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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

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

is the King and Kingdom it is the whole Protestant part of the World that suffers the enestimable loss of him Not to speak of the unspeakable grief of his dear and disconsolate Widdow and other Noble Relations Factum infectum fieri nequit So that we may seem to labour in vain and it comes too late but something may be done for the benefit of his hopeful Posterity and some small satisfaction may be made to his Noble Family by a Writ of Errour for reversing of this Attainder and the avoiding of the Record for the Statute of 29 Eliz. cap. 2. extends only to such Attainders for High-Treason as then had been before the making of that Statute and does not hinder a Writ of Errour in this Case if the King will sign a Petition for it But to examine this last Overt Fait or open Deed a little further Viz. To seize and destroy the King's Guards The Guards what Guards What or whom does the Law understand or allow to be the King's Guards for the preservation of his Person Whom shall the Court that tried this Noble Lord whom shall the Judges of the Law that were then present and upon their Oaths whom shall they judge or legally understand by these Guards They never read of them in all their Law-Books There is not any Statute Law that makes the least mention of any Guards The Law of England takes no notice of any such Guards and therefore the Indictment is uncertain and void The King is guarded by the special Protection of Almighty God by whom he Reigns and whose Vice-Gerent he is He has an invisible Guard a Guard of glorious Angels Non Eget Mauri jaculis nec arcu Nec Venenatis gravida sagittis Crede Pharetra The King is Guarded by the Love of His Subjects The next under God and the Surest Guard. He is Guarded by the Law and Courts of Justice The Militia and the Trained-bands are his Legal Guard and the whole Kingdoms Guard. The very Judges that Tryed this Noble Lord were the King's Guards and the Kingdoms Guards and this Lord Russel's Guard against all Erroneous and Imperfect Indictments from all false Evidence and Proof from all strains of Wit and Oratory mis-applied and abus'd by Councel What other Guards are there We know of no Law for more King Henry the Seventh of this Kingdom as History tells us was the first that set up the Band of Pensioners Since this the Yeomen of the Guard since them certain Armed Bands commonly now adays after the French Mode called the King's Life-Guard rid about and appearing with naked Swords to the Terrour of the Nation but where is the Law where is the Authority for them It had been fit for the Court that Tryed this Noble Lord on this Indictment to have satisfied themselves from King's Councel what was meant by these Guards for the alledging and setting forth an Overt fait or open Deed in an Indictment of Treason must be of something that is intelligible by Law and whereof Judges may take Notice by Law and herein too the Indictment failes and is imperfect But admit the Seizing and Destroying of those who are now called the King's Life-Guard had been the Guard intended within this Overt fait or open Deed yet the Indictment should have set forth that de facto the King had chosen a certain number of man to attend upon and Guard His Person and set forth where they did attend as at White-Hall or the Mews or the Savoy c. and that these were the Guard intended by the Indictment to be seiz'd and destroy'd that by this setting forth the Court might have taken notice Judicially what and who were meant but to seize and destroy the King's Guards and not shew who and what is meant makes the Indictment very insufficient So much as to the Indictment itself In the next place let us look into the Proofs as they are at large set forth and owned in the printed Tryal and let us consider how far those Proofs do make out the Charge of the Indictment viz. the Compassing and Imagining the Death of the King and how far they make out that Overt fait or open Deed such as it is of seizing or destroying the King's Guards in order to the effecting of that Compassing and Imagining the Death of the King and it must appear by Proof to be in Truth so intended by the Conspirators and levell'd to that end for if it were done yet if it were done quite to another intent and purpose and not to that of Compassing the King's Death it does not come home to this Indictment There are but three Witnesses that can be thought to bring the matter home and to fix any thing upon the Lord Russel Col. Romsey Mr. Sheppard and the Lord Howard It is true two of the three that is Col. Romsey and the Lord Howard positively prove a Trayterous Design or a Discourse at least by some of the Company of making an Insurrection or Rebellion or to speak it in the Language and Phrase of this Statute of 25 E. 3. of levying a War against the King for all these signifie one and the same thing and they prove the Lord Russel was sometimes present at those Meetings but is that enough Admit he were present and heard the Debate of it which yet is not fully and directly prov'd yet if he did not joyn in the Debate and Express and some way signifie his Approbation of it and consent to it it makes him not at all Criminous It is true his after concealing of it might have made him guilty of Misprision of Treason but that is a Crime of another nature and is another distinct Genus of Crimes of which he was not Indicted Col. Romsey as to the Overt fait as they would make it says there was some Discourse about seeing what Posture the Guards were in and being asked by one of the Jury by whom the Discourse was he answers By all the Company that was there whereof as he said before the Lord Russel was one So that my Lorld Russel may I agree be understood to be one that discours'd about seeing what posture the Guards were in Nay the Colonel says all the Company did debate it and he says further the Lord Russel was there when some of the Company undertook to take the View of those Guards and being asked by the Attorney General to what purpose the View was to be the Colonel answers It was to surprise our Guards if the Rising had gone on The Chief Justice observing to the Witness that he ought not to deliver a doubtful Evidence and to speak it with Limitations that made it not so positive as by saying I apprehend so and so then the Colonel grows more positive and says further that a Rising was intended but afterwards he says there was no debate of the Rising At last the Witness being asked by Sir George Iefferies whether the Prisoner were present at the

Debate concerning the Message from the Lord Shaftsbury to the Company then met and the Answer return'd to it He flatly says the Prisoner was present at that Debate which Debate did indeed concern the Rising being ask'd by the same Person whether my Lord was averse to it or agreeing to it He answers like an Eccho Agreeing to it Nay then he says my Lord Russel did speak and that about the Rising of Taunton and that he did discourse of the Rising but what were his words Being question'd again by the Chief Justice whether my Lord did give any Consent to the Rising He answers still like an Eccho My Lord did And this last Answer is the weighty part of his Evidence if there be any weight at all Now mind the defect of the Witness 's Memory in some other most material Passages He thinks the Lord Grey did say something to the same purpose with the Answer deliver'd by Ferguson to the Lord Shaftesbury's Message He does not know says he how often he himself the Witness was at Mr. Sheppard's House where this Debate was He says he was there more then once or else I heard says he Mr. Ferguson make a Report of another Meeting to the Lord Shaftsbury And then he says that this was all at that time that he remembred and before this he had said no more against the Lord Russel but that he was present and after this upon much Interrogating of him he proceeds to tell a great deal more indeed all the rest that has been before observ'd to proceed from him And after all he says he thinks he was not there above a quarter of an Hour He says he was not certain whether he did hear something about a Declaration there or whether Mr. Ferguson did report it to my Lord Shaftesbury that they had debated it And the Witness speaking of a View to be taken of the Guards to surprize them the Lord Chief Justice seems to be surpriz'd at that word The Guards he never met it in all his Books What Guards why you know it is mention'd in the Indictment but he might yet very well ask what Guards And the Colonel answers The Guards at the Savoy and the Mewse The Colonel says He thinks the Duke of Monmouth and the Lord Grey and Sir Thomas Armstrong were the persons that undertook to view the Guards And he thinks Sir Thomas Armstrong began it and Mr. Ferguson And he says further Direction was given to take a view of the Guards if the Rising had gone on as it never did and then he mentions the very day that had been appointed for the Rising viz. the 19th of November and that the Message from the Lord Shaftsbury was he thinks a matter of a Fortnight before that day or something more for he thinks it was concluded Sunday fortnight after my Lord Grey met The mention of my Lord Russel's consent to this Rising comes in at the last and after many questions ask'd him and not till that very particular question was put to him and he answers in the very same words as the question was ask'd The Chief Justice ask'd him in these words Did my Lord give any consent to the Rising The Colonel's Answer was Yes my Lord he did But how did my Lord Russel signifie that Consent what words did he use that may clearly express it For this is the pinching Proof if it had been certain and clear'd by remembring the manner of his Consenting or how it did appear Why was not this put home to the Witness This is the Material part of his Evidence without which the rest had not come home to the Prisoner And why did not the Witness deliver this of himself and before his giving this home Evidence he had said That was all at that time that he remember'd And this was at the same time with that of the Message and of the Discourse about Viewing the Guards He afterwards doubts whether he was any more then once there with that Company or whether he heard Mr. Ferguson report things to the Lord Shaftsbury which shews a wild kind of Memory in a Witness and the Colonel is no Fool nor Baby so that there is but one time positively spoken of by this Witness How strangely uncertain is he in the Matter of the Declaration to which he was Examined A most noted thing and he cannot tell whether he heard any thing of it there or whether Mr. Ferguson told him of it It is to to be suspected too that what he has deliver'd positively at last so late in his Evidence and after so much Interrogating of him was but meer hearsay too and then it would not have been any Evidence He has not it seems a good distinguishing Head or Memory as a Witness ought to have in case of Life and a Life of so high a value as this of that Noble Lord. And many other Material Passages this Witness delivers under that Limitation as he thinkes The Rising was intended but never took effect and the View was no more then appointed and undertaken but the Seizing of the Guards as this Witness says was not to be unlesss the Rising had gone on which it never did He speaks nothing of any View made of the Guards or any Report upon it but he swears my Lord Russel consented to the Rising That is his stabbing Evidence but by what words or how he signified his consent not a word tho' mighty material But what is this Conspiracy for a Rising and a Conspiracy to seize the Guards in case the Rising had gone on What are these to the Crime charged in the Indictment against the Lord Russel for conspiring the death of the King Here is not a word of any such matter nor of seizing the Guards in order to it no not one word And that is the only material part of the Indictment as shall appear more plainly hereafter The second Witness Mr. Sheppard mentions the meeting at his House of the Duke of Monmouth and among the rest the Lord Russel and they discours'd of surprizing the Guards and that the Duke the Lord Grey and Sir Thomas Armstrong as he remembers went one Night to view the Guards and the next Day at his House they said it was very feasible if they had strength to do it And then he says there was two Meetings there and as he remembers my Lord Russel was both times there Being ask'd by the Attorney-General besides the seizing of the Guards if there were any discourse of a Rising He answers He did not remember any further Discourse for he was often gone out of the Room And this is the effect of that he says If any thing of this comes near my Lord Russel it is those words first giving an account of who they were that were met and that my Lord Russel was one of them he says the Substance of their Discourse was how to surprize the King's Guards This may be true if one or two of the

Indictment nor any other overt Deed other then what is so set forth in that Indictment tho' it be by never so full a proof but upon that Indictment the Prisoner ought to be acquitted if that special Treason and that special overt or open Deed set forth and expressed in that very Indictment be not fully proved Now let us examine the Indictment in this Case against the Lord Russel and the proofs against him as they are published by Authority and observe how they agree with the Statute and how the Indictment and Proofs agree the one with the other It may be admitted that here is in the Indictment against the Lord Russel a Treason sufficiently charged and set forth viz. one of the Treasons specified in that Statute of 25 Edw. 3. namely That the Lord Russel did compass and imagine the death of the King. This is not denied but it is duly charged in the Indictment For those other Charges in the Indictment viz. his intending to depose the King and his intending to move or levy War and Rebellion against the King these are inserted into the Indictment as Aggravations of that horrid Crime of intending to kill the King or as open acts of the other but of themselves alone they are no distinct substantive Charges nor are they any of the Treasons specified in this Act upon which Act this Indictment is solely grounded For tho' by the Act of 13 of this King that now is Chap. 1. entitled An Act for the Safety and Preservation of the King's Person it is made High-Treason during the now King's life only to compass or imagine to Depose the King or to compass or imagine to levy War against the King If such compassing or imagination be expressed by speaking or writing altho' without any open Deed yet the Lord Russel was not Indicted upon that Statute as the Atturney General himself acknowledged openly at the Tryal but only upon the old Statute of 25 Edw. 3. So that those late made Treasons are not to our purpose So that the only Treason charg'd in the Indictment as a substantial Charge is that of imagining to kill the King. And so the Lord Chief Justice agrees in his Direction to the Jury See the Tryal fol. 61. But where is that other Requisite that other most material part of the Indictment of the open Deed or Act without which the rest serves for nothing For it is not enough by this Statute to make a man guilty of conspiring or imagining the death of the King unless the Party indicted have expressed that Imagination by some open Deed and that must be plainly set down in the Indictment too or else the Indictment as was said before is no good Indictment And it must appear to the Court upon the Indictment not only to be an open Deed but such a Deed as has a natural aptitude and tendency to the Execution of that very Treason so imagined And there is no such set forth in this Indictment and therefore the Indictment it self was insufficient and void And that which seems to have a colour of an overt Fact or open Deed set forth in this Indictment was not fully and sufficiently proved neither and then tho' the Indictment had been sufficient yet for want of due proof the Party indicted ought to have been acquitted To these two Points or Matters shall the ensuing Discourse confine it self And if this undertaking be made good the Antidote will appear to be a rank Poison the Lord Russel's Speech justified and his Innocency and Loyalty cleared and his Honour vindicated The overt Fait or open Deed set forth in the Indictment if there be any are the things said to be consulted of agreed and concluded on viz. To move and stir up Insurrection and Rebellion 2. To seize and destroy the Guards Peruse the Indictment carefully Now neither of these are open Deeds in the nature of them The first which is to stir up Insurrection and Rebellion this is a distinct Species of Treason it self it is the same with a levying of War specified in this Statute of 25 Edw. 3. which is the only Statute we have to do with in this Case of my Lord Russel and if it had been set forth in the Indictment as a Deed done or thing acted that is if it had been laid in the Indictment that the War was actually levied or the Insurrection or Rebellion actually raised or stirred up as it is not for it is only mention'd as a thing agreed and concluded on and not done yet it had not been a sufficient proper overt Fait or open Act to make it a good Indictment because as is said before levying of War is a distinct species from that of compassing to kill the King and therefore cannot be made an overt Fait or open Deed to manifest an Imagination of killing the King. For that one species of Treason cannot be a proper open Act to another species of Treason as will be proved hereafter Sir Edward Coke in his third Institutes fol. 14. in the third Clause or Paragraph of that Folio tells us That the Connexion of the words are to be observ'd viz. thereof be Attainted by overt or open Deed. This says Sir Edward Coke relateth to the several and distinct Treasons before expressed whereof that of imagining to kill the King and that of levying War against the King are two distinct Species of High-Treason And therefore says Sir Edward Coke the one of them cannot be an overt Act for another that is levying of War cannot be an overt Act for that sort of Treason in imagining to kill the King much less when the Indictment does not charge it as a War actually levied but only an agreement or conclusion for levying a War. Such agreement can be no open Deed to manifest an intent or imagination of killing the King. This is the main question between us The other only colour or pretence to an Overt Fait or open Deed must be that of seizing or destroying the King's Guards for no other but these two are set forth in the Indictment or look any thing like overt or open Acts. And this latter is nothing like to an Overt Fait or open Deed in the nature of it for it is not said to be done but only agreed on and concluded on to be done If it had been but alledged in the Indictment that in pursuance of this agreement or conclusion of the Conspirators a View was accordingly taken of those Guards and reported to the rest whereof the Lord Russel was one that it was feasible whereof there is some colour of proof against some of them this had been more to the purpose but being laid so imperfectly as it is the Indictment itself must needs be insufficient for the reasons before given But alas the Noble Lord is gone and he is gone from whence he would not be re-call'd a place of infinite Bliss and Glory out of a spiteful malicious World It is we it