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 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 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 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 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
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
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
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 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 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
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
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 'T is 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 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 'T is 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. 'T is not Evidence to convict a man if there were not plain Evidence before but it plainly confirms what the other swears But I think we need no more Sir Geo. Jeff. We have Evidence without it and will not use any thing of Garniture we will leave it as 't is 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