of my Lord R. resolves into this That he being upon good and rational Grounds determined in the belief that King Charles the Second and the Duke of Y. had conspired to abolish the Church of England and to subvert the Laws and the Government and observing the Counsels Measures and all the Proceedings of the Court to be correspondent to that End and to have a direct and natural tendency towards it He did joyn with one Judas but with divers other Great and Worthy Personages to consider how to preserve our Religion our Government and our Laws in that time of danger and distress For before the date of any of the pretended Treasonable Practices objected to him it ought to be remembred 1. That the Fountain of all our Laws and Liberties our High Court of Parliament was polluted by Court-bribery and Subornation 2. That it had been frequently and abruptly broke up and dissolved before it could perform any of the Trusts or Duties it owed to the Country 3. That there was an infamous Declaration ordered to be read in all Churches solemnly in the time of Divine Service against the Proceedings of the House of Commons which could have no other aim than to render that part of the Constitution obnoxious to the People and to make them believe it was become impracticable and unsafe for the Government to assemble them 4. That there was a mortal Wound given to the Privilege and Rights of Parliament by the Trial of Fitzhrrris in the Kings-Bench being under an Impeachment and by the Encouragement and Welcome given to the Addresses and Abhorrences of the Mobile importing a Condemnation of Parliamentary Proceedings 5. That there had been Witnesses tampered with if not actually suborned to swear divers Noblemen and Gentlemen out of their Lives 6. That there was a bold and open Incroachment on the Charter and Franchises of the City of London which usher'd in that general Desolation which succeeded on all the Corporations of England The extorting the Charters from all Cities and Burroughs by Quo Warranto's and involuntary Surrenders which divers were forced to make to save their Lands and their Charitable Donations which they were threatned should be otherwise seised did effectually encompass the Design of overturning the Government For all Writers in Politicks do agree in this Proposition That when the Legislative Power is removed or altered from that Place State or Position in which it was setled upon the Original Constitution that Government is dissolved And I think it very clear that by the Destructions of the old Charters and the Establishment of our Cities and Burroughs under the new the King had in effect usurped the whole Legislative Authority For he had before a Power over two Parts of it which were Himself and the House of Lords because he could prefer what Number he pleased of his own Creatures to be Members of that House who should vote as He should order and direct and he had now got the House of Commons under his Girdle by the Powers he reserved in the New Charters to model and change the Magistracy and the Officers who had the Conduct of the Elections and the right of returning the Persons Elected In these violations of our civil Rights some Persons as I have the Charity to believe did ingage and concur through Inadvertency not seeing through that Scheme which had been concerted between the two Brothers for the bringing about their design and these withdrawing from their Counsels when it appeared bare-faced and their being so instrumental and assisting to the late Revolution and the setling us in our present Condition of Happiness seems to Attone for past Errors 7. It must not be forgot that originally in Scotland the Priviledges of the Subject were greater and the Prerogatives of the Crown not so large as in England and yet there the old Constitution was so demolished that there hardly remained the Ruines of the ancient Government but it might be said jam seges ubi Troja fuit and there was avowedly exercised an Arbitrary and Despotick Jurisdiction The Duty and Obligation of the King was as great to govern the People of Scotland according to their Laws as to govern us according to our Law and therefore we might conclude we should receive the same fate and the same measures of Justice whenever the King should think it as safe and as feasible There were these and several other palpable steps and advantages towards Popery and Arbitrary Power antecedent to any of the Facts charged on my Lord Russell And was it not every English Man's Duty as well as Interest to endeavour a stop to the Course of those Counsels which were so directly aimed and levelled at our Church and Government And was there the least Proof that my Lord Russell's Consent or Privity extended any further IV. In Page 3. He bestows large Commendations on the Person that was the Kings Sollicitor at that time and excuses the Council by saying That every Advocate is to do his utmost and a failure had deserved the worst of Names c. I do acknowledg that in all times Lawyers have allowed themselves too great a Latitude when they Act meerly as Council and 't is an Opinion that has obtained among us That we ought not judicially to be called to an Account for any thing we offer or press in favour of our Clyent or against his Advesary so we have it in our Instructions and though I must always have a deference to the Memory of my Lord Coke and must own my Obligations to his Learned and Painful Works yet I cannot without the highest degree of Indignation consider his Conduct when he was Attorney General against Sir Walter Raleigh in his Tryal nor can I forgive my Lord Bacon for his vehement and partial streining of Law and Fact against his Patron and Benefactor the Earl of Essex in his first Tryal upon the Articles exhibited against him for miscarriages in Ireland But let it not pass for Authentick Doctrine That a Council is a Criminal or that he does not perform his Duty if he does not impose false Law upon the Court and false Facts and false Consequences deduced from the Facts upon the Jury which was plainly done in the Case of my Lord Russell as has been already and shall be in this again further evinced As to the then Sollicitor's Character if his Actings as Counsel against this Honourable Lord and some other Persons be put in a Parenthesis 't is as great as any Man of the Profession of the Law but if he were my Father I must condemn his Deportment in those Cases and some others whilst he was Sollicitor to the two last Kings V. In the same Page our Author says That the World guesses that he who wrote the Reply viz. Sir R. A. did write the half Sheet called the Justification and says 't is really sportive to read the Justifier commending the Defender and Replyant doing the same good Office for the
1. his time they are as different each from the other as the times were I have now as I had before occasion to reprove our Author for false Recitals the Justifiers never said nor wondered that my Lord Coke's Opinion was different at one time from what it was at another and he was so far from saying that his Opinion was different when he was Attorney from his Opinion in his third Institution which our Author means that he believed there was no such Resolution as was pretended in the Lord Cobham's Case because my Lord Coke did not take notice of it in his Inst where he taught a Doctrine quite contrary and also because Hales gives another Account of the Offence of the Lord Cobham than was alledged in my Lord Russel's Tryal by the Kings Council 2. I am as free to Reproach my Lord Coke for his Carriage against Sir Walter Rawleigh as I am the late King Charles the Second Council for theirs against my Lord Russel but for his Speeches in Car. 1. his time if he means these delivered in Parliament as many as I have read of them are very Honest and denote a Zeal and Affection to the Laws and Liberties of his Countrey and do not in the least derogate from the just and ancient Prerogatives of the Crown 3. Upon the whole there is nothing material here answered to the Objections made by the Justifier against the Authority of the Lord Cobham's Case quoted in the Tryal as will appear by comparing this answer with the Justification nor is there any thing said to my Lord Hales stating Cobham's Crime different from the Tryal from whence we may conclude it was more than a bare Conspiracy c. XII He says Sir Henry Vane 's Case is endeavoured to be answered by this that Syderfin mentions not the Overt-Act in the Indictment but he does say the Treason alledged was a compassing the Kings Death and every Man knows what Sir Henry Vane did to accomplish that he neither Signed the Warrant to Execute that Murder nor was he actually concerned in it The Justifier says He does not remember it printed any where but in Syderfin 's Reports for the refreshment of his Memory I 'le tell him of another Book where it is and that is Keeble 's Reports 1 Vol. 304. and there the Indictment is said to be for compassing the Kings Death and endeavouring to accomplish the Treason by Changing and Usurping the Government and Levying War which Case does directly overthrow all the Defenders Justifiers and Repliants Arguments from the distinctness or difference of the sort of Treasons 1. Here is another mistake for the Justifier does not endeavour to answer Sir Henry Vane's Case because Syderfin mentions not the Overt-Acts but he does not only endeavour but does effectually answer it because there was other Matters proved against him that did amount to a good Overt-act and tho he did not Sign the Warrant to Execute that Murder yet he was concerned in Designs for incompassing his Civil Death which is within the Act as well as his Natural 2. The Devil owed our Author a shame when he prompt him to refer us to Keeble for by that Book it expresly appears that the Changing and Usurping the Government was part of Sir Henry Vane's Charge as well as Levying War which does necessarily imply the Kings Deposition which no man ever doubted but was Treason but how comes this to be applicable to my Lord R's Case 3. This Case is so far from overthrowing all the Defenders Justifiers and Repliants Arguments from the distinctness of the Treason that 't is plainly consistent with them and all other Arguments they use XIII Then for Doctor Story 's Case 't is hard to justify it for Law whereas there are above forty places where it is cited and agreed c. if any thing be Law that is so and not distinguishable from the Case in question but that the Evidence was different which the Justifier would make a reason to invalidate this Indictment the Logick of it passeth all understanding c. 1. I do say 'T is hard to justify Doctor Story 's Case according to the summary and imperfect Report of it in Dyer but take it with all the Circumstances it is Treason and is nothing like my Lord Russel's Case who was never pretended to be guilty of adhering to a Foreign Enemy nor a design of Deposing the King as in truth Story was 2. I desire our Author to reconcile his saying here That the Justifier would invalidate the Indictment with what he said before that the Justifier admitted the Indictment to be good and only quarrelled with the Evidence but Contradictions and Incongruities are small Faults 3. If the Logick of distinguishing my Lord Russel's Case from Story 's because the Evidence against them were different be past his understanding I cannot imagine what is within the reach of his Understanding for 't is clear that the Evidence is the principal and most essential Thing to be weighed and considered 'T is true our Author has said That the Evidence was not his Province but that his Business was to defend the Court and Council I have already delivered my Thoughts upon that Expression and shall now further ask our Author one Question concerning it whether if the Evidence was short and did not warrant the Indictment it was not the duty of the Court to tell the Jury so much and that therefore they ought to have acquitted the Prisoner By his Doctrine if any Man be Indicted of compassing Death of the King and the Evidence be crossing a Riâ—er in a pair of Oars the Court is not to trouble it self about the Evidence nor to instruct the Jury of the insufficiency of it and if the Party be Convicted the Court is in no Fault because the Indictment was as good as against the Murderers of King Charles the First and the Cases are only distinguishable by the proof Now I have been all along under an Error and the unanimous Consent of the Books have led me to it that the Jurors were entirely to be determined in Points of Law by the Court and that the Court was to state the Law arising from the Proofs to the Jury and that they were only Judges of the Fact. XIV In 2d Ander Grant 's Case 't was held That when any Person intendeth or contriveth to Levy War for a thing which the Queen by her Law or Justice ought or may do in Government as Queen it 's not material whether they intend any hurt to Her Person but if they intend to Levy War against the Office and Authority of the Queen that 's enough and that Resolution overthrows the Justifiers Notion that J. S. 's design was only to defend the Laws though the 13 Eliz. was then in force it 's a good Argument to answer that Pretence 1. I have not 2d Ander by me 't is out of Print and I can't procure it tho I 've sent to several
him up as a Pageant of State and a Statue of Authority But by setling the Crown upon Their Majesties it is preserved in its true rightful and ancient Lustre Powers and Prerogatives 'T is true The Rules of the Hereditary Succession are and must have been broke when King James was laid aside and no person whatsoever could during his Life be exalted to the Throne under that Qualification for non est baeres viventis a living Man can have no Heir is a Maxim of our Laws Since therefore all thoughts of King James's Restitution were abandoned and that no person could of right lay claim to the Crown it would have been next degree to madness to appoint any person for King that was not in a capacity to discharge the Duty and Office of a King which is to defend and protect his People Such a Power I do conceive to be a more essential Qualification and Property of a Sovereign Prince than any Right or Title by Descent or Proximity of Blood for that is required by the Fundamental Maxims of Government in general this only by Municipal Laws and Sanctions So that if a People set up for their Supream Governor one that wants some Legal Qualifications the worst imputation that malice can fix upon them is that they do transgress against the Laws of their Country but if they let up one for their Governor that is not able to protect them they do certainly offend against the first and original End of all Political Constitutions which is the Publick Peace and Safety and how far the Municipal Laws of any particular Kingdom or State do retain their force when they come to interfere with the Superior Laws of Nature and Self-preservation and with the Ends of Government in general I submit to every man's consideration What our Ancestors here in England thought of this Matter may be easily collected from the great number they had of Kings de facto that were not so de jure and as no man that is versed in our Histories can be ignorant of this so no man that is any thing acquainted with with our Laws but must know they make no difference in point of Allegiance between a King de facto and de jure Whatever is High-Treason against the one is against the other nay our Books carry this matter higher and do teach us That the levying War under the Authority of a King de jure against him that is King de facto is such an indelible Character of a Traytor that he may be tried and condemned in the Reign of such King de jure if ever he happens to be a King de facto likewise As His present Majesty was the only Person able to restore to us our Religion and our Ancient Government so it was on Him alone we could have depended for the continuance of these Blessings When I reflect upon the Temper and Disposition of our English Army after the Revolution upon the Powers and Strength of France and Ireland and upon the uncertainty of Scotland I do not see how it was possible for us to have supported our selves if the Prince of Orange had withdrawn himself and his Troops from among us and left us to shift for our selves as undoubtedly he would and ought to have done if we had excluded him from any share in the Regal Office for every body knows he made such a Figure in the Government of the States General of the United Provinces as rendred him one of the greatest and most considerable Princes of Christendom and was it reasonable to expect he should have relinquished his Post in his Native Countrey and be content to live among us in the quality of a Subject Was it reasonable that he should expose his Life his Fortune and all that was dear to him to rescue us from that State of Thraldom and Misery that we and our Posterities seemed to have been condemned to and should we make so ungrateful a return on our parts as to place him in a meaner Degree and ina more private Condition of life than he was before he underwent such hazards and sustained such Difficulties for our sakes Certainly the dissatisfaction some People express at our present Establishment must be occasioned for want of a due and serious consideration of that Deliverance which Providence has made our King the Instrument of If any man maturely reflects upon the preceding and concurring Accidents and Emergencies of the late astonishing Revolution he must admit that God Almighty did in an extraordinary and particular manner direct conduct and approve the Rise Progress and Conclusion of it To conclude The setting the Character of my Lord Russel in its true and deserved Light the redeeming his Name and Memory from the stain and infamy of the highest Crimes the proving his Childrens Title to the greatest degree of Honor and Vertue on the part of their Father which by the Universal consent of all they will derive and inherit from their Mother and restoring to the Laws and Justice of England their primitive Credit and Reputation are the sole abstracted Motives which prompted me to this undertaking I have not left the least handle for malice or ill nature to suspect that what has been here said in relation to the Government or my Lord Russel is the result of any external hope of advantage or preferment or of a servile disposition to flatter such as are in Power My Resolution not to be known will both secure me against those Imputations and against that Contempt which is the reward of ill Writers I do not pretend to be of so morose nor Stoical a temper as to think that at all times and upon all occasions men should confine themselves to speak or write nothing but what is the true and real Dictates of their Judgments The extravagant strains of Flattery which Pliny bestows upon the Roman Emperors in his Panegyricks was no hindrance to his living and dying with the reputation of a very honest and sincere Person To magnify the Power of Jupiter and the other Heathen Gods in a Declaration or Poem was never esteemed Blasphemy against the Great Jehovah And if a man be to speak or write to his Mistress 't will be ill manners to tell her that he courts her for her Fortune though it be the truth I do not censure the University Orator who I 've heard did in his Speech to Charles the Second highly commend him for his Sincerity Singleness of Heart and his exact observation-of his Word and Promises for any other thing than this That he should have praised him for some other Vertues than those he was so universally known never to have practised Upon these Occasions 't is expected men should exert their Wit and Fancy not their Veracity and I cannot deny That to make truth on these Occasions the standard may be clownishness and ill-breeding But I 'm sure I would as soon cut off my Right Hand as suffer it to write any thing that is not the result of my sober and deliberate Thoughts and Judgment upon so serious weighty and solemn a Subject as I have here presumed to discourse upon FINIS Books Printed for Richard Baldwin THE History of the Most Illustrious William Prince of Orange Deduc'd from the first Founders of the Ancient House of Nassau Together with the most considerable Actions of this present Prince The Second Edition A Collection of Fourteen Papers Relating to the Affairs of Church and State in the Reign of the late King James The Character of a Trimmer His Opinion of I. The Laws and Government II. Protestant Religion III. The Papists IV. Foreign Affairs By the Honourable Sir W. Coventry The Third Edition carefully Corrected and cleared from the Errors of the first Impression An Impartial Relation of the Illegal Proceedings against St. Mary Magdalâ—â— College in Oxon in the Year of our Lord 1687. Containing only Matters of Fact as they occurred The Second Edition To which is added the most Remarkable Passages omitted in the former by reason of the Severity of the Press Collected by a Fellow of the said College The Absolute Necessity of standing vigorously by the present Government Or A view of what both Church-men and Dissenters must expect if by their unhappy Divisions Popery and Tyranny should return again A Defence of the Late Lord Russells Innocency By way of Answer or Confutation of a Libellous Pamphlet Entituled An Antidote against Poyson With Two Letters of the Author of this Book upon the Subject of his Lordship's Tryal Together with an Argument in the Great Case concerning Elections of Members to Parliament between Sir Samuel Barnardiston Plaintiff and Sir William Soames Sheriff of Suffolk Defendant In the Court of King's Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber The Lord Russel's Innocency further defended by way of Reply to an Answer Entituled The Magistracy and Government of England Vindicated Both writ by Sir Robert Atkyns Knight of the Honourable Order of the Bath and now Lord Chief Baron of His Majesty's Court of Exchequer
in words at length Indeed he does say That it was agreed to be so in the House of Commons 1 Jac. 2. and when a Motion was made to renew that Law the Lawyers answer was That the 25 E. 3. did the same thing I have enquired of some diligent and observing Members of that Parliament concerning the truth of this Allegation and they assure me there was no such Answer made by the Lawyers nor no such thing agreed by the House but they give me this Account of the matter There was a Bill brought in to renew the Statute of 13 Car. 2. and upon the second or third reading it was moved by Mr. Tipping 't is for his Credit to be named That there might be an explanatory Proviso That Preaching Writing or Speaking against Popery and against the Doctrines and Principles of the Church of Rome should not be construed or intended within the intent of the Act. This was thought so reasonable that it was immediately agreed unto and a Committee appointed presently to withdraw into the Speaker's Chamber to pen the Proviso and the Bishop of St. Asaph came there to be assisting in it Upon this the Bill was dropt and let fall and no man ever after pressed it further which may give all men satisfaction what use was at that time designed to be made of it and that all our Learned Clergy who did since Preach and Write against Popery would have been in danger if the Bill had passed to have been construed into a Treason Praemunire or some other great Penalty within the intent of that Bill to the ruine of Them and their Families This was in King James's first Parliament when we had the most simple plain and solemn Assurances of Protecting our Religion and our Laws that was possible to be devised It does now sufficiently appear how insufficiently our Author has answered this Argument of the Justifier 'T is true he does make an Apology and a very pretty one it is That he is confined to a Sheet and therefore cannot enlarge He says when he comes to answer Mr. H. That he wants time But I desire to know How it comes that he cannot spare time or that he is limited to a Sheet Who is it that does set these bounds unto his Writings It were to be wished That the person who has so great Authority over him as to confine him to a Sheet would improve it a little further and engage him not to write at all If it had been a year ago I should have presumed he were thus streightned from the attendance he owed to some great Place for I believe truly his Parts Learning Integrity and other Qualifications could not fail of recommending him to an Eminent Office perhaps a Recorder of a Great City or the like in the late Reign The Reader may observe what sort of man he is who when he is gravell'd and can offer nothing of Reason is forced to have recourse to so poor and pitiful a shift as to pretend he wants time or that he is confined to a Sheet which bears the Price of four Sheets and considering the value of if he might have afforded more of them for our Money X. In the same Page he observes That the Justifier lays down a Rule for Construction of Statutes That a thing particularis'd in one part is not to be construed within the general words of another part but that Rule has near fourscore Exceptions in the Books Besides it comes not to this Case for here is compassing the King's Death made Treason and declared by Overt-act then levying War is made Treason Now says the Repliant nothing can be an Overt-act of the first that does any way concern the latter which is a Non sequitur c. 1. 'T is very true the Justifier does lay down the Rule and does thence deduce That conspiring to levy War cannot be within the meaning of the Clause of Compassing the King's Death in the Stat. E. 3. because levying War is particularly mentioned in the Statute after 2. The Rule is admitted but it has it seems near fourscore Exceptions though by reason of the misfortune of our Author 's being confined to a Sheet or time being wanting he has not obliged his Reader with one of that great number It would have been much more material for him to have shewed That any of the said Exceptions or the Reason of them did extend to the Point in Question than to tire his Reader with a long impertinent Preface and a tedious insignificant Digression of the King's Prerogative of Peace and War which take up two or three Pages If he had omitted these he needed not to have exceeded the Standard of a Sheet and yet have room enough to have given better and more satisfactory Answers if he could 3. The Consequence That conspiring to levy War is not an Overt-act of the Compassing c. because it belongs to another species is clear from the express words of Coke and Hales which see in the Justification And if the Makers of the Statute had designed to conclude Conspiring c. it would not have cost them above three words more to have added it to the Clause of levying War where it would have more properly come in then under the Clause of Compassing to which it has no Relation nor no Man could dream of finding it The positive Opinions of Coke and Hales the Authority of a Rule of Law and the consideration of the motive and end of the Statute which all make against our Author do justly merit so great a Complement and Respect to be paid them that the Case should be admitted to be doubtful and if it be doubtful then by the express Direction of the Act the Judges ought to have suspended their Judgment till they received the Determination of the Parliament Our Author refers to the Sheet for several Instances to the purpose I have examined a great many of them at length I was weary and I 'le assure him there was not one that warranted the Judgment in my Lord Russel's Case Mr. H. has been so particular in answering them that he has saved all others the Labour I do not say but that there has been as extravagant Opinions as this as in the Case of him who said His Son was Heir to the Crown meaning a House that had a Crown for a Sign to it and of him Who wished Stag-horns and all in Kings Belly meaning one of that Name c. These and the like were in violent corrupt times adjudged Treason but no man ever defended these Resolutions or esteem them to be Law tho they have the Sanction of the judicial Opinions of their side XI He proceeds and says The Lord Cobham 's Case is endeavoured to be answered by a wonder that Sir Edward Coke late Lord Chief Justice and then Sheriff should differ from Mr. Attorney Coke for we know his Thoughts in Sir Walter Rawleigh 's time and in his Speeches in Car.