STATE TRIALS
First impression, March 1899
Second impression, September 1899
All rights reserved
STATE TRIALS
POLITICAL AND SOCIAL
SELECTED AND EDITED
BY H. L. STEPHEN
IN TWO VOLUMES
VOL. II
LONDON
DUCKWORTH AND CO
1899
Edinburgh: T. and A. Constable, Printers to Her Majesty
CONTENTS
PAGE LORD RUSSELL, 3 THE EARL OF WARWICK, 59 SPENCER COWPER AND OTHERS, 139 SAMUEL GOODERE AND OTHERS, 231 INDEX, 305
LORD RUSSELL
Lord Russell's trial marks the moment in the latter part of Charles II.'s reign when his power reached its highest point. The Exclusion Bill was thrown out by the House of Lords in 1680, and though Stafford was tried and executed at the end of the year, the dissolution of the short-lived Oxford Parliament in April 1681 left the Country party, who had just acquired the name of Whigs, in a temporarily hopeless position. On the 2nd of July in the same year Shaftesbury was arrested on a charge of suborning witnesses in the Popish Plot, but the bill presented against him was thrown out by the Grand Jury, which had been packed in his favour by a friendly sheriff, and he was liberated in November. An unscrupulous exercise of the power of the Court led to North (brother of the Chief-Justice of the Common Pleas, soon to become Lord Keeper) and Rich being sworn in as sheriffs in June 1682, and Shaftesbury, no longer being able to rely on his City friends, retired into hiding and entered on the illegal practices described in Russell's trial. The security afforded to the opponents of the Court was further diminished in 1683 by the suppression of the charter of the City by a writ of Quo Warranto, which, although it was too late to have any effect on Russell's conduct, may help to justify it. The position of the Country party thus appeared desperate. The King had contrived to overcome all constitutional means of opposition; Shaftesbury's unscrupulous policy had alienated most of his natural adherents; his violent disposition made it impossible for his remaining followers to take advantage of the difficulties which the King was preparing for himself and his successor; and by anticipating the crisis of 1688, Shaftesbury, Essex, and Russell brought down destruction on themselves.
Lord Russell was tried at the Old Bailey on the 13th of July 1683 before the Lord Chief-Justice, Sir Francis Pemberton,[1] the Lord Chief-Baron, Mr. William Montague, and nine other judges. There appeared for the prosecution the Attorney-General, Sir Robert Sawyer[2], the Solicitor-General, Mr. Finch[3], Serjeant Jeffreys[4], Mr. North[5].
The charge against Lord Russell was that he was guilty of high treason in conspiring to depose and kill the King, and to stir up rebellion against him. To this he pleaded Not Guilty.
He objected that he ought not to be arraigned and tried on the same day, to which it was replied that he had had more than a fortnight's notice of his trial and the facts alleged against him by having questions put to him when he was in custody in the Tower. On the first juror being called, Lord Russell objected that he was not a 40s. freeholder in the City. He was allowed to have counsel assigned to him to argue as to whether this was a good ground of objection; the counsel he chose were Pollexfen[6], Holt[7], and Ward. The question was whether the statute 2 Hen. V. c. 3, which enacted that in the case of capital offences the jurors must have lands of the yearly value of 40s., applied to trials for treason or to trials in the City. It was decided by all the judges that it did not,[8] the objection was overruled, and a jury was sworn without any challenges being made.
North then shortly opened the case. He alleged that in the previous October and November a council consisting of Russell, the Duke of Monmouth, Lord Grey,[9] Sir Thomas Armstrong, and one Ferguson, were
Rumsey[14] was called, and being sworn deposed that at the end of October or the beginning of November Shaftesbury had sent for him to his lodgings in Wapping, where he was hiding, and told him to go to the house of one Sheppard, where he could find Monmouth, Russell, Grey, Armstrong, and Ferguson, and to ask what resolution they had come to as to the rising at Taunton. He took this message accordingly, and received an answer that Trenchard had promised 1000 foot and 300 horse, but had failed them. Most of this answer was delivered by Ferguson, but others, including Russell, were in the room at the time.
Attorney-General—Was there nothing of my lord Shaftesbury to be contented?
Rumsey—Yes, that my lord Shaftesbury must be contented; and upon that he took his resolution to be gone.
Lord Chief-Justice—Did you hear any such resolution from him?
Rumsey—Yes, my lord.
Shaftesbury told him of the meeting; he was not there more than a quarter of an hour; he heard something of a declaration to be made, either there, or on a report of Ferguson's.
Jeffreys—To what purpose was the declaration?
Lord Chief-Justice—We must do the prisoner that right; he says he cannot tell whether he had it from him or Mr. Ferguson.
There was some discourse begun by Armstrong as to the posture of the guards at the Savoy and at the Mews. Monmouth, Grey, and Armstrong, in Russell's presence, undertook to see the guards,
with what care and vigilance they did guard themselves at the Savoy and Mews, whether they might be surprised or not.
The rising was to be on the 19th of November. It was arranged by Shaftesbury that he himself was to go to Bristol, in what capacity it was not stated.
Jeffreys—If my lord Russell pleases to ask him any questions he may.
Lord Russell—I have very few questions to ask him for I know little of the matter; for it was the greatest accident in the world I was there, and when I saw that company was there I would have been gone again. I came there accidentally to speak with Mr. Sheppard; I had just come to town, but there was no discourse of surprising the guards, nor no undertaking of raising an army.
Lord Chief-Justice—We will hear you to anything by and by, but that which we desire to know of your lordship is, as the witnesses come, to know if you would have any particular questions asked of them.
On being pressed by Russell, Rumsey repeated that Russell 'did discourse of the rising' at Taunton and consented to it.
Sheppard was called, and deposed that in October Ferguson came to him in Monmouth's name,
and desired the conveniency of my house, for him and some other persons of quality to meet there. As soon as I had granted it, in the evening the duke of Monmouth, my lord Grey, my lord Russell, sir Thomas Armstrong, col. Rumsey and Mr. Ferguson came. Sir T. Armstrong desired me that none of my servants might come up, but they might be private; so what they wanted I went down for, a bottle of wine or so.
He confirmed Rumsey's evidence as to the discourse about surprising the guards; Monmouth, Grey, and Armstrong went out to view them at the Mews; the next time they met Armstrong reported
the guards were very remiss in their places, and not like soldiers, and the thing was feasible, if they had strength to do it.
There were two meetings: he had notice of them; the company came in the evening; he saw no coaches; Lord Russell came both times.
Jeffreys—Do you remember that col. Rumsey at the first time had any discourse about any private business relating to my lord Russell?
Sheppard—No, I do not remember it.
Attorney-general—Besides the seizing of the guards did they discourse about rising?
Sheppard—I do not remember any further discourse, for I went several times down to fetch wine, and sugar, and nutmeg, and I do not know what was said in my absence.
He remembered that a paper was read 'somewhat in the nature of a proclamation,' setting forth the grievances of the nation 'in order to a rising.' It was read by Ferguson, but he could not say whether they were all present or not.
Cross-examined by Lord Russell, he could not be positive as to the time of the meetings; they were at the time that Lord Shaftesbury was absent from his house, and he absented himself about Michaelmas day.
Lord Russell—I never was but once at your house, and there was no such design as I heard of. I desire that Mr. Sheppard may recollect himself.
Sheppard—Indeed my lord I can't be positive in the times. My lord I am sure was at one meeting.
Lord Chief-Justice—But was he at both?
Sheppard—I think so; but it was eight or nine months ago, and I can't be positive.
Lord Russell—I can prove I was then in the country. Col. Rumsey said there was but one meeting.
Col. Rumsey—I do not remember I was at two; if I was not, I heard Mr. Ferguson relate the debates of the other meeting to my lord Shaftesbury.
Lord Russell—Is it usual for witnesses to hear one another?
Lord Chief-Justice—I think your lordship need not concern yourself about that; for I see the witnesses are brought in one after another.
Lord Russell—There was no design.
Jeffreys—He hath sworn it.
Attorney-General—Swear my lord Howard (which was done). Pray will your lordship give an account to the Court, what you know of a rising designed before my lord Shaftesbury went away, and afterwards how it was continued on.
Lord Howard—My lord, I appear with some confusion. Let no man wonder that it is troublesome to me. My lord as to the question Mr. Attorney puts to me, this is the account I have to give: It is very well known to every one, how great a ferment was made in the city, upon occasion of the long dispute about the election of sheriffs; and this soon produced a greater freedom and liberty of speech one with another, than perhaps had been used formerly, though not without some previous preparations and dispositions made to the same thing. Upon this occasion among others, I was acquainted with captain Walcot[15], a person that had been some months in England, being returned out of Ireland, and who indeed I had not seen for eleven years before. But he came to me as soon as he came out of Ireland, and when these unhappy divisions came, he made very frequent applications to me; and though he was unknown himself, yet being brought by me, he soon gained a confidence with my lord Shaftesbury, and from him derived it to others. When this unhappy rent and division of mind was, he having before got himself acquainted with many persons of the city, had entered into such counsels with them, as afterwards had the effect, which in the ensuing narrative I shall relate to your lordship. He came to me, and told me, that they were now sensible all they had was going, that this force put upon them——
Lord Chief-Justice—Pray my lord, raise your voice, else your evidence will pass for nothing.
One of the Jury—We cannot hear my lord.
Lord Howard—There is an unhappy accident happened that hath sunk my voice: I was but just now acquainted with the fate of my lord of Essex. My lord, I say, he came to me, and did acquaint me, that the people were now so sensible that all their interest was going, by that violence offered to the city in their elections, that they were resolved to take some course to put a stop to it, if it were possible: He told me there were several consults and meetings of persons about it, and several persons had begun to put themselves into a disposition and preparation to act; that some had furnished themselves with very good horses, and kept them in the most secret and blind stables they could. That divers had intended it, and for his own part he was resolved to imbark himself in it. And having an estate in Ireland, he thought to dispatch his son thither (for he had a good real estate, and a great stock, how he disposed of his real estate, I know not); but he ordered his son to turn his stock into money to furnish him for the occasion: This I take to be about August, his son was sent away. Soon after this the son not being yet returned, and I having several accounts from him wherein I found the fermentation grew higher and higher, and every day a nearer approach to action I told him I had a necessity to go into Essex to attend the concerns of my own estate; but told him how he might by another name convey letters to me, and gave him a little cant, by which he might blind and disguise the matter he wrote about when I was in the country.
I received two or three letters from him, that gave me an account in that disguised style, but such as I understood, that the negotiation which he had with my correspondents was going on, and in good condition; and it was earnestly desired I would come to town; this was the middle of September.
I notwithstanding, was willing to see the result of that great affair, upon which all men's eyes were fixed, which was the determination of the shrivalty about that time. So I ordered it to fall into town, and went to my own house Saturday night which was Michaelmas Day.
On Sunday he came to me and dined with me, and told me (after a general account given me of the affairs of the times) that my lord Shaftesbury was secreted and withdrawn from his own house in Aldersgate Street; and that though he had a family settled, and had absconded himself from them, and divers others of his friends and confidents; yet he did desire to speak with me, and for that purpose sent him to shew me the way to his lodging: He brought me to a house at the lower end of Wood Street, one Watson's house, and there my lord was alone. He told me he could not but be sensible, how innocent soever he was, both he and all honest men were unsafe, so long as the administration of justice was in such hands as would accommodate all things to the humour of the court. That in the sense of this he thought it but reasonable to provide for his own safety by withdrawing himself from his own house into that retirement. That now he had ripened affairs to that head, and had things in that preparation, that he did not doubt but he should be able, by those men that would be in readiness in London, to turn the tide, and put a stop to the torrent that was ready to overflow. But he did complain to me, that his design, and the design of the public, was very much obstructed by the unhandsome deportment of the Duke of Monmouth, and my lord Russell, who had withdrawn themselves not only from his assistance, but from their own engagements and appointments: For when he had got such a formed force as he had in London, and expected to have it answered by them in the country, they did recede from it, and told him they were not in a condition or preparation, in the country, to be concurrent with him at that time. This he looked upon but as an artificial excuse, and as an instance of their intentions wholly to desert him: but notwithstanding there was such preparation made in London, that if they were willing to lose the honour of being concurrent with him, he was able to do it himself, and did intend speedily to put it into execution. I asked him what forces he had? He said he had enough. Says I, What are you assured of? Says he, There is above ten thousand brisk boys are ready to follow me, whenever I hold up my finger. Says I, How have you methoded this, that they should not be crushed, for there will be a great force to oppose you? Yes, he answered, but they would possess themselves of the gates; and these ten thousand men in 24 hours would be multiplied into five times the number, and be able to make a sally out, and possess themselves of Whitehall, by beating the guards. I told him this was a fair story, and I had reason to think a man of his figure would not undertake a thing that might prove so fatal, unless it were laid on a foundation that might give a prudent man ground to hope it would be successful.
He said he was certain of it, but confessed it was a great disappointment that these lords had failed him. I told him, I was not provided with an answer at that time; that he well knew me, and knew the general frame and bent of my spirit. But I told him, I looked upon it as dangerous, and ought to be laid deep, and to be very well weighed and considered of: and did not think it a thing fit to be entered upon, without the concurrence of those lords. He did consent, with much ado, but, says he, you will find they will wave it, and give doubtful and deferring answers, but you will find this a truth.
I went to Moor Park next day, where the
I came to town on Saturday, and was carried to him on Monday; and I suppose this was Tuesday the 2nd of October. On Wednesday I think I went to him again (but it is not very material) and told him I had been with the duke of Monmouth and given him a punctual account of what I had from him; and the duke did absolutely disown any such thing, and told me, he never did give him any encouragement to proceed that way, because the countries were not in a disposition for action, nor could be put in readiness at that time. Says my lord Shaftesbury, It is false: they are afraid to own it. And, says he, I have reason to believe, there is some artificial bargain between his father and him, to save one another: for when I have brought him to action, I could never get him to put on, and therefore I suspect him: and, says he, several honest men in the city have puzzled me, in asking how the duke of Monmouth lived: says he, They puzzled me, and I could not answer the question; for I know he must have his living from the King; and says he, we have different prospects; we are for a Commonwealth and he hath no other design but his own personal interest, and that will not go down with my people now (so he called them), they are all for a commonwealth: and then, says he, It is to no purpose for me to see him; it will but widen the breach, and I dare not trust him to come hither. Says I, My lord, that's a good one indeed! dare not you trust him, and yet do you send me to him on this errand? Nay, says he, it is because we have had some misunderstanding of late; but I believe he is true enough to the interest. Says I, It is a great unhappiness to take this time to fall out, and I think it is so great a design, that it ought to be undertaken with the greatest strength and coalition in the kingdom. Says he, My friends are now gone so far, that they can't pull their foot back again without going further; for, says he, it hath been communicated to so many that it is impossible to keep it from taking air, and it must go on. Says he, We are not so unprovided as you think for; there are so many men, that you will find as brisk men as any in England. Besides we are to have 1000 or 1500 horse, that are to be drawn by insensible parties into town, that when the insurrection is, shall be able to scour the streets and hinder them from forming their forces against us. My lord, after great inlargement upon this head, and heads of the like nature, I told him I would not leave him thus, and that nothing should satisfy me, but an interview between him and the lords. No, I could not obtain it: but if I would go and tell them what a forwardness he was in, and that, if they would do themselves right, by putting themselves upon correspondent action in their respective places, and where their interest lay, well; otherwise he would go away without them: So I went again to the Duke of Monmouth, I spake to him only (I never spake to my lord Russell then, only we were together, but I had never come to any close conjunction of counsels in my life with him at that time). Says I to the duke, This man is mad, and his madness will prove fatal to us all; he hath been in a fright by being in the tower, and carries those fears about him that cloud his understanding. I think his judgment hath deserted him, when he goes about with those strange sanguine hopes that I can't see what should support him in the ground of them.
Therefore says I, Pray will you give him a meeting? God-so says the duke, with all my heart, and I desire nothing more. Now I told him, I had been with my lord Shaftesbury, with other inlargements that I need not trouble your lordship with; well, says he, pray go to him, and try if it be possible to get a meeting; so I went to him and told him; Says I, This is a great unhappiness and it seems to be a great absurdity, that you are so forward to act alone in such a thing as this. Pray, says I, without any more to do, since you have this confidence to send for me, let me prevail with you to meet them, and give them an interview, or else you and I must break. I will no longer hold any correspondence, unless it be so. Says he, I tell you they will betray me. In short he did with much importunity yield that he would come out the next night in a disguise. By this time it was Saturday, I take it to be the 6th of Oct.: an almanac will settle that: so the next night being Sunday and the shops shut, he would come out in a concealment, be carried in a coach, and brought to his own house, which he thought then was safest. I came and gave the duke of Monmouth an account of it; the duke I suppose conveyed the same understanding to my lord Russell; and I suppose both would have been there accordingly, to have given the meeting: but next morning I found colonel Rumsey had left a note at my house, that the meeting could not be that day. Then I went to the duke of Monmouth and he had had the account before, that my lord Shaftesbury did apprehend himself to be in some danger in that house, and that the apprehension had occasioned him to remove; but we should be sure to hear from him in two or three days. We took it as a waiver, and thought he did from thence intend to abscond himself from us, and it proved so to me, for from that time I never saw him. But captain Walcot came to me, and told me, that he was withdrawn, but it was for fear his lodging might be discovered, but he did not doubt but in a week he would let me know where his lodging was: but told me within such a time, which I think was eight or ten days, there would be a rising; and I told the duke of Monmouth and I believe he told my lord Russell; and we believed his frenzy was now grown to that height, that he would rise immediately and put his design into execution: so we endeavoured to prevent it, upon which my lord Russell (I was told) and the duke of Monmouth, did force their way to my lord Shaftesbury's and did persuade him to put off the day of his rendezvous. I had not this from my lord Russell, for I had not spoke a word to him: but the duke told me my lord Russell had been with him (I had indeed an intimation, that he had been with him but the duke told me, says he, I have not been with him, but my lord Russell was, having been conveyed by colonel Rumsey). After this day was put off, it seems it was put off with this condition, that those lords and divers others should be in a readiness to raise the country about that day fortnight, or thereabouts; for there was not above a fortnight's time given: and, says the duke of Monmouth, we have put it off but now we must be in action, for there is no holding it off any longer. And says he, I have been at Wapping all night, and I never saw a company of bolder and brisker fellows in my life; and says he, I have been round the Tower and seen the avenues of it; and I do not think it will be hard, in a little time, to possess ourselves of it; but says he, they are in the wrong way, yet we are engaged to be ready for them in a fortnight, and therefore, says he, now we must apply ourselves to it as well as we can. And thereupon I believe they did send into the country and the duke of Monmouth told me he spake
Lord Russell—My lord, I think I have very hard measure, here is a great deal of evidence by hearsay.
Lord Chief-Justice—This is nothing against you, I declare it to the jury.
Attorney-General—If you please, my lord, go on in the method of time. This is nothing against you, but it's coming to you, if your lordship will have patience, I assure you.
Lord Howard—This is just in the order it was done. When this was put off, then they were in a great hurry; and Captain Walcot had been several times with me, and discoursed of it. But upon this disappointment they said, it should be the dishonour of the lords, that they were backward to perform their parts; but still they were resolved to go on. And this had carried it to the latter end of October. About the 17th or 18th captain Walcot came to me, and told me, now they were resolved positively to rise, and did believe that a smart party might perhaps meet with some great men[16]. Thereupon I told the duke of it; I met him in the street and went out of my own coach into his, and told him there was some dark intimation, as if there might be some attempt upon the king's person; with that he struck his breast with a great emotion of spirit, and said, God-so, kill the king! I will never suffer that. Then he went to the play-house to find sir Thomas Armstrong and send him up and down the city to put it off, as they did formerly; and it was done with that success, that we were all quieted in our minds, that at that time nothing would be done: but upon the day the king came from Newmarket, we dined together; the duke of Monmouth was one, and there we had a notion conveyed among us, that some bold action should be done that day; which comparing it with the king's coming, we concluded it was designed upon the king. And I remember my lord Grey, says he, By God, if they do attempt any such thing, it can't fail. We were in great anxiety of mind, till we heard the king's coach was come in, and sir Thomas Armstrong not being there, we apprehended that he was to be one of the party (for he was not there). This failing, it was then next determined (which was the last alarum and news I had of it), to be done upon the 17th of November, the anniversary of queen Elizabeth; and I remember it by this remark I made myself, that I feared it had been discovered, because I saw a proclamation a little before forbidding public bonfires without leave of my lord mayor. It made some impressions upon me that I thought they had got an intimation of our intention, and had therefore forbid that meeting. This therefore of the 17th of November being also disappointed, and my lord Shaftesbury, being told things were not ripe, in the country, took shipping and got away: and from that time I heard no more of him till I heard he was dead. Now, Sir, after this, we all began to lie under the same sense and apprehensions that my lord Shaftesbury did, that we had gone so far, and communicated it to so many, that it was unsafe to make a retreat; and this being considered, it was also considered, that so great an affair as that was, consisting of such infinite particulars, to be managed with so much fineness, and to have so many parts, it would be necessary, that there should be some general council, that should take upon them the care of the whole. Upon these thoughts we resolved to erect a little Cabal among ourselves, which did consist of six persons; and the persons were the duke of Monmouth, my lord of Essex, my lord Russell, Mr. Hambden junr., Algernone Sidney, and myself.
Attorney-General—About what time was this, when you settled this council?
Lord Howard—It would have been proper for me in the next place to tell you that, and I was coming to it. This was about the middle of Jan. last (as near as I can remember); for about that time we did meet at Mr. Hambden's house.
Attorney-General—Name those that met.
Lord Howard—All the persons I named before; that was the duke of Monmouth, my lord of Essex, my lord Russell, col. Sidney; Mr. Hambden junr., and myself; when we met there, it was presently agreed what their proper province was, which was to have a care of the whole; and therefore it was necessary some general things should fall under our care and conduct which could not possibly be conducted by individual persons. The things that did principally challenge this care, we thought were these: Whether the insurrection was most proper to be begun in London, or in the country, or both at one instant. This stood upon several different reasons: It was said in the country; and I remember the Duke of Monmouth insisted upon it, that it was impossible to oppose a formed, well-methodized and governed force, with a rabble hastily got together; and therefore whatever number could be gathered in the city, would be suppressed quickly, before they could form themselves: therefore it would be better to begin it at such a distance from the town, where they might have an opportunity of forming themselves, and would not be subject to the like panic fear, as in the town, where half an hour would convey the news to those forces that in another half hour would be ready to suppress them.
It was further suggested that if the meeting was remote from London, the King must either give an opportunity for a rising there by withdrawing troops, or else give the insurgents time to gather head. Other questions discussed were what counties and towns were the fittest for action, what arms were necessary, how the £20,000 or £30,000 which the Duke of Monmouth considered necessary for the rising were to be raised; lastly and chiefly how to 'order it, as to draw Scotland into a consent with us.' Another meeting was held ten days afterwards at Lord Russell's, when the same persons were present. It was then decided to send messengers to Lord Argyle 'to settle an understanding with him, and others to invite to England persons' that were judged most able to understand the state of Scotland, and give an account of it. Aaron Smith[17] was accordingly sent to Sir John Cochram[18], Lord Melvile[19], and Sir —— Campbell, and received sixty guineas from Algernon Sidney for his expenses. It was agreed that the conspirators should not meet together again till Aaron Smith's return. His absence for a month caused some apprehensions; 'but if his letters
Attorney-General—You are sure my lord Russell was there?
Lord Howard—Yes, sir; I wish I could say he was not.
Attorney-General—Did he sit there as a cypher? What did my lord say?
Lord Howard—Every one knows my lord Russell is a person of great judgment, and not very lavish in discourse.
Serjeant Jeffreys—But he did consent?
Lord Howard—We did not put it to the vote, but it went without contradiction, and I took it that all there gave their consent.
Solicitor-General—The raising of money you speak of, was that put into in any way?
Lord Howard—No, but every man was to put themselves upon thinking of such a way, that money might be collected without administering jealousy.
Attorney-General—Were there no persons to undertake for a fund?
Lord Howard—No, I think not. However it was but opinion, the thing that was said was jocosely, rather than anything else, that my lord of Essex had dealing in money, and therefore he was thought the most proper person to take care of those things; but this was said rather by way of mirth, than otherwise.
Howard then withdrew to Essex to see after some private affairs; on returning to town he heard that Smith had returned with Sir John Cochram but did not see them. He then went to Bath and had nothing more to do with the conspiracy.
Lord Chief-Justice—My lord Russell, now if your lordship pleases, is the time for you to ask him any questions.
Lord Russell—The most he hath said of me, my lord, is only hearsay; the two times we met, it was upon no formed design, only to talk of news, and talk of things in general.
Lord Chief-Justice—But I will tell you what it is he testifies, that comes nearest your lordship, that so you may consider of it, if you will ask any questions. He says after my lord Shaftesbury went off (all before is but inducement, as to anything that concerns your lordship, and does not particularly touch you; after his going away he says) the party concerned with my lord Shaftesbury did think fit to make choice of six persons to carry on the design of an insurrection or rising, as he calls it, in the kingdom; and that to that purpose, choice was made of the Duke of Monmouth, my lord of Essex, your lordship, my lord Howard, colonel Sidney, and Mr. Hambden.
Lord Russell—Pray my lord, not to interrupt you, by what party (I know no party) were they chosen?
Lord Howard—It is very true, we were not chosen by community, but did erect ourselves by mutual agreement, one with another, into this society.
Lord Russell—We were people that did meet very often.
Lord Chief-Justice—Will your lordship please to have any other questions asked of my lord Howard?
Lord Russell—He says it was a formed design, when we met about no such thing.
Lord Chief-Justice—He says that you did consult among yourselves, about the raising of men, and where the rising should be first, whether in the city of London, or in more foreign parts, that you had several debates concerning it; he does make mention of some of the duke of Monmouth's arguments for its being formed in places from the city; he says you did all agree, not to do anything further in it, till you had considered how to raise money and arms: and to engage the kingdom of Scotland in this business with you, that it was agreed among you that a messenger should be sent into the kingdom of Scotland. Thus far he goes upon his own knowledge, as he saith; what he says after, of sending a messenger, is by report only.
Attorney-General—I beg your pardon, my lord.
Lord Chief-Justice—It is so, that which he heard concerning the sending of Aaron Smith.
Attorney-General—Will you ask him any questions?
Lord Russell—We met, but there was no debate of any such thing, nor putting anything in method. But my lord Howard is a man that hath a voluble tongue, talks very well, and is full of discourse, and we were delighted to hear him.
Attorney-General—I think your lordship did mention the Campbells?
Lord Howard—I did stammer it out, but not without a parenthesis, it was a person of the alliance, and I thought of the name of the Argyles.
Atterbury was called, and swore that Sir Hugh Campbell was in his custody; was captured 'making his escape out of a woodmonger's house, both he and his son'; he owned that he had been in London four days, and that he and his son and Bailey came to town together.
West[20] was then called and sworn.
Attorney-General—That which I call you to, is to know whether or no, in your managery of this plot, you understand any of the lords were concerned, and which.
Mr. West—My lord, as to my lord Russell, I never had any conversation with him at all, but that I have heard this, that in the insurrection in November, Mr. Ferguson and colonel Rumsey did tell me that my lord Russell intended to go down and take his post in the West, when Mr. Trenchard had failed them.
Lord Chief-Justice—What is this?
Attorney-General—We have proved my lord privy to the consults; now we go about to prove the under-actors did know it.
West—They always said my lord Russell was the man they most depended upon, because he was a person looked upon as of great sobriety.
Lord Russell—Can I hinder people from making use of my name? To have this brought to influence the gentlemen of the jury, and inflame them against me, is hard.
Lord Chief-Justice—As to this, the giving evidence by hearsay will not be evidence; what colonel Rumsey, or Mr Ferguson told Mr. West, is no evidence.
Attorney-General—It is not evidence to convict a man, if there were not plain evidence before; but it plainly confirms what the other swears: but I think we need no more.
Jeffreys—We have evidence without it, and will not use anything of garniture; we will leave it as it is, we won't trouble your lordship any further. I think, Mr. Attorney, we have done with our evidence.
The Lord Chief-Justice then recapitulated the evidence given against Lord Russell, dwelling particularly on the traitorous character of Rumsey's message, Russell's privity to Trenchard's rising, the alleged written declaration, and the consultations as to the best method of effecting a rising, and finally called on Lord Russell to make his defence.