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in the least inclined to find an innocent man guilty.
I call to witness heaven and earth, I never had a
design against the king's life, in my life, nor never
shall have. I think there is nothing proved against
me at all. I am in your hands. God direct you.

The Solicitor -General then proceeds to sum
up the case against Lord Russell. The treason
alleged against the prisoner is conspiring the
death of the King; the overt act proving the
conspiracy is the assembling in council to raise
arms against the King and raise a rebellion
here. Rumsey was sent by Shaftesbury to
Sheppard's house to ask for news of Trenchard's
rising at Taunton ; the message was delivered
in Russell's presence and an answer was given
as from them all that they were disappointed
there, and were not ready to rise. Monmouth,
Grey, and Armstrong went out to inspect the
guards and reported that it was feasible to sur-
prise them. Russell was present and discussed
a rising with the rest ; the rising was to be on
the 19th of November. Sheppard speaks to
Ferguson engaging his rooms on behalf of Mon-
mouth ; there was consequently a private meeting
there which Russell attended. He confirms
Rumsey as to the inspecting of the guards, and
speaks to the reading of a paper, though he



48 STATE TRIALS

does not say that Russell was there when it was
read. Lord Howard 'gives you an account of
many things, and many things that he tells you
are by hearsay. But I cannot but observe to
you that all this hearsay is confirmed by these
two positive witnesses.' Shaftesbury told Howard
of the disappointment he had met with from
noble persons who would not join with him ;
Howard went from Shaftesbury to Monmouth
to expostulate with him; 'and Monmouth said
he had always told him (? Howard or Shaftes-
bury) he would not engage at that time.' This,
says the Solicitor-General, is confirmed by Rum-
sey's account of the delivery of his message.
Then follows the abandonment of the rising on
the 19th of November in consequence of the
proclamation forbidding the usual rejoicings on
that occasion, and Shaftesbury 's departure, lead-
ing to the formation of the committee of six, of
whom Lord Russell was one, and who at one
meeting discussed the proper place for the rising
and at another how best to obtain assistance
from Scotland. Lord Russell states that he
only came to Sheppard's house by accident,
about some other business, but he came with
Monmouth, and Monmouth came by appoint-
ment. Surely this designed and secret meeting
must have been intended for the purposes for
which it was used. Lord Russell objects that
this evidence proves no more than a conspiracy



LORD RUSSELL 49

to levy war, which is not treason within
25 Edw. in., and though it is treason within
13 Car. ii., that statute does not apply because
the prosecution has not taken place within six
months of the offence. But the case is one of
high treason under 25 Edw. HI., because 'to
conspire to levy war, is an overt-act to testify the
design of the death of the King'; as to which
see Lord Cobham's case, 1 Jac. 1 A conspiracy
to levy war against the king's person tends to
seizing the King, which has always been taken
to be treason. It may be different in the case
of a conspiracy to levy war by such an act as
overthrowing all inclosures (which is levying
war), which by construction only is against the
King, but such cases are to be distinguished from
the levying of war against the King himself; see
the case of Dr. Story. As was seen in Plunket's 2



1 Henry Brooke, the eighth Lord Cobham, after losing
Court favour on the death of Elizabeth, was accused in 1603
of plotting with Aremberg, the Spanish ambassador, to place
Arabella Stuart on the throne, and to kill the King. His
evidence contributed largely to the conviction of Sir Walter
Raleigh of the same treason, and he was tried and convicted
the next day. He was kept in prison till 1617, when he was
allowed to go to Bath on condition that he returned to prison ;
but he was struck by paralysis on his way back and died in
1619. See vol. i. pp. 19-57.

3 Oliver Plunket (1629-1681) was Roman Catholic bishop of
Armagh and titular primate of Ireland. He attained these
positions in 1669; in 1674 he went into hiding when the
position of the Catholics in England drew attention to their
presence in Ireland. He was arrested on a charge of cora-

VOL. II. D



5 o STATE TRIALS

case, to invite a foreign invasion is to conspire
the death of the King. Coke, in the passage
before that relied on by Lord Russell, admits
that this is the law. When Coke says that to
levy war is not an overt act for compassing the
death of the King (that is, is not evidence of
such an intention), Sir Henry Vane's case shows
he is wrong.

As to the killing of the King, I am apt to think
that was below the honour of the prisoner at the
bar . . . but this is equal treason ; if they designed
only to bring the King into their power, till he had
consented to such things as should be moved in
Parliament, it is equally treason as if they had agreed
directly to assassinate him.

Lord Howard, it is true, testified repeatedly
to Lord Russell's innocence, but was not this the
best way of concealing his own guilt? Surely
Dr. Burnet would look on himself as the last
person to whom conspirators would confess their
crimes.

Jeffreys followed, recapitulating a few of the
facts, but adding nothing to the Solicitor-
General's argument.

LORD CHIEF-JUSTICE Gentlemen of the jury, the
prisoner at the bar stands indicted before you of

plicity with the Popish Plot in 1678, and eventually tried in
the King's Bench for treason in 1681 by Sir Francis Pember-
ton, when the law was laid down as stated above, He was
convicted, hung, beheaded and quartered.



LORD RUSSELL 51

High treason in compassing and designing the death
of the king, and declaring of it by overt-acts
endeavouring to raise insurrections, and popular
commotions, in the kingdom here. To this he hath
pleaded, Not Guilty. You have heard the evidence
that hath been against him ; it hath been at large
repeated by the king's counsel which will take off a
great deal of my trouble in repeating it again. I
know you cannot but take notice of it, and remember
it, it having been stated twice by two of the king's
counsel to you ; 'tis long, and you see what the parties
here have proved. There is first of all Col. Rumsey,
he does attest a meeting at Mr. Sheppard's house, and
you hear to what purpose he says it was ; the message
that he brought, and the return he had ; it was to
enquire concerning a rising at Taunton ; and that he
had in return to my lord Shaftesbury was, that Mr.
Trenchard had failed them, and my lord must be
contented ; for it could not be that time. You hear
that he does say, that they did design a rising; he
saith there was a rising designed in November, I think
he saith the seventeenth, upon the day of queen
Elizabeth's birth. 1 You hear he does say there was at
that meeting some discourse concerning inspecting the
king's guards, and seeing how they kept themselves,
and whether they might be surprised, and this he says
was all in order to a rising. He says, that at this
my lord Russell was present. Mr. Sheppard does say,
that my lord Russell was there ; that he came into
this meeting with the duke of Monmouth and he did
go away with the duke of Monmouth he believes. He



1 Rumsey says the 19th, Howard the 17th. The 17th wa
the anniversary of the Queen's accession.



52 STATE TRIALS

says there was some discourse of a rising or insurrec-
tion that was to be procured within the kingdom : but
he does not tell you the particulars of any thing, he
himself does not. My lord Howard afterwards does
come and tell you of a great discourse he had with my
lord Shaftesbury, in order to a rising in the city of
London ; and my lord Shaftesbury did value himself
mightily upon 10,000 men he hoped to raise ; and a
great deal of discourse, he had with my lord Shaftes-
bury. This he does by way of inducement to what
he says concerning my lord Russell.

The evidence against him is some consults that
there were by six of them, who took upon them, as
he says, to be a council for the management of the
insurrection, that was to be procured in this kingdom.
He instances in two that were for this purpose, the
one of them at Mr. Hambden's house, the other at
my lord Russell's house. And he tells you at these
meetings, there was some discourse of providing
treasure, and of providing arms ; but they came to no
result in these things. He tells you that there was a
design to send for some of the kingdom of Scotland,
that might join with them in this thing. And this
is upon the matter, the substance of the evidence, that
hath been at large declared to you by the king's counsel,
and what you have heard. Now gentlemen, I must
tell you some things it lies upon us to direct you in.

My lord excepts to these witnesses, because they
are concerned, by their own shewing, in this design.
If there were any, I did direct (some of you might
hear me) yesterday, that that was no sufficient excep-
tion against a man's being an evidence in the case of
treason, that he himself was concerned in it ; they are
the most proper persons to be evidence, none being



LORD RUSSELL 53

able to detect such counsels but them. You have
heard my lord Russell's witnesses that he hath brought
concerning them, and concerning his own integrity
and course of life, how it has been sober and civil,
with a great respect to religion, as these gentlemen
do all testify. Now the question before you will be,
Whether upon this whole matter you do beleive my
lord Russell had any design upon the king's life, to
destroy the king, or take away his life, for that is
the material part here. It is used and given you
(by the king's counsel) as an evidence of this, that
he did conspire to raise an insurrection, and to cause
a rising of the people, to make as it were a rebellion
within the nation, and to surprise the king's guards,
which, say they, can have no other end, but to seize
and destroy the king; and 'tis a great evidence (if
my lord Russell did design to seize the king's guards,
and make an insurrection in the kingdom) of a design
to surprise the king's person. It must be left to you
upon the whole matter : you have not evidence in
this case as there was in the other matter that was
tried in the morning or yesterday, 1 against the con-
spirators 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 con-
triving rebellion, and an insurrection within the
kingdom, and to seize his guards, which is urged
an evidence, and surely is in itself an evidence, to
seize and destroy the king.

Upon this whole matter, this is left to you. If you
believe the prisoner at the bar to have conspired the



1 Thomas \V~alcot and William Hone, tried for and con-
victed of participation in the Rye House Plot.



54 STATE TRIALS

death of the king and in order to that, to have had
these consults, that these witnesses speak of, then
you must find him guilty of this treason that is laid
to his charge.

Then the Court adjourned till four o'clock in the
afternoon, when the Jury brought the said Lord
Russell in guilty of the said High Treason.

On July 14th Lord Russell was brought up
before the Recorder for sentence, and, demand-
ing to have the indictment read, pleaded that
no intention to kill the King had been proved.
The Recorder, however, pointed out that the
point had already been taken, and that he was
bound by the verdict of the jury. He then
condemned the prisoner in the usual way to be
drawn, hanged, and quartered. This sentence
was commuted to beheading, and was carried
out on 21st July.

Lord Russell was accompanied from Newgate
to Lincoln's Inn Fields, where the execution
took place, by Tillotson and Burnet. He spoke
a few words on the scaffold, expressing his
affection for the Protestant religion, and deny-
ing knowledge of any plot against the King's
life, or the government. He left a paper of
considerable interest from a general point of
view justifying his action in relation to the
Popish Plot and the Exclusion Bill. As to his
trial, he asserts that he never saw Sheppard but
once, and then there was no undertaking as to
seizing the guards and no one appointed to



LORD RUSSELL 55

view them. It may have been discoursed of
then and at other times, but he never consented
to it, and once at Shaftesbury's he strongly pro-
tested against it. He had an intention to try
some sherry when he went to Sheppard's ; but
when he was in town

the duke of Monmouth came to me and told me
he was extremely glad I had come to town, for my
lord Shaftesbury and some hot men would undo us
all, if great care be not taken ; and therefore for
God's sake use your endeavours with your friends to
prevent anything of this kind. He told me there
would be company at Mr. Sheppard's that night,
and desired me to be at home in the evening, and
he would call me, which he did : And when I came
into the room I saw Mr. Rumsey by the chimney,
although he swears he came in after ; and there were
things said by some with much more heat than judg-
ment, which I did sufficiently disapprove, and yet
for these things I stand condemned. It is, I know,
inferred from thence, and was pressed to me, that I
was acquainted with these heats and ill designs, and
did not discover them ; but this is but misprision of
treason at most. So I die innocent of the crime I stand
condemned for, and I hope nobody will imagine, that
so mean a thought could enter into me, as to go
about to save myself by accusing others ; the part that
some have acted lately of that kind has not been such
as to invite me to love life at such a rate. ... I
know I said but little at the trial, and I suppose it
looks more like innocence than guilt. I was also
advised not to confess matter of fact plainly, since
that must certainly have brought me within the



56 STATE TRIALS

guilt of misprision. 1 And being thus restrained
from dealing frankly and openly, I chose rather to
say little, than to depart from ingenuity, that by the
grace of God I had carried along with me in the
former parts of my life ; so could easier be silent, and
leave the whole matter to the conscience of the jury,
than to make the last and solemnest part of my life
so different from the course of it, as the using little
tricks and evasions must have been.

Lord Russell's attainder was reversed by a
private Act of 1 Will, and Mary on the ground
that the jury were not properly returned, that
his lawful challenges to them for want of free-
hold were refused, and that he was convicted
'by partial and unjust constructions of the law.'

1 See ante, p. 42.



THE EARL OF WARWICK



VOL. II.



THE EARL OF WARWICK

MARCH 28, 1699. About eleven of the clock the
Lords came from their own house into the court
erected in Westminster hall, for the trials of Edward,
earl of Warwick and Holland, and Charles lord
Mohun, 1 in the manner following. The lord high

i Charles, fifth Baron Mohun (1675 T-1712), was the eldest
son of the fourth baron, who died from a wound received in a
duel when his son was about two years old. He fought his
first duel in 1692, breaking out of his lodgings, where he waa
confined in consequence of a quarrel over dice, for the purpose,
with the assistance of the Earl of Warwick of the present
case, the grandson of the Lord Holland of the Civil War.
This encounter ended in both combatants being disarmed.
Two days later he abetted in the murder of Mountfort, an
actor. One Captain Hill was in love with Mrs. Bracegirdle,
the famous actress, and supposed that he had cause to be
jealous of the attentions she received from Mountfort,
the equally eminent actor. Accordingly Hill and Mohun
formed a plan (estimated to cost 50 in all) to carry off the
lady as she came out of the theatre : and providing themselves
with a coach-and-six and a body of soldiers set out on the
enterprise. They missed Mrs. Bracegirdle at the theatre, but
found her by chance coming out of a house in Drury Lane
where she had supped. The attempt to carry her off in the
coach failed, owing to the vigorous resistance made by her
friends. Hill and Mohun, however, were allowed to escort
her to her lodgings in Howard Street, where they saw her
safely home. Mountfort lived in Norfolk Street, at the





60 STATE TRIALS

steward's gentleman attendants, two and two. The
clerks of the House of Lords, with two clerks of the
crown in the Courts of Chancery and King's Bench.
The masters of Chancery, two and two. Then the
judges. The peers' eldest sons, and peers minors, two
and two. Four Serjeants at arms with their maces,
two and two. The yeoman usher of the house. Then
the peers, two and two, beginning with the youngest
barons. Then four serjeants at arms with their



bottom of Howard Street ; and as he was passing down the
latter some two hours later, he was accosted by Mohan in a more
or less friendly way ; but while they were talking together, he
was attacked aud killed by Hill, who did not give him time to
draw his sword. Hill fled, but Mohun was tried by his peers
in Westminster Hall, January 1692-93. The trial excited
great interest partly owing to the youth of the prisoner, and
on a question being raised as to the degree of complicity
necessary to constitute his guilt, he was acquitted. A report
of the trial will be found in State Trialt, xii. 950. There
are also some picturesque references to it in Chapter xix. of
Macaulay's History. Mohun fought another duel in 1694,
served for two years in Flanders, returned to England, and
fought a duel with Captain Bingham in St. James's Park,
which was interrupted by the sentries. The same year he was
present at the death of Captain Hill, in the Rummer Tavern.
The present case occurred in 1698, and seems to have closed
his career as a rake. He was sent under Lord Macclesfield on
a mission to present the Electress-Dowager Sophia with a copy
of the Act of Succession, and he frequently took part in
debates in the House of Lords. After Lord Macclesfield's
death he became entangled in a long course of litigation with
the Duke of Hamilton; and on their meeting in Master's
Chambers, remarks passed between them which led to a duel,
when both were killed. The Tories suggested that the Whigs
had arranged the duel in order to get rid of Mohun because
they were tired of him, and Hamilton, because they wanted to
prevent hia projected embassy to France.



THE EARL OF WARWICK 61

maces. Then one of the heralds, attending in the
room of Garter, who by reason of his infirmity, could
not be present. And the gentleman usher of the
Black Rod, carrying the white staff before the lord
high steward. Then the lord chancellor, the lord
high steward, of England, alone.

When the lords were seated on their proper benches,
and the lord high steward on the wool-pack ; the two
clerks of the crown in the courts of Chancery and
King's Bench, standing before the clerk's table with
their faces towards the state ;

The clerk of the crown in Chancery having his
majesty's commission to the lord high steward in his
hands, made three reverences towards the lord high
steward, and the clerk of the crown in Chancery on
his knees presented the commission to the lord high
steward, who delivered it to the clerk of the crown in
the King's bench (then likewise kneeling before his
grace) in order to be opened and read ; and then the
two clerks of the crown making three reverences,
went down to the table ; and the clerk of the crown
in the King's Bench commanded the serjeant at arms
to make proclamation of silence ; which he did in this
manner.

SERJEANT-AT-ARMS O yes, O yes, O yes, My lord
high steward his grace does straitly charge and com-
mand all manner of persons here present, to keep
silence, and hear the king's majesty's commission to
his grace my lord high steward of England directed,
openly read, upon pain of imprisonment.

Then the lord high steward l asked the peers



1 John Lord Somers (1651-1716) was born at Whiteladies,



62 STATE TRIALS

to be pleased to stand up uncovered, while the
King's commission was read. And the peers
stood up, uncovered, and the King's commission
was read in Latin, by which it was set out that
the Grand Jury of the County of Middlesex had
found a true bill of murder against the Earl of
Warwick and Lord Mohun, which the peers
were commissioned to try. Proclamation that



near Worcester, educated at Trinity College, Oxford, and
called in 1676. He appeared as junior counsel in the trial of
the Seven Bishops, at the instance of Pollexfen (see vol. i.
p. 241), and took a conspicuous part in the settlement of the
monarchy after the Revolution, being an influential member
of the Committee which drafted the Declaration of Rights.
He became Solicitor-General in 1689, and Attorney-General
in 1692, in which capacity it is curious to notice that he con-
ducted the prosecution of Lord Mohun for the murder of
Mountfort (see ante, p. 60). He became William m.'s first
Lord Keeper in 1692-3, and Lord Chancellor in 1697. During
all this time he was one of William's most trusted advisers,
and was consulted by him on the most confidential questions
relating to foreign policy. He was also familiar with the
leading literary and scientific men of his time, being respon-
sible for Addison's pension, and receiving the dedication of the
Tale of a Tub from Swift. He also conferred favours on
Rymer and Madox. He resigned the Great Seal in 1700
after a motion for his perpetual exclusion from the presence
of the King had been defeated by a small majority in the
House of Commons ; having already lost the King's confidence
by the position he adopted in regard to William's propositions
for a standing army, and attracted the hostility of the country
partly by his opposition to the bill for the resumption of the
grants of forfeited Irish estates. He played a conspicuous
part in the reign of Queen Anne as the head of the Whig
junto formed at the beginning of that reign, but never
resumed office.



63

all persons there present should be uncovered,
was then made, and the return of certiorari,
bringing the indictment before the House of
Lords, was read in Latin.

Order was then made that the judges might
be covered, and the governor of the tower was
ordered to produce the earl of Warwick ; and he
was brought to the bar by the deputy-governor,
having the axe carried before him by the gentle-
man gaoler, who stood with it at the bar, on the
right hand of the prisoner, turning the edge from
him.

The lord high steward then informed the
prisoner that he had been indicted of murder by
the Grand Jury for the county of Middlesex, on
which indictment he would now be tried; and
proceeded

Your lordship is called to answer this charge before
the whole body of the house of peers as assembled in
parliament. It is a great misfortune to be accused of
so heinous an offence, and it is an addition to that
misfortune, to be brought to answer as a criminal
before such an assembly, in defence of your estate,
your life, and honour. But it ought to be a support to
your mind, sufficient to keep you from sinking under
the weight of such an accusation, that you are to be
tried before so noble, discerning, and equal judges, that
nothing but your guilt can hurt you. No evidence
will be received, but what is warranted by law ; no
weight will be laid upon that evidence, but what is
agreeable to justice ; no advantage will be taken of



64 STATE TRIALS

your lordship's little experience in proceedings of this
nature; nor will it turn to your prejudice, that you
have not the assistance of counsel in your defence, as
to the fact (which cannot be allowed by law), and
their lordships have already assigned you counsel if
any matter of law should arise.

After a little more to the same effect the
indictment was read, first in Latin, then in
English, and the earl of Warwick pleaded Not
Guilty.

The indictment was then opened by Serjeant
Wright, 1 to the effect that the prisoner was
accused of murdering Richard Coote on the 30th
of October, by stabbing him, together with Lord
Mohun, Richard French, Roger James, and
George Dockwra.



i Sir Nathan Wright (1653-1721), born of an Essex family,
was educated at Emmanuel College, and was called in 1677.
He was junior counsel for the Crown in the trial of the Seven
Bishops, and opened the pleadings. He became Serjeant in


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