Selected quad for the lemma: death_n
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A37469
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The late Lord Russel's case wih observations upon it written by the Right Honourable Henry Lord De la Mere.
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Warrington, Henry Booth, Earl of, 1652-1694.
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1689
(1689)
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Wing D878; ESTC R27291
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13,386
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17
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the King's Death For this is not to be Provably attainted by Overt Deed. First because the Conspiring the Death of the King and Levying of War are two distinct Species of Treason and therefore it would be very unnatural and too much forc'd to joyn these rogether and as it were to make them one and the same thing that are so different and divers not only in the Manner and Matter of Proof but also in themselves For then Secondly A Conspiracy to commit any other Treason may also be called an Overt Act of imagining the King's Death which was never yet pretended Thirdly A Conspiring of any one Treason may then be an Overt Act of any other Treason Fourthly Any other Criminal Act may then as well be call'd an Overt Act of Conspiring the King's Death Fifthly This is to make a Conspiracy to Levy War Treason in it self For there is very little difference between calling a thing Treason in it self and to make it an Overt Act of some Treason within the Statute Sixthly Because a Conspiracy to Levy War was not Treason at Common Law. Seventhly The Statutes of 23d of Eliz. and the 1st and 3d. Jac. 4th which make it High Treason to Reconcile any to the Church or See of Rome or to be so Reconciled were Enacted to no purpose if a Conspiracy to Levy War is an Overt Act of the Compassing the King's Death For what can tend more plainly and directly to Levy War than to perswade the People to renounce their Allegiance to the King and to Promise Faith and Obedience to some other Power So that these and all other Statutes concerning Treason which have been made since the Statute 25th Ed. 3d. are as so many Confirmations of it and consequently prove that the Judges can call nothing Treason but what is Litterally such within that or some other Statute Eightly My Lord Cook says that Conspiracy to Levy is not Treason unless the War be Levy'd in facto And questionless his Opinion is very good Law Because in many Cases it is not Treason to Levy War à fortiori a Conspiracy cannot For look into the Statute Queen Mary 12. and there you will find several things provided against which are plainly and directly a Levying of War and yet they are declared to be but Felony But it may be Objected that by Stat. 3. and 4. Ed. 6. the Offences mention'd in 1 Queen Mary were made Treason It is very true Yet it does not alter the Case but rather prove the Point For First they being made Treason by Statute proves that it was not so in it self Secondly because in the two next succeeding Reigns it is declared to be but Felony For the Statute of Queen Mary is confirm'd by 1 Eliz. 16. And thereupon the Argument is the stronger because those two Queens were of different Religions Thirdly because when a thing is declared an Offence by Act of Parliament and is afterwards made a less Offence by Statute it proves that it was not so great in it self but that the necessary Circumstances of Time and Affairs requir'd it should then be such But the Case is yet Stronger because in some Cases it may be but a Trespass to Levy War as it was in the Case of my Lord Northumberland 5 Hen. 4th He did actually raise Forces and such as were taken to be a Levying of War For which he was question'd before the Lords and tryed for High Treason But tho' the Lords did find the Fact yet they adjudg'd it but a Trespass because the Powers raised were not against the King but against some Subjects This Precedent seems to carry great weight in it First because it is a Judgment given in the highest Court of Judicature Secondly because it was given so soon after the making of the Statute of 25 Ed. 3d. who must be suppos'd to understand the intent and meaning of that Statute full as well as succeeding Ages The Case of those who Aided Sir John Old-Castle might be also urg'd who were Acquitted because in their Defence it did appear that by reason of Fear and to save themselves they were constrain'd to what they did Which is Ground for another Argument if there were occasion because it proves that the Maxim in Law Actus non sit reus nisi Mens sit rea holds in Case of Treason as well as in all other Cases But I think there 's no need of it For if War may be Levy'd which is neither Treason nor Felony it must be a very unnatural Construstion of a Conspiracy to Levy War to make it an Overt Act of Compassing the King's Death Thus the Second thing Objected has received a full answer and likewise the First in a great Measure Yet I will add a few words that no doubt may remain If the consequence on all hands be duly considered the danger will be found to lie on the other hand Yet be it as great as can be pretended it must be remembred that the Law has settled the Point and so it must stand till by the same Authority it be altered For the Rule in Law is not to be forgot Nemo Legibus Sapientior It is pretended that out of a tender regard which the Law and all Subjects ought to have for the King's Life a Conspiracy to Levy War is taken to be an Overt Act of Compassing the King's Death To this it may be answered by way of question how comes it about that this Age should have a greater Care of the King's Life than our Fore-fathers had Can it be imagin'd that they did not understand the nature of the Government as well as we do Nor did know of what consequence to the Publick the Preservation of the King's Life is Can it be thought that they did not impartially weigh and consider the consequence on all hands Yet however let the defects be never so many seeing it is settled by Law it cannot be alter'd but by the same Power For if it may then let the consequences be seriously debated of leaving it in the Breast of the Judges to rectifie the mistakes or defects be the fictitious or real For then when a Turn is to be serv'd the Law will be sure to be Defective and so in effect they shall Legem dare Treason will then be reduced to a certainty that is if the Judges please otherwise not There will be then no need of Parliaments For the Judges shall both declare and make Law. What will all our Laws signifie though made and penn'd with all the Wisdom and Caution that a Parliament is capable of if the Judges are not tied up and bound by those Laws It renders Parliaments useless and sets the Judges above that great Council They can undo what the other has done The Parliament chains up some unruly evil and the Judges let it loose again But besides where is this dangerous consequence as is Objected Indeed there had been some weight in the Objection had a Conspiracy to
THE LATE Lord Russel's CASE WITH OBSERVATIONS UPON IT Written by the Right Honourable HENRY Lord De la Mere. LONDON Printed for Awnsham Churchill at the Black Swan at Amen-Corner in Ave-Mary-Lane MDCLXXXIX THE CASE OF William Ld. Russel Tryed for HIGH TREASON July 13. 1683. And afterwards EXECUTED for the same THE Indictment is very long But for substance it is for Conspiring the Death of the King and intending to Leavy War and to that end to Seize the Guards For the Indictment concludes and the Guards for the preservation of the person of our said Lord the King to seize and destroy against the Duty of his Allegiance against the Peace c and also against the Form of the Statutes c. Those that gave their Evidence against the Prisoner were Romsey Sheppard and my Lord Howard The Overt Act of Conspiring the Death of the King is Consulting to Leavy War and to that intent to Seize the Guards So that the Design to seize the Guards is the Overt Act assign'd of Conspiring the King's Death The Quaere then is Whether my Lord Russel was Guilty of High Treason within the Statute 25 Ed 3. for upon that Statute he was tryed And I conceive he was not and therefore his Attainder ought to be Reversed But before I speak to the Matter of Law on which I shall chiesly insist I must desire you to observe some Inconsistencies and Contradictions in the Evidence First That none of these persons had their Pardons Which was otherwise in the Popish Plot For no person gave Evidence before he had his Pardon Therefore being unpardon'd tho' they might be Legal yet not Credible Witnesses Both which are required by the Statute For whilst the Fear of Death attends a man he is thinking how he may save his Life rather than to speak nothing but the Truth and he that is so base to purchase his own Life at the price of another mans will be sure not to speak less than the Truth Next I observe how the King's Counsel by the Questions they put to the Witnesses did lead if not in a manner Dictate to them what to say And I take notice that my Lord Howard who must be supposed to have a full Knowledge of the Plot yet never says a word of their Intent to seize the Guards which was the principal thing in the Evidence of Rumsey and Sheppard For had there been any such Intent it is strange that my Lord Howard who had brought in so many other things by Head and Shoulders should forget so remarkable a piece of Evidence and so home as that This is only in general But in Particular do but observe Rumsey's Evidence He says he was not there above a quarter of an hour and whilst he was there two things were debated and resolved and a third thing discoursed Surely they were things which they did not much value or else they were men of wonderful dispatch that could receive and debate the Message which he brought from my Lord Shaftsbury then Debate the Matter of the Guards and come to a Resolution in both and afterwards Discourse about the Declaration and all this in a quarter of an hour or else Rumsey is perjured In the next place it is very remarkable where he says he was not certain whether he was at another Meeting or else heard Mr. Throgmorton make a Report of another Meeting to my Lord Shaftsbury And again he says that he was not certain whether he did hear something about a Declaration when he was at that meeting or that Mr. Ferguson did report it to my Lord Shaftsbury that they had debated it To say no more of it It is very strange that a man cannot be certain whether he knows a thing of his own Knowledge or by Hear-say And if in so plain matters as those he spoke on uncertain Knowledge it is not unreasonable to suppose that he might as easily be mistaken in the rest of his Evidence Then as to Sheppard He first swears point blank that my Lord Russel was at two Meetings at his House But being press'd by my Lord Russel he can remember but one and when that was he could not recollect himself though not above eight or nine Months before as he confesses It 's strange that a man should be so much in a wood about so remarkable a thing But surely it must be hard upon the Prisoner that the time could not be better fix'd for if Witnesses may give Evidence at that rate it will be much ado for any Prisoner to make his Defence As to my Lord Howard his Evidence is so notorious that I need say nothing of it but refer you to the Printed Tryal for your Satisfaction Only I will take notice of one thing which he says to reconcile what he said to my Lord of Bedford my Lord Anglesey being present and what he afterwards swore against my Lord Russel at his Tryal Says he Your Lordship knows that every man that was committed was commited for a Design of Murdering the King. Now I laid hold on that part For I was to carry my Knife close between the Paring and the Apple and I did say that if I were an Enemy to my Lord Russel and to the Duke of Monmouth and were call'd to be a Witness I must have declared in the presence of God and Man that I did not believe either of them had any Design to Murder the King. As to the first What he said to my Lord of Bedford was as to the Plot in General and if to any particular part of it it must be as to the Insurrection For there was to be my Lord Russel's Province 2ly My Lord Howard knew that all that were committed their Commitments run as well for Levying of War as for Conspiring the King's Death So that his Lordship must find out something that will reconcile himself to himself better than his Knife betwixt the Apple and Paring or else it will follow That he solemnly said one thing and swore another I have but only touch'd these things because I hasten on to the matter of Law. For tho' it were without contradiction that every thing sworn against my Lord Russel were true yet it did not amount to High-Treason First Because a Conspiracy to Leavy War is not an Overt Act of Imagining the Death of the King. In arguing of this I will not meddle at all with the Original of Allegiance nor the true Nature of it neither make any Discourse that heretofore it was a less Offence to Plot against the King's Life than against the Government but I will leave those sore places and endeavour to prove my Point by considering these five things First Whether any Court the Parliament excepted can try a Man upon an Indictment for High Treason that is grounded upon the Common Law Secondly To what end and intent the Statute 25 Ed. 3. cap. 2. was Enacted Thirdly Whether Conspiring the Death of the King and Leavying