hath been so frequently and meeting and agreeing to rebel and seize the Guards hath a direct tendency to promote a Demise of the King either natural or civil and therefore might as well be alledged an Overt-act as most things whatsoever I had almost forgot one Clause and that is the unnecessariness of making 13 Car. 2. if it should be as the Advocate argues I suppose he means the first Paragraph for the second is agreed to be introductive of a new Law c. but the first is only a Paraphrase upon the 25 Edw. 3. It is thus That if any Person or Persons whatsoever shall within the Realm or without compass imagin invent devise or intend death or destruction or any bodily harm tending to death or destruction maim or wounding imprisonment or restraint of the person of our Sovereign Lord the King or to deprive or depose him from the style honor or kingly name of the imperial Crown of this Realm or of any other his Majesties Dominions or Countries or to levy war against his Majesty within this Realm or without or to move or stir any Foreigner or Strangers with force to invade this Realm or any other his Majesties Dominions and Countries being under his obeysance and such compassings imaginations inventions devices or intentions or any of them shall express utter or declare by any printing writing preaching or malicious advised speaking being legally convicted thereof by the Oaths of two lawful and credible Witnesses vpon Tryal or otherwise convicted or attainted by due course of Law then every such c. shall c. Now what is all this but a confirmation of the old Statute inwords at length which was agreed to be so in the House of Commons 1 Jac. 2. when a motion was made to renew that Law the Lawyers Answer was that the 25 Edw. 3. did the same thing and a Man may boldly say it that here 's nothing declar'd Treason but what had been adjudg'd so before and Attainders and Executions had pursuant to it The Sheet mentions Cases enough and to the purpose tho some think otherwise but I 'll not repeat them In the 11th page the Reader is referr'd to the justification in the half sheet and therefore let 's examin that a little a third part of it is spent upon the Evidence but that is not within my Province which is only to vindicate the Vindication As to the rest the force of it if any seems only to be founded on his first Assertion the conspiring to do a thing is not the doing a thing and he quotes two great Mens Names for it I would have agreed that tho he had spar'd the Authority to justifie it but this is sufficiently answered in the Sheet He offers an Argument from the late Statutes declaring Treasons because they were temporary but I answer as the Sheet doth they were in affirmance of the old Law and I can shew him three or four temporary and an hundred other Acts of Parliament that are so and therefore that is no Argument at all but I am as the Party I justifie was confin'd to a Sheet and therefore cannot enlarge He lays down a Rule for construction of Statutes that a thing particulariz'd in one part is not to be construed within the general words of another part but that Rule hath near fourscore Exceptions in the Books besides it come not to this Case for here 's compassing the King's Death made Treason and declar'd by Overt-act then levying War is made Treason Now says the Repliant nothing can be an Overt-act of and conduce to promote and accomplish the first that doth any ways concern the latter I say it is a non sequitur for there are several Instances mentioned in the Sheet which respect the levying War and yet are a genuine evidence of the intention and compassing and if so the Judges who have ruled such Indictments to be good did neither assume an arbitrary Power nor transgress any Rule of Law as the half Sheet insinuates Then the Lord Cobham's Case is endeavoured to be answerd by a Wonder that Sir Edward Coke late Lord Chief Justice and then Sheriff should differ from Mr. Attorny Coke for we know his thoughts in Sir Walter Rawleigh's time and his Speeches in Car. I. his time they are as different each from the other as the times were and in this particular that Gentleman hath had more followers than precedents but the Query is What is law Then Sir Henry Vane's Case is endeavoured to be answered by this that Syderfin mentions not the Overt-act in the Indictment but he doth say the Treason alledg'd was a compassing the King's Death and every Man knows what Sir Hen. Vane did to accomplish that he neither sign'd the Warrant to execute that Murder nor was he actually concern'd 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 'll tell him of another Book where it is and that 's Keble's First Volume of Reports 304. and there the Indictment is said to be for Compassing the King's Death and endeavouring to accomplish the Treason by Changing and Usurping the Government and Levying War which Case doth directly overthrow all the Defenders Justifiers and Repliants Arguments from the distinctness or difference of the sort of Treason Then for Dr. Story 's Case he says 't is hard to justifie it for Law whereas there are above forty places in our printed Law Books where 't is cited and agreed to be Law Now 't is pretty odd that a Case so resolved and so ratified should one Hundred and eighteen Years after be arraigned in print for 't was Hill. 13. Eliz. if any thing be Law that is so and not distinguishable from this 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 besides 't is very observable that the Benches were fill'd both with Learning and Integrity in 1571. and 1662. neither of those times were Tory or Popish and in Dyer 298. the reason given was that it could not tend but to the great peril of the King's Person and therefore an attempt to promote such Invasion tho none followed was adjudg'd as aforesaid In 2. Anderson pl. 2. fo 5. 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. his Design was only to defend the Laws tho the 13 Eliz. also was then in force it 's a good Argument to answer that pretence Now I have repeated and observed all the Replication or Justification offers in
or deficient or both The 5 6 7 8 9 and 10th Pages are all impertinent to the Point in question and contain nothing but a Vindication of his justly condemned Clamour in his former Book concerning which I 'll boldly say it in seventeen Points of twenty he is out in his Law if 't were convenient to publish the proof on 't I could make it plain His design is to shew in those Pages his Wit and Fancy more than Candor or Law for my part I am of his Friends mind that he comes not short of the old Observator for managing a Dialogue But all this is not to the purpose he is not come at it yet he 12. page savours of the same Kidney the 13. and 14. are no better there he vents his Gall and that in Ribaldry no softer a name than Tools can be afforded to Men of Worth and Honor if himself be one as some suppose him I am sure it is not to the present Government for he plainly condemns it and declares the People i. e. his sort of them unsatified with it for its sparingness in vengeance and it is because others are not punished for maintaining the Law and themselves not preferred for Arraigning it some Men know my meaning He says he is only for mumbling of Judges and Counsel Causa patet But I must tell him two things 1. The inclinations of Englishmen and the Laws of the Land will never quadrate with a Common-wealth 2. His supposed Criminals do not depend on their Number but the Law which ought and will justifie them if it doth not please let it be changed by Parliament or if the Author thinks that a tedious way let us burn all our Law Books at once and then perhaps his Remarks and Reply will be thought to be Reason and himself the greatest and only Lawyer in the Realm but till then he must give others leave to know and to say that they know he is mistaken for Resolutions and Opinions pursuant and agreeable to the Opinions and Rules of former Ages I mean frequent and repeated Presidents approved by the Lawyers of the Age that used them I say these will be Law to the end of the World unless altered by new Statutes And now we are come to debate the Question all that is past is upon the Times and not the Point In page 18. is his Reasoning part which is no more than was said before in c. To redargue him I must repeat if therefore he will observe what is said by the Sheet pag 22. I will say no more on 't but submit to the Judgment of the Reader he says the inferences are Ridiculous I say they are Rational and Genuine the single issue is if his or my friends Arguments are the most Logical and Natural let the Reader judg Now for Authority Let us see if he urges any on his side or answers that on the other He admires pag. 24 at the assurance of the Sheet Author and others admire at his He says the Parliament had often adjudged it but none can shew any Judgment in the House of Lords or Vote of the Commons House to that purpose I have shewn the Sense of the present Parliament in the Point of Guards and his temporary Laws are already answered nor would any Mâ—n but he and one more pretend that they are Judgments in the Case Surely it will not be pretended that his Case of the Earl of Northumberlands in Hen. 4. time is any thing to the purpose Nor is it any Argument to say no King of England was ever killed for want of Guards Now for Cases page 26. He saith that in the Earl of Essex's Case there was an actual War Levyed and that as I said before destroys the Argument from the different sorts of Treason As to Cardinal Pool's Case he only says there was another Statute in force then but no Record or History says that he was indicted on any other then the 25. Edw. 3. As to Dr. Story 's Case he tells a long Tale out of Camden about the Fact but answers not one word to the Indictment whatsoever the Evidence was the Indictment was as the Sheet alledges and that is enough His answer to Coleman's Case is that that things hapning afterwards proved more but the Evidence was no more than what my Friend alledges As to Sir Henry Vane's Case his answer is his own hearsay of what was proved but the Judgment he never perused argued like a Lawyer As to Constable's Case and the rest he gives no answer but only that a repetition of a number of Cases makes a mutter and a noise and so it does when they Govern and Rule the matter in question and are not answered Owen's Case he says the Author presses it strangely and that is all He says the Cases of Burton Duke of Norfolk Awater Heber and Crohagn are not to the purpose let the Reader judg if they are not pertinent As to the Opinion of the Judges in the Lord Stafford's Case he doth not mention it but says the reviving that Case might have been spared and that is all a pretty answer as to Colledg's Case he talks of a proof of a self Defence but nothing to the Point it was urged for As to the Cases of Lord Cobham Gray and Rawleigh in 32. 33 34 55. pag. Setting aside his scandalous Invectives and Reflections upon those Times Ministers and Governments he no ways attempts to answer the Argument drawn from them viz. that the Charge was the same as in the Case in Dispute Now do I appeal to any Man of Sense and Reason that will Read and Think closely if the Repliant hath offered any one Argument more than the Lord Russel's Case Defence and Justification had alledged If he hath shewn any one Judgment where such Indictment was resolved naught If he hath given any answer to Dr. Story 's Collingborn's Sir William Ashton's Burdet's and Sir Henry Vane's Indictment in short if he hath answered any two of the Cases cited or if he hath done any thing but reflect on past and late times and if the Indictment remain not good both for matter and form notwithstanding all these pretended Replies Upon the whole matter I desire the Reader to peruse the Books cited and to judg if there be not presidents enough unanswered to justifie the Indictment in question and that the Recorder gave a good Judgment upon the Verdict that affirmed its truth quod fuit Probandum To conclude Since the Repliant is in love with Horace I would advise him to consider one hint of his Forum putealque Libonis Mandabo siccis Hor. FINIS
the Devilish Powder Plot which is still as much to the purpose of his Reply as the story of Transmigration of Souls was to that of his Defence only Meekness is transparent in his Stile Humility in the Title Page and true Christian Charity in his Menaces of an exception out of the Act of Indempnity which he repeats three or four times at least as if his whole interest were designed to promote it The Gentlemans Danger is from publick and scandalous Actings in the Eye of the World which were says he labouring to Support the Government every Man knows what sort lashing the innocent with a bitter and sharp Tongue and inveigling of Juries with Rhetorical flourishes Now to examin a little these three monstrous Transgressions let us go backwards as to the last a Duty can never be a Crime every Servant owes Truth to his Master while such every Advocate is to do his utmost and a failure in it had deserved the worst both of Names and Punishments which the Repliant could invent or his interest procure For all Mankind must agree that the now Servants of the present Crown are obliged to do the like upon the like occasion if otherwise the Jacobites side will be the saâ—est I will not reflect on the weakness of the Juries that were thus inveigled if any such there were but rather suppose that the Oaths of Witnesses not the Pleading of Counsel did govern their Consciences As to the second that is false and needs no other answer As to the first that Gentlemans Honor and Merit afterwards is as remarkable as his Fault at first if it were any but however he is likely to have abundance of Company in Desert at least if not in Censure for a Duke of York's Creature is certainly as Culpable as a King James's Servant And Andrew Marvels Characters in his growth of Popery will be as true a Directory to decypher Criminals as the four Volumes of noted Tryals And perhaps if the Ordinance of May 10. 1650. should chance to be revived danger and fear may seize other Men as well as those that lately served past Governments it is therefore thought adviseable for all to sit down quiet and forgive and forget what is past but serve God and their Majesties for the future and not belabour the Excepting one another for if any should be such Fools the Knaves will get the better on it and the Righteous scarcely be saved So much for Religion Now for the Law if we can find it But because the Defender seems somewhat displeased at the repetition of that unhappy Lords name whose Case gives occasion for the present question Let us there put it like Mooters John a Styles was Indicted for that he at such a time and place did Compass to deprive his Natural Lord the King that then was of his Regal State and to destroy his Life and to Subvert the Government and raise a Rebellion and to fulfil that imagination he together with others did then and there consult and agree to raise a Rebellion against the said King and to seize and destroy the Guards of the said Kings Person contrary to c. The question was not whether J. S. was Guilty Nor if the Witnesses Swore false Whether his Attainder were fit to be Reversed But the dispute was whether that Indictment were Legal Whether supposing J. S. to be found Guilty the Court that pronounced the Sentence of Treason against him ought to have Arrested such Judgment on the motion of J. S. that the Indictment was insufficient The Sheet argues that the Indictment was good and consequently the Sentence pursuant thereto was warrantable by the Laws of this Land. The Argument seems founded both upon the Reason of Things and the Authority of Presidents First The reason alledged was that the last part which in Lawyers terms is called an Overt Act was a natural and genuine Sense or Declaration or Overt signification of the first part which is an internal secret Thought i. e. the Imagination and Compassing which is the Treason Prohibited and Condemned That the latter directly and consequentially tending and conducing in the common Sense and Reason of all Mankind excepting the Defender and two or three more to the accomplishment of the former makes a good and sufficient charge within the Stat. Ed. 3. A Repetition is tedious and an Abridgment is scarcely possible the whole Sheet being but a Breviate I shall therefore refer you thereto Secondly The Authorities there urged are either the Opinions of Judges and other Lawyers or Precedents of Indictments of the like or the same nature from which the Legality of this may be justly concluded The substance of them on the whole matter is that Overt Acts to Depose the King or despoil him of his Regal Office or take him by Force or strong Hand or to Imprison his Person till he yields to the demands of those who practise such endeavours are sufficient Overt Acts to prove the Compassing and Imagination of his Death That Levying War causing an Insurrection promoting an Invasion nay that Consults Conspiracies Practices Advices Letters Persuasions and other Motives and preparations to an Insurrection or Invasion though none succeed have been held Overt Acts of Imagining the Kings Death I will not repeat the Cases but as occasion offers from the other side The Objections there mentioned and answered from the Penning of the Statute are too trivial to deserve a remembrance nor would they have ever been thought otherwise but that J. S. was a Noble Person and the Defender a great Man and the Prefacer thought so too either by himself or others These and such like ingredients have made some semblance of difficulty and in truth had there been a real doubt in the Case the Author of the Remarks on that Tryal who wanted neither Sense nor Will to Censure it had his Opinion so inclined I say he would certainly have faln foul on it in those invidious Observations of his upon the late Times He quarrels with the Legallity of the Jurors The Defender with that of the Indictment and both with the Evidence The Author of the Sheet differs from them in the two first but agrees with them in the last that Testimony delivered for fear of Life or hopes of Pardon or other Reward is hardly Creditable but that is not the Point Let us see if the Replication doth overthrow the Charge as insufficient and for my part I cannot find a Line of Argument in it but only it is naught because it is naught The Consulting and Concluding to make an Insurrection and Rebellion and seize the Kings Guards is not a Declaration of the Parties compassing the King's Deposal or Death and why Because Conspiring to Levy War is not a Levying War and Levying War is a distinct Treason this is the substance of the tenth Page if I can read The Sheet said and truly That Levying War it self might be alledg'd as an Overt-act of the Compassing and
answer to my Friend's Sheet the Reader may perhaps expect some new Matter not so much for confirmation as to give occasion for a further further defence In Sir Fr. Moor's Rep. fol 621. pl. 849 on the Tryals of the Earls of Essex and Southampton before the then High Steward the Justices did there resolve that when the Queen sent to the Earl of Essex the Keeper of her Great Seal and others with a Command to him to disperse the Persons armed which he had in his House and to come to her and he did refuse to do so and continued the Armour and armed Persons in his House that this was Treason and they did also resolve that when he went with a Troop of Captains and others from his House to the City of London and there prayed Aid of the Citizens to assist him in defence of his Life and to go with him to Court that he might get into the Queens presence that he might be sufficiently powerful to remove from her his Enemies who were there attendant that this was High Treason because it tended to a Force on the Queen c. I make no inference let the Reader do that 't is plain that an actual mental intention of hurt is not material in the one Case or the other As the Duke of Norfolk's Case is related by Cambden in his History of Q Eliz. 163. the Treason which the Duke confessed was a Plot to seize upon the Tower of London and deliver the Queen of Scots and that 's all There 's nothing remains in doubt but the legality or illegality of the King 's keeping Guards for the preservation of his Person they say the Law takes care of him and therefore he is to take none of himself and that the Judges are his Guards and therefore he needs no other that Hen. VII was the first King who had any other But let us reason a little Can it be supposed that he should be so sacred in his Person so great in his Power and of such Authority as to make War or Peace abroad and raise Forces and suppress them at home as the Danger or Defence of his Realm should require and not be able to provide for his own personal Safety de presenti can he only punish by his Judges afterwards or prohibit by Proclamation before but not defend himself for the present Is it sense to suppose it The Kings of England might have and actually had Soldiers or Guards call them what you will even in times of Peace and long before Hen. VII as well as continually since I may be so bold as to defie any man to shew me the Year the Month the Week or the Day since the Conquest by William I. that England was without armed Men actual upon Duty in some part or other of the Nation This Sheet is not intended for a studied Argument on this Subject and perhaps it would be difficult to justifie a standing Army as warrantable when there 's no occasion for it but to say he can't by force even by force provide for his own personal safety when he apprehends it in danger as every English King hath continual reason to do especially if some Mens Doctrine prevail it may be modestly affirmed unreasonable Hath not every Subject power to keep Arms as well as Servants in his House for defence of his Person Is not his Mansion called his Castle And yet the Law protects him too by Prohibitions à parte ante and Punishments ex parte post There are many Tenures in England which oblige to the annual payment of certain Sums towards Soldiers Wages for Defence of the King and Kingdom there are others oblige to the annual finding certain quantities of Grain in kind for the supplying the King's Castles and Garrisons as well as Houshold which being annual do demonstrate the lawfulness of their continuance even in times of Peace and their being immemorial do conclude a Common Law right in the Kings of England to have those Occasions as they do conclude him a right to have them supplied by such like Services Nay Grand Serjeantry is either by Services of attendance on the King's Person in time of Peace or for Military Aids in time of War. The Crown may raise Forces by Commission or of the Militia to suppress Insurrections in case the Civil Power of the Sheriff is not sufficient or ineffectual The Kings of England have the sole Power and Force of the Nation Complaints have been in Parliament against Billeting Soldiers contrary to the Will of the Hosts but never for maintaining a Guard for their own Person at their own charge Complaints have been of a Standing Army but never of a select company for his personal preservation a Terror to the People may as well be pretended from his Coachmen Footmen or Grooms if their Numbers be great besides for a competent Power in Arms he always may have occasion when his Subjects know nothing on 't 't is his Province to foresee and prevent as well as suppress and punish domestick Tumults and the business of War is separately his Office and that exclusive of his Subjects any otherwise than as they are bound to obey and fight or desired to assist with Aids and Subsidies and for this to avoid a numerous Volume of Citations I 'll name one notable Roll or two in Parliament 6. Ric. II. Mem. 9. the manner and way of the prosecution of a War being given in charge to the Commons to advise upon they answered that this nec doit nec solayt appertain al eux mes al Roy and so they did 31 Edward III. Parte prim n. 11. 21 Edward III. n. 5. it 's true in 5 Edward II. n. 4. Ordinances were made that the King without the assent of his Barons could not make Wars but those were repealed and dampned 15 Edw. II. Parl. Rot. m. 13. because prejudicial to the Royal Power of a King and this is sufficiently affirmed by the Act concerning the Militia in Carol. II. his time It is well known in what time Bryan Chief Justice said that if all the Subjects of England should war with the Subjects of anothers Kingdom that this is no War unless the King denounces it It suffices for my friend's Point that the King may lawfully have armed Men or Guards when himself judges his Person or People to be in danger or stand in need of them And that he may when reasons of State will not admit their publication to the World but however some standing Force the Crown ever had and ever will have tho not always to such a degree as shall be burdensom or oppressive and our old Law Books say that Arms as well as Laws are necessary for the Prince not only in but against the times of necessity I mean War or Tumult besides in Bracton lib. 3. cap. 3. de Corona 't is said that crimen lesae majestatis is the greatest Crime because of the greatness of the Person