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.'

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