King is acknowledged to have two capacities in him one a natural as he is descended of the Blood Royal of the Realm and the Body natural he hath in this capacity is of the creation of Almighty God and mortal The other is a politick capacity in respect of which he is a Body politick or mystical framed by the policy of man which is immortal and invisible To the King in both these capacities conjoyn'd Allegiance is due that is to say to the natural person of the King accompanied with his politick capacity or the politick appropriated to the natural The politick capacity of the King hath properly no body nor soul for it is framed by the policy of man In all Indictments of Treason when any one does intend the death and destruction of the King it must needs be understood of his natural body the other being immortal The Indictment therefore concludes contra Legiantiae suae debitum against the duty of his Allegiance so that Allegiance is due to the natural body Admitting then that thus by Law Allegiance is due to the King as before recited yet it is alwayes to be presumed that it is to the King in conjunction with the Parliament the Law and the Kingdom and not in disjunction from or opposition to them and that while a Parliament is in being and cannot be dissolved but by the Consent of the three Estates This is therefore that which makes the matter in question a new Case that never before happened in the Kingdom nor was possible to happen unless there had been a Parliament constituted as this was unsubjected to Adjournment Prorogation or Dissolution by the King's will Where such a power is granted and the co-ordinates thereupon disagree and fall out such effects and consequents as these that have happened will but too probably follow And if either the Law of Nature or England inform not in such case it will be impossible for the Subjects to know their duty when that Power and Command which ought to flow from three in conjunction comes to be exercised by all or either of them singly and apart or by two of them against one When new and never-heard-of Changes do fall out in the Kingdom it is not like that the known and written Laws of the Land should be the exact Rule but the Grounds and Rules of Justice contained and declared in the Law of Nature are and ought to be a Sanctuary in such cases even by the very Common Law of England For thence originally spring the unerring Rules that are set by the Divine and Eternal Law for Rule and Subjection in all States and Kingdoms In contemplation hereof as the Resolve of all the Judges it was agreed 1. That Allegiance is due to Soveraignty by the Law of Nature to wit that Law which God at the creation of Man infused into his heart for his preservation and direction the Law eternal Yet is it not this Law as it is in the heart of every individual man that is binding over many or legislative but as it is the Act of a Community or an Associated People by the right dictates and perswasions of the work of this Law in their hearts This appears in the Case of the Israelites Judg. 20 21 chapters cited in the 4th part of Cook 's Institutes where mention is made of a Parliament without a King that made War and that with their Brethren They met as one man to do it in vindication of that Justice unto which they were obliged even by the Law of Nature This is that which Chancellor Fortescue calls Political Power here in England by which as by the Ordinance of man in pursuance of the Ordinance of God the Regal Office constituted or the King 's Politick Capacity and becomes appropriated to his natural person Thus Politick Power is the immediate Efflux and Off-spring of the Law of Nature and may be called a part of it To this Hooker in his Ecclesiastical Polity agrees and Selden on that subject The Law of Nature thus considered is part of the Law of England as is evident by all the best received Law-Books Bracton Fleta Lambard upon the Saxon Laws and Fortescue in the praise of the Laws of England This is the Law that is before any judicial or municipal Law as the root and fountain whence these and all Government under God and his Law do flow This Politick Power as it is exercised in conjunction with and conformity to the Eternal Law partakes of its moral and immutable nature and cannot be changed by Act of Parliament Of this Law it is that Magna Charta and the Charter of Forest with other Statutes rehearsed in the Petition of Right are for the most part declaratory For they are not introductive of any new Law but confirmations of what was good in all Laws of England before This agrees with that Maxime Salus Populi suprema Lex that being made due and binding by this Law which in the Judgment of the Community declaring their mind by their own free chosen Delegates and Trustees in harmony with the Eternal Law appears profitable and necessary for the preservation and good of the whole Society This is the Law which is put forth by the common consent of the whole Realm in their Representative and according to the fundamental Constitutions of this Kingdom is that with which the Kings of this Land by the joynt co-operation of the three Estates do make and repeal Laws But through the disorders and divisions of the times these two Powers the Regal and Political which according to the Law of England make up but one and the same supream Authority fell assunder and found themselves in disjunction from and opposition to one another I do not say The question is now which of these is most rightly according to the principles of the Law of Nature and the Law of England to be adhered unto and obeyed but unto whether Power adherence is a crime in such an Exigent of State Which since it is such a new and extraordinary Case evidently above the Track of the ordinary Rules contained in the positive and municipal Laws of England there can be no colour to bring it within the Statute of 25. Ed. 3. cap. 2. forasmuch as all Statutes presuppose these two Powers Regal and Political in conjunction perfect unity and subserviency which this Case does not cannot admit So exceeding new and extraordinary a Case is it that it may be doubted whether and questioned how far any other Parliament but that Parliament it self that was privy to all its own Actings and Intentions can be an indifferent and competent Judge But however the point is of so abstruse and high consideration as no inferiour Court can or ought to judge of it as by Law-Books is most undeniable to wit Bracton and others This then being the true state of the Case and the spring of that Contest that ensued and received its decision by the late War
Parliament he desired he might have Counsel assigned him to argue them before their Lordships Some of these points he instanced in to wit 1. Whether a Parliament were accountable to any inferiour Court 2. Whether the King being out of possession and the Power Regent in others Here they stopt him not suffering him to proceed nor admitting that the King was ever out of possession To which Sir Henry replied The words of his Indictment ran thus that he endeavoured to keep out his Majesty and how could he keep him out of the Realm if he were not out But when he saw they would over-rule him in all and were bent upon his Condemnation he put up his Papers appealing to the Righteous Judgment of God who he told them must judge them as well as him often expressing his satisfaction to die upon this Testimony which Keeling one of the King's Counsel insultingly answered So you may Sir in good time by the grace of God The same person had often before shewed a very snappish property towards the Prisoner and Sir Henry sometimes answered him according to his folly For when he would have had the Book out of the Prisoner's hand wherein was the Statute of Westminster 2d. 31. Sir Henry told him he had a very officious Memory and when he was of Counsel for him he would find him Books Whereby was verified what was said to be spoken by him at first in answer to one of his Brethren on the Arraignment day Though we know not what to say to him we know what to do with him After Sentence given Chief Justice Forster endeavoured to take off the King from any Obligation by that Grant to the Petition of both Houses saying That God though full of mercy yet intended his mercy only to the penitent Reasons for an Arrest of Judgment writ by the Prisoner but refused to be heard by the Court. I. I Have been denied so much as to hear the Indictment read in Latine as it is the Original Record of the Court yea so much as a Copy of it in English hath been denied me during the whole time of my Tryal by the fight whereof I might be able to assign the defects of Law that may be in it Counsel also hath been denied not only before I pleaded but after and all points by me offered in Law to the Judges of the Court have been over-ruled without admitting me Counsel to argue the same and better inform the Judgment of the Court I have demanded that I might put in a Bill of Exceptions upon the Statute of Westminst 2d. cap. 31. This likewise is denied me over-ruled and judged as out of that Statute Neither will Counsel be allowed me in this to shew cause why it ought to be admitted as of Right And as no Counsel was allowed so neither were the Judges Counsel to me as they said themselves they would and ought to be but rather suffered me to wrong and prejudice my self some of them saying Let him go on the worst will be his own at last And they neither checked nor restrained the King's Counsel in their high and irritating expressions to the Jury to find me guilty One of whom were seen to speak privately with the Foreman of the Jury immediately before the Jurors went from the Bar after he had spoken openly That the Prisoner was to be made a publick Sacrifice in reference to the Actions done against his Majesty that now is All this is very far from that Indifferency in Tryal and from that Equality which the Law requires and they are bound by their Oath to afford me besides the undue proceedings in the business of the Petty Jury A List of forty eight persons was presented to me who being to me unknown and no time allowed me to gain any knowledge of them though I was permitted to challenge and refuse three Juries without shewing cause yet could not that refusal be upon such rational grounds as the Law supposes which doubtless intends substantial relief to the Prisoner in allowing him the liberty of such refusal whereas through my ignorance of the persons I might refuse the best and chuse the worst as to my safety And then whereas the Law further allows me the refusal of any other beyond the thirty five on just and exceptionable cause shewen what just exception was I capable to alledge in a sudden hurry against persons to me altogether unknown unless it would be taken for a just one that they were unknown to me All these things being so contrary to the Right which the Judges stand obliged to do to every one as they are for that purpose entrusted by God and the King is just cause for an Arrest of Judgment and a good Reason why they should yet at length allow me a Copy of the Indictment and assign Counsel to argue for the Prisoner against the defects in Law that may be found therein Without this Law is denied me which is my Birthright and Inheritance the best Birthright the Subject hath sayes Cook on Mag. Charta for thereby sayes he his Goods Lands Wife Children his Body Life Honour and Estimation are protected from injury The Life Birthright or Inheritance we have from our parents may soon be gone if this Fence thereof be broken down How great a wrong then it is for the Court to withhold it from me is manifest Are they not therefore in effect chargeable with my Blood by such unequal Proceedings as I have had in my Tryal II. My second Reason for an Arrest of Judgment is drawn from the Issue that is joyned in my Case which seems to depend chiefly upon matter of Law and that in such tender and high points as are only determinable in the high Court of Parliament For it is become the question Whether I am guilty or not guilty according as these Propositions following are truly or erroneously resolved 1. Whether the Parliament that began Novemb. 3. 1640 were dissolved by the King's Death and whether this Court may judge things done in Parliament 2. Whether the Powers regnant and de facto that successively were in being from Jan. 30. 1648 to Decemb. 20 1659 were such Powers de facto as are the King or Seigneur le Roy within the purview of the Stat. 25. Ed. 3. having the exercise of Regal Power in all the particulars of it though not the name 3. Whether during that time fore-mentioned his Majesty that now is were properly King de facto or whether he were not out of possession and without all exercise of his Regal Authority within the Realm 4. Whether the Case now in question be a Treason literally within the words of the Statute 25. Ed. 3. or at most any other than an interpretative and new Treason not declared before the very time of my Tryal and that only by the Judgment of the Court or opinion of my Judges eleven years after some of the things charged on me are alledged to have been committed As
to the first of these The Act for Continuance of the Long Parliament is express That all and every thing or things whatsoever done or to be done for the Adjournment Proroguing or Dissolving of that Parliament contrary to that Act shall be utterly void and of none effect I then thus argue The Judges do upon occasion of this Tryal resolve That the King's Death dissolv'd that Parliament No Act of Parliament hath yet declared it to be so and the Judges ought to have some Law for their guide as Cook well sayes To be sure if in process of time the Parliament shall expresly declare That not the King's Death but the Act for the Dissolution of that Parliament did dissolve it In such case these Judges Resolution by vertue of such Act is absolutely void But innocent Blood in the mean time may be shed and an Estate wrongfully taken away And in case what the Judges assert herein were Law 't is Law not known or declared till many years after the Fact committed At this rate who is secure of Estate or Life As to the second and third Queries or Propositions It does appear out of the third part of Cook 's Institutes fol. 7. and the Statute 11. Hen. 7. cap. 1. That Actings for the King in Fact are not to be questioned by the King in Right If it be said That there was no King in this case it may be replied That they who had the Power and Exercise of the Royal Jurisdiction as to Peace and War Coynage of Money power of Life and Death c. which are the highest Ensigns of Regal Authority must needs be the Powers regnant though not under the name of King and are within the Statute 25. Edw. 3. cap. 2. as a Queen also is adjudged and any sovereign Prince though under the title only of Lord as was the case of Ireland before it was a Kingdom And if so why not in more such persons as well as one that de facto exercise the Royal Power and Sovereign Authority under what name or title soever If upon this Nicety Judgment be given against me because the Powers regnant wanted the name and formality of a King I shall doubtless have very hard measure For the reason and equity is the same if the Powers regnant had the thing though not the Title And where there is the same Reason there is the same Law as is a known Rule Now there is the same Reason the Subject should be equally indempnified that acteth under any Sovereign Authority that hath not the name of a King as if it had If there had been many Kings as a Heptarchy hath been in England heretofore those would have been understood to be within the Statute and the reason and equity of the Statute is the same in all cases For the Law is made for the benefit and security of the Subject whom the Law requires not to examine the right of Soveraignty Nor is the danger less under one Government than another The Statute is for securing the Subject from all dormant Titles that they may safely pay their Allegiance when they receive Protection and that they may not be in danger of being destroyed by two Powers at the same time For that Power which is supream and de facto will be obeyed and make it Treason to do otherwise be it right or wrong And if the Subject be at the same time in danger of committing Treason against the Power de jure then is he in a miserable condition and state of unavoidable necessity which is provided against by the Laws of the Land Otherwise if he be loyal to the King de jure he shall be hanged by the King de facto and if he be faithful to the King de facto he shall die by the King de jure when he recovers possession Against this it was that the Statute of 11. Hen. 7. was provided in the difference betwixt the two houses of York and Lancaster My Case is either the same with that and then I desire the benefit of that Statute or else it is new and then I desire as is provided 25. Ed. 3. that it be referred to the Parliament So that it is either within the Equity of the Statute 11. Hen. 7. or else it is a new Case and not to be judged by this Court If the Judges in the Resolves by them delivered upon any of the particulars before-alledged have not declared that Law that ought to guide them but their particular Judgments or Opinions as undertaking to guide the Law and that in points of so grand concern as touch the Subjects Life in case their Judgments after should prove erroneous the Verdict given upon such Errors must needs be illegal and void Judgment therefore ought to be suspended till such time as the truth and certainty of the Law may be fully argued and cleared and that in the proper Court for the hearing and judging of this Case If this be not done but I be forthwith proceeded against notwithstanding any thing however rationally or legally alledged to the contrary by such undue precipitation and giving Sentence I am contrary to Magna Charta or Law of the Land run upon and destroyed without due form and course of Law And I am like to be deprived of Estate and Life upon no Law or certain Rule which was declared before the Fact no nor before the Tryal Upon these Considerations I desire an Arrest of Judgment and that Counsel may be assigned me and competent time allowed to make good my Averrements As an Argument to press this I desire leave of the Court That the Petition of the two Houses and the King's Assent to it may be read in open Court attested by one that is present who examined and compared it with the Book of Record in the Lords House by which it evidently appears that as well the King as both Houses of Parliament were agreed that admitting I were attainted yet Execution as to my Life should be remitted And if so there is no cause to precipitate the passing Sentence especially when also such weighty points in the Law are yet to be argued and cleared unless the Judges will evidently charge themselves with my innocent Blood III. My third Reason for an Arrest of Judgment is the manifest newness of this Case being such as never happened before in the Kingdom which withal is of so vast a consequence to people of all sorts and conditions within this Realm as nothing more And being so as I doubt not with your Lordships patience I shall make it appear It is the known Law witnessed by Bracton and antient approved Law-Books That in such Cases the Judges in the inferiour Courts ought not to proceed but bring it before the high Court of Parliament To prove therefore the newness of this Case besides what I have already alledged in my Defence before the Verdict give me leave to adde that which yet further shews the newness and
Oppressions of the People they were found guilty of The Statute under colour whereof they acted ran to this effect Be it enacted that the Justices of the Assizes and Justices of the Peace upon Information for the King before them to be made have full power and authority by their discretion to hear and determine all offences and contempts Having this ground they proceeded against the People upon meer Information in the execution of Penal Laws without any Indictment or Presentment by good and lawful men but only by their own Promoters or Informers contrary to the 29th of Magna Charta which requires That no free-man be proceeded against but by lawful Judgment of his Peers or by the Law of the Land Secondly This Act allowed them to hear and determine arbitrarily by their own discretion which is not according to the Law and Custom of England And Cook sayes 't is the worst and most aggravated oppression of all that is done under the colour of Law or disguise of Justice Such a Statute or Act of Parliament is not only against the light of Reason but against the express letter of unrepealed Statute-Law 42. Edw. 3. 1. It is assented and accorded That the great Charter and the Charter of Forest be holden and kept in all points and if any Statute be made to the contrary that shall be holden for none This also is consonant to the first chapter of the great Charter it self made 9. Hen. 3. We have granted to all the free-men of our Realm these Liberties under-written to have and to hold to them and their heirs of Us and our Heirs for ever But what if this great Charter it self had never been made had England been to seek for righteous Laws and just Liberties nothing lesse The same Liberties and Laws were ratified before that in the great Charter made the seventeenth year of King John and mentioned among others by Matthew Paris And to what yet amounted the matter of all these Grants but what the Kings themselves were bound before to observe by their Coronation Oaths as the antient fundamental Laws or Customs of this Land This we may find in Mr. Lambard's Translation of the Saxon Laws from the time of King Ina who began anno 712 to Hen. 1. who began 1100. Amongst the Saxons King Alfred is reputed the most famous and learned Compiler of our Laws which were still handed along from one King to another as the unalterable Customs of the Kingdom In the 17th chapter of Edward the Confessor's Laws The mention of the duty of a King which if not performed nec nomen Regis in eo constabit is remarkable And Mr. Lambard tells us that even William the Conqueror did ratifie and observe the same Laws that his kinsman Edward the Confessor did as obliged by his Coronation Oath So then neither the great Charter in King John's time nor that of 9. Hen. 3. were properly a new Body of Law but a Declaration of the antient fundamental Laws Rights and Liberties of this Nation in Brittish Saxon Danish and Norman times before This Cook in his Proem to the second part of his Institutes observes where he notes also that this Charter is not called great for quantity of words a sheet of Paper will contain it but for the great importance and weight of its matter Through the advice of Hubert de Burgo Chief Justice of England Edward the first in the eleventh year of his Reign did in a Council held at Oxford unjustly cancel this great Charter and that of Forest Hubert therefore was justly sentenc'd according to Law by his Peers in open Parliament Then 25 Ed. 1. The Statute called Confirmationes Charrarum was made in the first chapter whereof the Mag. Charta is peculiarly called the Common Law 25. Ed. 1. cap. 2. Any Judgment given contrary to the said Charter is to be undone and holden for naught And cap. 4. Any that by word deed or counsel go contrary to the said Charter are to be excommunicated by the Bishops and the Arch-Bishops of Canterbury and York are bound to compel the other Bishops to denounce sentence accordingly in case of their remisness or neglect The next famous sticklers to Hubert de Burgo for Arbitrary Domination were the two Spencers father and son by whose rash and evil counsel sayes Cook Edward the second was seduced to break the Great Charter and they were banished for their pains By these passages we may observe how the People would still be strugling in and by their Representatives for their Legal Rights and Just Liberties to obviate the Encroachers whereof they procured several new Ratifications of their old Laws which were indeed in themselves unrepealable even by Parliaments if they will act as men and not contradict the Law of their own Reason and of the common Reason of all mankind By 25 Ed. 1. cap. 1. Justices Sheriffs Majors and other Ministers that have the Laws of the Land to guide them are required to allow the said Charter to be pleaded in all its points and in all causes that shall come before them in Judgment This is a clause sayes Cook worthy to be written in letters of gold That the Laws to be the Judges guides and therefore not the Judges the guides of the Laws by their arbitrary glosses which never yet misguided any that certainly knew and truly followed them In consonancy herewith the Spaniard sayes Of all the three learned Professions The Lawyer is the only letter'd man his business and duty being to follow the plain literal construction of the Law as his guide in giving Judgment Pretence of mystery here carries in the bowels of it intents or at least a deep suspition of arbitrary domination The mind of the Law is not subject to be clouded disturbed or perverted by passion or interest 'T is far otherwise with Judges therefore 't is fitter and safer the Law should guide them than they the Law Cook on the last mentioned Statute affirms That this great Charter and the Charter of Forest are properly the Common Law of this Land or the Law that is common to all the People thereof 2 Ed. 3. cap. 8. Exact care is taken that no Commands by the Great or Little Seal shall come to disturb or delay Common Right Or if such Commands come the Justices are not thereby to leave to do Right in any point So 14 Ed. 3. 14. 11 Ric. 2. 10. The Judges Oath 18 Ed. 3. 7 runs thus If any force come to disturb the execution of the Common Law ye shall cause their bodies to be arrested and put into Prison Ye shall deny no man Right by the King's Letters nor counsel the King any thing that may turn to his dammage or disherison The late King in his Declaration at Newmarket 1641 acknowledged the Law to be the Rule of his Power And his Majesty that now is in his Speech to both Houses the 19th of May last said excellently The good old Rules of Law are
of Powder Then one Marsh was produced a Witness who proves That Sir Henry Vane proposed the new Model of Government Whitlock being in the Chair in these particulars 1. That the Supream Power delegated by the People to their Trustees ought to be in some Fundamentals not dispensed with 2. That it is destructive to the Peoples Liberties to which by God's blessing they are restored to admit any earthly King or single person to the Legislative or Executive Power over this Nation 3. That the Supream Power delegated is not on trusted to the Peoples Trustees to erect matters of Faith or Worship so as to exercise compulsion therein Tho. Pury proves That he was at the debating of the two last of these Propositions and believes they were proposed to the Chairman Whitlock by Sir Henry Vane but affirms confidently that Sir Hen. Vane gave Reasons to maintain them Tho. Wallis produced proves Sir Henry Vane and Col. Rich in the head of a Company in Winchester Park in Southwark and that the Capt. Leiutenant Linn said to the Souldiers that Sir Henry Vane had given them five pounds to drink that the said Linn sent home a key to his wife to send him four pounds out of his trunk to give the Souldiers John Cook deposeth That he was sent to the Horseshoe-stairs to meet Sir Henry Vane and Col. Rich and that Sir H. Vane delivered five pound to Capt. Linn to reward the Souldiers This was all the Evidence given by the King's Counsel To which Sir Henry Vane was required to make his Defence and to go through with his Case all at once and not to reply again upon the King's Counsel who resolved to have the last word to the Jury Sir HENRY VANE Cook in his Pleas of the Crown fol. 6. saith King is to be understood of a King regnant and in actual possession of the Crown and not of a King when he is onely Rex de jure and out of possession Now an interregnum is confessed by the Indictment All ensigns of Authority and badges of Government were visibly in another name and stile the King 's best friends suing and being sued in another name The Court told him He should first make his Case out in point of Suit and it would be then seasonable to stand upon matter of Law for said they it is a good Rule in facto jus Oritur and enjoyn'd him to call his Witnesses if he had any To which Sir Henry Vane desired Process of Court to summon them and a further time to answer the Charge But it was told him The Jury were to be kept without meat drink fire or candle till their Verdict was delivered in and therefore that could not be granted He then cited the 4th part of Cook 's Institutes concerning the Priviledge of Parliament and that many of these things being transacted there The Court here interrupted him and said If the things charged were done justifie them if not excuse them So he went to give answer to the Fact And as to the first Warrant Jan. 30. 1648 He said that his hand had been oftentimes counterseited and amongst other occasions for two great sums to the value of ten thousand pounds and that he had great reason to believe that this Warrant was forged and produced two Witnesses to prove it Then said Windham Justice It may be your hand may have been forged for receiving of Money but it is not to be conjectured that it should be forged to set Ships to Sea and directed to the Jury to consider of the circumstances Sir H. Vane Neither of the Witnesses ever saw me set my hand to either of these Warrants or Orders nor doth one Witness prove that he ever saw me sit in the Council of State He further said That he absented from the House from Decemb. 3. 1648 till Febr. 7. That he 〈◊〉 â—â—osen a Member of the Council of State without his consent and knowledge and being demanded to take an Oath of Approbation of what had been done to the late King he refused and caused it to be expunged That these Actings in Council if any were were by Authority of Parliament of a Parliament constituted in an extraordinary manner made indissolvable but by Act of Parliament He insisted much on the Preamble of that Act so as that Parliament being co-ordinate with the King for the Government was in the King and the two Houses what-ever he acted by Them or their Authority cannot be Treason within the Statute of 25 Ed. 3. He cited an Ordinance of Parliament in 1642 and said That he hoped these things had been laid asleep by the Act of Oblivion and if they should now rise in Judgment against him he feared they would shake that Security which the People promised themselves under that Act. But if he should be now called in question for those things which were transacted in that Parliament of which he was a Member he shal have the comfort and peace of those Actions to support him in his greatest sufferings He added That if he were excepted then must he be judged for the crime of the whole Nation and that crime must be ravelled into through him That the Case is such as never yet fell out to wit that the Government being entrusted to three Estates they should so fall out among themselves as the People cannot tell which to obey That where these great Changes fall out it is not possible for any man to proceed according to all formalities of Law That there was a Political Power by this Act of 17. Caroli co-ordinate with the King and where these Powers are not in conjunction but enmity to each other no Court inferiour to the Parliament by whose Authority these things were acted ought to be Judges of this Case which certainly never happened before He farther saith he was not the first mover in these actions and that he should be called in question for these matters by a King that was out of possession at the time when these things were acted would be inconvenient to say no more That when the three Estates were disjoyned he thought it the best policy to preserve the Government in its root to wit the Commons by whom it was preserved and at last restored to its former course That as to the Regiment that passed under his name he disown'd it That Reports of Messages are not the fault of the Reporter for his judgment does not always go along with them but he is bound to deliver his Message That he alwayes loved the Government as it is set forth in our ancient Law-Books and that that Parliament so much decried at last restored affairs to the â—â—sture in which they now are As to the Warrants signed by him he said they appear to be signed in the Name and by Order of the Council and his hand that subscribes is not so much active as passive to the Commands of the Council If the Council who commanded the signing were unwarrantable
the Parliament to take an Oath to give my approbation ex post facto to what was done I utterly refused and would not accept of sitting in the Council of State upon those terms but occasioned a new Oath to be drawn wherein that was omitted Hereupon many of the Council of State sate that would not take the other In like manner The Resolutions and Votes for changing the Government into a Commonwealth or Free-State were passed some weeks before my return to Parliament Yet afterwards so far as I judged the same consonant to the principles and grounds declared in the Laws of England for upholding that Political Power which hath given the rise and introduction in this Nation to Monarchy it self by the account of antient Writers I conceived it my duty as the state of things did then appear to me notwithstanding the said Alteration made to keep my station in Parliament and to perform my Allegiance therein to King and Kingdom under the Powers then regnant upon my principles before declared yeelding obedience to their Authority and Commands And having received Trust in reference to the safety and preservation of the Kingdom in those times of imminent danger both within and without I did conscientiously hold my self obliged to be true and faithful therein This I did upon a publick account not daring to quit my station in Parliament by vertue of my first Writ Nor was it for any private or gainful ends to profit my self or enrich my Relations This may appear as well by the great Debt I have contracted as by the destitute condition my many Children are in as to any provision made for them And I do publickly challenge all persons whatsoever that can give information of any Bribes or covert wayes used by me during the whole time of my publick acting Therefore I hope it will be evident to the Consciences of the Jury that what I have done hath been upon principles of Integrity Honour Justice Reason and Conscience and not as is suggested in the Indictment by instigation of the Devil or want of the fear of God A second great Change that happened upon the Constitution of the Parliament and in them of the very Kingdom it self and the Laws thereof to the plucking up the Liberties of it by the very roots and the introducing of an Arbitrary Regal Power under the name of Protector by force and the Law of the Sword was the Usurpation of Cromwel which I opposed from the beginning to the end to that degree of suffering and with that constancy that well near had cost me not only the loss of my Estate but of my very Life if he might have had his will which a higher than he hindred Yet I did remain a Prisoner under great hardship four months in an Island by his Orders Hereby That which I have asserted is most undeniably evident as to the true grounds and ends of my actions all along that were against Usurpation on the one hand or such extraordinary Actings on the other as I doubted the Laws might not warrant or indempnifie unless I were inforced thereunto by an over-ruling and inevitable necessity The third considerable Change was the total disappointing and removing of the said Usurpation and the returning again of the Members of Parliament to the exercise of their primitive and original Trust for the good and safety of the Kingdom so far as the state of the times would then permit them being so much as they were under the power of an Army that for so long a time had influenced the Government Towards the recovery therefore of things again into their own channel and upon the legal Root of the Peoples Liberties to wit their Common Consent in Parliament given by their own Deputies and Trustees I held it my duty to be again acting in publick Affairs in the capacity of a Member of the said Parliament then re-entred upon the actual Exercise of their former Power or at least strugling for it In this season I had the opportunity of declaring my true intentions as to the Government upon occasion of refusing the Oath of Abjuration before mentioned And whereas I am charged with keeping out his Majesty that now is from exercising his Regal Power or Royal Authority in this his Kingdom through the ill-will born me by that part of the Parliament then sitting I was discharg'd from being a Member thereof about Jan. 9. 1659 and by many of them was charged or at least strongly suspected to be a Royalist Yea I was not only discharged from my attendance in Parliament but confined as a prisoner at mine own house some time before there was any visible power in the Nation that thought it seasonable to own the King's Interest And I hope my sitting still will not be imputed as a failer of duty in the condition of a prisoner and those circumstances I then was in This I can say that from the time I saw his Majesties Declarations from Breda declaring his Intentions and Resolutions as to his Return to take upon him the actual Exercise of his Regal Office in England and to indempnifie all those that had been Actors in the late Differences and Wars as in the said Declaration doth appear I resolved not to avoid any publick question if called thereto as relying on mine own Innocency and his Majesties declared Favour as beforesaid And for the future I determined to demean my self with that inoffensiveness and agreeableness to my duty as to give no just matter of new provocation to his Majesty in his Government All this on my part hath been punctually observed whatever my sufferings have been Nor am I willing in the least to harbour any discouraging thoughts in my mind as to his Majesties Generosity and Favour towards me who have been faithfull to the Trust I was engaged in without any malicious intentions against his Majesty his Crown or Dignity as before hath been shewed And I am desirous for the future to walk peaceably and blamelesly Whatever therefore my personal sufferings have been since his Majesties Restoration I rather impute them to the false reports and calumnies of mine enemies and misjudgers of my actions than reckon them as any thing that hath proceeded from his Majesties proper inclination whose favour and clemency I have had just reason with all humility to acknowledge First with regard to his Majesties Speech made the 27th of July 1660 in the House of Peers wherein his Majesty expresly declared it to be no intention of his that a person under my circumstances should be excepted out of the Act of Indempnity either for Life or Estate And secondly however it was the Parliaments pleasure my self unheard though then in the Tower and ready to have been brought before them to except me out of the common Indempnity and subject me to question for my actions yet they themselves of their own accord admitting the possibility that in such questioning of me I might be attainted made
of that Statute several Kings have been deposed by Parliaments since the Conquest and as to my compassing or designing the natural death of the King's Person with what colour can I be accused of such intentions in the circumstances the King at that time was in beyond the Seas Secondly The assembling of men together without any hostility or injury offered to any person but for a man 's own security and defence in a time of confusion and distraction is not Levying War or Treason at the Common Law or by that Statute Yea in this Case and at the season wherein such an Act as this is alledged it might be supposed to be done for the King's Restoration as well as in opposition thereunto and the most favourable and advantagious construction ought to be made and put upon the Prisoner's actings or words where there is ambiguity so that they may be taken or interpreted divers wayes For the Law alwayes presumeth actions to be innocent till the contrary be manifestly proved However in a time of vacancy or an Interregnum when the Foundations of Government are out of course by the Law of Reason Nature and Common Prudence every man may stand upon his own guard endeavouring his own security and protection from injury and violence Thirdly To be adherent to the King's Enemies within his Realm c. cannot ought not to be understood of any adhaesion to a Parliament wherein the King by Law is supposed alwayes present as a part thereof Nor can the Long Parliament be called the King's Enemies without overthrowing the Act of Indempnity which the King hath declared to be the Foundation of the Nations present Peace and Security Lastly The Treasons alledged in the Indictment are said to have been committed when the King was out of possession So the Indictments runs to keep out the King c. Now my Lord Cook in the third part of his Institutes fol. 7. saith A King de jure and not de facto is not within this Statute Against such a one no Treason can be committed For if there be a King regnant in possession though he be Rex de facto and not de jure yet is he Seignior le Roy within the purview of this Statute and the other that hath Right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto And after in the same place he saith That by Law there is alwayes a King in whose Name the Laws are to be maintained and executed otherwayes Justice would fail The Act also of 11. Hen. 7. was made for security of the Subject on this behalf The word King also may and ought to be taken largely for any Sovereign Power in a King or Queen as Cook in the place fore-quoted shews and why not by the same reason in a Protector though a Usurper or any other persons one or more in whom Soveraignty is lodged or that have all the badges of Soveraignty as the calling of Parliaments enacting of Laws coining of Money receiving Forreign Ambassadors c. His Majesty that now is is granted by the very Indictment to have been then out of possession If so then was there either some other King or what was equivolent some Sovereign Power in actual possession and exercise or none If the former then was there a King de facto so no Treason could be committed against him that was King de jure only If the latter then the Government was dissolved no allegiance was due to any persons and so no offence could be properly Treason within the Statute But had the late Protector had the name and stile of a King no Treason could have been committed against the King de jure only Now God forbid that you should give away my Life upon such niceties because a usurping Protector was not clothed with the Title as well as Power of a King The Protector or any Usurper's taking or not taking the Title of a King in case he have the Power cannot alter the state of my supposed crime You ought not to be byassed by popular Reports concerning me 'T is easier to be innocent than so reported The one is in our own power not the other Fifthly Concerning the Evidence 1. No allegation was directly proved by two positive lawful Witnesses as in this case it ought to be 2. One of the Witnesses for the King confessed in open Court that to his knowledge my hand had been counterfeited to my prejudice and dammage in great Sums of Money yet Orders pretended to be signed by me wherein my hand may as well be counterfeited are taken as Evidence against me 3. The Issue of the whole Cause depended on the solution of some difficult Questions of so high a nature and great importance as could not safely be determined but in the high Court of Parliament As 1. Whether the Long Parliament called in Novemb. 1640 were dissolved by the late King's Death 2. Whether the successive remaining Powers that exercised the Royal or Supream Authority from 1648 to the Restoration of his now Majesty were not within the true sense and meaning of 25. Edw. 3. and 11. Hen. 7 As to other pertinent Queries thou mayest see them Reader in other parts of this Tryal That which remains as an Appendix to this Bill of Exceptions is to lay before thee the Grounds which plainly shew that there was a downright Conspiracy in Sir Vane's Tenants and others to prosecute him for Life and Estate under colour and pretence of Justice 1. Presently after I was committed to the Tower for High Treason and made a Close-Prisoner Mr. Oneale Sir William Darcy and Dr. Cradock obtained an Order from the King to seize and take into their possession all the Estates of such persons that were already or should be forfeited to his Majesty Hereupon the said Mr. Oneale and Sir Will. Darcy appointed some under them in the Bishoprick of Durham by name Thomas Bowes Esque now deceased and Capt. William Darcy to joyn with the said Dr. Cradock to put in execution the said Warrant as their Deputies who thereupon went to Raby Castle and demanded the Rent-Books of Thomas Mowbray my Steward offering him his place under them which he refused Contrary to this proceeding Sir Edward Cook expresly declares That before Indictment the Goods or other things of any Offender cannot be searched inventoried or in any sort seized nor after Indictment seized removed or taken away before Conviction or Attainder Institut 3d part chap. 133. concerning the Seizure of Goods c. for Offences c. before Conviction 2. At the Instance and Prosecution of my Tenants and others an Order was made by the House of Commons not of the Lords requiring the Tenants of such persons as were excepted out of the General Pardon to detain their Rents in
before and who is the Proper and Competent Judge Also whether the Laws be not perfectly silent as never supposing such a Case possible to happen by reason that the Power used by the one for Dissolving the other never before suffered the Opposition to rise so high The Fourth Querie is Whether he in this Case that keeps his Station and place of Trust wherein God and the Law did set him with care to demean himself according to the best of his Vnderstanding agreeably to the Law and Customes of Parliament and pursuant to their Votes and Directions so long as they sit and affirm themselves to be a Parliament and uses his best endeavours in the exercise of that publick Trust that no Detriment in the general come unto the Common-wealth by the failer of Justice and the necessary Protection due from Government without any designing or intending the Subversion of the Constitution but onely the securing more fully the Peoples Liberties and just Rights from all future Invasions and Oppressions be not so far from deserving to be judged Criminal in respect of any Law of God or Man that he ought rather to be affirmed One that hath done his Duty even the next best that was left to him or possible for him to do in such a dark stormy season and such difficult Circumstances As to the Right of the Cause it self it ariseth out of the matter of Fact that hath happened and by the Just and Wise Providence of God hath been suffered to state it self in the Contest between the Personal Will and declared Pleasure of the King on the one Hand and the publick Will or Vote of the People in Parliament on the other declaring it self either in Orders or Ordinances of both Houses or in the single Act of the House of Commons asserting it self a Parliament upon the Grounds of the Act 17 Car. providing against its dissolution This will appear with the more evidence and certainty by considering wherein either part had a wrong Cause or did or might do that which was not their Duty taking the measure of their Duty from what as well the King as the Peoples Representative are obliged unto by the Fundamental Constitution of the Government which binds them in each of their Capacities and distinct Exercises of their Trust to intend and pursue the true good and welfare of the whole Body or Community as their End This in effect is to detain the People in Obedience and Subjection to the Law of God and to guide them in the wayes of Righteousness unto God's well-pleasing and to avoid falling out or disagreeing about the Way or Means leading to that End Hence that party which in his or their actings was at the greatest distance from or opposition unto this end and wilfully and unnecessarily disagreed and divided from the other in the Ways and Means that were most likely to attain this End they were assuredly in the Fault and had a Wrong Cause to mannage under what ever Name of Face of Authority it was Headed and Upheld And such a Wrong Cause was capable of being espoused and mannaged under the face of Authority as might be pretended unto by either part For as the King insisting upon his Prerogative and the binding force which his personal Will and Pleasure ought to have though in distinction from and opposition to his Parliament might depart from the end of Government answerable to his Trust and yet urge his Right to be obeyed So the publick Will of the People exercised in and by the Vote of their Representative in Parliament asserting it self to be of a binding force also and to have the place of a Law though in distinction from the King and Laws also as saith the King whatever otherwise by them is pretended might also depart from the true end of Government answerable to their Trust and yet insist upon their Right to be Obeyed and submitted unto and having Power in their hands might unduely go about also to compel Obedience It is not lawful either for King or Parliament to urge Authority and compel Obedience as of Right in any such Cases where according to the Law of Nature the People are at Liberty and ought to have a Freedom from yeelding Obedience as they are and ought to have when ever any would compel them to disobey God or to do things that evidently in the eye of Reason and common sense are to their hurt and destruction Such things Nature forbids the doing of having for that very purpose armed Man with the defensive Weapon of refusing to consent and obey as that Priviledge whereby Man is distinguished from a Beast which when he is deprived of he is made a Beast and brought into a state of perfect Servitude and Bondage Such a state of Servitude and Bondage may by God's just Judgement be inflicted upon man for sin and the abuse of his Liberty when by God restored The Liberty which man was at first created in is that Priviledge and Right which is allowed to him by the Law of Nature of not being compelled under any pretence whatsoever to sin against God or to go against the true good and welfare of his own Being that is to say of his inward or outward man but in both these cases to have and to use his just Liberty to Dissent and refuse to Obey For this every man hath that in himself which by God is made a proper and competent Judge For as to all sin against God and the righteousness of his Law the Light of Conscience that is to say the Work of the Law in and upon the Mind or inward Sense and in conjunction with it doth lighten every one that cometh into the World accusing or excusing if it be but hearkened unto and kept awake And for all such actings as tend to the ruine and destruction of man in his outward and bodily concerns and as he is the Object of Magistratical Power and Jurisdiction every man hath a Judgement of common Sense or a way of discerning and being sensible thereof common to bruit Beasts that take in their Knowledge by the door of their Senses but is much heightned and enobled in man by the personal union it is taken into with his intellectual part and intuitive way of discerning things through the inward reflectings of the mind compared with the Law of God This inferiour Judgement in man when it is conjoyned with and confirmed by the Judgement of his Superiour part is that which we call Rational or the dictates of right Reason that man hath a natural right to adhere unto as the ordinary certain Rule which is given him by God to walk by and against which he ought not to be compelled or be forced to depart from it by the meer Will and Power of another without better Evidence that is a higher a greater or more certain way of discerning This therefore in Scripture is called Man's Judgement or Man's Day in distinction from the Lord's
folly to be alwayes but beginning to Live Life is but a sorrowful state a perpetual issue of Errors 'T is a Web of unhappy Adventures A pursuit of divers Miseries enchained together on all sides Solum id certum nil esse certi Nec miserius quicquam homine nec superbius Vanity is the most essential and proper quality of Man's first Nature The World is not worth that Labour and Pains Man exercises in and about it which caused that saying A wise man should do nothing but for himself T is not reason wise men should put themselves in danger for Fooles much less for Knaves The Will onely is truly Mans own and the considerable part of the reasonable Soul On it depend the issues of Good or Evil Life or Death All the rest of a Man his Understanding Memory Imagination may be taken from him altered troubled by a thousand accidents But the Will is so much in our own power that it cannot be taken away though its action may be hindred 'T is our own till we knowingly and freely give it away which may be And he that hath once absolutely given up his Will to another is no more his own man He hath left himself nothing of his own T is by the Will we are good or evil happy or unhappy Concerning Government He that gives up his Will to the Rule and Government of another becomes subject to that other Men that are born equal come to be made subject two wayes either by the free giving up of themselves to others or by others violent assuming and exercising power over them because they are strangers as Nimrod the mighty hunter of men served his fellow mortals Government is either Royal or Seignioral and Tyrannical as the Turks 'T is then properly Royal be it administred by one by many or by all their Representatives when he or they that have Soveraign Power obey the Laws of Nature preserve the natural Liberty and propriety of the Goods and Persons of the Subjects which no reasonable men acted by sound judgement will ever absolutely give away but secure their right in and power over by fundamental Contracts and Agreements with their Governors Absolute Soveraignty is a perpetual power over all without any restraint limitations or conditions put upon the Soveraign This consists in a power of giving Laws to all in general and to every one in particular without the consent or gift of any others and requiring universal and undispensable obedience to all his Commands under just penalties This Soveraignty is proper onely to the highest Being not at all to Creatures though where the Government is Despotical and Seignioral it is assumed and exercised But Government Royal is that which is consonant to the immutable Laws of Nature and Dictates of right Reason which require a conservation of the Subjects Liberty and Propriety in their goods and persons as well as the preservation and upholding of Empire and Authority in the Prince and find out the Medium through the mutual Agreements of Soveraign and Subjects for both to consist In Quarrels between Subjects and Soveraigns about the Subjects Liberty and the Kings Prerogative 't is seldom seen but the Error lies on the Soveraign's part who is apt to be flattered into the presumptuous exercise of such an absolute Soveraignty and Legislative Dominion over them as becomes no creature and exceeds all the bounds of that Contract he made with them at his Inauguration All just Power and Authority is from God and by virtue of his Ordinance and Institution He therefore that resisteth the Power resisteth the Ordinance of God But all contrarient actings against the Prince are not to be accounted a resisting of the Power especially when the whole State is concerned and the business is managed by publick Trustees called and authorized by Law as Conservers of the State and Defenders of the publick Liberties and Lawes thereof In such a publick capacity to stand in the gap when a Breach is made and hinder any charge or attempt that would ruinate the State is Duty In such case they ought to withstand and hinder the violent proceedings of any either by way of Justice in a Legal tryal or by force For the Prince is not Master of the State but onely a Guardian and Defender thereof from injuries and evil Yet these affaires for redress of Grievances in case of Princes failers belong not to all but to the Tutors and Maintainers of the State or those that are interested therein as Electors in Elective States and in Hereditary States the States General and Representative Body of the Kingdom according to the tenor of their fundamental Laws In this case it is generally acknowledged lawful to resist a Tyrant Under the cross Accidents issuing from such Contests to which man is subject through others arbitrary Domination he may carry himself well two wayes 1. By a strong and vigorous resistance thereof to the last for diverting or blunting the point of it so as either to escape or force it 2. The other way and that perhaps the surest is to take and receive these Accidents at the worst let them prove what they will though to the loss of Life and all that 's dear to him in this World To resolve within himself to bear them sweetly and patiently and peaceably to attend whatever shall happen without tormenting himself about it or loosing the calmness and serenity of his mind in going about to hinder or prevent it He that takes the first course labours to escape he that takes the latter is content rather to suffer This many times proves the better bargain 'T is possible to incur greater inconveniency and loss in pleading and contending than in loosing or in flying for safety than in suffering Concerning Friendship Perfect friendship is a very plain and universal complication or enfolding of two Soules in one so that the Conjunction is most intimate and inseparable They can no more be divided nor would they if they might Secondly It is very free being built upon the pure choice and liberty of the Will without any other obligation or forreign motive Thirdly Without any exception of things goods honours judgements thoughts wills Life Marriage it self is some resemblance of this divine knot as saith the Apostle who from thence mounts in his contemplation to the great mysterie of this kind between Christ and his Church Abraham is called the friend of God Concerning Enemies In reference to our Enemies we must take care not to meditate Revenge Yet in some sense we may account it an excellent and worthy revenge to slight the worst they can do whereby we take away the pleasure which they think to have in vexing us We must in suffering Injuries have respect to our selves and to him that offends us Touching our selves we must take heed that we do nothing unworthy or unbecoming us that may give the enemy advantage against us As to him that offends us we should be wise as
of the King's Authority and of his Kingdom against the personal Commands of the King opposed thereunto though accompanied with his presence is Treason or levying War against the King Such Interpretation is very far from the sense of that Statute and so much the Statute it self speaks beside the authority of Book-cases For if the clause of levying War had been meant only against the King's Person what need had there been thereof after the other branch in the same Statute of compassing the King's death which would necessarily have implied this And because the former doth imply this it seems not at all to be intended at least not chiefly in the latter branch but the levying War against his Laws and Authority and such a levying War though not against his Person is a levying War against the King whereas the levying of Force against his personal Commands though accompanied with his Presence and not against his Laws and Authority but in the maintenance thereof is no levying of War against the King but for him especially in a time of so many successive plots and designs of Force against the Parliament and Kingdom of probable Invasion from abroad and of so great distance and alienation of his Majesties affections from his Parliament and People and of the particular danger of the Place and Magazine of Hull of which the two Houses sitting are the most proper Judges In proclaiming Sir John Hotham Traitor they say The breach of the Priviledge of Parliament was very clear and the subversion of the Subjects common Right For though the Priviledges of Parliament extend not to these cases mentioned in the Declaration of Treason Felony and breach of the Peace so as to exempt the Members of Parliament from Punishment or from all manner of Process and Tryal yet it doth priviledge them in the way and method of their Tryal and Punishment and that the Parliament should first have the Cause brought before them that they may judge of the Fact and of the grounds of their Accusation and how far forth the manner of their Tryal may or may not concern the Priviledge of Parliament Otherwise under this pretext the Priviledge of Parliament in this matter may be so essentially broken as thereby the very Being of Parliaments may be destroyed Neither doth the sitting of a Parliament suspend all or any Law in maintaining that Law which upholds the Priviledge of Parliament which upholds the Parliament which upholds the Kingdom They further assert That in some sense they acknowledge the King to be the only person against whom Treason can be committed that is as he is King and that Treason which is against the Kingdom is more against the King than that which is against his Person because he is King For Treason is not Treason as it is against him as a man but as a man that is a King and as he hath and stands in that relation to the Kingdom entrusted with the Kingdom and discharging that Trust They also a vow That there can be no competent Judge of this or any the like case but a Parliament and do say that if the wicked Counsel about the King could master this Parliament by force they would hold up the same power to deprive us of all Parliaments which are the ground and pillar of the Subjects Liberty and that which only maketh England a free Monarchy The Orders of the two Houses carry in them Law for their limits and the Safety of the Land for their end This makes them not doubt but all his Majesties good Subjects will yeeld obedience to his Majesties Authority signified therein by both Houses of Parliament for whose encouragement and that they may know their Duty in matters of that nature and upon how sure a ground they go that follow the Judgement of Parliament for their guide They alledge the true meaning and ground of that Statute 11. Hen. 7. cap. 1. printed at large in his Majesties Message May 4 This Statute provides that none that shall attend upon the King and do him true service shall be attainted or forfeit any thing What was the scope of this Statute Answ To provide that men should not suffer as Traitors for serving the King in his Wars according to the duty of their Allegiance But if this had been all it had been a very needless and ridiculous Statute Was it then intended as they seem to make it that print it with his Majesties Message that those should be free from all crime and penalty that should follow the King and serve him in War in any case whatsoever whether it were for or against the Kingdom or the Laws thereof That cannot be for that could not stand with the duty of their Allegiance which in the beginning of this Statute is expressed to be to serve the King for the time being in his Wars for the defence of him and the Land If therefore it be against the Land as it must be if it be against the Parliament the Representative Body of the Kingdom it is a declining from the duty of Allegiance which this Statute supposes may be done though men should follow the Kings Person in the War Otherwise there had been no need of such a Proviso in the end of the Statute that none should take benefit thereby that should decline from their Allegiance That therefore which is the Principal Verb in this is the serving of the King for the time being which cannot be meant of a Perkin Warbeck or any that should call himself King but such a one as whatever his Title might prove either in himself or in his Ancestors should be received and acknowledged for such by the Kingdome the Consent whereof cannot be discern'd but by Parliament the Act whereof is the Act of the whole Kingdom by the personal Suffrage of the Peers and the Delegate Consent of the Commons of England Henry 7th therefore a wise Prince to clear this matter of contest happening between Kings de facto and Kings de jure procured this Statute to be made That none shall be accounted a Traitor for serving in his Wars the King for the time being that is him that is for the present allowed and received by the Parliament in behalf of the Kingdom And as it is truly suggested in the Preamble of the Statute It is not agreeable to reason or conscience that it should be otherwise seeing men should be put upon an impossibility of knowing their duty if the Judgment of the highest Court should not be a Rule to guide them And if the Judgment thereof is to be followed when the question is who is King much more when the question is what is the best service of the King and Kingdom Those therefore that shall guide themselves by the Judgment of Parliament ought what ever happen to be secure and free from all account and penalties upon the ground and equity of this Statute To make the Parliament countenancers of Treason they say is enough
to have dissolv'd all the bands of service and confidence between his Majesty and his Parliament of whom the Law sayes a dishonourable thing ought not to be imagined This Conclusion then is a clear Result from what hath been argued That in all Cases of such difficulty and unusualness happening by the over-ruling Providence of God as render it impossible for the Subject to know his duty by any known Law or certain Rule extant his relying then upon the Judgment and Reason of the whole Realm declared by their Representative Body in Parliament then sitting and adhering thereto and pursuing thereof though the same afterwards be by succeeding Parliaments judged erroneous factious and unjust is most agreeable to right Reason and good Conscience and in so doing all persons are to be free and secure from all Account and Penalties not only upon the ground and equity of that Statute 11 Hen. 7. but according to all Rules of Justice natural or moral The day of Arraignment being Monday June 2. 1662. Reader The best account thou canst yet be furnished with as to this dayes proceedings in Court is as followeth SIR Henry Vane was the last Term indicted of High Treason before the Middlesex Grand Jury and the Bill being found by them he was upon Monday the second of June this Term arraigned to this effect That you as a false Traitor against his most excellent Majesty King Charles the second your supream and natural Lord not having the fear of God before your eyes and withdrawing that your duty and allegiance which a true Subject ought to have and bear to our said Leige and sovereign Lord thirteenth of May in the eleventh year of our said sovereign Lord the King at the Parish of St. Martins in the fields in the Country of Middlesex did compass and imagine the Death of our said sovereign Lord the King and the ancient frame of Government of this Realm totally to subvert and keep out our said sovereign Lord from the exercise of his Regal Government and the same the better to effect the said Sir Henry Vane the said thirteenth day of May in the said eleventh your c. at St. Martins aforesaid together with other false Traitors to the Jurors unknown did traiterously and maliciously assemble and sit together and then and there consulted to bring the King unto destruction and to hold him out from the exercise of his Regal Authority and then and there usurped the Government and appointed Officers to wit Colonels and Captains of a certain Army raised against the King against the Peace of our sovereign Lord the King his Crown and Dignity and contrary to the form of the Statute in that case made and provided And the better to effect this the twentieth of December in the said eleventh year with a multitude to the number of a thousand persons to the Jurors unknown in warlike manner assembled and arrayed with Guns Trumpets Drums c. did levy War against the Peace c. and contrary to the form of a Statute Which being read he prayed to have it read a second time which was granted him He then prayed to have it read in Latine which all the Court denyed and Keeling the King's Serjeant said That though all Pleas and Entries are set down on Record in Latine yet the agitations of Causes in Court ought to be in English The Prisoner moved several Exceptions to the Indictment as that the 25. Ed. 3. is not pursued that he had levied no such force as amounted to a levying of War Also the place in which persons with whom are both uncertain and the particular acts of levying War being not set forth he thought therefore the Indictment was insufficient Also he said here is a long time of Action for which I am charged and I may be concern'd for what I acted as a Member in that sovereign Court of Parliament and if any thing concerns the Jurisdiction of that Court I ought not to be judged here at which the Court and King's Counsel took great offence He said also There hath been an Act of General Pardon since that time whereby all Treasons are put in utter oblivion and though Sir Henry Vane were excepted yet none consent that he was that Sir Henry Vane But the King's Counsel said If he would plead that Plea they would joyn that Issue with him if he pleased which if it should be found against him it would be too late to plead not guilty But the Court said in favour of life a man may plead a double Plea and give in his Exception and plead over to the Felony or Treason not guilty But as to the Exceptions taken to the Indictment they gave little heed to them but pressed him to plead or confess Whereupon he pleaded Not guilty and had four dayes to wit till Friday next for his Tryal From another hand take as followeth The Prisoner did much press for Counsel to be allowed him to advise with about any further Exceptions to the Indictment besides those by him exhibited and to put all into form according to the customary proceedings and language of the Law as also to speak to them at the Bar on his behalf he not being vers'd in the punctilio's of Law-writings and Pleas. He further said That the Indictment which so nearly concern'd his Life being long and his memory short it could not well be imagined that he should upon the bare hearing it read be able in an instant to find out every material Exception against it in form or matter He pleaded a good while on this account but Counsel was finally denied him till he should plead guilty or not guilty unto which being a third time urged he pleaded Not guilty The Court having assured him beforehand that after pleading Counsel should be assigned him which yet never was performed Here followeth a Transcript of the Prisoners own Papers containing certain Memorandums pleadable upon his Arraignment Memorandums for and towards my Defence Upon hearing the Indictment read and before pleading FIrst To lay before the Court the impossibility that he humbly conceives is already in view as to the having any such indifferent and equal Tryal as the Law intends him and doth require and command on the behalf of all the free-People of England The Rise for this Conception he takes from what hath been already done in relation to the Prisoner himself unheard unexamined and yet kept close Prisoner for near two whole years This he shall leave to the Judgment of the Court after he hath made known the particulars thereof unto them as necessary to precede the thing demanded of him in pleading guilty or not guilty Secondly What is the indifferency which the Law requires and appoints throughout as well in matters that go before the Tryal as in the proceedings at the Tryal if it self Before the Tryal and in the first step to it which is the keeping and securing his person Magna Charta is clear and gives this
of Charge comes to be exhibited And as this is the Case of the Person before his appearance at this Bar with respect to the foresaid unequal proceedings towards him and the great disadvantages put upon him and all these as it were in a continued series of Design so the matters and things themselves with which it now appears he is charged in the Indictment make his Case still very extraordinary and unusual involving him in difficulties that are insuperable unless God's own immediate Power do shew it self in working his deliverance The things done are for many years past in a time of Differences between King and Parliament and Wars ensuing thereupon Many extraordinary Changes and Revolutions in the State and Government were necessitated in the course of God's Providence for wise and holy ends of his above the reach of humane wisdom The Authority by which they are done is prejudged The Orders Votes and Resolutions of Parliament are made useless and forbidden to be produced Hereby all manner of defence is taken away from the Prisoner and that which was done according to Law as the Laws of those times were is endeavoured to be made unlawful and so the persons acting according to such Laws are brought to punishment The Judges as hath been shewed are forestalled in their Judgements by the declared sence of Parliaments given ex post facto The Jurors are put upon difficulties never known before for twelve Commoners to judge the Actions of all the Commons of England in whom they are included as to whose Judgment is the right the one or the others and whether their Representatives be trusty The Party indicted is under an incapacity to bring Witnesses as well from the nature of the place wherein the things were done within the Walls of the House as from the shortness of time having heard nothing of his Charge and being kept a close Prisoner to the last day His Solicitors and persons imployed in his Law-businesses were also restrained from him It is also most evident that the matters for which he is questioned being the Product of so many years Agitations of Parliamantary Counsels and Arms cannot be of a single concern nor be reputed as the actions of a private man done of his own head nor therefore come within any of the six Classes of Treason contained in 25. Ed. 3. It is a Case most unusual and never happening before in this Kingdom yet it is alledged in the Indictment to be a levying War within that Statute and so comes to have the name of High Treason put upon it thereby if possible to deprive him of the use and benefit of Counsel as also of competent time to prepare for his Defence and all fitting and requisit means for the clearing of his Innocency Unto this unless some remedy be afforded by the justice candor and favour of this Court it may be better for the Prisoner for ought he yet knows to be immediately destroyed by special Command if nothing else will satisfie without any form of Law as one to whom Quarter after at least two years cool blood is thought fit to be denied in relation to the late Wars This may seem better than under a colour and form of Justice to pretend to give him the benefit of the Law and the King's Courts whose part it is to set free the Innocent upon an Equal and Indifferent Tryal had before them if their Cause will bear it but it is very visible beforehand that all possible means of Defence are taken and withheld from him and Laws are made ex post facto to fore-judge the merit of the Cause the Party being unheard And when he hath said all this that as a rational man does occur to him and is fit for him to represent in all humility to the Court he craves leave further to adde That he stands at this Bar not only as a man and a man clothed with the Priviledges of the most Sovereign Court but as a Christian that hath Faith and reliance in God through whose gracious and wise appointment he is brought into these circumstances and unto this place at this time whose Will he desires to be found resigned up into as well in what He now calls him to suffer as in what He hath called him formerly to act for the good of his Country and of the People of God in it Upon this bottom he blesses the Name of his God he is fearless and knows the issue will be good what ever it prove God's strength may appear in the Prisoner's weakness and the more all things carry the face of certain ruine and destruction unto all that is near and dear to him in this world the more will divine deliverance and salvation appear to the making good of that Scripture That he that is content to lose his life in God's Cause and Way shall save it and he that instead thereof goes about to save his life upon undue terms shall lose it Far be it therefore from me to have knowingly maliciously or wittingly offended the Law rightly understood and asserted much less to have done any thing that is malum per se or that is morally evil This is that I allow not as I am a Man and what I desire with stedfastness to resist as I am a Christian If I can judge any thing of my own Case The true reason of the present difficulties and straits I am in is because I have desired to walk by a just and righteous Rule in all my Actions and not to serve the lusts and passions of men but had rather die than wittingly and deliberately sin against God and transgress his holy Laws or prefer my own private Interest before the Good of the whole Community I relate unto in the Kingdom where the lot of my residence is cast Here follow the chief Observables as to matter of new Argument on the day of his Tryal being Friday June 6. 1662. ON this day the Sheriff returned forty eight Freeholders of the Country of Middlesex After thirty two were challenged by the Prisoner he had a Jury of Twelve men sworn to wit Sir William Roberts junior Sir Christopher Abdy John Stone Henry Carter John Leech Daniel Cole Daniel Browne Thomas Chelsam Thomas Pitts Thomas Vpman Andrew Bent and William Smith The Attorney-General's Speech to the Jury The Indictment is for traiterously imagining and intending c. the Death of the King This very imagination and compassing c. is Treason Yet forasmuch as the intentions of the heart are secret the Law cannot take notice of them till they are declared by Overt Act. Therefore we shall give in Evidence That for the accomplishing of these Intentions the Prisoner sate with others in several Councils or rather Confederacies incroached the Government levied Forces appointed Officers and at last levied open and actual War in the head of a Regiment If any of these crimes be proved it is sufficient to make him guilty within this Indictment
The Parliament who appointed the Council must be much more unwarrantable And here he offered these points to be considered and pray'd earnestly to have Counsel assigned him to speak to them 1. Whether the collective body of the Parliament can be impeached of High Treason 2. Whether any person acting by Authority of Parliament can so long as he acteth by that Authority commit Treason 3. Whether matters acted by that Authority can be called in question in an inferiour Court 4. Whether a King de jure and out of possession can have Treason committed against him he not being King de facto and in actual possession and pray'd it might be argued by Counsel 5. Whether matters done in Southwark in another County may be given in evidence to a Middlesex Jury As to the last Exception the Court said That he was indicted for compassing and imagining the King's Death in Middlesex and any overt act to prove this Imagination may be given in evidence wheresoever it be acted To which Sir Hen. Vane prayed the benefit of a Bill of Exception upon the Statute of Westminster 2. cap. 31. and prayed that the Justices might seal it which they all refused and held it lay not in any case of the Crown The King's Counsel desired he might call his Witnesses if any he had for if they once came to reply to him he must then be silent and consented that if it would aid him they would allow his Actings to be in the Name and by the Authority of the Council of State and the Actings of the Council of State to be by Authority of what he called a Parliament Sir Hen. Vane replyed Then what I acted in the Council of State and Committee of Safety constituted by the Parliament to endure for eight dayes you will allow me Then you must prove that I ever acted in the other Council of State after the Parliament was turned out Then the King's Counsel produced a Warrant dated Novemb. 3. 1659 which was sent in pursuance of an Order of the Committee of Safety by Sir Hen. Vane as Treasurer of the Navie This Warrant was for the sending of divers Arms Northwards after Mr. Lambert who was gone down to oppose the now Duke of Albemarle Sir Hen. Vane produced Will Angel Brisco Middleton c. Officers of that Regiment which went under his name who having recourse unto him for Orders about Octob. 1659 he bad them desist and declared his dis-satisfaction in their proceedings and this after their several importunities to have Orders from him And thus he closed his Defence FYNCH Sollicitor As to pretence of the power of Parliament It is to be known that it was not the eighth part of the House of Commons such as were let in to do all that hath been complained and the acting under Authority of such an End of a Parliament under such a Violation was no Excuse but an Aggravation but that the Parliament was in Law ended by the death of the late King notwithstanding that Act of 17. Caroli primi appears thus First The King 's Writ for a Parliament is ad tractandum nobiscum which is intended as well of the natural capacity of the King as of his politick Secondly 'T is absurd to say that the Acts of Parliament of King Charles the first should be his Acts in the time of King Charles the second Thirdly A Commission of Sewers enacted to be on foot for ten years expires by the death of the King and the authority of the Commissioners is at an end Fourthly It is not possible for one King to impose a Parliament upon a successor So much for his acting by colour of authority of Parliament And as to the Question Whether an House of Parliament can commit Treason If they depart from that Allegiance which they have sworn at their first meeting they are impeachable for it As to a Co-ordination in the Parliament he denied it As to the Question Whether the King being out of actual possession can have Treason committed against him he affirmed it And said otherwise if Rebellion should be so prosperous as to depose or oppress the King in Battel the Offenders are not to be called in question because they prevailed He said it was the Plea of Watson the Jesuite who being Indicted for compassing the death of King James in Scotland after he was declared King of England and before his actual entring into this Realm made this Defence That the King was never in possession of the Crown Windam Justice As to the Act of 17. Caroli and the Preamble of that Act so much insisted upon by the Prisoner 1. He held that the Parliament had not greater Authority by it but were onely made more durable than other Parliaments have been but he held that the Parliament was absolutely dissolved by the death of the King and put this case If it should be enacted that such a Marriage should continue till it was dissolved by Act of Parliament If one dies it is a determination of it in Fact so as no man can say but it is absolutely dissolved 2. It must continue in the degree and dignity of a Parliament If the House be under a force and some kept out some let in to serve a Turn what-ever they act is a Nullity in Law For Freedom is the principal essence and honour of a Parliament yet though the House be under a Force the House is not dissolved by such Force but the proceedings are to be suspended till it require its former Liberty and this as well by the Common Law as by the Civil and Canon Laws of all other Countries 3. The Parliament is the King 's great Council The Peers are Consiliarii nati If they be forc'd away or laid aside as here they were all the rest is but Magni Nominis Umbra Twisden held the same opinion That it is not the sitting of a few Members within those Walls that will continue it a Parliament And though another Parliament a great many years after the Kings death declared it to be at an end yet that Act was but Declaration it was at an end before Whether a Parliament may commit Treason is not the Question but Whether a few of the House shutting out their Fellows and usurping the Government were not Traitors Foster held the same opinion and said The distinction between the Politick and Natural capacity of the King was the Treason of the two Spencers That Priviledge of the Parliament is no shelter for breach of the Peace much less for Treason Twisden added That to compass the Death of the King as a natural person was Treason to compass his Death in his Politick capacity as to depose him was Treason and both provided for by the Act of 25. Ed. 3. That in the same instant the late King expired in the very same his now Majesty was King de facto and affirmed the cases of Watson and Cleark 1. Jac. If an Army be raised against the King
it their humble desire to his Majesty that in such case Execution as to my Life might be remitted Unto this his Majesty readily gave his Grant and Assent And I do firmly believe if the Houses had pleased to give me the opportunity and leave of being heard they would never have denied me the Indempnity granted to the rest of the Nation That which remains of further Charge yet to me is the business of a Regiment an imployment which I can in truth affirm mine own inclinations nature and breeding little fitted me for and which was intended onely as honorary and titular with relation to Volunteers who by their application to the Council of State in a time of great Commotions did propound their own Officers and without any seeking of mine or my considering any farther of it than as the use of my Name did among others nominate me for a Colonel which the Council of State approved granting Commissions to my self and all other Officers relating thereunto And the Parliament confirmed my said Commission upon report thereof made to them This will appear by several Witnesses I have to produce in this matter that will be able to affirm how little I took upon me or at all to give any Orders or make use of such my Commission any otherwise than in name only 'T is true indeed that at a certain time when I was summoned to appear at the Committee of the Militia in Southwark whereof I was a Member That which was called my own Company of Foot from the respect which they and their Officers pretended to me were desirous to be in a posture fit for me to see them and as I passed by I took the opportunity at their desire to shew my self to them and only as taking notice of their respect in some few words expressing the reason I had to receive it in good part I told them I would no longer detain them from their other occasions After I was gone from them I appointed my Capt. Lieutenant to give them from me something to drink as might be fitting on such an occasion which to my best remembrance was five pounds and he laid it out of his own money More than this as I remember was not done by me so much as to the seeing any more the Companies of that Regiment gathered together or giving Orders to them which I publickly and avowedly declined perswading the Officers to lay down their Charges in mine own example so soon as I discern'd the intentions of the sitting down of the Committee of Safety and the exorbitant power committed to them to exercise and the way of proceedings by the Army in interesting themselves in the Civil Government of the Nation which I utterly disliked And although I forbore not to keep my station in reference to the Council of State while they sate or as a Commissioner of the Admiralty during the time by them appointed to act by Parliamentary Authority and so had occasion to be daily conversant with the Members of the Committee of Safety whereof my self with others that would not accept were named yet I perfectly kept my self dis-interested from all those Actings of the Army as to any Consent or Approbation of mine however in many things by way of discourse I did not decline converse with them holding it my duty to penetrate as far as I could into their true Intentions and Actions but resolving within my self to hold true to my Parliamentary Trust in all things wherein the Parliament appeared to me to act for the safety and good of the Kingdom however I was mis-interpreted and judged by them as one that rather favoured some of the Army and their power Upon the whole matter There is not any precedent that ever both or either of the Houses of Parliament did commit Treason For though Priviledge of Parliament does not so hold in Treason but that particular Members may be punished for it yet it is unprecedented That both or either Houses of Parliament as a collective Body ever did or could commit Treason All the Acts done in Parliaments have been reversed indeed and repealed as what was done 11. Ric. 2. was repealed 21. Ric. 2 and what was done 21. Ric. 2. was repealed 1 Hen. 4. 3 as appears by the printed Statutes Yet I do not find that both or either House of Parliament were declared Traitors for what they did in those Parliaments Or that any which acted under them suffered for the same in any inferiour Courts And surely the reason is obvious For they had a co-ordinacy in the Supream or Legislative Power for the making altering and repealing Laws And if so Par in parem non habet imperium and by authorities out of Bracton Fleta and others it may appear what Superiours the King himself hath who yet hath no Peer in his Kingdom nisi Curium Baronum God Law and Parliament And if either or both Houses cannot commit Treason Then those that act by their Authority cannot For plus peccat Author quam Actor the Author offends more than the Actor If those that command do not not can commit Treason how can those that act by their Authority be guilty of it Further I must crave leave to assert by reason of what I see opened upon the Evidence That what is done in Parliament or by their Authority ought not to be questioned in any other Court. For every offence committed in any Court must be punished in the same or in some higher and not any inferiour Court. Now the Court of Parliament hath no superiour Court as is said in Cook 's Jurisdiction of Courts And the reason there given that Judges ought not to give any opinion in a matter of Parliament is because it is not to be decided by the Common Laws but secundum Legem Consuetudinem Parliamenti This the Judges in divers Parliaments have confessed And that reason is not to be waved which the Lord Cook gives That a man can make no defence for what is said and acted there is done in Council and none ought to reveal the secrets of the House Every Member hath a Judicial Voice and can be no Witness The main substance of these Papers was read and enlarged upon by the Prisoner this day of his Tryal He was often interrupted but his memory was still relieved by his Papers so as after whatever diversions caused by the Court or Counsel he could recover himself again and proceed Yet the edge and force of his Plea as to the influencing of the Jurors Consciences may appear to have been much abated by such interruptions as doubtless was intended and will more at large appear when it shall please God to afford us a full Narrative of the Proceedings of the King's Judges Counsel and Jurors about him and of all that he occasionally said upon the digressions by them caused Wednesday June 11. being the Sentence-day AFter some little skirmishings with the Prisoner to dash all the humane weapons of Law
extraordinariness thereof And I beseech your Lordships to let me go on without interruption in my endeavouring to make it out as clearly as God shall enable me and as briefly also not to spend too much of your time In general I do affirm of this Case That it is so comprehensive as to take in the very Interests of Heaven and Earth First Of God the Universal Soveraign and King of Kings Secondly That of earthly Soveraigns who are God's Vicegerents as also the Interests of all Mankind that stand in the relation of Subjects to the one or both those sorts of Soveraigns This is general More particularly within the bowels of this Case is that Cause of God that hath stated it self in the late Differnces and Wars that have happened and arisen within these three Nations and have been of more than twenty years continuance which for the greater certainty and solemnity hath been recorded in the form of a National Covenant in which the generality of the three Nations have been either implicitly involved or expresly concern'd by the signing of their Names The principal things contained in that Covenant were the known and commonly received Duties which either as Men or as Christians we owed and stood obliged to perform either to God the highest and universal King in Church and State or to our natural Lord and Sovereign the Kings of this Realm in subordination to God and his Laws Again It contains as well the Duties which we owe to every particular and individual person in their several stations and callings as to the King in general and our Representative Body in Parliament assembled These Duties we are thereby obliged to yeeld and perform in consistency with and in a just subordination and manifest agreeableness to the Laws of God as is therein expressed And this also in no disagreement to the Laws of the Land as they then were By this solemn Covenant and Agreement of the three Nations giving up themselves in subjection to God and to his Laws in the first place as the Allegiance they owe to their highest Soveraign as the Creator Redeemer Owner and Ruler of all Mankind they have so far interested the Son of God in the the Supream Rule and Government of these Nations that nothing therein ought to be brought into practice contrary to his revealed Will in the holy Scriptures and his known and most righteous Laws This Duty which we owe to God the universal King Nature and Christianity do so clearly teach and assert that it needs no more than to be named For this subjection and allegiance to God and his Laws by a Right so indisputable all are accountable before the Judgment-seat of Christ It is true indeed men may de facto become open Rebels to God and to his Laws and prove such as forfeit his Protection and engage him to proceed against them as his professed Enemies But with your Lordships favour give me leave to say that that which you have made a Rule for your proceedings in my Case will indeed hold and that very strongly in this that is to say in the sence wherein Christ the Son of God is King de jure not only in general over the whole World but in particular in relation to these three Kingdoms He ought not to be kept out of his Throne nor his visible Government that consists in the Authority of his Word and Laws suppressed and trampled under foot under any pretence whatsoever And in the asserting and adhering unto the Right of this highest Soveraign as stated in the Covenant before mentioned The Lords and Commons joyntly before the year 1648 and the Commons alone afterwards to the very times charged in the Indictment did manage the War and late Differences within these Kingdoms And whatever defections did happen by Apostates Hypocrites and Time-serving worldlings there was a party amongst them that continued firm sincere and chast unto the last and loved it better than their very lives of which number I am not ashamed to profess my self to be not so much admiring the form and words of the Covenant as the righteous and holy ends therein expressed and the true sense and meaning thereof which I have reason to know Nor will I deny but that as to the manner of the prosecution of the Covenant to other ends than it self warrants and with a rigid oppressive spirit to bring all dissenting minds and tender Consciences under one Uniformity of Church-discipline and government it was utterly against my Judgment For I alwayes esteemed it more agreeable to the Word of God that the Ends and Work declared in the Covenant should be promoted in a spirit of love and forbearance to differing Judgments and Consciences that thereby we might be approving our selves in doing that to others which we desire they would do to us and so though upon different principles be found joynt and faithful advancers of the Reformation contained in the Covenant both publick and personal This happy Union and Conjunction of all Interests in the respective duties of all relations agreed and consented to by the common suffrage of the three Nations as well in their publick Parliamentary capacity as private stations appeared to me a Rule and measure approved of and commanded by Parliament for my action and deportment though it met with great opposition in a tedious sad and long War and this under the name and pretext of Royal Authority Yet as this Case appeared to me in my conscience under all its circumstances of Times of Persons and of Revolutions inevitably happening by the hand of God and the course of his wise Providences I held it safest and best to keep my station in Parliament to the last under the guidance and protection of their Authority and in pursuance of the Ends before declared in my just Defence This general and publick Case of the Kingdoms is so well known by the Declarations and Actions that have passed on both sides that I need but name it since this matter was not done in a corner but frequently contended for in the high places of the Field and written even with characters of Blood And out of the bowels of these Publick Differences and Disputes doth my particular Case arise for which I am called into question But admitting it come to my lot to stand single in the witness I am to give to this Glorious Cause and to be left alone as in a sort I am yet being upheld with the Authority before asserted and keeping my self in union and conjunction therewith I am not afraid to bear my Witness to it in this great Presence nor to seal it with my Blood if called thereunto And I am so far satisfied in my conscience and understanding that it neither is nor can be Treason either against the Law of Nature or the Law of the Land either malum per se or malum prohibitum that on the contrary it is the duty I owed to God the universal King and
to his Majesty that now is and to the Church and People of God in these Nations and to the innocent Blood of all that have been slain in this Quarrel Nothing it seems will now serve unless by the Condemnation passed upon my person they be rendred to posterity Murderers and Rebels and that upon Record in a Court of Justice in Westminster-hall And this would inevitably have followed if I had voluntarily given up this Cause without asserting their and my Innocency by which I should have pulled that Blood upon my own head which now I am sure must lie at the door of others and in particular of those that knowingly and precipitately shall embrew their hands in my innocent Blood under whatever form or pretext of Justice My Case is evidently new and unusual that which never happened before wherein there is not only much of God and of his Glory but all that is dear and of true value to all the good People in these three Nations And as I have said it cannot be Treason against the Law of Nature since the duties of the Subjects in relation to their Soveraigns and Superiours from highest to lowest are owned and conscientiously practised and yeelded by those that are the Assertors of this Cause Nor can it be Treason within the Statute of 25. Ed. 3 since besides what hath been said of no King in possession and of being under Powers regnant Kings de facto as also of the Fact in its own nature and the Evidence as to Overt Acts pretended it is very plain it cannot possibly fall within the purview of that Statute For this Case thus circumstantiated as before declared is no Act of any private person of his own head as that Statute intends nor in relation to the King there meant that is presumed to be in the exercise of his Royal Authority in conjunction with the Law and the two Houses of Parliament if they be sitting as the fundamental Constitutions of the Government do require My Lords If I have been free and plain with you in this matter I beg your Pardon For it concerns me to be so and something more than ordinarily urgent where both my Estate and Life are in such eminent peril nay more than my Life the Concerns of thousands of Lives are in it not only of those that are in their graves already but of all posterity in time to come Had nothing been in it but the care to preserve my own Life I needed not have stayed in England but might have taken my opportunity to have withdrawn my self into forreign parts to provide for my own safety Nor needed I to have been put upon pleading as now I am for an Arrest of Judgment but might have watch'd upon advantages that were visible enough to me in the managing of my Tryal if I had consulted only the preservation of my Life or Estate No my Lords I have otherwise learned Christ than to fear them that can but kill the Body and have no more that they can do I have also taken notice in the little reading that I have had of History how glorious the very Heathens have rendred their names to posterity in the contempt they have shewed of Death when the laying down of their Life has appeared to be their Duty from the love which they have owed to their Country Two remarkable examples of this give me leave to mention to you upon this occasion The one is of Socrates the divine Philosopher who was brought into question before a Judgment-Seat as now I am for maintaining that there was but one onely true God against the multiplicity of the superstitious Heathen gods and he was so little in love with his own Life upon this account wherein he knew the Right was on his side that he could not be perswaded by his friends to make any defence but would chuse rather to put it upon the conscience and determination of his Judges to decide that wherein he knew not how to make any choice of his own as to what would be best for him whether to live or to die he ingenuously professing that for ought he knew it might be much to his prejudice and loss to endeavour longer continuance in this bodily Life The other example is that of a chief Governour that to my best remembrance had the Command of a City in Greece which was besieged by a potent Enemy and brought into unimaginable straits Hereupon the said Governor makes his address to the Oracle to know the event of that danger The answer was That the City should be safely preserved if the chief Governour were slain by the Enemy He understanding this immediately disguis'd himself and went into the Enemies Camp amongst whom he did so comport himself that they unwittingly put him to death by which means immediately safety and deliverance arose to the City as the Oracle had declared So little was his Life in esteem with him when the Good and Safety of his Country required the laying of it down The BILL of EXCEPTIONS translated out of the best Latine form the Prisoner could procure No Counsel learned in the Law daring to assist him in those Circumstances without Assignment from the Court which was denied First Concerning my Imprisonment 1. I Shall here mention my entrance into this new Scene of Sufferings under the present Power after my having been handled at will and pleasure under the six years Usurpation of Cromwel which I conceive not to have been at all according to the Law of the Land as may appear by the 29th chap. of Magna Charta and Cook upon it with many other Statutes and Law-Books In all which it appears that the Law of England is so tender not to say curious in providing for the Subjects Liberty that he is not to suffer the least restraint confinement of imprisonment but by the lawfull Judgment of his Peers or by the Law of the Land Contrary to all which I was committed at meer Will and Pleasure and have been detained close Prisoner these two years without any cause specified or any particular crime laid to my charge Secondly Concerning Transactions at the Grand Jury 2. The Grand Jury of Middlesex without my privity knowledge or presence after I had been kept a close Prisoner two full years did meet take the Depositions of Witnesses and find the Bill against me which inevitably exposed me to a Tryal at the Kings Bench Bar for I knew not what whereas Major Rolph and others have had the Right of Englishmen granted them to be present at the Grand Juries proceedings yea and to have Counsel also present to plead any thing in a way of Reason or Law for invalidating the Testimony or disabling the Witnesses whereby the Indictment hath been immediately quash'd and so the party accused delivered from any shadow of Infamy by so much as appearing in the circumstances of a Male-factor at any publick Bar of Justice That this Prisoner had great need
a final Decision of the Controversie between his People and the Inhabitants of the earth by his own Judgement This is there called The Valley of Jehoshaphat in which the Lord will sit to Judge all his enemies round about In this Battel and great Decision of his Peoples Controversie he will cause his Mighty Ones to come down from Heaven to put in their sickle as reapers in this Vintage and Harvest when the wickedness is great Unto this Revel 14. 14 20. refers which doth plainly evidence that this grand Decision is to fall out in the very last of times and probably is that which will make way to the Rising of the Witnesses and will be accompanied with that Earthquake in which shall be slain of men seven thousand and the tenth part of the City will thereupon fall Rev. 11. It is expressed Joel 3. That in this day of the Lord wherein he will be near in the Valley of Decision the Heavens and the Earth shall shake by the Lords own roaring out of Sion and he himself will be the Harbour Hope and Strength of his People The Sun and Moon of earthly Churches and Thrones of Judicature that contest with them shall be darkened and the Stars even the choicest and most illuminated gifted Pastors Leaders in the earthly Jerusalem Churches with their most refined Forms of Worship resisting the power of true spiritual Godliness shall withdraw their shining Even their holy flesh will pass off from them and consume away upon their spiritual lewdness and confident opposing the Faith of Gods Elect Jer. 11. 17. Their very Eyes will consume away in their holes with which they say we see and for which Christ tells the Pharisees in like case that therefore ther sin remaineth John 9. 41. Or there remaineth no more benefit from Christ's Sacrifice for their sin and therefore onely a fearful looking for of the fiery and devouring indignation Heb. 10. 26 27. Here 's that the great confidence and boast of many professing Churches and eminent Pastors in the earthly Jerusalem Fabrick or House on the sand will come to Ezek. 13. and Mat. 7. Their very Eyes their high enlightenings and excellent spiritual Gifts their supernatural or infused humane Learning that 's admitted only as an adorning and accomplishment of the natural man unaccompanied with that Fire-Baptisme that 's performed by the unspeakable gift of the Spirit it self for the transforming of the natural man into spiritual even these Eyes becoming evil Mat. 6. 23. and this light opposing and preferring it self to the more excellent discerning and marvellous light in spiritual Believers are turned by the just Judgement of God into the greatest and most fatal blindness and darkness of all Their tongues also though the tongues of men and angels for excellency and dexterity of expressing what they see with the forementioned eyes will consume away in their mouth Zech. 14. 12. and leave them exposed to become and accordingly be dealt with as meer sounding brass and tinckling Cymbals 1 Cor. 12. 31. and 13. 1. giving no certain sound and right warning to the Battels of the Lord the good sight of Faith This comes to pass through their confidence in those attainments which may be and oft are turned into an Idol of jealousie and spiritual whoredom Ezek. 16. 1 15. All these considerations of Church and State put together afford great ground of enquiry as to the Condition of the times in which we live how far the face which they bear and which God hath put upon them in the course of his Providences for some years now past doth speak or signifie the near approach of any such extraordinary and signal appearance or day of Gods Judgement for the Decision of his own or his Peoples quarrel and controversie with the prophane Heathen that are round about them waiting for an advantage utterly and universally to remove and root them out from off the face of the whole earth That which hath been acted upon the Theater of these Nations amongst us in the true state of our Controversie seems to be reducible to this following Querie Whether the Representative Body of the Kingdom of England in Parliament assembled and in their Supream Power and Trust made indissolvable unless by their own Consent and free Vote and this by particular and express Statute have not had a just and righteous Cause A Quarrel more God's than their own 1. It may appear they had First from the Ground of their undertaking the War Was it not in their own and the Kingdoms just and necessary defence and for the maintaining of the publick Rights and Liberties of both 2. Secondly Was it not undertaken upon mutual Appeals of both Parties to God desiring him to judge between them to give the Decision and Issue by the Law of War when no other Law could be heard as the definitive Sentence in this Controversie from the Court of Heaven 3. Thirdly Pursuant to such Decision did they not recover and repossess the Kingdoms original and primitive freedom Did they not endeavour to conserve and secure it as due to them by the Law of God and of Nature For man was made in God's Image and all Adams Posterity are properly one Universal Kingdom on earth under the Rule and Government of the Son of God both as Creator and Redeemer By virtue of this original and primitive Freedom so recovered they were at their own choice whether to remain in and retain this their true freedom unresigned and unsubjected to the Will of any Man under the Rule of the Son of God and his Lawes or else to set up a King or any other Form of Government over them after the manner of other Nations In this latter case it is acknowledged that when a Common-wealth or People do choose their first King upon condition to obey him and his Successors Ruling justly they ought to remain subject to him according to the Law and tenor of the Fundamental Compact with him on whom they have transferred their Authority No Jurisdiction remaineth in them after that free and voluntary Act of theirs either to Judge the Realm or determine who is the true Successor otherwise than is by them reserved and stipulated by their Fundamental Laws and Constitutions of Government And though the righteousness of this Cause contained in the forementioned particulars be such as carries in it its own evidence yet as as things have fallen out it is come to be oppressed and buried in the grave of Malefactors in the room of which a contrary Judgement and Way is visibly owned upheld and intended to be prosecuted to the utmost for its own fast-rooting and establishment and this by the common Consent and Association of Multitudes What then remaines for the recovery and restitution of that good old Cause and Way but such a seasonable and signal appearance of God as aforesaid in the Valley of Jehoshaphat What but the taking things immediately into his own hands for administration
Laws of this Kingdom and have been so adjudged by two Acts of Parliament and ought to suffer as Traitors Die Jovis Octob. 8. 1642. In the Instructions agreed upon by the Lords and Commons about the Militia They declare That the King seduced by wicked Counsel hath raised War against the Parliament and other his good Subjects And by the Judgment and Resolution of both Houses bearing date Aug. 13. 1642 upon occasion of his Majesties Proclamation for suppressing the present Rebellion under the Command of Robert Earl of Essex They do unanimously publish and declare That all they who have advised declared abetted or countenanced or hereafter shall abet and countenance the said Proclamation are Traytors and Enemies to God the King and Kingdom and guilty of the highest degree of Treason that can be committed against the King and Kingdom as that which invites his Majesties Subjects to destroy his Parliament and good People by a Civil War and by that means to bring ruine confusion and perpetual slavery upon the surviving part of a then wretched Kingdom The Law is acknowledged by the King to be the onely Rule by which the People can be iustly governed and that as it is his duty so it shall be his perpetual vigilant care to see to it Therefore he will not suffer either or both Houses by their Voâ—es without or against his Consent to enjoyn any thing that is forbidden by the Law or to forbid any thing that is enjoyned by the Law The King does assert in his Answer to the Houses Petition May 23. 1642. That He is a part of the Parliament which they take upon them to defend and secure and that his Prerogative is a part of and a defence to the Laws of the Land In the Remonstrance of both Houses May 26. 1642. They do assert That if they have made any Precedents this Parliament they have made them for posterity upon the same or better grounds of Reason and Law than those were upon which their Predecessors made any for them and do say That as some Precedents ought not to be Rules for them to follow so none can be limits to bound their Proceedings which may and must vary according to the different condition of times And for the particular with which they were charged of setting forth Declarations to the People who have chosen and entrusted them with all that is dearest to them if there be no example for it in former times They say it is because there never were such Monsters before that attempted to disaffect the People towards a Parliament They further say His Majesties Towns are no more his care than his Kingdom nor his Kingdom than his People who are not so his own that he hath absolute power over them or in them as in his proper Goods and Estate but fiduciary for the Kingdom and in the paramount right of the Kingdom They also acknowledge the Law to be the safeguard and custody of all publick and private Interests They also hold it fit to declare unto the Kingdom whose Honour and Interest is so much concerned in it what is the Priviledge of the great Council of Parliament herein and what is the Obligation that lies upon the Kings of this Realm as to the passing such Bills as are offered to them by both Houses in the name and for the good of the whole Kingdom whereunto they stand engaged both in Conscience and Justice to give their Royal Assent First In Conscience in respect of the Oath that is or ought to be taken by them at their Coronation as well to confirm by their Royal Assent all such good Laws as the People shall chuse whereby to remedy such inconveniencies as the Kingdom may suffer as to keep and protect the Laws already in being The form of the Oath is upon Record and asserted by Books of good authority Unto it relation is had 25 Ed. 3. entitiled The Statute of Provisors of Benefices Hereupon The said Commons prayed our said Lord the King sith the Right of the Crown of England and the Law of the said Realm is such that upon the mischiefs and dammages which happen to this Realm he ought and is bound by his Oath with the accord of his People in Parliament to make Remedy and Law for the removing thereof That it may please him to ordain Remedy This Right thus claimed by the Lords and Commons the King doth not deny in his Answer thereunto Secondly In Justice the Kings are obliged as well as in Conscience in respect of the Trust reposed in them to preserve the Kingdom by the making of new Laws where there shall be need as well as by observing of Laws already made a Kingdom being many times as much exposed to ruine for want of a new Law as by the violation of those that are in being This is a most clear Right not to be denyed but to be as due from his Majesty to his People as his Protection In all Laws framed by both Houses as Petitions of Right they have taken themselves to be so far Judges of the Rights claimed by them That when the King's Answer hath not been in every point fully according to their desire they have still insisted upon their Claim and never given it over till the Answer hath been according to their demand as was done in the late Petition of Right 3. Caroli This shews the two Houses of Parliament are Judge between the King and the People in question of Right as in the Case also of Ship-money and other illegal Taxes and if so why should they not also be Judge in the Cases of the Common Good and Necessity of the Kingdom wherein the Kingdom hath as clear a Right to have the benefit and remedy of the Law as in any other matter saying Pardon and Grants of Favour The Malignant Party are they that not only neglect and despise but labour to undermine the Law under colour of maintaining it They endeavour to destroy the Fountain and Conservators of the Law the Parliament They make other Judges of the Law than what the Law hath appointed They set up other Rules for themselves to walk by than such as are according to Law and dispence with the Subjects obedience to that which the Law calls Authority and to their Determinations and Resolutions to whom the Judgment doth appertain by Law Yea though but private persons they make the Law to be their Rule according to their own understanding only contrary to the Judgment of those that are the competent Judges thereof The King asserts That the Act of Sir John Hotham was levying War against the King by the letter of the Statute 25 Ed. 3. cap. 2. The Houses state the Case and deny it to be within that Statute saying If the letter of that Statute be thought to import this That no War can be levied against the King but what is directed and intended against his Person Or that every levying of Forces for the defence