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
the distinction between an actual seizing them and a Consult and Agreement to seize them what I have urged before overthrows it and what the Author says doth not maintain it for both have a tendency to the execution of the Treason intended I will not take the pains to remark upon all the Inconsistencies of the Concessions and Denials in the Book they are obvious to the Readers As to his Quarrel at the King's Guards as an illegal thing and terrible to the People somewhat of the French growth I hope the King will always preserve them for his own personal Preservation notwithstanding the Author's Opinion As to his temporary Laws which declare Words Treason most part of them were affirmative of the old Law and were made only in complement to a new crowned Head when they prohibited nothing but what was before so and for the rest no Conclusion could be made from them for the maintenance of his Assertion if he had repeated them which since he does not nor will I. As to the Cases cited by the Author of the Antidote which I have mentioned he agrees to Constable's Case but does not distinguish it in its reason from that in dispute He denies the Authority and Law of Dr. Story 's Case which no body ever denied before him He says that in the Lord Cobham's Case there were People assembled but gives not any Answer to what the Antidote affirmed viz. that the Overt-act taken notice of in the little Book called The Pleas of the Crown was only the conspiring to make an Insurrection He doth confess that in the Lord Gray's Case there was only a Conspiracy He says that in Sir Henry Vane's and Plunket's Case there were several other Ingredients to mount them to Treason but what they were no body must learn at least not from the Author for he names none of them He consumes half a Page in an Encomium upon the Judiciousness of that Court which made a conscientious legal Scruple Whether the Murther of a Mistriss by her Servant were Petit-Treason by reason of the difference of her Gender But at last he tells us That the Judges of the Common Pleas did upon much deliberation satisfie those of the King's Bench that Master and Mistriss were in effect but one In the conclusion of the first Letter he says That Conspiring against the King's Person is most justly taken to be to conspire against the King's Life but in the Book he will not allow a conspiring and agreeing to seize i. e. beat and destroy the Guards which are ordinarily and commonly known to attend the King's Person to be a conspiring against his Person which whether it be or not the next Trial of this Nature will determine Now after all what can be a greater Reflection upon the Learning Judgment and Integrity of the King's Council Judges and Recorder than to declare and publish in Print that the first prosecuted the second tried and the last condemned a Gentleman as a Traitor when the Charge had nothing in 't of that nature If true the bare Printing it is unbecoming the But as for their Reputations let them justifie themselves The reason of my undertaking to explode such a Reflection was my own and every Man's Duty to the present Government the King and Queen's Majesties being both concerned and eminently too in the consequence of such Doctrines and a love to my Country-men that they may not presume upon the Authority of such a defence for if they do they may find their Mistake when noozed through the power of Truth the contrary Opinion As to the Proof I will not rake into it since the Author hath represented too much of its strength and de mortuis nil nisi bonum it can never be thought a gratefull Province to debate or convince of Guilt but yet I may say so much that there was Evidence enough to justifie All concerned in the Prosecution and Trial though for several Reasons the Attainder is fit to be reversed but hardly for those which this Author mentions Since the writing of this Sheet there came to my hands a Treatise calling it self The Lord Russel 's Case which savours more of Policy than Law and his Topicks are the Rights of the People and Power of Parliaments they argue the Author to be a greater Statesman than Lawyer and therefore much too great for me to encounter and a Debate concerning the Heads he insists on is neither safe nor allowable without doors I shall make but three Remarks on what he says First He may assure himself That that Power from which he argues his Law is now apparently lodged in the Commonalty not in the Nobility Secondly The King's Sollicitor whom he reflects on twittered more Reason and Law than yet hath been or ever will be answered And thirdly The Indictment contained no new constructive Treason but only that which was plainly and directly declared in and by the 25 Edw. 3. if the Letters of it make Words and the Words Sense and one Man may be allowed able to read them as well as another Since the writing of the last Paragraph there came to my hands another Pamphlet written by a new Observator but I suppose the Judges that shall be will correct that sort of Licentiousness which he assumes in his Remarks which if they do not they 'll have fine easie places on 't as well as their Predecessors and much good may it doe them Aetas parentum pejor avis tulit Nos nequiores mox daturos Progeniem vitiosiorem Horat. A Second Vindication of the Magistracy and Government of England by way of Answer to the several Replies c. IT is very observable that since the late Revolution nothing hath more disturbed our Peace than the Liberty of the Press and amongst all our new Prints the most malignant and mischievous Libels on the present Government have been written by those Lawyers who pretend themselves the greatest Zealots for its Honour and Service which may besuspected as false unless it be withall considered that some modern Royallists have nothing recommendatory of themselves but the Miscarriages of others and others of them have such great ones of their own that an Extenuation or Excuse is impossible and therefore to cloud their own Deformities they would blacken other Mens Reputations and in order to it they have censured Innocence and arraigned Laws and where a slip or fault hath been though so small as scarcely to deserve the name of one they have magnified it into an execrable Villany and for a colour of such their Calumny and Slander they have vented new Gospel and Law both nay they have broached such Notions to the World as are directly fatal to that Crown of which they boast themselves the Makers and Supporters and yet in doing so they pretend to merit It is strange but true for the Fact is plain and the Consequence too upon the present Change the Republicans of both Gowns did deem it their Policy and
Interest to bespatter and reproach other Mens Actions and like base and mean Spirits gave ill names and words to every thing in which themselves had not been concerned and made Reviling so customary that it is become the modish Sin of the Age. It is most certain the old English Honour Frankness Ingenuity and good Nature is quite abandoned from some Companies and places in the Town and instead of Folly we have assumed a Vice in our common Conversation instead of Drollery and Banter the new fashioned Wit at 's allows nothing as acceptable but Lying and Slander nay the very Spark of a Courtier hath changed his Note Whereas fulsome gross and false Flattery was wont to be his Talent he is now got to the other Extreme i. e. revengefull weak and false Characters both of Persons and Actions Which is the worst is difficult to determine but Falshood is the most predominant humour in both and that Age is surely unhappy which is plagued with a Surfeit of either especially when the Excess is so great as now that no Gentleman can be thought a good Companion no Clergyman a true Protestant no Lawyer an honest Englishman no Courtier a faithfull Servant unless he can and do rail and snarl and scold and that at things that were justly used in former times and must necessarily be used in these times and will be so in all times whatsoever even in Secula Secorum these little stinging Animals do value themselves upon their Honesty because they find Faults but it is in cases where no Eye can spie them but their own they value themselves upon their Wit because their censures are sharp and biting but that is so easie so very easie a Province that Nature teaches even the rudest of her Breed to be satyrical and the Natural oftentimes out-does the pretended Scholar in Ribaldry and hath perhaps a better faculty that way than Fancy and Picquancy of reflection Now as the Fact is thus criminal and ridiculous both so must the Consequence prove fatal to the Government which they would be thought but intend not to support for when once resolved to arraign all past proceedings they are forced for the maintenance of such their reflections to vent those Opinions Doctrines and Rules in Divinity and Law which have in every Age save one been justly exploded as destructive to the honour and being of the then Possessors of the Crown and can conduce to no other end than the utter Subversion of this and every other Government that doth but smell of a Monarchy It cannot be denied but in most Reigns there have been some occasions given for Disgust to the People that Kings have born too hard upon their Subjects that the Subjects have worthily complained of some Warps from the Law but no Man ever with Sense pretended that this is a Reason to induce a Belief that every Act of State and every Judgment of Law in former times was Arbitrary and Unwarrantable No surely the Publishers of such Reflections are of another thought themselves and some folks imagine they who formerly were ingaged in Seditious Practices against the Crown would now upon the present occasion explode that Law which doth condemn such Practices that they may with impunity repeat them whensoever the King or his Ministers shal chance to disoblige them and that this is the true reason of half the new Libels and Invectives upon past Proceedings It is now apparent to all Mankind that every Line or at least Page of some Mens Works are designed only as a Courtship to the Mobb by bridling the Sovereignty and clipping the Prerogative even to such a degree as doth absolutely deprive it of those Rights Powers and Authorities which the ancient Law continued usage and our present Representatives consent to allow it To check this growing itch of Pamphleting the Nation into another Change and to vindicate the Rights of the Crown and justifie the Magistracy of England from the obloquy which was industriously thrown on it in one Particular there was three Months since a Sheet Printed and Published at which some Men took offence but others were of Opinion that its Publication was seasonable and well timed that its reflection on the trifling defence which it assumed to answer were just and smooth and very soft considering the occasion given for a more Satyrical Style from the fondness and incoherence of the Defenders expressions and inferences and that the mode of managing his Argument was modest and tender with a decent and due regard to the memory of the unfortunate deceased which had suffered more than enough of Injury by that pretended Justification A Cholerick and Sedulous Enquiry hath been made after the Author's Name but the inquisitor is still at a loss notwithstanding his confidence of a certain knowledge who it was that came behind and struck him c. But to give him some satisfaction after all his fatigue in searching I will ascertain who it was not he may assure himself that none concerned in that Trial were concerned or privy to its Vindication and when it was Composed and Writ the Party intended it chiefly for his own and the World's diversion from the ungratefull necessity of Reading always on one side by the interposal of a few Lines on the other that our Humours might not be quite sowred and our Genius turn too peevish through the influence of Satyr and Libel with which the World hath too much abounded of late years nor had there been one word more published upon that Subject but that the Authority of the Defender doth challenge a Vindication and the word of a Priest says that it needs one both shall have an answer presently But first it is remarkable that this new Reply hath got a License when none of his other elaborate Works could procure one however it is possible that the Licenser may hereafter renounce or retract his Allowance in this case as he hath done in several others already when his Superiours are acquainted with the Contents and Tendencies of that to which he hath given his Imprimatur for it is not to be supposed that Ministers of State will ever be so incurious of their Master's Honour and the Rights of his Crown as to approve their diminution when once they perceive it The single Point which the Advocate for Magistracy assumed to maintain was that the Indictment in question was Legal and Good sufficient both for matter and form and did warrant the Judgment which was pronounced upon the Verdict that affirmed its truth this seems the principal Assertion in that Paper which whether his Precedents and Authorities Arguments and Reasons are sufficient to prove the Reader must judge that the Cases he cites are truly reported for so much as he uses them none can deny and that the Law is with them upon the whole matter shall be farther evinced But since that Sheet hath made some noise amongst angry Men which was little expected by him that wrote it
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
Prosâ—cution of a Bill to make Words c. But that 's a supernumerary Argument there 's more than enough besides I am not to maintain that all rank malicious gross Words against the King or Queen's Person are such nor that whosoever drinks an Health to our Sovereign Lord the People or to the late King James is a Traitor but that Words significative and expressive of a present â—â—â—ention to do an Act to the King's Destruction such Words deliberately maliciously and advisedly spoken on purpose to accomplish the Demise of the King as by promise of Money with importunity to commit the Fact may be an Overt-facit to prove the Imagination within 25. Edw. 3. To evince this let us think a little ..... and 't will be plain The words of this Statute are clear and of an easie Construction if we will allow those dull old Times to speak Sense They are to this effect That if it shall compass or imagine the Death c. and de ceo provablement soit attaint per overt fait Now the Objection is this That Words are not Deeds within that Clause to this the Answer is very clear for by all the Grammatical and other Rules for Interpretation of the Sense of Words the latter part of a Sentence is to be construed if used by way of opposition as opposite to the thing mentioned and intended in the foregoing Part and not as oppos'd to every thing which it may ex vi ter mini exclude in other Cases and this is an agreed difference both amongst Divines in Exposition of Sentences in Scripture and Grammarians in allmost all Cases whatsoever Now to apply this Overt facit is used not in opposition to Words for there 's no such thing mentioned but 't is added in contradistinction to that which was before specified viz. Thoughts and such are Imagination and Compassing and therefore overt facit must mean any open manifest thing as can truly discover those Thoughts as may proveably attaint the Traitor of such his Imagination and it is a most natural and proper Mode of Speech if they did intend as most undoubtedly they did that the Thought should be the thing prohibited then 't is as plain they intended by the Word fait any discovery of such Thought by Words or Actions and so said Newton in 19. Hen. 6. That to imagine the Death of the King is Treason though he doe no act towards it if such Imagination be disclosed that it can be tried if he did so think and imagine If that thoughts and Words are mentioned both in a Sentence and afterwards Deeds in opposition then the last will exclude both the former but here when used only in contradistinction with Thoughts it seems plainly otherwise That Deed when used in Opposition to Thought doth include both Words and Acts none can deny a thousand Instances might be given of it and in the exactest propriety of Speech Words are Deeds when and as contradistinguisht from Thoughts for the Soul thinks even as abstractly considered from the Body but Man never speaks without Action and Motion The difference is plain and needs no Explication But further I would fain know What is a Consult or Plot but the mutual and reciprocal Declaration of two or more Traitors Minds each to the other Each declares his Traiterous Imagination by Words and so of an Agreement to commit the actual Murther 't is but a Declaration of their Minds by Words each to the other only they do happen to agree Now suppose one Man thinks and intends to destroy the King and by Words doth willingly deliberately and advisedly declare this to another that is not of his Mind though by mistake is thought to be such is not this the same thing If a Man traiterously offers and promises to another a thousand Pounds to perpetrate the villanous Act if he accept it and a parole Agreement is made between them accordingly surely the Apologists for Treason will agree that to be an overt Thing and both guilty if it can be proved by two Witnesses of credit Suppose then the Party offered and promised doth abhor and refuse will that make a distinction If it does 't is without a difference Perhaps the Word Consult will be called a new Cant we know whose Coin it is and who gave it the first stamp 't was no less a Man than Sir Will. Jones who at the time of such his Invention was no Perogative Lawyer though considerably so in Times then lately past Nor is it imaginable what is the meaning of a Conspiracy or Plot to take away the King's Life but a Communication by Words between several Traitors concerning such Act and the method of it's Accomplishment and a Declaration by Words of each Man 's being fixed in that purpose which if it be proved by sufficient Testimony will undoubtedly be an Evidence of a Compassing c. which is the Treason Prohibited and Punishable nor can the Meeting make it more so for they could not discourse unless they met and therefore 't is the Words only that are the manifest overt fait Nor doth Hugh Pynes's Case or the Resolution of the Judges therein contradict this notwithstanding the Confidence of the Remarker that it did they only say that the Words in that Case were not Treason that those Words were not an Evidence of Compassing that for those Words he could not be Indicted upon that Statute but their Opinion doth plainly imply That had the Words been Evidence of a Compassing c. as they were only slanderous and reflective it had been otherwise and the Instances there mentioned are full to this as John Quick's Indictment was only for Words to King Henry unless standing up and speaking will alter the Case Thomas Koiver's John Clipsham's and John Mirfield's are all for Words and some others there specified Besides it 's observable that in most Indictments on this Statute some Words have been alledged in them as an overt fait to demonstrate the Imagination which would be impertinent if the Law were thought otherwise I 'll not insist on Colledge's because the Case hath been cavilled at though with no colour as to the Indictment Part of Patrick Harding's Indictment was loquendo publicavit but I 'll not dwell on that because foolishly drawn but Arthur Crohagan's Case in Cro. Car. is pretty full and for Words and the Words of the Book are That the traiterous Intent and Imagination of his Heart was declared by his Words and therefore held High Treason within the express Provision of 25 Edw. 3. and upon his coming into England he was arrested c. Now no Answer can be to this but that he came into England but the Words only shewed his Intent and by that Book the Words are alledged as the overt fait besides the Case of Blanchflower and Atwood Mic. 5 Jac. 1. B. R. in Yelverton's Reports 107. per curiam resolved that Words may be Treason and that is an express Resolution for there
was then no temporary Law in being concerning Parole Treasons that I know of The Case of Berisford and Presse Hill 8 Jac. 1. B. R. Yelvert 197. adjudged that Treason may be committed by Speech as well as by Act for any thing which discovers the Mind of a Man to be Traiterous to his Sovereign is capital to the Party Hitcham ad Brook Pasch 1 Car. 1. Hutt 75. held per cur that the speaking of Treason was Treason and that sermo est index animi as well as Preaching or Writing and no Man can doubt but those are Acts and Speech is as much so Besides if the Consequence of the contrary Doctrine be well consider'd 't will appear to be a plain Evasion of the Statute of 25 Edw. 3. as is manifest upon the reading it and the common Books are full of this for otherwise no Action could lie for saying a Man hath spoke Treason But here 's enough said to answer the Challenge where 's the Authority for such an Assertion Though infinitely more might be said for it nay 't is as easie to dumbfound the contrary as 't is to transcribe Law Cases If this doth not give them satisfaction they shall remain unsatisfied for me I 'll plague the World no more with writing on this dull flat unprofitable Subject crown-Crown-Law lest I should provoke our new Scriblers to double the Plague by their Replies If they attempt an Answer I 'll leave the Tobacconist and Grocer to confute them and unless a Trunk or Band-box chance to bring them to my View I 'll never be tempted to read them and of this they may assure themselves I say it to complement the Reader with Patience to peruse the rest of the Sheet being ascertained never to hear more on 't at least not from this hand Some perhaps may wonder at the reason of the Publication of these Sheets and conceive them the product of Malice on one side as those virulent Pamphlets are on the other To solve that Scruple I need only repeat the Reasons alledged in the first but a Repitition is damnably dull as well as tedious and irksome I 'll therefore add a new one and that 's to shew the Reasonableness as well as the Necessity of a general indefinite speedy Act of Oblivion for though the Bloud-hounds fret and huff and bounce as if all their Madness and Rage were founded on a true Basis yet 't is apparent from the Premises that their foundation is false and the Law is direct and plain in their Teeth and doth and will justifie in most of the particulars at which they foam their Curses and Execrations Reason therefore as well as necessity enjoins a silence as to what is past for otherwise the Kingdom can never have it's desired satisfaction for in points justifiable or at least doubtfull the justice of inflicting Punishments can never be vindicated did I call them Punishments I beg the Readers Pardon for the Impropriety however I 'll not name their proper term but with calmness endeavour to Evince three things 1. That it would be gratefull to the Nation in general and every good Man in particular 2. Conducing to the Settlement and Interrest of the present Government and lastly That 't is consistent with the promotive of the highest and truest Justice First The Nation did and doth expect it for Revenge is never natural but when freshly pursued and time wears off the sense of Injuries by the Intervention of new ones either real or imaginary which is all one as to this purpose The horror of any Crime or at least the detestation of the Criminal grows faint and languid upon the removal of the Object especially if time interposes with the accession of present fears which at present do more affect us than greater if more distant It can never therefore be thought the desire of the People of England to have their Nighbours or Acquaintance harrass'd and persecuted by Fines Consiscations Imprisonments Marks of Disgrace or the like for Actions done in the last or former Reigns about which the World hath been so much divided if lawfull or not Besides that this was the general Expectation of the Kingdom on the new Settlement or at least the Coronation of which nature there never was an Instance before this without an Act of Grace and it is most plain that none are Adversaries to it but the Republicanes and the Jacobites not for that they need it not as I shall shew anon but for different ends each drives at and wishes a Change it matters not to what for if to the latter the other hopes a Common wealth will be the more desirable If the Republican succeeds then the other believes a Restoration the more easie but both dislike the present and therefore dread a Settlement and consequently dread the People's satisfaction and quiet under Their Majesties and consequently dread an Act of Indemnity 't is true the cry for Vengeance is loud but 't is only from these two corners which leads to the second particular that It will establish and promote the Interest of the present Government while the popular Bully is full of his Damme's and Menaces there 's certainly danger and where there 's danger there 's fear now fear causes an aversion and aversion begets hatred And the Object of it is that from whence the supposed danger arises which is from the Government irritated by the Venom and Fury of those hot headed Animals whatsoever hath power and will to hurt me must and will be abhorr'd and though none are immediate actual Patients yet the being possibly obnoxious to it and the want of security for the contrary doth of necessity cool their respect to the present Power under which they were not safe and this tempts them and their Friends upon contrivances and attempts of Danger both to Themselves and the Publick and danger by the attempt is no discouragement where the like danger attends their forbearance And this is of weight unless Cromwell's Polliticks be thought Christian to cherish and promote a Flot as of advantage to Settlement if seasonably discovered and subtilly managed but however 't is as true that Enemies who are desperate ought never to be thought inconsiderable for they may shake and batter what they can't destroy they may do mischief though they can't work ruin to their Adversaries upon which account the temptation of coutinual impending Danger is fit to be removed Besides The want of Security and the fear of Danger making Men uneasie in their thoughts replenishes them with Complaints and Murmurs at every awkard Action or supposed miscarriage of the Government feared it makes them Mutineers at publick Taxes and Impositions partly because they think it strengthens and increases the power of hurting them and partly because it sponges and bleeds them of that which they fear an occasion of themselves to bribe Black-rods Sergeants at Arms and other Goalers with and in a conjuncture when extaordinary Aids are indispensibly requisite no
temptation to complaint is deserving of Countenance besides that it cramps Trade and discourages Projects for Publick Good c. but farther it 's the living not the dead the happy contented and chearfull and free not the oppressed miserable forlorn or imprisoned Subject that doth Service to the Crown and the Publick It hinders all such as are thought to be so obnoxious from any bold Essays for the use of the present Government for that if success be the attendant of such their attempt they continue unsafe notwithstanding for no Man will adventure an hazard to secure that Authority which he is not sure will make him safe if he doth undertake the present Adventure and escapes that Danger and performs the Service so that Self-preservation renders it their Policy to unhinge themselves from or to be shy of the present Power of which a considerable number might prove usefull Friends which are now Newters at least if not Enemies It 's observable in all foreign Policies either to work a total Extirpation of the whole Party or an universal Indemnity after so grand a Revolution as this was the former is not to be practis'd here for two Reasons 1. Because we want People 2. Many of our Friends must be banish'd too for divers of the supposed Criminals were instrumental to the present Change c. Ergo the latter only is and can be most advisable for once I 'll suppose their numbers but small in comparison to the Saints and Innocents if any such there are in the Nation yet under our present Circumstances all are to be obliged as Friends that possibly may but if the thirteen Heads with the Surrenderer's Clause and all it 's and their Subdivisions had been reduced into a Law in the designed Act of Attainder one third at least of the Nation had been involved who with their disobliged Relatives and Dependants is not so contemptible a Flock though but of Sheep for the slaughter Besides It 's impolitick as well as unjust to deny or delay it to those who have submitted to the Government yielded it Obedience and quietly bore it's publick Charges according to their Proportion and yet give a free full and general Pardon both in Scotland and Ireland to all that took up Arms for all their Sins then past and present it provokes the former to repent their non-concurrence with the latter for 't was but resuming their Quiet and Submission at pleasure and then they were safe which now they are not but under continued Menaces and Dangers both as appears in their being baited by every barking Cur that can but write with Gall in his Ink or speak with a Damme in his Mouth Experience farther tells us that nothing turns or changes the humor of the English Commoner like Rage Insolence and Cruelty in their fellow Subjects when made Superiors and such is raking into old Sores thought to be it matters not whether justly or no as to this purpose the effect is generally such The Star-Chamber in Car. I. his time the Major-General's in Cromwell's The Tophamizing of Abhorrers in Car. II. his time The Western Campaign and the other criminal Prosecutions in the beginning of Jac. I. I say all the Violences used in these several periods and yet they had their respective Provococations did most notoriously alter the kidney of the Commons and made even their once beloved first dreadfull and terrible then odious and loathsome they produced considerable Changes in their several Consequences I could come nearer home even to the tearing of Moore and North and other Citizens of London which first turn'd the Stomach of that City as is now apparent but Sat verbum c. But farther The want of this renders both the Policy and Honor of the great Bellowers for Vengeance to be justly suspected 1. Their Honor in taking care of their own Servants for all their Excesses upon the Revolution and opposing the Indemnity of all others as by the Act appears 2. Their Policy for that it 's observable in Story that the Association in Queen Eliz. time was under a Protestant Prince for the Protestant Religion and no ill Success attended it yet those wise Ancestors of ours thought fit to secure themselves by turning the Association into a Law and a general Act of Indemnity I do not say they needed it but the Associators in that Reign thought it needfull and 't is very considerable that in no Reign was there more Peace and Quiet than in Hers and in none were there ever more free and general Pardons and in truth the latter was the occasion of the former for when Men are once safe and quiet no small Temptation will provoke any more adventures though they like another better yet Men being easie are generally contented There was one free and general Pardon of the Queen 's at first confirmed 5. Eliz. cap. 11. another 8 Eliz. cap. 18.13 Eliz. cap. 28.18 Eliz. cap. 24.23 Eliz. cap. 16.27 Eliz. 13.29 Eliz. cap. 9.31 Eliz. cap. 16.35 Eliz. cap 14.39 Eliz. cap. 28.43 Eliz. cap. 19. Eleven in number and never five years without a Parliament-Pardon and this made Parliaments and Crowns the darlings and desire of the People Besides It 's the Interest of each party amongst us though some don't see it the Whigg ought to promote it for two Reasons 1. Lest being the lesser part he chance to feel the want of it and for that he has given some Provocation 2. That if he be the greater the Memory of his Vengeance and Fury may be forgotten and himself restored to the good Opinion of the rest of Mankind by one act at least of good Nature The Tory ought to pursue the same measures and much for the same Reasons for his Top-gallantry hath been and if repractis'd will be again as odious and loathsome to the moderate and good as ever it was or as the others could be Temper therefore is now the Game and a Veil over all that 's past is certainly the most Politick especially considering the multitude of the supposed Criminals and the justice of their several Excuses which comes next For Lastly It 's consistent with and promotive of the truest and highest Justice for in most of the Cases the Law is doubtfull and to punish Opinion in matters of Law is as unjust as to persecute mistakes in matters of Religion is unchristian and new Laws for Government de futuro are more agreeable to natural Equity than a retrospective Fury that it is so is plain the modern Scribles have sufficiently proved it In two of the Cases cited they differ themselves for Dr. Story 's Case the Defender crys 't is not Law the Remarker agrees 'tis and that he was well hanged for Plunket's Case the Defender cries he was well hanged for there was Treason enough in his Charge the Remarker insinuates as if he suffer'd hardly now what shall a little Lawyer believe between these two great bodies of learning the like may be said of