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A43107 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. written by John Hawles ... Hawles, John, Sir, 1645-1716. 1689 (1689) Wing H1189; ESTC R12198 38,849 39

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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 Chàracter 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
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
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
two that the Elder should fain himself mad and the Custody of him and his Estate should be begged by the younger It was done as agreed The King returning the elder would needs be compos mentis which the younger would by no means admit but kept him in private and in the dark By accident the elder found a way to discover the Oppression to a Friend and desired him to consider how to relieve him Accordingly the Friend suggested this matter to the Chancery which Court made an Order for the youngers bringing the Elder Brother into Court which was done the poor man being relieved from imprisonment and darkness and having not convers'd with any person but the above Friend for a long time and that but once during his Confinement was overjoyed when in Court and consequently very lavish of his Tongue of which the younger Brothers Council took notice and said My Lord you may easily see what this Man is in his Understanding by his much talking To which the suspected Mad-man replyed as to the Council Sir if you had been restrained from speaking so long as I have been you would be glad to make use of the liberty of your Tongue when allow'd you upon which the Custody of him and his Estate was discharged but I own it was the saying of a suspected Mad-man and therefore not worth regarding or applying I confess I should have guess'd that one of those four Reasons had been the Motive of writing this Sheet of Paper for I cannot call it a Book and I will not be so unmannerly as to call it a Libel or Pamphlet because if if it was not written yet it was perused and appoved of by all the Criminals in my Lord Russells Sufferings but that the Author himself gives us the reason of writing it by way of excuse that it was for the support of the Government he writ it It is true he says the support of the Magistracy and Government is a noble Theme so that the Words made one hope he intended his Discourse of Magistracy and Government in general But in that he as much deceives the Reader as in his Title Page for there is not one word in his Discourse more of Magistracy or Government than that Encomium But I find he intended nothing but the Justification of the Government in the particular Act of putting the Lord Russell to death and therefore If I had been his Adviser he should never have made so large a Porch but made it suitable to his House and entitled it The Magistracy and Government of England vindicated in condemning and executing the Lord Russel and if the Author had a mind to it tho he needed not I would be content he should have added by way of Answer to the defence of the late Lord Russells Innocence c. the Paper in no part of it pretending to more than what that Title fully comprehends and being so is one of the hightest Atfronts that ever was put upon the Legislative Power which out of a Sense of that Lords Innocence and of the Irregular Proceedings against him so cunningly couch'd that it was at least doubtful whether by any ordinary Course of Law right might have been done to his Memory and Children have thought fit by an Act for that purpose to reverse the Attainder At this time of day none would have thought that a necessity should happen of writing upon such a Topick when every English Protestant was entertaining himself with the pleasing prospect of Impartial due and indifferent Administrations when Authority was becoming amiable and easie to the People when the People were inclining to a zeal and affection for the Honour of Magistrates in short when the Law was recovering its clouded credit in this Conjuncture none expected to see all the Pillars and Posts in the Town dawbed with plentiful Title Pages like so many Histriomastrix's of Will. Prynn's directing their Spectators to Books of Obloquy and Reproach not only on the Persons and Opinions but the Authority of Judges when neither of the three are corrigible or so much as censurable any otherwise than in and by a Parliament much less was it expected that Gentlemen of the Long Robe would appear in Print for to ridicule their own Profession and expose our Law even to the scorn of Foreigners It would not have been so very strange to have seen a Doctor of the Commons exercising his Wit and Raillery on the Common Law Proceedings when he saw his dearest Diana I mean his Excommunication-Process in danger of becoming useless and a fair occasion given him for such an Essay from the Disgust of the People against Westminster-Hall Had any thing of this kind been done in the time of the Government which this Paper pretends to vindicate it was ten to one but that he had taken a walk from Aldgate to Newgate for it and from thence to Tyburn and it was well if he escaped a swing there it might have been High Treason within the Stat. of Edw. the 3d. for it scandalized the Government consequently alienated the Affections of the Subject from the king which tends to an Insurrection or Rebellion consequently is compassing and imagining the death of the King and so the last is as natural a consequence from the first as King Pepin is from Napkin Nipkin But this Author had the good Fortune to write in a better time when we are not only entertaining our selves with the Prospect of but we are well assured impartial Justice will be administred c. But for all the Authors lushious commendations of future times methinks he a little forgets himself for if Authority is but becoming amiable and easie to the People and the People but inclining to Zeal for the Honour of Magistrates and the Law but recovering its clouded Credit there was a time when Authority was not amiable or easie to the People nor the People inclining to Zeal for the Honour of Magistrates and the Law clouded and if he admits that it will be hard for him to vindicate the Government in those times and even against himself he shews a necessity of enquiring into the reason of those things We do not applaud but accuse the negligence or wretchlessness of that man who recovering out of a great sickness be it a Feavor or the like doth not consider what threw him into that Distemper whether it was a Cold a Surfeit or what else to avoid the like Disease another time And it is plain that Persons that can stand by and see others though their nearest Relations desected do not do it as taking pleasure in seeing the Corps of their deceased Friends mangled but to know what carried them out of this World to prevent the like disaster if they could in the surviving What hath been may be again It is fit therefore at this time to see the Cause why Authority was not amiable to the People and why the People had not an affection for the Magistracy and Government
this Realm and that was held an Overt-act of imagining the King's Death In the Lord Cobham 's and Sir Walter Rawleigh 's Case a Conspiracy Consult and Agreement to promote an Insurrection and procure an Invasion was held an Overt-act I Jac. 1. and their meeting consulting and agreeing was laid as an Overt-act though discovered before the thing took effect Dr. Story 's Case which is mentioned by the Lords Dyer and Coke was no more than a Practice and Persuasion to promote an Insurrection and Invasion and the Overt-act that was alleadged was the writing of Letters for that purpose which is no more influential towards it nor so much as frequently meeting consulting and conspiring and at last concluding and agreeing to make an Insurrection The Case of Mr. Coleman was no other for whatsoever the Indictment laid the Evidence was only of Letters to the like effect as to this point with those of Dr. Story and that Case of Dr. Story was before the 13 Eliz. which made a new Treason during her Life for the Tryall was in Hillary Term and the Parliament did not begin till April following A Machination or Agreement to raise a Rebellion naturally tends to the Destruction both of King and People and an Advice to it hath been adjudged so as in the Reign of Hen. 4. one Balshal going from London found one Bernard at Plow in the Parish of Ofley in the County of Hartford Balshal told him that King Ric. 2. was alive in Scotland which was false for he was then dead and advised him to get Men and go to King Richard in Mich. 3. Hen. 4. Rot. 4. you 'll find this adjudged Treason Throgmorton 's Case is as plain for his was only a Conspiracy to levy War within this Realm he did not joyn in the Execution and the Conspiracy alone was declared to be a sufficient Overt-act by the Judges 'T is no Answer to it to say that a War was afterwards levied for quoad him 't was a bare Consult his Offence was no more than that In Sir Henry Vane 's Case meeting and consulting were alleadged and held to be Overt-acts The Case of Constable mentioned in Calvin 's Case was only an Act tending to deposing the Queen as dispersing Bills in the Night that Edw. 6. was alive in France and held an Overt-act declarative of his compassing her Death and he was executed for it and in the Report of Calvin 's Case you have several other Cases mentioned where endeavours to withdraw Subjects from their Allegiance have been adjudged Overt-acts of this species of Treason the compassing c. The word Compass in the Statute is of a larger extent than only to mean an actual Assault on the King's Person and an endeavour to cut his Throat it most certainly implies any consult or practice of another thing directly which may produce that effect as dissuading people from their Fidelity such was Owen 's Case in K. James 1st's time in the 13th year of that Reign his Advice was to this effect That King James being excommunicated by the Pope might be killed by any man and that so to doe was no Murther for being convicted by the Pope's Sentence he might be slaughtered without a fault as an Executioner hangs a Criminal condemned by Law and for this he was hang'd as a Traitor He that denies the Title to the Crown and endeavours to set it upon another's Head may doe this without a direct and immediate desiring the Death of him that wears it so said Saint-John in his Argument against the Earl of Strafford and yet this is Treason as was adjudged in the Case of Burton and in the Duke of Norfolk's Case 13 Eliz. This denying of the Title with Motives though but impliedly of Action against it hath been adjudged an Overt-act of compassing the King's Death as it was in John Sparhawk 's Case Pasch 3 Hen. 4. Rot. 12. The like was the Case of John Awater who was indicted for a Treason of that ture in Kent and the Indictment removed into B. R. Trin. 18 Ed. 4. see Rot. 17. and he was thereupon afterwards outlawed as a Traitour and so was Thomas Heber at the same time and words significative of an actual intention have been held so as are the opinions in Yelver 107. 197. Arthur Crohagan 's Case Cro. Car. 332. and abundance of others might be named as they are reported in our Law Books but I do not particularly mention them for that their Authority in some of them is very slender and may be ill used to the straining of rash and unadvised Words into a signification of a man's compassing when perhaps the man never thought as he spoke however all of them do evince that advised and deliberate Preparations moving to a danger to the King's Person have all along been held Overt-acts of a compassing his Death and some of them prove that Preparatives and Motives to the levying of a War have been held Treason as was Sir William Ashton of Suffolk 31 Hen. 6. mentioned in Cro. Car. 119. for making Ballads reflecting upon the King and writing Letters to the Men of Kent exciting them to rise to aid the then Duke of York c. ad guerram levandam and no mention of any War actually levied Germain and Taylor 's Indictment hath very little more in it mentioned than the like Preparations and Incitements to a Rebellion and yet the Treason there laid was a compassing the King's Death anno 2 Edw. 4. as at large appears in the same Report of Cro. Car. amounts to no more than the Indictment in question viz. That he compassed the King's Death and to accomplish that Intention he dispersed divers Writings c. ad intentionem that the People should rise and levy War c. the Judgment in that Case Drawing Hanging and Quartering the like is Collingbourn 's Case 2. Rich. 3. in the same Rep. 122 where he is indicted in like manner for exciting and moving the People to an Insurrection and War and he incurred the like Judgment which Cases are infinitely short of this in question and it cannot but be wondred that any man who has read them should question whether a consulting and conspiring about rising and an actual agreement and determination to rise be an Overt-act of compassing the King's Death In the very Tryall of the Lord Stafford is it affirmed by Sir William Jones who was certainly of great Authority with the Authour that the meeting and consulting together is an Overt-act though the thing agreed on be never put in Execution and 't is there resolved by the Judges that the same Treason may be proved by two Witnesses to several Overt-acts though one speak of Words or Actions that were spoken or done at one time and place and another speak of Words or Actions at another time and place which argues that Words much more a Consult and Agreement may make an Overt-act Even in the Case of Stephen Colledge in which though
does not distinguish it in its reason from that in dispute He denies the Authority and Law of Dr. Story 's Case which no body ever denied before him He says that in the Lord Cobham 's Case there were People assembled but gives not any Answer to what the Antidote affirmed viz. that the Overt-act taken notice of in the little Book called The Pleas of the Crown was only the conspiring to make an Insurrection He doth confess that in the Lord Gray 's Case there was only a Conspiracy He says that in Sir H. Vane 's and Plunket 's Case there were several other Ingredients to mount them to Treason but what they were no body must learn at least not from the Author for he names none of them He consumes half a page in an Encomium upon the Judiciousness of that Court which made a consciencious legal Scruple whether the Murther of a Mistress by her Servant were Petit Treason by reason of the difference of her Gender but at last he tells us That the Judges of the Common Pleas did upon much deliberation satisfie those of the King's Bench that Master and Mistress were in effect but one The Indictment contained no new constructive Treason but only that which was plainly and directly declared in and by 25 Edw. 3. if the letters of it make words and the word sense and one man may be allowed able to read them as well as another Since the writing of the last Paragraph there came to my hands another Pamphlet written by a New Observator but I suppose the Judges that shall be will correct that sort of Licentiousness which he assumes in his Remarks which if they do not they 'll have fine easie Places on 't as well as their Predecessours and much good may it doe them Aetas parentum pejor avis tulit Nos nequiores mox daturos Progeniem vitiosiorem Horat. The Truth is the Indictment though I think it was not good yet it was the least defective of any thing in that whole prosecution the Evidence was the most defective which the Authour dares not bite at and yet the Authour doth not pretend it amounted to more than an intention to levy War which is not Treason within the Statute of Edw. 3. he quotes indeed a great many Cases to prove his Thesis to every one of which something shall be hereafter said only at present I cannot but wonder at the assurance of any man who pretends to understand the Law when the Parliament which is the supreme Court of Judicature in the Nation hath so often adjudged that it is not Treason within the Stat. of Ed. 3. that he should think to confront and over-rule those Judgments by Judgments given at Westm or at the Assizes Surely it is as ridiculous as if in any Court at Westm a Counsel should think to ever-rule a Judgment given there by the Authority of a Judgment given in an inferiour Court by a Steward or a Bailiff that Person was excusable because he did not pretend to understand Law who said in Parliament that if they did not doe him right there he would not abide by it but would bring the Matter into Westminster-Hall For is not the Stat. of C. 2. which makes a Conspiracy to levy War during the King's life an express Judgmt of the Parliamt that it was not Treason within the St. of E. 3. is not the St. of the 13. of the Q. which made it Treason during her Life another express Judgmt in the same Case to the same purpose And is not the Judgmt of the Parliamt as it is the supreme Court of the Nation of more Authority than any Judgmt in Westm Hall and much more than any Judgmt at the Assizes or Sessions Besides consider the Parliamt which consists of all the Nobility assisted with all the Judges and of the best of the Gentry and assisted with Lawyers and none can doubt which Judgmt ought to carry most authority with it Consider the imputation which is laid on the St. of E. 3 by such construction a St. seemed to be penn'd with all Wisdom and circumspection imaginable out of a sense of what the Subjects had suffered by the uncertainty of the Law before and which in all ages hath been applauded for the best penn'd Act to be found and which in all ages hath been made the Standard of Treasons for when out of Flattery or in compliance with the King Treasons have been multiplied out of a sense of the mischief they have afterward still been restrained to the St. of E. 3. and yet by this construction that St. is made guilty of an absurd tautologie for if conspiring to levy War be compassing the K's death which by that St. was Treason it was absurd afterwards to say that actual levying War should be Treason because a War cannot be actually levied without a Conspiracy to do it though there might have been a Conspiracy to levy War and yet not afterwards actually levied And the true Reason of the difference is this What tends to the mischief of the King's Person every one knows but what is War is not so certainly known Those who went to throw down Enclosures did not think it to be levying War though it were so and it would be hard to make their consulting to do it high Treason I do not instance in this as a parallel Case with the matter in question but only to shew that what is War or not War is not so easily known as at first sight apprehended and the Makers of this Statute who had smarted by pretence of levying War were more strict in penning the Clause of War than they were in penning the Clause of Compassing c. In the time of Henry the Fourth in the Earl of Northumberland's Case it was doubted whether his riding armed with a Force for a private Revenge was not levying War which was a Doubt so great that it was resolved in Parliament to be only a Trespass And if what is War is so uncertain the intention of levying it is more uncertain Let any one but remember how narrowly Blague escap'd but for talking of the feasibleness of taking the Tower. Now though I agree That conspiring to depose or imprison the King is high Treason within the first branch of the Statute of Edward the Third because they destroy him in his politick Capacity it is no manner of inference to say therefore conspiring to levy War is high Treason within that Statute because if the Conspiracy took effect the Death or Deposing the King doth not naturally much less necessarily follow nay it very rarely hath so done And let any one examine our Histories it will not be found to be a Consequence once in forty times whereas if a Conspiracy to depose or imprison the King if it take its effect he is actually deposed or imprisoned The first Conspiracy is remote the last is next the Deposing a distinction of great use in our Law and in Treason
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
Spain which fell out in 88. and Protestant Subjects were not safe in assisting and had no encouragement to assist their Protestant Princess as long as there was fear they might be in danger of their being punished by a Popish Successor for which reason they were of Opinion That the Popish Successor might not only be excluded but might and ought to be the Law being of their side removed out of the World which was done in 1587 for which when Davison was questioned in the Star-Chamber the Lord Grey was against his being punished and would have had him rewarded for which he gave his Reasons in a very eloquent Speech remembred by Cambden This as it had reason provok'd her Son who was to be and was the Successor to the Crown Some time after the Earl of Essex having lost that Favour and Power which he thought he deserved at Court as it is natural betook himself to the Successor and though it was concealed for some time he became a great Favourite to K. James the First The L. Cobham and Raleigh were profest Enemies to the Earl of Essex who gave them a greater advantage over him than they could have hoped for by breaking out into an act of open Rebellion for which they took care he should not escape His Death was much regretted by K. James though he durst not take notice of it to the Queen The Queen dying those three Persons had reason to fear punishment from the King and therefore would have had if they could have prevailed the King admitted on Articles but being not able to carry that point the Lord Cobham and Raleigh thought to have made their peace by meeting the King on his Journey congratulating his Succession to the Crown and offering him their Service but were not permitted to come to him and had Word sent them They might spare their labour which presaged no good to them The King came to London in May and in July following was the pretended Plot discovered and in November following the pretended Delinquents were tryed at Winchester together with Watson and Clark Their Accusations were in general first to set the Crown on the Lady Arabella's Head and to seize the King. Secondly to have a Toleration of Religion Thirdly to procure Aid and Assistence from foreign Princes Fourthly to turn out of Court such as they disliked and place themselves in Offices Of these the first Article is Treason what Crimes the rest are is doubtful what of them was proved against the Lords Cobham and Gray Watson and Clark or how their Tryals were managed doth not appear But Sir Walter Raleigh's Tryal does appear and is much like the L. Russel's and therefore of some Circumstances of it I think it is fit to take notice Instead of Consults c. in the L. Russel's Tryal the cant-Words of the surprizing the Bie and the Main were made use of in Sir Walter 's interpretable as the Council thought fit at least it was astonishing to the Jury which was all that was design'd by the Council and fatal to the Prisoners I have no mind to run through all the ramble of Sir W. Raleigh's Tryal as it is printed before his History of the World because the parallel is too exact and sticks too close to the Memory of Persons gone only I will say That if Sir Walter Raleigh was guilty of the things he was accused of by the Witnesses though the Accusation did not amount to a legal Proof it was high Treason but if the L. Russell was guilty of the things he was accused of he was not guilty of high Treason But yet I think it is fit to take notice of some extraordinary things in Sir Walter 's Tryal particularly that when the Prisoner said he was tryed by the Spanish Inquisition if he was try'd by Circumstances without two Witnesses it was told him that was a treasonable Speech It was told him by the Court that the Statutes of the 25. Ed. 3. and 5. Ed. 6. were repealed it was told him that his Accuser need not be brought face to face to him nor subscribe his Confession 't was enough that there were Hands of credible Persons to testifie the Examination it was told him that a Man might be condemned by the Testimony of one Witness nay even without a Witness in Treason He was accused that he heard the Lord Cobham speak of Pensions from Spain he said he could not stop the Lord Cobham's mouth he was accused with having given the L. Cobham a Book treating against the King's Title to the Crown he said he did not give the L. Cobham the Book the Lord took it off his shelf and that himself never read it or urg'd it the Attorney said that was cunning Sir Walter reply'd That all that made for him was call'd cunning what made against him was probable The Prisoner was told that by Law his Accuser not only need not be brought face to face to accuse him but the Witness ought not to be produced lest he should recant what he had said One Dyer testified That a Gentleman he knew not whom at Lisbon told him Don Cobham and Don Raleigh would cut the King's Throat before he was crown'd the Attorney told him he was by when the Earl of Essex dyed Sir Walter produced a Letter from the L. Cobham wherein he acquitted Sir Walter of all he had accused him of the Jury found him guilty Sir Walter said the Jury must do as they were directed he complained of the wrong the Attorney did him Brook said that what he did in that matter was to try faithful Subjects and that he had a Commission for so doing but produced none Sir Walter in his Speech on the Stage took notice of several Calumnies raised of him particularly that he had spoke dishonourably of the King to a French-man and had rejoiced at the Earl of Essex his Death both which he denied Now why the Author quotes this Case as a Case for him I cannot imagine neither the Fact Accusation or Resolution of it in any point coming up to his purpose for Sir Walter and the rest were accused of the Main which was the destroying the King and his Cubbs and setting up the Lady Arabella for Queen or at least for designing to imprison the King till he yielded to their Demands and therefore what occasion was there for such a Resolution of the Judges as is pretended that conspiring to levy War was high Treason within the Statute of Ed. 3. Nor can I find in any Book nor do I believe there was any such Resolution My L. Coke indeed says in that case it was resolved That a design to imprison the King was high Treason but in the same breath says that a Conspiracy to levy War is not Treason But if the Author intends to vindicate the late Government by shewing that in former as well as in later times there have been found Persons of the long Robe who have by irregular means brought