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 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 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 19 th 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
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 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 'T is 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 'T is 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 't is 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 Gen-men 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 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 't is 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 't is 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 't is the only way to tempt persons
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 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 't is 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 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 't is 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 17 th 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 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 't is 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 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 't is not proved and if it was I think 't is 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 't is 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 'T is 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 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 't is 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 't is 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 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 't is 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
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 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 13 th of this King then 't is out of time that directs the Prosecution to be within six months The Law is plainly otherwise The Statute of the 13 th 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
it is prettie odly expressed for when a Man is accused of Felonies and other High Treasons 't is 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 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 't is 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 't is 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 'T is 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 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 'T is 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 't is 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 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. 't is 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