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
        
      
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         Images scanned from microfilm: (Early English books, 1641-1700 ; 303:16 or 2469:13)
      
       
         
           
             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.
          
           [5], 3-51 p.
           
             Printed for Timothy Goodwin ...,
             London :
             1689.
          
           
             "An argument in the case ..." (p. [27]-51) has special t.p.
             Advertisements: p. [1].
             Copy filmed at reel 2469 bound and filmed following Wing A4139, A4141 and A4140.
             Reproduction of originals in Union Theological Seminary Library, New York and the Folger Shakespeare Library.
          
        
      
    
     
       
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         eng
      
       
         
           Russell, William, -- Lord, 1639-1683.
           Nottingham, Heneage Finch, -- Earl of, 1621-1682. -- Antidote against poison.
           England and Wales. -- Parliament.
        
      
    
     
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           Advertisement
           .
        
         
           THere
           is
           lately
           Printed
           for
           
             Timothy
             Goodwin
          
           ,
           at
           the
           Maiden-head
           against
           St.
           Dunstan's
           Church
           in
           Fleet-street
           ,
           these
           Two
           Books
           following
           .
        
         
           
             I.
             An
             Enquiry
             into
             the
             Power
             of
             Dispensing
             with
             Penal
             Statutes
             .
          
           Together
           with
           some
           Animadversions
           upon
           a
           Book
           writ
           by
           Sir
           
             Edw.
             Herbert
          
           ,
           Lord
           Chief
           Iustice
           of
           the
           Court
           of
           Common-Pleas
           ,
           Entituled
           ,
           
             A
             short
             Account
             of
             the
          
           Authorities
           in
           Law
           ,
           
             upon
             which
             Judgment
             was
             given
             in
             Sir
          
           Edward
           Hales
           
             's
             Case
          
           .
        
         
           
             II.
             The
             Power
             ,
             Jurisdiction
             ,
             and
             Priviledge
             of
             Parliament
          
           ;
           And
           the
           Antiquity
           of
           the
           
             House
             of
             Commons
          
           Asserted
           :
           Occasioned
           by
           an
           Information
           in
           the
           
             King's
             Bench
          
           ,
           by
           the
           Attorney-General
           ,
           against
           the
           Speaker
           of
           the
           
             House
             of
             Commons
          
           .
        
         
           As
           also
           a
           Discourse
           concerning
           the
           Ecclesiastical
           Iurisdiction
           in
           the
           Realm
           of
           England
           ;
           occasioned
           by
           the
           late
           Commission
           in
           Ecclesiastical
           Causes
           .
        
         
           Both
           Writ
           by
           Sir
           
             Robert
             Atkyns
          
           ,
           Knight
           of
           the
           Honourable
           Order
           of
           the
           Bath
           ,
           and
           late
           one
           of
           the
           Iudges
           of
           the
           Court
           of
           Common-Pleas
           .
        
      
       
         
         
           A
           DEFENCE
           Of
           the
           Late
           Lord
           Russel's
           Innocency
           ,
           By
           way
           of
           Answer
           or
           Confutation
           of
           a
           Libellous
           Pamphlet
           ,
           INTITULED
           ,
           An
           ANTIDOTE
           against
           POYSON
           ;
           WITH
           Two
           Letters
           of
           the
           Author
           of
           this
           Book
           ,
           Upon
           the
           Subject
           of
           his
           Lordship's
           Tryal
           .
           Together
           with
           An
           ARGUMENT
           in
           the
           Great
           CASE
           Concerning
           Elections
           of
           Members
           to
           Parliament
           ,
           Between
           Sr
           
             Samuel
             Barnardiston
          
           Bar.
           Plaintiff
           ,
           AND
           Sr
           
             Will.
             Soames
          
           Sheriff
           of
           Suffolk
           ,
           Defend
           '
           In
           the
           Court
           of
           Kings-Bench
           ,
           in
           an
           Action
           upon
           the
           Case
           ,
           And
           afterwards
           by
           Error
           sued
           in
           the
           Exchequer-Chamber
           .
        
         
           By
           Sir
           
             ROBERT
             ATKYNS
          
           ,
           Knight
           of
           the
           Honourable
           Order
           of
           the
           Bath
           ,
           And
           late
           one
           of
           the
           Judges
           of
           the
           Court
           of
           Common-Pleas
           .
        
         
           LONDON
           :
           Printed
           for
           
             Timothy
             Goodwin
          
           ,
           at
           the
           Maiden-head
           against
           St.
           Dunstan's
           Church
           in
           Fleet-street
           .
           1689.
           
        
      
       
         
         
         
           TO
           THE
           READER
        
         
           HAving
           ,
           about
           five
           Years
           since
           ,
           had
           Applications
           made
           to
           me
           by
           divers
           Friends
           and
           Relations
           of
           that
           Most
           Excellent
           Person
           ,
           the
           Late
           LORD
           RVSSEL
           ,
           when
           his
           Troubles
           befel
           him
           ,
           and
           while
           he
           was
           upon
           his
           Tryal
           ,
           to
           give
           him
           the
           best
           Assistance
           I
           could
           in
           my
           Profession
           ,
           and
           to
           Instruct
           him
           how
           to
           manage
           his
           Defence
           :
           And
           the
           like
           Assistance
           being
           afterwards
           desired
           from
           me
           ,
           by
           many
           more
           Persons
           of
           the
           best
           Quality
           ,
           who
           soon
           after
           fell
           into
           the
           same
           Danger
           :
           I
           living
           at
           some
           distance
           from
           London
           ,
           did
           venture
           ,
           by
           Letters
           ,
           to
           send
           the
           best
           Rules
           and
           Directions
           I
           could
           ,
           towards
           the
           making
           of
           their
           Just
           Defence
           ,
           being
           heartily
           concern'd
           with
           them
           .
           The
           Copies
           of
           which
           Letters
           of
           mine
           ,
           being
           very
           lately
           come
           to
           my
           Hands
           ,
           with
           an
           Intention
           to
           have
           them
           likewise
           Publish'd
           together
           ,
           with
           that
           Discourse
           or
           Argument
           that
           concern'd
           that
           Honourable
           Lord
           ,
           I
           thought
           it
           might
           be
           some
           help
           to
           such
           as
           may
           possibly
           hereafter
           fall
           into
           
           the
           like
           Danger
           and
           Trouble
           ,
           being
           by
           the
           strict
           Rules
           of
           Law
           denied
           the
           benefit
           of
           Councel
           in
           Capital
           Crimes
           ,
           as
           to
           Matters
           of
           Fact
           and
           Proofs
           ,
           at
           an
           easie
           Rate
           to
           be
           instructed
           ,
           by
           the
           Advice
           contained
           in
           these
           Letters
           ,
           how
           to
           manage
           their
           Defence
           .
           This
           prevail'd
           with
           me
           to
           Publish
           the
           very
           Letters
           themselves
           ,
           being
           meerly
           upon
           the
           same
           Subject
           with
           the
           larger
           Discourse
           ,
           upon
           the
           Title
           and
           Head
           of
           High-Treason
           .
        
      
       
         
         
           First
           LETTER
           ,
           CONCERNING
           My
           Lord
           Russel's
           TRYAL
           .
        
         
           
             SIR
             ,
          
        
         
           I
           Am
           not
           without
           the
           Apprehensions
           of
           Danger
           that
           may
           arise
           by
           advising
           in
           ,
           or
           so
           much
           as
           discoursing
           of
           Publick
           Affairs
           ;
           yet
           no
           fear
           of
           Danger
           shall
           hinder
           me
           from
           performing
           that
           Duty
           we
           owe
           to
           one
           another
           ,
           to
           Counsel
           those
           that
           need
           our
           Advice
           ,
           how
           to
           make
           their
           just
           Defence
           when
           they
           are
           called
           in
           question
           for
           their
           Lives
           ,
           especially
           if
           they
           are
           Persons
           that
           have
           by
           their
           general
           Carriage
           and
           Conversation
           appeared
           to
           be
           Men
           of
           Worth
           ,
           and
           Lovers
           of
           their
           King
           and
           Country
           ,
           and
           of
           the
           Religion
           Established
           among
           us
           .
           I
           will
           follow
           the
           Method
           you
           use
           ,
           and
           answer
           what
           you
           ask
           in
           the
           Order
           I
           find
           in
           your
           own
           Letters
           .
        
         
           I
           cannot
           see
           any
           disadvantage
           or
           hazard
           by
           pleading
           the
           general
           Plea
           of
           
             Not
             Guilty
          
           :
           If
           it
           fall
           out
           upon
           the
           Proofs
           that
           the
           Crime
           is
           only
           Misprision
           of
           Treason
           ,
           and
           not
           the
           very
           Crime
           of
           Treason
           ,
           the
           Iury
           must
           then
           find
           the
           Prisoner
           not
           guilty
           of
           Treason
           ,
           and
           cannot
           upon
           an
           Indictment
           of
           Treason
           find
           the
           party
           guilty
           of
           Misprision
           ,
           because
           he
           is
           not
           Indicted
           ,
           for
           the
           Offence
           of
           Misprision
           ,
           and
           Treason
           and
           Misprision
           of
           Treason
           are
           Offences
           that
           the
           Law
           hath
           distinguished
           the
           one
           from
           the
           other
           ,
           and
           the
           one
           is
           not
           included
           in
           the
           other
           ;
           and
           therefore
           if
           the
           Proofs
           reach
           no
           farther
           then
           to
           prove
           a
           Misprision
           ,
           and
           amount
           not
           to
           Treason
           ,
           the
           Prisoner
           may
           urge
           it
           for
           himself
           ,
           and
           say
           that
           the
           Proofs
           do
           not
           reach
           to
           the
           Crime
           charged
           in
           the
           Indictment
           ,
           and
           if
           the
           Truth
           be
           so
           ,
           the
           Court
           ought
           so
           to
           direct
           the
           Iury
           ,
           not
           to
           find
           it
           .
        
         
           ☞
           Now
           being
           present
           in
           company
           with
           others
           ,
           where
           those
           others
           do
           consult
           and
           conspire
           to
           do
           some
           Treasonable
           Act
           ,
           does
           not
           make
           a
           man
           guilty
           of
           Treason
           ,
           unless
           by
           some
           Words
           and
           Actions
           he
           signifie
           his
           Consent
           to
           it
           ,
           and
           Approbation
           of
           it
           :
           but
           his
           being
           privy
           to
           it
           ,
           and
           not
           discovering
           it
           ,
           makes
           him
           
           guilty
           of
           Misprision
           of
           Treason
           ,
           which
           consists
           in
           the
           concealing
           it
           ,
           but
           it
           makes
           him
           not
           guilty
           of
           Treason
           ;
           and
           if
           the
           same
           Person
           be
           present
           a
           second
           time
           ,
           or
           oftner
           ,
           this
           neither
           does
           not
           make
           him
           guilty
           of
           Treason
           ,
           only
           it
           raises
           a
           strong
           suspicion
           that
           he
           likes
           it
           ,
           and
           consents
           to
           it
           ,
           and
           approves
           of
           it
           ,
           or
           else
           he
           would
           have
           forborn
           after
           his
           having
           been
           once
           amongst
           them
           :
           But
           the
           strongest
           suspicion
           does
           not
           sufficiently
           prove
           a
           Guilt
           in
           Treason
           ,
           nor
           can
           it
           go
           for
           any
           Evidence
           :
           And
           that
           upon
           two
           Accounts
           .
        
         
           ☞
           First
           ,
           The
           Proofs
           in
           case
           of
           Treason
           must
           be
           plain
           &
           clear
           and
           positive
           ,
           and
           not
           by
           Inference
           ,
           or
           Argument
           ,
           or
           the
           strongest
           Suspicion
           imaginable
           :
           Thus
           says
           Sir
           
             Edward
             Coke
          
           in
           many
           places
           in
           his
           third
           Institutes
           in
           the
           Chapter
           of
           High
           Treason
           .
        
         
           ☞
           Secondly
           ,
           In
           an
           Indictment
           of
           High
           Treason
           ,
           there
           must
           not
           only
           be
           a
           general
           Charge
           of
           Treason
           ,
           nor
           is
           it
           enough
           to
           set
           forth
           of
           what
           sort
           or
           species
           the
           Treason
           is
           ,
           as
           killing
           the
           King
           ,
           or
           levying
           War
           against
           him
           ,
           or
           Coyning
           Money
           ,
           or
           the
           like
           ,
           but
           the
           Law
           requires
           that
           in
           the
           Indictment
           there
           must
           be
           also
           set
           forth
           some
           Overt
           or
           open
           Act
           ,
           as
           the
           Statute
           of
           the
           25th
           of
           Edw.
           the
           3
           d.
           calls
           it
           ,
           or
           some
           Instance
           given
           by
           the
           Party
           or
           Offender
           ,
           whereby
           it
           may
           appear
           he
           did
           consent
           to
           it
           ,
           and
           consult
           it
           ,
           and
           approve
           of
           it
           ;
           and
           if
           the
           bare
           being
           present
           should
           be
           taken
           and
           construed
           to
           be
           a
           sufficient
           Overt
           or
           open
           Act
           ,
           or
           Instance
           ,
           then
           there
           is
           no
           difference
           between
           Treason
           and
           Misprision
           of
           Treason
           ;
           for
           the
           being
           present
           without
           consenting
           makes
           no
           more
           then
           Misprision
           ,
           therefore
           there
           must
           be
           something
           more
           then
           being
           barely
           present
           to
           make
           a
           man
           guilty
           of
           Treason
           ,
           especially
           since
           the
           Law
           requires
           an
           Overt
           ,
           or
           open
           Act
           to
           be
           proved
           against
           the
           Prisoner
           accused
           .
           See
           Sir
           Coke's
           third
           Institutes
           fol.
           12.
           upon
           those
           words
           of
           the
           Statute
           ,
           
             (
             per
             overt
             fact
          
           )
           and
           that
           there
           ought
           to
           be
           direct
           and
           manifest
           Proofs
           ,
           and
           not
           bare
           Suspicions
           or
           Presumptions
           be
           they
           never
           so
           strong
           and
           violent
           ,
           see
           the
           same
           fol.
           in
           the
           upper
           part
           of
           it
           upon
           the
           word
           
             (
             Proveablement
          
           )
           and
           the
           Statute
           of
           the
           5
           of
           Edw.
           6.
           
           Chap.
           11.
           requires
           that
           there
           should
           be
           two
           Witnesses
           to
           prove
           the
           Crime
           ,
           so
           that
           if
           there
           be
           but
           one
           Witness
           ,
           let
           him
           be
           never
           so
           credible
           a
           Person
           ,
           and
           never
           so
           positive
           ;
           yet
           if
           there
           be
           no
           other
           Proof
           ,
           the
           Party
           ought
           to
           be
           found
           Not
           Guilty
           ,
           and
           those
           two
           Witnesses
           must
           prove
           the
           Person
           guilty
           of
           the
           same
           sort
           or
           species
           of
           Treason
           .
           As
           for
           Example
           ,
           if
           the
           Indictment
           be
           for
           that
           Species
           of
           Treason
           of
           Conspiring
           the
           King's
           Death
           .
           Both
           Witnesses
           must
           prove
           some
           Fact
           ,
           or
           Words
           tending
           to
           that
           very
           sort
           of
           Treason
           ;
           but
           if
           there
           be
           two
           Witnesses
           ,
           and
           one
           proves
           the
           Prisoner
           Conspired
           the
           Death
           of
           the
           King
           ,
           and
           the
           other
           Witness
           proves
           the
           Conspiring
           to
           do
           some
           other
           sort
           of
           Treason
           ,
           this
           comes
           not
           home
           to
           prove
           the
           Prisoner
           guilty
           upon
           that
           Indictment
           ,
           for
           the
           Law
           will
           not
           take
           away
           a
           man's
           Life
           in
           Treason
           upon
           the
           Testimony
           and
           Credit
           of
           one
           Witness
           ,
           it
           is
           so
           tender
           of
           a
           man's
           Life
           ,
           the
           Crime
           ,
           and
           the
           Forfeitures
           are
           so
           great
           and
           heavy
           .
        
         
           ☞
           And
           as
           there
           must
           be
           two
           Witnesses
           ,
           so
           by
           the
           Statute
           made
           in
           the
           13th
           year
           of
           His
           now
           Majesty
           ,
           Chap.
           the
           1
           st
           .
           (
           Intituled
           for
           the
           Safety
           of
           His
           Majesties
           Person
           )
           those
           two
           Witnesses
           must
           not
           only
           be
           Lawful
           ,
           but
           also
           Credible
           Persons
           .
           See
           that
           Statute
           in
           the
           5
           th
           Paragraph
           ,
           and
           the
           Prisoner
           must
           be
           allowed
           to
           object
           against
           the
           Credit
           of
           all
           ,
           or
           any
           of
           the
           
           Witnesses
           ;
           and
           if
           there
           be
           but
           one
           Witness
           of
           clear
           and
           good
           credit
           and
           the
           rest
           not
           credible
           ,
           then
           the
           Testimony
           of
           those
           that
           are
           not
           credible
           must
           go
           for
           nothing
           by
           the
           Words
           and
           Meaning
           of
           this
           Statute
           :
           See
           the
           Statute
           .
           Now
           were
           I
           a
           Iury-Man
           ,
           I
           should
           think
           no
           such
           Witness
           a
           credible
           Witness
           ,
           as
           should
           appear
           either
           by
           his
           own
           Testimony
           ,
           or
           upon
           proof
           made
           by
           others
           against
           him
           to
           have
           been
           
             Particeps
             Criminis
          
           ,
           for
           that
           proves
           him
           to
           be
           a
           bad
           ,
           and
           consequently
           not
           so
           credible
           a
           man
           ;
           especially
           if
           it
           can
           appear
           the
           Witness
           has
           trapann'd
           the
           Prisoner
           into
           the
           committing
           of
           the
           Crime
           .
           Then
           the
           Witness
           will
           appear
           to
           be
           guilty
           of
           a
           far
           higher
           Crime
           then
           the
           Prisoner
           ,
           and
           therefore
           ought
           not
           to
           be
           believed
           as
           a
           credible
           Witness
           against
           the
           Prisoner
           ,
           for
           he
           is
           a
           credible
           Witness
           that
           has
           the
           credit
           of
           being
           a
           good
           and
           honest
           Man
           ,
           which
           a
           Trapanner
           cannot
           have
           ,
           and
           this
           Trapanning
           proves
           withal
           ,
           that
           the
           Trapanner
           did
           bear
           a
           Spight
           and
           Malice
           against
           the
           Person
           Trapanned
           ,
           and
           intended
           to
           do
           him
           a
           mischief
           ,
           and
           designed
           to
           take
           away
           his
           Life
           .
           Shall
           such
           a
           one
           be
           a
           credible
           Witness
           ,
           and
           be
           believed
           against
           him
           ?
           God
           forbid
           .
        
         
           ☞
           Then
           again
           ,
           It
           cannot
           but
           be
           believed
           that
           such
           Persons
           as
           have
           been
           guilty
           of
           the
           same
           Crime
           ,
           will
           out
           of
           a
           Natural
           Self-love
           be
           very
           forward
           and
           willing
           to
           swear
           heartily
           and
           to
           the
           purpose
           ,
           in
           order
           to
           the
           Convicting
           of
           others
           ,
           that
           they
           may
           by
           this
           Service
           merit
           their
           Pardon
           ,
           and
           save
           their
           own
           Lives
           .
           And
           for
           this
           reason
           are
           not
           so
           Credible
           Witnesses
           ,
           such
           as
           the
           Statute
           of
           the
           13
           of
           Car.
           2.
           does
           require
           .
           Read
           over
           the
           whole
           Chapters
           of
           Sir
           
             Edward
             Coke
          
           of
           High
           Treason
           ,
           and
           of
           Petty
           Treason
           ;
           for
           in
           this
           latter
           of
           Petty
           Treason
           there
           is
           much
           matter
           that
           concerns
           High
           Treason
           .
        
         
           I
           wish
           with
           all
           my
           Soul
           ,
           and
           I
           humbly
           and
           heartily
           pray
           to
           Almighty
           God
           ,
           that
           these
           Gentlemen
           that
           have
           given
           so
           great
           proof
           of
           their
           Love
           to
           the
           True
           Religion
           ,
           and
           of
           the
           just
           Rights
           and
           Liberties
           of
           their
           Country
           ,
           and
           of
           their
           Zeal
           against
           Popery
           ,
           may
           upon
           their
           Tryal
           appear
           Innocent
           ,
           I
           am
           so
           satisfied
           of
           their
           great
           worth
           ,
           that
           I
           cannot
           easily
           believe
           them
           guilty
           of
           so
           horrid
           a
           Crime
           .
           I
           pray
           God
           to
           stand
           by
           them
           in
           the
           time
           of
           their
           distress
           ;
        
         
           I
           wish
           I
           might
           have
           the
           liberty
           fairly
           to
           give
           them
           the
           best
           assistance
           I
           could
           ,
           in
           that
           wherein
           I
           might
           be
           any
           way
           capable
           of
           doing
           it
           .
           I
           beseech
           Almighty
           God
           to
           heal
           our
           Divisions
           ,
           and
           Establish
           us
           upon
           the
           sure
           Foundations
           of
           Peace
           and
           Righteousness
           .
           I
           thank
           you
           for
           the
           favour
           you
           have
           done
           me
           ,
           by
           imparting
           some
           Publick
           Affaires
           which
           might
           perhaps
           have
           been
           unknown
           to
           me
           ,
           or
           not
           known
           till
           after
           a
           long
           time
           ,
           for
           I
           keep
           no
           correspondence
           .
        
         
           When
           there
           is
           an
           occasion
           ,
           pray
           oblige
           me
           by
           a
           farther
           accompt
           ,
           especially
           what
           concerns
           these
           Gentlemen
           :
           And
           tho'
           I
           have
           written
           nothing
           here
           but
           what
           is
           Innocent
           and
           Iustifiable
           ,
           yet
           that
           I
           may
           be
           the
           surer
           against
           any
           disadvantage
           or
           misconstruction
           ,
           pray
           take
           the
           pains
           to
           transcribe
           what
           Notes
           you
           think
           fit
           out
           of
           this
           large
           Paper
           ,
           but
           send
           me
           this
           Paper
           back
           again
           inclosed
           in
           an
           other
           by
           the
           same
           hand
           that
           brings
           it
           .
        
         
         
           ☞
           There
           is
           nor
           ought
           to
           be
           no
           such
           thing
           as
           Constructive
           Treason
           ,
           this
           defeats
           the
           very
           Scope
           and
           Design
           of
           the
           Statute
           of
           the
           25th
           of
           Edw.
           3.
           which
           is
           to
           make
           a
           plain
           Declaration
           ,
           what
           shall
           be
           adjudged
           Treason
           by
           the
           Ordinary
           Courts
           of
           Iustice
           ,
           the
           conspiring
           any
           thing
           against
           the
           King's
           Person
           ,
           is
           most
           justly
           taken
           to
           be
           to
           conspire
           against
           His
           Life
           .
        
         
           But
           conspiring
           to
           Levy
           War
           ,
           or
           to
           Seize
           the
           Guards
           is
           not
           conspiring
           against
           the
           King's
           Life
           .
           For
           these
           are
           Treasons
           of
           a
           different
           Species
           .
        
         
           
             Your
             Faithful
             Friend
             and
             Servant
             
               R.
               A.
            
             
          
        
      
       
         
         
           The
           Second
           Letter
           .
        
         
           
             SIR
             ,
          
        
         
           I
           Thank
           you
           for
           the
           unexpected
           Accompt
           you
           gave
           me
           by
           your
           first
           Letter
           ,
           but
           this
           exact
           Narrative
           you
           have
           now
           sent
           me
           of
           the
           Tryal
           of
           the
           Honourable
           Excellent
           Person
           my
           Lord
           Russel
           has
           exceedingly
           obliged
           me
           .
           It
           was
           a
           thing
           I
           much
           desired
           ,
           but
           I
           knew
           not
           from
           what
           hand
           to
           gain
           it
           ,
           for
           I
           was
           a
           little
           impatient
           to
           hear
           what
           could
           be
           prov'd
           of
           so
           foul
           a
           nature
           as
           High
           Treason
           against
           a
           Person
           of
           whom
           I
           had
           ever
           entertained
           a
           very
           high
           esteem
           ;
           and
           tho'
           I
           had
           a
           very
           small
           and
           short
           acquaintance
           with
           him
           ,
           yet
           no
           Man
           that
           has
           known
           any
           thing
           of
           the
           Publick
           Affairs
           ,
           or
           of
           our
           late
           Transactions
           could
           be
           a
           meer
           Stranger
           to
           his
           great
           Worth.
           He
           had
           as
           great
           a
           Name
           for
           a
           true
           and
           honest
           English
           Gentleman
           ,
           and
           for
           good
           Temper
           ,
           and
           Prudence
           ,
           and
           Moderation
           ,
           as
           ever
           I
           knew
           any
           Man
           have
           ,
           and
           was
           generally
           belov'd
           by
           all
           that
           love
           our
           Religion
           and
           Country
           .
           I
           presume
           your
           Relation
           of
           the
           Proofs
           at
           his
           Tryal
           is
           certainly
           true
           in
           every
           part
           ,
           and
           in
           the
           very
           words
           ,
           and
           it
           is
           a
           thing
           that
           might
           be
           had
           by
           many
           hands
           ,
           the
           proceedings
           being
           so
           publick
           ,
           and
           I
           suppose
           deliberate
           :
           Presuming
           it
           to
           be
           true
           ,
           this
           I
           will
           affirm
           ,
           that
           upon
           this
           Evidence
           ,
           both
           that
           against
           him
           ,
           and
           for
           him
           ,
           (
           might
           I
           have
           been
           permitted
           to
           have
           made
           his
           defence
           for
           him
           at
           his
           Tryal
           after
           the
           Evidence
           given
           )
           I
           could
           easily
           have
           satisfied
           any
           equal
           and
           understanding
           Iudicious
           Man
           ,
           that
           my
           Lord
           ought
           to
           have
           been
           acquitted
           ,
           and
           had
           I
           been
           one
           of
           the
           Iury
           that
           try'd
           him
           ,
           I
           make
           no
           doubt
           I
           could
           clearly
           have
           convinced
           all
           my
           Fellows
           (
           if
           they
           were
           Honest
           and
           Indifferent
           .
           )
           that
           they
           ought
           not
           to
           have
           found
           him
           Guilty
           .
           The
           Species
           or
           sort
           of
           High
           Treason
           that
           the
           Witnesses
           inclin'd
           to
           prove
           against
           him
           ,
           was
           a
           Conspiracy
           with
           others
           to
           Leavy
           War
           against
           the
           King.
           
        
         
           The
           two
           first
           Witnesses
           ,
           
             viz.
             Rumsey
          
           and
           Sheppard
           ,
           tho
           what
           they
           say
           may
           raise
           a
           strong
           suspicion
           upon
           my
           Lord
           ,
           and
           make
           it
           probable
           that
           he
           was
           guilty
           ,
           yet
           neither
           of
           them
           do
           come
           home
           and
           close
           to
           the
           Person
           of
           my
           Lord
           Russel
           ,
           as
           they
           do
           (
           I
           confess
           )
           against
           the
           Earl
           of
           Shaftsbury
           ,
           Sir
           
             Thomas
             Armstrong
          
           and
           Ferguson
           .
        
         
           The
           first
           does
           not
           affirm
           ,
           that
           the
           Lord
           Russel
           did
           joyn
           in
           the
           discourse
           ,
           or
           agree
           to
           any
           thing
           in
           the
           Consult
           ,
           but
           only
           says
           ,
           he
           was
           present
           ,
           which
           extends
           no
           farther
           then
           to
           make
           a
           Misprision
           of
           Treason
           ,
           and
           this
           too
           not
           directly
           and
           positively
           as
           Legal
           Proof
           ought
           to
           be
           ,
           to
           convict
           a
           Man
           of
           Treason
           ;
           the
           later
           (
           Sheppard
           )
           when
           he
           applies
           what
           he
           swore
           to
           the
           Person
           of
           the
           Lord
           Russel
           only
           sayes
           ,
           
             He
             believes
          
           the
           Lord
           Russel
           was
           there
           at
           that
           time
           when
           the
           discourse
           he
           speaks
           of
           was
           used
           ,
           which
           is
           a
           very
           imperfect
           uncertain
           proof
           ,
           and
           not
           positive
           enough
           ;
           so
           that
           neither
           of
           these
           were
           full
           Witnesses
           .
           As
           to
           the
           Evidence
           given
           by
           the
           Lord
           Howard
           against
           my
           Lord
           Russel
           ,
           it
           is
           strange
           to
           me
           ,
           (
           as
           the
           Evidence
           is
           stated
           )
           that
           any
           Credit
           should
           be
           given
           to
           it
           ,
           that
           he
           should
           be
           believed
           against
           those
           Execrations
           ,
           
           that
           (
           it
           seems
           )
           he
           had
           so
           solemnly
           ,
           and
           so
           lately
           used
           to
           the
           contrary
           of
           his
           Evidence
           :
           especially
           when
           by
           giving
           this
           Evidence
           ,
           he
           must
           merit
           his
           own
           Pardon
           ,
           and
           save
           his
           own
           Life
           ,
           which
           extreamly
           takes
           off
           from
           the
           credit
           and
           weight
           of
           his
           Evidence
           .
        
         
           What
           Mr.
           West
           says
           ,
           in
           rference
           to
           my
           Lord
           Russel
           ,
           was
           but
           bare
           opinion
           and
           hear-say
           ,
           and
           is
           no
           proof
           at
           all
           in
           Law
           ;
           so
           that
           instead
           of
           two
           plain
           ,
           direct
           ,
           manifest
           ,
           and
           positive
           and
           two
           credible
           Witnesses
           as
           the
           Law
           requires
           in
           Treason
           ,
           here
           is
           not
           in
           my
           opinion
           so
           much
           as
           one
           positive
           Credible
           Witness
           .
           The
           Lord
           Howard
           (
           as
           your
           Case
           and
           Narrative
           states
           it
           )
           is
           not
           credible
           ,
           though
           direct
           and
           positive
           .
           None
           of
           the
           other
           three
           are
           positive
           ,
           though
           more
           credible
           .
           In
           the
           Statute
           of
           the
           25th
           of
           Edward
           the
           Third
           of
           Treasons
           ,
           the
           word
           
             (
             Proveablement
          
           )
           as
           Sir
           
             Edward
             Coke
          
           observes
           upon
           it
           ,
           in
           his
           Third
           Institutes
           ,
           fol.
           12.
           imports
           direct
           and
           manifest
           proofs
           ,
           not
           presumptions
           and
           conjectures
           ,
           and
           (
           as
           may
           be
           added
           )
           not
           probabilities
           ;
           and
           so
           the
           words
           
             (
             per
             overt
             fact
          
           )
           do
           (
           as
           he
           observes
           )
           strengthen
           that
           sence
           of
           the
           word
           
             (
             Proveablement
          
           )
           and
           the
           Act
           of
           Treasons
           made
           since
           this
           Kings
           time
           ,
           requires
           there
           should
           be
           two
           credible
           Witnesses
           .
           Now
           ,
           tho'
           the
           Lord
           Howard
           was
           not
           by
           the
           Evidence
           offer'd
           against
           him
           by
           the
           Lord
           Russel
           utterly
           disabled
           from
           being
           a
           Witness
           ,
           yet
           I
           will
           be
           bold
           to
           say
           ,
           it
           made
           him
           no
           credible
           Witness
           in
           this
           Case
           .
           That
           the
           Lord
           Russel
           made
           no
           use
           of
           these
           things
           in
           his
           Defence
           ,
           though
           a
           man
           of
           Parts
           ,
           is
           no
           wonder
           to
           me
           ,
           the
           ablest
           Man
           under
           that
           Terrour
           ,
           and
           upon
           so
           speedy
           a
           proceeding
           ,
           and
           where
           it
           is
           impossible
           to
           be
           so
           composed
           and
           free
           from
           distraction
           ,
           may
           easily
           pass
           by
           many
           just
           advantages
           ,
           which
           a
           stander
           by
           with
           less
           abilities
           might
           quickly
           have
           apprehended
           .
           I
           am
           far
           from
           rflecting
           upon
           the
           Court
           that
           Try'd
           him
           ,
           this
           matter
           that
           I
           observed
           ,
           rested
           principally
           upon
           the
           Iury.
           And
           he
           is
           found
           Guilty
           and
           Condemn'd
           ,
           and
           it
           may
           be
           before
           this
           comes
           to
           your
           hand
           ,
           put
           to
           Death
           too
           ;
           if
           it
           have
           so
           hapn'd
           (
           as
           possible
           it
           may
           )
           that
           the
           Earl
           of
           Bedford
           ,
           and
           his
           other
           great
           Relations
           have
           prevail'd
           with
           the
           King
           for
           a
           respit
           of
           the
           Execution
           ,
           I
           wish
           and
           heartily
           beg
           of
           Almighty
           God
           ,
           that
           these
           Considerations
           may
           yet
           be
           made
           use
           of
           to
           the
           King
           ,
           (
           with
           whom
           it
           then
           rests
           )
           as
           
             Tabula
             post
             Naufragium
          
           ,
           to
           save
           the
           Life
           of
           this
           Noble
           Lord.
           Much
           more
           then
           this
           may
           be
           said
           ,
           were
           there
           such
           an
           opportunity
           before
           the
           King
           ,
           (
           and
           I
           so
           intend
           it
           and
           no
           otherwise
           )
           and
           if
           I
           might
           be
           any
           ways
           serviceable
           in
           it
           ,
           I
           would
           come
           up
           to
           London
           bare-foot
           ,
           rather
           then
           neglect
           so
           good
           an
           Office.
           And
           I
           ever
           thought
           it
           a
           severity
           in
           our
           Law
           ,
           that
           a
           Prisoner
           for
           his
           Life
           is
           not
           allowed
           the
           assistance
           of
           a
           grave
           and
           prudent
           Lawyer
           ,
           or
           some
           other
           friend
           to
           make
           his
           defence
           for
           him
           ,
           even
           as
           to
           matter
           of
           fact
           ,
           as
           well
           as
           to
           Law.
           I
           know
           't
           is
           said
           ,
           the
           Court
           is
           of
           Councel
           for
           the
           Prisoner
           ,
           but
           for
           my
           part
           ,
           I
           should
           never
           desire
           to
           depend
           upon
           that
           onely
           .
           I
           know
           what
           this
           is
           by
           experience
           .
           If
           the
           Case
           be
           in
           any
           part
           of
           it
           mistaken
           ,
           I
           have
           lost
           all
           my
           observations
           ,
           and
           beg
           your
           pardon
           for
           all
           this
           trouble
           ;
           it
           is
           out
           of
           the
           great
           Honour
           and
           Zeal
           I
           have
           for
           that
           good
           Lord
           ,
           but
           the
           Narrative
           you
           give
           is
           very
           ably
           and
           well
           composed
           ,
           and
           in
           very
           good
           Method
           ,
           and
           I
           think
           could
           not
           have
           been
           better
           done
           ,
           which
           inclines
           me
           to
           think
           it
           very
           true
           also
           .
           I
           could
           be
           contented
           the
           Earl
           of
           Bedford
           (
           to
           whom
           I
           am
           known
           )
           might
           have
           the
           view
           of
           this
           Letter
           ,
           if
           it
           come
           not
           too
           late
           ,
           and
           may
           be
           thought
           of
           any
           use
           ;
           I
           heartily
           thank
           you
           for
           your
           favour
           ,
           which
           obliges
           me
           to
           be
           ,
        
         
           
             Your
             Faithful
             Friend
             and
             Servant
             ,
             
               R.
               A.
            
             
          
           
             
               Iuly
               21.
               1683.
               
            
          
        
      
    
     
       
         
         
           A
           DEFENCE
           Of
           the
           Late
           Lord
           Russel's
           Innocency
           ,
           By
           way
           of
           Answer
           or
           Confutation
           of
           a
           Libellous
           Pamphlet
           ,
           INTITULED
           ,
           An
           ANTIDOTE
           against
           POYSON
           .
        
         
           1.
           
           THE
           Pamphlet
           stiles
           it self
           
             An
             Antidote
             against
             Poyson
          
           ,
           but
           it
           is
           so
           far
           from
           deserving
           that
           Title
           ,
           that
           it
           may
           be
           truly
           said
           ,
           
             That
             the
             Antidote
             it self
             is
             the
             rankest
             Poyson
             .
          
        
         
           We
           read
           in
           History
           that
           the
           Noble
           Emperour
           called
           Henry
           of
           Luxenburgh
           was
           poysoned
           in
           the
           Sacrament
           ,
           and
           Pope
           Victor
           was
           poysoned
           in
           receiving
           of
           the
           Chalice
           :
           Who
           could
           have
           suspected
           such
           horrid
           Villany
           in
           the
           Administration
           of
           such
           sacred
           and
           solemn
           Rites
           ?
           who
           could
           without
           Horrour
           and
           Amazement
           contrive
           the
           mingling
           of
           a
           deadly
           Poyson
           with
           the
           Bread
           and
           Water
           of
           Life
           ?
           to
           make
           those
           consecrated
           Elements
           (
           which
           ought
           to
           be
           the
           Savour
           of
           Life
           unto
           Life
           )
           to
           be
           the
           dreadful
           Messengers
           of
           sudden
           Death
           ?
           Surely
           had
           those
           outward
           Signs
           been
           changed
           into
           the
           very
           Body
           and
           Bloud
           of
           the
           Lord
           of
           Life
           ,
           (
           as
           they
           that
           acted
           in
           those
           Execrable
           Villanies
           profess'd
           to
           believe
           )
           there
           must
           needs
           have
           been
           a
           Miracle
           wrought
           in
           altering
           likewise
           the
           Substance
           and
           malignant
           Nature
           of
           those
           Poysons
           ,
           that
           they
           should
           not
           have
           wrought
           those
           direful
           Effects
           ;
           which
           yet
           they
           did
           .
           There
           appears
           the
           like
           wicked
           Policy
           in
           the
           Author
           of
           this
           Pamphlet
           ,
           who
           under
           pretence
           of
           prescribing
           an
           Antidote
           against
           Poyson
           ,
           under
           the
           Vizar
           and
           Disguise
           of
           preventing
           Mischief
           ,
           does
           most
           deceitfully
           infuse
           the
           worst
           of
           Poysons
           ;
           and
           labours
           to
           intoxicate
           a
           whole
           Nation
           .
           This
           Author
           would
           have
           the
           World
           believe
           that
           the
           Noble
           Lord
           in
           the
           composing
           of
           his
           Speech
           was
           wholly
           govern'd
           by
           his
           Confessor
           ,
           and
           that
           the
           Compiler
           of
           it
           was
           infected
           with
           those
           Doctrines
           ,
           that
           the
           Northern
           Climate
           has
           of
           late
           furnished
           us
           with
           .
           The
           very
           Language
           and
           Spirit
           of
           Coleman
           !
           Sure
           the
           Soul
           of
           Coleman
           is
           by
           Transmigration
           enter'd
           into
           this
           Author
           ;
           it
           is
           easie
           to
           guess
           at
           his
           Religion
           .
           He
           supposes
           all
           that
           were
           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
           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
           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
           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
           .