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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

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

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

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

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