The arraignment, tryal & condemnation of Algernon Sidney, Esq. for high-treason ... before the Right Honourable Sir George Jeffreys ... Lord Chief Justice of England at His Majesties Court of Kingsbench at Westminster on the 7th, 21th and 27th of November, 1683

THE TRYAL OF Algernon Sidney, Esq NOVEMBER, 21, 1683.

ALgernon Sidney, Esquire, was brought to the Bar of the Court of King's Bench by Habeas Corpus, and Proclama∣tion for Information being made, he desired Pen, Ink and Paper, which were granted him. And he also de∣sired, that two persons (viz.) Mr. Winn and Mr. Gibbs might write for him, which was also allowed by the Court.

Coll. Sidney.

My Lord, when I was last here before your Lord∣ship, I did desire a Copy of my Indictment, and I thought the Law did allow it me. But being in an hurry, carried first to a Tavern, then led through Soldiers, and surprized absolutely, I could not give that reason why I thought the Law allowed me a Copy. My Lord, I was denyed a Copy, and thereby I was de∣prived of the benefit of a special Plea I designed to have put in. This would have been a great help to your Lordship, and to me; the denyal of which hath been a great prejudice. Now, my Lord, that which I thought was Law then, I think I can give a better testimony that 'tis so now upon the Statute of 46. E. 3. wherein 'tis expressed, that tout partes & tout gents, that is, all people shall have a Copy of every Record; and it enumerates several matters, as well that against the King as other people. This is a general Law still in force: my Lord Strafford had a Copy, and my Lord Stafford, and the Lords in the Tower had Copies of their Indictments. And under favour; I think it was never more necessary than to me, there never having been, perhaps, a Charge so long, and so confused. Now, my Lord, I have a Copy tran∣scribed of this Statute.

Shewing a Paper.

Lord Chief Iustice.

We remember the Law very well. Mr. Sidney did move for a Copy of the Indictment, and the Court denyed him then, and so shall now. And yet all this while we shall deny you nothing that is Law. You shall have the right that becomes a Subject in your condition. And we must tell you, that notwithstanding all that Case we ought not to have given you so much favour (perhaps in strictness) as we did. And because you did particularly take notice of the Case of Sir▪ Henry Vane last time, I will shew you the Court did indulge more to you than was done to that person. In Sir Henry Vane's Case, by the opi∣nion of all the Judges, it was declared, that no Copy ought to be given, neither of the whole, nor any part of the Indictment, except they shew matter of Law. But your Counsel, since you went away, moved for the Copy of the Indictment; and to sa∣tisfie them, I directed the Case that you took notice of to be read in the Court. And I thought they had been sufficiently satisfied. You had the Indictment read to you in La••i••e, which was denyed in the Case of Sir Henry Vane. And there is a later Case known to most persons here. By the opinion of all the Judges of England, a Copy of the Indictment was denyed to my Lord Russel. Therefore arraign him upon the Indictment; we must not spend our time in discourses to captivate the people.

Col. Sid.

Is not this a good Law my Lord?

Holding out the Paper.

L. C. J.

You have the rule of the Court.

Mr. Just. Wythens.

Any thing the Law will allow you, you shall have; but I am sure if you did advise with your Counsel, they must tell you the same thing.

So the Clerk of the Crown called the Jury, and after several Challenges, the names of the Jury were as follow,

The Jury.

• Iohn Amger.
• Richard White.
• William Linn.
• Lawrence Wood.
• Adam Andrews.
• Emery Arguise.
• Iosias Clerke.
• George Glisby.
• Nicholas Baxter.
• William Reeves.
• William Grove &
• Iohn Burt.

L. C. J.

Look you Gentlemen of the Jury, there are some Gentlemen at the Bar, as we are informed, are apt to whisper to the Jury; 'tis no part of their duty; nay, 'tis against their duty: and therefore Gentlemen, if you hear any of them by you, that offer to whisper, or make Comments in this Cause, as you are upon your Oaths, and I doubt not but will do your duty between the King and the Prisoner; so I expect if you hear the Counsel say any thing, you will inform the Court. Let us have no Remarks, but a fair Tryal in God's Name.

Cl. of Cr.

You that are sworn look upon the Prisoner, and hearken to his Cause. He stands indicted by the Name of Al∣gernon Sidney of, &c. (as in the Indictment) your Charge is to inquire, &c.

Then Proclamation for Evidence was made.

Mr. Dolben.

May it please your Lordship, and you Gentle∣men that are sworn. This is an Indictment of High Treason pre∣ferred against Algernon Sidney, the Prisoner at the Bar. The In∣dictment sets forth, That he as a false Traitor against our most Il∣lustrious Prince, Charles the Second, his natural Lord, not having the fear of God in his heart, and on the Thirtieth of June in the Thirty Fifth Year of the King, and divers other days and times, as well before as after, in the Parish of St. Giles in the Fields, in the County of Middlesex, traiterously, with divers Traitors unknown, did conspire the Death of the King, and to levy War within this Kingdom. And to complete these Traiterous Purpo∣ses did then and there maliciously, advisedly and traiterously send one Aaron Smith into Scotland, to excite some ill disposed persons of that Kingdom to come into this, and to consult with the said Algernon Sidney and other Traitors, of and upon assistance from the Kingdom of Scotland, to carry on those Designs. And the In∣dictment sets forth further, that to perswade the people of England it was lawful to raise Rebellion, the said Algernon Sidney did cause to be written a false Seditious Libel, in which is contained these English Words, The Power is originally in the People, and that is delegated to the King. The King is subject to the Law of God as a King, as a man to the people that made him a King. In as much as he is a King, the Law sets a measure to that Objection, (&c. put in the Indictment.) This is laid to be against the duty of his Allegiance, against the peace of the King, his Crown and Dignity, and against the Form of the Statute in that Case made and provided. If we prove him guilty, we doubt not but you will find it.

Mr. Att. Gen.

My Lord, and you Gentlemen of the Jury, the Prisoner at the Bar stands indicted of the highest Crimes, the conspiring the Death of the King, and the Overthrow of the English Monarchy. Gentlemen, we shall use this Method in our Evidence. We shall shew by many Witnesses, that there was a design of raising and making a Rebellion within this Kingdom. For, Gentlemen, you must take notice, and I think there is no English Man but does believe, that for several years last past a design was laid, and for that purpose several secret Insinuations were made use of, and publick Libels spread abroad to perswade the people that the King was introducing Arbitrary Power, that he subverted all their Rights, Liberties, Properties▪ and whatever was dear to them. They indeavoured to make the world believe

the King was a Papist. And when, Gentlemen, by such Strata∣gems they had worked upon many incautelous persons, when they thought they had gotten a sufficient party, then there was a de∣sign of an open rising (for they thought all things were ripened) and that was to be in several parts of the Kingdom. Some per∣sons to effect this design were for a present Assassination of the King. Others would do it in a more fair and gentile way. They thought it below persons of that great Quality as the Prisoner is and therefore were for doing it by open Force:

When we have given that general Evidence, we shall then come to shew you what share and part the Prisoner had in this Design. For certainly he was looked upon as a very eminent person, whose Education abroad, and former practices at home had rendred him fit to advise and proceed in such Affairs. We shall prove when these matters were ripe, this Gentleman was of the Council of State, of the Six that were to manage this matter of the Rising. We shall shew the several Consultations they held: one at Mr. Hambden's House, another at the House of my Lord Russel. There we shall acquaint you what Debates they had; for they acted like very subtil Men; and there they debated, whe∣ther the Rising should be first in the Country or City, or both to∣gether. They came to a resolution it should be in both places at once. Then when they had asserted that point, they come to con∣sider the time of Rising; and upon that they thought fit to call in Aid of Scotland first; and that was this Gentleman's particular Province. For he being a man of great Secresie, was to send an Emissary into that Kingdom, and invite some persons over totreat with them about it. We shall prove that an Emissary was sent, and this Gentleman gave him a considerable Sum to bear his Charges. We shall prove that several Scotch Gentlemen, in pur∣suance of this Resolve, came here to treat with this great Council of State, about this Affair: And shall make it appear to you, that assoon as ever the least Discovery of this Plot was, these persons concealed themselves and withdrew, as the rest of the Plotters that have fled from Justice.

Gentlemen, this was not enough for this Gentleman to consult on these several Passages, but to demonstrate to the World, that his Head and Heart was intire in this Service, and that he might carry it on the more effectually, he was at this very time, when this Emissary was gone into Scotland, preparing a most Seditious and Traiterous Libel, we instance in some particular Words of it. But we shall shew you, that the whole Design of this Treatise is to perswade the People of England, that it is lawful, may, that they have a right to set aside their Prince, in c••se it appear to them, that he hath broken the Trust laid upon him by the People. Gentlemen, he does use in that Treatise se∣veral Arguments drawn from the most Rebellious Times that ever were in England, from the late Rebellion (I must needs use that

word notwithstanding the Act of Oblivion, when a Gentleman shall now attempt to do those things for which he was pardoned then) and from other Kingdoms, where Rebellion hath been pro∣sperous against Princes. Then he falls to Reasoning, and uses great Reason in the Case, That all the Power of the Prince is ori∣ginally in the People, and applies that Discourse, that the power of the King was derived from the People upon Trust, and they had already declared the King had invaded their Rights, and therefore he comes to argue, they might assume that original power they had conferred. And he tells the King, that is no hard condition; if he thinks it so, he should lay down his Crown, if not, he threatens the condition would be exacted, or otherwise should be revenged by those he had betrayed: and who but this Gentleman and his Confederates, that thought himself not only able to govern this Nation, but many Monarchies, should call him to account for it? For he lays down this Principle, That tho all the People do rise against their Prince, it is no Rebellion. The whole Book is an argument for the People to rise in Arms, and vindicate their wrongs. He lays it down, That the King has no Authority to dissolve the Parliament; but 'tis apparent the King hath dissolved many; therefore he hath broken his Trust, and invaded our Rights. And at last concludes with that passage laid in the In∣dictment, We may therefore shake off our Yoke; for 'tis not a Yoke we submitted to, but a Yoke by Tyranny (that must be the meaning of it) they have imposed on us.

Gentlemen, if we prove all these matters to you, I doubt not you will do right to the King and Kingdom, and shew your abhor∣rence of those Republican Principles; which, if put in practice, will not only destroy the King, but the best Monarchy in the World.

Mr. Sol. Gen.

Pray call Mr. West.

Who appeared.

Col. Sidney.

I pray one word, my Lord, before Mr. West be sworn, I have heard, my Lord, Mr. West hath confessed many Treasons, and I desire to know whether he is pardoned, or no.

L. C. J.

I don't know that.

Col. Sid.

My Lord, how can he be a Witness then?

L. C. Just.

Swear him: for I know no Legal Objection against him. He was a good Witness in my Lord Russel's Tryal.

Col. Sidney.

My Lord, if another did not except against him, 'tis nothing to me.

Mr. North.

Pray give an account to the Court of what you know of a general Insurrection intended in England.

Col. Sidney.

What he knows concerning me.

L. C. J.

We will take care of that, that no Evidence be given but what ought to be.

Col. Sid.

Is it ordinary that he should say any thing, unless it be to me and my Indictment?

L. C. J.

Mr. Sidney, you remember in all the Tryals about the late Popish Plot, how there was first a general account given of the Plot in Coleman's Tryal, and so in Plunket's, and others: I don't doubt but you remember it. And Sir William Jones, a∣gainst whose Judgment, I believe, you won't object, was Attorney at that time.

Mr. North.

Mr. West, What do you know of the general Insur∣rection lately designed?

Mr. West.

My Lord, I have had the honor to know Collonel Sidney several years; but I don't remember that I ever saw him from the time I came acquainted with any part of the Conspira∣cy, till the Discovery that was at the Council.

Mr. North.

Pray give an account of what you know of the Plot in general.

Mr. West.

My Lord, in October last Captain Walcot came to me, and told me that my Lord Shaftesbury had designed an In∣surrection in November; I used some Arguments to disswade him from it. But a little afterwards he came and told me the thing was wholly disappointed, and then it went off, and my Lord Shaftesbury went for Holland. Collonel- Romsey afterwards about Christmass said there were some Lords and Gentlemen intended to make an Insurrection, the persons were the Duke of Monmouth, my Lord of Essex, my Lord Howard, my Lord Russel, the Prisoner at the Bar, and Mr. Hambden Junior. After some time he told me they had altered their measures, and were resolved not to venture upon an Insurrection in England, till they had a concur∣rency in Scotland. Afterwards I was not privy to any thing else, but what I had the Report of from Mr. Nelthorp and Mr. Ferguson. Mr. Nelthorp told me the Prisoner had said—

Col. Sidney.

My Lord, I am very unwilling to interrupt the Gentleman—

Lord Chief Iustice.

You must not interrupt the Witness. Go on, Sir.

Mr. West.

Mr. Nelthorp told me, the Prisoner at the Bar had sent Aaron Smith into Scotland, and given him a sum of mony to bear his Charges, and sent Letters to some Scotch Gentlemen to invite them to Town. The Letter bore a Cant of settling some business in Carolina; but the business was coming up about the Insurrection. After this Mr. Smith returned, and some Scotch Gentlemen with him; and soon after Mr. Ferguson gave an ac∣count of that Affair, and said, the Scotch proposed, if they might have thirty thousand pounds in ready money, they would under∣take to make an Insurrection in Scotland without the concurrence of England. He said this Proposal was agreed to, and money would be soon ready; and he said, that Sheppard would return the money. That the Arms were ready bought, and my Lord of Argile would go into Scotland, and head the Scots. He told me

when things were thus settled, some difference arose about raising the money; and at last he told me, my Lord Gray did offer to raise ten thousand pounds out of his own Estate, if the rest would pay their proportion. Then the Scots came down to 'less, but that would not be complyed with. The places for the Rising were Bristoll, Taunton, York, Chester, Exeter, London. That there had been some Debates whether they should begin at London, or the other places; and at last it was resolved, they should begin at Lon∣don with the rest of the places.

My Lord, this was the Account I had of the matter in general of Mr. Ferguson; but he said they were disappointed. Afterwards he told me the Prisoner at the Bar and Major Wildman were very in∣strumental in working of it off▪ because they could not agree upon the Declaration to be made upon the Insurrection. The English were for a Common wealth; but the Scotch Gentlemen answered, Fairly it might come to it in time, but the Noblemen there would not agree to it at present. As to the Prisoner in particular I know nothing, and did never speak with him till since the Dis∣covery.

Mr. Att. Gen.

Collonel Romsey.

Sworn.

Mr. North.

Pray Sir, will you give the Court an account of what you know of any Insurrection intended, and how they de∣signed to carry it on▪

Col. Romsey.

My Lord, the latter end of October, or beginning of November, I was desired by my Lord Shaftesbury to go to Mr. Sheppards to know of the Gentlemen that were met there, what was done about the Rising intended at Taunton; and I had their answer, that Mr. Trenchard had fail'd them, and that it must cease for that time. That was all at that time.

Mr. Sol. Gen.

What else do you know of any Insurrection af∣terwards?

Col. Romsey.

After that we had several meetings at Mr. West's Chamber, where we had divided the City into twenty parts, and seven parts Mr. Goodenough had brought an account of; the other thirteen he said nothing of; for he had not spoke with those that were to tell him how many men they would afford. There was there Captain Walcot, Mr. West, the two Goodenoughs, Mr. Borne, Mr. Wade, and my self.

L. C. J.

What was the Result of those Debates?

Col. Romsey.

To see what number of men they could produce in the City for the Insurrection.

L. C. J.

Was there a Rising designed?

Col. Romsey.

Yes.

L. C. J.

And did these people meet?

Col. Romsey.

There was no time set.

Mr. Sol. Gen.

When was the meeting?

Col. Romsey.

There were several meetings in March, and April, and May.

Mr. Sol. Gen.

After the meeting at Sheppards?

Col. Romsey.

Yes, a great while. It ceased, I think, six weeks or three months?

L. C. J.

Who did you meet with at Mr. Sheppards?

Col. Romsey.

There was the Duke of Monmouth, my Lord Gray, my Lord Russel, Sir Thomas Armstrong, Mr. Ferguson, and Mr. Sheppard.

Mr. Sol. Gen.

Who did you expect should head this Army?

Col. Romsey.

That was never said any thing of.

Mr. Att. Gen.

Who were to manage the Rising?

Col. Romsey.

We that met there.

Mr. Att. Gen.

Had you no expectation of great men?

Col. Romsey.

Mr. West told me, and Mr. Goodenough, that there was a Council, which were the Duke of Monmouth, my Lord Essex, my Lord Howard, Collonel Sidney, Mr. Hambden, and my Lord Russel, there was Six.

L. C. J.

What did he tell you of them six?

Col. Romsey.

He told me they were managing a Business with Scotland.

Lord Chief Iustice.

A Business, pray speak plain, tell all you know.

Col. Romsey.

For the Insurrection.

L. C. J.

Say so then, we know nothing of the Business you were about.

Col. Romsey.

My Lord, Mr. West had that Discourse with my Lord Howard I never had; he is more fit to speak to that than me.

L. C. J.

Speak your own knowledge, and no more.

Mr. Jones.

After the death of my Lord Shaftesbury, who were the Managers, and were to carry it on?

Col. Romsey.

I told you Mr. West and Mr. Goodenough did tell me the Duke of Monmouth, my Lord Essex—

Mr. Att. Gen.

He told you so before. Do you know there was an Insurrection then intended?

Col. Romsey.

Yes, because we met towards the management of it, the company that met at Mr. West's Chamber, and other places.

Mr. Att. Gen.

What discourse had you with Mr. Ferguson about it?

Col. Romsey.

Not about those Gentlemen.

Mr. North.

The next thing we shall shew, shall be that the Scotch men came to Town.

Col. Sidney.

My Lord, I must ever put you in mind, whether it be ordinary to examine men upon Indictments of Treason con∣cerning me that I never saw, nor heard of in my life.

L. C. J.

I tell you, all this Evidence does not affect you, and I tell the Jury so.

Col. Sidney.

But it prepossesses the Jury.

Mr. Keiling called and sworn.

Mr. Att. Gen.

I ask you in general, what you know of the Ri∣sign to have been last Spring?

Mr. Keiling.

My Lord, It was some time last Summer Mr. Good∣enough came to me, and brought me three Papers numbred on the back-side; I asked him to what end he delivered them me? he told me, One was for my self, and I was to deliver the other Two to whom I could Trust in the two Divisions. I asked him, What was the Design? he said, To Raise Men; sayes I, Do you design a general Insurrection? He said, if he did not, if the King was taken off this would do well; for then People would know how to have recourse to a formidable Body. And I have heard him say, That Collonel Sidney, whom I don't know, had a con∣siderable part in the management of that Affair.

Mr. Att. Gen.

We Charge him with Conspiring, and there must be Confederates in the Case. Now then we come to the Pri∣soner, We will call my Lord Howard, that was one of the Per∣sons that did Consult.

The Lord Howard Sworn.

Mr. Att. Gen.

Pray acquaint my Lord and the Jury of your knowledge of what Transactions there have been with the Pri∣soner about this Affair of the general Rising.

Lord Howard.

Truely my Lord, In the entring of the Evi∣dence I am about to give, I cannot but observe what a natu∣ral uniformity there is in Truth. For the Gentleman that have been before, have so exactly instanced, in every particular, with what I have to say, that two Tallys could not more exactly fall into one another, though, I confess I had not seen their Faces, till the Plot brake out, for some Months before.

My Lord, and Gentlemen of the Jury, About the middle of January last, it was considered by some of us that met together, That it was very necessary and expedient to an Enterprise that had been long in hand, and fallen flat then, that it should be revi∣ved by some Consult or Caball that should be set up to give Life to it, and Governance to the Motions of it. The first (for ought I know) Movers of this, were the Duke of Monmouth, the Gen∣tleman at the Bar, and my Self: And there we did agree, That we should bethink our selves of some few, we were willing it should not exceed Five▪ at the most Seven. This Agreement being at first between us Three; I remember the Duke of Monmouth un∣dertook to ingage my Lord Russel, and my Lord Salisbury; and this Gentleman Collonel Sidney for my Lord of Essex, and Mr. Hamb∣den; and these being put together, did presently constitute a lit∣tle Caball of as great a Number as was intended. This being setled among them, it was within a few dayes after, I can't cer∣tainly tell when, but between the middle and latter end of Ja∣nuary, that I was told, That the Persons had agreed to enter into this Conjunction of Counsels; and in order to that, they had ap∣pointed a Meeting at Mr. Hambden's House, to which I was invi∣ted. This in time was between the middle and latter end of Ja∣nuary, but I can't tell exactly. When we came there, there was

all those Gentlemen I before-named, the Duke of Monmouth, my Lord Essex, my Lord Russel, Collonel Sidney, Mr. Hambden, and my Self. It was at Mr. Hambden's House, which Ranges on the same Row with Southampton House: And being met, Mr. Hamb∣den, I suppose, did think it most properly belonged to him, to take upon him the part as it were to open the Sessions, that was to give us a little account of the Reason, End, and Intention of that Meet∣ing: In which Discourse, he took occasion to recapitulate some Design, that had been before chiefly carried on by my Lord Shaftesbury, before this time Dead; and also took Notice of the ready disposition and inclination of the Minds of Men to go on with it; and did give one instance of his Judgment of it, That it being a Design communicated to so many, it had not been so much as Revealed, or a murmur or whisper gone about it: From whence he took occasion to tell us, That it was absolutely necessary for the future, there should be some Counsel that should be as a Spring a little to Guide and Govern the Motions of the rest, for that there were divers things to be taken care of, which if not taken care of by particular Persons, would all miscarry. This was the Substance of the Prologue and Introduction he made. From hence he made a Transition to some particular Things that he thought was most principally to be taken Care of. And though it is impossible for me to remember the Order and Method in which we Discoursed, or who said this or that, but that which the Sence of all resulted to was this: That since we did not come prepared for it, we should consider what were the Things that would hereafter challenge our particular Care, that was, The time When, the places Where, and the Persons by whom these Things should be carried on. This led into some particular Discourse concerning some of these Heads: For the Time, that it should be shortly, lest the Minds of Men should chil: And then as to the place Where, whether in the City or Country, or both joyntly. In all these, some Opinions were given, but not setled to any Resolution, but they were committed to our Thoughts to be digested afterwards. But these being the Things that every one was to take upon his thoughts, there was this Prere∣quisite to the undertaking, and that was to consider what Maga∣zines were to be got; and that led to another particular, which was, With what they should be gotten, and that was Money; and there∣upon was propounded a considerable Sum to be raised; and as I remember, the Sum propounded by the Duke of Monmouth was Twen∣ty-Five Thousand Pounds, or Thirty Thousand Pounds. And then it was considered, how it should be raised without drawing Observa∣tion or Jealousy. These are only the Heads that were then agreed on, hereafter to be better considered. But the present Resoluti∣on that was taken, was, That before any Procedure was made in any of these things, or any advance towards the Undertaking; the first Thing to be considered, was, How to make a Coali∣tion of Councels between Scotland, and what we were doing here; and for that purpose we should bethink our selves of some ut Per∣son

to be sent thither to Unite us into one Sence and Care. This is as much as Occurs to my Memory upon that Meeting. About a Fortnight or three Weeks after, which I suppose carried it to the middle of February next we had another Meeting, and that was at Southampton House at my Lord Russels, and there was every one of the same Persons; and when we came there, there happened to fall in a Discourse which I know not how it came in, but it was a little warmly urged, and thought to be untimely, and unseasonable; and that I remember was by Mr. Hambden, who did tell us, That ha∣ving now United our selves into such an Undertaking as this was, it could not but be expected, that it would be a Question put to many of us; To what End all this was? Where it was we inten∣ded to Terminate? Into what we intended to Resolve? That these were Questions he met with; and it was probable, every one had or would meet with from those Persons, whose Assistance we ex∣pected; and that if there was any thing of a Personal Interest de∣signed or intended, that there were but very few of those, whose Hearts were now with us, but would fall off: And therefore, since we were upon such an Undertaking, we should resolve our selves into such Principles, as should put the Properties and Liberties of the People into such Hands, as it should not be easily Invaded by any that were Trusted with the Supream Authority of the Land; and it was mentioned to Resolve all into the Authority of the Par∣liament. This was moved by him, and had a little harshness to some that were there; but yet upon the whole Matter we general∣ly consented to it, That it was nothing but a Publick Good that we all intended. But then after that, We fell to that which we char∣ged our selves with at the first Meeting, and that was concerning sending into Scotland, and of settling an Understanding with my Lord of Argyle: And in order to this, it was necessary to send a Messenger thither to some Persons, whom we thought were the most leading Men of the Interest in Scotland. This led us to the insisting on some particular Persons; the Gentlemen named, were my Lord Melvin, Sir John Cockram, and the Cambells; I am sure it was some of the Alliance of my Lord of Argyle, and I think of the Name. As soon as this was propounded, it was offered by this Gentleman Collonel Sidney, that he would take the Care of the Person; and he had a Person in his Thoughts, that he thought a very sit Man to be intrusted; one or two, but one in special, and he named Aaron Smith to be the Man, who was known to some of us, to others not; I was one that did know him, and as many as knew him, thought him a proper Person. This is all that Occurs to me that was at the second Meeting, and they are the only Consults that I was at.

Mr. Att. Gen.

What was he to do?

Lord Howard.

There was no particular Deed for him, more than to carry a Letter. The Duke of Monmouth undertook to bring my Lord Melvin hither, because he had a particular dependance upon him, and I think some Relation to his Lady: But to Sir John

Cockram there was a Letter to be sent under the disguise of carrying on some business of the Plantation in Carolina. This Letter I sup∣pose was Writ by my Lord Russel (though I know it not) for he was personally known to my Lord Russel, and I don't know that he was known to any of us. About three Weeks after this, then he was dispatched I suppose.

Mr. Att. Gen.

To what purpose were these Gentlemen to come up?

Lord Howard.

These were to acquaint us how they found Scot∣land tempered, and what Opportunities or Advantages there was or might be of putting them into a Commotion, and how Men might be Raised, and how they would fall under Argyle, and also to keep Time and Place with us. After this, I was with Col. Sidney, when he was going into London, and he did take out several Guin∣nies, I can't tell how much 'twas, I suppose they might be about Sixty, and put them into his pocket (and set me down at my Lodg∣ing) which he said were to give Aaron Smith; whether he gave it or no, I don't know; and after that he was sent.

Mr. Att. Gen.

Who told you so?

Lord Howard.

Col. Sidney, For I was inquiring of him; and he said, he had not heard of him in three Weeks, or but once when he was about New Castle. After this, I had occasions that called me into the Country, and there I was. Some time after that, I went to the Bath: And this is all the Account I can give.

Mr. Soli. Gen.

Do you know that Aaron Smith did go?

Lord Howard.

I know nothing but by hear-say. Col. Sidney told me, he was gone, and was upon the Road, and he heard from him about New Castle.

Lord Ch. Iust.

Did you understand by the discourse after he was gone, that he went in pursuance of that Debate?

L. Howard.

Yes my Lord, That was the whole end of his going.

Mr. Just. Wythens.

I think you say, that Gentleman (speaking of Col. Sidney) undertook to send him?

L. Howard.

Yes, he did.

L. Ch. Just.

Will you ask him any Questions?

Col. Sidney.

I have no Questions to ask him.

Mr. Att. Gen.

Silence—You know the Proverb. The next step is to shew you my Lord, that these persons came up immediate∣ly after Aaron Smith went down thither; and according to that which was said to be the Shadow and Pretence of their coming hither, they pretended they came about Carolina business. Sir Andrew Foster and Mr. Blathwaite.

Sir Andrew Foster Sworn.

Mr. Att. Gen.

Pray Sir, give an account what Scotch Gentlemen came up lately.

Sir Andrew Foster.

My Lord, About the end of the Spring, or beginning of Summer, as I remember, these Gentlemen Sir John Cockram, and Commissary Monro, and the two Cambbels Father and Son, came up hither. I did not see the Father at all, but I saw

the Son the day of the Lord Russels Tryal; but the other two, I think I saw a little before the Discovery of the Plot.

Mr. Att. Gen.

What did they pretend they came about?

Sir Andrew Foster.

They pretended they came to make a Pur∣chase in Carolina, and I saw their Commission from the Persons said to be concern'd in that Design.

Lord Ch. Iust.

Who do you speak of?

Sir Andrew Foster.

Sir John Cockram and Commissary Monro.

Mr. Att. Gen.

As soon as the Rumour came of the Plot, What became of those Gentlemen?

Sir Andrew Foster.

Sir John Cockram absconded, but Commissary Monro never absconded, and the Cambels I heard were seized, changing their Lodging from place to place.

Mr. Atterbury Sworn.

Mr. Att. Gen.

Mr. Atterbury, Will you give my Lord and the Jury an Account what you know of these Scotch men, their absconding and lying hid.

Mr. Atterbury.

My Lord, Upon the latter end of June, or the be∣ginning of July; the beginning of July it was, I was sent for into London upon a discovery of some Scotch Gentlemen that lay about Black-Fryers; and when I came down there, there was the Com∣mon Sergeant and some others, had been before me, and found them making an escape into a Boat.

Mr. Att. Gen.

Who were they?

Mr. Atterbury.

Sir Hugh Cambel, and Sir John Cockram, and one that was committed to the Gate-House by the Counsel as soon as brought thither.

Mr. Att. Gen.

We shall end here, my Lord: How long had they been in Town?

Mr. Atterbury.

They had been in Town some little time.

Mr. Att. Gen.

We have done with this piece of our Evidence. Now to shew that while this Emissary was in Scotland, at the same time the Colonel (which will be another Overt Act of the Treason) was VVriting a Treasonable Pamphlet. I will call you the VVit∣nesses. It is all of his own writings. Sir Philip Lloyd.

Mr. Att. Gen.

Sir Philip Lloyd, Pray will you look upon those Papers, and give my Lord and the Jury an account where you found them.

Sir Philip Lloyd.

I had a Warrant my Lord, from the Secretary by the King and Council, to seize Mr. Algernon Sidney's Papers; and pursuant to it, I did go to his House, and such as I found there I put up. I found a great many upon the Table, amongst which were these, I suppose it is where he usually writes, I put them in a Pil∣lowbear I borrowed in the House, and that in a Trunk; I desired Coll. Sidney would put his Seal upon them, that there should be no mis∣take; he refused, so I took my Seal, and Sealed up the Trunk▪ and it was carried before me to Mr. Secretary Jenkins Office. VVhen the Committee sate, I was commanded to undo the Trunk, and I did

so, and sound my own Seal upon it. And I took the Papers out of the Bagg I put them into before.

L. Ch. Just.

Was Col. Sidney present when you seized these Papers?

Sir Phil. Lloyd.

Yes.

Mr. Att. Gen.

Are these some of those Papers?

Sir Phil. Lloyd.

Yes, I verily believe it.

Mr. Att. Gen.

In the next place, I think we have some Papers of his particular Affairs which will prove his hand. Call Mr. Shep∣pard, Mr. Cooke and Mr. Cary.

Mr. North.

Sir Phil. Lloyd, When were they Seized?

Sir Phil. Lloyd.

Towards the latter end of June my Lord.

Iury-Man.

Which June?

Sir Phil. Lloyd.

Last June.

Mr. Sheppard Sworn.

Mr. Att. Gen.

Pray will you look upon those Writings

(shewing the Libel)

Are you acquainted with Col. Sidney's hand?

Mr. Sheppard.

Yes, My Lord.

Mr. Att. Gen.

Is that his hand Writing?

Mr. Sheppard.

Yes Sir I believe so. I believe all these Sheets to be his hand.

Mr. Att. Gen.

How come you to be acquainted with his hand?

Mr. Sheppard.

I have seen him write the indorsement upon seve∣ral Bills of Exchange.

Mr. Cary Sworn.

Col. Sidney.

My Lord, I desire you would please to consider this, That Similitude of hands can be no evidence.

L. Ch. Just.

Reserve your self till anon, and make all the advan∣tagious Remarks you can.

Mr. Att. Gen.

Have you had any dealing with him?

Mr. Cary.

I never saw him write to my knowledge more than once in my life, but I have seen his Indorsement upon Bills, and 'tis very like that.

L. Ch. Just.

Do you believe it is his hand as far as you can guess?

Mr. Cary.

My Lord, It is like what came to me for his Hand∣writing.

L. Ch. Just.

And you believe it to be his Hand?

Mr. Cary.

Yes.

Mr. Cooke Sworn, and the Papers shewn him.

L. Ch. Just.

What say you Mr. Cooke?

Mr. Cooke.

My Lord, I did never see Col. Sidney Write, but I have seen several Notes that have come to me with Indorsement of his Name, and we have paid them, and 'tis like to this.

L. Ch. Just.

And you were never called to account for mispay∣ment?

Mr. Cooke.

No, my Lord.

Mr. Att. Gen.

I pray it may be read. We will read as much as is necessary to prove the Inditement.

Col. Sidney.

I pray it may be all read.

L. Ch. Just.

Mr. Attorney must have what part he desires read,

and you shall have what part you will have read afterwards.

Col. Sidney.

I desire all may be read.

Mr. Att. Gen.

Begin there. Secondly, There was no Absurdity in this, because it was their own Case.

Clerk

Reads.

2dly. There was no Absurdity in this, tho it was their own Case; but to the contrary, because it was their own Case: that is, concerning Themselves only, and they had no Superiour. They only were the Competent Judges, they decided their Controversies, as every man in his own Family doth, such as arise between Him and his Children, and his Servants. This Power hath no other restriction, than what is put upon it by the municipal Law of the Country, where any man, and that hath no other force, than as he is understood to have consented unto it. Thus in England every man (in a Degree) hath a right of Chastizing them; and in many places (even by the Law of God) the Master hath a power of Life and Death over his Ser∣vant: It were a most absurd Folly, to say, that a man might not put away, or in some places kill an Adulterous VVife, a Disobedient Son, or an Unlawful Servant, because he is Party and Judge; for the Case doth admit of no other, unless he had abridged his own right by entring into a Society, where other Rules are agreed upon, and a Superiour-Judge constituted, there being none such between King and People: That People must needs be the Judg of things hap∣pening between Them and Him whom they did not constitute, that they might be Great, Glorious, and Rich; but that they might Judge them, and fight their Battles; or otherwise do good unto them as they should direct. In this sence, he that is Singulis Major, and ought to be obliged by every man in his Just and Lawful com∣mands tending to the Publick Good: And must be suffered to do nothing against it, nor in any respect more than the Law doth allow.

For this Reason Bracton saith, that the King hath three Superiours, to wit, Deum Legem & Parliament'; that is, the Power Originally in the People of England, is delegated unto the Parliament. He is subject unto the Law of God as he is a man to the people that makes him a King, in as much as he is a King: the Law sets a measure unto that Subjection, and the Parliament Judges of the particular Cases thereupon arising: He must be content to submit his Interest unto Theirs, since he is no more than any one of them, in any other respect than that He is by the Consent of all, raised above any other.

If he doth not like this Condition, he may renounce the Crown; but if he receive it upon that Condition, (as all Magistrates do the Power they receive) and Swear to perform it, He must expect that the Performance will be Exacted, or Revenge taken by those that he hath Betrayed.

If this be not so, I desire to know of our Author, how one or more men can come to be guilty of Treason against the KING, As Lex fa∣cit ut sit Rea. No man can owe more unto him than unto any other▪ or he unto every other man by any rule but the Law; and if he must not be Judg in his own Case, neither he nor any other by Pow∣er

received from him, would ever try any man for an Offence against him, or the Law.

If the King, or such as he appoints, cannot Judge him, he cannot be Judged by the wayes ordinarily known amongst us. If he or other by Authority from him may Judge, he is Judge in his own Case, and we fall under that which he accounts the utmost of all absurdities: if a remedy be found for this, he must say that the King in his own Case may Judge the People, but the People must not Judge the King, because it is theirs; that is to say, the Servants entertained by the Master may Judge him, but the Master must not Judge the Servant whom he took only for his own use. The Magistrate is bound by no Oath or Contract to the People that Created him, but the People is bound to its own Creature, the Magistrate.

This seems to be the ground of all our Authors follies; he can∣not comprehend that Magistrates are for or by the People, but makes this Conclusion, as if Nations were created by or for the Glory or Pleasure of Magistrates, and affect such a Piece of non∣sence; it ought not to be thought strange if he represent, as an ab∣surd thing, that the Headless Multitude may shake off the Yoke when they please. But I would know how the Multitude comes under the Yoke, it is a badge of Slavery. He sayes that the Power of Kings is for the preservation of Liberty and Property. We may therefore change or take away Kings without breaking any Yoke, or that made a Yoke, which ought not to be one; the In∣jury is therefore▪ in Making or Imposing, and there can be none in breaking it.

That if there be not an injury, there may perhaps be an incon∣venience; if the headless Multitude may shake off the Yoke, I know not why the Multitude should be concluded to be headless; it is not alvvays so. Moses was head of the Multitude that went out of Aegypt, Othniel led them against the King of Mesopitamia, under the conduct of Phaebidas; they obtain'd a Victory against the Moabites, they had the like success under Shamger, Barac, Gidion, Jeptha, Samuel, Sampson, and others against Cannanites, Midia∣nites, Philistines and others; the Multitude that opposed Saul and Ishbosheth had David for its head; and the Ten Tribes that rejected Reoboam chose unto themselves Reoboam; the Athenians rising a∣gainst the Thirty Tyrants had Thracibulus; those that drave—from Thebes vvere conducted by Pelopidas: vvhen the Romans drave out the Tarquins, They chose Brutus and Publicola, and they de∣stroyed the decem Jurii under Horatius and Vellerius. All the Multitudes that afterwards revolted from them under Mauritius, Telerius, Spartanus, and others, were not Headless; and we know of none that were, but all either found Heads, or made them. The Germans set up Arminius; the Britans, and others in latter times, the Cartinians, that rise against Peter the cruel, had the Lord De∣tracta Mara.

The French, when they grew weary of the corrupted Races of Pharomond and Pepin, and the same Pepin and Hugh Capet: The Scots when they slew James the Third, had his Son to be their head; and when they deposed and imprisoned Queen Mary, the Earl of Mur∣ray and others supplyed the want of Age that was in her Son: And in all the Revolutions we have had in England, the people have been headed by the Parliament, or the Nobility and Gentry that composed it; and when the Kings failed of their Duties; by their own Au∣thority called it. The multitude therefore is not ever headless, but doth either find or create heads unto it self, as occasion doth requite; and whether it be one man, or a few, or more, for a short or a longer time, we see nothing more regular than its motions. But they may, saith our Author, shake off the Yoke; and why may they not, if it prove uneasie or hurtful unto them? Why should not the Israelites shake off the Yoke of Pharaoh, Jabin, Sisera, and others that op∣pressed them?

When pride had changed Nebuchadnezzar into a beast, what should perswade the Assyrians not to drive him out amongst Beasts, until God had restored unto him the Heart of a Man? When Tarquin had turned the Legal Monarchy of Rome into a most abominable Tyranny, why should they not abolish it? And when the Pro∣testants of the Low-Countries were so grievously oppressed by the power of Spain; under the proud, cruel and savage conduct of the Duke of Alva, why should they not make use of all the means that God had put into their hands for their deliverance? Let any Man who sees the present state of the Provinces that then united themselves, judge whether it is better for them to be as they are, or in the condi∣tion unto which his fury would have reduced them, unless they had, to please him, renounced God and their Religion: Our Author may say, they ought to have suffered: The King of Spain by their resistance lost those Countries; and that they ought not to have been Judges in their own case. To which I answer, That by resisting they laid the foundation of many Churches, that have produced multitudes of men, eminent in gifts and Graces; and established a most glorious and hap∣py Commonwealth, that hath been since its first beginning, the strong∣est Pillar of the Protestant Cause, now in the World, and a place of refuge unto those who in all parts of Europe have been oppressed for the name of Christ: Whereas they had slavishly, and, I think I may say, wickedly as well as foolishly, suffered themselves to be butchered, if they had left those empty Provinces under the power of Anti Christ, where the name of God is no otherwise known than to be blasphemed.

If the King of Spain desired to keep his Subjects, he should have governed them with more justice and mercy; when contrary unto all Laws both Humane and Divine, he seeks to destroy those he ought to have preserved, he can blame none but himself, if they deliver themselves from his tyranny: and when the matter is brought to

that, That He must not reign, or they over whom he would reign, must perish; the matter is easily decided, as if the question had been asked in the time of Nero or Domitian, Whether they should be left at liberty to destroy the best part of the World, as they en∣deavoured to do, or it should be rescued by their destruction? And as for the peoples being Judges in their own case, it is plain, they ought to be the only Judges, because it is their own, and only con∣cerns themselves.

Mr. Att. Gen.

The latter end, the last sheet of all, §. 35.

L. C. J.

The argument runs through the book, fixing the power in the people.

Cl. of the Cr.

The general revolt of a Nation from its own Magi∣strates, can never be called rebellion.

Mr. Att. Gen.

§. 37.

Cl. of Cr.

The power of calling and dissolving Parliaments is not in the King.

Mr. Att. Gen.

So much we shall make use of; if the Co∣lonel please to have any other part read to explain it, he may.

Then the Sheets were shewn to Col. Sidney.

Colonel Sidney.

I do not know what to make of it, I can read it.

L. C. J.

Ay, no doubt of it, better than any man here. Fix on any part you have a mind to have read.

Colonel Sidney.

I do not know what to say to it, to read it in pie∣ces thus.

L. C. J.

I perceive you have disposed them under certain heads: To what heads will you have read?

Colonel Sidney.

My Lord, let him give an account of it that did it.

Mr. Att. Gen.

My Lord, we will not delay Colonel Sidney from entring on his defence, only we have this piece of Evidence to give further. One of his Complices was my Lord Russel, we will give in Evidence his Conviction. We will only ask my Lord Howard, Was your Lordship sworn as a Witness at the Tryal of my Lord Russel?

L. Howard.

Yes▪

Mr. Att. Gen.

Whether or no, when you met, were there in those debates any reflections upon the King, that he had broken his duty?

L. Howard.

Not that I remember.

Mr. Att. Gen.

Why would you rise?

L. Howard.

If you mean upon the misgovernment, not personally upon the King?

Mr. Att. Gen.

Ay.

L. Howard.

Yes, and principally and chiefly that, which we thought was the general disgust of the Nation, the imposing upon the City at that time.

Mr. Iust. Wythins.

That was complained of at that time?

L. Howard.

Yes, my Lord, We took it all along to be the chief grievance.

L. Ch. Iust.

Have you any more Witnesses?

Mr. Att. Gen.

Only the Record.

Mr. Sol. Gen.

I know there is no time mispent to make things clear. If the Jury have a mind to have the words read again——

L. Ch. Iust.

If they have a mind, let it.

Then Mr. Trinder was Sworn, and testified it to be a true Copy of the Record, and said he examined it at Fishmongers-Hall with Mr. Tanner.

Then the Record of the Conviction of the Lord Russel was read.

L. Ch. Iust.

What will you go to next, Mr. Attorney?

Mr. Sol. Gen.

We have done, unless the Jury desire to have the words of the Libel read again.

(But they did not.)

Col. Sidney.

My Lord, I desire to know upon what Statute I am In∣dicted.

Mr. Att. Gen.

My Lord, I will give as plain an Answer, You are Indicted upon the old Statute of 25 E. 3.

Col. Sidney.

Then I desire to know upon what branch of that Sta∣tute?

Mr. Att. Gen.

Why, I will acquaint you, 'Tis upon the first branch of that Statute, for Conspiring and Compassing the Death of the King.

Col. Sidney.

Then I conceive, what does not come within that, does not touch me.

Mr. Att. Gen.

Make what Inferences you please Colonel, we will answer you.

Col. Sidney.

I desire to know what the Witnesses have sworn against me upon that point?

Mr. Att. Gen.

Go on, You have heard the Witnesses as well as we.

L. Ch. Iust.

He says, You are Indicted upon the Statute of 25 E. 3. which Statute makes it High Treason to Conspire the Death of the King, and the Overt▪Act is sufficiently set forth in the Indict∣ment; now the Question is, whether 'tis proved?

Col. Sidney.

They have proved a Paper found in my Study of Cali∣gula and Nero, that is Compassing the Death of the King, is it?

L. C. J.

That I shall tell the Jury. The point in Law you are to take from the Court, Gentlemen: Whether there be Fact sufficient, that is your duty to consider.

Col. Sidney.

I say my Lord, that since I am Indicted upon that Statute, I am not to take notice of any other. I am Indicted for Con∣spiring the Death of the King, because such a Paper is found in my House; Under favour, I think that can be nothing at all to me. For though Sir Philip Lloyd did ask me, whether I would put my Seal to it, he did not ask me till he had been in my Closer, and I knew not what he had put in, and so I told him I would not do it. Then come these Gentlemen upon similitude of hands. My Lord, We know what similitude of hands is in this Age. One told me within these two days, that one came to him, and offered him to counterfeit any hand he should shew him in half an hour. So then, my Lord, I have nothing to say to these Papers. Then for point of Witness, I cannot be Indicted, much less Tried or Condemned on 25 E. 3. for by that Act there must be two Witnesses to that very branch unto which the Treason does relate, which must be distinguished. For the Levying of War, and Conspiring the Death of the King, are two distinct things, distinct in nature and reason, and so distinguished in the Sta∣tute. And therefore the Conspiring the Death of the King is Treason, and the other not. 1 E. 6. 12. 5 E. 6. 11. does expresly say, there must be two Witnesses to either of these Acts. Now here is my Lord Howard, (I have enough to say of him by and by) 'Tis he only who speaks of six men, whom he calls a select Council, and yet selected by no man in the world. I desire to know who selected my Lord Howard? Who selected me? If they were selected by no body, 'tis a Bull to say they were a select Council. If they were not selected, but erected themselves into a Cabal, then they have either confidence in one another, or find they are near equally able to as∣sist in the design. Here is nothing of all this,—These six men were strangers to one another. For my own part I never spake with the Duke of Monmouth above three times in my life, and one time was when my Lord Howard brought him to my House and cozened us both. He told the Duke I invited him, and he told me the Duke invited himself, and neither of them was true. Now that such men as these are, not hardly knowing one another, should presently fall into a great and intimate friendship, and trust and management of such businesses as these are, is a thing utterly improbable, unless they were mad. Now I do find in my Lord Howards Deposition against my Lord Russel, that they were in prosecution of my Lord Shaftsbury's design; and yet he acknowledges the Duke of Monmouth said he was mad, and he himself said so too. Now that they should join with four more in the prosecution of the design of a madman, they must be mad too. Now whether my Lord Howard would have you think he was mad, because a madman cannot be guilty of Treason, I cannot tell. My Lord Howard in his last Deposition at my Lord Russel's Trial, fixes the two meetings, one about the middle of January, the other ten days after: Now he fixes one to be the latter end of Janu∣ary, the other the middle of February. Then he makes it to be the

prosecution of my Lord Shaftsbury's design. I do not find that any one there had any thing to do with my Lord Shaftsbury, for my part I had not. I had not seen his face in two years. Then, my Lord, that I go upon is, whatever my Lord Howard is, here is but one Wit∣ness. The Law of God and the Law of man, understood and taken by all men, does require two Witnesses; Moses says so, so the A∣postles the same after him, and Christ says the same, That every matter is to be established by two Witnesses. There ought to be two Witnesses to the same thing. Now for one to come and tell a Tale of a Tub, of an imaginary Council, and another of a Libel, a Paper written no body knows when, is such a thing, you can never go over it. But if the Law of God be, that there must be two Witnes∣ses to the same Fact▪ there is an end of this matter. And under the Judicial Law the penalty would be in this Case, to put a man to death. Now here there are but two things, which if allowed of, no body will be safe for Perjury. The one is to suffer men to give their testimony, one to one thing, and another to another, that the fraud cannot be discovered; and the other is to take away the punishment. Now the punishment is taken a∣way in some measure: and do but take away the other point whereby the fraud cannot be discovered, and then there is no defence can be made. That both witnesses should be to the same point, see the Story of Susanna. Two Elders testified they saw her in the Act of Adultery: They were carrying of her to her death: both of them said the same thing; until they were taken asunder and examined, the fraud was not discovered; and then one said, she was under a Tree of the right hand, and the other, under the Tree on the left; and she escaped, and they were punished. But now if you ap∣ply it to several Facts, my Lord Howard may say what he pleases, and if another shall come with a supplemental proof, no Justice can be had. But, my Lord, I desire this, If there be two Witnesses to prove the Conspiracy, and in that there were those matters done that are Treason, I must answer to it; but if there be not, I presume, I need say nothing to it. If you do not allow it me, I desire Council to Argue it.

L. C. J.

That is a point of Fact, Whether there be two Witnes∣ses? I tell you beforehand, one Witness is not sufficient.

Col. Sidney.

Why then there is my Lord Howard, and never ano∣ther.

L. C. J.

Nay, do not make those inferences; I will tell the Jury, if there be not two Witnesses as the Law requires in this Case, they ought to acquit you.

Col. Sidney.

You confound me, I cannot stir. You talk of a Con∣spiracy; What is a Conspiracy to kill the King? Is there any more Witnesses than one for Levying of War?

L. C. J.

'Pray do not deceive your self; You must not think the Court and you intend to enter into a Dialogue. Answer to the Fact; if there be not sufficient Fact, the Jury will acquit you. Make what Answer you can to it.

Col. Sidney.

Then I say, There being but one Witness, I am not to Answer to it at all.

L. C. J.

If you rely upon that, we will direct the Jury presently.

Col. Sidney.

Then for Levying War, what does any one say? My Lord Howard, let him if he please, reconcile what he hath said now, with what he said at my Lord Russel's Trial. There he said, he said all he could; and now he has got I do not know how many things that were never spoken of there. I appeal to the Court whether he did then speak one word of that, that he now says of Mr. Hambden. He sets forth his Evidence very Rhetorically, but it does not become a Witness, for he is only to tell what is done and said; but he does not tell what was done and said. He says they took upon them to consider, but does not say what one man said, or what one man resolved, much less what I did. My Lord, If these things are not to be distinguished, but shall be jumbled all up together, I con∣fess I do not know what to say.

L. C. J.

Take what liberty you please. If you will make no De∣fence, then we will direct the Jury presently. We will direct them in the Law, and recollect matter of Fact as well as we can.

Col. Sidney.

Why then my Lord, I desire the Law may be reserv∣ed to me, I desire I may have Council to that point of there being but one Witness.

L. C. J.

That is point of Fact. If you can give any testimony to disparage the Witness, do it.

Col. Sidney.

I have a great deal to that.

L. C. J.

Go on to it then.

Col. Sidney.

Then, my Lord, was there a War Levyed? Or was it prevented? Why then, if it be prevented, 'tis not Levyed; if it be not Levyed, 'tis not within the Statute; so this is nothing to me.

L. C. J.

The Court will have patience to hear you; but at the same time I think 'tis my duty to advertise you, That this is but mispend∣ing of your time. If you can Answer the Fact, or if you have any mind to put any disparagement upon the Witnesses, that they are not Persons to be believed, do it, but do not ask us Questions this way or t'other.

Col. Sidney.

I have this to say concerning my Lord Howard: He hath accused himself of divers Treasons, and I do not hear that he has his Pardon of any: He is under the terror of those Treasons, and the punishment for them: He hath shewn himself to be under that terror: He hath said, That he could not get his Pardon, until he had done some other jobbs, till he was past this drudgery of swear∣ing: That is, my Lord, that he having incurred the penalty of High-Treason, he would get his own indempnity by destroying others.

This by the Law of God and Man, I think, destroys a mans Testimo∣ny. Besides, my Lord, he is my Debter, he owes me a conside∣rable summ of Money I lent him in time of his great necessity; he made some Covenants with me for the payment of that Money, which he hath broken; and when his Mortgage was forfeited, and I should take the advantage the Law gives me, he finds out a way to have me laid up in the Tower: He is a very subtle man; At my Lord Russel's Tryal, he carryed his Knife, he said, between the Paring and the Apple; and so this is a point of great nicety and cunning, at one time to get his own Pardon, and at the same time to save his Money. Another thing, my Lord, is, when I was Prisoner, he comes to my House, and speaks with my Servant, and says, how sorry he was that I should be brought in danger upon this account of the Plot, and there he did in the presence of God, with Hands and Eyes lifted up to Heaven, swear, he did not believe any Plot, and that it was but a Sham; and that he was confident if I had known any thing, I would have told it him. He hath said somewhat of this before, I have seve∣ral Witnesses to prove both. He was desirous to go further, and he would not only pay my debt by his Testimony against me, but he would have got my Plate and other Goods in my hands into his hands, and he desired my Men, as a place of trust, to put them into his hands. And the next news was, that there was a Warrant against my Lord Russel and me. But then, my Lord, he made other affirmations in the same presence of God, that I was innocent in his opinion, and he was confident of it; for if he had known any thing of it, he would have told it. Now I know, in my Lord Russel's Case, there was Dr. Burnet said something like it. And when he came to answer it, he said he was to face it out, and make the best of it he could. Now he did face it out bravely against God, but he was very timerous of Man. So that my Lord, he does say at the same time, at my Lord Russel's Tryal, upon his Oath, That he did believe that the Religious obligation of an Oath did not consist in the formality of applying it to the place, &c. but in calling God to witness. So that when he did call God to witness before Doctor Burnet and my Servant, and others, and this is not consistent with the Oath he has taken here, as the Gentleman said at my Lord Russel's Tryal, unless he has one Soul in Court, and had another at my house, these things are incon∣sistent, and cannot be true; and if he swear both under the Reli∣gion of an Oath, he swears himself perjured. Then my Lord, he talks of Aaron Smith, What have I to do with Aaron Smith? He sayes I sent him; my Lord, there is no body else speaks a word of it. Then by a strange kind of construction and imagination, they will have it, that some Papers here, which are said to be found in my Study, have relation to this Plot, as they call it; I know of none, nor am in none. Now, my Lord, I am not to give an account of these

Papers, I do not think they are before you, for there is nothing but the similitude of Hands offered for proof. There is the like Case of my Lady Carr some few years agoe: She was indicted of Perjury, and as 〈◊〉〈◊〉 against her, some Letters of hers were produced, that were contrary to what she swore in Chancery; and her band was proved; that is to say, it was like it▪ but my Lord Chief Justice Ke••ing di∣rects the Jury, that though in Civil Causes it is a proof, yet it is the smallest and least of proofs; but in Criminal cases it was none at all. So that my Lord Howard's testimony is single; and what he talks of those two businesses that he calls a Consult, and Aaron Smith, is destroyed by want of proof. What could six men do? Can my Lord Howard raise five men by his credit? by his purse? Let him say as much for me, with all my heart; for my part I do not know where to raise five men. That such men as we are, that have no followers, should undertake so vast a design, is very unlikely: And this great design that was carried on thus, it had neither Officers nor Souldiers, no place, no time, no Money for it. That which he said last time, which he forgotnow, he talked of twenty five or thirty thousand pound, but no man knew where it was to be had, but last time he said, it was spoken in jest. Now this is a pretty Cabal, that six men should meet about a business; and they neglect every one of the points rela∣ting to the thing they met about, make no step about the business, and if any one did speak of it, it was but in jest. This is a very deep main∣taining of the Plot. Then my Lord, as to these Papers, I do not think, I am to give any account of them, I would say nothing to the disparagement of Sir Philip Lloyd, I never saw him till he cause to my House, but yet I say, he is the Kings Officer, and when I am prose∣cuted at the Kings Smit, I think he ought to be no Witness. The Go∣vernment of France is violent and absolute, but yet a few years ago, a Minister of State had his Papers taken from him, and abundance of them had dangerous Plots against the King in them; but because they were inventoried in his Officers presence, or those reputed by him, there was no use could be made of them, it was an irreparable fault in the process, and that saved him. The similitude of hands is nothing: we know that Hands will be counterfeited, so that no man shall know his own hand. A Gentleman that is now dead told me, that my Lord Arlington about five years agoe, desired him to write a Letter, and seal it as well as he could; he writ it with care, and sealed it with a Wafer and Wax upon it, and within a few days, my Lord Arlington brought him five Letters, and he did not know which was his own. The Attorney shews these Papers to me, I do not know whether they are my own or no; but these very Papers, such as they are, do ab∣horr as much as any one can, such a design. Look upon them, you see they are all old Ink. These Papers may be writ per∣haps, these twenty years, the Ink is so old. But my Lord, it is a polemical Discourse, it seems to be an Answer to Filmer, which is not calculated for any particular Government in the World:

It goes only upon these general Principles, That according to the universal Law of God and Nature there is but one Government in the World, and that is Intire and Absolute; and that the King can be bound by no Law, by no Oath, but he may make all Laws, and abolish them as he pleases: And this whether of Age or no, a Man, or a Child, of Sense, or out of his Sense. Now, my Lord, what if any man in his Cabinet should have written this Book? Then he has another Principle, he says, 'Tis the same thing whether a King come in by Election, by Donation, by In∣heritance, or Usurpation, or any other way; than which, I think, never was a thing more desperately said. Cromwell, when one White a Priest wrote a Book, wherein he undertook to prove, That Possession was the only Right to Power, tho' he was a Tyrant, and a violent one, (you need not wonder I call him Tyrant. I did so every day in his Life, and acted against him too) it would be so odious a Principle, he would not endure it, and he used him very slightly for it. Now this Filmar that no man must write against, is the man that does assert it, That 'tis no matter how they come by their Power, and gives the same Power to the worst Usurpers, as they that most rightly come to the Crown. By the same Argument, if the arrantest Rascal of Israel had killed Moses, David, &c. and seized upon the Power, he had been pos∣sessed of that Power, and been Father of the People. If this be Doctrine, my Lord, that is just and good, then I confess it may be dangerous for any thing to be found in a man's House contrary to it; but if a Commoner of England write his present thoughts, and another man upon looking on his Book, write his present thoughts of it, what great hurt is there in it? And I ask Mr. Attorney how many years ago that was written?

L. Ch. Iust.

I don't know what the Book was in answer to. We are not to speak of any Book that Sir Robert Filmar wrote, but you are to make your Defence, touching a Book that was found in your Study, and spend not your time, and the Courts time, in that which serves to no other Purpose, than to gratify a luxuri∣ant way of Talking that you have. We have nothing to do with his Book, you had as good tell me again, That there was a parcel of people rambling about, pretending to my L. Russel's Ghost, and so we may answer all the Comedies in England. Answer to the matter you are indicted for. Do you owne that Paper?

Col. Sidney.

No, my Lord.

L. Ch. Iust.

Go on then, it does not become us to be impatient to hear you, but we ought to advertise you, that you spend not your time to no purpose, and do your self an Injury.

Col. Sidney.

I say first, 'Tis not proved upon me: and secondly, 'Tis not a Crime if it be proved——

L. Ch. Iust.

You began very materially in one thing: it is ma∣terial for you to apply your self to take off the Credibility of my

Lord Howard that is a Witness; call your Witnesses to that purpose, or if you have any other point to take away the Credibility of any other Witness.

Col. Sidney.

My Lord, I have seven or eight points of Law.

L. Ch. Iust.

I hear not one yet.

Col. Sidney.

Why, my Lord, Conspiring to levy war is not Treason, and I desire to have Counsel upon that.

L. J. Just.

'Tis not a Question. You had as good ask me, whe∣ther the first Chapter in Littleton be Law?

Col. Sid.

My Lord, I have neither made war, nor conspir'd to levy war.

L. C. Iust.

You are still in a mistake, you shall not think that we intend to dialogue with you, to let you know how far the proof hath been given or not given, but when we come to direct the Jury, then we shall observe how far the Law requires there should be two witnesses. But whether there be such a proof, that must be left to the Jury.

Mr. Just. Wythens.

If you agree the Conspiracy, I will tell you my mind of it; I cannot give you my Opinion in Law, till the Fact be stated.

L. Ch. Iust.

The Law alwayes arises upon a point of Fact; there can be no doubt in point of Law, till there be a settlement in point of Fact.

Mr. Just. Holloway.

My Lord has put you in a right way: The Conspiracy is proved but by one Witness, if you have any thing to take off his Credibility ▪tis to the purpose.

Col. Sidney.

Truly, my Lord, I do as little intend to mis-spend my own Spirit, and your Time, as ever any man that came be∣fore you. Now, my Lord, if you will make a Concatenation of one thing, a Supposition upon Supposition, I would take all this asunder, and shew, if none of these things are any thing in them∣selves, there can be nothing joyned together.

L. Ch. Iust.

Take your own Method, Mr. Sidney; but I say, if you are a man of low Spirits and weak Body, 'tis a Duty incum∣bent upon the Court, to exhort you not to spend your time up∣on things that are not material.

Col. Sidney.

My Lord, I think 'tis very material that a whim∣sical imagination of a Conspiracy, should not pass for a real Con∣spiracy of the Death of the King; besides, if these Papers were found in my House, 'tis a Crime created since my Imprisonment, and that cannot come in, for they were found since. My Lord, if these Papers are right, it mentions 200. and odd Sheets, and these show neither Beginning nor Ending, and will you, my Lord, indict a man for Treason for scraps of Paper, found in his House relating to an ancient Paper, intended as innocently as any thing in the world, and piece and patch this to my Lord Howards Discourse, to make this a Contrivance to kill the King: Then my Lord, I think 'tis a Right of Mankind, and 'tis exercised by all

studious men, that they write in their own Closets what they please for their own Memory, and no man can be answerable for it, unless they publish it.

L. C. J.

Pray don't go away with that right of mankind, that it is lawful for me to write what I will in my own Closet, unless I publish it; I have been told, Curse not the King, not in thy thoughts, not in thy Bed-Chamber, the Birds of the air will carry it. I took it to be the duty of mankind, to observe that.

Col. Sidney.

I have lived under the Inquisition—

L. C. J.

God be thanked, we are governed by Law.

Col. Sidney.

I have lived under the Inquisition, and there is no man in Spain can be tryed for Heresie—

Mr. Iust. Withins.

Draw no Presidents from the Inquisition, here, I beseech you Sir.

L. C. J.

We must not endure men to talk, that by the right of nature, every man may contrive mischief in his own Chamber, and he is not to be punished, till he thinks fit to be called to it.

Col. Sidney.

My Lord, if you will take Scripture by pieces, you will make all the Penmen of the Scripture blasphemous; you may accuse David, of saying, There is no God; and accuse the E∣vangelists, of saying, Christ was a Blasphemer and a Seducer; and the Apostles, That they were drunk.

L. C. J.

Look you, Mr. Sidney, if there be any part of it, that explains the sense of it, you shall have it read; indeed we are trifled with a little. 'Tis true, in Scripture 'tis said, there is no God, and you must not take that alone, but you must say, the fool hath said in his heart, there is no God. Now here is a thing imputed to you in the Libel; if you can say, there is any part that is in excuse of it, call for it. As for the purpose, who∣soever does publish, that the King may be put in chains or depo∣sed, is a Traytor; but whosoever says, that none but Traytors would put the King in Chains or depose him, is an honest man; therefore apply ad idem, but don't let us make Excursions.

Col. Sidney.

If they will produce the whole, my Lord, then I can see whether one part contradicts another.

L. Ch. Iust.

Well, if you have any Witnesses call them.

Col. Sidney,

The Earl of Anglesey.

L. Ch. Iust.

Ay, in God's Name, stay till to morrow in things that are pertinent.

Col. Sidney.

I desire to know of my Lord Anglesey, what my Lord Howard said to him concerning the Plot that was broken out.

L. Anglesey.

Concerning this Plot you are now questioned for?

Col. Sidney.

The Plot for which my Lord Russel and I was in Prison.

L. Anglesey.

The Question I am asked, is, what my Lord Ho∣ward said before the Tryal of my Lord Russel, concerning the Plot; I suppose, this goes as a branch of that he was accused for. I was then in the Country, when the Business was on foot, and

used to come to Town a day or two in the Week, living near in Hertfordshire, and I understanding the Affliction my Lord of Bed∣ford was in, I went to give my Lord a Visit, we having been ac∣quaintance of above fifty years standing, and bred together in Maudlin Colledge in Oxford. When I came to my Lord of Bedford, and had administred that comfort that was fit for one Christian to give another in that distress, I was ready to leave him, and my Lord Howard came in. It was upon the Friday before my Lord Howard was taken, he was taken (as I take it) upon Sunday or Munday, my Lord Howard fell into the same Christian Office that I had been just discharging, to compassionate my Lords afflicti∣on, to use Arguments to comfort and support him under it, and told him, he was not to be troubled, for he had a discreet, a wise and a vertuous Son, and he could not be in any such Plot, (I think that was the word he used at first, though he gave another name to it afterward) and his Lordship might therefore well expect a good Issue of that business, and he might believe his Son secure, for he believed he was neither guilty, nor so much as to be sus∣pected. My Lord proceeded further, and did say, that he knew of no such barbarous Design (I think he called it so in the second place) and could not charge my Lord Russel with it, nor any bo∣dy else. This was the effect of what my Lord Howard said at that time, and I have nothing to say of my own knowledge more than this; but to observe that I was present when the Jury did put my Lord Howard particularly to it; what have you to say to what my Lord Anglesey testifies against you? My Lord, I think did in three several places, give a short account of himself, and said it was very true, and gave them some further account why he said it, and said, he should be very glad it might have been advan∣tagious to my Lord Russel.

Col. Sidney.

My Lord of Clare, I desire to know of my Lord of Clare, what my Lord Howard said concerning this Plot and me.

Lord Clare.

My Lord, a little after Colonel Sidney was taken, speaking of the Times, he said, that if ever he was questioned a∣gain, he would never plead, the quickest dispatch was the best, he was sure they would have his Life, though he was never so innocent, and discoursing of the late Primate of Armaghs Prophe∣sie; for my part, says he, I think the Persecution is begun, and I believe it will be very sharp, but I hope it will be short, and I said, I hoped so too.

Mr. At. Gen.

What answer did your Lordship give to it?

Lord Clare.

I have told you what I know, my Lord is too full of discourse for me to answer all he says; but for Colonel Sidney, he did with great asseverations assert, that he was as innocent as any man breathing, and used great Encomiums in his praise, and then he seemed to bemone his misfortune, which I thought real, for never was any man more ingaged to another, than he was to Colonel Sidney, I believe. Then I told, they talked of

Papers that were found, I am sure, says he, they can make no∣thing of any Papers of his.

Mr. Att. Gen.

VVhen was this?

Lord Clare.

This was at my house the beginning of July.

Mr At. Gen.

How long before my Lord Howard was taken?

L. Clare.

About a week before.

Mr. At. Gen.

I would ask you, my Lord, upon your honour, would not any man have said as much, that had been in the Plot?

L. Clare.

I can't tell, I know of no Plot.

Col. Sidney.

Mr. Philip Howard.

Mr. I. Wythins.

VVhat do you ask him.

Col. Sidney.

VVhat you heard my Lord Howard say concerning this pretended Plot, or my being in it?

Mr. Phil. Howard.

My Lord, when the Plot first brake out, I used to meet my Lord Howard very often at my Brothers house, and coming one day from Whitehall, he asked me, what News? I told him, my Lord, says I, there are abundance of people that have confessed the horrid Design of murthering the King, and the Duke. How, says he, is such a thing possible? says I, 'tis so▪ they have all confessed it. Says he, do you know any of their names? yes, says I, I have heard their Names. What are their Names? says he, why, says I, Colonel Romsey, and Mr. West, and one Walcott and others, that are in the Proclamation (I can't tell whether Walcott was in hold) says he, 'tis impossible such a thing can be; says he, there are in all Countreys, people that wish ill to the Government, and says he, I believe there are some here; but says he, for any man of Honour, Interest or Estate, to go about it, is wholly impossible. Says I, my Lord, so it is, and I believe it. Says I, my Lord, do you know any of these peo∣ple? No, says he, none of them; only one day, says he, passing through the Exchange, a man saluted me, with a Blemish upon his Eye, and he embraced me, and wished me all happiness; says he, I could not call to mind who this man was: but after∣wards, I recollected my self, that I met him at my Lord Shaftsbu∣ries, and heard afterwards, and concluded his name to be—his at whose house the King was to be assassinated—

Mr. At. Gen.

Rombald.

Mr. Howard.

Ay, Rombald. My Lord, May I ask, if my Lord Howard be here?

L. C. J.

He is there behind you.

Mr. Howard.

Then he will hear me. My Lord says I, what does your Lordship think of this business? says he, I am in a maze; says I, if you will be ruled by me, you have a good opportunity to Address to the King, and all the discontented Lords, as they are called; and to shew your Detestation and Abhorrence of this thing; for, says I, this will be a good means to reconcile all things. Says he, you have put one of the best Notions in my Head that ever was put. Says I, You are a very good Pen man, draw up the first

Address (and I believe, I was the first that mentioned an Address, you have had many an one since, God send them good success) says he, I am sorry my Lord of Essex is out of Town, he should present it. But says I, Here is my Lord Russel, my Lord of Bedford, my Lord of Clare, all of you that are disaffected, and so accom∣pted, go about this business, and make the Nation happy, and King happy Says he, will you stay till I come back? Ay, says I, if you will come in any time; but he never came back while I was there. The next day, I think, my Lord Russel was taken, and I came and found him at my Brother's House again (for there he was day and night) says he, Cozen, what News? Says I, my Lord Russel is sent to the Tower. We are all undone then▪ says he. Pray, says he, go to my Lord Privy-Seal, and see if you can find I am to be taken up, says he, I doubt 'tis a Sham-Plot, if it was a true Plot, I should fear nothing; says I, what do you put me to go to my Lord Privy-Seal for? He is one of the King's Cabinet Counsel, do you think he will tell me? I won't go; but says I, if you are not Guilty, why would you have me go to inquire? why, says he, because I fear 'tis not a true Plot, but a Plot made upon us, and therefore, says he, there is no man free. My Lord, I can say no more as to that time, (and there is no man that sits here, that wishes the King bet∣ter than I do.) The next thing I come to, is this, I came the third day, and he was mighty sad and melancholy, that was when Col. Sidney was taken: says I, why are you melancholy, because Col. Sidney is taken? Says I, Col. Sidney was a man talked of before, why, you were not troubled for my Lord Russel, that is of your Blood, says he, I have that particular Obligation from Col. Sidney, that no one man had from another. I have one thing to say farther, I pray I may be rightly understood in what I have said.

L. C. J.

What, you would have us undertake for all the people that hear you? I think you have spoken very materially, and I will observe it by and by to the Jury.

Col. Sidney.

Pray call Doctor Burnet.

Mr. Iust. VValcott.

What do you ask Doctor Burnet?

Col. Sidney.

I have only to ask Dr. Burnet, whether after the News of this pretended Plot, my Lord Howard came to him? And what he said to him?

Dr. Burnet.

My Lord, the day after this Plot brake out my Lord Howard came to see me, and upon some discourse of the Plot, with Hands and Eyes lifted up to Heaven, he protested he knew no∣thing of any Plot, and believed nothing of it, and said, that he looked upon it as a ridiculous thing.

My Lord Pagett was sent for at the Prisoners request, be∣ing in the Hall.

Col. Sidney.

My Lord, I desire Joseph Ducas may be called,

(who appeared, being a French-man.)

Col. Sidney.

I desire to know, whether he was not in my House when my Lord Howard came thither, a little after I was made a Prisoner, and what he said upon it?

Ducas.

Yes, my Lord, my Lord Howard came the day after the Colonel Sidney was taken, and he asked me, Where was the Col. Sidney? and I said, he was taken by an Order of the King; and he said, oh Lord! what is that for? I said, they have taken Pa∣pers; he said, Is some Papers left? yes, Have they taken some∣thing more? No, well you must take all the things out of the house, and carry them to some you can trust: I dare trust no body, says he; I will lend my Coach and Coach man I said, if the Col. Sidney will save his Goods; he save them, if not, 'tis no matter. A little after the Lord Howard came in the House of Col. Sidney about eleven a Clock at Night. When he was in, I told him, what is this? They talk of a Plot to Kill the King and the Duke, and I told him, they spake of one general Insurrection; and I told him more, that I understood that Col. Sidney was sent into Scotland: when my Lord Howard understood that, he said, God knows, I know nothing of this, and I am sure if the Col. Sidney, was con∣cerned in the matter, he would tell me something, but I know no∣thing. VVell my Lord, I told him, I believe you are not safe in this house, there is more danger here than in another place. Says he, I have been a Prisoner, and I had rather do any thing in the World than be a Prisoner again.

Then my Lord Pagett came into the Court.

Col. Sidney.

Pray my Lord be pleased to tell the Court, if my Lord Howard has said any thing to you concerning this late pre∣tended Plot; or my being any party in it.

Lord Pagett.

My Lord, I was Subpoena'd to come hither, and did not know upon what accompt. I am obliged to say, my Lord Howard was with me presently after the breaking out of this Plot, and before his appearing in that part which he now Acts, he came to me; and I told him, That I was glad to see him abroad, and that he was not concerned in this disorder. He said, he had Joy from several concerning it, and he took it as an injury to him, for that it looked as if he were Guilty. He said, he knew nothing of himself nor any body else. And though he was free in discourse, and free to go into any Company indifferently; yet he said, he had not seen any body that could say any thing of him, or give him oc∣casion to say anything of any body else.

Col. Sidney.

Mr. Edward Howard.

Mr. Rd. Howard.

Mr. Sidney, what have you to say to me?

Col. Sidney.

My Lord, I desire you would ask Mr. Edward Ho∣ward the same thing, what Discourse he had with my Lord Ho∣ward about this Plot?

L. C. J.

Mr. Howard, Mr. Sidney desires you to tell what Dis∣course you had with my Lord Howard about this Plot.

Mr. E. Howard.

My Lord, I have been for some time ve∣ry intimate with my Lord, not only upon the account of our Alliance, but upon a strict intimacy and correspondence

of friendship, and I think, I was as much his as he could expect from that Alliance. I did move him during this time, to serve the King upon the most honourable account I could, but that proved ineffectual: I pass that, and come to the business here. Assoon as the Plot brake out, my Lord having a great in▪ timacy with me, expressed a great detestation and surprizing in himself to hear of it, wherein my Lord Howard assured me under very great Asseverations, that he could neither accuse himself, nor no man living. He told me moreover, That there were cer∣tain▪ persons of quality whom he was very much concerned for, that they should be so much reflected upon or troubled, and he condoled very much their condition both before and after they were taken. My Lord, I believe in my Conscience, he did this without any Mental Reservation, or Equivocation, for he had no rea∣son to do it with me. I add moreover, if I have any sense of my Lords Disposition, I think if he had known any such thing, he would not have stood his being taken, or made his Application to the King in this manner, I am afraid not so suitable to his qua∣lity.

L. Ch. Iust.

No reflections upon any body.

Mr. Howard.

My Lord, I reflect upon no body, I understand where I am, and have a respect for the place; but since your Lord∣ship has given me this occasion, I must needs say, That that Reproof that was accidentally given me at the Tryal of my Lord Russel, by reason of a weak Memory, made me omit some particu∣lars I will speak now, which are these, and I think they are ma∣terial: My Lord upon the discourse of this Plot did further assure me, that it was certainly a Sham, even to his knowledge; how, my Lord, says I, do you mean a Sham? Why, says he, such an one, Cozen, as is too black for any Minister of publick Employment to have devised, but, says he, it was forged by People in the dark, such as Jesuites and Papists, and, sayes he, this is my Conscience; says I, my Lord, if you are sure of this thing, then pray, my Lord, do that honourable thing that becomes your quality, that is, give the King satisfaction as becomes you; pray make an Ad∣dress under your hand to the King, whereby you express your Detestation and Abhorrence of this thing: says he, I thank you for your Counsel, to what Minister, says he, shall I apply my self? I pitched upon my Lord Hallifax, and I told him of my Lords de∣sire, and I remember my Lord Howard named the Duke of Mon∣mouth, my Lord of Bedford, the Earl of Clare, and he said he was sure they would do it; that he was sure of their Innocence, and would be glad of the occasion: and I went to my L. Hallifax, and told him that my Lord was willing to set it under his hand, his detestation of this Plot, and that there was no such thing to his knowledge. My Lord Hallifax very worthily received me, says he, I will

introduce it; but my Lord Russel being taken, this was laid aside, and my Lord gave this reason. For, says he, there will be so many People taken, they will be hindred. I must needs add from my Conscience, and from my Heart before God and Man, that if my Lord had spoken before the King, sitting upon his Throne, abateing for the solemnity of the presence I could not have more believed him, from that assurance he had in me. And I am sure from what I have said, if I had the Honour to be of this Gentleman's Jury I would not believe him.

L. C. Iust.

That must not be suffered.

Mr. Att. Gen.

You ought to be bound to your good behavi∣our for that.

L. C. Iust.

The Jury are bound by their Oaths to go accord∣ing to their Evidence, they are not to go by men's conjectures.

Mr. Howard,

May I go my Lord?

Mr. Att. Gen.

My Lord Howard desires he may stay, we shall make use of him.

Col. Sidney,

My Lord, I spake of a Mortgage that I had of my Lord Howard, I don't know whether it is needful to be proved; but it is so.

L. Howard,

I confess it.

Col. Sidney,

Then my Lord here is the other point, He is under the fear, that he dare not but say what he thinks will conduce to∣wards the gaining his Pardon; and that he hath expressed, that he could not have his Pardon, but he must first do this drudgery of swearing. I need not say, that his Son should say, That he was sorry his Father could not get his Pardon unless he did swear against some others.

Col. Sidney,

Call Mr. Blake

(who appeared)

My Lord, I desire he may be asked, whether my Lord Howard did not tell him that he could not get his Pardon yet, and he could ascribe it to nothing, but that the drudgery of swearing must be over first.

Then my Lord Chief Iustice asked the Question.

Mr. Blake,

My Lord, I am very sorry I should be called to give a publick account of a private Conversation, how it comes about I don't know. My Lord sent for me about six Weeks ago, to come and see him. I went and we talked of News, I told him I heard no body had their Pardon; but he that first discovered the Plot, he told me no; but he had his Warrant for it. And, says he, I have their Word and Honour for it; but says he I will do nothing in it till I have further order, and says he, I hear nothing of it, and I can ascribe it to no other reason; but I must not have my pardon till the drudgery of swearing is over. These words my Lord said, I believe my Lord won't deny it.

Then Mr. Sidney called Mr. Hunt and Burroughs, but they did not appear.

Col Sidney,

'Tis a hard case they don't appear, One of them was to prove that my Lord Howard said he could not have his Pardon till he had done some other Jobs.

L. C. Iust.

I can't help it, If you had come for assistance from the Court I would willingly have done what I could.

Then Col. Sidney mentioned the Duke of Buckingham, but he was informed he was not subpaena'd.

Col. Sidney,

Call Grace Tracy and Elizabeth Penwick

(who ap∣peared)

I ask you only, what my Lord Howard said to you at my House concerning the Plot, and my being in it?

Tracy,

Sir he said, that he knew nothing of a Plot he protest∣ed, and he was sure Col. Sidney knew nothing of it. And he said If you knew any thing of it, he mustneeds know of it, for he, knew as much of your concerns as any one in the World.

Col. Sidney,

Did he take God to Witness upon it?

Tracy,

yes.

Col. Sidney,

Did he desire my Plate at my House?

Tracy▪

I can't tell that, he said the Goods might be sent to his House.

Col. Sidney.

Penwick. What did my Lord Howard say in your hearing concerning the pretended Plot, or my Plate carrying away?

Penwick,

When he came he asked for your Honour; and they said your Honour was taken away by a man to the Tower for the Plot, and then he took God to Witness he knew nothing of it, and believed your Honour did not neither. He said he was in the Tower two years ago, and your Honour, he believed, saved his Life.

Col. Sidney,

Did he desire the Plate?

Penwick.

Yes, And said it should be sent to his House to be secured. He said it was only Malice.

Mr. Wharton stood up.

Mr. Wharton.

'Tis only this I have to say, That if your Lord∣ship pleases, to shew me any of these sheets of Paper I will under∣take to imitate them in a little time that you shan't know which is which. 'Tis the easiest hand that ever I saw in my life.

Mr. Att. Gen.

You did not write these Mr. Wharton?

Mr. Wharton.

No; but I will do this in a very little time if you please.

L. C. Iust.

Have you any more Witnesses?

Col. Sidney.

No, my Lord.

L. C. Iust.

Then apply your self to the Jury.

Col. Sidney.

Then this is that I have to say. Here is a huge Complication of Crimes laid to my Charge: I did not know at first under what Statute they were, now I find 'tis the Statute of 25 of Ed. 3. This Statute hath two Branches; one relating to War, the other to the Person of the King. That relating to the Person of the King, makes the Conspiring, Imagining, and Compassing his Death, criminal. That concerning War is not unless it be Levyed: Now my Lord I cannot imagine to which of these they refer my Crime, and I did desire your Lordship to explain it. For to say that a Man did meet to Conspire the King's Death, and he that gives you the account of the business does not speak one word of it, seems extravagant; for Conspiracies have ever their Denomination from that point to which they tend; as a Conspiracy to make false Coin in∣fers Instruments and the like. A Conspiracy to take away a Woman, to kill, or rob, are all directed to that end. So Conspiring to kill the King, must immediately aim at killing the King. The King hath two Ca∣pacities Natural and Politick, that which is the Politick can't be within the Statute, in that sense he never dies, and 'tis absur'd to say it should be a fault to kill the King that can't die: So then it must be the natural sense it must be understood in, which must be done by Sword, by Pistol, or any other way. Now if there be not one word of this, then that is utterly at an end, though the Witness had been good. The next point is concerning Levying of War. Levying of War is made Treason there, so it be proved by Overt Act, but an Overt Act of that never was, or can be pretended here. If the War be not Levyed 'tis not within the Act, for Conspiring to Levy War is not in the Act. My Lord, There is no Man that thinks that I would kill the King that knows me, I am not a Man to have such a design, perhaps I may say I have saved his Life once. So that it must be by Implication, that is, It is first imagined, that I intend∣ed to raise a War, and then 'tis imagined that War should tend to the Destruction of the King. Now I know that may follow, but that is not Natural or necessary, and being not Natural or necessary, it can't be so understood by the Law. That it is not it plain; for ma∣ny Wars have been made, and the Death of the King has not fol∣lowed. David made War upon Saul, yet no body will say he sought his Death, he had him under his power and did not kill him, David made War upon Ishbosheth, yet did not design his Death; and so in England and France Kings have been taken Prisoners, but they did not kill them. King Stephen was taken Prisoner, but they did not kill him. So that 'tis two distinct things, to make War and to endeavour to kill the King. Now as there is no manner of pre∣tence that I should endeavour to kill the King directly, so it can't be by inference, because 'tis Treason under another Species. I con∣fess

I am not fit to argue these points, I think I ought to have Coun∣sel, but if you won't allow it me I can't help it; but these things are impossible to be jumbled up together. Now I say this, If I am not under the first Branch, if not directly I can't be by Implication, though I did make War I can't be said to Conspire the Death of the King, because 'tis a distinct Species of Treason, and my Lord Coke says, tis the overthrow of all Justice to confound Membra dividentia; now if the making of War can't be understood to be a Conspiring the Death of the King, then I am not guilty of this Indictment, but heremy Lord is neither Conspiring the Death of the King, nor ma∣king War, nor Conspiring to make War. Besides, I say, 'tis not the best Mans Evidence here would be good in this Case, because the Law requires two. The next thing is the business of Aaron Smith, which my Lord tells so imperfectly, and so meerly conjectural, that there is nothing in it, but his Rhetorick in setting it out. He tells you of a Letter sent with him, but he does not tell you by whom writ, what was in it, or whether it was delivered or no: So that I think we may lay that aside as the other, as things nothing in them at all. Then says Mr. Attorney, These Scotch Gentlemen are come to Town, I profess I never heard the Names of one of them till he named them to me in the Tower. I have not sent my self, nor writ a Letter into Scotland never since the Year 59, nor do I know one Man in Scotland to whom I can write, or from whom I ever received one. I returned into England in the Year 77▪ and since that time have not writ nor received a Letter from Scotland. Then some Gentlemen came hither, What is that to me. I never saw one of the Cambells in my life, nor Monro; if any one can prove I have had Communication with them, I will be glad to suf∣fer. Then here are Papers, if any thing is to be made of them you must produce the whole for 'tis impossible to make any thing of a part of them. You ask me, What other Passage I would have read, I don't know a Passage in them, I can't tell whether it be good or bad. But if there are any Papers found ('tis a great doubt whe∣ther they were found in my Study or no, or whether they be not counterfeit; but though that be admitted that they were found in my house) the hand is such that it shews they have been writ very many years. Then that which seems to be an account of the Secti∣ons and Chapters that is but a scrap, and what if any body had, my Lord, either in my own hand or anothers found Papers that are not well justifiable, Is this Treason? Does this imagine the Death of the King? Does this reach the Life of the King? If any Man can say I ever printed a sheet in my life, I will submit to any Punishment. Many others, my Lord they write, and they write what comes into their heads. I believe there is a Brother of mine here has forty Quire of Paper writtenby my Father, and never one sheet of them was published, but he writ his own mind to see what he could think of it another time, and blot it out again, may be. And I my self I

believe have burned more Papers of my own writing than a Horse can carry. So that for these Papers I can't answer for them. There is nothing in it, and what Concatenation can this have with the o∣ther design that is in it self nothing, with my Lords Select Counsel selected by no body to pursue the design of my Lord Shaftsbury? And this Counsel that he pretends to be set up for so great a business, was to be adjusted with so much fineness so as to bring things toge∣ther, What was this fineness to do? (taking it for granted which I don't) This was nothing (if he was a credible Witness) but a few Men talking at large of what might be or not be, what was like to fall out without any manner of intention or doing any thing. They did not so much as inquire. Whether there was Men in the Coun∣try, Arms, or Ammunition. A War to be made by five or six Men, not knowing one another; not trusting one another. What said Dr. Coxe in his evidence at my Lord Russel's Tryal, of my Lord Rus∣sel's trusting my Lord Howard? He might say the same of some others. So that my Lord, I say, these Papers have no manner of coherence, no dependance upon any such design. You must go upon conjecture upon conjecture; and after all, you find nothing but only Papers, ne∣ver perfect, only scraps, written many years ago, and that could not be calculated for the raising of the People. Now pray what Imagination can be more vain than that? and what Man can be safe, if the King's Counsel may make such (whimsical I won't say but) groundless Constructions? Mr. Attorney says the Plot was broken to the Scots (God knows we were neither broken nor joined) and that the Cambells came to Town about that time I was taken, and in the mean time my Lord Howard, the great Contriver of all this Plot, who was most active; and advised the business that consisted of so much fineness; he goes there and agrees of nothing: and then goes into Essex upon great important business greater then the War of England and Scotland, to what purpose? To look after a little pimping Mannour, and what then? Why then it must be laid aside, and he must be idle five Weeks at the Bath, and there is no in∣quiring after it. Now I desire your Lordship to consider, whether there be a possibility for any Men, that have the sense of Porters and Grooms; to do such things; as he would put upon us. I would only say this, If Mr. Attorney be in the right there was a Combination with the Scotts, and then this Paper was writ; for those that say I did it, say, I was doing of it then, and by the Notes, there is work enough for four or five years, to make out what is mentioned in those scraps of Paper, and this must be to kill the King. And I say this my Lord that under favour, for all constructive Treasons you are to make none, but to go according to plain proof, and that these Constructive Treasons belong only to Parliament, and by the immediate Proviso in that Act. Now my Lord I leave it to your Lordship, to see whether there is in this, any thing that you can say is an Overt Act of Treason mentioned in 25 E. 3. If it be not plainly

under one of the two Branches, That I have endeavoured to kill the King, or Levyed War, then 'tis matter of Construction, and that belongs to no Court but the Parliament. Then my Lord this hath been adjudged already in Throgmorton's Case. There is twenty Judg∣ments of Parliament, the Act of 13 Eliz. that says.—I should have some body to speak for me my Lord.

L. C. Iust.

We are of another Opinion.

Mr. Just. Wythins.

If you acknowledg the matter of Fact, you say well.

Col. Sidney.

I say there are several Judgments of Parliament, that doe shew what ever is Constructive-Treason does not belong to any private Court, that of 1 Mary. 1 E. 6. 1 Eliz. 5 Eliz. 18. ano∣ther 13 Car shew this. Now my Lord, I say that the business concerning the Papers, 'tis only a similitude of hands, which is just nothing. In my Lady Carrs Case, it was resolved to extend to no criminal Cause, if not to any, then not to the greatest, the most Capital. So that I have only this to say, That I think 'tis impossible for the Jury to find this matter, for the first point you proved by my Lord Howard that I think is no Body, and the last concerning the Papers, is only imagination from the similitude of hands. If I had published it, I must have answered for it, or if the thing had been whole and mine, I must have answered for it; but for these scraps never shewed any Body, That I think does not at all concern me. And I say, if the Jury should find it (which is impossible they can) I desire to have the Law reserved unto me.

Mr. Sol. Gen.

My Lord, and you Gentlemen of the Jury. The Evidence hath been long; but I will endeavour to repeat it, as faithfully as I can. The Crime the Prisoner stands accused for, is compassing and imagining the Death of the King. That which we go about to prove that compassing and imagining by, is by his meeting and consulting how to raise Arms against the King, and by plain matter in writing under his own hand, where he does affirm, It is lawful to take away and destroy the King. Gentle∣men I will begin with the first part of it, the Meeting and Con∣sultation to raise Arms against the King. The Prisoner Gentle∣men hath endeavoured to avoid the whole force of this Evidence by saying, that this in point of Law can't affect him, if it were all proved; for this does not amount to a proof of his compassing and imagining the death of the King, and he is very long in in∣terpreting the Act of Parliament to you of 25 E. 3. and dividing of it into several Members or Branches of Treason, And does in∣sist upon it, that tho' this should be an offence within one Branch of that Statute, yet that is not a proof of the other, which is the Branch he is proceeded upon, that is the first Clause against the compassing and imagining the Death of the King. And, sais he,

conspiring to Levy War is not so much as one Branch of that Sta∣tute, but it must be War actually levyed. This is a matter he is wholly mistaken in, in point of Law. It hath been adjudged over and over again, That an Act which in one Branch of that Statute may be an overt Act to prove a man Guilty of another Branch of it. As levying War is an overt Act to prove a man Guilty of Conspiring the Death of the King. And this was adjudged in the Case of Sir Henry Vane, so is meeting and consulting to raise to Arms. And reason does plainly speak it to be so; for they that conspire to raise War against the King, can't be presumed to stop any where; till they have Dethron'd or Murdered the King. Gentlemen I won't belong in citing Authoritys, It hath been setled lately by all the Judges of England, in the Case of my Lord Russel, who hath suffered for this Conspiracy. Therefore that point of Law will be very plain against the Prisoner. He hath mentioned some other things, as that there must be two Witnesses to every particular Fact, and one Witness to one Fact, and another to another is not sufficient, it hath been very often objected, and as often over-ru∣led: It was over-ruled Solemnly in the Case of my Lord Stafford. Therefore if we have one Witness to one overt Act, and another to another, they will be two Witnesses in Law to convict this Pri∣soner. In the first part of our Evidence, we give you an account of the general Design of an Insurrection that was to have been, that this was contrived first, when my Lord Shaftsbury was in England, that after my Lord Shaftsbury was gone, the business did not fall; but they thought fit to revive it again, and that they might carry it on the more steadily, they did contrive a Coun∣sel among themselves of six, whereof the Prisoner at the Bar was one. They were the Duke of Monmouth, my Lord of Essex, my Lord Howard, my Lord Russel, the Prisoner at the Bar, and Mr. Hambden. This Counsel they contrived to manage this affair, and to carry on that designe, that seemed to fall by the Death of my Lord of Shaftsbury, and they met; this we give you an account of, first by Witnesses that gave you an account in general of it. And tho' they were not privy to it, yet they heard of this Coun∣sel, and that Col. Sidney was to be one of this Counsel. This Gentlemen, If it had stood alone by it self, had been nothing to affect the Prisoner at all. But this will shew you, that this was discours'd among them that were in this Conspiracy. Then my Lord Howard gives you an account that first the Duke of Mon∣mouth, and he, and Col. Sidney met, and it was agreed to be ne∣cessary to have a Counsel that should consist of six or seven, and they were to carry it on. That the Duke of Monmouth under∣took to dispose my Lord Russel to it, and Col. Sidney to dispose the Earl of Essex, and Mr. Hambden: that these Gentlemen did meet accordingly, and the substance of their discourse was, taking notice how the design had fallen upon the Death of my

Lord Shaftsbury, that it was fit to carry it on before mens Inclinations were cool, for they found they were ready to it, and had great reason to believe it, because this being a bu∣siness communicated to so many, yet for all that it was kept very secret, and no body had made any mention of it, which they looked upon as a certaine argument that men were ready to ingage in it. This incouraged them to go on in this Conspiracy. Then when the Six met at Mr. Hambden's house, they debated con∣cerning the place of rising, and the time, the time they conceiv'd must be suddenly before Mens minds were cool, for now they thought they were ready and very much disposed to it, and for place, they had in debate whether they should rise first in the Town, or in the Country, or both together. And for the Persons they thought it absolutely necessary for them to have the United Counsels of Scot∣land to join with them, and therefore they did refer this matter to be better considered of another time, and they met afterwards at my Lord Russel's House in February, and there they had Discourse to the same purpose. But there they began to consider with them∣selves, being they were to destroy this Government, what they should set up in the room of it; to what purpose they ingaged. For they did very wisely consider, If this be only to serve a turn, and to make one Man great, this will be a great hinderance in their Af∣fair, therefore they thought it was necessary to ingage upon a pub∣lick account, and to resolve all into the authority of a Parliament, which surely they either thought to force the King to call, or other∣wise, that the People might call a Parliament, if the King refused, and so they to choose their own Heads. But still they were upon this point, That it was necessary for their Friends in Scotland to have their Counsels united with them, and in order to that, it was neces∣sary to contrive some way to send a Messenger into Scotland, to bring some Men here to treat and consult about it, and Col. Sidney is the Man that does engage to send this Messenger, and he had a man very fit for his turn, that is, Aaron Smith, whom he could con∣fide in, and him he undertook to send into Scotland. This Mes∣senger was to fetch my Lord Melvin, the two Cambells, and Sir John Cockram, Col. Sidney as he ingaged to do this, so after∣wards he did shew to my Lord Howard Money, which he af∣firmed was for that business, he says it was a Sum of about sixty Guinneys, and he believes he gave it him, for that Col. Sidney told him, Aaron Smith was gone into Scotland, That the Pretence was not bare-faced to invite them over to consult of a Rebellion, but to consult about the business of Carolina, being a Plantation for the Persecuted Brethren, as they pretended in Scotland. Gen∣tlemen, these Scotch-men that were thus sent for over, they came accordingly, that is, the two Cambells, and Sir John Cockram, and the Discourse with Sir Andrew Foster was according to this Cant that was agreed on beforehand, concerning a Plantation in Carolina.

This was that that was pretended for their coming hither; but the true Errand was, the business of the Insurrection intended. Gentle∣men, that they came upon such a design, is evident from the circum∣stances; they came about the time the business brake out, and in that time suspiciously changing their Lodging, they were taken ma∣king their escape, and this at a time before it was probable to be known abroad, that these men were named as part of the Conspira∣tors. These things do very much verifie the Evidence my Lord Howard hath given, and there is nothing has been said does at all invalidate in▪ The sending of Aaron Smith into Scotland, and his going, and the coming of these men, and their endeavouring to make their escape, are mighty concurrent Evidences with the whole Evi∣dence my Lord Howard has given. Now, What objections are made against this Evidence▪ truly none at all. Here are persons of great Quality have given their Testimony, and they do not im∣peach my Lord Howard in the least▪ but some do extremely confirm the truth of my Lord Howard. My Lord Anglesey gives you an ac∣count of a discourse at my Lord of Bedfords, That my Lord Howard came in, and that my Lord Howard should there comfort my Lord of Bedford, and enlarge in the Commendations of his Son, and say he was confident he knew nothing of the Design, and he must be innocent. Gentlemen, This is the nature of the most part of the Evidence. My Lord of Clare his Evidence is much the like, that is, his denying that he knew of any Plot. Now here is my Lord Howard under a guilt of High-Treason; for he was one of those Censpirators not yet discovered, nor no Evidence of any discourse leading to any thing that should give occasion to him to protest his innocency: and, says he, I know nothing of the Plot. You would have wondered if he should have been talking in all places his know ledg, and declaring himself: His denying of it under the guilt, when he was not accused▪ is nothing to his Confession when he comes to be apprehended and taken for it. Here Mr. Philip Howard says, he had several discourses with him about this business upon the break∣ing out of the Plot, and that he advised him to make an Address, and that this was a thing that would be very acceptable, and very much for their vindication; and my Lord Howard (he says) thanked him for his very good advice, and said, he would follow it: and presently after when my Lord Russel was apprehended, Mr. Howard tells him the news that my Lord Russel was apprehended; this was sudden to him. And what says he? We are all un∣done. When my Lord Russel that was one of this Counsel that was a secret Counsel, and could not be traced but by some of themselves, when he is apprehended, then he falls out into this ex∣pression▪ We are all undone. This is an Argument my Lord Howard had a guilt upon him. For, why were they all undone, that my Lord Russel was apprehended, any more than upon the

apprehending the rest? Yes, because my Lord was one of the six, and now ▪twas come to the knowing of that part of the Con∣spiracy. It was traced to the Counsel of six, which in all likeli∣hood would break the neck of the Design. Now tho he put it off afterwards, saying, I believe it is a Sham Plot, yet this was but, a trivial put off. And then, when Colonel Sidney is taken, the same Witness Mr. Howard tells you, my Lord was very sad and melancholy; for then he had greater reason to lie under an appre∣hension of being detected. Therefore Gentlemen, this will rather confirm the truth of the Evidence, than any way impeach it. Then (for I would repeat it all, tho I think it hath no great weight in it) Doctor Burnet says. That after the Plot my Lord Howard pretended he knew of no Plot. This is no more than was te∣stified by the other Lords before; and all it imports, is, that my Lord did not discover himself to Doctor Burnet. But I would fain know, if my Lord had told Doctor Burnet, had it not argued that he had great confidence in him, that he thought him a man fit to be intrusted with such a secret: and unless the Doctor desires to be thought such a man, himself must own, 'tis no objection, That my Lord Howard did not tell him. Ducas's Testimony is no more neither, That he protested he was innocent, and believed Colonel Sidney was innocent; and this was before my Lord Howard discovered any thing of this Plot. Then Colonel Sidney objects, This is by malice, my Lord Howard owes him mony, and seeks to pay his Debts by taking away his Life; and in further prosecution of this malice, would have seized upon his Goods. But the Evidence does not receive such construction, for my Lord Howard only offered Colonel Sidney the civility of his House to protect his Plate and Goods. Now Gentlemen, there were two other Witnesses, my Lord Paget, and Mr. Edward Howard; but they say no more than the rest of them, that he did protest his in∣nocency, and Mr. Howard says, he advised him to make an Ad∣dress to the King. This, Gentlemen, I repeat, not that it is mate∣rial, but for no other reason, than because Colonel Sidney had pro∣duced it; and so we are to think, he intended to make some use of it: but I can't see any inference to be drawn from it. There is one Witness more, and that is Mr. Blake, to the credit of my Lord Howard, who comes here, and says, that when he discoursed about a Pardon, My Lord should say, That he had a Warrant for his Par∣don, but that he had not yet passed it, and could not yet; and he apprehended the reason was, because the drudgery of Swearing was not over. But this is but what my Lord Howard had conjectu∣red: First, it does not appear, that there is any promise of Pardon at all to my Lord Howard, on any terms imposed on him. In the next place, whatever expectation he has of a Pardon, he can't reasonably hope for it without making a clear discovery of all he

knows: For to stifle his Evidence he has given, is not a way to deserve a Pardon of his Prince. Therefore, Gentlemen, what∣ever expressions were used, tho he called it the drudgery of Swear∣ing, however unwilling he is to come to it, and tho he gives it ve∣ry many hard names▪ and might think it very harsh to come and own himself to be one of the Conspirators, it might be irksome▪ and very irksome, yet none of them tell you, That my Lord Howard should say, that what he had said was not true. Now he has come and given his Evidence, and you have heard all these objections against it, and not one of them touch it in the least.

I come in the next place to the other part of the Evidence▪ The Papers found in Colonel Sidney's House. And in the first place he objects, They can't affect him; for, says he, there is no proof they were found in my House, no proof they were written by me; for comparison of Hands, that is nothing; and if they were pro∣ved to be mine, 'tis nothing at all to the purpose: they are an An∣swer to a Polemical Discourse, wherewith he entertained himself privately in his Study. Why you have observed, I know, that Sir Philip Lloyd in the first place swears, that by Warrant from the Se∣cretary he searched his House, and he found the Papers lying upon Colonel Sidney's Table in his Study, when he came in there; and there is no ground nor colour for you to suspect otherwise than that they were there, and he found them there. For the surmise of the Prisoner at the Bar, that they might besaid there, 'tis so forein and without ground, that by and by you will think there is nothing at all in it. In the next place we prove Colonel Sidney's Hand, and that by as much proof as the thing is capable of; such a proof as in all cases hath been allowed; and that is, for men to come that know and are acquainted with the Hand-writing▪ and Swear they know his Hand-writing, and they believe this to be his Hand. You have heard from Mr. Sheppard, a man that used to transact business for him, pay mony for him; and Mr. Cooke, and Mr. Cary, men of known Credit in the City of London, that have had the like dealings with Colonel Sidney, and they Swear, this is his Hand-writing, as they verily Believe. So that, Gentlemen, this proof to you of Colonel Sidney's Hand-writing, does verifie Sir Philip Lloyd, That these Papers must be found there, if Colonel Sidney writ them: and then this being found that they were writ by him, the next thing will be, How far this will be an Evidence to prove his compassing and imagining the Death of the King. Compassing and imagining the Death of the King, is the Act of the mind, and is Treason whilst it remains secret in the Heart, tho no such Treason can be punish'd, because there is no way to prove it; but when once there is any Overt Act, that is, any

thing that does manifest and declare such intention, then the Law 〈…〉〈…〉nd punishes it as High Treason.

Now after this Evidence, I think no man will doubt, whether it was in the heart of the Prisoner at the Bar to destroy the King. But first he objects, That this is a part of a Book, and unless you take the whole, nothing can be made of it: As it is in wresting of Texts of Scripture, says he; you may as well say, That David says there is no God, because David hath said, The fool hath said in his heart there is no God. But Gentlemen, the application won't hold, for you see a long Discourse hath been read to you, a continued thred of Argument; 'tis not one Proposition, but an whole series of Argument: These are the Positions,

That the King derives all his Power from the People; That 'tis originally in the People, and that the measure of Subjection must be ad∣judged by the Parliament; and if the King does fall from doing his Duty, he must expect the People will exact it.

And this he has laid down as no way prejudicial to him; for, says he, The King may refuse the Crown, if he does not like it upon these terms. But, says he, if he does accept it, he must expect the performance will be exacted, or revenge taken by those he hath botray'd. Then next, he sets up an objection, and then argues against it: Ay, but shall the People be judg in their own Cause? And thus he answers it, It must be so; for is not the King a Judg in his own Cause? How can any man else be Tried, or Convicted of any Offence, if the King may not be Judg in his own Cause; for to judg by a mans self, or by his Deputy, is the same thing; and so a Crime against the King can't be punished. And then he takes notice of it as a very absurd Position,

That the King shall judg in his own Cause, and not the People.

That would be to say, The Servant entertained by the Master, shall judg the Master, but the Master shall not judg the Servant. Gentlemen, after this sort of Argument he comes to this setled Position,

We may therefore, says he, change, or take away Kings, (without breaking any Yoke, or that is made a Yoke;) the injury is therefore in imposing the Yoke, and there can be none at all in breaking of it.

But he goes on in his Book, and that is by way of Answer to an Objection, That if there be no injury, yet there may be inconvenience, if the headless multitude should shake off the Yoke. But says he, I would sain know how the multitude comes to be headless: and there he gives you many instances in Story, and from Forein Na∣tions he comes home to the English, and tells you how all Re∣bellions in later Ages have been headed; and tells you the Par∣liament is the Head, or the Nobility and Gentry that compose it; and when the King fails in his Duty, the People may call it. The Multitude therefore is never headless, but they either find or

create an head, so that here is a plain and an avowed Principle of Rebellion Established upon the strongest reason he has to back it. Gentlemen, This with the other Evidence that has been given, will be sufficient to prove his Compassing the Death of the King. You see the Affirmations he makes: when Kings do break their Trust they may be called to accompt by the people. This is the Doctrine he Broaches and Argues for: He says in his Book in another part, that the Calling and Dissolving of Parliaments is not in the Kings Power. Gentle∣men, You all know how many Parliaments the King hath Cal∣led and Dissolved; if it be not in his Power, he hath done that that was not in his Power, and so contrary to his Trust. Gentlemen, at the entrance into this Conspiracy they were under an apprehension that their Liberties were invaded, as you hear in the Evidence from my Lord Howard, that they were just making the Insurrection upon that Tumultuous opposition of Electing of Sheriffs in London. They enter into a Consultation to raise Arms against the King; and it is proved by my Lord Howard, that the Prisoner at the Bar was one. Gentlemen, Words spoken upon a supposition will be High Treason, as was held in King James's time, in the Case of Collins in Rolls Reports, The King being Ex∣communicate may be Deposed and Murdered, without affirming he was Excommunicated; and this was enough to Convict him of High Treason. Now according to that Case, to say the King having broken his Trust may be Deposed by his people, would be High Treason, but here he does as good as affirm the King had broke his Trust. When every one sees the King hath Dissolved Parliaments; this reduces it to an Affirmation. And though this Book be not brought to that Counsel to be perused, and there debated, yet it will be another, and more than two Witnesses against the Prisoner: For I would ask any man, suppose a man was in a Room, and there were two men, and he talks with both a∣part, and he comes to one and endeavours to persuade him that it is lawful to Rise in Arms against the King, if so be he break his Trust, and he should go to another man, and tell him the King hath broken his Trust, and we must seek some way to redress our selves, and persuade the people to Rise; these two Witnesses do so tack this Treason together, that they will be two Witnesses to prove him Guilty of High Treason. And you have heard one Witness prove it positively to you, That he consulted to Rise in Arms against the King, and here is his own Book says, it is lawful for a man to Rise in Arms against the King, if he break his Trust, and in effect he hath said, the King hath broken his Trust: There∣fore this will be a sufficient demonstration what the imagination of the Heart of this man was, that it was nothing but the destru∣ction of the King and the Government, and indeed of all Go∣vernments. There can be no such thing as Government if the people shall be Judg in the Case: For what so uncertain as the heady

and giddy Multitude? Gentlemen, I think this will be a sufficient Evidence of his Consulting the death of the King. You have here the Prisoner at the Bar that is very deep in it. Indeed some men may by Passion be transported into such an Offence, and though the Offence be never the less, what ever the motives are, yet in some it is less dangerous, for those that venture upon Passi∣on, to raise Commotions and Rebellion, are not always so much upon their Guard, but that they may make some false steps to in∣trap themselves. But this Gentleman proceeds upon a surer Foundation, it is his Reason, it is his Primciple, it is the Guide of all his Actions, it is that by which he leads and directs the steady Course of his Life. A man convinced of these Principles, and that walks accordingly, what won't he do to accomplish his de∣signs? How wary will he be in all his Actions? Still reasoning with himself which way to bring it most securely about. Gentle∣men. This is the more dangerous Conspiracy in this man, by how much the more it is rooted in him: and how deep it is, you hear, when a man shall write as his Principle, that it is lawful for to depose Kings, they breaking their Trust, and that the Revolt of the whole Nation can not be called Rebellion. It will be a very sad Case when people Act this according to their Conscien∣ces, and do all this for the good of the people, as they would have it thought; but this is the Principle of this man. Gentlemen, We think we have plainly made it out to you, and proved it sufficiently▪ that it was the imagination of his Heart to destroy the King and made sufficient proof of High Trea∣son.

Coll. Sidney.

Give me leave, my Lord▪ to say a very few words, I desire Mr. Solicitor would not think it his Duty to take away mens lives any how: First, We have had a long story.—

Lord Chief Iustice.

Nay Mr. Sidney, We must not have vying and revying▪ I asked you before what you had to say; the course of Evidence is, after the Kings Counsel have concluded; we never admit the Prisoner to say any thing.

Coll. Sidney.

My Lord, It was a wise man said, there never could be too much delay in the Life of a man: I know the Kings Counsel may conclude, if they please. Mr. Solicitor, I would not have him think that it is enough by one▪ way on another to bring a man to death: My Lord, This matter of Sir Henry Vane is utterly misrepresented.—

Lord Chief Iustice.

I must tell you Gentlemen of the Jury; that what the Prisoner says that is not proved, and what the Kings Counsel have said, of which there is no proof to make it out▪ must not be taken into any consideration.

Coll. Sidney.

Then my Lord here is a place or two in Old Hales, [turning over my Lord Hales Book] for the Overt Act of one Treason, not being an Overt Act of another, your Lordship knows Coke and Hales were both against it [he Reads] Com∣passing

by bare words is not an Overt Act, Conspiring to Levy War is no Overt Act.

Mr. Solicitor General.

I desire but one word more for my own sake as well as the Prisoners, and that is, that if I have said any thing that is not Law, or misrepeated, or misapplied the Evidence which hath been given, I do make it my humble Request to your Lordship to rectifie those mistakes as well in point of Fact as point of Law; for God forbid the Prisoner should suffer by any mistake.

Lord Chief Iustice.

Gentlemen, The Evidence has been long, and it is a Cause of great concernment, and it is far from the thoughts of the King, or from the thoughts or desire of any of his Judges here to be instrumental to take away the life of any man, that by Law his Life ought not to be taken away. For I had rather many Guilty men should escape▪ than one innocent man suffer. The question is, whether upon all the Evidence you have heard against the Prisoner, and the Evidence on his behalf, there is Evidence sufficient to Convict the Prisoner of the High Treason he stands charged with. And as you must not be moved by the denyal of the Prisoner further than as it is backed with proof, so you are not to be inveigled by any insinuations made against the Prisoner at the Bar, further or otherwise than as the proof is made out to you. But it is usual, and it is a duty incum∣bent on the King's Counsel to urge against all such Criminals, whatsoever they observe in the Evidence against them, and like∣wise to endeavour to give answers to the Objections that are made on their behalf. And therefore, since we have been kept so long in this Cause, it won't be amiss for me (and my Brothers, as they shall think fit,) to help your memory in the fact, and discharge that Duty that is incumbent upon the Court as to the points of Law. This Indictment is for High Treason, and is grounded upon the Statute of 25 E. 3. By which Statute the com∣passing and imagining the death of the King, and declaring the same by an Overt Act is made High Treason. The reason of that Law was, because at Common Law there was great doubt what was Treason; wherefore to reduce that High Crime to a certain∣ty, was that Law made, that those that were Guilty might know what to expect. And there are several Acts of Parliament made between the time of Edward the Third, and that of 1 M. but by that Statute all Treasons that are not enumerated by after Acts of Parliament remain as they were declared by that Statute of 25 E. 3. And so are Challenges and other matters insisted upon by the Prisoner, left as they were at the time of that Act: I am also to tell you that in point of Law, it is not only the Opinion of us here, but the Opinion of them that sate before us, and the Opi∣nion of all the Judges of England, and within the memory of many of you,

That tho there be Two Witnesses required to prove a man Guilty of High-Treason, yet it is not necessary there should be Two Witnesses, to the same thing at one time. But if two Witnesses prove two several Facts, that have a tendency to the same Trea∣son, they are two Witnesses sufficient to convict any man of High-Treason. In the Case of my Lord Stafford in Parliament, all the Judges assisting, it is notoriously known, That one Witness to a Conspiracy in England, and another to a Conspiracy in France, were held two Witnesses sufficient to convict him of High-Trea∣son. In the next place, I am to tell you, That tho some Judges have been of Opinion that words of themselves were not an Overt Act; but my Lord Hales, nor my Lord Coke, nor any other of the Sages of the Law, ever questioned but that a Letter would be an Overt Act, sufficient to prove a man Guilty of High-Treason; For scribere est agere, Mr. Sidney says, The King is a Politick Person; but you must destroy Him in His natural capacity, or it is not Treason; but I must tell, If any man compass to Imprison the King, it is High Trea∣son: so was the Case of my Lord Cobham, and my Lord Coke. When he says, If a man do attempt to make the King do any thing by force and compulsion, otherwise than he ought to do, that it is High-Treason within that Act of 25 Eliz. III. But if it were an Indict∣ment only for the Levying of War, there must be an actual War Levied; but this is an Indictment for compassing the Death of the King; and the other Treason, mentioned in that Act of Parliament, for the Levying War, may be given in Evidence to prove the Con∣spiracy the Kings Death: For 'tis rightly told you, by the Kings Council, That the imagination of a mans heart is not to be discern∣ed; but if I declare such my imagination by an Overt Act; which Overt Act does naturally Evince, that the King must be Deposed, Destroyed, Imprisoned, or the like, it will be sufficient Evidence of Treason within that Act. In the next place, having told you what the Law is, for, Gentlemen, 'tis our Duty upon our Oaths, to de∣clare the Law to you, and you are bound to receive our Declara∣tion of the Law; and upon this Declaration, to inquire whether there be a Fact, sufficiently proved, to find the Prisoner Guilty of the High-Treason, of which he stands Indicted: And for that, I must tell you, what ever happens to be hearsay from others, it is not to be applied immediately to the Prisoner; but however, those Mat∣ters that are remote at first may serve for this purpose, To prove there was generally a Conspiracy to Destroy the King and Govern∣ment: And for that matter, you all remember it was the constant rule and method observed about the Popish Plot, first to produce the Evidence of the Plot in general: This was done in that famous Ca••e of my Lord Stafford in Parliament. Gentlemen, I am also to tell you, This alone, does not at all affect the Prisoner at the Bar, but is made use of as a circumstance to support the credibility of the Witnesses: and is thus far applicable to the business before you,

That 'tis plain, by persons that don't touch the Prisoner at the Bar, (and I am sorry any man makes a doubt of it at this time of day) that there was a Conspiracy to kill the King; for after so full a proof in this place, and in others, and the Execution and Confession of several of the Offenders, I am surprised to observe that the Pri∣soner at the Bar, and some others present, seem not to believe it.

But, Gentlemen, you hear the first Witness; I speak of West: He tells you he had the honour to be acquainted with Mr. Sidney, and that he had Discourse with Walcot, a person Convicted and Executed for this horrid Conspiracy. Why, says he, he told me at my Chamber, That they were not only the persons concerned, but that there were other persons of great Quality that had their Meetings for the carrying on the Business in other places. And Ferguson, that was the Ring leader in this Conspiracy, told him there was a Design of a general Insurrection; it was once laid down, but it is now taken up again. There are other Councellors of great importance; and he names, among the rest, the Prisoner at the Bar. Mr. West goes a little further, and he tells you this: says he, He did not only tell me so, but that there was a Design to conciliate a Correspondence with some persons in Scotland, and they were to do it under the Cant of having business in Carolina. There is Mr. Keeling, he tells you too, There was a Design for a general and publick Insurrection; That he was present with the Good-enough's, one and t'other, and that they had taken upon them to divide, and did divide the City into such and such districts: And what was the business? It was, that there might be a general In∣surrection; might be an Insurrection, not only to Destroy the King and the Duke, but to Destroy all the Kings Loyal Sub∣jects; and in taking away their Lives, to take away the Life of Monarchy it self; and to Subvert the Religion Established by Law. Then comes in Colonel Rumsey, and he gives you an Account that he had heard of such things in Mr. West's Chamber; and tells you he had received such Intelligence. And all these give you an Account, that there was such a Design to kill the King: And this is the Substance of the general Evidence produced to prove the Conspiracy. Then to make this Matter come home to the Prisoner at the Bar, first▪my Lord Howard gives you an Account, and does directly Swear, That about the middle or latter end▪ of January last, he happened to meet with Colonel Sidney, the Pri∣soner at the Bar, and the Duke of Monmouth (they were the Persons first began to have Discourse about this matter) and how they met with a disappointment; the thing had slept a great while, and that it was fit it should be revived again; and that Persons of Quality were mentioned, who were to have an imme∣diate care in the carrying on of the business, and that it should not be divulged to too many; accordingly▪ there was my

Lord Russel, my Lord of Essex, my Lord of Salisbury, and Mr. Hambden named. He tells you, the Prisoner at the Bar un∣dertook for my Lord of Essex, and Mr. Hambden, and he tells you, the Duke of Monmouth undertook for my Lord Russel, and the rest; and that this was the Result of one Meeting: He goes yet further, That pursuant▪ to this, it was communicated to those persons so to be ingaged, and the Place and Time was appointed; the Place, Mr. Hambden's House; but is not so positive to the Time, but onely to the Place, and Persons. He says, all these Persons met, and he gives you an Accompt, That Mr. Hambden (because it was necessa∣ry for some persons to break silence) gave some short account of the design of their Meeting, and made some reflections upon the mischiefs that attended the Government, and what apprehensions; many people upon the late Choice of Sheriffs, and that there had been a Male Administration of Publick Justice; That it was fit some means should be used to redress these Grievances. He can't tell you positively, what this man, or that man said there; but says, that all did unanimously consent to what was then debated about an▪Insurrection; and in order to it, they discoursed about the time, when it should be, and that they thought fit it should be done sud∣denly, while mens minds were wound up to that height, as they then were; and as the first Witness tells you, There was a Conside∣ration, whether it should be at one place, or at several places toge∣ther: He says, then it was taken into consideration, that this could not be carried on, but there must be Arms and Ammunition provided. The next step is, about a necessary concern, the concern of Mo∣ney, and therefore our Law calls Money, The Sinews of War. My Lord Howard tells you, That the Duke of Monmouth proposed 25. or 30000 l. That my Lord Gray was to advance 10000 l. out of his own Estate: but then they thought to make their Party more strong, by the Assistance of a Discontented people in Scotland, my Lord of Argyle, and Sir John Cockram, and several other people there to joyn with them. That pursuant to this, all they after met at my Lord Russels, and the same Debate is Reassumed, and among the rest, this particular thing of conciliating a friendship with the Scotch; the Cambels, my Lord of Argyle, and my Lord Melvin were particularly mentioned. That Coll. Sidney took upon himself to find out a Messenger, but it was my Lord Russel's part to Write the Letter; One of the Messengers named to convey the fame, was Aaron Smith, he was known, says my Lord Howard, to some of us; and then we all agreed, that Aaron Smith was the most proper man: Upon this they brake up that very time. Afterwards comes my Lord Haward to Coll. Sidney at some distance of time, and he comes to him, and shews him Threescore Guineys, and told him, he was going into the City, and that they were to be given to Aaron Smith. He tells you after this, That he had some other discourse about a fortnight or three weeks after, with Coll. Sidney; and that

Coll. Sidney did take notice, that he had sent him, and that he had an account of him, as far as Newcastle. So that 'tis very plain, That it was not sudden and rash thoughts, it is a little more than accor∣ding to the language we meet with in some Pamphlets of late, more than Heats and Stirs. Gent. Then I must tell you, here are Circum∣stances proved in pursuance of this Design, for Sir, Andrew Foster informs you, how that Sir John Cockram, and the Cambels, and one Monro, as I take it, came to Town, and that he had Discourse with some of them about their business of coming out of Scotland; and he says, they pretended, it was about business of some Trade to Carolina, which does still corroborate the Evidence. He tells you likewise, That there being a noise of discovering the Plot, they begun to hide; Sir John Cockram began to hide, and sculk from place to place; they came first with that Cant in their Mouths, about Carolina; The Messenger Atterbury tells you, When they came to take these Men, how they shuffled from place to place. So Gent. I must tell you, That if in case there be but One Wit∣ness to prove a direct Treason, and another Witness to a Circum∣stance that contributes to that Treason, that will make two Wit∣nesses to prove the Treason: Because I would explain my Mind, Not long ago all the Judges of England were commanded to meet together, and one that is the Senior of the Kings Councel was plea∣sed to put this Case. If I buy a Knife of I. S. to kill the King, and it be proved by one Witness I bought a Knife for this pur∣pose, and another comes and proves, I bought such a Knife of I. S. they are Two Witnesses sufficient to prove a man Guilty of High Treason: and so it was held by all the Judges of England then present, in the presence of all the Kings Councel. And therefore Mr. Sidney is mightily mistaken in the Law: For in case of any Treason (except the Treason at the Bar) or in Treason for Clip∣ping and Coining, one Witness is sufficient at this day. Now Gent. Supposing all this should not be sufficient, here is a Libel, and it is a most Traiterous and Seditious Libel. If you believe, that that was Coll. Sidney's Book, writ by him, no man can doubt but it is a sufficient Evidence, that he is Guilty of Compassing and Ima∣gining the Death of the King; and let us consider, what proof can be greater than what has been given of it. Mr. Sheppard, an inti∣mate acquaintance of his, that has seen him write, he looks upon the hand, and says, He is extreamly acquainted with the hand, and says He, I believe in my Conscience this Book is Coll. Sidney's hand. Gent. Do you expect Mr. Sidney would call a Witness to be by to see him write that Book?

In the next place, you have two Trades-men, Coke and Cary, and they tell you, one had seen him write once, the other had seen his hand writing, and they both believe it his Hand writing, and they have good reason, for they have paid several summs of Money, upon Notes which they took, as well as This, to be his Hand writing Gentlemen, Besides that, give me leave to tell you, here is another thing▪ that makes it more plain. This very Book is found in Colonel Sidney's House, on the Table in his Study, where he used to write, by a Gentleman, against whom Colonel Sidney can't make the least Objection; and that there was that fairness offered by the Gentleman, Pray Colonel put your Seal upon it, that you may see, that no injury be done you; but Mr. Sidney would not do it. There∣fore he Seals them with his own Seal, and carries them to White-hall where they were broken open, and Sweares that those Papers were found in his Closet, whereof this was one. Another thing which I must take notice of to you in this Case, is, to mind you, how this Book contains all the Ma∣lice, and Revenge, and Treason, that Mankind can be guilty of: It fixes the sole Power in the Parliament and the People; so that he carries on the Design still, for their Debates at their Meetings were to that purpose. And such Doctrines as these suit with their Debates; for there, a general Insur∣rection was designed, and that was discoursed of in this Book, and in∣couraged: They must not give it an ill Name: It must not be called a Rebellion, it being the general Act of the People. The King, it says, is responsible to them, the King is but their Trustee; That he had betray∣ed his Trust, he had misgoverned, and now he is to give it up, that they may be all Kings themselves. Gentlemen, I must tell you, I think I ought more than ordinarily to press this upon you, because I know, the Misfortune of the late unhappy Rebellion, and the bringing the late Blessed King to the Scaffold, was first begun by such kind of Principles: They cried, He had betrayed the Trust, that was delegated to him from the People. Gentlemen, in the next place, because he is afraid their Power alone won't do it, he endeavours to poison Mens Judgments; and the way he makes use of, he colours it with Religion, and quotes Scripture for it too, and you know, how far that went in the late times; How we were for binding our King in Chains, and our Nobles in Fetters of Iron. Gen∣tlemen, This is likewise made use of by him to stir up the People to Re∣bellion. Gentlemen, if in case the Prisoner did design the Deposing the King, the removing the King, and if in order thereunto he be guilty of Conspiring to Levy War; or, as to the Letter writ by my Lord Russel, if he was privy to it, these will be Evidences against him. So that 'tis not upon two, but 'tis upon greater Evidence then 22, if you believe this Book was writ by him. Next I must tell you, Gentlemen, upon, I think, a less Testimony, an Indictment was preferred against the late Lord Russel, and he was thereupon Convicted and Executed; of which they have brought the Record. These are the Evidences for the King.

For the Prisoner he hath made several Objections; As that there was no War Levied: For that, Gentlemen, at the beginning of the Cause, I told you, what I took the Law to be, and I take it to be so very plainly. But, Gentlemen, as to the Credibility of my Lord Howard, he offers you several Circumstances. First, He offers you a Noble Lord, my Lord Anglescy, who says, That he attending my Lord of Bedford upon the

misfortune of the Imprisonment of his Son; after he had done, my Lord Howard came to second that part of a Christians Office, which he had performed, and told him, he had a very good Son, and he knew no harm of him; and as to the Plot, he knew nothing of it. Another Noble Lord, my Lord Clare tells you, that he had some Discourse with my Lord How∣ard, and he said, that if he were accused, he thought they would but tell Noses and his business was done. Then Mr. Philip Howard, he tells you, how he was not so intimate with him as others, but he often came to his Brothers; and that he should say he knew nothing of a Plot, nor did he believe any; but at the same time, he said, he believed there was a Sham Plot: and then he pressed him about the business of the Address; but that now my Lord of Essex was out of Town, and so it went off. Another thing Mr. Sidney took notice of, says he, 'tis an Act of Revenge in my Lord Howard, for he owes him a Debt, that he does (besides by his Allegation) does not appear.

Col. Sid.

My Lord, he hath confessed it.

L. Ch. Iust.

Admit it; yet in case Collonel Sidney should be Convicted of this Treason, the Debt accrues to the King, and he can't be a Farthing the better for it. But how does it look like Revenge? I find my Lord Howard, when he speaks of Collonel Sidney, says, he was more beholding to him than any body, and was more sorry for him; so says my Lord Clare. Gentlemen, You have it likewise offered, that he came to Collo∣nel Sidney's House, and there he was desirous to have the Plate and Goods removed to his House, and that he would assist them with his Coach and Coachman to carry them thither; and did affirm, that he knew nothing of the Plot; and did not believe Collonel Sidney knew any thing: and this is likewise proved by a couple of Maid Servants, as well as the French Man. You have likewise some thing to the same purpose said by my Lord Paget, and this is offered to take off the Credibility of my Lord Howard. Do you believe, because my Lord Howard did not tell them, I am in a Conspiracy to kill the King; therefore he knew no∣thing of it; he knew these Persons were Men of Honour, and would not be concerned in any such thing. But do you think, because a Man goes about and denies his being in a Plot, therefore he was not in it: Nay, it seems so far from being an Evidence of his Innocence, that 'tis an Evi∣dence of his Guilt. What should provoke a Man to discourse after this manner, if he had not apprehensions of Guilt within himself? This is the Testimony offered against my Lord Howard, in disparagement of his Evidence. Ay, but further its objected, he is in expectation of a Pardon: And he did say, he thought he should not have the Kings Pardon, till such time as the drudgery of Swearing was over. Why, Gentlemen, I take notice, before this Discourse happened, he Swore the same thing at my Lord Russel's Tryal. And I must tell you, though it is the Duty of every Man to discover all Treasons; yet I tell you, for a Man to come and Swear himself over and over Guilty, in the face of a Court of Justice, may seem irksome, and provoke a Man to give it such an Epithet. 'Tis therefore for his Credit, that he is an unwilling Witness: But, Gentle∣men, consider, if these things should have been allowed to take away the Credibility of a Witness, what would have become of the Testimonies, that have been given of late days? What would become of the Evidence of all those, that have been so profligate in their Lives? Would you have the

Kings Council to call none but men, that were not concerned in this Plot, to prove that they were Plotting? Ay, but Gentlemen, it is further objected, This Hand looks like an old Hand, and it may not be the Prisoners Hand, but be Counterfeited; and for that there is a Gentleman, who tells you what a dexterous Man he is. He says, he believes he could Counterfeit any Hand in half an hour; 'tis an ugly temptation, but I hope he hath more Honour than to make use of that Art, he so much glories in. But what time could there be for the Counterfeiting of this Book? Can you, imagine that Sir Philip Lloyd through the Bag Sealed up did it? Or, who else can you imagine should, or, does the Prisoner pretend, did write this Book? So that as on one side, God forbid, but we should be careful of Mens Lives, so on the other side, God forbid, that Flourishes and Varnish should come to indanger the Life of the King, and the Destruction of the Government. But, Gentlemen, We are not to anticipate you in point of Fact, I have according to my Memory recapitulated the matters given in Evidence. It remains purely in you now, whether you do believe up∣on the whole matter, that the Prisoner is Guilty of the High-Treason, whereof he is Indicted.

Mr. Iust.

Withins. Gentlemen, 'Tis fit you should have our Opini∣ons; in all the points of Law we concur with my Lord Chief Justice: Says Colonel Sidney, here is a mighty Conspiracy, but there is no∣thing comes of it, who must we thank for that? None but the Al∣mighty Providence: One of themselves was troubled in Conscience, and comes and discovers it, had not Keeling discovered it, God knows whether we might have been alive at this day.

Then the Jury withdrew, and in about half an hours time returned, and brought the Prisoner in, Guilty.

And the Lievtenant of the Tower took away his Prisoner.

Munday 26. Nov. 1683. Algernoon Sidney Esquire was brought up to the Bar of the Court of Kings▪ bench to re∣ceive his Sentence.

L. Ch. Iust.

Mr, Attorney, will you move any thing?

Mr. Att. Gen.

My Lord, the Prisoner at the Bar is convicted of High Treason, I demand Judgment against him.

Cl. of Crown.

Algernoon Sidney. Hold up thy hand

(which he did)

Thou hast been indicted of High Treason, and thereupon arraigned, and there∣unto pleaded not Guilty, and for thy Tryal put thy self upon God and the Country, which Country has found thee Guilty, What can'st thou say for thy self, Why Judgment of death should not be given against thee, and execution awarded according to Law?

Col. Sidney.

My Lord, I humbly conceive, I have had no Tryal, I was to be tryed by my Country, I do not find my Country in the Jury that did try me, There were some of them that were not Free∣holders, I think my Lord, There is neither Law nor President of any man that has been tryed by a Jury, upon an Indictment lay'd in a County, that were not Freeholders. So I do humbly conceive: That I have had no Tryal at all, and if I have had no Tryal, there can be no Judgment.

L. Ch. Just.

Mr. Sidney, you had the Opinion of the Court in that

matter before, We were unanimous in it, for it was the Opinion of all the Judges of England, in the Case next proceeding yours, tho' that was a Case relating to Corporations, but they were of Opinion, that by the Statute of Queen Mary the Tryal of Treason was put as it was at Common Law, and that there was no such Challenge of Common Law.

Col. Sidney.

Under favour, my Lord, I presume in such a Case as this, of Life, and for what I know concernes every man in England, you will give me a day and Counsel to argue it.

L. Ch. Iust.

Tis not in the Power of the Court to do it.

Col. Sidney.

My Lord, I desire the Indictment against me may be read.

L. Ch. Iust.

To what purpose?

Col. Sidney.

I have somewhat to say to it.

L. Ch. Iust.

Well, read the Indictment.

Then the Clerk of the Crown read the Indictment.

Col. Sidney.

Pray Sir, will you give me leave to see it, if it please you.

L. Ch. Iust.

No, that we cannot do.

Col. Sidney.

My Lord, there is one thing then that makes this abso∣lutely voyd, It deprives the King of his Title, which is Treason by Law Defensor fidei. There is no such thing there, if I heard it Right.

L. Ch. Iust.

In that you would deprive the King of his Life, that is in very full I think.

Col. Sidney.

If no body would deprive the King, no more then I, he would be in no danger. Under favour these are things not to be over∣ruled in point of Life so easily.

L. Ch. Iust.

Mr. Sidney, We very well understand our duty, we don't need to be told by you what our Duty is, we tell you nothing, but what is Law, and if you make Objections, that are immaterial, we must overrule them. Don't think that we overrule in your Case that we would not overrule in all mens Cases in your Condition. The Treason is suffi∣ciently lay'd.

Col. Sidney.

My Lord, I conceive this too, that those words, that are said to be written in the Paper that there is nothing of Treason in them, Besides that there was nothing at all proved of them only by similitude of hands, which upon the Case I alledged to your Lordship was not to be admitted in a Criminal Case. Now 'tis easy to call a thing prodito∣rie, but yet let the nature of the thing be examined, I put my self upon it, that there is no Treason in it.

L. Ch. Iust.

There is not a Line in the Book scarce, but what is Trea∣son.

Mr, Just. Withins.

I believe you don't believe it Treason.

L. Ch. Iust.

That is the worst part of your Case; When men are rive∣ted in Opinion, that Kings may be deposed, that thy are accomptable to their People, that a general Insurrection is no Rebellion, and, justifie it, 'tis high time upon my word to call them to account.

Col. Sidney.

My Lord, the other day I had a book, wherein I had King James Speech, upon which all that is there is grounded in his own Speech to the Parliament in 1603 and there is nothing in these Papers, which is called a Book, tho' it never appeared, for if it were true, it was only Papers found in a private man's Study, never shew'd to any body; and Mr. Attorney takes this to bring it to a crime in order to some other

Counsel, and this was to come out such a time, when the Insurrectio•• brake out. My Lord, There is one Person I did not know where t•• find then, but every Body knows where to find now, that is the Duke of Monmouth; if there had been any thing in Consultation, by this means to bring any thing about, he must have known of it, for it must be taken to be in Prosecution of those Designs of his: And if he will say there ever was any such thing, or knew any thing of it, I will acknow∣ledge whatever you please.

L. Ch. Iust.

That is over; you were Tryed for this Fact: We must not send for the Duke of Monmouth.

Col. Sidney.

I humbly think I ought, and desire to be heard upon it.

L. Ch. Iust.

Upon what?

Col. Sidney.

If you will call it a Tryal—

L. Ch. Iust.

I do. The Law calls it so.

Mr. Just. Withins.

We must not hear such Discourses, after you have been Tryed here, and the Jury have given their Verdict; as if you had not Justice done you.

Mr. Just. Holloway.

I think it was a very fair Tryal.

Col. Sidney.

My Lord, I desire, That you would hear my Reasons, why I should be brought to a new Tryal.

L. Ch. Iust.

That can't be.

Col. Sidney.

Be the Tryal what it will.

Cl. of Cr.

Cryer, make an Oyes.

Col. Sidney.

Can't I be heard my Lord?

L. Ch. Iust.

Yes, If you will speak that which is proper; 'tis a strange thing. You seem to appeal, as if you had some great hardship upon you. I am sure, I can as well appeal as you. I am sure you had all the Favour shewed you, that ever any Prisoner had. The Court heard you with Patience, when you spake what was proper; but if you begin to Arraign the Justice of the Nation, it concerns the Justice of the Nation to prevent you: We are bound by our Consciences and our Oaths to see right done to you; and tho' we are Judges upon Earth, we are accomptable to the Judge of Heaven and Earth; and we act according to our Consciences, tho' we don't act according to your Opinion.

Col. Sid.

My Lord, I say. In the first place I was brought to West∣minster by Habeas Corpus, the 7th of this Month, granted the day before to be Arraigned, when yet no Bill was exhibited against me; and my Prosecutors could not know it would be found, unless they had a Corre∣spondence with the Grand Jury, which under favour ought not to have been had.

L. Ch. Iust.

We know nothing of it: You had as good tell us of some∣bodies Ghost, as you did at the Tryal.

Col. Sid.

I told you of two infamous Persons that had acted my Lord Russel's Ghost.

L. Ch. Iust.

Go on, if you have any thing else.

Col. Sid.

I prayed a Copy of the Indictment, making my Objections against it, and putting in a special Plea, which the Law, I humbly con∣ceive allowed me: the help of Counsel to frame it was denied.

L. Ch. Iust.

For the Copy of the Indictment, it was denied in the Case you cited. This favour shewed you to day, was denied at any time to

Sir Henry Vane, that is to have the Indictment read in Latin. Don't say on the other side, we refused your Plea. I told you, have a care of put∣ting it in. If the Plea was such as Mr. Attorney did demurre to it. I told you, you were answerable for the Consequences of it.

Mr. Just. Withins.

We told you, you might put it in, but you must put it in at your Peril.

Col. Sidney.

My Lord, I would have put it in.

L. Ch. Iust.

I did advertise you. If you put in a Plea, upon your Peril be it. I told you, We are bound by Law to give you that fair advertise∣ment of the great danger you would fall under, if it were not a good Plea.

Col. Sidney.

My Lord, my Plea was that, could never hurt me.

L. Ch. Iust.

We do not know that.

Col. Sid.

I desire, my Lord, this, that it may be considered, That, being brought here to my Tryal, I did desire a Copy of my Indictment, upon the Statute of 46, E. 3. which does allow it to all Men in all Cases.

L. Ch. Iust.

I tell you the Law is otherwise, and told you so then, and tell you so now.

Col. Sid.

Your Lordship did not tell me, That was not a Law.

L. Ch. Iust.

Unless there be a Law particular for Col. Sidney. If you have any more to say—

Col. Sid.

I am probably informed, and, if your Lordship will give me time, shall be able to prove it, That the Jury was not summoned, as it ought to be: My Lord, if this Jury was not summoned by the Bailiffe, according to the ordinary way, but they were agreed upon by the Un∣der-Sheriff, Graham, and Burton, I desire to know, whether that be a good Jury?

L. Ch. Iust.

We can take notice of nothing, but what is upon the Re∣cord: Here is a return by the Sheriff; if there had been any indirect means used with the Sheriff, or any else, you should have mentioned it, before they were Sworn.

Col. Sid.

Is there any thing in the World more irregular then that?

L. Ch. Iust.

I know nothing of it. That time is past.

Col. Sid.

Now, my Lord, All men are admitted on the Jury.

L. Ch. Iu.

Why you did not like Gentlemen, and now you don't like those that you had. In plain English, if any Jury had found you Guilty it had been the same thing. It had been a good Summons, if they had ac∣quitted you.

Col. Sidney.

When the Jury, thus composed, was sworne, 4 witnesses, of whom 3 were under the terror of Death for Treasons, were produc'd against me. And they confessed themselves guilty of Crimes, of which I had no knowledge, and told storys by hear-say. And your Lordship did promise in summing up the Evidence, that the Jury should be in∣formed what did reach me, and what not, and I don't remember that was done.

L. Ch. Iust.

I did it particularly, I think I was as careful of it as possi∣bly I could be.

Col. Sidney.

My Lord Howard being the only Witness, that say'd any thing against me; Papers, which were sayd to be found in my house, were produced as another Witness, and no other Testimony given concerning

them, but that the hand was like unto mine. No man can say, I read them, or shew'd them to any man. None knew when they were written; The Ink shewed, they had been done many, and perhaps, 20 or 30, years. Yea, some passages were read out of them, without examining what went before and after, when I desired the whole might be read, it was refused, unless I specified the passage, which I could not do, know∣ing not one word in them. When I alledged, that in Criminal Cases simi∣litude of hands could not be taken for Evidence, proposed my Points of Law concerning Constructive Treason &c. And I did conceive, that no Court under the Parliament could be Judges of it, and did desire the Statute, which did so Enact it, might be read, it could not be obtained: And I cited many Judgments in Parliament.

L. Ch. Iust.

Mr. Sidney, If you arraign the Justice of the Nation so, as tho' we had denied you the Methods of Justice, I must tell you, you do what do's not become you, for we denied you nothing that ought to have been granted. If we had granted you less, I think we had done more our duty. What points of Law do you mean?

Col. Sidney.

That of Constructive Treason, my Lord.

L. Ch. Iust.

We do not go upon Constructive Treason, 'tis plain Trea∣son within 25. E. 3.

Col. Sidney.

Is Writing an Act?

L. Ch. Iustice.

Yes, 'tis agere.

(Proclamation made for silence.

Mr. Bamfield.

Sir, I pray you to hear me one word as Amicus Curiae, I humbly suppose that your Lordship will not give Judgment, if there be a material defect in the Indictment, as the Clerk did read it, he left out Defensor fidei, which is part of the Style of his Majesty.

L. Ch. Iust.

We have heard of it already, we thank you for your Friendship, and are satisfied. Mr. Sidney, there remains nothing for the Court, but to discharge their Duty, in pronouncing that Judgment, the Law requires to be pronounced, against all Persons convicted of High Treason; and, I must tell you, that tho' you seem to arraign the Ju∣stice of the Court, and the proceeding—

Col. Sidney.

I must appeal to God and the World. I am not heard.

L. Ch. Iust.

Appeal to whom you will. I could wish with all my heart, instead of Appealing to the World, as though you had received something extream hard in your Case, that you would Appeal to the great God of Heaven, and consider the Guilt, you have contracted, by the great Of∣fence, you have committed. I wish with all my heart, you would con∣sider your Condition, but if your own Ingenuity, will not pro∣voke you, nothing I can say, will prevail with you to do it, if the Kings General Pardon, in which you had so great a share of the Kings mercy, will not. I could wish, that, as a Gentleman, and as a Christian you would consider, under what Particular Obligations you lye to that Gracious King, that hath done much more for you. I should have thought it would have wrought in you such a temper of mind, as to have turned the rest of your life into a generous acknowledgement of his Bounty and Mercy, and not into a State of constant Combining and Writing, not only to destroy Him, but to subvert the Government; and I am sorry to see you so earnest, in the Justification of the Book, in which there is scarce a Line, but what contains the rankest Treason, such as deposing

the King: It not only incourages, but justifies all Rebellion. Mr. Sid∣ney, you are a Gentleman of Quality, and need no Counsel from me: If I could give you any, my Charity to your Immortal Soul, would provoke me to it. I pray God, season this affliction to you. There re∣mains nothing with the Court, but to Pronounce that Judgement, that is expected, and the Law requires, and therefore the Judgment of the Court is,

That you be carried hence to the place from whence you came, and from thence you shall be drawn upon an Hurdle to the Place of Execution, where you shall be hanged by the Neck, and, being alive, cut down; your Privy Members shall be cut off, and burned before your Face, your Head severed from your Body, and your Body divided into four Quarters, and they to be disposed at the Pleasure of the King. And the God of infinite Mercy have mercy upon your Soul.

Col. Sidney.

Then, O God, O God, I beseech thee to Sanctifie these sufferings unto me, and impute not my Blood to the Country, nor the City, through which I am to be drawn; Let no inquisition be made for it, but if any, and the shedding of Blood, that is innocent, must be re∣venged, Let the weight of it fall only upon those, that maliciously Per∣secute me for Righteousness sake.

L. Ch. Iust.

I pray God work in you a temper fit to go unto the o∣ther World, for I see you are not fit for This.

Col. Sidney.

My Lord, feel my Pulse

(holding out his hand)

and see if I am disordered, I bless God, I never was in better temper, then I am now.

Then the Lieutenant of the Tower carried back his Prisoner.

FINIS.