I would never for my part while I live nor never did while I was a practiser stand upon any particular Jury-man Mr. Att Gen. He may be a Jury-man by Law sure L. Ch. Just There is no doubt of it Mr. Attorney Mr. Att. Gen. My Lord If your Lordships have given your Opinion I desire he may stand by L. Ch. Just Well Mr. Attorney waves him Let him stand by Mr. Att. Gen. But for no Reason that has been offered L. Ch. Just No no I don't hear any thing of Reason offered for it Cl. of Cr. Mr. Galliard You may go down Thomas Harriott Esq Jur. Thomas Earsby Esq Jur. William Avery Esq Jur. John Sharpe Esq Jur. Richard Shoreditch Mr. Williams We challenge him for the Defendant L. Ch. Just What is your Cause of Challenge Mr. Williams There is the same exception to him L. Ch. Just If Mr. Attorney will consent with all my heart Mr. Sol. Gen. No we humor'd you in one we won't humor you any more Mr. Williams Nay here is something more clear for us He is a Serjeant at Arms attending His Majesty Mr. Just Wythins You know our Opinions already Mr. Williams unless Mr. Attorney consent we can't do it Mr. Williams We only acquaint Mr. Attorney with it we must submit to your Rule he is certainly Serjeant at Arms he came in the place of Dereham that let my Lord Gray escape Mr. Att. Gen. Pray prove it I don't know it for my share Mr. Williams Will you ask him the Question Mr. Att. Gen. Pray prove it Are we to gratifie your Clyent Pray let him better instruct his Counsel L. C. Just If Mr. Attorney consent not then he must be sworn Mr. Att. Gen. If there be enough without him that do appear let him stand by Cl. of Cr. Stand down Mr. Shoreditch Charles Good Esq Jur. Mr. Att. Gen. That it may appear how fair things were carried they would not strike out one of these Men when they came before the Protonotary as they might have done Mr. Just Wythins Truly that was not well done to trouble the Court when you might make your exceptions there Mr. Williams We did not know it then now we do we offer it to the Court. Cl. of Cr. Sam. Rouse Esq Jur. Hugh Squire Esq Jur. Nehemiah Arnold Esq Jur. and John Bifeild Esq Jur. Then the Jury were numbred and the 12 sworn were these Sir Charles Gerard Baronet Jur. Roger Jennings Esq Jur. Henry Hodges Esq Jur. Thomas Harriott Esq Jur. Thomas Earsby Esq Jur. William Avery Esq Jur. John Sharpe Esq Jur. Charles Good Esq Jur. Samuel Rouse Esq Jur. Hugh Squire Esq Jur. Nehemiah Arnold Esq Jur. John Bifeild Esq Jur. Cl. of Cr. Gentlemen of the Jury You that are sworn Hearken to your Charge The Defendant John Hambden stands Indicted by the name of John Hambden of the Parish of St. Giles in the Fields in the County of Middlesex Gent. Prout in the Indictment mutatis mutandis To this Indictment he has pleaded not Guilty and for his Tryal puts himself upon the Country and the Kings Attorney General likewise which Country you are your Charge is to inquire whether the Defendant be Guilty of the great Misdemeanour whereof he stands Indicted or not Guilty if you find him Guilty you are to say so and if you find him not Guilty you are to say so and no more and hear your Evidence Then Proclamation was made for Evidence in usual form Mr Holoway May it please your Lordship and Gentlemen you that are sworn I am of Counsel for the King upon this Indictment Gentlemen the Indictment sets forth that the Defendant being a Seditious Malitious Evil disposed Person and Seditiously and Maliciously intending to disturb the Peace of the Kingdom the last day of June in the 35. year of his now Majesty's Reign and divers other days and times at the Parish of St. Giles in the Fields in your County did unlawfully assemble and confederate himself with divers Evil-disposed Persons Subjects of our Lord the King and then and there with those other persons did Falsly Maliciously and Seditiously consult and conspire to make an Insurrection in the Kingdom of England and to provide Arms and Armed men in divers places of the said Kingdom And the better to compleat his Evil Intentions the said last day of June did consult and agree to send certain persons to the Jurors unknown into Scotland to invite several Evil-disposed Persons there to joyn in this Conspiracy This is the Substance of the Charge and to this he says He is not Guilty If we prove him so we do not question but you will find it Mr. Att. Gen. May it please your Lordship and you Gentlemen of this Jury Mr Hambden stands Indicted of an High Misdemeanour for conspiring with several others to raise Rebellion within the Kingdom and to crave the Assistance of the Brother-hood of Scotland Upon the face of the Indictment Gentlemen it appears to be a very high Crime and the matter of this indeed has been formerly in examination in other Tryals and yet the Party you may observe do not acquiesce in those Tryals but think the Persons accused lay under very great hardships and that to a very great degree as not having the advantage of Counsel nor to have their Witnesses examined upon Oath and therefore Gentlemen the King is pleased to go less in this Case than in the others That this Gentleman who is now before the Court may clear his innocence if he has any Witnesses to do it And if there be any advantage that the having of Counsel can contribute to his Cause he has that allowed him too The Course of our Evidence Gentlemen will be this We shall prove to you that Mr. Hambden with five other Persons I shall name them The Duke of Monmouth my Lord Russel Mr. Sidney my Lord of Essex and my Lord Howard they met several times the particulars we shall give you an account of one was at Mr. Hambden's house another was at my Lords Russels where they did contrive together and took upon them to be a Juncto or a Counsel of Six collected out of the wisest men of the Kingdom to consider how they might better the Affairs of the Nation and how they might make a Stir For they thought there was no way possible otherwise of doing it but by their joynt Counsels to carry on a Rising And that they might do it the Better they resolved to crave the Assistance of Scotland Gentlemen We shall give you an account of their Consults and Debates and shall shew you that at length they came to a Resolution That the rising was to be carried on joyntly in London and the several parts of the Kingdom in several Countries at once Then they came to think and consider whether it were not best to send into Scotland to draw them in too And thereupon it was agreed by this Juncto That they would send thither and the management of
THE TRYAL OF John Hambden Esq The 28 th day of November 1683. Ann. 35. Car. 2. Reg. John Hambden Esq being brought up by Writ of Habeas Corpus from the Tower of London and there being an Indictment preferred against him for Misdemeanor His Majesties Attorney General prayed that he might be Aâ—â—igned upon it which was done in this manner Cl. of Cr. JOhn Hambden You stand here Indicted by the Name of John Hambden late of the Parish of St. Giles in the Fields in the County of Middlesex Gent. For that you being a Pernitious and Seditious Man and a Person of a Wicked mind and of an impious unquiet and turbulent Disposition and contriving practising and falsly unlawfully unjustly maliciously turbulently and seditiously intending the Peace of our Soveraign Lord King Charles that now is and the common Tranquility of this Kingdom of England to disquiet molest and disturb and as much as in you lay Sedition within this Kingdom of England to incite stir up and procure and the Government of our said Lord the King in this Kingdom of England into danger to bring And that you the said John Hambden your most Impious Wicked and Seditious Intentions aforesaid to fulfil and perfect and bring to effect the last day of June in the Five and Thirtieth year of the Reign of our said Soveraign Lord the King that now is and divers other days and times as well before as after with Force and Arms c. At the Parish of St. Giles in the Fields in the County of Middlesex unlawfully unjustly maliciously and seditiously did assemble your self meet consult conspire and confederate with divers evil disposed Subjects of our said Lord the King to the Jurors unknown and with the said Persons did treat concerning your said most Wicked and Seditious Compassings Imaginations and Purposes aforesaid to be executed fulfill'd and brought to effect and further that you the said John Hambden your most Wicked Impious and Seditious Contrivances Practices and Intentions aforesaid to fulfil perfect and reduce to effect then and there viz. the last day of June in the 35th year aforesaid and divers other days and times as well before as after at the Parish aforesaid in the County aforesaid with Force and Arms c. falsly unlawfully unjustly maliciously and seditiously did consult consent censpire and confederate of an Insurrection within this Kingdom of England to be made and of procuring and providing Arms and Armed Men to be prepared in divers places within this Kingdom of England your same most Wicked Impious and Seditious Intentions and Compassings aforesaid to fulfil and perfect And that you the said John Hambden your most Wicked Impious and Seditious Intentions aforesaid to fulfil and perfect and bring to effect afterwards viz. the last day of June in the 35th year aforesaid at the Parish aforesaid in the County aforesaid with Force and Arms c. falsly unlawfully unjustly wickedly maliciously and seditiously did consult agree and consent that a certain Person to the Jurors aforesaid unknown should be sent into Scotland to invite and incite divers evil disposed Subjects of our said Lord the King of his Kingdom of Scotland to come into this Kingdom of England to advise and consult with you the said John Hambden and others the aforesaid evil disposed Subjects of our said Lord the King in this Kingdom of England concerning Aid and Assistance to be expected and supplyed out of the said Kingdom of Scotland your said most Wicked Impious and Seditious Intentions and Compassings aforesaid to fulfil effect and promote in manifest contempt of the Laws of this Kingdom of England to the evil and most pernicious Example of all others in the like case offending and against the Peace of our said Soveraign Lord the King his Crown and Dignity How sayst thou art thou Guilty of this High Misdemeanour whereof thou standest Indicted and hast been now Arraigned or not Guilty Mr. Hambden Not Guilty Upon which Plea issue was joyned between His Majesties Attorney General on behalf of the King and Defendant and Bail was then taken for the Defendants appearance the next Term. Hillary Term 35 and 36. Car. Secundi Reg. In the beginning of the Term Sir Thomas Jenner Knight His Majesties Serjeant at Law and Recorder of the City of London Moved for a Tryal at the Bar in the Case between the King and Mr. Hambden which was by the Court appointed to be on Wednesday the 6th of February in the same Term. Die Mercurii 6. Februarii 1683. Anno Regni Reg. Car. Secundi 36. Cl. of Cr. Call the Defendant John Hambden Mr. Williams He appears Cl. of Cr. Gardez votrez Challenges Call Sir Charles Gerard. Cryer You shall well and truly try the Issue between our Soveraign Lord the King and John Hambden Gent. and a true Verdict give according to your Evidence So help you â—â—d Jurat Sir Charles Gerard. Cl. of Cr. Roger Jennings Esq Jur. Henry Hodges Esq Jur. Joshua Galliard Esq Mr. Williams We challenge him for the Defendant L. Ch. Just What is your Cause of Challenge Mr. Williams If your Lordship please to let him go through the Pannel we will shew cause if there be not enough left without him L. Ch. Just No shew your Cause now it being against the King Mr. Williams He has an Employment under the King He has an Office in the Forest and that we say is our Cause of Challenge L. Ch. Just What then if he have Mr. Williams My Lord We suppose then he is not an indifferent Person to try this Cause L. Ch. Just Ay let me hear that now proved and defended by any Gentleman of the long Robe that that is a good cause of Challenge Shew me what Law there is for it Mr. Williams To be of the Kings Robe or Pay or Sallery is an exception in any Case wherein the King is concerned L. Ch. Just Shew me any Law for that if you can Mr. Williams I know you are a Lawyer Mr. Wallop It is the Opinion of my Lord Coke in his Institutes that it is a good Cause of Challenge L. Ch. Just But there is the Opinion of all the Judges in Henry the Fourths time against it Mr. Wallop It is my Lord fol. 156. L. Ch. Just But I can cite you three or four Books and you have them all together in Rolls Abridgment Title Challenge where he sets down four Books one after another That it is no cause of Challenge even to be the Kings Tenant and there is a great deal of reason for it For if that were a good Cause of Challenge mark the Consequence then all Persons that hold Lands in England hold them mediately or immediately of the King and so the King could have no Free-holders to be Jury-Men in his Cause Mr. Williams This is a more special Cause of Challenge than that L. Ch. Just What can be greater than that of being the Kings Tenant Mr. Att. Gen. Especially when all the Land
any thing else Men have died for the Truth and we Look upon those as Martyrs and the best of Martyrs that dye for the Truth Now that this Noble Lord or that any man should call this a Drudgery which is so manifest a Duty by giving a true Testimony to preserve the King's Life and support the Government against the Contrivance and Conspiracies of Evil men is but an odd Insinuation and truly I think is rather to be taken in this sense as to my Lord That he did strain a little to make his Discovery the more profitable to him and so did say more so far I may safely go then any one else did say And my Lord This is that that I would observe upon the first part of the Evidence As for that part that Concerns Aaron Smith the Evidence given by Sheriffe and Bell I submit that to your Lordship how far that can any way affect Mr. Hambden the Defendant It is introduced to Fortify the Testimony of my Lord Howard and it is introduced by himself thus That at their Meeting at Mr. Hambden's House there was a Discourse of some Assistance to be had from Scotland but sayes he at the second Meeting at my Lord Russels then it came to a further discourse and Collonel Sidney did undertake to name a Person to send thither and a Person was named he does not say Mr. Hambden was concerned in it or that Mr. Hambden named the man or any thing particular as to Mr. Hambden more then that he was in the Company Mr. Hambden had no hand in the undertaking or sending him into Scotland that was altogether the part of Mr. Sidney save this that he sayes my Lord Russel Writ the Letter that was to go by him It does not appear Mr. Hambden was at all concerned in it but only was there L. C. Just And consented to it Mr. Williams I would not strain any thing my Lord further than the Evidence is L. C. Just Nor do not Misrepeat it neither Mr. Williams I design not any such thing my Lord. L. C. Just But you do though For he Swears it every one of them consented Mr. Williams By silence it must be then For he does not say That he said any thing He Swears only Collonel Sidney undertook to manage it to send a Person and my Lord Russel to write the Letter L. C. Just And all the rest Consented to it Mr. Williams What is meant by Consent when nothing was said I must leave to the Jury I must agree the L. Howard did Swear that my Clyent was in their Company but how far he did or did not Consent does not at all appear and how far this will Charge my Clyent I must leave to you Gentlemen But the Proof as to this matter stands thus that Aaron Smith was at New-Castle in February last that he went publickly Now my Lord Howard sayes that he went to agitate a Confederacy between the Malecontents of Scotland and those in England Now it is strange that a man that was to agitate such a Concern should go publickly with a Servant to New-Castle so publickly as to be known again and of his own accord tell them he was going to such a place in Scotland And be it so in Fact Will any man apply this to any thing was done before as my Lord Howard sayes about a Consultation to joyn in Rebellion Will any man think that he should talk at that kind of rate if that were his Employment and tell whether he were going But I rely upon this in point of Evidence 'T is not proved yet that Aaron Smith was in Scotland That he came within Six miles of the Borders of Scotland is proved but it is not proved he was in Scotland or did Agitate any Conspiracy there or did any thing more than go within Six miles of the Borders of Scotland But then they would press it further and they say that there were some Scotch Gentlemen that in the Summer came here into England and that they hid themselves when the Plot was Discovered It does not appear my Clyent had any Conversation with these Scotch Gentlemen or any of them or was ever in their Company 'T is a very remote inference to bring any thing of this to affect my Clyent in this High Charge My Lord We shall add one thing more to disprove that part of the Indictment that layes the Imputation of Turbulency and Sedition to the Charge of Mr. Hambden and which also will shew the improbability of his being concerned in any thing of this Nature We shall prove him to be a Person of a sober Conversation of a retired Life and studious Disposition and as an Evidence for the Defendant we shall prove that he in October 1680. left England for his Healths sake and went into France for the recovery of his Health He continued there till about Michaelmas was Twelve Month then he returned 'T is true he continued in England from Michaelmas to the time they speak of but we shall make it plain that in February my Clyent and my Lord Mountague had adjusted matters between themselves to go the beginning of Summer again into France there to continue and abide some time for their Healths Here is a strange kind of imagination that this Contrivance between my Lord Howard and my Lord Shaftesbury that was going on before this time and that was Disappointed and my Lord Shaftesbury went away and afterwards Dyed in Holland was taken up by my Clyent and those other Persons when my Clyent as we shall prove never intended to stay in England My Lord he was a Parliament-man in both the last Parliaments but appeared in neither of them being all the while in France for the Recovery of his Health We shall prove him to be one Studiously inclined that he lived a Retired Life and kept very little or no Company and you will hear from Persons of very great Honour and Quality what he is as to his Person and as to his Opinion and then we shall submit it to you Gentlemen of the Jury whether you can believe him Guilty of this he is Charged with which is your Issue You are to try whether he be Guilty or Not Guilty of the Crime Charged in the Indictment Mr. VVallop My Lord and Gentlemen of the Jury I desire to make one Observation before we call our Witnesses L. C. J. Pray do not take up our time altogether in Speeches but go on to your Evidence Mr. Wallop I desire to observe but one thing my Lord. L. C. J. Make your Observations at last but spend not our time in Speeches I know you will expect to be heard at last and so you shall whatever you will say Mr. Williams Call the Earl of Anglesey the Lord of Clare and Lord Paget Mr. Ducas who appearing was sworn Now we have him here we must begin with him my Lord. Mr. Ducas Pray what did you hear my Lord Howard say at any
of England was held of the Crown as originally it was Mr. Trever My Lord in 2d Rolls 646. Tit. Tryals There is the express Opinion of my Lord Rolls That to be of the Livery or a menial Servant of the Crown is a good Cause of Challenge L. Ch. Just And look you but in the 1 st Case in the 1 st Part of the Abridgment Title Challenges where he mentions 3 or 4 Books to the same purpose and 't is quite otherwise Mr. Williams My Lord In that of 1 st Rolls he only cites some Books but the other is his own Opinion L. Ch. Just Well make out your Fact if you have a mind to it but it is well known that neither Mr. Serjeant Rolls nor my Lord Coke when he delivered that Opinion are to be reckoned such Authorities in Crown matters Mr. Williams We will ask him my Lord if you please I suppose he will not deny it L. Ch. Just No make out your Fact if you will have any benefit by it 't is only a Challenge to the favour which ought not to be in the Kings Case I am very glad that we are now to debate this matter with Men of the Robe because we have had a strange sort of Notions and Reflections spread abroad of late as tho' the Judges now adays gave strange sort of Opinions and as tho' Persons that had been blemishes at the Bar were preferred to do strange things when they come upon the Bench but truly I wonder to hear that it should be a doubt when at the same time that which we gave as our Opinion about one particular Challenge that is as to Free-holders it was the Judgment of all the Judges That that was no Challenge and all the Counsel that were concerned in that Case know it was the Opinion of all the Judges But now if we meet with Lawyers I shall be glad to have the matter fairly argued and debated and pray shew me what Law or Reason is for it Mr. Wallop Certainly my Lord there is a great difference betwixt the general Allegiance of all Men and so of a general tenure and the dependance of any particular Person who is a menial Servant and receives Wages of the King L. Ch. Just I would desire to know of you Mr. Wallop which is the greater Challenge to say such a one is Tenant or such a one is immediate Servant to J. S Mr. Wallop There is a great difference my Lord I think between an immediate Tenant and the general tenure of all Subjects L. Ch. Just But certainly the Law is thus if he were an immediate or a mediate Tenant to any but the King if his Lord were party to the Suit it would be a good Challenge but the being Tenant to the King is no good Challenge in the Kings Case Mr. Williams My Lord I take it the Act of Parliament that takes away the Court of Wards and Liveries hath altered the Law as to that matter of Tenure for now we hold in Socage and that other Tenure is destroyed that was between the King and his Subjects L. Ch. Just But pray how comes it to be a Challenge now that was not one before Does that Act of Parliament make it a good cause of Challenge If it does shew it I tell you the Old Books are against it Mr. Williams I speak my Lord to the Tenure That that is nothing at all now to be objected because all is now in Socage L. Ch. Just I would not have Mr. Attorney insist upon a Jury-man but yet with-all I would not have it gone away with as Law that it is a good Cause of Challenge Mr. Wallop My Lord We finding in some Cases that are in our Books that it is held to be a good Cause of Challenge lay it before the Court. Mr. Att. Gen. How many 100 Errors do you find in my Lord Coke notwithstanding all his Learning L. Ch. Just I say if I was Mr. Attorney I would not contest for any particular man to be a Jury-man I speak that as my advice but I would not have it taken for Law nor would I have it broached abroad that tho' the Judges now were of one Opinion yet the Law truely was of another Mr. Jones If all that receive Sallery or Wages from the King are not to be Jury-men in the Kings Causes then all the Deputy Lieutenants and Militia Officers which generally are the most substantially Freeholders are excluded from being Jury-men Mr. Just Wythins Who will say so Mr. Jones No Lawyer in England surely will say so Mr. Williams Offices where there are no profit will not be the same exception Mr. Att. Gen. But he is no menial Servant of the Kings Mr. Williams What is he then Mr. Wallop We hear that he is Keeper of one of the Kings Forests and has a Fee for it Mr. Williams Well we will ask him upon a voyer dire Mr. Att. Gen. My Lord The Fact is quite otherwise and I desire they may make it out L. Ch. Just Truly I think 't is not tanti to insist upon any particular man but I find we are in Age that is so full of Cavils that if we act but according to the Presidents that went before us we are thought to act as Originals and to make new Laws when we only follow the Rules that we have received from our Predecessors And I say there was no such Challenge at Common Law that ever I read of in any of our Books nor is it any Challenge by the best Authorities extant Mr. Jones I desire them to shew me any such President That any man was challenged by one that was tried at the Suit of the King for a Challenge to the Favour but we must do unpresidented things or else there will be no satisfying of some Men. Mr. Att. Gen. I would fain know what one Opinion in a stragling Book is against the Currant of all our Law Mr. Williams Which do you call a stragling Book Mr Attorney my Lord Coke's Institutes or my Lord Rolls Abridgment L. Ch. Just I say the better Opinion of the Books is on the other side and the greater number too Mr. Att. Gen. First of all I do know of my own knowledge he is no menial Servant L. Ch. Just Mr. Attorney I do debate it for Learning sake truely I know not the Man nor whether he be the Kings Servant or not but I speak against allowing the Challenge that if he be set aside it may not be taken as a President and so pass for Law that the Kings Servants can't be Jury-men I would have you quit the man by consent but not as a force-put as tho' the Law were so for the Law I think is otherwise Mr. Att. General He is none my Lord they mistake L. Ch. Just Nay I know nothing of the man I tell you only what I think Mr. Wallop He receives Wages or a Fee from the King for his Office Mr. Just Wythins
you know of Sir Andrew Foster My Lord I did see those Gentlemen in the beginning of last Summer Sir John Cockram and Mr. Monrow and Cambell the Son I did see but the Father I did not but I do know he was in Town tho I saw him not Mr. Att. Gen. How do you know it Sir Andrew Foster I had Messages from them L. C. Just Sir Andrew You say you saw Sir John Cockram and Monrow Sir Andrew Foster Yes L. C. Just Did you see any body else Sir Andrew Foster I saw Sir George Campell the Son Mr. Att. Gen. What became of them upon the Discovery of the Plot Sir Andrew Foster Sir John Cockram did Abscond and Mr. Monrow was taken into Custody Mr. Att. Gen. What became of the others Sir Andrew Foster The Campells were both in Custody Mr. Att. Gen. Did you see any Commission they had Sir Andrew Foster I did see a Commission that Sir John Cockram had Mr. Att. Gen. What was it for Sir Andrew Foster To make a Purchase of some Plantations beyond Sea I think it was Carolina L. C. Just Ay where my Lord Shaftsbury had an Interest Sir Andrew Foster It was some of the West-Indies L. Howard I did omit that passage my Lord Mr. Att. Gen. Pray was it discoursed then what should be the Blind for these Gentlemen that were notorious Dissenters that they should come to Town from Scotland about L. Howard It was to carry on a Plantation in Carolina The Scotch Gentlemen were personally known to my Lord Russel only and my Lord Russel was to write the Letter to them and I suppose did Mr. Att. Gen. Mr. Atterbury What do you know of these Scotch-men coming to Town and what became of them afterwards Mr. Atterbury My Lord about the beginning of July Fourth Fifth or Sixth or thereabouts I had some Information That there were some Scotch Gentlemen that had been shifting up and down and at that time were about Black-Fryers lodged there secretly I immediately went with the King's Proclamation and some Warrants that I had to apprehend some Traytors that were fled And when I came I found that Mr. Common Serjeant having Notice of them had beat up their Quarters and they were endeavouring to escape by Water but there they were catched There was Sir Hugh Campel and Bayley and Sir George Campel and some others I know not the Names of them all truly I can't tell whether Monrow was not another but Sir Hugh Campel I had in my Custody and Bayley was immediately committed to the Gate-house and the rest of the Gentlemen I afterwards took in a cunning Hole by Moor-Fields in a back house And when I came there I found them lyeing on the Bed in the middle of the Day and had them Prisoners in my Custody two or three Months and then they were all sent out of my hands into Scotland Prisoners Six of them there were my Lord that I saw Mr. Att. Gen. We have done my Lord only we desire that a word of a Record may be read Mr. Williams What Record is it Sir Mr. Att. Gen. Of Collonel Sidneys Attainder Mr. Williams My Lord We shall desire your Judgment whether that Record ought to be read against Mr. Hambden I perceive by Mr. Attorney that 't is a Record of the Conviction of Mr. Sidney which ought not to be given in Evidence against Mr. Hambden upon this Indictment Mr. Att. Gen. We make use of it to shew how upon former Tryals upon this Evidence Verdicts have gone Mr. Williams We are in your Judgment my Lord if by Law it may be given in Evidence against Mr. Hambden who is neither Party nor Privy to it nor Indicted for the same Offence Mr. Att. Gen. Let it alone then L. C. Just Well Mr. Attorney does not press it What say you to it Gentlemen for the Defendant Mr. Williams May it please your Lordship and you Gentlemen of the Jury I am of Counsel for Mr. Hambden the Defendant upon this Indictment here before you This Indictment is a severe Indictment It is a very high Crime of which my Clyent is Accused How far the Evidence tends to reach it you have heard and I shall with the patience of the Court particularly observe it to you But I shall first speak to the Indictment it self It saies that Mr. Hambden being a person of a turbulent Disposition and Seditiously intending to disturb and disquiet the King's Peace and to stir Sedition and to bring the Government into danger did Conspire c. As to this matter Gentlemen there is no manner of Proof of what the Indictment charges as to the Disposition of the person Accused nor that he had any other design than what my Lord Howard hath now Sworn Then it saies further that Mr. Hambden did Consult and Conspire with divers persons to execute these purposes and particularly for the making and raising of an Insurrection in the Kingdom This is laid as the particular Fact And for this purpose he did further Conspire with several persons to provide Armes and Armed-men And for their fulfilling of this he did further Consult with several persons that some persons should be sent into Scotland to stir up the Kings Subjects in Scotland to a Concurrence and Conjunction with some People in England about this his evil design How far this Indictment is proved upon the Defendant Gentlemen is the Question before you He has pleaded Not Guilty and hopes to satisfy you he is not Gentlemen as to what Evidence has been given you so far as 't is Positive and Affirmative I mean the Testimony of my Lord Howard in that part it is impossible for us that are of Counsel for the Defendant directly to contradict him with Proof or to give a direct positive proof in answer to it I say 't is impossible for us to contradict him who gives such a positive Evidence of Fact By the Evidence of my Lord Howard he tells us there were Six Persons in this Council as he is pleased to call them By his Evidence three of the six are dead my L. Russel Col. Sidney and the Earl of Essex He himself is the Fourth the Defendant is the Fifth who cannot give Evidence for himself and the Duke of Monmouth who is the Sixth being away there is not any person in being that should contradict my Lord Howard's Affirmative in this part of his Evidence but the Duke of Monmouth Whom we cannot have here since it appears by the Evidence Mr. Att. Gen. could not prevail to have him at this Tryal therefore proof of that nature cannot be reasonably expected from my Clyent to acquit himself by a positive Contradiction of what my Lord Howard has sworn Then in this Case we must as in all Cases where a person does Swear directly against a Defendant endeavour to satisfie and perswade your Lordship and the Jury upon Circumstances arising out of this Fact and further Circumstances attending the Fact and by probable