him guilty, and then too he is not to be condemn'd, till he has moved in Arreft of Judgment, and heard what he can further fay for himself.

To hear a Cause ex parte is in effect to know nothing of the Truth, fo as to be able to make a Judgment where the Right is. Many Innocent Perfons will unavoidably fuffer, when ever it comes to be Law that Men may be try'd and condemn'd, without being heard: This fort of Juftice will fet the Innocent and Guilty on the fame foot; and to throw Crofs and Pile, whether the Prisoner shall be acquitted or condemn'd is as Juft, as to Try a Man without hearing his Defence.

Now it's undeniable that there was no time given by the Bill for the Duke to appear, which muft at beft hand be allow'd to be a great omiffion; for in all other Acts of Attainder, if the Perfon was alive, a convenient time was allowed him to come and be heard, and till that time was expired, the Act was not in force against him, nor could the penalty therein expreft affect him in the leaft.

But befide these things, there fell out fome thing further in this Bill of Attainder, that is very unufual and extraordinary; for it was begun and pafs'd both Houses, in one and the fame day, which was never heard of before in any cafe, though the occafion were never fo preffing: The Method of paffing all Bills being quite other ways. For when a Bill is brought into either Houfe of Parliament, or fent from one Houfe to the other, it is not often that they give it a reading the fame day, or if they do, it's feldom that a Bill is read above once in one day, and when it has been read a fecond time, if it be not rejected it is committed, and then for the more part the Committee does proceed upon

it fome other day, and not upon that, fo that regularly no Bill can pafs either House in lefs than Three days: And this gradual way of proceeding upon Bills, demonftrates the great Wisdom and Juftice of the Two Houfes, and vindicates them against precipitancy and partiality. This has been the Ancient and Approved Method beyond the Memory of Man or Records, and it has ever been found fafe if not fatal to go out of the path of our Fore-fathers.

And thus ftands the Cafe as to the paffing of the Bill of Attainder againft the D. of Monmouth; which must be acknowledg'd to be a Summary way of proceeding upon prefumption, without Legal Evidence, or hearing the Party, or obferving the ufual Method of paffing Bills in Parliament.

But it is objected and faid in the defence of this, That the Legislature of England is confined to no Rules and Directions, but that of their discretion, and that upon fuddain emergencies, when it will be to the Publick Detriment to stay for the ordinary and ufual Forms of Law they may juftifie the difpenfing with them; and for that reafon all that was done in the Duke of Monmouths cafe is very well warranted, because there was then flagrante bello.

It is true that the Parliament has fuch a difcretionary Power, and it's reasonable it should be fo; but yet this does not prove that a more deliberate proceeding might not have been had upon that Bill, however it will fcarcely afford an Argument, wherefore the Attainder fhould not now be revers'd, but rather that it ought to be, because when the Mischief is prevented, that induced the Parliament to fuch an extraordinary course, it

was

was the conftant practice of our Fore-fathers to put it out of fight as foon as could be. And nothing could be more prudent, for fo long as it remaind a precedent, it might be the occafion of a greater. evil than it had prevented; and fo long as this Attainder ftands in force, it will be look't upon as an Expofition of the Law, declaring that it may be Legal and Juft to condemn without Evidence, or hearing the Parties defence, and thereby put our Lives and Families into a more precarious condition, when in the difcretion of the Two Houses of Parliament, then when they are to be judged in the Inferiour Courts of Juftice; and fo chalk out a Method for unfortunate Times, to take off any Man that ftands in the way, for though what was done in this cafe may be faid to be Jus, yet it was Summum fus, and if it was Juftum, yet it was not done fufte.

But over and above all this, there happen'd a thing in pursuance of this Bill, which though in flrictness of Law it cannot be affign'd as fufficient Error, yet in reafon may be an inducement to the Parliament to reverse this Attainder.

The Life of every Man is under the protection of the Law, even Perfons Condemned, Outlawed, or Attainted, to Kill or Execute them in any other manner than the Law directs is Criminal: In cafe of Outlawry for Treafon or Felony in the Kings Bench, if the Farty be apprehended in time of a Vacation, no Warrant can go out to execute him before the next Term, but he is till then to remain in Prison, that fo he may not only be heard what he can fay for himself, wherefore Execution fhould not be awarded, but that alfo the Law may be fatisfied, that he is the very Person

named

named in the Outlawry, and even a Prisoner condemin d at the Bar cannot be executed till there is a Rule of Court, or other order for it: Now 'it is conceived that the Duke of Monmouth ought not to have been executed till he had been brought before the King's Bench, or fome other Court that could properly judge and diftinguish, whether he were the very Perfon Attainted by that Act; for had he been brought to the Bar, and there deny'd that he was the fame Person, a Jury muft thereupon have been impanelled to try whether he were the proper Perfon or not: For the Law delights in certainty, and will not go out of fo grave and confiderate a way, especially in fo folemn a case as Blood, where it cannot be too cautious; one Man may be fo like another, that it is not easie to diftinguish them when afunder, and a mistake in fuch a kind would be a great blot upon the Justice of any Government, when it is occafion'd by precipitancy and hafte; but we have lately feen fuch unfortunate times, when there was a willing dif pofition to commit fuch Mistakes, if any Colour of Law could have been found for it.

But fetting all these things afide, and were there not fo many extraordinary things in the Cafe, yet fomething ought to be done for the fake of the Dukes Children; furely a great deal of compassion is due to them, confidering upon what score their Father loft his Head; by reafon that the Caufe of his Rifing in Arms was no other than that which prevailed with the Prince of Orange to make a defcent into England, that is to deliver us from Popery and Slavery; there being nothing that differences thofe two Cafes, but that the one had fuccefs, and the other miscarried, and therefore can

it be politick to leave that Attainder unrevers'd as a reproach upon the Duke and his Pofterity for what he did.

Befides, if this Attainder be not revers'd, it will be an utter difcouragement upon all others for the future to attempt the refcue of their Country, if no regard fhall be had to their Pofterity, in cafe they don't fucceed: I am verily perfwaded that if the Prince of Orange had miscarried in his late Attempt to deliver us, every Man that had fuffered in that caufe, would have expected, that when ever it was in the power of the Nation, to have had a mark of favour be fet upon their Pofterity, at least that of right their Families were to be put in Statu quo There will be very fmall inducement for any to be concern'd for the Publick, when nothing but fuccefs will make the Publick take care of them; when the Vertue of a People is fo far depraved as to forget thofe that have ferv'd them; they do not after that long retain a true fenfe of Liberty, and are easily perfwaded to part with their freedom; and fo long as this Attainder remains in force, it hangs over the Nation like a dreadful Omen; for fo long as it is in force we confent to the Justice of it, and how can that be Juft which we would not have done to our felves; for certainly no Man would like to be Judged by fuch Law as took off the Duke of Monmouth, and therefore what can be faid that his Attainder fhould not be revers'd?