Chapter II: Part 2

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 Cox_ 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 noble 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 circumstances 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. God knows how it is brought upon me, and with
what unwillingness I do sustain it; but my duty to God, the
king, and my country requires it; but I must confess I am very
sorry to carry it on thus far. My lord, I do confess I did say
so, and if I had been to visit my lord Pemberton, I should have
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 God, and, I think, if I called God 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 God and man, that I did not believe either
of them had any design to murder the king. I have said this,
because I would not walk under the character of a person that
would be perjured at the expense of so noble 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. God 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 assembling 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 noble 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 assistance 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. Coke, in the passage before that relied on by Lord Russell, admits that this is the law. When Coke says that to levy war is not an overt act for compassing 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 assassinate 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 compassing
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 asserts 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 God'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 nobody 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 God 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 assisted 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 title 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.

[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 assigned to be counsel for Lords Powys and Arundell of Wardour, who were impeached for participation 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 pass 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 assessor 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 Essex 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 Essex 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 associated 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 assistance 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 'petitioner' 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 participation 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 principal 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 passages 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 association 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 pronounced, 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 compassed 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 Essex 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 passing 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 ambassador, 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 titular 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 participation 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 Middlesex 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 Middlesex, 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 assembled 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 assembly, 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 noble,
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
assistance of counsel in your defence, as to the fact (which
cannot be allowed by law), and their lordships have already
assigned 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 noble lord, Edward earl
of Warwick and Holland, the prisoner at the bar, who stands
indicted by the grand jury of the County of Middlesex, 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 noble
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 Saturday, 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 noble 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 bloody 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
circumstances, 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 noble 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.)

ATTORNEY-GENERAL--My lords, I doubt the witness is so far off,
that it will be difficult for him to hear the questions that we
are to ask him, unless we could have him nearer to us.

LORD HIGH STEWARD--Mr. Attorney, my lords seem to be of opinion
that it will be more for your advantage and theirs that the
witnesses stand at the distance they do; which will oblige you
to raise your voice so loud, that they may hear the witnesses
and you too.

ATTORNEY-GENERAL--Is your name Samuel Cawthorne?

CAWTHORNE--Yes, my lord.

ATTORNEY-GENERAL--Where do you live?

CAWTHORNE--With Mr. Locket at Charing-cross.

ATTORNEY-GENERAL--Did you live with him at the Greyhound tavern
in the Strand the latter end of October last?

CAWTHORNE--Yes, I did.

ATTORNEY-GENERAL--Well, pray will you acquaint my lords with
the time when my lord of Warwick, my lord Mohun, and Mr. Coote
were at that house, how long they stayed, what happened while
they were there, and when they went away?

CAWTHORNE--It was Saturday night, the 29th of October last.

ATTORNEY-GENERAL--Pray tell my lords the whole of your
knowledge in the matter.

CAWTHORNE--There came my lord of Warwick, my lord Mohun,
captain Coote, capt. French, and captain Dockwra, the 29th of
October last, in the evening, to my master's house at the
Greyhound tavern in the Strand.

ATTORNEY-GENERAL--How long were they there, and what time of
night came they in?

CAWTHORNE--About 8 o'clock at night, my lord Warwick, my lord
Mohun, capt. French, and capt. Coote, came in.

ATTORNEY-GENERAL--What day do you say it was?

CAWTHORNE--Saturday, the 29th of October last.

ATTORNEY-GENERAL--How long did they continue there?

CAWTHORNE--It was between one and two the next morning before
they went away.

ATTORNEY-GENERAL--Was any body sent for to come to them there?

CAWTHORNE--Yes, Mr. James.

ATTORNEY-GENERAL--What time was that?

CAWTHORNE--About twelve of the clock.

ATTORNEY-GENERAL--Did he stay with them till they went away?