THE TRYAL OF THE LORD RUSSEL.

July 13. 1683. My Lord Russel was set to the Bar, within the Bar.
Clerk of the Crown.

William Russel, hold up thy hand

which he did

Then this In­dictment was read, which is as followeth.

Note: London. THe Jurors of our Sovereign Lord the King upon their Oaths present, That William Russel late of London Esq together with other false Traitors, as a false Traitor against the most Illustrious and Excellent Prince, our Sove­raign Lord Charles the Second, by the Grace of God of England, Scotland, France and Ireland King, his natural Lord; not having the Fear of God in his Heart, nor weighing the Duty of his Allegiance, but being moved and seduced by the Instigation of the Devil; and the true Duty and natural Obedience, which true and faithful Subjects of our Sovereign Lord the King, towards him our said Lord the King do bear, and of right ought to bear, wholly withdrawing; and with his whole Strength intending the Peace and Common Tran­quility of this Kingdom of England to disturb, and War and Rebellion against our said Lord the King to move, and stir up; and the Government of our said Lord the King within this Kingdom of England to subvert; and our said Lord the King from his Title, Honour, and Kingly Name of the Imperial Crown of this his Kingdom of England, to put down, and de­prive; and our said Lord the King to Death and final Destruction to bring and put; the second day of November, in the Year of the Reign of our Sovereign Lord Charles the Second King of England, &c. the 34th, and diverse other days and times, as well before as after, at the Parish of St. Michael Bassishaw, in the Ward of Bassishaw London, aforesaid, maliciously and traiterously, with diverse other Traitors, to the Jurors aforesaid unknown, he did conspire, compass, imagine and intend, our said Lord the King, his Supream Lord, not only of his Kingly State, Title, Power and Government of this his Kingdom of England, to deprive, and throw down; but also our said Lord the King, to kill, and to Death to bring and put; and the ancient Government of this his Kingdom of England to change, alter, and wholly to subvert; and a Miserable Slaughter amongst the Subjects of our said Lord the King, through his whole Kingdom of England, to cause and procure; and Insurrection and Rebelli­on against our said Lord the King to move, procure, and stir up, within this Kingdom of England. And to fulfil and perfect the said most horrible Treasons, and Traiterous Compass­ings, Imaginations, and Purposes aforesaid, he the said William Russel, together with o­ther false Traytors, as a false Traytor, then and there, and diverse other Days and Times, as well before as after, Maliciously, Trayterously, and advisedly, between themselves, and with diverse other Traytors, to the Jurors aforesaid unknown, they did meet together, con­sult, agree, and conclude, and every of them, then and there, did consult, agree and con­clude, Insurrection and Rebellion against our Sovereign Lord the King, within this King­dom of England, to move and stir up; and the Guards for the Preservation of the Person of our said Lord the King, to seize and destroy, against the Duty of his Allegiance, against the Peace, &c. And also against the Form of the Statutes, &c.

Cl. of Cr.
[Page 2]

How saiest thou, art thou Guilty, or not Guilty?

L. Russel.

My Lord, may I not have a Copie of the Matter of Fact laid against me, that I may know what to answer to it?

L. Ch. J.

My Lord, we can grant you nothing till you have pleaded. Therefore that which is put to you now is, whether you say you are Guilty, or not Guilty?

L. Russel.

My Lord, I am not Guilty.

Cl. of Cr.

Culprit, How wilt thou be tryed?

L. Russel.

By God and my Country.

Cl. of Cr.

God send thee a good deliverance.

L. Russel.

My Lord I thought a Prisoner had never been arraigned and tryed at the same time, I have been a close Prisoner.

L. Ch. Just.

For Crimes of this Nature, My Lord, we do it continually.

L. Russel.

It is hard, my Lord.

Mr. Att. Gen.

My Lord hath no reason to complain for want of notice, for since Monday seven-night he had notice of his Trial, and the matters alledged against him he had notice of, for Questions were put to him about this matter, he hath been fairly dealt with, he hath had the liberty of Counsel to advise him; there hath been no sort of liberty denied him, which becomes any Subject to have in this condition.

L. Ch. J.

My Lord, I do not know whether you hear Mr. Attorny. He says your Lord­ship hath had a great deal of Favour shewn you already, in that you have been acquaint­ed with the Crimes for which you are now Indicted, that you have had a great deal of warning given you, that you have had the liberty of Counsel, which hath not been known granted to any under your Lordships Circumstances. He says, he doubts not but your Lordship is prepared for your Defence, because you have had so much knowledg, and warning of the Time and Matter for which you were to be called in question.

L. Russel.

My Lord, I am much to seek, I only heard some general Questions, and I have Witnesses, that I believe are not yet in Town, nor will be, I believe, till Night; I think it very hard I can't have one day more.

Mr. Att. Gen.

Monday seven-night your Lordship had notice.

L. Russel.

I did not know the matter I was charged with.

Mr. Att. Gen.

Yes certainly, for I was with you my self, my Lord; and those Que­stions you were examined upon, were a Favour to you, that you might know what the matter was you were accused of.

L. Ch. J.

My Lord, without the Kings consent we can't put off the Trial; if the Kings Council think not fit to put it off, we can't grant your Lordships Request in this Case.

L. Russel.

I would desire a Copy of the Pannel of the Jury, that I might consider of it; for how else can I make any just Challenge? I thought the Law had been very favou­rable to Men upon their Lives; and therefore it had allowed people to have some lit­tle notice.

L. Ch. J.

Hath not your Lordship had a Copie of the Pannel? I think your Lordship was allowed one, We gave Order your Lordship should have a Copie of the Pannel.

Mr. Att. Gen.

We did indulge him so far, that he might have a Note of all the Men returned.

L. Russel.

I never had a Copie of the Pannel.

L. Ch. J.

It was the fault of your Lordships Servants then; for I gave Order for it my self. 'Tis such a favour, that in regard a mans life lies at stake, we never did deny it, to my knowledge. And therefore in this Case I gave order to the Secondary to deliver a Copie. I know the King did not design to be hard upon my Lord in his Trial, but that he should have as fair a Trial as ever any Noble Person had.

L. Russel.

I pray I may have a Copy then.

Sir G. Jeff.

If my Lord had sent his Agents, and it had been refused, there had been something in it.

Mr. Att. Gen.

Secondary Normansell was with me, and I gave him my Allowance, though it was not his Right.

L. Ch. Just.

That my Lord may not be surprised, what think you of giving my Lord [Page 3] time till the Afternoon, and try some of the rest in the mean time?

Mr. Att. Gen.

Truly, my Lord, if I could imagine it were possible for my Lord to have any Witnesses, I should not be against it.

L. Russel.

'Tis very hard.

Mr. Att. Gen.

Do not say so, the King does not deal hardly with you, but I am afraid it will appear you would have dealt more hardly with the King: You would not have given the King an hours notice for saving his Life.

Secondary Trotman.

I gave my Brother Normansell a Copy of the Pannel on my side, and hear that my Brother Normansell hath said that he delivered a Copy. Then Secon­dary Normansell was sent for, and the Court staied for him some time.

Mr. Atwood.

My Lord, a Gentleman told me, he did not know whether it was sit, till he had consulted the Attorny General; afterwards I had a Copy as it stood then, not as it is now.

Mr. Att. Gen.

I desire my Lord may be asked who he sent for it?

L. Russel.

I did not send for it; I inquired, and they said it would be refused.

Mr. Atwood.

No, the Gentleman had it with the fair Perriwig.

L. Ch. Just.

It was delivered to your Servant, or Agent, what did you do with it?

L. Russels Gent.

Sir, the Gentleman gave me out of a Book some Names.

Sir Geo. Jeff.

What did you with them?

L. Russels Gent.

I writ them down, they were not perfect, I did not know what they were.

L. Ch. Just.

Sir, you were to blame not to deliver it to my Lord.

L. Russels Gent.

I was not bound to deliver an imperfect thing to my Lord.

L. Ch. Just.

Sir, you should have consulted your Lords advantage, so as to have de­livered any thing for his good.

L. Russels Gent.

My Lord was in the Tower, I was not admitted to my Lord.

Mr. Att. Gen.

Did you give it to my Lady?

L. Russels Gent.

Yes, those Names I had, my Lady had.

Sir Geo. Jeff.

How long ago was it?

Mr. Atwood.

Tuesday or Wednesday last.

L. Ch. Just.
To Lord Russels Servant.

Look you, Sir, when had you this?

L. Russel.

I had no Pannel, I will assure you, delivered me; I had some Names of people that they said were usually on Juries.

L. Ch. Just.

They were the Names of the Jury.

L. Russel.

They were only the Names of them that were like to be of the Jury, no other Pannel came to me.

L. C. J.

M Lord, there can be no other Copie given, but the same that was delivered; for your Lordship does know in this case, any person accused, as your Lordship is, may challenge 35; and therefore there is a Return generally of 3 score, or 4 score, and these are returned in case of your Lordships Challenge. When you have challenged so many as you please, then the 12 men that stand after your challenge are to be of the Jury: and therefore this is not like a Pannel made up by the Sheriff, in ordinary Causes between Man and Man; there they make a formal Pannel, from which they cannot depart, when that is once returned; but here in Criminal Cases, because of the Challenge, they return either 60 or 80. And I presume your Lordship was attended with the Names delivered.

Sir Geo. Jeff.

How many Names was delivered?

Mr. Atwood.

Above 100.

L. Russel.

I had nothing of a Pannel delivered to me, but some Names.

L. Ch. Just.

There was never any formal Pannel delivered to any person accused: The Copy of it is in Paper always.

L. Russel.

How can I know who to challenge?

L. C. J.

My Lord, the Copie of it is in your hands; your Lordship hath been de­ceived in this, by not understanding the true Nature of these things: if we were to give you a new one, we could give you but such an one.

L. Russel.

I had no Paper from the true Officer.

L. Ch. Just.

No, but from your Servant.

Mr. Att. Gen.
[Page 4]

My Lord, you will have cause to complain, if they are not the same men we now shall call.

L. Ch. Just.

My Lord, That Paper will guide your Lordship in your Challenges.

L. Russel.

My Lord, I did not mind it, I put it away. My Lord, with your Favour, I must needs insist upon having a Pannel, and that you will put it off till the Afternoon; I have a Witness that is not in Town. My Counsel told me it was never done, or very sel­dome, Arraigning and Trying at the same time; except in case of common Malefactors.

L. Ch. J.

Mr. Attorny, why may not this Trial be respited till the Afternoon?

Mr. Att. Gen.

Pray call the Jury.

L. Ch. J.

My Lord, the Kings Counsel think it not reasonable to put off the Trial longer, and we can't put it off without their Consent in this Case.

L. Russel.

My Lord, 'tis hard, I thought the Law had allowed a pretty deal of favour to a man when he came upon his life. How can I know to except against men, that I never heard or saw one of them.

Cl. of Cr.

You the Prisoner at the Bar; those good men that have been now called, and here appear, are to pass between you and our Soveraign Lord the King, upon your Life or Death, if you challenge any of them, you must speak as they come to the Book to be sworn, before they are sworn.

L. Russel.

My Lord, may not I have the use of Pen, Ink and Paper?

Court.

Yes, my Lord.

L. Russel.

My Lord, may I make use of any Papers I have?

L. Ch. Just.

Yes by all means.

L· Russel.

May I have some body write to help my memory?

Mr. Att. Gen.

Yes, a Servant.

L. Ch. Just.

Any of your Servants shall assist you in writing any thing you please for you.

L. Russel.

My Wife is here my Lord to do it.

L. Ch. Just.

If my Lady please to give her self the trouble.

Mr. Att. Gen.

My Lord, you may have two Persons to write for you, if you please.

L. Russel.

My Lord, here hath been a name read, that I never saw in the list of the Jury I had, I heard Sir Andrew Foster called.

L. Ch. Just.

He is not called to be of the Jury.

Cl. of Cr.

Call John Martin.

He appears.
L. Russel.

Are you a Freeholder of 40 s. a year, I hope none are allowed in the Pannel, but those that have Freeholds?

L. Ch. Just.

There is no Pannel made in London by Freeholders, we have very few Freeholders capable of being impannel'd, because the Estates of the City belong much to the Nobility and Gentlemen that live abroad, and to Corporations: therefore in the City of London the Challenge of Freeholders is excepted.

L. Russel.

My Lord, I thought it had been always so, and the Law had been clear in that Case throughout England, that no man ought to be tried for his life, but by those that have Freeholds. My Lord, I remember I read the Statute of 2 H. 5. where 'tis positive, that no Persons shall be Judged in cases of life and death but by those that have 40 s. a year.

L. Ch. Just.

My Lord, that Statute extends not to this Case. Read the Statute.

Cl. of Cr.

Whereas Perjury is much used in the City of London upon persons, &c,

L. Ch. Just.

Is this the Statute your Lordship has read?

L. Russel.

This is not in the case of Life and Death.

L. Ch. J.

It is not, my Lord.

L. Russel,

That that I read is positive. And if your Lordship will not allow of it, I desire my Counsel may come and argue it, for 'tis a matter of Law, and I can't argue it, whether the Jury are not to be Freeholders.

Mr. Serj. Jeff.

There is nothing mentioned in that Statute with relation to the City of London indeed, but the necessity of the thing requires it.

Mr. Att. Gen.
[Page 5]

It will not be material, 'tis a collateral point, for most of the Jurie have Freeholds.

L. C. J.

Do you allow the Exception?

Mr. Att. Gen.

No, my Lord.

L. C. J.

Therefore we must, if my Lord stand upon it, hear his Counsel. My Lord, we will hear your Counsel; what Counsel do you desire, my Lord?

L. Russel.

The Counsel that were allotted me.

L. C. J.

No you must have Counsel assigned by us. The Counsel that was assigned elsewhere signifies nothing.

L. Russel.

Mr. Pollexfen, Mr. Holt, and Mr. Ward.

The said persons were called, and came into Court.
L. Ch. Just.
To the Counsel.

Gentlemen, my Lord here desires Counsel, you are here assigned as Counsel for my Lord Russel that is at the Barr, 'tis concerning a thing where­in he doubts the Law, he would except to the Jury upon this account, to the Poll, be­cause they have not Freehold within the City of London, and he desires you may be as­signed his Counsel to make it out that this is a cause of Challenge.

Mr. Att. Gen.

'Tis a case of Treason, Mr. Pollexfen.

Mr. Ward.

We take it so.

Mr. Pollexf.

My Lord, perhaps if we had more consideration of it we should speak more, but if your Lordship pleases to hear us what we can say; first, we take it, with submission, at common Law a Freehold was necessary to make a man a Juryman. But that which falls out in this case is the Statute of 2 H. 5. c. 3. which Statute, I suppose, is here in Court; That Statute saies this (if you please I will quote the substance of it,) that none shall be admitted to pass upon any Inquest upon the Tryal of the Death of a man, ex­cept he have Lands and Tenements of the yearly value of 40 s. Now we are here, I think, within the Words of the Statute, and I take it to be no Question at all were we not in a City and County. I think this would be no Question upon any Trial in any Coun­ty at large. The Statute does not make any exception or distinguishment between Cities and Counties at large, but the Words are general, as I have opened them. My Lord, the Statute does also provide in cases of Freehold, or 40 Marks. Now, my Lord, to prove this Statute extends to London, though a City and County, there are other Statutes that have been subsequent make it plain that it does so extend. But before I speak to them, there is, 1 Inst. so. 157. that takes notice of this Statute, and speaks it generally that the Freehold ought to be in the same County, nor do I remem­ber to have seen any Book that distinguishes between Counties at large and Cities and Counties. But Statutes that have been made concerning Cities and Counties are a plain declaration that this is meant of Juries both in Cities and Counties. I will mention the Statute 7 H. 7. c. 5. The substance of the Statute is this; It takes notice that there were Challenges in London for that they had not 40 s. per Ann. and that this Challenge was to be made in the Wards, which are the same with Hundreds in the Counties, so this Statute is made to take away the Challenge of 40 s. Freehold. This Statute of 7 H. 7. that takes away the Challenge in London for not having 40 s. is, with submissi­on, a strong Evidence and Authority that it was before that time a good Challenge, for otherwise to what end should they make a Statute to take away the Challenge, unless it were before a good cause of Challenge. In the next place 4 H. 8. c. 3. that extends to Civil Causes in London, and says, That in London Jurors shall (but provides only for London in Civil Causes) be admitted in Civil Causes, that have Goods to the value of 100 Marks. My Lord, if that first Statute, or the Common Law, had not extend­ed to require Freeholds in London, then there would have been no need of this Statute that was made to enable men to be Jurors that had Goods to the value of 100 Marks. So that we take it to be good Authority, that by the Common Law Freehold was re­quired in all Civil Causes. Then there is another Statute 23 H. 8.13. and that will be a strong evidence to shew what the Law is: For the Statute says, in Cities and Boroughs, in Trials of Murder and Felony, if a Freeman of the City of London is to be tried, the [Page 6] Freemen shall be upon the Jury, though they have not Freehold, and then there is a Proviso, that for Knights and Esquires that are out of the Burrough, though they are ar­rained in the Burrough, that extends not to them, though in cases of Murder and Felo­ny. As for this Statute, we take this sense of it, First that it does not extend to Trea­sons; for when it only names Murders and Felonies, that makes no alteration as to Trea­sons, therefore that stands as before: But if there be any alteration, that extends only to Freemen and Burgesses that are to be tried, but not to Knights and Esquires, so that if we were in a case of Felonie and Murder, I think we are not concerned in this Statute, for we are no Freeman nor Burgess, but we are an Esquire, and therefore ought to be tried by Freeholders: so that for the Law we relie upon these Statutes, that we have looked upon as strong evidence that there ought to be in the Trial of the Life of a man, especially for Treason, Freeholders. First, if it were in Civil Causes, if this qualifica­tion be not in Jurie-men, then an Attaint would lie; the Penaltie in an Attaint is, that their Houses should be pulled down, &c. This is provided by the Law, to the intent the Jurie may be careful to go according to their Evidence. 'Tis true, no Attaint does lie in Criminal Causes, but if so be in Civil Causes there be required Freeholders, and an Attaint lies if there be not, 'tis not reasonable to think but there should be as great regard to the Life of a man, as to his Estate. Next, my Lord, I do not know any Law that sets any kind of qualification but this of Freehold, so that be the persons of what condition or nature soever, (supposing they be not outlawed) yet these persons, if this Law be not in effect, may then serve, and be put upon the Life of a man. These are the reasons, my Lord, for which we apprehend they ought to be Freeholders.

Mr. Holt.

My Lord, I would desire one word of the same side: We insist in this case upon these two things; First, we conceive, by the Common Law, every Jurie man ought to have a Free hold, we have good Authority for it, Cokes first Institutes, but if that were not so▪ I think the Statute Mr. Pollexfen hath first mentioned, 2 H. 5. c. 3. to be express in this point. My Lord the Statute in the Preamble does recite all the mischiefs, it saies great mischiefs, ensued by Juries that were made up of persons that had not Estates sufficient; in what? as well in the case of the Death of a man, as in the case of Free­hold between Party and Party: the Statute reciting this mischief, does in express words, provide two Remedies for the same in these cases: first on the Life or Death of a man, the Jury or Inquest to be taken shall have 40 s. per ann. and so between party and party 40 Marks, so that this being the Trial of the Death of a man, it is interpreted by Stam­ford 162. a. that is in all cases where a man is arraigned for his Life, that is within the express words of the Statute. Besides this Exposition that hath been put upon the Sta­tute, my Lord, it does seem that the Judgment of several Parliaments hath been accor­dingly in several times and ages. My Lord, to instance in one Statute that hath not been mentioned, and that is the 33 of H. 8. c. 23. that does give the King Power to a­ward Commissions of Oyer and Terminer for Trials in any County of England: and that (saies the Statute) in such cases no Challenge to the Shire or Hundred shall be allowed; that is▪ you shall not challenge the Jury in such a case, because they have not Free-hold, are not of the County where the Treason was committed; but that upon the Trial Challenge for lack of Free-hold of 40 s. a year shall be allowed, though it alters the manner of trying Treason by the Common Law; so that, my Lord, here is the Opini­on of that very Parliament; that though it took away the usual method of Trials, yet it sayes the Prisoners Challenge for want of Free-hold. Now indeed that Statute is re­pealed; but I mention it as to the Proviso that it shews the Judgment of that Parlia­ment at that time: My Lord, those other Statutes that have been made to regulate Cities and Towns Corporate, why were they made? 33 H 8. That no Free-hold should be allowed, that shews that 2 H. 5. did extend to these Cases. But, my Lord, these Statutes that shew the Judgment of the Parliament, sufficient to our purpose, do not extend to this Case; the Statute goes only to Murders and Felonies, but [Page 7] not to Treasons: And we are in the Case of a Penal Statute, and concerning the Life and Death of a Man, which ought to be taken strictly, it ousts the Prisoner of a Benefit; and by parity of Reason. If Treason be not mentioned, your Lordship can't by Equity extend it to it, when it only mentions inferiour Offences, and takes away the benefit in lower Cases: Like the Case of the Bishop of Winchester, where the Sta­tute set down Dean and Chapters, and other Ecclesiastical Persons, it shall not extend to Bishops, because it begins with Persons of an inferiour Nature: No more shall Murder and Felony extend to Treason. But further the Statute only concerns Freemen, for there is an express Proviso ,n the Case: for in case any Knight, or Esquire come to be Tried in the Place, he has his Benefit as before. My Lord, we are in this Case, as in the Case not mentioned in the Statute, we are not a Freeman of London. My Lord, there is another thing 7 H. 7. c. 5. Why there was not only requisite at the Common Law, that the Jurors had sufficient Freehold, but it was required it should be in the Hundred; and Freehold in the Wards in the Citie is the same with Freehold in the Hundreds in the Country: So that the want of Freehold in the Hundred, was a good cause of Chal­lenge. So that I think it will hardly be denied, but that a Jurie that passes upon the life of a Man, ought by the Law, by the Statute, and by the Judgment of the Parlia­ment, to have Freehold. Where is there then any Statute whatsoever that makes a difference in this Case, between London and other Counties; We are in the case of Treason, we have taken our Exceptions, and on behalf of the Prisoner at the Bar we pray the Challenge may be allowed.

Mr. Ward.

My Lord, I shall be short, because Mr. Pollexfen has observed these things, so particularly already, I observe the Statute of H. 5. is a general Statute, and extends throughout the Realm: Now when the thing is thus general, there is no room to except particulars. And in this case 'tis within the very words of the Law, if the words be so generally penned in the negative, then we conceive there is no construction to be made upon them, unless some subsequent Parliament alter it. Coke's Institutes 157. where 'tis said in Treason as well as any thing else, upon H. 5. there shall be Freeholds. If they have provided in Civil and other Criminal Causes, it were strange that this should be Casus omissius, but there is no construction against a negative Law. For the Parliament taking care of the City of London (as the subsequent Statutes say) that he that hath 100 Marks shall pass in Civil Causes, and then it says in Murders and Fe­lonies, and that only confined to the Freemen of the place, does sufficiently explain the Law, where 'tis not altered by any subsequent Act, therefore I desire the Challenge may be admitted.

Mr. Att. Gen.

My Lord, these Gentlemens Foundation is not good, for they prove it not by any Books, that at Common Law it was requisite for a Juryman to have Freehold. My Lord, I deny their Foundation, there is no such Law, and at this day in all Criminal Cases where the Statute does not direct it, as for Riots and other In­formations for Misdemeanour, there is no Law restrains them, and they may be tried by any men they have no exception against. Then 2 H. 5 says, None shall be admit­ted to pass upon the death of a Man, (I take it to extend to all Capital matters, though it is prettie odly expressed; for when a Man is accused of Felonies and other High Treasons, 'tis of the death of a Man) unless he have Lands or Tenements, of the yearly value of 40 s. But I will take it as these Gentlemen do at this Time, it not being so at Common-Law, nor in other criminal cases, but what are provided for by the Statute: as to other matters of Felonie and Murder, no doubt there these Challenges are to be taken upon the Statute, but not for Treason, because the Statute of Queen Mary does expresly repeat their Statute; and no Statute since takes away the force of that of Q. Ma­ry; that all Trials for Treason shall be as at the Common-Law; and according to this the constant practice in all Cities (not only London) where Persons have been Indicted for High Treason hath been. There was never any such thing pretended: Most of [Page 8] London; so that the Statute they speak of, and the Interpretations of the several other these Gentlemen have Freeholds, but we would not have this point lost to the Citie of Statutes too, are to no purpose; for we say by Common-Law all Causes might be tried by any Persons, against whom there was not sufficient cause of Challenge; and the Common-Law is by that Statute restored in this point.

Mr. Sol. Gen.

My Lord, I have little to say; Mr. Attorney hath given a true Answer to it, the Foundation does fail them. It was not necessary at Common-Law, for a Jury-man to have Freehold: but then they must shew you, my Lord, it is altered, and made ne­cessary. The Statute of H. 5. does not seem to extend to Treason, but if it did, 'tis now out of doors, by that of Q Mary, whereby all Trials of Treason are reduced to the Com­mon-Law. This is that we answer, they fail in their foundation, they do not make it out, that it was necessarie for a Jury-man at Common-Law to have Free-hold.

Sir Geo. Jeff.

My Lord, I confess they have cited several Acts of Parliament, and upon them laid their Foundation, and drew Inferences from them? But they will find, that in several Acts of Parliament which they have quoted, there is a particular regard had for the preservation of the constant Usage and Custom for Trials within the City of London. That notwithstanding several Acts of Parliament have in other places ascertained the value of Jurors; yet they had still an Eye that the City of London should continue in its Usages. I think it will be necessarie to put you in mind of the Case of the City of Wor­cester. It would be very hard, say they, because an Attaint does not lie in Criminal mat­ters; if you intend by that to have People of Abilitie, 'tis well known, that the ablest People in the Citie of London, have scarce any Free-hold in it; for that most of the Inhe­ritances of the Citie of London remain in the Nobility and in Corporations. Now in the Case of my Lord Russel, he hath a peremptory Challenge to 35, and I think I may ad­venture to say, there can scarce be 35 more that can call themselves Free-holders in Lon­don; consider the Consequence then, Treason should be committed in the Citie of Lon­don, and there would not be enow in the Citie of London to trie it. In the Case of the Quo-Warranto brought against the Citie of Worcester, to know by what Warrant seve­ral took upon them the Offices of Aldermen; the Gentlemen at the Bar objected that it was reasonable that no Freehold should be determined, but by Free-holders. But the Judges of the Kings-Bench (the Court being full) for the necessity of the thing, lest there might not be sufficient Freeholders in the Citie, having sent one of the Judges of that Court to your Lordships of the Common-Pleas, for that Reason did agree the Challenge was not good. I know these Gentlemen will please to remember the Case; so that I say, as in one Case we ought to be tender of the life of the Prisoner, so we ought surely to be tender of the life of the King, otherwise it may so happen, that the Kings life may be in­compassed, and Treason committed in the Citie, and there would be no way in the World to try it; therefore we pray for the King the Challenge may be over-ruled.

M. North.

My Lord, it is the practice to make the Venire facias, without mentioning Freehold, for it does not Command, that they return so many men that have Freehold, but probos & legales homines de viseneto; therefore at the Common-Law, those were good Inquests to trie any man that were not Excommunicated, nor under any Out-Law. 'Tis true, there are Statutes that say, all Jury-men shall have Freehold; but we say these Sta­tutes do not extend to the Citie of London, but that it is governed by its own Customs; and we say it is the Custom that Citizens of Ability have been returned, that have no Freehold. But granting what we do not, but by way of supposal, my Lord, it does not extend to this Case, because Trials are to be according to the use at Common-Law, by the Statute of Q. Mary, which does set them at large again; and that is the reason the Prisoner, in this Case, hath his Challenge for 35, and is in other Cases restrained to 20; so that we say these men of Ability are good, and there is no Statute affects them.

L. Ch. J

Mr. Pollexfen, do you find any Judgment, that in Cases of Treason by Com­mon-Law, they might except for want of Freehold? Have you any resolution in the Case?

Mr. Pollexf.
[Page 9]

I think there are Books that say, at Common-Law there must be Freehold.

L. Ch. J.

what in Treason?

Mr. Pollexfen.

No, my Lord.

L. Ch. J.

Unless you speak of Treason, you do not speak ad idem. For I do take it that in Cases of Treason, or in Cases of Felony, at the Comon Law, they had no liber­ty to except to Jurors, that they had not any Freehold, but that at the Common-Law any good and lawful men might pass. Then take, as introductive of a new Law, the Sta­tute of H. 5. I am of the mind that this Statute of H. 5. peradventure may extend to Treasons and Felonies; but when the Statute of Q. Mary comes and says, all Trials shall be by such Evidence, and in such manner, as by Common Law they ought to have been, I do not see how it is possible to make an Objection afterwards of this nature. For, admitting this Act of Parliament of H. 5. had altered the Common Law, and given a Challenge, why then when the Statute of Q. Mary comes and sets all Trials at large in the Case of Treasons, then certainly the Challenge is gone again, and I doubt you will not find one Exception in this Case, ever since that Statute concerning the Juries Free­hold in Cases of Treason, but it hath generally passed otherwise, and there hath not been any ever excepted; I doubt it will be a very hard thing to maintain such a Challenge now. Here are my Lords and Brothers will be pleased to deliver their Opinions. It is a business of great consequence, not only for this Noble Person at the Bar, but for all o­ther Persons.

L. Ch. Bar.

I agree with your Lordship perfectly, but if the Counsel had laid a right Foundation that it had been so at Common Law, there had been much said; But I take it at Common Law there was no Challenge for want of Freehold, and I am induced to think so, for otherwise what needed the Statute of H. 5. been made? But whether it ex­tended to Treason or no, I am not so clear. And if it did, it's wiped off again by that of Q Mary, which reduces all to the Common Law Trial.

Mr. Just. Wyndham.

I am of the same Opinion: I conceive at Common Law, lack of Freehold no good cause of Challenge. 'Tis true, that Challenge is given in some Cases by Act of Parliament, yet I doubt whether it extend to a thing of so high nature as Treason, for other Statutes have not mentioned any thing of Treason. But suppose 2 H. 5. did ex­tend to it, yet it is very plain, the Statute of 1. & 2. Q. Mary hath set all at large again. They are to be good and lawful men, and I do not find that any thing of the lawfulness must be the Freehold. And therefore, I conceive this is no just Exception in this Case.

Mr. Just. Jones.

My Lord, I am of the same Opinion: I am of Opinion that the Com­mon Law did not require Freehold to be a good cause of Challenge in the Case of Trea­son, and the rather, Because at the Common Law a man that was Indicted of High Treason, had liberty to Challenge, peremptorily, to the number of 35 Persons. My Lord, if the Common Law be altered by the Stat. of H. 5. yet I take it, that the Statute of 1 & 2 Ph. & M. does restore the Common Law in this particular point. For whereas there was a Stat. of H. 8. to restrain the Prisoner to the number of 20, for his Chal­lenge, now the Statute restoring it to Common Law, the Prisoner has his Challenge to 35, as he had before that Stat. of H. 8. So I take it, the King shall have his priviledge also to try a Prisoner for Treason, by Persons that have not Freehold.

Mr. Just. Charleton.

I am of the same Opinion. And truly the rather, because no Pre­sident hath been offered of any such Challenge before, and many men have suffered, and sure if it could have been, many would have made use of it.

Mr. Just. Levins.

I am of Opinion 'tis not to be allowed. I do not think my self driven to the necessity to determin now whether Freehold was a good Challenge at Com­mon Law in point of Treason. I think the Statute of Ph. and M. hath restored the Trials to the Common Law. What was the Common Law? The Common Law is the Custom of England, which is other in Cities than in Countries, and the Custom of London is part of that Common Law, So, though it be a cause of Challenge in a County at large, yet it is not a cause of Challenge in Cities, where Freeholders are not to be found. [Page 10] Now that which satisfies me is, That this Custom is restored by the Statute of Ph. and M. Because never such a Challenge hath been. And it is known when 20 were tried for Treason together in this very place, and one of them a notable cunning Lawyer, and if such a Challenge were to have been allowed, no doubt, he would have made use of it, but the Challenge was not taken, and if he had made such a Challenge, and it had been allowed, perhaps he could not have been tried: That was Cook. I have heard several persons tried for Treason my self, and never heard it taken. There­fore I am of Opinion, that before any Statute was made in this case, it was the Custom in London to try without Freeholds, and since by the Statute of Q. Mary it is restored.

Mr. Baron Streete.

I think there was no such Challenge at Common Law. The Jury were only to be probos & legales homines, and no more, till the Statute made it so, but there is a particular Reservation for Corporations. And certainly, if this should be admitted to be a good Challenge, though it were between party and party, there would be in some Corporations a perfect failure of Justice. So that without doubt at Common Law there was no such Challenge. As for the Statute of H. 5. 'tis gone by that of Q Mary. If this were admitted within London, nothing would be more mischie­vous to this Corporation. Methinks we have been very nice in this matter, when the Life of the King is at stake, and all the Customs and Priviledges of the City of Lon­don seem to be levelled at in this point. I am of the Opinion with the rest of the Judges, that this, Challenge ought to be over-ruled.

Mr. Justice Withins.

I am of the same Opinion.

L. C. Just.

My Lord, the Court is of Opinion, upon hearing your Counsel, and the Kings, that it is no good Challenge to a Jurie in a case of Treason, that he has not Freehold within the City. But I must tell your Lordship withal, That your Lordship has nothing of hardship in this case, for notwithstanding that, I must tell you, you will have as good a Jurie, and better than you should have had in a Country of 4 l. or 40 s. a Year Freeholders. The Reason of the Law for Freeholds is, That no slight persons should be put upon a Jury, where the Life of a man or his Estate comes in Question, but in the City the persons that are impanell'd are men of Quality and Substance, men that have a great deal to lose: and therefore Your Lordship hath the same in substance, as if a Challenge was allowed of Freehold. It will be no kind of prejudice to your Lordship in this case; Therefore, if you please, apply your self as the Jury is called, and make your Exceptions, if you shall make any.

L. C. J.

Mr. Pollexfen, you shall have liberty to stay any where here, if you please.

Counsel.

Here is such a great crowd, my Lord, we have no room.

Then the Jurymen were called, and after the Lord Russel had challenged One and Thirty of them, the Jury sworn were as follows.
  • John Martin,
  • William Rouse,
  • Jervas Seaton,
  • William Fashion,
  • Thomas Short,
  • George Toriano,
  • William Butler,
  • James Pickering,
  • Thomas Jeve,
  • Hugh Noden,
  • Robert Brough,
  • Thomas Omeby.
Then was made Proclamation for Information
Cl. of Cr.

William Russel Esq hold up thy Hand.

which he did.

You of the Jurie, look upon the Prisoner, and hearken to his Cause. He stands indicted by the name of—prout before in the Indictment. Upon this Indictment he hath been arraigned, and thereunto pleaded Nor Guilty, and for his Trial hath put himself upon his Coun­try, which Country you are: Your Charge is to inquire whether he be Guilty of this High Treason whereof he stands indicted, or Not Guilty: If you find him Guilty, you shall inquire, &c.

Mr. North.

May it please your Lordship, and you that are sworn, The Prisoner at the [Page 11] Bar stands charged in this Indictment with no less than the Conspiring the Death of the Kings Majesty, and that in order to the same, he did, with other Traitors named in the Indictment, and others not known, Novemb. 2. in the 34th Year of this King, in the Parish of Bassishaw, within the City of London, meet and conspire together to bring our Soveraign Lord the King to death, to raise War and Rebellion against him, and to massacre his Subjects. And in order to compass these wicked designs, there being assembled, did con­clude to seise the Kings Guards, and His Majesties Person. This is the Charge, the Defen­dent saies he is Not Guilty, if we prove it upon him, it will be your Duty to find it.

Mr. Att. Gen.

My Lord, and you Gentlemen of the Jurie, most of our Evidence against this honorable Person at the Bar is to this purpose, This Person, the Duke of Monmouth, my Lord Grey, Sir Thomas Armstrong, and Mr. Ferguson, they were the Council of State, as I may call them, to give forth directions for the general Rising that hath appeared was to have been within this Kingdom. The Rising was of great concern and expence, and must be managed by persons of interest, prudence and great secresie. These Gen­tlemen had frequent meetings in October and November last, (for then, you may refresh your memories again, was the general Rising to be) and there they did consult how to manage the Rising; they consulted how to seise the Kings Guards; and this Noble per­son being mixed with these others, especially with Ferguson, who with others of an infe­rior rank was also ingaged in a Cabal for managing worser things (though this is bad enough); at several meetings they receive Messages from my Lord Shaftsbury touching the Rising. They being looked upon as the persons that were to conclude and settle the time and all circumstances about it.

We shall make it appear to you in the course of our Evidence, that those Underlings (for this was the great Consult, and moved all the other Wheels) who managed the Assas­sination, did take notice that these Lords & Gentlemen of Quality were to manage and steer the whole business of the Rising. It seems these Gentlemen could not give the Earl of Shaftsbury satisfaction to his mind, for he pressed them to keep their day, which was the 17. of November last, But the honourable Person at the Bar, and the rest, made him this Answer, That Mr. Trenchard had failed them, for that he had promised to have 1000 Foot and 2 or 300 Horse at 4 hours warning, but now it was come to pass, he could not perform it, that some Persons in the West would not join with them, and therefore at this time they could not proceed, and therefore they must defer the day. And as a Council, they sent my Lord Shaftsbury word he must be contented, they had otherwise resolved, and thereupon my Lord Shaftsbury went away, and Mr. Ferguson with him.

To carrie on this practice they took others into their Council, Sir Tho. Armstrong was lest out, and there falling that Scandalous Report upon my Lord Grey he was to be left out, and then there was to be a new Council of Six, whereas the inferior Council to manage the Assassination was Seven. At this Council there was this honourable Person at the Bar, the Duke of Monmouth, my Lord Howard, and another honourable Person, who I am sorry to name upon this account, who hath this morning prevented the hand of Justice upon himself, my Lord of Essex, and Coll. Sidney, and Mr. Hambden: These Six had their frequent Consults at this honourable Persons house; for they had exclud­ed Sir Tho. Armstrong, and my Lord Gray, for these Gentlemen would have the Face of Religion; and my Lord Gray was in their esteem so scandalous, that they thought that would nor prevail with the people, if he was of the Council. There they debated how they should make this Rising, after several Consultations they came to this Resolution, That before they did fall upon this Rising, they should have an exact accompt both of the time and method of the Scotch Rising; and thereupon a Messenger was sent on pur­pose by Coll. Sidney, viz. Aaron Smith, to invite Scotch Commissioners to treat with these Noble Lords. Pursuant to this, just before the Plot brake out, several from Scotland came to treat with them how to manage the work; 30000 l. was demanded by the Scots, in order that they should be ready in Scotland; then they fell to 10000, and at last (for the [Page 12] Scots love Mony,) they fell to 5000, which they would take and run all hazards, but they not coming to their terms, that broke off that week the Plot was discovered.

Gentlemen, if we prove all these Instances, besides we shall call some to shew you that all the inferior Party still looked upon these to be the Heads; and tho' they kept it se­cret, God hath suffered it to come to light with as plain an Evidence as ever was heard.

Sir Geo. Jeff.

I will not take up any of your Lordships time; we will call our Wit­nesses to prove the Fact Mr. Attorney hath opened. Swear Collonel Romsey, (which was done) Pray Collonel Romsey will you give my Lord and the Jury an Accompt, from the beginning to the end of the several Meetings that were, and what was the Debates of those Meetings.

Col. Romsey.

My Lord, I was at my Lord Shaftsbury's Lodging where he lay down by Wapping about the latter end of October or the beginning of Novemb. and he told me there was met at one Mr. Sheppards house the Duke of Monmouth, my Lord Russel, my Lord Gray, Sir Thomas Armstrong, and Mr. Ferguson, and he desired me to speak to them to know what resolution they were come to about the Rising of Taunton. I did go there accordingly, and call for Mr. Sheppard, and he carried me up where they were, and the Answer that was there made me was, That Mr. Trenchard had sailed them, and there would be no more done in the matter at that time.

Mr. Att. Gen.

Tell the whole passage.

Col. Romsey.

I did say my Lord Shaftsbury had sent me to know what resolution they had taken about the rising of Taunton. They made me this answer, that Mr. Trenchard had failed them, that he had promised 1000 Foot and 300 Horse, but when he came to perform it he could not. He thought the people would not meddle, unless they had some time to make provision for their Families.

L. Ch. Just.

Who had you this Message from?

Col. Romsey.

Mr. Ferguson did speak most of it.

L. Ch. Just.

Who sent this Message back?

Col. Romsey.

Mr. Ferguson made the Answer, my Lord Russel and the Duke of Mon­mouth were present, and I think my Lord Gray did say something to the same purpose.

Mr. Att. Gen.

Pray how often were you with them at that house?

Col. Romsey.

I do not know, I was there more than once, I was there either another time, or else I heard Mr. Ferguson make a Report of another Meeting to my Lord Shaftsbury.

Sir Geo. Jeff.

Was my Lord Russel in the Room when this Debate was?

Col. Romsey.

Yes, my Lord.

Mr. Att. Gen.

What did they say further?

Col. Romsey.

That was all at that time, that I remember.

Mr. Att. Gen.

Was there nothing of my Lord Shaftsbury to be contented?

Col. Romsey.

Yes, that my Lord Shaftsbury must be contented; and upon that he took his resolution to be gone.

L. Ch. Just.

Did you hear any such Resolution from him?

Col. Romsey.

Yes, my Lord.

Mr. Att. Gen.

Did you know of their meeting there, or was it by my Lord Shafts­bury's direction?

Col. Romsey.

No, but my Lord told me I should find such Persons, and accordingly I found them; and this Answer was given.

Mr. Att. Gen.

What time did you stay?

Col. Romsey.

I think I was not there above a quarter of an Hour.

Mr. Att. Gen.

Was there any discourse happened while you were there about a De­claration?

Col. Romsey.

I am not certain whether I did hear something about a Declaration there, or that Mr. Ferguson did report it to my Lord Shaftsbury, that they had debated it.

Sir Geo. Jeff.

To what purpose was the Declaration?

L. Ch. Just.
[Page 13]

We must do the Prisoner that right; He saies he can't tell whether he had it from him or Mr. Ferguson.

Mr. Att. Gen.

Did you hear no Discourse to what it tended?

Col. Roms.

My Lord, There was some Discourse about seeing what posture the Guards were in.

One of the Jury.

By whom, Sir?

Col. Roms.

By all the Company that was there.

L. C. J.

What was that Discourse,

Col. Roms.

To see what posture they were in, that they might know how to surprise them.

L. Ch. Just.

The Guards?

Col. Roms.

Yes, that were the Savoy and the Mews.

L. Ch. Just.

Whose were the Words? Tell the Words as neer as you can.

Col. Roms.

My Lord, the Discourse was, that some should—

L. Ch. Just.

Who made that Discourse.

Col. Roms.

My Lord, I think Sir Thomas Armstong began it, and Mr. Ferguson.

Mr. Att. Gen.

Was it discoursed among all the company?

Col. Roms.

All the Company did debate it. Afterwards they thought it necessary to see with what care and vigilance they did guard themselves at the Savoy and the Mews, whether they might be surprised or not.

Mr. Att. Gen.

Was there any undertook to go and see there?

Col. Roms.

There were some persons.

Sir Geo. Jeff.

Name them.

Col. Roms.

I think the Duke of Monmouth, my Lord Gray and Sir Thomas Armstrong.

Sir Geo. Jeff.

Was my Lord Russel, the Prisoner, there, when they undertook to take the view?

Col. Roms.

Yes, Sir.

Mr. Att. Gen.

To what purpose was the view?

Col. Roms.

To surprise them, if the Rising had gon on.

Sir Geo. Jeff.

Did you observe, by the Debates that happened, that they did take notice there was a Rising intended?

Col. Roms.

Yes.

Sir Geo. Jeff.

And that Direction was given to take a view of the Guards, if the Rising had gone on?

Col. Roms.

Yes.

L. Ch. Just.

Pray Sir, declare justly the Discourse.

Col. Roms.

I went to them from my Lord Shaftsbury: And I did tell them, That my Lord did pray they would come to some Resolution; and they told me, Mr. Tren­chard, who they depended upon for Taunton, had failed them, who, when he came up to Town first at the Term, had assured them, that in three or four Hours time he could have One Thousand Foot, and Three Hundred Horse: but now it came to be tried, he answered, it was not possible for him to undertake it; for the People would not rush into it of a sudden, but have some time to prepare for their Familes.

Mr. Att. Gen.

Was it pretended there should be a Rising at that time?

Col. Roms.

Yes, the 19th of November was appointed for the Rising.

L. Ch. Just.

Was it before that time, you went to press them from my Lord Shafts­bury?

Col. Roms.

Yes, I think it was a matter of a Fortnight before, or something more. For I think it was concluded Sunday Fortnight after my Lord Gray met.

Mr. Att. Gen.

But you say, besides what you heard there, you understood there was to be a Rising at that time. Was you to be engaged in this?

Col. Roms.

Yes, I was.

L. Ch. Just.

You must speak so, that what you deliver may be sensible; for if you speak, I apprehend so and so, that will be doubtful.

Col. Roms.

No, my Lord, the Rising was determined, and I was to have gone to Bristol.

Mr. Att. Gen.

In what capacity, as Colonel or Captain?

Col. Roms.

There was no Determination of that, no Quality.

L. Ch. Just.

By whose Appointment was that?

Col. Roms.

My Lord Shaftsbury spake that to me.

Sir Geo. Jeff.

But pray Col. Romsey, this you are very able to know, what the De­bates [Page 14] were, and need not be pumped with so many Questions; Pray was there any Debate, when you came with the Message from my Lord Shaftsburies, was there a De­bate about the Rising?

Col. Romsey.

There was no debate of it, because they made answer, Mr. Trenchard had failed them.

Sir Geo. Jeff.

But did not they take notice of the Rising? Give an account of it.

Col. Romsey.

I have done it twice.

Jury.

We desire to know the Message from the Lord Shaftsbury.

L. Ch. J.

Direct your self to the Court; Some of the Gentlemen have not heard it, they desire you would with a little more loud Voice repeat the Message you were sent of from my Lord Shaftsbury.

Col. Romsey.

I was sent by my Lord, to know the Resolution of the Rising in Taun­ton; they answered, Mr. Trenchard, whom they depended upon for the Men, had failed them, and that it must fall at that time, and my Lord must be contented.

Mr. Att. Gen.

Was the Prisoner at the Bar present at that Debate?

Col Romsey.

Yes.

Sir Geo. Jeff.

Did you find him averse to it, or agreeing to it?

Col. Romsey.

Agreeing to it.

Baron Street.

What said my Lord Shaftsbury?

Col. Roms.

Upon my return he said, he would be gone, and accordingly did go.

Sir Geo. Jeff.

If my Lord Russel pleases to ask him any Questions, he may.

L. Russel.

Must I ask him now?

L. Ch. Just.

Yes my Lord, propose your Questions to me.

L. Russel.

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 was just come to Town, but there was no discourse of Surprising the Guards, nor no undertaking of Raising an Armie.

L. Ch. J.

We will hear you to any thing by and by, but that which we now desire of your Lordship is, as the Witnesses come, to know if you would have any particular Questions asked of them.

L. Russel.

I desire to know, if I gave any Answer to any Message about the Rising: I was up and down; I do not know what they might say when I was in the Room; I was tasting of Wine.

L. C. J.

Did you observe that my Lord Russel said any thing there, and what?

Col. Roms.

Yes, my Lord Russel did speak.

L. Ch. Just.

About what?

Col. Roms.

About the Rising of Taunton.

L. Russel.

It was Sir Tho. Armstrong that conversed with Mr. Trenchard.

L. C. J.

What did you observe my Lord Russel to say?

Col. Roms.

My Lord Russel did discourse of the Rising.

L. Russel.

How should I discourse of the Rising at Taunton, that knew not the place, nor had knowledg of Trenchard.

Mr. Att. Gen.

Now my Lord, we will give you accompt, that my Lord Russel ap­pionted this place, and came in the dark without his Coach.

L. Russel.

My Lord, I think the Witness was asked, if I gave my consent.

L. Ch. Just.

What say you, did my Lord give any consent to the Rising?

Col. Roms.

Yes my Lord, he did.

Mr. Att. Gen.

Pray Swear Mr. Sheppard,

which was done.

Pray will you speak a­loud, and give an account to my Lord, and the Jury, of the Meetings at your House, and what was done.

Mr. Sheppard.

In the month of October last, as I remember, Mr. Ferguson came to me in the Duke of Monmouths name, and desired the conveniencie of my House for him and some other Persons of Quality to meet there. And as soon as I had granted it, in [Page 15] the evening the Duke of Monmouth, my Lord Gray, my Lord Russel, Sir Thomas Arm­strong, Col. Romsey, and Mr. Ferguson, came. Sir Thomas 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. The substance of their discourse was how to surprise the Kings Guards. And in order to that, the Duke of Monmouth, my Lord Gray, and Sir Thomas Armstrong, as I remember, went one night to the Mews, or there­about, to see the Kings Guards. And the next time they came to my House, I heard Sir Tho. Armstrong say, the Guards were very remiss in their places, and not like Soul­diers, and the thing was feasible, if they had strength to do it.

Mr. Att. Gen.

How many Meetings had you there?

Mr. Sheppard.

I remember but twice, Sir.

Mr. Att. Gen.

Did they meet by chance, or had you notice they would be there that night?

Mr. Sheppard.

Yes I did hear it before.

Mr. Sol. Gen.

Who had you notice would be there?

Mr. Sheppard.

The Duke of Monmouth, my Lord Gray, my Lord Russel, Sir Thomas Armstrong, Col. Romsey, and Mr. Ferguson.

Mr. Att. Gen.

Did they come with their Coaches, or a foot, in the night time and in the dark?

Mr. Sheppard.

I cannot tell; it was in the evening, I did not let them in.

Mr. Att. Gen.

Was there any Coaches at the door?

Mr. Sheppard.

None that I heard, or saw, they came not altogether, but immediate­ly one after another.

Sir Geo. Jeff.

Had they any Debate before they went into the Room?

Mr. Sheppard.

No, they went readily into the Room.

Sir Geo. Jeff.

Was my Lord Russel both times there?

Mr. Sheppard.

Yes, Sir, as I remember.

Sir Geo. Jeff.

Had you any particular business with my Lord Russel, or he with you?

Mr. Sheppard.

No, not at that time, but since I have had about the Affairs of my Lord Shaftsbury.

Sir Geo. Jeff.

Do you remember, Col. Romsey at the first time had any discourse a­bout any private business relating to my Lord Russel?

Mr. Sheppard.

No, I do not remember it.

Mr. Att. Gen.

Besides the seizing of the Guards, did they discourse about Rising?

Mr. 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.

Sir Geo. Jeff.

Do you remember any Writings or Papers read at that time?

Mr. Sheppard.

None that I saw.

Sir Geo. Jeff.

Or that you heard of?

Mr. Sheppard.

Yes, now I recollect my self, I do remember one Paper was read.

Sir Geo. Jeff.

To what purpose was it?

Mr. Sheppard.

It was somewhat in the nature of a Declaration; it was read by Mr. Ferguson, who was present at the reading, I cannot say whether they were all present or not. The purport of it was setting forth the Grievances of the Nation, but tru­ly what Particulars I can't tell: it was a pritty large Paper.

Mr. Att. Gen.

But you can tell the Effect of it, when was that to be set out?

Mr. Sheppard.

It was not discoursed, it was shewn only I suppose for Approbation.

Mr. Att. Gen.

Who was it shew'd to?

Mr. Sheppard.

Sir Tho. Armstrong.

Sir Geo. Jeff.

Who else?

Mr, Sheppard.

As I remember the Duke was present, and I think Col. Romsey.

Col. Romsey.

No, I was not, it was done before I came.

Sir Geo. Jeff.

What was the design of that Paper? Recollect your self, what was the design?

Mr. Sheppard.
[Page 16]

The design of that Paper, was in the nature of a Declaration, setting forth the Grievances of the Nation, in order to a Rising, I suppose by the purport of the Paper; but cannot remember the particular Words of it.

Foreman of the Jury.

Can you say my Lord Russel was there, when that Declaration was read, as you call it.

Mr. Sheppard.

I can't say that.

Mr. Att. Gen.

But he was there when they talked of Seizing the Guards?

Mr. Sheppard.

Yes, my Lord was there then.

L. Russel.

Pray Mr. Sheppard, do you remember the time when these meetings were?

Mr. Sheppard.

I can't be positive as to the Time, I remember it was at the time my L. Shaftsbury was absent from his own house, and he absented himself from his own House about Michaelmas day; but I can't be positive as to the time.

L. Russel.

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.

Mr. Sheppard.

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

L. Ch. Just.

But was he at both?

Mr. Sheppard.

I think so, but it was 8 or 9 months ago, and I can't be positive.

L. Russel.

I can prove I was then in the Country. Col. Romsey said there was but one meeting.

Col. Roms.

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 Shaftsbury.

L. Russel.

Is it usual for the Witnesses to hear one another?

L. Ch. Just.

I think your Lordship need not concern your self about that, for I see the Witnesses are brought in one after another.

L. Russel.

There was no Design.

Sir Geo. Jeff.

He has sworn it.

Mr. Att. Gen.

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 Shaftsbury went away, and afterwards how it was continued on.

L. 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 Accompt I have to give. 'Tis 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, a person that had been some Months in England, being returned out of Ireland, and who indeed I had not seen for 11 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 tho' he was unknown himself, yet be­ing brought by me he soon gained a confidence with my Lord Shaftsbury, 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 entred 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—

L. Ch. Just.

Pray my Lord raise your voice, else your Evidence will pass for nothing.

One of the Jury.

We cannot hear my Lord.

L. 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 [Page 17] 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 Mony 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 Accompts 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 receiv'd two or three Letters from him, that gave me an Account in that disguised stile, 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 Mens Eyes were fixed, which was the Deter­mination of the Sherivalty about that time. So I ordered it to fall into Town, and went to my own House on 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 Shaftsbury was secretted and withdrawn from his own House in Aldersgate street; and that though he had a Family setled, 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 accomodate all things to the humor 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 vvould be in a readiness in London, to turn the Tide, and put a stop to the Torrent that vvas ready to overflovv. But he did complain to me, that his design, and the design of the Publick vvas very much obstructed, by the unhandsom deportment of the Duke of Monmouth and my Lord Russel, vvho had vvithdravvn themselves, not only from his Assistance, but from their ovvn Ingagements and appointments. For vvhen he had got such a formed Force as he had in London, and expected to have it ansvvered 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, when ever I hold up my Finger: Says I, how have you methoded this, that they shall not be crashed, 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 twenty four Hours, would be multiplied into five times the Number, and be able to make a Sally out, and possess themselves of White-Hall, 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 [Page 18] 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: And therefore desired, before I discovered my own Inclination, to discourse with 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 the next day, where the Duke of Monmouth was, and told him the great Complaint my Lord Shaftsbury had made, that he failed him: Says he, I think he is Mad, I was so far from giving him any in­couragement, that I did tell him from the begining, and so did my Lord Russel, there was nothing to be done by us in the Country at that time. I did not then own 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 October 2, 3, or 4; I came to Town on Saturday and was carried to him on Munday; and I sup­pose this was October 2. On Wednesday I think I went to him again (but 'tis 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 dispsiotion for Action, nor could be put in readiness at that time; Says my Lord Shaftsbury, 'Tis 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 puzled me, in asking how the Duke of Monmouth lived: Says he, they puzled 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 Common Wealth, 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 Common Wealth: And then says he, 'Tis 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, 'Tis because we have had some misunderstanding of late; but I believe he is true enough to the Interest. Says I, 'Tis a great unhappiness to take this time to Fall out; and I think 'tis 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 'tis 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 enlargement on 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 [Page 19] Monmouth, I spake to him only, (I never spake to my Lord Russel 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-soe, says the Duke, with all my heart, and I desire nothing more. Now▪ I told him, I had been with my L. Shaftsbury, 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 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 October; an Almanack 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 D. of Monmouth an ac­count of it; the Duke, I suppose, conveyed the same Understanding to my L. Russel; and I suppose both would have been there accordingly, to have given the Meeting; but next Morning I found Col. Romsey 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 Shaftsbury did apprehend himself to be in some Danger in that House, and that that 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 Wa­ver, 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 vvithdravvn, but it vvas for fear his Lodging might be disco­vered, but he did not doubt, but in a Week he vvould let me knovv vvhere his lodging was. But told me vvithin such a time, vvhich I think vvas 8 or 10 days, there vvould be a Rising: and I told the D. of Monmouth, and I believe he told my L. Russel; And vve believed his Frenzy vvas novv grovvn to that heighth, that he would rise immedi­ately, and put his design in execution: so we endeavoured to prevent it. Upon which my Lord Russel (I was told) and the Duke of Monmouth, did force their vvay to my Lord Shaftsburies, and did persuade him to put off the day of his Rendezvouz. I had not this from my L. Russel, for I had not spoke a Word to him; But the Duke told me, my L. Russel had been vvith him, (I had indeed an intimation that he had been vvith him); but the Duke told me, says he, I have not been vvith him, but my L. Russel was, having been convey'd by Col. Romsey. After this day was put off, it seems it vvas put off vvith 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 vvas not above a fortnights time given: And, says the Duke of Monmouth, vve have put it off, but now we must be in Action, for there's no holding it off any longer. And, says he, I have been at Wapping all night, and I never savv 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 our selves of it; But says he, they are in the wrong way; yet we are ingaged to be ready for them in a Fortnight, and therefore, says he, novv vve must apply our selves to it, as vvell as vve can. And thereupon I believe they did send into the Country; and the Duke of Monmouth told me, he spake to Mr. Trenchard, vvho was to take particular care of [Page 20] Sommersetshire, vvith this circumstance, says he, I thought Mr. Trenchard had been a brisker Fellovv; for when I told him of it, he looked so pale, I thought he would have svvooned, vvhen I brought him to the brink of Action; and said, I pray go and do vvhat you can among your acquaintance: And truly I thought it would have come then to Action. But I vvent the next day to him, and he said it was impossible; they could not get the Gentlemen of the Country to stir yet.

L. Russel.

My Lord, I think I have very hard measure, here is a great deal of Evidence by hear say.

L. Ch. Just.

This is nothing against you, I declare it to the Jury.

Mr. Att. Gen.

If it please you, my Lord, Go on in the method of Time. This is nothing against you, but its coming to you, if your Lordship will have patience, I assure you.

L. Howard.

This is just in the order it was done. When this was put off, then they were in a great hurry; and Capt. Walcot had been several times with me, and discoursed of it. But upon this disappointment they said, it should be the dishonor 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. Captian Walcot came to me, and told me, now they were resolv'd positively to rise, and did believe that a smart Party might perhaps meet with some Great Men. Thereupon I told the Duke of it; I met him in the street, and went out of my Coach into his, and told him, That there was some dark intimation, as if there might be some Attempt upon the Kings Per­son; with that he strook his breast with a great Emotion of spirit, and said, Godsoe, Kill the KING! I will never suffer that. Then we 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 New Market, we din'd 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 Kings coming, we concluded it was design'd upon the King. And I remember my L. Gray, saies 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 Kings 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 sailing, it was then next determined (which was the last Alarm 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 my self, That I fear'd it had been discovered, be­cause I saw a Proclamation a little before, forbidding publick 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 Shaftsbury, 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 Shaftsbury 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 sine­ness, 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 our selves, which did consist of six persons; and the persons were, the Duke of Monmouth, my Lord of Essex, my Lord Russel, Mr. Hambden Jun. Algernon Sidney, and my Self.

Mr. Att. Gen.

About what time was this, when you setled this Council?

L. 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 January last, (as near as I can remember); for about that time, we did meet at Mr. Hambdens House.

Mr. Att. Gen.
[Page 21]

Name those that met.

L. Howard.

All the Persons I named before: that was, the Duke of Monmouth, my L. Essex, my L. Russel, Col. Sidney, Mr. Hambden Jun. and my self. 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 D. of Monmouth insisted upon it, that it was impossible to oppose a For­med, well Methodiz'd, and Govern'd Force, with a Rabble hastily got together; and therefore whatever Numbers 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 panick 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.

Mr. Att. Gen.

Was this Determined among you all?

L Howard.

In this manner that I tell you, Why it was necessary to be done at some reasonable distance from the Town. And from thence it was likewise considered, that the being so remote from the Town, it would put the King upon this Dilemma, That either the King would send His Forces to subdue them, or not; if He did, He must leave the City Naked, who being Proximi Dispositioni to Action, it would give them Occasion to Rise, and come upon the back of the Kings Forces; if he did not send, it would give them time to Form their Number, and be better Ordered.

Mr. Att. Gen.

My Lord, We do not desire all your Discourse and Debates; What was your other General thing?

L. Howard.

The other was, What Countries and Towns were the fittest and most di­sposed to Action: and the Third. What Arms were necessary to be got, and how to be disposed; and a Fourth, (which should have been indeed first in Consideration) pro­pounded by the D. of Monmouth, That it would be absolutely necessary to have some Common Bank of 25 or 30000 l. to Answer the Occasions of such an Undertaking. Nothing was done, but these things were offered then to our Consideration, and we were to bring in our United Advice concerning them. But the Last and greatest was How we might so order it as to draw Scotland into a consent with us, for we thought it necessary that all the Diversion should be given. This was the Last.

Mr. Att. Gen.

Had you any other Meetings?

L. Howard.

We had about Ten days after this at my Lord Russels.

Mr. At. Gen.

The same Persons?

L. How.

Every one of the same Persons then meeting.

Mr. At. Gen.

What Debates had you there?

L. How.

Then it was so far, as we came to a Resolution, That some Persons should be sent to my Lord Argyle, to settle an Understanding with him, and that some Messen­gers should be dispatched into Scotland, that should invite some Persons hither, that were judged most able to Understand the Estate of Scotland, and give an Account of it: The persons agreed on were, Sir John Cockram, my Lord Melvil, and another, whose Name I have since been told upon my Description, Sir Campbel. For this purpose we did order a Person should be thought on that was fit—

Mr. Att. Gen.

Do you know who was sent, and what was done upon this Resolution?

L. Howard.

I have heard (I never saw him in six Months before) that Aaron Smith was sent.

Mr. Att. Gen.

Who was intrusted to take care of that business?

L. Howard.

Collonel Sidney, We in discourse did agree to refer it to Collonel Sidney, to have the care of sending a Person.

Mr. Att. Gen.
[Page 22]

Who acquainted you Aaron Smith was sent?

L. Howard.

Colonel Sidney told me he had sent him, and given him Sixty Guineys for his Journey.

Mr. Att. Gen.

What more Meetings had you?

L. Howard.

We did then consider that these Meetings might have occasioned some observation upon us, and agreed not to meet again till the return of that Messenger. He was gone I believe, near a month before we heard any thing of him, which we wondered at, and feared some miscarriage; but if his Letter 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.

Mr. Att. Gen.

You are sure my Lord Russel was there?

L. Howard.

Yes Sir, I wish I could say he was not.

Mr. Att. Gen.

Did he sit there as a Cipher, What did my Lord say?

L. Howard.

Every one knows my Lord Russel is a Person of great Judgement, and not very Lavish in discourse.

Sir Geo. Jeff.

But did he consent?

L. Howard.

We did not put it to the Vote, but it went without contradiction, and I took it that all there gave there consent.

Mr. Sol. Gen.

The raising of Money you speak of, was that put into any way?

L. Howard.

No, but every man was to put themselves upon thinking of such a way, that Money might be Collected without administring Jealousie.

Mr. Att. Gen.

Were there no persons to undertake for a Fund?

L. Howard.

No, I think not. However it was but opinion, the thing that was said, was Jocosely, rather than any thing else, that my Lord of Essex had dealing in Mony, and therefore he was thought the most proper Person to take the care of those things; but this was said rather by way of Mirth, then otherwise.

Mr. Att. Gen.

What do you know else my Lord?

L. Howard.

I was going to tell you, I am now at a full stop. For it was six Weeks or more, before Smith's Return, and then drew on the time, that it was necessary for me to go into Essex, where I had a small concern, there I stayed about three Weeks, when I came back, I was informed that he was Returned, and Sir John Cockram was also come to Town.

L. Ch. Just.

Did you meet after this?

L. Howard.

No my Lord, I tell you that I was forced to go three Weeks upon the account of my Estate, and afterwards I was necessitated to go to the Bath, where I spent five Weeks, and the time of coming from the Bath to this time, is five Weeks more; so that all this time hath been a perfect Parenthesis to me, & more then this, I know not.

L. Ch. Just.

My Lord Russel, Now, if your Lordship pleases, is the time for you to ask him any Questions.

L. Russel.

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▪

L. Ch. J.

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 Shaftsbury went off (all before is but inducement as to any thing that concerns your Lordship, and does not particularly touch you) after his going away, he says the Par­ty concerned with my Lord Shaftsbury, 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.

L. Russel.

Pray my Lord, not to interrupt you, by what Party (I know no Party) were they chosen?

L. Howard.

'Tis very true, we were not Chosen by Community, but did Erect our selves by mutual Agreement, one with another into this Society.

L. Russel.

We were People that did meet very often.

L. Ch. Just.

Will your Lordship please to have any other Questions asked of my Lord Howard?

L. Russel.
[Page 23]

He says, it was a formed Design, when we met about no such thing.

L. C. J.

He says, That you did consult among your selves about the Raising of Men, and where the Rising should first be, 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 Monmouths Arguments for its being formed in places from the City; he says, you did all agree not to do any thing further in it, till you had considered how to raise Mony and Arms; and to ingage 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 Knowledg, as he saith, what he says after, of sending a Messenger, is by Report only.

Mr. Att. Gen.

I beg your pardon, my Lord.

L. Ch. Just.

'Tis so, That what he heard concerning the sending of Aaron Smith.

Mr. Att. Gen.

Will you ask him any Questions?

L. Russel.

We met, but there was no Debate of any such thing, nor putting any thing in method. But my Lord Howard is a Man hath a voluble Tongue, talks very well, and is full of Discourse, and we were delighted to hear him.

Mr. Att. Gen.

I think your Lordship did mention the Campbells?

L. 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.

L. Russel.

I desire your Lordship to take notice, that none of these Men I ever saw, my Lord Melvile I have seen, but not upon this account.

Mr. Atterbury sworn.
Mr. Att. Gen.

Aaron Smith did go, and Campbell he went for is here taken. This is the Messenger. Pray what do you know of the Apprehending of the Campbells?

Mr. Atterbury.

If it please your Lordship, I did not apprehend Sir Hugh Campbell my self, but he is now in my Custody; he was making his Escape out of a Woodmongers House, both he and his Son.

Mr. Att. Gen.

How long did he own he had been at London?

Mr. Atterbury.

Four Days, and that in that time he had been at three Lodgings; and that he and his Son, and one Baily, came to Town together.

Mr. Att. Gen.

My Lord, we shall, besides this, (now we have fixed this upon my Lord) give you an account, that these Persons that were to rise always took them as their Pay masters, and expected their Assistance. Mr. West, Mr. Keeling and Mr. Leigh.

Mr. West sworn.
Mr. Att. Gen.

That which I call you to, is to know whether or no, in your mana­gery of this Plot, you understood any of the Lords were concerned, and which?

Mr. West.

My Lord, as to my Lord Russel, I never had any Conversation with him at all, but that I have heard in this, That in the Insurrection, in November, Mr. Fergu­son, and Colonel Romsey, did tell me, that my Lord Russel intended to go down and take his Post in the West, when Mr. Trenchard had failed them.

L. Ch. Just.

What is this?

Mr. Att. Gen.

We have proved my Lord privy to the Consults, now we go about to prove, the Under-Acters did know it.

Mr. West.

They always said my Lord Russel was the Man they most depended upon, because he was a person looked upon as of great Sobriety.

L. Russel.

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.

L. Ch. J.

As to this, the giving Evidence by hear-say, will not be Evidence, what Colonel Romsey or Mr. Ferguson told Mr. West, is no Evidence.

Mr. Att. Gen.

'Tis 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.

Sir Geo. Jeff.

We have Evidence without it, and will not use any thing of Garniture; [Page 24] we will leave it as 'tis, we won't trouble your Lordship any further. I think Mr. At­torney, we have done with our Evidence.

L. Ch. J.

My Lord Russel, the Kings Counsel do think to rest upon this Evidence that they have given against your Lordship. I would put your Lordship in mind of those things that are material in this Case, and proved against your Lordship, Here is Colonel Romsey does prove against your Lordship this, That he was sent upon an Er­rand, which, in truth, was Traiterous, it was a Traiterous Errand sent from my Lord Shaftsbury by him to that Meeting. He does swear your Lordship was at that Meeting, and he delivered his Errand to them, which was to know what account could be given concerning the Design of the Insurrection at Taunton, and he says, your Lordship being there, this Return was made, That Mr. Trenchard had sailed them in his Undertaking in the Business, and therefore my Lord Shaftsbury must be contented, and sit down satisfi­ed as to that time. Mr. Sheppard does likewise speak of the same time that your Lord­ship was there with the rest of the Persons, the Duke and others, That there was a Dis­course concerning an Insurrection to have been made, (though he is not so particular, as to the very Notion of it, as Colonel Romsey is) as to the time they do agree.

L. Russel

Col. Romsey is not positive that I said, or heard any thing.

L. Ch. J.

My Lord, If you will have a little patience to hear me, I will tell you what it is presses you, there is this which I have mentioned, and Mr. Sheppard does say there was a Paper purporting a Declaration then Read among the Company there, which was to be printed upon the Rising, setting forth the Oppressions and Grievances of the Na­tion. And then my Lord Howard (after a great discourse concerning the many designs of my Lord Shaftsbury) comes particularly to your Lordship and says, that Six of you, as a chosen Councel among your selves, (not that you were actually chosen) but as a chosen Counsel among your selves, did undertake to manage the great matter of the Insurrection, and Raising of Men in order to surprize the Kings Guards, and for to Rise, (which is a Rebellion in the Nation.) He says that you had several Consults con­cerning it. I told you the several particulars of those Consults he mentioned; Now it is fit for your Lordship, and 'tis your time to give some answer to these things.

L. Russel.

My Lord, I cannot but think my self mighty unfortunate to stand here charged with so High and Hainous a Crime, and that intricated and intermixed with the Treasons and horrid Practises and Speeches of other People, the Kings Council taking all advantages, and improving and heightning things against me. I am no Lawyer, a ve­ry unready speaker, and altogether a stranger to things of this Nature, and alone and without Councel. 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. Romsey, who it's 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 no body 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 6 Months, and by the 25 E. 3. a design of Levying War, is no Treason unless by some overt Act it appear. 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.

L. Ch. J.
To the Attorney General

Mr. Attorney, You hear what it is my Lord Ob­jects to this Evidence, He says that as to those Witnesses that Testify any thing concer­ning him, above six Months before he was Prosecuted, he conceives the Act of Parli­ament, upon which he takes himself to be Indicted, does not extend to it, for that says that within six Moneths there ought to have been a Prosecution, and my Lord tells you, [Page 25] that he is advised, that a design of Levying War, without actual Levying of War, was not Treason before that Statute.

Mr. Att. Gen.

To satisfy my Lord, He is not Indicted upon that Statute. We go upon the 25 E. 3. But then for the next Objection: surely my Lord is informed wrong. To Raise a Rebellion or a Conspiracy within the Kingdom, is it not that which is cal­led Levying of War in that Statute, but to Raise a Number of men to break Prisons, &c. Which is not so directly tending against the Life of the King. To prepare Forces to Fight against the King, that is a design within that Statute to Kill the King; And to design to depose the King, to imprison the King, to raise the Subjects against the King, these have been setled by several Resolutions to be within that Statute, and Evidences of a Design of killing the King.

L. Russel.

My Lord, This is matter of Law; Neither was there but one Meeting at Mr. Sheppards House.

Mr. Att. Gen.

My Lord, If you admit the Fact, and will rest upon the Point of Law, I am ready to argue it with any of your Counsel. I will acquaint your Lordship how the Evidence stands. There is one Evidence since Christmas last.

L. Russel.

That's not to the business of Sheppards House, My Lord, one Witness will not convict a Man of Treason.

Mr. Att. Gen.

If there be one Witness of one Act of Treason, and another of a second, another of a third, that manifest the same Treason to depose or destroy the King, that will be sufficient.

L. Ch. J.

My Lord, That has been resolved, the Two Witnesses the Statute requires are not to the same individual Act, but to the same Treason, if they be several Acts de­claring the same Treason, and one Witness to each of them, they have been reckoned two Witnesses within the Statute of E. 6.

Sir G. Jeff.

If my Lord will call his Witness—

L. Russel.

This is tacking of Two Treasons together, here is one in November by one Witness, and then you bring on another with a Discourse of my Lord Howard. And he says the Discourse passed for Pleasure.

L. Ch. Just.

If your Lordship do doubt whether the Fact proved against your Lord­ship be Treason or not within the Statute of E. 3. and you are contented that the Fact be taken as proved against your Lordship, and so desire Counsel barely upon that that is matter of Law; You shall have it granted.

L. Russel.

I am not knowing in the Law, I think 'tis not proved, and if it was, I think 'tis not Punishable by that Act. I desire Counsel may be admitted upon so nice a Point My Life lies at stake; here's but one Witness that speaks of a Message.

Sir Geo. Jeff.

The Fact must be lest to the Jury; Therefore if my Lord Russel hath any Witnesses to call, in opposition to these matters, let him.

L.C.J.

My Lord, there can be no matter of Law but upon a Fact admitted and stated.

L. Russel.

My Lord, I do not think it proved, I hope you will be of Counsel for me, 'tis very hard for me that my Counsel may not speak for me in a point of Law.

L. Ch. Just.

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 desire your Counsel may be heard to that, I will do it.

L. Russel.

I doubt in Law, and do not see the Fact is proved upon me.

Mr. Sol. Gen.

Will your Lordship please to call any Witness to the matter of Fact?

L. Russel.

'Tis very hard a man must lose his life upon hear-say: Col. Romsey says he brought a Message, which I will swear I never heard, nor know 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.

Mr. Att. Gen.

My Lord, if there be any thing that is Law, you shall have it.

L. Russel.

My Lord, Colonel Romsey, the other day before the King, could not say that I heard it, I was in the Room, but I came in late, they had been there a good while, [Page 26] I did not stay above a quarter of an hour tasting Sherry with Mr. Sheppard.

L. Ch. Just.

Read the Statute of 25 E. 3. c. 2. My Brothers desire to have it read.

Cl. Cro.

Whereas divers Opinions have been before this time, in what Case Treason shall be said, and in what not: The King at the Request of the Lords and of the Commons, hath made a Decla­ration in the manner as hereafter followeth. That is to say, when a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen, or of their eldest Son and Heir, or if a Man do Violate the Kings Compagnion, or the Kings eldest Daughter unmarried, or the Wife of the Kings eldest Son and Heir; or if a Man do levy War against our Lord the King, in his Realm, or be adherent to the Kings Enemies in his Realm, giving to them Aid and Comfort in the Realm or else where, and thereof be proveably attainted of open Deed by People of their Condition. And if a Man counterfite the Kings Great or Privy Seal, or his Mony: and if a Man bring false Mony into this Realm, coun­terfite to the Mony of England, as the Mony called Lushburgh, or other like to the said Mony of England, Knowing the Mony to be false, to Merchandise or make Payment in deceit of our said Lord the King, and of his People: and if a Man Slea the Chancellor, Treasurer, or the Kings Iustices of the one Bench or the other, Iustices in Eyre, or Iustices of Assise, and all other Iustices designed to hear and determin, being in their Places during their Offices. And it is to be understood that in the Cases above rehearsed, that ought to be Iudged Treason, which extends to our Lord the King, and his Royal Majesty.

L. C. Just.

My Lord, That which is urged against you by the Kings Council, is this. You are excused by the Indictment of compassing and designing the Kings Death, and of endeavouring to Raise an Insurrection in Order to it; That, that they do say, is, that these Counsels, that your Lordship hath taken, are Evidences of your Compassing the Kings Death, and are Overt Acts, Declaring the same: and upon that it is they insist your Lordship to be Guilty within that Statute.

L Russel.

It is in a Point of Law, and I desire Counsel.

Mr. Att. Gen.

Admit your Consultations, and we will hear them.

L. Ch. J.

I would set your Lordship right, for probably you may not apprehend the Law in this Case; If your Counsel be heard, they must be heard to this, That taking it, that my Lord Russel has consulted in this manner, for the Raising of Forces within this Kingdom, and making an Insurrection within this Kingdom, as Col. Romsey and my Lord Howard have deposed, whether then this be Treason, we can hear your Counsel to nothing else.

L. Russel.

I do not know how to answer it. The point methinks must be quite other­wise, that there should be Two Witnesses to one and the same time.

Mr. Att. Gen.

Your Lordship remembers in my Lord Staffords Case, there was but one Witness to one Act in England, and another to another in France.

L. Russel.

It was to the same point.

Mr. Att. Gen.

To the general point, the lopping point.

Sir Geo. Jeff.

There was not so much Evidence against him, as there is against your Lordship.

L. C. J.

My Lord, if your Lordship will say any thing, or call any Witnesses to dis­prove what either of these Gentlemen have said, we will hear your Lordship what they say. But if you contradict them by Testimony, it will be taken to be a Proof. And the way you have to disprove them is, to call Witnesses, or by asking Questions, whereby it may appear to be untrue.

Mr. Sol. Gen.

If you have any Witnesses, call them, my Lord.

L. Russel.

I do not think they have proved it. But then it appears by the Statute, that Levying War is Treason, but a Conspiracy to levy War is no Treason; if nothing be done, 'tis not Levying War within the Statute. There must be manifest Proof of the matter of Fact, not by inference.

Mr. Att. Gen.

I see that is taken out of my Lord Coke. Levying War is a distinct branch of the Statute, and my Lord Coke explains himself afterwards, and says, 'tis an Assuming of Royal Power, to Raise for particular puposes.

Just. Wythins.

Unless matter of Fact be agreed, we can never come to argue the Law

L. Russel.

I came in late.

Mr. Sol. Gen.

Pray, my Lord, has your Lordship any Witnesses to call, as to this matter of Fact?

L. Russel.
[Page 27]

I can prove I was out of Town when one of the Meetings was, but Mr. Sheppard can't recollect the Day, for I was out of Town all that time. I never was but once at Mr. Sheppards, and there was nothing undertaken of viewing the Guards while I was there; Colonel Romsey, Can you swear positively, that I heard the Message, and gave any Answer to it?

L. C. Just.
To Colonel Romsey.

Sir, did my Lord Russel hear you, when you deli­vered the Message to the Company? were they at the Table, or where were they?

Col. Romsey.

When I came in they were standing at the Fire side, but they all came from the Fire-side to hear what I said.

L. Russel.

Colonel Romsey was there when I came in.

Col. Romsey.

No, my Lord. The Duke of Monmouth and my Lord Russel went a­way together, and my Lord Gray and Sir Thomas Armstrong.

L. Russel.

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 any thing; '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.

L. C. J.

If you will have any Witnesses called to that, you shall my Lord.

L. Russel.

My Lord Anglesey, and Mr. Edward Howard.

My Lord Anglesey stood up.
L.C. J.

My Lord Russel, what do you ask my Lord Anglesey?

L. Russel.

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

L. 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 Magdalen Colledge in Oxon. I had not been there but a very little while, and vvas ready to go avvay 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

L. Howard.

Yes, here I am, to serve your Lordship.

L. 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, vvere, My Lord, you are happy in having a Wise Son, and a vvorthy 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 Howards Mouth, but at my ovvn home upon the Monday after, for I use to go to Totteridge for fresh Air; I vvent dovvn on Saturday, this happened to be on Friday, (my Lord being here, I am glad, for he can't forget this Discourse,) and vvhen I came to Tovvn on Monday, I understood that my Lord Howard upon that very Sunday had been at 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—

L. C. J.

My Lord, What you have from my Lady is no kind of Evidence at all.

L. 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—

Sir Geo. Jeff.

I don't think it fit for me to interrupt a person of your Honour, my Lord, but your Lordship knovvs in vvhat place vve stand here, vvhat you can say of any thing you heard of my Lord Howard, vve are vvilling to hear, but the other is not Evidence. As the Court vvill not let us offer hear-says, so neither must vve that are for the King permit it.

L. Anglesey.
[Page 28]

I have told you vvhat happened in my hearing.

Then Mr. Howard stood up.
L. C. J.

Come Mr. Howard, What do you knovv?

Mr. Howard.

I must desire to say something of my Self and my Family first, My Lord and I have been very intimate, not only as Relations, but as dear Friends, My Lord, I have been of a Family knovvn to have great Respect and Duty for the King, and I think there is no Family in the Nation so numerous, that hath expressed greater Loyalty, upon vvhich account I improved my Interest in my Lord Howard; I endea­voured, upon the great Misunderstanding of the Nation, (if he be here he knows it,) to persuade him to apply himself to the King, to serve him in that great difficulty of State, which is known to all the World. I sometimes found my Lord very forward, and sometimes I softened him, upon which, partly upon his Permission, and more upon my own Inclination of Duty, I made several applications to Ministers of State, (and I can name them) That my Lord Howard had a great desire of serving the King in the best way of Satisfaction, and particularly in the great Business of his Brother. I wonder'd there should be so much sharpness for a matter of Opinion, and I told my Lord so, and we had several Disputes about it. My Lord, I do say this before I come to the thing▪ After this I did partly by his permission, and partly by my own inclination, to serve the King, because I thought my Lord Howard a Man of Parts, and saw him a Man that had interest in the Nation, tell my Lord Feversham, that I had prevailed with a Re­lation of mine, that may be he might think opposite, that perhaps might serve the King in this great Difficulty that is emergent, and particularly that of his Brother. My Lord Feversham did receive it very kindly, and I writ a Letter to him, to let him know how I had softned my Lord, and that it was my desire he should speak with my Lord at Oxon. My Lord Feversham gave me a very kind Account when he came again, but he told me—

L. Ch. Just.

Pray apply your self 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.

L. Ch. J.

We must desire you not to go on thus.

Mr. Howard.

I must satisfie the World, as well as I can, as to my self, and my Family, and pray do not interrupt me. After this, my Lord, there never passed a day, for al­most—

L. Ch. J.

Pray speak to this matter.

M. Howard.

Sir, I am coming to it.

L. Ch. J.

Pray Sir, be directed by the Court.

Mr. Howard.

Then, now Sir, I will come to the thing. Upon this ground, I had of my Lords kindness, I applied my self 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 Honor, 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 honor 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 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. So that if my Lord Howard has the same Soul on Monday that he had a Sunday, this can't be true that he swears against my Lord Russel. This I say upon my Reputation, and Honor, and something I could say more, he added, he thought my Lord Russell did not only unjustly suffer, but he took God and Men to Witness, He thought him the vvorthiest Person in the World. I am very sorry to hear any Man of my Name should be Guilty of these things.

L. Russel.

Call Dr. Burnet. Pray Dr. Burnet, did you hear any thing from my Lord Howard since the Plot was discovered concerning me?

Dr. Burnet.

My Lord Howard vvas with me, the night after the Plot broke out, and he did then, as he had done before, vvith Hands and Eyes lifted up to Heaven, say he knew nothing of any Plot, nor believed any, and treated it, with great Scorn and Con­tempt.

L. Howard.
[Page 29]

My Lord, may I speak for my self.

Sir Geo. Jeff.

No, no my Lord, we don't call you.

L. C. J.

Will you please to have any other Witnesses called?

L. Russel.

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 any thing in my former Carriage, to make them think me like to be Guilty of this. My Lord Cavendish.

L. Cavendish.

I had the Honour to be acquainted with my Lord Russel 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. Romsey, my Lord Russel did express some­thing, as if he had a very ill Opinion of the Man, and therefore it is not likely he would intrust him with such a secret.

L. Russel.

Dr. Tillitson,

He appears.
L. Ch. Just.

What Questions would you ask him my Lord?

L. Russel.

He and I, happened to be very conversant. To know whether he did ever find any thing tending to this in my discourse.

L. C. J.

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 Russel, I always Judged him a Person of great Vertue, 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.

L Russel.

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 Russel 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 that would provoke to it, he expressed himself so determined against that matter, I think no Man could do more.

L. C. J.

Will your Lordship call any other Witnesses?

L. Russel.

Dr. Cox.

Dr. Thomas Cox stood up.
Dr. Cox.

My Lord, I did not expect to have been spoken to upon this Account. Having been very much with my Lord of late, that is for a Month or six Weeks before this Plot came out, I have had occasion to speak with my Lord in private, about these Publick Matters. But I have always found that my Lord was against all kind of Ri­sings, and thought it the greatest Folly and Madness, till things should come in a Parli­amentary way. I have had occasion often to speak with my Lord Russel in private, and having my self been against all kind of Risings, or any thing that tended to the disorder of the Publick; I have heard him profess Solemnly, he thought it would Ruine the best Cause in the World to take any of these irregular ways for the preserving of it, and particularly my Lord hath expressed himself occasionally of these two Persons, my Lord Howard, and Col. Romsey. One of them, Col. Romsey, I saw once at my Lords House, and he offered to speak a little privatly. But my Lord told me he knew him but a little, I told him he was a Valiant Man, and acted his Part Valiantly in Portugal. He say'd he knew him little, and that he had nothing to do with him but in my Lord Shaftsburys business. 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. And I never heard him say one word of Indecency, or Immodesty towards the King.

L. Russel.

I would pray the Duke of Somerset, to speak what he knows of me.

D. of Som.

I have known my Lord Russel for about two Years, and have had much Conversation with him, and been often in his Company, and never heard any thing from him, but what was very Honourable, Loyal and Just.

L. Ch. J.

My Lord does say, that he has known my Lord Russel for about two Years, and hath had much Conversation with him, and been much in his Company, and never heard any thing from him, but what was Honourable, and Loyal, and Just in his Life.

Foreman of the Jury.
[Page 30]

The Gent. 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 my Lord Anglesey.

L. C. Baron.

My Lord, What say you to it, that you told his Father he was a dis­creet Man, and he needed not to Fear his Ingagement in any such thing?

L. Howard.

My Lord, if I took it right, my Lord Angleseys Testimony did Branch it self into two Parts, one of his own knowledge, and the other by Hear say, 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 intangled himself, in any thing of that Nature. My Lord, I can hardly be provoked to make my own defence, least this Noble Lord should suffer, so willing I am to serve my Lord, who knows I can't 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 out face the thing, both for my self, 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 say'd so, There is none of those that know my Lord Russel, but would speak of my Lord Russel, from those Topicks of Honour, Modesty, and Integrity, his whole Life deserves it. And I must confess, I did frequently say, there was nothing of Truth in this, and I wish this may be for my Lords 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 Tyed 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 Falshood, 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 Russel, 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 expence of so Noble a Persons Life, and my own Soul.

L. Russel.

My Lord Clifford.

L. Ch. Just.

What do you please to ask my Lord Clifford?

L. Russel.

He hath known my Conversation for many Years.

L. Clifford.

I always took my Lord, to be a very Worthy Honest Man, I never saw any thing in his Conversation to make me believe otherwise.

L. Russel.

Mr. Gore.

Mr. Luton Gore.

I have been acquainted with my Lord several Years, and conversed much with him, in all the Discourse I had with him, I never heard him let any thing fall that tended in the least to any Rising, or any thing like it: I took him to be one of the best Sons, one of the best Fathers, and one of the best Masters, one of the best Husbands, one of the best Friends, and one of the best Christians, we had. I know of no Discourse concerning this matter.

L. Russel.

Mr. Spencer, and Dr. Fitz Williams.

Mr. Spencer.

My Lord, I have known my Lord Russel many Years, I have been ma­ny months with him in his House; I never saw any thing by him, but that he was a most Vertuous and Prudent Gentleman, and he had Prayers constantly twice a day in his House.

L. Ch. Just.

What, as to the General Conversation of his Life, my Lord asks you whether it hath been sober.

Mr. Spencer.
[Page 31]

I never saw any thing but very good, very prudent and very virtuous.

L. Russel.

What Company did you see used to come to me.

Mr. Spencer.

I never saw any but his near Relations, or his own Family. I have the honour to be related to the Family.

Then Doctor Fitz Williams stood up.
L. Russel

If it please you Doctor, you have been at my House several times, give an account of what you know of me.

Dr. Fitz Williams.

I have had the knowledg of my Lord these fourteen years, from the time he was married to his present Lady, to whose Father, eminent for Loyalty, I had a Relation by Service; I have had acquaintance with him both at Stratton and Southampton Buildings, and by all the Conversation I had with him; I esteemed him a Man of that Virtue, that he could not be guilty of such a Crime as the Conspiracy he stands charged with.

L. Ch. J.

My Lord, does your Lordship call any more Witnesses?

L. Russel.

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 Kings 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 can't be made now as it has been in former times; We have few great Men. I was always for the Government, I never desired any thing to be redressed but in a Parliamentary and legal way. I have been always 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 Honor, my life, and all; and I hope the Heats and Animosities that are amongst you will not so byass 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 Kings 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.

Mr. Sol. Gen.

My Lord, and you Gentlemen of the Jury, the Prisoner at the Bar stands Indicted for High Treason, in Conspiring the Death of the King. The Overt Act that is laid to prove that Conspiracy and imagination by, is the assembling in Council to raise Arms against the King, and raise a Rebellion here. We have proved that to you by Three Witnesses. I shall endeavour, as clearly as I can, to state the substance of the E­vidence to you, of every one of them, as they have delivered it.

The first Witness, Colonel Romsey comes, and he tells you of a Message he was sent of to Mr. Sheppards House, to my Lord Russel, with several other persons who he was told would be there assembled together. And the Message was, to know what readiness they were in, what Resolutions they were come to concerning the Rising at Taunton. By this you do perceive that this Conspiracy had made some progress, and was ripe to be put in action. My Lord Shaftsbury, that had been a great Contriver in it, he had pursued it so far, as to be ready to rise. This occasioned the Message from my Lord Shaftsbury to my Lord Russel, and those noble persons that were met at Mr. Sheppards house, to know what the Resolution was concerning the business of Taunton, which you have heard explained by an undertaking of Mr. Trenchards: That the answer was, they were disappointed there, and they could not then be ready, and that my Lord Shaftsbury must be content. This Message was delivered in presence of my Lord Russel; the Messenger had notice my Lord Russel was there; the Answer was given as from them all, That at present they could not be ready, because of that disappointment. Col. Romsey went further, and he swears there was a Discourse concerning the Surprise of the Guards; and the Duke of Monmouth, my Lord Gray and Sir Thomas Armstrong went to see in what posture they were in, whether it were feasible to surprise them, and they found them very remiss; and that [Page 32] account they brought back, as is proved to you by Mr. Sheppard, the other Witness, That it was a thing very feasible. But to conclude with the substance of Col. Romseys Evi­dence, he says, my Lord was privy to it, that he did discourse among the rest of it, though my Lord was not a man of so great Discourse as the rest, and did talk of a Ri­sing. He told you there was a Rising determined to be on the 19th of November last, which is the substance of Col. Romseys Evidence.

Gentlemen, the next Witness is Mr. Sheppard, and his Evidence was this: he swears that about October last, Mr. Ferguson came to him of a Message from the Duke of Mon­mouth, to let him know, That he and some other persons of Quality would be there that night, that accordingly they did meet, and my Lord Russel was there likewise; that they did desire to be private, and his Servants were sent away; and that he was the man that did attend them. He swears there was a Discourse concerning the way and method to seise the Guards; he goes so far, as to give an account of the Return of the Errand the Duke of Monmouh, my Lord Gray and Sir Thomas Armstrong went upon, That it was feasible, if they had Strength to do it. Then he went a little farther, and he told you there was a Paper read, that in his Evidence does not come up to my Lord Russel, for he did not say my Lord Russel was by, and I would willingly repeat nothing but what concerns the Prisoner. Therefore Col. Romsey and Mr. Sheppard agree in, That there was a Debate among them how to surprise the Guards, and whether that was feasible, and Mr. Sheppard is positive as to the Return made upon the View.

The next Witness was my Lord Howard; he gives you an account of many things, and many things that he tells you are by hear-say. But I cannot but observe to you, that all this hear-say is confirmed by these two positive Witnesses, and their Oaths agree with him in it. For my Lord Shaftsbury told him of the Disappointment he had met with from these Noble persons that would not join with him; and then he went from my Lord Shaftsbury to the Duke of Monmouth to expostulate with him about it (for my Lord Shaftsbury was then ready to be in action) and that the Duke said he always told him he would not engage at that time▪ This thing is confirmed to you by these two Witnesses. Col. Romsey says, when he brought the Message from my Lord Shaftsbury, the answer was, They were not ready, my Lord must be contented.

Next he goes on with a discourse concerning my Lord Shaftsbury, (that does not im­mediatly come up to the Prisoner at the Bar, but it manifests there was a Design at that time) he had 10000 brisk Boys as he called them) ready to follow him upon the hol­ding up of his finger. But it was thought not so prudent to begin it, unless they could join all their Forces. So you hear in this they were disappointed: And partly by another ac­cident too my Lord Howard had an apprehension it might be discovered, that was upon the Proclamation that came out forbidding Bonfires, to prevent the ordinary Tumults that used to be upon those occasions. Then my Lord Howard goes on and comes par­ticularly to my Lord Russel: for upon this disappointment you find my Lord Shaftsbury thought fit to be gone. But after that, the Design was not laid aside: for you hear they only told him all along they could not be ready at that time, but the Design went on still to raise Arms, and then they took upon themselves to consult of the methods of it; and for the carrying it on with the greater secresie, they chose a select Council of Six, which were the Duke of Monmouth, my Lord of Essex, my Lord Howard, my Lord Rus­sel, Mr. Hambden, and Col. Sidney. That accordingly they met at Mr Hambdens (there was their first meeting) and their Consultation there was, how the Insurrection should be made, whether first in London, or whether in the Countrie, or whether both in London and in the Countrie at one time. They had some Debates among themselves that it was fittest first to be in the Countrie; for if the King should send his Guards down to suppress them, then the Citie that was then as well disposed to rise, would be without a Guard, and easily effect their designs here.

Their next meeting was at my Lord Russels own house, and there their Debates were [Page 33] still about the same matter, how to get in Scotland to their assistance; and in order to that, they did intrust Col. Sidney one of their Counsel to send a Messenger into Scot­land for some persons to come hither, my L. Melvin, Sir H. Campbell, and Sir J Cockram. Accordingly Col. Sidneys sends Aar. Smith, (but this is only what Col. Sidney told my Lord afterwards, That he had done it, but you see the fruit of it.) Accordingly they are come to Town, and Sir H. Campbell is taken by a Messenger upon his arrival; and he had been but four days in Town, and he had changed his Lodging three times.

Now, Gentlemen, this is the substance of the Evidence that hath been produced a­gainst my L. Russel. My L. Russel hath made several Objections, That he was acciden­tally at this Meeting at Mr. Sheppards House, and came about other business; but I must observe to you, that my Lord Russel owned that he came along with the Duke of Monmouth, and I think he said he went away with him too. You observe what Mr. Sheppards Evidence was: Mr. Ferguson came to tell him the Duke of Mon­mouth would come, and accordingly the Duke of Monmouth did come, and brought his Companion with him, which was my Lord Russel; and certainly they that met upon so secret an Affair, would never have brought one that had not been concerned. Gentlemen, there are other Objections my Lord hath made, and those are in point of Law; but before I come to them, I would observe what he says to the second Meeting. My Lord does not deny but that he did meet both at Mr. Hambdens House and my Lords own: I think my Lord said, they did meet only to discourse of News; and my Lord Howard being a man of excellent Discourse, they met for his Conversation. Gentlemen, you can't believe that this designed Meeting was for nothing, in this close secret Meeting, that they had no Contrivance amongst them. You have heard the Witness, he swears positively what the Conversation was; and you see the Fruit of it, Sir Hugh Campbells coming to Town, and absconding when it is discovered. Now my Lord Russel insists upon it, That admitting these Facts be proved upon him, they amount to no more than to a Conspiracy to levy War, and that that is not Treason within the Statute of 25 E. 3. and if it be only within the Statute of the 13th of this King, then 'tis out of time, that directs the Prosecution to be within six months. The Law is plainly otherwise. The Statute of the 13th of this King I will not now insist upon, though I believe, if that be strictly looked into, the Clause that says the Prosecution shall be within six months, does not refer to Treason, but only to the other Offences that are highly punishable by that Statute. For the Proviso runs thus:

13. Car. 2. Provided always, that no person be prosecuted for any of the Offences in this Act mentioned, (other than such as are made and declared to be High Treason) un­less it be by Order of the Kings Majesty, his Heirs or Successors, under his or their Sign Manual, or by Order of the Council-Table of His Majesty, his Heirs or Successors, directed unto the Attorney General for the time being, or some other of the Counsel learn­ed to His Majesty, His Heirs or Successors for the time being: Nor shall any person or persons by virtue of this present Act incur any the Penalties herein before mentioned, unless he or they be prosecuted within six months next after the Offence committed, and indicted thereupon within three months after such Prosecution; any thing herein contained to the contrary notwithstanding.

This word (Nor) is a continuation of the former Sentence, and the Exception of High Treason will go through all, and except that out of the Temporary Limitation of Treason: But this is High Treason within 25 Edw. 3. To conspire to levy War, is an Overt Act to testifie the Design of the Death of the King. And the Error of my Lord Cook hath possily led my Lord into this mistake. But this, Gentlemen, hath been determined; it was resolved by all the Judges in the Case of my Lord Cobham, 1 Jac. A Conspiracy to levy War against the Kings Person (as this was a Conspiracy to seise the Guards) what does that tend to, but to seise the King? and that always [Page 34] hath been taken to be High Treason. But there are some things called Levying of War in Law, that are not so directly against the King; as if a Number of Men go about to levy Men to overthrow all Inclosures, this by the generality of the Intent, and because of the Consequences, is accounted Levying War against the King. A Conspiracy therefore to levy such a War which by construction only is against the King, perhaps that may not be such an Overt Act as to testifie the Imagi­nation of the Death of the King; but other Conspiracies to raise War against the King have alwaies bin so taken. 'Tis the Resolution of the Judges in my L. Dyers Reports, the Case of Dr. Story; A Conspiracie to invite a foreign Prince to make an Invasion, though no Invasion follow, is an Overt Act to prove conspiring the Death of the King. And as it hath bin so taken, so it hath bin practised but of late daies. In the Kings Bench I take it, the Indictment against Plunket that was hanged, he was indicted for Conspiring against the Life of the King, and his Charge went no farther than for raising of Arms, and invi­ting the French King in; and he suffered. This is acknowledged by my L. Cook; for he himself said in the Paragraph before that out of which this Advice to my L. Russel is ex­tracted, That a Conspiracy to invite a foreign Prince to invade the Kingdom, is a Con­spiracie against the life of the King. And in the next Paragraph, he saies an Overt Act of one Treason cannot be an Overt Act of another Treason; but constant Practice is against him in that: For what is more common, than to indict a man for Imagining the Death of the King, and to assign the Overt Act in a Conspiracie to raise Arms against the King? and sometimes they go on and say, Did levy War against the King. Now by my L. Cooks Rule, levying War, unless the Indictment be particular for that, is not an Overt Act for the compassing the Death of the King; but the contrary hath bin resolved by all the Judges in the Case of Sir Hen. Vane, and it is the constant Practice to lay it so in Indictments. It would be a strange construction if this should not be High Treason. 'Tis agreed by e­very body, to take the King Prisoner, to seise the King, that is a compassing the Death of the King: and to sit in council to conspire to effect that, that is an Overt Act of the Ima­gination of the Death of the King: now no man can distinguish this Case fom that. And this Consultation amounted to all this; for plainly hither it tended. The Consultation was to seise upon the Kings Guards, that could have no other stop but to seise upon the Kings Person, and bring him into their Power. As to the Killing of the King, I am apt to think that was below the Honor 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, 'tis equally Treason, as if they had agreed directly to as­sasinate him. Therefore I think there is nothing for you to consider, but to see that the Fact be fully proved: and I see nothing that hath been said by my L. Russel that does in­validate our Evidence. He hath produced several Witnesses, Persons of Honor: my L. Anglesy tells you of a Discourse my L. Howard had with my L. of Bedford; That he told my L. of Bedford that he needed not to fear, for he had a wife and understanding Son, and could not think he should be guilty of any such thing as was laid to his Charge. This is brought to invalidate my L. Howards Testimony. Gentlemen, do but observe, My L. Howard was as deep in as any of them, and was not then discovered: Is it likely that my L. Howard, that lay hid, should discover to my L. of Bedford that there was a Conspiracy to raise Arms, and that he was in it? This would have been an aspersion upon my Lord of Bedford, that any such thing should have been said.

Mr. Edw. Howard is the next, and he proves, That my L. Howard used solemn Pro­testations that he knew nothing of this Conspiracy. I did observe, that worthy Gentle­man in the beginning of his Discourse (for it was pretty long) said first, That he had been several times tempting my Lord Howard to come over, and be serviceable to the King, and if he knew any thing, that he would come and confess it. Why Gen­men, Mr. Howard that had come to him upon these Errands formerly, and had thought he had gained him, I conceive you do not wonder if my Lord Howard did not reveal [Page 35] himself to him, who presently would have discovered it; for, for that arrand he came. But if my Lord had had a design to have come in and saved his Life, he would have made his Submission voluntarily, and made his Discovery. But my Lord tells nothing till he is pinched in his Conscience, and confounded with the Guilt (being then in Custody) and then he tells the whole Truth, that which you have heard this day.

Gentlemen, this hath been all that hath been objected against the Witnesses except what is said by Dr. Burnet; and he saies that my L. Howard declared to him, that he be­lieved there was no Plot, and laughed at it. Why Gentlemen, the Doctor would take it ill to be thought a person fit to be intrusted with the discovery of this; therefore what he said to him signifies nothing, for 'tis no more than this, that he did not discover it to the Doctor.

But the last Objection (which I see there has been a great many Persons of Honour and Quality called to) is, That 'tis not likely my Lord Russel should be guilty of any thing in this kind, being a man of that Honor, Vertue, and so little blamable in his whole Conversation. I do confess Gentlemen this is a thing that hath weight in it. But consi­der on the other hand, my Lord Russel is but a man, and hath his humane frailties about him. Men fall by several temptations; some out of revenge, some by malice fall into such offences as these are: my Lord Russel is not of that temper, and therefore may be these are not the ingredients here. But Gentlemen, there is another great and dange­rous temptation that attends people in his circumstances, whether it be Pride or Ambi­tion, or the cruel snare of Popularity, being cried up as a Patron of Liberty. This hath been a dangerous temptation to many, and many persons of Vertue have fallen into it, and 'tis the only way to tempt persons of Vertue; and the Devil knew it, for he that tempted the Pattern of Vertue, shew'd him all the Kingdoms of the World, and said, All these will I give thee, if thou wilt fall down and worship me. Though he be a person of Vertue, yet it does not follow, but his Vertue may have some weak part in him. And I am afraid, these temptations have prevailed upon my Lord. For I cannot give my self any colour of objection to disbelieve all these Witnesses who give in their testimony. I see no contradiction, no correspondence, no contrivance at all between them. You have plain Oaths before you, and I hope you will consider the weight of them, and the great consequence that did attend this Case, the overthrow of the best Government in the World, and the best and most unspotted Religion, which must needs have suffered; the greatest Liberty and the greatest Security for Property that ever was in any Nation, bounded every way by the rules of Law, and those kept sacred. I hope you will consider the weight of this Evidence, and consider the consequences such a Conspiracy, if it had taken effect, might have had. And so I leave it to your consideration upon the Evidence you have heard.

Sir Geo. Jeff.

My Lord, and you Gentlemen of the Jurie, this Cause hath detained your Lordship a long time, by reason of so many Witnesses being called, and the length of the defence made by the Prisoner at the Bar; and if it had not been for the length of the time, I would not have injured your patience by saying any thing, Mr. Sollicitor having taken so much pains in it. It is a duty incumbent upon me, under the circum­stances I now stand, to see if any thing hath been omitted that hath not been observed to you; and I shall detain you with very few words.

Gentlemen, you must give me leave to tell you, 'tis a Case of great consequence, of great consequence to that Noble Person that now is at the Bar, as well as to the King: for it is not desired by the King nor by his Counsel, to have you influenced in this matter by any thing but by the Truth, and what Evidence you have received. In the next place, you are not to be moved by any compassion or pity: the Oath you have taken is to go according to your Evidence; and you are not to be moved by any Insinuations that are offered by us for the King, nor by any insinuations by the Prisoner at the Bar; but the Truth according to the Testimony given must be your guide. How far the Law will [Page 36] affect this Question, that we are not to apply to you for; for that we are to apply our selves to the Court (they are the Judges in point of Law) who will take so much care in their directions to you, that you may be very well satisfied you will not easily be led into error. For the instances that have been put, I could put several others; But I will take notice only of one thing that that Noble Person at the Bar seems to Object. Gent­lemen, it is not necessary there should be two Witnesses to the self same Fact, at the self same time; but if there be two Witnesses tending to the self-same Fact, though it was at several times, and upon several occasions, they will be in point of Law two Witnesses which are necessary to convict a Man for High-Treason. Gentlemen, I make no doubt this thing is known to you all, not only by the Judgment of all the Judges in England, but the Judgment of the Lords in Parliament, when I doubt not the Prisoner at the Bar did attend in the Case of my Lord Stafford, wherein one Witness gave an account of a Conspiracy in England, Turbervile of another in France; and by the Opinion of all my Lords the Judges, approved in Parliament, that was enough, and he was convicted.

The Question is, whether we have sufficiently proved this matter. Gentlemen, I must tell you, we take no Gaols, nor bring any prosligate Persons, Persons that wanted Faith or Credit before this time. I must tell you, that notwithstanding the fair notice that hath been given to the Prisoner at the Bar (that you see he hath taken an ad­vantage of it, he hath given an account of a private Conversation with my Lord Howard before that Noble Person that was Witness against him was taken) he has not given you in all his Proof hitherto, nay I say, he has not pretended any thing in the World: wherefore you Gentlemen that are upon your Oaths, should take it upon your Consciences, that two Men, against whom there is no Objection, should come to damn their own Souls to take away the life of this Gentleman; when there is no Quarrel, no Temptation, wherefore these Gentlemen should come in the face of a Court of Ju­stice, in the face of such an Auditory, without respect to that infinite Being to whom they appeal for confirmation of the Truth of their Testimony: and if they had the Faith of Men or Christians, they must necessarily conclude, that if they did swear to take away a mans Life that was innocent, God would sink them down presently into Hell.

Gentlemen, in the next place I must acquaint you, that the first Witness Col. Romsey, it is apparent he was taken notice of by the Prisoner as a man fit to be trusted; he was engaged by my Lord Shaftsbury: But says he, would any man believe, that that man that had received so many Marks of the Kings Favour, both in advantage to his Estate, his Honour and Person, could be ever contriving such an Hellish Design as this? Gentlemen, if you will argue from such uncertain Conjectures, then all Criminals will come off. Who should think that my Lord of Essex, who had been advanced so much in his Estate and Honour, should be guilty of such desperate things! which had he not been conscious of, he would scarcely have brought himself to that untimely end, to a­void the Methods of publick Justice. Col. Romsey tells you my Lord Shaftsbury was con­cerned in this Conspiracy. I am sorry to find that there hath been so many of the No­bility of this Land that have Lived so happily under the benign influence of a gracious Prince, should make so ill returns. Gentlemen, I must appeal to you whether in your observation you found Col. Romsey to be over-hasty and an over-zealous Witness; he did not come as if he came in spight to the Prisoner at the Bar: you found how we were forced to pump out every thing,; but after he had been pressed over and over a­gain, then he came to it: So that I observe to you, that he was an unwilling Witness.

Gentlemen, give me leave to observe to you, the Prisoner at the Bar, before such time as Mr. Sheppard came up and gave evidence against him, says he, I come only by accident, only to tast a parcel of wine. Mr Sheppard when he comes up, he tells you, there was no such design. Ferguson (that was the person he kept company with, the Reverend Dean and the rest of the Clergy of the Church of England, they were not fit to be trusted with it, but this Independent Person Ferguson) he gives notice of the coming of the per­sons, [Page 37] and in pursuance of this notice they all come, they come late in the Evening, not in the posture and quality they use to go, for you find they had not so much as a Coach. Is it probable they came to tast Wine? Wherefore did they go up into a room? Where­fore did they order Mr. Sheppard that none of the Boys should come up, but that the Master must fetch the Sugar and Wine himself? wherefore you may perceive the Action they were upon, there were only to be such persons as had an affection for such a cause. You find pursuant to what Col. Romsey says, that there was a direction to take a view of the Guards, that Sir Tho. Armstrong comes back and makes this Report: says he, I have taken notice they are in such an idle careless posture, that it is not impossible to surprize them. This Mr. Sheppard he does not come, nor does he appear to you to come here out of any vindictive humor, to do the Prisoner at the Bar any hurt.

In the next place we have my Lord Howard, he comes and positively tells you after he had given an account (for you observe there were two parts to be acted in this horrid Tragedy, there was, first, the Scoundrel sort of People were to be concerned to take away the Life of the King and the Duke, the Great Persons were to head the Party in the Rising) they put themselves in proper postures, each of them consenting to something of the Surprize, in as much as you observe that Sir Thomas Armstrong and some other Persons might not be trusted. They come and resolve themselves out of a General Council, and they meet in a particular Council of Six, looking upon themselves as the Heads of the Party: And I must tell you many of them (we live not in an age of such obscurity, but we know them) how fond have they been of the applause of the people! As that person encouraged himself, yesterday they were Liberatores Patriae that could Murder the King and the Duke.

My Lord, I must take notice that this noble Lord is known to have an intimacy with him; you observe with how much tenderness he is pleased to deliver himself, how carefully he reports the Debates of the particular Consults of the persons to be intrusted in the management; he tells you that Noble Lord the Prisoner at the Bar was pitched upon, and Algernoon Sidney, a man Famous about the Town, for what? To call in Par­ties from some of his Majesties other Dominions, persons we know ripe enough for Re­bellion, to assist. Pursuant to this, you find persons sent of a Message for some to come over, whereof some are in hold: So that for all dark and obscure sort of matters, nothing can be better brought to light than this, of taking all matters together, with the concurring Circumstances of Time and Place.

Gentlemen, I must confess this Noble Lord hath given an account by several Ho­nourable persons of his Conversation; which is a very easie matter. Do you think if any man had a design to raise a Rebellion against the Crown, that he would talk of it to the Reverend Divines, and the Noble Lords that are known to be of Integri­ty to the Crown? Do you think the Gentleman at the Bar would have so little con­cern for his own life, to make this Discourse his ordinary Conversation? No it must be a particular Consult of Six, that must be intrusted with this. I tell you, 'tis not the Divines of the Church of England, but an Independent Divine, that is to be concerned in this; they must be persons of their own complexion and humour. For Men will ap­ply themselves to proper Instruments.

Gentlemen, I would not labour in this case; for far be it from any man to endea­vour to take away the Life of the Innocent. And whereas that Noble Lord says, he hath a vertuous good Lady, he hath many Children, he hath Vertue and Honour he puts into the Scale: Gentlemen, I must tell you on the other side, you have Conscien­ces, Religion; you have a Prince, and a mercifull one too; consider the life of your Prince, the life of his Posterity, the consequences that would have attended if this Villany had taken effect. What would have become of your Lives and Religion? what would have become of that Religion we have been so fond of preserving? Gentlemen, I must put these things home upon your Consciences. I know you will remember the horrid [Page 38] Murder of that most pious Prince, the Martyr King Charles the First. How far the Practices of those persons have influenced the several Punishments since, is too great a secret for me to examine. But now, I say, you have the Life of a merciful King, you have a Religion that every honest man ought to stand by, and I am sure every loyal man will venture his Life and Fortune for. You have your Wives and Children. Let not the Greatness of any man corrupt you, but discharge your Consciences both to God and the King, and to your Posterity.

L. C. J.

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 in 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 Kings Counsel, which will take off a great deal of my trouble in repeating it to you again. I know you cannot but take notice of it, and remember it, it having been stated twice by two of the Kings Counsel to you; 'tis long, and you see what the parties here have proved. There is first of all Col. Romsey, he does attest a Meeting at Mr. Sheppards 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 Shaftsbury was, that Mr. Trenchard had failed them, and my Lord must be contented, for it could not be at 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 17th, upon the day of Qu. Elizabeths Birth. You hear he does say, There was at that Meeting some Discourse concerning inspecting the Kings 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 Russel was present. Mr. Sheppard does say that my Lord Russel was there: That he came into this Meeting with the Duke of Monmouth, and he did go away with the Duke of Monmouth, as 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 Shaftsbury in order to a Rising in the City of London, and my Lord Shaftsbury did value himself mightily upon 10000 Men he hoped to raise; and a great deal of Discourse he had with my Lord Shaftsbury. This he does by way of Inducement to what he says concerning my Lord Russel. 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. Hambdens House, the other at my Lord Russels 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 Kings 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 concern'd 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 mans 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 Councils▪ but them. You have heard my Lord Russels 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 testifie, Now the Question before you will be, whether up­on [Page 39] this whole matter you do believe my Lord Russel had any design upon the Kings life, to destroy the King, or take away his life, for that is the material part here. 'Tis used and given you (by the Kings 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 Kings Guards, which say they can have no o­ther end but to seise and destroy the King; and 'tis a great evidence (if my Lord Russel did design to seise the Kings Guards, and make an Insurrection in the Kingdom) of a de­sign for to surprise the Kings Person. It must be lest 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, 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 seise his Guards, which is urged as an evidence, and surely is in it self an evidence to seise 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 of the Clock in the Afternoon, when the Jury brought the said Lord Russel in Guilty of the said High Treason.
Saturday 14th. July, My Lord Russel was brought to the Barr.
Cl. of Cr.

WIlliam Russel Esq hold up thy Hand

which he did.

Thou hast been In­dicted for High Treason against our Sovereign Lord the King, and thereupon hast pleaded Not Guilty, and for thy Trial hast put thy self upon the Coun­try, which Country has found thee Guilty. What canst thou say for thy self why Iudg­ment of Death should not pass upon thee according to the Law?

L. Russel▪

Mr. Recorder, I should be very glad to hear the Indictment read.

Mr. Att. Gen.

You may read it.

Cl. of Cr.

Will you have it read in Latin or English?

L. Russel.

In English.

The Clerk read to the words of Conspiring the Death of the King.
L. Russel

Hold, I thought I had not been charged in the Indictment as it is, of Com­passing and Conspiring the Death of the King.

Mr. Att. Gen.

Yes, my Lord,

L. Russel.

But Mr. Recorder, If all that the Witnesses swore against me be true, I ap­peal to you and the Court, I appeal to you whether I am Guilty within the Statute of 25 E. 3. they having sworn a Conspiracy to levy War; but no intention of Killing the King: And therefore I think truly Judgment ought not to pass upon me for Conspiring the death of the King, of which there was no proof by any one Witness.

Mr. Att. Gen.

That is no Exception.

Mr. Recorder.

My Lord, that was an Exception proper (and as I think you did make it) before the Verdict; whether the Evidence does amount to prove the Charge, that [Page 40] is proper to be observed to the Jury; for if the Evidence come short of the Indictment, they can't find it to be a true Charge; But when the Jury has found it, their Verdict does pass for truth. We are bound by the Verdict as well as your Lordship we are to go by what the Jury have found, not their Evidence.

L. Russel.

Without any proof?

Mr. Recorder.

The Jury must be governed by their Evidence.

L. Russel.

I think it very hard I must be condemned upon a point that there was not one thing of it sworn, therefore I think I may very legally demand Arrest of Judg­ment.

Mr. Recorder.

I hope your Lordship will consider 'tis not the Court can give a Ver­dict, it must be the Jury. I believe their is no body in the Court does delight in giving such Judgments, especially against your Lordship. The Verdict is found, and the Kings Attorney General on behalf of the King does demand it.

Mr. Att. Gen.

I do demand Judgment of the Court against the Prisoner.

Proclamation was made for silence while Judgment was giving.
Mr. Recorder.

My Lord Russel, your Lordship hath been Indicted, and Tried, and found Guilty of High Treason, the greatest of Crimes, your Quality is great, and your Crime is great. And I hope and expect that your behaviour and preparation in this Condition will be proportionable. My Lord, it is the Duty of the Witnesses to give Evidence according to Truth, it is the Duty of the Jury to proceed according to Evi­dence. and 'tis the Duty of the Court to give Evidence according to the Verdict. It is the Kings pleasure signified by his Attorny General, to demand Judgment against your Lordship according to this Verdict, and therefore my Lord I shall not delay it with any further circumlocution. The Judgment the Law hath provided, and is the Duty of the Court to give, is,

That you be carried back again, to the place from whence you came, and from thence be drawn upon an Hurdle to the place of Execution; where you shall be hanged by the neck, but cut down alive, your Entrals and Privy Members cut from your Body, and burnt in your sight, your Head to be severed from your Body, and your Body divided into four Parts, and di­sposed at the Kings pleasure. And the Lord have Mercy upon your Soul.
FINIS.

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