author of the Trimmers Chà racter that for this very cause he could almost have wished himself unable to read but yet the support of Magistracy and Government is a noble Theme so useful to the publick and so generally agreeable to the humour of Mankind that the meer Subject will I presume be an excuse for this Publication if any thing can be so I agree the Prints of this present Age are very numerous and I can give my self no other reason for it but one of these four The exposing to view the Irregulatities not to give them an harsher name in the two former Reigns which naturally provokes an Answer by way of Justification and vice versa which I reckon for two of the Reasons the Authors Profit which I reckon for a third or else a certain Matter said by a suspected Mad-man of late years in the Court of Chancery which I reckon for a fourth Reason The Story was this A certain elder Brother being reputed a Malignant in the late times his Estate was liable to Sequestration His younger Brother had been of the other thriving side so it was agreed between them
when it is so agreeable to human kind and how the Credit of the Law came to be clouded and even at this time when we are recovering at least if not recovered out of the Disease When we desponded of a Recovery it was as foolish to think of the Causes as it is of a dying man past hopes to bethink himself what brought him into that Sickness It is a vain thing to say that the Authority of Judges exempts them from an enquiry into and censure of their Opinions A Judge is omne exceptione major in respect of the Suitor so that he cannot except against a Judge as he may against a Juror but his Opinion is censurable by all and punishable if he act against his Knowledge and as I think his Opinion is censurable so I think his person ought to be pointed at and named in Justice to the Innocent least a Person Innocent should be suspected or concluded to be the man whose Opinion is censured I confess when I read the Character of the Trimmer wherein the Author says he could almost have wished he could not have read I cannot but remember that there was a time when I could have wished I had not read a Word of Law for it was impossible to think how many men lost their Lives and were ruined in their Estates not only without but even against Law but those that saw it must not only commiserate them but in some sort bear a part in their Sufferings And the matter went a little further for none was secure but it might be his own turn at some time or another and his being a Lawyer no way secured him it rather indangered him for he was capable of being a Spy and a Discoverer and in that respect the most Ignorant which the Lawyers call Lay Gents were the most unconcerned they still thought there was some sort of Justice and that if they were innocent they were safe And on this Rock the Lord Russell Collonel Sidney and Mr. Cornish split When the Lawyers and better advised fled I think it is not only excusable but the Duty of Lawyers to discover the Erroneous Opinions and much more the wilfully illegal Practices of Judges and of Persons of their own Profession who were indeed authorised and sworn to execute Justice but practised the contrary their Patents neither did nor ought to exempt them from censure more than it does from punishment If they have done according to Law or according to the best of their Understandings the first can do them no harm and the last ought not to be inflicted on them but if they have acted contrary to both I think they ought to be discovered and exposed nay I think a Lawyer is not safe in concealing them If it were so fatal to the Lord Russel which as the Author says was so much pitied in his Fall to be knowing of matters treated of in several Consults and not discover them to the Government a Lawyer may well suspect that it may be as great a Crime in him to know several Persons tho of his own Profession guilty of actions more hainous than the matters treated of in those Consults and not discover them If a Lawyer should be guilty of Murder and another of his Profession should know it and not discover it would it be an excuse for him to say that that other was a Gentleman of the long Robe And what reason is there for the Gentleman of the long Robe to be so Civil to these Criminals though of their own Profession Were not they the Persons who in affront to the Inns of Courts and in defiance of the Law hanged up two of their own Profession before the Gates of three of the Inns of Court and if the fourth Inn escaped it was not for want of good Will but Opportunity And had they not till of late hanged up the parboiled Quarters of two Persons at Temple-Bar whereof one was a Barrister at Law in affront to the two Neighbouring Inns of Court to shew the power of these Criminals rather than their knowledge in the Law to the reproach of their Profession and exposing our Law to the scorn even of Forreigners The Doctors of the Commons have been but little to blame their Oppressions if any have been very modereate their 's never extended farther than the restraint of Persons ours have been loaded with Fetters and generally ended with Blood and therefore I will not use the Person of a Doctor of Commons to ridicule expose or accuse the Proceedings of the late Times but I will set up John a Stiles and John a Nokes the ordinary Plaintiff and Defendant in our Law to accuse expose ridicule and defend Dialogue wise the late Proceedings in Capital Matters the last Part of this Paragraph being best answered in that manner But beforehand I must tell you their Characters John a Stiles is a Man no way concerned in the Proceedings of the late Times and is a meer Lay man that is to say a Man who understands nothing of Law but reasonably sensible and has the Curiosity to read all Pamphlets and Books which come out in Print John a Nokes was a Common Lawyer of no great note or understanding but zealous to vindicate the Law they were acquaintance often met and discoursed at a private Table in a Coffee-house And John a Stiles began J. S. Having nothing else to do I have read over some printed Tryals of Persons who suffered particularly of Edward Fitzharris Stephen Colledge William Lord Russell Colonel Sydney and Mr. Cornish and the Charge to and Discourse with the Grand Jury which passed on the Earl of Shaftsbury and I cannot but wonder that so many wise Heads as have been laid together to frame the Common and Statute Law of England should make or allow it to be so very uncertain as it is and even in the Matters of greatest concern I mean Capital Matters which I thought had been certain For I remember Howell in his Dodonaes Grove wherein he makes use of our Names in Civil Matters commends the English Method as a late Author hath called it of Proceedings against Criminals at an high rate but to me nothing seems more uncertain and between you and I I hope those Prints may never light into Forreigners hands for if they do it will expose our Professors of the Law and even the Law it self to their scorn J. N. I own the uncertainty of the Law is the greatest Reproach you can give it though a mighty advantage to the Professors of it There is a Liberty given by it of giving Judgment any way they please and still they have an Authority or Precedent to bear them out and where the Law is doubtful you cannot blame a Judge if he takes Instructions and a Gratuity for his pains in private But I do not admit our Law is uncertain I challenge any Man to shew me out of the Tryals you mentioned or any other Printed and Licensed that
the Law is or was uncertain J. S. To satisfie you look here on Fitzharris's Tryal Is it not the positive Judgment of the Court that no Freehold is a good Challenge of a Juror in a Tryal of Treason is it not as positively resolved in the Lord Russell's and Colonel Sydney's Tryals that it is no good Challenge in Tryals of Treason Is it not as plainly the Resolution of the Court in Fitzharris's Tryal that the Court hath a power to put off a Tryal in Treason to another day without the Consent and even contrary to the Prayer of the Attorney General And did not the Court as expresly resolve in the Lord Russell and Cornish their Tryals that they could not put off their Tryals no not till the Afternoon without the Attorneys Consent Is it not as plain in the charge to the Lord Shaftsbury's Grand Jury that the Court said that designing to Levy War was not Treason by the Statute of Edward the Third but was made High Treason by the Statute of King Charles the Second and yet was not designing alone to Levy War allowed to be High Treason by the Statute of Edward the Third in the Lord Russel's Tryal Was it not agreed by the Court in Colledges Tryal that Prosecutions for High Treason on the Statute of Car. 2. ought to be within six Months after the Fact Committed Was it not denyed in the Lord Russels Tryal that the Statute of Car. 2. confined the Prosecutions for Treason on that Statute to any time I am indeed weary of enumerating the several Contradictions in those Tryals and even by the same Persons being the Judges in those Tryals I cannot think my self or any Man safe who is subject to such an uncertain Law. J. N. I own all the things you mention are true but that doth not prove the Law uncertain but the Person of the Judg. J. S. I care not where the fault lies but I am sure the Subject is in a miserable Condition and I am sure it is not only fit but necessary to make both Judge and Law certain J. N. The last is certain already but how to make the first certain is what no Age hath found an Expedient for J. S. Make a Law they shall be certain in their Judgments J. N. The Law is so already tho' of late days they have made bold to dispence with that Law. J. S. Then make a Law they shall be punished if they do not observe it J. N. The Law is so already J. S. Why then are they not punished J. N. Because they are not thought generally to be punishable or censurable any where but in Parliament and we have not had any for some years J. S. Why is not a Parliament called then J. N. That is the Kings Prerogative to do and he hath not thought fit to do it J. S. Why is not there a Law then that the King shall call a Parliament in the returns of some convenient times as once a Year or the like J. N. The Law is so already J. S. Why then doth not the King who hath often promised to Govern by the Law and to have frequent Parliaments call a Parliament J. N. He is advised that he is not bound by those Laws but the calling a Parliament being left to him he may call a Parliament or let it alone J. S. At that rate for ought I perceive he will never call a Parliament for tho' he is resolved if he is by Law obliged to call a Parliament he will do it yet if it be but a Discretionary Power in him he will not do it for as the Matter is at present apprehended the sitting of a Parliament is an Eclipse of the Regal Power J. N. I do not say it is a Discretionary part in him but I think it is a thing he ought in Justice to do as much as constituting Judges and the like or suffering the Terms to be kept which by the King's Command may be Adjourned or put sine die as we Lawyers talk J. S. I am sorry to hear this for then we Subjects are in a miserable condition for at this rate the Judges at Westminster-Hall may be as Tyrannical as the Decem Viri amongst the Romans and there is no Redress for they are not punishable but in Parliament And some tell the King and he so believes them as it is reasonable for him to do because they skill the Law better than he That he is not obliged to call a Parliament notwithstanding the Statutes and he will not do it for the above Reason and consequently they will go on in their Oppressions in infinitum J. N. You are mistaken in the Law and the Fact for tho' they advised the King He was not obliged by those Statutes to call a Parliament they meant He was not punishable if he did not call a Parliament and that a Parliament could not meet without His Call they did not mean that in Justice the word Honesty is beneath the Honour of a King He was not obliged to call a Parliament They own that where a Power is lodged in the King in point of Honour as the Calling of a Parliament or Disbanding an Army as was the Disbanding the Hounslow-Heath Army He ought to do it according to the words and intent of the Acts of Parliament by which He was obliged to Disband that Army And they owned that it was a Reflection upon I do not say an Injustice in the King that He did not perform the Trust reposed in Him by those Acts And you very well remember that That Regal Power of Disbanding an Army because it was found the King did not perform His Trust was afterwards given to some Subjects J. S. But suppose such Subjects should not execute the Powers given them or should as you call it break the Trust reposed in them Are we poor Subjects in a better Condition than we were before J.N. Not at all You do not consider the condition of all Sublunary Affairs you would have all perfectly Easie perfectly Safe perfectly Certain whereas you know we are subject to Diseases subject to the Malice of other Men subject to the Treachery of other Men influenced by their Advantages J. S. But cannot this be remedied J. N. Yes I think it may if the Judges were safe in the just execution of their Offices and censurable if they acted contrarily which can never be unless their Offices be grantable to them for their lives and the sitting of Parliaments be effectually secured J. S. But what will you do for the past Matters J. N. Forget them all J. S. I cannot possibly do it I have read Horace lately and there are some Verses run scurvily in my mind Auro repensus scilicet acrior Miles redibit Flagitio additis Damnum neque amissos colores Lana refert medicato fuco Nec vera virtus quum semel excidit Curat reponi deterioribus J. N. There is no reason to mind them they are Verses
as is to be seen in my Lord Bacon's Elements much less doth it prove that the Consequence of a Design to seize the Guards is to kill depose or imprison the King For time was when the Kings of England were very safe and at at full liberty without Guards and to say truth no one instance in our English Histories can be given That a King hath been killed deposed or imprisoned for want of Guards I know it hath been pretended that King Charles the First had not went from White-hall if he had had Guards but that is but a Conjecture And it is a doubt whether his departure was forcible or voluntary Guards may defend a Prince from a sudden Attempt and scarcely so for Henry the Third and Henry the Fourth of France were killed the first in the midst of his Army the last in the midst of his Guards but not from the violence of the People a Prince is safe in the love of his Subjects and without it Guards are but of little use There were two late Kngs who did not well know whether they were not Prisoners to their own Armies and Mahomet the Fourth Emperour of the Turks was a Prisoner for some time to his own Guards when he thought himself at perfect liberty so little difference there is between Guards for a Prince's safety or his safe imprisonment I purposely omit speaking to the Cases of the Lord Cobham and Gray Watson and Clark because I intend to answer them last of all and for the same reason I speak not of Sir Walter Rawleigh's Case because it was the same with the other though the Author cunningly Musters them as distinct Cases The Case of the Earls of E. and of S. is reported short by the Author for their Indictment and Fact was for designing to take the Queen into their Custody and for that end assembled a multitude of armed Men which is actual levying War and so makes nothing towards proving the Matter in Question which is a Conspiracy to levy War without actual levying War. Cardinal Poole's Case is to as little purpose for in the Book that Cardinal Poole wrote which was in the 27th of Henry VII in which as my Lord Coke says 3 Instit fol. 14. from whence the Author had the Case there was this passage In Anglia nunc sparsum est hoc semen ut vix à Turcico internosci queat idque authoritate unius coaluit And in the precedent part of the Letter names the King and though more Treasons in the Indictment than one are mixt together yet the Indictment did then as it hath of late conclude contra formam Stat. which may be interpreted All or any Statutes precedent to that Fact enacting Treason And if the Author will look back he will find it enacted by the 26th of Henry VIII cap. 13. That to publish that the King was an Heretick Schismatick or an Infidel was High Treason and I would fain know whether the above passage is not a good proof of publishing that the King was an Infidel and so it was Treason within the above Statute But nothing can be inferred from an Indictment never pleaded unto as was Poole's The Case of Dr. Story is as little to the purpose who as Cambden says was to have been charged with consulting with one Prestall a Man addicted to Magical Illusions against the Queen's Life and always cursing her in his Graces and for having conspired the destruction of Her and of the King of Scots and shewed the Duke of Alva's Secretary the way to invade England to which Indictment he would not plead and therefore was condemned There is no doubt but the Indictment against Story was legal and standing mute he was legally condemned but whether his accusation was only perswading the Duke of Alva to invade England does not appear nay the contrary appears by Cambden and my Lord Coke quotes the Case to prove Story being born a Subject was not an Enemy but a Traitor besides it must be remembred that at that time there were Acts of Hostility between the Queen and the Duke of Alva and so Story may well be guilty of Treason by the Clause in the Stat. E. 3. of adhering to the Queen's Enemies and in the exposition of that Clause doth my Lord Coke cite Story 's Case as if he had been attainted on that Clause And though the Author quotes my Lord Dier yet the Case was put to the Judges otherwise than the Author relates for he says If a Subject beyond Sea invite a Prince to invade the Realm and no Invasion follow that Offence that is and if the Practice be for the death of the Prince what Offence this is and how and where it shall be tryed and these Offences says the Book were held by the Justices to be High Treason for that an Invasion with great Power cannot be but that it will tend to the destruction or peril of the Prince but it is plain that if the Judges did deliver that as the reason of their Judgment they needed not have done it for that Story 's Accusation without that reason was High Treason within the first Branch of the Stat. of Ed. 3. it being for compassing the Queen's Death and was so put to the Judges And it is plain notwithstanding the report of that Book the Judges did not give that reason for their resolution or if they did there was little credit given to it for in April following as the Author says it was enacted That the intention of levying War should be High Treason during the Queen's Life which was very absurd if the opinion of the Judges was such as reported or if it were such and it were believed it had been proper rather to have declared That the intention of levying War was High Treason within the first Branch of Edward III. And it is plain If the Opinion of the Judges in Story 's Case was such as reported it gained no credit with my Lord Coke who takes notice of that Case and yet expresly says that a bare Conspiracy to levy War is not Treason within the Stat. of Ed. 3. and takes notice of the 13th of the Queen which says he is Expired The Case of Coleman is well remembred to be for Conspiring to take away the King's Life by other sort of ways than levying War and to say Truth there was such Proofs and Suspicions of the thing confirmed by what after happened that the Author if but in tenderness to his Party ought to have spared that Case As for Balshall's Case I did not think it worth my time to look the record of it I find the Author hath it out of a Paper called Animadversions upon the Lord Russel's Speech and that Author hath it out of Dr. Nalson's Collections and to say Truth the style of that and his Paper are so alike that they seem to be writ by the same Hand I think the Author might have fitted himself with a Case out of
Baker's Chronicle as much to the purpose and of as good Authority as this where one Walker said He would make his Son Heir to the Crown meaning his House whose Sign was the Crown and it was adjudged Treason and Walker hang'd for it a Case I as much believe to have happened as the Author 's The truth is the Case is not put like a Lawyer If he had said That the prittle prattle between Balshall and the Plowman had been adjudged Evidence of an intention to levy War and that such intention of levying War had been in that Case adjudged Treason he had said something to the purpose but to tell an idle story and say That that talk was adjudged Treason if true would carry no Authority with it I would fain know what part of it is Treason Was it Balshal's troubling a Man at Plow with idle talk or telling the Plowman a lye or advising him to go to K. R. who was in another World which was as much as bid the Plowman hang himself in order to go to R. 2. and so sold him a bargain I cannot indeed see against which Branch of the Statute of Edward the Third the expressions were offences Sir Henry Vane's Case was advising a War which followed and advising it while on Foot and besides it was expresly proved as I have heard that he advised the excluding the Family of the Stewarts from the Crown The Case of Constable and all the other Cases are to the same purpose because as the Author says and so was the reason of them they directly tended to depose the Queen as affirming Edward the Sixth was alive and pointing to such an one as my Lord Coke says which being accompanied with other Circumstances was good Evidence of his intention to depose the Queen And even that Case may answer Balshall's Case in affirming Richard the Second to be alive for then Henry the Fourth was not rightful King But I am sure neither prove an intention to levy War to be High Treason but a repetition of a number of Cases makes a Mutter and a Noise It is strange that the Author should cite Throgmorton's Case as a Case for him whereas it is against the express Authority of my Lord Coke who quotes Throgmorton's Case for his Opinion That conspiring to levy War is not High Treason and the express Authority of my Lord Dyer who reports that Case and gives the reason That Throgmorton was guilty of Treason because Wiat with whom he was concerned actually levyed War. If A advise B to kill C who does it it is Murther in both if B doth it not it is not Murther yet A is equally guilty of the Consult the Author would do well to shew the reason of the difference between this Case and what he puts It is strange the Author should say Owen's Case was only for disswading People from their Fidelity whereas he says himself his Crime was his saying the King might be killed and it was no Murther Are the Cases of Burton the Duke of Norfolk Sparhawkes Awater Heber or Crohagan to the purpose when the Author confesses their Crimes were denying the King's Title to the Crown and endeavouring to settle it on another Head which are direct Evidences of an Intention to depose the King which none ever yet denyed to be Treason though the Author mistakes for Burton was indicted on the 13 El. and it was for conspiring to pull down Enclosures the Duke of Norfolk was indicted for conspiring the Death of the Queen and adhering to Herris the Scot and others the Queens Enemies and for that purpose is the Duke's Case cited in my Lord Dier and my Lord Coke In Sir W. Ashton's Case nothing but the Indictment appears and it doth not appear that any Judgment was given on that Indictment and if there were it is plain his Crime was endeavouring to set up the Duke of York who had right to the Crown and depose Henry the Sixth The Offence of Germain and Taylor if they were two Persons but Taylor seems to me to be the addition of Germain was for endeavouring to Depose Edward the Fourth and compassing his Death what the Evidence against him was doth not appear Burett's Indictment was for compassing the King 's and his Eldest Son's Death by Witchcraft and Necromancy and it adds likewise That he endeavoured to stir up War by scattering Ballads where the scattering Ballads is rather an Overt-act of his intention to levy War than his intention to levy War an Overt-act of his compassing the Death of the King or the Death of his Son. Collingbourn's Case was for compassing Richard the Third's Death and adhering to the Earl of Richmond and other Traitors and scattering Ballads to move an Insurrection The Viscount Stafford's Case was for compassing the King's Death and the Evidence was of Consults tending that way and the Authority of that Case ought to have been spared for the same reason that Coleman's Case ought not to have been mentioned The Legality of Colledge's Indictment hath been questioned and was questioned by Colledge as appears by his Trial licensed by his Enemies and if those in whose Custody he was had not robbed him of his Papers he had raised such Objections that his Enemies neither then nor since would have been able to have answered And though the Author says he armed himself and advised others to do the like yet there was no pretence of Proof that he did or advised others so to do on any other account than to defend him and themselves which is indeed an Overt-act of an intention to defend himself but not of offending others the first of which at that time was though never at any other time hath been construed High Treason But how vain is the Author to quote the Proceedings in that Trial to justifie the Proceedings in the Lord Russel's Trial when two of the Judges were the same which sate on both Trials What the Indictment against Sir Henry-Vane was I know not and I did not think it worth my time to enquire It is plain his Crime was making War and deposing the King both which as it is said were proved against him And if in his Indictment and the Indictments of Monmouth's Men it was added That they compassed the Death of the King it was only added as an additional Treason and the levying War which was so exprest in all the Indictments in the West was not so exprest as an Overt-act of compassing the King's Death but as a distinct Treason within the Statute of Edward the Third though if it should be granted that levying War is an Overt-act of compassing the King's Death it doth by no means follow that an intention to levy War is an Over-act of compassing the King's Death which is what the Author is to prove And now after all the muster of words the Author hath made there is not one Case he hath cited which proves That the intention of levying War is high Treason
What Sir William Jones said in the Viscount Stafford's Case I do not remember but it was plain his Accusation was for compassing the King's Death by under-hand dealing And though that taking the King Prisoner is high Treason yet the compassing it would not have been Treason if the Words of the Statute had not made it so no more than if the Act had said Killing the King should be Treason to inferr therefore compassing his Death should be high Treason For is it not begging the question to say Therefore consulting to do it is high Treason For where is the Consequence Coining of Money is high Treason Doth it therefore follow that designing to coin Money is high Treason And a much more remote Consequence is it to say compassing the seizing the King's Guards is compassing the King's Death I deny that designing to seize all the Forts in England is high Treason within the first branch of the Statute of Edward the Third nay the actual seizing them was not thought high Treason within that Statute and therefore the Statute of the 14 Eliz. expresly enacts That the seizing or keeping of any of the Queen's Castles or Forts from her shall be high Treason during her Life which shews it was not Treason before But if it were high Treason within the Statute of Edward the Third it is within the Clause of levying War and not the Clause of compassing the King's Death To what purpose was it to find fault with Rouse's Indictment Was not he tried the day after the Lord Russel was tried by the same Judges And I dare say the Author doth not think Rouse guilty of high Treason Rouse and Leigh were only tricking one another in which Leigh was too hard for him and Rouse died for the same But how vain is the Author to quote the Judgment of the very same Judges in other Cases to make good his Thesis in the Lord Russel's Trial when he cannot but remember how exploded and laughed at the Argument was of a certain Judge at the Old-Baily when the question was Whether a Soldiers flying from his Colours was Felony without Benefit of Clergy a Case too plain to bear an Argument either way who had nothing to say for it But that if the Law was not so he had hanged many a Man wrongfully It is strange to find an Author in so short a space as a sheet of Paper affords to be guilty of so many Repetitions and it would be idle to repeat the Answer to them Where did the Author find that by our Law the King must not cannot assault strike seize attach or imprison in defence of Himself No Man said it before the Author The Law were defective if it were so and fit to be altered It would be worse than binding the King to his good Behaviour It is true the King cannot execute the ordinary Offices of a Magistrate but remit them to be executed by some commissioned by him but what done in his own Defence is a matter of a quite different nature A Judge ought not to strike a Man but no Man said That if assaulted he might not fight in his own defence which he certainly may justifie It is one thing for a Judge to strike by way of punishment which he ought to leave to his Officers another thing to strike in his defence And now is the Author in the repeating strain of his Inferences and I must leave it to the Reader to judge whether what he here or elsewhere hath said overthrows the distinction between an actual seizing and an agreement to seize the Guards I am sure his closing Reason that both have a tendency to thing intended edifies little The King cannot live unless he eats he cannot eat without having his Meat drest he cannot have his meat drest without a Cook ergo he that kills the King's Cook starves the King and is guilty of high Treason It is very odd for the Author to think he can evade the Objection that Words were not Treason within 25. Ed. 3. because enacted to be so for some time by a saying That that Statute was a Complement to a new-Crown'd head what can he say to the Statutes of Hen. 8. and of the Queen which were made when the Crown had been many years on their Heads And why should he say That those Statutes as to words were affirmative of the Old Law when all the Judges in Hugh Pine's Case in Crook Car. on view of most of the Cases cited by the Author adjudged That no Words were Treason within the Statute of Edw. 3. Constable Sir Henry Vane and Dr. Story 's Cases have been answered before Plunkett was adjudged by some of the Judges which sate on my Lord Russell and I dare say few believe Plunkett guilty of the pretended Crime he died for but it was to make the World believe that Justice was impartially administred he was to be and was hanged ding dong against Fitz-harris to keep Tyburn steady It was feared that if Fitz-harris had hanged alone Tyburn would have warped or enclined to one side and therefore they were both hanged the same time on the same Gallows to keep it upright There remains but one Case to be answered though the Author would have them two Cases which is the Lords Gray and Cobham and Sir Walter Raleigh which I confess is an exact parallel Case in the truth of the particulars of it with the Lord Russell's Case though not in the Accusation as I think will be made appear Every Man knows because it was but few years past that the Lord Russell was a Person zealous for the Protestant Religion and an Enemy to Popery he was for that Reason very active in the matter of a Bill of Exclusion of a Popish Successor and as I have heard carried it up from the House of Commons to the House of Lords He was one who was for the prosecuting the Lord Viscount Stafford who suffered death for compassing the Death of the then Protestant Possessor of the Crown the then presumptive Heir of the Crown was at that time eclips'd but having recovered his Power and as the Lord Holles observed in his Letter to Monsieur Van Benningham governing all at White-hall Some few years afterwards the Lord Russell was brought to the Block upon pretence of the Treasons mentioned by the Author The Case of the Lords Gray Cobham and Raleigh was this They were all zealous for the Protestant Religion and affectionate to the Person and the Service of the then reigning Queen both which they thought in danger as long as there was expectation or probability of a Papist's coming to the Crown which would be as long as the Queen of Scots lived and continued to profess the Popish Religion They well enough knew that if the blow was struck the Law would be of the side of the Assassines They had seen many designs upon the Person of the Queen upon that encouragement they saw a Storm coming from