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.