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
Profession and how long standing an Art learn'd from some of those exquisite Doctors inhabiting towards the Fields whose Knowledge and Conversation is pretended to be in Heaven Another writes for Bread and scribbles that he may eat c. A third or rather the first and prime is inspired with Venom and Revenge even the pure Spirit on 't as one baulk'd he is angry at all and because some were not his true Friends he 's resolved to make Enemies of those who despise him and of them the number is great But secondly It 's of no use to the present Government for Truth only can be a sure Basis of Respect to that and in case of Slander the Filth rebounds and the Dirt thrown most surely turns on and dawbs their own Faces especially when they arraign those as ignorant whose Learning Knowledge and Judgment are so clear and acknowledged as to render the Censors unworthy even of being their Bag-bearers the like when they censure those as corrupt who have always boldly done their Duty even in defiance of a Court Cabal or a Popular Faction who have always adhered to the old English Law and their just Opinions in it though Frowns from White-hall or Clamors from Wapping though Lampoons from Grubstreet or a worse usage from an Observator though a Supersedeas or a Take him c. were the only reward they could expect for such their formerly called Puritanical now Arbitrary Justice Gentlemen who never polluted the Law which the great and good Sir Mat. Hale did truly call a robbing the Poor of Justice for the acquiring a Farm or an Office or a lumping Summ for Sale of it who never begg'd an Executorship for to gain a Fortune Gentlemen who never gave strained Opinions concerning the Revenue when made for their Clients the Farmers but clamored at the same when used by their King with more Moderation Gentlemen who parted with their Places though of Honor and Profit rather than comply with a Court-Opinion or a Club-Notion when others I name no body offered entire and everlasting Service if they could have preceded or succeeded them Teste .... apud St. James's and the City of Glocester but missing their aim then as now they do their Gall must have a Vent and so it hath with a Vengeance when a true and bold Justice is made the Subject on 't The Reason is plain those Men's Repute is too great for Truth Probity and usefulness An Eclipse is necessary if possible for if otherwise the Defender will never be Keeper the Remarker Solicitor nor the Gray's-Inn Poet wear Scarlet in Wales their hopes are but small unless they can postpone all their Bâ—tters by Death Commitments or that which is but little worse Reproach and Slander but some think their Sting grows weak for 't is apparent that there are a sort of Men who though they might and did love his Majesty when as Prince yet do not will not cannot love him or any Man else as King and this is now pretty plain But Thirdly Their Libels are criminal and injuricus to common Justice for they create a Disrespect and Contempt upon all Judiciary Proceedings to arraign all past is to excite a Suspicion of all present and future Administrations whereas Plowden saith fol. 38. It 's a good and sure way to believe the last Judgment and if so 't is plain what Name the contrary Practice deserves besides were it otherwise the Institution of Judges and Courts were vain and our State as Englishmen the most unfortunate for we have no Rule but ex ore Judicum or from particular Statutes and of them they are the Expositors Now let 's inquire which is Law the Defender's Fancy in his Argument inter S. and B. or the Judgment in the Exchequer Chamber affirmed by the Lords If the Judicial Resolution be so then the Publication of his Argument was scandalous and I am not to follow him as my Guide but perhaps he 'll tell me That manifest Reason and good Lawyers ought to govern me if so then I ask him Who shall I follow in the E. of D's Case of a Capias pro fine puis Judgment c. whether the cleven best Lawyers or the Vote of the House If the latter why not so in the former Case And if otherwise then his Judgment was mistaken so that quacunque via data there 's no Infallibity in this World and consâ—quently no excuse for private Censures of publick Proceedings in Courts of Justice Besides the Books are pretty clear that such things are punishable but I leave the Reader to peruse them at leasure Now let us but consider the Confusion that must ensue upon the publick countenancing such a Practice as these Scriblers have introduced for if allowable on a disbanded Judge 't is so on a sitting one for the Case is the same in respect of private Lawyers who pretend to think their Judgments erroneous or corrupt but surely both are unlawfull Besides all this in the present Case They have palpably wrested the Law in divers Instances I need name no more than the Indictment in question which that it was legal and good most Men do now agree especially since the dint of the Opposal seems current only on the Evidence with a Waiver of the other the Indictment being good since that Guards are proved lawfull and the Observator concedes it the most legall part of the Procedure and the Justice of Parliaments c. supposed written by the Defender strains all it's Forces on the Evidence and the Times and their Follower the Port in his new Non-conformist pag. 10. runs the same way too only There remains one Objection to the first Vindication which is that it affirms Words may be Treason within the 25 of Edw. 3. and the Remarker challenges a proof of it and asks where it may befound and the Non-conformist quarrels at the Lawyer that did assert it and some others have done the same ore tenus I confess that the first Sheet did publish the Assertion but waved it's Eviction for sear of a strained use of such Opinion to ill purposes for the serving à turn upon particular Occasions nor had there been any more said on it but that their Confidence and Malice seems so exorbitant as to extort a Check for the Regulator is grown so confident of his own Knowledg as to under-value the greatest of Judgments whereas his Common-place Book affords us no Title but Collusion and Malice prepense and his Practice hath been much of the same stamp only that sometimes he hath added a little of the Lunatick as appears by his Rhimes Prophecies Dreams Politicks and other Religionary Works To prove the Assertion I depend not on the Authority of the sense of the Commons House 1 Jac. 2. though let the Cryer for Justice or who else pleases contradict it it was in Fact then affirmed and agreed unto and upon that the then King's Council and Courtiers desisted the Motion and
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