MR. WEST--My lord, as to my lord Russell, I never had any conversation with him at all, but that I have heard this, that in the insurrection in November, Mr. Ferguson and colonel Rumsey did tell me that my lord Russell intended to go down and take his post in the West, when Mr. Trenchard had failed them.

LORD CHIEF-JUSTICE--What is this?

ATTORNEY-GENERAL--We have proved my lord privy to the consults; now we go about to prove the under-actors did know it.

WEST--They always said my lord Russell was the man they most depended upon, because he was a person looked upon as of great sobriety.

LORD RUSSELL--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.

LORD CHIEF-JUSTICE--As to this, the giving evidence by hearsay will not be evidence; what colonel Rumsey, or Mr Ferguson told Mr. West, is no evidence.

ATTORNEY-GENERAL--It 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.

JEFFREYS--We have evidence without it, and will not use anything of garniture; we will leave it as it is, we won't trouble your lordship any further. I think, Mr. Attorney, we have done with our evidence.

The Lord Chief-Justice then recapitulated the evidence given against Lord Russell, dwelling particularly on the traitorous character of Rumsey's message, Russell's privity to Trenchard's rising, the alleged written declaration, and the consultations as to the best method of effecting a rising, and finally called on Lord Russell to make his defence.

LORD RUSSELL--My lord, I cannot but think myself mighty unfortunate, to stand here charged with so high and heinous a crime, and that intricated and intermixed with the treasons and horrid practices and speeches of other people, the king's counsel taking all advantages, and improving and heightening things against me. I am no lawyer, a very unready speaker, and altogether a stranger to things of this nature, and alone, and without counsel. 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. Rumsey, who it is 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 n.o.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 six months; and by the 25 Edw. III. a design of levying war is no treason, unless by some overt-act it appear.[21] 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.

The _Attorney-General_ replies that they are proceeding under the Statute of 25 Edward III.; that he does not contend that a design to levy war is treason, but to prepare forces to fight against the King is a design within the Statute to kill the King; 'to design to depose the King, to imprison the King, to raise the subjects against the King, these have been settled by several resolutions to be within that Statute, and evidences of a design to kill the King.'[22] A man cannot be convicted of treason by one witness only, but several witnesses to several acts which manifest the same treason are sufficient.

JEFFREYS--If my lord will call his witnesses----

LORD RUSSELL--This is tacking of two treasons together; here is one in November by one witness, and then you bring in another with a discourse of my lord Howard, and he says the discourse pa.s.sed for pleasure.

The Lord Chief-Justice and Jeffreys point out that it has been settled that the two witnesses required in treason may be witnesses to different acts, and that if Lord Russell admits the facts his counsel may be heard on the point of law.

LORD CHIEF-JUSTICE--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 desires your counsel may be heard to that, I will do it.

SOLICITOR-GENERAL--Will your lordship please to call any witness to the matter of fact?

LORD RUSSELL--It is very hard a man must lose his life upon hearsay. Colonel Rumsey says he brought a message which I will swear I never heard nor knew 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.

ATTORNEY-GENERAL--My lord, if there is anything that is law, you shall have it

LORD RUSSELL--My lord, colonel Rumsey, the other day before the king [the information of Rumsey is signed by the Duke of Abermarle and Sir Leoline Jenkins, Secretary of State] could not say that I heard it, I was in the room, but I came in late, they had been there a good while; I did not stay above a quarter of an hour tasting sherry with Mr. Sheppard.

Here some of the judges desired that 25 Edw. III. c. 2 should be read, which was done. The material parts of it declare 'that whereas divers opinions have been before this time, in what case treason shall be said, and in what not ... when a man doth compa.s.s or imagine the death of our lord the king ... or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be provable attainted of open deed by people of their condition,' it is treason. On this the point of law is re-discussed with the same result as before.

LORD RUSSELL--I do not know how to answer it. The points methinks must be quite otherwise, that there should be two witnesses to one thing at the same time.

ATTORNEY-GENERAL--Your lordship remembers, in my lord Stafford's case, there was but one witness to one act in England, and another to another in France.

LORD RUSSELL--It was to the same point.

ATTORNEY-GENERAL--To the general point, the lopping point.

LORD RUSSELL--I can prove I was out of town when one of these meetings was; but Mr. Sheppard cannot recollect the day, for I was out of town all that time. I never was but once at Mr.

Sheppard's and there was nothing undertaken of viewing the guards while I was there. Col. Rumsey, can you swear positively, that I heard the message, and gave any answer to it?

LORD CHIEF-JUSTICE (to Col. Rumsey)--Sir, did my lord Russell hear you when you delivered the message to the company? Were they at the table, or where were they?

COLONEL RUMSEY--When I came in they were standing at the fireside; but they all came from the fireside to hear what I said.

LORD RUSSELL--Col. Rumsey was there when I came in.

COLONEL RUMSEY--No, my lord. The duke of Monmouth and my lord Russell went away together; and my lord Grey, and sir Thomas Armstrong.

LORD RUSSELL--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 anything; 'tis but very lately, that he did declare and protest to several people, that he knew nothing against me, nor of any Plot I could in the least be questioned for.

LORD CHIEF-JUSTICE--If you will have any witnesses called to that, you shall, my lord.

LORD RUSSELL--My lord Anglesey, and Mr. Edward Howard.

My lord Anglesey stood up.

LORD CHIEF-JUSTICE--My lord Russell, what do you ask my lord Anglesey?

LORD RUSSELL--To declare what my lord Howard told him about me, since I was confined.

LORD 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 Maudlin College in Oxon; I had not been there but a very little while, and was ready to go away 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.

LORD HOWARD--Yes, here I am to serve your lordship.

LORD 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, were, my lord, you are happy in having a wise son, and a worthy 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 Howard's mouth, but at my own home on the Monday after, for I used to go to Totteridge for fresh air; I went down on Sat.u.r.day, this happened to be on Friday (my lord being here, I am glad, for he cannot forget this discourse); and when I came to town on Monday I understood that my lord Howard upon that very Sunday had been 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----

LORD CHIEF-JUSTICE--My lord, what you have from my lady is no kind of evidence at all.

LORD 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----

JEFFREYS--I don't think it fit for me to interrupt a person of your honour, my lord, but your lordship knows in what place we stand here: What you can say of anything you heard of my lord Howard, we are willing to hear, but the other is not evidence.

As the court will not let us offer hearsays, so neither must we that are for the king permit it.

LORD ANGLESEY--I have told you what happened in my hearing.

_Mr. Howard_ was then called, and after describing steps he took to prevail on Lord Howard to come over to the King's side, when 'I sometimes found my lord very forward and sometimes softened him'; and continuing--

LORD CHIEF-JUSTICE--Pray apply yourself 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.

LORD CHIEF-JUSTICE--We must desire you not to go on thus.

MR. HOWARD--I must satisfy the world, as well as I can, as to myself, and my family, and pray do not interrupt me. After this, my lord, there never pa.s.sed a day for almost----

LORD CHIEF-JUSTICE--Pray speak to this matter.