IN the present Age, when the variety and multiplicity of new Prints is such, that the money and time required for their purchase and perusal, is more than an or­dinary Gentleman can reasonably allow; it may deservedly be thought a Nusance to the publick to have their numbers increased, especially since the Complaint of the ingenious Authour of the Trimmers Character, 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 usefull to the publick, 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.

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 easie 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 plentifull Title Pages (like so many Histri­omastrixes of Will. Prinn'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 a Gentleman of the long Robe would appear in Print 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 Railery on the Common Law Proceedings 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.

But none imagined that Satyrs and Invectives upon past Proceedings should be writ by Lawyers, who expect a farther Benefit from their Profession by the Grace and Fa­vour of the Government, which if they happen to acquire, according to their Expec­tations, I would only remember them, that Mocking is catching in the Proverb. There was once upon a time a certain Master of Arts, who, whilst at Cambridge, did ridicule and expose the Clergy of the English Church, by writing the pretended Causes of their Contempt; but the Templers said, that he, whilst at London, did give an occa­sion for a third Part to the same Tune, or at least a new Edition of the Book, with Ad­ditions by the Authour himself, even of his own dull — as proper for the like use. In petty Corporations they who have most complained of others hardships have fre­quently outdone their Predecessors, when once they have got their places. A whi­ning complaining Servant doth often prove a peevish imperious Master; and I am sure, in the Inns of Court, the most noisie, troublesome and mutinous Students and [Page 4]Barristers make the stiffest and most magisterial Benchers. I make no application, but I leave the Reader to doe what he pleaseth. Better things are to be hoped of all con­cerned in publick Government.

Since the Press seems open, and Lawyers Books are published without a License, 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, though made by Authours 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 the Censure or Applause of every Reader. Besides, 'tis generaly presu­sumed, that an Authour expects a publick 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 Proceedings, 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 Proceedings.

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 Tryall, 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 remembred 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 Counsel 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 sate upon the Bench; and thus it continued till the present Revolution.

Then the Memory of that unfortunate Gentleman was revived by the publication of a Defence of his Innocency; the Name subscribed to the Title-page is so great, that I should be affraid to proceed, but that I am resolved not to be known; and therefore if any thing falls from my Pen indecent or disrespectfull, he must excuse it as a privi­lege claimed by Authours, especially of Books that have no Name to them.

To begin at the end; for what purpose was that Pamphlet printed?

It could not be for the good of the Nation, as a means for consumption of Paper; for, as I have been told, that's a French Commodity.

It could not be for the Bookseller's profit only, for a reason to be guessed at.

It could not be for the sake of that Lord's Memory, or any of his surviving Rela­tives; for no Man will think it a service to them, to renew the thoughts of that un­happy accident in so noble, ancient, and worthy a Family. In truth, the whole Trea­tise [Page 5]is nothing but a painting to the life the too deep concern of that Branch on't in a weak as well as criminal Enterprise; for what else doth signifie the Expression, pag. 4. that being present at a Consult of Traitors a second time, or oftner, raises a strong suspicion, that the party who does so, likes it, consents to it, and approves it; or else he would have forborn after his having been once amongst them. And many other such Expressions there are with the like Reflections, as pag. 7. that Rumsey and Shep­pard, the two first Witnesses, &c. raise a strong suspicion upon my Lord, and make it probable that he was guilty. And in the same Page the Author seems to agree him guilty of Misprision. And pag. 17. he re-publishes the Evidence of Rumsey, that there was a consent, and this the Author agrees to be High Treason; but he then endea­vours to invalidate the Credibility of that Evidence, by shewing the wildness of his own memory. Now how this could serve the Reputation of the Deceased, or cure the Resentment of his Relations upon that account, I confess my self utterly unable to imagine. Nor can any Reader suppose the Title verified by the Book, viz. A De­fence of Innocence, when there's not one word to be read of it but in the Frontispiece. Surely there's no thanks due to the Author from that Family, no more than was an extraordinary Fee due to that Lawyer who pleaded for a Defendant to this effect: My Client, I must confess, is a Wag, but not so great a Wag as the Counsel of the other side would represent him; their proof is very strong, but not so strong as they would boast it to be; our Defence is but dark and weak, but not so weak as they would argue it. So that the Book could not be writ for a Service to that Family, unless a concession of Guilt can be called a Vindication of Innocence.

It could not be for the sake of the Government; for it can never be deemed a poli­tick Service to rake into old Sores, when lenifying and moderate methods are more adviseable; and if every thing should be re-published which hath given disgust to the People, few would escape the lash, the righteous themselves would scarcely be saved, for abundance of them have tript either in their publick 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 Peoples humour as that is upon the King's: nor can any Government countenance and encourage the Arraignment of a considerable number of wealthy 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 least wise they should, if the Author had been there. But most of his Readers are of another opinion, notwithstanding the second Letter, pag. 7.

It could not be for the sake of popular Applause; for it's thought, that the Treatise will never deserve or procure it, especially if you take it in pieces, and consider them apart, and with sober Reflections. So that no Man can tell what it was writ for.

When the Title of the Book, and Name of the Author was first published, Mankind was full with a pregnant expectation of some rare, abstruse, uncommon Learning upon the Point of Treasons with which the World was before unacquainted. No Man looked for a Preachment concerning the Body and Blood of our Saviour, the World to come, and the Guards of Heaven, as Topicks proper for an Animadversion upon that Trial, especially from such an Author. But there's nothing strange under the Sun

The Preface is an Encomium upon the Author himself, declaratory of his readiness for publick Services, and seems to be calculated for a Cooler, or a Defence against the Heats and Rigors of an harsh and oppressive Government, for an help to such as may possibly hereafter fall into the like danger and trouble: and to teach the People the fear and jealousie of a possibility of such Occurrences again, can never be thought a publick Service. As to part of the Preface, it is so dark, that a slender understanding can never reach the sense of it, I mean that long Paragraph, The Copies of, &c.

The first Letter begins with a seeming shew of a bold resolution in the Author to perform the Duty of a Friendly Council, maugre all the inconveniencies that might happen to himself thereby. But it concludes with an extraordinary caution and care to prevent all danger, even to such a degree as much diminishes the credit of that in­vincible and heroick Resolution at first boasted of. And if his Courage had been so strong, why were not these Letters published formerly, and in times when in the Au­thor's judgment there was more occasion for their use, than the present can possibly afford? But rather it may be again asked why are they Printed at all, the Observa­tions contained in them having been Printed not above 500 times already, and per­haps with as much advantage? Was it a Secret to the World, that a variance between the Indictment and the Evidence might be alledged on the general Issue? Did no 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 usefull, as to be an equiva­lent for the want of Council 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 but 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?

The Book it self begins with Stories of Transubstantiation of Bodies, and Transmi­gration of Souls, as much to the purpose, as the Parson's Text was to his Doctrine, who preached upon the certainty of a day of Judgment from that Verse in Genesis, And Adam knew Eve, and she conceived, &c. But perhaps the Author intended all that first Page for a Flourish, and to entice his Reader into a patient perusal of what fol­lows, and prejudice him against the Sheet he pretends to answer. He is very frank in styling it a Libellous Pamphlet, and the Author some rank bigotted Papist; but to what purpose no Man can divine, unless it were to expose him to the rage of the Mo­bile; but his Name was never posted, and so he is safe from that danger.

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 Malecontents to endeavour their own satis­action 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 King of his Government and Royal State, but to kill and put him to death, and to procure a miserable Slaughter amongst the King's Subjects; and to subvert the Govern­ment of England, and to raise a Rebellion against the King. Then follows, That to ful­fill and perfect these Treasons and traiterous Imaginations, he, together with other Traiters, did then and there with them traiterously consult, conspire, conclude and agree to raise a Re­bellion, and to seise and destroy the Guards of the King's Person, contra, &c. 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 Judgment 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 started against it.

First, there's a sufficient Treason alledged. And secondly, here's a sufficient Overt­act; 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 King, Queen, 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 expresly 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 be 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 lesae 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 alledge some such Deed, à 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 proveably attaint by, &c. 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 Queen's Bed, and the like; and in an Indictment you need only alledge 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 Iterpretation 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 significative of a Man's intention or imagina­tion, [Page 8]is a sufficient Overt-deed to demonstrate that that Man had such intention or imagination; and whatsoever is expressive or significative of a Mans 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 seise 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 succesfull, 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 intend and design that end, Causa Causae est Causa Causati. If the Deed tend and conduce to the Executionof 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.

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, that is a sufficient overt Act to prove the compassing 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 he says it was resolved by all the Jud­ges of England, Hill. 1. Jac. 1. in the Case of the Lord Cobham, Lord Gray, 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 E. and S. Now if we consider the reason why these were overt Acts of Treason, 'twill appear to be onely because of their na­tural tendency to the accomplishment of that particular Treason of compassing, which holds the same in the Authour'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 overt Acts 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 Rawleigh's Case, a Conspiracy, Consult and Agreement to promote an Insurrection and procure an Invasion, was held an overt Act, 1 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 Lords Dyer and Coke, was no more than a Practice or Persuasion to pro­mote an Insurrection and Invasion, and the overt Act that was alledged 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 [Page 9]Indictment laid, the Evidence was onely of Letters to the like effect (as to this point) with those of Dr. Story; and the Case of Dr. Story was before the 13 Eliz. which made a new Treason during her Life; for the Tryal 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 Plow in the Parish of Ofley in the County of Hertford; 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 onely 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 alledged and held to be overt Acts. The Case of Constable, mentioned in Calvin's Case, was onely an Act tending to deposing the Queen, as dispersing Bills in the Night, that Edw. 6. was alive and 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 draw Sub­jects from their Allegiance have been adjudged overt Acts of this species of Treason, The compassing, &c.

The word Compass in the Statute is of a larger extent than onely to mean an ac­tual Assault on the King's Person, and an endeavour to cut his Throat; it most cer­tainly implies any Consult or Practice of another thing directly which may produce that effect, as the dissuading People from their Fidelity; such was Owen's Case in King Jac. 1. his time, in the 13th. year of that Reign: this Advice was to this effect, That King James being excommunicated by the Pope, might be killed by any man, and that so to doe was no murther; 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 doe 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 Sparhawke's Case, Pasch. 3. Hen. 4. Rot. 12. The like was the Case of John Awater, who was indicted for a Treason of that nature in Kent, and the Indictment removed into B. R. Trin. 18. Ed. 4. see Rot. 17. and he was thereupon afterwards out lawed 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 of Yelver. 107.197. Aarthur 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 compassing, when perhaps the man never thought as he spoke: however all of them do evince, that advised and deliberate Preparations moving to [Page 10]a danger to the King's Person, have all along been held overt Acts 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, &c. ad guerram levandam; and no mention of any War actually levyed. Germain 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 of the King's Death, anno 2 Edw. 4. The Case of Thomas Burdett, in 17 Edw. 4. as at large it 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 did disperse divers Writings, &c. ad intentionem that the People should rise and levy War, &c. the Judgment in that Case, Drawing, Hanging and Quartering: the like in 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 Judgment; which Cases are infinitely short of this in question: and it cannot but be wondred 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 Tryal of the Lord Stafford it is affirmed by Sir William Jones (who was certainly of great Autho­rity with the Authour) 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 overt Acts, 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 Colledge, in which though the Tryal hath been censured, yet the Indictment never was, and in that Indictment the Treason is laid as in this Case, That he traiterously imagined and compassed the King to depose, kill and destroy; the overt Acts are, That he armed himself, and advised others to arm, and spoke se­veral Words, &c. Here was no War levied, onely 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 may Meeting, Consulting, Concluding, and Agreeing to doe.

As to the Objection, Surely there is no weight in the first, which is Page 10. that criticises upon the word fait Act, and that 'tis onely a meeting to agree, and an agree­ment to doe, but 'twas not done: Suppose they had concluded and agreed to poison or stab, &c. according to the Opinion in that Page, this was no Treason; for 'tis onely agreeing and concluding upon a thing to be done, but it is not done. He doth in Page 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 it self cannot be assign'd as an overt Act of compassing, unless the Indictment were particularly for that: but surely another sort of Act that favours 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 Henry Vane's Case is quite otherwise, and there a levying War was the overt Act alledged of the compassing, and allowed by all the Judges; [Page 11]and all the Indictments in the West upon Monmouth's Rebellion were so, and yet drawn by very good Advice; besides, what Answer can be given to the Cases which I have cited, where Consults, Conspiracies, Practices, Advices, Letters, Persuasions, and other Motives and Preparatives to an Insurrection, have been held overt Acts of an Imagination of the King's Death, though no War was levied, though no Insur­rection was made.

'Tis apparent from what was said before, that to take the King 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 a compassing the King's Death: and this Case amounts to, that here was a Consultation to seize upon the King's Guards, which could tend to nothing but the seizing of his Person; and then the consequence is plain. The Authour says, Page 14. If it had but been alledged 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 25 Edw. 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 Statute? Certainly it may. If several Malecontents 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 Edward 3. his time that we reade of in our Law Books: if this be otherwise. Why did not the Authour find fault wit [...] 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 Bed-cham­ber, and the like, killed in the Night, and the doors in White-hall broken up, and all the Swords, Musquets and Pistols there taken away, and yet it happened that the King's Person was left untouched; would this be an Act of Burglary and Murther onely? We have no Law-Books that take notice of Arms at White-hall, 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 King's Person be murthered or seized, and the Statute should not have said compass or imagine, but seize or kill, &c. It suffices then, that the Guards are in common Understanding known to be used and imployed for the Attendence 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 King'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 Attendents (which are all of the same na­ture) wear a Sword or carry a Musquet before him? If they doe so, is it not then known that they doe it? If it be commonly known to be so, doth not he that seizes [Page 12]and destroys those Attendants, endanger the King's Person? And if that be so, the Inference is easie. It can never be, it will never be allowed for Law, that a seizing all the King'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 actual seizing them, and a Consult and Agreement to seize them, what I have urged before overthrows it; and what the Author says doth not maintain it, for both have a tendency to the execution of the Treason intended.

I will not take the pains to remark upon all the Inconsistencies of the Concessions and Denials in the Book, they are obvious to the Readers. As to his Quarrel at the King's Guards as an illegal thing, and terrible to the People, somewhat of the French growth, I hope the King will always preserve them for his own personal Pre­servation, notwithstanding the Author's Opinion. As to his temporary Laws, which declare Words Treason, most part of them were affirmative of the old Law, and were made only in complement to a new crowned Head, when they prohibited nothing but what was before so: and for the rest, no Conclusion could be made from them for the maintenance of his Assertion if he had repeated them; which since he does not, nor will I.

As to the Cases cited by the Author of the Antidote (which I have mentioned,) he agrees to Constable's Case, but does not distinguish it in its reason, from that in dispute. He denies the Authority and Law of Dr. Story's Case, which no body ever denied before him. He says that in the Lord Cobham's Case there were People as­sembled, but gives not any Answer to what the Antidote affirmed, viz. that the Overt-act taken notice of in the little Book called The Pleas of the Crown, was only the conspiring to make an Insurrection. He doth confess, that in the Lord Gray's Case there was only a Conspiracy: He says, that in Sir Henry Vane's and Plunket's Case there were several other Ingredients to mount them to Treason, but what they were no body must learn, at least not from the Author, for he names none of them.

He consumes half a Page in an Encomium upon the Judiciousness of that Court which made a conscientious legal Scruple, Whether the Murther of a Mistriss by her Servant were Petit-Treason, by reason of the difference of her Gender? But at last he tells us, That the Judges of the Common Pleas did upon much deliberation satisfie those of the King's Bench, that Master and Mistriss were in effect but one.

In the conclusion of the first Letter he says, That Conspiring against the King's Person is most justly taken to be to conspire against the King's Life; but in the Book he will not allow a conspiring and agreeing to seize ( i. e. beat and destroy) the Guards, which are ordinarily and commonly known to attend the King's Person, to be a conspiring against his Person; which whether it be or not, the next Trial of this Nature will determine. Now after all, what can be a greater Reflection upon the Learning, Judgment, and Integrity of the King's Council, Judges, and Recorder, than to declare and publish in Print, that the first prosecuted, the second tried, and the last condemned a Gentleman as a Traitor, when the Charge had no­thing in't of that nature: If true, the bare Printing it is unbecoming the— But as for their Reputations, let them justifie themselves. The reason of my under­taking to explode such a Reflection, was my own and every Man's Duty to the pre­sent Government, (the King and Queen's Majesties being both concerned, and emi­nently too, in the consequence of such Doctrines) and a love to my Country-men, [Page 13]that they may not presume upon the Authority of such a defence; for if they do, they may find their Mistake, when noozed through the power of Truth, the con­trary Opinion.

As to the Proof I will not rake into it, since the Author hath represented too much of its strength, and de mortuis nil nisi bonum, it can never be thought a gratefull Pro­vince to debate or convince of Guilt; but yet I may say so much, that there was Evidence enough to justifie All concerned in the Prosecution and Trial, though for several Reasons the Attainder is fit to be reversed, but hardly for those which this Author mentions.

Since the writing of this Sheet, there came to my hands a Treatise calling it self The Lord Russel 's Case, which savours more of Policy than Law, and his Topicks are the Rights of the People and Power of Parliaments; they argue the Author to be a greater Statesman than Lawyer, and therefore much too great for me to encounter; and a Debate concerning the Heads he insists on is neither safe nor allowable with­out doors. I shall make but three Remarks on what he says: First, He may assure himself, That that Power from which he argues his Law, is now apparently lodged in the Commonalty, not in the Nobility. Secondly, The King's Sollicitor (whom he reflects on) twittered more Reason and Law than yet hath been or ever will be answered: And thirdly, The Indictment contained no new constructive Treason, but only that which was plainly and directly declared in and by the 25 Edw. 3. if the Letters of it make Words, and the Words Sense, and one Man may be allowed able to read them as well as another.

Since the writing of the last Paragraph, there came to my hands another Pamph­let written by a new Observator; but I suppose the Judges that shall be will correct that sort of Licentiousness which he assumes in his Remarks: which if they do not, they'll have fine easie places on't as well as their Predecessors; and much good may it doe them.

IT is very observable, that since the late Revolution, nothing hath more disturbed our Peace than the Liberty of the Press: and amongst all our new Prints, the most malignant and mischievous Libels on the present Government, have been written by those Lawyers who pretend themselves the greatest Zealots for its Honour and Ser­vice, which may besuspected as false, unless it be withall considered, that some modern Royallists have nothing recommendatory of themselves, but the Miscarriages of others and others of them have such great ones of their own, that an Extenuation or Excuse is impossible, and therefore to cloud their own Deformities they would blacken other Mens Reputations, and in order to it they have censured Innocence, and arraigned Laws; and where a slip or fault hath been, though so small as scarcely to deserve the name of one, they have magnified it into an execrable Villany; and for a colour of such their Calumny and Slander, they have vented new Gospel and Law both: nay, [Page 14]they have broached such Notions to the World, as are directly fatal to that Crown of which they boast themselves the Makers and Supporters, and yet in doing so they pretend to merit —

It is strange but true, for the Fact is plain, and the Consequence too: upon the present Change, the Republicans of both Gowns did deem it their Policy and Inte­rest to bespatter and reproach other Mens Actions; and, like base and mean Spirits, gave ill names and words to every thing in which themselves had not been concer­ned, and made Reviling so customary, that it is become the modish Sin of the Age. It is most certain the old English Honour, Frankness, Ingenuity, and good Nature, is quite abandoned from some Companies and places in the Town, and instead of Fol­ly, we have assumed a Vice in our common Conversation, instead of Drollery and Banter, the new fashioned Wit at — 's allows nothing as acceptable but Lying and Slander; nay the very Spark of a Courtier hath changed his Note: Whereas fulsome, gross, and false Flattery was wont to be his Talent, he is now got to the other Extreme, i. e. revengefull, weak, and false Characters, both of Persons and Actions: Which is the worst is difficult to determine, but Falshood is the most pre­dominant humour in both; and that Age is surely unhappy which is plagued with a Surfeit of either, especially when the Excess is so great as now, that no Gentleman can be thought a good Companion, no Clergyman a true Protestant, no Lawyer an honest Englishman, no Courtier a faithfull Servant, unless he can, and do rail and snarl, and scold, and that at things that were justly used in former times, and must necessarily be used in these times, and will be so in all times whatsoever, even in Se­cula Secorum: these little stinging Animals do value themselves upon their Honesty, because they find Faults, but it is in cases where no Eye can spie them but their own; they value themselves upon their Wit, because their censures are sharp and biting, but that is so easie, so very easie a Province, that Nature teaches even the rudest of her Breed to be satyrical, and the Natural oftentimes out-does the pretended Scholar in Ribaldry, and hath perhaps a better faculty that way than Fancy and Picquancy of reflection.

Now as the Fact is thus criminal and ridiculous both, so must the Consequence prove fatal to the Government which they would be thought (but intend not) to support; for when once resolved to arraign all past proceedings, they are forced for the maintenance of such their reflections to vent those Opinions, Doctrines and Rules in Divinity and Law, which have in every Age (save one) been justly exploded as destructive to the honour and being of the then Possessors of the Crown; and can conduce to no other end than the utter Subversion of this, and every other Govern­ment that doth but smell of a Monarchy.

It cannot be denied but in most Reigns there have been some occasions given for Disgust to the People, that Kings have born too hard upon their Subjects, that the Subjects have worthily complained of some Warps from the Law, but no Man ever with Sense pretended that this is a Reason to induce a Belief, that every Act of State, and every Judgment of Law in former times was Arbitrary and Unwarrantable: No surely, the Publishers of such Reflections are of another thought themselves; and some folks imagine, they who formerly were ingaged in Seditious Practices against the Crown, would now upon the present occasion explode that Law which doth condemn such Practices, that they may with impunity repeat them whensoever the King or his Ministers shal chance to disoblige them, and that this is the true reason of half the new Libels and Invectives upon past Proceedings.

It is now apparent to all Mankind, that every Line, or at least Page, of some Mens Works are designed only as a Courtship to the Mobb, by bridling the Sove­reignty, and clipping the Prerogative, even to such a degree, as doth absolutely de­prive it of those Rights, Powers, and Authorities, which the ancient Law, continued usage, and our present Representatives consent to allow it.

To check this growing itch of Pamphleting the Nation into another Change, and to vindicate the Rights of the Crown, and justifie the Magistracy of England from the obloquy which was industriously thrown on it in one Particular: there was three Months since, a Sheet Printed and Published, at which some Men took offence, but others were of Opinion, that its Publication was seasonable and well timed; that its reflection on the trifling defence which it assumed to answer, were just and smooth, and very soft, considering the occasion given for a more Satyrical Style from the fondness and incoherence of the Defenders expressions and inferences, and that the mode of managing his Argument, was modest and tender, with a decent and due re­gard to the memory of the unfortunate deceased, which had suffered more than enough of Injury by that pretended Justification.

A Cholerick and Sedulous Enquiry hath been made after the Author's Name, but the inquisitor is still at a loss, notwithstanding his confidence of a certain knowledge who it was that came behind and struck him, &c. But to give him some satisfaction, after all his fatigue in searching, I will ascertain who it was not; he may assure himself that none concerned in that Trial, were concerned or privy to its Vindication, and when it was Composed and Writ, the Party intended it chiefly for his own and the World's diversion, from the ungratefull necessity of Reading always on one side, by the interposal of a few Lines on the other; that our Humours might not be quite sowred, and our Genius turn too peevish through the influence of Satyr and Libel, with which the World hath too much abounded of late years; nor had there been one word more published upon that Subject, but that the Authority of the Defender doth challenge a Vindication, and the word of a Priest says that it needs one; both shall have an an­swer presently.

But first it is remarkable, that this new Reply hath got a License, when none of his other elaborate Works could procure one; however, it is possible that the Licen­ser may hereafter renounce, or retract his Allowance in this case, as he hath done in several others already, when his Superiours are acquainted with the Contents and Tendencies of that to which he hath given his Imprimatur; for it is not to be suppo­sed, that Ministers of State will ever be so incurious of their Master's Honour, and the Rights of his Crown, as to approve their diminution, when once they perceive it.

The single Point which the Advocate for Magistracy assumed to maintain, was that the Indictment in question was Legal and Good, sufficient both for matter and form, and did warrant the Judgment which was pronounced upon the Verdict that affir­med its truth; this seems the principal Assertion in that Paper, which whether his Precedents and Authorities, Arguments and Reasons, are sufficient to prove, the Rea­der must judge; that the Cases he cites are truly reported for so much as he uses them, none can deny, and that the Law is with them upon the whole matter, shall be farther evinced.

But since that Sheet hath made some noise amongst angry Men, (which was little expected by him that wrote it,) it will not, I hope, be thought impertinent to spend [Page 16]a few Paragraphs upon the boisterous and blustering Invectives and Remarks made against its Author in a pretended Reply. In his Vindication therefore I shall observe, the Temper, the Wit, the Guess, the Reason, the Religion, and lastly, the Law of that Replication.

As to the Temper, it seems to be writ under some disappointment, for the Author doth in every Sentence declare his Passion, and plainly tells us that he was then dis­composed; but whether his displeasure were conceived at a past or present Chief, is not so easie to determine: To expose his fury, it is enough to repeat his Epithets of Daring, Bold, Impudent, Presumptuous, Base, Ingenerous, Insolent, &c. and all this despised by his reputed Author, and smiled at by the real one. He is pleased to call the Sentence and Execution a plain Murther, which if so, sure I am that he is bound in Conscience to Prosecute an Indictment against the Judges, the Recorder, the Grand and the Petit Jury, the Witnesses, the Clerks, the Sollicitors, the Gaoler, the She­riffs, and the Executioner, for they were all concerned either as Accessories, or Prin­cipals, and demerit a Halter if the Repliant's Opinion be Law; but it is observed amongst Honest Men, that none of these Parties shew any fear on't; and the reason they give for it is, because the Indictment was as good as their Jurisdiction, and the concurrence of those two makes them as safe as an Act of Indempnity can do: but all this was Passion.

As to the Wit on't, most of his Readers are at a loss where to find it, unless it be in his English Verses, which do so hit the sense of the Original, and contain such strong and pregnant flights of English Poetry, that some of his Readers have compared them even with Sternhold and Hopkins; and others are of Opinion that they do not come short of the Essays of the two Grays-Inn Poets, one of which Translated Grotius, de Ve­ritate Christianae Religionis, and the other Coke upon Littleton into Rhime, but the ge­nerality do declare that for Heighth of Fancy, Propriety of English, and Exactness of Rhime, he hath much out-done all those: but for my part I believe that last Rhapsody was added not so much for the Ingeny sake, as to menace the Answerer with a de­sign to Sacrifice him whensoever an occasion should offer it self, and consequently to doe what the whole Book complains of; but that Advocate is not so much a Coward as to be affraid on't.

As for the Guess, it is very cunning, and argues more Figure Knowledge than true Judgment in Styles, Modes, Dialects, or Peculiarities of Speech, or Writing, for he will have the Author of that Sheet, to be the Author of the Antidote, though he never saw it till he had the misfortune to have read the Defence; and his particular Idioms are as different from those of the Antidote, as they are from those of the Defence; but this is all guess. He will have it one of the Council of that Trial, because he hath put Council before Court: a Cunning Man would have guess'd the contrary, as supposing it done fallendi gratia, for the sake of disguise; but he may be assured it was mere ac­cident that occasioned that fault. He will have it to be the then Sollicitor, because of his Reputation, which is supposed to be touched in that Defence: but his Readers think that that Gentleman's Figure for Learning, Honour, and Vertue is so far above the reach of a little Pamphlet, that all the virulent Reproaches of the Reply cannot Sully it, nor is it in the power of any Tongue or Pen to prejudice his Character in the World; but however it is prudent to suppose to my self an eminent Adversary, that if a Foil be my fortune, it may be the easier.

But since we are guessing, the World guesses that he who wrote the Reply, did write the half Sheet called the Justification; and it is really sportive to read the Justifier, commending the Denfender for a learned worthy Person; and the Repli­ant doing the same good Office for the Justifier, and almost in the same words com­mending him: nay, he spends a whole Page in the fulsome Praises upon that Small Bulk Authour, and rejoices that the Work was done to his Hands, which is a very pretty jest. It is at most but R. for A. and A. for R. and R. A. still, which is much better than the contrary practice, of which some Authours have been guilty.

As to the Reasoning part, the Reader must excuse my brevity, for in truth there is very little in it of that nature; however a few remarks may quicken and revive that faculty against the next turn. The Advocate owns it to be writ in answer to his Defence, ergo it reflects upon the Nation's Wisdom. He expres­ses a Resentment at my Lord Russel's engaging in such a weak and criminal En­terprise, ergo he reflects upon the Nation's Justice. He names the Lord Russel, (though with the most tender Appellations that could be used,) ergo he reflects on that Lord's memory. He vindicates the Indictment as good, ergo he justifies all the Proceedings in that Case. He argues that the Sentence was legal upon such a Verdict, ergo he is against the Reversal. He puts a Case, offers a Point, and makes a Proof on't, ergo he is transcendently impudent. These, and such like, are the inferences, and do demerit a Laugh.

As to Religion, I see none in it, unless it be in the mention of the Devilish Pow­der Plot, which is still as much to the purpose of his Reply, as the story of Trans­migration of Souls was to that of his Defence; only Meekness is transparent in his Style, Humility in the Title Page, and true Christian Charity in his Menaces of an exception out of the Act of Indempnity, which he repeats three or four times at least, as if his whole interest were designed to promote it. The Gentleman's Danger is from publick and scandalous Actings in the Eye of the World; which were (says he) labouring to Support the Government, every Man knows what sort; lashing the innocent with a bitter and sharp Tongue, and inveigling of Juries with Rhetorical flourishes. Now to examin a little these three monstrous Transgres­sions, let us go backwards. As to the last, a Duty can never be a Crime; every Servant owes Truth to his Master, while such: every Advocate is to doe his utmost, and a failure in it had deserved both the worst of Names, and Punish­ment, which the Repliant could invent, or his interest procure. For all Mankind must agree, that the now Servants of the present Crown are obliged to doe the like upon the like occasion; if otherwise, the Jacobites side will be the safest. I will not reflect on the weakness of the Juries that were thus inveigled, if any such there were, but rather suppose that the Oaths of Witnesses, not the Pleading of Council, did govern their Consciences. As to the second, that is false, and needs no other answer. As to the first, the Gentleman's Honour and Merit afterwards, is as remarkable as his Fault at first, if it were any; but however he is likely to have abundance of Company, in Desert at least, if not in Censure: for a Duke of York's Creature is certainly as culpable as a King James's Servant. And Andrew Marvel's Characters in his growth of Popery, will be as true a Directory to de­cypher Criminals as the four Volumes of noted Tryalls. And perhaps if the Or­dinance [Page 18]of May 10. 1650. should chance to be revived, danger and fear may seize other Men, as well as those that served past Governments; it is therefore thought advisable for all to sit down quiet, and forgive and forget what is past, but serve God and their Majesties for the future, and not belabour the excepting one ano­ther; for if any should be such Fools, the Knaves will get the better of it, and the righteous scarcely be saved. So much for Religion.

Now for the Law if we can find it: But because the Defender seems somewhat displeased at the repetition of that unhappy Lords name, whose Case gives occa­sion for the present question. Let us therefore put it like Mooters, John a Styles was indicted, for that he, at such a time and place, did compass to deprive his Natural Lord the King, that then was, of his Regal State, and to destroy his Life, and to subvert the Government, and raise a Rebellion, and to fulfill that imagi­nation, he, together with others, did then and there consult and agree to raise a Rebellion against the said King, and to seize and destroy the Guards of the said King's Person, contrary to, &c. The question was not whether J. S. was Guilty? nor, If the Witnesses swore false? Whether his Attainder were fit to be reversed? But the dispute was, Whether that Indictnent were legal? Whether supposing J. S. to be found Guilty, the Court that pronounced the Sentence of Treason a­gainst him, ought to have arrested such Judgment on the motion of J. S. that the Indictment was insufficient? The Sheet argues that the Indictment was good, and consequently the Sentence pursuant thereto was warrantable by the Laws of this Land. The Argument seems founded both upon the Reason of Things, and the Authority of Precedents.

First, The Reason alleadged was, that the last part, which in Lawyers terms is called an Overt-act, was a natural and genuine Sense or Declaration, or Overt signification of the first part, which is an internal secret Thought, i. e. the Ima­gination and Compassing, which is the Treason prohibited and condemned. That the latter directly and consequentially tending and conducing in the common Sense and Reason of all Mankind, (excepting the Denfender, and two or three more,) to the accomplishment of the former, makes a good and sufficient charge within the Stat. Ed. 3. A Repetition is tedious, and an Abbridgment is scarcely possible, the whole Sheet being but a Breviate, I shall therefore refer you thereto.

Secondly, The Authorities there urged, are either the Opinions of Judges and other Lawyers, or Precedents of Indictments of the like, or the same nature, from which the Legality of this may be justly concluded: The substance of them on the whole matter is, that Overt Acts to depose the King, or despoil him of his Regal Office, or take him by Force or strong Hand, or to imprison his Person till he yields to the demands of those who practise such endeavours, are sufficient Overt Acts to prove the Compassing and Imagination of his Death. That levying War, causing an Insurrection, promoting an Invasion; nay, that Consults, Conspiracies, Practices, Advices, Letters, Persuasions, and other Motives, and Preparations to an Insurrection, or Invasion, though none succeed, have been held Overt Acts of Imagining the King's Death. I will not repeat the Cases, but as occasion offers from the other side.

The Objections there mentioned and answered from the Penning of the Statute, are too trivial to deserve a remembrance, nor would they have ever been thought otherwise, but that J. S. was a Noble Person, and the Defender a great Man, and the Prefacer thought so too, either by himself or others. These and such like in­gredients have made some semblance of difficulty: and in truth, had there been a real doubt in the Case, the Authour of the Remarks on that Tryall, who wanted neither Sense nor Will to censure it, had his Opinion so inclined, I say, he would certainly have fallen foul on it in those invidious Observations of his upon the late Times. He quarrels with the Legality of the Jurors, the Defender with that of the Indictment, and both with the evidence. The Authour of the Sheet differs from them in the two first, but aggrees with them in the last, that Testimony de­livered for fear of Life, or hopes of Pardon or other Reward, is hardly creditable; but that is not the Point. Let us see if the Replication doth overthrow the Charge as insufficient; and for my part I cannot find a Line of Argument in it, but only it is naught, because it is naught. The consulting and concluding to make an In­surrection and Rebellion, and seize the King's Guards, is not a Declaration of the Party's compassing the King's Deposal or Death, and why? Because conspiring to levy War is not a levying War, and levying War is a distinct Treason; this is the substance of the tenth Page, if I can read: The Sheet said truly, That le­vying War it self might be alledged as an Overt Act of Compassing, and hath been so frequently, and meeting and agreeing to rebell and seize the Guards, hath a di­rect tendency to promote a Demise of the King either natural or civil, and there­fore might as well be alledged an Overt Act as most things whatsoever.

I had almost forgot one Clause, and that is the unnecessariness of making 13 Car. 2. if it should be as the Advocate argues; I suppose he means the first Paragraph, for the second is agreed to be introductive of a new Law, &c. but the first is only a Paraphrase upon the 25 Ed. 3. It is thus, That if any Person or Persons what­soever, shall within the Realm or without, compass, imagin, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment, or restraint of the person of our Sovereign Lord the King, or to deprive or depose him from the style, honour, or Kingly name of the imperial Crown of this Realm, or of any other his Majesty's Domi­nions or Countries, or to levy war against his Majesty within this Realm or without, or to move or stir any Foreigner or Serangers with force to invade this Realm, or any other his Majesty's Dominions and Countries being under his o­beysance, and such compassings, imaginations, inventions, devices, or intentions, or any of them shall express, utter, or declare, by any printing, writing, prea­ching, or malicious advised speaking, being legally convicted thereof, by the Oaths of two lawfull and credible Witnesses upon Tryall, or otherwise convicted or at­tainted by due course of Law; then every such, &c. shall, &c. Now what is this but a confirmation of the old Statute in words at length; which was agreed to be so in the House of Commons, 1 Jac. 2. when a motion was made to renew that Law, the Lawyers Answer was, that the 25 Ed. 3. did the same thing, and a Man may boldly say it, that here's nothing declar'd Treason, but what had been ad­judg'd so before, and Attainders and Executions had pursuant to it: The Sheet [Page 20]mentions Cases enough, and to the purpose, though some think otherwise; but I'll not repeat them.

In the 11th Page the Reader is referr'd to the justification in the half Sheet; and therefore let's examine that a little: a third part of it is spent upon the Evi­dence, but that is not within my Province, which is only to vindicate the Vin­dication: As to the rest, the force of it, if any, seems only to be founded on his first Assertion, the conspiring to doe a thing is not the doing a thing, and he quotes two great Mens Names for it, I would have agreed that, though he had spar'd the Authority to justifie it; but this is sufficiently answered in the Sheet: He of­fers an Argument from the late Statutes declaring Treasons, because they were temporary, but I answer as the Sheet doth, they were in affirmance of the old Law, and I can shew him three or four temporary, and an hundred other Acts of Parliament that are so, and therefore that is no argument at all; but I am, as the Party I justifie was, confin'd to a Sheet, and therefore cannot enlarge.

He lays down a Rule for construction of Statutes, that a thing particulariz'd in one part is not to be construed within the general words of another part, but that Rule hath near fourscore Exceptions in the Books; besides it comes not to this Case, for here's compassing the King's Death made Treason, and declar'd by Overt Act; then levying War is made Treason: Now says the Repliant, nothing can be an Overt Act of and conduce to promote and accomplish the first, that doth any ways concern the latter, I say it is a non sequitur; for there are several in­stances mentioned in the Sheet, which respect the levying War, and yet are a genuine evidence of the intention and compassing; and if so, the Judges who have ruled such Indictments to be good, did neither assume an arbitrary Power, nor transgress any Rule of Law, as the half Sheet insinuates.

Then the Lord Cobham's Case is endeavoured to be answered, by a Wonder that Sir Edward Coke, late Lord Chief Justice, and then Sheriff, should differ from Mr. Attorney Cook; for we know his thoughts in Sir Walter Rawleigh's time, and his Speeches in Car. I. his time; they are as different each from other as the times were, and in this particular that Gentleman hath had more followers than Precedents; but the Query is, What is Law?

Then Sir Henry Vane's Case is endeavoured to be answered by this, that Syder­fin mentions not the Overt Act in the Indictment, but he doth say the Treason alledged was a compassing the King's Death, and every Man knows what Sir Hen­ry Vane did to accomplish that: he neither sign'd the Warrant to execute that Murther, nor was he actually concerned in it; the Justifier says he does not re­member it printed any where but in Syderfin's Reports; for the refreshment of his Memory, I'll tell him of another Book where it is, and that's Keble's First Vo­lume of Reports, 304. and there the Indictment is said to be for Compassing the King's Death, and endeavouring to accomplish the Treason, by changing and U­furping the Government, and levying War, which Case doth directly overthrow all the Defender's, Justifier's, and Repliant's Arguments from the distinctness or difference of the sort of Treason.

Then for Dr. Story's Case, he says 'tis hard to justifie it for Law; whereas there are above forty places in our printed Laws Books, where 'tis cited and a­greed [Page 21]to be Law: Now 'tis pretty odd, that a Case so resolved and so ratified, should one Hundred and eighteen Years after, be arraigned in Print, for 'twas Hill. 13. Eliz. if any thing be Law, that is so, and not distinguishable from this Case in question, but that the Evidence was different, which the Justifier would make a reason to invalidate this Indictment; the Logick of it passeth all under­standing: besides, 'tis observable, that the Benches were fill'd both with Lear­ning and Integrity in 1571, and 1662, neither of those times were Tory or Po­pish; and in Dyer, 298. the reason given was, That it could not tend but to the great peril of the King's Person, and therefore an attempt to promote such Invasion, though none followed, was adjudg'd as aforesaid. In 2. Anderson pl. 2. fo. 5. Grant's Case, 'twas held, That when any Person intendeth or contriveth to levy War for a thing which the Queen by her Law or Justice ought or may doe in Government as Queen, it's not material whether they intend any hurt to her Person; but if they intend to levy War against the Office and Authority of the Queen, that's enough, and that resolution overthrows the Justifier's Notion, that J. S. his design was only to defend the Laws, though the 13 Eliz. also was then in force, it's a good Argument to answer that pretence.

Now I have repeated and observed all the Replication or Justification offers in answer to my Friend's Sheet, the Reader may perhaps expect some new Mat­ter, not so much for confirmation, as to give occasion for a farther defence. In Sir Fr. Moor's Rep. fol. 621. pl. 849. on the Tryals of the Earls of Essex and Southampton before the then High Steward, the Justices did there resolve, that when the Queen sent to the Earl of Essex the Keeper of her Great Seal, and others, with a Command to him to disperse the Persons armed which he had in his House, and to come to her, and he did refuse to doe so, and continued the Armour and Armed Persons in his House, that this was Treason; and they did also resolve, that when he went with a Troop of Captains and others from his House to the City of London, and there prayed Aid of the Citizens to assist him in de­fence of his Life, and to go with him to Court that he might get into the Queen's Presence, that he might be sufficiently powerfull to remove from her his Enemies who were then attendent, that this was High Treason, because it ten­ded to a force on the Queen, &c. I make no inference, let the Reader doe that; 'tis plain that an actual mental intention of hurt is not material in the one Case or other. As the Duke of Norfolk's Case is related by Cambden in his History of Q. Eliz. 163. the Treason which the Duke confessed, was a Plot to seize upon the Tower of London, and deliver the Queen of Scots; and that's all.

There's nothing remains in doubt, but the legality or illegality of the King's keeping Guards for the preservation of his Person; they say the Law takes Care of him, and therefore he is to take none of himself, and that the Judges are his Guards, and therefore he needs no other, that Henry VII. was the first other. But let us reason a little; can it be King that had any suppo­sed, that he should be so sacred in his Person, so great in his Power, and of such Authority as to make War or Peace abroad, and raise Forces and suppress them at home, as the Danger or Defence of his Realm should require, and not be able to provide for his own Personal Safety de presenti? Can he only punish by his Judges afterwards, or prohibite by Proclamation before, but not defend him­self [Page 22]for the present? Is it sense to suppose it? The Kings of England might have, and actually had Soldiers or Guards (call them what you will) even in times of Peace, and long before Hen. VII. as well as continually since; I may be so bold as to defie any Man to shew me the Year, the Month, the Week, or the Day, since the Conquest by William I. that England was without armed Men actually upon Duty in some part or other of the Nation. This Sheet is not intended for a studied Argument on this Subject; and perhaps it would be difficult to justifie a standing Army as warrantable, when there's no occasion for it; but to say he can't by force, even by force, provide for his own personal Safety, when he apprehends it in danger, as every English King hath continual reason to doe, especially if some Mens Doctrine prevail, it may be modestly affirmed unreasonable: Hath not e­very Subject power to keep Arms as well as Servants in his House for defence of his Person? Is not his Mansion called his Castle? And yet the Law protects him too by Prohibitions à parte ante, and Punishments ex parte post: There are many Te­nures in England which oblige to the annual payment of certain Summs towards Soldiers Wages for Defence of the King and Kingdom; there are others oblige to the annual finding certain quantities of Grain in kind for the supplying the King's Castles and Garrisons, as well as Houshold; which being annual, do de­monstrate the lawfulness of their continuance, even in times of Peace, and their being immemorial do conclude a Common Law right in the Kings of England, to have those Occasions, as they do conclude him a Right to have them supplied by such like Services: Nay, Grand Serjeantry is either by Services of Attendence on the King's Person in time of Peace, or for Military Aids, in time of War. The Crown may raise Forces by Commission, or of the Militia, to suppress Insurrections, in Case the Civil Power of the Sheriff is not sufficient or ineffectual. The Kings of England have the sole Power and Force of the Nation; Complaints have been in Parliament against Billeting Soldiers contrary to the Will of the Hosts, but never for maintaining a Guard for their own Person at their own Charge; Com­plaints have been of a standing Army, but never of a select Company for his personal preservation; a Terror to the People may as well be pretended from his Coachmen, Footmen, or Grooms, if their Numbers be great: Besides, for a competent Power in Arms he always may have occasion, when his Subjects know nothing on't; 'tis his Province to foresee and prevent as well as suppress and punish domestick Tumults, and the Business of War is separately his Office, and that exclusive of his Subjects, any otherwise than as they are bound to obey and fight, or desired to assist with Aids and Subsidies; and for this, to avoid a nume­rous Volume of Citations, I'll name one notable Roll or two in Parliament. 6. Ric. II. Mem. 9. the manner and way of the prosecution of a War being given in Charge to the Commons to advise upon, they answered, that this nec doit nec solayt appertain al cux mes al Roy, and so they did, 31 Edward III. Parte. prim. n. 11. & 21 Edward III. n. 5. It's true in 5 Edward II. n. 4. Ordinances were made, that the King without the assent of his Barons could not make War; but those were repealed and dampned, 15 Edw. II. Parl. Rot. M. 13. because pre­judicial to the Royal Power of a King; and this is sufficiently affirmed by the Act concerning the Militia in Carol. II. his time. It is well known in what time [Page 23] Bryan Chief Justice said, that if all the Subjects of England should war with the Subjects of another Kingdom, that this is no War, unless the King denounces it: It suffices for my Friend's Point, that the King may lawfully have armed Men or Guards, when himself judges his Person or People to be in danger, or stand in need of them: And that he may, when reasons of State will not admit their pub­lication to the World. But however fome standing Force the Crown ever had and ever will have, though not always to such a Degree as shall be burdensome or oppressive; and our old Law Books say that Arms as well as Laws are necessa­ry for the Prince, not only in but against the times of necessity, I mean War or Tumult; besides in Bracton lib. 3. cap. 3. de Corona, 'tis said, that Crimen lesae Majestatis is the greatest Crime, because of the greatness of the Person against whom 'tis committed; his description of it is, Presumptio contra personam ipsius Re­gis; then when he particularizes the several sorts of Treason, the first which he names is, Si quis ausu temerario machinatus sit in ( i. e. towards) mortem domini Regis, vel aliquid egerit vel agi procuraverit ad seditionem Domini Regis vel exercitus sui, licet id quod in voluntate habuerit non perduxerit ad effectum. I'll make no In­serence, there needs no Paraphrase, the words are plain; an Act tending to the destruction of the King's Host is High Treason against his Person, agere ad sedi­tionem exercitus regis est presumptio contra personam Regis, & presumptio contra per­sonam Regis est crimen lesae Majestatis: Now can Bracton be thought to speak only of Treasons in time of War? Glanvil. lib. 14. c. 1. Crimen lesae Majestatis dicitur de seditione Domini Regis, vel regni, vel exercitus; and Fleta. lib. 1. c. 20. De seductione exercitus sui: & cap. 21. the same words, seductionem cjus vel exercitus sui; this was the sense of the old Law, and is very appositely applicable to the Case in question, as I could easily shew, would my Paper bear it. There is one thing which I had quite forgot, and that is, that the Instrument of Grievances which the Prudence of the present Parliament hath provided, complains of a Standing Army; the Answer is easie, 'tis not of Personal Guards, and the wise enquiry of the House of Commons into the quantum requisite to maintain such and such For­ces during the present occasion, and of the Expences of the Crown in Houshold, Courts, Guards, &c. afterwards do plainly shew, that that was not the intended Grievance: Now to summ up what is not answered at all or endeavoured to be so by the Defender, nothing is said to the reason of the thing, or the necessity and nature of an Over-act, to the opinion of Coke in the places cited, to the Case of Sir Walter Rawleigh, the Case of the Cardinal, the Case of Mr. Coleman, the Case of Constable, the Case of Owen, the Case of Burton, the Cases of Sparhauke, Awater, and Heber, the Indictment against Sir William Ashton, Germain and Tay­lor, and Thomas Burdett, Collingbourne, and Colledge, nor to the Opinion of the Judges in the Lord Stafford's Case, as if 'twere all impertinent, but the Reader is Judge if it be so.

Now for the Presacer, I'll be as short upon him as he was upon my Friend; he said that the Sheet needed a vindication, and I have given it one, and if this needs another, I hope the Crown will find a Friend to write some Third. He seems so us'd to the word Libel, that he cannot forbear calling it an infamous one; he says it has not one true material word in it; I'll remember him of one, [Page 24]that Mocking is catching in the Proverb, that is A Grumbletonian in the Stirrup ge­nerally proves a Tyrant—in the Saddle; that's enough for him to remember: If he wants any more truth, and that he may not say this hath none in't, Treasons are easier committed than distinguish'd, by some Men especially, and the reason why I say this, is because of his Octavo Preface when he is grumbling still, for I always thought that he had smarted too much for Libelling on Ministers of State and Male-Administrations, to venture again; but when a Priest meddles with Law, he is like an Apothecary at Politicks, he generally runs himself into a Noose, for he'll ne­ver leave off till he's advanced one way or another. To conclude, the design of the Sheet was to justifie the Prerogative of the King and Queen, and the Rights of their Crown; and the Republican is angry that either should have any, and from thence flames the Passion; nay, rather than it should be allowed, they'll attempt another change, from which good Lord deliver us. Pro. 28.2.

During the composure of the Premises, News was brought me that another Pen had been procured to attack the Vindication, viz. The Author that runs a-muck at all Mankind, except his own Patroons: A deserved and full remark upon so vo­luminous a Book, is not here to be expected, however, this Appendix may serve for an Advertisement to the World, that the new Repliant is in several particulars obliged to Solicitor Coke, and the other Regicides defence on their Tryals for much of his Materials; time is wanting to shew the Parallel; at present 'tis fit to be ob­served, that his blind side also is apparent, and consequently capable of a suffici­ent Answer, and to give my Reader a Specimen thereof, I'll take notice of a few (amongst many) Mistakes, both in Fact and Law, which he hath wilfully commit­ted. In the first Page he says, That to justifie what hath been taken ill, accuses the present Government of Injustice; which is false. In p. 2. he says, that the Vindi­cation ventures on a point of Law which it pretends is the result of the Evidence given; there's no such pretence in the whole Paper, the only debate was upon the Indictment. He says in the same Paper, that it's said his Relations were pleased with the justness of the Tryal; it only says, his Relations were pleased, and his Enemies angry with those who then sate upon the Bench, and that's true; for some of his Relations cannot deny it, the Fact is so well known. The last line of P. 3. and first of the next are also false, for 'twas neither written, perus'd, nor approv'd by any of his pretended Criminals: I believe they thought the Point too clear to need a Vindication; but this is just like his wonted positiveness in his Remarks, where for instance he says, that one of the Judgments he cavils at was the first that was e­ver given without Argument or Reasons delivered in Court, which is also false; for in Plowden's Comment. 459. In Sir T. Wroth's Case, the Author takes express notice, that the reasons of the Judgment were not disclosed when the same was pronounced; and Fifty other Cases I could name him of the same, but one In­stance is enough to falsifie a general indefinite Position, though there are several more even in that very Book.

But to run over his Volume, Pag. 2. is only a farther scurrilous Reflection to vindicate his own Remarks, and an impertinent bombast of words on the Phrase of English proceedings: The 3 P. assigns four Reasons of Printing, the two last are applicable to himself only, and he thinks so of the fourth, or else his Story is foo­lish [Page 25]like.—In the 4 P. he boulsters up himself in his Railery, by resorting to his re­fuge of the Parliaments Authority that reversed the Judgment, which all Men agree to be just, but it was not because the Recorder did not arrest the Judgment on that trivial Exception to the Indictment, but because the Prosecution was supposed malicious, and the Evidence supposed false or deficient, or both.

The 5, 6, 8, 9, and 10th. Pages are all impertinent to the Point in question, and contain nothing but a Vindication of his justly condemned Clamour in his for­mer Book; concerning which, I'll boldly say it, in seventeen Points of twenty he is out in his Law; if 'twere convenient to publish the proof on't, I could make it plain. His design is to shew in those Pages his Wit and Fancy, more than Can­dor or Law; for my part, I am of his Friends mind that he comes not short of the old Observator for mannaging a Dialogue: But all this is not to the purpose, he is not come at it yet, the 12 Pag. savours of the same Kidney, and 13. and 14. are no better: there he vents his Gall, and that in Ribaldry; no softer a name than Tools can be afforded to Men of Worth and Honor: If himself be one, as some suppose him, I am sure it is not to the present Government, for he plainly con­demns it, and declares the People, i. e. his sort of them, unsatisfied with it, for its spatingness in vengeance; and it is because others are not punished for maintaining the Law, and themselves not preferred for Arraigning it: some Men know my meaning. He says he is only for mumbling of Judges and Counsel, Causa patet.

But I must tell him two things, 1. The Incinations of Englishmen, and the Laws of the Land, will never quadrate with a Common-wealth.

2. His supposed Criminals do not depend on their Number, but the Law, which ought, and will justifie them; if it doth not pleas [...], let it be changed by Parliament, or if the Author thinks that a tedious way, let us burn all our Law Books at once, and then perhaps his Remarks and Reply will be thought to be Reason, and himself the greatest and only Lawyer in the Realm; but till then, he must give others leave to know, and to say that they know, he is mistaken: For Resolutions, and Opinions, pursuant and agreeable to the Opinions and Rules of former Ages, I mean, frequent and repeated Precedents, approved by the Lawyers of the Age that used them. I say these will be Law to the end of the World, unless altered by new Statutes.

And now we are come to debate the Question, all that is past is upon the Times, and not the Point. In p. 18, is his Reasoning part, which is no more than was said before in, &c. To redargue him I must repeat; if therefore he will observe what is said by the Sheet p. 22. I will say no more on't, but submit to the Judgment of the Reader; he says the inferences are Ridiculous, I say they are Rational and Ge­nuine: The single Issue is, if his, or my Friends Arguments are the most Logical and Natural, let the Reader judge.

Now for Authorty, let us see if he urges any on his side, or answers that on the other. He admires (p. 24.) at the assurance of the Sheet Author, and others ad­mire at his. He says the Parliament had often adjudged it, but none can shew any Judgment in the House of Lords, or Vote of the Common House to that purpose. I have shewn the Sense of the present Parliament in the Point of Guards, and his temporary Laws are already answered; nor would any Man but he, and one more, [Page 26]pretend that they are Judgments in the Case. Surely it will not be pretended that his Case of the Earl of Northumberland in Hen. 4. time, is any thing to the pur­pose: Nor is it any Argument to say, no King of England was ever killed for want of Guards.

Now for Cases p. 26. He saith that in the Earl of Essex's Case there was an actu­al War Levyed, and that, as I said before, destroys the Argument from the diffe­rent sorts of Treason. As to Cardinal Pool's Case, he only says there was another Statute in force then, but no Record or History says that he was indicted on any other than the 25. Edw. 3. As to Dr. Story's Case, he tells a long Tale out of Cam­den about the Fact, but answers not one word to the Indictment, whatsoever the Evidence was, the Indictment was as the Sheet alledges, and that is enough.

His answer to Coleman's Case is that, that things hapning afterwards proved more, but the Evidence was no more than what my Friend alledges. As to Sir Henry Vane's Case, his answer is, his own hear-say of what was proved, but the Judgment he never perused, argued like a Lawyer. As to Constable's Case and the rest, he gives no answer, but only that a repetition of a number of Cases makes a mutter and a noise, and so it does when they Govern and Rule the matter in que­stion, and are not answered. Owen's Case, he says, the Author presses it strangely and that is all. He says the Cases of Burton, Duke of Norfolk, Awater, Heber, and Crohagn, are not to the purpose, let the Reader judg if they are not pertinent: As to the Opinion of the Judges in the Lord Stafford's Case, he doth not mention it, but says the reviving that Case might have been spared, and that is all, a pretty answer: As to Colledg's Case, he talks of a proof of a self Defence, but nothing to the Point it was urged for. As to the Cases of Lord Cobham, Gray, and Rawleigh, in 32, 33, 34, 35. pag. Setting aside his scandalous Invectives and Reflections upon those Times, Ministers, and Governments, he no ways attempts to answer the Ar­gument drawn from them, viz. that the Charge was the same as in the Case in Dispute.

Now I appeal to any Man of Sense and Reason that will Read and Think close­ly, if the Repliant hath offered any one Argument more than the Lord Russel's Case, Defence and Justification had alledged. If he hath shewn any one Judgment where such Indictment was resolved naught; if he hath given any answer to Dr. Story's, Collingborn's, Sir William Ashton's, Burdet's, and Sir H. Vane's Indictment; in short, if he hath answered any two of the Cases cited: or if he hath done any thing but reflect on past and late times, and if the Indictment remain not good, both for matter and form, notwithstanding all these pretended Replies. Upon the whole matter, I desire the Reader to peruse the Book cited, and to judg if there be not presidents enough unanswered to justifie the Indictment in question, and that the Recorder gave a good Judgment upon the Verdict that affirmed its truth; quod fuit Probandum.

To conclude, Since the Repliant is in love with Horace, I would advise him to consider one hint of his

IT hath been the observed misfortune of most mix'd Governments, particular­ly of our own, never long to enjoy the entire Friendship of all its individual Subjects; the lowermost Side hath too frequently acquired the greatest share of the Peoples Love, or at least Pity: It's then no point of Wonder, that the Ser­vants of former Crowns should incur their proportion of Envy, Hatred, and Re­proach; and amongst all those none more obnoxious to it, than the Ministers, Of­ficers, and Instruments of Justice; for such are the vitiated Sentiments of Persons interested in all Suits, that the Vanquish'd is certainly injured, or thought, or said to be so, which is all one, by the Persons themselves, their Friends or Relatives, their Patrons or Creatures. In truth there's scarce a Tryal on the Plea or Crown-Side, but one party, and someties both, do leave the Court with a swinging Curse or two on Judge, Council, Jury, Witnesses, and perhaps all concerned; upon which account, it can never be deemed a justifiable, much less a commendable and meritorious Imployment, for Lawyers to note and report, and afterwards publish to the World the Clamors of such Malecontents, with the addition of Sarcasm instead of Argument, and blushless Lies instead of Law and Precedents, and all this under the pretence of serving their Majesties and the Government, but 'tis a mere pretence; for first, it's not their Province; these Publications are made by them, not as Legislators or Judges, but as private Persons; and one of their Li­bels seems calculated only for private Lucre, as either the hopes of a Place, or in­crease of Practice, by telling the Town in the first and last Pages where the Au­thor lives, of what Profession, and how long standing; an Art learn'd from some of those exquisite Doctors inhabiting towards the Fields, whose Knowledge and Conversation is pretended to be in Heaven: Another writes for Bread, and scrib­bles that he may eat, &c. A third, or rather the first and prime, is inspired with Venom and Revenge, even the pure Spirit on't, as one baulk'd he is angry at all, and because some were not his true Friends, he's resolved to make Enemies of those who despise him, and of them the number is great. But secondly,

It's of no use to the present Government, for Truth only can be a sure Basis of Respect to that; and in case of Slander, the Filth rebounds, and the Dirt thrown most surely turns on, and dawbs their own Faces, especially when they arraign those as ignorant, whose Learning, Knowledge, and Judgment, are so clear and acknowledged, as to render the Censors unworthy even of being their Bag-bearers; the like when they censure those as corrupt, who have always bold­ly done their Duty, even in defiance of a Court Cabal, or a Popular Faction: who have always adhered to the old English Law and their just Opinions in it, though Frowns from White-hall, or Clamors from Wapping, though Lampoons from Grub­street, or a worse usage from an Observator, though a Supersedeas, or a Take him, &c. were the only reward they could expect for such their (formerly called Puritanical now Arbitrary) Justice: Gentlemen who never polluted the Law (which the great and good Sir Mat. Hale did truly call a robbing the Poor of Justice) for the ac­quiring [Page 28]a Farm or an Office, or a lumping Summ for Sale of it; who never begg'd an Executorship for to gain a Fortune; Gentlemen who never gave strained Opinions concerning the Revenue when made for their Clients the Farmers, but clamored at the same when used by their King with more Moderation; Gentlemen who parted with their Places, though of Honor and Profit, rather than comply with a Court-O­pinion or a Club-Notion, when others (I name no body) offered entire and everlast­ing Service, if they could have preceded or succeeded them, (Teste .... apud St. James's and the City of Glocester,) but missing their aim then, as now they do their Gall must have a Vent, and so it hath with a Vengeance, when a true and bold Justice is made the Subject on't: The Reason is plain, those Men's Repute is too great for Truth, Probity, and usefulness: An Eclipse is necessary if possible, for if otherwise, the De­fender will never be Keeper, the Remarker Solicitor, nor the Gray's-Inn Poet wear Scarlet in Wales; their hopes are but small, unless they can postpone all their B [...]tters by Death, Commitments, or that which is but little worse, Reproach and Slander; but some think their Sting grows weak, for 'tis apparent that there are a sort of Men, who though they might and did love his Majesty when as Prince, yet do not, will not, cannot love him, or any Man else, as King; and this is now pretty plain. But Thirdly,

Their Libels are criminal, and injuricus to common Justice, for they create a Disrespect and Contempt upon all Judiciary Proceedings; to arraign all past is to excite a Suspicion of all present and future Administrations; whereas Plowden saith, fol. 38. It's a good and sure way to believe the last Judgment; and if so, 'tis plain what Name the contrary Practice deserves; besides, were it otherwise, the Institution of Judges and Courts were vain, and our State, as Englishmen, the most unfortu­nate; for we have no Rule but ex ore Judicum, or from particular Statutes, and of them they are the Expositors. Now let's inquire which is Law, the Defender's Fan­cy in his Argument inter S. and B. or the Judgment in the Exchequer Chamber, affirmed by the Lords? If the Judicial Resolution be so, then the Publication of his Argument was scandalous, and I am not to follow him as my Guide; but perhaps he'll tell me, That manifest Reason and good Lawyers ought to govern me; if so, then I ask him, Who shall I follow in the E. of D's Case of a Capias pro fine puis Judgment, &c. whether the cleven best Lawyers, or the Vote of the House? If the latter, why not so in the former Case? And if otherwise, then his Judgment was mistaken; so that quacunque via data, there's no Infallibity in this World, and cons [...]quently no excuse for private Censures of publick Proceedings in Courts of Ju­stice: Besides, the Books are pretty clear, that such things are punishable; but I leave the Reader to peruse them at leasure. Now let us but consider the Confusi­on that must ensue upon the publick countenancing such a Practice as these Scriblers have introduced; for if allowable on a disbanded Judge, 'tis so on a sitting one, for the Case is the same in respect of private Lawyers who pretend to think their Judgments erroneous or corrupt; but surely both are unlawfull. Besides all this, in the present Case

They have palpably wrested the Law in divers Instances: I need name no more than the Indictment in question, which that it was legal and good, most Men do now agree, especially since the dint of the Opposal seems current only on the Evi­dence, with a Waiver of the other, the Indictment being good since that Guards [Page 29]are proved lawfull, and the Observator concedes it the most legall part of the Pro­cedure, and the Justice of Parliaments, &c. supposed written by the Defender, strains all it's Forces on the Evidence and the Times; and their Follower, the Port, in his new Non-conformist, pag. 10. runs the same way too: only

There remains one Objection to the first Vindication, which is, that it affirms, Words may be Treason within the 25 of Edw. 3. and the Remarker challenges a proof of it, and asks where it may befound; and the Non-conformist quarrels at the Lawyer that did assert it, and some others have done the same ore tenus.

I confess, that the first Sheet did publish the Assertion, but waved it's Eviction, for sear of a strained use of such Opinion to ill purposes, for the serving à turn upon par­ticular Occasions; nor had there been any more said on it, but that their Confidence and Malice seems so exorbitant as to extort a Check, for the Regulator is grown so confident of his own Knowledg as to under-value the greatest of Judgments; where­as his Common-place Book affords us no Title but Collusion and Malice prepense; and his Practice hath been much of the same stamp, only that sometimes he hath ad­ded a little of the Lunatick as appears by his Rhimes, Prophecies, Dreams, Poli­ticks, and other Religionary Works.

To prove the Assertion, I depend not on the Authority of the sense of the Com­mons House. 1 Jac. 2. though (let the Cryer for Justice, or who else pleases contra­dict it) it was in Fact then affirmed and agreed unto, and upon that, the then King's Council and Courtiers desisted the Motion and Pros [...]cution of a Bill to make Words, &c. But that's a supernumerary Argument, there's more than enough be­sides.

I am not to maintain that all rank, malicious, gross Words against the King or Queen's Person are such, nor that whosoever drinks an Health to our Sovereign Lord the People, or to the late King James, is a Traitor; but that Words sig­nificative and expressive of a present [...]ention to do an Act to the King's Destructi­on, such Words deliberately, maliciously, and advisedly spoken on purpose to ac­complish the Demise of the King, as by promise of Money with importunity to com­mit the Fact, may be an Overt-facit to prove the Imagination within. 25. Edw. 3.

To evince this, let us think a little ..... and 'twill be plain

The words of this Statute are clear and of an easie Construction, if we will allow those dull old Times to speak Sense: They are to this effect, That if it shall com­pass or imagine the Death, &c. and de ceo provablement soit attaint per overt fait: Now the Objection is this, That Words are not Deeds within that Clause; to this the Answer is very clear; for by all the Grammatical and other Rules for Interpretation of the Sense of Words, the latter part of a Sentence is to be construed (if used by way of opposition) as opposite to the thing mentioned and intended in the foregoing Part, and not as oppos'd to every thing which it may ex vi ter mini exclude in other Cases; and this is an agreed difference, both amongst Divines in Exposition of Sen­tences in Scripture, and Grammarians in allmost all Cases whatsoever: Now to ap­ply this:

Overt facit is used not in opposition to Words, for there's no such thing menti­oned; but 'tis added in contradistinction to that which was before specified, viz. Thoughts, and such are Imagination and Compassing; and therefore overt facit must mean any open manifest thing as can truly discover those Thoughts, as may prove­ably [Page 31]attaint the Traitor of such his Imagination; and it is a most natural and proper Mode of Speech, if they did intend, as most undoubtedly they did, that the Thought should be the thing prohibited, then 'tis as plain they intended by the Word fait any discovery of such Thought by Words or Actions; and so said Newton in 19. Hen. 6. That to imagine the Death of the King is Treason, though he doe no act towards it, if such Imagination be disclosed that it can be tried if he did so think and imagine. If that thoughts and Words are mentioned both in a Sentence, and afterwards Deeds in opposition, then the last will exclude both the former; but here when used only in contradistinction with Thoughts, it seems plainly otherwise. That Deed, when used in Opposition to Thought, doth include both Words and Acts, none can deny; a thousand Instances might be given of it; and in the ex­actest propriety of Speech, Words are Deeds when and as contradistinguisht from Thoughts; for the Soul thinks even as abstractly considered from the Body, but Man never speaks without Action and Motion: The difference is plain, and needs no Explication. But further,

I would fain know, What is a Consult or Plot, but the mutual and reciprocal Declaration of two or more Traitors Minds each to the other? Each declares his Traiterous Imagination by Words, and so of an Agreement to commit the actual Murther, 'tis but a Declaration of their Minds by Words each to the other, only they do happen to agree. Now suppose one Man thinks and intends to destroy the King, and by Words doth willingly, deliberately, and advisedly declare this to a­nother that is not of his Mind, though by mistake is thought to be such; is not this the same thing? If a Man traiterously offers and promises to another a thousand Pounds to perpetrate the villanous Act; if he accept it, and a parole Agreement is made between them accordingly, surely the Apologists for Treason will agree that to be an overt Thing, and both guilty, if it can be proved by two Witnesses of credit. Suppose then the Party offered and promised doth abhor and refuse, will that make a distinction? If it does, 'tis without a difference: Perhaps the Word Consult will be called a new Cant; we know whose Coin it is, and who gave it the first stamp; 'twas no less a Man than Sir Will. Jones, who at the time of such his Invention was no Perogative Lawyer, though considerably so in Times then lately past: Nor is it imaginable what is the meaning of a Conspiracy or Plot to take away the King's Life, but a Communication by Words between several Trai­tors concerning such Act, and the method of it's Accomplishment, and a Declara­tion by Words of each Man's being fixed in that purpose; which if it be proved by sufficient Testimony, will undoubtedly be an Evidence of a Compassing, &c. which is the Treason Prohibited and Punishable; nor can the Meeting make it more so, for they could not discourse unless they met; and therefore 'tis the Words only that are the manifest overt fait. Nor doth Hugh Pynes's Case, or the Resolution of the Judges therein, contradict this, notwithstanding the Confidence of the Remar­ker that it did; they only say that the Words in that Case were not Treason, that those Words were not an Evidence of Compassing, that for those Words he could not be Indicted upon that Statute; but their Opinion doth plainly imply, That had the Words been Evidence of a Compassing, &c. as they were only slanderous and reflective, it had been otherwise; and the Instances there mentioned are full to this, as John Quick's Indictment was only for Words to King Henry, unless stan­ding [Page 30]up and speaking will alter the Case: Thomas Koiver's, John Clipsham's, and John Mirfield's, are all for Words, and some others there specified. Besides, it's observable that in most Indictments on this Statute, some Words have been alledged in them as an overt fait to demonstrate the Imagination, which would be impertinent if the Law were thought otherwise. I'll not insist on Colledge's, because the Case hath been cavilled at, though with no colour as to the Indictment: Part of Patrick Harding's Indictment was lo­quendo publicavit, but I'll not dwell on that, because foolishly drawn; but Arthur Crohagan's Case in Cro. Car. is pretty full and for Words; and the Words of the Book are, That the traiterous Intent and Imagination of his Heart was declared by his Words, and therefore held High Treason within the express Provision of 25 Edw. 3. and upon his coming into En­gland he was arrested, &c. Now no Answer can be to this, but that he came into England; but the Words only shewed his Intent, and by that Book the Words are alledged as the overt fait; besides the Case of Blanchflower and Atwood, Mic. 5 Jac. 1. B. R. in Yelverton's Reports 107. per curiam, resolved, that Words may be Treason; and that is an express Resolution; for there was then no temporary Law in being concerning Parole Treasons that I know of. The Case of Berisford and Presse. Hill. 8 Jac. 1. B. R. Yelvert. 197. ad­judged, that Treason may be committed by Speech as well as by Act, for any thing which discovers the Mind of a Man to be Traiterous to his Sovereign, is capital to the Party: Hit­cham ad Brook Pasch. 1 Car. 1. Hutt. 75. held per cur. that the speaking of Treason was Treason, and that sermo est index animi as well as Preaching or Writing; and no Man can doubt but those are Acts; and Speech is as much so.

Besides, if the Consequence of the contrary Doctrine be well consider'd, 'twill appear to be a plain Evasion of the Statute of 25 Edw. 3. as is manifest upon the reading it; and the common Books are full of this, for otherwise no Action could lie for saying a Man hath spoke Treason: But here's enough said to answer the Challenge, where's the Autho­rity for such an Assertion? Though infinitely more might be said for it, nay 'tis as easie to dumbfound the contrary as 'tis to transcribe Law Cases. If this doth not give them sa­tisfaction, they shall remain unsatisfied for me, I'll plague the World no more with wri­ting on this dull, flat, unprofitable Subject, Crown-Law, lest I should provoke our new Scriblers to double the Plague by their Replies: If they attempt an Answer, I'll leave the Tobacconist and Grocer to confute them, and unless a Trunk or Band-box chance to bring them to my View, I'll never be tempted to read them; and of this they may assure themselves. I say it to complement the Reader with Patience to peruse the rest of the Sheet, being ascertained never to hear more on't, at least not from this hand.

Some perhaps may wonder at the reason of the Publication of these Sheets, and con­ceive them the product of Malice on one side, as those virulent Pamphlets are on the other: To solve that Scruple, I need only repeat the Reasons alledged in the first; but a Repitition is damnably dull, as well as tedious and irksome: I'll therefore add a new one, and that's to shew the Reasonableness as well as the Necessity of a general, indefinite, speedy Act of Oblivion; for though the Bloud-hounds fret, and huff, and bounce, as if all their Mad­ness and Rage were founded on a true Basis, yet 'tis apparent from the Premises, that their foundation is false, and the Law is direct and plain in their Teeth, and doth and will justifie in most of the particulars, at which they foam their Curses and Execrations: Reason there­fore as well as necessity enjoins a silence as to what is past, for otherwise the Kingdom can never have it's desired satisfaction, for in points justifiable, or at least doubtfull; the ju­stice [Page 32]of inflicting Punishments can never be vindicated, did I call them Punishments, I beg the Readers Pardon for the Impropriety; however I'll not name their proper term, but with calmness, endeavour to Evince three things.

1. That it would be gratefull to the Nation in general, and every good Man in parti­cular. 2. Conducing to the Settlement and Interrest of the present Government; and lastly, That 'tis consistent with the promotive of the highest and truest Justice.

First, The Nation did and doth expect it, for Revenge is never natural but when freshly pursued, and time wears off the sense of Injuries, by the Intervention of new ones either real or imaginary, which is all one as to this purpose: The horror of any Crime, or at least the detestation of the Criminal, grows faint and languid upon the removal of the Object, especially if time interposes with the accession of present fears, which at pre­sent do more affect us than greater if more distant. It can never therefore be thought the desire of the People of England to have their Nighbours or Acquaintance harrass'd and per­secuted by Fines, Consiscations, Imprisonments, Marks of Disgrace, or the like, for Acti­ons done in the last or former Reigns, about which the World hath been so much divi­ded, if lawfull or not: Besides, that this was the general Expectation of the Kingdom on the new Settlement or at least the Coronation, of which nature there never was an Instance before this without an Act of Grace; and it is most plain, that none are Adver­saries to it, but the Republicanes and the Jacobites, not for that they need it not, as I shall shew anon, but for different ends, each drives at and wishes a Change, it matters not to what, for if to the latter the other hopes a Common wealth will be the more desirable: If the Republican succeeds, then the other believes a Restoration the more easie, but both dislike the present, and therefore dread a Settlement, and consequently dread the People's satisfaction, and quiet under Their Majesties, and consequently dread an Act of Indem­nity: 'tis true, the cry for Vengeance is loud, but 'tis only from these two corners; which leads to the second particular, that

It will establish and promote the Interest of the present Government, while the popular Bully is full of his Damme's and Menaces, there's certainly danger, and where there's danger there's fear; now fear causes an aversion, and aversion begets hatred: And the Object of it is that from whence the supposed danger arises, which is from the Govern­ment irritated by the Venom and Fury of those hot headed Animals, whatsoever hath power and will to hurt me, must and will be abhorr'd; and though none are immediate actual Patients, yet the being possibly obnoxious to it, and the want of security for the contrary doth of necessity cool their respect to the present Power, under which they were not safe; and this tempts them and their Friends upon contrivances and attempts of Dan­ger, both to Themselves and the Publick; and danger by the attempt is no discourage­ment where the like danger attends their forbearance: And this is of weight, unless Crom­well's Polliticks be thought Christian, to cherish and promote a Flot, as of advantage to Settlement, if seasonably discovered and subtilly managed; but however 'tis as true, that Enemies who are desperate ought never to be thought inconsiderable; for they may shake and batter what they can't destroy, they may do mischief though they can't work ruin to their Adversaries, upon which account the temptation of coutinual impending Danger is fit to be removed: Besides

The want of Security, and the fear of Danger, making Men uneasie in their thoughts, replenishes them with Complaints and Murmurs at every awkard Action, or supposed [Page 33]miscarriage of the Government feared; it makes them Mutineers at publick Taxes and Impositions, partly because they think it strengthens and increases the power of hurting them, and partly because it sponges and bleeds them of that, which they fear an occasion of themselves to bribe Black-rods, Sergeants at Arms, and other Goalers with; and in a conjuncture when extaordinary Aids are indispensibly requisite, no temptation to com­plaint is deserving of Countenance; besides, that it cramps Trade and discourages Pro­jects for Publick Good, &c. but farther, it's the living, not the dead, the happy, conten­ted, and chearfull, and free, not the oppressed, miserable, forlorn, or imprisoned Subject, that doth Service to the Crown and the Publick.

It hinders all such as are thought to be so obnoxious from any bold Essays for the use of the present Government, for that if success be the attendant of such their attempt, they continue unsafe notwithstanding, for no Man will adventure an hazard to secure that Au­thority, which he is not sure will make him safe, if he doth undertake the present Adven­ture, and escapes that Danger, and performs the Service; so that Self-preservation renders it their Policy to unhinge themselves from, or to be shy of the present Power; of which a considerable number might prove usefull Friends, which are now Newters at least, if not Enemies.

It's observable in all foreign Policies, either to work a total Extirpation of the whole Par­ty, or an universal Indemnity, after so grand a Revolution as this was; the former is not to be practis'd here for two Reasons: 1. Because we want People: 2. Many of our Friends must be banish'd too, for divers of the supposed Criminals were instrumental to the present Change, &c. Ergo the latter only is, and can be most advisable; for once I'll suppose their numbers but small in comparison to the Saints and Innocents, (if any such there are in the Nation) yet under our present Circumstances all are to be obliged as Friends that possibly may; but if the thirteen Heads, with the Surrenderer's Clause, and all it's and their Subdivisions had been reduced into a Law in the designed Act of Attain­der, one third at least of the Nation had been involved, who with their disobliged Rela­tives and Dependants is not so contemptible a Flock, though but of Sheep for the slaugh­ter. Besides,

It's impolitick as well as unjust to deny or delay it to those who have submitted to the Government, yielded it Obedience, and quietly bore it's publick Charges according to their Proportion, and yet give a free, full, and general Pardon, both in Scotland and Ireland to all that took up Arms, for all their Sins then past and present; it provokes the former to repent their non-concurrence with the latter, for 'twas but resuming their Quiet and Sub­mission at pleasure, and then they were safe, which now they are not, but under continu­ed Menaces and Dangers both, as appears in their being baited by every barking Cur, that can but write with Gall in his Ink, or speak with a Damme in his Mouth.

Experience farther tells us, that nothing turns or changes the humor of the English Commoner, like Rage, Insolence, and Cruelty in their fellow Subjects, when made Supe­riors, and such is raking into old Sores thought to be; it matters not whether justly or no as to this purpose, the effect is generally such: The Star-Chamber in Car. I. his time, the Major-General's in Cromwell's: The Tophamizing of Abhorrers in Car. II. his time: The Western Campaign, and the other criminal Prosecutions in the beginning of Jac. I. I say all the Violences used in these several periods (and yet they had their respective Provoco­cations) did most notoriously alter the kidney of the Commons, and made even their once [Page 34]beloved, first dreadfull and terrible, then odious and loathsome; they produced conside­rable Changes in their several Consequences: I could come nearer home even to the tea­ring of Moore and North, and other Citizens of London, which first turn'd the Stomach of that City, as is now apparent; but Sat verbum, &c. But farther,

The want of this renders both the Policy and Honor of the great Bellowers for Ven­geance to be justly suspected: 1. Their Honor in taking care of their own Servants for all their Excesses upon the Revolution, and opposing the Indemnity of all others, as by the Act appears: 2. Their Policy, for that it's observable in Story, that the Association in Queen Eliz. time was under a Protestant Prince for the Protestant Religion, and no ill Suc­cess attended it, yet those wise Ancestors of ours thought fit to secure themselves by tur­ning the Association into a Law, and a general Act of Indemnity; I do not say they nee­ded it, but the Associators in that Reign thought it needfull; and 'tis very considerable, that in no Reign was there more Peace and Quiet than in Hers, and in none were there ever more free and general Pardons, and in truth the latter was the occasion of the former; for when Men are once safe and quiet, no small Temptation will provoke any more ad­ventures though they like another better, yet Men being easie are generally contented; There was one free and general Pardon of the Queen's at first confirmed, 5. Eliz. cap. 11. another, 8 Eliz. cap. 18.13 Eliz. cap. 28.18 Eliz. cap. 24.23 Eliz. cap. 16.27 Eliz. 13.29 Eliz. cap. 9.31 Eliz. cap. 16.35 Eliz. cap 14.39 Eliz. cap. 28.43 Eliz. cap. 19. Eleven in number, and never five years without a Parliament-Pardon, and this made Parliaments and Crowns the darlings and desire of the People. Besides, It's the In­terest of each party amongst us, though some don't see it; the Whigg ought to promote it for two Reasons: 1. Lest being the lesser part he chance to feel the want of it, and for that he has given some Provocation. 2. That if he be the greater, the Memory of his Venge­ance and Fury may be forgotten, and himself restored to the good Opinion of the rest of Mankind, by one act at least of good Nature: The Tory ought to pursue the same measures, and much for the same Reasons, for his Top-gallantry hath been, and if repractis'd will be again as odious and loathsome to the moderate and good, as ever it was, or as the others could be: Temper therefore is now the Game, and a Veil over all that's past is certainly the most Politick, especially considering the multitude of the supposed Criminals, and the justice of their several Excuses, which comes next: For,

Lastly, It's consistent with and promotive of the truest and highest Justice, for in most of the Cases the Law is doubtfull, and to punish Opinion in matters of Law, is as unjust as to persecute mistakes in matters of Religion is unchristian, and new Laws for Government de futuro are more agreeable to natural Equity, than a retrospective Fury; that it is so, is plain, the modern Scribles have sufficiently proved it. In two of the Cases cited they differ them­selves, for Dr. Story's Case, the Defender crys 'tis not Law, the Remarker agrees 'tis, and that he was well hanged; for Plunket's Case, the Defender cries, he was well hanged, for there was Treason enough in his Charge, the Remarker insinuates as if he suffer'd hardly; now what shall a little Lawyer believe between these two great bodies of learning? the like may be said of Soames's Case, and the other above mentioned: But what is more? In the Voluminous Argument against the Dispensing Power owned by Sir R.A. he doth con­cede that there are some Prerogatives so personally and inseparably inherent in the Crown, that no Act of Parliament can cramp or diminish, or at least take away; and that being granted, I'm sure all that the rest of the Book says can never make that a plain Case, and [Page 35]in truth his own Argument shews and and leaves it a disputable Point; and if that were doubtfull, every particular else may well be buried in Oblivion: besides in Cases of Con­struction the nature of the thing admits of doubt, and then there's no colour for Punish­ment. Besides,

In respect of inferiour Persons by our Constitution they are obliged to submit to and follow Westminster-Hall, which is the lex loquens Angliae, and when all these things are duly considered, there will remain but few grand execrable Criminals, who are fit to be made Examples of, only to tickle some, aggrieve others, and terrifie none; for that will be the consequence; for that's the case of all Violence, where the Justice of the thing is not clear and undoubted. Then for Exceptions:

Let us think a little; Is it reasonable that some should suffer for not being affraid of Punishments never declared or promulgated, and others should escape, because their Countenances are more fawning, or that by consent their Relations have plaid on the other side, or that their swinging Fortunes enable them to scatter Mice for their perso­nal Indemnity, or that they have had the lucky Principle of being faithfull to all Chan­ges, and true to nothing else, or that they have been forward to subvert their old Ma­ster, after their fire and folly had ruined him, and endangered themselves: these and such like are no Pleas for Justice, and yet this is the Case. Farther,

The drift is to magnifie and aggrandize Punishments by Bill, which by the standing Laws and common Justice of the Realm could not be inflicted, and they urge two Rea­sons for it, 1. Their particular Pardons will otherwise excuse them. To that I answer, Either they are valid in Law or not, if not, there's no need of Bills; if they are valid in Law, the same Law and Justice of the Land enjoin their allowance; even the same Law by which the Countrey-man plows his Land, the Gentleman receives his Rent, the Trader recovers his Debt, and the Senator sits in the House; and by the same Rea­son that these enjoy their Properties, the Criminal ought to have his Pardon allowed, for one's a right accrued by the Law as well as the other. 2. The common Chanel is too smooth; Severity is sometimes necessary, and that now if ever; and therefore the Legislative Authority ought to exert its power, and punish according to demerit. To answer that, I say, either they are no offences by Law, and there needs a Bill to make them such, and inflict evils upon them as such; or else they are offences, but deserve a greater Punishment than a common Court may pronounce: Now if the first be the Case, then I'm sure 'tis rank palpable tyrannical Injustice, and that's the Plague of living under an an Arbitrary Power, for none can know what's not Criminal: If they mean the latter, as I suppose they do, then I ask, to what end were Punishments inven­ted in Societies, but to restrain Men from doing particular actions through the power and influence of Fear? And how could that Consequence be expected, when the penalty was never known before 'tis inflicted? and to inflict an evil afterwards, which was not known before, is to make a man suffer that which he could not fear, because he could not know it, and this because he did not fear it: And the Justice of that is plain too.

I agree with the Satyrists, that there are some Precedents of this last method of pro­ceeding, but most of them are repealed; I'll name two that are so, the Earl of Strafford's which the very Law it self did enjoin Posterity not to observe, or follow, or doe the like; I can't forget one expression of his to this effect upon the Tryall, if there be an Errour in a Judge, so that he give a sentence otherwise than a Man of better understanding con­ceives [Page 36]Reason for, there's no cause the offence should be hightened, because he was not so wise a Man as he might have been, nor so understanding as another; which if allowed, will make it more eligible to follow a Plow than serve a Government, to dig in a Ditch than bear an Office; for all Men stand obnoxious to the Constructions and Passions of succeeding Times. There's one Istance more, and that was Sir Tho. Haxey's, who was at­tainted of Treason, for bringing in a Bill into the Commons House against the Preroga­tive, though while and as a Member: I suppose the Sparks will not much applaud the justice of that Procedure for their own sakes; but as I said before, that, and most others of their Precedents, were repealed, when a cooler Assembly met upon the next Session, and so was Haxey's, in 1 Hen. 4. Cott. abr. rec. 362, 363.

But if Vengeance be requisite, it ought to be without respect of Persons, the Justice of it ought to be impartial, true, and Catholick: and then come in the Pensioners and Surrende­rers, the Regulators and Promisers, the old High Commissioners, and the new Creed Ma­kers, &c. and, God knows, quis non? &c. Nay, since the Revolution some must come in for a snack of Censure too, the buyers and sellers of Places, the Members that took Offi­ces contrary to their own Motion and Vote in the Westminster Parliament: The Pro­clamation-men for prohibiting of importing French Commodities under pain of Confisca­tion of Ship and Goods, three Weeks before a War proclaimed, contrary to eleven Acts of Parliament for Free Trade, even in Parliament-time: the Treasury for farming Lot­teries, which are common nusances, contrary to multitudes of Statutes, and continuing them still with non obstante's in the Indenture, though illegal, and void ab initio: the great Seal for passing four Patents at one Seal in this Lent Vacation, with non obstante's, contra­ry to the Bill of Rights: the new Sheriffs for practising what themselves condemn'd in a Moore and a North, Cum multis aliis, quos nunc describere longum, &c. To conclude, our Sa­viour's Rule, if observed, will be the most infallible Indemnity that can be contrived, and that is, John 8.7. Let him that is without Sin amongst you, cast the first stone. And in truth a Censor of the Manners of others ought himself to be pure, clean, and innocent in omni re quacunque; and if there be no danger but from such, I'm sure there's no danger at all, and that it should be so, is the truest Justice in the World, quod fuit probandum.

I'll not mention the Argument from the Vacancy, that the Government was dissolved, every thing reduced into its primitive state of Nature, all Power divolved into individuals, and the particulars only to provide for themselves by a new Contract; for if so, there's yet no new consent for Punishment of acts done before the Dissolution, and consequently re­venge for that is at an end; Indemnity therefore ought to be promoted by those who made that Vote, for otherwise their truth may be suspected, &c.