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
can remember for about that time we did meet at Mr. Hambdens House Mr. Att. Gen. Name those that met L. Howard All the Persons I named before that was the Duke of Monmouth my L. Essex my L. Russel Col. Sidney Mr. Hambden Jun. and my self When we met there it was presently agreed what their proper Province was which was to have a care of the Whole And therefore it was necessary some General things should fall under our Care and Conduct which could not possibly be Conducted by individual Persons The things that did Principally Challenge this Care we thought were these Whether the Insurrection was most proper to be begun in London or in the Country or both at one instant This stood upon several different Reasons It was said in the Country and I remember the D. of Monmouth insisted upon it that it was impossible to oppose a Formed well Methodiz'd and Govern'd Force with a Rabble hastily got together and therefore whatever Numbers could be gathered in the City would be suppressed quickly before they could Form themselves Therefore it would be better to begin it at such a distance from the Town where they might have an Opportunity of Forming themselves and would not be subject to the like panick Fear as in the Town where half an hour would convey the News to those Forces that in another half hour would be ready to suppress them Mr. Att. Gen. Was this Determined among you all L Howard In this manner that I tell you Why it was necessary to be done at some reasonable distance from the Town And from thence it was likewise considered that the being so remote from the Town it would put the King upon this Dilemma That either the King would send His Forces to subdue them or not if He did He must leave the City Naked who being Proximi Dispositioni to Action it would give them Occasion to Rise and come upon the back of the Kings Forces if he did not send it would give them time to Form their Number and be better Ordered Mr. Att. Gen. My Lord We do not desire all your Discourse and Debates What was your other General thing L. Howard The other was What Countries and Towns were the fittest and most disposed to Action and the Third What Arms were necessary to be got and how to be disposed and a Fourth which should have been indeed first in Consideration propounded by the D. of Monmouth That it would be absolutely necessary to have some Common Bank of 25 or 30000 l. to Answer the Occasions of such an Undertaking Nothing was done but these things were offered then to our Consideration and we were to bring in our United Advice concerning them But the Last and greatest was How we might so order it as to draw Scotland into a consent with us for we thought it necessary that all the Diversion should be given This was the Last Mr. Att. Gen. Had you any other Meetings L. Howard We had about Ten days after this at my Lord Russels Mr. At. Gen. The same Persons L. How Every one of the same Persons then meeting Mr. At. Gen. What Debates had you there L. How Then it was so far as we came to a Resolution That some Persons should be sent to my Lord Argyle to settle an Understanding with him and that some Messengers should be dispatched into Scotland that should invite some Persons hither that were judged most able to Understand the Estate of Scotland and give an Account of it The persons agreed on were Sir John Cockram my Lord Melvil and another whose Name I have since been told upon my Description Sir Campbel For this purpose we did order a Person should be thought on that was fit Mr. Att. Gen. Do you know who was sent and what was done upon this Resolution L. Howard I have heard I never saw him in six Months before that Aaron Smith was sent Mr. Att. Gen. Who was intrusted to take care of that business L. Howard Collonel Sidney We in discourse did agree to refer it to Collonel Sidney to have the care of sending a Person Mr. Att. Gen. Who acquainted you Aaron Smith was sent L. Howard Colonel Sidney told me he had sent him and given him Sixty Guineys for his Journey Mr. Att. Gen. What more Meetings had you L. Howard We did then consider that these Meetings might have occasioned some observation upon us and agreed not to meet again till the return of that Messenger He was gone I believe near a month before we heard any thing of him which we wondered at and feared some miscarriage but if his Letter had miscarried it could have done no great hurt for it carried only a kind of Cant in it it was under the disguise of a Plantation in Carolina Mr. Att. Gen. You are sure my Lord Russel was there L. Howard Yes Sir I wish I could say he was not Mr. Att. Gen. Did he sit there as a Cipher What did my Lord say L. Howard Every one knows my Lord Russel is a Person of great Judgement and not very Lavish in discourse Sir Geo. Jeff. But did he consent L. Howard We did not put it to the Vote but it went without contradiction and I took it that all there gave there consent Mr. Sol. Gen. The raising of Money you speak of was that put into any way L. Howard No but every man was to put themselves upon thinking of such a way that Money might be Collected without administring Jealousie Mr. Att. Gen. Were there no persons to undertake for a Fund L. Howard No I think not However it was but opinion the thing that was said was Jocosely rather than any thing else that my Lord of Essex had dealing in Mony and therefore he was thought the most proper Person to take the care of those things but this was said rather by way of Mirth then otherwise Mr. Att. Gen. What do you know else my Lord L. Howard I was going to tell you I am now at a full stop For it was six Weeks or more before Smith's Return and then drew on the time that it was necessary for me to go into Essex where I had a small concern there I stayed about three Weeks when I came back I was informed that he was Returned and Sir John Cockram was also come to Town L. Ch. Just Did you meet after this L. Howard No my Lord I tell you that I was forced to go three Weeks upon the account of my Estate and afterwards I was necessitated to go to the Bath where I spent five Weeks and the time of coming from the Bath to this time is five Weeks more so that all this time hath been a perfect Parenthesis to me more then this I know not L. Ch. Just My Lord Russel Now if your Lordship pleases is the time for you to ask him any Questions L. Russel The most he hath said of me my Lord is only hearsay the two times we met it
you are happy in having a Wise Son and a vvorthy Person one that can never sure be in such a Plot as this or suspected for it and that may give your Lordship reason to expect a very good Issue concerning him I know nothing against him or any body else of such a barbarous Design and therefore your Lordship may be comforted in it I did not hear this only from my Lord Howards Mouth but at my ovvn home upon the Monday after for I use to go to Totteridge for fresh Air I vvent dovvn on Saturday this happened to be on Friday my Lord being here I am glad for he can't forget this Discourse and vvhen I came to Tovvn on Monday I understood that my Lord Howard upon that very Sunday had been at Church with my Lady Chaworth My Lady has a Chaplain it seems that preaches there and does the Offices of the Church but my Lady came to me in the Evening This I have from my Lady L. C. J. My Lord What you have from my Lady is no kind of Evidence at all L. Anglesey I don't know what my Lord is I am acquainted with none of the Evidence nor what hath been done But my Lady Chaworth came to me and acquainted me There was some Suspicion Sir Geo. Jeff. I don't think it fit for me to interrupt a person of your Honour my Lord but your Lordship knovvs in vvhat place vve stand here vvhat you can say of any thing you heard of my Lord Howard vve are vvilling to hear but the other is not Evidence As the Court vvill not let us offer hear-says so neither must vve that are for the King permit it L. Anglesey I have told you vvhat happened in my hearing Then Mr. Howard stood up L. C. J. Come Mr. Howard What do you knovv Mr. Howard I must desire to say something of my Self and my Family first My Lord and I have been very intimate not only as Relations but as dear Friends My Lord I have been of a Family knovvn to have great Respect and Duty for the King and I think there is no Family in the Nation so numerous that hath expressed greater Loyalty upon vvhich account I improved my Interest in my Lord Howard I endeavoured upon the great Misunderstanding of the Nation if he be here he knows it to persuade him to apply himself to the King to serve him in that great difficulty of State which is known to all the World I sometimes found my Lord very forward and sometimes I softened him upon which partly upon his Permission and more upon my own Inclination of Duty I made several applications to Ministers of State and I can name them That my Lord Howard had a great desire of serving the King in the best way of Satisfaction and particularly in the great Business of his Brother I wonder'd there should be so much sharpness for a matter of Opinion and I told my Lord so and we had several Disputes about it My Lord I do say this before I come to the thing After this I did partly by his permission and partly by my own inclination to serve the King because I thought my Lord Howard a Man of Parts and saw him a Man that had interest in the Nation tell my Lord Feversham that I had prevailed with a Relation of mine that may be he might think opposite that perhaps might serve the King in this great Difficulty that is emergent and particularly that of his Brother My Lord Feversham did receive it very kindly and I writ a Letter to him to let him know how I had softned my Lord and that it was my desire he should speak with my Lord at Oxon. My Lord Feversham gave me a very kind Account when he came again but he told me L. Ch. Just Pray apply your self to the matter you are called for Mr. Howard This it may be is to the matter when you have heard me for I think I know where I am and what I am to say L. Ch. J. We must desire you not to go on thus Mr. Howard I must satisfie the World as well as I can as to my self and my Family and pray do not interrupt me After this my Lord there never passed a day for almost L. Ch. J. Pray speak to this matter M. Howard Sir I am coming to it L. Ch. J. Pray Sir be directed by the Court. Mr. Howard Then now Sir I will come to the thing Upon this ground I had of my Lords kindness I applied my self to my Lord in this present Issue on the breaking out of this Plot. My Lord I thought certainly as near as I could discern him for he took it upon his Honor his Faith and as much as if he had taken an Oath before a Magistrate that he knew nothing of any Man concerned in this business and particularly of my Lord Russell whom he vindicated with all the honor in the World My Lord it is true was afraid of his own Person and as a Friend and a Relation I concealed him in my House and I did not think it was for such a Conspiracy but I thought he was unwilling to go to the Tower for nothing again So that if my Lord Howard has the same Soul on Monday that he had a Sunday this can't be true that he swears against my Lord Russel This I say upon my Reputation and Honor and something I could say more he added he thought my Lord Russell did not only unjustly suffer but he took God and Men to Witness He thought him the vvorthiest Person in the World I am very sorry to hear any Man of my Name should be Guilty of these things L. Russel Call Dr. Burnet Pray Dr. Burnet did you hear any thing from my Lord Howard since the Plot was discovered concerning me Dr. Burnet My Lord Howard vvas with me the night after the Plot broke out and he did then as he had done before vvith Hands and Eyes lifted up to Heaven say he knew nothing of any Plot nor believed any and treated it with great Scorn and Contempt L. Howard My Lord may I speak for my self Sir Geo. Jeff. No no my Lord we don't call you L. C. J. Will you please to have any other Witnesses called L. Russel There are some Persons of Quality that I have been very well acquainted and conversed with I desire to know of them if there was any thing in my former Carriage to make them think me like to be Guilty of this My Lord Cavendish L. Cavendish I had the Honour to be acquainted with my Lord Russel a long time I always thought him a Man of great Honour and too Prudent and Wary a Man to be concerned in so Vile and Desperate a design as this and from which he would receive so little advantage I can say nothing more but that two or three days since the Discovery of this Plot upon discourse about Col. Romsey my Lord Russel did express something as
of Monmouth and he did go away with the Duke of Monmouth as he believes He says there was some Discourse of a Rising or Insurrection that was to be procured within the Kingdom but he does not tell you the particulars of any thing he himself does not My Lord Howard afterwards does come and tell you of a great Discourse he had with my Lord Shaftsbury in order to a Rising in the City of London and my Lord Shaftsbury did value himself mightily upon 10000 Men he hoped to raise and a great deal of Discourse he had with my Lord Shaftsbury This he does by way of Inducement to what he says concerning my Lord Russel The Evidence against him is some Consults that there were by Six of them who took upon them as he says to be a Council for the Management of the Insurrection that was to be procured in this Kingdom He instances in two that were for this purpose the one of them at Mr. Hambdens House the other at my Lord Russels House And he tells you at these Meetings there was some Discourse of providing Treasure and of providing Arms but they came to no Result in these things He tells you that there was a Design to send for some of the Kingdom of Scotland that might join with them in this thing And this is upon the matter the substance of the Evidence that hath been at large declared to you by the Kings Counsel and what you have heard Now Gentlemen I must tell you some things it lies upon us to direct you in My Lord excepts to these Witnesses because they are concern'd by their own shewing in this Design If there were any I did direct some of you might hear me yesterday that that was no sufficient exception against a mans being an Evidence in the case of Treason that he himself was concerned in it they are the most proper persons to be Evidence none being able to detect such Councils but them You have heard my Lord Russels Witnesses that he hath brought concerning them and concerning his own integrity and course of life how it has been sober and civil with a great respect to Religion as these Gentlemen do all testifie Now the Question before you will be whether upon this whole matter you do believe my Lord Russel had any design upon the Kings life to destroy the King or take away his life for that is the material part here 'T is used and given you by the Kings Counsel as an evidence of this That he did conspire to raise an Insurrection and to cause a Rising of the people to make as it were a Rebellion within the Nation and to surprise the Kings Guards which say they can have no other end but to seise and destroy the King and 't is a great evidence if my Lord Russel did design to seise the Kings Guards and make an Insurrection in the Kingdom of a design for to surprise the Kings Person It must be lest to you upon the whole matter You have not evidence in this Case as there was in the other matter that was tried in the morning or yesterday against the Conspirators to Kill the King at the Rye There was a direct evidence of a Consult to Kill the King that is not given you in this Case this is an act of contriving Rebellion and an Insurrection within the Kingdom and to seise his Guards which is urged as an evidence and surely is in it self an evidence to seise and destroy the King Upon this whole matter this is left to you If you believe the Prisoner at the Bar to have conspired the Death of the King and in order to that to have had these Consults that these Witnesses speak of then you must find him Guilty of this Treason that is laid to his Charge Then the Court adjourned till Four of the Clock in the Afternoon when the Jury brought the said Lord Russel in Guilty of the said High Treason Saturday 14th July My Lord Russel was brought to the Barr. Cl. of Cr. WIlliam Russel Esq hold up thy Hand which he did Thou hast been Indicted for High Treason against our Sovereign Lord the King and thereupon hast pleaded Not Guilty and for thy Trial hast put thy self upon the Country which Country has found thee Guilty What canst thou say for thy self why Iudgment of Death should not pass upon thee according to the Law L. Russel Mr. Recorder I should be very glad to hear the Indictment read Mr. Att. Gen. You may read it Cl. of Cr. Will you have it read in Latin or English L. Russel In English The Clerk read to the words of Conspiring the Death of the King L. Russel Hold I thought I had not been charged in the Indictment as it is of Compassing and Conspiring the Death of the King Mr. Att. Gen. Yes my Lord L. Russel But Mr. Recorder If all that the Witnesses swore against me be true I appeal to you and the Court I appeal to you whether I am Guilty within the Statute of 25 E. 3. they having sworn a Conspiracy to levy War but no intention of Killing the King And therefore I think truly Judgment ought not to pass upon me for Conspiring the death of the King of which there was no proof by any one Witness Mr. Att. Gen. That is no Exception Mr. Recorder My Lord that was an Exception proper and as I think you did make it before the Verdict whether the Evidence does amount to prove the Charge that is proper to be observed to the Jury for if the Evidence come short of the Indictment they can't find it to be a true Charge But when the Jury has found it their Verdict does pass for truth We are bound by the Verdict as well as your Lordship we are to go by what the Jury have found not their Evidence L. Russel Without any proof Mr. Recorder The Jury must be governed by their Evidence L. Russel I think it very hard I must be condemned upon a point that there was not one thing of it sworn therefore I think I may very legally demand Arrest of Judgment Mr. Recorder I hope your Lordship will consider 't is not the Court can give a Verdict it must be the Jury I believe their is no body in the Court does delight in giving such Judgments especially against your Lordship The Verdict is found and the Kings Attorney General on behalf of the King does demand it Mr. Att. Gen. I do demand Judgment of the Court against the Prisoner Proclamation was made for silence while Judgment was giving Mr. Recorder My Lord Russel your Lordship hath been Indicted and Tried and found Guilty of High Treason the greatest of Crimes your Quality is great and your Crime is great And I hope and expect that your behaviour and preparation in this Condition will be proportionable My Lord it is the Duty of the Witnesses to give Evidence according to Truth it is the Duty of the Jury to proceed according to Evidence and 't is the Duty of the Court to give Evidence according to the Verdict It is the Kings pleasure signified by his Attorny General to demand Judgment against your Lordship according to this Verdict and therefore my Lord I shall not delay it with any further circumlocution The Judgment the Law hath provided and is the Duty of the Court to give is That you be carried back again to the place from whence you came and from thence be drawn upon an Hurdle to the place of Execution where you shall be hanged by the neck but cut down alive your Entrals and Privy Members cut from your Body and burnt in your sight your Head to be severed from your Body and your Body divided into four Parts and disposed at the Kings pleasure And the Lord have Mercy upon your Soul FINIS London
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
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
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
you know of a Rising designed before my Lord Shaftsbury went away and afterwards how it was continued on L. Howard My Lord I appear with some confusion Let no man wonder that it is troublesome to me My Lord as to the Question Mr. Attorney puts to me this is the Accompt I have to give 'T is very well known to every one how great a ferment was made in the City upon occasion of the long Dispute about the Election of Sheriffs And this soon produced a greater freedom and liberty of Speech one with another than perhaps had been used formerly though not without some previous preparations and dispositions made to the same thing Upon this occasion among others I was acquainted with Captain Walcot a person that had been some Months in England being returned out of Ireland and who indeed I had not seen for 11 Years before But he came to me as soon as he came out of Ireland and when these unhappy divisions came he made very frequent applications to me and tho' he was unknown himself yet being brought by me he soon gained a confidence with my Lord Shaftsbury and from him derived it to others when this unhappy rent and division of mind was he having before got himself acquainted with many Persons of the City had entred into such Counsels with them as afterwards had the Effect which in the ensuing Narrative I shall relate to your Lordship He came to me and told me that they were now sensible all they had was going that this Force put upon them L. Ch. Just Pray my Lord raise your voice else your Evidence will pass for nothing One of the Jury We cannot hear my Lord. L. Howard There is an unhappy accident happened that hath sunk my voice I was but just now acquainted with the Fate of my Lord of Essex My Lord I say he came to me and did acquaint me that the People were now so sensible that all their Interest was going by that violence offered to the City in their Elections that they were resolved to take some course to put a stop to it if it were possible He told me there were several Consults and Meetings of persons about it and several persons had begun to put themselves into a disposition and preparation to act That some had furnished themselves with very good Horses and kept them in the most secret and blind Stables they could That divers had intended it and for his own part he was resolved to imbark himself in it And having an Estate in Ireland he thought to dispatch his Son thither for he had a good real Estate and a great Stock how he disposed of his Real Estate I know not But he ordered his Son to turn his Stock into Mony to furnish him for the occasion This I take to be about August His Son was sent away Soon after this the Son not being yet returned and I having several Accompts from him wherein I found the Fermentation grew higher and higher and every day a nearer approach to Action I told him I had a necessity to go into Essex to attend the concerns of my own estate but told him how he might by another name convey Letters to me and gave him a little Cant by which he might blind and disguise the matter he wrote about when I was in the Country I receiv'd two or three Letters from him that gave me an Account in that disguised stile but such as I understood that the Negotiation which he had with my Correspondents was going on and in good Condition and it was earnestly desired I would come to Town this was the middle of September I notwithstanding was willing to see the result of that great Affair upon which all Mens Eyes were fixed which was the Determination of the Sherivalty about that time So I ordered it to fall into Town and went to my own House on Saturday night which was Michaelmas day On Sunday he came to me and Dined with me and told me after a general Account given me of the Affairs of the times that my Lord Shaftsbury was secretted and withdrawn from his own House in Aldersgate street and that though he had a Family setled and had absconded himself from them and divers others of his Friends and Confidents yet he did desire to speak with me and for that purpose sent him to shew me the way to his Lodging He brought me to a House at the lower end of Wood street one Watson's House and there my Lord was alone He told me he could not but be sensible how Innocent soever he was both he and all honest men were unsafe so long as the Administration of Justice was in such hands as would accomodate all things to the humor of the Court. That in the sense of this he thought it but reasonable to provide for his own safety by withdrawing himself from his own House into that Retirement That now he had ripened Affairs to that head and had things in that preparation that he did not doubt but he should be able by those men that vvould be in a readiness in London to turn the Tide and put a stop to the Torrent that vvas ready to overflovv But he did complain to me that his design and the design of the Publick vvas very much obstructed by the unhandsom deportment of the Duke of Monmouth and my Lord Russel vvho had vvithdravvn themselves not only from his Assistance but from their ovvn Ingagements and appointments For vvhen he had got such a formed Force as he had in London and expected to have it ansvvered by them in the Country they did recede from it and told him they were not in a condition or preparation in the Country to be concurrent with him at that time This he looked upon but as an artificial Excuse and as an instance of their Intentions wholly to desert him but notwithstanding there was such Preparation made in London that if they were willing to lose the Honour of being concurrent with him he was able to do it himself and did intend speedily to put it into Execution I asked him what Forces he had he said he had enough says I what are you assured of Says he there is above Ten Thousand brisk Boys are ready to follow me when ever I hold up my Finger Says I how have you methoded this that they shall not be crashed for there will be a great Force to oppose you Yes he answered but they would possess themselves of the Gates and these Ten Thousand Men in twenty four Hours would be multiplied into five times the Number and be able to make a Sally out and possess themselves of White-Hall by beating the Guards I told him this was a fair Story and I had reason to think a man of his figure would not undertake a thing that might prove so fatal unless it were laid on a Foundation that might give a prudent man ground to hope it would be successful He said
some Danger in that House and that that Apprehension had occasioned him to remove but we should be sure to hear from him in two or three days We took it as a Waver and thought he did from thence intend to abscond himself from us and it proved so to me for from that time I never saw him But Captain Walcot came to me and told me that he was vvithdravvn but it vvas for fear his Lodging might be discovered but he did not doubt but in a Week he vvould let me knovv vvhere his lodging was But told me vvithin such a time vvhich I think vvas 8 or 10 days there vvould be a Rising and I told the D. of Monmouth and I believe he told my L. Russel And vve believed his Frenzy vvas novv grovvn to that heighth that he would rise immediately and put his design in execution so we endeavoured to prevent it Upon which my Lord Russel I was told and the Duke of Monmouth did force their vvay to my Lord Shaftsburies and did persuade him to put off the day of his Rendezvouz I had not this from my L. Russel for I had not spoke a Word to him But the Duke told me my L. Russel had been vvith him I had indeed an intimation that he had been vvith him but the Duke told me says he I have not been vvith him but my L. Russel was having been convey'd by Col. Romsey After this day was put off it seems it vvas put off vvith this condition That those Lords and divers others should be in a readiness to raise the Country about that day fortnight or thereabouts for there vvas not above a fortnights time given And says the Duke of Monmouth vve have put it off but now we must be in Action for there 's no holding it off any longer And says he I have been at Wapping all night and I never savv a Company of Bolder and Brisker Fellows in my life And says he I have been round the Tower and seen the Avenues of it and I do not think it will be hard in a little time to possess our selves of it But says he they are in the wrong way yet we are ingaged to be ready for them in a Fortnight and therefore says he novv vve must apply our selves to it as vvell as vve can And thereupon I believe they did send into the Country and the Duke of Monmouth told me he spake to Mr. Trenchard vvho was to take particular care of Sommersetshire vvith this circumstance says he I thought Mr. Trenchard had been a brisker Fellovv for when I told him of it he looked so pale I thought he would have svvooned vvhen I brought him to the brink of Action and said I pray go and do vvhat you can among your acquaintance And truly I thought it would have come then to Action But I vvent the next day to him and he said it was impossible they could not get the Gentlemen of the Country to stir yet L. Russel My Lord I think I have very hard measure here is a great deal of Evidence by hear say L. Ch. Just This is nothing against you I declare it to the Jury Mr. Att. Gen. If it please you my Lord Go on in the method of Time This is nothing against you but its coming to you if your Lordship will have patience I assure you L. Howard This is just in the order it was done When this was put off then they were in a great hurry and Capt. Walcot had been several times with me and discoursed of it But upon this disappointment they said it should be the dishonor of the Lords that they were backward to perform their parts but still they were resolved to go on And this had carried it to the latter end of October About the 17th or 18th Captian Walcot came to me and told me now they were resolv'd positively to rise and did believe that a smart Party might perhaps meet with some Great Men. Thereupon I told the Duke of it I met him in the street and went out of my Coach into his and told him That there was some dark intimation as if there might be some Attempt upon the Kings Person with that he strook his breast with a great Emotion of spirit and said Godsoe Kill the KING I will never suffer that Then we went to the Play-House to find Sir Thomas Armstrong and send him up and down the City to put it off as they did formerly and it was done with that success that we were all quieted in our minds that at that time nothing would be done But upon the day the King came from New Market we din'd together the Duke of Monmouth was one and there we had a notion conveyed among us that some bold Action should be done that day which comparing it with the Kings coming we concluded it was design'd upon the King And I remember my L. Gray saies he By God If they do attempt any such thing it can't fail We were in great anxiety of mind till we heard the Kings Coach was come in and Sir Thomas Armstrong not being there we apprehended that he was to be one of the Party for he was not there This sailing it was then next determined which was the last Alarm and News I had of it to be done upon the 17 th of November the Anniversary of Queen Elizabeth and I remember it by this Remark I made my self That I fear'd it had been discovered because I saw a Proclamation a little before forbidding publick Bonfires without leave of my Lord Mayor It made some impressions upon me that I thought they had got an intimation of our Intention and had therefore forbid that Meeting This therefore of the 17 th of November being also disappointed and my Lord Shaftsbury being told things were not ripe in the Country took Shipping and got away and from that time I heard no more of him till I heard he was dead Now Sir after this we all began to lie under the same sense and apprehensions that my Lord Shaftsbury did That we had gone so far and communicated it to so many that it was unsafe to make a Retreat and this being considered it was also considered that so great an Affair as that was consisting of such infinite particulars to be managed with so much sineness and to have so many parts it would be necessary that there should be some General Council that should take upon them the care of the Whole Upon these Thoughts we resolved to erect a little Cabal among our selves which did consist of six persons and the persons were the Duke of Monmouth my Lord of Essex my Lord Russel Mr. Hambden Jun. Algernon Sidney and my Self Mr. Att. Gen. About what time was this when you setled this Council L. Howard It would have been proper for me in the next place to tell you that and I was coming to it This was about the middle of January last as near as I
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
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
if he had a very ill Opinion of the Man and therefore it is not likely he would intrust him with such a secret L. Russel Dr. Tillitson He appears L. Ch. Just What Questions would you ask him my Lord L. Russel He and I happened to be very conversant To know whether he did ever find any thing tending to this in my discourse L. C. J. My Lord calls you as to his Life and Conversation and Reputation Dr. Tillotson My Lord I have been many Years last past acquainted with my Lord Russel I always Judged him a Person of great Vertue and Integrity and by all the Conversation and Discourse I ever had with him I always took him to be a Person very far from any such wicked Design he stands Charged with L Russel Dr. Burnet If you please to give some account of my Conversation Dr. Burnet My Lord I have had the Honour to be known to my Lord Russel several Years and he hath declared himself with much Confidence to me and he always upon all occasions expressed himself against all Risings and when he spoke of some People that would provoke to it he expressed himself so determined against that matter I think no Man could do more L. C. J. Will your Lordship call any other Witnesses L. Russel Dr. Cox Dr. Thomas Cox stood up Dr. Cox My Lord I did not expect to have been spoken to upon this Account Having been very much with my Lord of late that is for a Month or six Weeks before this Plot came out I have had occasion to speak with my Lord in private about these Publick Matters But I have always found that my Lord was against all kind of Risings and thought it the greatest Folly and Madness till things should come in a Parliamentary way I have had occasion often to speak with my Lord Russel in private and having my self been against all kind of Risings or any thing that tended to the disorder of the Publick I have heard him profess Solemnly he thought it would Ruine the best Cause in the World to take any of these irregular ways for the preserving of it and particularly my Lord hath expressed himself occasionally of these two Persons my Lord Howard and Col. Romsey One of them Col. Romsey I saw once at my Lords House and he offered to speak a little privatly But my Lord told me he knew him but a little I told him he was a Valiant Man and acted his Part Valiantly in Portugal He say'd he knew him little and that he had nothing to do with him but in my Lord Shaftsburys business He said for my Lord Howard he was a Man of excellent Parts of Luxuriant Parts but he had the luck not to be much trusted by any Party And I never heard him say one word of Indecency or Immodesty towards the King L. Russel I would pray the Duke of Somerset to speak what he knows of me D. of Som. I have known my Lord Russel for about two Years and have had much Conversation with him and been often in his Company and never heard any thing from him but what was very Honourable Loyal and Just L. Ch. J. My Lord does say that he has known my Lord Russel for about two Years and hath had much Conversation with him and been much in his Company and never heard any thing from him but what was Honourable and Loyal and Just in his Life Foreman of the Jury The Gent. of the Jury desire to ask my Lord Howard something upon the Point my Lord Anglesey testified and to know what answer he makes to my Lord Anglesey L. C. Baron My Lord What say you to it that you told his Father he was a discreet Man and he needed not to Fear his Ingagement in any such thing L. Howard My Lord if I took it right my Lord Angleseys Testimony did Branch it self into two Parts one of his own knowledge and the other by Hear say as to what he said of his own knowledge when I waited upon my Lord of Bedford and endeavoured to comfort him concerning his Son I believe I said the words my Lord Anglesey has given an account of as near as I can remember that I looked upon his Lordship as a Man of that Honour that I hoped he might be secure that he had not intangled himself in any thing of that Nature My Lord I can hardly be provoked to make my own defence least this Noble Lord should suffer so willing I am to serve my Lord who knows I can't want affection for him my Lord I do confess I did say it for your Lordship well knows under what Circumstances we were I was at that time to out face the thing both for my self and my Party and I did not intend to come into this Place and Act this Part. God knows how it is brought upon me and with what unwillingness I do Sustain it but my Duty to God the King and my Country requires it but I must confess I am very sorry to carry it on thus far My Lord I do confess I did say so and if I had been to Visit my Lord Pemberton I should have say'd so There is none of those that know my Lord Russel but would speak of my Lord Russel from those Topicks of Honour Modesty and Integrity his whole Life deserves it And I must confess I did frequently say there was nothing of Truth in this and I wish this may be for my Lords advantage My Lord will you spare me one thing more because that leans hard upon my Reputation and if the Jury believe that I ought not to be believed for I do think the Religion of an Oath is not Tyed to a Place but receives its Obligation from the appeal we therein make to God and I think if I called God and Angels to Witness to a Falshood I ought not to be believed now But I will tell you as to that your Lordship knows that every man that was Committed was Committed for a design of Murdering the King now I did lay hold on that part for I was to carry my Knife close between the Paring and the Apple and I did say that if I were an Enemy to my Lord Russel and to the Duke of Monmouth and were called to be a Witness I must have declared in the presence of God and man that I did not believe either of them had any design to Murder the King I have said this because I would not walk under the Character of a Person that would be Perjured at the expence of so Noble a Persons Life and my own Soul L. Russel My Lord Clifford L. Ch. Just What do you please to ask my Lord Clifford L. Russel He hath known my Conversation for many Years L. Clifford I always took my Lord to be a very Worthy Honest Man I never saw any thing in his Conversation to make me believe otherwise L. Russel Mr. Gore Mr. Luton Gore I have been
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
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
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