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.'