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.