Part 2

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 But captain Walcot came to me, and told me, that he was withdrawn, but it was for fear his lodging might be discovered, but he did not doubt but in a week he would let me know where his lodging was: but told me within such a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 to Mr. Trenchard, who was to take particular care of Somersetshire, with this circumstance; Says he, I thought Mr. Trenchard had been a brisker fellow; for when I told him of it, he looked so pale, I thought he would have swooned, when I brought him to the brink of action; and said, I pray go and do what you can among your acquaintance; and truly I thought it would have come then to action. But I went the next day to him, and he said it was impossible, they could not get the gentlemen of the country to stir yet.

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 had miscarried, it could have done no great hurt, for it carried only a kind of cant in it; it was under the disguise of a plantation in Carolina.'

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.

LORD RUSSELL--My lord, I cannot but think myself mighty unfortunate, to stand here charged with so high and heinous a crime, and that intricated and intermixed with the treasons and horrid practices and speeches of other people, the king's counsel taking all advantages, and improving and heightening things against me. I am no lawyer, a very unready speaker, and altogether a stranger to things of this nature, and alone, and without counsel. 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. Rumsey, who it is 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 nobody 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 six months; and by the 25 Edw. III. a design of levying war is no treason, unless by some overt-act it appear.[21] 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.

The _Attorney-General_ replies that they are proceeding under the Statute of 25 Edward III.; that he does not contend that a design to levy war is treason, but to prepare forces to fight against the King is a design within the Statute to kill the King; 'to design to depose the King, to imprison the King, to raise the subjects against the King, these have been settled by several resolutions to be within that Statute, and evidences of a design to kill the King.'[22] A man cannot be convicted of treason by one witness only, but several witnesses to several acts which manifest the same treason are sufficient.

JEFFREYS--If my lord will call his witnesses----

LORD RUSSELL--This is tacking of two treasons together; here is one in November by one witness, and then you bring in another with a discourse of my lord Howard, and he says the discourse passed for pleasure.

The Lord Chief-Justice and Jeffreys point out that it has been settled that the two witnesses required in treason may be witnesses to different acts, and that if Lord Russell admits the facts his counsel may be heard on the point of law.

LORD CHIEF-JUSTICE--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 desires your counsel may be heard to that, I will do it.

SOLICITOR-GENERAL--Will your lordship please to call any witness to the matter of fact?

LORD RUSSELL--It is very hard a man must lose his life upon hearsay. Colonel Rumsey says he brought a message which I will swear I never heard nor knew 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.

ATTORNEY-GENERAL--My lord, if there is anything that is law, you shall have it

LORD RUSSELL--My lord, colonel Rumsey, the other day before the king [the information of Rumsey is signed by the Duke of Abermarle and Sir Leoline Jenkins, Secretary of State] 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 with Mr. Sheppard.

Here some of the judges desired that 25 Edw. III. c. 2 should be read, which was done. The material parts of it declare 'that whereas divers opinions have been before this time, in what case treason shall be said, and in what not ... when a man doth compass or imagine the death of our lord the king ... or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be provable attainted of open deed by people of their condition,' it is treason. On this the point of law is re-discussed with the same result as before.

LORD RUSSELL--I do not know how to answer it. The points methinks must be quite otherwise, that there should be two witnesses to one thing at the same time.

ATTORNEY-GENERAL--Your lordship remembers, in my lord Stafford's case, there was but one witness to one act in England, and another to another in France.

LORD RUSSELL--It was to the same point.

ATTORNEY-GENERAL--To the general point, the lopping point.

LORD RUSSELL--I can prove I was out of town when one of these meetings was; but Mr. Sheppard cannot recollect the day, for I was out of town all that time. I never was but once at Mr. Sheppard's and there was nothing undertaken of viewing the guards while I was there. Col. Rumsey, can you swear positively, that I heard the message, and gave any answer to it?

LORD CHIEF-JUSTICE (to Col. Rumsey)--Sir, did my lord Russell hear you when you delivered the message to the company? Were they at the table, or where were they?

COLONEL RUMSEY--When I came in they were standing at the fireside; but they all came from the fireside to hear what I said.

LORD RUSSELL--Col. Rumsey was there when I came in.