But though this form of indictment and trial was very frequent, and many criminals had received sentence upon it, it was still considered as somewhat irregular, and was plainly confounding by a sophism two species of treason, which the statute had accurately distinguished.

What made this refinement still more exceptionable, was, that a law had passed soon after the restoration, in which the consulting or the intending of a rebellion was, during Charles's lifetime, declared treason; and it was required, that the prosecution should be commenced within six months after the crime was committed.

But notwithstanding this statute, the lawyers had persevered, as they still do persevere, in the old form of indictment; and both Sir Harry Vane and Oliver Plunket, titular primate of Ireland, had been tried by it.

Such was the general horror entertained against the old republicans and the Popish conspirators, that no one had murmured against this interpretation of the statute; and the lawyers thought that they might follow the precedent, even in the case of the popular and beloved Lord Russel.

Russel's crime fell plainly within the statute of Charles II.; but the facts sworn to by Rumsey and Shephard were beyond the six months required by law, and to the other facts Howard was a single witness.