to a particular end that Man may certainly be said to intend and design that end Causa causae est causa causati If the Deed tend and conduce to the Execution of the Treason that 's a sufficient Overt-act says Coke 3 Inst 12. and in the same Book fol. 6. he hath these words That he who declareth by Overt-act to depose the King is a sufficient Overt-act to prove that he compasseth and imagineth the Death of the King and so it is to imprison the King to get him into his Power and to manifest the same by some Overt-act this is also a sufficient Overt-act for the Intent aforesaid Having trackt the Authour thus far to very little purpose still expecting what he would say in Justification of the English Method of Proceedings against Criminals particularly against the Lord Russell with which I can by no means be reconciled I was a little surprised to find him begin with a Justification of the Indictment I expected he should have said something to justifie the clapping that Lord up close Prisoner without letting him know why or wherefore the bringing him to his Tryall assoon as he was indicted not giving him the respite of an hour to prepare himself for his Defence and have shewn a Reason why no Freehold was no Challenge to a Juror in his Case which was allowed to be a good challenge in Fitzharris his Case have shewn a reason why hear-say was not as good Evidence for the Prisoner as it was against him and why the Court permitted hear-say to be given in Evidence against him and would not permit it to be given in Evidence for him these and twenty other things complained of in that Tryall By the Title of the Paper one would have expected that the Authour would have vindicated the manner of proceedings rather than the opinion of the Judges construing such or such Facts to be such or such Crimes But since the Authour as he had reason hath thought fit to pass by all the irregularities of the Tryall and ties himself up only to prove the Indictment good and legal and the resolution of the Judges to be Law I shall therefore only speak as to those two matters The Indictment was for compassing and imagining the death of the King and conspiring to levy War which was compassing and imagining the Death of the King and as an Overt-act they consulted and agreed to raise a Rebellion and to seize and destroy the Guards of the King's person That there is a sufficient Treason alleadged in the Indictment I agree but that there is a sufficient Overt-act of the Treason alleadged I deny For though the death of the King is sometimes a consequent of a Rebellion yet it is not always much less is it a consequence of a Consult Agreement or Conclusion to raise a Rebellion and to say truth it is ridiculous to say that a Conspiracy to doe one thing is an Overt-act of a Conspiracy to doe another and the Authour himself in effect owns it to be true when he says an Overt-act must be something done but if an Agreement to raise Rebellion and seize the Guards should be called something done yet it not being a necessary declaration of the parties imagination to destroy the King as it is not it is not an Overt-act of that Treason The truth is the Authour in this matter uses abundance of words to the same sense which at the first sight looks like arguing but if considered have nothing of reasoning in them He says it is a natural genuine necessary Declaration c. but gives no colour of Reason more than abundance of words to prove the consequence but because I would put the Authour in the right way of reasoning this matter in which there is nothing of Law but common sense and of which every man of equal natural Parts is as good a Judge as the best Lawyer I say there are two sorts of Overt-acts of a Man's Intentions some prove themselves and are direct Evidence of the Intention as for Example if a man cuts another's Throat though that other doth not dye of the Wound yet it is an Overt-act of an Intention to kill him some are Overt-acts and not direct Evidences of the Intention but the Intention as well as the Overt-act must be proved as if a Man should be hid in a place where the King usually comes armed with unusual Weapons this is a good Overt-act in the Indictment and good Evidence on the Tryall if the Prisoner can give no good account of his being so lurking and so armed And though I will not say that these are all the sorts of Overt-acts that may be laid in an Indictment yet at least I shew the Authour that Overt-acts are capable of a Reason and since he hath offered none for his Overt-acts I suspect he could give none but if a Conspiracy to seize the Guards be an Overt-act of compassing c. I pray what were those guilty of who said the Guards were illegal when there was no apparent cause for keeping them on foot Was not the suppressing them a pretty genuine consequence of such an Opinion and then you know Causa causae est causa causati and so it follows as naturally as the Soldiers Posture did on the Beat of Drum. In 3 Inst p. 12. 't is held that a Preparation by some Overt-act to depose the King or take the King by force and strong hand or to imprison him till he hath yielded to certain Demands this is a sufficient Overt-act to prove the compassing and imagination of the King's Death for that this upon the matter is to make the King a Subject and to despoil him of his Regal Office and so be says it was resolved by all the Judges of England Hill. 1 Jac. 1. in the Case of the Lord Cobham Lord Gray Watson and Clark Seminary Priests and so he tells us in the same place that it had been resolved by the Justices in the Case of the Earls of E. and S. Now if we consider the reason why these are Overt-acts of Treason 't will appear to be only because of their natural tendency to the accomplishment of that particular Treason of compassing which holds the same in the Authour's Case as well as in those there mentioned A Conspiracy with a foreign Prince is agreed by my Lord Coke ib. 14. to be Treason if it be to invade the Realm and an Overt-act of such practice to be a sufficient Overt-act of a compassing the King's Death and the reason is because such actions cannot be thought to be intended for any other purpose and yet that particular Act may be accomplished and it may so happen as that the King's Death may not follow and yet they are Overt-acts of that treasonable Imagination because of their conduciveness and tendency thereto The Case of Cardinal Poole was writing a Book of the Pope's Supremacy in which were contained Incitements of Charles the Emperour to an Invasion of
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
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
the Tryall hath been censured yet the Indictment never was and in that Indictment the Treason is laid as in this Case That he traiterously imagined and compassed the King to Depose Kill and Destroy the Over-acts are That he armed himself and advised others to arm and spoke several Words c. Here was no War levied only a Preparation and yet that was allowed an Overt-act and as for the Words if they are allowed to be one with much more reason Meeting Consulting and Agreeing to doe As to the Objections surely there is no weight in the first which is Page 10. that criticises upon the Word fait Act and that 't is only a meeting to agree and an agreement to do but 't was not done Suppose they had concluded and agreed to poison or stab c. according to the opinion in that Page this was no Treason for 't is only agreeing and concluding upon a thing to be done but it is not done He doth in p. 13. argue that this can never be an Overt-act of compassing the King's Death because levying War is a distinct species of Treason and a conspiring to levy War is not a levying War and even levying War it self cann't be assign'd as an Overt-act of compassing unless the Indictment were particularly for that but surely another sort of Act that savours of another species of Treason if it naturally conduce to the accomplishing of the first species viz. that of compassing it may be assign'd as an Overt-act of it and Sir H. Vane 's Case is quite otherwise and there a levying War was the Overt-act alleadged of the compassing and allowed by all the Judges and all the Indictments in the West upon Monmouth 's Rebellion were so and yet drawn by every good Advice besides what Answer can be given to the Cases I have cited where Consults Conspiracies Practices Advices Letters Persuasions and other Motives and Preparatives to an Insurrection have been held Overt-acts of an Imagination of the K's Death tho' no War was levied no Insurrection had 'T is apparent from what has been said before that to take the K. Prisoner or to seize his Person is a compassing of his Death and if so then to sit in Council to conspire the effecting of that is an Overt-act of compassing the K's Death and this Case amounts to that here was a Consultation to seize upon the K's Guards which could tend to nothing but the seizing of his Person and then the consequence is plain The Author says p. 14. If it had but been alleadged in the Indictment that in pursuance of the Consult and Agreement there had been a view of the Guards and a Report made that the thing was fecible this would have been more to the purpose how much more no man can tell for every Objection in the Book would have been as good against that as this The great Objection he seems to rely on is That the Law takes no notice of them for once I will suppose that it doth not and then let us observe if any Argument can be drawn from thence Perhaps the thing was not used or known when the 23 Ed. 3. was made Can nothing be Treason if the Plot laid to accomplish it be concerning a thing not in esse at the time of the Stat. Certainly it may If several Malecontents should consult and agree and prepare in order to an Insurrection to seize the Tower Portsmouth Hull and Plymouth Fort would not this be an Overt-act of Treason and yet our Law takes no notice of any Garrisons there or any where else they have no Relation to the Militia nor were there any Arms in those places in Ed. 3. his time that we read of in our Law-Books if this be otherwise why did not the Author find fault with Rouse 's Indictment which was tried much at the same time with this in question Suppose all the Gentlemen-Pensioners Grooms of the Stole Gentlemen of the Bed-chamber and the like killed in the Night and the doors in Whitehall broken up and all the Swords Musquets and Pistols there taken away and yet it happened that the K's Person was left untouch'd would this be an Act of Burglary and Murther only We have no Law Books that take notice of Arms at Whitehall or such Names as those Servants go by and suppose at the same time upon the Consult that the Conspirators did move discourse debate and conclude of an Insurrection would it not then be Treason If not nothing can be so unless the K's Person be murthered or seized and the St. should not have said compass or imagine but seize or kill c. It suffices then that the Guards are in common understanding known to be used and imployed for the Attendance upon and Preservation of his Person If common Sense and Reason be judge no man can think but that he who intended to move an Insurrection and seize the Guards had a farther design upon the K's Person and then 't is Treason If otherwise a King of England is in a worse Condition than the worst and meanest of his Subjects for a King must not cannot in or by our Law assault strike seize attach or imprison in Person and consequently cannot defend himself and shall not his Servants Guards and Attendants which are all of the same nature wear a Sword or carry a Musquet before him If they do so is it not then known that they doe it if it be commonly known to be so doth not he that seizes and destroys those Attendants endanger the K's Person and if that be so the Inference is easie It can never be it will never be allowed for Law that a seizing all the K's Guards is only a breach of the Peace unless we renounce the Law and will judge more by Inclinations and Partiships than by Reason and Precedents As to the distinction between an actul seizing them and a Consult and Agreement to seize them what I have urged before overthrows it and what the Author says doth no maintain it for both have a tendency to the execution of the Treason intended I will not take the pains to remark upon all the Inconsistencies of the Concessions and Denials in the Book they are obvious to the Readers As to his Quarrel at the K's Guards as an illegal thing and terrible to the People somewhat of the French growth I hope the K. will always preserve them for his own personal Preservation notwithstanding the Authur's Opinion As to his temporary Laws which declare Words Treason most part of them were affirmative of the old Law and were made only in compliment to a new crowned Head when they prohibited nothing but what was before so and for the rest no Conclusion could be made from them for the maintenance of his Assertion if the had repeated them which since he does not nor will I. As to the Cases cited by the Authour of the Antidote which I have mentioned he agrees to Constable 's Case but
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
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
contains a true Copy of the 13 Car. 2. cap. 1. which requires Witnesses credible Now if these Questions must be answered in the Negative how can the advice of these Letters be assistent to a better Defence than was known long since It was not a secret to the knowing part of the World that variance between the Indictment and the Evidence might be alleadged on the general Issue nor that Treason and Misprision of it were different Crimes nor that proofs of Treason must not be by hear-say or argument only or that less than two Witnesses were not allowable for proof of that Crime but the contrary of those were so frequently practised and imposed on the Juries unknowing in the Law by persons whose Characters imported Integrity and Knowledge though their Practice contradicted their Characters that it was fit to let the World know what the Law was in vindication of it I am sure it is very fit for the Liberty of the Subject to have the Law established certain and those who are against it and would have it as arbitrary as in the late time it was doe it with a design to have the present Government as odious as the former and then they know by the late Example that it will be as easily subverted but if Conspiracies to levy War are not Capital crimes are they therefore unpunishable Surely they are not It is true according to the Doctrine of the late times nothing but hanging and quartering or tantamount was thought a punishment There are such things as Fines and Imprisonments which are pretty severe punishment and upon occasion there is a power in the Legislative Authority to make such Crimes capital even after they are committed but that Authority did not think fit to vest such a power in the ordinary Courts of Justice The Assertions are two that there was neither Charge nor Proof that the Indictment and Evidence were both insufficient I must confess that it would be a mighty Addition to the Liberty of the Subject to have the Law established and declared to be what the late Judge doth argue it is for then there would be a freedom for Malecontents to endeavour their own satisfaction by Conspiracies and Consults and that with impunity But as the Law was and always hath been taken to be an English Subject hath very little colour for his pretence to such a privilege as that Doctrine gives The Indictment is That at such a place and time he did compass and imagine not only to deprive the K. of his Government and Royal State but to kill and put him to death and to procure a miserable slaughter among the K's Subjects and to subvert the Government of Engl. and to raise a Rebellion against the K. Then follows That to fulfill and perfect these Treasons and traiterous Imaginations he together with other Traitors did then and there with them traitorously consult conspire conclude and agree to raise a Rebellion and to seise and destroy the Guards of the K's Person contra c. Now whether these last acts be not a natural and genuine Evidence of the former let any rational man judge But I will particularly prove that this Indictment was sufficient to warrant the Judgment which the Court gave and pronounced upon a Verdict that the accused was guilty of that Fact in the Indictment and then answer the Objections 1. There is a sufficient Treason alledged 2. Here 's a sufficient Overt-act both these I 'll agree are necessary and if either were wanting the Indictment was naught Now it must be agreed to me that the first is clear and plain for by the Law to compass or imagine the death of the K. Q. or their eldest Son is high Treason It is true by the same Law some open act of which humane Justice can take a Conusance is requisite to be proved the very words of the Statute do expresly require it and in truth it is no more than what must have been had no such words been used for thoughts are secret and can never he arraigned proved or censured any otherwise than as they are discovered by some Overt-act so that that Clause requiring an appearance of the Compassing and Imagination by some Overt-act or open Deed is no more than would have been impliedly requisite had the Clause been omitted 'T is the Imagination and Compassing which is the Treason that alone is the Crimen laesae Majestatis which is prohibited and condemned the Overt-act is not the Treason that 's only a necessary circumstance without which no Court can ever take conusance of the other And it is necessary to alledge some such deed a necessitate rei without respect to the words of that Statute I insist the longer upon this because it is used as an Objection that the Clause of provably attaint by c. is restrictive whereas it is not so for it is only to make that first specified Treason of Imagination and Compassing to be a thing intelligible and triable and farther to prove this it is considerable that this Requisite of the Overt-act is of use and necessity barely and only in the case of that which is first mentioned viz. Compassing for the other sorts of Treason are Acts themselves whereof notice may be had as levying War violating the Q's Bed and the like and in an Indictment you need only alledge the Facts themselves as that there was a War levied there was a carnal knowledge had and the like And this farther appears from the very form of Indictments used ever since that Statute for there never was an Indictment and if there were it could never be good barely averring an Overt-act without an express allegation of the Compassing Then the Matter results solely into this Question Whether the Fact here laid be naturally and necessarily declaratory of the Parties Imagination to destroy the King for if so the Indictment is undoubtedly good and it can never be called a constructive Treason or a Thing devised by the Judges Interpretation of the Statute for they adjudg no more Treason than what the Statute declares and that is an imagination of the King's Death now whatsoever is signicative of a man's Intention or Imagination is a sufficient Overt-deed to demonstrate that that Man had such an Intention or Imagination and whatsoever is expressive or significative of a Man's intending compassing or imagining of the King's Death is a sufficient Overt-act to prove and make such a Man a Traitor within this Law. Now that a Consult about and an Agreement and Conclusion actually to seize the King's Guards and raise a Rebellion are a natural and genuine declaration that the person who did so consult agree and conclude did compass and imagine the Death of the King is surely plain enough for a Rebellion if successfull can determine in nothing else but the King's Death either Natural or Civil which is all one within this Law now he that designs and intends the necessary means naturally conducing
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