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"not deal hardly with you; but I am afraid it ** will appear you would have dealt more hardly "with the King; you would not have given the * King an hour's notice for saving his life."
The Secondary Normansel was then sent for, when it appeared that a list of names had been given to Lord Russell's servant, who delivered it to Lady Russell, from whom his lordship received it; but Lord Russell stated, the names of the persons on the list were those who were generally on juries, but not a pannel.
A conversation then took place between Lord Russell, the Lord Chief Justice, and the, Attorney-General, in which Lord Russell complained pf not having been furnished with a proper copy of the pannel; and requested his trial might be postponed until the afternoon. The Lord Chief Justice answered; the King's counsel did not think his request reasonable, and would not delay the trial any longer.
The clerk of the Crown then addressed the prisoner, telling him, that if he challenged any pf the jurors, he must speak as they came to the book to be sworn, and before they had sworn.
Lord Russell asked for pen, ink, and paper, and the use of any papers he had, which request being granted, he said,
"May I have somebody write to help my «,* memory?"
Attorney-General. "Yes, a servant."
Lord Chief Justice. "Any of your servants "shall assist in writing any thing you please."
Lord Russell. " My wife is here, my lord, to "do it."
Lord Chief Justice. "If my lady please to give "herself the trouble/'
The jury being then called, Lord Russell objected to Sir Andrew Foster as not being in the list. John Martin was next called, upon which Lord Russell asked if he was possessed of a freehold of forty shillings a year, adding, he hoped none would be allowed in the pannel but those who were freeholders, for by the statute of 2 Hen. V., it was enacted, that no person shall be judged, in cases of life and death, but by persons possessing freehold property to that amount.
The Lord Chief Justice answered, that the city of London belonging much to nobility and gentry who live abroad, was an exception to this. Upon which Lord Russell requested, as it was a point of law, his counsel might be called in to argue it.
Mr. Pollexfen, Mr. Holt, and Mr. Ward, the counsel assigned to Lord Russell, were then called, and used many arguments to prove that no person could be a juryman in this case, who did not possess freehold property, in which they were opposed by the Attorney and Solicitor-General. The Lord Chief Justice, the Lord Chief Baron, Mr. Baron Street, and the Justices Windham, Jones, Leving, and Withins, gave their opinions against Lord Russell. The Lord Chief Justice then delivered the opinion of the Court in the following words :—>
"My Lord, the Court is of opinion, upon "hearing your lordship's counsel, and the "King's, that it is no good challenge to a jury, "in case of treason, that he has not freehold "within the city. But I must tell your lordship "withal, that your lordship has nothing of "hardship in this case, for notwithstanding that, "I must tell you that you will have as good a "jury, and better than you should have had in "a county of 4/., or 405. a-year freeholders. "The reason of the law for freeholds is, that no "slight persons should be put upon a jury, "where the life of a man, or his estate, comes in ** question; but in the city, the persons that are "impannelled are men of quality and substance, "men that have a great deal to lose. And there"fore your lordship hath the same in substance, "as if a challenge was allowed in freehold. It "will be no kind of prejudice to your lordship *' in this case. Therefore, if you please, apply "yourself as the Jury is called, and make your *« exceptions if you shall make any."
Upon calling over the names, Lord Russell challenged no less than one-and-thirty, a fact which can hardly be explained, but by supposing that some pains had been taken by his enemies in the selection.
Mr. North opened the case.
The Attorney-General then followed, and stated, that he should prove by evidence, that Lord Russell, the Duke of Monmouth, Lord Grey, Sir Thomas Armstrong, and Mr. Ferguson, whom he called the council of state, were to give directions for a general rising throughout the kingdom. He observed this plot required persons of interest, prudence, and secrecy, to manage it: that these gentlemen had frequent meetings for the purpose; the noble prisoner at the bar being mixed with the others, especially with Ferguson: that they had received several messages from Lord Shaftesbury, touching the general rising, and were looked upon, and acknowledged, as the persons who were to conclude and settle the time, and all other circumstances attending it: that it seemed these gentlemen could not give the Earl of Shaftesbury satisfaction to his mind, having disappointed him on the day (the 17th of November) appointed for the rising, in consequence of an account that Mr. Trenchard, whom they depended on for a thousand foot, and two or three hundred horse, had failed them, which gave Lord Shaftesbury great displeasure, and occasioned his and Mr. Ferguson's going away: that to carry on the practice, Sir T. Armstrong and Lord Grey were left out of the Council, and a new one of six persons was formed, consisting of the honourable prisoner at the bar, the Duke of Monmouth, Lord Howard, the Earl of Essex, (who he was sorry to say had that morning prevented the hand of justice on himself,) Colonel Sydney, and Mr. Hampden. These six had frequent consults; they debated in what manner they should make the rising; and Colonel Sydney dispatched Aaron Smith to invite Scotch commissioners to treat with these noble lords; in consequence of which several persons came from Scotland for the purpose, who at first demanded 30,000/., then 10,000/., and at last fell to 5000/., which they said they would take, and run all hazards; but the Council not coming to their terms, the agreement broke off the week the plot was discovered. He concluded by saying he should proceed to call witnesses to prove these facts, which God had pleased to bring to light, with as plain an evidence as ever was heard.