tified briefly and vaguely to the fact of some Scotch gentlemen coming up to London, among whom was Sir John Cockran, to whom it was pretended Smith had carried a letter, written, as Howard believed, by Lord Russell.

So closed this most weak, inconclusive, and extraordinary testimony, which the prosecution had so diligently prepared to sustain this branch of the case. Although nothing in reality was proved to support the indictment for the crime of conspiracy against, and imagining the death of, the king, and of levying war against him in his realm, even admitting the testimony of the perjured Howard to be true, yet the prosecutors insisted, confident that the judge would so charge the jury, that they had abundantly proved the overt act of treason by one witness. In order, however, to convict of the crime of treason, it was necessary, as has been mentioned, that two concurring witnesses should testify to some overt act. Thus far the Crown had produced only one, Lord Howard. In order to supply the defect of proof, they now proposed to introduce the manuscripts of Sidney, seized by Sir Philip Lloyd in his closet, at the time of his arrest, which the prosecution insisted was equivalent to another witness.

Sir Philip Lloyd was sworn, who testified that he had seized, under the warrant of the king and council, certain papers of Col. Sidney, at the time of his arrest. Shepherd, Cary, and Cooke, three witnesses produced by the Crown, were then sworn, who proved

*

by comparison of hands, that the papers found were the writings of the prisoner. Notwithstanding the objection of the prisoner against the illegality of the evidence, the papers were admitted, and a portion of them read to the jury. In order to show upon what evidence Sidney was convicted of the crime of high treason, we shall quote the following passages from these papers, which were read upon his trial, alleged, doubtless with truth, to have been written by him; and which the lord Chief Justice charged the jury were to be considered equivalent to the production of another witness to prove an overt act of treason :—

"For this reason Bracton saith, that the king hath three superiors, to wit, Deum, legem, et parliament,† that is, the power originally in the people of England is delegated unto the Parliament. He is subject unto the law of God, as he is a man; to the people that makes him 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 than any one of them in any other respect than that he is, by the consent of all, raised above any other."

"If he doth not like this condition he may renounce the crown; but if he receive it upon that condition, as all magistrates do the power they receive, and swear to perform it, he must expect that the perform

* One of them, however, had seen Sidney sign his name to the bills. † God, law, and the parliament.

ance will be exacted, or revenge taken by those that he hath betrayed."

The clerk having finished the reading of these and similar extracts, Jeffries remarked to the jury, "The argument runs through the book fixing the power in the people." Whereupon the clerk was directed to read the titles of two other sections, which he did :"The general revolt of a nation from its own magistrates, can never be called a rebellion."

"The power of calling and dissolving parliaments is not in the king."

The

The enunciation of these two propositions-which contained within themselves an entire justification of the late revolution-seemed to fill the virtuous judges, the Crown lawyers, and the jury, with horror. enormity of the prisoner's crime was now fully manifested. Such sentiments as these, as Jeffries subsequently remarked, were not only equivalent to another witness, but to "many witnesses." And the prosecutors having at last condescended to inform the prisoner that he was indicted under the first branch of the statute of 25th Edward III., for conspiring and compassing the death of the king, here rested the case, with all the confident assurance of men who read in the stern countenances of the court and jury the doom of their victim.

Apparently, Sidney in entering upon his defence felt the same conviction. The arbitrary and tyrannical treatment he had received, was such as to give him too plainly to understand that his death was a thing

already determined. He, however, bore up manfully and resolutely, but hopelessly, against the formidable power that assailed him, like a strong swimmer vainly struggling for his life, and striving with stout heart to breast the resistless current that is steadily and surely bearing him down. Before calling any witnesses he addressed his judges, and after some pertinent and unanswerable comments upon the insufficiency of the testimony, he desired the court to relieve him from entering upon his defence, upon the ground that only one witness had been produced against him. But he was met only with the scornful answer of the Chief Justice, that if he did not choose to make any defence, the court would charge the jury upon the law presently, and leave them to decide the case upon the evidence already given. Sidney then desired counsel to argue the point of there being but a single witness, but Jeffries ruled this to be a question of fact for the jury, who alone were to determine whether the evidence was sufficient or not! Baffled on all sides by the subtlety, the almost infernal craft of the judge, Sidney still manfully stood his ground, and undertook himself to argue before that prejudiced tribunal, that the papers found in his possession were no evidence of treason, or of any crime. He urged that they were never published, and perhaps never would have been ; that from the color of the ink they appeared to have been written twenty years ago; that the matter of the book was not treasonable, and was connected with no plot, past, present, or to come, but that the treatise

itself, as appeared upon its face, was in answer to an infamous book of Sir Robert Filmer on the "Divine Right of Kings," wherein that author laid down the doctrine of absolute power on the part of the monarch, and passive obedience on the part of the subject; and that by the law of England he had a right to controvert such speculative opinions, or at least to write his own thoughts in respect to them in his closet. Here the argument of Sidney began to grow too troublesome to the Chief Justice. He abruptly interrupted him (as he constantly did in such parts of his discourse as he saw might influence the jury) and sternly reminded him that it was not his business to "spend your time and the court's time in that which serves to no other purpose than to gratify a luxuriant way of talking you have ;" and thereupon he repeated, that when he came to direct the jury, he should instruct them that the law required two witnesses, but that whether there was such proof or not was to be solely determined by the jury, as a question of fact. His learned associates, Wythins and Holloway, chimed in their notes of approval. Col. Sidney calmly answered: "Truly, my lord, I do as little intend to mis-spend my own time, and your time, as ever any man that came before you."

Whereupon Jeffries brutally rejoined; "Take your own method, Mr. Sidney; but I say if you are a man of low spirits and weak body, 'tis a duty incumbent on the court to exhort you not to spend your time upon things that are not material.”