The Duke of Somerset spoke shortly as to Lord Russell's honour, loyalty, and justice.
Foreman of the Jury—The gentlemen of the jury desire to ask my lord Howard something upon the point my lord Anglesey testified, and to know what answer he makes to lord Anglesey.
Lord Chief-Baron—My lord, what say you to it, that you told his father that he was a discreet man, and he needed not to fear his engagement in any such thing?
Lord Howard—My lord, if I took it right my lord Anglesey's testimony did branch itself into two parts, one of his own knowledge, and the other by hearsay; as to what he said of his own knowledge, when I waited upon my lord of Bedford, and endeavoured to comfort him concerning his son, I believe I said the words my lord Anglesey has given an account of, as near as I can remember, that I looked upon his lordship as a man of that honour, that I hoped he might be secure, that he had not entangled himself in anything of that nature. My lord, I can hardly be provoked to make my own defence, lest this noble lord should suffer, so willing I am to serve my lord, who knows I cannot want affection for him. My lord, I do confess I did say it; for your lordship well knows under what circumstances we were: I was at that time to outface the thing, both for myself and my party, and I did not intend to come into this place, and act this part. God knows how it is brought upon me, and with what unwillingness I do sustain it; but my duty to God, the king, and my country requires it; but I must confess I am very sorry to carry it on thus far. My lord, I do confess I did say so, and if I had been to visit my lord Pemberton, I should have said so. There is none of those that know my lord Russell, but would speak of my lord Russell, from those topics of honour, modesty and integrity, his whole life deserves it. And I must confess that I did frequently say, there was nothing of truth in this, and I wish this may be for my lord's advantage. My lord, will you spare me one thing more, because that leans hard upon my reputation; and if the jury believe that I ought not to be believed, for I do think the religion of an oath is not tied to a place, but receives its obligation from the appeal we therein make to God, and, I think, if I called God and angels to witness to a falsehood, I ought not to be believed now; but I will tell you as to that; your lordship knows that every man that was committed, was committed for a design of murdering the king; now I did lay hold on that part, for I was to carry my knife close between the paring and the apple; and I did say that if I were an enemy to my lord Russell, and to the Duke of Monmouth, and were called to be a witness, I must have declared in the presence of God and man, that I did not believe either of them had any design to murder the king. I have said this, because I would not walk under the character of a person that would be perjured at the expense of so noble a person's life, and my own soul.
Lord Clifford, Mr. Suton Gore, Mr. Spencer, and Dr. Fitz-Williams then all gave evidence as to Lord Russell's character in general terms.
Lord Chief-Justice—My lord, does your lordship call any more witnesses?
Lord Russell—No, my lord, I will be very short. I shall declare to your lordship, that I am one that have always had a heart sincerely loyal and affectionate to the king, and the government the best government in the world. I pray as sincerely for the king's happy and long life as any man alive; and for me to go about to raise a rebellion, which I looked upon as so wicked and unpracticable, is unlikely. Besides, if I had been inclined to it, by all the observation I made in the country, there was no tendency to it. What some hot-headed people have done there, is another thing. A rebellion cannot be made now as it has been in former times; we have few great men. I was always for the government, I never desired anything to be redressed, but in a parliamentary and legal way, I have always been against innovations and all irregularities whatsoever; and shall be as long as I live, whether it be sooner or later. Gentlemen, I am now in your hands eternally, my honour, my life, and all; and I hope the heats and animosities that are amongst you will not so bias you, as to make you 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 surprise 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 Monmouth; 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 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 Shaftesbury) he would not engage at that time.' This, says the Solicitor-General, is confirmed by Rumsey'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, leading 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 appointment. 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 to levy war, which is not treason within 25 Edw. III., 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. III., 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.[26] 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[27] 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.