Col. Sydney. 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. 'Tis 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. 'Tis 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. J. Have you any more witnesses?

Col. Sydney.

No, my lord.

L. C. J. Then apply yourself to the jury.

Col. Sydney. 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 'tis the statute of 25 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 levied : 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 men 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 politic; that which is the politic can't be within the statute; in that sense he never dies; and 'tis absurd 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 levied, 'tis 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. be by implication; that is, it is first

So that it must imagined that I

intended to raise a war, and then 'tis 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, is plain; for many wars have been made, and the death of the king has not followed. David made war upon Saul, yet nobody 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 'tis 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 'tis 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 'tis a distinct species of treason; and my lord Coke says, it 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 here, my lord, is neither conspiring the death of the king, nor making

war, nor conspiring to make war. Besides, I say, 'tis not the best man's 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 merely conjectural, that there is nothing in it, but his rhetoric 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 myself, 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 Campbells 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 'tis 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, 'tis 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 another's, 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 quires of paper written by 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 myself, 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, with my lord's select council selected by nobody to pursue the design of my lord Shaftesbury? And this council, that he pretends to be set up for a great business, was to be adjusted with so much finesse, so as to bring things together. What was this finesse 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 in