perceive by this Commission that hath been read that we are authorized by the King's Majesty to hear and determine all Treasons Felonies and other Offences within this County But because this Commission is upon a special occasion the Execrable Murther of the blessed King that is now a Saint in Heaven King Charls the first we shall not trouble you with the Heads of a long Charge The ground of this Commission was and is from the Act of Oblivion and Indempnity You shall find in that Act there is an Exception of several persons who for their Execrable Treasons in sentencing to Death and signing the Warrant for the taking away the Life of our said Sovereign are left to be proceeded against as Traytors according to the Laws of England and are out of that Act wholly excepted and fore-prized Gentlemen You see these Persons are to be proceeded with according to the Laws of the Land and I shall speak nothing to you but what are the words of the Laws By the Statute of the twenty fifth of Edward the third a Statute or Declaration of Treason it is made high-High-Treason to compass and imagine the Death of the King It was the ancient Laws of the Nation In no Case else Imagination or Compassing without an Actual Effect of it was punishable by our Law Nihil officit Conatus nisi sequatur Effectus that was the old Rule of Law But in the case of the King His Life was so pretious that the Intent was Treason by the Common Law and Declared Treason by this Statute The reason of it is this In the case of the Death of the King the Head of the Commonwealth that 's cut off and what a Trunk an inanimate Lump the Body is when the Head is gone you all know For the Life of a single man there 's the Life of the Offendor there 's some Recompence Life for Life But for the Death of the King what Recompence can be made This Compassing and Imagining the cutting off the Head of the King is known by some overt-Overt-Act Treason it is in the wicked Imagination though not Treason Apparent but when this Poison swells out of the Heart and breaks forth into Action in that case it 's high-High-Treason Then what is an Imagination or Compassing of the King's Death Truly it is any thing which shews what the Imagination is Words in many cases are Evidences of this Imagination they are Evidences of the Heart Secondly As Words so if a man if two men do conspire to Levy War against the King and by the way what I say of the King is as well of the King dead as living for if a Treason be committed in the Life of one King it is a Treason and punishable in the Time of the Successor Then I say in case not only of Words but if they conspire to Levy War against the King there 's another Branch of this Statute the Levying of War is Treason But if men shall go and consult together and this is to kill the King to put Him to Death this Consultation is clearly an overt-Overt-Act to prove this Imagination or Compassing of the King's Death But what will you say then if men do not only go about to conspire and consult but take upon them to Judge Condemn nay put to Death the King Certainly this is so much beyond the Imagination and Compassing as 't is not only laying the Cockatrice's Egg but brooding upon it till it hath brought forth a Serpent I must deliver to you for plain and true Law That no Authority no single person no community of persons not the people Collectively or Representatively have any coercive power over the King of England And I do not speak mine own Sence but the words of the Laws unto you It was the Treason of the Spencers in King Edward the Second's Time in Calvin's case second Report The Spencers had an opinion that all Homage and Allegiance was due to the King by reason of the Crown as they called it And thereupon say the Books and Records they drew out this execrable Inference among others That if the King did not demean himself according to Right because he could not be reformed by Law he might per aspertee that is by sharp Imprisonment but this was adjudged horrid Treason by two Acts of Parliament Gentlemen Let me tell you what our Law-books say for there 's the Ground out of which and the Statutes together we must draw all our Conclusions for matter of Government How do they Stile the King They call Him The Lieutenant of God and many other expressions in the Book of Primo Henrici Septimi Says that Book there The King is immediate from God and hath no Superior The Statutes say That the Crown of England is immediately subject to God and to no other Power The King says our Books He is not only Caput Populi the Head of the People but Caput Reipublicae the Head of the Commonwealth The three Estates And truly thus our Statutes speak very fully Common Experience tells you when we speak of the King and so the Statutes of Edward the Third we call the King Our Sovereign Lord the King Sovereign that is Supreme And when the Lords and Commons in Parliament apply themselves to the King they use this Expression Your Lords and Commons your faithful Subjects humbly beseech I do not speak any Words of my own but the Words of the Laws Look upon the Statute primo Jacobi there 's a Recognition that the Crown of England was lawfully descended on the King and His Progeny The Statute it self was read to which it is desired the Reader will be referred These are the Words of the Act. And this is not the first precedent for you shall find it primo Eli. cap. 3. They do acknowledge the Imperial Crown lawfully descended on the Queen the same Recognition with this Before that because we shall shew you we go upon Grounds of Law in what we say Stat. 24. Hen. 8. cap. 12. Whereas by sundry old authentick Histories and Chronicles it is manifestly declared and expressed that this Realm of England is an Empire and so hath been accepted in the world governed by one Supreme Head and King having the Dignity and Royal Estate of the Imperial Crown of the same c. 25 Hen. 8. c. 21. there it is the people speaking of themselves That they do recognize no Superiour under God but only the King's Grace Gentlemen You see if the King be immediate under God he derives his Authority from no body else if the King have an Imperial Power if the King be Head of the Commonwealth Head of the body Politick if the body Politick own him obedience truly I think it is an undenied consequence He must needs be Superiour over them Gentlemen This is no new thing to talk of an Emperour or an Imperial Crown Do not mistake me all this while It is one thing to have an Imperial Crown and another
so unnatural and Devilish to destroy his Father But we do find amongst the Romanes such a Fact was committed and then they were at a loss to punish it The way was this that they found out the Offendour they sewed into a Mail of Leather so close that no Water could get in when they had done they threw him into the Sea by this denoting the Offendour was not worthy to Tread upon the Ground nor to Breath in the Air nor to have the benefit of any of the four Elements nor the use of any of God's Creatures and so he starved Gentlemen Parricide and Regicide differ not in Nature but in Degree Parricide is the killing of the Father of one or a few Persons Regicide the Killing the Father of a Countrey What Punishment then is suitable to this Offence Gentlemen The Prisoner at the Bar is accused of this Offence and now to be Tried by you but before we enter upon the Evidence I must with the leave of the Court inform you That though the Indictment contains many Circumstances and Gradations in the Treason yet the Imagining and Compassing the Death of our late Sovereign is the Treason to which we shall apply our Evidence this being both by the Common-Law and by the Statute of the 25th of Edward the 3d. the Principal Treason to be enquired of And the other Circumstances in the Indictment are but so many matters to prove the Overt-Act The Consultations the Assuming Power to Try and Condemn the King The Assault upon him and the Fatal Blow that was given him are but so many Demonstrations and open Acts proving the first Treasonable Design of the Heart It will be enough for you and so my Lords will tell you if we prove the Treason it self which is the Compassing and Imagining the Death of the King though we fail in some of the Circumstances laid in the Indictment I do not speak this as if we should fail in any but it is not necessary to prove them all if we prove any you are to find the Prisoner Guilty I am not willing to hold your Lordships too long in the Porch but desire to descend into the Body of the Business and so we shall call our Witnesses and doubt not but to prove that this Man at the Bar was the first and not the least of these Offendours Mr. George Masterson was called Mr. Harrison When I was before your Lordships yesterday I offered something very material in reference to the Jurisdiction of the Court but you told me according to the Rule I must Plead Guilty or Not Guilty and what I had to offer should be heard in its proper place I now desire to know whether it be proper now to deliver my self before you proceed to the calling of Witnesses for I would go the best way and would not willingly displease you Lord Chief Baron What was promised you yesterday God forbid but you should have it But I think it will be best for you to hear the Evidence and then what you have to say you shall be fully heard Mr. Harrison I am content Whereupon George Masterson Stephen Kirk Francis Hearn William Clark Robert Coitmore and James Nutley were called and sworn Councel Mr. Masterson Whether did the Prisoner at the Bar sit in that which they called the High Court of Justice to sentence the King or no Pray tell my Lords and the Jury thereof and what else you know of the matter Mr. Masterson Upon the Oath I have taken my Lords and Gentlemen of the Jury I saw the Prisoner Th. Harrison sit in that which they called The High Court of Justice upon the 27th day of January in the year 1648. to sentence the King Councel Was it the day the Sentence was passed against the King Mr. Masterson It was the day of the Sentence the 27th of Jan. 1648. Councel Can you say any thing else Mr. Masterson I do Sir further remember that when the Clerk of the Court as he was called read the Sentence against the King and said It was the sentence of the whole Court I saw the Prisoner at the Bar together with others stand up to my apprehension as Assenting to it Councel Was there not direction that all should stand up as Assenting Mr. Masterson I do not know that but when the Sentence was read several of them did stand up and he among the rest as Assenting to the Sentence as the Spectatours understood Councel Mr. Clark What do you say to the same Question Mr. Clark My Lords and Gentlemen of the Jury I remember I saw the Prisoner at the Bar sit several times in the Court of Justice as they called it particularly on the 23d and 27th of January 1648. as I took notice of it in a Book Councel Was that the day of the Sentence Mr. Clark Yes my Lord. Coun. What say you to that of the rising of those persons in the Court Mr. Clark I remember they all rose but I did not take particular notice then of the Prisoner Councel Mr. Kirk You hear the Question Did you see the Prisoner at the Bar in Westminster-Hall sitting upon the Bench in that which they called the High Court of Justice when the King stood Prisoner at the Bar there Mr. Kirk My Lord I did see the Prisoner at the Bar sit several days in that which they called the High Court of Justice I was there every day of their sitting Councel Do you remember he was there on the 27th of Jan. 1648 Mr. Kirk I do Sir Councel Tell the Jury what was the Work there Mr. Kirk It was Sentence I did take the Names of all those Gentlemen that did appear in the Court on that day the 27th of Jan. 1648. and amongst the rest I took a Note of that Gentleman's Name as being present Councel Whereas these Gentlemen Mr. Masterson and Mr. Clark have declared that as Assenting to the Sentence they all stood up Did you see them stand And whether by Direction or no Mr. Kirk As for the Direction I know nothing of it but the Members then present in the Court after Sentence was read as far as my Eyes could perceive stood up unanimously I suppose as Assenting to the Sentence Court Mr. Nutley Did you know the Prisoner at the Bar Have you seen him sit in Westminster-Hall at any time upon the Bench when the King was brought as a Prisoner to the Bar Mr. Nutley My Lords and Gentlemen of the Jury I saw the Prisoner at the Bar several days sit there amongst the rest of the Judges as a Judge I suppose To the best of my remembrance he sate there four days together Court Was he there upon the day of the Sentence Mr. Nutley I did take Notes My Lord that day in the Court and I find he did sit that day Court Do you know any thing more of the Prisoner at the Bar Mr. Nutley Thus much I know concerning the Prisoner at the Bar my Lord. The first
the Hand-writing of the Prisoner at the Bar The Instrument being shewed him Mr. Farrington I did not see him write it my Lords but I believe it to be his for I have often seen his Hand-writing It is his hand so far as possibly a man can know any Person 's hand that did not see him write Mr. Harrison I desire to see the Instrument Which being shew'd to him he said I believe it is my own Hand Councel That 's the Warrant for summoning that Court that he owns his hand too Court Shew him the other Instrument That being for Execution of the Sentence Mr. Harrison it being shew'd him I do think this is my hand too Councel If you think it the Jury will not doubt it That 's the Bloody Warrant for Execution And we desire they may be both read Mr. Harrison My Lords do these Learned Gentlemen offer these as being any Records Councel No but as your own hand-writing Mr. Harrison If you do not read it as a Record I hope your Lordships will not admit of any thing of that kind against me Councel He knows that a Letter under his hand and Seal may be read in a Court We do not offer it as a Record but prove it by Witnesses that it is your hand-writing Court You have Confessed these to be your hands Whether they are Records or no whether Papers or Letters they may be read against you You signed the Warrant for Convening together those which you called The High Court of Justice and you signed the other Warrant for putting the King to Death You do Confess these two things We do not see what further Use may be made of them Court You might observe how the Indictment was for the Imagining Compassing and Contriving the King's Death To prove that there must be some overt-Overt-Act and a Letter under the Partie's Hand is a sufficient Overt-Act to prove such Imagination to that end these are used Mr. Harrison I do not come to be denying any thing that in my own Judgment and Conscience I have done or Committed but rather to be bringing it forth to the Light Court Sir you must understand this by the way this you must take along with you That these are read not as any thing of Authority in themselves or as used to any other purpose but as an Evidence of the Fact against you Take that along with you The two Bloody Warrants for Trial and for Execution of His Majesty were here read the later of which is as followeth At the High Court of Justice for the Trying and Judging of Charles Stuart King of England Jan. 29. 1648. WHereas Charles Stuart King of England is and standeth Convicted Attainted and Condemned of High Treason and other High Crimes and Sentence upon Saturday last was pronounced against him by this Court to be put to Death by the severing his Head from his Body of which Sentence Execution yet remaineth to be done These are therefore to will and require you to see the said Sentence executed in the open street before White-hall upon the marrow being the 30th day of this instant Moneth of January between the hours of ten in the Morning and five in the Afternoon of the same day with full effect And for so doing this shall be your sufficient Warrant And these are to require all Officers and Souldiers and other the good People of this Nation of England to be assistant unto you in this service To Colonel Francis Hacker Colonel Hunks and Lieutenant-Colonel Phayre and every of them Given under our Hands and Seals Sealed and subscribed BY John Bradshaw Lord President Jo. Hewson Per. Pelham Thomas Grey Oliver Cromwel Edward Whalley John Okey Jo. Danvers Mich. Livesey Jo. Bourchier Hen. Ireton Thomas Maleverer Jo. Blakestone Jo. Hutchinson Will. Goff Thomas Pride Hen. Smith Peter Temple Tho. Harrison Isaac Ewer Val. Wanton Simon Meyn Tho. Horton Jo. Jones Jo. Moor. Hardress Waller Gilbert Millington Geo. Fleetwood Jo. Alured Rob. Lilburn Wil. Say Rich. Dean Rob. Tichbourn Hum. Edwards Dan. Blagrave Owen Roe Will. Puefroy Adrian Scroop James Temple Aug. Garland Edmond Ludlow Hen. Marten Vincent Potter Will. Constable Rich. Ingoldsby Will. Cawley Joh. Barkstead Anth. Stapeley Greg. Norton Tho. Challoner Tho. Wogan Jo. Ven. Greg. Clement Jo. Downs Tho. Wayt. Tho. Scot. Jo. Carew Miles Corbet Mr. Wyndham Gentlemen of the Jury We have done our Evidence and you must know Gentlemen that the principal Point of the Indictment is for Compassing Imagining and Contriving the Death of his late Majesty of Glorious Memory There lies the Treason So saies the Statute of the 25th Ed. 3d. It hath nothing of Killing the King there but of Imagining and Compassing the Death of the King The going about it that 's the Treason as hath been learnedly opened to you The rest are but Overt-Acts If there be such an Imagination or Compassing the Death of the King once declared though no fruit at all follow it is Treason Here certainly you have a very full Evidence given We shew you a Consultation this is one overt-Overt-Act which would do the work if there were nothing else I must tell you and that with Submission to my Lords the Justices if they had advised and gone no further that had been Treason in the Letter of the Law They Convened and met together and suppose then they had absolved and acquitted him do you think they had absolved themselves from Treason With reverence be it spoken if they had acquitted him they had been guilty of Treason Assuming a Power to put the King to Death is an overt-Overt-Act declaring such an Imagination You see this Prisoner was no ordinary Actour in it his Hand is in at all Games Taking of Him Imprisoning of Him bringing Him to London and setting Guards on Him You see also his Malice Let us Blacken Him for they knew His Innocency would Shine forth unless it was blackened by their Imputations He Sate many times as your hear and Sentenced Him and Assented to that Sentence by standing up and likewise by Concluding the Catastrophe of that sad beginning of Sufferings his making a Warrant for his Execution and accordingly you know what did follow I think a clearer Evidence of a Fact can never be given then is for these things Here the Spectatours Hummed Lord Chief Baron Gentlemen This Humming is not at all becoming the Gravity of this Court. Let there be free-speaking by the Prisoner and Counsel It is more fitting for a Stage-Play then for a Court of Justice Mr. Harrison It is now time my Lords to offer what I have to say Have these Learned Gentlemen offered what they will say Councel We have no more till he hath given us occasion not for Evidence of the Fact Mr. Harrison My Lords The matter that hath been offered to you as it was touched was not a thing done in a Corner I believe the sound of it hath been in most Nations I believe the Hearts of some have felt the
had not the blood of English-men that had been shed Councel Me thinks he should be sent to Bedlam till he comes to the Gallows to render an Account of this This must not be suffered It is in a manner a new Impeachment of this King to justifie their Treasons against His late Majesty Mr. Solicitour General My Lords I pray that the Jury may go together upon the Evidence Sir Edw. Turner My Lords This man hath the Plague all over him it is Pity any should stand near him for he will infect them Let us say to him as they use to write over an House infected The Lord have Mercy upon him and so let the Officer take him away Lord Chief Baron Mr. Harrison We are ready to hear you again but to hear such Stuff it cannot be suffered You have spoken that which is as high a Degree of Blasphemy next to that against God as I have heard You have made very ill use of these Favours that have been allowed you to speak your own Conscience cannot but tell you the Contradiction of your Actions against this that you have heard as the Opinion of the Court. To extenuate your Crimes you may go on but you must not go as before Mr. Harrison I must not speak so as to be pleasing to men but if I must not have liberty as an English-man Court Pray do not reflect thus You have had liberty and more then any Prisoner in your Condition can expect and I wish you had made a good use of it Keep to the Business say what you will Mr. Harrison My Lords thus There was a Discourse by one of the Witnesses that I was at the Committee preparing the Charge and that I should say Let us blacken Him The thing is utterly untrue I abhorred the doing of any thing touching the Blackning of the King There was a little Discourse between the King and my self The King had told me that He had heard that I should come privately to the Isle of Wight to offer some injury to Him But I told Him I abhorred the thoughts of it And whereas it is said that my Carriage was hard to Him when I brought Him to London it was not I that brought Him to London I was commanded by the General to fetch Him from Hurst-Castle I do not remember any hard Carriage towards Him Court Mr. Harrison You have said That you deny that of Blackning which the Witness hath sworn and somewhat else touching the King in His Way to London that the Witness hath sworn to also The Jury must consider of it both of their Oaths and your Contradictions If you have nothing more to say which tends to your Justification We must direct the Jury The end of your Speech is nothing but to infect the People Mr. Harrison You are uncharitable in that Justice Foster My Lords This ought not to come from the Bar to the Bench if you sally out thus about your Conscience If your Conscience should be a darkened Conscience that must not be the Rule of other mens Actions What you speak of that Nature is nothing to the Business If you have any thing to say by way of Excuse for your self for matter of Fact you may speak but if you will go on as before it must not be suffered Mr. Harrison The things that have been done have been done upon the Stage in the sight of the Sun Court All this is a Continuance of the Justification and Confession of the Fact We need no other Evidence Councel He hath confessed his Fact my Lords The matter it self is Treason upon Treason Therefore we pray Direction to the Jury Lord Chief Baron Mr. Harrison I must give Direction to the Jury if you will not go further touching the Fact Mr. Harrison My Lords I say what I did was by the Supreme Authority I have said it before and appeal to your own Consciences that this Court cannot call me to question Lord Chief Baron Mr. Harrison you have appealed to our Consciences We shall do that which by the Blessing of God shall be just for which we shall answer before the Tribunal of God Pray take heed of an Obdurate Hard Heart and a Seared Conscience Mr. Harrison My Lords I have been kept six Moneths a Close Prisoner and could not prepare my self for this Trial by Councel I have got here some Acts of Parliament of that House of Commons which your Lordships will not own and the Proceedings of that House whose Authority I did own Lord Chief Baron This you have said already If you shew never so many of that Nature they will not help you you have heard the Opinion of the Court touching that Authority They all unanimously concur in it Gentlemen of the Jury You see that this Prisoner at the Bar is Indicted for Compassing Imagining and Contriving the Death of our late Sovereign Lord King Charles the First of Blessed Memory In this Indictment there are several things given but as Evidences of it they are but the Overt-Acts of it The one is first that they did meet and consult together about the putting the King to Death and that alone if nothing else had been proved in the Case was enough for you to find the Indictment For the Imagination alone is Treason by the Law But beause the Compassing and Imagining the Death of the King is secret in the Heart and no man knowes it but God Almighty I say That the Imagination is Treason yet it is not such as the Law can lay hold of unless it appear by some overt-Overt-Act Then the first overt-Overt-Act is their Meeting Consulting and Proposing to put the King to Death The second is more open namely their Sitting together and Assuming an Authority to put the King to Death The third is Sentencing the King And I must tell you that any one of these Acts prove the Indictment If you find him guilty but of any one of them either Consulting Proposing Sitting or Sentencing though there is full Proof for all yet notwithstanding you ought to find the Indictment You have heard what the Witnesses have said and the Prisoner's own Confession Witnesses have sworn their sitting together and that he was one One swears he sate four times another twice some several times There are several Witnesses for this as Mr. Masterson Mr. Clark Mr. Kirk and Mr. Nutley And then you have another thing too which truly the Prisoner did not speak of Witness was given against him That he was the Person that Conducted the King this was before that which he would have to be done by a Legislative Power and that is another Overt-Act If a man will go about to Imprison the King the Law knows what is the sad Effect of such Imprisonment That hath often been adjudged to be an Evidence of Imagining and Compassing the Death of the King That man the Prisoner at the Bar it hath been proved to you did Imprison the King and it appears by his own
Hand to the Warrant for summoning of that Traiterous Assembly The High Court of Justice as they called it And also it appears by his Hand to the Warrant for Execution that Bloody Warrant He hath been so far from denying that he hath Justified these Actions The Evidence is so clear and pregnant as nothing more I think you need not go out The Jury went together at the Bar and presently unanimously agreed on their Verdict whereupon they were demanded by the Clerk Clerk Are you agreed upon your Verdict Jury Yes Clark Who shall say for you Jury Our Fore-man Which was Sir Thomas Allen. Clerk Thomas Harrison Hold up thy Hand Gentlemen of the Jury Look upon the Prisoner How say ye Is he guilty of the Treason whereof he stands Indicted and hath been Arraigned or Not guilty Fore-man Guilty Then the Keeper was charged to look to the Prisoner Clerk What Goods and Chattels had he at the time of committing this Treason or at any time sithence Fore-man None to our Knowledg Which Verdict being repeated to the Jury by Mr. Clerk of the Crown the Jury owned it unanimously Mr. Solicitor Gen. My Lords upon this Verdict that hath been given against the Prisoner at the Bar I humbly move that we may have Judgment given Your Sessions will be long and your work will be great his Demeanour hath been such that he doth not deserve a Reprieve for so many Days that you are like to spend in this Session Court Mr. Harrison they desire Judgment upon the Verdict What do you say for your self why Judgement should not pass against you Clerk Thomas Harrison hold up thy Hand What hast thou to say for thy self why Judgmnt should not pass against thee to dy according to Law Mr. Harrison I have nothing further to say because the Court have not seen meet to hear what was in my Heart to speak I submit to it The Cryer made Proclamation for Silence whilest Judgment was in giving Lord Chief Baron You that are the Prisoner at the Bar you are to pass the Sentence of Death which Sentence is this The Judgment of this Court is and the Court doth award that You be led back to the place from whence you came and from thence to be drawn upon an Hurdle to the place of Execution and there you shall be hanged by the Neck and being alive shall be cut down and your Privy-Members to be cut off your Entrails to be taken out of your Body and you living the same to be burnt before your Eyes and your Head to be cut off your Body to be divided into four Quarters and your Head and Quarters to be disposed of at the pleasure of the Kings Majesty and the Lord have Mercy upon your Soul And then Proclamation was made for Adjournment of the Court to this place till seven of the Clock to morrow morning And all Jury-men and Witnesses were commanded to be at the said Place and Time upon Forfeiture of an hundred Pounds apiece Octob. 1â— 1660. The Proclamation for Silence The Jury called Prisoners brought to the Bar viz. John Jones Adrian Scroop Thomas Scot Gregory Clement John Carew Cryer Sir Thomas Allen. Clerk Sir Tho. Aleyn lay your hand on the Book look upon the Prisoner at the Bar. Scroop I challenge him my Lord. L. C. Bar. That you may not mistake if you challenge in this manner and do not joyn in your challenges we must try you severally one after another I must tell you the course of the Law If one challenge one and another challenge another we must sever and go to Tryal one by one Call the next Cl. Sir Henry Wroth. Scroop I challenge him L. C. Bar. Then we must go on severally set all aside but Mr. Scroope Mr. Scroop you may challenge particularly whom you will till you come to 35. if you go beyond that number you will lose the benefit of the Law Scr. I desire my Lord that whosoever was challenged yesterday may not be called again Court No that cannot be that is nothing to you The Court thereupon proceeded and called Challenged John Lisle Nic. Raynton Thomas Wynter Thomas Frankelyn Randal Nichol Jo. Kirke Ambrose Scudamore George Tirrey who were all challenged Jury Thomas Willet Hen. Marsh Charles Pitfied Chr. Abdy Rich. Cheny Tho Bid. Jo. Smith Richard Abel Ralph Halsal Jo. Gallyard Tho. Swallow Sam. Starnel were admitted and sworn on the Jury Cl. Cryer make Proclamation If any man can inform my Lords the King's Justices the King's Serjeant or the King's Attorney before this Inquest be taken between our Soveraign Lord the King and the Prisoner at the Bar let them come forth and they shall be heard for now the Prisoner stands at the Bar upon his delivery and all others bound by recognizance to give evidence against the Prisoner at the Bar let them come forth and give their evidence or else they shall forfeit their recognizance Cl. Adrian Scroop hold up thy hand you Gentlemen that are sworn look upon the Prisoner and hearken to his charge you shall understand c. upon this Indictment he hath pleaded not guilty M. Sol. May it please your Lordships and you Gentlemen of the Jury this Prisoner at the Bar stands indicted sor compassing and imagining the death of the late King of blessed memory The Indictment sets out that to that end and purpose the Prisoner at the Bar did with others assemble and sit together at Westminster Hall consulting upon him and usurped an authority to proceed against the life of our said late Soveraign and in persuance of that our late Soveraign was brought to his death These things are alledged in the Indictment as several over Acts to shew the treason of his heart which was the compassing and imagining the death of the King Compassing and Imagining are the words of the Statute the rest of the Indictment is but as so many overt-acts evidences and manifestations of that corrupt and wicked heart of his by which he first thought such a thought against his Soveraign The manner of our evidence shall be this Before they could come to accomplish this damnable design it was necessary to meet in a trayterous assembly which they called the High-Court of Justice that under the pageantry and mockery of that they might pretend to murder him by a Sentence and before that assembly could come to sit there was a Precept set forth very formally to summon them to sit This Prisoner at the Bar is one of those persons who under his hand and seal did summon that Court to sit upon the life of our late Soveraign When the Court in obedience to that summons as they called it did meet they sate several times and he among them they did proceed with a wonderful impudence as they had begun to pronounce sentence of death upon our late Soveraign My Lords this Prisoner at the Bar was amongst them and was at that Court and gave the sentence When they had done that
have to say my Lords L. C. Bar. You Gentlemen that are sworn of this Jury you see the Prisoner Mr. Scroop hath been indicted for imagining and contriving the death of his late Majesty of blessed memory King Charles the first You see there are several things in this Indictment the charge is the Imagining and compassing the death of the King In the Indictment there are several matters of fact to prove this Imagination The Imagination is the Treason the matters of fact to prove it are but the evidences of that imagination if any one of them be proved to you it is sufficient the one is consulting and meeting together how to put him to death the other Sitting and Assuming Authority to bring him to Tryal Then you have a Sentence by the Court to put the King to Death thereupon Afterwards he was put to Death Any one of these matters are Evidence enough for you to prove the Indictment for though the Indictment concludes that so they did Imagine and Compass the Death of the King and that the King was put to Death in manner and form as aforesaid the manner and form aforesaid goes to this To the imagination of the Heart for the Law did not think any one would put the King to death they thought it so a Crime they thought it not convenient to bring it into the Statute But the Compassing and Imagining the Death of the King is made Treason Then to apply it this Fact to the Gentlemen it appears to you here by the proofs against him Here is Mr. Masterson he swears he saw him sit in that pretended Court there was your Evidence of the first the first was their Meeting together and of the second too They did Assume Authority upon them and he swears further to the Sentencing That the Prisoner was there Here were the Three Overt-Acts all proved He confesses he did sign the Warrant for putting the King to Death This without any Witness at all was a sufficient proof a Proof of proofs The other Witnesses you hear what they say you hear Mr. Kirk M. Clark M. Nutley swear all to his Sitting there It is true when this comes to the particulars where he sate you must remember it was Twelve Years ago when a man sees a mixt number of about Eighty Persons it is impossible a man should be able to answer this particular after Twelve years where such a one sate but you may see by his Sentencing what he did They all witness they saw him positively and one tells you He wondered he saw him there and indeed it might be a wonder for Mr. Scroop to give him his right was not a Person as some of the rest but he was unhappily ingaged in that Bloody Business I hope mistakenly but when it comes to so high a Crime as this men must not excuse themselves by ignorance or misguided Conscience As to God for this Horrid Murther of the King somewhat may be but there is no Excuse or Extenuation before Man there may be I say before the Lord. You see the Proof is full against this Gentleman as full as may be Witnesses saw him Sit and he himself confessed he signed the Warrants I have no more to say to you but Gentlemen you see what it is I think for matter of Fact you need not go from the Bar but I leave it to you Scroop My Lord Lord Chief Baron Mr. Scroop If you have any thing to say when the Jury have brought in their Verdict if you will say any thing for matter of Mercy the Court will hear you Scroop I thank your Lordship The Jury went together and presently settled themselves in their places Clerk A. Scr. Hold up thy hand Look upon the Prisoner How say you Is he guilty of the Treason whereof he stands Indicted and hath been Arraigned or not guilty Jury Guilty Clerk What Goods and Chattels c. Jury None that we know L. Chief Bar. If you will say any thing the Court will hear you Scroop I have no more My Lord but refer my self to this Honourable Court. Clerk Set John Carew Tho. Scot John Jones and Gregory Clement to the Bar who were set accordingly And being Commanded they severally held up their hands Clerk These men that were last called c. Sir Tho. Allen Lay your hand on the Book Look c. Carew I Challenge him L. C. Bar. Are you all agreed as to your Challenges Pris No my Lord. L. C. Bar. Then we must do as before sever you and go to Tryal severally Take the Three away and let Mr. Carew stand at the Bar. Challenged Charles Pitfield Wille Will. Smiths Rich. Rider Edward Rolph James Shercroft Tho. Vffman Francis Beal Will Whitcombe Samuel Harris Jo. Nicol of Finchley George Rigth Tho. Fruen Ab. Newman Tho. Blithe Will. Vincent James Hawley Chr. Abdy Tho. Bide John Smith Abr. Scudamore Ralph Halsel John Galliard In all 23. Jury Sworn Robert Clarke Thomas Grover Rich. Whaley Sam. Greenhil Nicholas Raynton Tho. Winter Rich. Cheney John Kerk Rich. Abel Thomas Morris George Tirrey Thomas Swallow In all 12. If any man can inform my Lords the King's Justices c. Cler. John Carew hold up thy hand You that are sworn look upon the prisoner You shall understand c. Sir Edw. Turner May it please your Lordships our Hue and Cry still proceeds against the Murtherers of our late Sovereign Lord King Charles the First of blessed memory and this Gentleman the prisoner at the Bar is apprehended as one among others for shedding that pretious blood Gentlemen of the Jury he stands indicted before you For that he I cannot express it better not having the fear of God before his eyes but being seduced by the instigation of the Devil he did imagin and compass the death of his said late Majesty In prosecution of this Gentlemen there be several things that are mentioned in the Indictment which are the open acts to discover to you these secret and private imaginations He did meet and consult with divers persons touching the death of the King that did usurp and take upon them to exercise a Power and Jurisdiction to try the King and finally most horribly put him to death The Treason by the Statute of 25 Edw. 3. and which you are to enquire of is the imagination and compassing the death of the King the rest of the Indictment are but particulars to prove that he did so imagine and compass the death of the King If we shall prove these or any of these facts you have then sufficient to convict them There was a thing they called a High Court of Justice that was set up wherein they did intend to try our late Sovereign Lord and a precept made and that under the hand and seal of the prisoner at the Bar amongst others for summoning and convening that bloody Court where among the rest of the Miscreants the prisoner at the Bar did sit and had confidence nay impudence
Convening that Court together whereby the King was to be brought to his Tryal and that he sate at his Sentence and issued the warrant for his Execution You saw that this Gentleman did the Fact did Compass and Imagine the King's Death That which you are to try is this Issue being Indicted for High Treason and pleading not Guilty whether this Gentleman that went so far Sate upon him Condemned him Signed the Warrant for his Execution did not Compass and Imagin the King's Death I think you need not stir from the Bar where you are but I leave that to you After a very small time of Consultation by the Jury amongst themselves at the Bar they agreed in a Verdict Silence was Commanded Clerk John Carew Hold up thy Hand Gentlemen of the Jury look upon the Prisoner How say you Is he Guilty of the horrid Treason whereof he stands Indicted or not Guilty Foreman Guilty Cl. What Goods and Chattels c. Jury None that we know of Mr. Scot's Tryal on Friday October 12. 1660. At the Sessions-House aforenamed Clerk Set Thomas Scot to the Bar which was accordingly done Thomas Scot hold up thy hand These men that have been of the last Jury are to try c. If you will Challenge all or any of them you must Challenge them before they are sworn Scot. I desire that those men who have been of the former Jury may not be named I know my liberty of excepting against my number Lo. Ch. B. Mr. Scot That which you do desire is a thing not right the Offence with one is not the same with others I speak not but that the Court will do you all Right the Court will grant it if you will wave your Challenges but if you mean those that have been by others challenged it is against Law Scot. I am willing to bring my self upon my Tryal and I will take the ordinary way of Excepting and Challenging Sir Hen. Wroth Sir Jer. Whitchcote James Hawley Rich. Rider Fra. Beale Chr. Abdy Nicho. Raynton Tho. Winter John Kirke Rich. Abel Sir Tho. Aleyn Abr. Scudamore Ralph Halsall George Tirrey Tho. Swallowe Charles Pickerne Arthur Newman Tho. Blithe William Vincent Rich. Whaley were called and challenged Thomar Grover Edw. Rolfe Tho. Vfman William Whitcombe Rich. Cheney Tho. Bide Charles Pitfield John Smith Tho. Morris Tho. Fruen Henry Twyford Samuel Starnel were the Jury sworn Clerk Cryer make Proclamation Cryer O yes If any man can inform my Lords the Kings Justices c. Clerk Tho. Scot. hold up thy hand You that are sworn of this Jury you shall understand that the Prisoner at the Bar stands Indicted by the name of Tho. Scot late of Westminster in the County of Middlesex Gent. For that he together with John Lisle c. Here the Indictment was read Unto which Indictment he hath been arraigned and thereunto hath pleaded Not guilty and for his Tryal hath put himself upon God and the Countrey which Countrey you are Now your Charge is to enquire whether c. Mr. Soll. Gen. You that are sworn of this Jury this Inquisition for blood Royal Blood goes on against the Prisoner at the Bar he stands Indicted for Compassing Imagining and Contriving the death of the late King of blessed Memory It is laid to his Charge in the Indictment That he did assemble at Westminster and that he with other persons usurped an Authority of sitting and sentencing to death his said late Majesty and that in consequence and pursuance of that the King came to his death The Treason he stands charged with is the Compassing and Imagining the Kings death The other parts of the Indictment are but overt acts that do but evidence and prove the Corruption of his heart if we prove but some of these overt acts then you must find him guilty Our Evidence against this Gentleman will be thus We shall call Witnesses to prove his sitting in the Court sentencing his King while his King stood a Prisoner at the Bar the Warrant for Execution of the King directed to certain persons to see Execution done accordingly was under Hands and Seals and among those Hands and Seals the Hand and Seal of the Prisoner at the Bar is one and then we shall produce to your Lordships Witnesses to shew you with what a hard and impenitent heart this hath been Committed for he so gloried in the Act That he desired it might be writ upon his Tomb Mr. Nutley M. Kirke Mr. Masterson and Mr. Clark sworn Coun. Mr. Masterson be pleased to tell my Lords and the Jury if you have seen the Prisoner at the Bar sit in that which they called the High Court of Justice Mr. M. My Lords and Gentlemen of the Jury I saw the prisoner at the Bar present at the High Court of Justice as they call'd it for the Tryal of the late King some days that is to say either upon the 22. or 23. day of Jan. 1648. but particularly upon the 27th day of that Month in the said year when the Sentence of death was pronounced against his late Majesty I saw the Prisoner at the Bar present Coun. As one of the Judges do you mean Mr. Ma. As one of the Judges sitting upon the Bench. Scot. Do you know where abouts I sate Mr. Ma. I cannot satisfie you in that but I saw you sitting upon one of the Benches Coun. Mr. Clark you hear the question pray answer what you know touching it Mr. Cl. My Lords and you Gentlemen of the Jury I was present in the year 1648. when his late Majesty stood a Prisoner at the Bar in that which they called the High Court of Justice and among other persons there present in that business I observed Mr. Scot the Prisoner at the Bar to sit as one of the Judges and particularly upon the 23 and 27th days of Jan. in the said year upon which last day the Court pronounced Judgement upon the late King Coun. Did he stand up as assenting to the Sentence Mr. Cl. They all stood up to my apprehension I know not particularly whether the Prisoner at the Bar did Coun. Mr. Kirke tell my Lords and the Jury your knowledge in this business touching the Prisoner at the Bar. Mr. K. I was present at the Tryals of his late Majesty several days among the rest of the persons that sate in the Court as Judges I saw the Prisoner at the Bar and particularly upon the day of the Sentence the 27th of Jan. 1648. The Court stood up unanimously as assenting Coun. Shew him the Warrant for Execution K. This is his Hand Coun. Have you seen his Hand often K. Yes Sir and am well acquainted with it George Farrington sworn Coun. Shew Mr. Farrington the Warrant Do you know that to be Mr. Scots Hand-writing Mr. Far. I did not see him write it but I do verily believe it to be his I have often seen his Hand-writing Coun. Mr. Nutley do you know Mr. Scots hand-writing Is that Mr. Scots
writing The Warrant shewn him Mr. Nutley I do verily believe it is Coun. Have you been acquainted with the writing of his name Mr. N. I have seen him write his name and do verily believe it to be his hand Coun. Clerk read the Warrant He read it accordingly Coun. That which remains of our Evidence is to prove his boasting of this villany We shall desire you to hear Sir Theophilus Biddolph Sir Theo. Biddolph sworn Coun. Pray tell my Lords and the Jury what you have heard the Prisoner say touching this business of putting the King to death Sir Th. Bid. I did hear him confess that he did sit as one of the Judges of the late King and that he was so far from repenting of the Act that he did desire when he dyed That a Tomb-stone might be laid over him with this Inscription Here lyes Thomas Scot who adjudged to death the late King Coun. Where did he say this Sir T. B. In the Parliament House Coll. Copley Esq sworn Coun. Pray Mr. Copley tell my Lords what you know of this business Mr. Cop. My Lord I was one of the Secluded Members when we were called to sit in the House again the Prisoner at the Bar Mr. Thomas Scot I think it was the last day we sate there being some speaking of the horridness of the Fact he made a long Harangue about that horrid Act and he said He hoped he should never repent of it and desired that when he dyed it might be written upon his Tomb-stone Here lies Thomas Scot who adjudged to death the late King Coun. We have done with our Evidence Court Sir Theophilus Biddolph When was it you heard him speak those words Sir T. B. To my best remembrance it was in Richards Parliament it was about January or February was twelve months Coun. Were not you a Member for the City of London in that Parliament Sir T. B. Yes Coun. Mr. Copley When was it that heard it Mr. Cop. It was in April last Mr. Soll. Gen. It was a settled perswasion of his heart and he thought it fit to be gloried in The Lord Mayor Elect sworn Coun. Pray my Lord tell my Lords what you know concerning the Prisoner at the Bar. Lord M. Elect. My Lords I was one of those Secluded members that were returned again a little before the coming in of His Majesty Upon the last day of our sitting Mr. Scot seeing the House must break said Their heads must be laid to the Block if there were a new Parliament For said you looking on Mr. Scot I confess I had a hand in putting the King to death and I desire all the world may take notice of it and I desire when I dye it may be written on my Tomb I do not repent of any thing I have done if it were to do I could do it again Mr. Soll. Gen. Do it again He follows his blows home William Lenthall Esq sworn Coun. Mr. Lenthall pray be pleased to tell my Lords and the Jury what you do remember of any discourse of Mr. Tho. Scot the Prisoner at the Bar tending to the glorying in this Act or any thing in Justification of that Act. Mr. Lenth My Lords the last day it was the last instant of time We were resolving of breaking the House there was some opposition in it not very much The general consent of the House was to dissolve it I must confess at that time I did hear Mr. Scot much justifie that Act of the death of the King which truly I was much offended at I confess to you upon my Oath touching his Speech of the Inscription upon his Tomb I did not hear that Justifying the death of the King he made a long Harangue about and he â—â—e at the upper end of the Gallery but these words Of â—â—ving it written upon his Tomb and to have all the world take â—â—â—ice of it I do not remember Coun. My Lords my Lord Mayor Elect omitted something pray let him speak to it Lo. Ma. Elect. My Lords the Conclusion of his Speech ended thus Being it is your pleasure to have it so the House Dissolved I know not how to hinder it but when that is done I know not where to hide this hated HEAD of mine Coun. We desire to hear what the Prisoner will say for himself Scot. I have no certainty from the Witnesses that I was there but in a wandring way they know not where I sate nor my posture Mr. Baker sworn Coun. We do not call this Witness as material for we must insist upon it quite through that after 12. years time it is not possible a Witness should remember where every particular person sate Pray hear this Witness Mr. Baker I do perfectly remember That Mr. Scot sate two rows above Mr. Bradshaw on his left hand in that which they called the High Court of Justice Scot. As to the Warrant you speak of I know not what it signifies I desire to know what the nature of it is Coun. The Warrant hath been read it is not produced against him as a Record for then it needed not be proved but it is produced against him as an evidence in writing under his own hand that he was consenting to the death of the King Scot. They may very much mistake my hand You speak of words that I should utter in Parliament I do humbly insist upon it That I am not to answer nor they alledge any thing of that nature It is a high breach of Priviledge Coun. There is no priviledge of Parliament for treason First some of the words were spoken in Richards Parliament that you do not own to be a Parliam then another thing a known rule in Law there is no priviledge of Parliament for treason Scot. I have heard the Rule but do not so well understand it of that spoken in Richards Parliament it will be a nice thing for me to distinguish between that and another Parliament but this I think That Convention of the people onght to have the Priviledge of the Parliament as well as any other I humbly conceive it was testimony ought not to be given to you Whatever I say in Parliament the Priviledge extends to no more than this that I may be lawfully secured till the Parliament hath been acquainted with it but not finally concluded till the Parliament have heard it Lo. Ch. Bar. You are Indicted for Compassing and Imagining the death of the King I would have you understand That in case a man should commit an Act of Treason be it in what place soever there is no place of Sanctuary for Treason In case of Felony if a man be Indicted for Felony in the Parliament House during the time of Parliament this is not to be tryed in Parliament but according to the Rule of Common Law So in case of Treason the House of Commons in Parliament doth not try Treasons That distinction which you make is nothing Scot. I humbly conceive there is
compass of it according to his Royal Word and Honour in it you will have the benefit of it but it is not a Plea in Law but it must be a Pardon under Seal whatsoever concerns that Proclamation will be considered It is nothing to the matter whereupon the Jury are to go Lord Chief Baron Gentlemen of the Jury you see the Prisoner Tho. Scot stands Indicted for Compassing and Imagining the death of our Dread Soveraign King Charles the First of most glorious and blessed memory He is Indicted for Compassing and Imagining his death there is the Treason and what is set afterwards in this Indictment is only to manifest this Compassing and Imagining because that being in the heart alone without some overt Act no body can prove it There are several overt Acts laid in the Indictment one is A Trayterous consulting and meeting together how to put the King to death Then a sitting upon the King as a Prisoner being before them about his life and death The third is Sentencing to death that which followed is That he was Murthered If any of these acts should be proved the Indictment is proved for the proof there are several Witnesses have fully proved that he did sit there several times particularly upon Jan. 27. which was the day of the Sentence That he did sit there all of them agree to that It is true as to the Circumstance where he sate one Gentleman saith he sate in the second Row on the left hand of Bradshaw you well remember it is 12. years ago how any man upon the view and after so long a distance of time should he able to remember in what posture one man was from the rest I think neither you nor I can remember Here is one proved to you that he did sign that Warrant for Executing the King he saith How can another know his Hand You see what the Witnesses say they knew it a man can prove nothing more of another mans Hand than that unless they see it written there is nothing to put upon you but his words You see what words are aggravated against Mr. Scot Whereas he saith It is a breach of the Priviledges of Parliament if it were so it is nothing to this Fact though another man should break the priviledges of Parliament it is nothing to you but besides it is not a breach of the priviledge of Parliament You have heard the Witnesses what they have said against him Mr. Lenthall swears that he did speak at large fully in owning that business of the Kings death The rest swear positively to the same effect and that at several times What was that He gloried in it defended it and said He could wish it were Engraven on his Tomb stone he hath denyed this that the Witnesses have proved That which is lest to you is whether upon all this matter that you have heard Whether the Prisoner at the Bar is Guilty of Compassing and Imagining the Kings death and so go together After a little Consultation together they setled in their places again Clerk Tho. Scot hold up thy hand Look upon the Prisoner at the Bar How say you is he Guilty of the Treason whereof he stands Indicted or not Guilty Jury Guilty Cl. Look to him Keeper Cl. You say the Prisoner is Guilty c. and so you say all Jury Yes Cl. Set Mr. Scot aside Clerk Set John Jones and Gregory Clement to the Bar. Which was done accordingly Thereupon the said Gregory Clement preferred his Petition to the Court. Indictment read against them both Lo. Ch. Bar. If you do confess your Offence your Petition will be read Clem. I do my Lord. Lord Ch. B. Mr. Clement if you do confess that you may understand it you must when you are called and when the Jury are to be charged You must say if you will have it go by way of Confession That you Wave your former Plea and confess the Fact Clerk Gregory Clement you have been Indicted of High Treason for Compassing and Imagining the death of his late Majesty and you have pleaded not Guilty Are you contented to wave that Plea and confess it Clem. I do confess my self to be Guilty my Lord. Clerk Set him aside Clkek John Jones hold up thy hand These men that were last called c. if you will Challenge all or any of them you must Challenge them when they come to the Book and before they are sworn Jones I confess I sate amongst them some days but not maliciously contrived the death of the King Coun. He is troubled at the Form he confesseth the Matter That he was there sitting in the High Court of Justice If he will not confess it he knows we can prove his Hand and Seal to that bloody Warrant He is troubled that he is said to have Trayterously and Maliciously Contrived the Kings death He that doth these Acts towards it is by Law responsible as to the Malice Jury Sworn Sir Tho. Allen Sir Henry Wroth Sir Jer. Whitchott James Hawley Henry Mildmay Christ Abdy Nich. Raynton Richard Cheney Tho. Bide Charles Pitfield Abraham Scudamore Charles Pickerne in all 12. Cl. Cryer make Proclamation Cryer If any man can inform c. Cl. John Jones hold up thy hand Look upon the Prisoner c. Mr. Soll. Gen. My Lords and Gentlemen of the Jury I must open to you as to other Juries that the short Point of this long Indictment is but this That the Prisoner at the Bar did Imagine and Compass the death of the King which is your Issue to Try We shall prove it by those overt acts which the Law doth require To prove the Sitting Sentencing and Signing the Warrant for Execution by the Prisoner at the Bar. Coun. Call Mr. Clark and Mr. Carr and Holl. Symson who were sworn Mr. Symson did you see the Prisoner at the Bar sitting in that which they called the High Court of Justice Sym. I did see Mr. Jones sit divers times both there and in the Painted Chamber Jones I do confess I sate divers times Coun. Did he sit the day of Sentence Sym. I cannot say it Coun. Mr. Clark you hear the question Pray answer my Lord. Clark My Lords and Gentlemen of the Jury I was there the 27. of Jan. 1648 I saw Coll. Jones there several days before but I did not see him that day his name was called but I do not know whether he was present Coun. Mr. Carr did you see him sit on the 27th day which was the day of Sentence Carr. My Lords he answered to his name some days I am not able to tell what day Mr. Nutley Sworn Coun. Can you tell whether the Prisoner at the Bar was present in that which they called the High Court of Justice Nutley The Prisoner at the Bar was several times in the Court which was called the High Court of Justice truly I cannot say whether he was there the 27th day the day of the Sentence The Warrant for Summoning that
Court being shewed Coun. Is that Mr. Jones's Hand the Prisoner at the Bar set to that Warrant Nut. I have been acquainted with his Hand I do believe it is The Warrant for Execution was also shewed Coun. Is that the same Hand-writing Nut. Yes I believe it is he hath written several Letters to me Mr. Hartlib Sworn Court Mr. Hartlib do you know Mr. Jones's Hand Har. I never did see him write but I have seen several Letters out of Ireland and other Papers which have been supposed to be his Hand-writing This seems to be like that which was reputed to be his Hand Coun. Mr. Clark do you know Mr. Jones's Hand-writing Cl. I have seen several Letters of Col. Jones and these are like his Hand-writing I do believe they are his Hand-writing Mr. Jones looks upon them both and confesses they are like his hand-writing Coun. We have given our Evidence What do you say for your self before Charge be given to the Jury Jones I have little to say your Lordships have already heard what is to be said in this Case I have nothing to say to the point I am not fit to plead any thing especially in matter of Law I must wholly put my self upon the Lord and this Honourable Court and Jury Lo. Ch. Bar. Gentlemen of the Jury here is this Prisoner John Jones stands Indicted for that he with others did Compass and Imagine the Kings death that is the substance of the Indictment The Indictment sets forth several Acts each proving the Compassing and Imagining the Kings death One of them is that he did consult and meet together and propound how the King should be put to death The second is they did assume a power to Judge the King The third is that they did actually sit upon him And the last of them is that they sentenced the King and afterwards the King was murthered The whole substance is whether he did Compass and Imagine the Kings death If any one of these particulars that are alledged for the overt acts be proved you are to find the Indictment He hath confessed very Ingenuously that he did sit upon the King that he did sit in that Court and so there is an overt act proved if nothing else you ought to find him guilty of this Treason There is further Evidence though not any Evidence of his sitting the last day of the Sentence you have had three comparing similitudes of hands to prove that he did sign that Sentence that horrid Instrument whereby the King was ordered to be put to death one of them having received Letters from Ireland and others acquainted with his hand say that it is like his hand he hath so confessed the likeness of his hand but he saith he doth not remember he signed it As to you of the Jury there is no more to be considered if any one of the acts do appear true to you that is sufficient to find him guilty though he were not guilty of all but that he did Compass and Imagine the Kings death is clear in sitting and signing the Warrant for the other whether you shall find that he did sentence the King that must be left to you Whatsoever it is still it is the same if any one be proved you ought to find him guilty of the Indictment which is the Compassing and Imagining the Kings death I think you need not stir from the Bar for he hath confessed it The Jury went together and after a little Consultation returned to their places Clerk Are you agreed of your Verdict Jury Yes Cl. Who shall say for you Jury Our Foreman Cl. John Jones hold up thy hand Look upon the Prisoner at the Bar. How say ye is he guilty c. Foreman Guilty Cl. Look to him Keeper Cl. You say the Prisoner at the Bar is guilty c. and so you say all Jury Yes Cl. Set all that have been tryed this day to the Bar. Lord Ch. Bar. Mr. Scot I must speak a word to you you made mention of the Kings Proclamation for pardon and you did desire the benefit of it As I told you before so now again That it was not proper for us upon that Proclamation to give any allowance by way of Plea because the Pardon ought to be under the Broad Seal but God forbid but just and due Consideration should be had of it with honour so far as you are comprehended within it Though Judgment shall pass no Warrant for Execution shall go out against you till consideration be had how far you are within the Compass of that Proclamation and the like to you Mr. Scroop Clerk Adrian Scroop Hold up thy hand Thou hast been Indicted of High Treason and hast thereof been found guilty What canst thou say for thy self why Judgement should not pass for thee to dye according to Law Scroop I do humbly submit to his Majesties mercy Cl. John Carew Hold up thy hand Thou art in the like Condition with the former what canst thou say c. Carew I commit my cause unto the Lord. Cl. Thomas Scot Hold up thy hand thou art in the like Condition with the former what canst thou say c. Scot. I shall only say I do only cast my self upon his Majesty and pray mercy Cl. John Jones Hold up thy hand thou art in the like Condition with the former what hast thou to say c. Jones I pray his Majesties Clemency Cl. Gregory Clement hold up thy hand Thou standest Indicted of High Treason and thereunto hast pleaded guilty What canst thou say c. Clem. I pray mercy from the King Lo. Ch. Bar. You that are Prisoners at the Bar Ye see the Sentence of death is now to pass against you and for ought you know or we know yet may be nearer than you are aware How soon it will be executed we know not when you have reflected upon your own consciences many of you could not chuse but look there and see as in a glass the foulness of this horrid Offence It is the Murther of our most gracious Soveraign King Charles the First of blessed memory a Prince whom we such of us as had the honour personally to attend him knew was of such parts and vertues if he had been a private man more could not have been desired truly what he did as a King his Clemency how it appeared at first in this Princes time If you look what Peace and Prosperity we enjoyned in his days we will not find it in other Kings times You had not a Noble-man put to death save one and that for an Offence which must not be named A Prince that had granted so much You may remember what was granted before the beginning of these Wars Grievances complained of Star-Chamber High Commission Court Ship money The Claim of Stannery c. All these were taken away What Concessions he made after in the Isle of Wight how much he wooed and courted the people for Peace I urge this unto
you only that you would lay it to your hearts that you would consider what it is to Kill a King and to kill such a King If any of you shall say That we had no hand in the actual Murther of the King remember that they that brought him to the Bar were all one as if they had brought him to the Block as St. Paul confessed though he held but the Clothes he killed the Martyr Stephen You are shortly to appear before Gods Tribunal and I beseech God Almighty that he will give you and us all those hearts that we may look into our selves No fig-leaves will serve the turn whatsoever you have said now as Prisoners or allowed to say for your own preservation in point of Fact Notwithstanding it will not serve before God Almighty All things are naked before him Lay it to your hearts God Almighty though you have committed these foul and horrid sins yet he can pardon you as he pardoned that murther of David I speak it to you that you may lay it to your hearts I am heartily sorry in respect you are Persons of great Civility and those that I know of very good parts and this I must say That you will consider with your selves if any of you have been led away though it were with his own conscience if any of you did it as you conceived in conscience remember that our Saviour saith The time shall come when they will persecute you and kill you and think they do God good service I have the Judgment of Charity possibly some of you did it in this kind and this is less than doing it wilfully others might do it by a mis guided Conscience there is a spiritual pride men may over-run themselves by their own holiness and they may go by pretended Revelations Men may say I have prayed about such a thing I do not speak it with reproach to any If a man that should commit a Robbery or Murther meerly because he will and should come and say I have prayed against it and cannot understand it to be a sin as one in Shropshire did and yet notwithstanding killed his own Father and Mother try your own spirits you must not think that every Fancy and Imagaination is conscience Men may have a strange fancy and presumption and that they may call conscience Take heed there is a spiritual pride the Devil doth many times appear like an Angel of light do not rest upon that self-confidence Examine your hearts consider the Fact by the word of God That is the rule the Law is to be applyed to it Eccles 8. Where the word of a King is there is power and who can say unto him What dost thou that is to shew the power of Kings in Scripture Remember withal that of David in Psalm 51. that penitential Psalm when he had committed that horrid sin against Vriah Remember what he said being a K. Tibi soli peccavi Against thee only have I sinned Truly it being in such a Case I speak it as before God almighty according to my duty and conscience I wish most heartily as to your Persons I pray God to give you that grace that you may seriously consider it and lay it to heart and to have mercy upon you and to forgive you And this is all that I have to say and now not I but the Sentence of the Law the Judgment which I have to give against you is this You Prisoners at the Bar the Judgement of the Court is and the Court doth award that you be led back c. And the Lord have mercy on your Souls Clerk Cryer make Proclamation Cryer O Yes c. All manner of Person c. Jurors and Witnesses to appear to morrow morning at seven of the Clock at this place So God save his Majesty Session-House Old-Bayly Octo. 1â— 1660. The Courts being Assembled Proclamation was made Clerk of the Court. Set Cook Peters Hacker and Axtel to the Bar They being brought the Keeper was afterwards ordered to take back all except M. Cook Cl. John Cook hold up thy hand c. Jury Sir J. Whitchcot James Hawley Jo. Nichol of Henden Tho. Nichol F. Thorn Edw. Wilford Wil. Gumbleton Jo. Shelbury Tho. Jenney Tho. Willet Sir H. Wroth Rich. Cheney of the Jury called and Sworn Mr. Cook May it please your Lordship I do not know any of these Persons I beseech your Lordship that in regard the safety of my life depends upon the indifferency of these Persons that your Lordship may demand of the Sheriff to know whether he hath not heard them say or any of them that they are preingaged I hope they are not and thereupon I have not challenged any Lo. Ch. Bar. Sir the Officer reads their names out of his Papers I suppose he doth not pick and chuse them I would not have him and I am sure he will not do you any wrong in that particular Cook My Lord I am satisfied Cl. If any man can inform c. Cl. J. Cook hold up thy hand Cook My Lords I desire Pen Ink and Paper Lo. Ch. Bar. Give it him Cl. J. C. Hold up thy hand You that are sworn look upon the Prisoner You shall understand c. Here the Indictment was read as before Mr. Soll Gen. May it please your Lordships and you Gentlemen that are sworn of this Jury the Prisoner at the Bar stands Indicted for High Treason for Compassing and Imagining the death of the late K. of Blessed Memory The indictment sets forth That he together with others did assemble at Westminster Hall and sets forth many other particulars of sitting sentencing and of the consequent Death and Murther of the King The matter and charge of the Indictment is for Compassing and Imagining the Death of the King the rest of the Circumstances of the Indictment are but alledged as overt acts to prove the Imagination which only is the Treason This Prisoner at the Bar stands here Indicted for this Treason of Compassing and imagining the late Kings Death My Lord his part and portion in this matter will be different from those that have been tryed before you they sat as Judges to sentence the King and he my Lord stood as a wicked Instrument of that matter at the Bar and there he doth with his own hand subscribe and exhibite a charge of High Treason a scandalous Libel against our Soveraign to that pretended Court to be read against him as an accusasion in the name of all the people of England when he had done that he makes large discourses and aggravations to prove if it had been possible innocency it self to be Treason When he had done he would not suffer his Majesty to speak in his defence but still took him up and said that he did spin out delays and desired that the charge might be taken as if he had confessed it He pressed the Court that Judgment might be given against the King he was the man that did
be deterred from committing such Acts the Magistrate is bound to put him to death But where there is not such a thing there it is different though it is said the land is defiled that is where there is danger that the like may be committed again now all things are setled there is no danger at all now there can never come such a case as this again I say my Lord what I acted I did as a Counsellor I had no malitious intention in it Mr. Nutley bare testimony so far that I told him there was not intention of putting his Majesty to death I only did say that I desired them to do Justice and I hope what was done was their Act not mine and so I leave my self to your Lordships Court Silence commanded Mr. Sol. G. My Lords this Gentleman who is the prisoner at the Bar requires such an evidence of the Fact as may be evident he saith so evident as may be as clear as the Sun I think that evidence is not to seek but if he must never be convicted till he be so far convinced as to be speechless I believe we may stay long enough nevertheless if he be willing as he saith he is to pay his debts to political Justice we shall quickly give him the total sum That which he hath said hath been like a Lawyer the best that his Case will bear but withal it is a great aggravation to his Crime that he that knew the Law so well should so much transgress it He began Words do not make treason he mistakes his Charge is not for words Gentlemen his Charge is for compassing and imagining the Death of the King and the evidence of that Charge is meeting in that Assembly and the part that he bore in that Assembly And yet my Lords he will be much mistaken too under favour and with submission to your Lordships Judgement and those that hear him if they think that in all Cases it is a general rule that words are no Treason for when a man shall proceed to declare the imagination of his heart as to exhort and perswade men to effect that wicked thing The killing of the K. certainly there cannot be a greater overt act than these words nor a clearer evidence of such an imagination for out of the abundance of the heart the mouth speaks My L. to say that the demanding of Justice is not Treason though injustice do follow is a very weak gloss upon a wicked action The Subject matter was a Charge of High Treason against the King the conclusion of the Charge was a Protestation by which he saved to himself a Liberty to put in a new Charge if that was not sufficient upon the whole he desires that the King as a Traytor may be brought to Justice Judge you now Gentlemen upon the nature of this demand whether this were such a demand of Justice as might end in acquital Whether he that presses that this Charge may be taken pro Confesso did mean that when the Court had recorded it they should acquit him when they had done My Lords to say there are four Actors in this Case the Witness or accuser the Judge the Jury and the Executioner and that he is none of them and therefore in this Case he cannot be a Traytor still my Lord that is to beg the question for if he be one of them that did Assemble in the place and were any instrument of that Assembly he hath thereby given an evidence of an Overtact of his wicked heart when all is done this poor gloss amounts but to this I am none of those four Ranks that is there were others worse than my self and therefore I am none at all My Lord the thing that he hath mainly insisted upon is the Act of Indempnity my Lord he doth observe that his name is excepted in that Act That he doth hope that it is so pen'd as by the favour of the Parl. It may reach his Case he hath argued very much upon it and he speaks as if he did believe it himself But surely there is no colour for that interpretation that he should step out of this proviso by the very Act of Indempnity that was made on purpose to bring him in by-Name the words are provided that this Act nor any thing therein contained shall extend to Pardon or give any benefit to John Cook c. All which persons for their execrable Treasons in Sentencing to Death or signing the Instrument for the horrid Murder or being instrumental in taking away the precious Life of our late Sovereign Lord King Charles the First of glorious Memory are left to be proceeded against as Traytors c. First my Lord this general and clear answer I conceive is to be given that the Prisoner at the Bar being by Name excepted out of the Act of Indemnity by the proviso mentioned in it although the subsequent lines that follow be the reasons why the Parlim do except yet if he be within the very words of the Exception whether he be in the reasons that moved them to that exception is not material if he could distinguish that he was not instrumental in that sense to which he labours to restrain this Proviso he can but say this the Parliament was mistaken in their reason but not in their conclusion but he is directly within the exception and the reason of it too for the word instrumental goes as far as far can be and he is properly literally in the strict notion of the word an instrument of the death of the King The King could never have been brought to death if not to the Bar never had been sentenced if he had not been impeached that impeachment could never have been taken pro Confesso nor the impeachment it self delivered if he had not delivered the one and pressed the other He that brought the Axe from the Tower was not more instrumental than he and besides a Lawyer as he of great understanding and of good parts he knows very well there are no accessaries in Treason but he that Acts any part in so wicked a Conspiracy let him begin at what end he will he stands responsible for the utmost consequence of it and in effect the very penning of this proviso is an express Judgement of Parliament that he was instrumental but that is not to be pressed The next thing he doth insist upon is the Declaration of his Majesty that he sent from Breda which he saith he laid hold upon here lies the weight of his answer The King writes his Letter to the Parliament now sitting that he doth purpose for the quieting of the hearts of men that may be in doubt to pardon all persons all crimes of what nature soever either against himself or Royal Father excepting those which shall be byAct of Parliament excepted and my Lord he doth say and modestly presses that he doth conceive the meaning of that is to pardon all persons what
confesso was afflicted with the delays how angry he was when he was interrupted Is it not proved to you that he was at first against the thing and said it was a base business when he was engaged in it said that he was a Servant of the people of this Kingdome what doth he do at last when the thing had gone far he speaks that which is the only truth which I have yet heard from him He must dye and Monarchy then must perish with him from which Event good Lord deliver us Sir Edward Turner My Lord the substance of the defence that the Prisoner hath made at the Bar with much skill and cunning may be referred to two heads The first to the Statute of the 25 of Edward the 3. The second to the late Act of Oblivion for the first my Lord he saith that his fact is not comprized within that Statute saith he I did never conspire or imagine the death of the King nor did believe that would be a consequent of their actings It was expresly proved that himself did say that the King must die and Monarchy with him but Gentlemen though he had said true that it had not been proved or that he did not believe that would be a consequent yet my Lord I must tell you that every step of this Tragedy was Treason the summoning themselves that was Treason every proceeding upon that was Treason the summoning of their meetings in the Painted Chamber coming into Westminster-Hall every person as instrumental those that came to act the least part in that Tragedy were every one guilty of Treason what saith he I acted as a Councellour for my see It was that see that Judas had the 30. pieces of silver that made him hang himself He goes further and tells you there must be no semblable Treasons this is clear the conspiring and imagining the death of the King that 's the Treason that is mentioned in the Act Treason by the Common Law though this be not named the killing of the King yet all these proceedings are demonstrations to you there was a Secret Imagination to kill him Then to the Act of Oblivion his Argument is That because the Act saith that if they had Sentenced signed or been Instrumental in the death of the King that they should be excepted but it is not said or otherwise Instrumental that therefore this should refer to subsequent not precedent Acts that 's a strange Exposition take it Grammatically it hath the most large construction Instrumental more large than if they had said or otherwise for it doth comprehend every thing There having been so full an answer already I will be short I will not meddle with his civil debts but with his Political If a man kill another though he doth repent the Magistrate must do Justice in terrorem Though he doth repent I hope in God he doth so The Magistrates your Lordships must do Justice in terrorem I desire that Justice may be done upon that man He said it was no Treason to demand Justice against the King because he did but demand it I hope he will think it no unkindness in me to desire judgement against him because it is just Mr. Wadham Windham As I understand the Prisoner at the Bar the chief argument which he shelters himself under was his profession which gives a blast to all of us of the long robe I will not mince his arguments saith he here was a Court I was appointed Sollicitor and saith he for men to practise before those that have not a proper Judicature it is not Felony Murther or Treason I would not willingly mince his Argument and that I was appointed and the words dictated to me and a Councellor carrying himself within the compass of his profession is not answerable but if he will exceed his bounds his profession is so far from sheltring him that as it hath been opened it is very much an aggravation it is the duty of a Councellor to give Counsel if a man shall come to me and ask counsel and I shall counsel him to kill a man am not I accessary to that murder Words by his argument will not amount to Treason if the fact follows I am as guilty as if I did the fact in point of Treason it is all one as if I had done that very act If Mr. Cook did advise that Act or was instrumental he is as much a Traytor as the man in the Frock that did the Execution for his profession truly my Lord I do not think that a Counseller is always bound to know the patent of him that sits as Judge that will not be his Case here was no ordinary Warrant of Law to carry on Justice Grotius saith in case of necessity for carrying on Justice there may be many things allowed I pray where did Mr. Cook read of such a Court as a High Court of Justice there was never such a High Court of Justice read of in the Law then as this was a mock Court so under good favour it was a mock Jurisdiction Was there any Law under Heaven to put the King to death is it not out of the compass of all Courts whatsoever to do it and under good favour my Lord this is but to shelter a mans self under colour of Justice to do the most execrable Treason in the World I have no more to say to you Lo. Ch. Bar. I would repeat the Evidence and your answer to you if you have any thing new speak to it Cook This is new it was said by one that if there had been no charge there had been no sentence given in the Case I say that the Indictment or Charge is no part of the Tryal by the Statute of Magna Charta The Peers of the Land shall be tryed by Peers but are indicted by the Countrey I conceive by what they have said they do make me causal of the Kings death It is said in the Indictment there was a power I say this I did not assume any power it cannot be said if Council be come in to an unlawful power that he takes the power but stands with respect at the Bar. At Assises Judgement passes the Clerk of the Assises he is not instrumental in taking away life for that which Mr. Starkey should say that I should say The King must die and Monarchy with him I humbly beg that the Jury would take notice of what Mr. Nut. said that I told him there was no intention of taking away the Kingslife and besides it is but a single witness I hope there must be two witnesses in point of Law to convict a man of High Treason Lo. Ch. Baron Mr. Cook you said right but even now that if there was any thing in matter of Law which the Court knows of which may be of advantage to you they are of Council to you and so they ought to be Cook I think your Lordships L. Ch. Bar. I shall repeat the whole Evidence and
more unless he was present and see it but you owned the Charge and there your name is that besides the two Witnesses there is your own actions to prove it When two Witnesses shall swear it is like your hand and you own that Charge I must leave it to the Jury you say you did this after command the words were dictated to you the words were conceptis verbis appointed and ordered by the Court but the pressing was yours he stands upon delays let it be taken pro confesso demanding Judgement these were your words another man may dictate a thing but you are not forced to speak it you urged it owned it you demanded not in the name of the Court but in the name of all the People of England you say further that your demanding Justice is not within the Statute as I said before what can be the effect of demanding Justice but that the King should die upon those premises you say further that it was in behoof of the King as you would urge it to do the King a Courtesie in asking the King might have Justice but you did not name what Justice it was but you did him a Courtesie truly the King was but a little beholden to you for that request all the world knows what that demanding of Justice was it was to have the Kings head cut off you went as far as you could it ended with you when you demanded Justice that is as far as you could you cut off the head S. Paul when the Witnesses laid down the clothes at his feet he said I killed Stephen the Martyr You say further that in all Tragedies the Accuser or Witness the Jury the Judge and executioner are the only persons and you are none of these you are only of Council if Justice was not done what was it to you you said you did not assume a power there was only Eloquence required in the Councel it hath been truly said that this is a great aggravation to be of Councel against the King you said his Majesty was then a Prisoner and accused Counsel cannot be heard against the King you undertake to be Counsel against the King in his own person and in the highest Crime if the Council at the Barr in behalf of his Client should speak Treason he went beyond his sphere but you did not only speak but acted Treason you said you used not a disrespective word to the King truly for that you hear what the witnesses have said you pressed upon him you called it a delay you termed him not the King but the Prisoner at the Bar at every word you say you did not assume an authority it is an assumption of authority if you countenance and allow of their authority you say you do not remember you demanded Judgement against the King that is fully proved against you you your self asked the question whether you did say against the King he did not remember but others positively that you demanded Judgement against the King and Prisoner at the Bar you said that before Sentence there was not an intention to put the King to death to that Mr. Starkey swears that you expresly said the King must die and Monarchy with him and this before the sentence whereas you say this is but one witness that there is to be in Treason two witnesses but that there should be two witnesses to every particular that is an Evidence of the fact that is not Law if to one particular that is an Evidence there be one witness another to another here are two witnesses within the meaning of the Statute two witnesses to the Indictment compassing and imagining the Death of the King being accompanied with other circumstances this one witness if you believe him is as good as twenty witnesses because other overt acts are expresly proved by several witnesses You say next for the drawing of the Charge in right reason it ought to be counted for the service of the King First you do acknowledge and truly very ingenuously that in the time of peace to bring him to the Bar not being a prisoner is Treason you say it according to the Law and that you delivered the charge for the accelerating of the Charge and that it was not done by you traiterously you say the King was a Prisoner before and you say what hands he was in in the hands of men of power and violence it had been your duty to have delayed it not accelerated it that there might have been some means of prevention of that bloody act that followed if you knew that to be Treason to make him a prisoner Subjects do not use to make Kings Prisoners but Death follows You urge in the next place the Act of Indemnity and that you are not excepted for that you have made as much of it as the matter will bear yet you must consider First as a rule in Law that where they are general words when they come to be explained by the particulars you shall not include them within the general Mark the very words they are these Provided that this Act nor any thing therein contained shall extend to pardon discharge or give any other benefits whatsoever unto such and such among whom you are named nor any of them nor to those two persons or either of them who being disguised by Frocks and Vizards did appear upon the Scaffold erected before White-Hall upon the thirtieth of January 1648. All which persons these are the words First It shall not extend to you then it comes All which persons for their execrable Treason in sentencing to death or signing the Instrument for the horrid murther or being Instrumental in taking away the Precious Life of our late Soveraign Lord CHARLES the First of glorious Memory are left to be proceeded against as Traytors to His late Majestie according to the Laws of England and are out of this present Act wholly excepted and foreprized First as I told you before and as it was very well said by Master Sollicitor admitting the reason had been mistaken and that you had not been comprehended in the reason you are excepted out of the body provided it shall not extend c. Many times Laws do make recitals which in themselves are sometimes false in point of fact that which is the Law is positive words the other words are for the reason Excepting all which that is Master Cook which persons are excepted not for doing of it but for his execrable crimes in being instrumental It is clear without that if it were not so we say when a Sentence is or such a one or such a one the third Or makes all disjunctive Here are three Or 's first in sentencing to death or signing the Instrument then comes this or being instrumental in taking away the precious life of our late Soveraign c. this Or doth clearly exclude the other two or instrumental not only in point of death but further being neither a Sentencer Signer or being
instrumental in taking away the Kings life that is being any way instrumental Truly whether it be not instrumental to exhibit a Charge against him or complain of his delayes to ask Justice against him in the name of the people to do all this and desire that the Charge might be taken pro Confesso if this be not instrumental I know-nothing else Sentencing and signing Some signed the Sentence some the instrument for death the next degree of being Instrumental the highest degree of that is to accuse him to deliver in the Charge against him in the name of the people do it again and again be angry at the delayes The next thing is this that you did not do this falso or malitiose but for your Fee and that though there might be avaritia there was not malitia in it it was done by your Profession you were not Magisterial in it you thought the consequences that did follow would not follow If a man does but intend to beat a man and he dye upon it you know in Law it is all one You must understand there is a malice in the Law If a man beat one in the Streets and kill him though not maliciously in him but it is so in Law That you desire to have the benefit of the Kings Declaration that you did put in your petition proving the same that you were a prisoner before that the Commons in behalf of themselves and the people of England they craved the benefit of it which was granted excepting such as should be by Parliament exceptd and that the King should mention a Free Parliament for this it hath been fully answered to you and clearly by Mr. Sollicitor that you are not at all concerned in the Kings Declaration at Breda For first it is nothing in Law it binds in honour and we have given the same directions yesterday upon the like occasion that is that the Kings Declaration binds him in honour and in Conscience but it does not bind him in point of Law unless there were a pardon granted by the Broad Seal the thing is cleared to you what Parliament the King meant by it they were sitting at that time had acknowledged their dutie and allegiance to their King they went ad ultimum potentiae for a free and absolute Parliament whilst the King was absent though the King was away yet notwithstanding the King Declared whom he meant he directed one of those Declarations to our Speaker of the house of Commons and another to the Speaker of our Peers in this case it was loquendum ut vulgus it was owned by him as having the name of a Parliament it was done with great wisdom and prudence and so as it could be no otherwise they that were loyal subjects acting in the Kings absence he consenting to it the King owning that Authority so he was obliged in honour no further than his own meaning and words but there is another Clause in the act excludes all these persons The next thing is this you say the Statute of 25 Edward 3. and it is very true you say if it be any semblable Treason we were not to judge upon that unless they were the Treasons in the Act and it is most true now you would urge but this that this is but a semblable Treason but you are indicted for the compassing and imagining the Death of the King if these Acts did not tend to the compassing and imagining the Kings death I know not what does I am satisfied you are convicted in your conscience The next thing for you have said as much as any man can in such a Cause it is pity you have not a better you say though it was a Tyrannical Court as it is called but such a Court it was and there were Officers you say it had figuram judicii that aggravates the fact to you to your profession There is a difference between a standing Court and that which is but named to be a Court this was but one of a day or two's growth before and you know by whom by some that pretended to be only the Commons your knowledge can tell you that there was never an Act made by the Commons assembled in Parliament alone and you may find it in my Lord Cook that an Act by the Lords and Commons alone was naught as appeared by the Records Sir James Ormond was attainted of Treason the Act was a private Act by the King and Commons alone the Lords were forgot when the Judges came to try it it was void and another in Henry the 6. time you know this was no Court at all you know by a printed Authority that where a settled Court a true Court if that Court meddle with that which is not in their cognizance it is purely void the Minister that obeys them is punishable if it be Treasonable matter it is Treason if murder it is murder so in the Case of Martialsea and in the Common Pleas if a man shall begin an Appeal of death which is of a criminal nature and ought to be in the Kings Bench if they proceed in it it is void if this Court should condemn the party convicted he be executed it is murder in the Executioner the Court had no power over such things you speak of a Court. First it was not a Court Secondly no Court whatsoever could have any power over a King in a coercive way as to his person The last thing that you have said for your self is this that admitting there was nothing to be construed of an Act or an Order yet there was a difference it was an Act de facto that you urged rightly upon the Statute of 11 Hen. 7. which was denied to some God forbid it should be denied you if a man serve the King in the War he shall not be punished let the fact be what it will King Henry the 7. took care for him that was King de facto that his Subjects might be encouraged to follow him to preserve them whatever the event of the King was Mr. Cook you say to have the equity of that Act that here was an authority de facto these persons had gotten the supream power and therefore what you did under them you do desire the equity of that Act for that clearly the intent and meaning of that Act is against you it was to preserve the King de facto how much more to preserve the King de jure he was owned by these men and you as King you charged him as King and he was sentenced as King That that King Henry the 7. did was to take care of the King de facto against the King de jure it was for a King and Kingly Government it was not for an Antimonarchical Government you proceeded against your own King and as your King called him in your charge Charles Stewart King of England I think there is no colour you should have any benefit of the Letter or of the
equitie of the Act. They had not all the Authority at that time they were a few of the people that did it they had some part of the Army with them the Lords were not dissolved then when they had adjourned some time they did sit afterwards so that all the particulars you alledge are against you The last thing was this you say that it having pleased God to restore the King Judgement should be given for example for terrour to others that this could not be drawn into example again why because by the blessing of God peace was restored no probability that if your life was spared that it would be drawn again into example this is the weakest thing you have urged you must know the reason there are two things there is the punishment and example punishment goes to the prisoner but example to the documents of all others God knows what such things may be in after ages if there should be impunity for them it would rather make men impudent and confident afterwards if you have any more to say I will hear you if not I must conclude to the Jury You hear the evidence is clear for compassing and imagining the Death of the King you have heard what he has said and what he hath done he has within and examined Witnesses against the King that he was by at the drawing of the charge where it was drawn you hear he exhibited this charge in the name of the Commons assembled in Parliament and the good people of England and what this charge is it is high Treason and other high misdemeanors you find that he does complain of delays dosagain and again speak of this Charge desire it may be taken pro confesso in the close of all it was not so much he as innocent blood that demanded Justice this was more than was dictated to him You have heard the Witnesses he was perswaded to forbear acknowledged the King to be a gracious and wise King The Oaths alledged against him and you have heard his excuse I have nothing to say more I shall be very willing to hear you further I have not absolutely directed the Jury Cook I do humbly acknowledge your patience in hearing me and that your Lordships have truly and justly stated both proofs and my answer If your Lordships are pleased to lay aside these Acts or Orders or Authority whereby I did at that time truly conscientiously act and did think that it would bear me out if you lay aside that and look upon it as so many men got together without authority and aswell those that were instrumental though not sentencers or signers and that clause in the Act I confess I humbly make bold to say I have not received satisfaction in my judgment those very words of not so much I as the innocent blood cries for justice were dictated to me there was nothing at all left to me because his Majesty did not plead there was no Tryal that which I did was according to the best though it may be according to the weakest part of my judgment I have no new matter L. Ch. Bar. You have said no new matter unless it be worse than before for now you warrant that Authority Cook Do not mistake me my Lord I mean so far as to excuse me in the point of High Treason L. C. B. We delivered our opinions as to that formerly we were of opinion that the acting by colour of that pretended authority was so far from any extenuation that it was an aggravation of the thing the meeting by that authoty was Treason and in them that acted under them and approving of it the making of that trayterous pretended Act making the Proclamation sitting upon it they were all so many Treasons That was the reason why that was urged against you assuming upon you the power that was you approving of their power by acting under them so that there is nothing more to be said Gentlemen of the Jury you have heard the indictment was for compassing and imagining the death of the King you have heard the several Overt acts repeated and whether these are guilty of Treason to deliver in a charge against the K. such a one as that was in these words as against a Traytor Tyrant Murderer and implacable enemy to the Commonwealth in these very words to desire Judgement against the Prisoner then the King at the Bar angry at delayes to desire that the Charge might be taken pro confesso to have it expresly again again to demand Judgement if these be not Overt acts of compassing and imagining the Death of the King that which hath been said by the Witnesses it must be left to you I think you need not go from the Bar. Jury went together Silence is commanded Clerk Are you agreed of your Verdict Jury Yes Clerk Who shall speak for you Jury The Fore-man Clerk John Cook hold up thy hand look upon the Prisoner at the Bar how say you is he guilty of the Treason in manner form as he stands indicted or not guilty Fore-man Guilty Clerk Look to him Keeper Clerk What Goods and Chattells Jury None that we know of The Tryal of Hugh Peters the same 13. of October and at the same Bar. Clerk of the Crown SET Hugh Peters to the Bar he was brought accordingly H. P. Hold up thy hand thou standest indicted c. If you will challenge any of the Jury you must challenge them when they come to the book before they are sworn L. Ch. Bar. Mr. Peters You may challenge to the number of 35 peremptiorily but beyond that you cannot without good cause shewn and you may have Pen Ink and Paper Peters My Lord I shall challenge none Jury sworn 12. Sir Jer. Whitch James Hally Christo Abdy Nich. Rainton Rich. Cheyney Jo. Smith Rich. Abell George Terry Charl. Pickern Jo. Nichol. Fran. Dorrington Anthony Hall Cler. Hugh Peters hold up thy hand Look on the Prisoner you that are sworn c. Sir Ed. Turner to the Jury You have often heard repeated to you that the substantial part of the charge is the compassing and imagining the death of the King and all the rest will be but evidence to prove that imagination against the Prisoner at the Bar whom we will prove to be a principal actor in this sad Tragedy and next to him whom God hath taken away and reserved to his own Judgment and we shall endeavour to prove That he was a chief Conspirator with Cromwell at serveral times and in several places and that it was designed by them We shall prove that he was the principal person to procure the Souldiery to cry out Justice Justice or assist or desire those for the taking away the life of the King He did make use of his profession wherein he should have been the Minister of peace to make himself a Trumpeter of war of Treason and Sedition in the Kingdom He preached many Sermons to the Souldiery in direct
come to the matter Peters My Lord I cannot remember them Lord Ch. Baron Then I will remember you you are charged by this Indictment for compassing and imagining the death of the King and there is set forth sundry particulars to prove the overt act that you with other persons named in that Indictment did consult and meet together how to bring about the Kings death Then you are charged with several Acts of contriving and endeavouring the Kings death Overt acts that tend to the compassing or imagining the Kings death or any one of these to encourage the bringing on the King to his death the consulting or meeting together about it though you did not sit or sentence yet if you did any thing tending to that incouragement or otherwise abet it comfort or any wise ayd those trayterous persons that did it in the doing of it you are by law guilty of the whole fact the proposing and determining the King shall die though you were not he that actually put him to death yet notwithstanding if you did the other you are guilty of all if you shall speak any seditious speeches be they in the Pulpit or out of the Pulpit if you shall utter any thing that tends to sedition these are open acts which prove the imagination of the heart though imagination of the heart be Treason yet it cannot be proved but by open acts yet the imagination it self is Treason first you did conspire all the witnesses go along to prove this Dr. Young saith you came over from Ireland to his house and after five days that you were recovered of the Flux you staid there ten weeks you said your self there was enough if it were true to condemn you or any man I shall repeat it to you you told him a narrative that you came from New England from thence to Ireland and then you came to Holland with an intent to see how you might bring on the Kingdom to be a Commonwealth next he saith you spake very often against the King by way of disgrace against him and his family against the King and his off-spring this you said very often then you spake in vilification of Monarchical Government that this Commonwealth would never be at peace till 150. or three L's Lords Levites and Lawyers were taken away at which he replyed then they must be all Switzers Tinkers or Traytors he swears you were a Colonel and had a Commission that you would have had him accept of a Commission and that you had two Companies come from the West you told him the Parliament had an intent to secure Cromwel and your self but that you rid hard for it and then you confessed you agreed then upon his death to bring him to tryal and to cut off his head you did agree together and he believes it was your advice to Cromwel your answer was this that he was more violent than your self that he took upon him to be a spie and that he was no competent witness because he was under a temptation because you did not help him to his living and so conceived it to be malice you say he was used to take up such courses in his own Country the matter is not whether you had malice to the Kings life or Monarchy For the next one Gunter he swears that he was a Servant to Mr. Hildesly at the Star in Coleman-street and this was in 1648. he saith that many of the party of Cromwel did use to resort thither among the rest he saw you he said he came in to them and their discourse was about Charles Stewart and the Prisoner and did guess it was about the King that you were privy to it then he saih this was three daies before O. Cromwel went out of Town the effect of that is urged no further than this that you were so far of the Cabal that you were present with those persons Cromwel Ireton Rich and others you said I was there once with Mr. Nathaniel Fines Starkey he saith that at his Fathers house Ireton lay and was quartered there at Windsor before and when the King was Prisoner that you had your quarter there and Cromwel too in that Town The general meeting of the Councel of War was at his Fathers house there Ireton and his Wife lying there you came and resorted thither very often he saith then that it appeared that after the Councel of War had done many times Rich and you and Cromwel and Ireton were there together sometimes till two a clock in the morning he saith then that he did observe there was a fifth person he did not remember his name you sate up usually till two or three in the morning you had guards about you he saith further that Ireton being a Domestick he often discoursed with him and you came sometimes to be there too that there being some discourse concerning the King many times he did assert the Law concerning him that he was solutus legibus as to his person that you should say that it was an unequal law and that you did then discourse fully against the K. Government you said he was a Tyrant and not fit for that office that the office was useless chargeable and dangerous these very words he observed which afterwards were printed when they took away Monarchy He saith further that was their full and whole discourse he saith that his Father at Supper used to say that usual Grace God save the King Prince and Realm but afterwards that he heard the King was made a Prisoner that his Father altering the Grace he said God save his most Excellent Majesty and deliver him out of all his Enemies hands you rose up and said old Gentleman your Idol will not stand long That he did observe you often with them he saith further when Bacon was coming out and speaking some words concerning your frequent affronting the King you took up a staff and were ready to beat him and made an uproar it appears also of your being privy to Cromwels actions the next witness is Walkeley and he swears this against you that he was in the Painted Chamber the next day after the Proclamation was made and there he saw John Goodwin and You and there was an assembly and at the middle of the Table John Goodwin was and made a long speech or prayer that Cromwel would have had the people stay there but it was ordered they should be turned out at the end he saw you come out with the rest there it appeared you were in the consultation he saith he met the Army at St. James's and there when they were half past he saw the King in his Coach and there he saw Mr. Peters like Bishop Almoner riding immediately before the King and at St. James's Park he saw you marshalling the Souldiers that he was forced thereupon to go about he saith further that within a year or two after the Army was raised he heard you say these words If we can
were the subsequent overtacts to prove the same Axtell I hope you will not think it much to give me some more freedom for my own defence for life My Lord I must needs say though there was a force on the Parliament I am not to justifie it I was no Lawyer no Statesman no Councellor but a Souldier and if the General who had a Commission from the Lords and Commons and that some years before and after the King's Death be not guilty of Treason what I did was by command from my General and though I am charged with being in Arms in Westminster-hall and at such and such a place yet it was not a Voluntary Act for I was bound to obey my General I do humbly pray that I may have your Lordships Judgment in this point I must say it was from the sense of their exposition of the Law and of the Statutes and from the Authority that every one took up Arms for and served them and obeyed either the one General or the other I say it was under this very Authority and this must needs acquit me from all the guilt that is laid upon me L. ch Bar. You put your self upon the Judgment of the Court upon this which you call a point in Law First it is manifest that there is no excuse at all for Treason no man by his Commission can warrant the doing of an Act which is Treason you must take notice of the Authority whether it be good or no your Commission was not to put the King to Death but on the contrary to preserve the Kings life The Lords and Commons what they did we do not meddle with the Reason and Ground of what they did was the preservation of the Kings Person as well as the maintenance of the Laws and Liberties of this Nation they made Protestations Declarations and Oaths for the preservation of the King's Person and you could not but take notice of those things Now whereas you go about to shroud your self under the Lord Fairfax he had no such Power and therefore you can challenge no more then he had and to what you say concerning the Judgment of the Parliament there will be a great deal of difference between a particular Case and a Declaration of Lords and Commons there is nothing you have said that hath any thing of Force and God forbid you should make use of it But I must tell you you could not but notoriously know all those Transactions that were in the Army what the Army had done that they came up with Swords in their Hands and turn'd out whom they would you saw what the Lords and Commons had done that the Treaty was ready for his Birth And then you come up with your Mermidons with Force and Arms and Exclude the greatest part of the Members and then the Lords were laid aside it is true the Lords were not wholly dissolved but they would not suffer them to Sit nor Act at all and this was apparent to the Nation If men under colour and pretence of such things Namely that a few persons for so they were but an Eighth part of the House of Commons permitted to remain and of that Eighth part which was but 46 in the whole there were but 26 that Voted that Act which you say you obeyed but you say you obeyed the General you were not to obey the General in this Case for the Facts that you have committed are not charged as Acts of War you are not charged for bringing the Souldiers in but for those Violent Actions that you were guilty of there you made the Souldiers cry out Justice Justice Execution Execution you sent officiously for a Hang-man to come down to you your Commission gave you no power for this the Death of the King you know how it was designed you know the Act for the bringing in of that Commission as they call'd it to sit in justice was after the House of Commons was reduced to a very small Number and some of those dissenting too what you did Act under that Authority if you can justifie it in the Name of God say so but do not Engage the Nation in those things which they abhorred and by the mercy of God are laid asleep Mr. Justice Foster You begin at the wrong End you ought as all men ought to do First to answer the matter of Fact and not to put in these long dilatory Pleas till you have answered the matter of Fact whether those things charged on you be true or not then if you have any thing further to say for your self by way of excuse it will be the time to speak and not before Axt. May it please your Lordships I humbly conceive I am upon that method to the first part of the witness they accuse me for commanding my Souldiers in Westminster-hall then I must prove my Authority which I have been about to do and declared the Judgment of Parliament L. ch B. The Court have heard you with a great deal of patience and that which is not at all to the business Axtell I only refer this as to the Authority I humbly conceive you will give me leave to insist upon this and how far I may improve it for my own defence here is the Commission by which my Lord Fairfax acted and that after the King's Death and I acted by the same Authority he did I had not been at Westminster-hall but on the command of the General Court Doth that Commission Authorize you to cry Justice Justice and to look up and down to get Witnesses against the King is that in your Commission Axt. I am to serve and obey all my Superior Officers that is my Commission if I do not I die by the Law of War Court You are to obey them in their just commands all unjust commands are invalid If our Superiors should command us to undue and irregular things much more if to the committing of Treason we are in each Case to make use of our passive not active Obedience Axt. Under Favour it is not proved that I did either Compass or Imagine the King's Death that is matter of Fact Court Let us try that Axt. My Lord I did nothing but as a meer Souldier I had Authority from the General I would leave this before your Lordships and the Jury that what I have done hath been by Authority of the Genetal L. Hollis Sir a word to you If you could satisfie the Court that you had received a Commission from the General to do those things with which you stand charged it were something then were it proper for you to plead it and the Court to judg Pray take this along with you the General gave you no such command what you are charged with in the Indictment is for Compassing and Imagining the Death of the King and that by such and such overt acts as making your Souldiers cry out Justice and Execution for being active and forward in sending for the
I did it ignorantly not knowing what I did I shall not deny the matter of Fact but as to that I pleaded Not Guilty before it was in relation to that which I was ignorant of the Law of the Nation I have not been bred to it I humbly desire your Lordships to consider that what I did was done ignorantly not knowing the Law Counsel What was that Smith I do confess that I sat in the Court I do not remember that I signed or sealed both the Warrants being shewed him adds My Lord I confess the hands are like mine but whether they be so or no I know not Counsel Then we will prove it Is the Seal yours Smith I do not know Counsel Do you confess you were in the Painted Chamber the 29th of January Do you remember any thing of that Smith I do not certainly know that Counsel My Lord he hath said enough Shall the Jury doubt of that which he believes Smith I do not remember that I did write it Counsel My Lord we press it no farther he hath confessed enough Smith My Lord what I have don I beseech you consider I did it in ignorance not knowing the Law there were those about me that were able to call me who were then in Authority whom I dared not disobey if so I had been in danger also Counsel My Lords we have done be pleased to direct the Jury upon these several Evidences and Confessions Smith I beg one word I must declare this I can speak it seriously That from the first to the last of these unhappy Wars I have been a Man of trouble and sorrow I have been as many wiser Men have been run upon Error My Lord I know not what I have done I pray that this Court will be pleased to be a Mediator for me that I may have his Majesties favour and that this Petition may be received on my behalf He then delivered his Petition to the Court. I can rejoice for that happy settlement that is again in the Nations and declare chearfully my humble submission to that Government and desire the Lord will bless and prosper his Majesty and the Parliament in these Nations My Lord I rendred my self according to the Proclamation I shall say no more Lord Chief Baron Gentlemen you of the Jury These Prisoners that stand before you at the Bar that is Mr. Harvy Pennington Marten Millington Titchburn Roe Lilburn and Mr. Smith there are eight these are Persons who by the Act of Indempnity are to be tried for their Lives for the Treasons they have committed but no Execution is to be until the Parliament have further considered the Matter that is before us and you are to find the Matter of Fact What Mercy they shall find hereafter that is to be left as I told you to the consideration of the Parliament we are to proceed according to Law and Justice They are all Indicted for Compassing and Imagining the Death of our late Soveraign Lord Charles the First of most glorious memory And for that that hath been opened to you there are so many Overt Acts which are as so many Evidences to prove that Indictment which is the compassing and imagination of their Hearts to put the King to Death If any one of these be proved that is alone enough to prove the Indictment which is the compassing and imagining of the Heart that is the Treason the other are but Evidences If any thing burst forth from the Mouth or from the Hand as here it is these are Evidences of the imagination of the Heart for this you have heard by the confession of all of them that they did enough to find the Indictment they have all of them confessed their sitting upon the King in that traiterous Assembly which they called the High Court of Justice There is one of the Overt Acts expresly laid down in the Indictment they took upon them an Authority to consider how to put the King to death and that they did put the King to death but they were mistaken as some of them said that the actual murdering of the King was not their meaning But if they did that which tended towards it they are all guilty of Treason it is all one to you if they be guilty of any of these either Sitting Sentencing or Signing they are guilty and all of these except two are guilty of all these The Matter is clear and pregnant there is something hath been said by many of them with a great deal of expression of sorrow they did confess all but one the Fact and that which tended to their defence was ignorance but that doth not at all concern you It will be taken in its due time into consideration the several deportments of them all that is for another Judicature Your business is to find the Matter of Fact only this let me repeat unto you There is Mr. Harvy who hath pleaded several Matters which are not proper for you expressing his sorrow and penitence We shall not trouble you with that because they are for the consideration of another Court We ought all to have a tender compassion ought to be sorry with and for them that are sorrowful The like of Alderman Pennington Marten hath done that which looks forward more than backward I could wish with all my heart he had looked more backward that is to repentance of that which is past than obedience to that which is to come it is a trouble to repeat those things which he said himself and truly I hope in charity he meant better than his words were Millington he hath done the like with the rest confessed the Fact put himself upon Mercy wholly and said He was over-awed by the present Power This I repeat not as any thing to you who are to consider only Matter of Fact For Alderman Titchburn he hath spoken very fully and truly very conscienciously upon the whole Matter acknowledges his ignorance his sorrow his conviction in point of Conscience and I beseech God Almighty to incline his heart more and more to repentance They that crucified Christ to use his own words through ignorance found mercy Colonel Roe He confesses the same wholly and casts himself upon the King's Mercy and he thought it a blessed thing that the King was restored again and submitted wholly to mercy and so did Mr. Lilburn he said he went to his Chamber and mourned the day the King was beheaded I am very glad he had so early a sense of it William Smith He did it ignorantly he was not guilty thus far that was he was led on even like one silly Sheep that follows another by what relation I have heard of the Person at that time he was not thought fit to be of the Privy Council There is nothing more to say to you the Fact is confessed by them all It is so clear you need not go from the Bar. After a little consultation between the Jurors they returned to their places
the name of Daniel Axtel of Westminster in the County of Middlesex Gentleman I think none knew me to live there and inhabit there Lord Chief Baron I would not interrupt you this is past you should have made your exception to that as Master Matten did before concerning his name that should have been first done you have appeared and pleaded to that name and it was late of Westminster Axtell My Lord I have this to speak in arrest of Judgment that the Indictment being grounded upon that statute of the twenty fifth of Edward the third it is either mistaken or not pursued my Lords I did yesterday give you the Judgment of the Lords and Commons concerning the statute in relation to my case I say the Statute was mistaken or not pursued Lord chief Baron That was offered before Sir as to the matter of it Axtell My Lord I think not I am mistaken if it were Lord Chief Baron Then open it Axtell My Lord I do not find in that statute that words are an overt act words only L. Ch. B. This was over-ruled The things that you objected were these That there is not any overt act that is laid that could be applicable to your case if it were not particularly applicable you are found guilty by the Jury it would be nothing But there is an overt act you were present at the Court beating the Souldiers sending for an Executioner but for words if one man should say here is the King go and kill him this is Treason but you were guilty in all according to Law You being there and doing this you were not guilty onely of the words but of all that was done there is none but Principals in Treason What we say and do to you we well know we must answer before God Almighty for it Axtell I have but one word more truly I do appeal to God before whom I shall have another tryall I do not find my self guilty either of consulting contriving or having a hand in the death of the King I am innocent and I pray God that my innocent blood Lord Chief Baron Pray Sir Axtell May not cry Lord Chief Baron You are now to speak in arrest of Judgment Axtell I have no more I pray your Lordships favour and mercy to me William Hulet alias Howlet hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Hulet Truly my Lord I have little further to say If you had been pleased to give me further time I should have cleared my self I call God above to witness upon this account that I am as clear as any man I submit to the mercy of the Court. L. Ch. B. For that I do but cannot positively say it that at your request notwithstanding the Judgment will pass against you there may be some time till his Majesties pleasure be known before any execution will be upon that Judgment against you in the mean time we must proceed according to Law and Justice Proclamation for silence whilst Judgment is giving The Lord Chief Barons speech before the Sentence pronounced against the aforenamed Prisoners found guilty YOu that are Prisoners at the Bar you stand here in several Capacities yet all of you persons convicted of the detestable and execrable murder of our Soveraign Lord King Charles the first of blessed memory Mistake me not I do not say that you are all of you guilty of executing the fact but in Law and in conscience pro tanto though not pro toto you are guilty of it in that you prepared the way and means to it in that you brought his head to the block though you did not cut it off You are here in three sorts and I must apply my words accordingly and truely I do it with as much sorrow of heart as you have many of you being persons of liberal education great parts I say you are of three sorts There are some of you that though the Judgment of death is to pass against you by his Majesties grace and favour and the mercy under him of the two houses of Parliament Execution is to be suspended untill another Act of Parliament shall pass to that purpose that is all of you but three for those three the one of them that was last called William Heveningham he is in another capacity too for I presume some time will be given to him to consider of something relating to him before any order will be given for his execution there are two others of you and that is Dan. Axtel and Francis Hacker and for you as it yet stands before us there is no mercy there is no room for it but though you be in these several Classes yet what I shall say will concern you all because I do not know how it may fall with you none of us know how soon we may come to our deaths some probably sooner then others all must come to it you are now before the Tribunal of man but that is for Judgment for your offence here but there is another Judgment hereafter and a Tribunal before which both you and we must stand every man here and we must receive according to our work those that have done ignorantly by a serious and unfeigned repentance God Almighty may shew mercy unto them He hath reserved mercy even for the greatest offenders Saint Paul himself when he presecuted Christ ignorantly upon his repentance he found mercy those of you that are not yet convicted in your consciences of the foulness of this horrid fact look into your Consciences a little more and see if it be not a great Judgment for your former offence that you should be given over to a reprobate sense let me tell you a seared Conscience a bold confidence not upon good grounds is so far from securing the Conscience it may stifle perhaps the mouth of Conscience but it will rise up more in Judgment against you Here you have made your defence and I do not blame you for it life is precious but remember the thoughts of your hearts are open whether you did it ignorantly covetously or to get the Government into your own hands that I am not able to search into God and you only know that give me leave to say something perhaps I have repeated it by parts before God is my witness what I speak I speak from mine own Conscience and that is this Gentlemen because I saw it stuck with some of you that is that whatsoever the case was that by the Laws of these Nations the fundamental Laws there could not be any coercive power over your King I speak it again because I would as near as I could speak the whole truth and would not mislead any man in such a case remember that no power no person no Community or body of men not the people either collectively or representatively have any coercive power over the person of the King by the fundamental Laws for that
themselves an Authority to make Laws which was never heard before Authority to make Laws What Laws a Law for an High Court of Justice a Law for lives to sentence mens lives And whose Life the Life of their Sovereign upon such a King who as to them had not only redressed long before at the beginning of the Parliament all Grievances that were and were imaginable taken away the Star-Chnmber High-Commission-Court and about Shipping such a King and after such Concessions that He had made in the Isle of Wight when He had granted so much that was more than the People would have desired When these few Commons not onely without but excluding the rest of the Commons not onely without but excluding the rest but rejecting the Lords too that then sat when these few Commons shall take upon them this Authority and by colour of this their King Soveraign Liege Lord shall be sentenced put to Death and that put to Death even as their King and sentenced as their King put to Death as their King and this before His own Door even before that Place where He used in Royal Majesty to hear Embassadors to have His Honourable Entertainments that this King shall be thus put to Death at Noon-day it is such an Aggravation of Villany that truly I cannot tell what to say No story that ever was I do not think any Romance any Fabulous Tragedy can produce the like Gentlemen If any Person shall now come and shroud himself under this pretended Authority or such a pretended Authority you must know that this is so far from an Excuse that it is an Height of Aggravation The Court of Common-Pleas is the Common Shop for Justice in that Court an appeal is brought for Murther which ought to have been in the King's Bench the Court gives Judgment the Party is condemned and executed in this Case it is Murther in them that executed because they had no lawful Authority I speak this to you to shew you that no man can shroud himself by colour of any such false or pretended Authority I have but one thing more to add to you upon this head and that is which I should have said at first If two or more do compass or Imagine the King's Death if some of them go on so far as to Consullation if others of them go further they sentence and execute put to Death in this Case they are all Guilty the first Consultation was Treason I have no more to add but one Particular a few Words As you will have Bills presented against those for Compassing Imagining Adjudging the King so possibly you may have Bils presented against some of those for Levying War against the King Levying of War which is another Branch of the State of 25th of Edward the Third It was but Declarative of the Common Law it was no new Law By that Law it was treason to Levy War against the King But to levy War against the Kings Authority you must know is Treason too If men will take up Armes upon any Publick pretence if it be to expulse Aliens if but to pull out Privy Councellours if it be but against any Particular Laws to reform Religion to pull down Enclosures in all these cases If Persons have assembled themselves in a Warlike manner to do any of these Acts this is Treason and within that Branch of Levying War against the King This was adjudged in the late Kings Time in Berstead's case Queen Elizabeth's Henry the Eighth's former Times King Jame's Time much more 〈◊〉 men will go not onely to Levy War against the King but against the Laws all the Laws subvert all the Laws to set up new Laws Models of their own If any of these cases come to be presented to you you know what the Laws are To conclude you are now to enquire of Blood of Royal Blood of Sacred Blood Blood like that of the Saints under the Altar crying Quousque Domine How long Lord c. This Blood crys for Vengeance and it will not be appeased without a Bloody Sacrifice Remember but this and I have done I shall not press you upon your Oaths you are Persons of Honour you all know the Obligation of an Oath This I will say that he that conceals or favours the guilt of Blood takes it upon himself wilfully knowingly takes it upon himself And we know that when the Jews said Let his blood be on us and our seed it continued to them and their Posterity to this day God save the King Amen Amen His Lordships Speech being ended Thomas Lee of the Middle-Temple London Gentleman was called to give in the Names of his Witnesses The names of the Witnesses then and there sworn follow William Clark Esq James Nutley Esq Mr. George Masterson Clerk George Farringdon Hercules Huncks Dr. William King Martin Foster John Baker Stephen Kirk Richard Nunnelly John Powel John Throckmorton John Blackwel Ralph Hardwick Thomas Walkley Gentleman Holland Simpson Benjamin Francis Colonel Matthew Thomlinson Griffith Bodurdo Esq Samuel Boardman Robert Carr Esq Richard Young Sir Purbock Temple John Rushworth Esq John Gerrard John Hearn Mr. Coitmore Mr. Cunningham Mr. Clench Willinm Jessop Esq Edward Austin Darnel Esq Mr. Brown Thomas Tongue John Bowler Mr. Sharp Mr. Lee. Robert Ewer John King Edward Folley Mr. Gouge Anthony Mildmay Esq The Grand Jury returned the Indictment Billa Vera. Court adjourned to the Old-Bailey 10th of October The 10. of October 1660. SIR John Robinson Knight Lieutenant of his Majesties Tower of London according to his Warrant received delivered to Mr. Sheriff the Prisoners hereafter named who were in several Coaches with a strong Guard of Horse and Foot conveyed to Newgate and about nine of the Clock in the Morning delivered to the Keepers of that Prison and thence brought to the Sessions-house in the Old-Baily London where the Commissioners of Oyer and Terminer were in Court assembled and where their Indictment was publickly read by Edward Shelton Esq Clerk of the Crown Sessions-House in the Old-Baily 10. October 1660. THE Court being Assembled and Silence commanded the Commission of Oyer and Terminer was again read After which Sir Hardress Waller Collonel Thomas Harrison and Mr. William Heveningham were brought to the Bar and commanded to hold up their Hands which Sir Hardress Waller and Mr. Heveningham did but Harrison being commanded to hold up his Hand answered I am here and said My Lord if you please I will speak a Word Court Hold up your hand and you shall be heard in duetime Mr. Harrison the course is That you must hold up your hand first And then he held up his hand The Indictment was read purporting That He together with others not having the fear of God before his Eyes and being instigated by the Devil did Maliciously Treasonably and Feloniously contrary to his due Allegiance and bounden Duty sit upon and condemn our late Soveraign Lord King Charles the First of ever Blessed Memory and also did upon
Clerk George Fleetwood Hold up thy hand What saiest thou Art thou guilty of this horrid Treason whereof thou standest Indicted and art now Arraigned or Not guilty George Fleetwood My Lord I came in upon his Majestie 's Proclamation Clerk Art thou Guilty or Not guilty George Fleetwood I must Confess I am Guilty And thereupon he delivered a Petition in to the Court which he said was directed To his Majesty and the Parliament and the Court did receive it accordingly Clerk Set him aside Clerk Simon Meyn Hold up thy hand What saiest thou Art thou guilty of this horrid Treason whereof thou standest Indicted and art now Arraigned or Not guilty Sim. Meyn Not guilty I come in upon His Majestie 's Proclamation my Lord. Clerk How wilt thou be Tried Sim. Meyn By God and the Countrey Clerk God send thee a good Deliverance Clerk James Temple Hold up thy hand What saiest thou Art thou guilty of this horrid Treason whereof thou standest Indicted and art now Arraigned or Not guilty James Temple Not guilty Clerk How wilt thou be Tried James Temple By God and the Countrey Clerk God send thee a good Deliverance Clerk Peter Temple Hold up your hand How saiest thou Art thou guilty of the Treason whereof thou standest Indicted and for which thou art now Arraigned or Not guilty Peter Temple Not guilty Clerk How wilt thou be Tried Peter Temple By God and the Countrey Clerk God send thee a good Deliverance Clerk Thomas Wait Hold up your Hand How saiest thou Art thou guilty of the Treason whereof thou standest Indicted and for which thou art Arraigned or Not Guilty Th Wait. I desire to be heard a word or two Court There is a Rule of Law which is set to us and you that in all these Cases you are to plead Guilty or Not guilty When you have Pleaded if Not Guilty you may speak what you will in its proper time Clerk Are you Guilty or Not guilty Th. Wait. I pray let me be heard a word I am very unwilling to spend time knowing you have a great deal of Business I am very unwilling to deprive my self of my Native Right I shall speak nothing but that which is Truth Court Do not Preface then but speak what you would say Th. Wait. My Lord my Case is different from the rest Court Whatsoever the Case he you have no Plea to us but guilty or Not guilty We can go no other way The Law sets our your Plea Th. Wait. My Lord I would speak one word There was a Great Peer of this Nation Indicted at Northampton within these two years for killing a man The Judges there Court You must Plead guilty or Not guiley Pray who are you that should take this upon you more then all the rest You must go the ordinary way guilty or Not guilty Are you guilty or Not guilty We do not intend to prevent any thing you have to say but it must be proper Clerk Are you guilty or Not guilty Th. Wait. I cannot say I am Guilty Court How then Th. Wait. I am Not guilty Clerk How wilt thou be Tried Th. Wait. By God and the Countrey Clerk Good send thee a good Deliverance Clerk Hugh Peters Hold up thy hand How saiest thou Art thou guilty of the Treason whereof thou standest Indicted and for which thou art now Arraigned or Not guilty Hugh Peters I would not for ten thousand Worlds say I am Guilty I am Not guilty Clerk How will you be Tried Hugh Peters By the Word of God Here the People laughed Court You must say By God and the Countrey Tell him you that stand by him what he should say if he doth not know Clerk How will you be Tried Hugh Peters By God and the Countrey Clerk God send thee a good Deliverance Clerk Dan. Axtel Hold up thy hand What saiest thou Art thou guilty of the Treason whereof thou standest Indicted and for which thou art now Arraigned or Not guilty Dan. Axtel May it please your Lordship I desire to have the freedom of an English-man that which is my Right by Law and inheritance I have something to offer in point of Law Clerk Art thou Guilty or Not guilty Dan. Axtel My Lords give me leave to speak For the Matter of the Indictment I conceive is upon the King's Death that there is a Commission of Oyer and Terminer for you to sit But in regard it was in pursuance of an Act of Parliament I conceive no Inferiour Court ought to judge of it I desire Councel it being of great and eminent Concernment in Law That ever any Judges or any Inferiour Court should judge of the Powers and Priviledges of a Parliament and I pray that Councel may be assigned me Clerk Are you Guilty or Not guilty Dan. Axtel If the Court over-rule me and I shall not have my Liberty as an English-man Court The Course of Law is this No man can Justifie Treason If the matter which you have to say be Justifiable it is not Treason if Treason it is not Justifiable Therefore you must go to the ordinary course of the Law You must Plead Guilty or Not guilty Dan. Axtel I can produce many Precedents Cour Are you Guilty or Not guilty The Language is put into your Mouth You have no other words to express your self by at this time but Guilty or Not guilty Dan Axtel Judg Heath had Councel assigned him upon the same Case Court That is very strange the same case What was it for killing a King Dan. Axtel If the Court will over-rule me I cannot help it Mr. Solicitour Gen. It may be this Gentleman may be deceived by a Mistake It may be he knows not the Law which your Lordships may be pleased to acquaint him with That to stand Mute in High-Treason is all one as to Confess the Fact and will have the same Sentence and Condemnation upon them as if they had Confessed it Lord Chief Baron Then I 'le tell you the Law He that doth refuse to put himself upon his Legal Trial of God and the Countrey is a Mute in Law and therefore you must Plead Guilty or Not guilty Let his Language be what it will he is a Mute in Law Dan. Axtel I do not refuse it Court Then say Dan. Axtel I am Not guilty Clerk How wilt thou be Tried Dan. Axtel By twelve lawful men according to the Constitutions of the Law Court That is by God and the Countrey Dan. Axtel That is not lawful God is not locally here Clerk How wilt thou be Tried You must say By God and the Countrey Dan. Axtel By God and the Countrey Clerk God send you a good Deliverance Lord Chief Baron Mr. Axtel have you your Papers again Dan. Axtel Yes my Lord. Lord Chief Baron When your Indictment is read the second time when you come to your Trial you may take what Notes you please The Court then Adjourned to the same Place till the next morning seven of the Clock
begin with that first we are upon our Oaths the Witnesses that are against you I took notice of them you have had a great deal of Liberty which you have made use of civilly but Sir for the fact I think it is a great deal more full than as you have answered First The first witness produced against you was Mr. Nutley I shall speak only the material parts that concern your Charge He swears expresly that he saw Price a Scrivener writing a Charge in the Court of Wards that he saw his Charge in your hands He saw afterwards when the King of blessed memory was brought as a Prisoner that there you delivered the Charge in there is more than words you delivered that Charge in that alone is an overt act then if ther were nothing else in that Case that a man in a paper should call the King Traytor Tyrant Murtherer and implacable enemy as there the words are and he deliver this paper and this be read if this be not an overt act of imagining and compassing the Kings death I do not know what an overt act is and he gives further evidence if I mistake take free liberty to interrupt me Cook Sir they were not my words but their words that commanded me Lo. Chief Baron This I say that this very thing alone such a paper approved by you delivering this paper to an Assembly requiring it may be read this is an overt act to prove the imagination of your heart for the Death of the King the reason is if the King should be a Tyrant a Traytor c. it stirs up hatred in the people and the consequences of that hatred is the death of the Prince The next thing that Mr. Nutley said was this He said that you demanded positively Judgement against him against the blessed King then Prisoner at the Bar. I remember you said that you did demand Judgement but that you did not demand Judgement against the King take it so whether you did or not though you shall find in some other Witnesses that I shall repeat that you said Judgement against the King the consequence will be the same who could you demand Judgement against but the King he was the Prisoner because he did demand a further hearing by the Parliament you urged that his Charge might be taken pro Confesso then it must needs be Judgement against the K. it is effectively and implicitely the same He went further and that was that being your friend acquaintance acknowledging your parts as a Lawyer which truly I do very much know my self and do know this Gentleman to be a man of very great parts in his profession he had familiar acquaintaince with you he told you what a base business it was and you did your self acknowledge it said the Prisoner to M. Nutley himself it is a base business but they put it upon me He did discourse further to him of the Oaths of Allegiance Supremacy which he knew very well no man better this Gentleman he very ingenuously confessed it saying I confess it is so they put me upon it I cannot avoid it but then excuses it I am the servant of the people Afterwards he pressed the K. to answer positively whether guilty or not guilty the pressing of the K. to answer what was it in effect but to hasten Judgement and that was to hasten his death so that that is the substance of Mr. Nutley's testimony that he pressed Judgment Judgement was demanded by the Prisoner now at the Bar it is not only demanded but pressed and all the current of the witnesses at several days are to this purpose it is true that I may repeat the whole for you and against you that this Gentleman the Prisoner at the Bar when Mr. Nutley did urge this to him said he hoped they did not intend to take away the Kings life I verily believe they do not intend to take away the Kings life I hope they do not But Mr. Cook it is no excuse to say you hope or you believe they will not c. How far it may be in such a crime something in extenuation in foro Coeli but not in foro Civili you opened it your self that if a man should go about to take the K. Prisoner it is Treason the Law adjudged that to be Treason when you knew they would condemn him as a Tyrant Murtherer c. you must easily believe what would follow such a condemnation Truly death that is no colour of excuse in foro Civili Farrington swears to the same purpose that he saw you having a Parchment in your hands delivering it in prayed it might be read as a Charge of the People you did not speak I deliver this in as from those that deliver'd it to me that was not in the paper that you said of your self My brethren will tell you all this is an apparent point of the imagination of your heart at that time he swears the same thing that you did desire it might be taken pro Confesso Master Bodurdo is the third he swears the same thing too that you exhibited a charge of High Treason against the Prisoner then at the Bar tells you the substance of it he saith that all but the first day you demanded Judgement for not pleading to the Charge he adds that you complained of the delaies I am sure that was not dictated to you that could not be thought that you should desire Judgement for the Prisoner It is very true which you say for your self in that that you did not demand it first till it was demanded by the Court Master Bodurdo tells you and so it was granted the first day that Bradshaw onely said it but afterwards that you alwaies demanded it The next was Master Herne he swears the same words again that you did in the Name of the Commons assembled in Parliament and the People of England exhibit a Charge c. These are your own words if you did exhibit a Charge against the King to exhibit a Charge of High Treason the very thing followed If it were so there was death so certainly there cannot be a greater expression of the imagination of a mans heart than that is it is true you asked then a question and that was whether that that you concluded was not that you desired them to proceed according to Justice it is true the words of the Charge are so but before you come to conclusion you charge him as a Traytor Tyrant c. Communis Hostis after you had given that Charge you demanded Justice those that spit in his face they demanded Justice every one knew what belonged to that Justice Then Baker he swears positively that you did exhibit the Charge in this manner he said this that you said you had exhibited a Charge of High Treason c. and that the King sought delays there is your insisting upon it he sayes further that you said these words
that you did desire Judgement should be given against him and not so much you as the blood that had been shed that cryed for Judgement truly whether that was a Judgement that you intended for acquital that must be left to the Jury You asked because I will repeat it in order as my memory will give me leave whether there was any other words in the charge than was in the Proclamation Mr. Cook Whether there was any other words or no that differed in the Proclamation as it was a great sin and foul fact in the Proclamation so it was as foul in the Charge Master Masterson swears the same too he heard you say the second day you had delivered a charge the day before against the King and that he had delayed his answer you desired he might plead guilty or not guilty the last day that you did in the names of the Commons Assembled in Parliament and the people of England demand Judgement against the King and then another swears those words Judgement against the Prisoner at the Bar which was the King Burden swears you examined him as a Witness against the King in what place he was with the King It seems he was in the King's Army he swears you gave him an Oath it is testimony fit to be believed but however if you did not give the Oath by what you say your self you may be by and asked him the question Master Starkey he tells you that during the Tryal and before the Sentence that you being an old acquaintance of his in Grayes-Inn speaking with him he spake like a friend to you I hear you are up to the ears in this business and whereas you talk of the people there is a thousand for one against it that you should tell him again You will see strange things but you must wait upon God these words of waiting upon God are words of that nature people do use them now adaies when they would do some horrid impiety which hath been the sin of too many it is but a canting language that is the best term I can give it you told him then He must die this was before the Sentence that is to be observed Gentlemen of the Jury you say you did not know of the Sentence you said He must die and Monarchy with him you must here know that some of those persons that sate upon him said the King was a gracious and wise King and as Mr. Cook did say and they were the best words they spoke and I think he thinks so in his conscience but in conclusion He must die and Monarchy must die with him others said they did not hate King Charles but they hated Monarchy and Government but Monarchy was the thing that they would behead I think I have done with the Evidence that was given against you the Indictment it self was read the Overt acts was the meeting propounding consulting about it It appears he was in the Chamber about the Charge that he did propound it he delivered the Charge it appears withal that he demanded Judgement he desired the King might answer or that it might be taken pro confesso these are overt acts to declare the imagination of his heart The answer of Mr. Cook I will repeat it as clearly as I can because nothing shall go to the extenuating of the fact but it shall be spoken Mr. Cook in your answer your defence that you make you set forth the heads of this Indictment and you set them forth very truly the heads are the aggravations of the Indictment the Indictment was the compassing and imagining the death of the King you said it was upon these grounds that you did propound abet and consult the death of the King that you with others did assume power and authority to kill the King that thereupon a person unknown in a Frock did accordingly kill the King You say to the first part if it did not appear that you did advise the death of the King that you were not guilty for that Sir as I told you before taking them either complexly or singly if any of the particulars reached to one of these acts it was enough but it reaches to all you required Judgement against the King as a Traytor and that with a reason and certainly death must follow you say you were appointed to give your advice you had a Proclamation first for Tryal of the King you had the Order of Jan. 10. whereby you were appointed to give your advice if it were so it will be no excuse at all the Proclama gives you no warrant at all he that obeys so wicked a Proclamation it will not save him it appears you were privy to this before the Proclamation if you were not at all when such a thing as this is such a Proclamation and Act and such a manner of Tryal as I believe though you have read very much you never heard of such a thing in our Law or foreign Nations That you thereupon should take upon you to be of Council against the King it aggravates the fact other men may be impudent ignorant but you that were a learned Lawyer your being of Council doth aggravate the thing You say Secondly by Law words will not amount to Treason for that I would not have that go for Law by no means though it be not your Case for you are not indicted for words but words are Treason and Indictments are often for it but the difference is this The Indictment is not for words but compassing and Imagining the death of the King words are evidences of the compassing imagining the Kings death It is the greatest evidence of the imagination of the heart Words do not make a Treason that is if it be by inference or consequence but reductively but if it be immediately I shall say to a man go kill the King by theat which is an absolute immediate necessary consequence to say this is not Treason I would not have that go for Law your Case is not for words but for delivering a Charge the ground that you speak of words may make a Heretick but not a Traytor it was a witty saying but you have no sufficient authority for it these are words put in writing we all know if a man put his words in writing if a man speak Treasonable words and put them in writing they have been several times adjudged Treason and so in my Lord Cook 's 3. Institutes the Case of Williams of the Temple there was a Book of Treason in his own Study of his making and he was indicted for it words put in writing is an express evidence of the imagination of the heart you say it was dictated to you but when words are written in a Charge and your name to it which I had almost forgotten that 's more than words the Witnesses swear the likeness of your hand they do but swear the likeness of your hand no man can swear
actually guilty of putting the King to death nay admitting in charity you had no intent to go as far as you did you are by the laws of Christ and this Nation guilty of high Treason in that you that are a Lawyer know very well and I speak it that you may lay it to your heart in the convictions of your conscience I must say to you as Joshua said to Achan my son give glory to God and confess and it would become you so to do you know very well it is the law of this Nation that no one house nor both houses of Parliament have any coercive power over the King much less to put him to death you know as you cited very well that the imprisoning of the King is Treason You know both of you this is an undoubted truth the rule of Law is that the King can do no wrong that is the King can do no wrong in the estimation of Law he may do some particular Acts as a private person but he can do little prejudice in his own person if he would hurt any it must be by Ministers in that case the Law provides a remedy if he doth it by Ministers they must answer for it The King of England is one of those Princes who hath an Imperial Crown what is that It is not to do what he will no but it is that he shall not be punished in his own person if he doth that which in it self is unlawful Now remember this when you took the oaths of Allegiance and Supremacy I presume you both did so what was your oath of Supremacy It was this that the King was the only Supream Governour of these Realms it goes farther as he was Supream Governour so he was the only Supream Governour that excludes Coordination you swear farther that you will to the utmost of your power defend the King against all conspiracies and attempts whatsoever truly you that were a Lawyer when you had thus sworn your fee could be no excuse against what you had sworn to We know that the King in his politick or natural capacity is not only salus populi but salus Reipublicae The Law hath taken care that the people shall have justice and right the Kings person ought not to be touched the King himself is pleased to judge by the Law you see he doth by Law question the death of his Father he doth not judge it himself but the Law judges it Mr. Peters knows very well he subscribed the 39. Articles of Religion look upon them that were made in 1552. and upon those Articles that were confirmed in 13. Elizabeth the King is there acknowledged to have the chief power in these Nations the medling with the King was a Jesutical doctrine This I speak not that the King should or ought to govern but by the Fundamental laws of the land they that keep within the bounds of the law are happy you that are a Lawyer know this in point of law and you that are a Divine know this in point of Divinity You both know the truth of it and when you have thought upon it I hope you will reflect upon that horrid crime the shedding of Royal Blood You see he had granted all those grievances of the people taken them away secured them for the future and at this very time when this horrid act was done you see he had granted all at the desire of the people he had made those concessions such as were it not in respect of others more than those that treated themselves they thought was more than could be expected by the Nation You that had a hand in the Kings death it falls upon you the guilt of it because you were some of those instruments that assisted those persons that broke the Treaty prepare your selves for that death which you are to die it is a debt which we all owe to nature if in this case there is something of shame comes to you it is that you must take as part of the reward of your sin The only work I have now to do is to pronouce the Judgment and this is the judgment of the Court and the Court doth award That both of you be led back to the place from whence you came and from thence shall be drawn upon a hurdle c. and the Lord have mercy upon your souls Cl. Cryer make proclamation Cryer O yes c. All manner of persons c. and all Jurors and witnesses are to appear at this place to morrow morning at seven of the Clock in the morning upon pain of 100. l. a piece So God bless King Charles c. 15. Octo. 1660. at the Sessions House in the Old Bailey The Tryal of William Howlet Memorandum that the Bill of Indictment against William Hewlet alias Howlet was found at Hickes-hall 12 Octob. instant Proclamation of the Court being made Clerk of the Crown SET William Hewlet alias Howlet to the Bar which was done accordingly Cl. William Hewlet alias Howlet hold up thy hand Thou standest Indicted of High Treason in the County of Middlesex by the name of William Hewlet alias Howlet for that thou c. How sayest thou art thou guilty of the High Treason whereof thou hast been Indicted and art now arraigned or not guilty Hewlet I am not guilty my Lord. Clerk How wilt thou be tryed Hewlet By God and the Country Cl. God send thee a good delivery Set him aside Octob. 15. 1660. Clerk of the Crown Set Axtell to the Bar which was done accordingly Clerk Daniel Axtell hold up thy Hand Axtell Pray my Lord let me have Pen and Ink. L. Ch. Bar. Give Mr. Axtell Pen and Ink. Cler. Daniel Axtell these men that were last called of the Jury are to pass c. if you will challenge them or any of them you must challenge them when they come to the Book before they are sworn L. Ch. Bar. Do you know how many you have liberty to challenge because I would not have you misinformed 35 you may challenge peremptorily and no more Axtell I thank you Lordship L. Ch. Bar. Unless you have any particular cause if so you may challenge more Axtell I confess I am wholly ignorant of the law John Kirke John Smith Thomas Morris Ralph Halsell John Sherecroft Francis Beale Robert Cromwell John Gallyerd John Shelbury George Rithe were called and by the Prisoner challenged Thomas Bide Charles Pitfield Robert Sheppard William Dod Thomas Vsman William Maynerd George Plucknet Samuel Harris John Nicoll of Hendon Henry Marsh Thomas Bishop Thomas Snow in all 12 were admitted and sworn of the Jury Cler. of the Crown If any man can inform my Lords the Kings Justices c. Cl. Daniel Axtell hold up thy hand Look upon the prisoner you that are sworn and harken to your charge you shall understand that the prisoner stands Indicted c. K. Council May it please your Lordships and you Gentlemen that are Sworn of this Jury The High Court
of Injustice that was Erected for Tryal of the late King it had all the formalities of a Court to put in Execution that bloody Act they had their President their Council their Chaplain and their Guards some of their Judges have been already Tryed one of their Council and their Chaplain Now my Lord we come to the Guards and this Gentleman at the Bar that is now the Prisoner He was Commander of that Black Guard that cruel and bloody Guard The Indictment is That he did Imagin and compass the Death of the King there be several overt acts that are mentioned in the Indictment as Evidences of that Imagination as the consultation to bring him to Tryal the Actual bringing him to Tryal and the Bloody Execution upon the Scaffold Our Evidence shall be this That during the time of the Tryal the Prisoner at the Bar did Command the Souldiers in Westminster-Hall himself did keep the Entrance into the Court and when Bradshaw did speak to the King and told him he trifled away time and required his answer to the charge exhibited in the Name of the Commons of England Assembled in Parliament and the good People of England that a Noble person in the Gallery there cryed out it was a Lye saying that above half the Commons disowned it saying where are these good people it is a lye Oliver Cromwel is a Traytor this bloodly Fellow commanded the Souldiers to shoot her he did several times command and encourage the Souldiers to cry out Justice justice and the last day of that horrid Tryal called by them the day of Judgement he likewise commanded them to cry out Execution Execution and when some of them would not do it he had the Valour to Beat them My Lords and Gentlemen of the Jury if we prove any of these particulars to demonstrate unto you that he was Guilty of compassing and imagining the King's Death it is equal as if we had proved he did Actually cut off the King's head Mr. Bodurdoe Mr. Nutly Mr. Harrington Sir Purback Temple Mr. Sympson Mr. Baker Mr. Huncks and Mr. Jeoner Sworn Coun. Mr. Symp. tell my Lords and the Jury who had the command of the Souldiers during the Tryal of the King in Westminster-Hall Sym. My Lords as I said before in the Case of Mr. Peters Col. Stubberd and Col. Axtel had the command of the Souldiers below Stairs near that which was called the High Court of Justice Axtell I desire to know his Name my Lord Sym. My Name is Holland Sympson Coun. Did you see him there commanding the Souldiers Sym. There was a kind of a Hubbub in the Court there was a Lady they said it was the Lady Fairfax who at the Exhibiting of the Charge against the King said to be in the Name of the Commons and people of England She spoke out aloud and said it was a lye that not half not a quarter of the people Oliver Comwell is a Rogue and a Traytor they called for a Guard this Gentleman he was called and brought up some Musqueteers and commanded his Souldiers to Present and give Fire against the Lady and commanded her to Unmask Axtell What Lady was it I desire to know Sim. She went by the name of the Lady Fairfax I know not whether it was so or no it was the common report it was she Cl. Mr. H. pray tell my Lord what you know of the Prisoner at the Bar. Huncks My Lord to say positively any thing of the man touching his command I cannot but only that morning the King Dyed he came into the Door of the Room where Colonel Phayre Colonel Hacker Cromwell and my self were Ireton and Harrison lying in bed together in the same Room and then he stood at the Door half in and half out I refusing to Sign an Order for Executing the King as Cromwell ordered me and some little cross Language having passed saith the Prisoner at the Bar Colonel Huncks Iam ashamed of you the Ship is now coming into the Harbour and will you strike Sayle before we come to Anchor This I appeal to your self but for crying out Knock them down Shoot them I know not who it was the Officers cryed Justice and some of the Souldiers but I profess I know not who it was particularly but they cryed Justice and then I fell a trembling for I was afraid of the King but these were the words he used to me will you strike sayle c. Axtell My Lord I desire to ask him a question L. Ch. Bar. Ask him what you will Axtell If I am not in the right I hope your Lordships will direct me L. Ch. Bar. Go on Axtell Col. Huncks where was it Huncks In a little Room in White hall where Ireton and Harrison lay in bed together Axtell Do you know whereabouts Huncks I think I can go to the Room I appeal to your own conscience before all this people Axtell By your favour Sir the Room I perceive you know not and truly Sir My Lord if you please to give me leave because he appeals to my conscience I do appeal to the Great God before whom it may be I may be Arraigned to give an account of all my Words thoughts and Actions I do not remember that ever I had any converse with this man there or met him there or any of that company there that day he was a stranger to me but I wish that you to save your self being in the Warrant for Execution do not make others a Peace-Offiring to save your self the Lord that knows my heart I appeal to him I appeal to your own conscience because you appeal to my conscience I never met you nor saw you there Huncks Have you done then give me leave you say you do not know me I appeal to the same God when Cromwell took upon him to have the Crown have not I said What have you got by being Jehu-like Lord strike me dead here if it be not true Axtell I will not reflect upon him but because he hath appealed to my conscience therefore I speak it it is known Notoriously how Jehu-like you were when you were one of the chief Guards of his Majesty one of the Fourty Halberteers that did oppose every person then for the King had I had time and had not been a close Prisoner as I was there were Witnesses enough Council This after our Evidence is more proper Huncks Spare me not Col. Axtell L. Ch. Bar. Take the Old and Antient course let the Witnesses that are produced for the King be all heard then give your answer to all of them together Axtell My Memory is not very good L. Ch. Bar. You have Pen Ink and Paper L. Ch. Bar. Mr. Axtell is this all that you desire to speak to Col. Huncks Axtell Yes my Lord. L. Ch. Bar. Have you any other Questions Council My Lord we have a few words he Objects as if Col. Huncks were under a danger he is pardoned Axtell I desire to ask
ask Col. Huncks whether I read this Warrant or no. L. ch B. This is all you have to say for your self Hacker Yea my Lord. L. ch B. Then Col. Hacker for that which you say for your self that you did it by coommand you must understand that no power on earth could Authorize such a thing No command in such a case can excuse you There is a twofold obedience a passive obedience to suffer rather than do things unlawful and an Active obedience to do that only which is lawful and therefore this will not excuse your obedience to those unlawful commands Gent. of the Jury you see the Prisoner at the Bar stands indicted for compassing and imagining the death of the late King and there are several open Acts set forth in the indictment which tend to prove that matter one is assembling and meeting together another is sitting upon the King another sentencing and at last concludes with the murther of the King as the consequence of all Any thing that tends to the proving of this compassing and imagining his death in any one of these particulars that is an evidence to you to prove the whole indictment This Gentleman was Commander of Halberteers Col. Tomlinson saith that though he kept the Guards that were about the Kings person this Gentleman with two other persons brought Halberteers that there might not be such frequent access as formerly to the King there is one Act. He commands these Halberteers at that time when the business was in agitation before that High Court as they called it You see after the sentence was given that he was one of the persons to whom the Warrant for Execution was directed you see afterwards there was a consulting together Cromwel Ireton Harrison and Axtel were in the Chamber when Col. Huncks refused to sign the prisoner signed the Warrant but knows not the person to whom it was directed you see besides Col. Tomlinson's testimony who saith further that when they were discharged Col. Hacker went in and the King was brought out presently after to that fatal place Col. Huncks swears that when that Warrant was offered to him he refused it that Hacker the Prisoner at the Bar signed a Warrant though he doth not remember the name of the person to whom it appears by two Witnesses honourable persons he confessed he signed it but he did not know the person to whom directed You see another Witness Benjamin Francis he saith he saw Hacker upon the Scaffold with the King He doth not deny the fact you need go no further it is very plain he had a hand in this business a principal agent in it he that brought the King to the Scaffold he that had the care in managing that business he that signed the Warrant to the Executioner either he is guilty of compassing the death of the King or no man can be said to be guilty The Jury went together and after some little consultation returned to their places Clerk of the Crown Gentlemen of the Jury are you agreed on your Verdict Jury Yes Clerk Who shall say for you Jury Our Foreman Clerk Francis Hacker hold up thy hand Gentlemen look upon the Prisoner at the Bar how say you is he guilty of high Treason whereof he stands indicted and hath been arraigned or not guilty Foreman Guilty Clerk Look to him Keeper Clerk What Goods and Chattels c. Jury None that we know of The Tryal of William Hulet 15. Octob. 1660. CLerk of the Crown Set William Hulet to the Bar who was brought accordingly William Hulet alias Houlet hold up thy hand Those persons that were last called of the Jury are to pass c. If you will challenge them or any of them you must challenge them when they come to the Book before they be sworn L. Ch. Bar. Understand you have power to challenge five and thirty men and not above You may challenge them without cause shewn If you have cause for any other you may challenge them also If you will have Pen Ink and Paper you may have them Hulet Truly my Lord I cannot Write but a very little I shall not need them I did not understand my Indictment well I desire to hear it again L. Ch. Bar. You will hear it read again Clerk Sir Thomas Allen Sir Henry Wroth Thomas Bide Robert Sheppard Thomas Morris Ralph Halsal John Gallyard John Nicoll Thomas Vfman Christopher Abdy William Dod in all twelve Jury called and sworn Cl. of the Cr. Will. Hulet alias Houlet hold up thy hand You Gentlemen that are sworn look upon the Prisoner Cl. You shall understand that he stands indicted of high Treason by the name of Will. Hulet alias Howlet late of Westminster in the County of Middlesex Gent. for that he as a false Traytor c. here the indictment was read Unto which indictment he hath pleaded not guilty and for his Tryal hath put himself upon God and the Country which Country you are Now your charge is to inquire c. Sir Edward Turner May it please your Lordships and you Gentlemen that are sworn of this Jury we are now entering upon the last Act in this sad tragedy of the Murther of the late King there have been before you some of the Judges the Councel the Chaplain and the Guard this Prisoner at the Bar in the last place was one of those which came with a frock on his body and a vizor on his face to do the work The course of our evidence will be this first we shall prove by witnesses that saw him and knew him that he was thus disguised he hath confest that he was upon the Scaffold that he hath had several preferments and I fear it will appear that it was he that gave that fatal blow for he hath confessed he had an hundred pounds given him for his service therein and we doubt not but to pluck off his vizor by and by The indictment is for compassing and imagining the death of his late Majesty of glorious memory if we prove to you any circumstantial overtact whereby you shall be convinced of this you are to find him guilty Richard Gittens sworn Councel Mr. Gittens tell my Lord and the Jury what you know touching the prisoner at the Bar. Gittens The thing is this my Lord this Gentleman at the Bar and my self were both in a Regiment in one company as Serjeants about twelve or thirteen years together About a day or two before the King came to the Scaffold Colonel Hewson did give notice to a Lieutenant that we should come to him about 38 of us and he put us all to our Oaths that we should say nothing of what they did he swore us to the book after he had sworn us he asked us if we would undertake to do such an Act if we would we should have an hundred pounds down and preferment in the Army as long as that stood and the Parliament Afterwards we refused every person we thought Captain
he is very much to be reproved Shall he pretend that one House nay the eighth part of a House for so it was can Condemn a King when both Houses cannot condemn one man in spight of the King I desire my Lords it may pass with a due Reproach and a Sentence upon it Lord Chief Baron It is true your Questions are but one Point You pretend the Parliament's Authority and when you come to speak of it you say the Commons of England They were but one House of Parliament The Parliament what is that It is the King the Lords the Commons I would fain know of you where ever you read by the light you say you have in your Conscience that the Commons of England were a Parliament of England that the Commons in Parliament used a Legislative power alone Do you call that a Parliament that sate when the House was Purged as they call it and was so much under the Awe of the Army who were then but forty or forty five at most Then you say It was done by Authority of them You must know where there is such an Authority which indeed is no Authority he that confirms such an Authority he Commits a double offence therefore consider what your Plea is If your Plea were doubtfull we should and ought and would our selves be of Councel for you That which you speak concerning Conviction of your own Conscience remember that it is said in Scripture that they shall think they did God good service when they slay you as it is in St. John He hath a great deal of Charity that thinks that what you did was out of a Conscientious Principle It was against the Light of noon-day and common practice You make your self a Sollicitor in the Business Let us blacken him as much as we can I have not touched at all upon the Evidence I will not urge it now I say you justifie it upon Convictions of Conscience and pretend it upon Authority A thing never known or seen under the Sun that the Commons nay a few Commons alone should take upon them and call themselves the Parliament of England We have been cheated enough by Names and Words there is no colour for what you say I do think and hope my Brethren will speak to this Case that none of us do own that Convention whatsoever it be to be the Parliament of England There was another aggravation at this Time that this Pretended Authority usurped that Power the Lords were then sitting You had not taken this usurped Power to dissolve these Lords No you did this Act in dispight of the Lords you had sent up an Ordinance to the Lords and they rejected it and thereupon these Members took it upon themselves Amongst those there were some Negatives and those Members were under the Awe and Power of your Forces at that time What you Plead the Court are of Opinion tends to the subversion of the Laws for you to usurp Power over the People without their Consents to call this the People We never knew the like before But the Parliament of England was the King Lords and Commons For you to speak of this Power and Justifie this Power is an Aggravation adding one Sin and Treason to another We shall tell you that neither both Houses of Parliament if they had been there not any single Person Community not the People either Collectively or Representatively had any colour to have any Coercive Power over their King And this Plea which you have spoken of it ought to be over-ruled and not to stand good Mr. Annesley I do the more willingly speak to this Business because I was one of those that should have made up that Parliament that this Prisoner pretends to I was one of that Corrupt Majority as they called it that were put out of the House He cannot forget that at that time there were Guards upon both Houses of Parliament to attend them that were of their own appointment and that those Guards were forcibly removed by the Prisoner at the Bar and his Fellows and other Guards put there who instead of being a Defence unto them when those Commons stood at the Door were by them threatned Yet the Lords and Commons of England in Parliament Assembled a full House of Commons did resolve notwithstanding what was aforesaid that the Treaty in the Isle of Wight was a Ground for Peace Afterwards the Major part of the House of Commons having resolved on this sent it up to the Lords that very day when they were Adjourned there were Forces drawn down to the House of Commons Door and none suffered to come into the House but those that they pleased All those that had a mind for Peace that minded their Duty and Trust and Allegiance to their King were seized on by this Gentleman and his Fellows When this was done what did he and those Fellows do They sate and put a check upon all that should come in None must come in but those that would renounce their Allegiance and Duty to their King and the People for whom they served and then declared against that Vote which had been passed upon Debate of twelve or fourteen hours and then to call this an House of Commons nay the Supreme Authority of the Nation he knows is against the Laws of the Land For the House of Commons alone cannot so much as give an Oath It hath not power of Judicature of Life and Death this he knows well to be according to the Laws of England He knows that no Authority less then an Act of Parliament can make a Law and he knows an Act of Parliament must be passed by the King Lords and Commons I wonder much to hear a Justification in this kind by one that knows the Laws of England so well There will none of the Court allow that that was a Parliament The Majority of that House did all disavow it These things have been already discoursed of I shall onely say that he knowing the Laws so well I hope he shall suffer for trangression thereof Mr. Hollis You do very well know that this that you did this horrid detestable Act which you Committed could never be perfected by you till you had broken the Parliament That House of Commons which you say gave you Authority you know what your self made of it when you pulled out the Speaker Therefore do not make the Parliament to be the Author of your black Crimes It was innocent of it You know your self what Esteem you had of it when you broke and tore it in sunder when you scattered and made them hide themselves to preserve them from your Fury and Violence Do not make the Parliament to be the Authour of your Crimes The Parliament are the three Estates It must not be admitted that one House part of the Parliament should be called the Supreme Authority You know what that Rump that you left did what Laws they made Did you go home to advise
to pronounce Judgment against his Soveraign In this he rested not but he among them set his Hand and Seal to that bloody Roll or Warrant for putting him to death which accordingly was done and to these several open acts we shall call out Witnesses and so proceed M. Masterson M. Clark and M. Kirk sworn Coun. M. Masterson look upon the prisoner did you see him sit in that they called the High Court of Justice Lord Chief Baron Mr. Carew if you will have pen ink and paper you may have it pray call for it Carew I have no need of it Coun. Mr. Masterson did you see c. Ma. My Lords and Gentlemen of the Jury I was present at that Assembly which they called the High Court of Justice for Tryal of the King upon the 22 23 and 27th days of Jan. 1648. and there I saw the King stand a Prisoner at the Bar. I saw this Gentleman the Prisoner at the Bar sit upon the Bench in that Court as one of his Majesties Judges particularly upon the 27th day of Jan. which was the day of Sentence I saw him sitting there Coun. Mr. Clark You hear the Question Do you remember that you saw the Prisoner at the Bar sitting in that which they called the High Court of Justice Mr. Clark I remember I saw the Prisoner at the Bar sitting in that which they called the High Court of Justice for the Trial of the late King and particularly I took notice upon the 23. and 27th of Jan. 1648. that he was present Coun. What was done upon that 27th day Mr. Clark The 27th day the late King was sentenced to death Jury What is your Name Sir Coun. His Name is William Clark Coun. Mr. Kirk What say you to the former Question touching the Prisoner his being at that which they called the High Court of Justice Mr. Kirk My Lords and Gentlemen of the Jury I was present at the Tryal of his late Majesty of blessed memory I saw that Gentleman the Prisoner at the Bar several days there particularly the day of the Sentence which was the 27th day of Jan. 1648. when the Sentence was passed he rose up assenting to it Then the Warrant for summoning that pretended Court was shewed to Mr. Kirk Coun. Do you believe that Hand to be the Hand of Mr. Jo. Carew Prisoner at the Bar Kirk My Lords I do believe it to be his Hand I have seen his Hand to several Orders and being very well acquainted with his Hand-writing I believe it to be his Hand as much as any Man can possibly know another man's Hand Then the Warrant for Execution of the King was likewise shewn him Coun. Is that the Hand also of the Prisoner at the Bar Kirk It is the same Hand my Lord. Court Was Mr. Carew a Member of the Long Parliament K. Yes My Lord. Coun. Had you occasion to be acquainted with his hand K. My Lord I have seen him set his hand several times to Orders and other Papers Mr. Farrington sworn Coun. Do you know the Warrants being shewn him those hands to be the writing of the Prisoner at the Bar Far. My Lords really I believe these are his hands Court Are you acquainted with his hand Far. Yes My Lord and I do believe these to be his hand-writing I did not see him write them but so far as possibly a man can know anothers writing I do believe these to be his Court If you will ask to see them you may see them Mr. Carew Ca. Please you to go on Here they were both read Coun. May it please your Lordships we shall not need to trouble the Jury any further we have proved that the Prisoner did sign that Warrant for summoning that Court of Injustice that he sate there and sentenced the King to death among other and that he signed the Warrant for execution L. Chief Baron M. Carew you have heard the evidence you may please to speak what you think fit for your self Ca. My Lords the crimes that are here laid to my charge in this Indictment are Treason and Murther L. Chief Baron I would not have you to be mis-informed it is Treason onely but it carries the other in with it Murther Ca. Because you say it carries the other inclusively L. Chief Baron It doth the charge is the compassing and imagining the death of the King the other is but evidence Ca. Then the thing that I stand upon before the Lord and before you all I say before the Lord before whom we must all stand and give an account of this action which is a very great and weighty one And whereas it is charged there for I shall not trouble you with many words as to the particulars or as to the proofs but I shall ingeniously acknowledg what the truth is and how far I can believe it and therefore I say as to the beginning of what was charg'd by the Council and according to the course of the Indictment that what was done in those things that it was not having the fear of God before mine eyes but being moved by the Devil and that it was done with a Trayterous Malicious and Devilish heart and all those things mentioned in the Indictment As for that I can say in the presence of the Lord who is the searcher of all hearts that what I did was in his fear and I did it in obedience to his holy and righteous Laws Here the people hum'd L. Chief Bar. Go on he stands for his Life let him have liberty Ca. It is part of my charge not to have the fear of God c. I did such and such things I hope I may have liberty L. Chief Bar. Go on you shall not be interrupted Ca. I say that I did it in the fear of the Lord and I will begin with that and confess ingeniously the truth of it When this came into question there was an Ordinance brought in to try the King where my name was not as one of the Judges There was another afterwards an Act which I shall mention upon what ground by and by what that was and that Act was brought in and committed and names brought in and my Name was not brought in and so afterwards my name was put in and seeing it I did strike it out After the Committee was up I told them I did desire to be excused in such a business I have told you how wherein and the ground that I did it which I shall leave with the Lord in whose hand your and my breath and all our breaths are and therefore when it was so I did because of the weight of it as being a very great and special thing and so I was very unwilling because of there being enow which I thought had more experience every way for so great a concernment as that was to be imployed rather then I yet being satisfied with that Authority that did it This is to shew you how that I had the fear
witnesses say they believe it that it is like my hand that I leave to you if that appear yet My Lord that that is put in writing as done by another that is the Dictator and does dictate unto me I humbly conceive that for any man to write words which in their own nature may be Treasonable if he doth but write them by the command of another by speaking them after another taking them upon rebound that is not Treason because they do not discover a trayterous heart Those words of compassing the death of the King in the 25 Ed. 3. they are secret imaginations in the heart and they must be manifest by some overtact that which was dictated my Lord unto me that I had expresly prescribed me what I should say what words I should say That I did not invent any thing of mine own head of my own conceit and therefore cannot properly be said to be malicious The next thing that I crave leave to offer is this that the pure and plain demanding and praying of Justice though injustice be done upon it cannot possibly be called Treason within the statute then I hope nothing that has been said against me will amount to Treason for the words in the natural grammatical plain genuine and legal sence will bear no other construction as I humbly conceive but that whereas those Gentlemen had his Majestie then in their power a Prisoner that it was prayed by me that they would do him justice I do hope that it will appear that I did give Bonum fidele Consilium It will appear I hope that some would have had a very voluminous and long charge that I was utterly against it as conceiving that it was not fit and requisite that any thing should be put in at least I durst not invent one word my self but what was expressed in the Act for tryal if your Lordships will not admit it an act you will an Order and so it will bear me forth at least to excuse me from Treason because I kept my self to the words whereas in that it was said that they should proceed according to the merits of the cause I was against that that I did not understand that but according to Justice that is but according to Law because the Law is the rule of Justice I do humbly hope my Lord that if by Law when words may be taken in a double sence they shall always have the more favourable interpretation much more when the words in the legal sence will bear it when it is prayed they will proceed according to justice I hope it will not be inferred there was any intention of doing injustice when justice was required And therefore my Lord the next word what I would offer is this if my Lord in all Tragedies which are as we call them judicially or colourably there are but these four Actors Accusers or Witnesses The Jury Judges and Executioner If I be none of these I cannot be Guilty of Treason I hope I may safely say according to Law that I had not a hand at all in his Majesties death My Lord the Court and Councel it is very true they do aim at the same thing the Councel Requireâ—â—â— Justitiam the other Exequendo Justitiam the end being the same to have Justice If when justice be demanded and injustice be done what is that to the Councel we read to of John concerning Pilate Knowest thou not speaking to Christ that I have power to crucifie thee and have power to release thee My Lord I humbly answer this to that which seems to be the most material part in the Indictment that We did assume a Power My Lords I did not assume a power I hope it will not be said that the Councel had any power Eloquentia in the Councel Judicium in the Judges and Veritas in the Witnesses 25. Acts. Tertullus that eloquent Orator accused Paul Paul answered for himself and it is said Festus being willing to do the Jews a courtesie he left Paul bound it was not the Councel that left him bound His Majesty was never a Prisoner to me and I never laid any hands upon him if any witnesses have spoke of any irreverence I must appeal to God in that I did not in the least manner carry my self undutifully to his Majesty though one of the Witnesses was pleased to say that I said these words that there is a Charge against the Prisoner at the Bar It was not said the Prisoner at the Bar there was not one disrespective word from me There is a Case in the third Institutes of the Lord Cook it is to this purpose That one wilfully and knowingly forswore himself the Case was put to inveigle the Court and though the Court does injustice upon a false Oath it is not injustice at all in the Witness it is Perjury in him if there can be no injustice in a Witness much less a Counseller can be said to have his hand in the death of any because he has no power at all this must needs follow that if it shall be conceived to be Treason for a Counseller to plead against his Majesty then it will be Felony to plead against any man that is condemned unjustly for Felony The Counsellour is to make the best of his Clients cause then to leave it to the Court it is said I should demand judgement I do not remember that I leave it to you but still to demand Justice Counsellers they do ingage in business before they do rightly understand the true matter of the fact it is part of a Serjeants Oath that so soon as he does discover the falsity of the Cause he should forsake the Cause My Lord by what Mr. Nutly hath said it appears and I have many Witnesses in the Countrey three or four in Leicestershire would have spoken full to this that my Lord there was not before the Sentence of the King to the best of my knowledge a word spoken by any that they did intend to put him to death I say to my knowledge and my Lord when Judgement is demanded is it not twofold of Acquittal and Condemnation if those that then were entrusted with the power of Judicature if they did not know any Law to proceed by to take away his Majesty then I demanding their Judgement it doth not appear to be my Judgement and I refer it to the learned Councel that Councel many times at the Assises and other Courts have been sorry that the Verdict hath been given for their Clients when they have known the right lay on the other side and so I might in this The next thing I humbly offer is that if in right reason considering the condition his Majesty was then in the advising to draw up the Charge was rather to be looked upon as a matter of service than disservice then it cannot be called Treason it is very true my Lord that a very small little Overt act will amount to a
Treason and my Lord had this been in times of peace and had His Majesty been no Prisoner now he was under the power of an Army this had been great Treason but he being a Prisoner not by my means for I was no sword-man what can a man that knows himself innocent being a Prisoner desire more than a speedy Tryal so that making the Tryal more speedy cannot be said to be done trayterously A Tryal doth follow imprisonment as naturally and necessarily as the shadow doth the body If any man shall desire and be instrumental in bringing him to a Tryal which might acquit rather than condemn him and so humbly pray proceedings according to Justice this will have I hope a better name than Treason I am much beholding to His Majesty and this honourable Parli for the penning of the Act of Indempnity which I hope my L. you will give me leave to take notice of Court Open as much as you will of it Cook My Lords the words that I would make use of are in the beginning Treason Murder and other Felonies that are spoken of they are said to be counselled commanded acted or done in the preamble which is as the Key to open the mind and meaning of the Law-makers it is said that all persons shall be pardoned for all excepting such as shall be named and in such manner as they shall be excepted and then it comes provided that this Act shall not extend to pardon such and such persons and by name I am one and it is said all which persons for their execrable Treason in Sentencing to death or signing the Instrument for the horrid murther or being instrumental in taking away the precious life of our late Soveraign Lord Charles the First of glorious memory are left to be proceeded against as Traytors to his late Majesty according to the Laws of England and are out of the said Act wholly excepted and foreprized There is not any thing offered against me upon the two 1st great words which are Sentencing and signing that which I have to do to endeavour to clear my self is this being instrumental in taking away the life of his said Majesty first I humbly offer this to the Juries consideration That where the Parliament doth begin to fix the treasonable part there I hope and no otherwise this honourabe Court will fix it if it had been the Intention that Counsellors advisers and such as spoke their minds sometimes in the business you know that was Epidemical many words were spoken which cannot be justified whether naturally it would not have followed that all such persons for their counselling advising or being instrumental are left to be proceeded against as Traytors I hope you will take that into consideration concerning the words or being instrumental observe it is not said or being any otherwaies instrumental but Sentencing signing or being instrumental if therefore the word Instrumental be not of a general comprehensive nature then all this evidence which hath been given in against me being before the Sentencing and signing will fall to the ground that this is the legal genuine and Grammatical sense cannot be any otherwise than as particular as if it were the Sentencer signer Executioner which if it had been so nothing of the Evidence would have reached me My argument is this such a use is to be made of an Act of Parliament that no word may be frustrate and insignificant but if this Interpretation shall be put upon it sentencing signing or being any way instrumental then the words Sentencing and Signing need not have been if Instrumental will carry the words Sentencing and signing then these words will carry no force atall especially my Lord when there is no need of any retrospect at all if it be so I know not how far it may look back there is no necessity of putting any comprehensive generality upon this word instrumental but that the plain natural sense will be this That those that did sentence and Sign and those that were instrumental in taking away his life that is those that did abet and comfort that person unknown or justifie or countenance him which is after the Sentencing and not before in the legal sense Next I conceive that a Councellor cannot be said to do any thing vi armis It is said that by force and Arms I did abet c. it is Rhetorical to say that words may be as Swords but legal it is not unless there be something vi armis in the Grammatical sense instrumental in taking away the Kings life it is not said instrumental in order to take away the K. life or instrumental in advising to take away the K. life but instrumental in taking away the K. life My Lord The next thing is that there cannot be any thing to be said to be done by me first not falso because in that sense it must have the operation of mendacity that there must be a lie told in it I did nothing but what I was required to do to set down such and such words I did not invent nor contrive them I heard nothing of it till the tenth day of Jan. My Lord for malitiose that I did not any thing maliciously I hope it will appear in this what I then spoke it was for my Fee it may be called avaritia but not malitia for the Law will imply a malice but when there is no other express ground or reason why the thing was done but here was an express ground to speak for my Fee I hope the Jury will take that into consideration Then Secondly I was not Judicial in the Case I was not Magisterial as any Officer but ministerial As touching examining of witnesses it is a great mistake the Court had power to give an Oath I might be there but I had no power to give an Oath but whether I might ask any question I do not remember but that I should give an Oath that is a falsity then my Lord for proditorie I hope there is nothing at all that appears to the Jury so that there was no malice nor trayterous intention in the thing There are some matters of Law which I desire your Lordships will give me leave to speak to and that your Lordships will be of Counsel with me I would offer something concerning his Majesties gracious Declaration from Breda to the Parliament I was then in Ireland I did put in a Petition to the honourable Commissioners before any exception was that I might have the benefit of that Declaration I did lay hold of it My Lords there are two things in that Declaration that I would offer His Majesty saith that for the restoring of the Kings Peers and people of the Kingdom to their just rights and liberties He will grant a free and general Pardon to all excepting such as shall be by Parliament excepted and within three or four lines after it is said a free Parliament though I do not in the
by law that the right of the Militia was in them and your Lordships will remember in several Declarations and Acts that was mutually exchanged between his Majesty and Parliament and my Lord that was the Authority the Lords and Commons assembled in Parliament raised a Force and made the Earl of Essex Ceneral and after him the Earl of Manchester of the Eastern Association and after that Sir Tho. Fairfax Lord General of the Forces by this Authority I acted and this Authority I humbly conceive to be legal because this Parliament was called by the Kings Writ chosen by the People and passed a Bill they should not be dissolved without their own consents that the Parliament was in being when the Tryal was and a question whether yet legally Dissolved In the fourth place they were not only owned and obeyed at home but abroad to be the chief Authority of the Nation and also owned by Foreign States and Kingdoms sent Ambassadors to that purpose under them did all the Judges of the Land Act who ought to be the Eye of the Land and the very light of the People to Guide them in their right Actions and I remember the Judges upon Tryal I have read it of High Treason Judg Thorp Nicholas and Jermin have declared it publickly That it was a lawful justifiable thing by the Law of the Land to obey the Parliament of England My Lord it further appears as to their Authority over the People of this Nation petitioning them as the supreme and lawful Authority and My Lords as I have heard it hath been objected that the Houses of Lords and Commons could make no Act. Truly my Lord if you will not allow them to be Acts though they intitle them so call them so and obeyed as so by the Judges Ministers and Officers of State and by all other persons in the Nation yet I hope they cannot be denied to be Orders of Parliament and were they no more but Orders yet were they sufficient as I humbly couceive to bear out such as acted thereby And my Lord the Parliament thus constituted and having made their Generals he by their Authority did constitute and appoint me to be an Inferior Officer in the Army serving them in the quarters of the Parliament and under and within their power and what I have done my Lord it hath been done only as a Souldier deriving my power from the General he had his power from the Fountain to wit the Lords and Commons and my Lord this being done as hath been said by several that I was there and had command at Westminster-Hall truly my Lord if the Parliament command the General and the General the inferiour Officers I am bound by my Commission according to the Laws and Customs of War to be where the Regiment is I came not thither voluntarily but by command of the General who had a Commission as I said before from the Parliament I was no Counsellor no Contriver I was no Parliament-man none of the Judges none that Sentenced Signed none that had any hand in the Execution onely that which is charged is that I was an Officer in the Army if that be so great a crime I conceive I am no more guilty than the Earl of Essex Fairfax or the Lord of Manchester Judg Mallet You are not charged as you were an Officer of the Army Axtell My Lords That is the main thing they do insist upon my Lord I am no more guilty than his Excellency the Lord General Monck who Acted by the same Authority and all the People in the three Nations and my Lord I do humbly suppose if the Authority had been only an Authority in Fact and not Right yet those that Acted under them ought not to be questioned but if the Authority commanded whatsoever offence they committed especially that that guided me was no less than the declared Judgment of the Lords and Commons sitting in Parliament they declared that was their right as to the Militia and having explained several Statutes of Henry the 7th wherein the King having enterchanged Declarations with the Parliament the Parliament comes to make an Explanation on that Statute and my Lord it is in Folio 280. wherein they do positively expound it and declare it as their allowed Judgment To clear up all scruples to all that should take up Arms for them saith the Parliament there as to the Statute of 11. of Henry the 7th Chapter the first which is printed at large comes there to explain it in general and comes here Folio 281. and gives this Judgment It is not say they agreeable to Reason or Conscience that any ones duty should be known if the Judgment of the High Court of Parliament be not a Rule or Guide to them In the next place this is the next Guidance Rule and Judgment of Parliament upon the Exposition of this Statute and as they have said in several places was it not too much to take up your Lordships time they are the proper Judges and Expounders of the Laws The High Court of Parliament have taken upon them to expound the Law and said that we Lawyers will give the meaning of the Text contrary to what they have expounded the meaning under their hands in the same Declaration his Majesty is pleased to quit that Statute upon which I stand Indicted the 25th of Edward the Third where they do my Lord expound that very Statute in the Declaration made in 1643. Folio 722. I come to the declared Judgment wherein they did positively say that the persons that do Act under their Authority ought not to be questioned as persons Guilty Folio 727. that is the Exposition that the Lords and Commons Assembled in Parliament doth make upon the statute Councel My Lord this is an Argumentation of Discourse in justification of his proceedings we desire to know what he will answer as to the Plea Axtell My Lords I have this further to say that if a House of Commons Assembled in Parliament may be Guilty of Treason for the truth is if I Acted Treason that Acted under the Authority of the Lords and Commons in Parliament and of the Commons in Parliament then doubtless they must begin the Treason if the House of Commons who are the collective body and Representation of the Nation all the people of England who chose them are guilty too and then where will there be a Jury to try this concerning the Commons alone I have been over ruled L. ch Bar. If you have any thing to say to the Lords and Commons answer to your charge your charge is nothing of the Lords and Commons but what you Acted when the house was broke and Forced Coun. You cannot but know that there is nothing charged against you for which you can so much as pretend an Authority of the Lords and Commons you know before you could do this Horrid Murther you were the persons that destroyed the Lords and Commons both indeed you Ravel in a
business and to make people gaze upon you without any Ground Axt. I am upon my life I hope you will hear me patiently L. ch Bar. God forbid but we should Axt. I do desire to assert my Authority if any thing was done upon the House of Lords and Commons I do not come here to justifie their Actions I was not concerned in it My next Plea is this that if a House of Commons can be charged Guilty of High Treason as a community the distributive Body must needs be Guilty Court If there should have been 20 or 40 men come out of the House of Commons and should Murther a man they must answer for that it is not the community that can do such an Act of Treason these persons that you call a House of Commons there was but 26 of them and these must be the people this is the state of the case and when you have thrust out thrice the number of those remaining only those can serve your turn L. Annesly Mr. Axtell I am very sorry to see you in that place and it troubles me as much to hear you vent that for an Authority which you know your self was no Authority you would now for your defence for life and it is reason you should make as full a defence for life as you can you would shelter your self under that Authority which I am sorry I must say were one of the greatest Violators of you cannot forget how near a close of this bloody war by the mercy of God this Nation was when the Army interposed whose Trade it was to live by War when they had felt so much of the sweet of War they would not suffer the people to enjoy peace though the Lords and Representatives in Parliament had agreed to it A Treaty was begun terms of peace propounded and agreed to this you cannot forget and will have no need of Notes or Books to help your Memory when the people Groaned under the miseries of War and thirsted after Peace then came up the Army who were servants to the Parliament till that time taking upon them the Authority you cannot forget that your self was one of the number that came to offer accusations against the majority of the Commons House calling them Rotten Members the House of Lords was not then suffered to sit they would not joyn in that Ordinance that was preparing for the Tryal of the King when the Lords had refused they were no longer fit to be Lords neither then comes in a new Authority which we never heard of before a remnant of the House of Commons joyning with the Army that had driven away the greatest part of the House of Commons for in all Assemblies and Courts the major part must determine or no determination after this course was taken then is an Act set on foot they take upon them by Votes of their own to be the Parliament of England that the supreme power of the Nation is in the Representatives of the people who were they those few only that remained almost all the Cities Counties and Burroughs of England had none left to represent them they were driven away by Force then was this Act of Parliament such an Act as was never heard of before set on foot and passed as an Act by a few of the House of Commons if you can plead this for your defence this is the Act that you must shelter under But you know the Lords and Commons had Unanimously resolved for peace and so agree with the King if this Act will be any defence you may plead it to the full and this is all you have to say therefore go upon no Forreign matter Axt. If it please your Lordship that worthy Lord that spoke last is pleased to say that I was one of the persons that did accuse some of those Members of Parliament truly my Lord I never did come to the Commons Bar but once presenting a petition and for my hand either in charging any of the Members or Secluding any of them I never had any hand in that matter this is all to that part Next I Humbly conceive here I must ground my bottome and if I perish I perish by a Judgement in a Parliament My Commission that did Authorize me to obey my General was given me when the Lords and Commons sate in Parliament I had no other Commission then this my Lord Fairfax commanded the Army after the Kings Death by the like Commission I did but my duty in going to my Regiment the General saith go to such a place stay there if I refuse by the law of War I Dye if I obey I am in danger likewise I say my Commission was given me by the Lords and Commons and therefore I hope my Lord that what I have said and offered in that particular is not Truthless but of Weight Court The Effect of your Commission is only to make you an Officer Axtell My Commission bears date the 27th of March 1648. Ten months before the Kings Death we had no other Commissions therefore I humbly conceive the question will be this in point of law and I humbly desire it may be Truly and Fairly stated by your Lordship and these Honourable Jugdes that whether a man being guided by the Judgment of the Lords and Commons Assembled in Parliament and having declared their Judgments and Exposition of that Statute of the 25th of Edward the Third and Acting only by that Judgment of Parliament and under their Authority can be questioned for Treason That my Lord is a question that I do humbly think is a point in law and that you will please fairly and truly to state it whether I am within the compass of that Statute whereupon I am indicted Councel My Lord We do not charge him with any thing that he did Act under the colour of his Commission or with any thing he did before that but that which we charge him with are rhe Acts that he did at the Tryal of the King shew us your Commission from the Lords and Commons Assembled in Parliament for Tryal and Execution of the King you say something we do not charge him for any thing done by Vertue of that Commission but with those violent Acts that he did in encouraging the Souldiers to cry Justice Justice Execution Execution and all those other Violent Actions of his own malicious heart against the King We humbly beseech you he may answer to that which is the charge against him and that is the Compassing and Imagining the Death of the late King and his declaring that by those overt-acts that we have proved My Lords we desire that the Prisoner at the Bar may remember that he is not Indicted for levying War against the King if so then that Sir which you offer might be given as a Plea and we should have spoken to it but you are Indicted for Compassing and Imagining the Death of the King and that which we have given in Evidence
Executioner and such other Acts prove these are in your Commission and you say something I am sure you cannot be ignorant that That very Authority that you do now urge to give life and power to your Actions that you destroyed it laid it in the dust acted contrary to it several ways when the Parliament protested against fetching the King from Holmby as they did when they went on proceeding in the way of peace then came you up to the Bar I think you your self and charged some of the Members first 11 as rotten Members and these Men were forced away this you know your General had no Commission to do and this you know was a Violation of that Power that gave our General the Commission After that when the Treaty was brought on in the Isle of Wight when there was great hopes of peace then you knew the King was hurried thence by Force which the Parliament protested against After that when both the House of Commons and Lords came to consider of one particular that passed they resolved that it was sufficient ground to proceed on for the settlement of peace then did you fall upon these Houses and tear them in pieces and throwing out above 200 suffering only about 40 to remain and they were glad to send for one Member out of Prison to make up a House That which you say of the Supreme Authority and that by Vertue of which you did Act it shews that you did not at all go by any Authority but you followed your own Lusts and therefore do not few these Fig-leaves together which will stand you in no stead if you would apply your self to answer that which you were charged with it were something Axt. I do desire to have no more interruptions then is me◠〈◊〉 making my own Defence My Lord here are many things by way of motive urged to the Jury which is not within the Charge I desire I may have that fair play that nothing may be urg'd but what is in the charge L. Ch. Bar. You give the occasion Mr. Axtell keep to the matter and you shall not be interrupted Lord Hollis I shall be very sorry to urge any thing against you which doth not necessarily follow for what you say touching your Authority I shall shew you have no Authority Axtell My Lord I have the same Commission as the General what I did was not of mine own head I had a Command As for all that hath been charged against me I shall say this I was none of the Court I did not fetch the King from the Isle of Wight nor advised compassed or imagined his Death or sentenced him to Death or signed the Warrant for his Execution or Executed Him I am none of them My Lords and therefore whoever did make any breach upon the House of Commons they were Grandees persons of a greater Quality I was an inferior Officer I was never at the House Bar but upon presenting one Petition to the Parliament from the Army I shall now come to speak to the Evidence which hath been given particularly against me and the first my Lord is Mr. Simpson he saith I had the Commands of the Guards at Westminster-Hall My Lords I have told you already shewn you by what Authority I came thither and that I ought not to refuse if I had according to the laws of War I must have suffer'd death and that is all as to Mr. Sympson only that a Lady he knows not who spake something there L. Ch. Bar. He saith he heard you bid the Souldiers give fire against the Lady Axt. My Lord I must say if there was any Lady that did speak who she was I know no more than the least child here but my Lord to silence a Lady I suppose is no Treason If a Lady will talk impertinently it is no Treason to bid her hold her tongue L. Ch. Bar. A Lady was speaking pertinently enough when she heard Bradshaw say to the King such a Charge is exhibited a charge of High Treason against Him in the Name of the Commons assembled in Parliament and the good People of England she said That was a lye not half nor a quarter of the people of England That Oliver Cromwel was a Traytor Then you took upon you to command Souldiers to fire at her and accordingly they levelled the muzles of their Musquets towards her Axtell My Lord as to that particular concerning Oliver Cromwell or any other words concerning the Court I understand them not but if any interruption was made to preserve the peace to desire a Woman to hold her tongue is no Treason To the next particular wherein Col. Huncks saith at a door at a certain lodging where Ireton and Harrison were in Bed together he saith that upon his refusal to sign the Warrant for executing the King I said to him Col. Huncks I am ashamed of you the Ship is now coming into Harbour and will you strike Sayle before we come to Anchor truly my Lord I think all that amounts to nothing if it were so which I deny it for to bring the Ship into Harbor what is that there is no person named Fact named nor Design named and I appeal to my conscience I remember not the time place person or words and I can call for Col. Phayre and Col. Hacker who were there for I desire things may appear right I desire they two persons may be called for their Evidence in that point L. ch Bar. They both are in the same condition Col. Hacker in the prison behind you Col. Phayre in the Tower Mr. Axtell you know the strength of one Affirmative witness I saw such a man and heard such a man say c. is more then if twenty should witness they stood by but did not see him or hear him speak Axt. My Lord he saith only this I saw you at the door going unto Ireton's chamber and said will you strike Sayl c. Truly my Lord he doth not say what or how or any thing I meant there must be according to Sir Edward Cook 's 7th Book of his Institutes that Oracle of the Law he saith That Evidence ought to he as clear as the Sun at noon day All that you can say is this it must be a wide Inference a large Inference I conceive there is nothing in these two witnesses and if the two Prisoners were here they would clear me in this L. ch Bar. If by Law you could have had them you should but I fear if they could be admitted they would not be to your advantage Axtell Then my Lord in the next place Col. Temple is pleased to say that the Lady Fairfax saying something against the Court which in truth as I said before I know not who it was or what the words were he saith I bid Fire against them I did nothing but what I was commanded upon pain of Death to preserve peace and in pursuance of that command from the superior
the contrary I leave it upon the consciences of the Jury to weigh it carefully how I could be guilty of Compassing or Imagining the Death of the King when nothing is charged against me to be either of Counsel Sentencing or Signing or to be at the Execution only one man as I told you before he spoke something wrathly and that he had suffered much and therefore he is come over now and saith I should send for the Executioner which I never knew of or had any hand in sending for how much validity that hath I leave to the Jury if it were so it is not treason for words may make a Heretick not a Traytor I speak that by way of preface I do humbly conceive that these being only noted words Execution and Justice the King not so much as named nor any thing done to it by me I say I conceive it doth not amount to Treason by the Law and besides it is against the Law of the great Judg the Judg of Judges all of us that are now and are to come shall stand before him to receive our deserts I say it is against the Law of God to make me an Offender for a word for a word I have heard the Judges say that the Laws of England are grounded upon the Laws of God and the Laws of England are Laws of mercy not of rigour My Lord if a man shall be destroyed in his Life in his Posterity for a word admit the thing had been so I leave upon the consciences of my Jury before the presence of Jesus Christ and before whom they and I must come to be rejudged again at the Tribunal and besides it is only words and words uncertain and Sir Edward Cook saith he must declare plain truth in matter of Treason nothing must be taken for Evidence that may be a presumption or inference or strain of wit I hope upon this consideration that the word Justice fixed upon me by two Witnesses may be taken up at second or third hand from the People or Souldiers by chastising them for the Tumult Then my Lord in the next place these words were never put in writing and so not Treason then my Lord there was never an overt act done by me for that Act of Indemnity that his Majesty and both Houses of Parliament passed wherein they were pleased the very last to except me I wonder'd when I came to be excepted of that number I do come back to the place where I left and that is the overt act My Lord I would only bring it in in this place when I was excepted by the House of Commons one of the twenty I was excepted thus not extending to life I went up and down free at noon day I did not hide my self ingaging a person that was one of his Majesties Servants to do me a courtesie he promised me he would do it and contrary to his promise he was pleased to bring the Kings Warrant to carry me to the Tower and after that I came to be excepted with that black Catalogue of excepted persons and to be brought to the Tryal of the Law Now my Lord I return to that overt act as it was but words uncertain and they may be words repeated from the third or the fourth hand for they were not put in writing according to that Act of Indemnity which I understand the meaning of to be thus That for their Execrable Treasons in Sentencing Signing or otherwise Instrumental they are excepted out of this Act and to be Tryed according to the Laws of this Nation I understand that to be Instrumental to be Instrumentally the Executioner of the King I never had any hand in that Upon the whole this is the Fact that is proved by two Witnesses they heard me say Justice and Execution which must relate to the Execution of Justice which by the Law of God is not Treason especially when there was not the word King for a word to take away and destroy so many my Life Wife Children and many Fatherless that are under the Charge of the Prisoner at the Bar is very sad the words I do not grant but upon such probabilities as I have said I might repeat them I will Justice you I will Execution you and then the words were not written I say as Sir Edw. Cook said they may make a Heretick but not a Traytor the other part of the Evidence is this that I was there with Souldiers at Westminster-Hall I must say if that be Treason to be guided by Judgment of Lords and Commons in Parliament I must say if that be Treason to take up Arms for a Parliament upon such Grounds and Expositions of the statute which they have made and published by their own Authority if I am Guilty under the General then the Parliament would be guilty of Treason L. Ch. Bar. That you have spoke to I am loath to interrupt you Axt. I thank your Lordships for informing me but I was commanded to be there by my General if I had not gone I must have dyed I did only stand there for preservation of the peace in no other sense if the General order me to be at such a Rendezvous I must be there if I disobeyed he would have condemned me by the Law of War The next thing against me material are these two things that is that I should send one Elisha Axtell for the Executioner I must say it is most Admirable such things should be laid to my charge I hope your Lordships and the Jury do observe he told you he suffered much and a poor man under his extremities and losses and sufferings perhaps might start some unadvised words and being now sent over may ascertain it But doubtless this Elisha Axtell being in Ireland if by command it had been so would have been sent over truly I must say I had no hand in the business it was left wholly to them amongst themselves and what ever was done or whatever was said it was said and done by them I never was acquainted with any thing of that nature he said he heard I should send Elisha Axtell for an Executioner if hearsays may be Treason it will be a hard Lesson and my Lord Sir Edw. Cooke saith there must be two witnesses here is but one It comes from such a man my Lord as the providence of God but I will say no more as to that but pray the Jury will take notice of it L. Ch. Bar. You need not doubt of it it shall be taken notice of this of Burden Axt. Now my Lord I have but two or three words more the Statute of the 25th of Edward the Third it doth intend private persons my Lord here is my Commission L. Ch. Bar. It is owned you had it from your General Axt. My Lord his Majesty is pleased to say in his Gracious Letter We do by these presents declare That we do grant a free and General Pardon to all our Subjects of
what degree or quality whatsoever who within Four days after the publishing hereof shall lay hold upon this our grace and favour excepting only such persons as shall hereafter be excepted by Parliament that is a Parliament called by his own Writ You know this Parliament L. Ch. Bar. Mr. Axtell I would not interrupt you to that but this very Objection was made by one of the Prisoners before this answer was given First the King's Declaration is not a Pardon in point of Law it must be under the Broad-Seal but God forbid but it should bind in honour You instanced in the word Parliament what was meant by the word Parliament you must know this the exigency of the Times were such that there were many Noble Persons that took the advantage to Assemble themselves together to reinstate the King they did that which was just and lawful according to the exigency of the Times This Declaration he sent to the two Houses he called them His Two Houses so that it appears clearly and manifestly they were then sitting they being accepted by the King and owned by Him and they did sit in way of Convention according as a Parliament and his Majesty sent his Letter to them and these are the persons that have thought fit to except you out of that Act. Axtell My Lord may I speak to that any further L. Ch. Car. If you do it will be over-ruled Axt. I submit with submission to the providence of God I did apply to Sir Harbottle Grimston for the Mercy and Favour of his Majesty according to his Declaration and here is Sir Harbottle's own hand for a Certificate L. Ch. Bar. That is allowed you that you did claim that benefit within the time but you may remember that it was referred to those two Houses of Parliament they were to consider who was fit for the Pardon and you are by them Excepted out by Name Your question now is no more but whether guilty or not guilty and these are but extravagant Discourses that you say otherwise and rather do you harm then good Axtell I hope you will pardon me my Lord I hope I have spoken to clear the Point The Fact charged by your Lordships and before the Jury and I hope the Lord will give the Jury a Memory of it and a right Understanding in what I have said for my own Defence My Lord the next thing I have to offer is this to Expound that Act of Parliament that it was the intention of his Majesty and Parliament that all should be excepted but those guilty of Councelling Signing or Sentencing Truly my Lord I humbly conceive I being none of those am not guilty of Treason I shall only speak one word to my Jury That they will remember what I have said that there is but two things two Witnesses as to Justice and Execution that it relates to no person but in General and then I do not own the things but possibly they might hear such words I taking of them up upon a rebound reproved the Souldiers for the other that I should send one for the Executioner he heard so and that I should name who was the Executioner I would not have that person or any other to suffer for that L. Ch. Bar. That is not at all pressed upon you not as to any Charge Axtell I thank your Lordship I am very ignorant L. Ch. Bar. Have you done Sir Axtell I leave the matter to the Jury in whose hands I and my little Ones and Family are left I only say this to you Remember your Ancestors Remember your Posterity I never heard it before that words were Treason In Queen Maries time Throckmorton was acquitted for words by the Jury Gentlemen of the Jury I leave my Case my Life my All in your Hands L. Ch. Bar. Gentlemen of the Jury There hath been several things offered by the Prisoner at the Bar as near as my Memory will give me leave in so long a Discourse I shall repeat all things which he saith for himself and which are said against him There are some things that he seems to utter as tending to matter of Law and something meerly of Fact proper only for you of the Jury For matter of Law he hath urged several things for himself not by way of justification of the Fact I must do him that right but in excuse of himself and I hope his conscience hath so wrought upon him that he is of opinion the Fact was a horrid Fact which was so indeed For that which he hath said for himself First he doth alledge to have his Commission from the Lord Fairfax My Lord Fairfax had his Commission from the two Houses of Parliament and this Gentlemans was in March the beginning of the year 1648. he saith what he did was in obedience to his superiors as a Soldier that he never consulted or advised about any thing of the Tryal or execution of his Majesty For this point it hath already been spoken to Gentlemen for that which hath been spoken to at large heretofore I must repeat it here that he may know it That no Person whatsoever no Community not the people either collectively or representatively have any coercive Power over the King neither the Lord Fairfax his General not he nor any other person could be excused for this horrid Fact of bringing the King to Trial No person as I said before nor Community have any such power The Law-books which he hath lately seen and truly he hath imployed his time well in that the Law-books tell us that whereas the two Spenceers had broached a damnable and detestable principle that the homage was only due to the King in respect to his Crown that if he did not demean himself according to such and such rules his Subjects might rule him per aspertee by asperity and sharpness but this was condemned by two Acts of Parliament they both appear in my L. Cooke in Calvins case I do not go to repeat all the evidence that might clear this truth I say had there been any such thing but it hath been told him there was no such thing in Fact My Lord Fairfax's Commission was for the preservation of the King as well as for the liberties of the People The 11. of Rich. 2. Robert de Vere and others for levying a War was punished but this Gent. was not charged for levying of War If either of the Houses of Parliament should command such a thing as tends to the death of the King it would be void in it self Something he let fall of the Parliament not being dissolved My Masters for that you have heard some of my Lords declare how and in what manner this was an Authority of Parliament but it was clearly nothing at all this Gentlemen goes by Vertue of a Power from the Lord Fairfax The next thing he urges in point of Law was this he comes by way of Dilemma saith he either I must obey my General or dye
Countrey-man I was glad to hear of your great penitence for that horrid crime and I would have been glad to have seen it now advise with your self whether you do your self any good in speaking to extenuate when you know there is no man against whom there are such circumstances of aggravation as against you consider whether a publick penitence would not be more proper Waller I beseech you report me both to his Majesty and Parliament and receive me into your grace as being penitent truly penitent To say so now were a small thing for the fear of the punishment may procure it but I have been more penitent when no eye hath seen me but God when I never imagined to be questioned for this sin then my heart hath yerned in the business but I shal not trouble your Lordships God holds forth Mercy his Majesty holds forth Mercy the Parliament holds forth Mercy My Lords let me say something to you though it be but a word of the violence and force of temptation you may have been under it or may come to it Christ himself was under it we find that faithful Abraham by the power of a Temptation delivered up his wife to commit Adultery which scarce a Heathen would we finde that valiant Peter denied his Master righteous Lot committed incest None abhors this fact more then I do I have done it so long beforehand I need not be afraid to speak it in the face of the Judge of all men that is all I shall say I rendred my self three times I had as much opportunity to make my escape as any person whatsoever Lord Chief Baron It is understood Sir Hardress Clerk Isaac Pennington hold up thy hand thou art in the same condition as the former what canst thou say for thy self why judgment c. Pennington My Lord I have said what I have to say and shall not trouble your Lordships any further Clerk Henry Marten hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Marten I claim the benefit of the Proclamation Clerk Gilbert Millington hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Millington I shall not trouble you with long discourses I will say no more but this I have made a publick resentment of my sorrow for this offence formerly and many times I shall now desire no more but humbly beg that I may have the benefit of the Proclamation and pray his Majesties most gracious Pardon Clerk Robert Tichborne hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c Tichborne My Lord I will not trouble you with any repititions I have made my humble request before I leave it with you Clerk Owen Roe hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Roe My Lord I have no more to say then I said before Clerk Robert Lilburn hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Lilburn I shall refer my self without further trouble to the Court my Lord I beg the benefit of the Proclamation Clerk Thomas Waite hold up thy hand Thou art in the same condition what canst thou say for thy self why Judgment c. Waite I can declare no more than what already my heart is sorry for what I have done I beg the benefit of the Proclamation Clerk Edmond Harvey hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Harvey My Lords I have no more then what I have said before Clerk John Downes Hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Downes I shall not trouble you any further I shall desire the benefit of his Majesties Proclamation Clerk Vincent Potter hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Potter My Lord I do not know Law I understand it not I am not in a condition to speak what I would have willingly spoke I desire that God would have mercy and I look for mercy from God and wept Clerk Augustine Garland Hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Garland I humbly desire your Lordships charitable opinion of me notwithstanding what has been objected against me I humbly refer my self to the Parliament Clerk George Fleetwood hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Fleetwood My Lord I have already confessed the fact I wish I could express my sorrow and wept Clerk James Temple hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. I. Temple My Lord I can say no more I beg the benefit of the Proclamation Clerk Simon Mayn hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Mayne I have told you before my Lord I have no more Clerk Peter Temple hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Peter Temple My Lord I came in upon the Proclamation and I humbly beg the benefit of it Cl. Tho. Waite hold up thy hand thou art in 〈◊〉 same condition what canst thou say for thy self Waite My Lord I refer it to your Lordships Clerk Francis Hacker hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Hacker My Lord. I have nothing to say but what has been before your Lordships Clerk Daniel Axtel hold up thy hand thou art in the same condition what canst thou say for thy self why Judgment c. Axtell May it please your Lordships my case differs from the rest of the Gentlemen L. Ch. B. I would be loth to hinder you but I must tell you that what hath been over-ruled must not be spoke to if you have any thing against the Indictment matter of Law go on Axtell I have one thing more that I did not then mention L. Ch. B. If it tend not as an exception to the Indictment it is not to be heard Axtell My Lord then I shall apply my self to that point I humbly conceive my Lord that my overt acts were not sufficiently set down in the Indictment as might be sufficient in Law to attaint me of high Treason I do not remember that the Overt act that was applyed to me in evidence was charged in the Indictment I have onely that exception because of the insufficiency of that point In the next place my Lord there is not the right additions to my name there are many persons of the same name I am arraigned by
least question the Legality of this Parliament yet my Lords to this particular purpose whether the Parliament that was to except ought not to be a Parliament that was to be called accoring to his Majesties Writ according to the Laws of the Kingdom I humbly conceive it will bear that though His Majesty is pleased to confirm this yet it is not such a Parliament that was to except that I offer to your Lordships My Lords that that I would humbly make hold to put for my self because it is the priviledge of one in my condition is this There is my Lord many Lords the Earl of Essex the Earl of Southampton and others that were adjudged in the 44 of Eliz. 3. institutes they did trayterously and maliciously conspire to take her Majesty Prisoner and to remove her Counsellours from her which were found guilty and suffered accordingly the reason is That because thereby if it had been done they had despoiled her Maje of her Regal Government the case is instant in Philip who was a nominative King that it was not Treason to have attempted any thing against him My Lords his Majesty being a Prisoner without any hand of mine I giving advice according to what was dictated to me to bring him to that tryal whereby he might have been acquitted and so set at liberty I hope that will not be said as instrumental My Lords I humbly shall offer but two words 1. to honourable Court then to the Jury the words of 25 E. 3. and so the exposition of the learned Judges have been from time to time that there shll be no semblable Treasons made by presumptions or strains of wit but those Treasons specified there It is said if a Husband do kill his Wife or a Wife kill her Husband a Master should kill his Servant or the Servant should kill his Master that that shall be petty Treason a Child did kill his Father though that was looked upon as a great sin yet the Judges do not presume that to be Treason because it was not in the very words this being an extraordinary Case to write a thing after another doth not appear there was a malicious heart in him that did write There hath been the Act of Parlia that doth call these Courts Tyrannical and Unlawful Courts but my Lords a Tyrannical and Unlawful Court is a Court de facto though not de jure if a Court be not a just and lawful Court it cannot be said but that it is a Court we say a Thief is a true man though morally he is not so this was a Court Officers attending on them some said they had Authority therefore for one to come and act within his Sphere not to act out of that nor to do any thing but what he had a prescript form appointed him I hope that will not be found to be within the letter of the Law I have been told how true I cannot tell that there have been some votes in the honourable Parliament that those that did only counsel or advise those were not to be looked upon as Traytors I have been told so that those that did only speak as Councel for their Fee who were not the contrivers of it the Parliament did not intend they should be left to be proceeded against Court That Letter that was sent from the Commons to the King at Breda they speak first of the violation that was put upon the Parliament and of the base horrid Murther of his late Majesty It is said that the Parliament I conceive they meant of the remaining part they were not guilty but some few ambitious bloody guilty persons who contrived the same and others misled by them Cook The other matter of Law is this I say that I do hope that though that order which I was about to produce concering my acting that if it may not in a legal sense any way be said to be an Act of the Parliament and Commons yet it may be said to be such an order to bear out those that did Act according to it because there was then no other authory de facto otherwise it were not lawful for any man to exercise his profession during such a Power I hope Councellors might then exercise their profession aswel as others My Lord though I should suffer my self in this case I should be loth the honourable profession of the Law should I think I was in my Sphere acting as a Counsellor Now Gentlemen of the Jury that which I have to say to you is an evidence concerning matter of life it must be so clear that every one that hears it may understand it It is called an evidence because it is evident it is one reason why Prisoners for their lives are not allowed Counsel for matter of fact because the evidence is and ought to be so clear and plain that every one should be satisfied both Jury and standers by and it is a proper word to say the Prisoner is convicted that is as much as his mouth is stopped and therefore I say truly as I hope I may speak it to you without offence as Jeremy in another Case when some of the people would have had them put him to death as for me behold I am in your hand do with me as seemeth good and meet unto you 26. Jer. 14 15. ver saith he But know ye for certain that if ye put me to death ye shall surely bring innocent blood upon your selves I hope you will not willingly be Guilty of any such thing I must leave it to your consciences whether you believe that I had an hand in the K. Death when I did write but only that which others did dictate unto me and when I spoke only for my Fee and this I would be bold to say though the argument is not so directly confessed that humane Justice I do first say as this my principle and opinion is that as every man ought to pay his moral debts so all political debts there is a debt due to human Justice so political if the Lord should have suffered me to have been drunk and kill'd a man for which I ought to have died in stead of speaking for my self I would have rather intreated the Jury to have found me Guilty I think these things ought to be answered political debts when I was in Ireland and had opportunity of going away if I thought I had been Guilty I might have done it my name is put into his Majesties Proclamation It is true I was a prisoner three or four months before so that I could not render my self to what end should that Proclamation mention my name it was laid I obscured my self but I did not humane Justice doth never punish so much for expiation as for prevention The judgements of the learned Aquinas Grotius and Amesius and many others that if a man doth kill a man commit any thing worthy of death though he doth repent never so much yet that others may