Selected quad for the lemma: death_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
death_n	edward_n	king_n	prince_n	6,423	5	6.2989	4	false

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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

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

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