present at my Lord's Tryal must needs be surpriz'd to find the Truth of the Case so untruly and unfaithfully set down in my Lord's Speech But whoever will take the pains to read the Tryals publish'd by Authority which no man will suspect of Partiality towards the Person Tryed will receive abundant Satisfaction in the Truth of what was said by the Lord Russel and discover the shameless Impudence of this Malicious Author The Indictment as we find it printed at large in the Tryal fol. 29. charges the Prisoner that he intending to disturb the Peace of the Kingdom and to move War and Rebellion against the King and to subvert the Government and to depose or put down and deprive the King from His Title and Kingly Name of the Imperial Crown of His Kingdom of England and so bring and put the King to Death and Destruction 2. Nov. 34. Car. 2. and at other times Maliciously and Traiterously with divers others did Conspire Compass Imagine and Intend 1. To deprive the King of His Title and Government 2. And to kill the King and to subvert the Government 3. And to move Insurrection and Rebellion against the King. And to fulfil and perfect these Treasons and Traiterous Compassings and Imaginations The said William Russel did meet together with divers other Traytors and Consult Agree and Conclude 1. To move and stir up Insurrection and Rebellion And 2. To Seize and Destroy the King's Guards The Operative and Emphatical words of this Indictment are the Intending Conspiring and Concluding The things Intended and Conspired were 1. To move and stir up War and Rebellion against the King. 2. To Depose the King. 3. To Kill the King. And in order to the Accomplishing of these horrid Crimes The things Concluded on were 1. To move and stir up Insurrection and Rebellion 2. To seize and destroy the Guards This is the very sum and true Method of the Indictment if it be truly printed in the Tryals Note Here is no open Act or Deed charg'd to be done by the Lord Russel unless his meeting together with others be meant to be an open Act or Deed but then again that Act of Meeting terminates meerly in Consulting Agreeing and Concluding They met only to Consult Agree and Conclude but they acted nothing in pursuance of that Consulting Agreeing and Concluding for any thing that appears in the Indictment so that the Meeting properly hath not the nature of an Acting or Action or of a thing done but the Effect of the Indictment is that the Lord Russel and others did Consult Agree and Conclude to do something but the Indictment stops there and goes no further for it sets not forth any thing done at all so that here is no Overt Act or Deed and therefore the Indictment is void for there is no Act charg'd but Meeting and that was meerly in order to Consult and Agree and they did agree upon a thing to be done but it is not said they did it or did any thing towards it I repeat this the oftner that it may be the better understood and minded being very material read the Indictment The Indictment is grounded upon the Statute of 25 E. 3. cap. 2. the old Statute of Treasons So the Attorney General declares himself fol. 49. of the Tryal Now let us see how far this Charge in the Indictment will make my Lord guilty of any Treason within that Statute The Body of that Statute of 25 E. 3. of Treasons is printed together with 〈…〉 see the Tryal fol. 50. so that it need not be repeated here though◠there are some other Clauses in that Statute not printed in the Tryal The occasion of making that Statute appears to be the variety of Opinions that then were what should be accounted Treason and what not which was very mischievous to the Subjects and gave too great a Liberty to the Judges of the Ordinary Courts To Cure this mighty Mischief and to prevent that Arbitrary Power of Judges this excellent Statute makes a Declaration what shall be adjudged Treason by the Ordinary Courts of Justice not but that there might be like Cases or other Facts amounting to Treason besides those there Enumerated but those other Facts or Treasons must not be adjudg'd by those Ordinary standing Courts such as the Goal-Delivery of Newgate and the Court of the King's-Bench at Westminster itself are but in such Cases those Courts must forbear proceeding and the Case must be reserv'd for the Determination of the King and Parliament see that Statute in the printed Statutes at large So that the Court of Goal-Delivery at Newgate must Judge only and proceed upon no other Treasons but what are there Enumerated and Specified Now the Treasons in that Statute Enumerated and Specified for the word Specified is the very word used by that Statute are these 1. Compassing or imagining the Death of the King. Queen Prince 2. Violating or Carnally knowing the Queen King's Eldest Daughter Unmarried Prince's Wife 3. Levying War against the King not a Compassing or Imagining to levy War but an Actual levying War. It must be a War begun and several other sorts of Treasons are there Specified not to our Purpose to be recited The Statute further requires that the Person Indicted be Proveably attainted of some one of these Teasons by Overt Deed that is some open manifest Act or Deed done which must of necessity also be expresly set down in the Indictment and fully and clearly proved at the Tryal by two Witnesses See Sir Coke's third Institutes in his Chapter of High-Treason fol. 12. in his Exposition of the words of that Statute Per Overt fait and there fol. 5. upon the words Fait Compasser he tells you the Nature of that Open Deed that the Statute intends It must be a Deed and not meer Words it must be a Deed tending to the Execution of the Treason imagined That Deed must be an open Deed that is it must be fully proved and made open and manifest at the Tryal by clear proof So that if the Indictment fail of setting forth one of those Treasons that are there enumerated it is not a good Indictment upon that Statute If it do set forth one of those Treasons yet if it do not set forth some open Deed done by the Party indicted that is such a Deed as does properly and naturally tend to the execution of that sort of Treason set forth in that Indictment In such case also the Indictment is not good If both these viz. the Treason intended and a proper suitable open deed be well set forth in the Indictment which make a good Indictment yet if that very sort of Treason intended and that open Deed or Fact so set forth in the Indictment be not also fully clearly and manifestly proved upon the Tryal against the Prisoner he ought to be acquitted It will not suffice either to prove it by one Witness or to prove any other sort of Treason not charg'd in the
the upper part of it upon the word Proveablement and the Statute of the 5 of Edw. 6. Chap. 11. requires that there should be two Witnesses to prove the Crime so that if there be but one Witness let him be never so credible a Person and never so positive yet if there be no other Proof the Party ought to be found Not Guilty and those two Witnesses must prove the Person guilty of the same sort or species of Treason As for Example if the Indictment be for that Species of Treason of Conspiring the King's Death Both Witnesses must prove some Fact or Words tending to that very sort of Treason but if there be two Witnesses and one proves the Prisoner Conspired the Death of the King and the other Witness proves the Conspiring to do some other sort of Treason this comes not home to prove the Prisoner guilty upon that Indictment for the Law will not take away a man's Life in Treason upon the Testimony and Credit of one Witness it is so tender of a man's Life the Crime and the Forfeitures are so great and heavy ☞ And as there must be two Witnesses so by the Statute made in the 13th year of His now Majesty Chap. the 1 st Intituled for the Safety of His Majesties Person those two Witnesses must not only be Lawful but also Credible Persons See that Statute in the 5 th Paragraph and the Prisoner must be allowed to object against the Credit of all or any of the Witnesses and if there be but one Witness of clear and good credit and the rest not credible then the Testimony of those that are not credible must go for nothing by the Words and Meaning of this Statute See the Statute Now were I a Iury-Man I should think no such Witness a credible Witness as should appear either by his own Testimony or upon proof made by others against him to have been Particeps Criminis for that proves him to be a bad and consequently not so credible a man especially if it can appear the Witness has trapann'd the Prisoner into the committing of the Crime Then the Witness will appear to be guilty of a far higher Crime then the Prisoner and therefore ought not to be believed as a credible Witness against the Prisoner for he is a credible Witness that has the credit of being a good and honest Man which a Trapanner cannot have and this Trapanning proves withal that the Trapanner did bear a Spight and Malice against the Person Trapanned and intended to do him a mischief and designed to take away his Life Shall such a one be a credible Witness and be believed against him God forbid ☞ Then again It cannot but be believed that such Persons as have been guilty of the same Crime will out of a Natural Self-love be very forward and willing to swear heartily and to the purpose in order to the Convicting of others that they may by this Service merit their Pardon and save their own Lives And for this reason are not so Credible Witnesses such as the Statute of the 13 of Car. 2. does require Read over the whole Chapters of Sir Edward Coke of High Treason and of Petty Treason for in this latter of Petty Treason there is much matter that concerns High Treason I wish with all my Soul and I humbly and heartily pray to Almighty God that these Gentlemen that have given so great proof of their Love to the True Religion and of the just Rights and Liberties of their Country and of their Zeal against Popery may upon their Tryal appear Innocent I am so satisfied of their great worth that I cannot easily believe them guilty of so horrid a Crime I pray God to stand by them in the time of their distress I wish I might have the liberty fairly to give them the best assistance I could in that wherein I might be any way capable of doing it I beseech Almighty God to heal our Divisions and Establish us upon the sure Foundations of Peace and Righteousness I thank you for the favour you have done me by imparting some Publick Affaires which might perhaps have been unknown to me or not known till after a long time for I keep no correspondence When there is an occasion pray oblige me by a farther accompt especially what concerns these Gentlemen And tho' I have written nothing here but what is Innocent and Iustifiable yet that I may be the surer against any disadvantage or misconstruction pray take the pains to transcribe what Notes you think fit out of this large Paper but send me this Paper back again inclosed in an other by the same hand that brings it ☞ There is nor ought to be no such thing as Constructive Treason this defeats the very Scope and Design of the Statute of the 25th of Edw. 3. which is to make a plain Declaration what shall be adjudged Treason by the Ordinary Courts of Iustice the conspiring any thing against the King's Person is most justly taken to be to conspire against His Life But conspiring to Levy War or to Seize the Guards is not conspiring against the King's Life For these are Treasons of a different Species Your Faithful Friend and Servant R. A. The Second Letter SIR I Thank you for the unexpected Accompt you gave me by your first Letter but this exact Narrative you have now sent me of the Tryal of the Honourable Excellent Person my Lord Russel has exceedingly obliged me It was a thing I much desired but I knew not from what hand to gain it for I was a little impatient to hear what could be prov'd of so foul a nature as High Treason against a Person of whom I had ever entertained a very high esteem and tho' I had a very small and short acquaintance with him yet no Man that has known any thing of the Publick Affairs or of our late Transactions could be a meer Stranger to his great Worth. He had as great a Name for a true and honest English Gentleman and for good Temper and Prudence and Moderation as ever I knew any Man have and was generally belov'd by all that love our Religion and Country I presume your Relation of the Proofs at his Tryal is certainly true in every part and in the very words and it is a thing that might be had by many hands the proceedings being so publick and I suppose deliberate Presuming it to be true this I will affirm that upon this Evidence both that against him and for him might I have been permitted to have made his defence for him at his Tryal after the Evidence given I could easily have satisfied any equal and understanding Iudicious Man that my Lord ought to have been acquitted and had I been one of the Iury that try'd him I make no doubt I could clearly have convinced all my Fellows if they were Honest and Indifferent that they ought not to have found him Guilty The Species or sort of High Treason
that the Witnesses inclin'd to prove against him was a Conspiracy with others to Leavy War against the King. The two first Witnesses viz. Rumsey and Sheppard tho what they say may raise a strong suspicion upon my Lord and make it probable that he was guilty yet neither of them do come home and close to the Person of my Lord Russel as they do I confess against the Earl of Shaftsbury Sir Thomas Armstrong and Ferguson The first does not affirm that the Lord Russel did joyn in the discourse or agree to any thing in the Consult but only says he was present which extends no farther then to make a Misprision of Treason and this too not directly and positively as Legal Proof ought to be to convict a Man of Treason the later Sheppard when he applies what he swore to the Person of the Lord Russel only sayes He believes the Lord Russel was there at that time when the discourse he speaks of was used which is a very imperfect uncertain proof and not positive enough so that neither of these were full Witnesses As to the Evidence given by the Lord Howard against my Lord Russel it is strange to me as the Evidence is stated that any Credit should be given to it that he should be believed against those Execrations that it seems he had so solemnly and so lately used to the contrary of his Evidence especially when by giving this Evidence he must merit his own Pardon and save his own Life which extreamly takes off from the credit and weight of his Evidence What Mr. West says in rference to my Lord Russel was but bare opinion and hear-say and is no proof at all in Law so that instead of two plain direct manifest and positive and two credible Witnesses as the Law requires in Treason here is not in my opinion so much as one positive Credible Witness The Lord Howard as your Case and Narrative states it is not credible though direct and positive None of the other three are positive though more credible In the Statute of the 25th of Edward the Third of Treasons the word Proveablement as Sir Edward Coke observes upon it in his Third Institutes fol. 12. imports direct and manifest proofs not presumptions and conjectures and as may be added not probabilities and so the words per overt fact do as he observes strengthen that sence of the word Proveablement and the Act of Treasons made since this Kings time requires there should be two credible Witnesses Now tho' the Lord Howard was not by the Evidence offer'd against him by the Lord Russel utterly disabled from being a Witness yet I will be bold to say it made him no credible Witness in this Case That the Lord Russel made no use of these things in his Defence though a man of Parts is no wonder to me the ablest Man under that Terrour and upon so speedy a proceeding and where it is impossible to be so composed and free from distraction may easily pass by many just advantages which a stander by with less abilities might quickly have apprehended I am far from rflecting upon the Court that Try'd him this matter that I observed rested principally upon the Iury. And he is found Guilty and Condemn'd and it may be before this comes to your hand put to Death too if it have so hapn'd as possible it may that the Earl of Bedford and his other great Relations have prevail'd with the King for a respit of the Execution I wish and heartily beg of Almighty God that these Considerations may yet be made use of to the King with whom it then rests as Tabula post Naufragium to save the Life of this Noble Lord. Much more then this may be said were there such an opportunity before the King and I so intend it and no otherwise and if I might be any ways serviceable in it I would come up to London bare-foot rather then neglect so good an Office. And I ever thought it a severity in our Law that a Prisoner for his Life is not allowed the assistance of a grave and prudent Lawyer or some other friend to make his defence for him even as to matter of fact as well as to Law. I know 't is said the Court is of Councel for the Prisoner but for my part I should never desire to depend upon that onely I know what this is by experience If the Case be in any part of it mistaken I have lost all my observations and beg your pardon for all this trouble it is out of the great Honour and Zeal I have for that good Lord but the Narrative you give is very ably and well composed and in very good Method and I think could not have been better done which inclines me to think it very true also I could be contented the Earl of Bedford to whom I am known might have the view of this Letter if it come not too late and may be thought of any use I heartily thank you for your favour which obliges me to be Your Faithful Friend and Servant R. A. Iuly 21. 1683. A DEFENCE Of the Late Lord Russel's Innocency By way of Answer or Confutation of a Libellous Pamphlet INTITULED An ANTIDOTE against POYSON 1. THE Pamphlet stiles it self An Antidote against Poyson but it is so far from deserving that Title that it may be truly said That the Antidote it self is the rankest Poyson We read in History that the Noble Emperour called Henry of Luxenburgh was poysoned in the Sacrament and Pope Victor was poysoned in receiving of the Chalice Who could have suspected such horrid Villany in the Administration of such sacred and solemn Rites who could without Horrour and Amazement contrive the mingling of a deadly Poyson with the Bread and Water of Life to make those consecrated Elements which ought to be the Savour of Life unto Life to be the dreadful Messengers of sudden Death Surely had those outward Signs been changed into the very Body and Bloud of the Lord of Life as they that acted in those Execrable Villanies profess'd to believe there must needs have been a Miracle wrought in altering likewise the Substance and malignant Nature of those Poysons that they should not have wrought those direful Effects which yet they did There appears the like wicked Policy in the Author of this Pamphlet who under pretence of prescribing an Antidote against Poyson under the Vizar and Disguise of preventing Mischief does most deceitfully infuse the worst of Poysons and labours to intoxicate a whole Nation This Author would have the World believe that the Noble Lord in the composing of his Speech was wholly govern'd by his Confessor and that the Compiler of it was infected with those Doctrines that the Northern Climate has of late furnished us with The very Language and Spirit of Coleman Sure the Soul of Coleman is by Transmigration enter'd into this Author it is easie to guess at his Religion He supposes all that were
Indictment nor any other overt Deed other then what is so set forth in that Indictment tho' it be by never so full a proof but upon that Indictment the Prisoner ought to be acquitted if that special Treason and that special overt or open Deed set forth and expressed in that very Indictment be not fully proved Now let us examine the Indictment in this Case against the Lord Russel and the proofs against him as they are published by Authority and observe how they agree with the Statute and how the Indictment and Proofs agree the one with the other It may be admitted that here is in the Indictment against the Lord Russel a Treason sufficiently charged and set forth viz. one of the Treasons specified in that Statute of 25 Edw. 3. namely That the Lord Russel did compass and imagine the death of the King. This is not denied but it is duly charged in the Indictment For those other Charges in the Indictment viz. his intending to depose the King and his intending to move or levy War and Rebellion against the King these are inserted into the Indictment as Aggravations of that horrid Crime of intending to kill the King or as open acts of the other but of themselves alone they are no distinct substantive Charges nor are they any of the Treasons specified in this Act upon which Act this Indictment is solely grounded For tho' by the Act of 13 of this King that now is Chap. 1. entitled An Act for the Safety and Preservation of the King's Person it is made High-Treason during the now King's life only to compass or imagine to Depose the King or to compass or imagine to levy War against the King If such compassing or imagination be expressed by speaking or writing altho' without any open Deed yet the Lord Russel was not Indicted upon that Statute as the Atturney General himself acknowledged openly at the Tryal but only upon the old Statute of 25 Edw. 3. So that those late made Treasons are not to our purpose So that the only Treason charg'd in the Indictment as a substantial Charge is that of imagining to kill the King. And so the Lord Chief Justice agrees in his Direction to the Jury See the Tryal fol. 61. But where is that other Requisite that other most material part of the Indictment of the open Deed or Act without which the rest serves for nothing For it is not enough by this Statute to make a man guilty of conspiring or imagining the death of the King unless the Party indicted have expressed that Imagination by some open Deed and that must be plainly set down in the Indictment too or else the Indictment as was said before is no good Indictment And it must appear to the Court upon the Indictment not only to be an open Deed but such a Deed as has a natural aptitude and tendency to the Execution of that very Treason so imagined And there is no such set forth in this Indictment and therefore the Indictment it self was insufficient and void And that which seems to have a colour of an overt Fact or open Deed set forth in this Indictment was not fully and sufficiently proved neither and then tho' the Indictment had been sufficient yet for want of due proof the Party indicted ought to have been acquitted To these two Points or Matters shall the ensuing Discourse confine it self And if this undertaking be made good the Antidote will appear to be a rank Poison the Lord Russel's Speech justified and his Innocency and Loyalty cleared and his Honour vindicated The overt Fait or open Deed set forth in the Indictment if there be any are the things said to be consulted of agreed and concluded on viz. To move and stir up Insurrection and Rebellion 2. To seize and destroy the Guards Peruse the Indictment carefully Now neither of these are open Deeds in the nature of them The first which is to stir up Insurrection and Rebellion this is a distinct Species of Treason it self it is the same with a levying of War specified in this Statute of 25 Edw. 3. which is the only Statute we have to do with in this Case of my Lord Russel and if it had been set forth in the Indictment as a Deed done or thing acted that is if it had been laid in the Indictment that the War was actually levied or the Insurrection or Rebellion actually raised or stirred up as it is not for it is only mention'd as a thing agreed and concluded on and not done yet it had not been a sufficient proper overt Fait or open Act to make it a good Indictment because as is said before levying of War is a distinct species from that of compassing to kill the King and therefore cannot be made an overt Fait or open Deed to manifest an Imagination of killing the King. For that one species of Treason cannot be a proper open Act to another species of Treason as will be proved hereafter Sir Edward Coke in his third Institutes fol. 14. in the third Clause or Paragraph of that Folio tells us That the Connexion of the words are to be observ'd viz. thereof be Attainted by overt or open Deed. This says Sir Edward Coke relateth to the several and distinct Treasons before expressed whereof that of imagining to kill the King and that of levying War against the King are two distinct Species of High-Treason And therefore says Sir Edward Coke the one of them cannot be an overt Act for another that is levying of War cannot be an overt Act for that sort of Treason in imagining to kill the King much less when the Indictment does not charge it as a War actually levied but only an agreement or conclusion for levying a War. Such agreement can be no open Deed to manifest an intent or imagination of killing the King. This is the main question between us The other only colour or pretence to an Overt Fait or open Deed must be that of seizing or destroying the King's Guards for no other but these two are set forth in the Indictment or look any thing like overt or open Acts. And this latter is nothing like to an Overt Fait or open Deed in the nature of it for it is not said to be done but only agreed on and concluded on to be done If it had been but alledged in the Indictment that in pursuance of this agreement or conclusion of the Conspirators a View was accordingly taken of those Guards and reported to the rest whereof the Lord Russel was one that it was feasible whereof there is some colour of proof against some of them this had been more to the purpose but being laid so imperfectly as it is the Indictment itself must needs be insufficient for the reasons before given But alas the Noble Lord is gone and he is gone from whence he would not be re-call'd a place of infinite Bliss and Glory out of a spiteful malicious World It is we it
is the King and Kingdom it is the whole Protestant part of the World that suffers the enestimable loss of him Not to speak of the unspeakable grief of his dear and disconsolate Widdow and other Noble Relations Factum infectum fieri nequit So that we may seem to labour in vain and it comes too late but something may be done for the benefit of his hopeful Posterity and some small satisfaction may be made to his Noble Family by a Writ of Errour for reversing of this Attainder and the avoiding of the Record for the Statute of 29 Eliz. cap. 2. extends only to such Attainders for High-Treason as then had been before the making of that Statute and does not hinder a Writ of Errour in this Case if the King will sign a Petition for it But to examine this last Overt Fait or open Deed a little further Viz. To seize and destroy the King's Guards The Guards what Guards What or whom does the Law understand or allow to be the King's Guards for the preservation of his Person Whom shall the Court that tried this Noble Lord whom shall the Judges of the Law that were then present and upon their Oaths whom shall they judge or legally understand by these Guards They never read of them in all their Law-Books There is not any Statute Law that makes the least mention of any Guards The Law of England takes no notice of any such Guards and therefore the Indictment is uncertain and void The King is guarded by the special Protection of Almighty God by whom he Reigns and whose Vice-Gerent he is He has an invisible Guard a Guard of glorious Angels Non Eget Mauri jaculis nec arcu Nec Venenatis gravida sagittis Crede Pharetra The King is Guarded by the Love of His Subjects The next under God and the Surest Guard. He is Guarded by the Law and Courts of Justice The Militia and the Trained-bands are his Legal Guard and the whole Kingdoms Guard. The very Judges that Tryed this Noble Lord were the King's Guards and the Kingdoms Guards and this Lord Russel's Guard against all Erroneous and Imperfect Indictments from all false Evidence and Proof from all strains of Wit and Oratory mis-applied and abus'd by Councel What other Guards are there We know of no Law for more King Henry the Seventh of this Kingdom as History tells us was the first that set up the Band of Pensioners Since this the Yeomen of the Guard since them certain Armed Bands commonly now adays after the French Mode called the King's Life-Guard rid about and appearing with naked Swords to the Terrour of the Nation but where is the Law where is the Authority for them It had been fit for the Court that Tryed this Noble Lord on this Indictment to have satisfied themselves from King's Councel what was meant by these Guards for the alledging and setting forth an Overt fait or open Deed in an Indictment of Treason must be of something that is intelligible by Law and whereof Judges may take Notice by Law and herein too the Indictment failes and is imperfect But admit the Seizing and Destroying of those who are now called the King's Life-Guard had been the Guard intended within this Overt fait or open Deed yet the Indictment should have set forth that de facto the King had chosen a certain number of man to attend upon and Guard His Person and set forth where they did attend as at White-Hall or the Mews or the Savoy c. and that these were the Guard intended by the Indictment to be seiz'd and destroy'd that by this setting forth the Court might have taken notice Judicially what and who were meant but to seize and destroy the King's Guards and not shew who and what is meant makes the Indictment very insufficient So much as to the Indictment itself In the next place let us look into the Proofs as they are at large set forth and owned in the printed Tryal and let us consider how far those Proofs do make out the Charge of the Indictment viz. the Compassing and Imagining the Death of the King and how far they make out that Overt fait or open Deed such as it is of seizing or destroying the King's Guards in order to the effecting of that Compassing and Imagining the Death of the King and it must appear by Proof to be in Truth so intended by the Conspirators and levell'd to that end for if it were done yet if it were done quite to another intent and purpose and not to that of Compassing the King's Death it does not come home to this Indictment There are but three Witnesses that can be thought to bring the matter home and to fix any thing upon the Lord Russel Col. Romsey Mr. Sheppard and the Lord Howard It is true two of the three that is Col. Romsey and the Lord Howard positively prove a Trayterous Design or a Discourse at least by some of the Company of making an Insurrection or Rebellion or to speak it in the Language and Phrase of this Statute of 25 E. 3. of levying a War against the King for all these signifie one and the same thing and they prove the Lord Russel was sometimes present at those Meetings but is that enough Admit he were present and heard the Debate of it which yet is not fully and directly prov'd yet if he did not joyn in the Debate and Express and some way signifie his Approbation of it and consent to it it makes him not at all Criminous It is true his after concealing of it might have made him guilty of Misprision of Treason but that is a Crime of another nature and is another distinct Genus of Crimes of which he was not Indicted Col. Romsey as to the Overt fait as they would make it says there was some Discourse about seeing what Posture the Guards were in and being asked by one of the Jury by whom the Discourse was he answers By all the Company that was there whereof as he said before the Lord Russel was one So that my Lorld Russel may I agree be understood to be one that discours'd about seeing what posture the Guards were in Nay the Colonel says all the Company did debate it and he says further the Lord Russel was there when some of the Company undertook to take the View of those Guards and being asked by the Attorney General to what purpose the View was to be the Colonel answers It was to surprise our Guards if the Rising had gone on The Chief Justice observing to the Witness that he ought not to deliver a doubtful Evidence and to speak it with Limitations that made it not so positive as by saying I apprehend so and so then the Colonel grows more positive and says further that a Rising was intended but afterwards he says there was no debate of the Rising At last the Witness being asked by Sir George Iefferies whether the Prisoner were present at the
Debate concerning the Message from the Lord Shaftsbury to the Company then met and the Answer return'd to it He flatly says the Prisoner was present at that Debate which Debate did indeed concern the Rising being ask'd by the same Person whether my Lord was averse to it or agreeing to it He answers like an Eccho Agreeing to it Nay then he says my Lord Russel did speak and that about the Rising of Taunton and that he did discourse of the Rising but what were his words Being question'd again by the Chief Justice whether my Lord did give any Consent to the Rising He answers still like an Eccho My Lord did And this last Answer is the weighty part of his Evidence if there be any weight at all Now mind the defect of the Witness 's Memory in some other most material Passages He thinks the Lord Grey did say something to the same purpose with the Answer deliver'd by Ferguson to the Lord Shaftesbury's Message He does not know says he how often he himself the Witness was at Mr. Sheppard's House where this Debate was He says he was there more then once or else I heard says he Mr. Ferguson make a Report of another Meeting to the Lord Shaftsbury And then he says that this was all at that time that he remembred and before this he had said no more against the Lord Russel but that he was present and after this upon much Interrogating of him he proceeds to tell a great deal more indeed all the rest that has been before observ'd to proceed from him And after all he says he thinks he was not there above a quarter of an Hour He says he was not certain whether he did hear something about a Declaration there or whether Mr. Ferguson did report it to my Lord Shaftesbury that they had debated it And the Witness speaking of a View to be taken of the Guards to surprize them the Lord Chief Justice seems to be surpriz'd at that word The Guards he never met it in all his Books What Guards why you know it is mention'd in the Indictment but he might yet very well ask what Guards And the Colonel answers The Guards at the Savoy and the Mewse The Colonel says He thinks the Duke of Monmouth and the Lord Grey and Sir Thomas Armstrong were the persons that undertook to view the Guards And he thinks Sir Thomas Armstrong began it and Mr. Ferguson And he says further Direction was given to take a view of the Guards if the Rising had gone on as it never did and then he mentions the very day that had been appointed for the Rising viz. the 19th of November and that the Message from the Lord Shaftsbury was he thinks a matter of a Fortnight before that day or something more for he thinks it was concluded Sunday fortnight after my Lord Grey met The mention of my Lord Russel's consent to this Rising comes in at the last and after many questions ask'd him and not till that very particular question was put to him and he answers in the very same words as the question was ask'd The Chief Justice ask'd him in these words Did my Lord give any consent to the Rising The Colonel's Answer was Yes my Lord he did But how did my Lord Russel signifie that Consent what words did he use that may clearly express it For this is the pinching Proof if it had been certain and clear'd by remembring the manner of his Consenting or how it did appear Why was not this put home to the Witness This is the Material part of his Evidence without which the rest had not come home to the Prisoner And why did not the Witness deliver this of himself and before his giving this home Evidence he had said That was all at that time that he remember'd And this was at the same time with that of the Message and of the Discourse about Viewing the Guards He afterwards doubts whether he was any more then once there with that Company or whether he heard Mr. Ferguson report things to the Lord Shaftsbury which shews a wild kind of Memory in a Witness and the Colonel is no Fool nor Baby so that there is but one time positively spoken of by this Witness How strangely uncertain is he in the Matter of the Declaration to which he was Examined A most noted thing and he cannot tell whether he heard any thing of it there or whether Mr. Ferguson told him of it It is to to be suspected too that what he has deliver'd positively at last so late in his Evidence and after so much Interrogating of him was but meer hearsay too and then it would not have been any Evidence He has not it seems a good distinguishing Head or Memory as a Witness ought to have in case of Life and a Life of so high a value as this of that Noble Lord. And many other Material Passages this Witness delivers under that Limitation as he thinkes The Rising was intended but never took effect and the View was no more then appointed and undertaken but the Seizing of the Guards as this Witness says was not to be unlesss the Rising had gone on which it never did He speaks nothing of any View made of the Guards or any Report upon it but he swears my Lord Russel consented to the Rising That is his stabbing Evidence but by what words or how he signified his consent not a word tho' mighty material But what is this Conspiracy for a Rising and a Conspiracy to seize the Guards in case the Rising had gone on What are these to the Crime charged in the Indictment against the Lord Russel for conspiring the death of the King Here is not a word of any such matter nor of seizing the Guards in order to it no not one word And that is the only material part of the Indictment as shall appear more plainly hereafter The second Witness Mr. Sheppard mentions the meeting at his House of the Duke of Monmouth and among the rest the Lord Russel and they discours'd of surprizing the Guards and that the Duke the Lord Grey and Sir Thomas Armstrong as he remembers went one Night to view the Guards and the next Day at his House they said it was very feasible if they had strength to do it And then he says there was two Meetings there and as he remembers my Lord Russel was both times there Being ask'd by the Attorney-General besides the seizing of the Guards if there were any discourse of a Rising He answers He did not remember any further Discourse for he was often gone out of the Room And this is the effect of that he says If any thing of this comes near my Lord Russel it is those words first giving an account of who they were that were met and that my Lord Russel was one of them he says the Substance of their Discourse was how to surprize the King's Guards This may be true if one or two of the
Company only discourses it for it does not necessarily affirm that every one did speak in that Discourse He does not mention one word spoken by my Lord Russel nor that he approv'd of or consented to any thing At the worst for any thing that he says it can be but Misprision He can say nothing as to the Intended Rising Now Colonel Romsey's Evidence is altogether of that Rising and the Seizing of the Guards was to have been if the Rising had gone on and this was at the same time that Mr. Sheppard speaks to and yet Mr. Sheppard being ask'd if there was any Discourse of a Rising he answers he did not remember any further Discourse Nor does Colonel Romsey certainly remember any thing of a Declaration read amongst them whether he heard it there or whether by Mr. Ferguson's Report of it to my Lord Shaftsbury which is one of the principal things that Mr. Sheppard speaks to besides that of seizing the Guards And as to the Declaration Mr. Sheppard says he cannot say my Lord Russel was there when that Declaration was read So they agree in nothing but in the Discourse of seizing the Guards and that my Lord Russel was then present So that as yet the sum of the Proof by Colonel Romsey is that my Lord Russel consented to the Rising which is too general and the sum of the Proof by Mr. Sheppard is that my Lord Russel was present in Company when the Company discours'd of Seizing the Guards but he knows nothing of the Rising The third Witness the Lord Howard discourses much about a Conspiracy to rise but he speaks most of what he says by Report from the Earl of Saftesbury and from the Duke so it goes for no Evidence against my Lord Russel and the Chief Justice did the Prisoner that Right as to declare as much to the Jury and the Lord Howard cleares the Duke from any such horrid Act as the Killing the King the Duke said he would not suffer it and if the Duke be Innocent in that it is probable that my Lord Russel and the rest of the Company that met had no discourse about Killing the King nor any Thought that way which yet is the great and only Substantial Charge of this Indictment which must still be minded and observed My Lord Howard does indeed prove two several Consults one at Mr. Hambden the youngers the other at my Lord Russel's about the middle of Ianuary last and after and that my Lord Russel was at both and these Consults were of an Insurrection and where to begin it and of providing Arms and Money and of sending into Scotland to settle an Understanding with the Lord of Argile and being asked what my Lord did say he answers thus viz. Every one says he knows my Lord Russel is a Person of great Iudgment and not very lavish in Discourse But did he consent was a Question ask'd by Sir George Iefferies the Lord Howard answered We did not put it to the Vote but it went without Contradiction and I took it that all there gave their consent that my Lord Russel joyn'd in the chusing a Councel of Six that he approv'd of his being chosen for one that he said one word in these two Consults there is not any Proof by the Lord Howard only he says He took it that all there Consented Is that enough Oh strange Evidence I will not here take Notice or Examine how far the Lord Howard is a Credible Witness in this Case but rfer the Reader to the Testimony of my Lord of Anglesey Mr. Howard and Dr. Burnet or how far any of the three Witnesses are to be believ'd having all three upon their own Testimony been Participes Criminis and it is suppos'd have their Pardons or are promis'd Pardons Not that this is offer'd to disable them quite from being Witnesses but surely all things consider'd it much lessens their Credit in this Case nor does it make them the more Credible because no other Witnesses can be had But then consider that most Excellent Character given of the Prisoner by Persons of Honour and of the highest Esteem for Ability and Integrity and such as contradicts and is inconsistent with the Charge of the Indictment and whatever is of weight in the Evidence against him and especially if you give any credit to the Lord Howard himself who upon his Oath does declare as in the presence of God and Man That he did not believe that either the Duke of Monmouth or my Lord Russel had any design to Murder the King which is the only effectual Charge of this Indictment These things considered it seems very strange to me how the Lord Russel could be found guilty of a compassing and imagining the Death of the King for so is the Verdict This answers most of the Observations made by the Author of the Antidote upon my Lord Russel's Speech restraining the Expression as he says of his Innocency to the design upon the King's Life and to killing of the King and of his omitting to mention the general Rising which as this Author boldly affirms was fully proved upon him and that my Lord's Professions of his Innocency as to any Plot upon the King's Life or to kill the King or his knowing any thing thereof these says the Author are no plain declarations of his Innocency as to the Crime charged and proved upon him of conspiring and consulting to raise an Insurrection Nor was there any need of my Lord 's answering that for it was little material How uncertain how dis-agreeing how unapplicable to the Charge of the Indictment those Proofs are has been fully observ'd already and the Author grosly mistakes in his Judgment when he takes the conspiring and consulting to raise an Insurrection to be the Crime charged in the Indictment for as was observ'd before the Charge of the Indictment is the compassing and imagining to kill the King and that of a Conspiracy to raise an Insurrection or to levy War is none of the Crimes or Treasons enumerated or specified in the Act of 25 E. 3. and therefore could not be the Crime charged in the Indictment which is grounded only upon that Act of 25 E. 3. as the Attorney-General acknowledges for it is an actual levying of War and not a conspiring only to levy War or raise an Insurrection that is the Treason specified in that Act of 25 E. 3. and therefore the mention of other things are but by way of aggravation for the more ample setting forth of the Crime charged which is of compassing the King's death and that the conspiring to make an Insurrection cannot be an open Deed to prove a compassing the King's Death has been already spoken to and shall be yet more fully Nor is the Author more mistaken in his Observations upon the matter of Fact and his unwarranted Conclusions and Inferences raised from thence then he is in his Determinations of matters in Law arising from that Fact. The Death
of the King says the Author in that Law of 25 E. 3. is not restrained to killing of his natural Person but extends as well to his civil Death as natural As to conspire to Depose the King to Imprison him or laying any force or restraint upon him these says the Author are all High-Treason for compassing his Death natural or civil If so why then we are at never the more certainty for this excellent Law of 25 E. 3. I agree that Conspiring to Depose the King to Imprison him are Treasons but it is not so plain that they are Treasons within this Law of 25 E. 3. upon which this Indictment is grounded It is true they are made Treason by the late Act of 13 of the now King and have by several temporary Acts such as this of 13 Car. 2. is been made Treason but this proves that they were not judged by those Parliaments that pass'd those temporary Acts to be Treasons within the Statute of 25 E. 3. For why then were these temporary Acts made What need was there of them Sir Edward Coke 3 Inst. fol. 9. in the last Paragraph but one of that fol. says A Conspiracy to Levy War is no Treason he means within the Act of 25 E. 3. but it has been made Treason since Sir Coke's time viz. by 13 Car. 2. And let it be remembred that the great end of making this excellent Law of 25 E. 3. as appears by the Preamble was to avoid uncertainty and variety of Opinions and to prevent the Arbitrariness of Judges in the ordinary Courts and the Act takes care that doubtful Cases such as are not plainly within the enumeration of the Act are to be reserv'd for the Judgment of the King and Parliament And herein consists the excellency of this Law Quoad fieri possit quam plurima Legibus ipsis defineantur Quam paucissima ' Iudicis arbitrio Relinquantur And as the Learned Lord Bacon in his Advancement of Learning fol. 447. says That is the best Law which gives least liberty to the Judge He the best Judge that takes least liberty to himself Misera est servitus ubi jus est Vagum And this Law is a declaration of Law and therefore ought not to be extended to like Cases in the construction of it And it is made in the punishment of the greatest Offences and is as Penal as a Law can be and therefore ought not to be expounded by Equity that is to be extended to like Cases It is true the Opinion of the Judges hath been That Conspiring to Depose or Imprison the King is a compassing or imagining the Death of the King. And if a Man declares by Overt-act that he will Depose or Imprison the King this says Sir Edward Coke 3 Iust. fol. 6. upon the word Mort is a sufficient Overt-act for the intent of killing the King Mind him well he does not say that Conspiring to Depose or to Imprison the King is an Overt-act to prove the Conspiring the King's Death which is the Opinion the Antidoter maintains and for which he cites all his Cases afterwards cited But Sir E. Coke says That Conspiring to Depose or Imprison the King being declar'd by Overt-act this Overt-act is also a sufficient Overt-act for the intent of killing the King. It is one thing to Conspire to Depose the King. And another thing to declare that Conspiring by some open act they differ as much as thinking does from acting Now in this Case of the Lord Russel the Author of this Antidote and some others as appears by the Printed Tryals would have us believe that very Conspiring to Levy War is an Overt-act to prove the compassing and imagining the King's Death For which there is not the least ground from Sir Edward Coke First they are different Species as Sir Edward Coke observes in his third Institutes fol. 14. the third Paragraph and therefore says he the one of them cannot be an Overt-act for another That is Conspiring to Levy War nay the actual Levying of War too is one Species of Treason cannot be an Overt-act for the compassing the Death of the King which is another Species of Treason But this is that the Antidoter labours only says Sir Edward Coke the Overt-act of the one may be an Overt-act for another sort or Species of Treason And I agree it if the Overt-act in the one sort of Treason may as fitly and as properly in its own nature and as equally be also an Overt-act in the other sort and had a tendency to the execution of that other sort and it also does appear by the proofs to be so intended by the Conspirators As for example Actual seizing of the King's Guards not a Conspiring to seize the King's Guards and such Guards as are not plainly set forth in the Indictment what they are may in its nature be an Overt-act to make manifest the compassing of the King's death and is an Act proper enough and has in its nature a tendency towards the execution of the Conspiracy to kill the King but then it must be proved to be so intended and designed that is in order to the killing of the King but if it appear otherwise upon the proof as here it did that it was not so intended but design'd meerly in order to a Rebellion and Levying of War for which also it is as apt and proper in its nature and has as great a tendency that way Then it cannot be applied nor made use of as an Overt-act to prove the compassing the King's Death as in this Case of my Lord Russel's it was For this as Sir Edward Coke well says fol. 14. the latter part of the third Paragraph of that fol. would be to confound the several Classes or Species of Treason and the Confusion of Species is abominable in Nature And where Sir Edward Coke seems to comply with the Opinion and Practice of some Judges that the Overt-act of Deposing may be a good Overt-act of Killing which with the distinction that I have offered is just enough yet he has some hesitation for he concludes that Opinion of his with these words fol. 6. in his third Instit. upon the word Mort But says he peruse advisedly the Statutes of 13 Eliz. cap. 1. And why those Statutes Because by those Statutes Conspiring to Depose the Queen are made Treasons which needed not as has been observ'd already if they were Treason within that Clause of Compassing the King's Death within the Statute of 25 E. 3. The like may be observ'd in many other such temporary Laws as that of 25 H. 8. cap. 22. 26 H. 8. c. 13. 28 H. 8. c. 7. 1 E. 6. cap. 12. 5. 6. Edw. 6. cap. 11. And it is worthy observation tho' by way of a short digression that in many if not in every one of these temporary Laws of Treason there is an express Clause and Provision still that concealment or keeping secret of any High-Treason should
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