Imatges de pÓgina

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

To hear a Cause ex parte is in effect to know nothing of the Truth, so as to be able to make a Judgment where the Right is. Many Innocent ferfons will unavoidably suffer, when ever it comes to be Law that Men may be try'd and condemn'd, without being heard : This fort of Justice will fet the Innocent and Guilty on the same foot ; and to throw Cross and Pile, whether the Prisoner shall be acquitted or condemn'd is as Just, 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 must at best 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 exprest affect him in the least.

But beside these things, there fell out some thing further in this Bill of Attainder, that is very unusual and extraordinary; for it was begun and pass’d both Houles, in one and the same day, which was never heard of before in any case, though the occasion were never so presling : The Mechod of paffing all Bills being quite other ways. For when a Bill is brought into either House of Parliament, or sent from one House to the other, it is not often that they give it a reading the same day, or if they do, it's seldom that a Bill is read above once in one day, and when it has been read a second time, if it be not rejected it is committed, and then for the more part the Committee does proceed upon


it some other day, and not upon that, so that regularly no Biil can pass either House in less than Three days : And this gradual way of proceeding upun Bills, demonstrates the great Wildom and Justice of the Two Houses, and vindicates them against precipitancy and partiality. I his has been the Ancient and Approved Method beyond the Memory of Man or Records, and it has ever been found safe if not fatal to go out of the path of our Fore-fathers.

And thus stands the Cafe as to the passing of the Bill of Attainder against the D. of Monmouth; which must be acknowledg'd to be a Summary way of proceeding upon presumption, without Legal Evidence, or hearing the Party, or observing the usual Method of passing Bills in Parliament.

But it is objected and said 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 usual Forms of Law they may justifie the difpensing with them; and for that reason all that was done in the Duke of Monmouths case is

very well warranted, because there was then flagrante bello.

It is true that the Parliamevt has such a discrétionary 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 should not now be revers'd, but rather that it ought to be, because when the Mischief is prevented, that induced the Parliament to such an extraordinary course, it


was the constant practice of our Fore-fathers to put it out of sight as soon as could be. And nothing could be more

prudent, for so long as it remain d a precedent, it might be the occasion of a greater evil than it had prevented ; and so long as this Attainder stands in force, it will be look't upon as an Exposition of the Law, declaring that it may be Legal and Just to condemn without Evidence, or hearing the Parties defence, and thereby pụt our Lives and Families into a more precarious condition, when in the discretion of the Two Houses of Parliament , then when they are to be judged in the Interiour Courts of Justice; and fo chalk out a Method for unfortunate Times, to take off any Man that stands in the way, for though what was done in this case may be said to be Jus, yet it was Summum Jus, and if it was Justum, yet it was not done Justé

But over and above all this, there happend a thing in pursuance of this Bill, which though in flrictness of Law it cannot be assign d as fufficient Error, yet in reason may be an inducement to the Parliament to reverse this Atrainder.

The Life of every Man is under the protection of the Law, even Perions Condemned, Outlawed, or Attainted, to Kill or Execute them in any other manner than the Law directs is Criminal : In case of Outlawry for Treason or Felony in the Kings Bench, if the Party 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 say for himself, wherefore Execution should not be awarded, but that also the Law may be satisfied, that he is the very Person named in the Outlawry, and even a Prisoner condemn 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 some other Court that could properly judge and distinguilh, 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 same Person, a Jury must there. upon have been impanelled to try whether he were the proper Person or not: For the Law delights in certainty, and will not go out of to grave and considerate a way, especially in fo folemn a cafe as Blood, where it cannot be too cautious; one Man may be fo like another, that it is not easie to distinguish them when asunder, and a mistake in such a kind would be a great blot upon the Justice ofany Government, when it is occasion d by pre. cipicancy and haste; but we have lately seen luch unfortunate times, when there was a willing difposition to commit such Mistakes, if any Colour of Law could have been found for it.

But setting all these things aside, and were there not so many extraordinary things in the Case, yet something ought to be done for the sake of the Dukes Children ; furely a great deal of compassion is due to them, considering upon what score their Father loft his Head; by reason that the Cause of his Rising in Arms was no other than that which prevailed with the Prince of Orange to make a de. scent into England, that is to deliver us from Popery and Slavery; there being nothing that differences those two Cases, but that the one had fuccess, and the other miscarried, and therefore can


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

Besides, if this Attainder be not revers'd, it will be an utter discouragement upon all others for the future to attempt the rescue of their

Country, if no regard shall be had to their Posterity, in case they don't succeed : I am verily perswaded that if the Prince of Orange had miscarried in his late Attempt to deliver us, every Man that had suffered in that cause, 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 Posterity, at least that of right their Families were to be put in Statu quo : There will be very small inducement for any to be concern'd for the Publick, when nothing but success will make the Publick take care of them ; when the Vertue of a People is so far depraved as to forget those that have serv'd them ; they do not after that long retain a true sense of Liberty, and are easily pertwaded to part with their freedom; and so long as this A trainder remains in force, it hangs over the Nation like a dreadful Omer; for so long as it is in force we consent 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 such Law as took off the Duke of Morniouth, and therefore what can be said that his Atrainder should not be reyers'a ?

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