desire him to ratify and confirm and at which he expresly hints to in his last Declaration so that we ought to ask it not only for the Safety of this Government but to preserve us in the next if that should happen Nay if the Jacobites saw we persued our own Principles now and would not hurt our Constitution to hurt them all amongst that Sett of Men who have Sence and Generosity would rather pity what they thought our Mistakes than join in our Destruction hereafter So that if we cannot make the Tories wise at present upon a Revolution we may be fairly heard by the Jacobites and may come even to some Accommodation in the Principles of Government but if we shew that we have no Principles Men will never be persuaded by inveterate Enemies and such as have appeared to be only designing Knaves as soon as Power was in their Hands My last Thought brings me under a great Temptation to expostulate with some of the Whiggs upon other Matters whereby they have reproached their Character nor would it perhaps be an unseasonable Digression but I resolved at first to confine my self â—o a Letter of so small a compass as should not weary out your Pâ—tieâ—ce and therefore will only add a few Notes concerning the Benâ—fits of this Bill It is beneficial both to the Crown and Subject Any Man that can reason upon what he reads may infer from what I have already said that it is beneficial to both but to make it yet more plain this Bill will in all likelihood very much prevent the shedding of innocent Blood for which Nations generally speaking as well as particular Persons reckon even in this World Impartial Trials augment the natural Riches of a Countrey which all Men of great Sence and Souls know are the Numbers of the Inhabitants Such Impartiality not only augments the Numbers by preserving those Individuals that would otherwise be unjusty destroyed but the greater Security the Lives of Subjects are in the surer is that Government to be crowded with Inhabitants from abroad and Crowds of People make Industry necessary for Sustentation and from Industry an abundance of Trade and Wealth does naturally flow as may be seen by comparing Ireland with the United Provinces Again such a Law gives an exceeding Reputation to a Government The Subjects of other Princes though they should not be able to transport themselves and their Fortunes hither will all consent to proclaim our Constitution happy and acknowledge that our Kings are under a glorious and happy Necessity of not being imposed upon by the Malice of Ministers and the Corruption of Judges to take away wrongfully the Lives of their Subjects This Law will very much contribute to the Safety of the Prince for after so fair a Trial if a Man is found Guilty and Executed according to the Sentence his Relations and Friends may grieve but cannot murmur Before I conclude upon this Head of the Benefits that the Crown will receive from such a Law I cannot fâ—rbear adâ—ressing my self to King William and humbly tho' earnestly conjuring him to become as vigorous a Sollicitor for this Bâ—ll as his Enemies say he has been against it And here I must set before him the Glory of our Noble EDWARD the Third who has obtained as Immortal Praises by his good Laws as his Victorious Arms and who did leave his Name particularly Great and Memorable by that Law in the 25th Year of his Reign wherein he fenced the Suâ—ject from the dubious and divers Opinions of what amounted to Treason and made a Declaration what Offences were to be judged Treasons either High or Petit which Law is so often referred to in Acts of Parliament that have been made since his Time and has made his Name dear and valuable to all honest and worthy Minds from his down to our Times Tho' mercenary and corrupt Judges have so much interpreted away that Act that we stand in great need of a new Law to explain and confirm that wise and excellent Statute I wish King William would give us such a Law and give us likewise this Bill of Sir William Whitlock's that we might be the better for that Law Such Care such Condescentions such Provisions for our Lives and our Liberties our good Names and our Fortunes would transmit the remembrance of King William the Third to all future Generations as our Benefactor our Deliverer as one of the best of Princes and the common Father of our Countrey My Lord Chief Justice Treby when Attorney General at a Conference with the Lords asserted that there was nothing in this Bill but what was originally amongst our Rights We will not stand upon it as such We are willing to take this Law as a Grant from the Crown and not as our Due We would not be put to demand it as a Right but would leave the Honour and Reputation of doing so acceptable a Thing to him with whom we have shewn but little Inclination to quarrel However I must take the Boldness to say that the Temper and Backwardness we have shewn whilst his Tory Parasites have provoked us should engage him or nothing will engage him to gratify us with so necessary a Bill as this for Regulating of Trials in Cases of High Treason This Bill is necessary and beneficial for the Subject if guarding an innocent Man's Life and Honour the Liberty of his Person and all that he or his Ancestors have got deserves to be called in this Case The End of Society The Rise of Legislation and the Design of Government If men are not willing to admit of as many Tyrants as there are Judges if they are not willing to be bawl'd and hunted out of their Lives if they are not unwilling to be prepared against false Accusations by a knowledge of what will be laid to their Charge if they do not think it unfit to have other Counsel besides those who are almost in every Trial the eagerest in the Prosecution of the Prisoner if they would not have a matter of that Importance as Treason is established with less than the mouths of Two Winesses if they are not weary of the true intent of being tryed by the Vicinage if they do not think it necessary for the Support of the Government that a man should always suspect himself in danger of dying by the Hand of the Hangman if it is not unreasonable that the Compurgators of a man's Reputation should give Weight to their Words by the Sanction of an Oath In a Word if it is not expedient that a man's Life and all that he has his Posterity and all that they may have from him should be precarious and doubtful in the Power of flattering Sycophants and malicious Informers at the Mercy of chol-rick and corrupted Judges and submitted to the Consciences of pack'd Juries then this Law is expedient this Law is useful this Law is beneficial and necessary for the Subject Thus you see in Obedience to you I have scribbled down some few Hints concerning The Necessity of such a Bill The Reasonableness of proposing and insisting upon it at this Time Together with an Account of its Benefits I am with all imaginable Friendship and Respect Yours H. N.
A LETTER concerning Sir William Whitlocâ—â— Bill for Trials in Cases of Treason written Oct. 16â—â— upon the Request of a Friend who is an honest Memâ—â—â— of the House of Commons and now committed to 〈◊〉 Press upon the Solicitation of several who think it 〈◊〉 be of publick Vse to let it come abroad before 〈◊〉 next meeting of the Parliament SIR MY speedy Compliance with your Commands in relation to Sir William Whitlock's Bill is a Demonstration how entire a Power you have over me And that I may be more distinct and clear in the Delivery of my Thoughts I shall briefly set them down under the following Heads 1. I shall consider the Reasonableness and Necessity of having such a Bill In the next place I shall consider Whether this is a proper time to propose and insist upon it And in the last place I shall give some account of the Benefits of such a Bill To enforce the Reasonableness and Necessity of having such a Bill I need only request you to look over the Trials that have been in our latter Reigns wherein you will find that for want of such a Bill some of the most excellent Personages and our greatest Patriots have bee◠〈◊〉 to Death and that many others 〈…〉 whereof were Men harmless 〈…〉 have suffered wrongfully W 〈…〉 〈…〉 not lament What good Engl 〈…〉 is not afflicted for the Death 〈…〉 Essex and Rawleigh Can an 〈…〉 that knows our Laws think Sâ—◠〈◊〉 Vane was fairly dealt with 〈◊〉 Plunket ought to have been 〈…〉 twice Sidney Executed upâ—◠〈…〉 litude of Hands and one W 〈…〉 Sir Thomas Armstrong withou◠〈…〉 before the Outlawry comp 〈…〉 coming in Ashton upon presu 〈…〉 Treason And Anderton againâ—◠〈◊〉 plain Sence of so many Statutes 〈◊〉 Blood of these and many more c 〈…〉 Vengeance and admonish us to pâ—â—vide against such Extravagancies 〈…〉 after Colledge and Cornish call a 〈…〉 for such a Bill Had such 〈◊〉 〈…〉 been in force could the Great 〈…〉 Russel have dyed for only 〈…〉 ng to prevent the wild Attempts of others and because Sir Thomas Armstrong had viewed the Guards But â—t is needless to set down the several Instances in other Reigns when the Trials under this afford but too pregnant Reasons to conclude the Judges very untoward Counsel for the Prisoner and that Jury-men may be byassed by Piques and Animosities and also that well-meaning Men of a Jury ought to hear the Law stated by such of the Robe as are not in the Pay of the Crown not only because the Bench too often prevaricates but because the Prisoners are often wearied out as the Great Rawleigh was with the clamourous Harangues of the King's Counsel and so drop their Defence when their Lungs which are not so well breathed as those of Pleaders fail them Another Reason which may enforce the Reasonableness and Necessity of having such a Bill is because though our Laws surpass the Laws of all other Countries in many other Respects yet in this they are very defective insomuch that it is the Opinion of such as have a greater Insight into the Laws of other Governments and our own than I will pretend to that there is not any one Countrey where there are any Legal Trials at all but the Life of the Subject is better guarded the methâ—d of Trials in Capital Cases more equal than in ours and whoever will look over the manner of Trials here during the Saxon Times will find we are in some great Fundamentals degenerated from our ancient Liberties I will only add upon this first Head an account of the method of Capital Trials as it is amongst our Neighbours of Scotland who though since they have been made as it were a Province to our Crown have in many essential Parts of it undergone very great Violations of their Constitution have nevertheless herein preserved what may afford us matter of Instruction and therefore let me in a few Words give you their Forms of trying such Criminals The Prisoner is to receive his Indictment with sound of Trumpet fifteen Days before the Day of his Trial all Persons then have access unto him and at the same time he is to receive a Lâ—st of his Jury and of the King's Witnesses with a Warrant to subpoena all such Persons to appear whom he shall think fit to call for to prove his good Behaviour and his Objections against the Jury or the King's Witnesses Upon Application from the Prisoner The Privy Council gives order to such Lawyers as are named in his Petition to appear as Counsel for him with Assurance unto them that they shall never be called in question for any Thing they shall urge in Defence of their Client When the Prisoner comes to his Trial every Word that is spoken by the King's Attorney General to enforce the Indictment against the Prisoner and every Word spoken by the Prisoner's Counsel for him is written down by the Clerks of the Court and entered upon Record together with his Indictment to furnish ground of Process afterwards against the Judges if upon Trial it be found that they have judged unjustly and the Retaliation is carried so far in Scotland that if upon â—he Review of those Proceedings it is found after the heâ—t of the Prosecution is over that the Judge was byassed by Interest Malice or any other Passion to direct a Jury wrong and give a wrong Sentence then the Judge if alive shâ—ll also be executed but if the Judge is dead the Hâ—irs of the executed Persons shall recâ—ver from he Heirs of the deceased Judge whatever Damage their Fortune sustained upon that illegal Sâ—ntence Before the King's Witnesses are exmined the Prisoner's Witnesses are called and examined upon Oath both as to the Prisoner's good Fame and the Truth of his Defences as also whether they knew that any of the King's Witnesses have been dealt with to depone against the Prisoner or have ever threatned him any Mischief or are of bad Fame either of which incapacitates them from being Witnesses against the Prisoner Nay after the Prisoner has had all his Probation against the King's Witnesses he may demand that such as have not been cast by his Evidence should purgâ— themselves upon Oath before theâ— give their Testimony that they beaâ— the Prisoner no Malice that they nâ—ver threatned him any Mischief anâ— that they have been never dealt witâ— to depone against him The Members of the Jury are liable to the samâ— legal Incapacities and they may be proved against them by Witnesses oâ— their own Oath The Judges are not allowed to speaâ— to the Jury before they withdraw If any Message be sent to the Jury aâ—ter they are withdrawn from the Judges Attorney General or anâ— Person concerned in the Government the Prisoner is acquitted upon his proving it The Jury is never returneâ— to amend their Verdict There musâ— be Two positive deponing Witnesseâ— to each Matter of Fact alledged againsâ— the Prisoner I have said all that I will
to the Reasonableness and Necessity of it and now let us in the next place consider Whether this is a proper Time to propose and insist upon such a Bill The first Consideration which I shall urge might have been broughâ— as a Reason for the absolute Necessity of having such a Bill which Consideration is this The P. of Orange in his Declaration assigned the Abuses in Capital Trials as one of the Reasons oâ— his coming over and what the P. of Orange then Declared he would see amended before he laid down his Arms is not K. William engaged in Honour and Interest are not all that design to support this Government bound to promote and agree to And consequently Is it not the indispensable Duty of all that wish well to their Majesties with all Speed to insist upon proper Bills for that Purpose How certain soever it is that the only Jus divinum of our Monarchs and all other Monarchs too is derived from the Voice of the People that Hereditary Right is one of Sir Robert Filmer's Dreams or at most but a Monkish Fable that Election is the most Authentick Title and that the Commissions of Kings are de Beneplacito I say however true and certain all these Notions are yet they will return to their old Bondage will again fall in Love with Passive Obedience and think they have done Wrong to King James if the Prince of Oranâ—e's Promises are not kept and our Constitution bettered by the Change And whereas some otherwise judicious and worthy Men would have this Bill take effeâ—t and got it voted in the House that it should take effeâ—t at the end of this War and not till then in my humble Opinion they were much in the wrong for it lâ—oks as if the Whâ—gs themsâ—lves designed this Revolution only to gâ—t more â—â—â—er into their own Hands and to make use of that Power too to revenge themselves upon their Enemies I love some Men that were concern'd in that Clause too well to aggravate this Matter or to recite the Reasons some of them gave for voting for it Revenge is a very ill Reason for any Vote in Parliament and if any honest Man has been persuaded to oppose this Bill or consent to that Vote that they might the better secure this Government I beg leave to inform such mistaken Persons That all Governments are better secured by letting Twenty guilty escape than by the illegal Condemnation of any One Man The Blood of the Martyr is the Seed of Civil as well as Religious Opinions and therefore perhaps through Lenity a Throne is most effectually established even where Men are according to the strictest Rules of Justice and Equity at the Mercy of the Government but whether that be so or no I am sure that where the Law is not plain an Execution is a Defeat to those that sit at the Hâ—lm Moreover that the opposition that those who have or would have Persions whether in the House of Lords or Commons have given to Sir William Whitlock's Bill has not in the least preserved our present Establishment is plain to all that reflect how few there has been proof against though this Bill was bafflâ—d by such Arâ—ifices as little became our Reformation our Pretenâ—es to Reformation This Bill would have been so far from weakning that it would have strengthned our Government for one good Bill gains the King that gives it many Friends and such Friends as are so by Principles of Liberty and who therefore are the fastest Friends to an Elective Crown Had the King had as some wish Opportunities by the help of the Presidents of latter Reigns and those Stretches of Prerogative which we ought to condemn in this to sacrifice some of those who have been too busy for K. James there are not any of that Sort of Men who have not amongst us Friends and Kindred who would have been angry at the disputed Legality of the Death of their Relations and Friends It is not for want of Blood but because we have not obtained good Laws and amongst the rest THIS that our Government is so low It is because the WHIGGS have not kept to and asserted their own Principles and because K. William has fallen into the Hands of Tories and such Whiggs as he has made Tories that all our Affairs are in this Condition Illegal Trials and Arbitrary Notions are strange Recipe's for a Government that is it self founded upon a Declaration against them It is full time to vindicate the Sincerity of the P. of Orange's Declaration in this particular and therefore this is a proper time to promote and insist upon such a Bill But I will not dwell upon this I will proceed to another Consideration Either K. William is a good Prince or a bad one If a good one 't is in the Reigns of such we must get Laws against such as are bad and no Man can tell how long will be the Reigns of the best of Princes If he is not so affectionate to our Liberties as we could wish and did expect him then we have great Reason to endeavour the getting of this Law to guard us against even his own Male Administrations And this is the time to gain this Law because he will give us any Law upon Condition we will provide for his Journey to Flanders Indeed our best Princes have always sold us for our Money the best Commodities good Laws But even the worst of Princes must give the People good Laws whilst the House of Commons keeps the Puâ—sâ— and the Crown stands in need of our Supplies But further How can our Representatives answer it to their Constituents if they part with such vast Sums and don 't obtain for them a Law that for so long time almost the whole Nation has thought necessary for which twelve Years agoe we would almost have given half our Limbs and half our Fortunes This is the Time to promote this Bill because some will be for it now who never were for a good Bill before Wise Men should make use of the Inclinations and Interests of all Men If the WHIGGS were true to their own former Professions this Bill might be now carried almost Nemine contradicente more unanimously than most Bills were ever carried Methinks Men should not care for what Reasons other Men come into that Sence which is for the good of their Countrey but should make use of all Factions and Parties to serve it The Apostle Paul rejoiced that Christ was preached though for By-Ends and we should rejoyce that our honest Notions are propagated let what will be the Designs of those that set them on foot or go in with them But farther if we lose this Opportunity it is not impossible but we may lose it forever If we lay hold on this Opportunity though the Ministers we have and their ill Management should lose us our Government this would questiâ—nless be one of those Laws which the first Parliament under King James will