wicked Courses hereafter But above all the Judges and Bishops who betray'd also their own Professions ought to be made Examples What special Reasons there may be to mitigate any part of the Punishment in any of them they being not many belongs to the Parliament to consider But in general they ought to be good and weighty On the other side when the Offenders are many and the Grime and Punishment Capital it is usual and reasonable to punish only the Principals and most notorious and to pardon all the rest as in cases of Rebellion and Insurrections because of the Evil Consequence of taking away the Lives of so many Persons whereof perhaps many were missed by the Principal of them and might prove good Men afterward In such cases they are all to be looked upon as one Body and the taking off the Heads and Principals of them is a kind of a capital Punishment of that Body of Men. But when the Crime and Punishment are of a lower Nature as Misdemeanors which being very various the Punishment is more discretionary as Fine or Fine and Imprisonment both according to the nature of the Crime it is not so nor is there any reason it should For a Pecuniary Punishment may be inflicted on many without any Inconvenience And in the present Cases it may be proportioned according to the Rates assessed upon the Criminals in some of the late Taxes and some Disabilities might very properly be made part of the Punishment But in these discretionary Punishments divers things are to be taken into consideration And one or two I will mention on the side of Mercy 1. The Example of our Heavenly father now in our own ease who hath shewed Mercy and sent so great a Deliverance notwithstanding the sinful and wicked state of the Nation 2. The Papists and the wicked Examples of those late Popish Kings have been the principal Corrupters of the Manners of the Nations and therefore if they who have been mislead by them suffer not so deep as otherwise they ought it is but reasonable So much for Punishment of Criminals and now for Preferment The Vindicators think it an Invasion upon the Kings own Liberty to deny him the use of such Persons as through the Temptations and Snares of a Court were guilty of Compliance in things blamable c. if their great Parts and Acquaintance with Affairs of State make them necessary I have known some persons cry'd up for notable cunning and shrew'd Men whom when I have hapned to understand more neerly I have found to be Men of Craft indeed but such as did consist not so much in greater Knowledge of Business than other Men had as in the use of a greater Latitude in Acting than some other Men would use And such Persons may be so far from being necessary to a Prince that they may be dangerous As I remember one of those cunning Men I mention'd being apply'd to by three Persons then of good Credit for his Advice in a Cause easie to have been relieved in Chancery as it was afterwards by his Cunning involv'd them all and some others for Witnesses in a notorious Forgery Subornation and Perjury Parts without Fidelity which is inconsistent with Compliance in Blamable things ought not to recommend any Man to a Prince's Service This I say to shew the Insufficiency of his Argument in that part Nor am I so rigorous as not to agree with him in the former as he states the Case only the person ought to be very necessary and the Prince to be very cautious how far he relies upon him Nay I will go further with him and suppose the Person stand accused or even impeach'd in Parliament I would not deny him the use of such a person in due time that is when he hath been try'd and either cleared and acquitted or for some special good cause legally pardon'd Otherwise that which those persons say is an Invasion upon the Kings Liberty to deny him is an affront to the Government tends to the Subversion of the Constitution and to the disparagement of the present Cause both of the King and Kingdom makes it look like a matter of Trick and Violence and not as I take it to be of clear and necessary Justice The Protection and Employment of Criminals being one of the great Grievances of former Reigns and as pernicious to the Kings as to the People And if this be the Case of any person now employed he cannot be a a good Man or worthy of any Favour at all if he would desire his own Security at the rate of so great an Inconvenience both to the King and to the Government and especially under our present Circumstances and not rather willingly retire for some time and if innocent modestly put himself upon a fair Tryal or if Guilty of any thing considerable humbly submit and beg Pardon And this is the truest Wisdom in such case For they who obstinately stand out in such cases do usually bring mischief to themselves or the King and the more highly they carry it out among Men the more they provoke the Judgments of God upon themselves of Excision or in some remarkable manner according to the Nature of the Crime All Courts and Judicatures ought to maintain their Authority and so much the more when notoriously violated or when there are any attempts to evade or oppose it And especially at this time when we are either doing Justice and Equity against the late King himself or plainly playing Tricks with him and exposing the Iniquity of our own Hearts There is but one thing more which I think worth my taking notice of in this Pamphlet for Trifles I have passed over good store all along and that is what he saith pag. 32. that The Calling or Dissolving of Parliaments is ordinarily one of the most mysterious Problems of State and one of the truest Touchstones of Skill in the Art of Government To Men of ill Designs or who understand not the true Constitution of this Government it may be so indeed But to honest and understanding Men nothing is more easie It was the Law of this Nation before Magna Charta or any Statute now in Force was made and it is still the Law That Parliaments be held once a year or oftner if need be And I will tell this Gentleman in the Words of King James I. that which will effectually explain this Mystery and solve the Problem A King says he governing in a setled Kingdom leaves to be a King and degenerates into a Tyrant as soon as he leaves off to rule according to his Laws And a little after Therefore all Kings that are not Tyrants or Perjured will be glad to bound themselves within the Limits of their Laws And they who perswade them the contrary are Vipers and Pests both against them and the Commonwealth Speech 21. March 1609. This most ancient Institution is not more ancient than wise useful and necessary and of a just proportion to the other parts of the Constitution The Commons in the Counties are represented by the Grand Jury who are to enquire and present what is amiss there and the Lords by the Free-holders who are the Judges And as the Counties have their Court once in a Month the Kingdom their Courts of Common Law for private and ordinary matters four times in the year that is in effect once in a Quarter so the whole State had and still ought to have their Session for Publick and Extraordinary matters concerning the whole Kingdom once in the year The great business of this is to enquire into and inspect the Actions of the Great Officers Privy Counsellors and Judges c. and of the King himself if he do any thing contrary to Law and the common Interest of the Nation to interpret their own Laws where there is occasion and resolve other Difficulties to receive and hear Petitions redress Grievances and give Relief c. And this is an Institution as much for the Honour Safety and Ease of the Prince as for the Security and Commodity of the People For if the Prince act as he ought to do by Advice of Privy Council and of such persons as in their several Places are by Law to advise him The Parliament being to convene within the year must needs be such a Check to them that they will rarely dare to propose any thing mischievous or illegal and more rarely be able to bring it to effect and whatever it be the King is secure and the Counsellor or Officer to answer for it Now an Institution of so great Antiquity so agreeable to the other parts of our Constitution of so great Importance in the Government secured by two several Acts of Parliament in the Reign of that wise and magnanimous Prince Edw. 3. still in force besides others ought not certainly to be eluded with vain Pretences of Reason of State and abused as it hath been by the whole last Race of our Kings to their own hurt and to the great disturbance and almost Dissolution of a most Noble Constitution to gratifie ill Men by long Intermissions abrupt Prorogations and Dissolutions and by long Continuances for no other reason but to corrupt the Members to betray their Trust As by Law they ought to be assembled once a year so ought they also by Law to fit effectually till all Grievances be redressed and business dispatch'd before their Departure v. 4. Inst p. 11. For if our Kings by their Oath be obliged to Govern according to Law they are certainly obliged to it in this particular it being the chief part of the Government Parliamentum departiri non debet dummode aliqua Petitio pendeat indiscussa vel ad minus ad quam non fit determinatum Responsum Et si Rex contrarium permittat perjurus est saith the Ancient Modus tenendi Parliament of which Mr. Selden allows some Copies he had seen to be as ancient as Edw. 3. Tit. of Hon. p. 611. But this is not a place to insist more largely upon this matter nor indeed doth it need it FINIS
speaking of And now to return to our merciful Vindicator He makes me think of the vulgar Observation of March that it comes in like a Lion and goes out like a Lamb and he shews himself a right March Bird. Our Laws were not severe enough with him at the beginning to punish the Author of the Reflections whom yet he dares not charge with any want of kindness to his Majesty v. p. 2. But he must fetch a Precedent as far as Venice to shew the heinousness of his Crimes in prying into Secrets of State to be no less than what is punishable with Death But when he comes to King James's Counsellors c. how is the Lion changed into the Lamb But alas it is only to those good People So kind to them that one would think that this Vindicator had had some hand in the Letter and Bill of Pardon for King James which was found in the Speakers Chair But to the Author of the Reflections he presently turns Lion again at least puts on the Lions Skin If he but complain for the just and necessary Assertion of our present Settlement that not one of King James's Instruments has been brought to condign Punishment how does this Lion roar and storm at this as a Revengeful Spirit that would drench the World in Blood c. But the truth is it seems but a Copy of his Countenance a meer personated Fury to please some body But what their Sentiments are who were to be pleased with this is not hard to be understood They were it seems not only for Pardon but for Preferment too for those honest Gentlemen as such as do deserve the return of our Gratitude Sure this Writer had a mind to try his Skill in Oratory and after the Example of Carneades try what he could add to his Oration against Justice And I should have thought that Carneades had got a new Set of Scholars amongst us since the late Revolution For since I wrote the last Period I met with another Vindication so like this that I dare presume the Authors of both are pretty near of Kin. Only I find this vast difference between him and them What he did innocently only for a Tryal of Skill to shew his Wit and Oratory and what an ingenious Man might be able to say on an ill Subject these Men do in good earnest that is strain all their Faculties to the utmost in a real opposition of Justice Nay those who not long since strain'd all their Wit and Parts and the Law it self to take away Mens Lives under pretence of Justice contrary to Law now strain all to exempt the most notorious Criminals deserving the greatest Severity from condign Punishment by an Indefinite Act of Oblivion and Vniversal Indempnity wherein I must confess they act very uniformly before in suppressing and now in opposing of Law and Justice and always for their own Interest So it must be or if we suppose them to believe that there is any such thing as Justice at all it must be granted that they have different Sentiments concerning the Crimes than we imagine or however than we have And this is plainly the Truth The one in effect will admit no Crime in King James precedent to his Departure And the other will admit none in his Ministers Officers or Instruments That which we take to be Justice in that case he calls Vengeance and Revenge and those who are for it Blood-hounds Bellowers for Vengeance Hot-headed Animals c. What we take to be great and notorious Crimes he reputes Points Justifiable or at least doubtful wherein the Justice of inflicting Punishments can never be vindicated and begs the Readers Pardon for the Impropriety of calling them Punishments though he will not name their proper Term. And a little after Actions done in the last or former Reigns about which the World hath been so much divided if Lawful or not And if this be not sufficient to declare his Sentiments concerning his proposed Indefinite Act of Oblivion and universal Indemnity he tells us plainly Lastly It s consistent with and promotive of the Truest and Highest Justice that is for King James For in most of the Cases the thirteen Heads he had mentioned before viz. The Heads Voted 23 Jan. to be Crimes for which some Persons may justly be excepted out of the Bill of Indemnity the Law is doubtful And to punish Opinion in matters of Law is as unjust as to prosecute Mistakes in matters of Religion is unchristian So that here we have a Vindication not indeed of the last Years Transactions but what is more of the Transactions of the last or former Reigns And if this be good my Opinion which according to this Lawyers Judgment is not punishable being in matter of Law is That King William hath no good Title but he 's a meer Usurper and we have catch'd at an advantage against an Innocent Man upon a timerous Flight or Departure to keep him from his Right My Opinion in this matter I have publish'd in Print more than once and therefore will not repeat it here But this is so evident a Consequence of what he saith that it is his Opinion that I know not with what Colour or Pretence he could deny it if he would Other Consequences of his Discourse I take no notice of because not pertinent to my present purpose But I think I may reasonably recommend it to the consideration of the Dissenters as that which may in some things afford as proper Topicks for them as for any sort of People of this Nation that I know and may be alledged with much more reason for them than for his Party of Criminals Veritas praevalebit one time or other By what hath been said I suppose it is very evident that the Authors of The last Years Transactions Vindicated and of the three Parts of The Magistracy and Government of England Vindicated are near of Kin at least in their Principles and Sentiments of the present Government under King William and Queen Mary and of their Right and Title thereunto and in the General Scope of these Writings as near as in their Titles And therefore this last coming so opportunely to my hand it doth not only confirm my Opinion of the former but gives me a fair occasion to consider the matter of both so far as concerns my Subject with one and the same Labour And therefore before I proceed to speak of the Punishment of the Criminals in our Case this Gentleman being a Lawyer gives me occasion to consider of the Law by which they may be punished For if there be no Law for it he is in the right That they are not properly Punishments but Violence where the Justice of the thing is not clear and undoubted And so much by the way I hope he will give me leave to say of the Executions of Stephen Colledge my Lord Russel Colonel Sidney Sir Thomas Armstrong c. that they were Violences that is
in plain English most deliberate wilful and wicked Murders being committed under Colour and Pretence of Law of most of which Judgment hath been reversed by Authority of Parliament and that I think it differs not much in the fight of God whether a Man have his Hand or his Tongue dip'd therein And I doubt not but the great and good Sir Matthew Hale would have been of the same Opinion which this Gentleman who gives him those deserved Characters will find some Reason to believe if he please to peruse but The Account of the Good Steward concerning the Gift of Elocution But to the business The Votes of 23 Jan. have enumerated thirteen Heads of Crimes for every one of which some Persons may be excepted out of the Bill of Indemnity Against all Punishments of these our Lawyer takes Exception as Punishments never declared or promulged and which by the Standing Laws and Common Justice of the Realm could not be inflicted That is to say They are neither Treason Felony nor Misdemeanours For for all those there are Punishments declared and to be inflicted by the Standing Laws and Common Justice of the Realm I must add Nor Crimes punishable by any Statute And this is the least that these Words can imply So that we must suppose that they are nothing like any of those we meet with in the Impeachments Indictment Articles c. against those Flatterers and Evil Counsellors and Instruments of Princes which my Lord Coke mentions in his Chapter of Flattery or any others to be found in our Records Books of Entries Reports or Statutes not so much as those concerning the High-Commission Court 17 Car. I. But the contrary of all this is so well known to all who have looked into the Records and Books aforesaid that it is as needless as improper for this Paper to offer to recite them But in stead of that I will shew him that which is more that is That the Parliament may declare those things to be Treason the punishment whereof is sufficiently known which never were nor can now by the Ordinary Judges though in the late Reigns they are believ'd to have exceeded their Bounds be judged such and that by the express Words of the Statute 25 E. 3. And because that many other like Cases of Treason may happen in time to come which a man cannot think or declare at this present time it is accorded That if any other Case supposed Treason which is not above specified doth happen before any Justices the Justices shall tarry without any going to Judgment of the Treason till the Cause be shewed and declared before the King and his Parliament whether it ought to be adjudged Treason or other Felony Besides for such Crimes as are of their own Nature great Crimes and not meerly by some positive Law of the State there is neither Law nor Reason why the Legislative Authority in any State should not order and inflict such Punishments as they deserve And among those may doubtless be reckoned all such as have a direct tendency to the Subversion of the Laws and Government of any Stateâ— But Treason against the Kingdom as well as against the King may be found in our Books of Law and History And now I know not what most to admire in this Gentleman his profound Skill in the Law the Modesty of his Assertions or his Honesty and Conscience I cannot but think him a very proper Person to have been one of the Servants of former Crowns one of the last Kings Ministers Officers or Instruments of Justice He was certainly well qualify'd for lit and his Zeal for their Vindication discovers that he had some concern of his own in it And so confident a Gentleman and so qualify'd one would think should get in somewhere now at least into the Parliament and no doubt but set up by the Faction and a great stickler there one of those who are recommended by our Vindicators not only for Pardon and Indemnity but for Favour and Employment to our present King And no doubt but he will be well served by them as well as he was the last Year I cannot let this pass without some further Reflection It is not at all besides the Design of my Writing and no great Digression from that particular matter I am now upon Our other Vindicator tells us that His Majesty came a Stranger to England and but darkly informed of the true Arcana of the last two Reigns and of the Practices and Principles of particular Men it being so much their interest to vail them from his View Whence it is to be suppos'd that at his coming to the Government the Representation made him of Persons and Things could not but receive a Tincture of the many different Principles and Interests of those who made them Considering which it 's no wonder that in such a Maze of Business and Mist of various Representations his Majesty's Bounty might happen to to be misplac'd in some one or other page 29. I know not any thing more truly and reasonably said by that Writer It was indeed a great Disadvantage his Majesty was under being unacquainted with the Principles and Interests of Persons And as that was just Cause both of Caution in the Choice and of Excuse of him from any ill Choice upon the recommendation of others so doth it aggravate the Fault of such recommendations and recommend the Service of such as detect them I shall therefore for the more comple at Detection of some ill Men to what I have before observed add this for Confirmation 1. That the Persons concerned in these Vindications are Men of dangerour Principles in respect of the present Government For if these Crimes be not punishable by Law then are all they who invited the Prince of Orange to come in with an Army and all that associated with him Traytors and he himself an Invader and Usurper 2. They are Men of Arbitrary Principles and so dangerous to the Nation and the true ancient Constitution of this Government For if these Crimes be not punishable by Law our English Monarchy is gone and we are already fallen into a French or Turkish Tyranny 3. They are dangerous Persons to be employed or trusted in respect of their Genius Men of smooth voluble Tongues and of Confidence to impose any thing Of which I could add divers Instances to those I have noted before But I will add only this because it may serve also for another purpose He tells us If the thirteen Heads c. had been reduced into a Law one third at least of the Nation had been involved who with their disoblig'd Relations and Dependents is not so contemptible a Flock c. Now if every one of this third part had but one Relative or Dependent they would make two thirds if two they would make the compleat number of the Nation but if many of them have 10 20 100 as many certainly have they would far exceed the number of