it was committed to Mr. Sidney to send some fit Person into Scotland to treat with the Male-Contents there and the better to carry on this joynt Design some of them were to come up to London And they were to have a pretence to treat about going to Carolina and the purchasing some Shares in the Plantation there of which my Lord Shaftsbury was a chief Governour We shall prove to you Gentlemen besides all that I have opened That the Person to whom that trust was committed Mr. Sidney according to the Duty that he had taken upon him does employ one Aaron Smith which all that know him do know him to be a fit Engine for such Counsellors and a fit Instrument for such a Conspiracy We shall prove he actually was in Scotland and that he went into Scotland upon this Errand And then we shall prove That those Gentlemen that were sent to and were the Persons named in their Consults to be treated with came here soon after to Town and as soon as ever this Plot was discovered they fled and absconded themselves Gentlemen If we shall prove all this matter to you I think it will be without any Question clear that this Gentleman is notoriously Guilty of this High Misdemeanour And indeed if you observe it one of the Persons has given Judgment against himself the Earl of Essex But the Party have been so diligent and officious as to fling that upon the Government but that matter we shall have before the Court in Judgment to morrow For two of the others they have received the Judgment of the Law for two more of them the King has been pleased to take them into his Mercy the one is my Lord Howard who is summoned to appear here to day the other is the Duke of Monmouth who has confessed all this matter and has taken his Pardon and we have Summoned him also to be here this day that the World if they will have their Eyes opened I mean the discontented World may see there is nothing sought but the Peace and Quieting of the Kingdom Gentlemen If we prove all this matter to you I shall be glad to hear the Defence of the Counsel and the Defence made by Witnesses upon Oath Mr. Sol. Gen. My Lord we will call our Witnesses and first we begin with the Duke of Monmouth Mr. Att. Gen. Call James Duke of Monmouth Cryer James Duke of Monmouth Mr. Att. Gen. Call him again Cryer James Duke of Monmouth L. Ch. Just Was he served with a Subpoena Mr. Att. Gen. My Lord we will prove we have served him in all places where he was like to be met with That we left Subpoenas with his Servants who promised to deliver them to him L. Ch. Just Prove it Mr. Att. Gen. Where is Mr. Atterbury Swear him which was done Pray will you give the Court an account Whether you did serve the D. of Monmouth with any Subpoena In what places you were to serve him and who you left it with Mr. Atterb My Lord On Fryday last was Seven-night I was commanded by Mr. Attorney General to carry a Subpoena to serve upon the Duke of Monmouth and to go to his House at Moor Parke where it was generally discoursed he was I did go and take a Subpoena from Mr. Burton by Mr. Attorney's Order and went to the Duke's House at Moor Parke When I came there the outward Gate was locked and I went to an House where the Keys are kept and having got the Keys I went down to the House and I saw there one of his Servants fothering of Cattle and coming up to him I asked him if the Duke of Monmouth was in the House He told me he could not well tell whether he was or not but he thought he was gone to London for he saw the Calash and 5 or 6 Horsemen with it and they said in the House that it was the Duke that was gone to London I asked if there were any Servants that were nearer to his Grace in the House that I might speak with They said Yes there was the House-keeper or Steward one Mr. Rawkins that attended upon the Duke I desired to speak with him and he came out to me I asked him if the Duke was there He seemed to be unwilling to give me an answer I asked him the second time but he did not say he was or he was not I told him then I had a Subpoena which I brought with me by Mr. Attorney General 's Order to serve upon his Grace which was to require him to attend here this day to testifie his Knowledge in a Case between the King and Mr. Hambden He told me Sir said he give me your Subpoena and I will take care the Duke shall have it He took it of me and I came back to London presently Assoon as I came to Town I had a second Subpena given me to serve upon his Grace with which I went to the Dukes House at the Cock-pit When I came there I spake with the Porter I think his Name is Johnson bâ—â— the Porter he is and I remember him a Servant there many years I asked him if the Duke were there He told me he did not lodge there I told him I had a Subpoena to serve upon his Grace to appear as this day the same as I said at Moor Park Says he Mr. Atterbury I will take care the Duke shall have it to night or to morrow morning early L. Ch. Just When was this Mr. Atterbury It was of the same day Friday was seven-night last I was told afterwards by one that I met with that the Duke did lodge at Mr. Row's House who is a Servant to the Duke one of his Gentlemen He lives in the Pall Mall 't is either his House or his Lodging but they call it his House I had a 3 d Subpoena given me to the same effect And when I came there I asked for the Duke and a Woman came to the Door Mrs. Manley I think they call her she seemed to make little answer to what I said Said I Pray will you give this Subpoena to the Duke or to Mr. Row to give it the Duke She took it of me and said she would give it Mr. Row certainly to give to the Duke And yesterday or the day before I met Mr. Row at White-Hall and says he to me Mr. Atterbury you brought a Subpoena to my House a little while ago Yes Sir said I I did had you it Yes I had the Subpoena says he Then says I I hope you gave the Duke it To that he made me no answer but nodded his head and smiled and went away L. Ch. Just Now call his Grace again Cryer James Duke of Monmouth But he did not appear Mr. Att. Gen. Call William Lord Howard who was in the Court Pray swear my Lord Howard which was done Mr. Att. Gen. My Lord Howard Pray will you be pleased to give the Court and the Jury an account
piece of Artifice designed to patch up a testimony to evade a proof So that the Argument will turn the other way and 't is more for the advantage of these worthy Gentlemen that it should be turned the other way for otherwise they would be thought to be Persons ill-affected to the Government that is Dr. Burnet my Lord Paget my Lord Clare and the rest And if they have a mind to be thought otherwise they must let the Argument run that way as I say and in Charity we ought to believe the best of all mankind till we find otherwise by them We say then in Charity We suppose He thought it not fit to intrust you with his Confessions for you are all Loyal Men I know 't is the best Answer that can be given and that which they ought to value themselves upon for their own credit and reputation and not to make it an Argument against my Lord Howard or against the credibility of his testimony in the metter I don't know truly Gentlemen That I have omitted any one thing that is material on the one side or on the other of which there hath been any proof but I must onely repeat to you this Here is a matter of great concern and Consequence a matter wherein the peace of the Government and the Kingdom is concerned in a very high degree a matter that if there were another Witness as positive against the Defendant as my Lord Howard would amount to no less than High Treason But as there is but one Witness backed with these Circumstances to corroborate his testimony 't is but onely a Trespass but I tell you it treads very nigh upon High Treason and the tendency of it was to bring us all into Confusion and what would be the consequence of that but to lay us open to the same mischiefs that we were under in the times of the late Rebellion For though Men pretend never so fair and vail it under the names of the Security of the Government and the Protestant Religion yet they would have done well to have tarried till they had a legal Authority to call them to consult of these High matters that they pretend to secure that had been well What had these Gentlemen to do to take upon themselves this Power without Authority Gentlemen You have heard the Evidence and you see what it is And I must say in the late Evidences you have had concerning another business of this nature I wish that might be said to preserve and support the Credit of some Persons upon whose testimonies Lives have been taken away as has been said and is evident for the advantage of my Lord Howard I do not find that he has been guilty of Perjury as being concerned in taking Oaths one way and then giving Evidence another I mean first taking Oaths of Secresie and then revealing not but that notwithstanding all this They may be believed and God forbid but they should be believed according to truth But I say if Objections of this nature are to prevail we must never expect any great Crime to be punished because we must stay till Persons that are strangers to the guilt of the Fact come to give Evidence of it which is impossible to be done Therefore Gentlemen I must resolve it all into one Head You have the Case of a Gentleman of Quality on the one side and the peace and preservation of the Government on the other side You hear what is proved against him the Evidence given on his behalf the Objections that have been made by the Counsel which all of them as near as I can remember I have repeated to you and I ask your pardon and theirs if I have omitted any thing and I desire to be minded of it You hear the Answers that have been given And because the Counsel were unwilling to give the Court trouble or themselves to make long Speeches and Observations Therefore I have been necessitated to do it as well I can Upon the whole matter My Lord Howard has thus positively sworn the matter of Fact charged in the Indictment against the Defendant he has been supported by the Witnesses that confirm the circumstances of Smith's going into Scotland the Scotch-Men's being here in June and the Sham and Cant. of Carolina All which you have heard and I make no question observed and is not contradicted by any thing I hear that carries any probability of an Answer Therefore Gentlemen I leave it to you whether upon this Evidence you will take it upon your Consciences and Oaths That my Lord Howard is Guilty of wilful and corrupt Perjury Then you must find the Defendant not Guilty But if you think he has proved the matter fully and his testimony is supported by those four Witnesses Atterbury Sir Andrew Foster Sheriff and Bale Then Gentlemen you must find the Defendant Guilty Juriman My Lord We desire to ask one Question At the meeting at Mr. Hamden's House I think my Lord Howard says they went to Dinner Mr. Just Holloway No it was at Coll. Sidney's they went to Dinner L. C. J. I know not whether you have taken notice of it but I have it was at Coll. Sidney's they dined not at Mr. Hambden's Then the Jury withdrew from the Bar and within half an Hour the Jury returned and being called over answered to their Names and gave in their Verdict thus Cl. of Crown Are you all agreed of your Verdict Omnes Yes Cl. of Cr. Who shall say for you Omnes Foreman Cl. of Cr. How say you Is the Defendant guilty of the Trespass and Misdemeanor whereof he is impeached or not guilty Foreman Guilty Which Verdict being recorded the Court rose Martis 12. Februarii An. 1683. B. R. L. C. J. Mr. Attorney Have you any thing to move Mr. At. Gen. I pray your Judgment against Mr. Hambden my Lord who was convicted the other day of a great Misdemeanor L. C. J. Let Mr. Hambden come into the Court then which he did Mr. At. Gen. My Lord I need not aggravate the hainousness of the Offence for it appears both by the Information and upon the Evidence to be beyond all Aggravation wherefore I shall onely pray your Judgment for the King That you would please to set a good Fine upon him and that he find Sureties for his good behaviour during his Life Mr. Williams May it please your Lordship I am of Counsel for Mr. Hambden L. C. J. Are the Rules out in this Cause Mr. Williams Yes my Lord they are out L. C. J. Well then what say you for Mr. Hambden Mr. Williams Mr. Hambden does attend here according to the Condition of his Recognizance and since Mr. Attorney hath prayed your Judgment I shall not stir any thing as to the Indictment or the Verdict but all I have to say for him is this Mr. Hambden is but Heir apparent his Father is alive and so though he has the prospect of a good Estate yet he has but
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