A Justification of the late Act of Parliament for Reversing the judgement against the LORD RUSSEL.  
I AM far from the vanity of thinking I shall be able to be a better Advocate to defend my Lord Russel's Innocence, and consequently the Act for annihilating the Record of his Attainder, than those Learned and Worthy Persons who have already appeared in Print on that account; but the only advantage of this Paper will be, that being of so small a bulk it may be more easily conveyed by the Post all over the Kingdom, and so is intended for those that want the opportunity of reading the more Elaborate Works on this Subject; And perhaps if this Course had been taken of Publishing the Reasons on which the late Resolutions of Parliament were founded, it would have secured a great many People from being poisoned by the Enemies of our Peace and Settlement, who are dissatisfied for want of knowing the Arguments, which determined both Houses in their late Important Consultations.  
It may be surprising to such as shall peruse the Act, and have perused that Noble Lord's trial, to find his Attainder branded for ILLEGAL, when the King's Counsel in that trial do confidently vouch divers Judgments so exactly parallel with his Case.  

The State of my Lord Russel's Case was thus.  
He was Indicted on the Statute 25 Edw. 3. For encompassing the death of the King. The Overt Act( which that Charge in its nature always requires) was 1. A Conspiring to Seize the Guards, 2. Conspiring to Levy War against the King.  
I. I undertake to prove from authentic and Positive Authorities, that neither of these are Legal Overt Acts of imagining the King's Death; and, Secondly, shall, beyond contradiction, refute the Cases quoted by the King's Counsel to maintain the contrary. I might very justly Object against the Evidence itself, not only because it cannot be strained higher than to a Misprision of Treason, but by reason of the Credit and Reputation of the Witnesses, who I think were not so Apostolical in their Lives and Conversations, but that we may without breach of Charity suppose, they would unjustly sand another out of this World, rather than go out of it themselves, which was put to their Election; since it may be remembered, There was no Pardon to be procured till the Drudgery of Swearing was over.  
But though I cannot grant, yet admitting the Evidence to go as far as the King's Counsel carried it, I say Seizing the Guards could not be within the intent of the Statute of Edw. 3. Because that, nor any other Parliament, never intend that Kings will violate the Laws, and that keeping constant Guards is illegal; appears not only from the judgement of this present Parliament, it being one Article of the Instrument of Grievances, but likewise of the Long Parliament of Car. 2d. of whose affection to the Prerogative no man can question. But though the Guards were Lawful, yet the actual Seizing them is( at most) but a constructive Treason, as it may Evidence a Design against the King; and Conspiring to do an Act that was not Treason in itself, but only by construction, I dare affirm was never before pretended.  
II. That Conspiring to Levy War( allowing it proved) is not Treason in itself, nor a sufficient Overt Act to prove the encompassing the King's Death. I will demonstrate from these following Reasons and Authorities. 1st. I shall begin with my Lord Cook, I shall set down his own numerical Words, 3. Inst. fol. 9. Conspiring to Levy War is no Treason, for there must be a Levying War de facto, that is actually. 2. Agreeing with him is my Lord Hales in his Pleas of the Crown, fol. 13. I shall use the same Candour in quoting him as I did in the former, he expresses himself thus in that place where he particularizes what are Overt Acts of imagining the King's Death. Conspiring to Levy War is no Overt Act unless levied, because it relates to a distinct Treason and Conspiracy, or compassing to Levy War without a War de facto ( actually) is no Treason. 3dly, I shall present you with the judgement of divers Parliaments in this Matter; as particularly in 13 Car. 2. 13 Eliz. and at divers other Parliaments( when the Circumstances of the Nation required it) who made Special and Temporary Statutes, which indeed extend to make a Conspiracy to Levy War Treason for a limited time; upon which Statute I make these Observations. 1. That it was the Opinion of those Parliaments who made particular Laws concerning it, that the Law of Edw. 3. did not provide for it; for Parliaments seldom resort to extraordinary Remedies, when the ordinary methods of cure serve turn. 2. That it was the Opinion of those Parliaments that these kind of constructive Treasons ought not to be always by a standing Law adjudged so, for then they would not have made those Statutes only Temporary but perpetual.  
4thly, The Judges in the Case of this Noble Lord, have transgressed the general and certain Rule prescribed in our Books for the exposition of Acts of Parliaments, which is, That where a thing is particularly specified in one Part or clause of a Statute, that thing so particularly mentioned shall not be construed to be within the Equity, intent, or general words of another part of the Statute, though if it had not been expressed, the intent or general words would have extended to it.  
Now Levying War being mentioned in Stat. Edw. 3. can't be( according to this Rule) drawn within the meaning of the Clause which relates to the King's Death, and if this be a standing Rule in ordinary Cases, much more in Case of Treason, which my Lord Cook says ought not to be strained by Logical Inferences, it being so Penal as to forfeit Life, Honour, and Estate.  
5. As the Judges have in this Case gone against the clear and direct Opinions of the two Oracles of our Law my Lord Cook and Hales, and against the known Rule of exposition of Statutes, so they have entirely defeated the end of making the Statute of Edw. 3. concerning Treason; which was to Circumscribe inferior Courts within such Bounds and Limits, that it might not be in their Power to Condemn Innocent Men of Treason: But the remedy is eluded, and mischief revived by the Liberty the Justices arrogate in construing that Act; for certainly there is no difference between the Arbitrary Power exercised by corrupt Judges before the Statute of declaring what they pleased express Treason; and the Power they assume since of declaring what they pleased an implyed Treason within the meaning of the Statute, tho' never so remote from the Letter; if there be any difference, it is too nice and Metaphisical for me to Comprehend.  
It remains that some answer be given to the Authorities cited of the other side, and the rather, because they were again made use of on the first reading of the Bill by a Member who was one of the King's Counsel against my Lord Russel.  
To the first Authority the Case of my Lord Cobham, where 'tis said, that Conspiring to Levy War was resolved an Overt Act of compassing the King's Death. I say, first, It is not said where this Case is to be found. 2dly, If, our Histories, and Hales's Pleas of the Crown, fol. 13. give a true account of that Case, there was an actual Force raised in order to Imprison the King, and consequently not parallel with my Lord Russel's.  
3dly, It is said in the trial to be resolved 1o. Jacobi, at which time my Lord Cook was Attorney General; Now as it would be very strange there should be such a Solemn and Unanimous Resolution of the Judges, and the King's Attorney not know it; so it appears very strange if he did know it, that he should be so disingenuous as not to take notice of it in his 3d . Inst. Where he teaches the contrary Doctrine, that Book being wrote divers years after 1o Jac.  
The same point is likewise said to be resolved by the King's Counsel, in the Case of Sir Henry Vane, which I do not remember Printed any where but in Syderfin's Reports. There indeed, he is said to be Indicted for the King's death, but what the Overt Act or dead was, appears not by that Book; it is not probable the Judges would Condemn a Man against the Authorities I have mentioned above, which, to speak modestly, I hope are sufficient to make it a Moot point, whether it be Treason, when Sir H. Vane's Life was so full of positive and direct Treasons.  
There is none of other Cases Cited that have any resemblance with my Lord Russel's, except Dr. Story in Dyer, which was inviting Philip of Spain to Invade England, but no Invasion ensued. 'Tis hard to justify this for good Law, but allowing it, yet it extremely differs from my Lord Russel's; for Story could have no other aim than the Deposing the Queen, and Conquering the Nation, Philip the 2d. being known to aspire at the Universal Monarchy; but it plainly appeared by the Testimony of the Witnesses, that the Conspiracy charged on my Lord Russel, did stop and terminate in the defence of the Laws of the Land, and that there was no other end or mark in prospect then to stem that Torrent which was at that time bearing down the Rights of the Subjects; and as by the Laws of the Land any man may use force, and the assistance of others, for the defence of his House or possession, when illegally invaded, so by a parity of Reason, when the public Rights of the Kingdom are invaded, it is Lawful to consult how to defend or recover them.  
One of the King's Counsel was sensible of the defect of their Evidence, else I can't imagine what should prompt him to that malicious and false insinuation,( when my Lord urged to have his trial deferred till the Afternoon, or next Morning, in regard he expected a very Material Witness in Town) That his Lordship would not have given the King an hours notice for his Life; by which he tacitly hinted to the Jury, as if my Lord Russel were an Accomplice in the intended Assassination at the Rye-House, though in the whole course of the Evidence there was not any thing that tended to prove it. He thought there was a solid Proof of that Plot, some of the Criminals who suffered having confessed it: But withall, let it be remembered, that some of the Persons who were most Zealous to persuade that Barbarous Assassination, did after receive their Pardons. I will not say they had any Sinister design against the Lives of those they persuaded to be concerned in that Assassination; nor will I say that the Lord Howard had other then Honourable Intentions, when he was so Solicitous to excite Persons to a resentment of the violation of their Laws. But this I will be bold to say, that it would have been more for the credit of the Rye-House Plot, if it had been attested by others than the Ring-leaders; and it would have given greater reputation to the Persecution and Sufferings of the Council of Six, had there been any other vourcher of their Treasonable Debates than the Lord Howard, who by his own Confession appears to be one of the first that propounded the Establishment of that Council.  
For the King's Counsel to inflame the Jury thus, by telling them, that my Lord Russel would not have given the King an hours time for his Life, That the E. of Essex Cutting his Throat was a clear Evidence of his Guilt, That the Consequence of this Plot would have been the overthrow of our Religion and Government; I say to inflame the Jury by inculcating these Falsities into them, was a Treatment that I know not what name to give it. Men should exert their Skill in rhetoric, on Subjects of less importance, than the Lives, Honours, and Estates of the Peers and Gentlemen of England.  
Upon the whole it appears, that my Lord Russel fell a Sacrifice to the Enemies of our Religion, and our Laws, and that he had no other Crime, than his Sagacity to discover, and his unwearied Endeavours to frustrate such Counsels as were leveled for the destruction of both. He fore-saw the Cloud while it was yet hovering over our heads, and advertised us of it, and if his Measures had been pursued, it might have been dispersed before it broken, and by its violence overwhelmed him, and all the Rights and Liberties of the Kingdom; the Parliament therefore( who are the public Representative of the Nation) had extremely failed in their duty, if they had not taken care to deface a Record that is so great a Scandal to the public Justice of the Nation.    

LONDON, Printed for R. Baldwin, near the Black Bull in the Old-Baily, 1689.