Natural allegiance, and a national protection, truly stated, being a full answer to Dr. G. Burnett's vindication of himself

SECT. IV.

BUt for all what our Author does so plausibly suggest, doubtless, there must be a great deal of difference between a Criminal Process, and a Civil Action; which if there be, then the Issue that is directed thereupon, though in formality it may be the same, must in matter and substance greatly differ, and the Consequences that attend it, as I have toucht upon before, are of as dif∣ferent a nature; which when the term is elaps'd, the one will only affect your Estate, the other both that and your life; for though in both Cases you lose the benefit of the Laws; yet when the Crime is High Treason, you may more properly be said to forfeit the Protection of the King; but for that, our Author had provided for

before hand, and from his own * 1.1 Maxims anticipated that forfeiture, by the renouncing his Obedience.

But further, I am well inform'd, that though the Dr. would make all his Process to be but a formal Cita∣tion; and that there is no cognizance taken of the mat∣ter it contains, that even in Scotland, a Citation, and Inditement, are indeed the same in signification, tho' they are two different words. The first form they are forc'd too, when the Criminal absents himself; and the second (though the same in substance) in the form of a Libel, he's to plead to when in Custody: Had the Ci∣tation exprest nothing of the Crime, then I confess, our Authors Arguments had been better apply'd, but I cannot conceive now, without the greatest Absurdity, how a Citation can be issued out, expressing the Matter, and yet no Cognisance to be taken of the matter it ex∣presses; if a Citation be a Judicial Act, then sure what is therein contain'd, is as judicially taken notice of: But though this second Citation seem so surprising to him, he cannot be such an only Stranger to his own Jerusalem, as to know none of these things, unless the flying into Egypt has made him an utter Alien to the Common-wealth of his Israel; nothing is more common in his Country, then that the King's Advocate when he discovers some new Matter of Fact against the Criminal, to issue out a second Citation for his Appearance? This is call'd an Additional Libel, in which there is no need to assert, and set forth any Special Law, because it usually refers to the first, in which the Laws are specify'd; and since our Author ends this Citation with an &c. we are left in the dark as to the latter end of it; and perhaps, he may * 1.2 as unsincerely have left out some of the beginning; but though he had been more ingenious; and this last Cita∣tion had no reference to the former, some that under∣stand the Law of Scotland too, do not agree with our * 1.3

Authors Informers, but are of Opinion, that where the King's Advocate does accuse a Person of a Crime, that is in its own nature Treasonable; and what implys the Pains and Punishment that is due to Treason, that then it is time enough for the Advocate to set forth the Special Law for it at the Bar, and the Judges will as certainly find the Libel, or Inditement, Relevant, which is like our Grand Juries in England, finding of the Bill, and this practise (if I mistake not) of naming no par∣ticular Act or Statute in High Treason, is as usual with us here, it runs through all the forms of our late Try∣als and Inditements, which only mention against the Statute, in that, or the like Case provided, and leave it to the Attorney, which is but another sort of Advocate, or the Judges, to declare what Statutes they pro∣ceed upon; but because general Assertions may be no proof with some that will dispute any, tho' the thing has been so often objected by the Prisoners, in all our late Proceedings, and always so answered by the Jud∣ges, yet our Author will particularly find Mr. Sidney, a a Man of no easie temper to be satisfy'd, to be forc'd * 1.4 to submit to it; and this Judge, that our Author has so injuriously defam'd, to tell him as much Iustice, That when he came to his Tryal, the Attorney might tell him what Statute he went upon, and give in Evidence any Act of Parliament that comprehends Treason; and as the Scots did of old Symbolise with us, from the Vicinity of the Countrys, so somewhat in their * 1.5 Laws and Constituti∣ons, as well as with the more antient of the Romans; so I were almost assur'd that even in this modern practise which our Author disputes, we might have somewhat of agreement too, which I would not venture to affirm positively, till I were by a Person of Honour and Inge∣nuity, and of the same Country further assur'd; neither is it improper to this place to observe, that though our

Author insists on the insignificancy of the Term Rebel in the Letters, or Writ that declare him so, for his Non-Appearance; that it may there have a double significa∣tion, both with relation to his Contempt to the Laws, and the Crime that he is charg'd with against the Prince, the Ʋnivocal sound of the same word, will never do him any Service in his Aequivocal Interpretation of the Sense; and the little kindness that he has to the Society one would think should make him as afraid of an Aequivocation, or a Mental Reserve, as of the very Mass it self; yet such is his reasoning, notwithstanding that Antipathy he has against the Name; for this is plain, that the Demands that were made of him, from the States, is founded upon the Matter and Substance, and not the formality of the Word; for where it is formally us'd in Civil Actions, there Letters of Relaxation are granted to the Partys if they satisfie the Debt within a Year and a Day, and so acquitted, which shews that the Term Rebel, is there meerly us'd for form; but where in the other case he is a presum'd Rebel, both by Matter and Form; there, though he be Relaxt of his Letters of Horning, by his Appearance, yet he might be hang'd for a Rebel after he appears; and I suppose, that may be one of the Reasons, why the Reflecter stands out in Contempt, but then he ought to have con∣sider'd further of what follows in his Country usually in such cases, which makes a greater difference; that after the publication of these Letters, and a year elaps'd; in his case, the King's Advocate can issue out another sort of Writ, call'd Letters of Intercommuning, where∣by all the Subjects of that Kingdom are forbid to con∣verse with him, to supply him with any Necessaries, up∣on the Penalties of High Treason; and this to extend, not only to such of the King's Subjects as reside at home,

but to any that are Inhabitants with him in Holland, or if he had translated himself and his Allegiance with the Hollanders to Japan.

So that from this it will appear, that even by the Law of Scotland, a Man (against whom the Writt of Horn∣ing is directed, importing High Treason) is a Rebel of an higher nature, till he come and take his Tryal, and that before the Letters of Intercommuning are issued out; & though Terms in Treatises are to be taken in the com∣mon acceptation (as our Author tells us) not as in Courts of Justice, yet * 1.6 Grotius will tell him too, that there is also a great Liberty to be allow'd to conjecture in Ho∣monimous Expressions, and Amphibologys, and that Terms of Art, such as Majesty, and Parracide, and we may add, Rebels and Fugitives must be all explain'd by Men most skill'd in the Law.

But because there can be no fairer way of dealing with your Adversary, but by consuting him even from his own Concessions, (for Arguments that are Diame∣trically opposite, do but in a more Eloquent manner, give one another the Lye) wee'll suppose with him for once, that these Letters that denounce him a Rebel, mean nothing, but that he is a little Contumacious, that they are meerly but so many Writs of Rebellion, which here that Honourable Person he so reviles, does many times issue out of Chancery; wee'll suppose our Au∣thor retir'd into Holland, only for some disorder in his affairs, or for a little imaginary Debt; yet even in those very Civil Actions, the Laws of Nations allow such a Latitude, that Letters of Request may be made to the Forreign State, and if they are deny'd, those of Repri∣sals * 1.7 may be granted; and if Private Subjects have such Remedys, it will be hard to deny a Prince to demand satisfaction for a publick offender; and the Dilemna was

never so much as doubted; but that a Tryal was to be order'd by the Forreign State, or the Criminal surren∣der'd to the offended one; I gave our Author several Presidents for these Proceedings; but he that pretends to * 1.8 answer all, left them all unanswer'd; I shall present him more of the same nature, when we come to a more proper place, but it is somewhat more apposite here, since he would make his Treason but a sort of Civil A∣ction, and himself no more than the King's Debtor; to tell him, that in Edward the Second's time, some Mer∣chants of Florence having receiv'd the King of England's Rents, run away with the Money to Rome; the King sends his Request to the Pope, demands the Goods to be secur'd and their Person seiz'd, and neither of them de∣ny'd. The like was done to one that fled into Lorrain with 500 l. of the King's Money; the Duke upon de∣mand, seizes the Person, and secures his Goods where∣ever they were found, till he had satisfy'd to the full, so that I hope from hence may be concluded, that even a Man that does not * 1.9 pay his Debts, or retires into Hol∣land, only for a disorder in his Affairs, may give our Go∣vernment a right to demand him: For if it be granted in the Case of a Forreigner, it will be good in a Native's, a fortiori.

To summ up all the Substance of this Point, It seems very strange, that the Proceedings of the Justice in Scotland, should be so Arraign'd, where the Laws are so favourable to Offenders, as to make the very Judges the greater Criminals, if they should offer to do the least wrong, and Injustice, and liable to the most * 1.10 rigorous Punishment; where the Witnesses are in such danger for their given false Evidence, that they expose them∣selves to the Punishment of those they accuse, if they can be ever convicted of the Perjury and falshood, and

that whither it be Pecuniary, Corporal, or Capital; and where by particular * 1.11 Act, Calumniators in High Trea∣son, are (if the accused Party be acquitted) guilty of the same Crime, expos'd to the same Punishment. And it will be no easie matter, when they are expos'd to such terrible Consequences for the Perjury, to procure Knights of the Post, though it were to serve even an In∣terest of State; * 1.12 to fasten pretended Crimes (as our Author has it) on those they have a mind to destroy: There is a Society our Author has a mind to destroy; and I think some of the Members, not long since, were as miserably destroy'd, for want of this Severity with us, against such Profligate Evidence as accus'd them: The Dr. knows this to be true, and is so far for verifying it, that he would have his * 1.13 Accusers accordingly punisht, even before they are Convicted of any falshood, and himself not so much as try'd, or acquitted.

Thus have I done all that Justice to a Nation, even in its Judicial proceedings, that they could expect from a Forreigner, from his little Learning, and less Examina∣tion into their Laws, which he found, even upon that little he has made, both agreeable with the ancient Roman Equity, in many things Consonant with our own, and in some cases recited already, beyond ours; more equitably Just, so it will seem somewhat harder to be born, that this Nations Justice should be so much ar∣raign'd by him that is their own Criminal, but because our Authors wonted Vanity, may not arrogate the in∣glorious Fame, of being the first Invader of the Judi∣cial Proceedings of his Country, he has only borrowed

from * 1.14 Buchanan, that went before him; who has told the World that their Judges were but so many Inter∣rupters of Justice, that the Subjects property depends on∣ly upon their Arbitrary power, and that the Government is truly Tyrannical; & such a courteous Historiographer to his Country (as he may be well call'd, an Original;) so it was our Authors Peculiar to transcribe him, and could never have been Copy'd by a better Historian.

Notes

• * 1.1

  Vid. Six pa∣pers, pag. 39.
• * 1.2

  Vid. Vind. p. 2.
• * 1.3

  Ibid.
• * 1.4

  Vid. his Tryal, pag. 7.
• * 1.5

  Their Books of Reg. Majest. much after the manner of our Glanv. de legi∣bus. So also their Parliam. like ours. Vid. Duck. de authoritate. lib. 2. cap. 10.
• * 1.6

  Lib. 2. c. 16. Sect. 84.
• * 1.7

  Vid. Rolls A∣bridgment, fol 530. a Case to this pur∣pose.
• * 1.8

  Vid. Parliam. Pacif.
• * 1.9

  Vid. Vind. pag. 3.
• * 1.10

  Jam. 1. p. 2. 6. 45. Jac. 5. p. 7.104.
• * 1.11

  Jam. 6.11. p. c. 49.
• * 1.12

  Vid Six Pa∣pers. p. 49.
• * 1.13

  1. Note▪ That the se¦cond Citation does not in∣validate the first, much less prove the Witnesses forsworn, and he confesses, that the Matter agrees with the former, Id. p. 3.
• * 1.14

  Judices quantum in se est, lationes legum impe∣dire, civium bona Judicum, arbitrio esse concessa: eo∣rumque esse perpetuam potestatem; Imperium plane Tyrannicum, Buch. lib 14 Rerum Scotic. ad Ann. 1532.