THE LATE Lord Russel's CASE, WITH OBSERVATIONS UPON IT.  
Written by the Right Honourable HENRY Lord De la Mere.  
LONDON, Printed for Awnsham Churchill at the Black Swan at Amen-Corner, in Ave-Mary-Lane, MDCLXXXIX.   

THE CASE OF William Ld. Russel, Tried for HIGH TREASON, July 13. 1683.  
And afterwards EXECUTED for the same.  
THE Indictment is very long: But for substance it is, for Conspiring the Death of the King, and intending to Levy War, and to that end to Seize the Guards: For the Indictment concludes, and the Guards for the preservation of the person of our said Lord the King, to seize, and destroy, against the Duty of his Allegiance, against the Peace, &c, and also against the Form of the Statutes, etc.  
Those that gave their Evidence against the Prisoner, were Romsey, Sheppard, and my Lord Howard.  
The Overt Act of Conspiring the Death of the King, is Consulting to Levy War, and to that intent to Seize the Guards. So that the Design to seize the Guards, is the Overt Act assigned of Conspiring the King's Death.  
The Quaere then is, Whether my Lord Russel was Guilty of High Treason within the Statute 25 Ed 3. (for upon that Statute he was tried) And I conceive he was not; and therefore his Attainder ought to be Reversed.  
But before I speak to the Matter of Law, on which I shall chiesly insist, I must desire you to observe some Inconsistencies, and Contradictions in the Evidence.  
First, That none of these persons had their Pardons: Which was otherwise in the Popish Plot: For no person gave Evidence before he had his Pardon. Therefore being unpardoned, tho' they might be Legal, yet not Credible Witnesses: Both which are required by the Statute. For whilst the Fear of Death attends a man, he is thinking how he may save his Life, rather than to speak nothing but the Truth; and he that is so base to purchase his own Life at the price of another man's, will be sure not to speak less than the Truth.  
Next, I observe how the King's Counsel, by the Questions they put to the Witnesses, did lead, if not, in a manner, Dictate to them what to say.  
And I take notice, that my Lord Howard, who must be supposed to have a full Knowledge of the Plot, yet never says a word of their Intent to seize the Guards, which was the principal thing in the Evidence of Rumsey and Sheppard: For had there been any such Intent, it is strange that my Lord Howard, who had brought in so many other things by Head and Shoulders, should forget so remarkable a piece of Evidence, and so home as that.  
This is only in general. But in Particular, do but observe Rumsey's Evidence.  
He says, he was not there above a quarter of an hour; and whilst he was there, two things were debated, and resolved, and a third thing discoursed. Surely they were things which they did not much value; or else they were men of wonderful dispatch, that could receive, and debate the Message which he brought from my Lord Shaftsbury, then Debate the Matter of the Guards, and come to a Resolution in both; and afterwards Discourse about the Declaration; and all this in a quarter of an hour; or else Rumsey is perjured.  
In the next place it is very remarkable, where he says, he was not certain whether he was at another Meeting, or else heard Mr. Throgmorton make a Report of another Meeting to my Lord Shaftsbury. And again he says, that he was not certain whether he did hear something about a Declaration, when he was at that meeting; or that Mr. Ferguson did report it to my Lord Shaftsbury, that they had debated it. To say no more of it, It is very strange, that a man cannot be certain whether he knows a thing of his own Knowledge, or by Hear-say. And if in so plain matters as those, he spoke on uncertain Knowledge, it is not unreasonable to suppose that he might as easily be mistaken in the rest of his Evidence.  
Then, as to Sheppard, He first swears point blank, that my Lord Russel was at two Meetings at his House. But being pressed by my Lord Russel, he can remember but one; and when that was, he could not recollect himself, though not above eight or nine Months before, as he confesses. It's strange that a man should be so much in a wood about so remarkable a thing. But surely it must be hard upon the Prisoner, that the time could not be better fixed: for if Witnesses may give Evidence at that rate, it will be much ado for any Prisoner to make his Defence.  
As to my Lord Howard, his Evidence is so notorious that I need say nothing of it, but refer you to the Printed Trial for your Satisfaction. Only I will take notice of one thing which he says, to reconcile what he said to my Lord of Bedford, my Lord Anglesey being present, and what he afterwards swore against my Lord Russel at his Trial. Says he, Your Lordship knows that every man that was committed, was committed for a Design of Murdering the King. Now I laid hold on that part: For I was to carry my Knife close between the Paring and the Apple; and I did say, that if I were an Enemy to my Lord Russel, and to the Duke of Monmouth, and were called to be a Witness, I must have declared in the presence of God and Man, that I did not believe either of them had any Design to Murder the King.  
As to the first, What he said to my Lord of Bedford, was as to the Plot in General, and if to any particular part of it, it must be as to the Insurrection: For there was to be my Lord Russel's Province.  
2ly. My Lord Howard knew that all that were committed, their Commitments run as well for Levying of War, as for Conspiring the King's Death. So that his Lordship must find out something that will reconcile himself to himself, better than his Knife betwixt the Apple and Paring, or else it will follow, That he solemnly said one thing and swore another.  
I have but only touched these things; because I hasten on to the matter of Law. For tho' it were without contradiction, that every thing sworn against my Lord Russel were true, yet it did not amount to High-Treason.  
First, Because a Conspiracy to Levy War, is not an Overt Act of Imagining the Death of the King.  
In arguing of this, I will not meddle at all with the Original of Allegiance; nor the true Nature of it, neither make any Discourse, that heretofore it was a less Offence to Plot against the King's Life; than against the Government; but I will leave those sore places, and endeavour to prove my Point, by considering these five things.  
First, Whether any Court, the Parliament excepted, can try a Man upon an Indictment for High Treason, that is grounded upon the Common Law?  
Secondly, To what end and intent the Statute 25 Ed. 3. cap. 2. was Enacted?  
Thirdly, Whether [Conspiring the Death of the King,] and [Levying of War] are Distinct Species of Treason?  
Fourthly, Whether every Law is not to be construed most strictly, to restrain the Mischief against which it was Enacted?  
Fifthly, What is the true meaning, and signification of being Provably Attainted, by Overt Deed?  
1. As to the first, It seems to be out of doubt, that at this day there can be no such thing as an Indictment at Common Law for High Treason; though for other things there may: Because there is no Precedent of it, since the Statute 25 Ed. 3. For nothing is more common, than for every Prisoner that is Arraigned for High Treason, to Demand, upon what Statute he is Indicted. And the Court, or King's Counsel do tell him the particular Statute. Besides, every Impeachment before the Lords in Parliament, is grounded upon some Statute: And if so, à fortiori, no inferior Court can Try a Prisoner upon an Indictment for High Treason grounded upon the Common Law. For the Law, which greatly delights in Certainty, especially in case of Life, will not allow of an Indictment at Common Law: Because no Issue can be joined upon it by reason of the Uncertainty.  
As to the 2d. viz. To what End, or Intent the Statute 25 Ed. 3d. was made? I thus anser,  
Edward the 3d. was a Victorious Captain, and potent Prince, whereby he became very Renowned. But that which made his Name the Greater, and his Fame the more lasting, was those good and wholesome Laws which were Enacted in his time; by which he restored and beautified the Government, that had been defaced, and almost destroyed, by the Illegal proceed during his Father's Irregular Reign. And of all the Oppressions under which the Nation Groaned, there was none that lay heavier upon the People, than the Extravagant Licence which the Judges took in the Interpretation of Treason. And this appears by the particular, and universal Joy expressed by the whole Land at the making of the said Statue. For tho' he called Parliaments very frequently, and none of them proved abortive of good Laws; yet that Parliament which was held in the 25th year, did more than any of the rest. And of all the beneficial Laws that were then Enacted, the 2d. Statute whereby Treason was reduced to certainty, gave the People the greatest cause to lift up their Heart and Voice in Thankfulness to God, and the King; because the Jaws of that devouring Monster were broken, which had torn in pieces so many Families, and threatened Destruction to the rest. So that this Statute was made to restrain, and limit the Judges from calling any thing Treason, that might be so by Inference, or Implication, and only to judge upon that which is Literally so within that Statute. For it is there provided, That if any such like Treasons shall come before any of the Justices, that they must stay, without going to Judgement, till the Cause be declared before the King and his Parliament. And all Subsequent Statutes of Treason, are all as so many Confirmations of this Statute. For they had been needless, if the Judges could have called any thing Treason, but what is Literally such within that Statute. And the Statute itself had been made to no purpose, if it had not strictly restrained the Judges. And my Lord Chancellor Nottingham, was of Opinion, that even the Lords in Parliament could not proceed upon an Indictment for High Treason, unless the Fact therein alleged were first Declared by some Statute to be Treason.  
3. As to the third thing, It never was, nor ever will be denied that Compassing the Death of the King, and Levying of War, are two distinct Species of Treason; unless all Treasons are of the same Kind. But if there are several sorts of Treasons, than it will follow that these are also Distinct: Because in every Statute of Treason which mentions Conspiring the death of the King, and Levying of War, they are named Distinctly. Besides, they are different in the manner of Proof: For that which is necessary to prove the one, does in no sort prove the other. And furthermore, the one may be Effected, and the other never so much as intended, or Designed. As for Example, the King may be Murdered, and no War Levied, nor Intended. And moreover, in the one Case it is Treason, as well to Intent as to Execute it, without tacking it to any other thing: But it is not so in the other. For it is in itself, and abstractly from every thing else, Treason, as well to Compass the King's Death, as to Kill him. But an Intention to Levy War, and doing all things in order to it, is not Treason, unless the War be Levied, Except by Implication, or Inference. And I am persuaded that the want of observing that these are distinct Species of Treason, has been the occasion of that Mistake of calling a Conspiracy to Levy War, an Overt Act of Conspiring the King's Death.  
4. As to the fourth, No doubt, every Statute is to be construed most strictly to restrain the Mischiefs against which it was Enacted. For the uninterrupted Course of all Judgements, and Resolutions have been accordingly; and nothing can more directly thwart Common Sense, than to make it otherwise. And therefore if the Statute be absolute, the more forcibly it is construed to restrain that Mischief, the more truly is the Intent of that Statute pursued. For how shall any Evil be suppressed, if the Remedy must be applied but by halves? The Law than would be rather a Mockery, than a Means to redress the Evil, if it shall not be taken most strongly against it. Either it is, or it is not a Restraint of the Grievance complained of. If it is not, why was it made? If it is, why must it not be understood in that Sense, whereby the Mischief, or Evil may be more Effectually suppressed and prevented?  
5. As to the fifth, The Answer will be best understood, by considering, first the signification of the two words a part, viz. Provably and Overt.  
Provably signifies to prove, or make good by Evidence, Argument, Reason, or Testimony.  
Overt has all these significations, Open, Clear, Plain, Apparent, Manifest, Notorious, Evident, Public, Known, Undoubted, Certain, Perspicuous.  
These then being the significations of those Words, what can follow more naturally than that, To be Provably Attainted by Overt Deed, is, that the Fact must not only be Direct, Apparent, and Notorious to the Point, but it must also be proved, Clearly, Evidently, Plainly, and Perspicuously, void of all Doubt, or Obscurity? And those two words being taken together, do the better expound each other, and seem to be choice words, and words of Art, culled out by the Penners of that Statute, as the most expressive to exclude all Implications, or Inference, that might be made in Case of Treason.  
These things being premised, which are as easily proved, as alleged, there will remain very little, besides Shifts, and Evasions, to prove, that a Conspiracy to Levy War, is an Overt Act of Compassing the King's Death.  
The things that are chief, and commonly urged, to maintain that Opinion, are these two.  
First, It would be of dangerous Consequence, if a Conspiracy to Levy War, may not be interpreted an Overt Act of Compassing the King's Death: Because there is no means left to prevent it, and the mischief attending it, when the War is Levied.  
Secondly, If a War be Levied, the Death of the King must needs be intended, and will certainly ensue, if the Rebels prevail.  
In answer to these, it may be replied, That the one of them is but a bare Objection, and the other no substantial Argument because it begs the Question; which is surely a feeble way of Arguing.  
But I will give a more particular Answer to them. And it will be more proper to begin with the second; because in speaking to it, the other will in a great measure receive an Answer.  
Now as to the Second, It may be observed, that the Death of the King is made so certain, and necessary a consequence of Levying of War, that by reason of that certainty, a Conspiracy to Levy War, is an Overt Act of Compassing the King's Death. If therefore the Certainty will not hold, but that many Cases may be put, and instances produced wherein the King's Death is not intended, nor did ensue upon the prevailing of the Party, then is the whole weight and strength of the Argument of no effect.  
The Hugonots in France have heretofore assembled in Arms: And tho' they repeated it several times, yet on which of those Occasions does it appear, either by the Cause of their coming together in that manner, or by the Effect of it, that it was levelled at the King's Life? No, the Cause of their Rising in Arms was for the Asserting of their Religion, and just Rights. For as soon as their reasonable Demands were satisfied, they laid down their Arms more willingly than they took them up; neither did they attempt any thing against the King's Life, when he was in their power; but after they were answered in those things to which they had Right, both by the Laws of Nature, and the Government, immediately they returned home in peace, and upon all other occasions proved the most firm, and Loyallest Subjects of all other in that King's Dominions, and so this present King of France must testify for them, if he will do them right.  
If the Protestants in France should at this time rise in Arms upon so just a provocation as now they have, it would be senseless to suppose, that they Levied the War with a principal Design to Murder the King, and not for the Defence of themselves and just Rights, which are so inhumanely, and against all Law, and Justice, at this time Invaded, and Ravished from them. Story is full of like Cases and Instances to this. But to speak more particularly to England, What was the Baron's Wars? The Answer to which must be, That they took up Arms to Assert their Rights, and Liberties, which the King, contrary to his Oath, withheld from them, and tho' it lasted near forty years, yet the King's Death was never intended, nor his Life in any danger. For as soon as their just Demands were answered, they put up their Swords, and every man returned home, and prayed for the Life of the King. And out of English Story, what one instance can be produced, where the Cause of War was Declared to be against the King's Life; or if the party prevailed, the King was put to Death by their general Consent and Approbation? For tho' it be true, that there are some Instances where they have been Murdered after the War; yet it is also as true, that it was by private Assassination, and not by the Consent and Privity of those who Levied the War. For all those who were concerned in the Murder, were afterwards Condemned and Executed for it, as Traitors. As in the Case of Edw. 2. and Ric. 2.  
As for that of Charles the First, which is so much pressed and urged, tho' the Cause of War had been expressly against his Life; yet as one Swallow does not make a Summer; so neither does one Precedent prove the Point. But besides, in that Case of Charles the First, To infer from thence, that the King's Death is principally intended by Levying of War, is altogether as weak an Argument, as to say, because a thing falls out by Accident, therefore that very thing was the principal Design, and Aim of the whole Action. For in that War those who first took up Arms, did it to oppose the King's Arbitrary Practices: and though he was afterwards put to Death; yet it was altogether against their consent or desire; and most of the Army was against it, and would have prevented it, but that they were at that time so broken into Factions, and Parties, that they durst not trust one another. For after that Tragedy was acted, those who first took up Arms, immediately upon it laid them down, and were afterwards the chief Instruments of the late King's Restoration.  
But if the King's Death be the Principal thing intended by Levying of War, to what purpose is the War Levied? Cannot the King be taken off more easily by Poison, or a private Assassination? To the effecting of which Opportunity cannot be wanting; and so with more certainty the End is Obtained, and a less hazard run in the Execution, than could be done by a War; except those who Levy the War to kill the King, are not content with the Murder of him, unless they cut the Throats of all those that would defend him. Indeed to do it by an open War, rather than by Poison, or a private Assassination, is the more generous way; for they give him fair warning to look to himself; like a Noble Enemy that scorns to kill his Adversary basely. 'Tis indeed to go round about, for the nearest way. Therefore a War when Levied, must be for some other Intent than to take away the King's Life: Since Englishmen, if they enjoy their Properties, no Prince is so Great, and Happy in the Heads, Hearts, Hands, and Purses of his Subjects, as an English King.  
But yet allowing that upon every War levied, the Death of the King would certainly ensue, if the Rebels prevail; yet this Question does naturally arise, viz. Where is that Statute which does in express terms say, That a Conspiracy to Levy War is Treason? For if it be not so expressly, and literally, within some Statute, than it is a Constructive Treason, and consequently no such Treason, as upon which the Judges may proceed, if the Statute of the 25th. Ed. 3d. was made to any purpose. For that Statute restrains all Constructive Treason, or none. But if the Judges may in any one Case make a Constructive Treason, they may do it in all: And so we are left in the same uncertainty about Treason, as we were before that Stat. 25th. Ed. 3d. was made.  
If the Judges might judge upon Constructive Treason, yet it seems to be a far-fetch Construction to make a Conspiracy to Levy War, an Overt Act of Compassing the King's Death. For this is not to be Provably attainted by Overt Deed.  
First, because the Conspiring the Death of the King, and Levying of War are two distinct Species of Treason; and therefore it would be very unnatural, and too much forced to join these rogether, and as it were, to make them one, and the same thing, that are so different, and divers, not only in the Manner, and Matter of Proof, but also in themselves.  
For then, Secondly, A Conspiracy to commit any other Treason, may also be called an Overt Act of imagining the King's Death: which was never yet pretended.  
Thirdly, A Conspiring of any one Treason may then be an Overt Act of any other Treason.  
Fourthly, Any other Criminal Act may then as well be called, an Overt Act of Conspiring the King's Death.  
Fifthly, This is to make a Conspiracy to Levy War, Treason in itself. For there is very little difference between calling a thing Treason in itself, and to make it an Overt Act of some Treason within the Statute.  
Sixthly, Because a Conspiracy to Levy War was not Treason at Common Law.  
Seventhly, The Statutes of 23d. of Eliz. and the 1st. and 3d. Jac. 4th. which make it High Treason to Reconcile any to the Church, or See of Rome, or to be so Reconciled, were Enacted to no purpose, if a Conspiracy to Levy War, is an Overt Act of the Compassing the King's Death. For what can tend more plainly, and directly to Levy War, than to persuade the People to renounce their Allegiance to the King; and to Promise Faith, and Obedience to some other Power? So that these, and all other Statutes concerning Treason, which have been made since the Statute 25th. Ed. 3d. are as so many Confirmations of it; and consequently prove that the Judges can call nothing Treason, but what is Literally such, within that, or some other Statute.  
Eightly, My Lord Cook says, that Conspiracy to Levy is not Treason unless the War be Levied in facto. And questionless his Opinion is very good Law: Because in many Cases it is not Treason to Levy War: & à fortiori, a Conspiracy cannot. For look into the Statute, Queen Mary 12. and there you will find several things provided against, which are plainly, and directly a Levying of War; and yet they are declared to be but Felony.  
But it may be Objected, that by Stat. 3. and 4. Ed. 6. the Offences mentioned in 1 Queen Mary were made Treason. It is very true: Yet it does not alter the Case, but rather prove the Point. For First, they being made Treason by Statute, proves that it was not so in itself: Secondly, because in the two next succeeding Reigns it is declared to be but Felony. For the Statute of Queen Mary is confirmed by 1 Eliz. 16. And thereupon the Argument is the stronger; because those two Queens were of different Religions. Thirdly, because when a thing is declared an Offence by Act of Parliament, and is afterwards made a less Offence by Statute, it proves that it was not so great in itself; but that the necessary Circumstances of Time and Affairs required it should then be such.  
But the Case is yet Stronger, because in some Cases it may be but a Trespass to Levy War; as it was in the Case of my Lord Northumberland, 5 Hen. 4th. He did actually raise Forces, and such as were taken to be a Levying of War: For which he was questioned before the Lords, and tried for High Treason. But tho' the Lords did find the Fact; yet they adjudged it but a Trespass; because the Powers raised were not against the King, but against some Subjects. This Precedent seems to carry great weight in it: First, because it is a Judgement given in the highest Court of Judicature: Secondly, because it was given so soon after the making of the Statute of 25 Ed. 3d. who must be supposed to understand the intent and meaning of that Statute full as well as succeeding Ages.  
The Case of those who Aided Sir John Oldcastle might be also urged; who were Acquitted, because in their Defence, it did appear, that by reason of Fear, and to save themselves, they were constrained to what they did. Which is Ground for another Argument, if there were occasion; because it proves, that the Maxim in Law, Actus non sit reus, nisi Mens sit rea, holds in Case of Treason, as well as in all other Cases. But I think there's no need of it. For if War may be Levied which is neither Treason nor Felony; it must be a very unnatural Construstion of a Conspiracy to Levy War to make it an Overt Act of Compassing the King's Death.  
Thus the Second thing Objected has received a full answer; and likewise the First, in a great Measure. Yet I will add a few words; that no doubt may remain.  
If the consequence on all hands be duly considered, the danger will be found to lie on the other hand. Yet be it as great as can be pretended; it must be remembered, that the Law has settled the Point; and so it must stand, till by the same Authority it be altered. For the Rule in Law is not to be forgot, Nemo Legibus Sapientior. It is pretended that out of a tender regard which the Law and all Subjects ought to have for the King's Life, a Conspiracy to Levy War, is taken to be an Overt Act of Compassing the King's Death: To this it may be answered, by way of question, how comes it about that this Age should have a greater Care of the King's Life, than our Forefathers had? Can it be imagined that they did not understand the nature of the Government, as well as we do? Nor did know of what consequence, to the Public, the Preservation of the King's Life is? Can it be thought that they did not impartially weigh, and consider the consequence on all hands? Yet however let the defects be never so many; seeing it is settled by Law, it cannot be altered, but by the same Power: For if it may, then let the consequences be seriously debated of leaving it in the Breast of the Judges to rectify the mistakes, or defects, be the fictitious or real. For then, when a Turn is to be served, the Law will be sure to be Defective; and so in effect, they shall Legem dare. Treason will then be reduced to a certainty; that is, if the Judges please; otherwise not: There will be then no need of Parliaments: For the Judges shall both declare, and make Law. What will all our Laws signify, though made and penned with all the Wisdom and Caution that a Parliament is capable of, if the Judges are not tied up, and bound by those Laws? It renders Parliaments useless, and sets the Judges above that great Council. They can undo what the other has done. The Parliament chains up some unruly evil, and the Judges let it lose again. But besides, where is this dangerous consequence, as is Objected? Indeed there had been some weight in the Objection, had a Conspiracy to Levy War been wholly left unpunishable. But the Law has provided a punishment commensurate to the Offence: Which though it does not extend to Life; yet is sufficient to deter Men from the Commission of it. Yet if a Conspiracy to Levy War is to be punished in as high a degree, as a War, when Levied, this would be to punish Thoughts, as highly as Deeds; which if it be just, yet is summum jus.  
Mr. Solicitor Finch twittered out two or three imperfect Precedents, viz. that of my Lord Cobham, Dr. Story, and Plunket. These, as they are not altogether to the purpose, so they are so very Modern that no great regard is to be had to them: And they rather prove the Ignorance, or Boldness of those Judges, than that a Conspiracy to Levy War is an Overt Act of Compassing the King's Death. Because the Statute of 25 Ed. 3. has provided, that if any such like Treasons come before the Justice, they must tarry without going to Judgement, till the Cause be showed before the King, and his Parliament. And therefore for those Judges to take upon them to judge upon that which was doubtful, and not literally, nor expressly a Treason, was to assume the Part which the King and Parliament had reserved to themselves. And therefore upon what has been said, this Conclusion will follow, that no Man can (before the Judges) be Convicted of Treason, unless the Fact be expressly and literally Treason within some Statute, and he be thereof provably Attainted by some Overt Deed, and consequently a Conspiracy to Levy War is not an Overt Act of Compassing the King's Death; but a Trespass, or High Misdemeanour: And therefore the judgement against my Lord. Russel was manifestly unjust; and so of Course, it ought to be Reversed.  
If a Conspiracy to Levy War were Treason of itself, or an Overt Act of imagining the King's Death; yet my Lord Russel was not Guilty of High Treason within the Statute of 25 Ed. 3d. because the Overt Act Assigned against him was His being of a Council of Six, to manage an Insurrection, and in order to it, to seize the Guards. For had he Actually seized the Guards, yet it could not be Treason within the Statute 25 Ed. 3d.  
First, Because the Guards are not settled by Act of Parliament, and consequently they are no Legal Force. For the Law has pronounced that all standing Force, other than the Militia, is in terrorem populi, Illegal, and a Grievance. And the Reason of it is clear; because the Law does never Protect, or Countenance any thing that is, or may be, burdensome, or that is useless. And it is so Evident, that in the Pensionary Parliament, this Vote passed in the House of Commons, nemine contradicente. That all standing Force other than the Militia is Illegal, and a Grievance. And though they have the King's Commission, as may be Objected; yet his Commission cannot make that Lawful, that is Illegal; no more than he can tolerate a Riot, or pardon a common Nuisance. For if several Persons were Tried for a Riot, and it manifestly appear upon the evidence to be such, would their producing the King's Commission keep them out of the Compass of the Law? or should those who did Assemble together to suppress them be Guilty of Levying of War, because those other persons had the King's Commission? Therefore if my Lord Russel had Assembled a Force sufficient to seize the Guards, the most that could have been made of it, was to bring it within the Statute of the 1st. Qu. Marry 12. which makes it but Felony. And this being duly compared with the Precedents urged by Mr. Attorney, and Mr. Solicitor, will retort them strongly upon themselves.  
Secondly, It could not be Treason within the Statute, 25 Ed. 3d. because at the time of making that Statute, there was no such thing as the Guards. For the first thing of that sort was the Band of Pensioners which Hen. 7th. set up, in imitation of what he had seen, and learned in France. For in Ed. the 3d 's Time, tho' he was the Third that without interruption, had succeeded to the Crown; yet Succession had not then obtained so sacred a Reputation, as not to stand in need of the People to uphold them in the Throne. And therefore Kings were then too Wise, to do any thing that would be so apparent a Distrusting of the People, as to call in Guards to their Aid. And besides, the constant Wars, either with France, or Scotland, made them stand continually in need of the People's Supplies: And therefore they would be sure cautiously to avoid all things, that might give the Nation occasion of Offence. And nothing could be more distasteful to the People, than to be nosed by a standing Force: which the Law had adjudged to be Illegal, and a Grievance. And therefore, as there was no such things as Guards, at the making of that Statute 25 Edw. 3d. So that Statute cannot be supposed to take notice of them  
Thirdly, If the Guards were Established by Act of Farliament, yet if they were so Established since the 25 of Ed. 3d. my Lord Russel was not within that Statute, because it provided for nothing but what was lawfully in being at the time, when it was made. So that if it were an Offence to seize the Guards, my Lord Russel ought to have been Indicted upon that Statute, which did so make it an Offence. For if a Prisoner is Indicted upon a wrong Statute, and the Evidence proves nothing of that Statute, on which he is Indicted, but comes very home, and point blank to the Statute on which he ought to have been Indicted, he may plead specially to it, and the Court must direct the Jury to bring him in Not Guilty.  
Fourthly, My Lord Russel was not within the Statute 25 Edw. 3d. Because the Indictment concluded falsely; and more falsely than any Indictment that I ever saw or heard of. For it says, [And the Guards for the Preservation of the Person of our said Lord the King, to seize and destroy against the duty of his Allegiance, against the Peace, and also against the Form of the Statutes.] This Conclusion contains in it four Parts, and none of them is true. First, that the Guards are for Preservation of the King's Person. It will be an easier matter to find a World in the Moon, than that the Law has made the Guards a lawful Force, or any Statute that has Established any Force, particularly for the Guard of the King's Person. And tho' the Law had established any such Force; yet it was not done by the 25 Ed. 3. and therefore in this the Indictment concluded falsely.  
The Second thing is this, That to seize and destroy the Guards was against the Duty of his Allegiance. To speak fully to the Nature of Allegiance, would require a long Discourse. But a few words will lay this upon its back. It cannot be denied, that Nature and the Law did nothing in vain. And if so, can it be imagined that the Law would establish such a thing as the Guards, which had made so much a better Provision for the Preservation of the King's Person, even the Duty and Interest of every one of his Subjects? In the next place, Subjection and Protection are Convertible Terms, and therefore if the Subjects do not receive Protection by the Guards, it is not against their Allegiance to seize and destroy them; whereas to seize the Militia is against their Allegiance; because they receive Protection by them. Besides, no man becomes an Offender, till the Law has been promulged so, as that no man can reasonably be supposed to be ignorant of it. Now then, though the King by his Commission might make the Guards such a lawful Force; yet none constat that they are so Commission'd by him. For it has not been published in that due manner and form, as that the Nation can regularly take notice of it. And besides, there is no Record entered, or remaining of it in any Court, or any other Place, whereby the People may come to a certain knowledge of it. Which is also a forceable Argument against the Legality of such a Commission. So that though in other Cases Ignorantia Juris is not allowed; yet in this Case it is a very good Plea, That it was not against my Lod Russel's Allegiance to seize the Guards, though the King's Commission did make them a lawful Force.  
The Third thing is, That it was against the Peace, which is an untrue Conclusion. For it is not against the Peace to seize any Force that is not countenanced by Law. And a Needle may sooner be found in a Cartload of Hay, than any Statute that has Established the Guards. And if the King's Commission can make a Force a lawful Force, then it's hard to say, whether the Rebellion in Ireland, did not act upon sufficient Autjority, since no clear Answer has yet been made to the Commission under the Broad Seal, which the Rebels produced, to justify their Proceed. In the next place, every Treason is against the Peace. But to conclude, because it is againsit the Peace, therefore it is Treason, is neither Law, nor Reason. For every Offence is against the Peace: but every Offence is not Treason. Furthermore, the King's Lawful Commission is not to be opposed in any Case: and the Indictment upon it will run, that it is against the King's Crown, and Dignity, and against the Peace. Therefore to conclude, that it is Treason, is a non sequitur. For it is not Treason in many Cases to Seize and Destroy those that Act by the King's Lawful Commission.  
The Fourth thing is, that it was against the Form of the Statutes. The Statutes thus mentioned must be those Statutes, or at least must comprehend some Statute, that settles the Guards for the Preservation of the King's Person: For the Seizing of the Guards, is the Overt Act assigned of Compassing the King's Death. Now if there be no such Statute, then is this Part of the Conclusion of the Indictment also false. And consequently the Judgement against my Lord Russel ought to be reversed.  
FINIS.