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

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

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

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

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