THE TRYAL OF John Hambden Esq The 28 th day of November 1683. Ann. 35. Car. 2. Reg. John Hambden Esq being brought up by Writ of Habeas Corpus from the Tower of London and there being an Indictment preferred against him for Misdemeanor His Majesties Attorney General prayed that he might be Aâ—â—igned upon it which was done in this manner Cl. of Cr. JOhn Hambden You stand here Indicted by the Name of John Hambden late of the Parish of St. Giles in the Fields in the County of Middlesex Gent. For that you being a Pernitious and Seditious Man and a Person of a Wicked mind and of an impious unquiet and turbulent Disposition and contriving practising and falsly unlawfully unjustly maliciously turbulently and seditiously intending the Peace of our Soveraign Lord King Charles that now is and the common Tranquility of this Kingdom of England to disquiet molest and disturb and as much as in you lay Sedition within this Kingdom of England to incite stir up and procure and the Government of our said Lord the King in this Kingdom of England into danger to bring And that you the said John Hambden your most Impious Wicked and Seditious Intentions aforesaid to fulfil and perfect and bring to effect the last day of June in the Five and Thirtieth year of the Reign of our said Soveraign Lord the King that now is and divers other days and times as well before as after with Force and Arms c. At the Parish of St. Giles in the Fields in the County of Middlesex unlawfully unjustly maliciously and seditiously did assemble your self meet consult conspire and confederate with divers evil disposed Subjects of our said Lord the King to the Jurors unknown and with the said Persons did treat concerning your said most Wicked and Seditious Compassings Imaginations and Purposes aforesaid to be executed fulfill'd and brought to effect and further that you the said John Hambden your most Wicked Impious and Seditious Contrivances Practices and Intentions aforesaid to fulfil perfect and reduce to effect then and there viz. the last day of June in the 35th year aforesaid and divers other days and times as well before as after at the Parish aforesaid in the County aforesaid with Force and Arms c. falsly unlawfully unjustly maliciously and seditiously did consult consent censpire and confederate of an Insurrection within this Kingdom of England to be made and of procuring and providing Arms and Armed Men to be prepared in divers places within this Kingdom of England your same most Wicked Impious and Seditious Intentions and Compassings aforesaid to fulfil and perfect And that you the said John Hambden your most Wicked Impious and Seditious Intentions aforesaid to fulfil and perfect and bring to effect afterwards viz. the last day of June in the 35th year aforesaid at the Parish aforesaid in the County aforesaid with Force and Arms c. falsly unlawfully unjustly wickedly maliciously and seditiously did consult agree and consent that a certain Person to the Jurors aforesaid unknown should be sent into Scotland to invite and incite divers evil disposed Subjects of our said Lord the King of his Kingdom of Scotland to come into this Kingdom of England to advise and consult with you the said John Hambden and others the aforesaid evil disposed Subjects of our said Lord the King in this Kingdom of England concerning Aid and Assistance to be expected and supplyed out of the said Kingdom of Scotland your said most Wicked Impious and Seditious Intentions and Compassings aforesaid to fulfil effect and promote in manifest contempt of the Laws of this Kingdom of England to the evil and most pernicious Example of all others in the like case offending and against the Peace of our said Soveraign Lord the King his Crown and Dignity How sayst thou art thou Guilty of this High Misdemeanour whereof thou standest Indicted and hast been now Arraigned or not Guilty Mr. Hambden Not Guilty Upon which Plea issue was joyned between His Majesties Attorney General on behalf of the King and Defendant and Bail was then taken for the Defendants appearance the next Term. Hillary Term 35 and 36. Car. Secundi Reg. In the beginning of the Term Sir Thomas Jenner Knight His Majesties Serjeant at Law and Recorder of the City of London Moved for a Tryal at the Bar in the Case between the King and Mr. Hambden which was by the Court appointed to be on Wednesday the 6th of February in the same Term. Die Mercurii 6. Februarii 1683. Anno Regni Reg. Car. Secundi 36. Cl. of Cr. Call the Defendant John Hambden Mr. Williams He appears Cl. of Cr. Gardez votrez Challenges Call Sir Charles Gerard. Cryer You shall well and truly try the Issue between our Soveraign Lord the King and John Hambden Gent. and a true Verdict give according to your Evidence So help you â—â—d Jurat Sir Charles Gerard. Cl. of Cr. Roger Jennings Esq Jur. Henry Hodges Esq Jur. Joshua Galliard Esq Mr. Williams We challenge him for the Defendant L. Ch. Just What is your Cause of Challenge Mr. Williams If your Lordship please to let him go through the Pannel we will shew cause if there be not enough left without him L. Ch. Just No shew your Cause now it being against the King Mr. Williams He has an Employment under the King He has an Office in the Forest and that we say is our Cause of Challenge L. Ch. Just What then if he have Mr. Williams My Lord We suppose then he is not an indifferent Person to try this Cause L. Ch. Just Ay let me hear that now proved and defended by any Gentleman of the long Robe that that is a good cause of Challenge Shew me what Law there is for it Mr. Williams To be of the Kings Robe or Pay or Sallery is an exception in any Case wherein the King is concerned L. Ch. Just Shew me any Law for that if you can Mr. Williams I know you are a Lawyer Mr. Wallop It is the Opinion of my Lord Coke in his Institutes that it is a good Cause of Challenge L. Ch. Just But there is the Opinion of all the Judges in Henry the Fourths time against it Mr. Wallop It is my Lord fol. 156. L. Ch. Just But I can cite you three or four Books and you have them all together in Rolls Abridgment Title Challenge where he sets down four Books one after another That it is no cause of Challenge even to be the Kings Tenant and there is a great deal of reason for it For if that were a good Cause of Challenge mark the Consequence then all Persons that hold Lands in England hold them mediately or immediately of the King and so the King could have no Free-holders to be Jury-Men in his Cause Mr. Williams This is a more special Cause of Challenge than that L. Ch. Just What can be greater than that of being the Kings Tenant Mr. Att. Gen. Especially when all the Land
little at present in possession Your Lordship knows what Magna Charta says That there should be a Salvo Contenemento in all Fines and how far that may be an ingredient into your Lordships Judgment I leave to your Consideration L. C. J. For that matter I cannot tell what his Estate is I have no knowledg of him nor of his Estate whether it be great or small but Mr. Williams knows very well That the Crime in Conscience as well as Law in case it had been proved by two Witnesses would not only have wrought a forfeiture of all his Estate but a forfeiture of his Life too and all his reputation would have bastardized his Children would have attainted and corrupted his bloud So that there is no sort of imagination but that the Crime was High enough of Conscience and certainly deserves if we can impose it adequate to its desert a very great punishment Mr. Hambden nor his Counsel can deny but that they had a fair and a full hearing They had the liberty to say and prove all that they could and you cannot but say Mr. Attorney was very fair in making several Concessions that he might very lawfully and rightly insisted upon So that there can be no Exception of that kind I am sorry That Mr. Hambden a Gentleman of good Quality as he is by Birth though he be a Person I never saw before he came here the last day of the last Term upon his Habeas Corpus that I know of I say I am sorry one of his Quality and Education a studious Person as it seems by his own natural inclination and a learned Man should be so unhappily engaged in a design of this horridly evil nature But on the one side as well as we must take care of the Subject so on the other we must take care of the Government Here was a design of destroying the King and subverting the Government and bringing all into confusion Of this Design the Defendant is convicted and we must take care to proportion the punishment and according to our Consciences and Oaths and as we ought to have regard to the Offender so also we are to have regard to the Government that he has offended Mr. J. Wythens Mr. Williams It was Amercements that were spoken of there in Magna Charta L. C. J. Ay It was never meant of Fines for great Offences Then the Judges consulted together Mr. J. Wythens Mr. Hambden You know you are convicted of a very great Offence as great an Offence as can be I think committed unless it were High Treason For the matter of it would have made you Guilty if there had been two Witnesses It was for conspiring to levy War against His Majesty and for conspiring to raise an Insurrection and Rebellion within the Kingdom a Conspiracy of which some other Persons being lawfully convicted they have suffered death for it You are a Person of an extraordinary good Family and I am sorry one of your Family that has flourished so long and through so many Generations in great honour and reputation and great prosperity under the Monarchy of England should come to conspire to deprive that King of his Government whose Ancestors have protected and defended your Family and to spoil that Monarchy that has been the fountain of so much prosperity and honour to it I am sorry it comes to my turn to pronounce the Sentence of the Court upon you Mr. Hambden I have not any personal knowledg of you but I have heard of you and heard heretofore very well of you You have had a good Education and the Report of a learned and ingenuous Person which makes me yet wonder the more that you should engage in such a horrid Design as this was Indeed Mr. Hambden I am satisfied no Fine can be too great if any can be great enough for such an Offence We cannot take cognizance what your Estate is 't is reported there is a great Estate in your Family it has been always represented to be so Mr. Hambden I have nothing but for life and that is but little neither Mr. J. Wythens I know not what it is truly Sir But it was always reported to me to be a very great Estate but whatsoever it is we are to look after the proportioning the Punishment as near as we can to the Offence My Lord and the Court have considered of the matter and they think fit to give this Judgment upon you They set the Fine of Forty Thousand Pounds upon you to be paid to the King and you must be committed till you pay it L. C. J. And that you find Sureties for your good behaviour during your Life Mr. Att. Gen. I pray he may be committed for his Fine L. C. J. Let it be so Mr. Hambden If you will apply your self to the King you may and there perhaps you may find mercy we must according to the duty of our Places and Oaths give such Judgment as the Law requires Mr. Just Withins Ay In God's Name You are in the King's hands and he may do what he pleases in it L. C. J. If a Crime of this nature should have a little punishment it might encourage Offenders and if we were to judg according to some Verdicts that have been given here for less Offences where Gentlemen have given very much greater damages than thiâ— Fine amounts to this would be thought a moderate Fine I am sorry any Man should bring himself into these Circumstances The King as he is the Fountain of Justice so he is also of Mercy and you and all the rest of his Subjects have cause to bless God that you live under a Monarch that is very merciful No doubt If you give a good account of your Contrition and sorrow for your great Offence and decently apply your self to the King he will think of shewing mercy to you but Justice is our Work that are Judges and according to the methods of Justice we think we cannot inflict less than we have done Mr. Williams My Lord I pray his Bail may be discharged L. C. J. Ay his Bail is discharged he being committed Mr. Williams And for the High Treason he is discharged by the Habeas Corpus Act. L. C. J. Yes he is so for there is no Prosecution Then Mr. Hambden was carried by the Marshal away Prisoner FINIS Then the Dr. was sworn and the Oath repeated to him by Sir H. H. in French Then Doctor Needham was sworn
of England was held of the Crown as originally it was Mr. Trever My Lord in 2d Rolls 646. Tit. Tryals There is the express Opinion of my Lord Rolls That to be of the Livery or a menial Servant of the Crown is a good Cause of Challenge L. Ch. Just And look you but in the 1 st Case in the 1 st Part of the Abridgment Title Challenges where he mentions 3 or 4 Books to the same purpose and 't is quite otherwise Mr. Williams My Lord In that of 1 st Rolls he only cites some Books but the other is his own Opinion L. Ch. Just Well make out your Fact if you have a mind to it but it is well known that neither Mr. Serjeant Rolls nor my Lord Coke when he delivered that Opinion are to be reckoned such Authorities in Crown matters Mr. Williams We will ask him my Lord if you please I suppose he will not deny it L. Ch. Just No make out your Fact if you will have any benefit by it 't is only a Challenge to the favour which ought not to be in the Kings Case I am very glad that we are now to debate this matter with Men of the Robe because we have had a strange sort of Notions and Reflections spread abroad of late as tho' the Judges now adays gave strange sort of Opinions and as tho' Persons that had been blemishes at the Bar were preferred to do strange things when they come upon the Bench but truly I wonder to hear that it should be a doubt when at the same time that which we gave as our Opinion about one particular Challenge that is as to Free-holders it was the Judgment of all the Judges That that was no Challenge and all the Counsel that were concerned in that Case know it was the Opinion of all the Judges But now if we meet with Lawyers I shall be glad to have the matter fairly argued and debated and pray shew me what Law or Reason is for it Mr. Wallop Certainly my Lord there is a great difference betwixt the general Allegiance of all Men and so of a general tenure and the dependance of any particular Person who is a menial Servant and receives Wages of the King L. Ch. Just I would desire to know of you Mr. Wallop which is the greater Challenge to say such a one is Tenant or such a one is immediate Servant to J. S Mr. Wallop There is a great difference my Lord I think between an immediate Tenant and the general tenure of all Subjects L. Ch. Just But certainly the Law is thus if he were an immediate or a mediate Tenant to any but the King if his Lord were party to the Suit it would be a good Challenge but the being Tenant to the King is no good Challenge in the Kings Case Mr. Williams My Lord I take it the Act of Parliament that takes away the Court of Wards and Liveries hath altered the Law as to that matter of Tenure for now we hold in Socage and that other Tenure is destroyed that was between the King and his Subjects L. Ch. Just But pray how comes it to be a Challenge now that was not one before Does that Act of Parliament make it a good cause of Challenge If it does shew it I tell you the Old Books are against it Mr. Williams I speak my Lord to the Tenure That that is nothing at all now to be objected because all is now in Socage L. Ch. Just I would not have Mr. Attorney insist upon a Jury-man but yet with-all I would not have it gone away with as Law that it is a good Cause of Challenge Mr. Wallop My Lord We finding in some Cases that are in our Books that it is held to be a good Cause of Challenge lay it before the Court. Mr. Att. Gen. How many 100 Errors do you find in my Lord Coke notwithstanding all his Learning L. Ch. Just I say if I was Mr. Attorney I would not contest for any particular man to be a Jury-man I speak that as my advice but I would not have it taken for Law nor would I have it broached abroad that tho' the Judges now were of one Opinion yet the Law truely was of another Mr. Jones If all that receive Sallery or Wages from the King are not to be Jury-men in the Kings Causes then all the Deputy Lieutenants and Militia Officers which generally are the most substantially Freeholders are excluded from being Jury-men Mr. Just Wythins Who will say so Mr. Jones No Lawyer in England surely will say so Mr. Williams Offices where there are no profit will not be the same exception Mr. Att. Gen. But he is no menial Servant of the Kings Mr. Williams What is he then Mr. Wallop We hear that he is Keeper of one of the Kings Forests and has a Fee for it Mr. Williams Well we will ask him upon a voyer dire Mr. Att. Gen. My Lord The Fact is quite otherwise and I desire they may make it out L. Ch. Just Truly I think 't is not tanti to insist upon any particular man but I find we are in Age that is so full of Cavils that if we act but according to the Presidents that went before us we are thought to act as Originals and to make new Laws when we only follow the Rules that we have received from our Predecessors And I say there was no such Challenge at Common Law that ever I read of in any of our Books nor is it any Challenge by the best Authorities extant Mr. Jones I desire them to shew me any such President That any man was challenged by one that was tried at the Suit of the King for a Challenge to the Favour but we must do unpresidented things or else there will be no satisfying of some Men. Mr. Att. Gen. I would fain know what one Opinion in a stragling Book is against the Currant of all our Law Mr. Williams Which do you call a stragling Book Mr Attorney my Lord Coke's Institutes or my Lord Rolls Abridgment L. Ch. Just I say the better Opinion of the Books is on the other side and the greater number too Mr. Att. Gen. First of all I do know of my own knowledge he is no menial Servant L. Ch. Just Mr. Attorney I do debate it for Learning sake truely I know not the Man nor whether he be the Kings Servant or not but I speak against allowing the Challenge that if he be set aside it may not be taken as a President and so pass for Law that the Kings Servants can't be Jury-men I would have you quit the man by consent but not as a force-put as tho' the Law were so for the Law I think is otherwise Mr. Att. General He is none my Lord they mistake L. Ch. Just Nay I know nothing of the man I tell you only what I think Mr. Wallop He receives Wages or a Fee from the King for his Office Mr. Just Wythins
I would never for my part while I live nor never did while I was a practiser stand upon any particular Jury-man Mr. Att Gen. He may be a Jury-man by Law sure L. Ch. Just There is no doubt of it Mr. Attorney Mr. Att. Gen. My Lord If your Lordships have given your Opinion I desire he may stand by L. Ch. Just Well Mr. Attorney waves him Let him stand by Mr. Att. Gen. But for no Reason that has been offered L. Ch. Just No no I don't hear any thing of Reason offered for it Cl. of Cr. Mr. Galliard You may go down Thomas Harriott Esq Jur. Thomas Earsby Esq Jur. William Avery Esq Jur. John Sharpe Esq Jur. Richard Shoreditch Mr. Williams We challenge him for the Defendant L. Ch. Just What is your Cause of Challenge Mr. Williams There is the same exception to him L. Ch. Just If Mr. Attorney will consent with all my heart Mr. Sol. Gen. No we humor'd you in one we won't humor you any more Mr. Williams Nay here is something more clear for us He is a Serjeant at Arms attending His Majesty Mr. Just Wythins You know our Opinions already Mr. Williams unless Mr. Attorney consent we can't do it Mr. Williams We only acquaint Mr. Attorney with it we must submit to your Rule he is certainly Serjeant at Arms he came in the place of Dereham that let my Lord Gray escape Mr. Att. Gen. Pray prove it I don't know it for my share Mr. Williams Will you ask him the Question Mr. Att. Gen. Pray prove it Are we to gratifie your Clyent Pray let him better instruct his Counsel L. C. Just If Mr. Attorney consent not then he must be sworn Mr. Att. Gen. If there be enough without him that do appear let him stand by Cl. of Cr. Stand down Mr. Shoreditch Charles Good Esq Jur. Mr. Att. Gen. That it may appear how fair things were carried they would not strike out one of these Men when they came before the Protonotary as they might have done Mr. Just Wythins Truly that was not well done to trouble the Court when you might make your exceptions there Mr. Williams We did not know it then now we do we offer it to the Court. Cl. of Cr. Sam. Rouse Esq Jur. Hugh Squire Esq Jur. Nehemiah Arnold Esq Jur. and John Bifeild Esq Jur. Then the Jury were numbred and the 12 sworn were these Sir Charles Gerard Baronet Jur. Roger Jennings Esq Jur. Henry Hodges Esq Jur. Thomas Harriott Esq Jur. Thomas Earsby Esq Jur. William Avery Esq Jur. John Sharpe Esq Jur. Charles Good Esq Jur. Samuel Rouse Esq Jur. Hugh Squire Esq Jur. Nehemiah Arnold Esq Jur. John Bifeild Esq Jur. Cl. of Cr. Gentlemen of the Jury You that are sworn Hearken to your Charge The Defendant John Hambden stands Indicted by the name of John Hambden of the Parish of St. Giles in the Fields in the County of Middlesex Gent. Prout in the Indictment mutatis mutandis To this Indictment he has pleaded not Guilty and for his Tryal puts himself upon the Country and the Kings Attorney General likewise which Country you are your Charge is to inquire whether the Defendant be Guilty of the great Misdemeanour whereof he stands Indicted or not Guilty if you find him Guilty you are to say so and if you find him not Guilty you are to say so and no more and hear your Evidence Then Proclamation was made for Evidence in usual form Mr Holoway May it please your Lordship and Gentlemen you that are sworn I am of Counsel for the King upon this Indictment Gentlemen the Indictment sets forth that the Defendant being a Seditious Malitious Evil disposed Person and Seditiously and Maliciously intending to disturb the Peace of the Kingdom the last day of June in the 35. year of his now Majesty's Reign and divers other days and times at the Parish of St. Giles in the Fields in your County did unlawfully assemble and confederate himself with divers Evil-disposed Persons Subjects of our Lord the King and then and there with those other persons did Falsly Maliciously and Seditiously consult and conspire to make an Insurrection in the Kingdom of England and to provide Arms and Armed men in divers places of the said Kingdom And the better to compleat his Evil Intentions the said last day of June did consult and agree to send certain persons to the Jurors unknown into Scotland to invite several Evil-disposed Persons there to joyn in this Conspiracy This is the Substance of the Charge and to this he says He is not Guilty If we prove him so we do not question but you will find it Mr. Att. Gen. May it please your Lordship and you Gentlemen of this Jury Mr Hambden stands Indicted of an High Misdemeanour for conspiring with several others to raise Rebellion within the Kingdom and to crave the Assistance of the Brother-hood of Scotland Upon the face of the Indictment Gentlemen it appears to be a very high Crime and the matter of this indeed has been formerly in examination in other Tryals and yet the Party you may observe do not acquiesce in those Tryals but think the Persons accused lay under very great hardships and that to a very great degree as not having the advantage of Counsel nor to have their Witnesses examined upon Oath and therefore Gentlemen the King is pleased to go less in this Case than in the others That this Gentleman who is now before the Court may clear his innocence if he has any Witnesses to do it And if there be any advantage that the having of Counsel can contribute to his Cause he has that allowed him too The Course of our Evidence Gentlemen will be this We shall prove to you that Mr. Hambden with five other Persons I shall name them The Duke of Monmouth my Lord Russel Mr. Sidney my Lord of Essex and my Lord Howard they met several times the particulars we shall give you an account of one was at Mr. Hambden's house another was at my Lords Russels where they did contrive together and took upon them to be a Juncto or a Counsel of Six collected out of the wisest men of the Kingdom to consider how they might better the Affairs of the Nation and how they might make a Stir For they thought there was no way possible otherwise of doing it but by their joynt Counsels to carry on a Rising And that they might do it the Better they resolved to crave the Assistance of Scotland Gentlemen We shall give you an account of their Consults and Debates and shall shew you that at length they came to a Resolution That the rising was to be carried on joyntly in London and the several parts of the Kingdom in several Countries at once Then they came to think and consider whether it were not best to send into Scotland to draw them in too And thereupon it was agreed by this Juncto That they would send thither and the management of
allegata probata that is their duty L. Ho. Does that fellow look like a Man of that Figure That I should say any thing or have any conversation with him L. C. J. My Lord I don't know what he is Go on Gent. Mr. Will. My Lord VVe have done with our Evidence If Mr. Attorney will leave it here we will Mr. Att. Gen. My Lord we won't mistrust the Evidence nor the Court. Mr. Hambden My Lord I desire to speak a word my self if you please L. C. J. Ay in God's Name You or your Counsel I will hear all you will say and as long as you will speak provided you speak within the bounds of decency Mr. Will. My Lord I think it best to leave it to the Court VVe hope we have made it clear that our Client is Innocent L. C. J. VVould to God you were Innocent that is the worst wish I wish you but we will either hear him or you speak speak as long as you will Mr. VVallop My Lord. I desire to make but one Observation L. C. J. Ay in God's Name make what Observations you will Mr. VVallop I hindred you from making your Observations at first because I knew it would be desired after the Evidence was over Mr. Att. Gen. Then my Lord I expect to be heard too If Mr. Hambden makes a Speech I will reply or if his Counsel do it I expect the last word for I will have neither the Party nor the Counsel to speak after I have summ'd up the Evidence for the King Mr. Hambden and his Counsel are all one Mr. VVallop I have but one short Observation to make L. C. J. Go on then Mr VVallop and say what you will Mr. J. VVithins I think 't is very fit you should do it of both sides 't is a cause of great concernment Mr. VVill. My Lord We will leave it here I think L. C. J. Take your own course Do not say we hinder you of saying what you will for your Client Mr. Att. Gen. Let them do what they will L. C. J. I 'll sit still make speeches every one of you as long as you will Mr. Just VValcot 'T is fit they should speak what they can for the advantage of their Client Mr. VVill. My Lord VVe leave it to the Court. L. C. J. Gentlemen of the Jury the Evidence has been something long and the Counsel both for the King and for Mr. Hambden against whom this Indictment has already been found by the Grand Jury having left it to the Court to Sum up all I shall do it as well as I can And the Question before you Gentlemen is VVhether the Defendant be guilty of the Offence charged in the Indictment or not Guilty and there having been so long an Evidence on the one side and on the other it will be fit for me according to the best of my remembrance to help your Memories by recollecting what has been said on both sides which I shall do as near as I can and if my Brethren will please to supply any thing that shall be omitted by me nay if the Counsel for the King or for the Prisoner will put us in mind of any thing that has been spoken and proved either against or for the Party indicted in God's Name let them have liberty to speak it For it is fit the Question should be left before you with all fairness and according to the best of my Observation and Memory thus it stands The first thing Gentlemen that is considerable to you is that there is such an Indictment as has been already opened unto you that is preferred against Mr. Hambden that does set forth that Mr. Hambden is a Seditious-Person and a Man according to the Language of the Indictment which are words of course and form in an Indictment of this Nature of an evil disposition designing to disturb and distract the Government and that he with several other Persons did conspire to Bring in troubles and perplexities upon the Government and in order to that that there were some meetings between him and several other Persons and that there was a design to conciliate some Persons of another Nation to go along with them in their design particularly some in the Kingdom of Scotland This is the purport in the Indictment to which the Defendant has pleaded not Guilty Gentlemen The Evidence for the King has been of this sort they did at the beginning which yet I must tell you by the way is not any thing of Evidence but the Kings Counsel would make some Overtures to press on their side as the Defendant and those that are of Counsel for Mr. Hambden have made some little hints to press on their side that some Witnesses the one and the others would have had here were subpoena'd but could not be here It seems by the proof Here was a meeting as it was between Six several Persons and they Name them the Duke of Monmouth was one the Lord Howard another the Lord Russel a Third the Earl of Essex a Fourth Algernoon Sidney a Fifth and Mr. Hambden the Sixth As for my Lord of Essex he is gone to his long home my Lord Russel and Mr. Sidney have received Sentence and been executed So there remains Three Surviviving and say they that are for the King We produce my Lord Howard and we have taken care to Summon the Duke of Monmouth by leaving Subpoenas where it could be thought he was to be met with with Promises of his Servants to deliver them to him in order to have the Duke to be a Witness for the King this Day I presume the meaning is They would infer from that that they would give an account of the fairness of this proceeding tho it has been a matter that has obtained a sort of belief in the World as tho the Duke of Monmouth had denied that there was any such thing as this Confederacy and Conspiracy And that has given People occasion to be of very different Opinions and persuasions about the matter but say they to shew we are not afraid to have the Truth come out we have done as much as in us lay to get this Person hither Therefore we have left Subpoena's at his Houses at his Lodging with his Servants and they have promised to take care they should be delivered to him and he is not come Against this on the other side say they for the Defendant VVe have taken all the care we could to bring my Lord Anglesey who was to have been a VVitness for the advantage of the Person indicted but my Lord Anglesey is at present afflicted with a fit of the Gout and for that very reason we can't have him here And so they shew that they have been very zealous to get VVitnesses on their side to vindicate their Reputation but they did not meet with that effect that they desired These two things Gentlemen are matters that are used both against him one way and for
notorious day about the Swearing of Sheriffs in London But if you ask me Where I was the middle of January or the middle of February I cannot so well remember that But there is Credit to be given to a man that speaks to a notorious Circumstance and thereby proves the probability of what he says tho he should not be so particular in a thing that admits not of such a notorious Circumstance Gentlemen I make the Objections as they are stated on the one side and on the other side and the Answers that naturally flow to prove the matters before you one way or other and you are to judge you are to weigh them and which has the greater Credit with you you are to take notice of He does say in the next place Here was a discourse of Arms and Armed men and a great sum of Money spoken of but there breaks out nothing of this matter till July following but this debate was in January and February before For that matter the Answer that is given and it seems to be a plain one is That they were to conciliate a Correspondence with people that were abroad and that they could not go on till they had effected that and till these people came to joyn with them which could not be without some time And you hear the Cockrams and the Cambels came not to the Town till June or July so that it was not probable it should break out till then because it was to be agitated upon their coming here And so that Objection is answered They did not apprehend any such necessity for present engaging in it For my Lord Howard because he thought it would be a work of time to settle the Correspondence and get these people to Town went down to his Country house in Essex and from thence to the Bath for he did apprehend some considerable time must be spent ere these pople could come and therefore he thought it convenient to take his retirement in the mean time Ay but 't is strange says Mr. Williams and he makes that another Objection He would have my Lord Howard to draw in this Accusation of Mr. Hambden to procure his pardon by going further than the other Discoverers had gone It seems say they Mr. Hambden was not thought of at first But because West and Keeling had discovered a Plot my Lord Howard to secure himself must go a step further than they and as the Defendants Councel would have it than the Truth and that is the stress of the Objection But the weight of the proof is quite different for all men know In the Plot there were several parts There was the business of Keeling and VVest and that was the Assassination of the King and the Duke but the Duke of Monmouth my Lord Howard and those other Gentlemen were for the business of the Rising tho that might be in order to that other purpose but they kept not Company with those that were ingaged in that part of the design They were the Underlings the Scoundrel Plotters that were concerned in the Assassination But these Gentlemen looked upon themselves to be the Privy Councellors not to be the Executioners they were to be only Advisers what was to be done after that other business was over and their Consultations were for raising of men for an Insurrection not the business of the Assassination of the King that was not their Province Can it then be an Objection against my Lord Howard because he gives a Testimony VVest and Keeling could not give Could they go further then the Killing of the King which was their business If any man should have asked my Lord Howard about that matter he would have made Answer It was not for that purpose that we met together at Mr. Hamden's and my Lord Russel's no that was upon a particular business and to a particular end and purpose Then he says too That tho my Lord Howard comes here upon his Oath and declares these several matters that he hath deposed yet he has given a different accompt of things elsewhere and he has called several Witnesses to that purpose To whom my Lord Howard several times upon his Honour upon his Word with Eyes lifted up and Hands elevated to Heaven and many extraordinary Protestations declared That he knew nothing of the Plot and say they If a man will at one time Pawn his Honour and his Reputation for the truth of a thing and after that will come again to Swear against all that matter That is an Argument that does sink the Credit and Reputation of that Witness and thereupon they call you several Witnesses some whereof are Persons of great Honour and Quality I think they begin first with Ducas Servant to Col. Sidney and he tells you After his Master was taken my Lord Howard came thither and desired he might lye there and desired the use of some Plate and Goods of Col. Sidney's and then asked what was become of his Master And when Ducas told him what he heard of the Plot that something was talked of about the Assassination of the King and the Duke my Lord Howard lift up his Eyes and his Hands to Heaven and declared he knew nothing of it but he believed Col. Sidney was a very honest man and knew nothing at all of any such matter and as for himself rather than he would be taken or confined again he would do any thing This was the Evidence they gave as to him Then they come with Mr. Howard their 2 d. Witness for I would take them in order as they were produced and he gives you an account that he met with my Lord Howard and my Lord Howard told him he knew nothing at all of any Plot and did believe that Col. Sidney was innocent and he did believe likewise that my Lord Russel was innocent and for his part he knew nothing of any such thing as a Plot but he says when he began to talk to him why did he make such a Bustle and go so often into the City and concern himself about the making of Sheriffs he answered I do nothing but what is in a legal way and he justified all that was done to be only in a legal way When once people come to believe that the raising of Tumults and making Seditions Stirs and Noises is a legal way to obtain their ends as we know 't is the Tenet and Principle of a great many people what will they not do under that pretence That all they do is according to Law They think it is lawful by the Religion they profess to resist and oppose the Government and the old Cause is a good Cause to this day in some mens Opinion and they can die in it and thank God for being concerned in it And there are some people that say the raising of Arms by the King's Authority against his Person is lawful by the Religion they profess and they call themselves Protestants how justly you may
piece of Artifice designed to patch up a testimony to evade a proof So that the Argument will turn the other way and 't is more for the advantage of these worthy Gentlemen that it should be turned the other way for otherwise they would be thought to be Persons ill-affected to the Government that is Dr. Burnet my Lord Paget my Lord Clare and the rest And if they have a mind to be thought otherwise they must let the Argument run that way as I say and in Charity we ought to believe the best of all mankind till we find otherwise by them We say then in Charity We suppose He thought it not fit to intrust you with his Confessions for you are all Loyal Men I know 't is the best Answer that can be given and that which they ought to value themselves upon for their own credit and reputation and not to make it an Argument against my Lord Howard or against the credibility of his testimony in the metter I don't know truly Gentlemen That I have omitted any one thing that is material on the one side or on the other of which there hath been any proof but I must onely repeat to you this Here is a matter of great concern and Consequence a matter wherein the peace of the Government and the Kingdom is concerned in a very high degree a matter that if there were another Witness as positive against the Defendant as my Lord Howard would amount to no less than High Treason But as there is but one Witness backed with these Circumstances to corroborate his testimony 't is but onely a Trespass but I tell you it treads very nigh upon High Treason and the tendency of it was to bring us all into Confusion and what would be the consequence of that but to lay us open to the same mischiefs that we were under in the times of the late Rebellion For though Men pretend never so fair and vail it under the names of the Security of the Government and the Protestant Religion yet they would have done well to have tarried till they had a legal Authority to call them to consult of these High matters that they pretend to secure that had been well What had these Gentlemen to do to take upon themselves this Power without Authority Gentlemen You have heard the Evidence and you see what it is And I must say in the late Evidences you have had concerning another business of this nature I wish that might be said to preserve and support the Credit of some Persons upon whose testimonies Lives have been taken away as has been said and is evident for the advantage of my Lord Howard I do not find that he has been guilty of Perjury as being concerned in taking Oaths one way and then giving Evidence another I mean first taking Oaths of Secresie and then revealing not but that notwithstanding all this They may be believed and God forbid but they should be believed according to truth But I say if Objections of this nature are to prevail we must never expect any great Crime to be punished because we must stay till Persons that are strangers to the guilt of the Fact come to give Evidence of it which is impossible to be done Therefore Gentlemen I must resolve it all into one Head You have the Case of a Gentleman of Quality on the one side and the peace and preservation of the Government on the other side You hear what is proved against him the Evidence given on his behalf the Objections that have been made by the Counsel which all of them as near as I can remember I have repeated to you and I ask your pardon and theirs if I have omitted any thing and I desire to be minded of it You hear the Answers that have been given And because the Counsel were unwilling to give the Court trouble or themselves to make long Speeches and Observations Therefore I have been necessitated to do it as well I can Upon the whole matter My Lord Howard has thus positively sworn the matter of Fact charged in the Indictment against the Defendant he has been supported by the Witnesses that confirm the circumstances of Smith's going into Scotland the Scotch-Men's being here in June and the Sham and Cant. of Carolina All which you have heard and I make no question observed and is not contradicted by any thing I hear that carries any probability of an Answer Therefore Gentlemen I leave it to you whether upon this Evidence you will take it upon your Consciences and Oaths That my Lord Howard is Guilty of wilful and corrupt Perjury Then you must find the Defendant not Guilty But if you think he has proved the matter fully and his testimony is supported by those four Witnesses Atterbury Sir Andrew Foster Sheriff and Bale Then Gentlemen you must find the Defendant Guilty Juriman My Lord We desire to ask one Question At the meeting at Mr. Hamden's House I think my Lord Howard says they went to Dinner Mr. Just Holloway No it was at Coll. Sidney's they went to Dinner L. C. J. I know not whether you have taken notice of it but I have it was at Coll. Sidney's they dined not at Mr. Hambden's Then the Jury withdrew from the Bar and within half an Hour the Jury returned and being called over answered to their Names and gave in their Verdict thus Cl. of Crown Are you all agreed of your Verdict Omnes Yes Cl. of Cr. Who shall say for you Omnes Foreman Cl. of Cr. How say you Is the Defendant guilty of the Trespass and Misdemeanor whereof he is impeached or not guilty Foreman Guilty Which Verdict being recorded the Court rose Martis 12. Februarii An. 1683. B. R. L. C. J. Mr. Attorney Have you any thing to move Mr. At. Gen. I pray your Judgment against Mr. Hambden my Lord who was convicted the other day of a great Misdemeanor L. C. J. Let Mr. Hambden come into the Court then which he did Mr. At. Gen. My Lord I need not aggravate the hainousness of the Offence for it appears both by the Information and upon the Evidence to be beyond all Aggravation wherefore I shall onely pray your Judgment for the King That you would please to set a good Fine upon him and that he find Sureties for his good behaviour during his Life Mr. Williams May it please your Lordship I am of Counsel for Mr. Hambden L. C. J. Are the Rules out in this Cause Mr. Williams Yes my Lord they are out L. C. J. Well then what say you for Mr. Hambden Mr. Williams Mr. Hambden does attend here according to the Condition of his Recognizance and since Mr. Attorney hath prayed your Judgment I shall not stir any thing as to the Indictment or the Verdict but all I have to say for him is this Mr. Hambden is but Heir apparent his Father is alive and so though he has the prospect of a good Estate yet he has but