Paper printed by the direction of the Lady Russel and mentioned to have been delivered by the Lord Russel to the Sheriffs at the place of Execution Thus far of the Title of that pretended Antidote In the latter end of his second Page that which is mentioned in the Discourse out of his Pamphlet call'd the Antidote and which is barely repeated in order to be answer'd and confuted he grosly mistakes in this latter Pamphlet and falsely affirms it is admitted to be true and from thence endeavours to have the Lord Russel's Defender understood as arguing against the Lord Russel and acknowledging his guilt Which is a very unworthy way of dealing by this pretended Answerer but easily discern'd by any wary and intelligent Reader Nay this Answerer himself immediately after before he is aware clears the Lord Russel's Defender again from the Imputation by taking notice that the Defender of the Lord Russel endeavours to invalidate the Credibility of the Evidence given against the Lord Russel This Reply declines the taking notice of many of this Answerer's Paragraphs that are spent meerly in vilifying the Lord Russel's Defender it being obvious that they were intended onely to render mean and contemptible the person he undertakes to answer it being beneath this Reply to repeat them and to follow the Answerer in his rude and scurrilous way of writing It was indeed no Secret to the Learned that a Variance between the Indictment and the Evidence might be alledged on the General Issue nor that Treason and the Misprision of it are different Crimes nor that proofs of Treason must not be by Hearsay nor Argument only nor that less than two Witnesses are not to be allow'd for proof of that Crime nor that the Witnesses ought to be credible But these are not so generally known to such as are not profess'd Lawyers and may be usefully remembred to such as are brought upon their Tryals for their Lives and are denied the help of Councel when they most need it and are apt to be more under a consternation when they are beset with such sad apprehensions of their danger and baited at by a multitude of crafty Wits and such as abuse their Parts and Eloquence to destroy the Innocent and the Court it may be not always so indifferent as they should be And these useful and well-intended Assistances as ordinary and useless as the pretended Answerer would represent them were very thankfully entertain'd and made use of by several persons of great Abilities and of the best Quality who afterwards fell under the like cruel and malicious Prosecution but they were no profess'd Lawyers And most of these are still living and will and do testifie the truth hereof The Answerer in his fourth Page falls to argue the points in Law upon the great Head and Title of Treason This Reply forbears to repeat what the Answerer says upon this subject or to repeat what this Repliant has formerly printed but therein refers himself to what is so printed Only finds it necessary to state the point in question in as few and plain words as he can and leave it to any impartial Reader to judge of it The great Statute of Treason viz. that of the 25th of Edw. 3. was the only Statute upon which the Lord Russel was indicted and this is acknowledg'd and profess'd by the Attorney-General as appears by the printed Narrative of the Tryal and he could best know his own meaning They could not proceed against the Lord Russel upon the late Statute of Treasons made in 13 Car. 2. for that Statute limits the Prosecution to a certain time after the Treason committed which was elaps'd in the Lord Russel's Case Now the Statute of 25 Edw. 3. does specifie and enumerate the several and particular Heads and Sorts or Species of Treason that might be proceeded upon or tryed and adjudged in the ordinary Courts viz. in the Kings-Bench or Judges of Oyer and Terminer or Gaol-delivery Such as that of Newgate or the Sessions for Gaol-delivery at the Old-Baily where the Noble Lord Russel was brought to his Tryal The scope and drift of that Statute of 25 Edw. 3. as appears by the Preamble was to confine those ordinary Courts and the ordinary Judges to plain manifest Rules what they should adjudge Treason and what not it being of so great Concernment to the lives of Men and not to allow the Judges or Lawyers a latitude or liberty to make what they thought fit to be Treason or to exercise the Tongues and unruly Noises of Lawyers in a matter of that moment And that Statute of 25 Edw. 3. being in its nature a confining restraining and explanatory Law ought therefore not to be largely extended or improv'd and stretched beyond the plain words and apparent sence of them Now among other several Species or Heads or sorts of Treason particularly enumerated by that Statute there are these two pertinent to our Case viz. 1. Compassing or Imagining the Death of the King. 2. Levying War against the King. Whereupon the common Reader for whose satisfaction this is written may easily observe this distinction That the first of these is Treason in the very imagining or conspiring though the King's Death do not ensue But the latter is not Treason in the conspiring and imagining but the Treason must be in the actual levying of War. So that barely to consult conspire or imagine to levy War though there be never so plain nor so open or overt an act of such consulting or conspiring or imagining of it will not amount to this Species or sort of Treason upon this Statute of 25 Edw. 3. which is the only Statute upon which the Lord Russel was concern'd For that Statute of 25 Edw. 3. did not intend to make it Treason to consult or conspire to levy War without the actual levying of War. This will not be denied nor disputed by the Lord Russel's Adversaries nor by this Answerer But perfectly to evade this Statute and the manifest intent and meaning of it they insist That though conspiring to levy War be not Treason within the Statute of 25 Edw. 3. yet to conspire consult agree or conclude to stir up or raise or move Insurrection and Rebellion against the King and to consult or conspire to seize the King's Guards which signifie one and the same thing with consulting or conspiring to levy War these say they may be an open or overt Act to prove a consulting or conspiring to kill the King. What is this but to confound the several and distinct sorts and Species of Treasons which the Statute of 25 E. 3. doth so carefully and industriously labour to distinguish And what is this but to make a bare conspiring and consulting to levy War without any actual levying of it to be Treason within this Statute of 25 Edw. 3. which plainly this Statute would not have to be so taken and so the good design and scope of the Statute the security of mens lives is
wholly overthrown by this Artifice and what shall be taken to be Treason and what not will be still as uncertain as it was before the making of that Act of 25 Edw. 3. And it was then a needless idle thing in those that made the Statute of 13 Car. 2. and so of former Statutes to make the conspiring to levy War to be Treason for by this practice and construction it is already made so to their hands by 25 Edw. 3. Now the Lord Russel was Indicted for Conspiring to kill King Charles the Second and the overt or open Act alledg'd to show and signifie it is nothing but his consulting and conspiring to raise and stir up Insurrection and Rebellion and consulting to seize the King's Guards though they were not actually done which are just the same thing with conspiring to levy War which plainly is no Treason within the Statute of 25 Edw. 3. and therefore most clearly the Lord Russel was not guilty within that Statute upon that Indictment and Evidence Since the Lord Russel's Defender has compos'd this short State of his Case upon this great point there hath come to his hands a printed half sheet which has excellently well done the same work which had been but a few hours sooner it had saved the labour of this part of the present Discourse and Argument This half sheet is justly entitled A Justification of the late Act of Parliament for the Reversing the Judgment against the Lord Russel There is but one Point more to speak to and then the Lord Russel's Defender will bid his Answerer and Reader Adieu And it is that Point which the Answerer's 〈◊〉 Print viz. his Antidote against Poyson did not mention and so no occasion was given then to consider of it but it is largely debated by Court and Council at the Lord Russel's Tryal yet being then but suddenly started tho it were well argued by the Lord Russel's Councel assign'd no Authorities however were then cited thô call'd for by the Court to justifie and make good the Arguments and Reasons urged by the Councelâ— and it is a point in Law which the Act for Reversing the Judgment against the Lord Russel is principally and in the first place grounded upon viz. That there had been an undone and illegal Return of of Jurors to Try that Noble Lord too often practised of late and that the Noble Lord was refus'd his Lawful Challenge to them for want of Freehold The truth of this as to matter of Fact doth evidently appear by the large Narrative of the Tryal Printed by that Lord's Adversaries and this is not in the least touched upon by the printed half sheet stiled A that of the Act for Reversal of the Judgment against that Lord. That Point in Law now only remains to be 〈◊〉 to viz. That in all Cases of the Tryal of a Man especially in a Tryal for his Life the Jurors ought to be Freeholders even at the Common Law and before the Statifie of 〈…〉 5. Cap. 3. and that not only in Tryals within the City of London as the Lord Russel's was as in all other Cases 〈◊〉 Towns Corporate where there was a Jurisdiction of Trying for Life in Cases criminal It was not material 〈◊〉 the Goâ—â—â—â—n Law or of what yearly Vaâ—â—ie that Freehold was or is to be but some Freehold thô never so small the Jurors ought to have or else it was a just cause of Challenge It was indeed the Statute of 2 H. 5. C. 3. that first â—ate the yearly value of the Freehold and requir'd it should be of 40 s. per Annum which 40 s. per Annum was then in that King's Reign being so long since equivalent to a much higher Value now And therefore the Books and Authorities that speak of Freehold of a less Value then 40 s. per Annum must of necessity be understood not to speak of Cases within that Statute but of Cases at the Common Law. 3 H. 4. fol. 4. b. Rolles Abridgement Title-tryal fol. 648. It is there held that Freehold of any value was sufficient for a Juror This proves that Freehold is requisite and that it was so before the Statute of 2 H. 5. it being in the Reign of K. Henry the Fifth's Father and with this agrees Kelloway fol. 46. towards the end Some other Cases after the time of King Henry the Fifth proves the same as 16 E. 4. fol. 8. half an Acre of Land so it be within the Hundred says that Book is sufficient and it is well known that as to this qualification of having Freehold the same Rule governs in the rest of the Jurors as in those of the Hundred 10 H. 6. Brookes Abridgement Challenge 192. Hales's Pleas of the Crown 260. Nor do these Authorities distinguish at all between Cases criminal and civil nor in Cases criminal between that of Treason and in Cases less criminal This being so at the Common Law and the Statute of 2 H. 5. c. 3. only adding the yearly value viz. 40 s. per Annum Freehold which before at the Common Law might be of any lower value Now tho that Statute of 2 H. 5. be Repeal'd as to Tryals in Treason as in truth it is by the latter Statute of 2 and 3 of Phillip and Mary cap. 10. which Enacts that all Tryals in Treason shall be according to the course of the Common Law the result is that still there must be Freeholders to Try thô they may be Freeholders as at the Common Law of any yearly value whatsoever That the Statute of 2 H. 5. while it was in force did extend to Cases of Treason thô Treason was not expresly mentioned in it and the Statute speaks very ambiguously and obscurely appears by the Authorities following viz. Stamford's Pleas of the Crown 161 and Pâ—â—lton de Pace Regis Regni 187 and by the Statute of 33 H. 8. c. 23. in the Proviso that reserves to the Party the Challenge for want of 40 s. Freehold even in case of Treason though it make the Treason triable in any County See Sir Christopher Blunt's Case Justice Croke 37 Eliz. fol. 413. In an Information of Intrusion by the Queen a Juror was challenged for want of Freehold and upon Examination of the Juror it appear'd he had Freehold of 15 s. per Annum value and that was adjudg'd sufficient which admits it had been a good cause of Challenge had there been no Freehold at all and it necessarily implies that it was requir'd by the Common Law for no Statute interposed as to any lower value than 40 s. per Annum Nor does this Case distinguish between the Case of Intrusion upon the Queen and any other Case But it may reasonably be argued if Freehold be necessary in a Juror who is to try a Case of Intrusion only a Fortiori is it requisite in a Case of High-Treason but in that Case of Sir Christopher Blunt another Juror was challenged that had no Freehold and he was therefore
set aside Now that the Challenge for want of Freehold extends to the City of London and other Cities and Burroughs as well as to the Counties is abundantly proved by the Statutes of 11 H. 6. c. 1. 7. H. 7. c. 5. and 23 H. 8. c. 13. to which the Reader for brevity-sake is referred It is no where maintain'd that an agreement to Poyson or Stab c. is no Treason if the very Act do not ensue as the Answerer very falsly alledges in the Second Column of his 6th Page towards the lower end for those have a manifest tendency towards killing nor are they any distinct species or sorts or kinds of Treason from the killing of the King as that of Levying of War and seizing the King's Guards especially not shewing what Guards are a distinct species from that of killing the King and need not necessarily be understood to terminate and conclude in a killing the King taking the King Prisoner or seizing his Person may more reasonably be thought to aim at a killing of the King or have a tendency towards it And the Indictment ought surely to have declar'd and express'd clearly and plainly what Guards were meant there being variety of Guards for every Indictment ought to contain certainty Herein the very Indictment was faulty The bold Answerer hopes the King will always preserve those Guards thô the Parliament have declar'd their sense to the contrary when the present extraordinary occasion shall be over This daring presumptuous Answerer in defiance of the Act for Reversal of the Lord Russel's Attainder the Tryal having been partial unjust and illegal as the Act affirms it yet dares to averr in his last Page that there was Evidence enough to justifie all concerned in the Prosecution and Tryal The Answerer towards his close takes great care and is much concern'd to justifie the King's Sollicitor that then was And this would encline one to think that the then King's Sollicitor was not the Author of that Antidote against Poyson nor of this last Print entituled The Magistracy and Government Vindicated which are so much alike in their stile and strain And in truth that late King's Sollicitor doth utterly deny that he had any hand in either of them And Sir George Jeffries the last Lord Chancellor could not compose this last This being so it may easily be judg'd where it must fix for this look into the printed Tryal I now refer the Answerer to justifie himself at Law if he happen to be in danger of an Exception out of an Act of General Pardon and Indemnity where he may have a fairer opportunity to defend himself in his own more immediate Concern for endeavouring to subvert the Law which ever proves too hard for all its Opposers And I will so far follow his Humour and Vein as to conclude with Verses too Rode Caper Vitem tamen hic cum stabis ad Aras In tua quod fundi cornua possit erit Which I thus English Go spightful Satyr bruise that Sacred Vine The LAW but know there shall not want for Wine To pour into thy Head which may suffice To render thee a perfect Sacrifice FINIS ADVERTISEMENT POlitica Sacra Civilis or a Model of Civil and Ecclesiastical Government Wherein besides the positive Doctrine concerning STATE and CHVRCH in general are debated the principal Controversies of the Times concerning the Constitution of the State and Church of England tending to Righteousness Truth and Peace By George Lawson Rector of More in the Country of Salop. The Second Edition This Book first printed 1660. being so well approved of that it soon became very scarce and was sold at great Rates is now reprinted for I. S. and are to be Sold by T. Goodwin at the Maidenhead over against St. Dunstan's Church in Fleet-street 1689. Reply Reply