Causes but if so be in Civil Causes there be required Freeholders and an Attaint lies if there be not 't is not reasonable to think but there should be as great regard to the Life of a man as to his Estate Next my Lord I do not know any Law that sets any kind of qualification but this of Freehold so that be the persons of what condition or nature soever supposing they be not outlawed yet these persons if this Law be not in effect may then serve and be put upon the Life of a man These are the reasons my Lord for which we apprehend they ought to be Freeholders Mr. Holt. My Lord I would desire one word of the same side We insist in this case upon these two things First we conceive by the Common Law every Jurie man ought to have a Free hold we have good Authority for it Cokes first Institutes but if that were not so I think the Statute Mr. Pollexfen hath first mentioned 2 H. 5. c. 3. to be express in this point My Lord the Statute in the Preamble does recite all the mischiefs it saies great mischiefs ensued by Juries that were made up of persons that had not Estates sufficient in what as well in the case of the Death of a man as in the case of Freehold between Party and Party the Statute reciting this mischief does in express words provide two Remedies for the same in these cases first on the Life or Death of a man the Jury or Inquest to be taken shall have 40 s. per ann and so between party and party 40 Marks so that this being the Trial of the Death of a man it is interpreted by Stamford 162. a. that is in all cases where a man is arraigned for his Life that is within the express words of the Statute Besides this Exposition that hath been put upon the Statute my Lord it does seem that the Judgment of several Parliaments hath been accordingly in several times and ages My Lord to instance in one Statute that hath not been mentioned and that is the 33 of H. 8. c. 23. that does give the King Power to award Commissions of Oyer and Terminer for Trials in any County of England and that saies the Statute in such cases no Challenge to the Shire or Hundred shall be allowed that is you shall not challenge the Jury in such a case because they have not Free-hold are not of the County where the Treason was committed but that upon the Trial Challenge for lack of Free-hold of 40 s. a year shall be allowed though it alters the manner of trying Treason by the Common Law so that my Lord here is the Opinion of that very Parliament that though it took away the usual method of Trials yet it sayes the Prisoners Challenge for want of Free-hold Now indeed that Statute is repealed but I mention it as to the Proviso that it shews the Judgment of that Parliament at that time My Lord those other Statutes that have been made to regulate Cities and Towns Corporate why were they made 33 H 8. That no Free-hold should be allowed that shews that 2 H. 5. did extend to these Cases But my Lord these Statutes that shew the Judgment of the Parliament sufficient to our purpose do not extend to this Case the Statute goes only to Murders and Felonies but not to Treasons And we are in the Case of a Penal Statute and concerning the Life and Death of a Man which ought to be taken strictly it ousts the Prisoner of a Benefit and by parity of Reason If Treason be not mentioned your Lordship can't by Equity extend it to it when it only mentions inferiour Offences and takes away the benefit in lower Cases Like the Case of the Bishop of Winchester where the Statute set down Dean and Chapters and other Ecclesiastical Persons it shall not extend to Bishops because it begins with Persons of an inferiour Nature No more shall Murder and Felony extend to Treason But further the Statute only concerns Freemen for there is an express Proviso n the Case for in case any Knight or Esquire come to be Tried in the Place he has his Benefit as before My Lord we are in this Case as in the Case not mentioned in the Statute we are not a Freeman of London My Lord there is another thing 7 H. 7. c. 5. Why there was not only requisite at the Common Law that the Jurors had sufficient Freehold but it was required it should be in the Hundred and Freehold in the Wards in the Citie is the same with Freehold in the Hundreds in the Country So that the want of Freehold in the Hundred was a good cause of Challenge So that I think it will hardly be denied but that a Jurie that passes upon the life of a Man ought by the Law by the Statute and by the Judgment of the Parliament to have Freehold Where is there then any Statute whatsoever that makes a difference in this Case between London and other Counties We are in the case of Treason we have taken our Exceptions and on behalf of the Prisoner at the Bar we pray the Challenge may be allowed Mr. Ward My Lord I shall be short because Mr. Pollexfen has observed these things so particularly already I observe the Statute of H. 5. is a general Statute and extends throughout the Realm Now when the thing is thus general there is no room to except particulars And in this case 't is within the very words of the Law if the words be so generally penned in the negative then we conceive there is no construction to be made upon them unless some subsequent Parliament alter it Coke's Institutes 157. where 't is said in Treason as well as any thing else upon H. 5. there shall be Freeholds If they have provided in Civil and other Criminal Causes it were strange that this should be Casus omissius but there is no construction against a negative Law For the Parliament taking care of the City of London as the subsequent Statutes say that he that hath 100 Marks shall pass in Civil Causes and then it says in Murders and Felonies and that only confined to the Freemen of the place does sufficiently explain the Law where 't is not altered by any subsequent Act therefore I desire the Challenge may be admitted Mr. Att. Gen. My Lord these Gentlemens Foundation is not good for they prove it not by any Books that at Common Law it was requisite for a Juryman to have Freehold My Lord I deny their Foundation there is no such Law and at this day in all Criminal Cases where the Statute does not direct it as for Riots and other Informations for Misdemeanour there is no Law restrains them and they may be tried by any men they have no exception against Then 2 H. 5 says None shall be admitted to pass upon the death of a Man I take it to extend to all Capital matters though
of Vertue and the Devil knew it for he that tempted the Pattern of Vertue shew'd him all the Kingdoms of the World and said All these will I give thee if thou wilt fall down and worship me Though he be a person of Vertue yet it does not follow but his Vertue may have some weak part in him And I am afraid these temptations have prevailed upon my Lord. For I cannot give my self any colour of objection to disbelieve all these Witnesses who give in their testimony I see no contradiction no correspondence no contrivance at all between them You have plain Oaths before you and I hope you will consider the weight of them and the great consequence that did attend this Case the overthrow of the best Government in the World and the best and most unspotted Religion which must needs have suffered the greatest Liberty and the greatest Security for Property that ever was in any Nation bounded every way by the rules of Law and those kept sacred I hope you will consider the weight of this Evidence and consider the consequences such a Conspiracy if it had taken effect might have had And so I leave it to your consideration upon the Evidence you have heard Sir Geo. Jeff. My Lord and you Gentlemen of the Jurie this Cause hath detained your Lordship a long time by reason of so many Witnesses being called and the length of the defence made by the Prisoner at the Bar and if it had not been for the length of the time I would not have injured your patience by saying any thing Mr. Sollicitor having taken so much pains in it It is a duty incumbent upon me under the circumstances I now stand to see if any thing hath been omitted that hath not been observed to you and I shall detain you with very few words Gentlemen you must give me leave to tell you 't is a Case of great consequence of great consequence to that Noble Person that now is at the Bar as well as to the King for it is not desired by the King nor by his Counsel to have you influenced in this matter by any thing but by the Truth and what Evidence you have received In the next place you are not to be moved by any compassion or pity the Oath you have taken is to go according to your Evidence and you are not to be moved by any Insinuations that are offered by us for the King nor by any insinuations by the Prisoner at the Bar but the Truth according to the Testimony given must be your guide How far the Law will affect this Question that we are not to apply to you for for that we are to apply our selves to the Court they are the Judges in point of Law who will take so much care in their directions to you that you may be very well satisfied you will not easily be led into error For the instances that have been put I could put several others But I will take notice only of one thing that that Noble Person at the Bar seems to Object Gentlemen it is not necessary there should be two Witnesses to the self same Fact at the self same time but if there be two Witnesses tending to the self-same Fact though it was at several times and upon several occasions they will be in point of Law two Witnesses which are necessary to convict a Man for High-Treason Gentlemen I make no doubt this thing is known to you all not only by the Judgment of all the Judges in England but the Judgment of the Lords in Parliament when I doubt not the Prisoner at the Bar did attend in the Case of my Lord Stafford wherein one Witness gave an account of a Conspiracy in England Turbervile of another in France and by the Opinion of all my Lords the Judges approved in Parliament that was enough and he was convicted The Question is whether we have sufficiently proved this matter Gentlemen I must tell you we take no Gaols nor bring any prosligate Persons Persons that wanted Faith or Credit before this time I must tell you that notwithstanding the fair notice that hath been given to the Prisoner at the Bar that you see he hath taken an advantage of it he hath given an account of a private Conversation with my Lord Howard before that Noble Person that was Witness against him was taken he has not given you in all his Proof hitherto nay I say he has not pretended any thing in the World wherefore you Gentlemen that are upon your Oaths should take it upon your Consciences that two Men against whom there is no Objection should come to damn their own Souls to take away the life of this Gentleman when there is no Quarrel no Temptation wherefore these Gentlemen should come in the face of a Court of Justice in the face of such an Auditory without respect to that infinite Being to whom they appeal for confirmation of the Truth of their Testimony and if they had the Faith of Men or Christians they must necessarily conclude that if they did swear to take away a mans Life that was innocent God would sink them down presently into Hell Gentlemen in the next place I must acquaint you that the first Witness Col. Romsey it is apparent he was taken notice of by the Prisoner as a man fit to be trusted he was engaged by my Lord Shaftsbury But says he would any man believe that that man that had received so many Marks of the Kings Favour both in advantage to his Estate his Honour and Person could be ever contriving such an Hellish Design as this Gentlemen if you will argue from such uncertain Conjectures then all Criminals will come off Who should think that my Lord of Essex who had been advanced so much in his Estate and Honour should be guilty of such desperate things which had he not been conscious of he would scarcely have brought himself to that untimely end to avoid the Methods of publick Justice Col. Romsey tells you my Lord Shaftsbury was concerned in this Conspiracy I am sorry to find that there hath been so many of the Nobility of this Land that have Lived so happily under the benign influence of a gracious Prince should make so ill returns Gentlemen I must appeal to you whether in your observation you found Col. Romsey to be over-hasty and an over-zealous Witness he did not come as if he came in spight to the Prisoner at the Bar you found how we were forced to pump out every thing but after he had been pressed over and over again then he came to it So that I observe to you that he was an unwilling Witness Gentlemen give me leave to observe to you the Prisoner at the Bar before such time as Mr. Sheppard came up and gave evidence against him says he I come only by accident only to tast a parcel of wine Mr Sheppard when he comes up he tells you there was no such design
Person had L. Russel I pray I may have a Copy then Sir G. Jeff. If my Lord had sent his Agents and it had been refused there had been something in it Mr. Att. Gen. Secondary Normansell was with me and I gave him my Allowance though it was not his Right L. Ch. Just That my Lord may not be surprised what think you of giving my Lord time till the Afternoon and try some of the rest in the mean time Mr. Att. Gen. Truly my Lord if I could imagine it were possible for my Lord to have any Witnesses I should not be against it L. Russel 'T is very hard Mr. Att. Gen. Do not say so the King does not deal hardly with you but I am afraid it will appear you would have dealt more hardly with the King You would not have given the King an hours notice for saving his Life Secondary Trotman I gave my Brother Normansell a Copy of the Pannel on my side and hear that my Brother Normansell hath said that he delivered a Copy Then Secondary Normansell was sent for and the Court staied for him some time Mr. Atwood My Lord a Gentleman told me he did not know whether it was sit till he had consulted the Attorny General afterwards I had a Copy as it stood then not as it is now Mr. Att. Gen. I desire my Lord may be asked who he sent for it L. Russel I did not send for it I inquired and they said it would be refused Mr. Atwood No the Gentleman had it with the fair Perriwig L. Ch. Just It was delivered to your Servant or Agent what did you do with it L. Russels Gent. Sir the Gentleman gave me out of a Book some Names Sir Geo. Jeff. What did you with them L. Russels Gent. I writ them down they were not perfect I did not know what they were L. Ch. Just Sir you were to blame not to deliver it to my Lord. L. Russels Gent. I was not bound to deliver an imperfect thing to my Lord. L. Ch. Just Sir you should have consulted your Lords advantage so as to have delivered any thing for his good L. Russels Gent. My Lord was in the Tower I was not admitted to my Lord. Mr. Att. Gen. Did you give it to my Lady L. Russels Gent. Yes those Names I had my Lady had Sir Geo. Jeff. How long ago was it Mr. Atwood Tuesday or Wednesday last L. Ch. Just To Lord Russels Servant Look you Sir when had you this L. Russel I had no Pannel I will assure you delivered me I had some Names of people that they said were usually on Juries L. Ch. Just They were the Names of the Jury L. Russel They were only the Names of them that were like to be of the Jury no other Pannel came to me L. C. J. M Lord there can be no other Copie given but the same that was delivered for your Lordship does know in this case any person accused as your Lordship is may challenge 35 and therefore there is a Return generally of 3 score or 4 score and these are returned in case of your Lordships Challenge When you have challenged so many as you please then the 12 men that stand after your challenge are to be of the Jury and therefore this is not like a Pannel made up by the Sheriff in ordinary Causes between Man and Man there they make a formal Pannel from which they cannot depart when that is once returned but here in Criminal Cases because of the Challenge they return either 60 or 80. And I presume your Lordship was attended with the Names delivered Sir Geo. Jeff. How many Names was delivered Mr. Atwood Above 100. L. Russel I had nothing of a Pannel delivered to me but some Names L. Ch. Just There was never any formal Pannel delivered to any person accused The Copy of it is in Paper always L. Russel How can I know who to challenge L. C. J. My Lord the Copie of it is in your hands your Lordship hath been deceived in this by not understanding the true Nature of these things if we were to give you a new one we could give you but such an one L. Russel I had no Paper from the true Officer L. Ch. Just No but from your Servant Mr. Att. Gen. My Lord you will have cause to complain if they are not the same men we now shall call L. Ch. Just My Lord That Paper will guide your Lordship in your Challenges L. Russel My Lord I did not mind it I put it away My Lord with your Favour I must needs insist upon having a Pannel and that you will put it off till the Afternoon I have a Witness that is not in Town My Counsel told me it was never done or very seldome Arraigning and Trying at the same time except in case of common Malefactors L. Ch. J. Mr. Attorny why may not this Trial be respited till the Afternoon Mr. Att. Gen. Pray call the Jury L. Ch. J. My Lord the Kings Counsel think it not reasonable to put off the Trial longer and we can't put it off without their Consent in this Case L. Russel My Lord 't is hard I thought the Law had allowed a pretty deal of favour to a man when he came upon his life How can I know to except against men that I never heard or saw one of them Cl. of Cr. You the Prisoner at the Bar those good men that have been now called and here appear are to pass between you and our Soveraign Lord the King upon your Life or Death if you challenge any of them you must speak as they come to the Book to be sworn before they are sworn L. Russel My Lord may not I have the use of Pen Ink and Paper Court Yes my Lord. L. Russel My Lord may I make use of any Papers I have L. Ch. Just Yes by all means L· Russel May I have some body write to help my memory Mr. Att. Gen. Yes a Servant L. Ch. Just Any of your Servants shall assist you in writing any thing you please for you L. Russel My Wife is here my Lord to do it L. Ch. Just If my Lady please to give her self the trouble Mr. Att. Gen. My Lord you may have two Persons to write for you if you please L. Russel My Lord here hath been a name read that I never saw in the list of the Jury I had I heard Sir Andrew Foster called L. Ch. Just He is not called to be of the Jury Cl. of Cr. Call John Martin He appears L. Russel Are you a Freeholder of 40 s. a year I hope none are allowed in the Pannel but those that have Freeholds L. Ch. Just There is no Pannel made in London by Freeholders we have very few Freeholders capable of being impannel'd because the Estates of the City belong much to the Nobility and Gentlemen that live abroad and to Corporations therefore in the City of London the Challenge of Freeholders is
it is prettie odly expressed for when a Man is accused of Felonies and other High Treasons 't is of the death of a Man unless he have Lands or Tenements of the yearly value of 40 s. But I will take it as these Gentlemen do at this Time it not being so at Common-Law nor in other criminal cases but what are provided for by the Statute as to other matters of Felonie and Murder no doubt there these Challenges are to be taken upon the Statute but not for Treason because the Statute of Queen Mary does expresly repeat their Statute and no Statute since takes away the force of that of Q. Mary that all Trials for Treason shall be as at the Common-Law and according to this the constant practice in all Cities not only London where Persons have been Indicted for High Treason hath been There was never any such thing pretended Most of London so that the Statute they speak of and the Interpretations of the several other these Gentlemen have Freeholds but we would not have this point lost to the Citie of Statutes too are to no purpose for we say by Common-Law all Causes might be tried by any Persons against whom there was not sufficient cause of Challenge and the Common-Law is by that Statute restored in this point Mr. Sol. Gen. My Lord I have little to say Mr. Attorney hath given a true Answer to it the Foundation does fail them It was not necessary at Common-Law for a Jury-man to have Freehold but then they must shew you my Lord it is altered and made necessary The Statute of H. 5. does not seem to extend to Treason but if it did 't is now out of doors by that of Q Mary whereby all Trials of Treason are reduced to the common-Common-Law This is that we answer they fail in their foundation they do not make it out that it was necessarie for a Jury-man at common-Common-Law to have Free-hold Sir Geo. Jeff. My Lord I confess they have cited several Acts of Parliament and upon them laid their Foundation and drew Inferences from them But they will find that in several Acts of Parliament which they have quoted there is a particular regard had for the preservation of the constant Usage and Custom for Trials within the City of London That notwithstanding several Acts of Parliament have in other places ascertained the value of Jurors yet they had still an Eye that the City of London should continue in its Usages I think it will be necessarie to put you in mind of the Case of the City of Worcester It would be very hard say they because an Attaint does not lie in Criminal matters if you intend by that to have People of Abilitie 't is well known that the ablest People in the Citie of London have scarce any Free-hold in it for that most of the Inheritances of the Citie of London remain in the Nobility and in Corporations Now in the Case of my Lord Russel he hath a peremptory Challenge to 35 and I think I may adventure to say there can scarce be 35 more that can call themselves Free-holders in London consider the Consequence then Treason should be committed in the Citie of London and there would not be enow in the Citie of London to trie it In the Case of the Quo-Warranto brought against the Citie of Worcester to know by what Warrant several took upon them the Offices of Aldermen the Gentlemen at the Bar objected that it was reasonable that no Freehold should be determined but by Free-holders But the Judges of the Kings-Bench the Court being full for the necessity of the thing lest there might not be sufficient Freeholders in the Citie having sent one of the Judges of that Court to your Lordships of the Common-Pleas for that Reason did agree the Challenge was not good I know these Gentlemen will please to remember the Case so that I say as in one Case we ought to be tender of the life of the Prisoner so we ought surely to be tender of the life of the King otherwise it may so happen that the Kings life may be incompassed and Treason committed in the Citie and there would be no way in the World to try it therefore we pray for the King the Challenge may be over-ruled M. North. My Lord it is the practice to make the Venire facias without mentioning Freehold for it does not Command that they return so many men that have Freehold but probos legales homines de viseneto therefore at the Common-Law those were good Inquests to trie any man that were not Excommunicated nor under any Out-Law 'T is true there are Statutes that say all Jury-men shall have Freehold but we say these Statutes do not extend to the Citie of London but that it is governed by its own Customs and we say it is the Custom that Citizens of Ability have been returned that have no Freehold But granting what we do not but by way of supposal my Lord it does not extend to this Case because Trials are to be according to the use at Common-Law by the Statute of Q. Mary which does set them at large again and that is the reason the Prisoner in this Case hath his Challenge for 35 and is in other Cases restrained to 20 so that we say these men of Ability are good and there is no Statute affects them L. Ch. J Mr. Pollexfen do you find any Judgment that in Cases of Treason by Common-Law they might except for want of Freehold Have you any resolution in the Case Mr. Pollexf I think there are Books that say at Common-Law there must be Freehold L. Ch. J. what in Treason Mr. Pollexfen No my Lord. L. Ch. J. Unless you speak of Treason you do not speak ad idem For I do take it that in Cases of Treason or in Cases of Felony at the Comon Law they had no liberty to except to Jurors that they had not any Freehold but that at the Common-Law any good and lawful men might pass Then take as introductive of a new Law the Statute of H. 5. I am of the mind that this Statute of H. 5. peradventure may extend to Treasons and Felonies but when the Statute of Q. Mary comes and says all Trials shall be by such Evidence and in such manner as by Common Law they ought to have been I do not see how it is possible to make an Objection afterwards of this nature For admitting this Act of Parliament of H. 5. had altered the Common Law and given a Challenge why then when the Statute of Q. Mary comes and sets all Trials at large in the Case of Treasons then certainly the Challenge is gone again and I doubt you will not find one Exception in this Case ever since that Statute concerning the Juries Freehold in Cases of Treason but it hath generally passed otherwise and there hath not been any ever excepted I doubt it will be a very hard thing to maintain
of my Lord Shaftsbury comes particularly to your Lordship and says that Six of you as a chosen Councel among your selves not that you were actually chosen but as a chosen Counsel among your selves did undertake to manage the great matter of the Insurrection and Raising of Men in order to surprize the Kings Guards and for to Rise which is a Rebellion in the Nation He says that you had several Consults concerning it I told you the several particulars of those Consults he mentioned Now it is fit for your Lordship and 't is your time to give some answer to these things L. Russel My Lord I cannot but think my self mighty unfortunate to stand here charged with so High and Hainous a Crime and that intricated and intermixed with the Treasons and horrid Practises and Speeches of other People the Kings Council taking all advantages and improving and heightning things against me I am no Lawyer a very unready speaker and altogether a stranger to things of this Nature and alone and without Councel 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. Romsey who it's 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 no body 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 6 Months and by the 25 E. 3. a design of Levying War is no Treason unless by some overt Act it appear 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 L. Ch. J. To the Attorney General Mr. Attorney You hear what it is my Lord Objects to this Evidence He says that as to those Witnesses that Testify any thing concerning him above six Months before he was Prosecuted he conceives the Act of Parliament upon which he takes himself to be Indicted does not extend to it for that says that within six Moneths there ought to have been a Prosecution and my Lord tells you that he is advised that a design of Levying War without actual Levying of War was not Treason before that Statute Mr. Att. Gen. To satisfy my Lord He is not Indicted upon that Statute We go upon the 25 E. 3. But then for the next Objection surely my Lord is informed wrong To Raise a Rebellion or a Conspiracy within the Kingdom is it not that which is called Levying of War in that Statute but to Raise a Number of men to break Prisons c. Which is not so directly tending against the Life of the King To prepare Forces to Fight against the King that is a design within that Statute to Kill the King And to design to depose the King to imprison the King to raise the Subjects against the King these have been setled by several Resolutions to be within that Statute and Evidences of a Design of killing the King L. Russel My Lord This is matter of Law Neither was there but one Meeting at Mr. Sheppards House Mr. Att. Gen. My Lord If you admit the Fact and will rest upon the Point of Law I am ready to argue it with any of your Counsel I will acquaint your Lordship how the Evidence stands There is one Evidence since Christmas last L. Russel That 's not to the business of Sheppards House My Lord one Witness will not convict a Man of Treason Mr. Att. Gen. If there be one Witness of one Act of Treason and another of a second another of a third that manifest the same Treason to depose or destroy the King that will be sufficient L. Ch. J. My Lord That has been resolved the Two Witnesses the Statute requires are not to the same individual Act but to the same Treason if they be several Acts declaring the same Treason and one Witness to each of them they have been reckoned two Witnesses within the Statute of E. 6. Sir G. Jeff. If my Lord will call his Witness L. Russel This is tacking of Two Treasons together here is one in November by one Witness and then you bring on another with a Discourse of my Lord Howard And he says the Discourse passed for Pleasure L. Ch. Just If your Lordship do doubt whether the Fact proved against your Lordship be Treason or not within the Statute of E. 3. and you are contented that the Fact be taken as proved against your Lordship and so desire Counsel barely upon that that is matter of Law You shall have it granted L. Russel I am not knowing in the Law I think 't is not proved and if it was I think 't is not Punishable by that Act. I desire Counsel may be admitted upon so nice a Point My Life lies at stake here 's but one Witness that speaks of a Message Sir Geo. Jeff. The Fact must be lest to the Jury Therefore if my Lord Russel hath any Witnesses to call in opposition to these matters let him L.C.J. My Lord there can be no matter of Law but upon a Fact admitted and stated L. Russel My Lord I do not think it proved I hope you will be of Counsel for me 't is very hard for me that my Counsel may not speak for me in a point of Law L. Ch. Just 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 desire your Counsel may be heard to that I will do it L. Russel I doubt in Law and do not see the Fact is proved upon me Mr. Sol. Gen. Will your Lordship please to call any Witness to the matter of Fact L. Russel 'T is very hard a man must lose his life upon hear-say Col. Romsey says he brought a Message which I will swear I never heard nor know 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 Mr. Att. Gen. My Lord if there be any thing that is Law you shall have it L. Russel My Lord Colonel Romsey the other day before the King 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
hath been determined it was resolved by all the Judges in the Case of my Lord Cobham 1 Jac. A Conspiracy to levy War against the Kings Person as this was a Conspiracy to seise the Guards what does that tend to but to seise the King and that always hath been taken to be High Treason But there are some things called Levying of War in Law that are not so directly against the King as if a Number of Men go about to levy Men to overthrow all Inclosures this by the generality of the Intent and because of the Consequences is accounted Levying War against the King A Conspiracy therefore to levy such a War which by construction only is against the King perhaps that may not be such an Overt Act as to testifie the Imagination of the Death of the King but other Conspiracies to raise War against the King have alwaies bin so taken 'T is the Resolution of the Judges in my L. Dyers Reports the Case of Dr. Story A Conspiracie to invite a foreign Prince to make an Invasion though no Invasion follow is an Overt Act to prove conspiring the Death of the King And as it hath bin so taken so it hath bin practised but of late daies In the Kings Bench I take it the Indictment against Plunket that was hanged he was indicted for Conspiring against the Life of the King and his Charge went no farther than for raising of Arms and inviting the French King in and he suffered This is acknowledged by my L. Cook for he himself said in the Paragraph before that out of which this Advice to my L. Russel is extracted That a Conspiracy to invite a foreign Prince to invade the Kingdom is a Conspiracie against the life of the King And in the next Paragraph he saies an Overt Act of one Treason cannot be an Overt Act of another Treason but constant Practice is against him in that For what is more common than to indict a man for Imagining the Death of the King and to assign the Overt Act in a Conspiracie to raise Arms against the King and sometimes they go on and say Did levy War against the King Now by my L. Cooks Rule levying War unless the Indictment be particular for that is not an Overt Act for the compassing the Death of the King but the contrary hath bin resolved by all the Judges in the Case of Sir Hen. Vane and it is the constant Practice to lay it so in Indictments It would be a strange construction if this should not be High Treason 'T is agreed by every body to take the King Prisoner to seise the King that is a compassing the Death of the King and to sit in council to conspire to effect that that is an Overt Act of the Imagination of the Death of the King now no man can distinguish this Case fom that And this Consultation amounted to all this for plainly hither it tended The Consultation was to seise upon the Kings Guards that could have no other stop but to seise upon the Kings Person and bring him into their Power As to the Killing of the King I am apt to think that was below the Honor 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 't is equally Treason as if they had agreed directly to assasinate him Therefore I think there is nothing for you to consider but to see that the Fact be fully proved and I see nothing that hath been said by my L. Russel that does invalidate our Evidence He hath produced several Witnesses Persons of Honor my L. Anglesy tells you of a Discourse my L. Howard had with my L. of Bedford That he told my L. of Bedford that he needed not to fear for he had a wife and understanding Son and could not think he should be guilty of any such thing as was laid to his Charge This is brought to invalidate my L. Howards Testimony Gentlemen do but observe My L. Howard was as deep in as any of them and was not then discovered Is it likely that my L. Howard that lay hid should discover to my L. of Bedford that there was a Conspiracy to raise Arms and that he was in it This would have been an aspersion upon my Lord of Bedford that any such thing should have been said Mr. Edw. Howard is the next and he proves That my L. Howard used solemn Protestations that he knew nothing of this Conspiracy I did observe that worthy Gentleman in the beginning of his Discourse for it was pretty long said first That he had been several times tempting my Lord Howard to come over and be serviceable to the King and if he knew any thing that he would come and confess it Why Gen-men Mr. Howard that had come to him upon these Errands formerly and had thought he had gained him I conceive you do not wonder if my Lord Howard did not reveal himself to him who presently would have discovered it for for that arrand he came But if my Lord had had a design to have come in and saved his Life he would have made his Submission voluntarily and made his Discovery But my Lord tells nothing till he is pinched in his Conscience and confounded with the Guilt being then in Custody and then he tells the whole Truth that which you have heard this day Gentlemen this hath been all that hath been objected against the Witnesses except what is said by Dr. Burnet and he saies that my L. Howard declared to him that he believed there was no Plot and laughed at it Why Gentlemen the Doctor would take it ill to be thought a person fit to be intrusted with the discovery of this therefore what he said to him signifies nothing for 't is no more than this that he did not discover it to the Doctor But the last Objection which I see there has been a great many Persons of Honour and Quality called to is That 't is not likely my Lord Russel should be guilty of any thing in this kind being a man of that Honor Vertue and so little blamable in his whole Conversation I do confess Gentlemen this is a thing that hath weight in it But consider on the other hand my Lord Russel is but a man and hath his humane frailties about him Men fall by several temptations some out of revenge some by malice fall into such offences as these are my Lord Russel is not of that temper and therefore may be these are not the ingredients here But Gentlemen there is another great and dangerous temptation that attends people in his circumstances whether it be Pride or Ambition or the cruel snare of Popularity being cried up as a Patron of Liberty This hath been a dangerous temptation to many and many persons of Vertue have fallen into it and 't is the only way to tempt persons
of Monmouth and he did go away with the Duke of Monmouth as 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 Shaftsbury in order to a Rising in the City of London and my Lord Shaftsbury did value himself mightily upon 10000 Men he hoped to raise and a great deal of Discourse he had with my Lord Shaftsbury This he does by way of Inducement to what he says concerning my Lord Russel 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. Hambdens House the other at my Lord Russels 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 Kings 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 concern'd 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 mans 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 Councils but them You have heard my Lord Russels 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 testifie Now the Question before you will be whether upon this whole matter you do believe my Lord Russel had any design upon the Kings life to destroy the King or take away his life for that is the material part here 'T is used and given you by the Kings 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 Kings Guards which say they can have no other end but to seise and destroy the King and 't is a great evidence if my Lord Russel did design to seise the Kings Guards and make an Insurrection in the Kingdom of a design for to surprise the Kings Person It must be lest 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 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 seise his Guards which is urged as an evidence and surely is in it self an evidence to seise 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 of the Clock in the Afternoon when the Jury brought the said Lord Russel in Guilty of the said High Treason Saturday 14th July My Lord Russel was brought to the Barr. Cl. of Cr. WIlliam Russel Esq hold up thy Hand which he did Thou hast been Indicted for High Treason against our Sovereign Lord the King and thereupon hast pleaded Not Guilty and for thy Trial hast put thy self upon the Country which Country has found thee Guilty What canst thou say for thy self why Iudgment of Death should not pass upon thee according to the Law L. Russel Mr. Recorder I should be very glad to hear the Indictment read Mr. Att. Gen. You may read it Cl. of Cr. Will you have it read in Latin or English L. Russel In English The Clerk read to the words of Conspiring the Death of the King L. Russel Hold I thought I had not been charged in the Indictment as it is of Compassing and Conspiring the Death of the King Mr. Att. Gen. Yes my Lord L. Russel But Mr. Recorder If all that the Witnesses swore against me be true I appeal to you and the Court I appeal to you whether I am Guilty within the Statute of 25 E. 3. they having sworn a Conspiracy to levy War but no intention of Killing the King And therefore I think truly Judgment ought not to pass upon me for Conspiring the death of the King of which there was no proof by any one Witness Mr. Att. Gen. That is no Exception Mr. Recorder My Lord that was an Exception proper and as I think you did make it before the Verdict whether the Evidence does amount to prove the Charge that is proper to be observed to the Jury for if the Evidence come short of the Indictment they can't find it to be a true Charge But when the Jury has found it their Verdict does pass for truth We are bound by the Verdict as well as your Lordship we are to go by what the Jury have found not their Evidence L. Russel Without any proof Mr. Recorder The Jury must be governed by their Evidence L. Russel I think it very hard I must be condemned upon a point that there was not one thing of it sworn therefore I think I may very legally demand Arrest of Judgment Mr. Recorder I hope your Lordship will consider 't is not the Court can give a Verdict it must be the Jury I believe their is no body in the Court does delight in giving such Judgments especially against your Lordship The Verdict is found and the Kings Attorney General on behalf of the King does demand it Mr. Att. Gen. I do demand Judgment of the Court against the Prisoner Proclamation was made for silence while Judgment was giving Mr. Recorder My Lord Russel your Lordship hath been Indicted and Tried and found Guilty of High Treason the greatest of Crimes your Quality is great and your Crime is great And I hope and expect that your behaviour and preparation in this Condition will be proportionable My Lord it is the Duty of the Witnesses to give Evidence according to Truth it is the Duty of the Jury to proceed according to Evidence and 't is the Duty of the Court to give Evidence according to the Verdict It is the Kings pleasure signified by his Attorny General to demand Judgment against your Lordship according to this Verdict and therefore my Lord I shall not delay it with any further circumlocution The Judgment the Law hath provided and is the Duty of the Court to give is That you be carried back again to the place from whence you came and from thence be drawn upon an Hurdle to the place of Execution where you shall be hanged by the neck but cut down alive your Entrals and Privy Members cut from your Body and burnt in your sight your Head to be severed from your Body and your Body divided into four Parts and disposed at the Kings pleasure And the Lord have Mercy upon your Soul FINIS London
THE TRYAL OF THE LORD RUSSEL July 13. 1683. My Lord Russel was set to the Bar within the Bar. Clerk of the Crown William Russel hold up thy hand which he did Then this Indictment was read which is as followeth THe Jurors of our Sovereign Lord the King upon their Oaths present That William Russel late of London Esq together with other false Traitors as a false Traitor against the most Illustrious and Excellent Prince our Soveraign Lord Charles the Second by the Grace of God of England Scotland France and Ireland King his natural Lord not having the Fear of God in his Heart nor weighing the Duty of his Allegiance but being moved and seduced by the Instigation of the Devil and the true Duty and natural Obedience which true and faithful Subjects of our Sovereign Lord the King towards him our said Lord the King do bear and of right ought to bear wholly withdrawing and with his whole Strength intending the Peace and Common Tranquility of this Kingdom of England to disturb and War and Rebellion against our said Lord the King to move and stir up and the Government of our said Lord the King within this Kingdom of England to subvert and our said Lord the King from his Title Honour and Kingly Name of the Imperial Crown of this his Kingdom of England to put down and deprive and our said Lord the King to Death and final Destruction to bring and put the second day of November in the Year of the Reign of our Sovereign Lord Charles the Second King of England c. the 34th and diverse other days and times as well before as after at the Parish of St. Michael Bassishaw in the Ward of Bassishaw London aforesaid maliciously and traiterously with diverse other Traitors to the Jurors aforesaid unknown he did conspire compass imagine and intend our said Lord the King his Supream Lord not only of his Kingly State Title Power and Government of this his Kingdom of England to deprive and throw down but also our said Lord the King to kill and to Death to bring and put and the ancient Government of this his Kingdom of England to change alter and wholly to subvert and a Miserable Slaughter amongst the Subjects of our said Lord the King through his whole Kingdom of England to cause and procure and Insurrection and Rebellion against our said Lord the King to move procure and stir up within this Kingdom of England And to fulfil and perfect the said most horrible Treasons and Traiterous Compassings Imaginations and Purposes aforesaid he the said William Russel together with other false Traytors as a false Traytor then and there and diverse other Days and Times as well before as after Maliciously Trayterously and advisedly between themselves and with diverse other Traytors to the Jurors aforesaid unknown they did meet together consult agree and conclude and every of them then and there did consult agree and conclude Insurrection and Rebellion against our Sovereign Lord the King within this Kingdom of England to move and stir up and the Guards for the Preservation of the Person of our said Lord the King to seize and destroy against the Duty of his Allegiance against the Peace c. And also against the Form of the Statutes c. Cl. of Cr. How saiest thou art thou Guilty or not Guilty L. Russel My Lord may I not have a Copie of the Matter of Fact laid against me that I may know what to answer to it L. Ch. J. My Lord we can grant you nothing till you have pleaded Therefore that which is put to you now is whether you say you are Guilty or not Guilty L. Russel My Lord I am not Guilty Cl. of Cr. Culprit How wilt thou be tryed L. Russel By God and my Country Cl. of Cr. God send thee a good deliverance L. Russel My Lord I thought a Prisoner had never been arraigned and tryed at the same time I have been a close Prisoner L. Ch. Just For Crimes of this Nature My Lord we do it continually L. Russel It is hard my Lord. Mr. Att. Gen. My Lord hath no reason to complain for want of notice for since Monday seven-night he had notice of his Trial and the matters alledged against him he had notice of for Questions were put to him about this matter he hath been fairly dealt with he hath had the liberty of Counsel to advise him there hath been no sort of liberty denied him which becomes any Subject to have in this condition L. Ch. J. My Lord I do not know whether you hear Mr. Attorny He says your Lordship hath had a great deal of Favour shewn you already in that you have been acquainted with the Crimes for which you are now Indicted that you have had a great deal of warning given you that you have had the liberty of Counsel which hath not been known granted to any under your Lordships Circumstances He says he doubts not but your Lordship is prepared for your Defence because you have had so much knowledg and warning of the Time and Matter for which you were to be called in question L. Russel My Lord I am much to seek I only heard some general Questions and I have Witnesses that I believe are not yet in Town nor will be I believe till Night I think it very hard I can't have one day more Mr. Att. Gen. Monday seven-night your Lordship had notice L. Russel I did not know the matter I was charged with Mr. Att. Gen. Yes certainly for I was with you my self my Lord and those Questions you were examined upon were a Favour to you that you might know what the matter was you were accused of L. Ch. J. My Lord without the Kings consent we can't put off the Trial if the Kings Council think not fit to put it off we can't grant your Lordships Request in this Case L. Russel I would desire a Copy of the Pannel of the Jury that I might consider of it for how else can I make any just Challenge I thought the Law had been very favourable to Men upon their Lives and therefore it had allowed people to have some little notice L. Ch. J. Hath not your Lordship had a Copie of the Pannel I think your Lordship was allowed one We gave Order your Lordship should have a Copie of the Pannel Mr. Att. Gen. We did indulge him so far that he might have a Note of all the Men returned L. Russel I never had a Copie of the Pannel L. Ch. J. It was the fault of your Lordships Servants then for I gave Order for it my self 'T is such a favour that in regard a mans life lies at stake we never did deny it to my knowledge And therefore in this Case I gave order to the Secondary to deliver a Copie I know the King did not design to be hard upon my Lord in his Trial but that he should have as fair a Trial as ever any Noble
such a Challenge now Here are my Lords and Brothers will be pleased to deliver their Opinions It is a business of great consequence not only for this Noble Person at the Bar but for all other Persons L. Ch. Bar. I agree with your Lordship perfectly but if the Counsel had laid a right Foundation that it had been so at Common Law there had been much said But I take it at Common Law there was no Challenge for want of Freehold and I am induced to think so for otherwise what needed the Statute of H. 5. been made But whether it extended to Treason or no I am not so clear And if it did it 's wiped off again by that of Q Mary which reduces all to the Common Law Trial. Mr. Just Wyndham I am of the same Opinion I conceive at Common Law lack of Freehold no good cause of Challenge 'T is true that Challenge is given in some Cases by Act of Parliament yet I doubt whether it extend to a thing of so high nature as Treason for other Statutes have not mentioned any thing of Treason But suppose 2 H. 5. did extend to it yet it is very plain the Statute of 1. 2. Q. Mary hath set all at large again They are to be good and lawful men and I do not find that any thing of the lawfulness must be the Freehold And therefore I conceive this is no just Exception in this Case Mr. Just Jones My Lord I am of the same Opinion I am of Opinion that the Common Law did not require Freehold to be a good cause of Challenge in the Case of Treason and the rather Because at the Common Law a man that was Indicted of High Treason had liberty to Challenge peremptorily to the number of 35 Persons My Lord if the Common Law be altered by the Stat. of H. 5. yet I take it that the Statute of 1 2 Ph. M. does restore the Common Law in this particular point For whereas there was a Stat. of H. 8. to restrain the Prisoner to the number of 20 for his Challenge now the Statute restoring it to Common Law the Prisoner has his Challenge to 35 as he had before that Stat. of H. 8. So I take it the King shall have his priviledge also to try a Prisoner for Treason by Persons that have not Freehold Mr. Just Charleton I am of the same Opinion And truly the rather because no President hath been offered of any such Challenge before and many men have suffered and sure if it could have been many would have made use of it Mr. Just Levins I am of Opinion 't is not to be allowed I do not think my self driven to the necessity to determin now whether Freehold was a good Challenge at Common Law in point of Treason I think the Statute of Ph. and M. hath restored the Trials to the Common Law What was the Common Law The Common Law is the Custom of England which is other in Cities than in Countries and the Custom of London is part of that Common Law So though it be a cause of Challenge in a County at large yet it is not a cause of Challenge in Cities where Freeholders are not to be found Now that which satisfies me is That this Custom is restored by the Statute of Ph. and M. Because never such a Challenge hath been And it is known when 20 were tried for Treason together in this very place and one of them a notable cunning Lawyer and if such a Challenge were to have been allowed no doubt he would have made use of it but the Challenge was not taken and if he had made such a Challenge and it had been allowed perhaps he could not have been tried That was Cook I have heard several persons tried for Treason my self and never heard it taken Therefore I am of Opinion that before any Statute was made in this case it was the Custom in London to try without Freeholds and since by the Statute of Q. Mary it is restored Mr. Baron Streete I think there was no such Challenge at Common Law The Jury were only to be probos legales homines and no more till the Statute made it so but there is a particular Reservation for Corporations And certainly if this should be admitted to be a good Challenge though it were between party and party there would be in some Corporations a perfect failure of Justice So that without doubt at Common Law there was no such Challenge As for the Statute of H. 5. 't is gone by that of Q Mary If this were admitted within London nothing would be more mischievous to this Corporation Methinks we have been very nice in this matter when the Life of the King is at stake and all the Customs and Priviledges of the City of London seem to be levelled at in this point I am of the Opinion with the rest of the Judges that this Challenge ought to be over-ruled Mr. Justice Withins I am of the same Opinion L. C. Just My Lord the Court is of Opinion upon hearing your Counsel and the Kings that it is no good Challenge to a Jurie in a case of Treason that he has not Freehold within the City But I must tell your Lordship withal That your Lordship has nothing of hardship in this case for notwithstanding that I must tell you you will have as good a Jurie and better than you should have had in a Country of 4 l. or 40 s. a Year Freeholders The Reason of the Law for Freeholds is That no slight persons should be put upon a Jury where the Life of a man or his Estate comes in Question but in the City the persons that are impanell'd are men of Quality and Substance men that have a great deal to lose and therefore Your Lordship hath the same in substance as if a Challenge was allowed of Freehold It will be no kind of prejudice to your Lordship in this case Therefore if you please apply your self as the Jury is called and make your Exceptions if you shall make any L. C. J. Mr. Pollexfen you shall have liberty to stay any where here if you please Counsel Here is such a great crowd my Lord we have no room Then the Jurymen were called and after the Lord Russel had challenged One and Thirty of them the Jury sworn were as follows John Martin William Rouse Jervas Seaton William Fashion Thomas Short George Toriano William Butler James Pickering Thomas Jeve Hugh Noden Robert Brough Thomas Omeby Then was made Proclamation for Information Cl. of Cr. William Russel Esq hold up thy Hand which he did You of the Jurie look upon the Prisoner and hearken to his Cause He stands indicted by the name of prout before in the Indictment Upon this Indictment he hath been arraigned and thereunto pleaded Nor Guilty and for his Trial hath put himself upon his Country which Country you are Your Charge is to inquire whether he be
with Mr. Sheppard L. Ch. Just Read the Statute of 25 E. 3. c. 2. My Brothers desire to have it read Cl. Cro. Whereas divers Opinions have been before this time in what Case Treason shall be said and in what not The King at the Request of the Lords and of the Commons hath made a Declaration in the manner as hereafter followeth That is to say when a Man doth compass or imagine the Death of our Lord the King or of our Lady his Queen or of their eldest Son and Heir or if a Man do Violate the Kings Compagnion or the Kings eldest Daughter unmarried or the Wife of the Kings eldest Son and Heir or if a Man do levy War against our Lord the King in his Realm or be adherent to the Kings Enemies in his Realm giving to them Aid and Comfort in the Realm or else where and thereof be proveably attainted of open Deed by People of their Condition And if a Man counterfite the Kings Great or Privy Seal or his Mony and if a Man bring false Mony into this Realm counterfite to the Mony of England as the Mony called Lushburgh or other like to the said Mony of England Knowing the Mony to be false to Merchandise or make Payment in deceit of our said Lord the King and of his People and if a Man Slea the Chancellor Treasurer or the Kings Iustices of the one Bench or the other Iustices in Eyre or Iustices of Assise and all other Iustices designed to hear and determin being in their Places during their Offices And it is to be understood that in the Cases above rehearsed that ought to be Iudged Treason which extends to our Lord the King and his Royal Majesty L. C. Just My Lord That which is urged against you by the Kings Council is this You are excused by the Indictment of compassing and designing the Kings Death and of endeavouring to Raise an Insurrection in Order to it That that they do say is that these Counsels that your Lordship hath taken are Evidences of your Compassing the Kings Death and are Overt Acts Declaring the same and upon that it is they insist your Lordship to be Guilty within that Statute L Russel It is in a Point of Law and I desire Counsel Mr. Att. Gen. Admit your Consultations and we will hear them L. Ch. J. I would set your Lordship right for probably you may not apprehend the Law in this Case If your Counsel be heard they must be heard to this That taking it that my Lord Russel has consulted in this manner for the Raising of Forces within this Kingdom and making an Insurrection within this Kingdom as Col. Romsey and my Lord Howard have deposed whether then this be Treason we can hear your Counsel to nothing else L. Russel I do not know how to answer it The point methinks must be quite otherwise that there should be Two Witnesses to one and the same time Mr. Att. Gen. Your Lordship remembers in my Lord Staffords Case there was but one Witness to one Act in England and another to another in France L. Russel It was to the same point Mr. Att. Gen. To the general point the lopping point Sir Geo. Jeff. There was not so much Evidence against him as there is against your Lordship L. C. J. My Lord if your Lordship will say any thing or call any Witnesses to disprove what either of these Gentlemen have said we will hear your Lordship what they say But if you contradict them by Testimony it will be taken to be a Proof And the way you have to disprove them is to call Witnesses or by asking Questions whereby it may appear to be untrue Mr. Sol. Gen. If you have any Witnesses call them my Lord. L. Russel I do not think they have proved it But then it appears by the Statute that Levying War is Treason but a Conspiracy to levy War is no Treason if nothing be done 't is not Levying War within the Statute There must be manifest Proof of the matter of Fact not by inference Mr. Att. Gen. I see that is taken out of my Lord Coke Levying War is a distinct branch of the Statute and my Lord Coke explains himself afterwards and says 't is an Assuming of Royal Power to Raise for particular puposes Just Wythins Unless matter of Fact be agreed we can never come to argue the Law L. Russel I came in late Mr. Sol. Gen. Pray my Lord has your Lordship any Witnesses to call as to this matter of Fact L. Russel I can prove I was out of Town when one of the Meetings was but Mr. Sheppard can't recollect the Day for I was out of Town all that time I never was but once at Mr. Sheppards and there was nothing undertaken of viewing the Guards while I was there Colonel Romsey Can you swear positively that I heard the Message and gave any Answer to it L. C. Just To Colonel Romsey Sir did my Lord Russel hear you when you delivered the Message to the Company were they at the Table or where were they Col. Romsey When I came in they were standing at the Fire side but they all came from the Fire-side to hear what I said L. Russel Colonel Romsey was there when I came in Col. Romsey No my Lord. The Duke of Monmouth and my Lord Russel went away together and my Lord Gray and Sir Thomas Armstrong L. Russel 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 any thing 't is 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 L. C. J. If you will have any Witnesses called to that you shall my Lord. L. Russel My Lord Anglesey and Mr. Edward Howard My Lord Anglesey stood up L.C. J. My Lord Russel what do you ask my Lord Anglesey L. Russel To declare what my Lord Howard told him about me since I was confined L. 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 Magdalen Colledge in Oxon. I had not been there but a very little while and vvas ready to go avvay 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 L. Howard Yes here I am to serve your Lordship L. 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 vvere My Lord
surprise the Guards and whether that was feasible and Mr. Sheppard is positive as to the Return made upon the View The next Witness was my Lord Howard he gives you an account of many things and many things that he tells you are by hear-say But I cannot but observe to you that all this hear-say is confirmed by these two positive Witnesses and their Oaths agree with him in it For my Lord Shaftsbury told him of the Disappointment he had met with from these Noble persons that would not join with him and then he went from my Lord Shaftsbury to the Duke of Monmouth to expostulate with him about it for my Lord Shaftsbury was then ready to be in action and that the Duke said he always told him he would not engage at that time This thing is confirmed to you by these two Witnesses Col. Romsey says when he brought the Message from my Lord Shaftsbury the answer was They were not ready my Lord must be contented Next he goes on with a discourse concerning my Lord Shaftsbury that does not immediatly come up to the Prisoner at the Bar but it manifests there was a Design at that time he had 10000 brisk Boys as he called them ready to follow him upon the holding up of his finger But it was thought not so prudent to begin it unless they could join all their Forces So you hear in this they were disappointed And partly by another accident too my Lord Howard had an apprehension it might be discovered that was upon the Proclamation that came out forbidding Bonfires to prevent the ordinary Tumults that used to be upon those occasions Then my Lord Howard goes on and comes particularly to my Lord Russel for upon this disappointment you find my Lord Shaftsbury thought fit to be gone But after that the Design was not laid aside for you hear they only told him all along they could not be ready at that time but the Design went on still to raise Arms and then they took upon themselves to consult of the methods of it and for the carrying it on with the greater secresie they chose a select Council of Six which were the Duke of Monmouth my Lord of Essex my Lord Howard my Lord Russel Mr. Hambden and Col. Sidney That accordingly they met at Mr Hambdens there was their first meeting and their Consultation there was how the Insurrection should be made whether first in London or whether in the Countrie or whether both in London and in the Countrie at one time They had some Debates among themselves that it was fittest first to be in the Countrie for if the King should send his Guards down to suppress them then the Citie that was then as well disposed to rise would be without a Guard and easily effect their designs here Their next meeting was at my Lord Russels own house and there their Debates were still about the same matter how to get in Scotland to their assistance and in order to that they did intrust Col. Sidney one of their Counsel to send a Messenger into Scotland for some persons to come hither my L. Melvin Sir H. Campbell and Sir J Cockram Accordingly Col. Sidneys sends Aar Smith but this is only what Col. Sidney told my Lord afterwards That he had done it but you see the fruit of it Accordingly they are come to Town and Sir H. Campbell is taken by a Messenger upon his arrival and he had been but four days in Town and he had changed his Lodging three times Now Gentlemen this is the substance of the Evidence that hath been produced against my L. Russel My L. Russel hath made several Objections That he was accidentally at this Meeting at Mr. Sheppards House and came about other business but I must observe to you that my Lord Russel owned that he came along with the Duke of Monmouth and I think he said he went away with him too You observe what Mr. Sheppards Evidence was Mr. Ferguson came to tell him the Duke of Monmouth would come and accordingly the Duke of Monmouth did come and brought his Companion with him which was my Lord Russel and certainly they that met upon so secret an Affair would never have brought one that had not been concerned Gentlemen there are other Objections my Lord hath made and those are in point of Law but before I come to them I would observe what he says to the second Meeting My Lord does not deny but that he did meet both at Mr. Hambdens House and my Lords own I think my Lord said they did meet only to discourse of News and my Lord Howard being a man of excellent Discourse they met for his Conversation Gentlemen you can't believe that this designed Meeting was for nothing in this close secret Meeting that they had no Contrivance amongst them You have heard the Witness he swears positively what the Conversation was and you see the Fruit of it Sir Hugh Campbells coming to Town and absconding when it is discovered Now my Lord Russel insists upon it That admitting these Facts be proved upon him they amount to no more than to a Conspiracy to levy War and that that is not Treason within the Statute of 25 E. 3. and if it be only within the Statute of the 13 th of this King then 't is out of time that directs the Prosecution to be within six months The Law is plainly otherwise The Statute of the 13 th of this King I will not now insist upon though I believe if that be strictly looked into the Clause that says the Prosecution shall be within six months does not refer to Treason but only to the other Offences that are highly punishable by that Statute For the Proviso runs thus 13. Car. 2. Provided always that no person be prosecuted for any of the Offences in this Act mentioned other than such as are made and declared to be High Treason unless it be by Order of the Kings Majesty his Heirs or Successors under his or their Sign Manual or by Order of the Council-Table of His Majesty his Heirs or Successors directed unto the Attorney General for the time being or some other of the Counsel learned to His Majesty His Heirs or Successors for the time being Nor shall any person or persons by virtue of this present Act incur any the Penalties herein before mentioned unless he or they be prosecuted within six months next after the Offence committed and indicted thereupon within three months after such Prosecution any thing herein contained to the contrary notwithstanding This word Nor is a continuation of the former Sentence and the Exception of High Treason will go through all and except that out of the Temporary Limitation of Treason But this is High Treason within 25 Edw. 3. To conspire to levy War is an Overt Act to testifie the Design of the Death of the King And the Error of my Lord Cook hath possily led my Lord into this mistake But this Gentlemen