or might be of putting them into a Commotion and how Men might be Raised and how they would fall under Argyle and also to keep Time and Place with us After this I was with Col. Sidney when he was going into London and he did take out several Guinnies I can't tell how much 't was I suppose they might be about Sixty and put them into his pocket and set me down at my Lodging which he said were to give Aaron Smith whether he gave it or no I don't know and after that he was sent Mr. Att. Gen. Who told you so Lord Howard Col. Sidney For I was inquiring of him and he said he had not heard of him in three Weeks or but once when he was about New Castle After this I had occasions that called me into the Country and there I was Some time after that I went to the Bath And this is all the Account I can give Mr. Soli. Gen. Do you know that Aaron Smith did go Lord Howard I know nothing but by hear-say Col. Sidney told me he was gone and was upon the Road and he heard from him about New Castle Lord Ch. Iust. Did you understand by the discourse after he was gone that he went in pursuance of that Debate L. Howard Yes my Lord That was the whole end of his going Mr. Just. Wythens I think you say that Gentleman speaking of Col. Sidney undertook to send him L. Howard Yes he did L. Ch. Just. Will you ask him any Questions Col. Sidney I have no Questions to ask him Mr. Att. Gen. Silence You know the Proverb The next step is to shew you my Lord that these persons came up immediately after Aaron Smith went down thither and according to that which was said to be the Shadow and Pretence of their coming hither they pretended they came about Carolina business Sir Andrew Foster and Mr. Blathwaite Sir Andrew Foster Sworn Mr. Att. Gen. Pray Sir give an account what Scotch Gentlemen came up lately Sir Andrew Foster My Lord About the end of the Spring or beginning of Summer as I remember these Gentlemen Sir John Cockram and Commissary Monro and the two Cambbels Father and Son came up hither I did not see the Father at all but I saw the Son the day of the Lord Russels Tryal but the other two I think I saw a little before the Discovery of the Plot. Mr. Att. Gen. What did they pretend they came about Sir Andrew Foster They pretended they came to make a Purchase in Carolina and I saw their Commission from the Persons said to be concern'd in that Design Lord Ch. Iust. Who do you speak of Sir Andrew Foster Sir John Cockram and Commissary Monro Mr. Att. Gen. As soon as the Rumour came of the Plot What became of those Gentlemen Sir Andrew Foster Sir John Cockram absconded but Commissary Monro never absconded and the Cambels I heard were seized changing their Lodging from place to place Mr. Atterbury Sworn Mr. Att. Gen. Mr. Atterbury Will you give my Lord and the Jury an Account what you know of these Scotch men their absconding and lying hid Mr. Atterbury My Lord Upon the latter end of June or the beginning of July the beginning of July it was I was sent for into London upon a discovery of some Scotch Gentlemen that lay about Black-Fryers and when I came down there there was the Common Sergeant and some others had been before me and found them making an escape into a Boat Mr. Att. Gen. Who were they Mr. Atterbury Sir Hugh Cambel and Sir John Cockram and one that was committed to the Gate-House by the Counsel as soon as brought thither Mr. Att. Gen. We shall end here my Lord How long had they been in Town Mr. Atterbury They had been in Town some little time Mr. Att. Gen. We have done with this piece of our Evidence Now to shew that while this Emissary was in Scotland at the same time the Colonel which will be another Overt Act of the Treason was VVriting a Treasonable Pamphlet I will call you the VVitnesses It is all of his own writings Sir Philip Lloyd Mr. Att. Gen. Sir Philip Lloyd Pray will you look upon those Papers and give my Lord and the Jury an account where you found them Sir Philip Lloyd I had a Warrant my Lord from the Secretary by the King and Council to seize Mr. Algernon Sidney's Papers and pursuant to it I did go to his House and such as I found there I put up I found a great many upon the Table amongst which were these I suppose it is where he usually writes I put them in a Pillowbear I borrowed in the House and that in a Trunk I desired Coll. Sidney would put his Seal upon them that there should be no mistake he refused so I took my Seal and Sealed up the Trunk and it was carried before me to Mr. Secretary Jenkins Office VVhen the Committee sate I was commanded to undo the Trunk and I did so and sound my own Seal upon it And I took the Papers out of the Bagg I put them into before L. Ch. Just. Was Col. Sidney present when you seized these Papers Sir Phil. Lloyd Yes Mr. Att. Gen. Are these some of those Papers Sir Phil. Lloyd Yes I verily believe it Mr. Att. Gen. In the next place I think we have some Papers of his particular Affairs which will prove his hand Call Mr. Sheppard Mr. Cooke and Mr. Cary. Mr. North. Sir Phil. Lloyd When were they Seized Sir Phil. Lloyd Towards the latter end of June my Lord. Iury-Man Which June Sir Phil. Lloyd Last June Mr. Sheppard Sworn Mr. Att. Gen. Pray will you look upon those Writings shewing the Libel Are you acquainted with Col. Sidney's hand Mr. Sheppard Yes My Lord. Mr. Att. Gen. Is that his hand Writing Mr. Sheppard Yes Sir I believe so I believe all these Sheets to be his hand Mr. Att. Gen. How come you to be acquainted with his hand Mr. Sheppard I have seen him write the indorsement upon several Bills of Exchange Mr. Cary Sworn Col. Sidney My Lord I desire you would please to consider this That Similitude of hands can be no evidence L. Ch. Just. Reserve your self till anon and make all the advantagious Remarks you can Mr. Att. Gen. Have you had any dealing with him Mr. Cary. I never saw him write to my knowledge more than once in my life but I have seen his Indorsement upon Bills and 't is very like that L. Ch. Just. Do you believe it is his hand as far as you can guess Mr. Cary. My Lord It is like what came to me for his Hand-writing L. Ch. Just. And you believe it to be his Hand Mr. Cary. Yes Mr. Cooke Sworn and the Papers shewn him L. Ch. Just. What say you Mr. Cooke Mr. Cooke My Lord I did never see Col. Sidney Write but I have seen several Notes that have come to me with Indorsement of his Name and we have
Howard let him if he please reconcile what he hath said now with what he said at my Lord Russel's Trial. There he said he said all he could and now he has got I do not know how many things that were never spoken of there I appeal to the Court whether he did then speak one word of that that he now says of Mr. Hambden He sets forth his Evidence very Rhetorically but it does not become a Witness for he is only to tell what is done and said but he does not tell what was done and said He says they took upon them to consider but does not say what one man said or what one man resolved much less what I did My Lord If these things are not to be distinguished but shall be jumbled all up together I confess I do not know what to say L. C. J. Take what liberty you please If you will make no Defence then we will direct the Jury presently We will direct them in the Law and recollect matter of Fact as well as we can Col. Sidney Why then my Lord I desire the Law may be reserved to me I desire I may have Council to that point of there being but one Witness L. C. J. That is point of Fact If you can give any testimony to disparage the Witness do it Col. Sidney I have a great deal to that L. C. J. Go on to it then Col. Sidney Then my Lord was there a War Levyed Or was it prevented Why then if it be prevented 't is not Levyed if it be not Levyed 't is not within the Statute so this is nothing to me L. C. J. The Court will have patience to hear you but at the same time I think 't is my duty to advertise you That this is but mispending of your time If you can Answer the Fact or if you have any mind to put any disparagement upon the Witnesses that they are not Persons to be believed do it but do not ask us Questions this way or t'other Col. Sidney I have this to say concerning my Lord Howard He hath accused himself of divers Treasons and I do not hear that he has his Pardon of any He is under the terror of those Treasons and the punishment for them He hath shewn himself to be under that terror He hath said That he could not get his Pardon until he had done some other jobbs till he was past this drudgery of swearing That is my Lord that he having incurred the penalty of High-Treason he would get his own indempnity by destroying others This by the Law of God and Man I think destroys a mans Testimony Besides my Lord he is my Debter he owes me a considerable summ of Money I lent him in time of his great necessity he made some Covenants with me for the payment of that Money which he hath broken and when his Mortgage was forfeited and I should take the advantage the Law gives me he finds out a way to have me laid up in the Tower He is a very subtle man At my Lord Russel's Tryal he carryed his Knife he said between the Paring and the Apple and so this is a point of great nicety and cunning at one time to get his own Pardon and at the same time to save his Money Another thing my Lord is when I was Prisoner he comes to my House and speaks with my Servant and says how sorry he was that I should be brought in danger upon this account of the Plot and there he did in the presence of God with Hands and Eyes lifted up to Heaven swear he did not believe any Plot and that it was but a Sham and that he was confident if I had known any thing I would have told it him He hath said somewhat of this before I have several Witnesses to prove both He was desirous to go further and he would not only pay my debt by his Testimony against me but he would have got my Plate and other Goods in my hands into his hands and he desired my Men as a place of trust to put them into his hands And the next news was that there was a Warrant against my Lord Russel and me But then my Lord he made other affirmations in the same presence of God that I was innocent in his opinion and he was confident of it for if he had known any thing of it he would have told it Now I know in my Lord Russel's Case there was Dr. Burnet said something like it And when he came to answer it he said he was to face it out and make the best of it he could Now he did face it out bravely against God but he was very timerous of Man So that my Lord he does say at the same time at my Lord Russel's Tryal upon his Oath That he did believe that the Religious obligation of an Oath did not consist in the formality of applying it to the place c. but in calling God to witness So that when he did call God to witness before Doctor Burnet and my Servant and others and this is not consistent with the Oath he has taken here as the Gentleman said at my Lord Russel's Tryal unless he has one Soul in Court and had another at my house these things are inconsistent and cannot be true and if he swear both under the Religion of an Oath he swears himself perjured Then my Lord he talks of Aaron Smith What have I to do with Aaron Smith He sayes I sent him my Lord there is no body else speaks a word of it Then by a strange kind of construction and imagination they will have it that some Papers here which are said to be found in my Study have relation to this Plot as they call it I know of none nor am in none Now my Lord I am not to give an account of these Papers I do not think they are before you for there is nothing but the similitude of Hands offered for proof There is the like Case of my Lady Carr some few years agoe She was indicted of Perjury and as 〈◊〉 against her some Letters of hers were produced that were contrary to what she swore in Chancery and her band was proved that is to say it was like it but my Lord Chief Justice Keâ—ing directs the Jury that though in Civil Causes it is a proof yet it is the smallest and least of proofs but in Criminal cases it was none at all So that my Lord Howard's testimony is single and what he talks of those two businesses that he calls a Consult and Aaron Smith is destroyed by want of proof What could six men do Can my Lord Howard raise five men by his credit by his purse Let him say as much for me with all my heart for my part I do not know where to raise five men That such men as we are that have no followers should undertake so vast a design is very unlikely And this great design that was
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
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
to admit of any Discourses till you Answer the Question Whether you be Guilty or not Guilty Mr. Att. Gen. If he will Demurr my Lord We will give him leave Col. Sidney I presume your Lordship will direct me for I am an ignorant Man in matters of this kind I may easily be surprised in it I never was at a Tryal in my life of any Body and never read a Law-Book L. C. Iust. Because no Prisoner under your Circumstances is to have Counsel but in special Cases to be assigned in matters of Law the Court is bound by their Oaths and Duty of their Places that they shall not see any wrong done to you But the business we are to tell you now is You are to plead Guilty or not Guilty or Demur which is a Confession in point of Law Col. Sidney Under favour my Lord There may be Indictments that are erroneous and if they are erroneous and vitious they are null and ought not to be answered to Mr. Iust. Wythins If you please to demur to it you shall have liberty to make any Exceptions Col. Sidney I don't demur 't is only Exceptions I think in matters of Life a Man may give in his Exceptions to the Bill and plead not Guilty afterwards I am sure in Sir Henry Vane's Case the Court said it and offered him to do it That which under favor I hope to do L. C. Iustice. You must Plead or Demurr Col. Sidney My Lord If I put in Exceptions to the Bill I don't plead till those Exceptions are over-ruled This was in the case of Sir Henry Vane L. C. Iustice. Sir I must tell you you must either Plead or Demurr Col. Sidney My Lord There are in this Indictment some Treasons or reputed Treasons that may come within the Statute of the 13th of this King which is limited by time the Prosecution must be in Six Months and the Indictment within Three Now my Lord if that this Business that is mentioned be above six Months before my Commitment or above three before the Indictment I think under favor I ought not to answer to these Matters L. C. Iustice. You are mistaken in the Law That will be saved when the Fact comes to appear If they alledge the thing to be at a time which according to that allegation would maintain the Indictment if upon the Tryal it appear otherwise the Court is bound to take notice of it when you come to your Tryal but we are not bound to examine that before you have pleaded Col. Sidney My Lord Every body will acknowledg that there have been or may be vitious Indictments Now if I plead to an erroneous Indictment and am Acquitted I may be Indicted again Bills of Attainder have been upon Errors in Original Indictments as that of the Duke of Somerset Now if there be here several things distinct in Nature distinguished by Law that are put together 't is impossible to make a positive Answer to any one If any one should tell me that I by my self or by others by Sword or by Pistol conspired to kill the King I can say I did it or I did it not If any one say I have levyed War and by several Acts undertake to prove I have done it I can say I have done it or I have not But here I don't find any thing specifyed or can tell upon what Statute I am Indicted I pray I may see the Record L. C. Iustice. That we can't do You shall hear it read again if you will If you think it to be a void Indictment Demur to it if you will Col. Sidney My Lord I desire you to accept of this shewing a Parchment L. C. Iustice. What is it Put in what Plea you shall be advised but if you put in a special Plea and Mr. Attorney demurrs you may have Judgment of Death and by that you wave the Fact Col. Sidney I can't make any Objection to the Bill after I have pleaded Not Guilty for I accept the Bill thereby to be good L. C. Iustice. If you can assign any Matter of Law do But otherwise what a kind of thing would it be All Criminals would say in all Cases I doubt whether the Bill be Good or Bad. And after I have thus considered of it I will Plead You are mis-informed and this the Court tells you as a Duty incumbent on them Mr. Iust. Wythins If you Demur and shew what your Causes are We will assign you Counsel Col. Sidney I desire you would not try me and make me to â—un on dark and slippery Places I don't see my way L. C. Iustice. Don't apprehend your self to be so as if the Court would run you on any inconvenience But they are bound to see the Methods of Justice preserved they are those that you and all the King's Subjects are bound to conform to If any one of us were in the same Condition we must observe the same Methods of Law Clerk of the Crown Art thou Guilty or not Guilty Col. Sidney Then pray my Lord Will you tell me this Is it true That a Man how vitious so ever an Indictment is must Answer or Demurr to it L. C. Iust. He must either Answer or Demurr Col. Sidney Are there no Exceptions to be admitted L. C. Iustice. None And if you don't do the one or the other Judgment passes as if you had pleaded Col. Sidney This is a Plea Mr. Iust. Wythins Will you stand by it Consider your self and your Life If you put in that Plea and Mr. Attorney Demurrs if your Plea be not good your Life is gone Col. Sidney Pray my Lord Give me a day to consider of it Lord Chief Iustice. No We must not introduce new Methods or Forms for any body The same Case that is with you may be with other people Col. Sidney My Lord I do not pretend to any thing but what is Law and due to every Man upon English Ground I would be very sorry to do that which may be hurtful L. C. Iustice. You have the rule of the Court You must do one or the other Call him to it Col. Sidney I desire this may be read shewing the same Parchment L. C. Iustice. It shall not be read unless you put it in as a Plea Mr. Att. General I must do my duty Mr. Williams exceeds his Liberty he informs the Prisoner several things Mr. Williams I only said if it was a Plea put it in Mr. Attorney can hear all I say Whereupon Mr. Williams was reproved by the Lord Chief Justice Col. Sidney I only give it as exceptions to the Bill Clerk of the Crown Art thou Guilty or not Guilty Col. Sidney If any one should ask me any particular thing I could tell how to answer L. C. Iustice. He askes you a particular thing 'T is the duty of the Court to pronounce Judgment if you do not plead Col. Sidney Why then if you drive me upon it I must plead Lord Chief Iustice. I am sure
That I shall tell the Jury The point in Law you are to take from the Court Gentlemen Whether there be Fact sufficient that is your duty to consider Col. Sidney I say my Lord that since I am Indicted upon that Statute I am not to take notice of any other I am Indicted for Conspiring the Death of the King because such a Paper is found in my House Under favour I think that can be nothing at all to me For though Sir Philip Lloyd did ask me whether I would put my Seal to it he did not ask me till he had been in my Closer and I knew not what he had put in and so I told him I would not do it Then come these Gentlemen upon similitude of hands My Lord We know what similitude of hands is in this Age. One told me within these two days that one came to him and offered him to counterfeit any hand he should shew him in half an hour So then my Lord I have nothing to say to these Papers Then for point of Witness I cannot be Indicted much less Tried or Condemned on 25 E. 3. for by that Act there must be two Witnesses to that very branch unto which the Treason does relate which must be distinguished For the Levying of War and Conspiring the Death of the King are two distinct things distinct in nature and reason and so distinguished in the Statute And therefore the Conspiring the Death of the King is Treason and the other not 1 E. 6. 12. 5 E. 6. 11. does expresly say there must be two Witnesses to either of these Acts. Now here is my Lord Howard I have enough to say of him by and by 'T is he only who speaks of six men whom he calls a select Council and yet selected by no man in the world I desire to know who selected my Lord Howard Who selected me If they were selected by no body 't is a Bull to say they were a select Council If they were not selected but erected themselves into a Cabal then they have either confidence in one another or find they are near equally able to assist in the design Here is nothing of all this These six men were strangers to one another For my own part I never spake with the Duke of Monmouth above three times in my life and one time was when my Lord Howard brought him to my House and cozened us both He told the Duke I invited him and he told me the Duke invited himself and neither of them was true Now that such men as these are not hardly knowing one another should presently fall into a great and intimate friendship and trust and management of such businesses as these are is a thing utterly improbable unless they were mad Now I do find in my Lord Howards Deposition against my Lord Russel that they were in prosecution of my Lord Shaftsbury's design and yet he acknowledges the Duke of Monmouth said he was mad and he himself said so too Now that they should join with four more in the prosecution of the design of a madman they must be mad too Now whether my Lord Howard would have you think he was mad because a madman cannot be guilty of Treason I cannot tell My Lord Howard in his last Deposition at my Lord Russel's Trial fixes the two meetings one about the middle of January the other ten days after Now he fixes one to be the latter end of January the other the middle of February Then he makes it to be the prosecution of my Lord Shaftsbury's design I do not find that any one there had any thing to do with my Lord Shaftsbury for my part I had not I had not seen his face in two years Then my Lord that I go upon is whatever my Lord Howard is here is but one Witness The Law of God and the Law of man understood and taken by all men does require two Witnesses Moses says so so the Apostles the same after him and Christ says the same That every matter is to be established by two Witnesses There ought to be two Witnesses to the same thing Now for one to come and tell a Tale of a Tub of an imaginary Council and another of a Libel a Paper written no body knows when is such a thing you can never go over it But if the Law of God be that there must be two Witnesses to the same Fact there is an end of this matter And under the Judicial Law the penalty would be in this Case to put a man to death Now here there are but two things which if allowed of no body will be safe for Perjury The one is to suffer men to give their testimony one to one thing and another to another that the fraud cannot be discovered and the other is to take away the punishment Now the punishment is taken away in some measure and do but take away the other point whereby the fraud cannot be discovered and then there is no defence can be made That both witnesses should be to the same point see the Story of Susanna Two Elders testified they saw her in the Act of Adultery They were carrying of her to her death both of them said the same thing until they were taken asunder and examined the fraud was not discovered and then one said she was under a Tree of the right hand and the other under the Tree on the left and she escaped and they were punished But now if you apply it to several Facts my Lord Howard may say what he pleases and if another shall come with a supplemental proof no Justice can be had But my Lord I desire this If there be two Witnesses to prove the Conspiracy and in that there were those matters done that are Treason I must answer to it but if there be not I presume I need say nothing to it If you do not allow it me I desire Council to Argue it L. C. J. That is a point of Fact Whether there be two Witnesses I tell you beforehand one Witness is not sufficient Col. Sidney Why then there is my Lord Howard and never another L. C. J. Nay do not make those inferences I will tell the Jury if there be not two Witnesses as the Law requires in this Case they ought to acquit you Col. Sidney You confound me I cannot stir You talk of a Conspiracy What is a Conspiracy to kill the King Is there any more Witnesses than one for Levying of War L. C. J. 'Pray do not deceive your self You must not think the Court and you intend to enter into a Dialogue Answer to the Fact if there be not sufficient Fact the Jury will acquit you Make what Answer you can to it Col. Sidney Then I say There being but one Witness I am not to Answer to it at all L. C. J. If you rely upon that we will direct the Jury presently Col. Sidney Then for Levying War what does any one say My Lord
carried on thus it had neither Officers nor Souldiers no place no time no Money for it That which he said last time which he forgotnow he talked of twenty five or thirty thousand pound but no man knew where it was to be had but last time he said it was spoken in jest Now this is a pretty Cabal that six men should meet about a business and they neglect every one of the points relating to the thing they met about make no step about the business and if any one did speak of it it was but in jest This is a very deep maintaining of the Plot. Then my Lord as to these Papers I do not think I am to give any account of them I would say nothing to the disparagement of Sir Philip Lloyd I never saw him till he cause to my House but yet I say he is the Kings Officer and when I am prosecuted at the Kings Smit I think he ought to be no Witness The Government of France is violent and absolute but yet a few years ago a Minister of State had his Papers taken from him and abundance of them had dangerous Plots against the King in them but because they were inventoried in his Officers presence or those reputed by him there was no use could be made of them it was an irreparable fault in the process and that saved him The similitude of hands is nothing we know that Hands will be counterfeited so that no man shall know his own hand A Gentleman that is now dead told me that my Lord Arlington about five years agoe desired him to write a Letter and seal it as well as he could he writ it with care and sealed it with a Wafer and Wax upon it and within a few days my Lord Arlington brought him five Letters and he did not know which was his own The Attorney shews these Papers to me I do not know whether they are my own or no but these very Papers such as they are do abhorr as much as any one can such a design Look upon them you see they are all old Ink. These Papers may be writ perhaps these twenty years the Ink is so old But my Lord it is a polemical Discourse it seems to be an Answer to Filmer which is not calculated for any particular Government in the World It goes only upon these general Principles That according to the universal Law of God and Nature there is but one Government in the World and that is Intire and Absolute and that the King can be bound by no Law by no Oath but he may make all Laws and abolish them as he pleases And this whether of Age or no a Man or a Child of Sense or out of his Sense Now my Lord what if any man in his Cabinet should have written this Book Then he has another Principle he says 'T is the same thing whether a King come in by Election by Donation by Inheritance or Usurpation or any other way than which I think never was a thing more desperately said Cromwell when one White a Priest wrote a Book wherein he undertook to prove That Possession was the only Right to Power tho' he was a Tyrant and a violent one you need not wonder I call him Tyrant I did so every day in his Life and acted against him too it would be so odious a Principle he would not endure it and he used him very slightly for it Now this Filmar that no man must write against is the man that does assert it That 't is no matter how they come by their Power and gives the same Power to the worst Usurpers as they that most rightly come to the Crown By the same Argument if the arrantest Rascal of Israel had killed Moses David c. and seized upon the Power he had been possessed of that Power and been Father of the People If this be Doctrine my Lord that is just and good then I confess it may be dangerous for any thing to be found in a man's House contrary to it but if a Commoner of England write his present thoughts and another man upon looking on his Book write his present thoughts of it what great hurt is there in it And I ask Mr. Attorney how many years ago that was written L. Ch. Iust. I don't know what the Book was in answer to We are not to speak of any Book that Sir Robert Filmar wrote but you are to make your Defence touching a Book that was found in your Study and spend not your time and the Courts time in that which serves to no other Purpose than to gratify a luxuriant way of Talking that you have We have nothing to do with his Book you had as good tell me again That there was a parcel of people rambling about pretending to my L. Russel's Ghost and so we may answer all the Comedies in England Answer to the matter you are indicted for Do you owne that Paper Col. Sidney No my Lord. L. Ch. Iust. Go on then it does not become us to be impatient to hear you but we ought to advertise you that you spend not your time to no purpose and do your self an Injury Col. Sidney I say first 'T is not proved upon me and secondly 'T is not a Crime if it be proved L. Ch. Iust. You began very materially in one thing it is material for you to apply your self to take off the Credibility of my Lord Howard that is a Witness call your Witnesses to that purpose or if you have any other point to take away the Credibility of any other Witness Col. Sidney My Lord I have seven or eight points of Law L. Ch. Iust. I hear not one yet Col. Sidney Why my Lord Conspiring to levy war is not Treason and I desire to have Counsel upon that L. J. Just. 'T is not a Question You had as good ask me whether the first Chapter in Littleton be Law Col. Sid. My Lord I have neither made war nor conspir'd to levy war L. C. Iust. You are still in a mistake you shall not think that we intend to dialogue with you to let you know how far the proof hath been given or not given but when we come to direct the Jury then we shall observe how far the Law requires there should be two witnesses But whether there be such a proof that must be left to the Jury Mr. Just. Wythens If you agree the Conspiracy I will tell you my mind of it I cannot give you my Opinion in Law till the Fact be stated L. Ch. Iust. The Law alwayes arises upon a point of Fact there can be no doubt in point of Law till there be a settlement in point of Fact Mr. Just. Holloway My Lord has put you in a right way The Conspiracy is proved but by one Witness if you have any thing to take off his Credibility t is to the purpose Col. Sidney Truly my Lord I do as little intend to mis-spend my
own Spirit and your Time as ever any man that came before you Now my Lord if you will make a Concatenation of one thing a Supposition upon Supposition I would take all this asunder and shew if none of these things are any thing in themselves there can be nothing joyned together L. Ch. Iust. Take your own Method Mr. Sidney but I say if you are a man of low Spirits and weak Body 't is a Duty incumbent upon the Court to exhort you not to spend your time upon things that are not material Col. Sidney My Lord I think 't is very material that a whimsical imagination of a Conspiracy should not pass for a real Conspiracy of the Death of the King besides if these Papers were found in my House 't is a Crime created since my Imprisonment and that cannot come in for they were found since My Lord if these Papers are right it mentions 200. and odd Sheets and these show neither Beginning nor Ending and will you my Lord indict a man for Treason for scraps of Paper found in his House relating to an ancient Paper intended as innocently as any thing in the world and piece and patch this to my Lord Howards Discourse to make this a Contrivance to kill the King Then my Lord I think 't is a Right of Mankind and 't is exercised by all studious men that they write in their own Closets what they please for their own Memory and no man can be answerable for it unless they publish it L. C. J. Pray don't go away with that right of mankind that it is lawful for me to write what I will in my own Closet unless I publish it I have been told Curse not the King not in thy thoughts not in thy Bed-Chamber the Birds of the air will carry it I took it to be the duty of mankind to observe that Col. Sidney I have lived under the Inquisition L. C. J. God be thanked we are governed by Law Col. Sidney I have lived under the Inquisition and there is no man in Spain can be tryed for Heresie Mr. Iust. Withins Draw no Presidents from the Inquisition here I beseech you Sir L. C. J. We must not endure men to talk that by the right of nature every man may contrive mischief in his own Chamber and he is not to be punished till he thinks fit to be called to it Col. Sidney My Lord if you will take Scripture by pieces you will make all the Penmen of the Scripture blasphemous you may accuse David of saying There is no God and accuse the Evangelists of saying Christ was a Blasphemer and a Seducer and the Apostles That they were drunk L. C. J. Look you Mr. Sidney if there be any part of it that explains the sense of it you shall have it read indeed we are trifled with a little 'T is true in Scripture 't is said there is no God and you must not take that alone but you must say the fool hath said in his heart there is no God Now here is a thing imputed to you in the Libel if you can say there is any part that is in excuse of it call for it As for the purpose whosoever does publish that the King may be put in chains or deposed is a Traytor but whosoever says that none but Traytors would put the King in Chains or depose him is an honest man therefore apply ad idem but don't let us make Excursions Col. Sidney If they will produce the whole my Lord then I can see whether one part contradicts another L. Ch. Iust. Well if you have any Witnesses call them Col. Sidney The Earl of Anglesey L. Ch. Iust. Ay in God's Name stay till to morrow in things that are pertinent Col. Sidney I desire to know of my Lord Anglesey what my Lord Howard said to him concerning the Plot that was broken out L. Anglesey Concerning this Plot you are now questioned for Col. Sidney The Plot for which my Lord Russel and I was in Prison L. Anglesey The Question I am asked is what my Lord Howard said before the Tryal of my Lord Russel concerning the Plot I suppose this goes as a branch of that he was accused for I was then in the Country when the Business was on foot and used to come to Town a day or two in the Week living near in Hertfordshire and I understanding the Affliction my Lord of Bedford was in I went to give my Lord a Visit we having been acquaintance of above fifty years standing and bred together in Maudlin Colledge in Oxford When I came to my Lord of Bedford and had administred that comfort that was fit for one Christian to give another in that distress I was ready to leave him and my Lord Howard came in It was upon the Friday before my Lord Howard was taken he was taken as I take it upon Sunday or Munday my Lord Howard fell into the same Christian Office that I had been just discharging to compassionate my Lords affliction to use Arguments to comfort and support him under it and told him he was not to be troubled for he had a discreet a wise and a vertuous Son and he could not be in any such Plot I think that was the word he used at first though he gave another name to it afterward and his Lordship might therefore well expect a good Issue of that business and he might believe his Son secure for he believed he was neither guilty nor so much as to be suspected My Lord proceeded further and did say that he knew of no such barbarous Design I think he called it so in the second place and could not charge my Lord Russel with it nor any body else This was the effect of what my Lord Howard said at that time and I have nothing to say of my own knowledge more than this but to observe that I was present when the Jury did put my Lord Howard particularly to it what have you to say to what my Lord Anglesey testifies against you My Lord I think did in three several places give a short account of himself and said it was very true and gave them some further account why he said it and said he should be very glad it might have been advantagious to my Lord Russel Col. Sidney My Lord of Clare I desire to know of my Lord of Clare what my Lord Howard said concerning this Plot and me Lord Clare My Lord a little after Colonel Sidney was taken speaking of the Times he said that if ever he was questioned again he would never plead the quickest dispatch was the best he was sure they would have his Life though he was never so innocent and discoursing of the late Primate of Armaghs Prophesie for my part says he I think the Persecution is begun and I believe it will be very sharp but I hope it will be short and I said I hoped so too Mr. At. Gen. What answer did your Lordship
give to it Lord Clare I have told you what I know my Lord is too full of discourse for me to answer all he says but for Colonel Sidney he did with great asseverations assert that he was as innocent as any man breathing and used great Encomiums in his praise and then he seemed to bemone his misfortune which I thought real for never was any man more ingaged to another than he was to Colonel Sidney I believe Then I told they talked of Papers that were found I am sure says he they can make nothing of any Papers of his Mr. Att. Gen. VVhen was this Lord Clare This was at my house the beginning of July Mr At. Gen. How long before my Lord Howard was taken L. Clare About a week before Mr. At. Gen. I would ask you my Lord upon your honour would not any man have said as much that had been in the Plot L. Clare I can't tell I know of no Plot. Col. Sidney Mr. Philip Howard Mr. I. Wythins VVhat do you ask him Col. Sidney VVhat you heard my Lord Howard say concerning this pretended Plot or my being in it Mr. Phil. Howard My Lord when the Plot first brake out I used to meet my Lord Howard very often at my Brothers house and coming one day from Whitehall he asked me what News I told him my Lord says I there are abundance of people that have confessed the horrid Design of murthering the King and the Duke How says he is such a thing possible says I 't is so they have all confessed it Says he do you know any of their names yes says I I have heard their Names What are their Names says he why says I Colonel Romsey and Mr. West and one Walcott and others that are in the Proclamation I can't tell whether Walcott was in hold says he 't is impossible such a thing can be says he there are in all Countreys people that wish ill to the Government and says he I believe there are some here but says he for any man of Honour Interest or Estate to go about it is wholly impossible Says I my Lord so it is and I believe it Says I my Lord do you know any of these people No says he none of them only one day says he passing through the Exchange a man saluted me with a Blemish upon his Eye and he embraced me and wished me all happiness says he I could not call to mind who this man was but afterwards I recollected my self that I met him at my Lord Shaftsburies and heard afterwards and concluded his name to be his at whose house the King was to be assassinated Mr. At. Gen. Rombald Mr. Howard Ay Rombald My Lord May I ask if my Lord Howard be here L. C. J. He is there behind you Mr. Howard Then he will hear me My Lord says I what does your Lordship think of this business says he I am in a maze says I if you will be ruled by me you have a good opportunity to Address to the King and all the discontented Lords as they are called and to shew your Detestation and Abhorrence of this thing for says I this will be a good means to reconcile all things Says he you have put one of the best Notions in my Head that ever was put Says I You are a very good Pen man draw up the first Address and I believe I was the first that mentioned an Address you have had many an one since God send them good success says he I am sorry my Lord of Essex is out of Town he should present it But says I Here is my Lord Russel my Lord of Bedford my Lord of Clare all of you that are disaffected and so accompted go about this business and make the Nation happy and King happy Says he will you stay till I come back Ay says I if you will come in any time but he never came back while I was there The next day I think my Lord Russel was taken and I came and found him at my Brother's House again for there he was day and night says he Cozen what News Says I my Lord Russel is sent to the Tower We are all undone then says he Pray says he go to my Lord Privy-Seal and see if you can find I am to be taken up says he I doubt 't is a Sham-Plot if it was a true Plot I should fear nothing says I what do you put me to go to my Lord Privy-Seal for He is one of the King's Cabinet Counsel do you think he will tell me I won't go but says I if you are not Guilty why would you have me go to inquire why says he because I fear 't is not a true Plot but a Plot made upon us and therefore says he there is no man free My Lord I can say no more as to that time and there is no man that sits here that wishes the King better than I do The next thing I come to is this I came the third day and he was mighty sad and melancholy that was when Col. Sidney was taken says I why are you melancholy because Col. Sidney is taken Says I Col. Sidney was a man talked of before why you were not troubled for my Lord Russel that is of your Blood says he I have that particular Obligation from Col. Sidney that no one man had from another I have one thing to say farther I pray I may be rightly understood in what I have said L. C. J. What you would have us undertake for all the people that hear you I think you have spoken very materially and I will observe it by and by to the Jury Col. Sidney Pray call Doctor Burnet Mr. Iust. VValcott What do you ask Doctor Burnet Col. Sidney I have only to ask Dr. Burnet whether after the News of this pretended Plot my Lord Howard came to him And what he said to him Dr. Burnet My Lord the day after this Plot brake out my Lord Howard came to see me and upon some discourse of the Plot with Hands and Eyes lifted up to Heaven he protested he knew nothing of any Plot and believed nothing of it and said that he looked upon it as a ridiculous thing My Lord Pagett was sent for at the Prisoners request being in the Hall Col. Sidney My Lord I desire Joseph Ducas may be called who appeared being a French-man Col. Sidney I desire to know whether he was not in my House when my Lord Howard came thither a little after I was made a Prisoner and what he said upon it Ducas Yes my Lord my Lord Howard came the day after the Colonel Sidney was taken and he asked me Where was the Col. Sidney and I said he was taken by an Order of the King and he said oh Lord what is that for I said they have taken Papers he said Is some Papers left yes Have they taken something more No well you must take all the things out of the house and
I say this If I am not under the first Branch if not directly I can't be by Implication though I did make War I can't be said to Conspire the Death of the King because 't is a distinct Species of Treason and my Lord Coke says t is the overthrow of all Justice to confound Membra dividentia now if the making of War can't be understood to be a Conspiring the Death of the King then I am not guilty of this Indictment but heremy Lord is neither Conspiring the Death of the King nor making War nor Conspiring to make War Besides I say 't is not the best Mans Evidence here would be good in this Case because the Law requires two The next thing is the business of Aaron Smith which my Lord tells so imperfectly and so meerly conjectural that there is nothing in it but his Rhetorick in setting it out He tells you of a Letter sent with him but he does not tell you by whom writ what was in it or whether it was delivered or no So that I think we may lay that aside as the other as things nothing in them at all Then says Mr. Attorney These Scotch Gentlemen are come to Town I profess I never heard the Names of one of them till he named them to me in the Tower I have not sent my self nor writ a Letter into Scotland never since the Year 59 nor do I know one Man in Scotland to whom I can write or from whom I ever received one I returned into England in the Year 77 and since that time have not writ nor received a Letter from Scotland Then some Gentlemen came hither What is that to me I never saw one of the Cambells in my life nor Monro if any one can prove I have had Communication with them I will be glad to suffer Then here are Papers if any thing is to be made of them you must produce the whole for 't is impossible to make any thing of a part of them You ask me What other Passage I would have read I don't know a Passage in them I can't tell whether it be good or bad But if there are any Papers found 't is a great doubt whether they were found in my Study or no or whether they be not counterfeit but though that be admitted that they were found in my house the hand is such that it shews they have been writ very many years Then that which seems to be an account of the Sections and Chapters that is but a scrap and what if any body had my Lord either in my own hand or anothers found Papers that are not well justifiable Is this Treason Does this imagine the Death of the King Does this reach the Life of the King If any Man can say I ever printed a sheet in my life I will submit to any Punishment Many others my Lord they write and they write what comes into their heads I believe there is a Brother of mine here has forty Quire of Paper writtenby my Father and never one sheet of them was published but he writ his own mind to see what he could think of it another time and blot it out again may be And I my self I believe have burned more Papers of my own writing than a Horse can carry So that for these Papers I can't answer for them There is nothing in it and what Concatenation can this have with the other design that is in it self nothing with my Lords Select Counsel selected by no body to pursue the design of my Lord Shaftsbury And this Counsel that he pretends to be set up for so great a business was to be adjusted with so much fineness so as to bring things together What was this fineness to do taking it for granted which I don't This was nothing if he was a credible Witness but a few Men talking at large of what might be or not be what was like to fall out without any manner of intention or doing any thing They did not so much as inquire Whether there was Men in the Country Arms or Ammunition A War to be made by five or six Men not knowing one another not trusting one another What said Dr. Coxe in his evidence at my Lord Russel's Tryal of my Lord Russel's trusting my Lord Howard He might say the same of some others So that my Lord I say these Papers have no manner of coherence no dependance upon any such design You must go upon conjecture upon conjecture and after all you find nothing but only Papers never perfect only scraps written many years ago and that could not be calculated for the raising of the People Now pray what Imagination can be more vain than that and what Man can be safe if the King's Counsel may make such whimsical I won't say but groundless Constructions Mr. Attorney says the Plot was broken to the Scots God knows we were neither broken nor joined and that the Cambells came to Town about that time I was taken and in the mean time my Lord Howard the great Contriver of all this Plot who was most active and advised the business that consisted of so much fineness he goes there and agrees of nothing and then goes into Essex upon great important business greater then the War of England and Scotland to what purpose To look after a little pimping Mannour and what then Why then it must be laid aside and he must be idle five Weeks at the Bath and there is no inquiring after it Now I desire your Lordship to consider whether there be a possibility for any Men that have the sense of Porters and Grooms to do such things as he would put upon us I would only say this If Mr. Attorney be in the right there was a Combination with the Scotts and then this Paper was writ for those that say I did it say I was doing of it then and by the Notes there is work enough for four or five years to make out what is mentioned in those scraps of Paper and this must be to kill the King And I say this my Lord that under favour for all constructive Treasons you are to make none but to go according to plain proof and that these Constructive Treasons belong only to Parliament and by the immediate Proviso in that Act. Now my Lord I leave it to your Lordship to see whether there is in this any thing that you can say is an Overt Act of Treason mentioned in 25 E. 3. If it be not plainly under one of the two Branches That I have endeavoured to kill the King or Levyed War then 't is matter of Construction and that belongs to no Court but the Parliament Then my Lord this hath been adjudged already in Throgmorton's Case There is twenty Judgments of Parliament the Act of 13 Eliz. that says I should have some body to speak for me my Lord. L. C. Iust. We are of another Opinion Mr. Just. Wythins If you acknowledg the matter of
purpose they ingaged For they did very wisely consider If this be only to serve a turn and to make one Man great this will be a great hinderance in their Affair therefore they thought it was necessary to ingage upon a publick account and to resolve all into the authority of a Parliament which surely they either thought to force the King to call or otherwise that the People might call a Parliament if the King refused and so they to choose their own Heads But still they were upon this point That it was necessary for their Friends in Scotland to have their Counsels united with them and in order to that it was necessary to contrive some way to send a Messenger into Scotland to bring some Men here to treat and consult about it and Col. Sidney is the Man that does engage to send this Messenger and he had a man very fit for his turn that is Aaron Smith whom he could confide in and him he undertook to send into Scotland This Messenger was to fetch my Lord Melvin the two Cambells and Sir John Cockram Col. Sidney as he ingaged to do this so afterwards he did shew to my Lord Howard Money which he affirmed was for that business he says it was a Sum of about sixty Guinneys and he believes he gave it him for that Col. Sidney told him Aaron Smith was gone into Scotland That the Pretence was not bare-faced to invite them over to consult of a Rebellion but to consult about the business of Carolina being a Plantation for the Persecuted Brethren as they pretended in Scotland Gentlemen these Scotch-men that were thus sent for over they came accordingly that is the two Cambells and Sir John Cockram and the Discourse with Sir Andrew Foster was according to this Cant that was agreed on beforehand concerning a Plantation in Carolina This was that that was pretended for their coming hither but the true Errand was the business of the Insurrection intended Gentlemen that they came upon such a design is evident from the circumstances they came about the time the business brake out and in that time suspiciously changing their Lodging they were taken making their escape and this at a time before it was probable to be known abroad that these men were named as part of the Conspirators These things do very much verifie the Evidence my Lord Howard hath given and there is nothing has been said does at all invalidate in The sending of Aaron Smith into Scotland and his going and the coming of these men and their endeavouring to make their escape are mighty concurrent Evidences with the whole Evidence my Lord Howard has given Now What objections are made against this Evidence truly none at all Here are persons of great Quality have given their Testimony and they do not impeach my Lord Howard in the least but some do extremely confirm the truth of my Lord Howard My Lord Anglesey gives you an account of a discourse at my Lord of Bedfords That my Lord Howard came in and that my Lord Howard should there comfort my Lord of Bedford and enlarge in the Commendations of his Son and say he was confident he knew nothing of the Design and he must be innocent Gentlemen This is the nature of the most part of the Evidence My Lord of Clare his Evidence is much the like that is his denying that he knew of any Plot. Now here is my Lord Howard under a guilt of High-Treason for he was one of those Censpirators not yet discovered nor no Evidence of any discourse leading to any thing that should give occasion to him to protest his innocency and says he I know nothing of the Plot. You would have wondered if he should have been talking in all places his know ledg and declaring himself His denying of it under the guilt when he was not accused is nothing to his Confession when he comes to be apprehended and taken for it Here Mr. Philip Howard says he had several discourses with him about this business upon the breaking out of the Plot and that he advised him to make an Address and that this was a thing that would be very acceptable and very much for their vindication and my Lord Howard he says thanked him for his very good advice and said he would follow it and presently after when my Lord Russel was apprehended Mr. Howard tells him the news that my Lord Russel was apprehended this was sudden to him And what says he We are all undone When my Lord Russel that was one of this Counsel that was a secret Counsel and could not be traced but by some of themselves when he is apprehended then he falls out into this expression We are all undone This is an Argument my Lord Howard had a guilt upon him For why were they all undone that my Lord Russel was apprehended any more than upon the apprehending the rest Yes because my Lord was one of the six and now t was come to the knowing of that part of the Conspiracy It was traced to the Counsel of six which in all likelihood would break the neck of the Design Now tho he put it off afterwards saying I believe it is a Sham Plot yet this was but a trivial put off And then when Colonel Sidney is taken the same Witness Mr. Howard tells you my Lord was very sad and melancholy for then he had greater reason to lie under an apprehension of being detected Therefore Gentlemen this will rather confirm the truth of the Evidence than any way impeach it Then for I would repeat it all tho I think it hath no great weight in it Doctor Burnet says That after the Plot my Lord Howard pretended he knew of no Plot. This is no more than was testified by the other Lords before and all it imports is that my Lord did not discover himself to Doctor Burnet But I would fain know if my Lord had told Doctor Burnet had it not argued that he had great confidence in him that he thought him a man fit to be intrusted with such a secret and unless the Doctor desires to be thought such a man himself must own 't is no objection That my Lord Howard did not tell him Ducas's Testimony is no more neither That he protested he was innocent and believed Colonel Sidney was innocent and this was before my Lord Howard discovered any thing of this Plot. Then Colonel Sidney objects This is by malice my Lord Howard owes him mony and seeks to pay his Debts by taking away his Life and in further prosecution of this malice would have seized upon his Goods But the Evidence does not receive such construction for my Lord Howard only offered Colonel Sidney the civility of his House to protect his Plate and Goods Now Gentlemen there were two other Witnesses my Lord Paget and Mr. Edward Howard but they say no more than the rest of them that he did protest his innocency and Mr. Howard says he advised
you too There was a Design for a general and publick Insurrection That he was present with the Good-enough's one and t'other and that they had taken upon them to divide and did divide the City into such and such districts And what was the business It was that there might be a general Insurrection might be an Insurrection not only to Destroy the King and the Duke but to Destroy all the Kings Loyal Subjects and in taking away their Lives to take away the Life of Monarchy it self and to Subvert the Religion Established by Law Then comes in Colonel Rumsey and he gives you an Account that he had heard of such things in Mr. West's Chamber and tells you he had received such Intelligence And all these give you an Account that there was such a Design to kill the King And this is the Substance of the general Evidence produced to prove the Conspiracy Then to make this Matter come home to the Prisoner at the Bar first my Lord Howard gives you an Account and does directly Swear That about the middle or latter end of January last he happened to meet with Colonel Sidney the Prisoner at the Bar and the Duke of Monmouth they were the Persons first began to have Discourse about this matter and how they met with a disappointment the thing had slept a great while and that it was fit it should be revived again and that Persons of Quality were mentioned who were to have an immediate care in the carrying on of the business and that it should not be divulged to too many accordingly there was my Lord Russel my Lord of Essex my Lord of Salisbury and Mr. Hambden named He tells you the Prisoner at the Bar undertook for my Lord of Essex and Mr. Hambden and he tells you the Duke of Monmouth undertook for my Lord Russel and the rest and that this was the Result of one Meeting He goes yet further That pursuant to this it was communicated to those persons so to be ingaged and the Place and Time was appointed the Place Mr. Hambden's House but is not so positive to the Time but onely to the Place and Persons He says all these Persons met and he gives you an Accompt That Mr. Hambden because it was necessary for some persons to break silence gave some short account of the design of their Meeting and made some reflections upon the mischiefs that attended the Government and what apprehensions many people upon the late Choice of Sheriffs and that there had been a Male Administration of Publick Justice That it was fit some means should be used to redress these Grievances He can't tell you positively what this man or that man said there but says that all did unanimously consent to what was then debated about an Insurrection and in order to it they discoursed about the time when it should be and that they thought fit it should be done suddenly while mens minds were wound up to that height as they then were and as the first Witness tells you There was a Consideration whether it should be at one place or at several places together He says then it was taken into consideration that this could not be carried on but there must be Arms and Ammunition provided The next step is about a necessary concern the concern of Money and therefore our Law calls Money The Sinews of War My Lord Howard tells you That the Duke of Monmouth proposed 25. or 30000 l. That my Lord Gray was to advance 10000 l. out of his own Estate but then they thought to make their Party more strong by the Assistance of a Discontented people in Scotland my Lord of Argyle and Sir John Cockram and several other people there to joyn with them That pursuant to this all they after met at my Lord Russels and the same Debate is Reassumed and among the rest this particular thing of conciliating a friendship with the Scotch the Cambels my Lord of Argyle and my Lord Melvin were particularly mentioned That Coll. Sidney took upon himself to find out a Messenger but it was my Lord Russel's part to Write the Letter One of the Messengers named to convey the fame was Aaron Smith he was known says my Lord Howard to some of us and then we all agreed that Aaron Smith was the most proper man Upon this they brake up that very time Afterwards comes my Lord Haward to Coll. Sidney at some distance of time and he comes to him and shews him Threescore Guineys and told him he was going into the City and that they were to be given to Aaron Smith He tells you after this That he had some other discourse about a fortnight or three weeks after with Coll. Sidney and that Coll. Sidney did take notice that he had sent him and that he had an account of him as far as Newcastle So that 't is very plain That it was not sudden and rash thoughts it is a little more than according to the language we meet with in some Pamphlets of late more than Heats and Stirs Gent. Then I must tell you here are Circumstances proved in pursuance of this Design for Sir Andrew Foster informs you how that Sir John Cockram and the Cambels and one Monro as I take it came to Town and that he had Discourse with some of them about their business of coming out of Scotland and he says they pretended it was about business of some Trade to Carolina which does still corroborate the Evidence He tells you likewise That there being a noise of discovering the Plot they begun to hide Sir John Cockram began to hide and sculk from place to place they came first with that Cant in their Mouths about Carolina The Messenger Atterbury tells you When they came to take these Men how they shuffled from place to place So Gent. I must tell you That if in case there be but One Witness to prove a direct Treason and another Witness to a Circumstance that contributes to that Treason that will make two Witnesses to prove the Treason Because I would explain my Mind Not long ago all the Judges of England were commanded to meet together and one that is the Senior of the Kings Councel was pleased to put this Case If I buy a Knife of I. S. to kill the King and it be proved by one Witness I bought a Knife for this purpose and another comes and proves I bought such a Knife of I. S. they are Two Witnesses sufficient to prove a man Guilty of High Treason and so it was held by all the Judges of England then present in the presence of all the Kings Councel And therefore Mr. Sidney is mightily mistaken in the Law For in case of any Treason except the Treason at the Bar or in Treason for Clipping and Coining one Witness is sufficient at this day Now Gent. Supposing all this should not be sufficient here is a Libel and it is a most Traiterous and Seditious Libel If you
may be deposed that thy are accomptable to their People that a general Insurrection is no Rebellion and justifie it 't is high time upon my word to call them to account Col. Sidney My Lord the other day I had a book wherein I had King James Speech upon which all that is there is grounded in his own Speech to the Parliament in 1603 and there is nothing in these Papers which is called a Book tho' it never appeared for if it were true it was only Papers found in a private man's Study never shew'd to any body and Mr. Attorney takes this to bring it to a crime in order to some other Counsel and this was to come out such a time when the Insurrectioâ— brake out My Lord There is one Person I did not know where tâ— find then but every Body knows where to find now that is the Duke of Monmouth if there had been any thing in Consultation by this means to bring any thing about he must have known of it for it must be taken to be in Prosecution of those Designs of his And if he will say there ever was any such thing or knew any thing of it I will acknowledge whatever you please L. Ch. Iust. That is over you were Tryed for this Fact We must not send for the Duke of Monmouth Col. Sidney I humbly think I ought and desire to be heard upon it L. Ch. Iust. Upon what Col. Sidney If you will call it a Tryal L. Ch. Iust. I do The Law calls it so Mr. Just. Withins We must not hear such Discourses after you have been Tryed here and the Jury have given their Verdict as if you had not Justice done you Mr. Just. Holloway I think it was a very fair Tryal Col. Sidney My Lord I desire That you would hear my Reasons why I should be brought to a new Tryal L. Ch. Iust. That can't be Col. Sidney Be the Tryal what it will Cl. of Cr. Cryer make an Oyes Col. Sidney Can't I be heard my Lord L. Ch. Iust. Yes If you will speak that which is proper 't is a strange thing You seem to appeal as if you had some great hardship upon you I am sure I can as well appeal as you I am sure you had all the Favour shewed you that ever any Prisoner had The Court heard you with Patience when you spake what was proper but if you begin to Arraign the Justice of the Nation it concerns the Justice of the Nation to prevent you We are bound by our Consciences and our Oaths to see right done to you and tho' we are Judges upon Earth we are accomptable to the Judge of Heaven and Earth and we act according to our Consciences tho' we don't act according to your Opinion Col. Sid. My Lord I say In the first place I was brought to Westminster by Habeas Corpus the 7th of this Month granted the day before to be Arraigned when yet no Bill was exhibited against me and my Prosecutors could not know it would be found unless they had a Correspondence with the Grand Jury which under favour ought not to have been had L. Ch. Iust. We know nothing of it You had as good tell us of some-bodies Ghost as you did at the Tryal Col. Sid. I told you of two infamous Persons that had acted my Lord Russel's Ghost L. Ch. Iust. Go on if you have any thing else Col. Sid. I prayed a Copy of the Indictment making my Objections against it and putting in a special Plea which the Law I humbly conceive allowed me the help of Counsel to frame it was denied L. Ch. Iust. For the Copy of the Indictment it was denied in the Case you cited This favour shewed you to day was denied at any time to Sir Henry Vane that is to have the Indictment read in Latin Don't say on the other side we refused your Plea I told you have a care of putting it in If the Plea was such as Mr. Attorney did demurre to it I told you you were answerable for the Consequences of it Mr. Just. Withins We told you you might put it in but you must put it in at your Peril Col. Sidney My Lord I would have put it in L. Ch. Iust. I did advertise you If you put in a Plea upon your Peril be it I told you We are bound by Law to give you that fair advertisement of the great danger you would fall under if it were not a good Plea Col. Sidney My Lord my Plea was that could never hurt me L. Ch. Iust. We do not know that Col. Sid. I desire my Lord this that it may be considered That being brought here to my Tryal I did desire a Copy of my Indictment upon the Statute of 46 E. 3. which does allow it to all Men in all Cases L. Ch. Iust. I tell you the Law is otherwise and told you so then and tell you so now Col. Sid. Your Lordship did not tell me That was not a Law L. Ch. Iust. Unless there be a Law particular for Col. Sidney If you have any more to say Col. Sid. I am probably informed and if your Lordship will give me time shall be able to prove it That the Jury was not summoned as it ought to be My Lord if this Jury was not summoned by the Bailiffe according to the ordinary way but they were agreed upon by the Under-Sheriff Graham and Burton I desire to know whether that be a good Jury L. Ch. Iust. We can take notice of nothing but what is upon the Record Here is a return by the Sheriff if there had been any indirect means used with the Sheriff or any else you should have mentioned it before they were Sworn Col. Sid. Is there any thing in the World more irregular then that L. Ch. Iust. I know nothing of it That time is past Col. Sid. Now my Lord All men are admitted on the Jury L. Ch. Iu. Why you did not like Gentlemen and now you don 't like those that you had In plain English if any Jury had found you Guilty it had been the same thing It had been a good Summons if they had acquitted you Col. Sidney When the Jury thus composed was sworne 4 witnesses of whom 3 were under the terror of Death for Treasons were produc'd against me And they confessed themselves guilty of Crimes of which I had no knowledge and told storys by hear-say And your Lordship did promise in summing up the Evidence that the Jury should be informed what did reach me and what not and I don't remember that was done L. Ch. Iust. I did it particularly I think I was as careful of it as possibly I could be Col. Sidney My Lord Howard being the only Witness that say'd any thing against me Papers which were sayd to be found in my house were produced as another Witness and no other Testimony given concerning them but that the hand was like unto mine No man can say I
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