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
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
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
the Noblemen there would not agree to it at present As to the Prisoner in particular I know nothing and did never speak with him till since the Discovery Mr. Att. Gen. Collonel Romsey Sworn Mr. North. Pray Sir will you give the Court an account of what you know of any Insurrection intended and how they designed to carry it on Col. Romsey My Lord the latter end of October or beginning of November I was desired by my Lord Shaftesbury to go to Mr. Sheppards to know of the Gentlemen that were met there what was done about the Rising intended at Taunton and I had their answer that Mr. Trenchard had fail'd them and that it must cease for that time That was all at that time Mr. Sol. Gen. What else do you know of any Insurrection afterwards Col. Romsey After that we had several meetings at Mr. West's Chamber where we had divided the City into twenty parts and seven parts Mr. Goodenough had brought an account of the other thirteen he said nothing of for he had not spoke with those that were to tell him how many men they would afford There was there Captain Walcot Mr. West the two Goodenoughs Mr. Borne Mr. Wade and my self L. C. J. What was the Result of those Debates Col. Romsey To see what number of men they could produce in the City for the Insurrection L. C. J. Was there a Rising designed Col. Romsey Yes L. C. J. And did these people meet Col. Romsey There was no time set Mr. Sol. Gen. When was the meeting Col. Romsey There were several meetings in March and April and May. Mr. Sol. Gen. After the meeting at Sheppards Col. Romsey Yes a great while It ceased I think six weeks or three months L. C. J. Who did you meet with at Mr. Sheppards Col. Romsey There was the Duke of Monmouth my Lord Gray my Lord Russel Sir Thomas Armstrong Mr. Ferguson and Mr. Sheppard Mr. Sol. Gen. Who did you expect should head this Army Col. Romsey That was never said any thing of Mr. Att. Gen. Who were to manage the Rising Col. Romsey We that met there Mr. Att. Gen. Had you no expectation of great men Col. Romsey Mr. West told me and Mr. Goodenough that there was a Council which were the Duke of Monmouth my Lord Essex my Lord Howard Collonel Sidney Mr. Hambden and my Lord Russel there was Six L. C. J. What did he tell you of them six Col. Romsey He told me they were managing a Business with Scotland Lord Chief Iustice. A Business pray speak plain tell all you know Col. Romsey For the Insurrection L. C. J. Say so then we know nothing of the Business you were about Col. Romsey My Lord Mr. West had that Discourse with my Lord Howard I never had he is more fit to speak to that than me L. C. J. Speak your own knowledge and no more Mr. Jones After the death of my Lord Shaftesbury who were the Managers and were to carry it on Col. Romsey I told you Mr. West and Mr. Goodenough did tell me the Duke of Monmouth my Lord Essex Mr. Att. Gen. He told you so before Do you know there was an Insurrection then intended Col. Romsey Yes because we met towards the management of it the company that met at Mr. West's Chamber and other places Mr. Att. Gen. What discourse had you with Mr. Ferguson about it Col. Romsey Not about those Gentlemen Mr. North. The next thing we shall shew shall be that the Scotch men came to Town Col. Sidney My Lord I must ever put you in mind whether it be ordinary to examine men upon Indictments of Treason concerning me that I never saw nor heard of in my life L. C. J. I tell you all this Evidence does not affect you and I tell the Jury so Col. Sidney But it prepossesses the Jury Mr. Keiling called and sworn Mr. Att. Gen. I ask you in general what you know of the Risign to have been last Spring Mr. Keiling My Lord It was some time last Summer Mr. Goodenough came to me and brought me three Papers numbred on the back-side I asked him to what end he delivered them me he told me One was for my self and I was to deliver the other Two to whom I could Trust in the two Divisions I asked him What was the Design he said To Raise Men sayes I Do you design a general Insurrection He said if he did not if the King was taken off this would do well for then People would know how to have recourse to a formidable Body And I have heard him say That Collonel Sidney whom I don't know had a considerable part in the management of that Affair Mr. Att. Gen. We Charge him with Conspiring and there must be Confederates in the Case Now then we come to the Prisoner We will call my Lord Howard that was one of the Persons that did Consult The Lord Howard Sworn Mr. Att. Gen. Pray acquaint my Lord and the Jury of your knowledge of what Transactions there have been with the Prisoner about this Affair of the general Rising Lord Howard Truely my Lord In the entring of the Evidence I am about to give I cannot but observe what a natural uniformity there is in Truth For the Gentleman that have been before have so exactly instanced in every particular with what I have to say that two Tallys could not more exactly fall into one another though I confess I had not seen their Faces till the Plot brake out for some Months before My Lord and Gentlemen of the Jury About the middle of January last it was considered by some of us that met together That it was very necessary and expedient to an Enterprise that had been long in hand and fallen flat then that it should be revived by some Consult or Caball that should be set up to give Life to it and Governance to the Motions of it The first for ought I know Movers of this were the Duke of Monmouth the Gentleman at the Bar and my Self And there we did agree That we should bethink our selves of some few we were willing it should not exceed Five at the most Seven This Agreement being at first between us Three I remember the Duke of Monmouth undertook to ingage my Lord Russel and my Lord Salisbury and this Gentleman Collonel Sidney for my Lord of Essex and Mr. Hambden and these being put together did presently constitute a little Caball of as great a Number as was intended This being setled among them it was within a few dayes after I can't certainly tell when but between the middle and latter end of January that I was told That the Persons had agreed to enter into this Conjunction of Counsels and in order to that they had appointed a Meeting at Mr. Hambden's House to which I was invited This in time was between the middle and latter end of January but I can't tell exactly When we came there there was all those Gentlemen
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
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
carry them to some you can trust I dare trust no body says he I will lend my Coach and Coach man I said if the Col. Sidney will save his Goods he save them if not 't is no matter A little after the Lord Howard came in the House of Col. Sidney about eleven a Clock at Night When he was in I told him what is this They talk of a Plot to Kill the King and the Duke and I told him they spake of one general Insurrection and I told him more that I understood that Col. Sidney was sent into Scotland when my Lord Howard understood that he said God knows I know nothing of this and I am sure if the Col. Sidney was concerned in the matter he would tell me something but I know nothing VVell my Lord I told him I believe you are not safe in this house there is more danger here than in another place Says he I have been a Prisoner and I had rather do any thing in the World than be a Prisoner again Then my Lord Pagett came into the Court. Col. Sidney Pray my Lord be pleased to tell the Court if my Lord Howard has said any thing to you concerning this late pretended Plot or my being any party in it Lord Pagett My Lord I was Subpoena'd to come hither and did not know upon what accompt I am obliged to say my Lord Howard was with me presently after the breaking out of this Plot and before his appearing in that part which he now Acts he came to me and I told him That I was glad to see him abroad and that he was not concerned in this disorder He said he had Joy from several concerning it and he took it as an injury to him for that it looked as if he were Guilty He said he knew nothing of himself nor any body else And though he was free in discourse and free to go into any Company indifferently yet he said he had not seen any body that could say any thing of him or give him occasion to say anything of any body else Col. Sidney Mr. Edward Howard Mr. Rd. Howard Mr. Sidney what have you to say to me Col. Sidney My Lord I desire you would ask Mr. Edward Howard the same thing what Discourse he had with my Lord Howard about this Plot L. C. J. Mr. Howard Mr. Sidney desires you to tell what Discourse you had with my Lord Howard about this Plot. Mr. E. Howard My Lord I have been for some time very intimate with my Lord not only upon the account of our Alliance but upon a strict intimacy and correspondence of friendship and I think I was as much his as he could expect from that Alliance I did move him during this time to serve the King upon the most honourable account I could but that proved ineffectual I pass that and come to the business here Assoon as the Plot brake out my Lord having a great in timacy with me expressed a great detestation and surprizing in himself to hear of it wherein my Lord Howard assured me under very great Asseverations that he could neither accuse himself nor no man living He told me moreover That there were certain persons of quality whom he was very much concerned for that they should be so much reflected upon or troubled and he condoled very much their condition both before and after they were taken My Lord I believe in my Conscience he did this without any Mental Reservation or Equivocation for he had no reason to do it with me I add moreover if I have any sense of my Lords Disposition I think if he had known any such thing he would not have stood his being taken or made his Application to the King in this manner I am afraid not so suitable to his quality L. Ch. Iust. No reflections upon any body Mr. Howard My Lord I reflect upon no body I understand where I am and have a respect for the place but since your Lordship has given me this occasion I must needs say That that Reproof that was accidentally given me at the Tryal of my Lord Russel by reason of a weak Memory made me omit some particulars I will speak now which are these and I think they are material My Lord upon the discourse of this Plot did further assure me that it was certainly a Sham even to his knowledge how my Lord says I do you mean a Sham Why says he such an one Cozen as is too black for any Minister of publick Employment to have devised but says he it was forged by People in the dark such as Jesuites and Papists and sayes he this is my Conscience says I my Lord if you are sure of this thing then pray my Lord do that honourable thing that becomes your quality that is give the King satisfaction as becomes you pray make an Address under your hand to the King whereby you express your Detestation and Abhorrence of this thing says he I thank you for your Counsel to what Minister says he shall I apply my self I pitched upon my Lord Hallifax and I told him of my Lords desire and I remember my Lord Howard named the Duke of Monmouth my Lord of Bedford the Earl of Clare and he said he was sure they would do it that he was sure of their Innocence and would be glad of the occasion and I went to my L. Hallifax and told him that my Lord was willing to set it under his hand his detestation of this Plot and that there was no such thing to his knowledge My Lord Hallifax very worthily received me says he I will introduce it but my Lord Russel being taken this was laid aside and my Lord gave this reason For says he there will be so many People taken they will be hindred I must needs add from my Conscience and from my Heart before God and Man that if my Lord had spoken before the King sitting upon his Throne abateing for the solemnity of the presence I could not have more believed him from that assurance he had in me And I am sure from what I have said if I had the Honour to be of this Gentleman's Jury I would not believe him L. C. Iust. That must not be suffered Mr. Att. Gen. You ought to be bound to your good behaviour for that L. C. Iust. The Jury are bound by their Oaths to go according to their Evidence they are not to go by men's conjectures Mr. Howard May I go my Lord Mr. Att. Gen. My Lord Howard desires he may stay we shall make use of him Col. Sidney My Lord I spake of a Mortgage that I had of my Lord Howard I don't know whether it is needful to be proved but it is so L. Howard I confess it Col. Sidney Then my Lord here is the other point He is under the fear that he dare not but say what he thinks will conduce towards the gaining his Pardon and that he hath expressed that he could
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
call it The Multitude therefore is never headless but they either find or create an head so that here is a plain and an avowed Principle of Rebellion Established upon the strongest reason he has to back it Gentlemen This with the other Evidence that has been given will be sufficient to prove his Compassing the Death of the King You see the Affirmations he makes when Kings do break their Trust they may be called to accompt by the people This is the Doctrine he Broaches and Argues for He says in his Book in another part that the Calling and Dissolving of Parliaments is not in the Kings Power Gentlemen You all know how many Parliaments the King hath Called and Dissolved if it be not in his Power he hath done that that was not in his Power and so contrary to his Trust. Gentlemen at the entrance into this Conspiracy they were under an apprehension that their Liberties were invaded as you hear in the Evidence from my Lord Howard that they were just making the Insurrection upon that Tumultuous opposition of Electing of Sheriffs in London They enter into a Consultation to raise Arms against the King and it is proved by my Lord Howard that the Prisoner at the Bar was one Gentlemen Words spoken upon a supposition will be High Treason as was held in King James's time in the Case of Collins in Rolls Reports The King being Excommunicate may be Deposed and Murdered without affirming he was Excommunicated and this was enough to Convict him of High Treason Now according to that Case to say the King having broken his Trust may be Deposed by his people would be High Treason but here he does as good as affirm the King had broke his Trust. When every one sees the King hath Dissolved Parliaments this reduces it to an Affirmation And though this Book be not brought to that Counsel to be perused and there debated yet it will be another and more than two Witnesses against the Prisoner For I would ask any man suppose a man was in a Room and there were two men and he talks with both apart and he comes to one and endeavours to persuade him that it is lawful to Rise in Arms against the King if so be he break his Trust and he should go to another man and tell him the King hath broken his Trust and we must seek some way to redress our selves and persuade the people to Rise these two Witnesses do so tack this Treason together that they will be two Witnesses to prove him Guilty of High Treason And you have heard one Witness prove it positively to you That he consulted to Rise in Arms against the King and here is his own Book says it is lawful for a man to Rise in Arms against the King if he break his Trust and in effect he hath said the King hath broken his Trust Therefore this will be a sufficient demonstration what the imagination of the Heart of this man was that it was nothing but the destruction of the King and the Government and indeed of all Governments There can be no such thing as Government if the people shall be Judg in the Case For what so uncertain as the heady and giddy Multitude Gentlemen I think this will be a sufficient Evidence of his Consulting the death of the King You have here the Prisoner at the Bar that is very deep in it Indeed some men may by Passion be transported into such an Offence and though the Offence be never the less what ever the motives are yet in some it is less dangerous for those that venture upon Passion to raise Commotions and Rebellion are not always so much upon their Guard but that they may make some false steps to intrap themselves But this Gentleman proceeds upon a surer Foundation it is his Reason it is his Primciple it is the Guide of all his Actions it is that by which he leads and directs the steady Course of his Life A man convinced of these Principles and that walks accordingly what won't he do to accomplish his designs How wary will he be in all his Actions Still reasoning with himself which way to bring it most securely about Gentlemen This is the more dangerous Conspiracy in this man by how much the more it is rooted in him and how deep it is you hear when a man shall write as his Principle that it is lawful for to depose Kings they breaking their Trust and that the Revolt of the whole Nation can not be called Rebellion It will be a very sad Case when people Act this according to their Consciences and do all this for the good of the people as they would have it thought but this is the Principle of this man Gentlemen We think we have plainly made it out to you and proved it sufficiently that it was the imagination of his Heart to destroy the King and made sufficient proof of High Treason Coll. Sidney Give me leave my Lord to say a very few words I desire Mr. Solicitor would not think it his Duty to take away mens lives any how First We have had a long story Lord Chief Iustice. Nay Mr. Sidney We must not have vying and revying I asked you before what you had to say the course of Evidence is after the Kings Counsel have concluded we never admit the Prisoner to say any thing Coll. Sidney My Lord It was a wise man said there never could be too much delay in the Life of a man I know the Kings Counsel may conclude if they please Mr. Solicitor I would not have him think that it is enough by one way on another to bring a man to death My Lord This matter of Sir Henry Vane is utterly misrepresented Lord Chief Iustice. I must tell you Gentlemen of the Jury that what the Prisoner says that is not proved and what the Kings Counsel have said of which there is no proof to make it out must not be taken into any consideration Coll. Sidney Then my Lord here is a place or two in Old Hales turning over my Lord Hales Book for the Overt Act of one Treason not being an Overt Act of another your Lordship knows Coke and Hales were both against it he Reads Compassing by bare words is not an Overt Act Conspiring to Levy War is no Overt Act. Mr. Solicitor General I desire but one word more for my own sake as well as the Prisoners and that is that if I have said any thing that is not Law or misrepeated or misapplied the Evidence which hath been given I do make it my humble Request to your Lordship to rectifie those mistakes as well in point of Fact as point of Law for God forbid the Prisoner should suffer by any mistake Lord Chief Iustice. Gentlemen The Evidence has been long and it is a Cause of great concernment and it is far from the thoughts of the King or from the thoughts or desire of any of his Judges here to be
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
believe that that was Coll. Sidney's Book writ by him no man can doubt but it is a sufficient Evidence that he is Guilty of Compassing and Imagining the Death of the King and let us consider what proof can be greater than what has been given of it Mr. Sheppard an intimate acquaintance of his that has seen him write he looks upon the hand and says He is extreamly acquainted with the hand and says He I believe in my Conscience this Book is Coll. Sidney's hand Gent. Do you expect Mr. Sidney would call a Witness to be by to see him write that Book In the next place you have two Trades-men Coke and Cary and they tell you one had seen him write once the other had seen his hand writing and they both believe it his Hand writing and they have good reason for they have paid several summs of Money upon Notes which they took as well as This to be his Hand writing Gentlemen Besides that give me leave to tell you here is another thing that makes it more plain This very Book is found in Colonel Sidney's House on the Table in his Study where he used to write by a Gentleman against whom Colonel Sidney can't make the least Objection and that there was that fairness offered by the Gentleman Pray Colonel put your Seal upon it that you may see that no injury be done you but Mr. Sidney would not do it Therefore he Seals them with his own Seal and carries them to White-hall where they were broken open and Sweares that those Papers were found in his Closet whereof this was one Another thing which I must take notice of to you in this Case is to mind you how this Book contains all the Malice and Revenge and Treason that Mankind can be guilty of It fixes the sole Power in the Parliament and the People so that he carries on the Design still for their Debates at their Meetings were to that purpose And such Doctrines as these suit with their Debates for there a general Insurrection was designed and that was discoursed of in this Book and incouraged They must not give it an ill Name It must not be called a Rebellion it being the general Act of the People The King it says is responsible to them the King is but their Trustee That he had betrayed his Trust he had misgoverned and now he is to give it up that they may be all Kings themselves Gentlemen I must tell you I think I ought more than ordinarily to press this upon you because I know the Misfortune of the late unhappy Rebellion and the bringing the late Blessed King to the Scaffold was first begun by such kind of Principles They cried He had betrayed the Trust that was delegated to him from the People Gentlemen in the next place because he is afraid their Power alone won't do it he endeavours to poison Mens Judgments and the way he makes use of he colours it with Religion and quotes Scripture for it too and you know how far that went in the late times How we were for binding our King in Chains and our Nobles in Fetters of Iron Gentlemen This is likewise made use of by him to stir up the People to Rebellion Gentlemen if in case the Prisoner did design the Deposing the King the removing the King and if in order thereunto he be guilty of Conspiring to Levy War or as to the Letter writ by my Lord Russel if he was privy to it these will be Evidences against him So that 't is not upon two but 't is upon greater Evidence then 22 if you believe this Book was writ by him Next I must tell you Gentlemen upon I think a less Testimony an Indictment was preferred against the late Lord Russel and he was thereupon Convicted and Executed of which they have brought the Record These are the Evidences for the King For the Prisoner he hath made several Objections As that there was no War Levied For that Gentlemen at the beginning of the Cause I told you what I took the Law to be and I take it to be so very plainly But Gentlemen as to the Credibility of my Lord Howard he offers you several Circumstances First He offers you a Noble Lord my Lord Anglescy who says That he attending my Lord of Bedford upon the misfortune of the Imprisonment of his Son after he had done my Lord Howard came to second that part of a Christians Office which he had performed and told him he had a very good Son and he knew no harm of him and as to the Plot he knew nothing of it Another Noble Lord my Lord Clare tells you that he had some Discourse with my Lord Howard and he said that if he were accused he thought they would but tell Noses and his business was done Then Mr. Philip Howard he tells you how he was not so intimate with him as others but he often came to his Brothers and that he should say he knew nothing of a Plot nor did he believe any but at the same time he said he believed there was a Sham Plot and then he pressed him about the business of the Address but that now my Lord of Essex was out of Town and so it went off Another thing Mr. Sidney took notice of says he 't is an Act of Revenge in my Lord Howard for he owes him a Debt that he does besides by his Allegation does not appear Col. Sid. My Lord he hath confessed it L. Ch. Iust. Admit it yet in case Collonel Sidney should be Convicted of this Treason the Debt accrues to the King and he can't be a Farthing the better for it But how does it look like Revenge I find my Lord Howard when he speaks of Collonel Sidney says he was more beholding to him than any body and was more sorry for him so says my Lord Clare Gentlemen You have it likewise offered that he came to Collonel Sidney's House and there he was desirous to have the Plate and Goods removed to his House and that he would assist them with his Coach and Coachman to carry them thither and did affirm that he knew nothing of the Plot and did not believe Collonel Sidney knew any thing and this is likewise proved by a couple of Maid Servants as well as the French Man You have likewise some thing to the same purpose said by my Lord Paget and this is offered to take off the Credibility of my Lord Howard Do you believe because my Lord Howard did not tell them I am in a Conspiracy to kill the King therefore he knew nothing of it he knew these Persons were Men of Honour and would not be concerned in any such thing But do you think because a Man goes about and denies his being in a Plot therefore he was not in it Nay it seems so far from being an Evidence of his Innocence that 't is an Evidence of his Guilt What should provoke a Man to discourse after
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