say they, can have no other end but to seize and destroy the King; and it is 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, against the conspirators, to kill the King at the Rye. There was a direct evidence of a consult to kill the King, that is not given you in this case. This is an act of contriving rebellion, and an insurrection within the kingdom, and to seize his guards, which is urged an evidence, and surely is in itself an evidence, to seize and destroy the King."

The Court then adjourned till four o'clock; when the jury brought in the verdict of Guilty of the said High Treason.

CHAP. XVI.

THE ILLEGAL CONSTRUCTION PUT ON 25 EDWARD III.

PERJURY OF THE WITNESSES. LORD RUSSELL'S SENTENCE. ATTEMPTS MADE TO SAVE HIS LIFE. HIS PETITION TO THE KING, AND LETTER TO THE DUKE OF YORK. · HIS REFUSAL TO ABJURE THE RIGHT OF RESISTANCE.

T

Ir is by no means my intention to discuss at length the legal questions which are involved in the trial of Lord Russell. The first of these questions respects the competency of a jury not composed of freeholders: the second concerns the nature of his offence. By an Act of Henry V., no person is to serve on a jury, in capital cases, but freeholders to the amount of 40s. The crown lawyers argued, that this provision was repealed by the Act of the first of Queen Mary, but that Act merely repeals all laws creating treasons since the statute of Edward III., and does not at all interfere with the mode of trial. Lord Russell, therefore, was not legally tried. With respect to the second question, whoever will take the trouble to read the Act of the 25th Edward III., and look over the various prosecutions which have been brought under it, will be convinced that the present law of high treason is a law of the judges, and not of the legislature. The Act provides, that "treason shall be said," " 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." Lawyers have decided that the first of these species of treason extends to any conspiracy to levy war, in order to put any personal restraint upon the King, because the graves of princes are near their prisons; or in order to depose the King, because that is a civil death; or in order to oblige him to alter his measures of government, or remove evil counsellors from about him, because these purposes cannot be effected by open force, without manifest danger to his person. Such interpretations, it is evident, are so far from flowing directly from the law, that they

D D

66

can only be deduced from it, by doubtful reasoning, and arbitrary definition. The second species of high treason, mentioned above, is construed to mean a rising, not against the King's person, but against his Majesty, to effect any general purpose; as to pull down all meeting-houses, destroy all enclosures, &c.* These extensions of the law of treason were attempted by Richard II. and Henry VIII. with the consent of the legislature, but repealed by the Act of Queen Mary. At the time Lord Russell was tried, there was no precedent, which bore directly on his case. Dr. Storey was tried for conspiring with a foreign prince. Lord Cobham, who had been convicted in the reign of James I., had clearly intended to confine the King's person, till he complied with the demands of the conspirators. Plunket, who had been executed a little be fore, was also charged with conspiring to bring a foreign force into the realm. So little settled, in short, was the law in Lord Russell's case, that the act for annulling his attainder, passed in the first year of William and Mary, recites that he "was, by undue and illegal return of jurors, having been refused his lawful challenge to the said jurors, for want of freehold, and, by PARTIAL AND UNJUST CON

STRUCTIONS OF LAW, WRONGFULLY CONVICTED, ATTAINTED, AND EXECUTED FOR HIGH TREASON.'

Without venturing to dwell any further upon my own view of this subject, I copy, with great satisfaction, the recorded sentiments of Mr. Fox-an authority, in my opinion, not easily matched by that of any lawyer. Speaking of those who died for this plot, he says, "That which is most certain in this affair is, that they had committed no overt act, indicating the imagining the King's death, even according to the most strained construction of the statute of Edward the Third; much less was any such act legally proved against them : and the conspiring to levy war was not treason, except by a recent statute of Charles the Second, the prosecutions upon which were

* Foster's Discourses on Crown Law, c. i. s. 3, 4, 5, and 6.

+ See the trial of Hardy, and especially Lord Erskine's admirable speech.

expressly limited to a certain time, which, in these cases, had elapsed; so that it is impossible not to assent to the opinion of those who have ever stigmatised the condemnation and execution of Russell as a most flagrant violation of law and justice."

There were, it is true, two other legal objections made by Lord Russell; but neither appears to me to have much force in it. One was, that he had only assisted as a spectator in the consultation at which he was present; and, therefore, was only guilty of misprision of treason, at most. But this objection will, by no means, hold: for when he asked Colonel Rumsey whether he had consented to the rising at Taunton, the witness answered in the affirmative; and the evidence of Lord Howard went to prove that he was one of a select council of six, to prepare and digest the scheme of an insurrection. Nor is there any force in the objection, that the acts proved by Rumsey and Howard were separate and distinct. They both tended to the general purpose of insurrection; and the question had been already decided in the case of Lord Stafford. *

The other remarks I have to make concern the degree of credit due to the witnesses. The first of them, Colonel Rumsey, was a man of whom Lord Russell had a bad opinion, and of whom he had spoken slightingly to Lord Cavendish. It was, therefore, not likely that he should trust him. Rumsey gave evidence of his having been at one meeting at Sheppard's: afterwards, he seems not to have been certain whether he had been at two, or whether he had heard the proceedings of the second related by Mr. Ferguson to Lord Shaftesbury. Is this likely? is it credible? Can a man of talent, or any man not an idiot, attend a treasonable meeting, and forget the circumstance within ten months? To the mind of an honest juryman such a circumstance would have borne conviction of the perjury of the witness; and that conviction would have been amply confirmed by the events of the next few years. For, in the month of October, 1685, Good

* See "Case of William Lord Russell,"-" Antidote against Poison,"-" Defence of Lord Russell's Innocency," &c. in the State Trials, vol. ix. See also Lord Warrington's Works.

enough, having been arrested, offered, in order to save his life, to swear treason against Cornish, whom he secretly hated for the opposition which Cornish had made, when sheriff, to his own appointment as under-sheriff. To put the more force and venom into his information, he said that Rumsey had not discovered all he knew. Rumsey, alarmed at this charge, came forward and swore, without hesitation, to all that Goodenough chose to invent. Cornish was arrested, tried, condemned, and executed within ten days: but it soon appeared that Rumsey had perjured himself; for he had sworn that Cornish was at Sheppard's house when a paper, intended for a declaration, was read, which he, Rumsey, had also heard. Whereas, on Lord Russell's trial, he had sworn that he had not heard the declaration read; and that no one had been present except those he then mentioned, of whom Cornish was not one. His evidence was also contradicted by that of Sheppard, who swore that Cornish was not present when the pretended declaration was read. This notorious instance of perjury opened the eyes of all men; of all men; and such discredit was thrown upon Rumsey, that the King found it impossible to employ him any more. The head and limbs of Cornish were taken down, and his estate restored to his family. With that degree of justice and gratitude which is common to bad kings, James sent Rumsey to be confined in the secret state prison in the island of St. Nicholas, in Plymouth harbour, which was then used, in defiance of the writ of habeas corpus. James probably feared an open trial for perjury, and a vindication of the memory of Lord Russell. It is material to observe, that the perjury of Rumsey relates to the meeting at Sheppard's, the matter on which his evidence was fatal to Lord Russell. It is also of much importance to remark, that Lord Grey, whose narrative was written to please James, admits that he did not hear Rumsey deliver any message.

66

The next witness against Lord Russell was Sheppard. Taking this evidence by itself," says Sir John Hawles, "without tacking Rumsey's evidence to it, it was so far from being evidence of treason, that it was no crime; for he doth not say it (seizing the guards) was intended to be put in practice, notwithstanding all said by him. Both