HOWARD--Sir, I am coming to it.

LORD CHIEF-JUSTICE--Pray, Sir, be directed by the Court.

HOWARD--Then now, sir, I will come to the thing. Upon this ground I had of my lord's kindness, I applied myself 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 honour, 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 honour 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 own 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;[23] so that if my lord has the same soul on Monday, that he had on Sunday, this cannot be true, that he swears against my lord Russell.

LORD RUSSELL--Call Dr. Burnet.[24]

LORD RUSSELL--Pray, Dr. Burnet, did you hear anything from my lord Howard, since the Plot was discovered, concerning me?

DR. BURNET--My lord Howard was with me the night after the Plot broke out, and he did then, as he had done before, with hands and eyes lifted up to heaven, say he knew nothing of any Plot, nor believed any; and treated it with scorn and contempt.

LORD HOWARD--My lord, may I speak for myself?

JEFFREYS--No, no, my lord, we don't call you.

LORD CHIEF-JUSTICE--Will you please to have any other witnesses called?

LORD RUSSELL--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 anything in my former carriage to make them think me like to be guilty of this? My lord Cavendish.

LORD CAVENDISH--I had the honour to be acquainted with my lord Russell 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. Rumsey my lord Russell did express something, as if he had a very ill opinion of the man, and therefore it is not likely he would entrust him with such a secret.

LORD RUSSELL--Dr. Tillotson.[25]

LORD CHIEF-JUSTICE--What questions would you ask him, my lord?

LORD RUSSELL--He and I happened to be very conversant. To know whether he did ever find anything tending to this in my discourse.

LORD CHIEF-JUSTICE--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 Russell, I always judged him a person of great virtue 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.

LORD RUSSELL--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 Russell 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 would provoke to it, he expressed himself so determined against that matter that I think no man could do more.

_Dr. Thomas c.o.x_ was then called and said that having seen a great deal of Lord Russell during the six weeks 'before this plot came out,' he had always found him against all kind of risings; he expressed distrust of Rumsey.

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.

The _Duke of Somerset_ spoke shortly as to Lord Russell's honour, loyalty, and justice.

FOREMAN OF THE JURY--The gentlemen 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 lord Anglesey.

LORD CHIEF-BARON--My lord, what say you to it, that you told his father that he was a discreet man, and he needed not to fear his engagement in any such thing?

LORD HOWARD--My lord, if I took it right my lord Anglesey's testimony did branch itself into two parts, one of his own knowledge, and the other by hearsay; 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 entangled himself in anything of that nature. My lord, I can hardly be provoked to make my own defence, lest this n.o.ble lord should suffer, so willing I am to serve my lord, who knows I cannot want affection for him. My lord, I do confess I did say it; for your lordship well knows under what circ.u.mstances we were: I was at that time to outface the thing, both for myself and my party, and I did not intend to come into this place, and act this part. G.o.d knows how it is brought upon me, and with what unwillingness I do sustain it; but my duty to G.o.d, 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 said so. There is none of those that know my lord Russell, but would speak of my lord Russell, from those topics of honour, modesty and integrity, his whole life deserves it. And I must confess that I did frequently say, there was nothing of truth in this, and I wish this may be for my lord's 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 tied to a place, but receives its obligation from the appeal we therein make to G.o.d, and, I think, if I called G.o.d and angels to witness to a falsehood, 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 Russell, and to the Duke of Monmouth, and were called to be a witness, I must have declared in the presence of G.o.d 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 expense of so n.o.ble a person's life, and my own soul.

_Lord Clifford_, _Mr. Suton Gore_, _Mr. Spencer_, and _Dr.

Fitz-Williams_ then all gave evidence as to Lord Russell's character in general terms.

LORD CHIEF-JUSTICE--My lord, does your lordship call any more witnesses?

LORD RUSSELL--No, my lord, I will be very short. I shall declare to your lordship, that I am one that have always had a heart sincerely loyal and affectionate to the king, and the government the best government in the world. I pray as sincerely for the king's happy and long life as any man alive; and for me to go about to raise a rebellion, which I looked upon as so wicked and unpracticable, is unlikely. Besides, if I had been inclined to it, by all the observation I made in the country, there was no tendency to it. What some hot-headed people have done there, is another thing. A rebellion cannot be made now as it has been in former times; we have few great men.

I was always for the government, I never desired anything to be redressed, but in a parliamentary and legal way, I have always been against innovations and all irregularities whatsoever; and shall be as long as I live, whether it be sooner or later.

Gentlemen, I am now in your hands eternally, my honour, my life, and all; and I hope the heats and animosities that are amongst you will not so bias you, as to make you in the least inclined to find an innocent man guilty. I call to witness heaven and earth, I never had a design against the king's life, in my life, nor never shall have. I think there is nothing proved against me at all. I am in your hands. G.o.d direct you.

The _Solicitor-General_ then proceeds to sum up the case against Lord Russell. The treason alleged against the prisoner is conspiring the death of the King; the overt act proving the conspiracy is the a.s.sembling in council to raise arms against the King and raise a rebellion here. Rumsey was sent by Shaftesbury to Sheppard's house to ask for news of Trenchard's rising at Taunton; the message was delivered in Russell's presence and an answer was given as from them all that they were disappointed there, and were not ready to rise. Monmouth, Grey, and Armstrong went out to inspect the guards and reported that it was feasible to surprise them. Russell was present and discussed a rising with the rest; the rising was to be on the 19th of November. Sheppard speaks to Ferguson engaging his rooms on behalf of Monmouth; there was consequently a private meeting there which Russell attended. He confirms Rumsey as to the inspecting of the guards, and speaks to the reading of a paper, though he does not say that Russell was there when it was read. Lord Howard 'gives you an account of many things, and many things that he tells you are by hearsay. But I cannot but observe to you that all this hearsay is confirmed by these two positive witnesses.'

Shaftesbury told Howard of the disappointment he had met with from n.o.ble persons who would not join with him; Howard went from Shaftesbury to Monmouth to expostulate with him; 'and Monmouth said he had always told him (? Howard or Shaftesbury) he would not engage at that time.' This, says the Solicitor-General, is confirmed by Rumsey's account of the delivery of his message. Then follows the abandonment of the rising on the 19th of November in consequence of the proclamation forbidding the usual rejoicings on that occasion, and Shaftesbury's departure, leading to the formation of the committee of six, of whom Lord Russell was one, and who at one meeting discussed the proper place for the rising and at another how best to obtain a.s.sistance from Scotland. Lord Russell states that he only came to Sheppard's house by accident, about some other business, but he came with Monmouth, and Monmouth came by appointment.

Surely this designed and secret meeting must have been intended for the purposes for which it was used. Lord Russell objects that this evidence proves no more than a conspiracy to levy war, which is not treason within 25 Edw. III., and though it is treason within 13 Car. II., that statute does not apply because the prosecution has not taken place within six months of the offence. But the case is one of high treason under 25 Edw. III., because 'to conspire to levy war, is an overt-act to testify the design of the death of the King'; as to which see Lord Cobham's case, 1 Jac.[26] A conspiracy to levy war against the king's person tends to seizing the King, which has always been taken to be treason. It may be different in the case of a conspiracy to levy war by such an act as overthrowing all inclosures (which is levying war), which by construction only is against the King, but such cases are to be distinguished from the levying of war against the King himself; see the case of Dr. Story. As was seen in Plunket's[27] case, to invite a foreign invasion is to conspire the death of the King. c.o.ke, in the pa.s.sage before that relied on by Lord Russell, admits that this is the law. When c.o.ke says that to levy war is not an overt act for compa.s.sing the death of the King (that is, is not evidence of such an intention), Sir Henry Vane's case shows he is wrong.

As to the killing of the King, I am apt to think that was below the honour 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, it is equally treason as if they had agreed directly to a.s.sa.s.sinate him.

Lord Howard, it is true, testified repeatedly to Lord Russell's innocence, but was not this the best way of concealing his own guilt?

Surely Dr. Burnet would look on himself as the last person to whom conspirators would confess their crimes.

_Jeffreys_ followed, recapitulating a few of the facts, but adding nothing to the Solicitor-General's argument.

LORD CHIEF-JUSTICE--Gentlemen of the jury, the prisoner at the bar stands indicted before you of High treason in compa.s.sing and designing the death of the king, and declaring of it by overt-acts endeavouring to raise insurrections, and popular commotions, in the kingdom here. To this he hath pleaded, Not Guilty. You have heard the evidence that hath been against him; it hath been at large repeated by the king's counsel which will take off a great deal of my trouble in repeating it again. I know you cannot but take notice of it, and remember it, it having been stated twice by two of the king's counsel to you; 'tis long, and you see what the parties here have proved. There is first of all Col. Rumsey, he does attest a meeting at Mr.

Sheppard's house, and you hear to what purpose he says it was; the message that he brought, and the return he had; it was to enquire concerning a rising at Taunton; and that he had in return to my lord Shaftesbury was, that Mr. Trenchard had failed them, and my lord must be contented; for it could not be that time. You hear that he does say, that they did design a rising; he saith there was a rising designed in November, I think he saith the seventeenth, upon the day of queen Elizabeth's birth.[28] You hear he does say there was at that meeting some discourse concerning inspecting the king's guards, and seeing how they kept themselves, and whether they might be surprised, and this he says was all in order to a rising. He says, that at this my lord Russell was present. Mr. Sheppard does say, that my lord Russell was there; that he came into this meeting with the duke of Monmouth and he did go away with the duke of Monmouth 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 Shaftesbury, in order to a rising in the city of London; and my lord Shaftesbury did value himself mightily upon 10,000 men he hoped to raise; and a great deal of discourse, he had with my lord Shaftesbury. This he does by way of inducement to what he says concerning my lord Russell.

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. Hambden's house, the other at my lord Russell's 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 king's 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 concerned, 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 man's 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 counsels but them. You have heard my lord Russell's 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 testify. Now the question before you will be, Whether upon this whole matter you do believe my lord Russell had any design upon the king's life, to destroy the king, or take away his life, for that is the material part here. It is used and given you (by the king's 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 king's guards, which, say they, can have no other end, but to seize and destroy the king; and 'tis a great evidence (if my lord Russell did design to seize the king's guards, and make an insurrection in the kingdom) of a design to surprise the king's person. It must be left 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,[29] 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 seize his guards, which is urged an evidence, and surely is in itself an evidence, to seize 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 o'clock in the afternoon, when the Jury brought the said Lord Russell in guilty of the said High Treason.

On July 14th Lord Russell was brought up before the Recorder for sentence, and, demanding to have the indictment read, pleaded that no intention to kill the King had been proved. The Recorder, however, pointed out that the point had already been taken, and that he was bound by the verdict of the jury. He then condemned the prisoner in the usual way to be drawn, hanged, and quartered. This sentence was commuted to beheading, and was carried out on 21st July.

Lord Russell was accompanied from Newgate to Lincoln's Inn Fields, where the execution took place, by Tillotson and Burnet. He spoke a few words on the scaffold, expressing his affection for the Protestant religion, and denying knowledge of any plot against the King's life, or the government. He left a paper of considerable interest from a general point of view justifying his action in relation to the Popish Plot and the Exclusion Bill. As to his trial, he a.s.serts that he never saw Sheppard but once, and then there was no undertaking as to seizing the guards and no one appointed to view them. It may have been discoursed of then and at other times, but he never consented to it, and once at Shaftesbury's he strongly protested against it. He had an intention to try some sherry when he went to Sheppard's; but when he was in town

the duke of Monmouth came to me and told me he was extremely glad I had come to town, for my lord Shaftesbury and some hot men would undo us all, if great care be not taken; and therefore for G.o.d's sake use your endeavours with your friends to prevent anything of this kind. He told me there would be company at Mr. Sheppard's that night, and desired me to be at home in the evening, and he would call me, which he did: And when I came into the room I saw Mr. Rumsey by the chimney, although he swears he came in after; and there were things said by some with much more heat than judgment, which I did sufficiently disapprove, and yet for these things I stand condemned. It is, I know, inferred from thence, and was pressed to me, that I was acquainted with these heats and ill designs, and did not discover them; but this is but misprision of treason at most. So I die innocent of the crime I stand condemned for, and I hope n.o.body will imagine, that so mean a thought could enter into me, as to go about to save myself by accusing others; the part that some have acted lately of that kind has not been such as to invite me to love life at such a rate.... I know I said but little at the trial, and I suppose it looks more like innocence than guilt. I was also advised not to confess matter of fact plainly, since that must certainly have brought me within the guilt of misprision[30]. And being thus restrained from dealing frankly and openly, I chose rather to say little, than to depart from ingenuity, that by the grace of G.o.d I had carried along with me in the former parts of my life; so could easier be silent, and leave the whole matter to the conscience of the jury, than to make the last and solemnest part of my life so different from the course of it, as the using little tricks and evasions must have been.

Lord Russell's attainder was reversed by a private Act of 1 Will. and Mary on the ground that the jury were not properly returned, that his lawful challenges to them for want of freehold were refused, and that he was convicted 'by partial and unjust constructions of the law.'

FOOTNOTES:

[1] Sir Francis Pemberton was born 1625, entered Emmanuel College 1640, entered the Inner Temple 1645, was called 1654, was made a bencher 1671, a serjeant 1675, and was imprisoned by the House of Commons for an alleged breach of privilege in the same year. He was made a Judge of the King's Bench in 1679, and took part as such in several trials connected with the Popish Plot; he was discharged in 1680, returned to the bar, and replaced Scroggs as Chief-Justice of the King's Bench in 1681. He was moved to the Common Pleas in 1683, to allow Sir Edmund Saunders, who had advised in the proceedings against the City of London, to act as judge in the case. He was dismissed from his office of judge in the same year, about five weeks after Lord Russell's trial. Returning to the bar, he helped to defend the Seven Bishops, but was imprisoned by the Convention Parliament for a judgment he had given six years before against Topham, the serjeant-at-arms, who had claimed to be without his jurisdiction. He bore on the whole a high character for independence and honesty; and it is curious to learn that he lived to advise the Earl of Bedford whether Lord Russell's attainder would prevent his son succeeding to the earldom.

[2] Sir Robert Sawyer was born in 1633, entered Magdalene College, Cambridge, in 1648, where he was chamber-fellow with Pepys, joined the Inner Temple and went the Oxford circuit. He was elected to the House of Commons for Chipping Wycombe in 1673, and a.s.sisted in drafting the Exclusion Bill. He appeared for the Crown in most of the State Trials of this period. He afterwards led in the defence of the Seven Bishops, took part in the Convention Parliament, and was expelled from the House on account of his conduct in Armstrong's case. He was re-elected and became Chief-Justice of the King's Bench in 1691, and died in 1692.

[3] Heneage Finch, first Earl of Aylesford, was born about 1647: he was educated at Westminster and Christ Church. He entered the Inner Temple, became Solicitor-General in 1679, being elected to the House of Commons for the University of Oxford in the same year. He was deprived of office in 1686, and defended the Seven Bishops. He sat in the House of Commons in 1685, in all Parliaments from the Convention Parliament (1689) till he became a peer in 1703, under the t.i.tle of Baron Guernsey. He was made Earl of Aylesford on the accession of George I. (1714), and died in 1719.

[4] See vol. i. p. 240.