Chapter I: Part 1

STATE TRIALS

_First impression, March 1899_
_Second impression, September 1899_

_All rights reserved_

STATE TRIALS

POLITICAL AND SOCIAL

SELECTED AND EDITED

BY H. L. STEPHEN

IN TWO VOLUMES

VOL. II

LONDON DUCKWORTH AND CO 1899

Edinburgh: T. and A. CONSTABLE, Printers to Her Majesty

CONTENTS

PAGE

LORD RUSSELL, 3

THE EARL OF WARWICK, 59

SPENCER COWPER AND OTHERS, 139

SAMUEL GOODERE AND OTHERS, 231

INDEX, 305

LORD RUSSELL

Lord Russell's trial marks the moment in the latter part of Charles II.'s reign when his power reached its highest point. The Exclusion Bill was thrown out by the House of Lords in 1680, and though Stafford was tried and executed at the end of the year, the dissolution of the short-lived Oxford Parliament in April 1681 left the Country party, who had just acquired the name of Whigs, in a temporarily hopeless position. On the 2nd of July in the same year Shaftesbury was arrested on a charge of suborning witnesses in the Popish Plot, but the bill presented against him was thrown out by the Grand Jury, which had been packed in his favour by a friendly sheriff, and he was liberated in November. An unscrupulous exercise of the power of the Court led to North (brother of the Chief-Justice of the Common Pleas, soon to become Lord Keeper) and Rich being sworn in as sheriffs in June 1682, and Shaftesbury, no longer being able to rely on his City friends, retired into hiding and entered on the illegal practices described in Russell's trial. The security afforded to the opponents of the Court was further diminished in 1683 by the suppression of the charter of the City by a writ of Quo Warranto, which, although it was too late to have any effect on Russell's conduct, may help to justify it. The position of the Country party thus appeared desperate. The King had contrived to overcome all constitutional means of opposition; Shaftesbury's unscrupulous policy had alienated most of his natural adherents; his violent disposition made it impossible for his remaining followers to take advantage of the difficulties which the King was preparing for himself and his successor; and by anticipating the crisis of 1688, Shaftesbury, Essex, and Russell brought down destruction on themselves.

Lord Russell was tried at the Old Bailey on the 13th of July 1683 before the Lord Chief-Justice, Sir Francis Pemberton,[1] the Lord Chief-Baron, Mr. William Montague, and nine other judges. There appeared for the prosecution the Attorney-General, Sir Robert Sawyer[2], the Solicitor-General, Mr. Finch[3], Serjeant Jeffreys[4], Mr. North[5].

The charge against Lord Russell was that he was guilty of high treason in conspiring to depose and kill the King, and to stir up rebellion against him. To this he pleaded Not Guilty.

He objected that he ought not to be arraigned and tried on the same day, to which it was replied that he had had more than a fortnight's notice of his trial and the facts alleged against him by having questions put to him when he was in custody in the Tower. On the first juror being called, Lord Russell objected that he was not a 40s. freeholder in the City. He was allowed to have counsel assigned to him to argue as to whether this was a good ground of objection; the counsel he chose were Pollexfen[6], Holt[7], and Ward. The question was whether the statute 2 Hen. V. c. 3, which enacted that in the case of capital offences the jurors must have lands of the yearly value of 40s., applied to trials for treason or to trials in the City. It was decided by all the judges that it did not,[8] the objection was overruled, and a jury was sworn without any challenges being made.

_North_ then shortly opened the case. He alleged that in the previous October and November a council consisting of Russell, the Duke of Monmouth, Lord Grey,[9] Sir Thomas Armstrong, and one Ferguson, were plotting a rising in conjunction with the Earl of Shaftesbury. The Earl was anxious that the opportunity of the celebration of Queen Elizabeth's birthday on the 19th of November should be used for the purpose. The conspirators objected to this on the ground that Trenchard, who was to have headed a rising in the West, was not ready. On this Shaftesbury and Ferguson left the country, and the so-called council was re-organised by Armstrong and Grey being left out, and Lord Howard,[10] Lord Essex,[11] Colonel Algernon Sidney,[12] and Mr. Hampden,[13] being taken in. Frequent consultations were held at Russell's house, and Aaron Smith was despatched to Scotland to arrange a rising on the part of the malcontents there.

_Rumsey_[14] was called, and being sworn deposed that at the end of October or the beginning of November Shaftesbury had sent for him to his lodgings in Wapping, where he was hiding, and told him to go to the house of one Sheppard, where he could find Monmouth, Russell, Grey, Armstrong, and Ferguson, and to ask what resolution they had come to as to the rising at Taunton. He took this message accordingly, and received an answer that Trenchard had promised 1000 foot and 300 horse, but had failed them. Most of this answer was delivered by Ferguson, but others, including Russell, were in the room at the time.

ATTORNEY-GENERAL--Was there nothing of my lord Shaftesbury to
be contented?

RUMSEY--Yes, that my lord Shaftesbury must be contented; and
upon that he took his resolution to be gone.

LORD CHIEF-JUSTICE--Did you hear any such resolution from him?

RUMSEY--Yes, my lord.

Shaftesbury told him of the meeting; he was not there more than a quarter of an hour; he heard something of a declaration to be made, either there, or on a report of Ferguson's.

JEFFREYS--To what purpose was the declaration?

LORD CHIEF-JUSTICE--We must do the prisoner that right; he says
he cannot tell whether he had it from him or Mr. Ferguson.

There was some discourse begun by Armstrong as to the posture of the guards at the Savoy and at the Mews. Monmouth, Grey, and Armstrong, in Russell's presence, undertook to see the guards,

with what care and vigilance they did guard themselves at the
Savoy and Mews, whether they might be surprised or not.

The rising was to be on the 19th of November. It was arranged by Shaftesbury that he himself was to go to Bristol, in what capacity it was not stated.

JEFFREYS--If my lord Russell pleases to ask him any questions
he may.

LORD RUSSELL--I have very few questions to ask him for I know
little of the matter; for it was the greatest accident in the
world I was there, and when I saw that company was there I
would have been gone again. I came there accidentally to speak
with Mr. Sheppard; I had just come to town, but there was no
discourse of surprising the guards, nor no undertaking of
raising an army.

LORD CHIEF-JUSTICE--We will hear you to anything by and by, but
that which we desire to know of your lordship is, as the
witnesses come, to know if you would have any particular
questions asked of them.

On being pressed by Russell, Rumsey repeated that Russell 'did discourse of the rising' at Taunton and consented to it.

_Sheppard_ was called, and deposed that in October Ferguson came to him in Monmouth's name,

and desired the conveniency of my house, for him and some other
persons of quality to meet there. As soon as I had granted it,
in the evening the duke of Monmouth, my lord Grey, my lord
Russell, sir Thomas Armstrong, col. Rumsey and Mr. Ferguson
came. Sir T. 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.

He confirmed Rumsey's evidence as to the discourse about surprising the guards; Monmouth, Grey, and Armstrong went out to view them at the Mews; the next time they met Armstrong reported

the guards were very remiss in their places, and not like
soldiers, and the thing was feasible, if they had strength to
do it.

There were two meetings: he had notice of them; the company came in the evening; he saw no coaches; Lord Russell came both times.

JEFFREYS--Do you remember that col. Rumsey at the first time
had any discourse about any private business relating to my
lord Russell?

SHEPPARD--No, I do not remember it.

ATTORNEY-GENERAL--Besides the seizing of the guards did they
discourse about rising?

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.

He remembered that a paper was read 'somewhat in the nature of a proclamation,' setting forth the grievances of the nation 'in order to a rising.' It was read by Ferguson, but he could not say whether they were all present or not.

Cross-examined by Lord Russell, he could not be positive as to the time of the meetings; they were at the time that Lord Shaftesbury was absent from his house, and he absented himself about Michaelmas day.

LORD RUSSELL--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.

SHEPPARD--Indeed my lord I can't be positive in the times. My
lord I am sure was at one meeting.

LORD CHIEF-JUSTICE--But was he at both?

SHEPPARD--I think so; but it was eight or nine months ago, and
I can't be positive.

LORD RUSSELL--I can prove I was then in the country. Col.
Rumsey said there was but one meeting.

COL. RUMSEY--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 Shaftesbury.

LORD RUSSELL--Is it usual for witnesses to hear one another?

LORD CHIEF-JUSTICE--I think your lordship need not concern
yourself about that; for I see the witnesses are brought in one
after another.

LORD RUSSELL--There was no design.

JEFFREYS--He hath sworn it.

ATTORNEY-GENERAL--Swear my lord Howard (which was done). Pray
will your lordship give an account to the Court, what you know
of a rising designed before my lord Shaftesbury went away, and
afterwards how it was continued on.

LORD 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 account I have to give: It
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[15], a
person that had been some months in England, being returned out
of Ireland, and who indeed I had not seen for eleven 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 though he was unknown himself, yet
being brought by me, he soon gained a confidence with my lord
Shaftesbury, 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 entered
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----

LORD CHIEF-JUSTICE--Pray my lord, raise your voice, else your
evidence will pass for nothing.

ONE OF THE JURY--We cannot hear my lord.

LORD 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 money 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 accounts
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 received two or three letters from him, that gave me an
account in that disguised style, 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 men's eyes were fixed, which was the
determination of the shrivalty about that time. So I ordered it
to fall into town, and went to my own house 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 Shaftesbury was secreted and withdrawn from his own house
in Aldersgate Street; and that though he had a family settled,
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 accommodate all things to
the humour 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 would be in readiness in London, to turn the
tide, and put a stop to the torrent that was ready to overflow.
But he did complain to me, that his design, and the design of
the public, was very much obstructed by the unhandsome
deportment of the Duke of Monmouth, and my lord Russell, who
had withdrawn themselves not only from his assistance, but from
their own engagements and appointments: For when he had got
such a formed force as he had in London, and expected to have
it answered 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, whenever
I hold up my finger. Says I, How have you methoded this, that
they should not be crushed, 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 24 hours would be
multiplied into five times the number, and be able to make a
sally out, and possess themselves of Whitehall, 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 he was certain of it, but confessed it was a great
disappointment that these lords had failed him. I told him, I
was not provided with an answer at that time; that he well knew
me, and knew the general frame and bent of my spirit. But I
told him, I looked upon it as dangerous, and ought to be laid
deep, and to be very well weighed and considered of: and did
not think it a thing fit to be entered upon, without the
concurrence of those lords. He did consent, with much ado, but,
says he, you will find they will wave it, and give doubtful and
deferring answers, but you will find this a truth.

I went to Moor Park next day, where the Duke of Monmouth was,
and told him the great complaint my lord Shaftesbury had made,
that he failed him. Says he, I think he is mad; I was so far
from giving him any encouragement, that I did tell him from the
beginning, and so did my lord Russell, there was nothing to be
done by us in the country at that time. I did not then own that
I had seen my lord, but spake as if this were brought me by a
third person, because he had not given me liberty to tell them
where his lodging was. Says I, My lord, I shall be able to give
a better account of this in a day or two: Shall I convey it to
my lord, that you are willing to give a meeting? Yes, says he,
with all my heart. This was the 2nd, 3rd, or 4th of Oct.

I came to town on Saturday, and was carried to him on Monday;
and I suppose this was Tuesday the 2nd of October. On Wednesday
I think I went to him again (but it is not very material) and
told him I had been with the duke of Monmouth and given him a
punctual account of what I had from him; and the duke did
absolutely disown any such thing, and told me, he never did
give him any encouragement to proceed that way, because the
countries were not in a disposition for action, nor could be
put in readiness at that time. Says my lord Shaftesbury, It is
false: they are afraid to own it. And, says he, I have reason
to believe, there is some artificial bargain between his father
and him, to save one another: for when I have brought him to
action, I could never get him to put on, and therefore I
suspect him: and, says he, several honest men in the city have
puzzled me, in asking how the duke of Monmouth lived: says he,
They puzzled me, and I could not answer the question; for I
know he must have his living from the King; and says he, we
have different prospects; we are for a Commonwealth and he hath
no other design but his own personal interest, and that will
not go down with my people now (so he called them), they are
all for a commonwealth: and then, says he, It is to no purpose
for me to see him; it will but widen the breach, and I dare not
trust him to come hither. Says I, My lord, that's a good one
indeed! dare not you trust him, and yet do you send me to him
on this errand? Nay, says he, it is because we have had some
misunderstanding of late; but I believe he is true enough to
the interest. Says I, It is a great unhappiness to take this
time to fall out, and I think it is so great a design, that it
ought to be undertaken with the greatest strength and coalition
in the kingdom. Says he, My friends are now gone so far, that
they can't pull their foot back again without going further;
for, says he, it hath been communicated to so many that it is
impossible to keep it from taking air, and it must go on. Says
he, We are not so unprovided as you think for; there are so
many men, that you will find as brisk men as any in England.
Besides we are to have 1000 or 1500 horse, that are to be drawn
by insensible parties into town, that when the insurrection is,
shall be able to scour the streets and hinder them from forming
their forces against us. My lord, after great inlargement upon
this head, and heads of the like nature, I told him I would not
leave him thus, and that nothing should satisfy me, but an
interview between him and the lords. No, I could not obtain it:
but if I would go and tell them what a forwardness he was in,
and that, if they would do themselves right, by putting
themselves upon correspondent action in their respective
places, and where their interest lay, well; otherwise he would
go away without them: So I went again to the Duke of Monmouth,
I spake to him only (I never spake to my lord Russell then,
only we were together, but I had never come to any close
conjunction of counsels in my life with him at that time). Says
I to the duke, This man is mad, and his madness will prove
fatal to us all; he hath been in a fright by being in the
tower, and carries those fears about him that cloud his
understanding. I think his judgment hath deserted him, when he
goes about with those strange sanguine hopes that I can't see
what should support him in the ground of them.

Therefore says I, Pray will you give him a meeting? God-so says
the duke, with all my heart, and I desire nothing more. Now I
told him, I had been with my lord Shaftesbury, with other
inlargements that I need not trouble your lordship with; well,
says he, pray go to him, and try if it be possible to get a
meeting; so I went to him and told him; Says I, This is a great
unhappiness and it seems to be a great absurdity, that you are
so forward to act alone in such a thing as this. Pray, says I,
without any more to do, since you have this confidence to send
for me, let me prevail with you to meet them, and give them an
interview, or else you and I must break. I will no longer hold
any correspondence, unless it be so. Says he, I tell you they
will betray me. In short he did with much importunity yield
that he would come out the next night in a disguise. By this
time it was Saturday, I take it to be the 6th of Oct.: an
almanac will settle that: so the next night being Sunday and
the shops shut, he would come out in a concealment, be carried
in a coach, and brought to his own house, which he thought then
was safest. I came and gave the duke of Monmouth an account of
it; the duke I suppose conveyed the same understanding to my
lord Russell; and I suppose both would have been there
accordingly, to have given the meeting: but next morning I
found colonel Rumsey had left a note at my house, that the
meeting could not be that day. Then I went to the duke of
Monmouth and he had had the account before, that my lord
Shaftesbury did apprehend himself to be in some danger in that
house, and that the 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 waiver, 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 withdrawn, but it was for fear his lodging
might be discovered, but he did not doubt but in a week he
would let me know where his lodging was: but told me within
such a time, which I think was eight or ten days, there would
be a rising; and I told the duke of Monmouth and I believe he
told my lord Russell; and we believed his frenzy was now grown
to that height, that he would rise immediately and put his
design into execution: so we endeavoured to prevent it, upon
which my lord Russell (I was told) and the duke of Monmouth,
did force their way to my lord Shaftesbury's and did persuade
him to put off the day of his rendezvous. I had not this from
my lord Russell, for I had not spoke a word to him: but the
duke told me my lord Russell had been with him (I had indeed an
intimation, that he had been with him but the duke told me,
says he, I have not been with him, but my lord Russell was,
having been conveyed by colonel Rumsey). After this day was put
off, it seems it was put off with 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 was
not above a fortnight's time given: and, says the duke of
Monmouth, we have put it off but now we must be in action, for
there is no holding it off any longer. And says he, I have been
at Wapping all night, and I never saw 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 ourselves of it; but says
he, they are in the wrong way, yet we are engaged to be ready
for them in a fortnight, and therefore, says he, now we must
apply ourselves to it as well as we can. And thereupon I
believe they did send into the country and the duke of Monmouth
told me he spake to Mr. Trenchard, who was to take particular
care of Somersetshire, with this circumstance; Says he, I
thought Mr. Trenchard had been a brisker fellow; for when I
told him of it, he looked so pale, I thought he would have
swooned, when I brought him to the brink of action; and said, I
pray go and do what you can among your acquaintance; and truly
I thought it would have come then to action. But I went the
next day to him, and he said it was impossible, they could not
get the gentlemen of the country to stir yet.

LORD RUSSELL--My lord, I think I have very hard measure, here
is a great deal of evidence by hearsay.

LORD CHIEF-JUSTICE--This is nothing against you, I declare it
to the jury.

ATTORNEY-GENERAL--If you please, my lord, go on in the method
of time. This is nothing against you, but it's coming to you,
if your lordship will have patience, I assure you.

LORD HOWARD--This is just in the order it was done. When this
was put off, then they were in a great hurry; and Captain
Walcot had been several times with me, and discoursed of it.
But upon this disappointment they said, it should be the
dishonour 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 captain Walcot came to me, and told me, now they were
resolved positively to rise, and did believe that a smart party
might perhaps meet with some great men[16]. Thereupon I told
the duke of it; I met him in the street and went out of my own
coach into his, and told him there was some dark intimation, as
if there might be some attempt upon the king's person; with
that he struck his breast with a great emotion of spirit, and
said, God-so, kill the king! I will never suffer that. Then he
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 Newmarket, we dined 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 king's coming, we concluded it was
designed upon the king. And I remember my lord Grey, says 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 king's 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 failing, it was then next determined (which was
the last alarum and news I had of it), to be done upon the 17th
of November, the anniversary of queen Elizabeth; and I remember
it by this remark I made myself, that I feared it had been
discovered, because I saw a proclamation a little before
forbidding public 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 17th of November being also
disappointed, and my lord Shaftesbury, 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 Shaftesbury 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 fineness,
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 ourselves, which did consist of six persons;
and the persons were the duke of Monmouth, my lord of Essex, my
lord Russell, Mr. Hambden junr., Algernone Sidney, and myself.

ATTORNEY-GENERAL--About what time was this, when you settled
this council?

LORD 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 Jan. last (as near as I can remember); for about that
time we did meet at Mr. Hambden's house.

ATTORNEY-GENERAL--Name those that met.

LORD HOWARD--All the persons I named before; that was the duke
of Monmouth, my lord of Essex, my lord Russell, col. Sidney;
Mr. Hambden junr., and myself; 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 Duke of Monmouth insisted upon it,
that it was impossible to oppose a formed, well-methodized and
governed force, with a rabble hastily got together; and
therefore whatever number 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 panic 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.

It was further suggested that if the meeting was remote from London, the King must either give an opportunity for a rising there by withdrawing troops, or else give the insurgents time to gather head. Other questions discussed were what counties and towns were the fittest for action, what arms were necessary, how the L20,000 or L30,000 which the Duke of Monmouth considered necessary for the rising were to be raised; lastly and chiefly how to 'order it, as to draw Scotland into a consent with us.' Another meeting was held ten days afterwards at Lord Russell's, when the same persons were present. It was then decided to send messengers to Lord Argyle 'to settle an understanding with him, and others to invite to England persons' that were judged most able to understand the state of Scotland, and give an account of it. Aaron Smith[17] was accordingly sent to Sir John Cochram[18], Lord Melvile[19], and Sir ---- Campbell, and received sixty guineas from Algernon Sidney for his expenses. It was agreed that the conspirators should not meet together again till Aaron Smith's return. His absence for a month caused some apprehensions; 'but if his letters 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.'

ATTORNEY-GENERAL--You are sure my lord Russell was there?

LORD HOWARD--Yes, sir; I wish I could say he was not.

ATTORNEY-GENERAL--Did he sit there as a cypher? What did my
lord say?

LORD HOWARD--Every one knows my lord Russell is a person of
great judgment, and not very lavish in discourse.

SERJEANT JEFFREYS--But he did consent?

LORD HOWARD--We did not put it to the vote, but it went without
contradiction, and I took it that all there gave their consent.

SOLICITOR-GENERAL--The raising of money you speak of, was that
put into in any way?

LORD HOWARD--No, but every man was to put themselves upon
thinking of such a way, that money might be collected without
administering jealousy.

ATTORNEY-GENERAL--Were there no persons to undertake for a
fund?

LORD HOWARD--No, I think not. However it was but opinion, the
thing that was said was jocosely, rather than anything else,
that my lord of Essex had dealing in money, and therefore he
was thought the most proper person to take care of those
things; but this was said rather by way of mirth, than
otherwise.

Howard then withdrew to Essex to see after some private affairs; on returning to town he heard that Smith had returned with Sir John Cochram but did not see them. He then went to Bath and had nothing more to do with the conspiracy.

LORD CHIEF-JUSTICE--My lord Russell, now if your lordship
pleases, is the time for you to ask him any questions.

LORD RUSSELL--The most he hath said of me, my lord, is only
hearsay; the two times we met, it was upon no formed design,
only to talk of news, and talk of things in general.

LORD CHIEF-JUSTICE--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 Shaftesbury went off (all before is but inducement, as to
anything that concerns your lordship, and does not particularly
touch you; after his going away he says) the party concerned
with my lord Shaftesbury 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.

LORD RUSSELL--Pray my lord, not to interrupt you, by what party
(I know no party) were they chosen?

LORD HOWARD--It is very true, we were not chosen by community,
but did erect ourselves by mutual agreement, one with another,
into this society.

LORD RUSSELL--We were people that did meet very often.

LORD CHIEF-JUSTICE--Will your lordship please to have any other
questions asked of my lord Howard?

LORD RUSSELL--He says it was a formed design, when we met about
no such thing.

LORD CHIEF-JUSTICE--He says that you did consult among
yourselves, about the raising of men, and where the rising
should be first, 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 Monmouth's arguments
for its being formed in places from the city; he says you did
all agree, not to do anything further in it, till you had
considered how to raise money and arms: and to engage 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 knowledge,
as he saith; what he says after, of sending a messenger, is by
report only.

ATTORNEY-GENERAL--I beg your pardon, my lord.

LORD CHIEF-JUSTICE--It is so, that which he heard concerning
the sending of Aaron Smith.

ATTORNEY-GENERAL--Will you ask him any questions?

LORD RUSSELL--We met, but there was no debate of any such
thing, nor putting anything in method. But my lord Howard is a
man that hath a voluble tongue, talks very well, and is full of
discourse, and we were delighted to hear him.

ATTORNEY-GENERAL--I think your lordship did mention the
Campbells?

LORD 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.

_Atterbury_ was called, and swore that Sir Hugh Campbell was in his custody; was captured 'making his escape out of a woodmonger's house, both he and his son'; he owned that he had been in London four days, and that he and his son and Bailey came to town together.

_West[20] was then called and sworn._

ATTORNEY-GENERAL--That which I call you to, is to know whether
or no, in your managery of this plot, you understand any of the
lords were concerned, and which.

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 nobody
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
passed 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 compass 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 Saturday, 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 passed a day for almost----

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

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?