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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 plotting a rising in conjunction with the Earl of Shaftesbury. The Earl was anxious that the opportunity of the celebration of Queen Elizabeth's birthday on the 19th of November should be used for the purpose. The conspirators objected to this on the ground that Trenchard, who was to have headed a rising in the West, was not ready. On this Shaftesbury and Ferguson left the country, and the so-called council was re-organised by Armstrong and Grey being left out, and Lord Howard,[10] Lord Essex,[11] Colonel Algernon Sidney,[12] and Mr. Hampden,[13] being taken in. Frequent consultations were held at Russell's house, and Aaron Smith was despatched to Scotland to arrange a rising on the part of the malcontents there.

_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 Duke of Monmouth was, and told him the great complaint my lord Shaftesbury had made, that he failed him. Says he, I think he is mad; I was so far from giving him any encouragement, that I did tell him from the beginning, and so did my lord Russell, there was nothing to be done by us in the country at that time. I did not then own that I had seen my lord, but spake as if this were brought me by a third person, because he had not given me liberty to tell them where his lodging was. Says I, My lord, I shall be able to give a better account of this in a day or two: Shall I convey it to my lord, that you are willing to give a meeting? Yes, says he, with all my heart. This was the 2nd, 3rd, or 4th of Oct.

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.