State Trials, Political and Social. Volume 2 (of 2)

LORD RUSSELL

Lord Russell's trial marks the moment in the latter part of Charles II.'s reign when his power reached its highest point. The Exclusion Bill was thrown out by the House of Lords in 1680, and though Stafford was tried and executed at the end of the year, the dissolution of the short-lived Oxford Parliament in April 1681 left the Country party, who had just acquired the name of Whigs, in a temporarily hopeless position. On the 2nd of July in the same year Shaftesbury was arrested on a charge of suborning witnesses in the Popish Plot, but the bill presented against him was thrown out by the Grand Jury, which had been packed in his favour by a friendly sheriff, and he was liberated in November. An unscrupulous exercise of the power of the Court led to North (brother of the Chief-Justice of the Common Pleas, soon to become Lord Keeper) and Rich being sworn in as sheriffs in June 1682, and Shaftesbury, no longer being able to rely on his City friends, retired into hiding and entered on the illegal practices described in Russell's trial. The security afforded to the opponents of the Court was further diminished in 1683 by the suppression of the charter of the City by a writ of Quo Warranto, which, although it was too late to have any effect on Russell's conduct, may help to justify it. The position of the Country party thus appeared desperate. The King had contrived to overcome all constitutional means of opposition; Shaftesbury's unscrupulous policy had alienated most of his natural adherents; his violent disposition made it impossible for his remaining followers to take advantage of the difficulties which the King was preparing for himself and his successor; and by anticipating the crisis of 1688, Shaftesbury, Essex, and Russell brought down destruction on themselves.

Lord Russell was tried at the Old Bailey on the 13th of July 1683 before the Lord Chief-Justice, Sir Francis Pemberton,[1] the Lord Chief-Baron, Mr. William Montague, and nine other judges. There appeared for the prosecution the Attorney-General, Sir Robert Sawyer[2], the Solicitor-General, Mr. Finch[3], Serjeant Jeffreys[4], Mr. North[5].

The charge against Lord Russell was that he was guilty of high treason in conspiring to depose and kill the King, and to stir up rebellion against him. To this he pleaded Not Guilty.

He objected that he ought not to be arraigned and tried on the same day, to which it was replied that he had had more than a fortnight's notice of his trial and the facts alleged against him by having questions put to him when he was in custody in the Tower. On the first juror being called, Lord Russell objected that he was not a 40s. freeholder in the City. He was allowed to have counsel assigned to him to argue as to whether this was a good ground of objection; the counsel he chose were Pollexfen[6], Holt[7], and Ward. The question was whether the statute 2 Hen. V. c. 3, which enacted that in the case of capital offences the jurors must have lands of the yearly value of 40s., applied to trials for treason or to trials in the City. It was decided by all the judges that it did not,[8] the objection was overruled, and a jury was sworn without any challenges being made.

North then shortly opened the case. He alleged that in the previous October and November a council consisting of Russell, the Duke of Monmouth, Lord Grey,[9] Sir Thomas Armstrong, and one Ferguson, were plotting a rising in conjunction with the Earl of Shaftesbury. The Earl was anxious that the opportunity of the celebration of Queen Elizabeth's birthday on the 19th of November should be used for the purpose. The conspirators objected to this on the ground that Trenchard, who was to have headed a rising in the West, was not ready. On this Shaftesbury and Ferguson left the country, and the so-called council was re-organised by Armstrong and Grey being left out, and Lord Howard,[10] Lord Essex,[11] Colonel Algernon Sidney,[12] and Mr. Hampden,[13] being taken in. Frequent consultations were held at Russell's house, and Aaron Smith was despatched to Scotland to arrange a rising on the part of the malcontents there.

Rumsey[14] was called, and being sworn deposed that at the end of October or the beginning of November Shaftesbury had sent for him to his lodgings in Wapping, where he was hiding, and told him to go to the house of one Sheppard, where he could find Monmouth, Russell, Grey, Armstrong, and Ferguson, and to ask what resolution they had come to as to the rising at Taunton. He took this message accordingly, and received an answer that Trenchard had promised 1000 foot and 300 horse, but had failed them. Most of this answer was delivered by Ferguson, but others, including Russell, were in the room at the time.

Attorney-General—Was there nothing of my lord Shaftesbury to be contented?

Rumsey—Yes, that my lord Shaftesbury must be contented; and upon that he took his resolution to be gone.

Lord Chief-Justice—Did you hear any such resolution from him?

Rumsey—Yes, my lord.

Shaftesbury told him of the meeting; he was not there more than a quarter of an hour; he heard something of a declaration to be made, either there, or on a report of Ferguson's.

Jeffreys—To what purpose was the declaration?

Lord Chief-Justice—We must do the prisoner that right; he says he cannot tell whether he had it from him or Mr. Ferguson.

There was some discourse begun by Armstrong as to the posture of the guards at the Savoy and at the Mews. Monmouth, Grey, and Armstrong, in Russell's presence, undertook to see the guards,

with what care and vigilance they did guard themselves at the Savoy and Mews, whether they might be surprised or not.

The rising was to be on the 19th of November. It was arranged by Shaftesbury that he himself was to go to Bristol, in what capacity it was not stated.

Jeffreys—If my lord Russell pleases to ask him any questions he may.

Lord Russell—I have very few questions to ask him for I know little of the matter; for it was the greatest accident in the world I was there, and when I saw that company was there I would have been gone again. I came there accidentally to speak with Mr. Sheppard; I had just come to town, but there was no discourse of surprising the guards, nor no undertaking of raising an army.

Lord Chief-Justice—We will hear you to anything by and by, but that which we desire to know of your lordship is, as the witnesses come, to know if you would have any particular questions asked of them.

On being pressed by Russell, Rumsey repeated that Russell 'did discourse of the rising' at Taunton and consented to it.

Sheppard was called, and deposed that in October Ferguson came to him in Monmouth's name,

and desired the conveniency of my house, for him and some other persons of quality to meet there. As soon as I had granted it, in the evening the duke of Monmouth, my lord Grey, my lord Russell, sir Thomas Armstrong, col. Rumsey and Mr. Ferguson came. Sir T. Armstrong desired me that none of my servants might come up, but they might be private; so what they wanted I went down for, a bottle of wine or so.

He confirmed Rumsey's evidence as to the discourse about surprising the guards; Monmouth, Grey, and Armstrong went out to view them at the Mews; the next time they met Armstrong reported

the guards were very remiss in their places, and not like soldiers, and the thing was feasible, if they had strength to do it.

There were two meetings: he had notice of them; the company came in the evening; he saw no coaches; Lord Russell came both times.

Jeffreys—Do you remember that col. Rumsey at the first time had any discourse about any private business relating to my lord Russell?

Sheppard—No, I do not remember it.

Attorney-general—Besides the seizing of the guards did they discourse about rising?

Sheppard—I do not remember any further discourse, for I went several times down to fetch wine, and sugar, and nutmeg, and I do not know what was said in my absence.

He remembered that a paper was read 'somewhat in the nature of a proclamation,' setting forth the grievances of the nation 'in order to a rising.' It was read by Ferguson, but he could not say whether they were all present or not.

Cross-examined by Lord Russell, he could not be positive as to the time of the meetings; they were at the time that Lord Shaftesbury was absent from his house, and he absented himself about Michaelmas day.

Lord Russell—I never was but once at your house, and there was no such design as I heard of. I desire that Mr. Sheppard may recollect himself.

Sheppard—Indeed my lord I can't be positive in the times. My lord I am sure was at one meeting.

Lord Chief-Justice—But was he at both?

Sheppard—I think so; but it was eight or nine months ago, and I can't be positive.

Lord Russell—I can prove I was then in the country. Col. Rumsey said there was but one meeting.

Col. Rumsey—I do not remember I was at two; if I was not, I heard Mr. Ferguson relate the debates of the other meeting to my lord Shaftesbury.

Lord Russell—Is it usual for witnesses to hear one another?

Lord Chief-Justice—I think your lordship need not concern yourself about that; for I see the witnesses are brought in one after another.

Lord Russell—There was no design.

Jeffreys—He hath sworn it.

Attorney-General—Swear my lord Howard (which was done). Pray will your lordship give an account to the Court, what you know of a rising designed before my lord Shaftesbury went away, and afterwards how it was continued on.

Lord Howard—My lord, I appear with some confusion. Let no man wonder that it is troublesome to me. My lord as to the question Mr. Attorney puts to me, this is the account I have to give: It is very well known to every one, how great a ferment was made in the city, upon occasion of the long dispute about the election of sheriffs; and this soon produced a greater freedom and liberty of speech one with another, than perhaps had been used formerly, though not without some previous preparations and dispositions made to the same thing. Upon this occasion among others, I was acquainted with captain Walcot[15], a person that had been some months in England, being returned out of Ireland, and who indeed I had not seen for eleven years before. But he came to me as soon as he came out of Ireland, and when these unhappy divisions came, he made very frequent applications to me; and though he was unknown himself, yet being brought by me, he soon gained a confidence with my lord Shaftesbury, and from him derived it to others. When this unhappy rent and division of mind was, he having before got himself acquainted with many persons of the city, had entered into such counsels with them, as afterwards had the effect, which in the ensuing narrative I shall relate to your lordship. He came to me, and told me, that they were now sensible all they had was going, that this force put upon them——

Lord Chief-Justice—Pray my lord, raise your voice, else your evidence will pass for nothing.

One of the Jury—We cannot hear my lord.

Lord Howard—There is an unhappy accident happened that hath sunk my voice: I was but just now acquainted with the fate of my lord of Essex. My lord, I say, he came to me, and did acquaint me, that the people were now so sensible that all their interest was going, by that violence offered to the city in their elections, that they were resolved to take some course to put a stop to it, if it were possible: He told me there were several consults and meetings of persons about it, and several persons had begun to put themselves into a disposition and preparation to act; that some had furnished themselves with very good horses, and kept them in the most secret and blind stables they could. That divers had intended it, and for his own part he was resolved to imbark himself in it. And having an estate in Ireland, he thought to dispatch his son thither (for he had a good real estate, and a great stock, how he disposed of his real estate, I know not); but he ordered his son to turn his stock into money to furnish him for the occasion: This I take to be about August, his son was sent away. Soon after this the son not being yet returned, and I having several accounts from him wherein I found the fermentation grew higher and higher, and every day a nearer approach to action I told him I had a necessity to go into Essex to attend the concerns of my own estate; but told him how he might by another name convey letters to me, and gave him a little cant, by which he might blind and disguise the matter he wrote about when I was in the country.

I received two or three letters from him, that gave me an account in that disguised style, but such as I understood, that the negotiation which he had with my correspondents was going on, and in good condition; and it was earnestly desired I would come to town; this was the middle of September.

I notwithstanding, was willing to see the result of that great affair, upon which all men's eyes were fixed, which was the determination of the shrivalty about that time. So I ordered it to fall into town, and went to my own house Saturday night which was Michaelmas Day.

On Sunday he came to me and dined with me, and told me (after a general account given me of the affairs of the times) that my lord Shaftesbury was secreted and withdrawn from his own house in Aldersgate Street; and that though he had a family settled, and had absconded himself from them, and divers others of his friends and confidents; yet he did desire to speak with me, and for that purpose sent him to shew me the way to his lodging: He brought me to a house at the lower end of Wood Street, one Watson's house, and there my lord was alone. He told me he could not but be sensible, how innocent soever he was, both he and all honest men were unsafe, so long as the administration of justice was in such hands as would accommodate all things to the humour of the court. That in the sense of this he thought it but reasonable to provide for his own safety by withdrawing himself from his own house into that retirement. That now he had ripened affairs to that head, and had things in that preparation, that he did not doubt but he should be able, by those men that would be in readiness in London, to turn the tide, and put a stop to the torrent that was ready to overflow. But he did complain to me, that his design, and the design of the public, was very much obstructed by the unhandsome deportment of the Duke of Monmouth, and my lord Russell, who had withdrawn themselves not only from his assistance, but from their own engagements and appointments: For when he had got such a formed force as he had in London, and expected to have it answered by them in the country, they did recede from it, and told him they were not in a condition or preparation, in the country, to be concurrent with him at that time. This he looked upon but as an artificial excuse, and as an instance of their intentions wholly to desert him: but notwithstanding there was such preparation made in London, that if they were willing to lose the honour of being concurrent with him, he was able to do it himself, and did intend speedily to put it into execution. I asked him what forces he had? He said he had enough. Says I, What are you assured of? Says he, There is above ten thousand brisk boys are ready to follow me, whenever I hold up my finger. Says I, How have you methoded this, that they should not be crushed, for there will be a great force to oppose you? Yes, he answered, but they would possess themselves of the gates; and these ten thousand men in 24 hours would be multiplied into five times the number, and be able to make a sally out, and possess themselves of Whitehall, by beating the guards. I told him this was a fair story, and I had reason to think a man of his figure would not undertake a thing that might prove so fatal, unless it were laid on a foundation that might give a prudent man ground to hope it would be successful.

He said he was certain of it, but confessed it was a great disappointment that these lords had failed him. I told him, I was not provided with an answer at that time; that he well knew me, and knew the general frame and bent of my spirit. But I told him, I looked upon it as dangerous, and ought to be laid deep, and to be very well weighed and considered of: and did not think it a thing fit to be entered upon, without the concurrence of those lords. He did consent, with much ado, but, says he, you will find they will wave it, and give doubtful and deferring answers, but you will find this a truth.

I went to Moor Park next day, where the Duke of Monmouth was, and told him the great complaint my lord Shaftesbury had made, that he failed him. Says he, I think he is mad; I was so far from giving him any encouragement, that I did tell him from the beginning, and so did my lord Russell, there was nothing to be done by us in the country at that time. I did not then own that I had seen my lord, but spake as if this were brought me by a third person, because he had not given me liberty to tell them where his lodging was. Says I, My lord, I shall be able to give a better account of this in a day or two: Shall I convey it to my lord, that you are willing to give a meeting? Yes, says he, with all my heart. This was the 2nd, 3rd, or 4th of Oct.

I came to town on Saturday, and was carried to him on Monday; and I suppose this was Tuesday the 2nd of October. On Wednesday I think I went to him again (but it is not very material) and told him I had been with the duke of Monmouth and given him a punctual account of what I had from him; and the duke did absolutely disown any such thing, and told me, he never did give him any encouragement to proceed that way, because the countries were not in a disposition for action, nor could be put in readiness at that time. Says my lord Shaftesbury, It is false: they are afraid to own it. And, says he, I have reason to believe, there is some artificial bargain between his father and him, to save one another: for when I have brought him to action, I could never get him to put on, and therefore I suspect him: and, says he, several honest men in the city have puzzled me, in asking how the duke of Monmouth lived: says he, They puzzled me, and I could not answer the question; for I know he must have his living from the King; and says he, we have different prospects; we are for a Commonwealth and he hath no other design but his own personal interest, and that will not go down with my people now (so he called them), they are all for a commonwealth: and then, says he, It is to no purpose for me to see him; it will but widen the breach, and I dare not trust him to come hither. Says I, My lord, that's a good one indeed! dare not you trust him, and yet do you send me to him on this errand? Nay, says he, it is because we have had some misunderstanding of late; but I believe he is true enough to the interest. Says I, It is a great unhappiness to take this time to fall out, and I think it is so great a design, that it ought to be undertaken with the greatest strength and coalition in the kingdom. Says he, My friends are now gone so far, that they can't pull their foot back again without going further; for, says he, it hath been communicated to so many that it is impossible to keep it from taking air, and it must go on. Says he, We are not so unprovided as you think for; there are so many men, that you will find as brisk men as any in England. Besides we are to have 1000 or 1500 horse, that are to be drawn by insensible parties into town, that when the insurrection is, shall be able to scour the streets and hinder them from forming their forces against us. My lord, after great inlargement upon this head, and heads of the like nature, I told him I would not leave him thus, and that nothing should satisfy me, but an interview between him and the lords. No, I could not obtain it: but if I would go and tell them what a forwardness he was in, and that, if they would do themselves right, by putting themselves upon correspondent action in their respective places, and where their interest lay, well; otherwise he would go away without them: So I went again to the Duke of Monmouth, I spake to him only (I never spake to my lord Russell then, only we were together, but I had never come to any close conjunction of counsels in my life with him at that time). Says I to the duke, This man is mad, and his madness will prove fatal to us all; he hath been in a fright by being in the tower, and carries those fears about him that cloud his understanding. I think his judgment hath deserted him, when he goes about with those strange sanguine hopes that I can't see what should support him in the ground of them.

Therefore says I, Pray will you give him a meeting? God-so says the duke, with all my heart, and I desire nothing more. Now I told him, I had been with my lord Shaftesbury, with other inlargements that I need not trouble your lordship with; well, says he, pray go to him, and try if it be possible to get a meeting; so I went to him and told him; Says I, This is a great unhappiness and it seems to be a great absurdity, that you are so forward to act alone in such a thing as this. Pray, says I, without any more to do, since you have this confidence to send for me, let me prevail with you to meet them, and give them an interview, or else you and I must break. I will no longer hold any correspondence, unless it be so. Says he, I tell you they will betray me. In short he did with much importunity yield that he would come out the next night in a disguise. By this time it was Saturday, I take it to be the 6th of Oct.: an almanac will settle that: so the next night being Sunday and the shops shut, he would come out in a concealment, be carried in a coach, and brought to his own house, which he thought then was safest. I came and gave the duke of Monmouth an account of it; the duke I suppose conveyed the same understanding to my lord Russell; and I suppose both would have been there accordingly, to have given the meeting: but next morning I found colonel Rumsey had left a note at my house, that the meeting could not be that day. Then I went to the duke of Monmouth and he had had the account before, that my lord Shaftesbury did apprehend himself to be in some danger in that house, and that the apprehension had occasioned him to remove; but we should be sure to hear from him in two or three days. We took it as a waiver, and thought he did from thence intend to abscond himself from us, and it proved so to me, for from that time I never saw him. But captain Walcot came to me, and told me, that he was withdrawn, but it was for fear his lodging might be discovered, but he did not doubt but in a week he would let me know where his lodging was: but told me within such a time, which I think was eight or ten days, there would be a rising; and I told the duke of Monmouth and I believe he told my lord Russell; and we believed his frenzy was now grown to that height, that he would rise immediately and put his design into execution: so we endeavoured to prevent it, upon which my lord Russell (I was told) and the duke of Monmouth, did force their way to my lord Shaftesbury's and did persuade him to put off the day of his rendezvous. I had not this from my lord Russell, for I had not spoke a word to him: but the duke told me my lord Russell had been with him (I had indeed an intimation, that he had been with him but the duke told me, says he, I have not been with him, but my lord Russell was, having been conveyed by colonel Rumsey). After this day was put off, it seems it was put off with this condition, that those lords and divers others should be in a readiness to raise the country about that day fortnight, or thereabouts; for there was not above a fortnight's time given: and, says the duke of Monmouth, we have put it off but now we must be in action, for there is no holding it off any longer. And says he, I have been at Wapping all night, and I never saw a company of bolder and brisker fellows in my life; and says he, I have been round the Tower and seen the avenues of it; and I do not think it will be hard, in a little time, to possess ourselves of it; but says he, they are in the wrong way, yet we are engaged to be ready for them in a fortnight, and therefore, says he, now we must apply ourselves to it as well as we can. And thereupon I believe they did send into the country and the duke of Monmouth told me he spake to Mr. Trenchard, who was to take particular care of Somersetshire, with this circumstance; Says he, I thought Mr. Trenchard had been a brisker fellow; for when I told him of it, he looked so pale, I thought he would have swooned, when I brought him to the brink of action; and said, I pray go and do what you can among your acquaintance; and truly I thought it would have come then to action. But I went the next day to him, and he said it was impossible, they could not get the gentlemen of the country to stir yet.

Lord Russell—My lord, I think I have very hard measure, here is a great deal of evidence by hearsay.

Lord Chief-Justice—This is nothing against you, I declare it to the jury.

Attorney-General—If you please, my lord, go on in the method of time. This is nothing against you, but it's coming to you, if your lordship will have patience, I assure you.

Lord Howard—This is just in the order it was done. When this was put off, then they were in a great hurry; and Captain Walcot had been several times with me, and discoursed of it. But upon this disappointment they said, it should be the dishonour of the lords, that they were backward to perform their parts; but still they were resolved to go on. And this had carried it to the latter end of October. About the 17th or 18th captain Walcot came to me, and told me, now they were resolved positively to rise, and did believe that a smart party might perhaps meet with some great men[16]. Thereupon I told the duke of it; I met him in the street and went out of my own coach into his, and told him there was some dark intimation, as if there might be some attempt upon the king's person; with that he struck his breast with a great emotion of spirit, and said, God-so, kill the king! I will never suffer that. Then he went to the play-house to find sir Thomas Armstrong and send him up and down the city to put it off, as they did formerly; and it was done with that success, that we were all quieted in our minds, that at that time nothing would be done: but upon the day the king came from Newmarket, we dined together; the duke of Monmouth was one, and there we had a notion conveyed among us, that some bold action should be done that day; which comparing it with the king's coming, we concluded it was designed upon the king. And I remember my lord Grey, says he, By God, if they do attempt any such thing, it can't fail. We were in great anxiety of mind, till we heard the king's coach was come in, and sir Thomas Armstrong not being there, we apprehended that he was to be one of the party (for he was not there). This failing, it was then next determined (which was the last alarum and news I had of it), to be done upon the 17th of November, the anniversary of queen Elizabeth; and I remember it by this remark I made myself, that I feared it had been discovered, because I saw a proclamation a little before forbidding public bonfires without leave of my lord mayor. It made some impressions upon me that I thought they had got an intimation of our intention, and had therefore forbid that meeting. This therefore of the 17th of November being also disappointed, and my lord Shaftesbury, being told things were not ripe, in the country, took shipping and got away: and from that time I heard no more of him till I heard he was dead. Now, Sir, after this, we all began to lie under the same sense and apprehensions that my lord Shaftesbury did, that we had gone so far, and communicated it to so many, that it was unsafe to make a retreat; and this being considered, it was also considered, that so great an affair as that was, consisting of such infinite particulars, to be managed with so much fineness, and to have so many parts, it would be necessary, that there should be some general council, that should take upon them the care of the whole. Upon these thoughts we resolved to erect a little Cabal among ourselves, which did consist of six persons; and the persons were the duke of Monmouth, my lord of Essex, my lord Russell, Mr. Hambden junr., Algernone Sidney, and myself.

Attorney-General—About what time was this, when you settled this council?

Lord Howard—It would have been proper for me in the next place to tell you that, and I was coming to it. This was about the middle of Jan. last (as near as I can remember); for about that time we did meet at Mr. Hambden's house.

Attorney-General—Name those that met.

Lord Howard—All the persons I named before; that was the duke of Monmouth, my lord of Essex, my lord Russell, col. Sidney; Mr. Hambden junr., and myself; when we met there, it was presently agreed what their proper province was, which was to have a care of the whole; and therefore it was necessary some general things should fall under our care and conduct which could not possibly be conducted by individual persons. The things that did principally challenge this care, we thought were these: Whether the insurrection was most proper to be begun in London, or in the country, or both at one instant. This stood upon several different reasons: It was said in the country; and I remember the Duke of Monmouth insisted upon it, that it was impossible to oppose a formed, well-methodized and governed force, with a rabble hastily got together; and therefore whatever number could be gathered in the city, would be suppressed quickly, before they could form themselves: therefore it would be better to begin it at such a distance from the town, where they might have an opportunity of forming themselves, and would not be subject to the like panic fear, as in the town, where half an hour would convey the news to those forces that in another half hour would be ready to suppress them.

It was further suggested that if the meeting was remote from London, the King must either give an opportunity for a rising there by withdrawing troops, or else give the insurgents time to gather head. Other questions discussed were what counties and towns were the fittest for action, what arms were necessary, how the £20,000 or £30,000 which the Duke of Monmouth considered necessary for the rising were to be raised; lastly and chiefly how to 'order it, as to draw Scotland into a consent with us.' Another meeting was held ten days afterwards at Lord Russell's, when the same persons were present. It was then decided to send messengers to Lord Argyle 'to settle an understanding with him, and others to invite to England persons' that were judged most able to understand the state of Scotland, and give an account of it. Aaron Smith[17] was accordingly sent to Sir John Cochram[18], Lord Melvile[19], and Sir —— Campbell, and received sixty guineas from Algernon Sidney for his expenses. It was agreed that the conspirators should not meet together again till Aaron Smith's return. His absence for a month caused some apprehensions; 'but if his letters had miscarried, it could have done no great hurt, for it carried only a kind of cant in it; it was under the disguise of a plantation in Carolina.'

Attorney-General—You are sure my lord Russell was there?

Lord Howard—Yes, sir; I wish I could say he was not.

Attorney-General—Did he sit there as a cypher? What did my lord say?

Lord Howard—Every one knows my lord Russell is a person of great judgment, and not very lavish in discourse.

Serjeant Jeffreys—But he did consent?

Lord Howard—We did not put it to the vote, but it went without contradiction, and I took it that all there gave their consent.

Solicitor-General—The raising of money you speak of, was that put into in any way?

Lord Howard—No, but every man was to put themselves upon thinking of such a way, that money might be collected without administering jealousy.

Attorney-General—Were there no persons to undertake for a fund?

Lord Howard—No, I think not. However it was but opinion, the thing that was said was jocosely, rather than anything else, that my lord of Essex had dealing in money, and therefore he was thought the most proper person to take care of those things; but this was said rather by way of mirth, than otherwise.

Howard then withdrew to Essex to see after some private affairs; on returning to town he heard that Smith had returned with Sir John Cochram but did not see them. He then went to Bath and had nothing more to do with the conspiracy.

Lord Chief-Justice—My lord Russell, now if your lordship pleases, is the time for you to ask him any questions.

Lord Russell—The most he hath said of me, my lord, is only hearsay; the two times we met, it was upon no formed design, only to talk of news, and talk of things in general.

Lord Chief-Justice—But I will tell you what it is he testifies, that comes nearest your lordship, that so you may consider of it, if you will ask any questions. He says after my lord Shaftesbury went off (all before is but inducement, as to anything that concerns your lordship, and does not particularly touch you; after his going away he says) the party concerned with my lord Shaftesbury did think fit to make choice of six persons to carry on the design of an insurrection or rising, as he calls it, in the kingdom; and that to that purpose, choice was made of the Duke of Monmouth, my lord of Essex, your lordship, my lord Howard, colonel Sidney, and Mr. Hambden.

Lord Russell—Pray my lord, not to interrupt you, by what party (I know no party) were they chosen?

Lord Howard—It is very true, we were not chosen by community, but did erect ourselves by mutual agreement, one with another, into this society.

Lord Russell—We were people that did meet very often.

Lord Chief-Justice—Will your lordship please to have any other questions asked of my lord Howard?

Lord Russell—He says it was a formed design, when we met about no such thing.

Lord Chief-Justice—He says that you did consult among yourselves, about the raising of men, and where the rising should be first, whether in the city of London, or in more foreign parts, that you had several debates concerning it; he does make mention of some of the duke of Monmouth's arguments for its being formed in places from the city; he says you did all agree, not to do anything further in it, till you had considered how to raise money and arms: and to engage the kingdom of Scotland in this business with you, that it was agreed among you that a messenger should be sent into the kingdom of Scotland. Thus far he goes upon his own knowledge, as he saith; what he says after, of sending a messenger, is by report only.

Attorney-General—I beg your pardon, my lord.

Lord Chief-Justice—It is so, that which he heard concerning the sending of Aaron Smith.

Attorney-General—Will you ask him any questions?

Lord Russell—We met, but there was no debate of any such thing, nor putting anything in method. But my lord Howard is a man that hath a voluble tongue, talks very well, and is full of discourse, and we were delighted to hear him.

Attorney-General—I think your lordship did mention the Campbells?

Lord Howard—I did stammer it out, but not without a parenthesis, it was a person of the alliance, and I thought of the name of the Argyles.

Atterbury was called, and swore that Sir Hugh Campbell was in his custody; was captured 'making his escape out of a woodmonger's house, both he and his son'; he owned that he had been in London four days, and that he and his son and Bailey came to town together.

West[20] was then called and sworn.

Attorney-General—That which I call you to, is to know whether or no, in your managery of this plot, you understand any of the lords were concerned, and which.

Mr. West—My lord, as to my lord Russell, I never had any conversation with him at all, but that I have heard this, that in the insurrection in November, Mr. Ferguson and colonel Rumsey did tell me that my lord Russell intended to go down and take his post in the West, when Mr. Trenchard had failed them.

Lord Chief-Justice—What is this?

Attorney-General—We have proved my lord privy to the consults; now we go about to prove the under-actors did know it.

West—They always said my lord Russell was the man they most depended upon, because he was a person looked upon as of great sobriety.

Lord Russell—Can I hinder people from making use of my name? To have this brought to influence the gentlemen of the jury, and inflame them against me, is hard.

Lord Chief-Justice—As to this, the giving evidence by hearsay will not be evidence; what colonel Rumsey, or Mr Ferguson told Mr. West, is no evidence.

Attorney-General—It is not evidence to convict a man, if there were not plain evidence before; but it plainly confirms what the other swears: but I think we need no more.

Jeffreys—We have evidence without it, and will not use anything of garniture; we will leave it as it is, we won't trouble your lordship any further. I think, Mr. Attorney, we have done with our evidence.

The Lord Chief-Justice then recapitulated the evidence given against Lord Russell, dwelling particularly on the traitorous character of Rumsey's message, Russell's privity to Trenchard's rising, the alleged written declaration, and the consultations as to the best method of effecting a rising, and finally called on Lord Russell to make his defence.

Lord Russell—My lord, I cannot but think myself mighty unfortunate, to stand here charged with so high and heinous a crime, and that intricated and intermixed with the treasons and horrid practices and speeches of other people, the king's counsel taking all advantages, and improving and heightening things against me. I am no lawyer, a very unready speaker, and altogether a stranger to things of this nature, and alone, and without counsel. Truly, my lord, I am very sensible, I am not so provided to make my just defence, as otherwise I should do. But, my lord, you are equal, and the gentlemen of the jury, I think, are men of consciences; they are strangers to me, and I hope they value innocent blood, and will consider the witnesses that swear against me, swear to save their own lives; for howsoever legal witnesses they may be accounted, they can't be credible. And for col. Rumsey, who it is notoriously known hath been so highly obliged by the king, and the duke, for him to be capable of such a design of murdering the king, I think nobody will wonder, if to save his own life, he will endeavour to take away mine; neither does he swear enough to do it; and then if he did, the time by the 13th of this king, is elapsed, it must be as I understand by the law, prosecuted within six months; and by the 25 Edw. III. a design of levying war is no treason, unless by some overt-act it appear.[21] And, my lord, I desire to know, what statute I am to be tried upon; for generals, I think, are not to be gone upon in these cases.

The Attorney-General replies that they are proceeding under the Statute of 25 Edward III.; that he does not contend that a design to levy war is treason, but to prepare forces to fight against the King is a design within the Statute to kill the King; 'to design to depose the King, to imprison the King, to raise the subjects against the King, these have been settled by several resolutions to be within that Statute, and evidences of a design to kill the King.'[22] A man cannot be convicted of treason by one witness only, but several witnesses to several acts which manifest the same treason are sufficient.

Jeffreys—If my lord will call his witnesses——

Lord Russell—This is tacking of two treasons together; here is one in November by one witness, and then you bring in another with a discourse of my lord Howard, and he says the discourse passed for pleasure.

The Lord Chief-Justice and Jeffreys point out that it has been settled that the two witnesses required in treason may be witnesses to different acts, and that if Lord Russell admits the facts his counsel may be heard on the point of law.

Lord Chief-Justice—My lord, to hear your counsel concerning this fact, that we cannot do, it was never done, nor will be done. If your lordship doubts whether this fact is treason or not, and desires your counsel may be heard to that, I will do it.

Solicitor-General—Will your lordship please to call any witness to the matter of fact?

Lord Russell—It is very hard a man must lose his life upon hearsay. Colonel Rumsey says he brought a message which I will swear I never heard nor knew of. He does not say he spake to me, or I gave him any answer. Mr. Sheppard remembers no such thing; he was gone to and again. Here is but one witness, and seven months ago.

Attorney-General—My lord, if there is anything that is law, you shall have it

Lord Russell—My lord, colonel Rumsey, the other day before the king [the information of Rumsey is signed by the Duke of Abermarle and Sir Leoline Jenkins, Secretary of State] could not say that I heard it, I was in the room, but I came in late, they had been there a good while; I did not stay above a quarter of an hour tasting sherry with Mr. Sheppard.

Here some of the judges desired that 25 Edw. III. c. 2 should be read, which was done. The material parts of it declare 'that whereas divers opinions have been before this time, in what case treason shall be said, and in what not ... when a man doth compass or imagine the death of our lord the king ... or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be provable attainted of open deed by people of their condition,' it is treason. On this the point of law is re-discussed with the same result as before.

Lord Russell—I do not know how to answer it. The points methinks must be quite otherwise, that there should be two witnesses to one thing at the same time.

Attorney-General—Your lordship remembers, in my lord Stafford's case, there was but one witness to one act in England, and another to another in France.

Lord Russell—It was to the same point.

Attorney-General—To the general point, the lopping point.

Lord Russell—I can prove I was out of town when one of these meetings was; but Mr. Sheppard cannot recollect the day, for I was out of town all that time. I never was but once at Mr. Sheppard's and there was nothing undertaken of viewing the guards while I was there. Col. Rumsey, can you swear positively, that I heard the message, and gave any answer to it?

Lord Chief-Justice (to Col. Rumsey)—Sir, did my lord Russell hear you when you delivered the message to the company? Were they at the table, or where were they?

Colonel Rumsey—When I came in they were standing at the fireside; but they all came from the fireside to hear what I said.

Lord Russell—Col. Rumsey was there when I came in.

Colonel Rumsey—No, my lord. The duke of Monmouth and my lord Russell went away together; and my lord Grey, and sir Thomas Armstrong.

Lord Russell—The duke of Monmouth and I came together, and you were standing at the chimney when I came in; you were there before me. My lord Howard hath made a long narrative here of what he knew. I do not know when he made it, or when he did recollect anything; 'tis but very lately, that he did declare and protest to several people, that he knew nothing against me, nor of any Plot I could in the least be questioned for.

Lord Chief-Justice—If you will have any witnesses called to that, you shall, my lord.

Lord Russell—My lord Anglesey, and Mr. Edward Howard.

My lord Anglesey stood up.

Lord Chief-Justice—My lord Russell, what do you ask my lord Anglesey?

Lord Russell—To declare what my lord Howard told him about me, since I was confined.

Lord Anglesey—My lord, I chanced to be in town the last week; and hearing my lord of Bedford was in some distress and trouble concerning the affliction of his son, I went to give him a visit, being my old acquaintance, of some 53 years' standing, I believe; for my lord and I were bred together at Maudlin College in Oxon; I had not been there but a very little while, and was ready to go away again, after I had done the good office I came about; but my lord Howard came in, I don't know whether he be here.

Lord Howard—Yes, here I am to serve your lordship.

Lord Anglesey—And sat down on the other side of my lord of Bedford, and he began to comfort my lord; and the arguments he used for his comfort, were, my lord, you are happy in having a wise son, and a worthy person, one that can never sure be in such a Plot as this, or suspected for it, and that may give your lordship reason to expect a very good issue concerning him. I know nothing against him, or any body else, of such a barbarous design, and therefore your lordship may be comforted in it. I did not hear this only from my lord Howard's mouth, but at my own home on the Monday after, for I used to go to Totteridge for fresh air; I went down on Saturday, this happened to be on Friday (my lord being here, I am glad, for he cannot forget this discourse); and when I came to town on Monday I understood that my lord Howard upon that very Sunday had been church with my lady Chaworth. My lady has a chaplain it seems that preaches there and does the offices of the church; but my lady came to me in the evening. This I have from my lady——

Lord Chief-Justice—My lord, what you have from my lady is no kind of evidence at all.

Lord Anglesey—I don't know what my lord is, I am acquainted with none of the evidence, nor what hath been done; But my lady Chaworth came to me, and acquainted me there was some suspicion——

Jeffreys—I don't think it fit for me to interrupt a person of your honour, my lord, but your lordship knows in what place we stand here: What you can say of anything you heard of my lord Howard, we are willing to hear, but the other is not evidence. As the court will not let us offer hearsays, so neither must we that are for the king permit it.

Lord Anglesey—I have told you what happened in my hearing.

Mr. Howard was then called, and after describing steps he took to prevail on Lord Howard to come over to the King's side, when 'I sometimes found my lord very forward and sometimes softened him'; and continuing—

Lord Chief-Justice—Pray apply yourself to the matter you are called for.

Mr. Howard—This it may be is to the matter, when you have heard me: for I think I know where I am, and what I am to say.

Lord Chief-Justice—We must desire you not to go on thus.

Mr. Howard—I must satisfy the world, as well as I can, as to myself, and my family, and pray do not interrupt me. After this, my lord, there never passed a day for almost——

Lord Chief-Justice—Pray speak to this matter.

Howard—Sir, I am coming to it.

Lord Chief-Justice—Pray, Sir, be directed by the Court.

Howard—Then now, sir, I will come to the thing. Upon this ground I had of my lord's kindness, I applied myself to my lord in this present issue, on the breaking out of this Plot. My lord, I thought certainly, as near as I could discern him (for he took it upon his honour, his faith, and as much as if he had taken an oath before a magistrate), that he knew nothing of any man concerned in this business, and particularly of my lord Russell, whom he vindicated with all the honour in the world. My lord, it is true, was afraid of his own person, and as a friend and a relation I concealed him in my own house, and I did not think it was for such a conspiracy, but I thought he was unwilling to go to the Tower for nothing again;[23] so that if my lord has the same soul on Monday, that he had on Sunday, this cannot be true, that he swears against my lord Russell.

Lord Russell—Call Dr. Burnet.[24]

Lord Russell—Pray, Dr. Burnet, did you hear anything from my lord Howard, since the Plot was discovered, concerning me?

Dr. Burnet—My lord Howard was with me the night after the Plot broke out, and he did then, as he had done before, with hands and eyes lifted up to heaven, say he knew nothing of any Plot, nor believed any; and treated it with scorn and contempt.

Lord Howard—My lord, may I speak for myself?

Jeffreys—No, no, my lord, we don't call you.

Lord Chief-Justice—Will you please to have any other witnesses called?

Lord Russell—There are some persons of quality that I have been very well acquainted and conversed with. I desire to know of them, if there was anything in my former carriage to make them think me like to be guilty of this? My lord Cavendish.

Lord Cavendish—I had the honour to be acquainted with my lord Russell a long time. I always thought him a man of great honour, and too prudent and wary a man to be concerned in so vile and desperate a design as this, and from which he would receive so little advantage; I can say nothing more, but that two or three days since the discovery of this plot upon discourse about Col. Rumsey my lord Russell did express something, as if he had a very ill opinion of the man, and therefore it is not likely he would entrust him with such a secret.

Lord Russell—Dr. Tillotson.[25]

Lord Chief-Justice—What questions would you ask him, my lord?

Lord Russell—He and I happened to be very conversant. To know whether he did ever find anything tending to this in my discourse.

Lord Chief-Justice—My lord calls you as to his life, and conversation and reputation.

Dr. Tillotson—My lord, I have been many years last past acquainted with my lord Russell, I always judged him a person of great virtue and integrity, and by all the conversation and discourse I ever had with him, I always took him to be a person very far from any such wicked design he stands charged with.

Lord Russell—Dr. Burnet, if you please to give some account of my conversation.

Dr. Burnet—My lord, I have had the honour to be known to my lord Russell several years, and he hath declared himself with much confidence to me, and he always upon all occasions expressed himself against all risings; and when he spoke of some people would provoke to it, he expressed himself so determined against that matter that I think no man could do more.

Dr. Thomas Cox was then called and said that having seen a great deal of Lord Russell during the six weeks 'before this plot came out,' he had always found him against all kind of risings; he expressed distrust of Rumsey.

He said, for my lord Howard, he was a man of excellent parts, of luxuriant parts, but he had the luck not to be much trusted by any party.

The Duke of Somerset spoke shortly as to Lord Russell's honour, loyalty, and justice.

Foreman of the Jury—The gentlemen of the jury desire to ask my lord Howard something upon the point my lord Anglesey testified, and to know what answer he makes to lord Anglesey.

Lord Chief-Baron—My lord, what say you to it, that you told his father that he was a discreet man, and he needed not to fear his engagement in any such thing?

Lord Howard—My lord, if I took it right my lord Anglesey's testimony did branch itself into two parts, one of his own knowledge, and the other by hearsay; as to what he said of his own knowledge, when I waited upon my lord of Bedford, and endeavoured to comfort him concerning his son, I believe I said the words my lord Anglesey has given an account of, as near as I can remember, that I looked upon his lordship as a man of that honour, that I hoped he might be secure, that he had not entangled himself in anything of that nature. My lord, I can hardly be provoked to make my own defence, lest this noble lord should suffer, so willing I am to serve my lord, who knows I cannot want affection for him. My lord, I do confess I did say it; for your lordship well knows under what circumstances we were: I was at that time to outface the thing, both for myself and my party, and I did not intend to come into this place, and act this part. God knows how it is brought upon me, and with what unwillingness I do sustain it; but my duty to God, the king, and my country requires it; but I must confess I am very sorry to carry it on thus far. My lord, I do confess I did say so, and if I had been to visit my lord Pemberton, I should have said so. There is none of those that know my lord Russell, but would speak of my lord Russell, from those topics of honour, modesty and integrity, his whole life deserves it. And I must confess that I did frequently say, there was nothing of truth in this, and I wish this may be for my lord's advantage. My lord, will you spare me one thing more, because that leans hard upon my reputation; and if the jury believe that I ought not to be believed, for I do think the religion of an oath is not tied to a place, but receives its obligation from the appeal we therein make to God, and, I think, if I called God and angels to witness to a falsehood, I ought not to be believed now; but I will tell you as to that; your lordship knows that every man that was committed, was committed for a design of murdering the king; now I did lay 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 Russell, 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. I have said this, because I would not walk under the character of a person that would be perjured at the expense of so noble a person's life, and my own soul.

Lord Clifford, Mr. Suton Gore, Mr. Spencer, and Dr. Fitz-Williams then all gave evidence as to Lord Russell's character in general terms.

Lord Chief-Justice—My lord, does your lordship call any more witnesses?

Lord Russell—No, my lord, I will be very short. I shall declare to your lordship, that I am one that have always had a heart sincerely loyal and affectionate to the king, and the government the best government in the world. I pray as sincerely for the king's happy and long life as any man alive; and for me to go about to raise a rebellion, which I looked upon as so wicked and unpracticable, is unlikely. Besides, if I had been inclined to it, by all the observation I made in the country, there was no tendency to it. What some hot-headed people have done there, is another thing. A rebellion cannot be made now as it has been in former times; we have few great men. I was always for the government, I never desired anything to be redressed, but in a parliamentary and legal way, I have always been against innovations and all irregularities whatsoever; and shall be as long as I live, whether it be sooner or later. Gentlemen, I am now in your hands eternally, my honour, my life, and all; and I hope the heats and animosities that are amongst you will not so bias you, as to make you in the least inclined to find an innocent man guilty. I call to witness heaven and earth, I never had a design against the king's life, in my life, nor never shall have. I think there is nothing proved against me at all. I am in your hands. God direct you.

The Solicitor-General then proceeds to sum up the case against Lord Russell. The treason alleged against the prisoner is conspiring the death of the King; the overt act proving the conspiracy is the assembling in council to raise arms against the King and raise a rebellion here. Rumsey was sent by Shaftesbury to Sheppard's house to ask for news of Trenchard's rising at Taunton; the message was delivered in Russell's presence and an answer was given as from them all that they were disappointed there, and were not ready to rise. Monmouth, Grey, and Armstrong went out to inspect the guards and reported that it was feasible to surprise them. Russell was present and discussed a rising with the rest; the rising was to be on the 19th of November. Sheppard speaks to Ferguson engaging his rooms on behalf of Monmouth; there was consequently a private meeting there which Russell attended. He confirms Rumsey as to the inspecting of the guards, and speaks to the reading of a paper, though he does not say that Russell was there when it was read. Lord Howard 'gives you an account of many things, and many things that he tells you are by hearsay. But I cannot but observe to you that all this hearsay is confirmed by these two positive witnesses.' Shaftesbury told Howard of the disappointment he had met with from noble persons who would not join with him; Howard went from Shaftesbury to Monmouth to expostulate with him; 'and Monmouth said he had always told him (? Howard or Shaftesbury) he would not engage at that time.' This, says the Solicitor-General, is confirmed by Rumsey's account of the delivery of his message. Then follows the abandonment of the rising on the 19th of November in consequence of the proclamation forbidding the usual rejoicings on that occasion, and Shaftesbury's departure, leading to the formation of the committee of six, of whom Lord Russell was one, and who at one meeting discussed the proper place for the rising and at another how best to obtain assistance from Scotland. Lord Russell states that he only came to Sheppard's house by accident, about some other business, but he came with Monmouth, and Monmouth came by appointment. Surely this designed and secret meeting must have been intended for the purposes for which it was used. Lord Russell objects that this evidence proves no more than a conspiracy to levy war, which is not treason within 25 Edw. III., and though it is treason within 13 Car. II., that statute does not apply because the prosecution has not taken place within six months of the offence. But the case is one of high treason under 25 Edw. III., because 'to conspire to levy war, is an overt-act to testify the design of the death of the King'; as to which see Lord Cobham's case, 1 Jac.[26] A conspiracy to levy war against the king's person tends to seizing the King, which has always been taken to be treason. It may be different in the case of a conspiracy to levy war by such an act as overthrowing all inclosures (which is levying war), which by construction only is against the King, but such cases are to be distinguished from the levying of war against the King himself; see the case of Dr. Story. As was seen in Plunket's[27] case, to invite a foreign invasion is to conspire the death of the King. Coke, in the passage before that relied on by Lord Russell, admits that this is the law. When Coke says that to levy war is not an overt act for compassing the death of the King (that is, is not evidence of such an intention), Sir Henry Vane's case shows he is wrong.

As to the killing of the King, I am apt to think that was below the honour of the prisoner at the bar ... but this is equal treason; if they designed only to bring the King into their power, till he had consented to such things as should be moved in Parliament, it is equally treason as if they had agreed directly to assassinate him.

Lord Howard, it is true, testified repeatedly to Lord Russell's innocence, but was not this the best way of concealing his own guilt? Surely Dr. Burnet would look on himself as the last person to whom conspirators would confess their crimes.

Jeffreys followed, recapitulating a few of the facts, but adding nothing to the Solicitor-General's argument.

Lord Chief-Justice—Gentlemen of the jury, the prisoner at the bar stands indicted before you of High treason in compassing and designing the death of the king, and declaring of it by overt-acts endeavouring to raise insurrections, and popular commotions, in the kingdom here. To this he hath pleaded, Not Guilty. You have heard the evidence that hath been against him; it hath been at large repeated by the king's counsel which will take off a great deal of my trouble in repeating it again. I know you cannot but take notice of it, and remember it, it having been stated twice by two of the king's counsel to you; 'tis long, and you see what the parties here have proved. There is first of all Col. Rumsey, he does attest a meeting at Mr. Sheppard's house, and you hear to what purpose he says it was; the message that he brought, and the return he had; it was to enquire concerning a rising at Taunton; and that he had in return to my lord Shaftesbury was, that Mr. Trenchard had failed them, and my lord must be contented; for it could not be that time. You hear that he does say, that they did design a rising; he saith there was a rising designed in November, I think he saith the seventeenth, upon the day of queen Elizabeth's birth.[28] You hear he does say there was at that meeting some discourse concerning inspecting the king's guards, and seeing how they kept themselves, and whether they might be surprised, and this he says was all in order to a rising. He says, that at this my lord Russell was present. Mr. Sheppard does say, that my lord Russell was there; that he came into this meeting with the duke of Monmouth and he did go away with the duke of Monmouth he believes. He says there was some discourse of a rising or insurrection that was to be procured within the kingdom: but he does not tell you the particulars of any thing, he himself does not. My lord Howard afterwards does come and tell you of a great discourse he had with my lord Shaftesbury, in order to a rising in the city of London; and my lord Shaftesbury did value himself mightily upon 10,000 men he hoped to raise; and a great deal of discourse, he had with my lord Shaftesbury. This he does by way of inducement to what he says concerning my lord Russell.

The evidence against him is some consults that there were by six of them, who took upon them, as he says, to be a council for the management of the insurrection, that was to be procured in this kingdom. He instances in two that were for this purpose, the one of them at Mr. Hambden's house, the other at my lord Russell's house. And he tells you at these meetings, there was some discourse of providing treasure, and of providing arms; but they came to no result in these things. He tells you that there was a design to send for some of the kingdom of Scotland, that might join with them in this thing. And this is upon the matter, the substance of the evidence, that hath been at large declared to you by the king's counsel, and what you have heard. Now gentlemen, I must tell you some things it lies upon us to direct you in.

My lord excepts to these witnesses, because they are concerned, by their own shewing, in this design. If there were any, I did direct (some of you might hear me) yesterday, that that was no sufficient exception against a man's being an evidence in the case of treason, that he himself was concerned in it; they are the most proper persons to be evidence, none being able to detect such counsels but them. You have heard my lord Russell's witnesses that he hath brought concerning them, and concerning his own integrity and course of life, how it has been sober and civil, with a great respect to religion, as these gentlemen do all testify. Now the question before you will be, Whether upon this whole matter you do believe my lord Russell had any design upon the king's life, to destroy the king, or take away his life, for that is the material part here. It is used and given you (by the king's counsel) as an evidence of this, that he did conspire to raise an insurrection, and to cause a rising of the people, to make as it were a rebellion within the nation, and to surprise the king's guards, which, say they, can have no other end, but to seize and destroy the king; and 'tis a great evidence (if my lord Russell did design to seize the king's guards, and make an insurrection in the kingdom) of a design to surprise the king's person. It must be left to you upon the whole matter: you have not evidence in this case as there was in the other matter that was tried in the morning or yesterday,[29] against the conspirators to kill the king at the Rye. There was a direct evidence of a consult to kill the king, that is not given you in this case: This is an act of contriving rebellion, and an insurrection within the kingdom, and to seize his guards, which is urged an evidence, and surely is in itself an evidence, to seize and destroy the king.

Upon this whole matter, this is left to you. If you believe the prisoner at the bar to have conspired the death of the king and in order to that, to have had these consults, that these witnesses speak of, then you must find him guilty of this treason that is laid to his charge.

Then the Court adjourned till four o'clock in the afternoon, when the Jury brought the said Lord Russell in guilty of the said High Treason.

On July 14th Lord Russell was brought up before the Recorder for sentence, and, demanding to have the indictment read, pleaded that no intention to kill the King had been proved. The Recorder, however, pointed out that the point had already been taken, and that he was bound by the verdict of the jury. He then condemned the prisoner in the usual way to be drawn, hanged, and quartered. This sentence was commuted to beheading, and was carried out on 21st July.

Lord Russell was accompanied from Newgate to Lincoln's Inn Fields, where the execution took place, by Tillotson and Burnet. He spoke a few words on the scaffold, expressing his affection for the Protestant religion, and denying knowledge of any plot against the King's life, or the government. He left a paper of considerable interest from a general point of view justifying his action in relation to the Popish Plot and the Exclusion Bill. As to his trial, he asserts that he never saw Sheppard but once, and then there was no undertaking as to seizing the guards and no one appointed to view them. It may have been discoursed of then and at other times, but he never consented to it, and once at Shaftesbury's he strongly protested against it. He had an intention to try some sherry when he went to Sheppard's; but when he was in town

the duke of Monmouth came to me and told me he was extremely glad I had come to town, for my lord Shaftesbury and some hot men would undo us all, if great care be not taken; and therefore for God's sake use your endeavours with your friends to prevent anything of this kind. He told me there would be company at Mr. Sheppard's that night, and desired me to be at home in the evening, and he would call me, which he did: And when I came into the room I saw Mr. Rumsey by the chimney, although he swears he came in after; and there were things said by some with much more heat than judgment, which I did sufficiently disapprove, and yet for these things I stand condemned. It is, I know, inferred from thence, and was pressed to me, that I was acquainted with these heats and ill designs, and did not discover them; but this is but misprision of treason at most. So I die innocent of the crime I stand condemned for, and I hope nobody will imagine, that so mean a thought could enter into me, as to go about to save myself by accusing others; the part that some have acted lately of that kind has not been such as to invite me to love life at such a rate.... I know I said but little at the trial, and I suppose it looks more like innocence than guilt. I was also advised not to confess matter of fact plainly, since that must certainly have brought me within the guilt of misprision[30]. And being thus restrained from dealing frankly and openly, I chose rather to say little, than to depart from ingenuity, that by the grace of God I had carried along with me in the former parts of my life; so could easier be silent, and leave the whole matter to the conscience of the jury, than to make the last and solemnest part of my life so different from the course of it, as the using little tricks and evasions must have been.

Lord Russell's attainder was reversed by a private Act of 1 Will. and Mary on the ground that the jury were not properly returned, that his lawful challenges to them for want of freehold were refused, and that he was convicted 'by partial and unjust constructions of the law.'

FOOTNOTES:

[1] Sir Francis Pemberton was born 1625, entered Emmanuel College 1640, entered the Inner Temple 1645, was called 1654, was made a bencher 1671, a serjeant 1675, and was imprisoned by the House of Commons for an alleged breach of privilege in the same year. He was made a Judge of the King's Bench in 1679, and took part as such in several trials connected with the Popish Plot; he was discharged in 1680, returned to the bar, and replaced Scroggs as Chief-Justice of the King's Bench in 1681. He was moved to the Common Pleas in 1683, to allow Sir Edmund Saunders, who had advised in the proceedings against the City of London, to act as judge in the case. He was dismissed from his office of judge in the same year, about five weeks after Lord Russell's trial. Returning to the bar, he helped to defend the Seven Bishops, but was imprisoned by the Convention Parliament for a judgment he had given six years before against Topham, the serjeant-at-arms, who had claimed to be without his jurisdiction. He bore on the whole a high character for independence and honesty; and it is curious to learn that he lived to advise the Earl of Bedford whether Lord Russell's attainder would prevent his son succeeding to the earldom.

[2] Sir Robert Sawyer was born in 1633, entered Magdalene College, Cambridge, in 1648, where he was chamber-fellow with Pepys, joined the Inner Temple and went the Oxford circuit. He was elected to the House of Commons for Chipping Wycombe in 1673, and assisted in drafting the Exclusion Bill. He appeared for the Crown in most of the State Trials of this period. He afterwards led in the defence of the Seven Bishops, took part in the Convention Parliament, and was expelled from the House on account of his conduct in Armstrong's case. He was re-elected and became Chief-Justice of the King's Bench in 1691, and died in 1692.

[3] Heneage Finch, first Earl of Aylesford, was born about 1647: he was educated at Westminster and Christ Church. He entered the Inner Temple, became Solicitor-General in 1679, being elected to the House of Commons for the University of Oxford in the same year. He was deprived of office in 1686, and defended the Seven Bishops. He sat in the House of Commons in 1685, in all Parliaments from the Convention Parliament (1689) till he became a peer in 1703, under the title of Baron Guernsey. He was made Earl of Aylesford on the accession of George I. (1714), and died in 1719.

[4] See vol. i. p. 240.

[5] Francis North, Lord Guilford (1637-1685), the third son of the fourth Lord North, was educated at various Presbyterian schools and St. John's College, Cambridge. He was called to the bar in 1661, and with the help of the Attorney-General, Sir Geoffrey Palmer, soon acquired a large practice. After holding various provincial posts, he became Solicitor-General in 1671. He entered Parliament in 1673, and became Attorney-General the same year, becoming Chief-Justice of the Common Pleas in 1675. He always strongly supported Charles II.'s government, temporising during the Popish Plot, and being chiefly responsible for the execution of Colledge. He became Lord Keeper in 1682, and was raised to the peerage in 1683: but during his tenure of office was much vexed by intrigues, particularly by the conduct of Jeffreys, who had succeeded him in the Common Pleas. He is now chiefly remembered on account of the very diverting and interesting life of him written by his brother Roger.

[6] Pollexfen. See Note in Alice Lisle's trial, vol. i. p. 241.

[7] Sir John Holt (1642-1710) was called to the bar in 1663. He appeared for Danby on his impeachment in 1679, and was assigned to be counsel for Lords Powys and Arundell of Wardour, who were impeached for participation in the Popish Plot in 1680, but against whom the proceedings were stopped after Stafford's conviction. He appeared for the Crown in several trials preceding that of Lord Russell, and having expressed an opinion in favour of the Quo Warranto proceedings against the City of London was appointed Recorder, knighted, and called as a serjeant in 1685. He was deprived of the recordership after a year on refusing to pass sentence of death on a deserter, a point which owed its importance to Charles II.'s attempts to create a standing army; but as he continued to be a serjeant, he was unable thenceforward to appear against the Crown. He acted as legal assessor to the Convention called after the flight of James II., as a member of the House of Commons took a leading part in the declaration that he had abdicated, and was made Chief-Justice in 1689.

[8] This decision and unspecified 'partial and unjust constructions of law' were the professed ground on which Russell's attainder was subsequently reversed: see post, p. 56. Sir James Stephen (Hist. Crim. Law, vol. i. p. 412) expresses an opinion that the law upon the subject at the time was 'utterly uncertain.'

[9] Lord Grey was the eldest son of the second Baron Grey of Werk. He succeeded his father in 1675: he voted for Stafford's conviction, and was a zealous exclusionist. He was convicted of debauching his sister-in-law, Lady Henrietta Berkeley, in 1682, and consequently took no part in Russell's plot. He was arrested in connection with the Rye House Plot, but escaped to Holland, whence he returned to take part in Monmouth's rising. He was captured after Sedgemoor, but his life was spared on his being heavily fined and compelled to give evidence against his friends. He left England, but returned with William III., during whose reign he filled several offices. He was created Earl of Tankerville in 1695, and died in 1701.

[10] Lord Howard, the third Lord Howard of Escrick, was born about 1626. He entered Corpus College, Cambridge. He served in Cromwell's Life-guards. As a sectary he seems to have favoured the Restoration. He was committed to the Tower for secret correspondence with Holland in 1674. After succeeding to the peerage he furthered the trial of his kinsman Stafford. After giving evidence in this trial (see p. 15), he gave similar evidence against Algernon Sidney, was pardoned, and died in obscurity at York in 1694.

[11] The Earl of Essex was the son of the Lord Capel who was one of Charles I.'s most devoted adherents and lost his life after his vain defence of Colchester in 1648. The younger Lord Capel was made Earl of Essex at the Restoration. Though opposed to the Court party by inclination, he served on various foreign missions, and was Lord-Lieutenant of Ireland from 1672 to 1677. On his return to England he associated himself with the Country party, and on Danby's fall was placed at the head of the Treasury Commission, and thereafter followed Halifax and Sunderland in looking to the Prince of Orange for ultimate assistance rather than Shaftesbury, who favoured the Duke of Monmouth. He left the Treasury in 1679, supported Shaftesbury in 1680 on the Exclusion Bill, and appeared as a 'petitioner' at Oxford in 1680. He voted against Stafford. He was arrested as a co-plotter with Russell on Howard's information, and committed suicide in the Tower on the day of his trial (see p. 16).

[12] Algernon Sidney (1622-1683) was the son of the second Earl of Leicester, and commanded a troop in the regiment raised by his father, when he was Lord-Lieutenant in Ireland, to put down the Irish rebellion of 1641. He afterwards came over to England, joined the Parliamentary forces, and was wounded at Marston Moor. He continued serving in various capacities, returning for a time to Ireland with his brother, Lord Lisle, who was Lord-Lieutenant. He was appointed one of the commissioners to try Charles I., but took no part in the trial. He was ejected from Parliament in 1653, and adopted a position of hostility to Cromwell. He remained abroad after the Restoration, though not excepted from the Act of Indemnity, and lived a philosophic life at Rome and elsewhere. He tried to promote a rising against Charles in Holland in 1665, and opened negotiations with Louis XIV. during the French war. He returned to England in 1677 to settle his private affairs, and stayed on making friends with the leaders of the Opposition, and vainly trying to obtain a seat in the House of Commons. He quarrelled with Shaftesbury, who denounced him as a French pensioner (which he probably was), and seems to have had no connection with his plots. He was arrested on 27th June, tried by Jeffreys on 7th November, condemned, and executed on 7th December 1683.

[13] John Hampden (1656-1696) was the second son of Richard Hampden. After travelling abroad in his youth he became the intimate friend of the leaders of the Opposition on his return to England in 1682. He was arrested with them and tried in 1684, when he was imprisoned on failing to pay an exorbitant fine. After Monmouth's rising he was tried again for high treason. As Lord Grey was produced as a second witness against him, Lord Howard, who had testified before, being the first, he pleaded guilty, implicating Russell and others by his confession. He was pardoned, and lived to sit in Parliament after the Revolution; but falling into obscurity failed to be elected for his native county in 1696, and committed suicide.

[14] Rumsey had been an officer in Cromwell's army, and had served in Portugal with distinction. He obtained a post by Shaftesbury's patronage; and with West, a barrister, was responsible for the Rye House Plot. According to his own account, he was to kill the King, whilst Walcot was to lead an attack on the guards. He appeared as a witness in the trials of Walcot and Algernon Sidney, as well as in the present one. His last appearance before the public was as a witness against Henry Cornish, one of the leaders of the opposition of the City to the Court party, whom he and one Goodenough accused of participation in Russell's plot, and who was tried and executed in 1685. He had offered to give evidence against Cornish before, in 1683, but the second witness necessary to prove treason was not then forthcoming. The unsatisfactory nature of Rumsey's evidence led to Cornish's property being afterwards restored to his family, while, according to Burnet, 'the witnesses were lodged in remote prisons for their lives.' Cornish was arrested, tried and executed within a week.

[15] Walcot was an Irish gentleman who had been in Cromwell's army. He frequented West's chambers, where he met West and Rumsey, who were the principal witnesses against him. Rumsey's story was that though Walcot objected to killing the King, he promised to attack the guards. He was tried and convicted earlier on the same day.

[16] The following passages seem to give a true account of the measure of the complicity of Russell and his friends with the Rye House Plot.

[17] Aaron Smith is first heard of as an obscure plotter in association with Oates and Speke. He was prosecuted in 1682 for supplying seditious papers to Colledge, and sentenced to fine and imprisonment. He managed to escape, however, before sentence was pronounced, and was arrested in connection with the present trial, when, as nothing could be proved against him, he was sentenced for his previous offence. After the Revolution he was appointed solicitor to the Treasury; but failing to give a good account of various prosecutions which he set on foot, he was dismissed in 1697.

[18] Sir John Cochram or Cochrane was the second son of William Cochrane, created Earl of Dundonald in 1689. He escaped to Holland at the time of Russell's trial, took part in Argyle's insurrection in 1685, turned approver, and farmed the poll tax after the Revolution, but was imprisoned in 1695 on failing to produce proper accounts.

[19] George Melville was the fourth baron and the first Earl of Melville. He supported the Royalist cause in Scotland, and tried to induce a settlement with the Covenanters before the battle of Bothwell Bridge. He escaped from England after the discovery of the Rye House Plot, and appeared at the Court of the Prince of Orange. After the Revolution he held high offices in Scotland till the accession of Anne, when he was dismissed. He died in 1707.

[20] West was a barrister at whose chambers in the Temple Rumsey, Ferguson, and other plotters used to meet, and it was alleged that the Rye House Plot was proposed: said by Burnet to have been 'a witty and active man, full of talk, and believed to be a determined atheist.'

[21] As to what is treason under 25 Edward III., see post, p. 36. Under 13 Car. II. c. 1 it is treason, inter alia, to devise the deposition of the King; but the prosecution must be within six months of the commission of the offence.

[22] The question was, 'What is included in the expressions "Imagine the King's death" and "Levying war against the King"?' The Attorney-General was evidently placing a gloss on them, which was perhaps justified from a wider point of view than a merely legal one. However that may be, the same process was continued till it culminated in the theory of 'constructive treason,' according to which it was laid down in 1794 that a man who intended to depose the King compassed and imagined his death. The matter was eventually decided in 1795 by a statute which made such an intent and others of the same kind treason of themselves. See further Stephen's History of Criminal Law, vol. ii. pp. 243-283.

[23] He had been twice sent to the Tower: once in 1674 in consequence of the discovery of a secret correspondence with Holland; once in 1681 on a false charge by Edward Fitzharris of writing the True Englishman, a pamphlet advocating the deposition of Charles II. and the exclusion of the Duke of York, which was in fact written by Fitzharris, it is suggested with the purpose of imputing its authorship to the Whigs. It is no doubt the second of these occasions that is referred to.

[24] Burnet had at this time retired into private life, having lost the Court favour which he had gained at an earlier period. He had been an intimate friend of Stafford, and was living on terms of the closest intimacy with Essex and Russell at the time of their arrest. After Russell's execution he left the country, and eventually found his way to the Hague just before the Revolution, where he performed services for William and Mary requiring the utmost degree of confidence. He landed at Torbay with William, soon became Bishop of Salisbury, and until the end of William's life remained one of his most trusted councillors. He retained a position of great influence under Anne, and died in 1715. In relation to his evidence in this case, it is interesting to read in his history that Russell was privy to a plot for promoting a rebellion in the country and for bringing in the Scotch. He says further: 'Lord Russell desired that his counsel might be heard to this point of seizing the guards; but that was denied unless he would confess the fact, and he would not do that, because as the witnesses had sworn it, it was false. He once intended to have related the whole fact just as it was; but his counsel advised him against it'; in fact Russell admitted that he knew of a traitorous plot, and did not reveal it. 'He was a man of so much candour that he spoke little as to the fact; for since he was advised not to tell the whole truth, he could not speak against that which he knew to be true, though in some particulars it had been carried beyond the truth.' See too post, p. 55.

[25] John Tillotson (1630-1694) was the son of a weaver of Sowerby. He entered Clare Hall in 1647, and became a fellow of the same college in 1651. He received an early bias against Puritanism from Chillingworth's Religion of Protestants, and his intercourse with Cudworth and others at Cambridge. He became tutor to the son of Prideaux, Cromwell's Attorney-General in 1656; he was present at the Savoy Conference in 1661, and remained identified with the Puritans till the passing of the Act of Uniformity in 1662; afterwards he became curate of Cheshunt in Hertfordshire and rector of Keddington in Suffolk. In 1664 he was known as a celebrated preacher, and was appointed preacher in Lincoln's Inn. In 1678 and 1680 he preached sermons to the House of Commons and the King respectively, exhorting the former to legislation against Popery, and pointing out to the latter that whilst Catholics should be tolerated, they should not be allowed to proselytise. He attended Russell on the scaffold, and with Burnet was summoned before the Council on a suspicion of having helped to compose Russell's published speech. He acquired great influence after the Revolution; and having exercised the archiepiscopal jurisdiction of the province of Canterbury during Sancroft's suspension, became himself archbishop in 1691.

[26] Henry Brooke, the eighth Lord Cobham, after losing Court favour on the death of Elizabeth, was accused in 1603 of plotting with Aremberg, the Spanish ambassador, to place Arabella Stuart on the throne, and to kill the King. His evidence contributed largely to the conviction of Sir Walter Raleigh of the same treason, and he was tried and convicted the next day. He was kept in prison till 1617, when he was allowed to go to Bath on condition that he returned to prison; but he was struck by paralysis on his way back and died in 1619. See vol. i. pp. 19-57.

[27] Oliver Plunket (1629-1681) was Roman Catholic bishop of Armagh and titular primate of Ireland. He attained these positions in 1669; in 1674 he went into hiding when the position of the Catholics in England drew attention to their presence in Ireland. He was arrested, on a charge of complicity with the Popish Plot in 1678, and eventually tried in the King's Bench for treason in 1681 by Sir Francis Pemberton, when the law was laid down as stated above. He was convicted, hung, beheaded and quartered.

[28] Rumsey says the 19th, Howard the 17th. The 17th was the anniversary of the Queen's accession.

[29] Thomas Walcot and William Hone, tried for and convicted of participation in the Rye House Plot.

[30] See ante, p. 42.

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