ADVERTISEMENT.  
REmarks upon the Trials of Edward Fitzharris, Stephen College, Count Coningsmark, the Lord Russell, Colonel Sidney, Henry Cornish, and Charles Bateman. As also on the Earl of Shaftsbury 's Grand Jury, Wilmore 's Homine Replegiando, and the Award of Execution against Sir Thomas Armstrong. By John Hawles, Barrister of Lincolns-Inn.  
Printed for Jacob Tonson at the Judge's Head in Chancery-Lane, near Fleetstreet. MDCLXXXIX.   

A REPLY TO A Sheet of Paper, ENTITLED, The MAGISTRACY and GOVERNMENT OF ENGLAND VINDICATED: OR, A Justification of the English Method of Proceed against Criminals, by way of Answer to the Defence of the late Lord RUSSEL'S Innocence, etc.  
Sic est. acerba fata Romanos agunt,  
Scelusque fraternae necis,  
Ut immerentis fluxit in terram Remi  
Sacer nepotibus cruor.  Hor. Epod. 7. 
Written by John Hawles, Barrister of Lincolns-Inn.  
LONDON, Printed for Israel Harrison at Lincolns-Inn Foregate, and Jacob Tonson at the Judges-Head in Chancery-Lane near Fleetstreet. MDCLXXXIX.   

A REPLY TO THE MAGISTRACY and GOVERNMENT OF ENGLAND VINDICATED, etc.  
HAving read and considered a sheet of Paper Entitled, The Magistracy and Government Vindicated, or a Justification of the English Method of Proceeding against Criminals, by way of Answer to the Defence of the late Lord Russel' s Innocence, etc. I could not but wonder at the Imprudence of the Publisher, and of those who applauded it, it being far from a satisfactory Answer; and in truth in serves only to refresh the Memory of things which the criminally concerned in have reason to wish forgotten. It must likewise be remembered, that whoever justifies what is generally taken to have been, ill done in the former Reigns, in consequence accuses the present Government of Injustice, the setting things right, which supposes them to have been out of Order, being the true reason and support of the present Government. I do not say that any thing heretofore supposed to have been ill done, or that any Person supposed to have had an hand in those things, supposed to have been ill done, ought therefore to own himself, as he is reputed, to be an ill Man; or that the matter condemned as a wicked and illegal thing, ought therefore to be so conceded by him, as that he should not vindicate himself from the Aspersion of having an hand in the Matter he is supporsed to be guilty of; or if he had an hand in it, that he should not defend himself, by showing the Matter was no Crime. But I am sure the Person who vindicates himself ought to be very circumspect in so doing. There is a very great difference between pardoning all Criminals, and declaring that no Man supposed a Criminal hath done any thing amiss; the first is an Act of grace, the last argues the Persons guilty of Injustice, who suppose a Man to be a Criminal, which Opinion they afterwards retract, and own themselves in an Error. I know it is a very inviduous thing to look back and see all the things which were ill done for about nine years past; all that at present I'll say is, that of all the illegal Prosecutions, the Prosecutions in Capital matters justly gave most Offence; and if my Lord Russel was not illegally prosecuted, rudely handled, and without such Cause as the Law says is good Cause, put to death, I will agree that there was no reason to find fault with any thing done before the first of December 1688. I do not say but that the Injustice to Stephen College, Colonel Sidney, and Mr. Cornish was more palpable, but I say the usage of my Lord Russel appeared to be equally unjust: all which the Author of the  Sheet thought to slur over, by insinuating it was the English Method of proceed, which he calls a justification of the English Method of Proceed in Criminal Matters, etc. And by those words at first sight one would think that the Author writ to some Foreigners, or if they were Englishmen, to Persons who did not understand the English method of Proceed; and if so, it would have been fit for him to have set down what the English Method of proceed was, which he does not: and if he intended the Paper to be the English method of proceed against the Lord Russell vindicated, he ought to have expressed what the method of proceed against him was, and have showed the Objections, and vindicated it, by showing the Reasons of those proceed, which he hath not done. The truth is, instead of treating of the matter according to the purport of the Title, he only falls on those who find fault with those proceed, and ventures on a Point of Law, which he pretends is the result of the Evidence given against the Lord Russell, without showing what Crime the Evidence against the Lord Russell proved him Guilty of. I will not in this place show the unfair Proceed, nor how far the Evidence against him proved him guilty, nor what Crime the Evidence amounted unto; it will come more properly in where it is said his Relations were satisfied with the justness of his Trial. In the intended Reply to this Answer, I thought it better to repeat the very words of the Answer I intended the Reply to, that it might not be said I wrested the Sense of the words of it; and if I omit some Clauses of the Answer, it is because they are only Reflections on the Persons pretended to be answered, and do not go to the Matter or Repetitions of that said before, and therefore are not worth taking notice of.  
In the present Age, when the variety and multiplicity of new Prints is such, that the Money and time required for their purchase and perusual, is more than an ordinary Gentleman can reasonably allow; it may deservedly be thought a nuisance to the public, to have their numbers increased, especially since the complaint of the ingenious Author of the Trimmers Chàracter, that for this very cause he could almost have wished himself unable to read; but yet the support of Magistracy and Government is a noble Theme, so useful to the public, and so generally agreeable to the humour of Mankind, that the mere Subject will (I presume) be an excuse for this Publication if any thing can be so.  
I agree the Prints of this present Age are very numerous, and I can give myself no other reason for it but one of these four, The exposing to view the Irregulatities, not to give them an harsher name, in the two former Reigns, which naturally provokes an Answer by way of Justification, and vice versa, which I reckon for two of the Reasons; the Author's Profit, which I reckon for a third; or else a certain Matter said by a suspected Madman of late years in the Court of Chancery, which I reckon for a fourth Reason. The Story was this, A certain elder Brother, being reputed a Malignant in the late times, his Estate was liable to Sequestration: His younger Brother had been of the other thriving side; so it was agreed between them two, that the Elder should fain himself mad, and the Custody of him and his Estate should be begged by the younger. It was done as agreed: The King returning, the elder would needs be compos mentis, which the younger would by no means admit, but kept him? in private and in the dark. By accident the elder found a way to discover the Oppression to a Friend, and desired him to consider how to relieve him: Accordingly the Friend suggested this matter to the Chancery; which Court made an Order for the youngers bringing the Elder Brother into Court, which was done: the poor man being relieved from imprisonment and darkness, and having not conversed with any person but the above Friend for a long time, and that but once during his Confinement, was overjoyed, when in Court, and consequently very lavish of his Tongue; of which the younger Brothers Council took notice, and said, My Lord, you may easily see what this Man is in his Understanding by his much talking. To which the suspected Madman replied, as to the Council, Sir, if you had been restrained from speaking so long as I have been, you would be glad to make use of the liberty of your Tongue when allowed you: upon which the Custody of him and his Estate was discharged: but I own it was the saying of a suspected Madman, and therefore not worth regarding or applying. I confess I should have guessed that one of those four Reasons had been the Motive of writing this Sheet of Paper (for I cannot call it a Book, and I will not be so unmannerly as to call it a Libel or Pamphlet; because if if it was not written, yet it was perused and approved of by all the Criminals in my Lord russel's Sufferings) but that the Author himself gives us the reason of writing it, by way of excuse, that it was for the support of the Government he writ it. It is true, he says, the support of the Magistracy and Government is a noble Theme, so that the Words made one hope he intended his Discourse of Magistracy and Government in general: But in that he as much deceives the Reader as in his Title Page; for there is not one word in his Discourse more of Magistracy or Government, than that Encomium. But I find he intended nothing but the Justification of the Government in the particular Act of putting the Lord Russell to death; and therefore If I had been his Adviser, he should never have made so large a Porch, but made it suitable to his House, and entitled it The Magistracy and Government of England vindicated, in condemning and executing the Lord Russel: and if the Author had a mind to it (though he needed not) I would be content he should have added by way of Answer to the defence of the late Lord russel's Innocence, etc. the Paper in no part of it pretending to more than what that Title fully comprehends; and being so, is one of the hightest Atfronts that ever was put upon the Legislative Power; which, out of a Sense of that Lords Innocence, and of the Irregular Proceed against him, so cunningly couched, that it was at least doubtful, whether by any ordinary Course of Law right might have been done to his Memory and Children, have thought fit by an Act for that purpose, to reverse the Attainder.  
At this time of day none would have thought that a necessity should happen of writing upon such a Topick, when every English Protestant was entertaining himself with the pleasing prospect of Impartial, due, and indifferent Administrations, when Authority was becoming amiable and easy to the People, when the People were inclining to a zeal and affection for the Honour of Magistrates; in short, when the Law was recovering its clouded credit: in this Conjuncture none expected to see all the Pillars and Posts in the Town daubed with plentiful Title Pages (like so many Histriomastrix's of Will. Prynn's) directing their Spectators to Books of Obloquy and Reproach, not only on the Persons and Opinions, but the Authority of Judges, when neither of the three are corrigible, or so much as censurable, any otherwise than in and by a Parliament; much less was it expected, that Gentlemen of the Long Robe would appear in Print for to ridicule their own Profession, and expose our Law even to the scorn of Foreigners. It would not have been so very strange to have seen a Doctor of the Commons exercising his Wit and Raillery on the Common Law Proceed, when he saw his dearest Diana, I mean, his Excommunication-Process in danger of becoming useless, and a fair occasion given him for such an Essay from the Disgust of the People against Westminster-Hall.  
Had any thing of this kind been done in the time of the Government, which this Paper pretends to vindicate, it was ten to one but that he had taken a walk from Aldgate to Newgate for it, and from thence to Tyburn, and it was well if he escaped a swing there: it might have been High Treason within the Stat. of Edw. the 3d. for it scandalised the Government, consequently alienated the Affections of the Subject from the king, which tends to an Insurrection or Rebellion, consequently is compassing and imagining the death of the King; and so the last is as natural a consequence from the first, as King Pepin is from Napkin Nipkin. But this Author had the good Fortune to write in a better time, when we are not only entertaining ourselves with the Prospect of, but we are well assured impartial Justice will be administered, etc. But for all the Authors luscious commendations of future times, methinks he a little forgets himself; for if Authority is but becoming amiable and easy to the People, and the People but inclining to Zeal for the Honour of Magistrates and the Law but recovering its clouded Credit; there was a time when Authority was not amiable or easy to the People, nor the People inclining to Zeal for the Honour of Magistrates, and the Law clouded: and if he admits that, it will be hard for him to vindicate the Government in those times; and even against himself he shows a necessity of enquiring into the reason of those things. We do not applaud but accuse the negligence or wretchlessness of that man, who recovering out of a great sickness, be it a Favour or the like, doth not consider what threw him into that Distemper, whether it was a Cold, a Surfeit, or what else, to avoid the like Disease another time: And it is plain, that Persons that can stand by and see others, though their nearest Relations, desected, do not do it as taking pleasure in seeing the Corpse of their deceased Friends mangled, but to know what carried them out of this World, to prevent the like disaster, if they could, in the surviving. What hath been may be again: It is fit therefore at this time to see the Cause why Authority was not amiable to the People, and why the People had not an affection for the Magistracy and Government, when it is so agreeable to human kind, and how the Credit of the Law came to be clouded, and even at this time, when we are recovering at least, if not recovered out of the Disease. When we desponded of a Recovery, it was as foolish to think of the Causes, as it is of a dying man, past hopes, to bethink himself what brought him into that Sickness. It is a vain thing to say that the Authority of Judges exempts them from an enquiry into, and censure of their Opinions: A Judge is omne exceptione, major in respect of the Suitor; so that he cannot except against a Judge as he may against a Juror, but his Opinion is censurable by all, and punishable if he act against his Knowledge: and as I think his Opinion is censurable, so I think his person ought to be pointed at and named in Justice to the Innocent, lest a Person Innocent should be suspected or concluded to be the man whose Opinion is censured. I confess when I read the Character of the Trimmer, wherein the Author says, he could almost have wished he could not have read, I cannot but remember that there was a time when I could have wished I had not read a Word of Law; for it was impossible to think how many men lost their Lives, and were ruined in their Estates, not only without, but even against Law: but those that saw it, must not only commiserate them, but in some sort bear a part in their Sufferings: And the matter went a little further, for none was secure, but it might be his own turn at some time or another, and his being a Lawyer no way secured him, it rather endangered him; for he was capable of being a Spy and a Discoverer, and in that respect the most Ignorant, which the Lawyers call Lay Gents, were the most unconcerned; they still thought there was some sort of Justice, and that if they were innocent they were safe. And on this Rock the Lord Russell, Colonel Sidney, and Mr. Cornish split. When the Lawyers and better advised fled, I think it is not only excusable, but the Duty of Lawyers, to discover the Erroneous Opinions, and much more the wilfully illegal Practices of Judges and of Persons of their own Profession, who were indeed authorised and sworn to execute Justice, but practised the contrary, their Patents neither did nor aught to exempt them from censure more than it does from punishment. If they have done according to Law, or according to the best of their Understandings, the first can do them no harm, and the last ought not to be inflicted on them; but if they have acted contrary to both, I think they ought to be discovered and exposed; nay, I think a Lawyer is not safe in concealing them. If it were so fatal to the Lord Russel, which as the Author says, was so much pitied in his Fall, to be knowing of matters treated of in several Consults, and not discover them to the Government, a Lawyer may well suspect that it may be as great a Crime in him to know several Persons, though of his own Profession, guilty of actions more heinous than the matters treated of in those Consults, and not discover them. If a Lawyer should be guilty of Murder, and another of his Profession should know it and not discover it, would it be an excuse for him to say that that other was a Gentleman of the long Robe? And what reason is there for the Gentleman of the long Robe to be so Civil to these Criminals, though of their own Profession? Were not they the Persons who in affront to the Inns of Courts, and in defiance of the Law, hanged up two of their own Profession before the Gates of three of the Inns of Court; and if the fourth Inn escaped, it was not for want of good Will but Opportunity? And had they not till of late hanged up the parboiled Quarters of two Persons at Temple-Bar, whereof one was a Barrister at Law, in affront to the two Neighbouring Inns of Court, to show the power of these Criminals, rather than their knowledge in the Law, to the reproach of their Profession, and exposing our Law to the scorn even of Foreigners? The Doctors of the Commons have been but little to blame; their Oppressions, if any, have been very modereate; theirs never extended farther than the restraint of Persons, ours have been loaded with Fetters, and generally ended with Blood; and therefore I will not use the Person of a Doctor of Commons to ridicule, expose, or accuse the Proceed of the late Times, but I will set up John a Styles and John a Nokes, the ordinary Plaintiff and Defendant in our Law, to accuse, expose, ridicule, and defend Dialogue wise, the late Proceed in Capital Matters; the last Part of this Paragraph being best answered in that manner. But beforehand I must tell you their Characters; John a Stiles is a Man no way concerned in the Proceed of the late Times, and is a mere Lay man; that is to say, a Man who understands nothing of Law, but reasonably sensible, and has the Curiosity to read all Pamphlets and Books which come out in Print. John a Nokes was a Common Lawyer of no great note or understanding, but zealous to vindicate the Law; they were acquaintance, often met and discoursed at a private Table in a Coffee-house: And John a Styles began.  J. S. 
Having nothing else to do, I have read over some printed Trials of Persons who suffered, particularly of Edward Fitzharris, Stephen College, William Lord Russell, Colonel Sidney, and Mr. Cornish, and the Charge to and Discourse with the Grand Jury which passed on the Earl of Shaftsbury, and I cannot but wonder that so many wise Heads as have been laid together to frame the Common and Statute Law of England, should make or allow it to be so very uncertain as it is, and even in the Matters of greatest concern, I mean Capital Matters, which I thought had been certain: For I remember Howell in his Dodonaes' Grove, wherein he makes use of our Names in Civil Matters, commends the English Method (as a late Author hath called it) of Proceed against Criminals at an high rate; but to me nothing seems more uncertain, and between you and I, I hope those Prints may never light into Foreigners hands, for if they do, it will expose our Professors of the Law, and even the Law itself to their scorn.  J. N. 
I own the uncertainty of the Law is the greatest Reproach you can give it, though a mighty advantage to the Professors of it. There is a Liberty given by it of giving Judgement any way they please, and still they have an Authority or Precedent to bear them out; and where the Law is doubtful, you cannot blame a Judge, if he takes Instructions, and a Gratuity for his pains in private: But I do not admit our Law is uncertain, I challenge any Man to show me out of the Trials you mentioned, or any other Printed and Licenced, that the Law is or was uncertain.  J. S. 
To satisfy you, look here on Fitzharris' Trial; Is it not the positive Judgement of the Court, that no Freehold is a good Challenge of a Juror in a Trial of Treason? is it not as positively resolved in the Lord russel's and Colonel Sydney's Trials, that it is no good Challenge in Trials of Treason? Is it not as plainly the Resolution of the Court in Fitzharris' Trial, that the Court hath a power to put off a Trial in Treason to another day, without the Consent, and even contrary to the Prayer of the Attorney General? And did not the Court as expressly resolve in the Lord Russell and Cornish their Trials, that they could not put off their Trials, no not till the Afternoon without the Attorneys Consent? Is it not as plain in the charge to the Lord Shaftsbury's Grand Jury, that the Court said that designing to Levy War was not Treason by the Statute of Edward the Third, but was made High Treason by the Statute of King Charles the Second? and yet was not designing alone to Levy War, allowed to be High Treason by the Statute of Edward the Third in the Lord Russel's Trial? Was it not agreed by the Court in Colleges Trial, that Prosecutions for High Treason on the Statute of Car. 2. ought to be within six Months after the Fact Committed? Was it not denied in the Lord russel's Trial that the Statute of Car. 2. confined the Prosecutions for Treason on that Statute to any time. I am indeed weary of enumerating the several Contradictions in those Trials; and even by the same Persons being the Judges in those Trials, I cannot think myself or any Man safe, who is subject to such an uncertain Law.  J. N. 
I own all the things you mention are true, but that doth not prove the Law uncertain, but the Person of the Judg.  J. S. 
I care not where the fault lies, but I am sure the Subject is in a miserable Condition; and I am sure it is not only fit, but necessary to make both Judge and Law certain.  J. N. 
The last is certain already, but how to make the first certain, is what no Age hath found an Expedient for.  J. S. 
Make a Law, they shall be certain in their Judgements.  J. N. 
The Law is so already, tho' of late days they have made bold to dispense with that Law.  J. S. 
Then make a Law they shall be punished if they do not observe it.  J. N. 
The Law is so already.  J. S. 
Why then are they not punished?  J. N. 
Because they are not thought generally to be punishable or censurable any where but in Parliament, and we have not had any for some years.  J. S. 
Why is not a Parliament called then?  J. N. 
That is the King's Prerogative to do, and he hath not thought fit to do it.  J. S. 
Why is not there a Law then that the King shall call a Parliament in the returns of some convenient times, as once a Year, or the like?  J. N. 
The Law is so already.  J. S. 
Why then doth not the King, who hath often promised to Govern by the Law, and to have frequent Parliaments, call a Parliament?  J. N. 
He is advised that he is not bound by those Laws; but the calling a Parliament being left to him, he may call a Parliament or let it alone.  J. S. 
At that rate, for aught I perceive, he will never call a Parliament; for tho' he is resolved, if he is by Law obliged, to call a Parliament, he will do it; yet if it be but a Discretionary Power in him he will not do it: for, as the Matter is at present apprehended, the sitting of a Parliament is an Eclipse of the Regal Power.  J. N. 
I do not say it is a Discretionary part in him, but I think it is a thing he ought in Justice to do, as much as constituting Judges, and the like, or suffering the Terms to be kept, which by the King's Command may be Adjourned, or put sine die, as we Lawyers talk.  J. S. 
I am sorry to hear this, for than we Subjects are in a miserable condition; for at this rate the Judges at Westminster-Hall may be as Tyrannical as the Decem Viri amongst the Romans; and there is no Redress, for they are not punishable but in Parliament: And some tell the King, and he so believes them, as it is reasonable for him to do, because they skill the Law better than he, That he is not obliged to call a Parliament, notwithstanding the Statutes: and he will not do it for the above Reason; and consequently they will go on in their Oppressions in infinitum.  J. N. 
You are mistaken in the Law and the Fact, for tho' they advised the King He was not obliged by those Statutes to call a Parliament, they meant He was not punishable if he did not call a Parliament; and that a Parliament could not meet without His Call, they did not mean that in Justice (the word Honesty is beneath the Honour of a King) He was not obliged to call a Parliament: They own, that where a Power is lodged in the King, in point of Honour, as the Calling of a Parliament, or Disbanding an Army, as was the Disbanding the Hounslow-Heath Army, He ought to do it according to the words and intent of the Acts of Parliament, by which He was obliged to Disband that Army: And they owned that it was a Reflection upon, I do not say an Injustice in the King, that He did not perform the Trust reposed in Him by those Acts: And you very well remember that That Regal Power of Disbanding an Army, because it was found the King did not perform His Trust, was afterwards given to some Subjects.  J. S. 
But suppose such Subjects should not execute the Powers given them; or should, as you call it, break the Trust reposed in them, Are we poor Subjects in a better Condition than we were before?  J.N. 
Not at all: You do not consider the condition of all Sublunary Affairs; you would have all perfectly Easy, perfectly Safe, perfectly Certain, whereas you know we are subject to Diseases, subject to the Malice of other Men, subject to the Treachery of other Men, influenced by their Advantages.  J. S. 
But cannot this be remedied?  J. N. 
Yes; I think it may, if the Judges were safe in the just execution of their Offices; and censurable if they acted contrarily: which can never be, unless their Offices be grantable to them for their lives, and the sitting of Parliaments be effectually secured.  J. S. 
But what will you do for the past Matters?  J. N. 
Forget them all.  J. S. 
I cannot possibly do it: I have read Horace lately, and there are some Verses run scurvily in my mind. 
Auro repensus scilicet acrior,  
Miles redibit. Flagitio additis  
Damnum, neque amissos colores  
Lana refert medicato fuco:  
Nec vera virtus, quum semel excidit,  
Curate reponi deterioribus.   J. N. 
There is no reason to mind them, they are Verses of an Heathen Author.  J. S. 
But he seems to me to be an Author of great sense: But you and I have wandered extravigantly from the first subject-matter proposed: What have you to say why your Law is not certain?  J. N. 
It is your fault; you have served me as the Persons in Ovid's Metamorphosis were, drawn me from one matter to another; and I humoured you in it, in order to give you a satisfactory Answer; and I think I have done it: for I say, the Law is certain; the Expounders of it have been uncertain.  J. S. 
Why then you would vindicate the Law by aspersing the Judges, whom you call Expounders of it: But, pray, if the Law be so for calling Parliaments, as you have laid it down, why would any Persons advise the King, He was not obliged to call One.  J. N. 
In the last part your Question you seem to have lost your Memory, you said some Persons had done amiss; I owned it, and said they were punishable for it in Parliament: and I dare say, neither you nor I, if we were in their Circumstances, would have given any other Advice to the King. And, as to the first part of your Question, if you will think of it again, you will be of my Opinion, That when the same Man, on the same Fact and Law, is of different Opinions it is the Man, not the Law, is uncertain: and that I take to be a Vindication of the Law; which was the thing I undertook.  J.S. 
There is some Reason in what you say, and I'll consider of it, and tell you what I think the next time I meet you here.  
Since the Press seems open, and Lawyers Books are published without a Licence, another may assume the same Liberty with equal Authority, and with more reason, when his Province is only to correct the misrepresentations of things, actions and persons, tho' made by Authors of Age, Experience, Figure and Learning (I will not say Candour or Honesty) especially since they are private Men, and having vented their own thoughts in print, they remain no longer theirs, but are equally exposed to be Censure or Applause of every Reader. Besides, 'tis generally presumed, that an Author expects a public Animadversion, or otherwise he would never have become such. He presumes his Arguments irrefragable, and then an Answer does him no mischief; and if they are otherwise, he deserves it. And surely he stands as liable to be corrected by others, as others were to be censured by him. And it is more warrantable certainly to Write and Print for the Vindication of former Proceed, than it can be either candid or gentile to arraign or expose them; especially since to do so, is and must needs be mischievous to past, present, and future Governments, as Experience will unquestionably teach us; but the other is, and will be of service to future Administrations, by maintaining the Reputation and Credit of Judiciary Proceed.  
It is well known, that the Lord Russel being so unfortunate as to fall under the Accusation of Treason, was the most pitied of any under those Circumstances, by all who knew either his Family, or personal Character; great expectations were then had of the issue of that Trial, the event gave great occasion for Discourse afterwards, and almost ever since; the Printing of his last Speech, with the several Answers to it, did much augment the talk. It cannot but be remembered how various and different the Sentiments of most were upon that subject; the Debates concerning it, generally concluded in a pity to his Person and Relations, as a great Misfortune upon both, and in truth, upon the Nation, that a Gentleman of such Qualifications should be guilty of so much Inadvertency (to say no worse) as to engage so frequently in such Consults as he unhappily did. Some blamed the Jury, most censured the Witnesses, but very few arraigned either Council or Court: and in truth, the fairness and indifferency of that Trial was such, that his own Relations were pleased, and his Enemies angry with those that then sat upon the Bench; and thus is continued till the present Revolution.  
I think it is not warrantable to Write or Print for the vindication of former Proceed, if by those Proceed are meant the Proceed against the Lord Russel, Colonel Sidney Mr. Cornish, and seveal others; and I think it is not only candid and gentile, but the Duty of every Subject who knows them to be illegal (as I do) to arraign and expose them, and the rather, because though it may be mischievous to the past, yet I am sure it is beneficial to the present and future Governments; as Experience hath and will unquestionably teach us; and I am well satisfied that the discrediting the Judiciary Proceed of those Times will be a service to future Administrations; for we well know that illegal Precedents which have past sub silentio, have by length of time gained Credit. The Lord Russell was indeed unfortunate to have lived in those times, when he thought it was his Duty to be active for the Protestant Religion, Liberty and Property, and every knowing Man was sensible that at that time it was impossible for him to escape an Accusation of Treason, and being accused, to escape a Condemnation for that pretended Crime. The honest, but ignorant in the Proceed of those times had indeed great expectations of the issue of his Trial, but the Tories as well as honest Lawyers, who knew the Proceed of those times, which the Author of the Sheet would vindicate, made no doubt but he was a dead Man, from the time he was seized. After his Speech came out there were no various Sentiments of the subject, all agreed he was Innocent, none pitied him; for that which was before pity in the honest, was turned into anger; and all the rest were enraged to find a Man reproach his Enemies in his Grave: and therefore I cannot but remember some passages of two Books; the one called, The Antidote against Poison, wherein the Author chargeth the Paper, called The Lord Russel 's Speech, That the Reader would not find the Ingenuity, Sincerity, or plain Style of a dying Gentleman in it, but the Dialect of an Artist, used to shadow Truth with ambiguous Expressions; and handles it as if he were to take Exceptions to an Answer in Chancery: 'tis true, he pretends the Speech was composed by another Person, and not his Lordship; but since his Lordship owned it to be his, it was the same thing as if he had composed it himself: and that Book chargeth his Lordship with Folly and Falsehood at the same time. The other called, Succinct Remarks on the Speech of the late Lord Russel, wherein the Author treats his Lordship as one of the Modern Traitors, and challenges all the Jesuits in Europe, to stuff a Speech with such Equivocations as the Protestant Jesuit, the Lord Russel had his; and Jesuit, Traitor and Hippocrite, Coventry-blew, Protestant-Lord, and the like, was the Dialect of that Pamphlet.  
Besides Jack Ketch's Vindication for giving so many strokes, which it was plain the Duke of Monmouth, as well as other Persons, thought was done by design; and therefore warned Catch not to give him so many blows as he did the Lord Russel; but he fared never the better for the warning: So that he is not lamented by all, as is persuaded.  
How far the noble Lord engaged in Company, where some matters, as he said, were discoursed with more heat than prudence, I know not; (the word the Author gives them of Consults, he borrows from the Popish Plot, and this pretended Plot was to ape that;) few or none blamed the Jury, but all honest Men arraigned both the Counsel and Court, as in truth they had reason, the Unfairness and Partiality of that Trial was such, that his Enemies laughed to consider what Tools they had made of some who sat on the Bench, to bring about what they had so long desired, and resolved to effect; but if his own Relations were pleased; I am sure it is to be imputed to their ill Nature, or Ignorance, if the Lord Russel was such a Person in his Qualifications, as the World and the Author represent him to have been; (as for myself, I neither knew him, nor was known to him, nor knew, or was known to his Relations, so much as by sight; their Fortunes perhaps carried them above the necessity of studying the Law, and their Business would not permit them leisure to read the Prints of the Trials, usually sold about Streets in those times; but if they had known, or been but credibly informed how different the Carriage of the Court and Counsel was in the Lord Russel's Trial, from what it was in other Trials; how different the Resolution of the Court and Counsel in points of Law, in order to bring the great End about; how very partial they had been in giving, and permitting Evidence to be given by Hear-say against the Prisoner, which they would not permit to be given in his Defence; and if they had been convinced of the Truths of all herein before said by J. S. in relation to the Lord Russel's Trial, I am sure it was not possible for them to avoid one of the above Censures, if they had been, or yet are pleased with his Trial.  
It could not be for the sake of the Government; for it can never be deemed a politic Service to rake into old Sores, when lenifying and moderate methods are more advisable; and if every thing should be republished which hath given disgust to the People, few would escape the lash; the righteous themselves would scarcely be saved; for abundance of them have tripped, either in their public or private conversation, and some in both, and that notoriously too: I name no body. Besides, the Government must of necessity never allow the Doctrines divulged in this Pamphlet, unless 'tis intended that its Being and Continuance shall be as precarious as a Beneplacito Judgship, and as dependent upon the People's Humour, as that is upon the King's: Nor can any Government countenance and encourage the Arraignment of a considerable number of wealthy and worthy Citizens, with the printed Censure and Insinuation of their being a parcel of corrupt, ignorant, injudicious, dishonest, and partial Fellows, and this is done to the full, when said, that the contrary would have sworn to a Not guilty, or at leastwise they should if the Auuhour had been there. But most of his Readers are of another opinion, notwithstanding the second Letter, pag. 7.  
If Bodies Politic are like Natural Bodies, as some have said, it is fit to search the bottom of the Sores, before the Medicine be applied to it, for Lenitives are not proper for all Sores; it makes some worse; whilst they make a seeming Cure, they at last break out into dangerous Imposthumations, and for some Sores Corrosives are the best Medicines: Private Conversations do not disgust the People; it is the public Inquiries, and of those the bloody ones do most distaste them, and of those none more than the Execution of the Lord Russel, who they upon just Reason thought died a Martyr for the Protestant Religion, their Liberties and Properties, and in gratitude mourned for him whilst alive, and require an account of his Death of those who brought him to the Block. I am sure all Governments, which do not depend on the People's , must be as precarious as a Beneplacito Judgship, and be held by a force which a Prince can never be sure of, of which we have had a late Example; and I am sure those who think they are injured in themselves, in their Relations, or in their Fears; what inflicted on those that suffered, being justly feared by all the honest men, who by Friends or Rewards escaped, are as yet unsatisfied, and which are the greater number, the late Revolution plainly showed; and whether it is better to gratify those who are proud of the Spoils of their Neighbours, and confident enough yet to bid them defiance, and threaten to act the same things over again, assoon as they arrive at Power enough so to do; or else to do right to the Injured, who are by much the majority, I leave to better Judgements to determine.  
I am not for arraigning the wealthy, worthy, or any Citizens, as the Author doth, p. 2. but for placing the Saddle on the right Horses backs, the Judges and Counsel, whom the Author in the same page endeavours to excuse; It is true, it is cunning in them to insinuate Fears in all to gain a Party, that at least number may defend them; but inquire narrowly into the matter, the number of those who have done those Wrongs and Mischiefs which the Nation is sensible of, as were never acted amongst any People in so short a time, are very inconsiderable; and truly, I think it were well if some person, to make the Government sensible of their weakness, would single them out. A.B. Bancroft could never make K. James I. sensible of the inconsiderableness of the puritanical Party, as they were then called, who boasted themselves to be the majority of the Nation, till he gave the King a List of their Names, and the number of their Heads; which being few, the Party became after despicable.  
Was it a Secret to the World, that a variance between the Indictment and the Evidence might be alleged on the general Issue? Did not Man in Town know that Treason, and the Misprision of it, are different Crimes? Is the distinction between them such a new invention, and so very useful, as to be an equivalent for the want of Counsel in capital Trials? as the Preface and Letter do insinuate, if they do any thing. Who ever doubted, but that proofs of Treason must not be by hear-say or argument only? Was it ever a question for this hundred years, but that every Indictment of Treason must contain an Overt-act? Or that less than two Witnesses was allowable for proof of that Crime? Or did any Man ever scruple by that Keble 's Statute-Book contains a true Copy of the 13 Car. 2. cap. 1. which requires Witnesses credible? Now if these Questions must be answered in the Negative; how can the advice of these Letters be assistant to a better Defence, than was known long since?  
It was not a secret to the knowing part of the World, that variance between the Indictment and the Evidence might be alleged on the general Issue; nor that Treason and Misprision of it were different Crimes; nor that proofs of Treason must not be by hear-say, or argument only; or that less than two Witnesses were not allowable for proof of that Crime; but the contrary of those were so frequently practised and imposed on the Juries, unknowing in the Law, by persons whose Characters imported Integrity and Knowledge, though their Practice contradicted their Characters, that it was fit to let the World know what the Law was in vindication of it. I am sure it is very fit for the Liberty of the Subject to have the Law established certain, and those who are against it, and would have it as arbitrary as in the late time it was, do it with a design to have the present Government as odious as the former, and then they know, by the late Example, that it will be as easily subverted; but if Conspiracies to levy War are not Capital crimes, are they therefore unpunishable? Surely they are not. It is true according to the Doctrine of the late times, nothing but hanging and quartering, or tantamount, was thought a punishment. There are such things as Fines and Imprisonments; which are pretty severe punishment; and upon occasion; there is a power in the Legislative Authority to make such Crimes capital, even after they are committed, but that Authority did not think fit to vest such a power in the ordinary Courts of Justice.  
The Assertions are two, that there was neither Charge nor Proof, that the Indictment and Evidence were both insufficient.  
I must confess, that it would be a mighty Addition to the Liberty of the Subject, to have the Law established, and declared to be what the late Judge doth argue it is; for then there would be a freedom for Malcontents to endeavour their own satisfaction by Conspiracies and Consults, and that with impunity. But as the Law was, and always hath been taken to be, an English Subject hath very little colour for his pretence to such a privilege as that Doctrine gives.  
The Indictment is, That at such a place and time he did compass and imagine not only to deprive the K. of his Government and Royal State, but to kill and put him to death, and to procure a miserable slaughter among the K's Subjects, and to subvert the Government of Engl. and to raise a Rebellion against the K. Then follows, That to fulfil and perfect these Treasons, and traitorous Imaginations, he, together with other Traitors, did then and there with them traitorously consult, conspire, conclude, and agree to raise a Rebellion, and to seize and destroy the Guards of the K's Person, contra, etc. Now whether these last acts be not a natural and genuine Evidence of the former, let any rational man judge: But I will particularly prove, that this Indictment was sufficient to warrant the Judgement which the Court gave and pronounced upon a Verdict, that the accused was guilty of that Fact in the Indictment, and then answer the Objections.  
1. There is a sufficient Treason alleged. 2. Here's a sufficient Overt-act; both these I'll agree are necessary, and if either were wanting, the Indictment was naught. Now it must be agreed to me, that the first is clear and plain; for by the Law to compass or imagine the death of the K. Q. or their eldest Son, is high Treason. It is true by the same Law some open act, of which humane Justice can take a Conusance, is requisite to be proved; the very words of the Statute do expressly require it; and in truth it is no more than what must have been, had no such words been used; for thoughts are secret, and can never he arraigned, proved, or censured any otherwise than as they are discovered by some Overt-act; so that that Clause requiring an appearance of the Compassing and Imagination by some Overt-act, or open Deed, is no more than would have been impliedly requisite, had the Clause been omitted. 'Tis the Imagination and Compassing which is the Treason, that alone is the Crimen laesae Majestatis, which is prohibited and condemned; the Overt-act is not the Treason, that's only a necessary circumstance, without which no Court can ever take conusance of the other. And it is necessary to allege some such deed, a necessitate rei, without respect to the words of that Statute. I insist the longer upon this, because it is used as an Objection, that the Clause of provably attaint by, etc. is restrictive, whereas it is not so; for it is only to make that first specified Treason of Imagination and Compassing to be a thing intelligible and triable; and farther to prove this, it is considerable, that this Requisite of the Overt-act is of use and necessity barely, and only in the case of that which is first mentioned, viz. Compassing; for the other sorts of Treason are Acts themselves, whereof notice may be had, as levying War, violating the Q's Bed, and the like; and in an Indictment you need only allege the Facts themselves, as that there was a War levied, there was a carnal knowledge had, and the like. And this farther appears from the very form of Indictments used ever since that Statute; for there never was an Indictment (and if there were, it could never be good) barely averring an Overt-act without an express allegation of the Compassing.  
Then the Matter results solely into this Question, Whether the Fact here laid be naturally and necessarily declaratory of the Parties Imagination to destroy the King; for if so, the Indictment is undoubtedly good; and it can never be called a constructive Treason, or a Thing devised by the Judge's Interpretation of the Statute; for they adjudge no more Treason than what the Statute declares, and that is an imagination of the King's Death; now whatsoever is signicative of a man's Intention or Imagination, is a sufficient Overt-deed to demonstrate, that that Man had such an Intention or Imagination; and whatsoever is expressive or significative of a Man's intending, compassing, or imagining of the King's Death, is a sufficient Overt-act to prove and make such a Man a Traitor within this Law. Now that a Consult about, and an Agreement and Conclusion actually to seize the King's Guards, and raise a Rebellion, are a natural and genuine declaration, that the person who did so consult, agree, and conclude, did compass and imagine the Death of the King, is surely plain enough; for a Rebellion, if successful, can determine in nothing else but the King's Death, either Natural or Civil, which is all one within this Law; now he that designs and intends the necessary means naturally conducing to a particular end, that Man may certainly be said to intent and design that end. Causa causae est causa causati. If the Deed tend and conduce to the Execution of the Treason, that's a sufficient Overt-act, says Coke, 3 Inst. 12. and in the same Book, fol. 6. he hath these words, That he who declareth by Overt-act to depose the King, is a sufficient Overt-act to prove that he compasseth and imagineth the Death of the King; and so it is to imprison the King, to get him into his Power, and to manifest the same by some Overt-act; this is also a sufficient Overt-act for the Intent aforesaid.  
Having tracked the Author thus far to very little purpose, still expecting what he would say in Justification of the English Method of Proceed against Criminals, particularly against the Lord Russell, with which I can by no means be reconciled. I was a little surprised to find him begin with a Justification of the Indictment; I expected he should have said something to justify the clapping that Lord up close Prisoner, without letting him know why or wherefore; the bringing him to his Trial assoon as he was indicted, not giving him the respite of an hour to prepare himself for his Defence; and have shown a Reason why no Freehold was no Challenge to a Juror in his Case, which was allowed to be a good challenge in Fitzharris his Case; have shown a reason why hear-say was not as good Evidence for the Prisoner as it was against him; and why the Court permitted hear-say to be given in Evidence against him, and would not permit it to be given in Evidence for him; these, and twenty other things complained of in that Trial. By the Title of the Paper one would have expected that the Author would have vindicated the manner of proceed, rather than the opinion of the Judges construing such or such Facts to be such or such Crimes: But since the Author, as he had reason, hath thought fit to pass by all the irregularities of the Trial, and ties himself up only to prove the Indictment good and legal, and the resolution of the Judges to be Law; I shall therefore only speak as to those two matters.  
The Indictment was for compassing and imagining the death of the King, and conspiring to levy War, which was compassing and imagining the Death of the King, and as an Overt-act they consulted and agreed to raise a Rebellion, and to seize and destroy the Guards of the King's person: That there is a sufficient Treason alleged in the Indictment, I agree; but that there is a sufficient Overt-act of the Treason alleged, I deny: For though the death of the King is sometimes a consequent of a Rebellion, yet it is not always, much less is it a consequence of a Consult, Agreement, or Conclusion to raise a Rebellion; and to say truth, it is ridiculous to say that a Conspiracy to do one thing, is an Overt-act of a Conspiracy to do another; and the Author himself, in effect, owns it to be true, when he says an Overt-act must be something done, but if an Agreement to raise Rebellion, and seize the Guards, should be called something done; yet it not being a necessary declaration of the party's imagination to destroy the King, as it is not, it is not an Overt-act of that Treason. The truth is, the Author in this matter uses abundance of words to the same sense, which at the first sight looks like arguing, but if considered have nothing of reasoning in them: He says it is a natural, genuine, necessary, Declaration, etc. but gives no colour of Reason, more than abundance of words, to prove the consequence; but because I would put the Author in the right way of reasoning this matter, in which there is nothing of Law, but common sense, and of which every man of equal natural Parts is as good a Judge as the best Lawyer. I say, there are two sorts of Overtacts of a Man's Intentions; some prove themselves, and are direct Evidence of the Intention; as for Example: if a man cuts another's Throat, though that other doth not die of the Wound, yet it is an Overt-act of an Intention to kill him, some are Overtacts and not direct Evidences of the Intention; but the Intention, as well as the Overt-act, must be proved; as if a Man should be hid in a place where the King usually comes, armed with unusual Weapons, this is a good Overt-act in the Indictment, and good Evidence on the Trial, if the Prisoner can give no good account of his being so lurking, and so armed. And though I will not say that these are all the sorts of Overtacts that may be laid in an Indictment, yet at least I show the Author, that Overtacts are capable of a Reason, and since he hath offered none for his Overtacts, I suspect he could give none; but if a Conspiracy to seize the Guards be an Overt-act of compassing, etc. I pray what were those guilty of who said the Guards were illegal, when there was no apparent cause for keeping them on foot? Was not the suppressing them a pretty genuine consequence of such an Opinion? and than you know, Causa causae est causa causati; and so it follows as naturally as the Soldiers Posture did on the Beat of Drum.  
In 3 Inst. p. 12. 'tis held, that a Preparation by some Overt-act to depose the King, or take the King by force and strong hand; or to imprison him till he hath yielded to certain Demands; this is a sufficient Overt-act to prove the compass and imagination of the King's Death; for that this, upon the matter, is to make the King a Subject, and to despoil him of his Regal Office; and so be says it was resolved by all the Judges of England, Hill. 1 Jac. 1. in the Case of the Lord Cobham, Lord Grace, Watson and Clark, Seminary Priests; and so he tells us in the same place, that it had been resolved by the Justices in the Case of the Earls of E. and S. Now if we consider the reason why these are Overtacts of Treason, 'twill appear to be only because of their natural tendency to the accomplishment of that particular Treason of compassing, which holds the same in the Author's Case as well as in those there mentioned.  
A Conspiracy with a foreign Prince is agreed by my Lord Coke, ib. 14. to be Treason, if it be to invade the Realm; and an Overt-act of such practice to be a sufficient Overt-act of a compassing the King's Death; and the reason is, because such actions cannot be thought to be intended for any other purpose; and yet that particular Act may be accomplished, and it may so happen, as that the King's Death may not follow, and yet they are Overtacts of that treasonable Imagination, because of their conduciveness and tendency thereto. The Case of Cardinal Poole was, writing a Book of the Pope's Supremacy, in which were contained Incitements of Charles the Emperor to an Invasion of this Realm; and that was held an Overt-act of imagining the King's Death. In the Lord Cobham 's and Sir Walter Raleigh 's Case, a Conspiracy, Consult, and Agreement to promote an Insurrection and procure an Invasion, was held an Overt-act, I Jac. 1. and their meeting, consulting, and agreeing, was laid as an Overt-act, though discovered before the thing took effect. Dr. Story 's Case, which is mentioned by the Lord's Dyer and Coke, was no more than a Practice and Persuasion to promote an Insurrection and Invasion, and the Overt-act that was alleged was the writing of Letters for that purpose; which is no more influential towards it, nor so much, as frequently meeting, consulting and conspiring, and at last concluding and agreeing to make an Insurrection. The Case of Mr. Coleman was no other; for whatsoever the Indictment laid, the Evidence was only of Letters to the like effect (as to this point) with those of Dr. Story; and that Case of Dr. Story was before the 13 Eliz. which made a new Treason during her Life; for the Trial was in Hillary Term, and the Parliament did not begin till April following. A Machination or Agreement to raise a Rebellion naturally tends to the Destruction both of King and People; and an Advice to it hath been adjudged so: as in the Reign of Hen. 4. one Balshal going from London, found one Bernard at Blow in the Parish of Ofley in the County of Hartford, Balshal told him that King Ric. 2. was alive in Scotland, (which was false, for he was then dead,) and advised him to get Men, and go to King Richard; in Mich. 3. Hen. 4. Rot. 4. you'll find this adjudged Treason. Throgmorton 's Case is as plain; for his was only a Conspiracy to levy War within this Realm, he did not join in the Execution; and the Conspiracy alone was declared to be a sufficient Overt-act by the Judges: 'Tis no Answer to it, to say that a War was afterwards levied, for quoad him 'twas a bare Consult; his Offence was no more than that. In Sir Henry Vane 's Case, meeting and consulting were alleged and held to be Overtacts. The Case of Constable mentioned in Calvin 's Case, was only an Act tending to deposing the Queen, as dispersing Bills in the Night, that Edw. 6. was alive in France; and held an Overt-act declarative of his compassing her Death, and he was executed for it: and in the Report of Calvin 's Case you have several other Cases mentioned, where endeavours to withdraw Subjects from their Allegiance, have been adjudged Overtacts of this species of Treason, the compass, etc.  
The word Compass in the Statute is of a larger extent than only to mean an actual Assault on the King's Person, and an endeavour to cut his Throat; it most certainly implies any consult or practise of another thing directly which may produce that effect, as dissuading people from their Fidelity: such was Owen 's Case in K. James 1st's time, in the 13th year of that Reign: his Advice was to this effect, That King James being excommunicated by the Pope, might be killed by any man, and that so to do was no Murder; for being convicted by the Pope's Sentence, he might be slaughtered without a fault, as an Executioner hangs a Criminal condemned by Law: and for this he was hanged as a Traitor. He that denies the Title to the Crown, and endeavours to set it upon another's Head, may do this without a direct and immediate desiring the Death of him that wears it; (so said Saint-John in his Argument against the Earl of Strafford,) and yet this is Treason, as was adjudged in the Case of Burton, and in the Duke of Norfolk's Case, 13 Eliz. This denying of the Title with Motives, though but impliedly of Action against it, hath been adjudged an Overt-act of compassing the King's Death, as it was in John Sparhawk 's Case, Pasch. 3 Hen. 4. Rot. 12. The like was the Case of John Awater, who was indicted for a Treason of that ture in Kent, and the Indictment removed into B. R. Trin. 18 Ed. 4. see Rot. 17. and he was thereupon afterwards outlawed as a Traitor; and so was Thomas Heber at the same time; and words significative of an actual intention have been held so, as are the opinions in Yelver. 107. 197. Arthur Crohagan 's Case, Cro. Car. 332. and abundance of others might be named, as they are reported in our Law Books, but I do not particularly mention them, for that their Authority in some of them is very slender, and may be ill used to the straining of rash and unadvised Words into a signification of a man's compass, when perhaps the man never thought as he spoke: however, all of them do evince, that advised and deliberate Preparations, moving to a danger to the King's Person, have all along been held Overtacts of a compassing his Death; and some of them prove, that Preparatives and Motives to the levying of a War, have been held Treason, as was Sir William Ashton of Suffolk, 31 Hen. 6. mentioned in Cro. Car. 119. for making Ballads reflecting upon the King, and writing Letters to the Men of Kent, exciting them to rise to aid the then Duke of York, etc. ad guerram levandam; and no mention of any War actually levied.  and Taylor 's Indictment hath very little more in it mentioned than the like Preparations and Incitements to a Rebellion; and yet the Treason there laid was a compassing the King's Death, anno 2 Edw. 4. as at large appears in the same Report of Cro. Car. amounts to no more than the Indictment in question; viz. That he compassed the King's Death; and to accomplish that Intention, he dispersed divers Writings, etc. ad intentionem that the People should rise, and levy War, etc. the Judgement in that Case, Drawing, Hanging, and Quartering: the like is Collingbourn 's Case 2. Rich. 3. in the same Rep. 122, where he is indicted in like manner, for exciting and moving the People to an Insurrection and War, and he incurred the like Judgement; which Cases are infinitely short of this in question: and it cannot but be wondered that any man who has read them should question whether a consulting and conspiring about rising, and an actual agreement and determination to rise, be an Overt-act of compassing the King's Death. In the very Trial of the Lord Stafford is it affirmed by Sir William Jones (who was certainly of great Authority with the Author) that the meeting and consulting together is an Overt-act, though the thing agreed on be never put in Execution; and 'tis there resolved by the Judges, that the same Treason may be proved by two Witnesses to several Overtacts, though one speak of Words or Actions that were spoken or done at one time and place, and another speak of Words or Actions at another time and place; which argues that Words, much more a Consult and Agreement, may make an Overt-act. Even in the Case of Stephen College, in which though the Trial hath been censured, yet the Indictment never was, and in that Indictment the Treason is laid as in this Case, That he traitorously imagined and compassed the King to Depose, Kill and Destroy; the Over-acts are, That he armed himself, and advised others to arm, and spoke several Words, etc. Here was no War levied, only a Preparation, and yet that was allowed an Overt-act: and as for the Words, if they are allowed to be one, with much more reason Meeting, Consulting, and Agreeing to do.  
As to the Objections; surely there is no weight in the first, which is Page 10. that criticises upon the Word fait Act, and that 'tis only a meeting to agree, and an agreement to do, but 'twas not done: Suppose they had concluded and agreed to poison or stab, etc. according to the opinion in that Page, this was no Treason; for 'tis only agreeing and concluding upon a thing to be done, but it is not done. He doth in p. 13. argue, that this can never be an Overt-act of compassing the King's Death, because levying War is a distinct species of Treason; and a conspiring to levy War is not a levying War; and even levying War itself can't be assigned as an Overt-act of compassing, unless the Indictment were particularly for that: but surely another sort of Act, that savours of another species of Treason, if it naturally conduce to the accomplishing of the first species, viz. that of compassing, it may be assigned as an Overt-act of it; and Sir H. Vane 's Case is quite otherwise, and there a levying War was the Overt-act alleged of the compass, and allowed by all the Judges; and all the Indictments in the West upon Monmouth 's Rebellion were so, and yet drawn by every good Advice; besides, what Answer can be given to the Cases I have cited, where Consults, Conspiracies, Practices, Advices, Letters, Persuasions, and other Motives and Preparatives to an Insurrection, have been held Overtacts of an Imagination of the K's Death, tho' no War was levied, no Insurrection had.  
'Tis apparent from what has been said before, that to take the K. Prisoner, or to seize his Person, is a compassing of his Death; and if so, then to sit in Council to conspire the effecting of that, is an Overt-act of compassing the K's Death; and this Case amounts to that, here was a Consultation to seize upon the K's Guards, which could tend to nothing but the seizing of his Person; and then the consequence is plain. The Author says, p. 14. If it had but been alleged in the Indictment, that in pursuance of the Consult and Agreement, there had been a view of the Guards, and a Report made, that the thing was feasible, this would have been more to the purpose, how much more no man can tell; for every Objection in the Book would have been as good against that as this. The great Objection he seems to rely on, is, That the Law takes no notice of them: for once I will suppose that it doth not, and then let us observe if any Argument can be drawn from thence: Perhaps the thing was not used or known when the 23 Ed. 3. was made. Can nothing be Treason if the Plot laid to accomplish it be concerning a thing not in esse at the time of the Stat. Certainly it may. If several Malcontents should consult, and agree, and prepare (in order to an Insurrection) to seize the Tower, Portsmouth, Hull, and Plymouth Fort, would not this be an Overt-act of Treason? and yet our Law takes no notice of any Garrisons there or any where else; they have no Relation to the Militia, nor were there any Arms in those places in Ed. 3. his time, that we read of in our Law-Books; if this be otherwise, why did not the Author find fault with Rouse 's Indictment, which was tried much at the same time with this in question. Suppose all the Gentlemen-Pensioners, Grooms of the Stole, Gentlemen of the Bedchamber, and the like, killed in the Night, and the doors in Whitehall broken up, and all the Swords, Muskets, and Pistols there taken away, and yet it happened that the K's Person was left untouched; would this be an Act of Burglary and Murder only? We have no Law Books that take notice of Arms at Whitehall, or such Names as those Servants go by: and suppose, at the same time, upon the Consult, that the Conspirators did move, discourse, debate, and conclude of an Insurrection, would it not then be Treason? If not, nothing can be so, unless the K's Person be murdered or seized; and the St. should not have said compass or imagine, but seize or kill, etc. It suffices then, that the Guards are in common understanding known to be used and employed for the Attendance upon and Preservation of his Person. If common Sense and Reason be judge; no man can think but that he who intended to move an Insurrection, and seize the Guards, had a farther design upon the K's Person; and then 'tis Treason: If otherwise, a King of England is in a worse Condition than the worst and meanest of his Subjects; for a King must not, cannot in or by our Law, assault, strike, seize, attach, or imprison in Person, and consequently cannot defend himself; and shall not his Servants, Guards and Attendants (which are all of the same nature) wear a Sword, or carry a Musket before him? If they do so, is it not then known that they do it? if it be commonly known to be so, doth not he that seizes and destroys those Attendants, endanger the K's Person? and if that be so, the Inference is easy. It can never be, it will never be allowed for Law, that a seizing all the K's Guards is only a breach of the Peace, unless we renounce the Law, and will judge more by Inclinations and Partiships than by Reason and Precedents. As to the distinction between an actul 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 K's Guards as an illegal thing and terrible to the People, somewhat of the French growth, I hope the K. will always preserve them for his own personal Preservation, notwithstanding the Authur'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 compliment 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 the 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 Grace 's Case, there was only a Conspiracy: He says, that in Sir H. 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 Murder of a Mistress 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, satisfy those of the King's Bench, that Master and Mistress were in effect but one.  
The Indictment contained no new constructive Treason, but only that which was plainly and directly declared in and by 25 Edw. 3. if the letters of it make words, and the word 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 easy Places on't, as well as their Predecessors, and much good may it do them.  
Aetes' parentum pejor avis, tulit  
Nos nequiores, mox daturos  
Progeniem vitiosiorem.  Horat. 
The Truth is, the Indictment, though I think it was not good, yet it was the least defective of any thing; in that whole prosecution the Evidence was the most defective, (which the Author dares not by't at,) and yet the Author doth not pretend it amounted to more than an intention to levy War, which is not Treason within the Statute of Edw. 3. he quotes indeed a great many Cases to prove his Thesis, to every one of which something shall be hereafter said, only at present I cannot but wonder at the assurance of any man who pretends to understand the Law, when the Parliament, which is the supreme Court of Judicature in the Nation, hath so often adjudged, that it is not Treason within the Stat. of Ed. 3. that he should think to confront and overrule those Judgements by Judgements given at Westm. or at the Assizes: Surely it is as ridiculous, as if in any Court at Westm. a Counsel should think to ever-rule a Judgement given there, by the Authority of a Judgement given in an inferior Court by a Steward, or a Bailiff; that Person was excusable, because he did not, pretend to understand Law, who said in Parliament, that if they did not do him right there, he would not abide by it, but would bring the Matter into Westminster-Hall. For is not the Stat. of C. 2. which makes a Conspiracy to levy War during the King's life an express Judgmt. of the Parliamt. that it was not Treason within the St. of E. 3. is not the St. of the 13. of the Q. which made it Treason during her Life; another express Judgmt. in the same Case to the same purpose. And is not the Judgmt. of the Parliamt. as it is the supreme Court of the Nation, of more Authority than any Judgmt. in Westm. Hall, and much more than any Judgmt. at the Assizes or Sessions. Besides, consider the Parliamt. which consists of all the Nobility, assisted with all the Judges, and of the best of the Gentry, and assisted with Lawyers, and none can doubt which Judgmt. aught to carry most authority with it. Consider the imputation which is laid on the St. of E. 3 by such construction a St. seemed to be penned with all Wisdom and circumspection imaginable, out of a sense of what the Subjects had suffered by the uncertainty of the Law before, and which in all ages hath been applauded for the best penned Act to be found, and which in all ages hath been made the Standard of Treasons; for when out of Flattery, or in compliance with the King, Treasons have been multiplied, out of a sense of the mischief, they have afterward still been restrained to the St. of E. 3. and yet by this construction, that St. is made guilty of an absurd tautology; for if conspiring to levy War be compassing the K's death, which by that St. was Treason, it was absurd afterwards to say, that actual levying War, should be Treason; because a War cannot be actually levied, without a Conspiracy to do it, though there might have been a Conspiracy to levy War, and yet not afterwards actually levied: And the true Reason of the difference, is this: What tends to the mischief of the King's Person, every one knows; but what is War, is not so certainly known. Those who went to throw down Enclosures, did not think it to be levying War, though it were so; and it would be hard to make their consulting to do it high Treason: I do not instance in this as a parallel Case with the matter in question; but only to show, that what is War, or not War, is not so easily known, as at first sight apprehended; and the Makers of this Statute, who had smarted by pretence of levying War, were more strict in penning the Clause of War, than they were in penning the Clause of Compassing, etc. In the time of Henry the Fourth, in the Earl of Northumberland's Case, it was doubted, whether his riding armed with a Force, for a private Revenge, was not levying War? which was a Doubt so great, that it was resolved in Parliament, to be only a Trespass. And if what is War is so uncertain, the intention of levying it is more uncertain. Let any one but remember how narrowly Blague escaped, but for talking of the feasibleness of taking the Tower.  
Now though I agree, That conspiring to depose or imprison the King, is high Treason, within the first branch of the Statute of Edward the Third, because they destroy him in his politic Capacity; it is no manner of inference to say therefore, conspiring to levy War is high Treason within that Statute; because, if the Conspiracy took effect, the Death, or Deposing the King, doth not naturally, much less necessarily follow; nay, it very rarely hath so done: And let any one examine our Histories, it will not be found to be a Consequence once in forty times; whereas if a Conspiracy to depose or imprison the King, if it take its effect, he is actually deposed or imprisoned. The first Conspiracy is remote; the last is next the Deposing; (a distinction of great use in our Law, and in Treason, as is to be seen in my Lord Bacon's Elements;) much less doth it prove, that the Consequence of a Design to seize the Guards, is to kill, depose, or imprison the King: For time was, when the Kings of England were very safe, and at at full liberty without Guards; and, to say truth, no one instance, in our English Histories, can be given, That a King hath been killed, deposed, or imprisoned, for want of Guards. I know it hath been pretended, that King Charles the First had not went from Whitehall, if he had had Guards; but that is but a Conjecture: And it is a doubt, whether his departure was forcible, or voluntary. Guards may defend a Prince from a sudden Attempt, (and scarcely so; for Henry the Third, and Henry the Fourth of France were killed; the first in the midst of his Army, the last in the midst of his Guards) but not from the violence of the People; a Prince is safe in the love of his Subjects, and without it Guards are but of little use. There were two late Kngs, who did not well know whether they were not Prisoners to their own Armies; and Mahomet the Fourth, Emperor of the Turks, was a Prisoner for some time to his own Guards, when he thought himself at perfect liberty; so little difference there is between Guards for a Prince's safety, or his safe imprisonment. I purposely omit speaking to the Cases of the Lord Cobham, and Grace, Watson, and Clark, because I intent to answer them last of all, and for the same reason I speak not of Sir Walter Raleighs Case, because it was the same with the other, though the Author cunningly Musters them as distinct Cases. The Case of the Earls of E. and of S. is reported short by the Author; for their Indictment and Fact was for designing to take the Queen into their Custody; and for that end assembled a multitude of armed Men, which is actual levying War, and so makes nothing towards proving the Matter in Question, which is a Conspiracy to levy War, without actual levying War. Cardinal Poole's Case is to as little purpose; for in the Book that Cardinal Poole wrote, which was in the 27th. of Henry VII. in which, as my Lord Coke says, 3 Instit. fol. 14. from whence the Author had the Case, there was this passage, In Anglia nunc sparsum est hoc semen, ut vix à Turcico internosci queat, idque authoritate unius coaluit: And in the precedent part of the Letter names the King; and though more Treasons in the Indictment than one are mixed together, yet the Indictment did then, as it hath of late, conclude contra formam Stat. which may be interpreted, All, or any Statutes, precedent to that Fact enacting Treason: And if the Author will look back, he will find it enacted by the 26th. of Henry VIII. cap. 13. That to publish that the King was an Heretic, Schismatic, or an Infidel, was High Treason; and I would fain know, whether the above passage, is not a good proof of publishing that the King was an Infidel, and so it was Treason within the above Statute: But nothing can be inferred from an Indictment never pleaded unto, as was Pooles. The Case of Dr. Story is as little to the purpose, who, as Cambden says, was to have been charged with consulting with one Prestall, a Man addicted to Magical Illusions against the Queen's Life, and always cursing her in his Graces, and for having conspired the destruction of Her, and of the King of Scots, and shown the Duke of Alva's Secretary the way to invade England, to which Indictment he would not plead, and therefore was condemned: There is no doubt but the Indictment against Story was legal, and standing mute, he was legally condemned; but whether his accusation was only persuading the Duke of Alva to invade England does not appear; nay, the contrary appears by Cambden, and my Lord Coke quotes the Case, to prove Story being born a Subject, was not an Enemy, but a Traitor; besides, it must be remembered, that at that time there were Acts of Hostility between the Queen and the Duke of Alva, and so Story may well be guilty of Treason, by the Clause in the Stat. E. 3. of adhering to the Queen's Enemies; and in the exposition of that Clause doth my Lord Coke cite Story's Case, as if he had been attainted on that Clause: And though the Author quotes my Lord Dier; yet the Case was put to the Judges, otherwise than the Author relates; for he says, If a Subject beyond Sea invite a Prince to invade the Realm, and no Invasion follow, that Offence that is; and if the Practice be for the death of the Prince, what Offence this is; and how, and where it shall be tried; and these Offences, says the Book, were held by the Justices to be High Treason; for that an Invasion with great Power cannot be, but that it will tend to the destruction or peril of the Prince; but it is plain, that if the Judges did deliver that as the reason of their Judgement, they needed not have done it, for that Story's Accusation without that reason was High Treason, within the first Branch of the Stat. of Ed. 3. it being for compassing the Queen's Death, and was so put to the Judges: And it is plain, notwithstanding the report of that Book, the Judges did not give that reason for their resolution; or if they did, there was little credit given to it, for in April following, as the Author says, it was enacted, That the intention of levying War should be High Treason, during the Queen's Life, which was very absurd, if the opinion of the Judges was such as reported; or if it were such, and it were believed, it had been proper rather to have declared, That the intention of levying War was High Treason, within the first Branch of Edward III. And it is plain, If the Opinion of the Judges in Story's Case was such as reported, it gained no credit with my Lord Coke, who takes notice of that Case; and yet expressly says, that a bare Conspiracy to levy War is not Treason within the Stat. of Ed. 3. and takes notice of the 13th. of the Queen, which says he is. Expired. The Case of Coleman is well remembered to be for Conspiring to take away the King's Life by other sort of ways than levying War; and to say Truth, there was such Proofs and Suspicions of the thing confirmed, by what after happened, that the Author, if but in tenderness to his Party, aught to have spared that Case. As for Balshall's Case, I did not think it worth my time to look the record of it; I find the Author hath it out of a Paper, called, Animadversions upon the Lord Russel's Speech; and that Author hath it out of Dr. Nalson's Collections; and to say Truth, the style of that and his Paper are so alike, that they seem to be writ by the same Hand. I think the Author might have fitted himself with a Case out of Baker's Chronicle, as much to the purpose, and of as good Authority as this, where one Walker said, He would make his Son Heir to the Crown, meaning his House, whose Sign was the Crown, and it was adjudged Treason, and Walker hanged for it; a Case I as much believe to have happened, as the Author's. The truth is, the Case is not put like a Lawyer: If he had said, That the prittle, prattle between Balshall and the Ploughman, had been adjudged Evidence of an intention to levy War; and that such intention of levying War had been in that Case adjudged Treason, he had said something to the purpose; but to tell an idle story, and say, That that talk was adjudged Treason; if true, would carry no Authority with it: I would fain know what part of it is Treason; Was it Balshal's troubling a Man at Blow with idle talk, or telling the Ploughman a lie, or advising him to go to K. R. who was in another World, which was as much as bid the Ploughman hang himself, in order to go to R. 2. and so sold him a bargain? I cannot indeed see against which Branch of the Statute of Edward the Third the expressions were offences. Sir Henry Vane's Case was advising a War, which followed, and advising it while on Foot; and besides it was expressly proved, as I have heard, that he advised the excluding the Family of the Stewarts from the Crown. The Case of Constable, and all the other Cases are to the same purpose; because, as the Author says, and so was the reason of them, they directly tended to depose the Queen, as affirming Edward the Sixth was alive, and pointing to such an one, as my Lord Coke says; which being accompanied with other Circumstances, was good Evidence of his intention to depose the Queen: And even that Case may answer Balshall's Case, in affirming Richard the Second to be alive; for then Henry the Fourth was not rightful King: But I am sure neither prove an intention to levy War to be High Treason; but a repetition of a number of Cases makes a Mutter, and a Noise. It is strange, that the Author should cite Throgmorton's Case, as a Case for him; whereas it is against the express Authority of my Lord Coke, who quotes Throgmorton's Case for his Opinion, That conspiring to levy War is not High Treason; and the express Authority of my Lord Dyer, who reports that Case, and gives the reason, That Throgmorton was guilty of Treason; because Wyatt, with whom he was concerned, actually levied War. If A advice B to kill C, who does it, it is Murder in both; if B doth it not, it is not Murder; yet A is equally guilty of the Consult: the Author would do well to show the reason of the difference between this Case, and what he puts. It is strange the Author should say, Owen's Case was only for dissuading People from their Fidelity; whereas he says himself, his Crime was his saying the King might be killed, and it was no Murder: Are the Cases of Burton, the Duke of Norfolk, Sparhawk's, Awater, Heber, or Crohagan to the purpose? when the Author confesses, their Crimes were denying the King's Title to the Crown, and endeavouring to settle it on another Head, which are direct Evidences of an Intention to depose the King; which none ever yet denied to be Treason, though the Author mistakes; for Burton was indicted on the 13 El. and it was for conspiring to pull down Enclosures; the Duke of Norfolk was indicted for conspiring the Death of the Queen, and adhering to Herris the Scot, and others the Queen's Enemies; and for that purpose is the Duke's Case cited, in my Lord Dier, and my Lord Coke: In Sir W. Ashton's Case, nothing but the Indictment appears, and it doth not appear that any Judgement was given on that Indictment, and if there were, it is plain, his Crime was endeavouring to set up the Duke of York, who had right to the Crown, and depose Henry the Sixth. The Offence of  and Taylor, if they were two Persons (but Tailor seems to me to be the addition of ) was for endeavouring to Depose Edward the Fourth, and compassing his Death; what the Evidence against him was, doth not appear. Burett's Indictment was for compassing the King's and his Eldest Son's Death, by Witchcraft and Necromancy; and it adds likewise, That he endeavoured to stir up War, by scattering Ballads; where the scattering Ballads is rather an Overt-act of his intention to levy War, than his intention to levy War an Overt-act of his compassing the Death of the King, or the Death of his Son. Collingbourn's Case was for compassing Richard the Third's Death; and adhering to the Earl of Richmond, and other Traitors; and scattering Ballads to move an Insurrection. The Viscount Stafford's Case was for compassing the King's Death, and the Evidence was of Consults tending that way, and the Authority of that Case ought to have been spared, for the same reason that Coleman's Case ought not to have been mentioned. The Legality of Colledge's Indictment hath been questioned, and was questioned by College, as appears by his Trial, licenced by his Enemies; and if those in whose Custody he was, had not rob him of his Papers, he had raised such Objections, that his Enemies, neither then, nor since, would have been able to have answered: And though the Author says he armed himself, and advised others to do the like; yet there was no pretence of Proof that he did or advised others so to do on any other account, than to defend him and themselves, which is indeed an Overt-act of an intention to defend himself, but not of offending others, the first of which at that time was, though never at any other time hath been, construed High Treason: But how vain is the Author to quote the Proceed in that Trial, to justify the Proceed in the Lord Russel's Trial, when two of the Judges were the same which sat on both Trials. What the Indictment against Sir Henry-Vane was I know not; and I did not think it worth my time to inquire: It is plain, his Crime was making War, and deposing the King, both which, as it is said, were proved against him: And if in his Indictment, and the Indictments of Monmouth's Men, it was added, That they compassed the Death of the King, it was only added as an additional Treason; and the levying War, which was so expressed in all the Indictments in the West, was not so expressed, as an Overt-act of compassing the King's Death, but as a distinct Treason, within the Statute of Edward the Third; though if it should be granted, that levying War is an Overt-act of compassing the King's Death, it doth by no means follow, that an intention to levy War, is an Overact of compassing the King's Death, which is what the Author is to prove.  
And now after all the muster of words the Author hath made, there is not one Case he hath cited, which proves, That the intention of levying War, is high Treason: What Sir William Jones said in the Viscount Stafford's Case, I do not remember; but it was plain, his Accusation was for compassing the King's Death by underhand dealing: And though that taking the King Prisoner is high Treason, yet the compassing it would not have been Treason, if the Words of the Statute had not made it so; no more than if the Act had said, Killing the King should be Treason; to infer therefore, compassing his Death should be high Treason: For is it not begging the question, to say, Therefore consulting to do it is high Treason? For where is the Consequence? Coining of Money is high Treason, Doth it therefore follow, that designing to coin Money, is high Treason? And a much more remote Consequence is it to say, compassing the seizing the King's Guards, is compassing the King's Death. I deny, that designing to seize all the Forts in England, is high Treason, within the first branch of the Statute of Edward the Third; nay, the actual seizing them, was not thought high Treason within that Statute; and therefore the Statute of the 14 Eliz. expressly enacts, That the seizing or keeping of any of the Queen's Castles or Forts from her, shall be high Treason during her Life; which shows it was not Treason before. But if it were high Treason within the Statute of Edward the Third, it is within the Clause of levying War, and not the Clause of compassing the King's Death. To what purpose was it to find fault with Rouse's Indictment? Was not he tried the day after the Lord Russel was tried, by the same Judges? And I dare say, the Author doth not think Rouse guilty of high Treason: Rouse and Leigh were only tricking one another, in which Leigh was too hard for him, and Rouse died for the same: But how vain is the Author to quote the Judgement of the very same Judges in other Cases, to make good his Thesis in the Lord Russel's Trial, when he cannot but remember, how exploded and laughed at the Argument was of a certain Judge at the Old-Baily, when the question was, Whether a Soldiers flying from his Colours, was Felony, without Benefit of Clergy; (a Case too plain to bear an Argument either way;) who had nothing to say for it, But that if the Law was not so, he had hanged many a Man wrongfully. It is strange to find an Author, in so short a space as a sheet of Paper affords, to be guilty of so many Repetitions; and it would be idle to repeat the Answer to them. Where did the Author find, that by our Law the King must not, cannot assault, strike, seize, attach, or imprison, in defence of Himself? No Man said it before the Author: The Law were defective, if it were so, and fit to be altered: It would be worse than binding the King to his good Behaviour. It is true, the King cannot execute the ordinary Offices of a Magistrate, but remit them to be executed by some commissioned by him; but what done in his own Defence, is a matter of a quite different nature. A Judge ought not to strike a Man; but no Man said, That if assaulted, he might not fight in his own defence, which he certainly may justify. It is one thing for a Judge to strike by way of punishment, which he ought to leave to his Officers; another thing to strike in his defence. And now is the Author in the repeating strain of his Inferences; and I must leave it to the Reader to judge, whether what he here or elsewhere hath said, overthrows the distinction between an actual seizing, and an agreement to seize the Guards: I am sure his closing Reason, that both have a tendency to thing intended, edifies little. The King cannot live, unless he eats; he cannot eat, without having his Meat dressed; he cannot have his meat dressed without a Cook; ergo he that kills the King's Cook, starves the King, and is guilty of high Treason. It is very odd for the Author to think he can evade the Objection, that Words were not Treason within 25. Ed. 3. because enacted to be so for some time, by a saying, That that Statute was a Compliment to a new-crowned head; what can he say to the Statutes of Hen. 8. and of the Queen, which were made when the Crown had been many years on their Heads? And why should he say, That those Statutes, as to words, were affirmative of the Old Law, when all the Judges in Hugh Pine's Case in Crook, Car. on view of most of the Cases cited by the Author, adjudged, That no Words were Treason within the Statute of Edw. 3. Constable, Sir Henry Vane, and Dr. Story's Cases have been answered before. Plunkett was adjudged by some of the Judges which sat on my Lord Russell; and I dare say, few believe Plunkett guilty of the pretended Crime he died for; but it was to make the World believe, that Justice was impartially administered; he was to be, and was hanged ding, dung, against Fitz-harris, to keep Tyburn steady: It was feared, that if Fitz-harris had hanged alone, Tyburn would have warped, or inclined to one side; and therefore they were both hanged the same time, on the same Gallows, to keep it upright. There remains but one Case to be answered; though the Author would have them two Cases, which is the Lords Grey, and Cobham, and Sir Walter Raleigh; which, I confess, is an exact parallel Case, in the truth of the particulars of it, with the Lord russel's Case, though not in the Accusation, as I think, will be made appear. Every Man knows, because it was but few years past, that the Lord Russell was a Person zealous for the Protestant Religion, and an Enemy to Popery; he was for that Reason very active in the matter of a Bill of Exclusion of a Popish Successor; and, as I have heard, carried it up from the House of Commons to the House of Lords: He was one who was for the prosecuting the Lord Viscount Stafford, who suffered death for compassing the Death of the than Protestant Possessor of the Crown; the than presumptive Heir of the Crown, was at that time eclipsed; but having recovered his Power, and, as the Lord Holles observed in his Letter to Monsieur Van Benningham, governing all at Whitehall: Some few years afterwards the Lord Russell was brought to the Block, upon pretence of the Treasons mentioned by the Author. The Case of the Lords Grey, Cobham, and Raleigh, was this: They were all zealous for the Protestant Religion, and affectionate to the Person, and the Service of the then reigning Queen; both which they thought in danger, as long as there was expectation or probability of a Papist's coming to the Crown, which would be as long as the Queen of Scots lived, and continued to profess the Popish Religion: They well enough knew, that if the blow was struck, the Law would be of the side of the Assassins: They had seen many designs upon the Person of the Queen upon that encouragement; they saw a Storm coming from Spain, which fell out in 88 and Protestant Subjects were not safe in assisting, and had no encouragement to assist their Protestant Princess, as long as there was fear they might be in danger of their being punished by a Popish Successor; for which reason they were of Opinion, That the Popish Successor might not only be excluded, but might and ought to be (the Law being of their side,) removed out of the World, which was done in 1587.; for which when Davison was questioned in the Star-Chamber, the Lord Grey was against his being punished, and would have had him rewarded, for which he gave his Reasons in a very eloquent Speech, remembered by Cambden. This, as it had reason, provoked her Son, who was to be, and was the Successor to the Crown: Some time after, the Earl of Essex having lost that Favour and Power which he thought he deserved at Court, as it is natural, betook himself to the Successor; and though it was concealed for some time, he became a great Favourite to K. James the First. The L. Cobham and Raleigh were professed Enemies to the Earl of Essex, who gave them a greater advantage over him, than they could have hoped for, by breaking out into an act of open Rebellion; for which they took care he should not escape. His Death was much regretted by K. James, though he durst not take notice of it to the Queen. The Queen dying, those three Persons had reason to fear punishment from the King; and therefore would have had (if they could have prevailed) the King admitted on Articles; but being not able to carry that point, the Lord Cobham and Raleigh thought to have made their peace, by meeting the King on his Journey, congratulating his Succession to the Crown, and offering him their Service, but were not permitted to come to him, and had Word sent them, They might spare their labour, which presaged no good to them. The King came to London in May, and in July following was the pretended Plot discovered; and in November following, the pretended Delinquents were tried at Winchester, together with Watson and Clark: Their Accusations were in general, first to set the Crown on the Lady Arabella's Head, and to seize the King. Secondly, to have a Toleration of Religion. Thirdly, to procure Aid and Assistence from foreign Princes. Fourthly, to turn out of Court such as they disliked, and place themselves in Offices. Of these the first Article is Treason; what Crimes the rest are, is doubtful; what of them was proved against the Lords Cobham and Grace, Watson and Clark, or how their Trials were managed, doth not appear: But Sir Walter Raleighs Trial does appear, and is much like the L. Russel's; and therefore of some Circumstances of it, I think, it is fit to take notice. Instead of Consults, etc. in the L. Russel's Trial, the cant-Words of the surprising the Buy, and the Main, were made use of in Sir Walter's, interpretable as the Council thought fit; at least it was astonishing to the Jury, which was all that was designed by the Council, and fatal to the Prisoners. I have no mind to run through all the ramble of Sir W. Raleighs Trial, as it is printed before his History of the World, because the parallel is too exact, and sticks too close to the Memory of Persons gone; only I will say, That if Sir Walter Raleigh was guilty of the things he was accused of by the Witnesses, though the Accusation did not amount to a legal Proof, it was high Treason; but if the L. Russell was guilty of the things he was accused of, he was not guilty of high Treason. But yet, I think, it is fit to take notice of some extraordinary things in Sir Walter's Trial, particularly that when the Prisoner said he was tried by the Spanish Inquisition, if he was tried by Circumstances without two Witnesses; it was told him, that was a treasonable Speech. It was told him by the Court, that the Statutes of the 25. Ed. 3. and 5. Ed. 6. were repealed, it was told him, that his Accuser need not be brought face to face to him, nor subscribe his Confession; 'twas enough that there were Hands of credible Persons to testify the Examination; it was told him, that a Man might be condemned by the Testimony of one Witness; nay, even without a Witness in Treason: He was accused, that he heard the Lord Cobham speak of Pensions from Spain, he said he could not stop the Lord Cobham's mouth; he was accused with having given the L. Cobham a Book, treating against the King's Title to the Crown; he said he did not give the L. Cobham the Book; the Lord took it off his shelf, and that himself never read it, or urged it; the Attorney said that was cunning; Sir Walter replied, That all that made for him, was called cunning, what made against him was probable: The Prisoner was told, that by Law his Accuser not only need not be brought face to face to accuse him, but the Witness ought not to be produced, lest he should recant what he had said. One Dyer testified, That a Gentleman, he knew not whom, at Lisbon told him, Don Cobham, and Don Raleigh, would cut the King's Throat before he was crowned; the Attorney told him, he was by when the Earl of Essex died; Sir Walter produced a Letter from the L. Cobham, wherein he acquitted Sir Walter of all he had accused him of; the Jury found him guilty; Sir Walter said the Jury must do as they were directed; he complained of the wrong the Attorney did him; Brook said, that what he did in that matter, was to try faithful Subjects, and that he had a Commission for so doing, but produced none: Sir Walter in his Speech on the Stage, took notice of several Calumnies raised of him, particularly that he had spoke dishonourably of the King to a Frenchman, and had rejoiced at the Earl of Essex his Death, both which he denied. Now why the Author quotes this Case as a Case for him, I cannot imagine, neither the Fact, Accusation, or Resolution of it, in any point coming up to his purpose; for Sir Walter and the rest were accused of the Main, which was the destroying the King and his Cubs, and setting up the Lady Arabella for Queen, or at least for designing to imprison the King, till he yielded to their Demands; and therefore what occasion was there for such a Resolution of the Judges, as is pretended, that conspiring to levy War was high Treason within the Statute of Ed. 3. Nor can I find in any Book, nor do I believe there was any such Resolution: My L. Coke indeed says, in that case it was resolved, That a design to imprison the King was high Treason; but in the same breath says, that a Conspiracy to levy War, is not Treason. But if the Author intends to vindicate the late Government, by showing that in former; as well as in later times, there have been found Persons of the long Robe, who have by irregular means brought their fellow-Subjects to the Block, upon whom their Princes frowned, I agree, he hath picked out a very parallel Case; but I am sure instead of vindicating he casts a reproach on the late Government, in which the Case cited was tried; for nor to mention all the might be excepted to, in the Trial of the Case cited, I would know by what Law is the Deposition of a Person who might be brought face to face to the Prisoner, read as Evidence; I would know by what Law it is forbidden, that the Accuser should be brought face to face to the accused; I would know by what Law Brookes' Deposition of what the L. Cobham told him of Raleigh, was Evidence against Raleigh; I would know by what Law the story Dyer told of what an unknown Man said to him at Lisbon of Don Raleigh, was Evidence against Raleigh; I would know by what Statute the Statutes of the 25th. of Edward the Third, and 5th of Edward the Sixth, are repealed, The Trial was so very irregular throughout, that I would willingly believe it was not so as it is related, but if it were so, I am sure none can defend it: And even for that reason, if any such resolution was in the Case, as is cited, I am sure it ought to carry no credit with it, and there is no reason to believe there was any such Resolution, there being no occasion for it, the question being only Fact, which Sir Walter denied. The Circumstances of his Trial, in which the Court always overruled the Prisoner, were somewhat like the L. Russel's, he complained of the ill usage of the King's Counsel, as well as the Lord Russel, and both had reason so to do; Hear-say was admitted to be given in Evidence against both; all either of them said for themselves, though very material, was slighted; the one was put in Mind at his Trial of the Death of the Earl of Essex, as the other was of the Death of the Viscount Stafford; both in their dying Speeches vindicated themselves of those Aspersions; the Principal Witnesses in both Cases had, before the Trials, affirmed they knew nothing against them; they were both accused with having heard what other Persons had said in their Company, and had not discovered it, they both gave the same Answer, that they could not help other men's talk. I think it is plain, at this day, that of Sir Walter Raleighs is thought a shame Plot, what the L. Russel's is thought, let the Author say; I am loath to enumerate all, but if any Person will give himself the trouble of reading, and comparing the Trial of the L. Russel with that of Sir Walter Raleighs, they will find them exactly paralled in a number of other Particulars. And now after all the Muster of Cases, the Author hath (to little purpose raked together, he cannot show me one Case, where the Accusation and Proof was agreed to be no more than a Conspiracy to levy War, or rebel; that such Conspiracy was adjudged Treason, within the Statute of Edward III. till within these few years. In the next place, let any Man show me any Opinion or Resolution in any printed Book of Authority, till of late years, (except the above Opinion in Dyer, which is answered,) that such Conspiracy was High Treason within the Stat. of Edward III. And now I appeal to all Mankind, whether it be not a full Answer to all the Cases the Author hath cited, except Plunket's, and the Cases of later Times. That there needed no such Opinion of the Judges, as the Author puts upon them; because the Endictments and Proof (if true) on which they gave their Opinions, were Treason, within the Stat. of Edward the Third: And therefore why they should strain the Sense of the Statute, which is penned as strictly as a Law could be, to prohibit the Judges to make any other than a literal Construction of it; and therefore prohibits them to give their Judgement on any Case, like the Treasons expressed in the Act, until such Case should be declared in Parliament to be High Treasons; and therefore since no such Opinion of the Judges, in the Resolution of the Cases entered, is to be found, or needed to be, there is not reason to believe they gave any such Opinion. In the last place, I will admit that Letters make Words, and Words Sense, and that the Author is as well able to read them as any Man; and yet I think he cannot show me, That a Conspiracy to levy War, or rebel, which is the Sense of his Words, if he means any thing, (for there is no doubt but the Indictment contained Treason, it being to Kill and Depose the King) is Treawith the Stat. of Edward III. let him show me if he can, if that Statute will bear that Construction. That that Statute which hath been always so highly commended in all Ages, and even by subsequent Acts of Parliaments, and which my L. Coke calls a blessed Act, is not guilty of the absurdest Tautology imaginable. And now I own, that if the present Judges intent to follow the tract of some of their Predecessors in their extravagant Judgements, they ought in prudence to correct the licentiousness of the Author's New Observator, in his Remarks; but if they resolve to judge aright, as I do not doubt but that they do, and much good, I do not doubt, it will do them so to do; then I think they are not at all concerned in what he hath written, or shall write any remarks upon.  
FINIS.