I now come to the trial of Russell and Sydney. Russell was tried by Pemberton. The charge against him was compassing the death of the King, and the overt act by which it was sought to prove a compassing, was a conspiracy to raise an insurrection. There can be no doubt that such a conspiracy, if established, was legitimate evidence of the traitorous design; and, therefore, one ground of the reversal of Lord Russell's attainder, assigned in the act of Parliament, viz., "his wrongful conviction by partial and unjust construction of law," cannot be supported by an impartial reasoner. But Lord Russell was unjustly condemned; first, because the evidence, such as it was, did not bear out the charge; secondly, because a great deal of that evidence was hearsay, and elicited by the most unfair examination in chief; thirdly, because it was given by uncorroborated accomplices; fourthly, because it was misrepresented by the judge. Rumsey, Shepherd, and Lord Howard, men whose lives, if their own story was to be depended on, were in the hands of the Crown, were the sole witnesses against Russell: it was proved by irresistible evidence, that Lord Howard had said what was totally inconsistent with the evidence he gave against the prisoner. As specimens of Lord Howard's evidence, take the following extract:

"The witness (1) set off with a long and rambling hearsay account of consultations and meetings, which he had received from Walcot. He then gave an account of what Lord Shaftsbury had said to him at a private interview, in which that nobleman complained of Lord Russell for having deserted him, and boasted of his ten thousand brisk boys, who were all ready at the holding up of his finger, and in twenty-four hours would be multiplied into five times that number, then sally out, possess the gates of the enemy, beat the guards, and take Whitehall by storm. The witness told Lord Shaftsbury this was a fair thing, but might be fatal, if not deeply laid, and

(i) Phillipps's State Trials, vol. 2, p. 1.

well considered. Lord Shaftsbury replied, that he was sure to succeed, but was disappointed by the failure of the Duke of Monmouth and Lord Russell. The witness desired to consult them, before he disclosed his own intentions. Accordingly he went to the Duke of Monmouth, and told him what Lord Shaftsbury had said. The Duke of Monmouth answered, that he thought Lord Shaftsbury mad; that so far from giving him any encouragement, he had told him from the beginning, and so had Lord Russell, that nothing could be done in the country at that time. The witness reported this to Lord Shaftsbury: 'It is false,' said he, they did encourage me, but now they are afraid to own it.'

"The witness then gave an account, which he had received from Walcot, respecting Lord Shaftsbury's movements, and which was to this effect:-That Walcot informed him, that Lord Shaftsbury had withdrawn, adding, that in about eight or ten days there would be a rising; that the witness informed the Duke of Monmouth of this, and, as he believed, the Duke informed Lord Russell. We believed,' said the witness, 'his phrenzy was now grown to such a height, that he would rise immediately; so we endeavoured to prevent it. Upon which, Lord Russell, [I was told,] and the Duke of Monmouth, did force their way to Lord Shaftsbury, and persuaded him to put off the day of his rendezvous. I had not this from Lord Russell; for I had not spoken a word to him; but the Duke told me, that Lord Russell had been with him, [I had, indeed, an intimation that he had been with him] and the Duke said, that he himself had not been with Lord Shaftsbury, but that Lord Russell was with him, having been conveyed by Colonel Rumsey.'

"After this day was put off,' continued the witness, it seems it was put off with this condition, that these Lords, and divers others, should be in readiness to raise the country about that day fortnight or thereabouts: for there was not above a fortnight's time given; and, says the Duke of Monmouth,

we have put it off, but now me must be in action, for there is no holding it off any longer. And, says he, I have been at Wapping all night, and I never saw a company of bolder and brisker fellows in my life: and, says he, I have round the Tower, and seen the avenues of it; and I do not think it will be hard, in a little time, to possess ourselves of it; but, says he, they are in the wrong way: yet we are engaged to be ready for them in a fortnight, and, therefore, says he, now we must apply ourselves to it as well as we can. And thereupon I believe they did send into the country; and the Duke of Monmouth told me, he spoke to Mr. Trenchard, who was to take particular care of Somersetshire, with this circumstance; says he, I thought Mr. Trenchard had been a brisker fellow; for when I told him of it, he looked so pale, I thought he would have swooned, when I brought him to the brink of action, and said, I pray go and do what you can among your acquaintances; and truly, I thought he would have come then to action; but I went the next day to him, and he said it was impossible; they could not get the gentlemen of the country to stir yet.' Lord Russell." My Lord, I think I have very hard measure; here is a great deal of evidence by hearsay."

L. C. J.-"This is nothing against you; I declare it to the jury."

Att. Gen.-"If you please, my Lord, [addressing himself to the witness,] go on, in the method of time. This is nothing against you, [turning to the prisoner,] but it is coming to you, if your Lordship will have patience, I assure you."

"The witness was then permitted to continue, at great length, the hearsay reports which he had received from Walcot, on the subject of several designs for a rising, which had not been carried into effect. He spoke of another intended rising, fixed for the 17th of November, but spoke of it only from report.

"It was next determined, said the witness, [which was the last alarm and news I had of it,] to be done upon the 17th of

November. He remembered the day, from a particular reason, which he mentioned. This design also was disappointed; and Lord Shaftsbury, being told that things were not ripe in the country, took shipping and got away.

"After this mass of hearsay,-which was calculated to excite the most fatal and unjust prejudices against Lord Russell, and which was utterly inadmissible,-followed some of the most important evidence in the case: Now, Sir,' said the witness, 'after this, we all began to lie under the same sense and apprehensions that my Lord Shaftsbury did, and we had gone so far, and communicated it to so many, that it was unsafe to make a retreat; and this being considered, it was also considered, that so great an affair as that was, consisting of such infinite particulars, to be managed with so much firmness, and to have so many parts, it would be necessary, that there should be some general council, which should take upon them the care of the whole. Upon these thoughts we resolved to erect a little cabal among ourselves, which did consist of six persons; and these persons were, the Duke of Monmouth, my Lord Essex, my Lord Russell, Mr. Hampden, jun., Algernon Sydney, and myself.'

"Their first meeting, said the witness, was about the middle of January, preceding the trial, at the house of Hampden. At that meeting they agreed, that their peculiar province was to superintend certain arrangements of a general nature, which could not be so well conducted by individuals. The points, which principally challenged their care, were these: First, Whether the insurrection would be most properly begun in London, or in the country, or in both at the same time? Upon this point, the Duke of Monmouth advised, that it should not be in the city. Another point, which they debated, was, what counties and towns were most disposed to action? A third point was, what arms were necessary, and how they might be disposed of? A fourth point was, as to the necessity of having a common bank, of about 25 or 30,000l. to answer

the occasions of such an undertaking. The last, and greatest of all matters under consideration, was, how Scotland could be drawn in to concur; for they thought it necessary that a diversion should be made. Nothing was done, [said the witness,] but these things were offered for their consideration, and they were to contribute their joint advice. About ten days afterwards, the same party had another meeting at Lord Russell's; when they came to a resolution to dispatch some persons to Scotland, for the purpose of making an arrangement with Lord Argyle, and to invite into England some who were perfectly well acquainted with the state of Scotland. They accordingly directed a person to be sent, Aaron Smith. Algernon Sydney was intrusted with the care of this business; and the witness was afterwards informed by him, that he had sent Smith. The party agreed not to meet again till the return of the messenger, believing that the meeting, which had taken place, might have occasioned some observation." Att. Gen.—“You are sure my Lord Russell was there?" Lord H.- "Yes, Sir: I wish I could he was not." Att. Gen." Did he sit there as a cypher? What did my Lord say?"

say,

Lord H.-" Every one knows, my Lord Russell is a person of great judgment, and not very lavish in discourse."

Serjt. Jeffreys." But he did consent?"

Lord H.-"We did not put it to the vote; but it went without contradiction, and I took it that all there gave their

consent."

"The last witness, West, was then called. The first question put to him by the Attorney General was, whether, by his management of the plot, he understood that any, and which, of the Lords were concerned? The witness, in answer, said, that he never had any conversation with Lord Russell; but that, in the insurrection in November, he heard from Ferguson and Rumsey, that Lord Russell intended to go down and take his post in the West, when Trenchard had failed there."

L. C. J." What is this ?"