and credible Witnesses upon Tryall or otherwise convicted or attainted by due course of Law then every such c. shall c. Now what is this but a confirmation of the old Statute in words 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 Ed. 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 though 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 examine 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 doe a thing is not the doing a thing and he quotes two great Mens Names for it I would have agreed that though 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 comes 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 answered by a Wonder that Sir Edward Coke late Lord Chief Justice and then Sheriff should differ from Mr. Attorney Cook 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 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 alledged was a compassing the King's Death and every Man knows what Sir Henry Vane did to accomplish that he neither sign'd the Warrant to execute that Murther 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 '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 Ufurping the Government and levying War which Case doth directly overthrow all the Defender's Justifier's and Repliant's 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 Laws 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 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 though 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 doe 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 Justifier's Notion that J. S. his design was only to defend the Laws though 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 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 farther 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 doe 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 Queen's Presence that he might be sufficiently powerfull to remove from her his Enemies who were then attendent that this was High Treason because it tended to a force on the Queen c. I make no inference let the Reader doe that 't is plain that an actual mental intention of hurt is not material in the one Case or 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
His supposed Criminals do not depend on their Number but the Law which ought and will justifie them if it doth not pleasâ— 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 Precedents 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 p. 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 p. 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 judge Now for Authorty let us see if he urges any on his side or answers that on the other He admires p. 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 Common 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 Man 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 Northumberland 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 p. 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 than 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 hear-say 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 35. 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 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 H. 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 Book 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. The third and last part of the Magistracy and Government of England vindicated with Reasons for a General Act of Indemnity c. IT hath been the observed misfortune of most mix'd Governments particularly of our own never long to enjoy the entire Friendship of all its individual Subjects the lowermost Side hath too frequently acquired the greatest share of the Peoples Love or at least Pity It 's then no point of Wonder that the Servants of former Crowns should incur their proportion of Envy Hatred and Reproach and amongst all those none more obnoxious to it than the Ministers Officers and Instruments of Justice for such are the vitiated Sentiments of Persons interested in all Suits that the Vanquish'd is certainly injured or thought or said to be so which is all one by the Persons themselves their Friends or Relatives their Patrons or Creatures In truth there 's scarce a Tryal on the Plea or Crown-Side but one party and someties both do leave the Court with a swinging Curse or two on Judge Council Jury Witnesses and perhaps all concerned upon which account it can never be deemed a justifiable much less a commendable and meritorious Imployment for Lawyers to note and report and afterwards publish to the World the Clamors of such Malecontents with the addition of Sarcasm instead of Argument and blushless Lies instead of Law and Precedents and all this under the pretence of serving their Majesties and the Government but 't is a mere pretence for first it 's not their Province these Publications are made by them not as Legislators or Judges but as private Persons and one of their Libels seems calculated only for private Lucre as either the hopes of a Place or increase of Practice by telling the Town in the first and last Pages where the Author lives of what
entice his Reader into a patient perusal of what follows and prejudice him against the Sheet he pretends to answer He is very frank in styling it a Libellous Pamphlet and the Author some rank bigotted Papist but to what purpose no Man can divine unless it were to expose him to the rage of the Mobile but his Name was never posted and so he is safe from that danger 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 satisaction 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 King of his Government and Royal State but to kill and put him to death and to procure a miserable Slaughter amongst the King's Subjects and to subvert the Government of England and to raise a Rebellion against the King Then follows That to fulfill and perfect these Treasons and traiterous Imaginations he together with other Traiters did then and there with them traiterously consult conspire conclude and agree to raise a Rebellion and to seise and destroy the Guards of the King'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 started against it First there 's a sufficient Treason alledged And secondly 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 King Queen 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 be 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 lesae 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 à 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 proveably 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 Queen'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 Judge's Iterpretation of the Statute for they adjudge no more Treason than what the Statute declares and that is an Imagination of the King's Death now whatsoever is significative of a Man's intention or imagination is a sufficient Overt-deed to demonstrate that that Man had such intention or imagination and whatsoever is expressive or significative of a Mans 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 seise 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 succesfull 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 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 Executionof 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 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 that 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 he 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 E. and S.
Now if we consider the reason why these were overt Acts of Treason 't will appear to be onely 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 Emperor to an Invasion of 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 1 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 or Persuasion to promote an Insurrection and Invasion and the overt Act that was alledged 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 onely of Letters to the like effect as to this point with those of Dr. Story and the Case of Dr. Story was before the 13 Eliz. which made a new Treason during her Life for the Tryal 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 Hertford 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 onely a Conspiracy to levy War within this Realm he did not join 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 alledged and held to be overt Acts. The Case of Constable mentioned in Calvin's Case was onely an Act tending to deposing the Queen as dispersing Bills in the Night that Edw. 6. was alive and 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 draw 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 onely 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 the dissuading People from their Fidelity such was Owen's Case in King Jac. 1. his time in the 13th year of that Reign this 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 hanged 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 Sparhawke's Case Pasch 3. Hen. 4. Rot. 12. The like was the Case of John Awater who was indicted for a Treason of that nature in Kent and the Indictment removed into B. R. Trin. 18. Ed. 4. see Rot. 17. and he was thereupon afterwards out lawed as a Traitor and so was Thomas Heber at the same time and words significative of an actual Intention have been held so as are the Opinions of Yelver 107.197 Aarthur 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 levyed 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 of the King's Death anno 2 Edw. 4. The Case of Thomas Burdett in 17 Edw. 4. as at large it 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 did disperse 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 in 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 Tryal of the Lord Stafford it is 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 Tryal 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 overt Acts are That he armed himself and advised others to arm and spoke several Words c. Here was no War levied onely 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 may Meeting Consulting Concluding and Agreeing to doe As to the Objection Surely there is no weight in the first which is Page 10. that criticises upon the word fait Act and that 't is onely a meeting to agree and an agreement to doe 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 onely agreeing and concluding upon a thing to be done but it is not done He doth in Page 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 cannot be assign'd as an overt Act of compassing unless the Indictment were particularly for that but surely another sort of Act that favours of another species of Treason if it naturally conduce to the accomplishing of the first species viz. that of compassing it may be assigned as an overt Act of it and Sir Henry Vane's Case is quite otherwise and there a levying War was the overt Act alledged 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 very good Advice besides what Answer can be given to the Cases which 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 King's Death though no War was levied though no Insurrection was made 'T is apparent from what was said before that to take the King 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 a compassing the King's Death and this Case amounts to that here was a Consultation to seize upon the King's Guards which could tend to nothing but the seizing of his Person and then the consequence is plain The Authour says Page 14. If it had but been alledged 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 feasible 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 25 Edw. 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 Statute 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 Edward 3. his time that we reade of in our Law Books if this be otherwise Why did not the Authour find fault witâ— 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 White-hall broken up and all the Swords Musquets and Pistols there taken away and yet it happened that the King's Person was left untouched would this be an Act of Burglary and Murther onely We have no Law-Books that take notice of Arms at White-hall 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 King's Person be murthered or seized and the Statute 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 Attendence 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 King'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 Attendents which are all of the same nature wear a Sword or carry a Musquet before him If they doe 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 King'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 King'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 second that is false and needs no other answer As to the first the Gentleman's Honour 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 Marvel's Characters in his growth of Popery will be as true a Directory to decypher Criminals as the four Volumes of noted Tryalls 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 served past Governments it is therefore thought advisable 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 of 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 therefore 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 fulfill 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 King's 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 Indictnent 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 Precedents First The Reason alleadged 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 Denfender 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 Abbridgment 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 King's 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 Authour of the Remarks on that Tryall who wanted neither Sense nor Will to censure it had his Opinion so inclined I say he would certainly have fallen foul on it in those invidious Observations of his upon the late Times He quarrels with the Legality of the Jurors the Defender with that of the Indictment and both with the evidence The Authour of the Sheet differs from them in the two first but aggrees 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 King's Guards is not a Declaration of the Party 's 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 truly That levying War it self might be alledged as an Overt Act of Compassing and hath been so frequently and meeting and agreeing to rebell 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 Ed. 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 honour or Kingly name of the imperial Crown of this Realm or of any other his Majesty's Dominions or Countries or to levy war against his Majesty within this Realm or without or to move or stir any Foreigner or Serangers with force to invade this Realm or any other his Majesty's 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 lawfull
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 Henry VII was the first other But let us reason a little can it be King that had any 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 prohibite 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 actually 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 doe 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 Summs 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 Attendence 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 cux 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 War 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 another 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 fome standing Force the Crown ever had and ever will have though not always to such a Degree as shall be burdensome 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 against whom 't is committed his description of it is Presumptio contra personam ipsius Regis then when he particularizes the several sorts of Treason the first which he names is Si quis ausu temerario machinatus sit in i. e. towards mortem domini Regis vel aliquid egerit vel agi procuraverit ad seditionem Domini Regis vel exercitus sui licet id quod in voluntate habuerit non perduxerit ad effectum I 'll make no Inserence there needs no Paraphrase the words are plain an Act tending to the destruction of the King's Host is High Treason against his Person agere ad seditionem exercitus regis est presumptio contra personam Regis presumptio contra personam Regis est crimen lesae Majestatis Now can Bracton be thought to speak only of Treasons in time of War Glanvil lib. 14. c. 1. Crimen lesae Majestatis dicitur de seditione Domini Regis vel regni vel exercitus and Fleta lib. 1. c. 20. De seductione exercitus sui cap. 21. the same words seductionem cjus vel exercitus sui this was the sense of the old Law and is very appositely applicable to the Case in question as I could easily shew would my Paper bear it There is one thing which I had quite forgot and that is that the Instrument of Grievances which the Prudence of the present Parliament hath provided complains of a Standing Army the Answer is
Soames's Case and the other above mentioned But what is more In the Voluminous Argument against the Dispensing Power owned by Sir R.A. he doth concede that there are some Prerogatives so personally and inseparably inherent in the Crown that no Act of Parliament can cramp or diminish or at least take away and that being granted I 'm sure all that the rest of the Book says can never make that a plain Case and in truth his own Argument shews and and leaves it a disputable Point and if that were doubtfull every particular else may well be buried in Oblivion besides in Cases of Construction the nature of the thing admits of doubt and then there 's no colour for Punishment Besides In respect of inferiour Persons by our Constitution they are obliged to submit to and follow Westminster-Hall which is the lex loquens Angliae and when all these things are duly considered there will remain but few grand execrable Criminals who are fit to be made Examples of only to tickle some aggrieve others and terrifie none for that will be the consequence for that 's the case of all Violence where the Justice of the thing is not clear and undoubted Then for Exceptions Let us think a little Is it reasonable that some should suffer for not being affraid of Punishments never declared or promulgated and others should escape because their Countenances are more fawning or that by consent their Relations have plaid on the other side or that their swinging Fortunes enable them to scatter Mice for their personal Indemnity or that they have had the lucky Principle of being faithfull to all Changes and true to nothing else or that they have been forward to subvert their old Master after their fire and folly had ruined him and endangered themselves these and such like are no Pleas for Justice and yet this is the Case Farther The drift is to magnifie and aggrandize Punishments by Bill which by the standing Laws and common Justice of the Realm could not be inflicted and they urge two Reasons for it 1. Their particular Pardons will otherwise excuse them To that I answer Either they are valid in Law or not if not there 's no need of Bills if they are valid in Law the same Law and Justice of the Land enjoin their allowance even the same Law by which the Countrey-man plows his Land the Gentleman receives his Rent the Trader recovers his Debt and the Senator sits in the House and by the same Reason that these enjoy their Properties the Criminal ought to have his Pardon allowed for one's a right accrued by the Law as well as the other 2. The common Chanel is too smooth Severity is sometimes necessary and that now if ever and therefore the Legislative Authority ought to exert its power and punish according to demerit To answer that I say either they are no offences by Law and there needs a Bill to make them such and inflict evils upon them as such or else they are offences but deserve a greater Punishment than a common Court may pronounce Now if the first be the Case then I 'm sure 't is rank palpable tyrannical Injustice and that 's the Plague of living under an an Arbitrary Power for none can know what 's not Criminal If they mean the latter as I suppose they do then I ask to what end were Punishments invented in Societies but to restrain Men from doing particular actions through the power and influence of Fear And how could that Consequence be expected when the penalty was never known before 't is inflicted and to inflict an evil afterwards which was not known before is to make a man suffer that which he could not fear because he could not know it and this because he did not fear it And the Justice of that is plain too I agree with the Satyrists that there are some Precedents of this last method of proceeding but most of them are repealed I 'll name two that are so the Earl of Strafford's which the very Law it self did enjoin Posterity not to observe or follow or doe the like I can't forget one expression of his to this effect upon the Tryall if there be an Errour in a Judge so that he give a sentence otherwise than a Man of better understanding conceives Reason for there 's no cause the offence should be hightened because he was not so wise a Man as he might have been nor so understanding as another which if allowed will make it more eligible to follow a Plow than serve a Government to dig in a Ditch than bear an Office for all Men stand obnoxious to the Constructions and Passions of succeeding Times There 's one Istance more and that was Sir Tho. Haxey's who was attainted of Treason for bringing in a Bill into the Commons House against the Prerogative though while and as a Member I suppose the Sparks will not much applaud the justice of that Procedure for their own sakes but as I said before that and most others of their Precedents were repealed when a cooler Assembly met upon the next Session and so was Haxey's in 1 Hen. 4. Cott. abr rec 362 363. But if Vengeance be requisite it ought to be without respect of Persons the Justice of it ought to be impartial true and Catholick and then come in the Pensioners and Surrenderers the Regulators and Promisers the old High Commissioners and the new Creed Makers c. and God knows quis non c. Nay since the Revolution some must come in for a snack of Censure too the buyers and sellers of Places the Members that took Offices contrary to their own Motion and Vote in the Westminster Parliament The Proclamation-men for prohibiting of importing French Commodities under pain of Confiscation of Ship and Goods three Weeks before a War proclaimed contrary to eleven Acts of Parliament for Free Trade even in Parliament-time the Treasury for farming Lotteries which are common nusances contrary to multitudes of Statutes and continuing them still with non obstante's in the Indenture though illegal and void ab initio the great Seal for passing four Patents at one Seal in this Lent Vacation with non obstante's contrary to the Bill of Rights the new Sheriffs for practising what themselves condemn'd in a Moore and a North Cum multis aliis quos nunc describere longum c. To conclude our Saviour's Rule if observed will be the most infallible Indemnity that can be contrived and that is John 8.7 Let him that is without Sin amongst you cast the first stone And in truth a Censor of the Manners of others ought himself to be pure clean and innocent in omni re quacunque and if there be no danger but from such I 'm sure there 's no danger at all and that it should be so is the truest Justice in the World quod fuit probandum I 'll not mention the Argument from the Vacancy that the Government was dissolved every thing reduced into its primitive state of Nature all Power divolved into individuals and the particulars only to provide for themselves by a new Contract for if so there 's yet no new consent for Punishment of acts done before the Dissolution and consequently revenge for that is at an end Indemnity therefore ought to be promoted by those who made that Vote for otherwise their truth may be suspected c. POSTSCRIPT SOme perhaps will blame the boldness of this Style as provocative rather than palliating to which I say Truth ought never to be shame-faced for veritas praevalebit one time or another and if it do not but angers some 't will be only those that were implacable before who if they hant good nature enough to pardon a bold stroke or two with a Pen they 'll ne'er consent to an Act of Indemnity and then their Fury is not to be regarded for the want of it will inflame as it hath created our present Divisons and consequently run us at last into a true Confusion from which Good Lord deliver us THE END