place he owns to be his Province to defend and justifie I desire our Author hereafter to postpone the giving his Works a Title till he has finished them for the Contradiction and Incongruity between the Title and Body of his Sheet is really a very great scandal and reproach to him VIII In the same Page he goes on thus As to the rest the force of it if any seems 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 though he had spared the Authority to justifie it but this is sufficiently answered in the Sheet 1. Our Author now gives us an instance of his Sincerity as he has done before several times of his Judgment I desire him to point at that part of the Justification out of which he quotes that absurd and ridiculous Assertion That the Conspiring to do a thing is not the doing a thing I should never have been able to guess what he meant if he had not added the Quotation of the two great Mens Names the two great Men are the Lords Coke and Hales which the Justifier cites to prove That Conspiring to Levy War is not Treason nor an Overt Act to prove the Intention or compassing of the King's death The Justifier uses their own Words and tells his Reader so and is not our Author a Man of a strange Forehead to Construe Positions laid down by Coke and Hales so absurdly 2. If the Proposition Conspiring to Levy War is not Treason be to be expounded as our Author does That Conspiring to do a thing is not doing the thing what becomes of our Judges who have adjudged That the Conspiring to do a thing was the doing a thing for they adjudged to Levy War Treason within the intent of Stat. Edw. 3. tho it be not in the Letter Our Author one might think play'd Booty for tho he assumes the Stile of the Judges Vindicator yet he loads them with a more gross and stupid Imputation than either the Defence Remarks or Justification but I 'le be his Compurgator I believe him true and faithful to his Trust this was a Blunder and Blunders we find to flow from him with a wonderful and natural Facility and we may observe one more in this period where be says This is sufficiently answered in the Sheet Now tho I never saw that Sheet he must mean his first Sheet till lately yet I am assured it was printed before the Justification came out and then I desire to know how he comes to Answer a Paper he never saw nor knew to be in being there must be Prophesy or Revelation in the Case that is certain but admitting he had said That what was writ in the Sheet did resute this part of the Justification and so rendred an answer now unnecessary which was his intent if he had any at all I say That to a general Affirmative I can but oppose a general Negative that 't is not c. I confess I might have spared my Criticism on the Incorrectness of our Authors Expressions since there are so many more important Faults and Errors to entertain me with IX In the same page He says that the Justifier 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 justify was confined to a Sheet and therefore cannot enlarge 1. The Temporary Statutes for making a bare Conspiracy to levy War Treason were one of the Topicks from which the Justifier drew his Arguments to prove that it was not Treason within the intent of the Statute of E. 3. upon which my Lord Russel was indicted for he did and does still think that so many Parliaments would not have troubled themselves to make special Statutes concerning it if they had thought it Treason by any Statute before in being and did also infer that all those Parliaments did not judge it fit to be a continued standing Treason because then they would have made their Statutes perpetual and not remporary When there were Jealousies and Apprehensions of an Invasion from a Foreign Enemy and of the Subjects holding a correspondency with him as in Queen Elizabeth and other Reigns upon such and the like Emergencies the Wisdom of the Parliament did think fitting to make a Conspiracy to levy War Treason and there is no doubt but such an Act would be at this time seasonable 2. His bare and confident averment that they were in affirmance of the Old Law and that he can shew three or four Temperary Statutes that are so must not bear down those strong Reasons which induce me to believe that they were introductive of New Law I believe he may be so learned as to produce a great many other Acts that are only declaratory of the Old Law but I 'm sure 't is not common nor usual to make temporary Acts in affirmance of perpetual Acts of Parliament which is the Point in question For if our Author means any thing that is pertinent 't is that these temporary Acts are in affirmance of the Statute of E. 3. which is perpetual 'T is true the temporary Statute of 13 Car. 2. as our Author cites does enact That if any person or persons whatsoever shall within the Realm or without compass or imagine the Death of the King c. and such Compassings Imaginations c. shall express utter or declare by any Printing Writing Preaching or malicious-advised Speaking being legally convicted thereof by c. then every such c. shall c. But no man except our Author would say that this is in affirmance of Stat. E. 3. as to the compassing the King's Death The Statute of E. 3. does provide That there must be some overt-Overt-act but it does not determine what shall be a good and sufficient overt-Overt-act to prove the Compassing If the matter be clear it leaves it to the Judges if there be any doubt or difficulty then it does expresly direct the Judges to respit their Judgments till the meeting of the Parliament that the Case may be resolved there But the Statute 13 Car. 2. declares the compassing the King's Death and particularly the expressing the same by any Printing Writing Preaching or malicious-advised Speaking to be Treason the Copulative And makes it clear that the principal End of this part of the Statute was to particularise and ascertain That such Facts therein mentioned should be sufficient Overt-acts of the compassing during King Charles's Life that were not so by the Statute of E. 3. which left it general and at large Is not our Author a man of an excellent Head to apprehend this to be only a Confirmation of the Old Statute
in words at length Indeed he does say That it was agreed to be so in the House of Commons 1 Jac. 2. and when a Motion was made to renew that Law the Lawyers answer was That the 25 E. 3. did the same thing I have enquired of some diligent and observing Members of that Parliament concerning the truth of this Allegation and they assure me there was no such Answer made by the Lawyers nor no such thing agreed by the House but they give me this Account of the matter There was a Bill brought in to renew the Statute of 13 Car. 2. and upon the second or third reading it was moved by Mr. Tipping 't is for his Credit to be named That there might be an explanatory Proviso That Preaching Writing or Speaking against Popery and against the Doctrines and Principles of the Church of Rome should not be construed or intended within the intent of the Act. This was thought so reasonable that it was immediately agreed unto and a Committee appointed presently to withdraw into the Speaker's Chamber to pen the Proviso and the Bishop of St. Asaph came there to be assisting in it Upon this the Bill was dropt and let fall and no man ever after pressed it further which may give all men satisfaction what use was at that time designed to be made of it and that all our Learned Clergy who did since Preach and Write against Popery would have been in danger if the Bill had passed to have been construed into a Treason Praemunire or some other great Penalty within the intent of that Bill to the ruine of Them and their Families This was in King James's first Parliament when we had the most simple plain and solemn Assurances of Protecting our Religion and our Laws that was possible to be devised It does now sufficiently appear how insufficiently our Author has answered this Argument of the Justifier 'T is true he does make an Apology and a very pretty one it is That he is confined to a Sheet and therefore cannot enlarge He says when he comes to answer Mr. H. That he wants time But I desire to know How it comes that he cannot spare time or that he is limited to a Sheet Who is it that does set these bounds unto his Writings It were to be wished That the person who has so great Authority over him as to confine him to a Sheet would improve it a little further and engage him not to write at all If it had been a year ago I should have presumed he were thus streightned from the attendance he owed to some great Place for I believe truly his Parts Learning Integrity and other Qualifications could not fail of recommending him to an Eminent Office perhaps a Recorder of a Great City or the like in the late Reign The Reader may observe what sort of man he is who when he is gravell'd and can offer nothing of Reason is forced to have recourse to so poor and pitiful a shift as to pretend he wants time or that he is confined to a Sheet which bears the Price of four Sheets and considering the value of if he might have afforded more of them for our Money X. In the same Page he observes That the Justifier lays down a Rule for Construction of Statutes That a thing particularis'd in one part is not to be construed within the general words of another part but that Rule has near fourscore Exceptions in the Books Besides it comes not to this Case for here is compassing the King's Death made Treason and declared by Overt-act then levying War is made Treason Now says the Repliant nothing can be an Overt-act of the first that does any way concern the latter which is a Non sequitur c. 1. 'T is very true the Justifier does lay down the Rule and does thence deduce That conspiring to levy War cannot be within the meaning of the Clause of Compassing the King's Death in the Stat. E. 3. because levying War is particularly mentioned in the Statute after 2. The Rule is admitted but it has it seems near fourscore Exceptions though by reason of the misfortune of our Author 's being confined to a Sheet or time being wanting he has not obliged his Reader with one of that great number It would have been much more material for him to have shewed That any of the said Exceptions or the Reason of them did extend to the Point in Question than to tire his Reader with a long impertinent Preface and a tedious insignificant Digression of the King's Prerogative of Peace and War which take up two or three Pages If he had omitted these he needed not to have exceeded the Standard of a Sheet and yet have room enough to have given better and more satisfactory Answers if he could 3. The Consequence That conspiring to levy War is not an Overt-act of the Compassing c. because it belongs to another species is clear from the express words of Coke and Hales which see in the Justification And if the Makers of the Statute had designed to conclude Conspiring c. it would not have cost them above three words more to have added it to the Clause of levying War where it would have more properly come in then under the Clause of Compassing to which it has no Relation nor no Man could dream of finding it The positive Opinions of Coke and Hales the Authority of a Rule of Law and the consideration of the motive and end of the Statute which all make against our Author do justly merit so great a Complement and Respect to be paid them that the Case should be admitted to be doubtful and if it be doubtful then by the express Direction of the Act the Judges ought to have suspended their Judgment till they received the Determination of the Parliament Our Author refers to the Sheet for several Instances to the purpose I have examined a great many of them at length I was weary and I 'le assure him there was not one that warranted the Judgment in my Lord Russel's Case Mr. H. has been so particular in answering them that he has saved all others the Labour I do not say but that there has been as extravagant Opinions as this as in the Case of him who said His Son was Heir to the Crown meaning a House that had a Crown for a Sign to it and of him Who wished Stag-horns and all in Kings Belly meaning one of that Name c. These and the like were in violent corrupt times adjudged Treason but no man ever defended these Resolutions or esteem them to be Law tho they have the Sanction of the judicial Opinions of their side XI He proceeds and says The Lord Cobham 's Case is endeavoured to be answered by a wonder that Sir Edward Coke late Lord Chief Justice and then Sheriff should differ from Mr. Attorney Coke for we know his Thoughts in Sir Walter Rawleigh 's time and in his Speeches in Car.
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