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
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
shew him the way And I sent for this Man and when he came to him he hired him to go with him and I was by L. C. J. When he first came to your house about the middle of February was twelve month Whither was he bound then Northward or Southward Mr. Sheriffe He was going to Scotland that is Northward L. C. J. And you say after he came back again and lay another Night at your house Mr. Sheriffe Yes ten or twelve days after he did L. C. J. And which way went he then Mr. Sheriffe Then he came Southwards towards London L. C. J. Did you take exact notice of the Man Mr. Sheriffe Yes I saw him before his Majesty and the Council L C. J. And upon your Oath that same man you saw there was the same man that lodged at your house in February was 12 month Mr. Sheriffe Yes it is Mr. Att. Gen. What name did he go by at your house Mr. Sheriffe He went under the name of Mr. Clerke but what his Sirname was I can't tell L. C. J. Had he a servant with him Mr. Sheriffe He had a man with him that stay'd at our house during the time of his going Northward Mr. Att. Gen. What did he call his name Mr. Sheriffe Wil. Langston Mr. Att. Gen. Did he desire you to furnish him with a guide Mr. Sheriffe He told me his Servant did not know the way and his horse was a little lamish and desired me to get a guide for him For after he had dined at our house it happened to be a rainy day and he could not go further that night and therefore desired me to get him a man that knew that Countrey and I sent for this same man and he hired him and he went along with him next morning my Lord. Mr. Att. Gen. Whither was he to go Mr. Sheriffe Truly I did not know but he told me he did not know the way into Scotland and I directed him to a Gentlemans house at Jadbrough in the way Lord Ch. Just Is that the Road to Scotland Mr. Sheriffe Yes the high Road to one part of Scotland L. C. J. Did he tell you to what part or place of Scotland he was to go Mr. Sheriffe He named the West of Scotland I think he named Douglas but I do not know what place certainly he designed for Mr. At. Gen. Then where is Bell Bell Here. Mr. At. Gen. Had you a view of this man they call Aaron Smith Bell Yes I had Mr. At. Gen. Give an accompt whether you saw him in the Northand when and where Bell This man Mr. Sheriffe sent for me I live at New-Castle and there I keep Hackney Horses to serve any Gentlemen or be a Guide to them as there is occasion and Mr. Sheriffe sent for me and when I came he told me the Gentleman wanted a Guide into Scotland We immediately agreed it was upon Thursday night before that we call Easter Eve Lord Ch. Just When was it say you Bell It was the Thursday before Easters-Even so they call it with us that is Shrove-Tuesday L. C. J. Ay they call it so in those places because 't is the Even of the Fast of Ash-wednesday the beginning of Lent Well go on Bell We went away on Friday the next morning on our Journey towords Jadbrough and the 2d day which was Saturday in the afternoon my horse tired whereupon he left me with my horse and took the Mans man of the house where he left me to guide him for my horse would not ride up with him being tired and he resolving to go on and he bid me follow him on the Sunday morning to Jadbrough Town which I did and we stayed there all Sunday And on Monday morning I saw him take horse and another man that was his guide and away they went as I think he said towards Douglas he was going And he pay'd me and I returned again from him to New-Castle and left him L. C. J. Pray how far was this you say you went with him to Jadbrough how far distant is that from New-Castle Bell. To Jadbrough my Lord L. C. Just Yes Bell. 'T is Forty Miles my Lord. L. C. Just How near Scotland is it Bell. 'T is within some six Miles of the English Border L. C. Just Did you see him at any time after that Bell. I saw him at his coming back again being at Sheriffs house his Wife asked me if I would go up and see the Gentleman that I went with towards Scotland So I went up and he made me eat and drink at the Table with him Mr. Att. Gen. What Name did he go by Bell. He went by the name of Clerk Mr. Att. Gen. Was there any Servant with him Bell. There was a Man that came with him as a Servant there and was all the time at New-Castle that he was gone towards Scotland till he came back again L. C. Just Mr. Attorney Did this Man see Smith at the time the other saw him Bell. Yes I did L. C. Just And is that the Man that went by the name of Clerk at New-Castle and that you went with towards Scotland Bell. Yes It is Mr. Atterbury And when they charged him with it Aaron Smith did not deny it Mr. Att. Gen. Did you go any by-Road to get into Scotland Bell. No 't is the Road Gentlemen usually go to Jadbrough and so on because 't is something the nearer way to that part of Scotland as we judge it to be therefore Gentlemen use it Mr. Att. Gen. Is it an high-open-Road Bell. Yes 't is the high-open Way to that part of the Country Mr. Att. Gen. My Lord Howard Pray were the Names of any of the Scotch-men mentioned at your Meeting that were to be sent for L. Howard Yes There was my Lord Melvin Sir John Cockram and one Cambell Mr. Att. Gen. Now my Lord We will give you an account That as Smith went into Scotland so these persons soon after came into England Jury-Man My Lord We desire that my Lord Howard would name those Scotch-men that were to come L. Howard There was my Lord Melvin Sir John Cockram and one Cambel one that was of my Lord Argyles Name and Family and there was another Name but I can't remember what that Name was Mr. Att. Gen. We shall give you an Account my Lord That they came immediately after this to Town and at the breaking out of the Plot they Absconded L. C. Just Mr. Attorney Has my Lord Howard his Pardon Mr. Attorney Yes my Lord he has L. C. Just Then your Lordship may be covered L. Howard I can't tell but they may ask me some Questions Mr. Att. Gen. Then you may be uncovered when they ask them in the mean time your Lordship may be covered Swear Sir Andrew Foster which was done Pray Sir will you tell my Lord and the Jury what you know about the Cambell's and Sir John Cockram's being in Town Or any other Scotch-men that
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
you know of Sir Andrew Foster My Lord I did see those Gentlemen in the beginning of last Summer Sir John Cockram and Mr. Monrow and Cambell the Son I did see but the Father I did not but I do know he was in Town tho I saw him not Mr. Att. Gen. How do you know it Sir Andrew Foster I had Messages from them L. C. Just Sir Andrew You say you saw Sir John Cockram and Monrow Sir Andrew Foster Yes L. C. Just Did you see any body else Sir Andrew Foster I saw Sir George Campell the Son Mr. Att. Gen. What became of them upon the Discovery of the Plot Sir Andrew Foster Sir John Cockram did Abscond and Mr. Monrow was taken into Custody Mr. Att. Gen. What became of the others Sir Andrew Foster The Campells were both in Custody Mr. Att. Gen. Did you see any Commission they had Sir Andrew Foster I did see a Commission that Sir John Cockram had Mr. Att. Gen. What was it for Sir Andrew Foster To make a Purchase of some Plantations beyond Sea I think it was Carolina L. C. Just Ay where my Lord Shaftsbury had an Interest Sir Andrew Foster It was some of the West-Indies L. Howard I did omit that passage my Lord Mr. Att. Gen. Pray was it discoursed then what should be the Blind for these Gentlemen that were notorious Dissenters that they should come to Town from Scotland about L. Howard It was to carry on a Plantation in Carolina The Scotch Gentlemen were personally known to my Lord Russel only and my Lord Russel was to write the Letter to them and I suppose did Mr. Att. Gen. Mr. Atterbury What do you know of these Scotch-men coming to Town and what became of them afterwards Mr. Atterbury My Lord about the beginning of July Fourth Fifth or Sixth or thereabouts I had some Information That there were some Scotch Gentlemen that had been shifting up and down and at that time were about Black-Fryers lodged there secretly I immediately went with the King's Proclamation and some Warrants that I had to apprehend some Traytors that were fled And when I came I found that Mr. Common Serjeant having Notice of them had beat up their Quarters and they were endeavouring to escape by Water but there they were catched There was Sir Hugh Campel and Bayley and Sir George Campel and some others I know not the Names of them all truly I can't tell whether Monrow was not another but Sir Hugh Campel I had in my Custody and Bayley was immediately committed to the Gate-house and the rest of the Gentlemen I afterwards took in a cunning Hole by Moor-Fields in a back house And when I came there I found them lyeing on the Bed in the middle of the Day and had them Prisoners in my Custody two or three Months and then they were all sent out of my hands into Scotland Prisoners Six of them there were my Lord that I saw Mr. Att. Gen. We have done my Lord only we desire that a word of a Record may be read Mr. Williams What Record is it Sir Mr. Att. Gen. Of Collonel Sidneys Attainder Mr. Williams My Lord We shall desire your Judgment whether that Record ought to be read against Mr. Hambden I perceive by Mr. Attorney that 't is a Record of the Conviction of Mr. Sidney which ought not to be given in Evidence against Mr. Hambden upon this Indictment Mr. Att. Gen. We make use of it to shew how upon former Tryals upon this Evidence Verdicts have gone Mr. Williams We are in your Judgment my Lord if by Law it may be given in Evidence against Mr. Hambden who is neither Party nor Privy to it nor Indicted for the same Offence Mr. Att. Gen. Let it alone then L. C. Just Well Mr. Attorney does not press it What say you to it Gentlemen for the Defendant Mr. Williams May it please your Lordship and you Gentlemen of the Jury I am of Counsel for Mr. Hambden the Defendant upon this Indictment here before you This Indictment is a severe Indictment It is a very high Crime of which my Clyent is Accused How far the Evidence tends to reach it you have heard and I shall with the patience of the Court particularly observe it to you But I shall first speak to the Indictment it self It saies that Mr. Hambden being a person of a turbulent Disposition and Seditiously intending to disturb and disquiet the King's Peace and to stir Sedition and to bring the Government into danger did Conspire c. As to this matter Gentlemen there is no manner of Proof of what the Indictment charges as to the Disposition of the person Accused nor that he had any other design than what my Lord Howard hath now Sworn Then it saies further that Mr. Hambden did Consult and Conspire with divers persons to execute these purposes and particularly for the making and raising of an Insurrection in the Kingdom This is laid as the particular Fact And for this purpose he did further Conspire with several persons to provide Armes and Armed-men And for their fulfilling of this he did further Consult with several persons that some persons should be sent into Scotland to stir up the Kings Subjects in Scotland to a Concurrence and Conjunction with some People in England about this his evil design How far this Indictment is proved upon the Defendant Gentlemen is the Question before you He has pleaded Not Guilty and hopes to satisfy you he is not Gentlemen as to what Evidence has been given you so far as 't is Positive and Affirmative I mean the Testimony of my Lord Howard in that part it is impossible for us that are of Counsel for the Defendant directly to contradict him with Proof or to give a direct positive proof in answer to it I say 't is impossible for us to contradict him who gives such a positive Evidence of Fact By the Evidence of my Lord Howard he tells us there were Six Persons in this Council as he is pleased to call them By his Evidence three of the six are dead my L. Russel Col. Sidney and the Earl of Essex He himself is the Fourth the Defendant is the Fifth who cannot give Evidence for himself and the Duke of Monmouth who is the Sixth being away there is not any person in being that should contradict my Lord Howard's Affirmative in this part of his Evidence but the Duke of Monmouth Whom we cannot have here since it appears by the Evidence Mr. Att. Gen. could not prevail to have him at this Tryal therefore proof of that nature cannot be reasonably expected from my Clyent to acquit himself by a positive Contradiction of what my Lord Howard has sworn Then in this Case we must as in all Cases where a person does Swear directly against a Defendant endeavour to satisfie and perswade your Lordship and the Jury upon Circumstances arising out of this Fact and further Circumstances attending the Fact and by probable
Mr. Pelham No I was never with him at any time when he discoursed of any such thing Mr. Williams Sir Henry Hobart Mr. Att. Gen. My Lord We oppose his being a Witness He is one of his Bail Mr. Williams That was upon the Habeas Corpus Act not upon this Indictment Mr. Att. Gen. If he be Bail for the Defendant my Lord he cannot be a Witness Mr. Williams I appeal to the Rule of Court whether he was not Bail upon the Habeas Corpus Act only Mr. Att. Gen. Appeal where you will the Bail cannot be a Witness Mr. Williams We moved for an Habeas Corpus the beginning of last Term upon the late Act for Habeas Corpus's And then at the last day of the Term upon Habeas Corpus he was brought up thither and was Bailed upon that Writ Mr. Att. Gen. Are not you one of the Bail Sir Henry Hobart Sir Henry Hobart I was one of his Bail I think it was for his appearance L. C. J. If he be one of his Bail that he shall appear in this Court the first day of this Term and so from day to day till he shall be discharged and remains under that Recognizance then in any Case against him he cannot be a Witness for him Mr. Att. Gen. But they mistake the matter He was then charged with this Indictment He then Pleaded to it and was Bailed to answer the Indictment and surely in that case he can never be a Witness L. C. J. That is certainly very true and you know the Law so well Mr. Williams that I wonder you will insist of it in every ordinary Case it is every days practice to deny the Bail to be Witnesses Mr. Att. Gen. Here is the person principal will they render him in Custody L. C. J. Ay what say you will you render him in custody Then we will discharge the Bail Mr. Williams My Lord I will tell you what we will do L. C. J. Tell me what you will do answer my question will you render him in Custody Mr. Williams We will change the Bail My Lord and find some other sufficient Person to stand in Sr. Henry Hobart's place rather then lose our Witness L. Ch. Just With all my Heart Mr. Williams Here is Mr. Ashhurst my Lord a Gentleman of very good value L. J. C. But you must render him first and change the whole Bail They must enter into new Recognizances Mr. Will. I can't tell whether we can do that so very well because the others I am afraid are not all here He is a mighty material Witness I am sure Mr. Att. Gen. My Lord Mr. Williams says he is a material Witness let him be sworn I am so fair I 'll consent to it Let us hear what he can say Which was done Mr. Will. We thank you Mr. Attorney I am afraid you won't live long you are so good natured L. C. J. But you are like to live for your good Nature Mr. Williams Mr. Thompson Sir Henry Hobart How long have you been acquainted with this Gentleman Mr. Hambden Sir H. Hobart I have known him any time these Ten years Mr. Williams How has he been Sir as to his Disposition and Spirit Did you ever find him to be of a turbulent temper Sir H. Hobart Very far from it always Mr. Will. Have you had any intimate conversation with him Sir H. Hobart I have known him all along I say these Ten years but of late I have had more converse with him some few years in Travel Mr. Will. Had you much conversation Sir Sir H. Hobart I was with him continually at Paris and abroad Mr. Will. What say you as to his Loyalty and Principles Was he a Factious Seditious Person Sir H. Hobart Sir He always expressed a great esteem for the Government and great respect and duty to the King Mr. Will. Pray Sir when went Mr. Hambden abroad to go into France Sir H. Hobart He went into France for his Health about November 80. I think it was Mr. Will. How long did he continue abroad Sir Henry Sir H. Hobart I found him in Paris the May after Mr. Will. How long did you tarry there Sir your self Sir H. Hobart I went from Paris in June and came back again to Paris about October or November the same Year and I found him in France still Mr. Will. And when do you take it he returned into England Sir H. Hobart I was with him till he came over which was about September 82 I think Mr. Thompson What do you know Sir of his intentions to go again beyond Sea Sir H. Hobart When Sir do you mean Mr. Thompson Since that time he came over you say in September 82. Sir H. Hobart He told me of it often I think it was about March more particularly once at his own house Mr. Thompson What March Sir Sir H. Ho. March 83. Mr. Thompson That is last March Sir H. Hobart Yes last March he talked of it several times particularly once I went about some business of my own and then he discours'd a great deal of his going over with my Lord Mountague that now is for he told me his health was not yet established for he came over out of an hot Country in Autumn and had been all the Winter in this colder Country and the Air he found had impaired his health again And it was not only what he told me but I had a Letter from a Friend of mine in France to whom I had sent to desire him to come over but he writ me word no Mr Hambden was coming over again and he would not come back yet Mr. Att. Gen. Did he tell you when he intended to go over Sir Henry Sir H. Hobart As soon as Mr. Mountague my Lord Mountague that now is could get ready who was to carry his Lady over with him Mr. Will. Sir Do you know of any preparation made by Mr. Hambden for it Sir H. Hobart He had resolved to take his Lady with him because Mr. Mountagues Lady went and so I believe did prepare accordingly Mr. Att. Gen. Did Mr. Mountague go over Sir H. Hobart He did not go then but since he is gone Mr. Att. Gen. Were you in France then at this time Sir H. Ho. This was in England at his own house Mr. Will. Pray Sir what is his Disposition Sir H. Hobart He was always inclined to a studious Life and kept very little Company Mr. Att. Gen. Was this in March 83 Sir H. Hobart Yes he came over in September before I always observed him to be of a retired temper Mr. Att. Gen. You say in 1680. he went into France and in 82 he came over again Sir H. Hobart Yes Mr. Att. Gen. Pray Sir Henry since you convers'd so much with him Have you heard him since the last Parliament at Westminster or at any time have you been by when he hath discours'd his Opinion about Government Sir H. Hobart Truly Sir I don't take my self to be
capable of discoursing with him about any such matters Mr. Att. Gen. Have you heard him at any time complain of the Male Administration of the Government Sir H. Ho. No Sir Mr. Att. Gen. Have you never heard any such thing from him Sir H. Hobart No never Mr. Will. Swear Dr. Lupee My Lord We must desire an Interpreter for the Dr. Speaks French only L. C. Just Swear an Interpreter Mr. Will. Dr. Burnet or if he be gone call Sir Henry Ho. again We must beg the favor of you Sir Henry to be an Interpreter you understand the French Tongue very well Sir H. Ho. I will do it with all my Heart Sir as well as I can L. C. Just Swear him Cryer You shall well and truly Interpret between the Court and the Witness and the Witness and the Court according to the best of your skill and knowledge So help you God Mr. Thompson Sir Henry Will you please to repeat what Questions we shall ask and what Answers he makes Sir H. Ho. Yes Sir as well as I can I will Mr. Will. Pray Sir ask the Dr. this Question If he be acquainted with Mr. Hambden Sir H. Ho. Yes he says very well He lived near two years with him Mr. Thompson How long is it since Sir H. Ho. Four years since he says Mr. Will. Pray in that time What was his Disposition Was he a Seditious and Turbulent Man Or was he a studious retired Man or What Sir H. Ho. He says the two years he lived with Mr. Hambden he kept him Company in his Studys and all that time he found he had no other inclinations but for study and knowledge and his inclinations were very Vertuous He always observed in his Discourse a great submission and respect that he had for the Laws of his Nation and his Prince and to that degree he was a faithful Subject to the King that once he told him in discoursing with him of the late Popish Plot that he was ready to Sacrifice his Life and Fortune for the King's service Mr. Thomp Ask him what discourse he had with him of the Plot since it brake out L. C. Just Will that be any evidence do you think Mr. Thompson Will Mr. Hambden's declaration be any evidence he being a Person accused Do you think he would tell the Doctor or any Body else that he was Guilty when he was like to be questioned That would have been a wise business indeed You say he was a very studious Man and a learned Man truly if he had done that he had bestow'd his time in Learning to very good purpose Mr. Will. My Lord That that we would ask him is this This Person the Doctor being discoursing with Mr. Hambden upon the discovery of the late Conspiracy and of the dangerousness of the time he would have advised Mr. Hambden to have gone no he said he would not for he was an innocent Man and would not stir L. C. J. Well ask him what you will but his declaration of his own Innocence cannot be taken for Evidence Sir H. Ho. He says since this Plot was discovered he was going one Day to visit Mr. Hambden and going through long Acre he met a French Minister a Savoyard Minister But my Lord he speaks so fast and goes on with so much at a time that I cannot remember it all Mr. Will. Well what said that Minister to him Sir H. Ho. He says this Minister asked him if Mr. Hambden was not concerned in the Plot and upon that he went and told him what the Minister had said to him He says he told Mr. Hambden that the Duke of Monmouth and my Lord Gray were hid He says upon that Mr. Hambden said to him I will never fly nor conceal my self for my Conscience reproaches me in nothing L. C. J. Ask him why does he think the French Minister the Savoyard as he calls him should ask whether Mr. Hambden were in the Plot Sir H. Ho. He says Mr. Hambden said he would rather die innocent then fly with the imputation of guilt upon him L. C. J. But ask him the Question I put Why should that Savoyard Parson say so what reason had he to think Mr. Hamdden was in the Plot Sir H. Ho. He says the Minister did ask him but he can't tell what Reason he had to think so Mr. Att. Gen. Pray Sir Henry ask him this Question How long ago it was since he left him Sir H. Ho. Four year he says Mr. Att. Gen. Where was it in England or France Sir H. Ho. Whilst he lived in Bloomsbury he says Mr. Will. Call Dr. Needham and Monsieur Justell who appeared and Monsieur Justell was sworn Pray Sir H. Hobart will you ask Monsieur Justell who speaks French too If he know any thing of Mr. Hambden's Resolution to Travel with Mr. Mountague into France Sir H. Ho. He says Yes He did tell him he was going into France and he offered to carry some Books for him along with him Mr. Will. What Company was he to go in and what time Sir H. Ho. He says Sir he can't be exact to the Month when Mr. Hambden spake of going over but he says it was a great while before this Plot came to be discovered Mr. Will. Was it some Months before Sir H. Ho. It was a Month before it was known he says Mr. Will. In what Company was he to go Sir H. Ho. He said he was to go with Mr. Mountague Mr. Conyers Pray Sir Will you ask him Was he employ'd to get any French Servants to be with him Sir H. Hobart Yes he says L. C. J. Ay but what was the Question for there is such a crowd of People before the Council that the Court cannot hear Mr. Conyer's Question Mr. Can. My Lord I asked him Whether he was employ'd to get any French Servants to be with Mr. Hambden Sir H. H. Yes he says L. C. J. Well there is Dr. Needham What do you ask him Mr. Will. We call Dr. Needham for this purpose my Lord to prove that these Gentlemen that are accused Mr. Hambden and my Lord of Essex and the others had very little esteem and mean Opinion of my Lord Howard And how one they so little esteemed should be let into so great a secret will be very strange to imagine Dr. Needham Pray what can you say of any of these Gentlemens Opinions of my Lord Howard What Opinion had my Lord of Essex of him L. C. J. Is my Lord of Essex now before us What is that to this Case Mr. Williams Let my Lord of Essex have what Opinion he would of him How does that concern the Defendant Mr. Will. I tell you why I offer it my Lord. L. C. J. But pray offer what is evidence and keep to the business before you Mr. Will. Falsus in uno falsus in omnibus If we can prove that what he hath said of my Lord of Essex is false he is not to be believed against