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" " ATKINS.' " I cannot fee any difadvantage or hazard, bv pleading thS " general plea of Not Guilty. If it fall out upon the proofs,
- : that the crime is only mifprifion of treafon, and not the
" very crime of treafon, the jury muft find the prifoner not ' guilty of treafon; and cannot, upon an indictment of
- treafon, find the party puilty of mifprifion, becaufe he was
" not indicted for the offence of mifprifion j and treafon,
- anJ mifprifion of treafon, are offences that the lav/ hath
" diftinguiihed the one from the other ; and therefore, if " the proofs reach no farther than to prove a mifprifion, and " amount not to treafon, the prifoner may urge it for himielf, " and fay, that the proofs do not reach to the crimes charged " in the indictment; and if the truth be fo, the court ought " fo to direct the jury not to find it. Now being in com- pany with others, where thofe others do confult and ccn- fpire to do fome treafonable act, does not make a man guilty of treafon, unlefs by fome words or actions he fignify his confent to it, and approbation^ cf it ; but hisbeing privy " to it, and not difcovering of it, makes him guilty of mif- " piifion of treafon, which confiftsin the concealing it ; but " it makes him not guilty of treafon : and if the fame per-
- ' fon be prefent a fecond time, or oftner, this neither does
" not make him guilty of treafon, only it raifes a flrong
- ' fufpicion that he likes, and confents to it, and approves of
" it, or elfe he would have forborn after being once amongft " ihem. But the ftrongeft fufpicion does not fufficiemiy " prove a guilt in treafon, nor can it go for any evidence, " and that upon two accounts : firft, the proofs in cafe of. " treafon muft be plain, and clear, and pofitive, and not by " inferenre or argument, or the ftrongeft fufpicion imagin- " able. Thus faid fir Edward Coke, in many places in his
- ' Third Inftitutes in the chapter of high treafon. Secondly,
- c in an indictment of high treafon, there muft not only be a
- ' general charge of treafon, nor is it enough to fet forth of
41 what fort or fpecies the treafon is, as killing the king, " or levying war againft him, or coining money, or the " like; but there muft be alfo fet forth fome overt or open " act, as the ftatute of the 2jth of Edward III. calls it, or " 0;me inftance given by the party or offender, whereby it " may appear he did confent to it, and confult it, and approve " cf it: and if the barely being prefent fhould be taken and " coriftrucd to be a fufficient overt or open act, or inftance, " then there is no difference between treafon and mifprifion " of treafon; for the being prefent withoutconfenting makes
- ' no nioie than mifprifion ; therefore ihere muft be fome-
" thing
