[5] Francis North, Lord Guilford (1637-1685), the third son of the fourth Lord North, was educated at various Presbyterian schools and St.

John's College, Cambridge. He was called to the bar in 1661, and with the help of the Attorney-General, Sir Geoffrey Palmer, soon acquired a large practice. After holding various provincial posts, he became Solicitor-General in 1671. He entered Parliament in 1673, and became Attorney-General the same year, becoming Chief-Justice of the Common Pleas in 1675. He always strongly supported Charles II.'s government, temporising during the Popish Plot, and being chiefly responsible for the execution of Colledge. He became Lord Keeper in 1682, and was raised to the peerage in 1683: but during his tenure of office was much vexed by intrigues, particularly by the conduct of Jeffreys, who had succeeded him in the Common Pleas. He is now chiefly remembered on account of the very diverting and interesting life of him written by his brother Roger.

[6] Pollexfen. See Note in Alice Lisle's trial, vol. i. p. 241.

[7] Sir John Holt (1642-1710) was called to the bar in 1663. He appeared for Danby on his impeachment in 1679, and was a.s.signed to be counsel for Lords Powys and Arundell of Wardour, who were impeached for partic.i.p.ation in the Popish Plot in 1680, but against whom the proceedings were stopped after Stafford's conviction. He appeared for the Crown in several trials preceding that of Lord Russell, and having expressed an opinion in favour of the Quo Warranto proceedings against the City of London was appointed Recorder, knighted, and called as a serjeant in 1685. He was deprived of the recordership after a year on refusing to pa.s.s sentence of death on a deserter, a point which owed its importance to Charles II.'s attempts to create a standing army; but as he continued to be a serjeant, he was unable thenceforward to appear against the Crown. He acted as legal a.s.sessor to the Convention called after the flight of James II., as a member of the House of Commons took a leading part in the declaration that he had abdicated, and was made Chief-Justice in 1689.

[8] This decision and unspecified 'partial and unjust constructions of law' were the professed ground on which Russell's attainder was subsequently reversed: see _post_, p. 56. Sir James Stephen (_Hist.

Crim. Law_, vol. i. p. 412) expresses an opinion that the law upon the subject at the time was 'utterly uncertain.'

[9] Lord Grey was the eldest son of the second Baron Grey of Werk. He succeeded his father in 1675: he voted for Stafford's conviction, and was a zealous exclusionist. He was convicted of debauching his sister-in-law, Lady Henrietta Berkeley, in 1682, and consequently took no part in Russell's plot. He was arrested in connection with the Rye House Plot, but escaped to Holland, whence he returned to take part in Monmouth's rising. He was captured after Sedgemoor, but his life was spared on his being heavily fined and compelled to give evidence against his friends. He left England, but returned with William III., during whose reign he filled several offices. He was created Earl of Tankerville in 1695, and died in 1701.

[10] Lord Howard, the third Lord Howard of Escrick, was born about 1626.

He entered Corpus College, Cambridge. He served in Cromwell's Life-guards. As a sectary he seems to have favoured the Restoration. He was committed to the Tower for secret correspondence with Holland in 1674. After succeeding to the peerage he furthered the trial of his kinsman Stafford. After giving evidence in this trial (see p. 15), he gave similar evidence against Algernon Sidney, was pardoned, and died in obscurity at York in 1694.

[11] The Earl of Ess.e.x was the son of the Lord Capel who was one of Charles I.'s most devoted adherents and lost his life after his vain defence of Colchester in 1648. The younger Lord Capel was made Earl of Ess.e.x at the Restoration. Though opposed to the Court party by inclination, he served on various foreign missions, and was Lord-Lieutenant of Ireland from 1672 to 1677. On his return to England he a.s.sociated himself with the Country party, and on Danby's fall was placed at the head of the Treasury Commission, and thereafter followed Halifax and Sunderland in looking to the Prince of Orange for ultimate a.s.sistance rather than Shaftesbury, who favoured the Duke of Monmouth.

He left the Treasury in 1679, supported Shaftesbury in 1680 on the Exclusion Bill, and appeared as a 'pet.i.tioner' at Oxford in 1680. He voted against Stafford. He was arrested as a co-plotter with Russell on Howard's information, and committed suicide in the Tower on the day of his trial (see p. 16).

[12] Algernon Sidney (1622-1683) was the son of the second Earl of Leicester, and commanded a troop in the regiment raised by his father, when he was Lord-Lieutenant in Ireland, to put down the Irish rebellion of 1641. He afterwards came over to England, joined the Parliamentary forces, and was wounded at Marston Moor. He continued serving in various capacities, returning for a time to Ireland with his brother, Lord Lisle, who was Lord-Lieutenant. He was appointed one of the commissioners to try Charles I., but took no part in the trial. He was ejected from Parliament in 1653, and adopted a position of hostility to Cromwell. He remained abroad after the Restoration, though not excepted from the Act of Indemnity, and lived a philosophic life at Rome and elsewhere. He tried to promote a rising against Charles in Holland in 1665, and opened negotiations with Louis XIV. during the French war. He returned to England in 1677 to settle his private affairs, and stayed on making friends with the leaders of the Opposition, and vainly trying to obtain a seat in the House of Commons. He quarrelled with Shaftesbury, who denounced him as a French pensioner (which he probably was), and seems to have had no connection with his plots. He was arrested on 27th June, tried by Jeffreys on 7th November, condemned, and executed on 7th December 1683.

[13] John Hampden (1656-1696) was the second son of Richard Hampden.

After travelling abroad in his youth he became the intimate friend of the leaders of the Opposition on his return to England in 1682. He was arrested with them and tried in 1684, when he was imprisoned on failing to pay an exorbitant fine. After Monmouth's rising he was tried again for high treason. As Lord Grey was produced as a second witness against him, Lord Howard, who had testified before, being the first, he pleaded guilty, implicating Russell and others by his confession. He was pardoned, and lived to sit in Parliament after the Revolution; but falling into obscurity failed to be elected for his native county in 1696, and committed suicide.

[14] Rumsey had been an officer in Cromwell's army, and had served in Portugal with distinction. He obtained a post by Shaftesbury's patronage; and with West, a barrister, was responsible for the Rye House Plot. According to his own account, he was to kill the King, whilst Walcot was to lead an attack on the guards. He appeared as a witness in the trials of Walcot and Algernon Sidney, as well as in the present one.

His last appearance before the public was as a witness against Henry Cornish, one of the leaders of the opposition of the City to the Court party, whom he and one Goodenough accused of partic.i.p.ation in Russell's plot, and who was tried and executed in 1685. He had offered to give evidence against Cornish before, in 1683, but the second witness necessary to prove treason was not then forthcoming. The unsatisfactory nature of Rumsey's evidence led to Cornish's property being afterwards restored to his family, while, according to Burnet, 'the witnesses were lodged in remote prisons for their lives.' Cornish was arrested, tried and executed within a week.

[15] Walcot was an Irish gentleman who had been in Cromwell's army. He frequented West's chambers, where he met West and Rumsey, who were the princ.i.p.al witnesses against him. Rumsey's story was that though Walcot objected to killing the King, he promised to attack the guards. He was tried and convicted earlier on the same day.

[16] The following pa.s.sages seem to give a true account of the measure of the complicity of Russell and his friends with the Rye House Plot.

[17] Aaron Smith is first heard of as an obscure plotter in a.s.sociation with Oates and Speke. He was prosecuted in 1682 for supplying seditious papers to Colledge, and sentenced to fine and imprisonment. He managed to escape, however, before sentence was p.r.o.nounced, and was arrested in connection with the present trial, when, as nothing could be proved against him, he was sentenced for his previous offence. After the Revolution he was appointed solicitor to the Treasury; but failing to give a good account of various prosecutions which he set on foot, he was dismissed in 1697.

[18] Sir John Cochram or Cochrane was the second son of William Cochrane, created Earl of Dundonald in 1689. He escaped to Holland at the time of Russell's trial, took part in Argyle's insurrection in 1685, turned approver, and farmed the poll tax after the Revolution, but was imprisoned in 1695 on failing to produce proper accounts.

[19] George Melville was the fourth baron and the first Earl of Melville. He supported the Royalist cause in Scotland, and tried to induce a settlement with the Covenanters before the battle of Bothwell Bridge. He escaped from England after the discovery of the Rye House Plot, and appeared at the Court of the Prince of Orange. After the Revolution he held high offices in Scotland till the accession of Anne, when he was dismissed. He died in 1707.

[20] West was a barrister at whose chambers in the Temple Rumsey, Ferguson, and other plotters used to meet, and it was alleged that the Rye House Plot was proposed: said by Burnet to have been 'a witty and active man, full of talk, and believed to be a determined atheist.'

[21] As to what is treason under 25 Edward III., see _post_, p. 36.

Under 13 Car. II. c. 1 it is treason, _inter alia_, to devise the deposition of the King; but the prosecution must be within six months of the commission of the offence.

[22] The question was, 'What is included in the expressions "Imagine the King's death" and "Levying war against the King"?' The Attorney-General was evidently placing a gloss on them, which was perhaps justified from a wider point of view than a merely legal one. However that may be, the same process was continued till it culminated in the theory of 'constructive treason,' according to which it was laid down in 1794 that a man who intended to depose the King compa.s.sed and imagined his death.

The matter was eventually decided in 1795 by a statute which made such an intent and others of the same kind treason of themselves. See further Stephen's _History of Criminal Law_, vol. ii. pp. 243-283.

[23] He had been twice sent to the Tower: once in 1674 in consequence of the discovery of a secret correspondence with Holland; once in 1681 on a false charge by Edward Fitzharris of writing the _True Englishman_, a pamphlet advocating the deposition of Charles II. and the exclusion of the Duke of York, which was in fact written by Fitzharris, it is suggested with the purpose of imputing its authorship to the Whigs. It is no doubt the second of these occasions that is referred to.

[24] Burnet had at this time retired into private life, having lost the Court favour which he had gained at an earlier period. He had been an intimate friend of Stafford, and was living on terms of the closest intimacy with Ess.e.x and Russell at the time of their arrest. After Russell's execution he left the country, and eventually found his way to the Hague just before the Revolution, where he performed services for William and Mary requiring the utmost degree of confidence. He landed at Torbay with William, soon became Bishop of Salisbury, and until the end of William's life remained one of his most trusted councillors. He retained a position of great influence under Anne, and died in 1715. In relation to his evidence in this case, it is interesting to read in his history that Russell was privy to a plot for promoting a rebellion in the country and for bringing in the Scotch. He says further: 'Lord Russell desired that his counsel might be heard to this point of seizing the guards; but that was denied unless he would confess the fact, and he would not do that, because as the witnesses had sworn it, it was false.

He once intended to have related the whole fact just as it was; but his counsel advised him against it'; in fact Russell admitted that he knew of a traitorous plot, and did not reveal it. 'He was a man of so much candour that he spoke little as to the fact; for since he was advised not to tell the whole truth, he could not speak against that which he knew to be true, though in some particulars it had been carried beyond the truth.' See too _post_, p. 55.

[25] John Tillotson (1630-1694) was the son of a weaver of Sowerby. He entered Clare Hall in 1647, and became a a fellow of the same college in 1651. He received an early bias against Puritanism from Chillingworth's _Religion of Protestants_, and his intercourse with Cudworth and others at Cambridge. He became tutor to the son of Prideaux, Cromwell's Attorney-General in 1656; he was present at the Savoy Conference in 1661, and remained identified with the Puritans till the pa.s.sing of the Act of Uniformity in 1662; afterwards he became curate of Cheshunt in Hertfordshire and rector of Keddington in Suffolk. In 1664 he was known as a celebrated preacher, and was appointed preacher in Lincoln's Inn.

In 1678 and 1680 he preached sermons to the House of Commons and the King respectively, exhorting the former to legislation against Popery, and pointing out to the latter that whilst Catholics should be tolerated, they should not be allowed to proselytise. He attended Russell on the scaffold, and with Burnet was summoned before the Council on a suspicion of having helped to compose Russell's published speech.

He acquired great influence after the Revolution; and having exercised the archiepiscopal jurisdiction of the province of Canterbury during Sancroft's suspension, became himself archbishop in 1691.

[26] Henry Brooke, the eighth Lord Cobham, after losing Court favour on the death of Elizabeth, was accused in 1603 of plotting with Aremberg, the Spanish amba.s.sador, to place Arabella Stuart on the throne, and to kill the King. His evidence contributed largely to the conviction of Sir Walter Raleigh of the same treason, and he was tried and convicted the next day. He was kept in prison till 1617, when he was allowed to go to Bath on condition that he returned to prison; but he was struck by paralysis on his way back and died in 1619. See vol. i. pp. 19-57.

[27] Oliver Plunket (1629-1681) was Roman Catholic bishop of Armagh and t.i.tular primate of Ireland. He attained these positions in 1669; in 1674 he went into hiding when the position of the Catholics in England drew attention to their presence in Ireland. He was arrested, on a charge of complicity with the Popish Plot in 1678, and eventually tried in the King's Bench for treason in 1681 by Sir Francis Pemberton, when the law was laid down as stated above. He was convicted, hung, beheaded and quartered.

[28] Rumsey says the 19th, Howard the 17th. The 17th was the anniversary of the Queen's accession.

[29] Thomas Walcot and William Hone, tried for and convicted of partic.i.p.ation in the Rye House Plot.

[30] See _ante_, p. 42.

THE EARL OF WARWICK

March 28, 1699. About eleven of the clock the Lords came from their own house into the court erected in Westminster hall, for the trials of Edward, earl of Warwick and Holland, and Charles lord Mohun[31], in the manner following. The lord high steward's gentleman attendants, two and two. The clerks of the House of Lords, with two clerks of the crown in the Courts of Chancery and King's Bench. The masters of Chancery, two and two. Then the judges. The peers' eldest sons, and peers minors, two and two. Four serjeants at arms with their maces, two and two. The yeoman usher of the house. Then the peers, two and two, beginning with the youngest barons. Then four serjeants at arms with their maces. Then one of the heralds, attending in the room of Garter, who by reason of his infirmity, could not be present. And the gentleman usher of the Black Rod, carrying the white staff before the lord high steward. Then the lord chancellor, the lord high steward, of England, alone.

When the lords were seated on their proper benches, and the lord high steward on the wool-pack; the two clerks of the crown in the courts of Chancery and King's Bench, standing before the clerk's table with their faces towards the state;

The clerk of the crown in Chancery having his majesty's commission to the lord high steward in his hands, made three reverences towards the lord high steward, and the clerk of the crown in Chancery on his knees presented the commission to the lord high steward, who delivered it to the clerk of the crown in the King's bench (then likewise kneeling before his grace) in order to be opened and read; and then the two clerks of the crown making three reverences, went down to the table; and the clerk of the crown in the King's Bench commanded the serjeant at arms to make proclamation of silence; which he did in this manner.

SERJEANT-AT-ARMS--O yes, O yes, O yes, My lord high steward his grace does straitly charge and command all manner of persons here present, to keep silence, and hear the king's majesty's commission to his grace my lord high steward of England directed, openly read, upon pain of imprisonment.

Then the lord high steward[32] asked the peers to be pleased to stand up uncovered, while the King's commission was read. And the peers stood up, uncovered, and the King's commission was read in Latin, by which it was set out that the Grand Jury of the County of Middles.e.x had found a true bill of murder against the Earl of Warwick and Lord Mohun, which the peers were commissioned to try. Proclamation that all persons there present should be uncovered, was then made, and the return of _certiorari_, bringing the indictment before the House of Lords, was read in Latin.

Order was then made that the judges might be covered, and the governor of the tower was ordered to produce the earl of Warwick; and he was brought to the bar by the deputy-governor, having the axe carried before him by the gentleman gaoler, who stood with it at the bar, on the right hand of the prisoner, turning the edge from him.

The lord high steward then informed the prisoner that he had been indicted of murder by the Grand Jury for the county of Middles.e.x, on which indictment he would now be tried; and proceeded--

Your lordship is called to answer this charge before the whole body of the house of peers as a.s.sembled in parliament. It is a great misfortune to be accused of so heinous an offence, and it is an addition to that misfortune, to be brought to answer as a criminal before such an a.s.sembly, in defence of your estate, your life, and honour. But it ought to be a support to your mind, sufficient to keep you from sinking under the weight of such an accusation, that you are to be tried before so n.o.ble, discerning, and equal judges, that nothing but your guilt can hurt you. No evidence will be received, but what is warranted by law; no weight will be laid upon that evidence, but what is agreeable to justice; no advantage will be taken of your lordship's little experience in proceedings of this nature; nor will it turn to your prejudice, that you have not the a.s.sistance of counsel in your defence, as to the fact (which cannot be allowed by law), and their lordships have already a.s.signed you counsel if any matter of law should arise.

After a little more to the same effect the indictment was read, first in Latin, then in English, and the earl of Warwick pleaded Not Guilty.

The indictment was then opened by Serjeant Wright,[33] to the effect that the prisoner was accused of murdering Richard Coote on the 30th of October, by stabbing him, together with Lord Mohun, Richard French, Roger James, and George Dockwra.

The _Attorney-General_[34] then opened the case, as follows:--

ATTORNEY-GENERAL--May it please your lordships, I am of counsel in this cause for the king against this n.o.ble lord, Edward earl of Warwick and Holland, the prisoner at the bar, who stands indicted by the grand jury of the County of Middles.e.x, has been arraigned, and is now to be tried before your lordships for the felonious killing and murdering of Mr. Coote, in the indictment named; the evidence to make good this charge against this n.o.ble lord, it comes to my turn to open to your lordships.

My lords, the case, as to the fact, according to my instructions, is this: Upon Sat.u.r.day, the 29th of October last, at night, my lord of Warwick, my lord Mohun, Mr. French, Mr.

Dockwra, and Mr. Coote, the unfortunate gentleman who was killed, met together at one Locket's who kept the Greyhound-tavern in the Strand, and there they staid till it was very late; about twelve of the clock at night, or thereabouts, a messenger was sent by the company to fetch another gentleman, Mr. James; and Mr. James coming to them, in what condition your lordships will be told by the witnesses; about one of the clock in the morning, on Sunday, the 30th of October, they all came down out of the room where they had been so late, to the bar of the house, and there, as the witnesses will tell your lordships, swords were drawn, and the chairs were called for, and two chairs which were nearest at hand came, and two of the company went into those chairs; who they were, and what past at that time, the witnesses will tell your lordships; those that got into those chairs came out again, and more chairs were called for. But I must acquaint your lordships, that my lord Mohun, when the two gentlemen that went into the chairs ordered the chairmen to take them up, and carry them away, spoke to them to stop and go no further, for there should be no quarreling that night, and that he would send for the guards and secure them, and after this they came out of the chairs again; it will appear there were swords drawn amongst all of them, and some wounds given: more chairs being called for, and brought, this n.o.ble lord that is here at the bar, my lord of Warwick, my lord Mohun, and the other four gentlemen, went all into the chairs, and gave the chairmen directions, whither they should carry them, at leastwise the foremost had directions given them, and the rest were to follow them; it was a very dark night, but at last they came all to Leicester-square; and they were set down a little on this side the rails of the square, and when the chairmen had set them down they went away; but immediately some of them heard my lord of Warwick calling for a chair again, who came towards the rails, and there they found two of the gentlemen, that had been carried in some of the other chairs, holding up Mr. Coote between them, and would have had the chairmen carried him away to a surgeon's, but they found he was dying, and so would not meddle with him; afterwards my lord of Warwick and Mr. French were carried by two of the chairs to Mr. Amy's, the surgeon at the Bagnio in Long-acre, where Mr. French being wounded, was taken care of particularly by the recommendation of my lord of Warwick, and the master of the house was called up, it being very late; Mr. Coote's sword was brought to that place, but by whom it was brought we cannot exactly say. While my lord of Warwick and captain French were there, and my lord of Warwick had given orders for the denying of himself, and forbid the opening of the door, there came the other two gentlemen, Mr.

James and Mr. Dockwra, and upon their knocking at the door they were let in by my lord's order, after he had discovered who they were, looking through the wicket. Mr. James had his sword drawn, but it was broken. My lord of Warwick's hand was slightly wounded, and his sword b.l.o.o.d.y up to the hilt when he came in, as will be proved by the testimony of the servants in the House. There was a discourse between my lord, Mr. James and Mr. Dockwra, about going into the country; but before they went, the swords were all called for to be brought to them, and upon enquiry, there was no blood found upon Mr. French's sword, but a great deal upon my lord of Warwick's, of which great notice was taken at that time. Mr. Coote, who was killed, had received one wound in the left side of his breast, half an inch wide, and five deep, near the collar bone; he had likewise another wound upon the left side of his body; both which your lordships will hear, in the judgment of the surgeon, were mortal wounds, and the evidence will declare the nature of them.

My lords, the evidence does chiefly consist of, and depend on circ.u.mstances, the fact being done in the night, and none but the parties concerned being present at it; we shall lay the evidence before your lordships, as it is, for your judgment, and call what witnesses we have on behalf of the king, against this n.o.ble peer the prisoner at the bar, and take up your lordships' time no further in opening; and we shall begin with Samuel Cawthorne; he is a drawer at the tavern where those lords and gentlemen were together, and he will give you an account of the time they came there, how long they staid, what happened in the house during their being there, and what time they went away.

LORD HIGH STEWARD--Give him his oath. (Which the clerk did.)