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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26140	A defence of the late Lord Russel's innocency by way of answer or confutation of a libellous pamphlet intituled, An antidote against poyson : with two letters of the author of this book, upon the subject of His Lordship's tryal : together with an argument in the great case concerning elections of members to Parliament, between Sr. Samuel Barnardiston bar. plaintiff, and Sr. Will. Soames, sheriff of Suffolk, defend., in the Court of Kings-Bench, in an action upon the case, and afterwards by error sued in the Exchequer-chamber / by Sir Robert Atkyns, Knight of the Honourable Order of the Bath ...	Atkyns, Robert, Sir, 1621-1709.	1689 (1689)	Wing A4136; ESTC R4958	24,651	29

Advertisement THere is lately Printed for Timothy Goodwin at the Maiden-head against St. Dunstan's Church in Fleet-street these Two Books following I. An Enquiry into the Power of Dispensing with Penal Statutes Together with some Animadversions upon a Book writ by Sir Edw. Herbert Lord Chief Iustice of the Court of Common-Pleas Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales 's Case II. The Power Jurisdiction and Priviledge of Parliament And the Antiquity of the House of Commons Asserted Occasioned by an Information in the King's Bench by the Attorney-General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Iurisdiction in the Realm of England occasioned by the late Commission in Ecclesiastical Causes Both Writ by Sir Robert Atkyns Knight of the Honourable Order of the Bath and late one of the Iudges of the Court of Common-Pleas A DEFENCE Of the Late Lord Russel's Innocency By way of Answer or Confutation of a Libellous Pamphlet INTITULED An ANTIDOTE against POYSON WITH Two Letters of the Author of this Book Upon the Subject of his Lordship's Tryal Together with An ARGUMENT in the Great CASE Concerning Elections of Members to Parliament Between Sr Samuel Barnardiston Bar. Plaintiff AND Sr Will. Soames Sheriff of Suffolk Defend ' In the Court of Kings-Bench in an Action upon the Case And afterwards by Error sued in the Exchequer-Chamber By Sir ROBERT ATKYNS Knight of the Honourable Order of the Bath And late one of the Judges of the Court of Common-Pleas LONDON Printed for Timothy Goodwin at the Maiden-head against St. Dunstan's Church in Fleet-street 1689. TO THE READER HAving about five Years since had Applications made to me by divers Friends and Relations of that Most Excellent Person the Late LORD RVSSEL when his Troubles befel him and while he was upon his Tryal to give him the best Assistance I could in my Profession and to Instruct him how to manage his Defence And the like Assistance being afterwards desired from me by many more Persons of the best Quality who soon after fell into the same Danger I living at some distance from London did venture by Letters to send the best Rules and Directions I could towards the making of their Just Defence being heartily concern'd with them The Copies of which Letters of mine being very lately come to my Hands with an Intention to have them likewise Publish'd together with that Discourse or Argument that concern'd that Honourable Lord I thought it might be some help to such as may possibly hereafter fall into the like Danger and Trouble being by the strict Rules of Law denied the benefit of Councel in Capital Crimes as to Matters of Fact and Proofs at an easie Rate to be instructed by the Advice contained in these Letters how to manage their Defence This prevail'd with me to Publish the very Letters themselves being meerly upon the same Subject with the larger Discourse upon the Title and Head of High-Treason First LETTER CONCERNING My Lord Russel's TRYAL SIR I Am not without the Apprehensions of Danger that may arise by advising in or so much as discoursing of Publick Affairs yet no fear of Danger shall hinder me from performing that Duty we owe to one another to Counsel those that need our Advice how to make their just Defence when they are called in question for their Lives especially if they are Persons that have by their general Carriage and Conversation appeared to be Men of Worth and Lovers of their King and Country and of the Religion Established among us I will follow the Method you use and answer what you ask in the Order I find in your own Letters I cannot see any disadvantage or hazard by pleading the general Plea of Not Guilty If it fall out upon the Proofs that the Crime is only Misprision of Treason and not the very Crime of Treason the Iury must then find the Prisoner not guilty of Treason and cannot upon an Indictment of Treason find the party guilty of Misprision because he is not Indicted for the Offence of Misprision and Treason and Misprision of Treason are Offences that the Law hath distinguished the one from the other and the one is not included in the other and therefore if the Proofs reach no farther then to prove a Misprision and amount not to Treason the Prisoner may urge it for himself and say that the Proofs do not reach to the Crime charged in the Indictment and if the Truth be so the Court ought so to direct the Iury not to find it ☞ Now being present in company with others where those others do consult and conspire to do some Treasonable Act does not make a man guilty of Treason unless by some Words and Actions he signifie his Consent to it and Approbation of it but his being privy to it and not discovering it makes him guilty of Misprision of Treason which consists in the concealing it but it makes him not guilty of Treason and if the same Person be present a second time or oftner this neither does not make him guilty of Treason only it raises a strong suspicion that he likes it and consents to it and approves of it or else he would have forborn after his having been once amongst them But the strongest suspicion does not sufficiently prove a Guilt in Treason nor can it go for any Evidence And that upon two Accounts ☞ First The Proofs in case of Treason must be plain clear and positive and not by Inference or Argument or the strongest Suspicion imaginable Thus says Sir Edward Coke in many places in his third Institutes in the Chapter of High Treason ☞ Secondly In an Indictment of High Treason there must not only be a general Charge of Treason nor is it enough to set forth of what sort or species the Treason is as killing the King or levying War against him or Coyning Money or the like but the Law requires that in the Indictment there must be also set forth some Overt or open Act as the Statute of the 25th of Edw. the 3 d. calls it or some Instance given by the Party or Offender whereby it may appear he did consent to it and consult it and approve of it and if the bare being present should be taken and construed to be a sufficient Overt or open Act or Instance then there is no difference between Treason and Misprision of Treason for the being present without consenting makes no more then Misprision therefore there must be something more then being barely present to make a man guilty of Treason especially since the Law requires an Overt or open Act to be proved against the Prisoner accused See Sir Coke's third Institutes fol. 12. upon those words of the Statute per overt fact and that there ought to be direct and manifest Proofs and not bare Suspicions or Presumptions be they never so strong and violent see the same fol. in

be adjudged Misprision of Treason As if there were great need of that Caution least the Judges might judge concealing of Treason for High-Treason Now to shew the tenderness that the Judges heretofore shewed in the expounding of this Statute of Treasons of 25 E. 3. and how cautious they were in extending it beyond the strict sence and letter of the Statute Read the Case in Mich. 19. Hen. 6. fol. 47. Case 102. A Man was Indicted in the King's-Bench of Petty-Treason which is declared too by the same Statute of 25 E. 3. c. 2. for killing his Mistress whom he serv'd And because the words of this Statute of 25 E. 3. declares it Petty-Treason where the Servant kills the Master they were in doubt whether it ought to be extended to the Mistress or not And there the Judges of the King's-Bench before whom the Case was sent to the Judges of the Court of Common-Pleas then sitting and to the Serjeants there to know their Opinion of the Case And by Advice of all the Judges of both Courts it was adjudged Petty-Treason for the Servant to kill the Mistress not only within the meaning but within the very words of that Statute for Master and Mistress are in effect but one and the same word they differing only in Gender Sir Edward Coke says 3 Instit. fol. 20 22. The Judges shall not judge a simili or by equity by argument or by inference of any Treason but new or like Cases were to have been rferred to the determination of the next Parliament Vbi terminatae sunt dubitationes Iudiciorum says Bracton Let us in the next place examine the Authorities in Law and Book-Cases cited by this Author of the Antidote and see how far they make good his Opinion that meeting and consulting to make an Insurrection against the King or raise a Rebellion which is the same with Levying War within the words of 25 E. 3. tho' the Rebellion be not actually raised is High-Treason within this Law of 25 E. 3. for so he proposes the Question fol. 5. of his Book and if he does not confine his Argument to that Statute he says nothing to the Lord Russel's Case To prove that Meeting and Consulting to make an Insurrection against the King or raise a Rebellion within the Kingdom tho' the Rebellion is not actually raised is High Treason within the Statute of 25 Edw. 3. cap. 2. which put all together is the Position the Antidoter maintains He cites the Case of Constable mentioned in Calvins Case Sir Edward Cokes 7th Rep. fol. 10. b. and thence infers that whatsoever tended to the Deposing of Queen Mary was adjudged Treason for compassing her Death And this no man denies and it agrees with the Judgment of Sir Edward Coke in his Chapter of Treason fol. 6. upon the word Mort where he says He that declareth by Overt Act to Depose the King does an Overt Act of Compassing and Imagining the Death of the King and so says Sir Mathew Hales Pleas of the Crown fol. 11. towards the latter end But what is this to the point in hand which meerly concerns a Meeting and Consulting to make an Insurrection or Raising a Rebellion which is the same thing with Conspiring to Levy War Conspiring to Depose the King and Conspiring to Leavy War are different things As conspiring to Leavy War is clearly held to be a distinct Treason from Conspiring the death of the King and therefore the former of these as hath been before observed cannot by Law be an Overt Act of the latter as appears by the said Treatise of the Pleas of the Crown fol. 13. towards the latter end Nor was Conspiring to Leavy War without an actual Levying of it any Treason within the Statute of 25 Edw. 3. upon which Statute onely the Indictment of the Lord Russel is grounded as is acknowledged by the Atturney General and therefore to supply that defect the Statute of 13 Car. 2. does expresly make it to be Treason but the Lord Russel was not Indicted upon that Statute of 13 Car. 2. and for this reason he ought to have been Acquitted upon this Indictment grounded onely upon the Statute of 25 E. 3. And if practising with a Foreign Prince to make an Invasion when no Invasion followed as the Case of Doctor Story was Dier 298. be all one with Conspiring to Levy War when indeed no War is raised It is out of all dispute that such Practising and such Conspiring cannot be Treason within the Statute of 25 E. 3. tho' it be Treason within the Statute of 13 Car. 2. In the Case of the Lord Cobham 1 Iacobi there was more in the Case then Conspiring to make an Insurrection which is all that the Author of the Antidote takes notice of there was also an actual Rebellion raised as appears by the said little Treatise styled The Pleas of the Crown fol. 13. for the People were there assembled to take the King into their power as that Book puts the Case of the Lord Cobham And so it is in the Case of the Lord Grey for there they not only Conspired to make an Insurrection but further to seize the King and get him into their power which is a direct Conspiring against his Person which naturally tends to the destruction of his Person and is the same with Conspiring his Death as hath been usually expounded but 't is otherwise meerly to Conspire to make an Insurrection which can be no more than conspiring to Levy War. The Case of Sir Henry Vane and Plunket had many other Ingredients to mount them up to Treason which difference them from my Lord Russels Case As to the point of Misprision of Treason with which the Author of the Antidote concludes I have fully declared my opinion already in the former part of this Discourse and I think plainly evinced that though the Noble Lord might be present while others might between themselves privately debate matters and conclude upon them yet it did not clearly appear by any proofs that this Noble Lord ever gave the least consent to what was so concluded without which consent it could not amount to Treason but at the most be a Misprision onely Nor must any Mans Life be taken from him upon presumptions or probable Arguments but by plain direct and manifest down-right Proofs But a more strong and indeed a violent presumption lay quite the other way that this Noble Prudent and Pious Lord could never be guilty of such a Crime as to conspire the Death of King Charles the Second it was extreamly against his Interest so to do for the Life of that King so long as it continued by the blessing of God was the great security both he and all good Protestants had against the greater danger that might happen by the change arising by the Death of that King of loosing our Religion and all our Civil and Religious Rights as the experience we have lately had hath sadly taught us And if any thing were consulted between this Excellent Lord and those with whom he met as is more than probable it was how to secure themselves against those dangers they saw so near approaching if the Life of King Charles the Second should fail there was so great a cause to fear them considering who was like to succeed in the Throne FINIS