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 [Page 10] 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. [Page 11] (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 Edw. 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 [Page 12] 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.

[Page 13]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.

[Page 14]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 [Page 15] 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.

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, [Page 16] 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 [Page 17] 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 [Page 18] 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.

[Page 19]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.

[Page 20]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 [Page 21] 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 [Page 22] 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 Edward 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.

[Page 23]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 [Page 24] 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 [Page 25] 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 [Page 26] Person, and is the same with Conspiring his Death, as hath been usually expounded: but 'tis 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.