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 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. 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 'T is 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
Causes but if so be in Civil Causes there be required Freeholders and an Attaint lies if there be not 't is 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 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 't is 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 't is 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 't is 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
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