THE ARRAIGNMENT OF Algernon Sidney Esquire November 7th 1683. ALgernon Sidney Esquire was by Habeas Corpus brought up to the Bar of the Court of King's-Bench and the Clerk of the Crown having read the Return Mr. Attorney General informed the Court there was an Indictment against the Prisoner and prayed he might be charged with it Clerk of the Crown Algernon Sidney hold up thy hand which he did Midd. ss THe Iurors for our Lord the King upon their Oath do present That Algernon Sidney late of the Parish of St. Martin in the Fields in the County of Middlesex Esquire as a false Traytor against the Most Illustrious Most Excellent Prince our Lord Charles the Second by the Grace of God King of England Scotland France and Ireland and his Natural Lord Not having the fear of God in his Heart nor weighing the Duty of his Allegiance but moved and seduced by the instigation of the Devil utterly withdrawing the cordial Love and true due and natural Obedience which a true and faithful Subject of our said Lord the King should bear towards him the said Lord the King and of Right is bound to bear Contriving and with all his Strength intending to disturb the Peace and Common Tranquility of this Kingdom of England and to stir up and move War and Rebellion against the said Lord the King and to subvert the Government of the said Lord the King in this Kingdom of England and to Depose and Deprive the said Lord the King from the Title Honor and Regal Name of the Imperial Crown of his Kingdom of England and to bring and put the said Lord the King to Death and final Destruction the thirtieth Day of June in the Five and thirtieth Tear of the Reign of our Lord King Charles the Second new King of England c. and divers other Days and Times as well before as after at the Parish of St. Giles in the Fields in the County of Middlesex Maliciously and Trayterously with divers other Traytors to the Iurors aforesaid unknown did Conspire Compass Imagine and intend to Deprive and cast down the said Lord the King his Supreme natural Lord not only from the Regal State Title Power and Rule of his Kingdom of England but also to Kill and â—ring and put to Death the same Lord the King and to change alter and utterly Subvert the Ancient Government of this his Kingdom of England and to cause and procure a miserable Slaughter among the Subjects of the said Lord the King thorow his whole Kingdom of England and to move and stir up an Insurrection and Rebellion against the said Lord the King within this Kingdom of England And to fulfil and perfect those his most horrid wicked and diabolical Treasons and trayterous Compassings Imaginations and Purposes the same Algernon Sidney as a false Traytor then and there and divers other Days and Times as well before as after Maliciously Trayterously and advisedly did Assemble himself meet and consult with the aforesaid other Traytors to the Iurors aforesaid unknown and with the same Traytors did Treat of and for those his Treasons and Trayterous Compassings Imaginations and Purposes to be executed and fulfilled And that the aforesaid Algernon Sidney as a false Traytor maliciously trayterously and advisedly then and there and divers other Daies and Times as well before as after upon himself did assume and to the aforesaid other Traiters did promise That he would be Aiding and Assisting in the Execution of their Treasons and Trayterous Compassings Imaginations and Purposes aforesaid and to fulfil perfect and reduce to effect those their most horrid Treasons and Trayterous Compassings Imaginations and Purposes aforesaid the same Algernon Sidney as a false Traytor then and there Falsely Maliciously Advisedly and Trayterously did send one Aaron Smith into Scotland to invite procure 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 the aforesaid Algernon Sidney and the aforesaid other unknown Traytors in this Kingdom of England of Aid and Assistance to be expected and supplied from the Kingdom of Scotland to fulfil perfect and reduce to effect those their most Wicked Horrid and Traiterous Treasons aforesaid And that the aforesaid Algernon Sidney to fulfil and perfect those most Wicked Horrid and Devilish Treasons and Traiterous Compassings Imaginations and Purposes aforesaid And to perswade the Subjects of the said Lord the King of this Kingdom of England That it is lawful to make and stir up on Insurrection and Rebellion against the said Lord the King that now is the said Thirtieth day of June in the Five and Thirtieth year of the Reign of the said Lord the King that now is at the Parish of St. Giles in the Fields in the County of Middlesex falsely unlawfully wickedly seditiously and Traiterously did make compose and write and caused to be made composed and written a certain false Seditious and Traiterous Libell in which said False Seditious and Traiterous Libel among other things is contained as followeth in these English words viz. The Power Originally in the People of England is deligated unto the Parliament He the most Serene Lord Charles the Second now King of England meaning is subject unto the Law of God as He is a Man to the People that makes him a King inasmuch 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 then any one of them in any other respect then 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 And that in another place in the said false Seditious and Trayterous Libel among other things these False Seditious and Trayterous English Sentences are contained that is to say We may therefore change or take away Kings without breaking any Yoke or that is made a Yoke which ought not to be one the injury is therefore in making or imposing and there can be none in breaking it Against the Duty of his Allegiance against the Peace of the said now Lord the King His Crown and Dignity c. And against the Form of the Statutes in this Case made and provided c. How sayst thou art thou guilty of this High Treason whereof thou standest Indicted or not Guilty Col. Sidney My Lord I find here an heap of Crimes put together distinct in nature one from another and distinguished by Law and I do conceive My Lord That the Indictment it self is thereupon voyd and I cannot be Impeached upon it L. C. Iustice. We are not
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 câ—se it appear to them that he hath broken the Trust laid upon him by the People Gentlemen he does use in that Treatise several 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 prosperous against Princes Then he falls to Reasoning and uses great Reason in the Case That all the Power of the Prince is originally 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 't is 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 Indictment We may therefore shake off our Yoke for 't is 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 abhorrence 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 't is 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 against whose Judgment I believe you won't object was Attorney at that time Mr. North. Mr. West What do you know of the general Insurrection 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 Conspiracy 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 Insurrection 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 concurrency 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 account of that Affair and said the Scotch proposed if they might have thirty thousand pounds in ready money they would undertake 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 London 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 instrumental 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
to you in Laâ—iâ—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 't is no part of their duty nay 't is 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 Algernon 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 Gentlemen that are sworn This is an Indictment of High Treason preferred against Algernon Sidney the Prisoner at the Bar. The Indictment sets forth That he as a false Traitor against our most Illustrious 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 Purposes 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 Indictment 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 Stratagems they had worked upon many incautelous persons when they thought they had gotten a sufficient party then there was a design of an open rising for they thought all things were ripened and that was to be in several parts of the Kingdom Some persons 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 whether the Rising should be first in the Country or City or both together They came to a resolution it should be in both places at once Then when they had asserted that point they come to consider 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 pursuance 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
paid them and 't is like to this L. Ch. Just. And you were never called to account for mispayment 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 Servant 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 happening 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 commands 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 facit 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 Power 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 cannot 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 nonsence it ought not to be thought strange if he represent as an absurd 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 Injury 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 inconvenience 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 Midianites 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 against 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 destroyed 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 Detracta 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 Murray 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
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 'T is 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 appeared 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 protested 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 'T is only this I have to say That if your Lordship pleases to shew me any of these sheets of Paper I will undertake to imitate them in a little time that you shan't know which is which 'T is 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 't is 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 infers 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 Capacities Natural and Politick that which is the Politick can't be within the Statute in that sense he never dies and 't is 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 't is 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 intended to raise a War and then 't is 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 many Wars have been made and the Death of the King has not followed 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 't is two distinct things to make War and to endeavour to kill the King Now as there is no manner of pretence that I should endeavour to kill the King directly so it can't be by inference because 't is Treason under another Species I confess I am not fit to argue these points I think I ought to have Counsel but if you won't allow it me I can't help it but these things are impossible to be jumbled up together Now
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. another 13 Car shew this Now my Lord I say that the business concerning the Papers 't is 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 't is 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 Gentlemen I will begin with the first part of it the Meeting and Consultation to raise Arms against the King The Prisoner Gentlemen 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 interpreting the Act of Parliament to you of 25 E. 3. and dividing of it into several Members or Branches of Treason And does insist 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 Statute 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-ruled 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 Prisoner 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 Counsel 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 Counsel 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 Monmouth and he and Col. Sidney met and it was agreed to be necessary to have a Counsel that should consist of six or seven and they were to carry it on That the Duke of Monmouth undertook 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 business 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 concerning 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 Scotland 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 themselves being they were to destroy this Government what they should set up in the room of it to what