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kingdom_n	king_n	lord_n	rebellion_n	3,403	5	9.7205	5	true

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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

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

present at my Lord's Tryal must needs be surpriz'd to find the Truth of the Case so untruly and unfaithfully set down in my Lord's Speech But whoever will take the pains to read the Tryals publish'd by Authority which no man will suspect of Partiality towards the Person Tryed will receive abundant Satisfaction in the Truth of what was said by the Lord Russel and discover the shameless Impudence of this Malicious Author The Indictment as we find it printed at large in the Tryal fol. 29. charges the Prisoner that he intending to disturb the Peace of the Kingdom and to move War and Rebellion against the King and to subvert the Government and to depose or put down and deprive the King from His Title and Kingly Name of the Imperial Crown of His Kingdom of England and so bring and put the King to Death and Destruction 2. Nov. 34. Car. 2. and at other times Maliciously and Traiterously with divers others did Conspire Compass Imagine and Intend 1. To deprive the King of His Title and Government 2. And to kill the King and to subvert the Government 3. And to move Insurrection and Rebellion against the King. And to fulfil and perfect these Treasons and Traiterous Compassings and Imaginations The said William Russel did meet together with divers other Traytors and Consult Agree and Conclude 1. To move and stir up Insurrection and Rebellion And 2. To Seize and Destroy the King's Guards The Operative and Emphatical words of this Indictment are the Intending Conspiring and Concluding The things Intended and Conspired were 1. To move and stir up War and Rebellion against the King. 2. To Depose the King. 3. To Kill the King. And in order to the Accomplishing of these horrid Crimes The things Concluded on were 1. To move and stir up Insurrection and Rebellion 2. To seize and destroy the Guards This is the very sum and true Method of the Indictment if it be truly printed in the Tryals Note Here is no open Act or Deed charg'd to be done by the Lord Russel unless his meeting together with others be meant to be an open Act or Deed but then again that Act of Meeting terminates meerly in Consulting Agreeing and Concluding They met only to Consult Agree and Conclude but they acted nothing in pursuance of that Consulting Agreeing and Concluding for any thing that appears in the Indictment so that the Meeting properly hath not the nature of an Acting or Action or of a thing done but the Effect of the Indictment is that the Lord Russel and others did Consult Agree and Conclude to do something but the Indictment stops there and goes no further for it sets not forth any thing done at all so that here is no Overt Act or Deed and therefore the Indictment is void for there is no Act charg'd but Meeting and that was meerly in order to Consult and Agree and they did agree upon a thing to be done but it is not said they did it or did any thing towards it I repeat this the oftner that it may be the better understood and minded being very material read the Indictment The Indictment is grounded upon the Statute of 25 E. 3. cap. 2. the old Statute of Treasons So the Attorney General declares himself fol. 49. of the Tryal Now let us see how far this Charge in the Indictment will make my Lord guilty of any Treason within that Statute The Body of that Statute of 25 E. 3. of Treasons is printed together with 〈…〉 see the Tryal fol. 50. so that it need not be repeated here though● there are some other Clauses in that Statute not printed in the Tryal The occasion of making that Statute appears to be the variety of Opinions that then were what should be accounted Treason and what not which was very mischievous to the Subjects and gave too great a Liberty to the Judges of the Ordinary Courts To Cure this mighty Mischief and to prevent that Arbitrary Power of Judges this excellent Statute makes a Declaration what shall be adjudged Treason by the Ordinary Courts of Justice not but that there might be like Cases or other Facts amounting to Treason besides those there Enumerated but those other Facts or Treasons must not be adjudg'd by those Ordinary standing Courts such as the Goal-Delivery of Newgate and the Court of the King's-Bench at Westminster itself are but in such Cases those Courts must forbear proceeding and the Case must be reserv'd for the Determination of the King and Parliament see that Statute in the printed Statutes at large So that the Court of Goal-Delivery at Newgate must Judge only and proceed upon no other Treasons but what are there Enumerated and Specified Now the Treasons in that Statute Enumerated and Specified for the word Specified is the very word used by that Statute are these 1. Compassing or imagining the Death of the King. Queen Prince 2. Violating or Carnally knowing the Queen King's Eldest Daughter Unmarried Prince's Wife 3. Levying War against the King not a Compassing or Imagining to levy War but an Actual levying War. It must be a War begun and several other sorts of Treasons are there Specified not to our Purpose to be recited The Statute further requires that the Person Indicted be Proveably attainted of some one of these Teasons by Overt Deed that is some open manifest Act or Deed done which must of necessity also be expresly set down in the Indictment and fully and clearly proved at the Tryal by two Witnesses See Sir Coke's third Institutes in his Chapter of High-Treason fol. 12. in his Exposition of the words of that Statute Per Overt fait and there fol. 5. upon the words Fait Compasser he tells you the Nature of that Open Deed that the Statute intends It must be a Deed and not meer Words it must be a Deed tending to the Execution of the Treason imagined That Deed must be an open Deed that is it must be fully proved and made open and manifest at the Tryal by clear proof So that if the Indictment fail of setting forth one of those Treasons that are there enumerated it is not a good Indictment upon that Statute If it do set forth one of those Treasons yet if it do not set forth some open Deed done by the Party indicted that is such a Deed as does properly and naturally tend to the execution of that sort of Treason set forth in that Indictment In such case also the Indictment is not good If both these viz. the Treason intended and a proper suitable open deed be well set forth in the Indictment which make a good Indictment yet if that very sort of Treason intended and that open Deed or Fact so set forth in the Indictment be not also fully clearly and manifestly proved upon the Tryal against the Prisoner he ought to be acquitted It will not suffice either to prove it by one Witness or to prove any other sort of Treason not charg'd in the

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

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