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
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
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
of the King says the Author in that Law of 25 E. 3. is not restrained to killing of his natural Person but extends as well to his civil Death as natural As to conspire to Depose the King to Imprison him or laying any force or restraint upon him these says the Author are all High-Treason for compassing his Death natural or civil If so why then we are at never the more certainty for this excellent Law of 25 E. 3. I agree that Conspiring to Depose the King to Imprison him are Treasons but it is not so plain that they are Treasons within this Law of 25 E. 3. upon which this Indictment is grounded It is true they are made Treason by the late Act of 13 of the now King and have by several temporary Acts such as this of 13 Car. 2. is been made Treason but this proves that they were not judged by those Parliaments that pass'd those temporary Acts to be Treasons within the Statute of 25 E. 3. For why then were these temporary Acts made What need was there of them Sir Edward Coke 3 Inst. fol. 9. in the last Paragraph but one of that fol. says A Conspiracy to Levy War is no Treason he means within the Act of 25 E. 3. but it has been made Treason since Sir Coke's time viz. by 13 Car. 2. And let it be remembred that the great end of making this excellent Law of 25 E. 3. as appears by the Preamble was to avoid uncertainty and variety of Opinions and to prevent the Arbitrariness of Judges in the ordinary Courts and the Act takes care that doubtful Cases such as are not plainly within the enumeration of the Act are to be reserv'd for the Judgment of the King and Parliament And herein consists the excellency of this Law Quoad fieri possit quam plurima Legibus ipsis defineantur Quam paucissima ' Iudicis arbitrio Relinquantur And as the Learned Lord Bacon in his Advancement of Learning fol. 447. says That is the best Law which gives least liberty to the Judge He the best Judge that takes least liberty to himself Misera est servitus ubi jus est Vagum And this Law is a declaration of Law and therefore ought not to be extended to like Cases in the construction of it And it is made in the punishment of the greatest Offences and is as Penal as a Law can be and therefore ought not to be expounded by Equity that is to be extended to like Cases It is true the Opinion of the Judges hath been That Conspiring to Depose or Imprison the King is a compassing or imagining the Death of the King. And if a Man declares by Overt-act that he will Depose or Imprison the King this says Sir Edward Coke 3 Iust. fol. 6. upon the word Mort is a sufficient Overt-act for the intent of killing the King Mind him well he does not say that Conspiring to Depose or to Imprison the King is an Overt-act to prove the Conspiring the King's Death which is the Opinion the Antidoter maintains and for which he cites all his Cases afterwards cited But Sir E. Coke says That Conspiring to Depose or Imprison the King being declar'd by Overt-act this Overt-act is also a sufficient Overt-act for the intent of killing the King. It is one thing to Conspire to Depose the King. And another thing to declare that Conspiring by some open act they differ as much as thinking does from acting Now in this Case of the Lord Russel the Author of this Antidote and some others as appears by the Printed Tryals would have us believe that very Conspiring to Levy War is an Overt-act to prove the compassing and imagining the King's Death For which there is not the least ground from Sir Edward Coke First they are different Species as Sir Edward Coke observes in his third Institutes fol. 14. the third Paragraph and therefore says he the one of them cannot be an Overt-act for another That is Conspiring to Levy War nay the actual Levying of War too is one Species of Treason cannot be an Overt-act for the compassing the Death of the King which is another Species of Treason But this is that the Antidoter labours only says Sir Edward Coke the Overt-act of the one may be an Overt-act for another sort or Species of Treason And I agree it if the Overt-act in the one sort of Treason may as fitly and as properly in its own nature and as equally be also an Overt-act in the other sort and had a tendency to the execution of that other sort and it also does appear by the proofs to be so intended by the Conspirators As for example Actual seizing of the King's Guards not a Conspiring to seize the King's Guards and such Guards as are not plainly set forth in the Indictment what they are may in its nature be an Overt-act to make manifest the compassing of the King's death and is an Act proper enough and has in its nature a tendency towards the execution of the Conspiracy to kill the King but then it must be proved to be so intended and designed that is in order to the killing of the King but if it appear otherwise upon the proof as here it did that it was not so intended but design'd meerly in order to a Rebellion and Levying of War for which also it is as apt and proper in its nature and has as great a tendency that way Then it cannot be applied nor made use of as an Overt-act to prove the compassing the King's Death as in this Case of my Lord Russel's it was For this as Sir Edward Coke well says fol. 14. the latter part of the third Paragraph of that fol. would be to confound the several Classes or Species of Treason and the Confusion of Species is abominable in Nature And where Sir Edward Coke seems to comply with the Opinion and Practice of some Judges that the Overt-act of Deposing may be a good Overt-act of Killing which with the distinction that I have offered is just enough yet he has some hesitation for he concludes that Opinion of his with these words fol. 6. in his third Instit. upon the word Mort But says he peruse advisedly the Statutes of 13 Eliz. cap. 1. And why those Statutes Because by those Statutes Conspiring to Depose the Queen are made Treasons which needed not as has been observ'd already if they were Treason within that Clause of Compassing the King's Death within the Statute of 25 E. 3. The like may be observ'd in many other such temporary Laws as that of 25 H. 8. cap. 22. 26 H. 8. c. 13. 28 H. 8. c. 7. 1 E. 6. cap. 12. 5. 6. Edw. 6. cap. 11. And it is worthy observation tho' by way of a short digression that in many if not in every one of these temporary Laws of Treason there is an express Clause and Provision still that concealment or keeping secret of any High-Treason should
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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