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CHAP. XVI.

THE ILLEGAL CONSTRUCTION PUT ON THE 25 EDWARD III. PERJURY OF THE WITNESSES. LORD RUSSELL'S SENTENCE ATTEMPTS MADE TO SAVE HIS LIFE. HIS PETITION TO THE KING, AND LETTER TO THE DUKE OF YORK. HIS REFUSAL TO ABJURE THE RIGHT 01' RESISTANCE.

It is by no means my intention to discuss at length the legal questions which are involved in the trial of Lord Russell. The first of these questions respects the competency of a jury not composed of freeholders: the second concerns the nature of his offence. By an Act of Henry V., no person is to serve on a jury, in capital cases, but freeholders to the amount of 40s. The crown lawyers argued, that this provision was repealed by the Act of the first of Queen Mary; but that Act merely repeals all laws creating treasons since the statute of Edward III., and does not at all interfere with the mode of trial. Lord Russell, therefore, was not legally tried. With respect to the second question, whoever will take the trouble to read the Act of the 25th Edward III., and look over the various prosecutions which have been brought under it, will be convinced that the present law of high treason is a law of the judges, and not of the legislature. The Act provides, that "treason shall be said," "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." Lawyers have decided that the first of these species of treason extends to any conspiracy to levy war, in order to put any personal restraint upon the King, because the graves of princes are near their prisons; or in order to depose the King, because that is a civil death; or in order to oblige him to alter his measures of government, or remove evil counsellors from about him, because these purposes cannot be effected by open force, without manifest danger to his person. Such interpretations, it is evident, are so far from flowing directly from the law, that they can only be deduced from it, by doubtful reasoning, and arbitrary definition. The second species of high treason, mentioned above, is construed to mean a rising, not against the King's person, but against his Majesty, to effect any general purpose; as to pull down all meeting-houses, destroy all enclosures, &c.* These extensions of the law of treason were attempted by Richard II. and Henry VIII. with the consent of the

* Foster's Discourses on Crown Law, c. 1. s. 3,4-,5, and 6.

legislature, but repealed by the Act of Queen Mary. * At the time Lord Russell was tried, there was no precedent which bore directly on his case. Dr. Storey was tried for conspiring with a foreign prince. Lord Cobham, who had been convicted in the reign of James I., had clearly intended to confine the King's person, till he complied with the demands of the conspirators. Plunket, who had been executed a little before, was also charged with conspiring to bring a foreign force into the realm. So little certain or clear, in short, was the interpretation given to the law in Lord Russell's case, that the act for annulling his attainder, passed in the first year of William and Mary, recites that he " was, by undue and illegal return of jurors, having been refused his lawful challenge to the said jurors, for want of freehold, and, by Partial

AND UNJUST CONSTRUCTIONS OF LAW, WRONGFULLY CONVICTED, ATTAINTED, AND EXECUTED FOR HIGH TREASON."

Without venturing to dwell any further upon my own view of this subject, I copy, with great satisfaction, the recorded sentiments of Mr. Fox — an authority, in my opinion, not easily matched by that of any lawyer. Speaking of those who died for this plot, he says, " That which is most certain in this affair is, that they had committed no overt act, indicating the imagining the King's death, even according to the most strained construction of the statute of Edward the Third; much less was any such act legally proved against them: and the conspiring to levy war was not treason, except by a recent statute of Charles the Second, the prosecutions upon which were expressly limited to a certain time, which, in these cases, had elapsed; so that it is impossible not to assent to the opinion of those who have ever stigmatised the condemnation and execution of Russell as a most flagrant violation of law and justice."

* See the trial of Hardy, and especially Lord Erskine's admirable Speech.

VOL. II. P

There were, it is true, two other legal objections made by Lord Russell; but neither appears to me to have much force in it. One was, that he had only assisted as a spectator in the consultation at which he was present; and, therefore, was only guilty of misprision of treason, at most. But this objection will, by no means, hold: for when he asked Colonel Rumsey whether he had consented to the rising at Taunton, the witness answered in the affirmative; and the evidence of Lord Howard went to prove that he was one of a select council of six, to prepare and digest the scheme of an insurrection.

Nor is there any force in the objection, that the acts proved by Rumsey and Howard were separate and distinct. They both tended to the general purpose of insurrection; and the question had been already decided in the case of Lord Stafford. *

The other remarks I have to make concern the degree of credit due to the witnesses. The first of them, Colonel Rumsey, was a man of whom Lord Russell had a bad opinion, and of whom he had spoken slightingly to Lord Cavendish. It was, therefore, not likely that he should trust him. Rumsey gave evidence of his having been at one meeting at Sheppard's: afterwards, he seems not to have been certain whether he had been at two, or whether he had heard the proceedings of the second related by Mr. Ferguson to Lord Shaftesbury. Is this likely? is it credible? Can a man of talent, or any man not an idiot, attend a treasonable meeting, and forget the circumstance within ten months? To the mind of an honest juryman such a circumstance would have borne conviction of the perjury of the witness; and that conviction would have been amply confirmed by the events of the next

* See "Case of William Lord Russell,"— "Antidote against Poison," —" Defence of Lord Russell's Innocency," &c. in the State Trials, vol. ix. See also Lord Warrington's Works.

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