of my Lord R. resolves into this That he being upon good and rational Grounds determined in the belief that King Charles the Second and the Duke of Y. had conspired to abolish the Church of England and to subvert the Laws and the Government and observing the Counsels Measures and all the Proceedings of the Court to be correspondent to that End and to have a direct and natural tendency towards it He did joyn with one Judas but with divers other Great and Worthy Personages to consider how to preserve our Religion our Government and our Laws in that time of danger and distress For before the date of any of the pretended Treasonable Practices objected to him it ought to be remembred 1. That the Fountain of all our Laws and Liberties our High Court of Parliament was polluted by Court-bribery and Subornation 2. That it had been frequently and abruptly broke up and dissolved before it could perform any of the Trusts or Duties it owed to the Country 3. That there was an infamous Declaration ordered to be read in all Churches solemnly in the time of Divine Service against the Proceedings of the House of Commons which could have no other aim than to render that part of the Constitution obnoxious to the People and to make them believe it was become impracticable and unsafe for the Government to assemble them 4. That there was a mortal Wound given to the Privilege and Rights of Parliament by the Trial of Fitzhrrris in the Kings-Bench being under an Impeachment and by the Encouragement and Welcome given to the Addresses and Abhorrences of the Mobile importing a Condemnation of Parliamentary Proceedings 5. That there had been Witnesses tampered with if not actually suborned to swear divers Noblemen and Gentlemen out of their Lives 6. That there was a bold and open Incroachment on the Charter and Franchises of the City of London which usher'd in that general Desolation which succeeded on all the Corporations of England The extorting the Charters from all Cities and Burroughs by Quo Warranto's and involuntary Surrenders which divers were forced to make to save their Lands and their Charitable Donations which they were threatned should be otherwise seised did effectually encompass the Design of overturning the Government For all Writers in Politicks do agree in this Proposition That when the Legislative Power is removed or altered from that Place State or Position in which it was setled upon the Original Constitution that Government is dissolved And I think it very clear that by the Destructions of the old Charters and the Establishment of our Cities and Burroughs under the new the King had in effect usurped the whole Legislative Authority For he had before a Power over two Parts of it which were Himself and the House of Lords because he could prefer what Number he pleased of his own Creatures to be Members of that House who should vote as He should order and direct and he had now got the House of Commons under his Girdle by the Powers he reserved in the New Charters to model and change the Magistracy and the Officers who had the Conduct of the Elections and the right of returning the Persons Elected In these violations of our civil Rights some Persons as I have the Charity to believe did ingage and concur through Inadvertency not seeing through that Scheme which had been concerted between the two Brothers for the bringing about their design and these withdrawing from their Counsels when it appeared bare-faced and their being so instrumental and assisting to the late Revolution and the setling us in our present Condition of Happiness seems to Attone for past Errors 7. It must not be forgot that originally in Scotland the Priviledges of the Subject were greater and the Prerogatives of the Crown not so large as in England and yet there the old Constitution was so demolished that there hardly remained the Ruines of the ancient Government but it might be said jam seges ubi Troja fuit and there was avowedly exercised an Arbitrary and Despotick Jurisdiction The Duty and Obligation of the King was as great to govern the People of Scotland according to their Laws as to govern us according to our Law and therefore we might conclude we should receive the same fate and the same measures of Justice whenever the King should think it as safe and as feasible There were these and several other palpable steps and advantages towards Popery and Arbitrary Power antecedent to any of the Facts charged on my Lord Russell And was it not every English Man's Duty as well as Interest to endeavour a stop to the Course of those Counsels which were so directly aimed and levelled at our Church and Government And was there the least Proof that my Lord Russell's Consent or Privity extended any further IV. In Page 3. He bestows large Commendations on the Person that was the Kings Sollicitor at that time and excuses the Council by saying That every Advocate is to do his utmost and a failure had deserved the worst of Names c. I do acknowledg that in all times Lawyers have allowed themselves too great a Latitude when they Act meerly as Council and 't is an Opinion that has obtained among us That we ought not judicially to be called to an Account for any thing we offer or press in favour of our Clyent or against his Advesary so we have it in our Instructions and though I must always have a deference to the Memory of my Lord Coke and must own my Obligations to his Learned and Painful Works yet I cannot without the highest degree of Indignation consider his Conduct when he was Attorney General against Sir Walter Raleigh in his Tryal nor can I forgive my Lord Bacon for his vehement and partial streining of Law and Fact against his Patron and Benefactor the Earl of Essex in his first Tryal upon the Articles exhibited against him for miscarriages in Ireland But let it not pass for Authentick Doctrine That a Council is a Criminal or that he does not perform his Duty if he does not impose false Law upon the Court and false Facts and false Consequences deduced from the Facts upon the Jury which was plainly done in the Case of my Lord Russell as has been already and shall be in this again further evinced As to the then Sollicitor's Character if his Actings as Counsel against this Honourable Lord and some other Persons be put in a Parenthesis 't is as great as any Man of the Profession of the Law but if he were my Father I must condemn his Deportment in those Cases and some others whilst he was Sollicitor to the two last Kings V. In the same Page our Author says That the World guesses that he who wrote the Reply viz. Sir R. A. did write the half Sheet called the Justification and says 't is really sportive to read the Justifier commending the Defender and Replyant doing the same good Office for the
THE JUSTICE OF THE Parliament In Inflicting of PUNISHMENTS Subsequent to OFFENCES VINDICATED And the Lawfulness of the Present Government ASSERTED With some ANIMADVERSIONS upon the Second Vindication of the Magistracy and Government of England LONDON Printed for Richard Baldwin near the Black Bull in the Old Baily 1689. THE JUSTICE of the PARLIAMENT In Inflicting of PUNISHMENTS Subsequent to OFFENCES VINDICATED c. I. I Hapned two days since to meet a Sheet called A Second Vindication of the Magistracy and Government of England and upon perusal found it to be a weak Effort to justifie what had been before writ in the behalf of the Government and its Ministers for the Condemnation and Execution of my Lord Russel It does particularly take notice of a Half sheet entituled A Justification of the Act which reverses that Noble Lord's Attainder And I must needs own that if impudent downright Affirmations of Law and Facts passes for Argument and Proof he has effectually performed what he arrogantly undertakes which is the refuting the Reasons and Authorities of that and the other more Learned late Prints which have been published to do Right to the Name and Memory of a Person whose Character is very well described by one of those worthy Gentlemen who attested in his Favour at his Trial That he was one of the best Sons one of the best Fathers and one of the best Masters one of the best Husbands one of the best Friends and one of the best Christians we had II. I shall not presume to obtrude a Defence in the behalf of Sir R. A. and Mr. H. I shall not do them so much Injustice as to impose on them so ill ad Advocate And therefore the Province I do assign my self principally is to expose the Weakness and Fallacies of that Part of the Sheet which relates to the Justification and shall not meddle with the rest farther than is necessary to make good the Authorities and Positions from which the Justifier infers that Noble Lord was so far from being guilty of a Legal Treason that the Kings Judges and Counsel in subserviency to a Predestination of the State for removing him right or wrong out of the way were forced to call such Vertues Treason as in a more just and grateful Age would have deserved Statues Triumphs and other Demonstrations of Honour paid by the Romans and other Nations to their Patriots and the Assertors of the Liberties of their Country III. Our Author observes pag. 2. That Sir R. A. calls the Sentence and Execution a Murder and if so he is sure that he is bound in Conscience to prosecute an Indictment against the Judges Recorder the Grand and Petit Jury c. But he concludes that nene of these shew any fear of it The Justifier and all that have writ on the same Subject did also in effect tho' not perhaps in express Terms concur in that Opinion and for my part I do not see how it can deserve a more soft and gentle Appellation Our Author says indeed The Persons that were concerned in it are as safe as under an Act of Indempnity My Temper and Disposition always inclines me to Mercy and tho' I must allow in the Speculation that the Executing of Justice upon Offenders is as great a Duty as shewing them Mercy yet I find a very great difference in the Practice the Exercise of Acts of Mercy being much more pleasing and agreeable than of Justice But if I had the Honour of being a Member of Parliament I should think that this natural Tendency of my Mind ought not to make me forget that Acts of Indempnity and all Humane Laws and Sanctions must be consistent with the Statutes and Ordinances of God himself and where he in his Sacred Word has been pleased to declare himself in such Cases neither the Parliament nor any other Political Constitution can exert its Authority There must therefore be some Account taken for the innocent Blood that has been spilt in this Kingdom of late Years There neither is nor ever was any Municipal Law in the World more careful to preserve the Lives of the Subject than the Law of England but 't is not to be denied that this Law hath suffered extremely in its Reputation both at home and abroad and particularly in that excellent Part of it Trials by Juries because it hath been the Instrument and Property tho' a forced and unwilling one of its own and the Churches Enemies to take away the Lives of this Noble Lord and others who they thought willing or able to obstruct or disappoint their Designs of introducing Popery and Tyranny And shall there be nothing done to vindicate the Reputation of our Law and to make it appear to the World that the Fault was not in the Law it self but in those wicked and corrupt Ministers and Judges who had the distribution of it The Occasion and Inducement of the Statute of 25 E. 3. was that corrupt Judges did adjudge Crimes Treason that were not really so great But our Modern Judges have exalted themselves beyond those they have condemned a Man of Treason that was not only innocent of the Crime but was eminent for his Vertues and indeed for no other Crime than discharging his Duty For I do conceive that 't is a Duty incumbent upon every Subject to support and defend the Government he lives under and to oppose all Motions and Steps towards the Change and Alteration of it that have not the Concurrence of the Legislative Authority I think this Proposition will be allowed as a Principle and then I am sure my Lord R. is to be both justified and applauded for all that he transacted For what other Charge was he guilty of than this King Charles the Second who was a Concealed Papist and by so much the more Dangerous had in conjunction with His Brother who was an Owned one and by so much the more Generous formed a Project to extirpate the Protestant Religion and establish their own in these Kingdoms and as previous and necessary thereto there was a necessity to destroy the Laws and to change the whole Frame of the Government for both as they then stood and were constituted were such a strong Guard and Defence to the Protestant Religion and were so particularly calculated against the return of Popery that it was in vain to attempt any thing either to the prejudice of the one or in favour of the other so long as the Laws and the Government continued Tho' there were formerly I know several good Protestants that were incredulous of this Design yet the Transactions of the State after and that King 's owning himself a Romanist at his Death has abundantly satisfied all unprejudiced Men of the Truth of it since My Lord R. was one of those that had so early and so large a Prospect in this Matter that his Reason fully convinced him at that time of what every one has been since convinced of Then the Treason
for the Parliament to determine against such as brought my Lord Russel and others to an illegal cruel and untimely death and it is our Author 's bold affirmation That they are as safe as under an Indemnity that has ministred the occasion of discoursing upon this Topick I consess I am very ill instructed in the Cases of the rest that were hurried to their Graves through the violence of the late times my remembrance of them is not more perfect than one may be presumed to retain from a transient and cursory perusal of their Trials but by a general consent of all Lawyers the Sentence against many of them is not more to be defended than that of my Lord R. Mr. Sidney's and Mr. Hampden's had the same weak foundation only with this difference That the latter pleaded guilty but it is plain from what has been already said upon my Lord Russel's Case that he was not unless he was conscious of some other guilt than was charged on that Noble Lord. 'T is true in all Inferior Jurisdictions and Courts he is estop't to say he is innocent and that the Plea was extorted from him through menace of Hanging Drawing and Quartering because the admittance of such a Plea is repugnant to a Rule of Law That there can be no averment against matter of Record and the Plea is recorded but whatever Acts in pais and that are not recorded a man executes unvoluntarily by duress or threat of being beaten imprisoned or sear of other bodily hurt he may avoid them by pleading the special matter in an Inferior Court as for the purpose all Bonds Specialties Deeds Conveyances c. If a man consider this difference abstracted from the aforesaid Maxim it will seem very absurd and unreasonable that one shall be allowed to disannul an Act he persormed to save a beating or a short Imprisonment for which the Law would have given him reparation proportionable to the damage he should sustain and that Mr. H. shall not be received to make voâ—d his Plea by saying That he was forced to it to save himself and Family from the ignominy of dying under a Gallows therefore in Cases of this nature the Parliament ought to give aid and relief which may be done without inconvenience since the Parliament the Seat of the Legislative Power has an unlimited Jurisdiction and neither is nor ought to be so streightly bound up as Subordinate Courts From Mr. Hambden's Plea there ought no inference to be made to the prejudice of my Lord Russel since it was altogether involuntary Upon the whole I have perused that Noble Lord's Trial with the exactest care and curiosity and I do profess I can discover no Crime nor Conspiracy other than he was engaged in by an hereditary and unshaken Zeal and Concernment for the Religion Laws and Liberties of his Countrey and yet our Author has the boldness to repeat in both his Sheets That his Relations were pleased with the Justice dispenced to him by the Court. His Judgment cannot be defended without reflexion on our present Government which is founded on the generous and successful Attempt made by the People of England under the Auspicious Conduct of His present Majesty to recover their Ancient Birthrights 'T is true we that engaged in this Revolution are justified by a greater number of breaches and violations of our Laws And we have carried our resentments further There were Incroachments sufficient upon the people as appears before to authorize whatever he transacted and we found they improved and grew at length to such a height that we were forced to abandon our beloved Doctrine of Passive-Obedience and Non-resistance for a long time we were restrained the use of other than the Spiritual-weapons of Prayers and Tears so long that all the Secular and Civil Rights of the Kingdom were destroyed At length those two Leviathans the Dispencing Power and the High Commission Court were set up and began to prey upon the Liberties and Properties of the Church and then our Confessors gave us leave to resort to other sort of Arms which in less than six weeks time redeemed them and us For my part I was bred and will live and dye in the Communion of the Church of England as by Law established I believe it to be the best constituted Church in the World both for Doctrine and Discipline and as upon the Reformation She cashâ—ered those luxuriant Ceremonies that in the Church of Rome spread so far as to cover and shadow the root and substance of Religion so She seems to retain sew more than are competent and necessary for the decent and orderly discharge of Divine Service but my Affection to the Church cannot so far blind my Judgment as to approve the conduct of a great many of her Ministers and Clergy I was willing to compound with them and to admit That Fighting their Mothers Battle with so great Courage in her late distress should be an expiatory sacrifice to shrieve and absolve them from their former errors and miscarriages But I can hardly forgive such as now unseasonably return to their Vomit of Passive Obedience which they themselves by experience so lately found to be absurd and inconsistent with the general Laws of Nature and Self-preservation and that endeavour by their example as much as in them lye to alienate the bearts of the people from the Government at a conjuncture when the common danger of Religion and Laws do absolutely require the closest union and the strongest and most entire coallition of all the Protestants Power and Interest I cannot frame any colourable excuse or apology for these sort of Men. Their Murmurings and Discontents cannot proceed from the influence of their ancient and exploded Principle for even those steps towards the late Change which they encouraged authorized or concurred in were as much a departure from and a contradiction to the notion of Non-resistance as the Abdication it self Neither can I allow that they can be the result of just and rational fears of a design to turn this well tempered Monarchy into a Republick since that is more effectually obviated and prevented by setling Their Majesties upon the Throne than it would have been by the Regency or any other project that has been propounded or discoursed of nay I had almost said That the Regency did change our Monarchy into a Commonwealth for it stript King James of all his Prerogatives and Powers it left him indeed the Title of a King but the administration of the Government was to be lodged and intrusted in other hands Sparta had an Officer that bore the style of King but notwithstanding that the Government of Sparta is transmitted to us under the Title of a Commonwealth for in truth the King had not these Jurisdictions nor Franchises in which the Essence of Monarchy consists Such a King as there was of old in Sparta would the Project of the Regency have made King James which really was no more than to set
him up as a Pageant of State and a Statue of Authority But by setling the Crown upon Their Majesties it is preserved in its true rightful and ancient Lustre Powers and Prerogatives 'T is true The Rules of the Hereditary Succession are and must have been broke when King James was laid aside and no person whatsoever could during his Life be exalted to the Throne under that Qualification for non est baeres viventis a living Man can have no Heir is a Maxim of our Laws Since therefore all thoughts of King James's Restitution were abandoned and that no person could of right lay claim to the Crown it would have been next degree to madness to appoint any person for King that was not in a capacity to discharge the Duty and Office of a King which is to defend and protect his People Such a Power I do conceive to be a more essential Qualification and Property of a Sovereign Prince than any Right or Title by Descent or Proximity of Blood for that is required by the Fundamental Maxims of Government in general this only by Municipal Laws and Sanctions So that if a People set up for their Supream Governor one that wants some Legal Qualifications the worst imputation that malice can fix upon them is that they do transgress against the Laws of their Country but if they let up one for their Governor that is not able to protect them they do certainly offend against the first and original End of all Political Constitutions which is the Publick Peace and Safety and how far the Municipal Laws of any particular Kingdom or State do retain their force when they come to interfere with the Superior Laws of Nature and Self-preservation and with the Ends of Government in general I submit to every man's consideration What our Ancestors here in England thought of this Matter may be easily collected from the great number they had of Kings de facto that were not so de jure and as no man that is versed in our Histories can be ignorant of this so no man that is any thing acquainted with with our Laws but must know they make no difference in point of Allegiance between a King de facto and de jure Whatever is High-Treason against the one is against the other nay our Books carry this matter higher and do teach us That the levying War under the Authority of a King de jure against him that is King de facto is such an indelible Character of a Traytor that he may be tried and condemned in the Reign of such King de jure if ever he happens to be a King de facto likewise As His present Majesty was the only Person able to restore to us our Religion and our Ancient Government so it was on Him alone we could have depended for the continuance of these Blessings When I reflect upon the Temper and Disposition of our English Army after the Revolution upon the Powers and Strength of France and Ireland and upon the uncertainty of Scotland I do not see how it was possible for us to have supported our selves if the Prince of Orange had withdrawn himself and his Troops from among us and left us to shift for our selves as undoubtedly he would and ought to have done if we had excluded him from any share in the Regal Office for every body knows he made such a Figure in the Government of the States General of the United Provinces as rendred him one of the greatest and most considerable Princes of Christendom and was it reasonable to expect he should have relinquished his Post in his Native Countrey and be content to live among us in the quality of a Subject Was it reasonable that he should expose his Life his Fortune and all that was dear to him to rescue us from that State of Thraldom and Misery that we and our Posterities seemed to have been condemned to and should we make so ungrateful a return on our parts as to place him in a meaner Degree and ina more private Condition of life than he was before he underwent such hazards and sustained such Difficulties for our sakes Certainly the dissatisfaction some People express at our present Establishment must be occasioned for want of a due and serious consideration of that Deliverance which Providence has made our King the Instrument of If any man maturely reflects upon the preceding and concurring Accidents and Emergencies of the late astonishing Revolution he must admit that God Almighty did in an extraordinary and particular manner direct conduct and approve the Rise Progress and Conclusion of it To conclude The setting the Character of my Lord Russel in its true and deserved Light the redeeming his Name and Memory from the stain and infamy of the highest Crimes the proving his Childrens Title to the greatest degree of Honor and Vertue on the part of their Father which by the Universal consent of all they will derive and inherit from their Mother and restoring to the Laws and Justice of England their primitive Credit and Reputation are the sole abstracted Motives which prompted me to this undertaking I have not left the least handle for malice or ill nature to suspect that what has been here said in relation to the Government or my Lord Russel is the result of any external hope of advantage or preferment or of a servile disposition to flatter such as are in Power My Resolution not to be known will both secure me against those Imputations and against that Contempt which is the reward of ill Writers I do not pretend to be of so morose nor Stoical a temper as to think that at all times and upon all occasions men should confine themselves to speak or write nothing but what is the true and real Dictates of their Judgments The extravagant strains of Flattery which Pliny bestows upon the Roman Emperors in his Panegyricks was no hindrance to his living and dying with the reputation of a very honest and sincere Person To magnify the Power of Jupiter and the other Heathen Gods in a Declaration or Poem was never esteemed Blasphemy against the Great Jehovah And if a man be to speak or write to his Mistress 't will be ill manners to tell her that he courts her for her Fortune though it be the truth I do not censure the University Orator who I 've heard did in his Speech to Charles the Second highly commend him for his Sincerity Singleness of Heart and his exact observation-of his Word and Promises for any other thing than this That he should have praised him for some other Vertues than those he was so universally known never to have practised Upon these Occasions 't is expected men should exert their Wit and Fancy not their Veracity and I cannot deny That to make truth on these Occasions the standard may be clownishness and ill-breeding But I 'm sure I would as soon cut off my Right Hand as suffer it to write any thing that is not the result of my sober and deliberate Thoughts and Judgment upon so serious weighty and solemn a Subject as I have here presumed to discourse upon FINIS Books Printed for Richard Baldwin THE History of the Most Illustrious William Prince of Orange Deduc'd from the first Founders of the Ancient House of Nassau Together with the most considerable Actions of this present Prince The Second Edition A Collection of Fourteen Papers Relating to the Affairs of Church and State in the Reign of the late King James The Character of a Trimmer His Opinion of I. The Laws and Government II. Protestant Religion III. The Papists IV. Foreign Affairs By the Honourable Sir W. Coventry The Third Edition carefully Corrected and cleared from the Errors of the first Impression An Impartial Relation of the Illegal Proceedings against St. Mary Magdalâ—â— College in Oxon in the Year of our Lord 1687. Containing only Matters of Fact as they occurred The Second Edition To which is added the most Remarkable Passages omitted in the former by reason of the Severity of the Press Collected by a Fellow of the said College The Absolute Necessity of standing vigorously by the present Government Or A view of what both Church-men and Dissenters must expect if by their unhappy Divisions Popery and Tyranny should return again A Defence of the Late Lord Russells Innocency By way of Answer or Confutation of a Libellous Pamphlet Entituled An Antidote against Poyson With Two Letters of the Author of this Book upon the Subject of his Lordship's Tryal Together with an Argument in the Great Case concerning Elections of Members to Parliament between Sir Samuel Barnardiston Plaintiff and Sir William Soames Sheriff of Suffolk Defendant In the Court of King's Bench in an Action upon the Case and afterwards by Error sued in the Exchequer-Chamber The Lord Russel's Innocency further defended by way of Reply to an Answer Entituled The Magistracy and Government of England Vindicated Both writ by Sir Robert Atkyns Knight of the Honourable Order of the Bath and now Lord Chief Baron of His Majesty's Court of Exchequer