Booksellers 2. But even as our Author represents it 't is nothing to his purpose because he was Indicted on the 13 Eliz. which made a Conspiracy to Levy War Treason during her Life and also because his Design was against the Office and Authority of the Queen which implies her Dethroning or Deposition But by the whole Tenor of the Evidence against my Lord Russel it is plain he was assenting to no Consultation Debate or Resolution than what was for the support of the Regal Office and Authority if the Preservation of our Religion Laws and Government be so XV. Our Author refers us to the Case of the Earls of Essex c. before the then High Steward In that Case there was an actual sorce and levying War and therefore not applicable to the Case in question for their Offence was specified in the Stat. E. 3. which my Lord Russel is not concerned in XVI In page 6. Our Author under the pretence of justifying the Guards makes a long impertinent Excursion and maintains the King's Prerogative of Peace and War and challenges any body to shew the time that there were no armed men in England and expounds the meaning of the Parliament that they did not design the Guards in their Instrument of Grievances 1. No man questions the King's Prerogative of Peace and War and the Author must own himself impertinent to talk of it here unless he will justify this Consequence That if the King can declare War c. then he may keep standing Guards in times of Peace 2. It is as little to the purpose though England was never without Armed Men for we know there were several Castles Garisons c. kept up and maintained as necessary for the defence of the Realm against Foreign Enemies but I challenge him to shew me where any Kings in times of peace were allowed to keep and quarter Soldiers upon the Subjects until King Charles the Second's time 3. I desire to know whether the Guards were not part of King James's Army and whether they were not quartered contrary to Law and if so then I 'm fure they must be included in the Instrument of Grievances as well as any other part of the Army But he takes no notice of what the Justifier said That they were on great debate voted illegal by the House of Commons in King Charles the Second's Long Parliament of whose zeal to the Prerogative no man ever doubted Nor did he consider that time was when Judges and others were impeached for persuading the King to give Liveries to great and unusual numbers of men to attend him which were no other than Guards Temp. Rich. II. That one Article of Male-administration against that King himself was grounded upon his Armed Multitude of Cheshire men That even in the times of the War betwixt York and Lancaster when the Title to the Crown was so ticklish yet Standing Armies were not endured then That King Henry the Seventh having occasion to raise some Forces was limited by Act of Parliament to the Number of Twelve Thousand That our later Acts against Martial Law and quartering of Soldiers upon Persons against their Will presuppose all Standing Forces in times of Peace to be Illegal since without Marshal-Law and Quartering of Soldiers a Standing Force cannot subsist We know of how late standing the very Yeomen of the Guards are And by an old Act of Parliament we are taught That to the King it belongs to prohibit all Force and Arms And that in order thereunto His Leiges are bound to Assist him according to the Laws and Customs of the Realm 7 Edw. 1. But I find no Legal Warrant for our King 's raising a Force in times of Peace and Quiet without Consent of Parliament XVII I have now considered all that our Author hath been pleased to answer to the Half sheet called the Justification c. and do conceive the several points it undertook to make out to be vindicated from our Author's Cavils viz. That the Judgment against my Lord Russel was 1. Against the Authority of the two best and most authentick Opinions of our Lawyers Hales and Coke 2. Against the Opinions of several Parliaments 3. Against a known Rule and Maxim. 4. And Lastly Against the end and inducement of the Stat. Ed. 3. And if this be true then I submit to any impartial Judgment whether the Noble Lord might not be said to be Murthered It is not such a Murther as can be punished in the ordinary course and methods of Justice because it was committed under the countenance of Law which I take to be so far from lessening the guilt that it is an aggravating Circumstance To pervert that Law which is framed and instituted for the security of the Subject to be a means of his ruine and destruction by undue violent and arbitrary Interpretations of it The Original Legislators and Founders of our Government never thought nor could comprehend that any Age could arrive to such pitch of wickedness and therefore they provided no punishments for the offence As the Law of Rome had appointed no punishment for Parricide because they believed no Man would be so great a Monster as to be guilty of it Crimes of such an extraordinary nature are to receive their condemnation by the Legislative Authority of every Government and here in England it has been very frequent with our Parliaments to enact punishments other than were appointed by preceding Laws or to add to them when the offence was accompanied with unusual and aggravating circumstances neither can it be pretended that there is any injustice in punishing by a Law ex post facto any thing that is an offence in it self and that receives its denomination of evil from an intrinsick quality inherent in it such as Parricide which in Rome had no punishment allotted by the Law and the barbarous Murders of the Duke of Gloucester in Calais and of the Bishop of Rochester's Servants by Poison were by special Statutes declared Treason and the Murtherers of the Duke of Gloucester underwent the common punishment of High-Treason and those of the Bishop of Rochester's Family were ordered to be Boiled to death neither of which was the legal punishments of their respective Crimes But indeed it would be very unjust at once to make the Offence and to punish a person who had been guilty of it when neither the Word of God the Light of Natural Reason nor any previous municipal Law did warn or instruct him of the Transgression such are the Facts of Coyning of Money Transporting of Wooll and the like which are very innocent in themselves and are unlawful and punishable because they are prohibited as things of a publick damage and detriment Acts of this kind never were nor ought to be punished without an anrecedent Law to justify it I do not now plead for excepting out of the Indemnity any persons whatsoever my design is only to shew what is just and lawful not what may be expedient
of my Lord R. resolves into this That he being upon good and rational Grounds determined in the belief that King Charles the Second and the Duke of Y. had conspired to abolish the Church of England and to subvert the Laws and the Government and observing the Counsels Measures and all the Proceedings of the Court to be correspondent to that End and to have a direct and natural tendency towards it He did joyn with one Judas but with divers other Great and Worthy Personages to consider how to preserve our Religion our Government and our Laws in that time of danger and distress For before the date of any of the pretended Treasonable Practices objected to him it ought to be remembred 1. That the Fountain of all our Laws and Liberties our High Court of Parliament was polluted by Court-bribery and Subornation 2. That it had been frequently and abruptly broke up and dissolved before it could perform any of the Trusts or Duties it owed to the Country 3. That there was an infamous Declaration ordered to be read in all Churches solemnly in the time of Divine Service against the Proceedings of the House of Commons which could have no other aim than to render that part of the Constitution obnoxious to the People and to make them believe it was become impracticable and unsafe for the Government to assemble them 4. That there was a mortal Wound given to the Privilege and Rights of Parliament by the Trial of Fitzhrrris in the Kings-Bench being under an Impeachment and by the Encouragement and Welcome given to the Addresses and Abhorrences of the Mobile importing a Condemnation of Parliamentary Proceedings 5. That there had been Witnesses tampered with if not actually suborned to swear divers Noblemen and Gentlemen out of their Lives 6. That there was a bold and open Incroachment on the Charter and Franchises of the City of London which usher'd in that general Desolation which succeeded on all the Corporations of England The extorting the Charters from all Cities and Burroughs by Quo Warranto's and involuntary Surrenders which divers were forced to make to save their Lands and their Charitable Donations which they were threatned should be otherwise seised did effectually encompass the Design of overturning the Government For all Writers in Politicks do agree in this Proposition That when the Legislative Power is removed or altered from that Place State or Position in which it was setled upon the Original Constitution that Government is dissolved And I think it very clear that by the Destructions of the old Charters and the Establishment of our Cities and Burroughs under the new the King had in effect usurped the whole Legislative Authority For he had before a Power over two Parts of it which were Himself and the House of Lords because he could prefer what Number he pleased of his own Creatures to be Members of that House who should vote as He should order and direct and he had now got the House of Commons under his Girdle by the Powers he reserved in the New Charters to model and change the Magistracy and the Officers who had the Conduct of the Elections and the right of returning the Persons Elected In these violations of our civil Rights some Persons as I have the Charity to believe did ingage and concur through Inadvertency not seeing through that Scheme which had been concerted between the two Brothers for the bringing about their design and these withdrawing from their Counsels when it appeared bare-faced and their being so instrumental and assisting to the late Revolution and the setling us in our present Condition of Happiness seems to Attone for past Errors 7. It must not be forgot that originally in Scotland the Priviledges of the Subject were greater and the Prerogatives of the Crown not so large as in England and yet there the old Constitution was so demolished that there hardly remained the Ruines of the ancient Government but it might be said jam seges ubi Troja fuit and there was avowedly exercised an Arbitrary and Despotick Jurisdiction The Duty and Obligation of the King was as great to govern the People of Scotland according to their Laws as to govern us according to our Law and therefore we might conclude we should receive the same fate and the same measures of Justice whenever the King should think it as safe and as feasible There were these and several other palpable steps and advantages towards Popery and Arbitrary Power antecedent to any of the Facts charged on my Lord Russell And was it not every English Man's Duty as well as Interest to endeavour a stop to the Course of those Counsels which were so directly aimed and levelled at our Church and Government And was there the least Proof that my Lord Russell's Consent or Privity extended any further IV. In Page 3. He bestows large Commendations on the Person that was the Kings Sollicitor at that time and excuses the Council by saying That every Advocate is to do his utmost and a failure had deserved the worst of Names c. I do acknowledg that in all times Lawyers have allowed themselves too great a Latitude when they Act meerly as Council and 't is an Opinion that has obtained among us That we ought not judicially to be called to an Account for any thing we offer or press in favour of our Clyent or against his Advesary so we have it in our Instructions and though I must always have a deference to the Memory of my Lord Coke and must own my Obligations to his Learned and Painful Works yet I cannot without the highest degree of Indignation consider his Conduct when he was Attorney General against Sir Walter Raleigh in his Tryal nor can I forgive my Lord Bacon for his vehement and partial streining of Law and Fact against his Patron and Benefactor the Earl of Essex in his first Tryal upon the Articles exhibited against him for miscarriages in Ireland But let it not pass for Authentick Doctrine That a Council is a Criminal or that he does not perform his Duty if he does not impose false Law upon the Court and false Facts and false Consequences deduced from the Facts upon the Jury which was plainly done in the Case of my Lord Russell as has been already and shall be in this again further evinced As to the then Sollicitor's Character if his Actings as Counsel against this Honourable Lord and some other Persons be put in a Parenthesis 't is as great as any Man of the Profession of the Law but if he were my Father I must condemn his Deportment in those Cases and some others whilst he was Sollicitor to the two last Kings V. In the same Page our Author says That the World guesses that he who wrote the Reply viz. Sir R. A. did write the half Sheet called the Justification and says 't is really sportive to read the Justifier commending the Defender and Replyant doing the same good Office for the
him up as a Pageant of State and a Statue of Authority But by setling the Crown upon Their Majesties it is preserved in its true rightful and ancient Lustre Powers and Prerogatives 'T is true The Rules of the Hereditary Succession are and must have been broke when King James was laid aside and no person whatsoever could during his Life be exalted to the Throne under that Qualification for non est baeres viventis a living Man can have no Heir is a Maxim of our Laws Since therefore all thoughts of King James's Restitution were abandoned and that no person could of right lay claim to the Crown it would have been next degree to madness to appoint any person for King that was not in a capacity to discharge the Duty and Office of a King which is to defend and protect his People Such a Power I do conceive to be a more essential Qualification and Property of a Sovereign Prince than any Right or Title by Descent or Proximity of Blood for that is required by the Fundamental Maxims of Government in general this only by Municipal Laws and Sanctions So that if a People set up for their Supream Governor one that wants some Legal Qualifications the worst imputation that malice can fix upon them is that they do transgress against the Laws of their Country but if they let up one for their Governor that is not able to protect them they do certainly offend against the first and original End of all Political Constitutions which is the Publick Peace and Safety and how far the Municipal Laws of any particular Kingdom or State do retain their force when they come to interfere with the Superior Laws of Nature and Self-preservation and with the Ends of Government in general I submit to every man's consideration What our Ancestors here in England thought of this Matter may be easily collected from the great number they had of Kings de facto that were not so de jure and as no man that is versed in our Histories can be ignorant of this so no man that is any thing acquainted with with our Laws but must know they make no difference in point of Allegiance between a King de facto and de jure Whatever is High-Treason against the one is against the other nay our Books carry this matter higher and do teach us That the levying War under the Authority of a King de jure against him that is King de facto is such an indelible Character of a Traytor that he may be tried and condemned in the Reign of such King de jure if ever he happens to be a King de facto likewise As His present Majesty was the only Person able to restore to us our Religion and our Ancient Government so it was on Him alone we could have depended for the continuance of these Blessings When I reflect upon the Temper and Disposition of our English Army after the Revolution upon the Powers and Strength of France and Ireland and upon the uncertainty of Scotland I do not see how it was possible for us to have supported our selves if the Prince of Orange had withdrawn himself and his Troops from among us and left us to shift for our selves as undoubtedly he would and ought to have done if we had excluded him from any share in the Regal Office for every body knows he made such a Figure in the Government of the States General of the United Provinces as rendred him one of the greatest and most considerable Princes of Christendom and was it reasonable to expect he should have relinquished his Post in his Native Countrey and be content to live among us in the quality of a Subject Was it reasonable that he should expose his Life his Fortune and all that was dear to him to rescue us from that State of Thraldom and Misery that we and our Posterities seemed to have been condemned to and should we make so ungrateful a return on our parts as to place him in a meaner Degree and ina more private Condition of life than he was before he underwent such hazards and sustained such Difficulties for our sakes Certainly the dissatisfaction some People express at our present Establishment must be occasioned for want of a due and serious consideration of that Deliverance which Providence has made our King the Instrument of If any man maturely reflects upon the preceding and concurring Accidents and Emergencies of the late astonishing Revolution he must admit that God Almighty did in an extraordinary and particular manner direct conduct and approve the Rise Progress and Conclusion of it To conclude The setting the Character of my Lord Russel in its true and deserved Light the redeeming his Name and Memory from the stain and infamy of the highest Crimes the proving his Childrens Title to the greatest degree of Honor and Vertue on the part of their Father which by the Universal consent of all they will derive and inherit from their Mother and restoring to the Laws and Justice of England their primitive Credit and Reputation are the sole abstracted Motives which prompted me to this undertaking I have not left the least handle for malice or ill nature to suspect that what has been here said in relation to the Government or my Lord Russel is the result of any external hope of advantage or preferment or of a servile disposition to flatter such as are in Power My Resolution not to be known will both secure me against those Imputations and against that Contempt which is the reward of ill Writers I do not pretend to be of so morose nor Stoical a temper as to think that at all times and upon all occasions men should confine themselves to speak or write nothing but what is the true and real Dictates of their Judgments The extravagant strains of Flattery which Pliny bestows upon the Roman Emperors in his Panegyricks was no hindrance to his living and dying with the reputation of a very honest and sincere Person To magnify the Power of Jupiter and the other Heathen Gods in a Declaration or Poem was never esteemed Blasphemy against the Great Jehovah And if a man be to speak or write to his Mistress 't will be ill manners to tell her that he courts her for her Fortune though it be the truth I do not censure the University Orator who I 've heard did in his Speech to Charles the Second highly commend him for his Sincerity Singleness of Heart and his exact observation-of his Word and Promises for any other thing than this That he should have praised him for some other Vertues than those he was so universally known never to have practised Upon these Occasions 't is expected men should exert their Wit and Fancy not their Veracity and I cannot deny That to make truth on these Occasions the standard may be clownishness and ill-breeding But I 'm sure I would as soon cut off my Right Hand as suffer it to write any thing that is not the result of my sober and deliberate Thoughts and Judgment upon so serious weighty and solemn a Subject as I have here presumed to discourse upon FINIS Books Printed for Richard Baldwin THE History of the Most Illustrious William Prince of Orange Deduc'd from the first Founders of the Ancient House of Nassau Together with the most considerable Actions of this present Prince The Second Edition A Collection of Fourteen Papers Relating to the Affairs of Church and State in the Reign of the late King James The Character of a Trimmer His Opinion of I. The Laws and Government II. Protestant Religion III. The Papists IV. Foreign Affairs By the Honourable Sir W. Coventry The Third Edition carefully Corrected and cleared from the Errors of the first Impression An Impartial Relation of the Illegal Proceedings against St. Mary Magdalâ—â— College in Oxon in the Year of our Lord 1687. Containing only Matters of Fact as they occurred The Second Edition To which is added the most Remarkable Passages omitted in the former by reason of the Severity of the Press Collected by a Fellow of the said College The Absolute Necessity of standing vigorously by the present Government Or A view of what both Church-men and Dissenters must expect if by their unhappy Divisions Popery and Tyranny should return again A Defence of the Late Lord Russells Innocency By way of Answer or Confutation of a Libellous Pamphlet Entituled An Antidote against Poyson With Two Letters of the Author of this Book upon the Subject of his Lordship's Tryal Together with an Argument in the Great Case concerning Elections of Members to Parliament between Sir Samuel Barnardiston Plaintiff and Sir William Soames Sheriff of Suffolk Defendant In the Court of King's Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber The Lord Russel's Innocency further defended by way of Reply to an Answer Entituled The Magistracy and Government of England Vindicated Both writ by Sir Robert Atkyns Knight of the Honourable Order of the Bath and now Lord Chief Baron of His Majesty's Court of Exchequer