Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	act_n	king_n	parliament_n	3,280	5	6.9453	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26140	A defence of the late Lord Russel's innocency by way of answer or confutation of a libellous pamphlet intituled, An antidote against poyson : with two letters of the author of this book, upon the subject of His Lordship's tryal : together with an argument in the great case concerning elections of members to Parliament, between Sr. Samuel Barnardiston bar. plaintiff, and Sr. Will. Soames, sheriff of Suffolk, defend., in the Court of Kings-Bench, in an action upon the case, and afterwards by error sued in the Exchequer-chamber / by Sir Robert Atkyns, Knight of the Honourable Order of the Bath ...	Atkyns, Robert, Sir, 1621-1709.	1689 (1689)	Wing A4136; ESTC R4958	24,651	29

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

Advertisement THere is lately Printed for Timothy Goodwin at the Maiden-head against St. Dunstan's Church in Fleet-street these Two Books following I. An Enquiry into the Power of Dispensing with Penal Statutes Together with some Animadversions upon a Book writ by Sir Edw. Herbert Lord Chief Iustice of the Court of Common-Pleas Entituled A short Account of the Authorities in Law upon which Judgment was given in Sir Edward Hales 's Case II. The Power Jurisdiction and Priviledge of Parliament And the Antiquity of the House of Commons Asserted Occasioned by an Information in the King's Bench by the Attorney-General against the Speaker of the House of Commons As also a Discourse concerning the Ecclesiastical Iurisdiction in the Realm of England occasioned by the late Commission in Ecclesiastical Causes Both Writ by Sir Robert Atkyns Knight of the Honourable Order of the Bath and late one of the Iudges of the Court of Common-Pleas A DEFENCE Of the Late Lord Russel's Innocency By way of Answer or Confutation of a Libellous Pamphlet INTITULED An ANTIDOTE against POYSON WITH Two Letters of the Author of this Book Upon the Subject of his Lordship's Tryal Together with An ARGUMENT in the Great CASE Concerning Elections of Members to Parliament Between Sr Samuel Barnardiston Bar. Plaintiff AND Sr Will. Soames Sheriff of Suffolk Defend ' In the Court of Kings-Bench in an Action upon the Case And afterwards by Error sued in the Exchequer-Chamber By Sir ROBERT ATKYNS Knight of the Honourable Order of the Bath And late one of the Judges of the Court of Common-Pleas LONDON Printed for Timothy Goodwin at the Maiden-head against St. Dunstan's Church in Fleet-street 1689. TO THE READER HAving about five Years since had Applications made to me by divers Friends and Relations of that Most Excellent Person the Late LORD RVSSEL when his Troubles befel him and while he was upon his Tryal to give him the best Assistance I could in my Profession and to Instruct him how to manage his Defence And the like Assistance being afterwards desired from me by many more Persons of the best Quality who soon after fell into the same Danger I living at some distance from London did venture by Letters to send the best Rules and Directions I could towards the making of their Just Defence being heartily concern'd with them The Copies of which Letters of mine being very lately come to my Hands with an Intention to have them likewise Publish'd together with that Discourse or Argument that concern'd that Honourable Lord I thought it might be some help to such as may possibly hereafter fall into the like Danger and Trouble being by the strict Rules of Law denied the benefit of Councel in Capital Crimes as to Matters of Fact and Proofs at an easie Rate to be instructed by the Advice contained in these Letters how to manage their Defence This prevail'd with me to Publish the very Letters themselves being meerly upon the same Subject with the larger Discourse upon the Title and Head of High-Treason First LETTER CONCERNING My Lord Russel's TRYAL SIR I Am not without the Apprehensions of Danger that may arise by advising in or so much as discoursing of Publick Affairs yet no fear of Danger shall hinder me from performing that Duty we owe to one another to Counsel those that need our Advice how to make their just Defence when they are called in question for their Lives especially if they are Persons that have by their general Carriage and Conversation appeared to be Men of Worth and Lovers of their King and Country and of the Religion Established among us I will follow the Method you use and answer what you ask in the Order I find in your own Letters I cannot see any disadvantage or hazard by pleading the general Plea of Not Guilty If it fall out upon the Proofs that the Crime is only Misprision of Treason and not the very Crime of Treason the Iury must then find the Prisoner not guilty of Treason and cannot upon an Indictment of Treason find the party guilty of Misprision because he is not Indicted for the Offence of Misprision and Treason and Misprision of Treason are Offences that the Law hath distinguished the one from the other and the one is not included in the other and therefore if the Proofs reach no farther then to prove a Misprision and amount not to Treason the Prisoner may urge it for himself and say that the Proofs do not reach to the Crime charged in the Indictment and if the Truth be so the Court ought so to direct the Iury not to find it ☞ Now being present in company with others where those others do consult and conspire to do some Treasonable Act does not make a man guilty of Treason unless by some Words and Actions he signifie his Consent to it and Approbation of it but his being privy to it and not discovering it makes him guilty of Misprision of Treason which consists in the concealing it but it makes him not guilty of Treason and if the same Person be present a second time or oftner this neither does not make him guilty of Treason only it raises a strong suspicion that he likes it and consents to it and approves of it or else he would have forborn after his having been once amongst them But the strongest suspicion does not sufficiently prove a Guilt in Treason nor can it go for any Evidence And that upon two Accounts ☞ First The Proofs in case of Treason must be plain clear and positive and not by Inference or Argument or the strongest Suspicion imaginable Thus says Sir Edward Coke in many places in his third Institutes in the Chapter of High Treason ☞ Secondly In an Indictment of High Treason there must not only be a general Charge of Treason nor is it enough to set forth of what sort or species the Treason is as killing the King or levying War against him or Coyning Money or the like but the Law requires that in the Indictment there must be also set forth some Overt or open Act as the Statute of the 25th of Edw. the 3 d. calls it or some Instance given by the Party or Offender whereby it may appear he did consent to it and consult it and approve of it and if the bare being present should be taken and construed to be a sufficient Overt or open Act or Instance then there is no difference between Treason and Misprision of Treason for the being present without consenting makes no more then Misprision therefore there must be something more then being barely present to make a man guilty of Treason especially since the Law requires an Overt or open Act to be proved against the Prisoner accused See Sir Coke's third Institutes fol. 12. upon those words of the Statute per overt fact and that there ought to be direct and manifest Proofs and not bare Suspicions or Presumptions be they never so strong and violent see the same fol. in