Terrours of that Presence of God that was with his Servants in those days However it seemeth good to him to suffer this Turn to come on us and are Witnesses that the things were not done in a Corner I have desired as in the sight of him that searcheth all hearts whilest this hath been done to wait and receive from him Convictions upon my own Conscience though I have sought it with Tears many a time and Prayers over and over to that God to whom you and all Nations are less than a Drop of water of the Bucket and to this moment I have received rather Assurance of it and that the things that have been done as astonishing on one hand I do believe e're it be long it will be made known from Heaven There was more from God than men are aware of I do profess that I would not offer of my self the least Injury to the poorest Man or Woman that goes upon the Earth That I have humbly to offer is this to your Lordships You know what a Contest hath been in these Nations for many years Divers of those that sit upon the Bench were formerly as Active Court Pray Mr. Harrison do not thus Reflect on the Court This is not to the Business Mr. Harrison I followed not my own Judgment I did what I did as out of Conscience to the Lord. For when I found those that were as the Apple of mine Eye to turn aside I did loath them and suffered Imprisonment many years Rather then to turn as many did that did put their Hands to this Plough I chose rather to be separated from Wife and Family than to have Compliance with them though it was said Sit at my Right Hand and such kind of Expressions Thus I have given a little poor Testimony that I have not been doing things in a Corner or from my self May be I might be a little mistaken but I did it all according to the best of my understanding desiring to make the Revealed Will of God in his Holy Scriptures as a guide to me I humbly conceive That what was done was done in the name of the Parliament of England that what was done was done by their Power and Authority and I do humbly conceive it is my Duty to offer unto you in the beginning that this Court or any Court below the High Court of Parliament hath no Jurisdiction of their Actions Here are many Learned in the Law and to shorten the Work I desire I may have the help of Councel Learned in the Laws that may in this matter give me a little assistance to offer those Grounds that the Law of the Land doth offer I say what was done was done by the Authority of the Parliament which was then the Supreme Authority and that those that have Acted under them are not to be questioned by any Power less than them And for that I conceive there is much out of the Laws to be shewed to you and many Presidents also in the Case Much is to be offered to you in that according to the Laws of the Nations that was a due Parliament Those Commissions were issued forth and what was done was done by their Power And whereas it hath been said we did Assume and Usurp an Authority I say this was done rather in the Fear of the Lord. Court Away with him Know where you are Sir You are in the Assembly of Christians Will you make God the Author of your Treasons and Murthers Take heed where you are Christians must not hear this We will allow you to say for your own Defence what you can And we have with a great deal of Patience suffered you to sally out wherein you have not gone about so much for Extenuation of your Crimes as to Justifie them to fall upon others and to Blaspheme God and commit a new Treason For your having of Councel This is the reason for allowing of Councel when a man would Plead any thing because he would Plead it in Formality Councel is allowed But you must first say in what the Matter shall be and then you shall have the Court's Answer Lord Finch Though my Lords here have been pleased to give you a great Latitude this must not be suffered that you should run into these damnable Excursions to make God the Author of this damnable Treason Committed Mr. Harrison I have two things to offer to you to say for my Defence in Matter of Law One is That this that hath been done was done by a Parliament of England by the Commons of England assembled in Parliament and that being so whatever was done by their Commands or their Authority is not questionable by your Lordships as being as I humbly conceive a Power Inferiour to that of an High Court of Parliament That 's one A second is this That what therefore any did in obedience to that Power and Authority they are not to be questioned for it otherwise we are in a most miserable Condition bound to obey them that are in Authority and yet to be punished if obeyed We are not to Judg what is lawful or what is unlawful My Lords Upon these two Points I do desire that those that are Learned in the Laws may speak too on my behalf It concerns all my Countreymen There are Cases alike to this you know in King Richard the Second's Time wherein some Question had been of what had been done by a Parliament and what followed upon it I need not urge in it I hope it will seem good to you that Councel may be assigned for it concerns all my Countreymen Councel You are mistaken if you appeal to your Countreymen They will cry you Out and shame you Mr. Harrison May be so my Lords some will but I am sure others will not Mr. Sollicitor Gen. These two Points my Lords are but one and they are a new Treason at the Bar for which he deserves to dy if there were no other Indictment It is the Malice of his heart to the Dignity and Crown of England I say this is not matter for which Councel can be assigned Councel cannot put into Form that which is not Matter Pleadable it self It is so far from being true that this was the Act of the Supreme Parliament of the People of England that there was nothing received with more Heart-bleeding than this Bloody Business But that the World may not be abused by the Insinuations of a man who acts as if he had a Spirit and in truth is possessed I will say That the Lords and Commons are not a Parliament That the King and Lords cannot do any thing without the Commons Nor the King and Commons without the Lords Nor the Lords and Commons without the King especially against the King If they do they must answer it with their Head for the King is not accountable to any Coercive Power And for the Prisoner to Justifie his Act as if it were the Act of the Commons of England
he is very much to be reproved Shall he pretend that one House nay the eighth part of a House for so it was can Condemn a King when both Houses cannot condemn one man in spight of the King I desire my Lords it may pass with a due Reproach and a Sentence upon it Lord Chief Baron It is true your Questions are but one Point You pretend the Parliament's Authority and when you come to speak of it you say the Commons of England They were but one House of Parliament The Parliament what is that It is the King the Lords the Commons I would fain know of you where ever you read by the light you say you have in your Conscience that the Commons of England were a Parliament of England that the Commons in Parliament used a Legislative power alone Do you call that a Parliament that sate when the House was Purged as they call it and was so much under the Awe of the Army who were then but forty or forty five at most Then you say It was done by Authority of them You must know where there is such an Authority which indeed is no Authority he that confirms such an Authority he Commits a double offence therefore consider what your Plea is If your Plea were doubtfull we should and ought and would our selves be of Councel for you That which you speak concerning Conviction of your own Conscience remember that it is said in Scripture that they shall think they did God good service when they slay you as it is in St. John He hath a great deal of Charity that thinks that what you did was out of a Conscientious Principle It was against the Light of noon-day and common practice You make your self a Sollicitor in the Business Let us blacken him as much as we can I have not touched at all upon the Evidence I will not urge it now I say you justifie it upon Convictions of Conscience and pretend it upon Authority A thing never known or seen under the Sun that the Commons nay a few Commons alone should take upon them and call themselves the Parliament of England We have been cheated enough by Names and Words there is no colour for what you say I do think and hope my Brethren will speak to this Case that none of us do own that Convention whatsoever it be to be the Parliament of England There was another aggravation at this Time that this Pretended Authority usurped that Power the Lords were then sitting You had not taken this usurped Power to dissolve these Lords No you did this Act in dispight of the Lords you had sent up an Ordinance to the Lords and they rejected it and thereupon these Members took it upon themselves Amongst those there were some Negatives and those Members were under the Awe and Power of your Forces at that time What you Plead the Court are of Opinion tends to the subversion of the Laws for you to usurp Power over the People without their Consents to call this the People We never knew the like before But the Parliament of England was the King Lords and Commons For you to speak of this Power and Justifie this Power is an Aggravation adding one Sin and Treason to another We shall tell you that neither both Houses of Parliament if they had been there not any single Person Community not the People either Collectively or Representatively had any colour to have any Coercive Power over their King And this Plea which you have spoken of it ought to be over-ruled and not to stand good Mr. Annesley I do the more willingly speak to this Business because I was one of those that should have made up that Parliament that this Prisoner pretends to I was one of that Corrupt Majority as they called it that were put out of the House He cannot forget that at that time there were Guards upon both Houses of Parliament to attend them that were of their own appointment and that those Guards were forcibly removed by the Prisoner at the Bar and his Fellows and other Guards put there who instead of being a Defence unto them when those Commons stood at the Door were by them threatned Yet the Lords and Commons of England in Parliament Assembled a full House of Commons did resolve notwithstanding what was aforesaid that the Treaty in the Isle of Wight was a Ground for Peace Afterwards the Major part of the House of Commons having resolved on this sent it up to the Lords that very day when they were Adjourned there were Forces drawn down to the House of Commons Door and none suffered to come into the House but those that they pleased All those that had a mind for Peace that minded their Duty and Trust and Allegiance to their King were seized on by this Gentleman and his Fellows When this was done what did he and those Fellows do They sate and put a check upon all that should come in None must come in but those that would renounce their Allegiance and Duty to their King and the People for whom they served and then declared against that Vote which had been passed upon Debate of twelve or fourteen hours and then to call this an House of Commons nay the Supreme Authority of the Nation he knows is against the Laws of the Land For the House of Commons alone cannot so much as give an Oath It hath not power of Judicature of Life and Death this he knows well to be according to the Laws of England He knows that no Authority less then an Act of Parliament can make a Law and he knows an Act of Parliament must be passed by the King Lords and Commons I wonder much to hear a Justification in this kind by one that knows the Laws of England so well There will none of the Court allow that that was a Parliament The Majority of that House did all disavow it These things have been already discoursed of I shall onely say that he knowing the Laws so well I hope he shall suffer for trangression thereof Mr. Hollis You do very well know that this that you did this horrid detestable Act which you Committed could never be perfected by you till you had broken the Parliament That House of Commons which you say gave you Authority you know what your self made of it when you pulled out the Speaker Therefore do not make the Parliament to be the Author of your black Crimes It was innocent of it You know your self what Esteem you had of it when you broke and tore it in sunder when you scattered and made them hide themselves to preserve them from your Fury and Violence Do not make the Parliament to be the Authour of your Crimes The Parliament are the three Estates It must not be admitted that one House part of the Parliament should be called the Supreme Authority You know what that Rump that you left did what Laws they made Did you go home to advise
perceive by this Commission that hath been read that we are authorized by the King's Majesty to hear and determine all Treasons Felonies and other Offences within this County But because this Commission is upon a special occasion the Execrable Murther of the blessed King that is now a Saint in Heaven King Charls the first we shall not trouble you with the Heads of a long Charge The ground of this Commission was and is from the Act of Oblivion and Indempnity You shall find in that Act there is an Exception of several persons who for their Execrable Treasons in sentencing to Death and signing the Warrant for the taking away the Life of our said Sovereign are left to be proceeded against as Traytors according to the Laws of England and are out of that Act wholly excepted and fore-prized Gentlemen You see these Persons are to be proceeded with according to the Laws of the Land and I shall speak nothing to you but what are the words of the Laws By the Statute of the twenty fifth of Edward the third a Statute or Declaration of Treason it is made High-Treason to compass and imagine the Death of the King It was the ancient Laws of the Nation In no Case else Imagination or Compassing without an Actual Effect of it was punishable by our Law Nihil officit Conatus nisi sequatur Effectus that was the old Rule of Law But in the case of the King His Life was so pretious that the Intent was Treason by the Common Law and Declared Treason by this Statute The reason of it is this In the case of the Death of the King the Head of the Commonwealth that 's cut off and what a Trunk an inanimate Lump the Body is when the Head is gone you all know For the Life of a single man there 's the Life of the Offendor there 's some Recompence Life for Life But for the Death of the King what Recompence can be made This Compassing and Imagining the cutting off the Head of the King is known by some Overt-Act Treason it is in the wicked Imagination though not Treason Apparent but when this Poison swells out of the Heart and breaks forth into Action in that case it 's High-Treason Then what is an Imagination or Compassing of the King's Death Truly it is any thing which shews what the Imagination is Words in many cases are Evidences of this Imagination they are Evidences of the Heart Secondly As Words so if a man if two men do conspire to Levy War against the King and by the way what I say of the King is as well of the King dead as living for if a Treason be committed in the Life of one King it is a Treason and punishable in the Time of the Successor Then I say in case not only of Words but if they conspire to Levy War against the King there 's another Branch of this Statute the Levying of War is Treason But if men shall go and consult together and this is to kill the King to put Him to Death this Consultation is clearly an Overt-Act to prove this Imagination or Compassing of the King's Death But what will you say then if men do not only go about to conspire and consult but take upon them to Judge Condemn nay put to Death the King Certainly this is so much beyond the Imagination and Compassing as 't is not only laying the Cockatrice's Egg but brooding upon it till it hath brought forth a Serpent I must deliver to you for plain and true Law That no Authority no single person no community of persons not the people Collectively or Representatively have any coercive power over the King of England And I do not speak mine own Sence but the words of the Laws unto you It was the Treason of the Spencers in King Edward the Second's Time in Calvin's case second Report The Spencers had an opinion that all Homage and Allegiance was due to the King by reason of the Crown as they called it And thereupon say the Books and Records they drew out this execrable Inference among others That if the King did not demean himself according to Right because he could not be reformed by Law he might per aspertee that is by sharp Imprisonment but this was adjudged horrid Treason by two Acts of Parliament Gentlemen Let me tell you what our Law-books say for there 's the Ground out of which and the Statutes together we must draw all our Conclusions for matter of Government How do they Stile the King They call Him The Lieutenant of God and many other expressions in the Book of Primo Henrici Septimi Says that Book there The King is immediate from God and hath no Superior The Statutes say That the Crown of England is immediately subject to God and to no other Power The King says our Books He is not only Caput Populi the Head of the People but Caput Reipublicae the Head of the Commonwealth The three Estates And truly thus our Statutes speak very fully Common Experience tells you when we speak of the King and so the Statutes of Edward the Third we call the King Our Sovereign Lord the King Sovereign that is Supreme And when the Lords and Commons in Parliament apply themselves to the King they use this Expression Your Lords and Commons your faithful Subjects humbly beseech I do not speak any Words of my own but the Words of the Laws Look upon the Statute primo Jacobi there 's a Recognition that the Crown of England was lawfully descended on the King and His Progeny The Statute it self was read to which it is desired the Reader will be referred These are the Words of the Act. And this is not the first precedent for you shall find it primo Eli. cap. 3. They do acknowledge the Imperial Crown lawfully descended on the Queen the same Recognition with this Before that because we shall shew you we go upon Grounds of Law in what we say Stat. 24. Hen. 8. cap. 12. Whereas by sundry old authentick Histories and Chronicles it is manifestly declared and expressed that this Realm of England is an Empire and so hath been accepted in the world governed by one Supreme Head and King having the Dignity and Royal Estate of the Imperial Crown of the same c. 25 Hen. 8. c. 21. there it is the people speaking of themselves That they do recognize no Superiour under God but only the King's Grace Gentlemen You see if the King be immediate under God he derives his Authority from no body else if the King have an Imperial Power if the King be Head of the Commonwealth Head of the body Politick if the body Politick own him obedience truly I think it is an undenied consequence He must needs be Superiour over them Gentlemen This is no new thing to talk of an Emperour or an Imperial Crown Do not mistake me all this while It is one thing to have an Imperial Crown and another
Treason and my Lord had this been in times of peace and had His Majesty been no Prisoner now he was under the power of an Army this had been great Treason but he being a Prisoner not by my means for I was no sword-man what can a man that knows himself innocent being a Prisoner desire more than a speedy Tryal so that making the Tryal more speedy cannot be said to be done trayterously A Tryal doth follow imprisonment as naturally and necessarily as the shadow doth the body If any man shall desire and be instrumental in bringing him to a Tryal which might acquit rather than condemn him and so humbly pray proceedings according to Justice this will have I hope a better name than Treason I am much beholding to His Majesty and this honourable Parli for the penning of the Act of Indempnity which I hope my L. you will give me leave to take notice of Court Open as much as you will of it Cook My Lords the words that I would make use of are in the beginning Treason Murder and other Felonies that are spoken of they are said to be counselled commanded acted or done in the preamble which is as the Key to open the mind and meaning of the Law-makers it is said that all persons shall be pardoned for all excepting such as shall be named and in such manner as they shall be excepted and then it comes provided that this Act shall not extend to pardon such and such persons and by name I am one and it is said all which persons for their execrable Treason in Sentencing to death or signing the Instrument for the horrid murther or being instrumental in taking away the precious life of our late Soveraign Lord Charles the First of glorious memory are left to be proceeded against as Traytors to his late Majesty according to the Laws of England and are out of the said Act wholly excepted and foreprized There is not any thing offered against me upon the two 1st great words which are Sentencing and signing that which I have to do to endeavour to clear my self is this being instrumental in taking away the life of his said Majesty first I humbly offer this to the Juries consideration That where the Parliament doth begin to fix the treasonable part there I hope and no otherwise this honourabe Court will fix it if it had been the Intention that Counsellors advisers and such as spoke their minds sometimes in the business you know that was Epidemical many words were spoken which cannot be justified whether naturally it would not have followed that all such persons for their counselling advising or being instrumental are left to be proceeded against as Traytors I hope you will take that into consideration concerning the words or being instrumental observe it is not said or being any otherwaies instrumental but Sentencing signing or being instrumental if therefore the word Instrumental be not of a general comprehensive nature then all this evidence which hath been given in against me being before the Sentencing and signing will fall to the ground that this is the legal genuine and Grammatical sense cannot be any otherwise than as particular as if it were the Sentencer signer Executioner which if it had been so nothing of the Evidence would have reached me My argument is this such a use is to be made of an Act of Parliament that no word may be frustrate and insignificant but if this Interpretation shall be put upon it sentencing signing or being any way instrumental then the words Sentencing and Signing need not have been if Instrumental will carry the words Sentencing and signing then these words will carry no force atall especially my Lord when there is no need of any retrospect at all if it be so I know not how far it may look back there is no necessity of putting any comprehensive generality upon this word instrumental but that the plain natural sense will be this That those that did sentence and Sign and those that were instrumental in taking away his life that is those that did abet and comfort that person unknown or justifie or countenance him which is after the Sentencing and not before in the legal sense Next I conceive that a Councellor cannot be said to do any thing vi armis It is said that by force and Arms I did abet c. it is Rhetorical to say that words may be as Swords but legal it is not unless there be something vi armis in the Grammatical sense instrumental in taking away the Kings life it is not said instrumental in order to take away the K. life or instrumental in advising to take away the K. life but instrumental in taking away the K. life My Lord The next thing is that there cannot be any thing to be said to be done by me first not falso because in that sense it must have the operation of mendacity that there must be a lie told in it I did nothing but what I was required to do to set down such and such words I did not invent nor contrive them I heard nothing of it till the tenth day of Jan. My Lord for malitiose that I did not any thing maliciously I hope it will appear in this what I then spoke it was for my Fee it may be called avaritia but not malitia for the Law will imply a malice but when there is no other express ground or reason why the thing was done but here was an express ground to speak for my Fee I hope the Jury will take that into consideration Then Secondly I was not Judicial in the Case I was not Magisterial as any Officer but ministerial As touching examining of witnesses it is a great mistake the Court had power to give an Oath I might be there but I had no power to give an Oath but whether I might ask any question I do not remember but that I should give an Oath that is a falsity then my Lord for proditorie I hope there is nothing at all that appears to the Jury so that there was no malice nor trayterous intention in the thing There are some matters of Law which I desire your Lordships will give me leave to speak to and that your Lordships will be of Counsel with me I would offer something concerning his Majesties gracious Declaration from Breda to the Parliament I was then in Ireland I did put in a Petition to the honourable Commissioners before any exception was that I might have the benefit of that Declaration I did lay hold of it My Lords there are two things in that Declaration that I would offer His Majesty saith that for the restoring of the Kings Peers and people of the Kingdom to their just rights and liberties He will grant a free and general Pardon to all excepting such as shall be by Parliament excepted and within three or four lines after it is said a free Parliament though I do not in the
more unless he was present and see it but you owned the Charge and there your name is that besides the two Witnesses there is your own actions to prove it When two Witnesses shall swear it is like your hand and you own that Charge I must leave it to the Jury you say you did this after command the words were dictated to you the words were conceptis verbis appointed and ordered by the Court but the pressing was yours he stands upon delays let it be taken pro confesso demanding Judgement these were your words another man may dictate a thing but you are not forced to speak it you urged it owned it you demanded not in the name of the Court but in the name of all the People of England you say further that your demanding Justice is not within the Statute as I said before what can be the effect of demanding Justice but that the King should die upon those premises you say further that it was in behoof of the King as you would urge it to do the King a Courtesie in asking the King might have Justice but you did not name what Justice it was but you did him a Courtesie truly the King was but a little beholden to you for that request all the world knows what that demanding of Justice was it was to have the Kings head cut off you went as far as you could it ended with you when you demanded Justice that is as far as you could you cut off the head S. Paul when the Witnesses laid down the clothes at his feet he said I killed Stephen the Martyr You say further that in all Tragedies the Accuser or Witness the Jury the Judge and executioner are the only persons and you are none of these you are only of Council if Justice was not done what was it to you you said you did not assume a power there was only Eloquence required in the Councel it hath been truly said that this is a great aggravation to be of Councel against the King you said his Majesty was then a Prisoner and accused Counsel cannot be heard against the King you undertake to be Counsel against the King in his own person and in the highest Crime if the Council at the Barr in behalf of his Client should speak Treason he went beyond his sphere but you did not only speak but acted Treason you said you used not a disrespective word to the King truly for that you hear what the witnesses have said you pressed upon him you called it a delay you termed him not the King but the Prisoner at the Bar at every word you say you did not assume an authority it is an assumption of authority if you countenance and allow of their authority you say you do not remember you demanded Judgement against the King that is fully proved against you you your self asked the question whether you did say against the King he did not remember but others positively that you demanded Judgement against the King and Prisoner at the Bar you said that before Sentence there was not an intention to put the King to death to that Mr. Starkey swears that you expresly said the King must die and Monarchy with him and this before the sentence whereas you say this is but one witness that there is to be in Treason two witnesses but that there should be two witnesses to every particular that is an Evidence of the fact that is not Law if to one particular that is an Evidence there be one witness another to another here are two witnesses within the meaning of the Statute two witnesses to the Indictment compassing and imagining the Death of the King being accompanied with other circumstances this one witness if you believe him is as good as twenty witnesses because other overt acts are expresly proved by several witnesses You say next for the drawing of the Charge in right reason it ought to be counted for the service of the King First you do acknowledge and truly very ingenuously that in the time of peace to bring him to the Bar not being a prisoner is Treason you say it according to the Law and that you delivered the charge for the accelerating of the Charge and that it was not done by you traiterously you say the King was a Prisoner before and you say what hands he was in in the hands of men of power and violence it had been your duty to have delayed it not accelerated it that there might have been some means of prevention of that bloody act that followed if you knew that to be Treason to make him a prisoner Subjects do not use to make Kings Prisoners but Death follows You urge in the next place the Act of Indemnity and that you are not excepted for that you have made as much of it as the matter will bear yet you must consider First as a rule in Law that where they are general words when they come to be explained by the particulars you shall not include them within the general Mark the very words they are these Provided that this Act nor any thing therein contained shall extend to pardon discharge or give any other benefits whatsoever unto such and such among whom you are named nor any of them nor to those two persons or either of them who being disguised by Frocks and Vizards did appear upon the Scaffold erected before White-Hall upon the thirtieth of January 1648. All which persons these are the words First It shall not extend to you then it comes All which persons for their execrable Treason in sentencing to death or signing the Instrument for the horrid murther or being Instrumental in taking away the Precious Life of our late Soveraign Lord CHARLES the First of glorious Memory are left to be proceeded against as Traytors to His late Majestie according to the Laws of England and are out of this present Act wholly excepted and foreprized First as I told you before and as it was very well said by Master Sollicitor admitting the reason had been mistaken and that you had not been comprehended in the reason you are excepted out of the body provided it shall not extend c. Many times Laws do make recitals which in themselves are sometimes false in point of fact that which is the Law is positive words the other words are for the reason Excepting all which that is Master Cook which persons are excepted not for doing of it but for his execrable crimes in being instrumental It is clear without that if it were not so we say when a Sentence is or such a one or such a one the third Or makes all disjunctive Here are three Or 's first in sentencing to death or signing the Instrument then comes this or being instrumental in taking away the precious life of our late Soveraign c. this Or doth clearly exclude the other two or instrumental not only in point of death but further being neither a Sentencer Signer or being
there may be a favourable construction made of it I humbly leave it with you I did my Duty to pray for the King but had no malice to act willingly against him Clerk Henry Marten Counsel He did both sign and seal the Precept for summoning the Court and the Warrant for Execution sat almost every day and particularly the day of Sentence Marten My Lord I do not decline a confession so as to the matter of Fact the malice set aside maliciously murderously and traiterously Counsel If you have any thing to say to that we will prove it L. Ch. Baron That I may inform you in it there is malice implied by Law malice in the Act it self that which you call malice that you had no particular intention or design against the King's Person but in relation to the Government that will not be to this present business if it should extenuate any thing that would be between God and your own Soul but as to that which is alledged in the Indictment Maliciously Murderously and Traiterously they are the consequences of Law If a Man meet another in the Street and run him through in this case the Law implies malice though but to an ordinary Watchman there is malice by the Law in the Fact if there was no such expressed personal malice as you conceive yet the Fact done implies malice in Law Mr. Solicitor General My Lord He does think a Man may sit upon the death of the King sentence him to death sign a Warrant for his Execution meekly innocently charitably and honestly Marten I shall not presume to compare my knowledg in the Law with that of that Learned Gentleman but according to that poor understanding of the Law of England that I was capable of there is no Fact that he can name that is a Crime in it self but as it is circumstantiated Of killing a Watchman as your Lordship instanced a Watchman may be killed in not doing his Office and yet no murder Lord Chief Baron I instanced that of a Watchman to shew there may be a malice by Law though not expressed though a Man kill a Watchman intending to kill another Man in that case it is malice in Law against him so in this case if you went to kill the King when he was not doing his Office because he was in Prison and you hindred him from it the Law implies malice in this It is true all Actions are circumstantiated but the killing of the King is Treason of all Treasons Justice Foster If a Watchman be killed it is murder it is in contempt of Magistracy of the Powers Above the Law says that contempt adds to the malice Counsel We shall prove against the Prisoner at the Bar because he would wipe off malice he did this very merrily and was in great sport at the time of the signing the Warrant for the King's Execution Marten That does not imply malice Ewer sworn Councel Come Sir you are here upon your Oath speak to my Lords and the Jury you know the Prisoner at the Bar very well you have sometimes served him Were you present in the Painted Chamber January 29. 1648. at the signing the Warrant the Parchment against the King Ewer The day I do not remember but I was in that Chamber to attend a Gentleman there I followed that Gentleman looking at Mr. Marten I followed that Gentleman into that Chamber L. C. Baron After what Gentleman Ewer Mr. Marten my Lord I was pressing to come near but I was put off by an Officer or Souldier there who told me I should not be there I told him I was ordered to be by that Gentleman My Lord I did see a Pen in Mr. Cromwel's hand and he marked Mr. Marten in the face with it and Mr. Marten did the like to him but I did not see any one set his Hand though I did see a Parchment there with a great many Seals to it Sir Purback Temple sworn Counsel What do you know of that Gentleman in his carriage of this Business Sir Purback Temple My Lords I being present in Town when that horrid Murder was contrived against the late King there came some Persons of Honour Servants to the late King to my Father's House Sir Edward Partridge to engage me to join with them to attempt the King's escape In order whereunto they told me nothing would tend so much to his Majesty's Service as to endeavour to discover some part of their Counsels for that it was resolved by Cromwel to have the King tried at the High Court of Justice as they called it the next day and desired me if possible to be there to discover their Counsels whereby the King might have notice and those that were to attempt his escape In order whereunto the next day by giving Mony to the Officer of the Painted Chamber I got in by day light in the Lobby to the Lords House I espied a Hole in the Wall under the Hangings where I placed my self till the Council came where they were contriving the manner of trying the King when he should come before them and after the manner of praying and private consults amongst themselves when their Prayer was over there came news that the King was landed at Sir Robert Cotton's Stairs at which Cromwel run to a Window looking on the King as he came up the Garden he returned as white as the Wall returning to the Board he speaks to Bradshaw and Sir Henry Mildmay how they and Sir William Breerton had concluded on such a Business Then turning to the Board said thus My Masters He is come He is come and now we are doing that great Work that the whole Nation will be full of Therefore I desire you to let us resolve here what answer we shall give the King when he comes before us for the first Question that he will ask us will be By what Authority and Commission do we try him To which none answered presently Then after a little space Henry Marten the Prisoner at the Bar rose up and said In the Name of the Commons and Parliament assembled and all the good People of England which none contradicted so all rose up and then I saw every Officer that waited in the Room sent out by Cromwel to call away my Lord such a one whose Name I have forgot who was in the Court of Wards Chamber that he should send away the Instrument which came not and so they adjourned themselves to Westminster-Hall going into the Court of Wards themselves as they went thither When they came to the Court in Westminster-Hall I heard the King ask them the very same Question that Cromwel had said to them Mr. Solicitor Gentlemen the Prisoner at the Bar confesses his Hand to the Warrant for Executing the King you see by his Servant how merry he was at the sport You see by his Witness how serious he was at it and gave the foundation of that Advice upon which they all proceeded and now he
Imprimatur J. BERKENHEAD 1660. AN EXACT and most IMPARTIAL ACCOMPT OF The Indictment Arraignment Trial and Judgment according to Law of Twenty Nine REGICIDES THE Murtherers Of His Late SACRED MAJESTY Of Most Glorious Memory Begun at Hicks-Hall on Tuesday the 9th of October 1660. And Continued at the Sessions-House in the Old-Bayley until Friday the nineteenth of the same Moneth Together with a SUMMARY of the Dark and Horrid Decrees of those Caballists Preparatory to that Hellish Fact Exposed to view for the Reader 's Satisfaction 〈◊〉 Information of Posterity London Printed for R. Scot T. Basset R. Chisâ—ell and J. Wright 1679. A SUMMARY by way of Premise of the dark Proceedings of the Cabal at WESTMINSTER Preparatory to the Murther of His late Sacred Majesty Taken out of their own Journal-Book THe Commons Resolved That no further Addresses be made to the King by themselves nor by any other without leave of both Houses And those that do to incur the Penalty of High-Treason And Declare They will receive no more Messages from Him And Enjoyn That no Person whatsoever receive or bring any Message from Him to Both or either Houses or to any other Person 15. Jan. 1647. The Lords concurred to these Votes 17. August 1648. The Commons concur with the Lords That these Votes for Non-Addresses be Revoked 20. November 1648 The Army present their Remonstrance to the Parliament for bringing Delinquents to Justice 24. November 1648. The Treaty at the Isle of Wight Voted to continue till the twenty seventh of November 1. December 1648. Master Hollis presents an Account of the Treaty with the King And the same day information was brought them of the King 's being removed from Carisbrook to Hurst Castle 5. December 1648. The King's Answer to the Propositions Voted a Ground for the House to proceed upon for Settlement of the Peace of the Kingdom 6. December 1648. The Members were secured by Colonel Pride 7. December 1648. The House of Commons appointed a day of Humiliation Peters Caryl and Marshal to perform the Duty The several Votes For Revoking the Votes for Non Addresses to the King For a Treaty to be had with Him That His Answers to the Propositions were a Ground for Peace Voted Dishonourable and Destructive 23. December 1648. A Committee was appointed to consider how to proceed in a way of Justice against the King and other Capital Offenders 28. December 1648. An Ordinance for Trial of the King was read 1. January 1648. Declared and adjudged by the Commons That by the Fundamental Laws It is Treason in the King of England for the time being to levy War against the Parliament and Kingdom 2. Jan. 1648. The Lords disagreed to this Vote and cast it out and the Ordinance for Tryal of the King Nemine contradicente 3. Jan. 1648. The same Vote was again put to the question in the House of Commons and carried in the Affirmative 4. Jan. 1648. Master Garland presents a new Ordinance for erecting an High Court of Justice for Tryal of the King which was read the first second and third time assented to and passed the same day And Ordered no Copy to be delivered Same day Resolved That the People are under God the Original of all just Powers That themselves being Chosen by and Representing the People have the Supreme Power in the Nation That whatsoever is Enacted or Declared for Law by the Commons in Parliament hath the force of a Law and the People concluded thereby though Consent of King and Peers be not had thereunto 6 Jan. 1648. The Commissioners for Tryal of the King are Ordered to meet on Monday then next at two of the Clock in the Painted-Chamber Their days of sitting were 8 10 12 13 15 17 18 19 20 22 23 24 25 26 27 29 of January 1648. Painted-Chamber Monday 8 January They chose Ask Dorislaus Steel and Cook to be their Councel and other Officers And sent out their Precept under their Hands and Seals for Proclaiming their Court in Westminster-hall to be held in the Painted-Chamber on the tenth Which Precept is all of Ireton's Hand-writing Journal of the Court fol. 6. And Tuesday the 19th The Commissioners Ordered That the Proclamation be made in Cheap-side and at the Old-Exchange And appointed a Committee to consider of the matter of Government of making a new Great Seal and not using the name of a Single Person Wednesday the tenth They chose Bradshaw who was absent for their President and Say pro tempore who gave Garland thanks for his Pains about the business of the Court Fol. 72. And appointed their Councel to prepare and prosecute their Charge And a Committee to consider for carrying on the Tryal Whereof Millington Garland and Martin were three Friday the twelve Waller and Harrison are desired to attend the General to appoint Guards to attend the Court. And Titchbourn and Roe with others to prepare for the Solemnity of the Tryal and to appoint Workmen c. Fol. 16. The Charge to be brought in on Monday And Waller Scot Titchbourn Harrison and others to consider of the place for Tryal and Report the next day Saturday the thirteenth Upon Garland's Report Ordered The Tryal be where the Courts of King's Bench and Chancery sate in Westminster-Hall fol. 20. Monday the Fifteenth The Councel brought in a Draught of the Charge And a Committee appointed to advise therein and compare the Evidence therewith fol. 21. And they and others to consider the manner of bringing the King to his Tryal And that day Titchbourn delivered a Petition to the Commons in the name of the Commons in London in Common-Council differing from the Lord Major and Aldermen The Substance was for bringing the King to Justice Which was Ordered to be Registred in the Books of Common-Councel Wednesday the 17th The Charge recommitted to the Committee Fol. 24. Thursday the 18th Tichbourn excused the absence of Mr. Steel and nothing then else done Fol. 29. Friday the 19th Upon Millington's Report of the Charge and Form of words for exhibiting it Ordered That the Attorney or in his absence the Solicitor exhibit it Fol. 30. And Waller Harrison and others to appoint thirty to wait upon the King and twenty upon the President Saturday the 20th Forenoon Ordered That Mildmay deliver the Sword of State to Humphreys to bear before the President The Solicitor presents the Charge engrossed which being read and signed by him was returned to him to be exhibited And then Adjourned to Westminster-Hall Westminster-Hall Saturday the 20th Afternoon The King was brought in by Thomlinson attended by Hacke and two and thirty Partisans And Cook then exhibited the Charge And the King not owning their Authority was remanded And they Adjourned till Monday Painted-Chamber Monday the 22d Forenoon They approved of what their President had done on Saturday and Resolved That the King should not be suffered to question their Jurisdiction Fol. 50. Westminster-Hall Same day Afternoon Cook prayed That the King
thing to govern absolutely Gentlemen The Imperial Crown is a Word that is significative you shall find in all Statutes primo Eliz. and the first of King James nay even in the Act of Judicial proceedings of this Parliament it is called an Imperial Crown They that take the Oaths of Allegiance and Supremacy they swear that they will to their power assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the King His Heirs and Successors or annexed to the Imperial Crown of this Realm What is an Imperial Crown It is that which as to the Coercive part is subject to no man under God The King of Poland has a Crown But what is it At his Coronation it is conditioned with the people That if he shall not Govern them according to such Rules they shall be freed from their Homage and Allegiance But the Crown of England is and always was an Imperial Crown and so sworn Gentlemen As I told you even now the Imperial Crown is a Word significative that Crown which as to the Coercive part is not subject-to any Humane Tribunal or Judicature whatsoever And truly that this is such an Imperial Crown though I have cited Authorities ancient enough you may find them much more ancient I remember in the Story of William Rufus you shall find it in Matthew Paris and Eadmerus some Question was about Investiture of Bishops and the like the King writes His Letter That c. God forbid I should intend any absolute Government by this It is one thing to have an Absolute Monarchy another thing to have that Government Absolutely without Laws as to any coercive power over the Person of the King for as to Things and Actions they will fall under another consideration as I will tell you by and by Gentlemen Since this is so consider the Oath of Supremacy which most men have taken or should take All men that enter into the Parliament-House they are expresly enjoyned by Statute to take the Oath of Supremacy What says that Oath We swear that The King is the only Supreme Governour within this Realm and Dominions He is Supreme and the onely Supreme and truly if he be Supreme there is neither Major nor Superior I urge this the more lest any Person by any Misconstruction or inference which they might make from something that hath been Acted by the Higher Powers they might draw some dangerous Inferences or Consequences to colour or shadow over those Murtherous and Traiterous Acts which afterwards they committed They had no Authority But as I told you though I do set forth this and declare this to you to let you know that the King was immediately subject to God and so was not punishable by any Perfon yet let me tell you there is that excellent Temperament in our Laws that for all this the King cannot rule but by His Laws It preserves the King and his Person and the peoples Rights There are three things touching which the Law is conversant Personae Res Actiones Persons Things and Actions For the Person of the King He is the Supreme Head He is not punishable by any coercive Power the Laws provide for that The King can do no wrong it is a Rule of Law it is in our Law-books very frequent 22d of Edward the Fourth Lord Coke and many others If he can do no Wrong He cannot be punished for any wrong The King He hath the infirmities and weakness of a man but he cannot do any injury at least not considerable in Person He must do it by Ministers Agents Instruments Now the Law though it provide for the King yet if any of his Ministers do wrong though by his command they are punishable The King cannot arrest a man as he cannot be arrested Himself but if He arrest me by another Man I have remedy against this man though not against the King and so He cannot take away my Estate This as to the Person of the King He is not to be touched Touch not mine Anointed I come to Things If the King claim a Right the King must sue according to His Laws the King is subject to the Laws in that case His Possessions shall be tried by Juries If He will try a man for His Fathers Death you see he will try them by the Laws The Law is the Rule and Square of His actions and by which He Himself-is judged Then for Actions that is such Actions whereby Rights and Titles are prosecuted or recovered the King cannot judge in Person betwixt man and man He does it by his Judges and upon Oath and so in all cases whatsoever If the King will have his Right it must be brought before His Judges Though this is an Absolute Monarchy yet this is so far from infringing the Peoples Rights that the People as to their Properties Liberties and Lives have as great a priviledge as the King It is not the sharing of Government that is for the Libertie and Benefit of the People but it is how they may have their Lives and Liberties and Estates safely secured under Government And you know when the Fatness of the Olive was laid aside and we were Governed by Brambles these Brambles they did not only tear the Skin but tore the Flesh to the very Bone Gentlemen I have done in this Particular to let you see that the Supreme Power being in the King the King is immediately under God owing his Power to none but God It is true blessed be God we have as great Liberties as any People have in Christendom in the World but let us own them where they are due We have them by the Concessions of Our Princes Our Princes have granted them and the King now He in them hath granted them likewise Gentlmen I have been a little too long in this and yet I cannot say it is too long because it may clear misunderstanding so many Poisonous Opinions having gone abroad To come a little nearer If we consider suppose there were the Highest Authority but when we shall consider this horrid Murther truly I cannot almost speak of it but Vox faucibus haeret When we shall consider that a few Members of the House of Commons those that had taken the Oath of Supremacy and those that had taken the Oath of Allegiance that was to defend the King and His Heirs against all Conspiracies and Attempts whatsoever against His and their Persons Their Crowns and Dignities not onely against the Pope's Sentence as some would pretend but as otherwise against all Attempts and Conspiracies not onely against His Person Crown and Royal Dignity nor Pope's Sentence nor onely in order to the Profession of Religion but absolutely or otherwise that is whatsoever Attempts by any power Authority or Pretence whatsoever I say when a few Members of the House of Commons not an eighth part of them having taken these Oaths shall assume upon themselves an Authority an Authority what to do shall assume to
with your Countrey that chose you for that Place You know that no Act of Parliament is binding but what is Acted by King Lords and Commons And now as you would make God the Author of your Offence so likewise you would make the People guilty of your Opinion But your Plea is over-ruled To which the Court assented Mr. Harrison I was mistaken a little Whereas it was said the Points were one I do humhly conceive they were not so I say what was done was done in Obedience to the Authority If it were but an Order of the House of Commons thus under a Force yet this Court is not Judge of that Force I say if it was done by one Estate of Parliament it is not to be questioned Court It was not done by one Estate They were but a Part nay but an eighth Part. Denz Hollis It was not an House of Commons They kept up a Company by the power of the Sword Do not abuse the People in saying It was done by the Supreme Power Councel My Lord if it were an House of Commons neither House of Commons nor House of Lords nor House of Lords and Commons together no Authority upon Earth can give Authority for Murthering the King This that he alledgeth is Treason my Lord this that is said is a clear Evidence of that which is charged there is only this more in it he hath done it and if he were to do it again he would do it Lord Chief Baron It is clear as the Noon-day that this was not the House of Commons Suppose it had been an House of Commons and full and suppose which far be it from me to suppose they should have agreed upon such a Murtherous Act for the House of Commons to do such an Act it was void in it self nay any Authority without the House of Lords and King is void You plead to the Jurisdiction of the Court whether we should Judge it or no. Yes I tell you and proper too We shall not speak what Power we have The Judges have Power after Laws are made to go upon the Interpretation of them We are not to judge of those things that the Parliament do But when the Parliament is purged as you call it for the Commons alone to Act for you to say that this is the Authority of Parliament it is that which every man will say Intrenches highly upon his Liberty and Priviledge And what you have said to your Justification what doth it tend to but as much as this I did it justifie it and would do it again which is a new Treason The greatest Right that ever the House of Commons did claim is but over the Commons Do they claim a particular Right over the Lords Nay over the King Make it out if you can but it cannot possibly be made out What you have said doth aggravate your Crimes It is such an approvement of your Treason that all Evidences come short of it King Lords and Commons is the Ground of the English-Law Without that no Act of Parliament binds Justice Mallet I have been a Parliament-Man as long as any man here present and I did never know or hear that the House of Commons and Jurisdiction over any saving their own Members which is as much as I will say concerning the Parliament I have heard a Story of a Mute that was born Mute whose Father was slain by a Stranger a man unknown After twenty years or thereabouts this Mute-man fortuned to see the Murtherer of his Father and these were his Words Oh! here is he that slew my Father Sir The King is the Father of the Country Pater Patria so saith Sir Edward Coke He is Caput Reipublicae the Head of the Common-wealth Sir What have you done Here you have cut off the Head of the whole Common-Wealth and taken away Him that was our Father the Governour of the whole Countrey This you shall find Printed and Published in a Book of the greatest Lawyer Sir Edward Coke I shall not need my Lord to say more of this Business I do hold the Prisoner's Plea vain and unreasonable and to be rejected Justice Hide I shall not trouble you with many Words I am sorry that any man should have the Face and Boldness to deliver such words as you have You and all must know That the King is above the Two Houses They must propose their Laws to him The Laws are made by Him and not by Them by their consenting but they are His Laws That which you speak as to the Jurisdiction you are here Indicted for High Treason for you to come to talk of Justification of this by Pretence of Authority your Plea is naught illegal and wicked and ought not to be allowed As to having of Councel the Court understand what you are upon Councel is not to be allowed in that Case and therefore your Plea must be over-ruled Mr. Justice Twisden I shall agree with that which many have already said onely this You have eased the Jury you have confessed the Fact I am of the same Opinion that you can have no Councel therefore I over-rule your Plea if it had been put in never so good Form and Manner Earl of Manchester I beseech you my Lords let us go some other way to work Sir William Wild. That which is before us is Whether it be a matter of Law or Fact For the matter of Law your Lordships have declared what it is his Justification is as high a Treason as the former For matter of Fact he hath confessed it I beseech you My Lord direct the Jury for their Verdict This Gentleman hath forgot their Barbarousness they would not hear their King Court No Councel can be allowed to Justifie a Treason that this is a Treason you are Indicted by an Act of the 25th of Edw. 3d. That which you speak of the House of Commons is but part of the House of Commons they never did nor had any power to make a Law but by King Lords and Commons and therefore your Plea is naught and all the Court here is of the same opinion if they were not they would say so therefore what you have said is over-ruled by the Court. Have you any thing else to offer Mr. Harrison Notwithstanding the Judgment of so many Learned ones that the Kings of England are no ways accountable to the Parliament The Lords and Commons in the beginning of this War having declared the King's beginning War upon them the God of Gods Court Do you render your self so desperate that you care not what Language you let fall It must not be suffered Mr. Harrison I would not willingly speak to offend any man but I know God is no Respecter of Persons His setting up his Standard against the People Court Truly Mr. Harrison this must not be suffered this doth not at all belong to you Mr. Harrison Vnder Favour this doth belong to me I would have abhorred to have brought him to Account
out of a few persons that makes a Parliament We see as before so still it is your course to blow the Trumpet of Sedition Did you ever hear or can you produce instances of an Act of Parliament made by the House of Commons alone though this was not the House of Commons as you heard before Ca. Neither was there ever such a War or such a precedent Court Nor we hope never will be Pray remember you were returned to serve in the House what was that Writ that summon'd your appearance You had no manner of ground in the world to go that way that you did Coun. We pray that the Prisoner at the Bar give us pationce a little to repeat that to him which your Lordships have been so often troubled with declaring this is not the first or second time that in this publique Assembly it hath been said That neither the Lords nor the Commons jointly nor severally have any power at all to proceed upon the Person of the King That it is not in their power to condemn any man in England without the good pleasure of the King much less the King himself and that this is the great Liberty of the people of England that it should be so and it was the first breach and invasion of our Liberty that that first Parliament made and which you justifie in the name of the Lord. In this case to throw us upon Debates of the War and to talk here of the causes and reasons of that quarrel which ended in such a Tragedie For this person to come here with this confidence and to justifie it but that he knows he cannot be in a worse condition one would wonder it should fall from any man that hath any regard of himself it is all one to them that perish whether they fall by one sin or multitudes He makes no scruple to multiply Treasons I do beseech your Lordship he may not offer as he hath begun but that the Jury may proceed Court All the Court are of the same opinion not to hear any thing like the former Discourses Ca. I desire I may be heard I have not compassed the Death of the late King contrived the death of the King what I did I did by Authority Court This is not to be heard You have heard what hath bin said to you There could be no such Authority neither was nor could be but you would by a wyre-lace bring it in by this You have confessed the Fact which must be left to the Jury L. Ansley I think you were present in the House of Commons when that Vote passed for agreement with the King in the Treaty at the Isle of Wight You know the King having condescended to most of the desires of This Parliament there was a debate in the House and a conclusion that they were grounds for peace You know the Lords and Commons did resolve to agree with their King when that was done that would not satisfie you and other Members of the House Then you go and contrive new ways you contrive a new fashioned Parliament the driving away many Members by power which you could not do by the Law of the Land Nay the Parliament had Declared against that which you pretend is by Authority is no Authority for a few of you set up an Arbitrary Parliament of a few of your selves when you had driven away the rest This kind of Parliament gives you the Authority you pretend to You were saying that the Parliament was called at first the Lords and Commons by the King according to the ancient Constitutions of the Laws Did such a Parliament give you such Authority as you pretend to and Act of Parliament as you call it which was but an Order of some of the Commons and but a few of them you can have no manner of Justification and therefore your Plea must be over-ruled as yesterday it was in the like Case You are indicted upon a cleer Act of Parliament of 25. Edw. 3. and you defend your self upon pretence of an Act of Parliament which hath been over-ruled as no Act. Ca. I am a stranger to many of these things which you have offered and this is strange You give evidence sitting as a Judge L. Ch. Bar. You are mistaken it is not Evidence he shews you what Authority that was an Authority of 26 Members How is this Evidence Mr. Carew if you have any thing more of Fact go on If you have nothing but according to this kind of discourse I am commanded to direct the Jury Ca. I am very willing to leave it with the Lord if you will stop me that I cannot open the true nature of those things that did give me ground of satisfaction in my Conscience that I did it from the Lord. Mr. Sol. I do pray for the honour of God and our King That he may not be suffered to go on in this manner You have been suffered to speak you have said but little only Sedition You pretend a Conscience and the fear of the Lord when all the world knows you did it against the Law of the Lord your own Conscience the light of Nature and the Laws of the Land against the Oaths you have taken of Allegiance and Supremacy Ca. Gentlemen of the Jury I say I shall leave it with you This Authority I speak of is right which was the supreme Power it is well known what they were Coun. It is so indeed many have known what they were L. Ch. Bar. Mr. Carew You have been heard what and beyond what was fit to say in your own defence that which you have said the heads of it you see the whole Court hath over-ruled To suffer you to expatiate against God and the King by Blasphemy is not to be endured it is suffering poison to go about to infect people but they know now too well the old saying In Nomine Domini In the Name of the Lord all mischiefs have been done that hath been an old Rule I must now give directions to the Jury L. Ch. Bar. Gentlemen of the Jury Ca. I have desired to speak the words of truth and soberness but have been hindered L. Ch. Bar. Gentlemen of the Jury You see the Prisoner here at the Bar hath been Indicted of Treason and this was for Compassing and Imagining the Death of our Soveraign Lord K. Charles the First of blessed Memory The Indictment sets forth several overt-Acts to prove this Imagination for otherwise it is secret in the heart the Fact it self the Treason it self is the Imagination of the heart The overt-Acts that are laid down in the Indictment to prove this That they did consult and meet together how to put the King to death That they did sit upon him And thirdly That they did sentence him to death and afterwards he died You heard what is proved against the Gentleman the Prisoner at the Bar by several Witnesses His own Confession That he signed the Warrant for Summoning and
demand that wicked Judgment before the Court pronounced it and he was the man that did against his own Conscience after he had acknowledged that he was a wise and gracious King yet says he That he must dye and Monarchy with him there in truth was the Treason and the cause of that fatal blow that fell upon the King This was his part to carry on how he did it as a wicked Counsellor we shall prove to you and the wages and reward of the Iniquity that he did receive James Nutley Sworn Councel Pray tell the Circumstances of the Prisoners Proceedings at Westminster Hall when he did exhibite a Charge against the King Mr. Nutley My Lords the first day of bringing his Majesty to his Tryal was Saturday Jan. 20. 1648. Before they sate in publick they that were of the Committee of that which they called the High Court of Justice did meet in the Painted Chamber which was in the forenoon of that day Being there I did observe that there was one Price a Scrivener that was writing of a Charge I stood at a great distance and saw him write and I saw this Gentleman the Prisoner at the Bar near thereabouts where it was writing I think it was at the Court of Wards This charge afterwards a Parchment writing I did see in the hands of this Gentleman the Prisoner at the Bar. A very little after that they called their names they did adjourn from the Painted Chamber into Westminster Hall the great Hall The Method that they observed the first thing was to call the Commissioners by name in the Act the pretended Act for trying the King was read that is when the Court was sat the Commissioners were called by their names and as I remember they stood up as their names were called The next thing was reading the Act for the trying of his late Majesty After that was read then this Gentleman the Prisoner at the Bar presented the Parchment Writing which was called the Impeachment or Charge against his Majesty Mr. Bradshaw was then President of that Court and so called Lord President he commanded that the Prisoner should be sent for saying Serjeant Dendy send for your Prisoner thereupon the King was brought up as a Prisoner and put within a Bar And when the Court was silenced and settled this Gentleman the Prisoner at the Bar did deliver the Charge the Impeachment to the Court and it was read The King was demanded to plead to it presently Here I should first tell you that upon the Kings first coming in there was a kind of a Speech made by Mr. Bradshaw to the King in this manner I â—hink I shall repeat the very words Charles Stuart King of England the Commons of England assembled in Parliament taking notice of the effusion of blood in the Land which is fixed on you as the Author of it and whereof you are guilty have resolved to bring you to a tryal and Judgment and for this cause this Tribunal is erected There was little reverence given to his Majesty then which I was troubled at he added this further That there was a charge to be exhibited against him by the Solicitor General I think this Gentleman was so called at that time and he called to him to exhibit the Charge and this Gentleman the Prisoner at the Bar did deliver an Impeachment a Parchment writing which was called a Charge against the King at that time which was received and read against him Coun. Did you ever see the Charge which was now shewn to Mr. Nutley Mr. Nut. My Lords I do believe that this is the very Charge I am confident it is the same writing I have often seen him write and by the Character of his hand this is the same Council Go on with your story Mr. Nut. My Lords immediately upon the delivery of this Charge of Impeachment which was delivered in the Kings presence after it was read the King was demanded to give an answer to it His Majesty desired to speak something before he did answer to the pretended Impeachment for so his Majesty was pleased to call it He did use words to this purpose saith he I do wonder for what cause you do convene me here before you he looked about him saith he I see no Lords here where are the Lords upon this Mr. Bradshaw the President for so he was called did interrupt his Majesty and told him Sir saith he you must attend the business of the Court to that purpose you are brought hither and you must give a positive answer to the Charge saith the King you will hear me to speak I have something to say before I answer after much ado he was permitted to go on in the discourse he was in so far as they pleased His Majesty said I was in the Isle of Wight and there I was treated with by divers honourable persons Lords and Commons a treaty of peace between me and my people the treaty was so far proceeded in that it was near a perfection truly saith he I must needs say they treated with me honourably and uprightly and when the business was come almost to an end then saith he was I hurried away from them hither I know not by what Authority now I desire to know by what Authority I was called to this place that is the first question I shall ask you before I answer the charge It was told him by Mr. Bradshaw the President that the Authority that called him hither was a lawful Authority he asked him what Authority it was the second time it was answered him by the President that it was the Authority of the Commons of England assembled in Parliament which he affirmed then to be the Supream Authority of this Nation the King said I do not acknowledge its Authority Authority if taken in the best sense it must be of necessity understood to be lawful therefore I cannot assent to that I am under a Power but not under an Authority and there are many unlawful Powers a Power that is on the high way I think I am under a Power but not under an Authority you cannot judge me by the Laws of the land nor the meanest Subject I wonder you will take the boldness to impeach me your lawful King To this purpose his Majesty was pleased to express himself at that time with more words to that purpose The King went on to further discourse concerning the Jurisdiction of the Court Bradshaw the President was pleased to interrupt him and told him several times that he trifled out the Courts time and they ought not to indure to have their Jurisdiction so much as questioned Court Pray go on Mr. Nutly This Gentleman at the Bar I did hear him demand the Kings answer several times a positive answer was required of the King the K. often desired to be heard and he interrupted him again and again several times and at length it was pray'd that the charge that was exhibited against him
I interrupted his Majesty Far. I remember that the King laid his Cane upon your shoulders Cook Whether did I the first or the last day demand judgement or that any thing might be taken pro confesso Far. The first day no but after the first day he did several days you did the last day Griffith Bodurdo Esq sworn Coun. Sir you have heard the question give an accompt to my Lords and Gentlemen of the Jury of the carriage of the Prisoner at the Bar towards his Majesty during the time of the Tryal Mr. Bod. My Lord I was all the time that the King was brought there before the Court as a Prisoner I was present all the day having a conveniency out of my house into a Gallery that was some part of it over that Court I do remember that the Prisoner at the Bar whom I never saw before that time did exhibit a charge the first day against the Prisoner at the Bar which was the King in these very terms The Prisoner at the Bar the charge I heard it read then I have not seen it since the substance was this That for levying war against the Parliament and people of England and namely at such and such a place killing of the people of England I think Naseby and Keinton field was named in it and divers other places were named in the Charge and the Conclusion was that he had done those things as a Tyrant Traitor Murtherer and a publick and implacable enemy of the Commonwealth But this Prisoner at the Bar did exhibit the Charge and the King did then as you have heard he did plead to the Jurisdiction of the Court The King would fain have been heard but I think they did adjourn for that time The next day he pleaded the same thing I remember the answer that was several times given twice given by Bradshaw to the King thus that the Court did assert their own Jurisdiction The second and third day I do not remember any day after the first but that the prisoner at the Bar did demand judgement for the Kings not pleading and did several times make complaints to the Court of the Kings delays that he intended delays and nothing else Cook Pray my Lord one Question whether my Lord before he heard me speak of demanding judgement against the King whether he did not hear Mr. Bradshaw several times say that the Court owned their Authority and that the matter would be taken pro confesso Mr. Bodurdo I did hear the Prisoner at the Bar desire of the Court that it might be so and I heard the Prisoner tell the King that it must be so Joseph Herne sworn Coun. Mr. Herne tell my Lords what you know of the prisoners carriage at the High Court of Justice as they called it Mr. Herne Upon Saturday the 20th of Jan. 1648. it was the first day His Majesty was convened before them I could not come near the Court only I saw him at a distance I heard nothing but the acclamations of the people crying out God save your Majesty what was done in the Court I know nothing of On Munday I was there and had a conveniency to see and hear what was acted and so His Majesty being come to the Seat appointed for him the prisoner at the Bar being called upon by the then President Bra. he demanded of him what he had to ask of the Court He was then talking with Dorislaus and semeed not to mind the business of the Court His Majesty sitting near takes his stick and thrusts the Prisoner at the Bar upon his shoulder and the Prisoner looking back with a great deal of indignation turned about I did hear Bradshaw speaking to him in these words Mr. Sol. have you any thing to demand of the Court whereupon the prisoner at the Bar did use these or the like words May it please your Lordships I have formerly in the name of the Commons assembled in Parliament and the good people of England exhibited a Charge of High Treason and other high crimes against Charles Stuart the prisoner at the Bar flinging his head back in this manner to him He had there further to require of the Court that he might be demanded to make positive answer by confession or denial if not that the Court would take it pro confesso and proceed according to Justice this was on the first day I was in the Court The President Bradshaw told His Majesty that he heard what was craved in the name of the Commons assembled in Parliament and the good people of England against him by the now Prisoner at the Bar. The King stood up but Bradshaw prevented him in what he had to say telling of him that the Court had given him time to that day to know when he would plead to the Charge His Majesty proceeded to object against the Jurisdiction and said he did demur to the Jurisdiction of the Court upon which the President answered him If you demur to the Jurisdiction of the Court you must know that the Court hath over-ruled your demurrer and you must plead to your Charge guilty or not guilty upon that the King asked their authority and desired he might give reasons against it he was denyed it by the President the President at last was content to tell him that though he was not satisfied with their authority they were and he must but to satisfie him he told him in short they sat there by the supream authority of the Nation the Commons assembled in Parliament by whom his Anceston ever were and to whom he was accomptable then the King stood up by your favour shew me one President Bradshaw 〈◊〉 down in an angry manner Sir saith he we sit not here to answer your Questions plead to your Charge guilty or not guilty Clerk do your duty whereupon Broughton stood up and asked what he had to say whether guilty or not guilty and President Bradshaw said that if he would not plead they must record his contempt His Majesty turned about to the people and said then remember that the King of England suffers being not permitted to give his reasons for the liberty of the people with that a great shout came from the people crying God save the King but there was an awe upon them that they could not express themselves as they would have done I believe Coun. What did Cook say to the Judgement did you hear him press for Judgement Mr. H. Yes I heard these words from the Prisoner at the Bar That if the K. would not plead his Charge might be taken 〈◊〉 Conf. and that the Court might proceed according to Justice Cook One question more whether he often heard me speak those words that it might be taken pro Confesso and to proceed according to Justice Mr. Hern. You desired he might be held to his Plea confession or denial that he might not be suffered to use any words to the Jurisdiction of the Court. Cook Whether he
heard the Charge read Hern. I did not hear the Charge read I was not there the first day I heard you confess you had exhibited a Charge of high Treason against the Prisoner at the Bar which was then the King's Majestie Cook Whether I did not in the Charge conclude that all proceedings might be according to Justice Court Read the Title and last Article of that Charge which was accordingly read and follows in haec verba The Title of the Charge The Charge of the Commons of England against Charles Sewart KING of England of High Treason and other Crimes exhibited to the High Court of Justice The last Clause in the Charge And the said Iohn Cook by protestation saving on the behalf of the people of Eng. the liberty of exhibiting at any time hereafter any other Charge against the said Char. Stew. and also of replying to the answers which the said Char. Stew. shall make to the premisses or any of them or any other charge that shall be so exhibited doth for the said Treasons and Crimes on the behalf of the said people of England impeach the said Charles Stewart as a Tyrant Traytor Murderer publick and implacable enemy to the Commonwealth of England and prayeth that the said Charles Stewart King of England may be put to answer all and every the premisses that such proceedings examinations tryals sentences and judgement may be hereupon had as shall be agreeable to Justice Court Mr. Cook will you have any Witnesses examined touching the question you last asked Cook No be pleased to go on Mr. Baker Sworn Mr. Bak. My Lords and Gentlemen of the Jury I was at the High Court of Justice as they called it the first second and third daies not to trouble you with the proceedings of of Bradshaw I will tell you what I observed of this Gentleman I have the notes that I took there and pray that I may read them to help my memory which was granted and then proceeded in this manner That day my Lord Mr. Cook told the Court that he charged the Prisoner at the Bar meaning the KING with Treason and high misdemeanors and desired that the Charge might be read the Charge was this That he had upheld a Tyrannical Government c. and for that cause was adjudged to be a Tyrant c. and did then press that the prisoner might give an answer to that and that very earnestly The second day my Lord he told the Court that he did the last day exhibit a Charged High Treason against the Prisoner at the Bar meaning the King and that he did desire he might make answer to it and he told them also that instead of making an answer to the Court the King had delayed the Court but desired the K. might make a positive answer or otherwise that it might be taken pro confesso The third day my Lord he came and told the Court as before that the King had delayed then and then he charged him with the Highest Treasons and Crimes that ever were acted upon the Theatre of England and then pressed that Judgement might be given against him and another expression was that it was not so much He but the Innocent and precious bloud that was shed that did crie for Judgment against the Prisoner at the Bar this my Lord in substance there were other passages Cook Whether before this time he had not heard some thing of an Act or Order proclaimed at Westminster whether there was any other word in effect used in that charge more than in the Proclamation Mr. Baker I did hear of the Proclamation and Charge and the substance of it I have given an accompt of it and I did hear you press upon it very much the Proclamation I heard of it that it was made forthe summoning of the Court but I did not hear the Proclamation made Cook That that was called the Act of the Commons for Trying of the King Mr. Baker I did hear of the Act but did not take notice of it Mr. George Masterson Sworn Counc Mr. Masterson pray inform my Lords and the Jury what you know touching the carriage of the Prisoner at the Bar at the Tryal of his late Majesty Mr. Masterson My Lords and you Gentlemen of the Jury I was present in that they called the High Court of Justice upon the 22 23. and 27. days of January in the year 1648. I shall wave those circumstances which you have heard and many of which I well remember and what I heard likewise between the King who was then a Prisoner and the then President Bradshaw but concerning the Prisoner at the Bar this I very well remember that upon Munday I heard him say he had exhibited a Charge of High Treason against the Prisoner then the King and demanded how that he might plead to his charge I do very well remember that after some passages between the King and the Court the Prisoner at the Bar desired the King might plead to his Charge or else it might be taken pro Confesso I remember upon the last day the day of that fatal Sentence I heard the Prisoner at the Bar demand in the name of the Commons assembled in Parliament and all the good people of England Judgement upon the Prisoner at the Bar pointing to the King this is all Mr. Burden sworn Councel Do you know who did examine the witnesses against the King and were you examined and by whom Burden By Judge Cook for so he was called in Ireland Councel Did he examine you as a witness against the King did he give you an Oath Burden Yes my Lord and many others Cook This is a new thing I never heard of this before where was it that I examined him I had no power Council No we know that but you were active Court Where was it Cook Whether there were not any others with me in the Room and where it was Burden It was at Westminster-hall within the High Court of Justice Cook Who was there besides me Burden I cannot tell Axtel he was there and I am sure Cook was there Councel Mr. Burden Pray tell my L. the Jury what questions you were examined upon and what they tended to Burden He examined me and gave me my Oath there was eight or nine of us we had been in the Kings Army in former times this Gentleman Col. Axtel brought us in commanded us out of our Company I was in his Company and this Gentleman himself gave us our Oaths he asked us where we saw the King in action I did reply to him and told him I saw him in the Field with his Army he asked me many other questions that I could not tell him he asked me whether I did see the King at Nottingham set up his Standard and I was never at Nottingham in my life these were the questions Mr. Starkey Sworn Court Pray inform my Lords and Gentlemen of the Jury what passed between you and the Prisoner at
crimes soever they have committed Except such as by a Free Parliament shall be excepted a legal Parliament called by the Writ of the King which this Parliament is not To that I give these answers First my Lord I do say that this letter of our gracious Soveraign from Breda in it self undoubtedly is no Pardon in Law for Treason that cannot be without the Broad Seal Next a Pardon under the Great Seal in such a form of words as this is would not be a Pardon for Treason for that must not be pardoned by implication but by positive words so in the Case of Sir Walter Raleigh a Commission directed to our well be loved Subject would not pardon the Treason of which he was condemned In the next place this Letter at the most is but a pardon in honour which must always be taken according to the meaning And that the Kings Honour may for ever be sacred I say this Letter doth no way help the Prisoner at the Bar. First it is plain by the very Superscription of this Letter 〈◊〉 which the Declaration was inclosed that it is directed to the Speaker of Our House of Commons in Parliament assembled which cannot possibly be expounded of any other Parliament than that which was then sitting to whose Speaker it was written Secondly the Letter it self says we have left it to you to provide for security and Indempnity and again if there be a â—â—ying sin for which the Nation may be involved in infamy 〈◊〉 cannot doubt but you will be as solicitous to vindicate as we can be And then in this very letter encloseth that declaration upon the penning of which the prisoner so much relies Now lay all together and it is clear the Parliament meant by the Declaration must be the same Parliament which was meant by the Letter and that was this very Parliament whom the King intended to trust both with Indempnity and with the vindication of his Fathers death and to be the dispensers both of mercy and Justice in this particular Another thing is this This very Parliament as the Prisoner observes they did go to the King according to His gracious letter and in the behalf of all the good people of England they did lay hold of the Kings mercy in His letter and Declaration and prayed that this claim by their Speaker in the behalf of all the rest of the Commons of England might be effectual to all purposes and for all persons other than those that should be by themselves afterward excepted according to their requests His Majesty accepts their Petition and makes Proclamation that his Pardon should extend to all but such as they should except what can be more clear and evident than that this is the Parliament which the K. did mean to be the very Parliament to which the Letter should have reference till the Act of Oblivion was passed again the late transactions of these twelve years past had involved so many persons that we could scarce find a man his he had need of mercy nay this very Parliament to which the Letter was written had need of Indempnity and it is probable in the nature of the thing or can it be understood by any man that the King writing to this Parliament and offering them pardon and Indempnity should mean such a pardon and Indempnity as future Parliament to be called by his own Writ should be willing to afford them Whose hearts would have been satisfied with so contingent a security My Lords upon the whole matter by what the King hath said in this Letter and by what the Parlim hath done in pursuance thereof and by what the King hath proclaimed it is to my understanding as clear as the noon day that the honour of the King is not concerned at all in the exemption of the prisoner at the Bar and for the Cases of my Lord of Essex and Southampton which he hath cited they make against him they were condemned because they endeavoured to imprison the Queen and to remove her Councellours of which very fact the Prisoner is in Law guilty too and then the case of King Philip the Husband of Queen Mary makes nothing for him neither unless he will speak out and tell us plainly that because by a former violence the King was made a prisoner he became but like a titular King as King Philip. In the next place he saith my Case is out of the Law I acted as a Councellour in my own particular for my Fee it was avaritia but not malitia nor falso malitiose or Proditorie But he must know that no man hath or can have a lawful calling to pursue the life of his King and the Law implies malice for malitiose and proditorie are not only words of course but of truth too in this case else it were as much as to say that no Councel can be guilty of High Treason than which nothing can be more absurd My Lord for that which he said last for I must omit some things and give him leave to take the advantage of it to stand upon it that the place was a Court such a one it was that he was not answerable for the constitution of it if it were not in a legal sense it was such an order as might bear him out that is with modesty and good manners to justifie High Treason it is not with such insolency as some others before him did it but it amounts to that That an order of a few persons that first made themselves a Parliament and then made a Court of Justice had Officers and met together and perfected so great a Treason I say that this Order to bear him out is impossible He that is a Lawyer he must accompt to the Laws for what he hath done if the authority were not lawful he cannot but know that this which he calls the Parliam was so far from a legal Authority that it was one part of the Treason that he did assist such an Assembly Gentlemen of the Jury this is your own Case here is a charge that is exhibited by the prisoner at the Bar as he saith in the name of all the people of England Look to it for you are some of them if you own it then it may be true what he hath said but I hope you meet here to tell this Nation and all the world that the people of England had no hand in that charge do but consider how that this prisoner at the Bar had hunted the life of the King how he did fish out and examine evidence whether the King set up his Standard at Nottingham was at such a place and such a place to what end is all this but with design of blood Were these things to be produced against the King and then Judgement to be demanded that he may be saved Is it not plainly proved to you by Witnesses how he did exhibit the Charge press it aggravate it desired it might be taken pro
instrumental in taking away the Kings life that is being any way instrumental Truly whether it be not instrumental to exhibit a Charge against him or complain of his delayes to ask Justice against him in the name of the people to do all this and desire that the Charge might be taken pro Confesso if this be not instrumental I know-nothing else Sentencing and signing Some signed the Sentence some the instrument for death the next degree of being Instrumental the highest degree of that is to accuse him to deliver in the Charge against him in the name of the people do it again and again be angry at the delayes The next thing is this that you did not do this falso or malitiose but for your Fee and that though there might be avaritia there was not malitia in it it was done by your Profession you were not Magisterial in it you thought the consequences that did follow would not follow If a man does but intend to beat a man and he dye upon it you know in Law it is all one You must understand there is a malice in the Law If a man beat one in the Streets and kill him though not maliciously in him but it is so in Law That you desire to have the benefit of the Kings Declaration that you did put in your petition proving the same that you were a prisoner before that the Commons in behalf of themselves and the people of England they craved the benefit of it which was granted excepting such as should be by Parliament exceptd and that the King should mention a Free Parliament for this it hath been fully answered to you and clearly by Mr. Sollicitor that you are not at all concerned in the Kings Declaration at Breda For first it is nothing in Law it binds in honour and we have given the same directions yesterday upon the like occasion that is that the Kings Declaration binds him in honour and in Conscience but it does not bind him in point of Law unless there were a pardon granted by the Broad Seal the thing is cleared to you what Parliament the King meant by it they were sitting at that time had acknowledged their dutie and allegiance to their King they went ad ultimum potentiae for a free and absolute Parliament whilst the King was absent though the King was away yet notwithstanding the King Declared whom he meant he directed one of those Declarations to our Speaker of the house of Commons and another to the Speaker of our Peers in this case it was loquendum ut vulgus it was owned by him as having the name of a Parliament it was done with great wisdom and prudence and so as it could be no otherwise they that were loyal subjects acting in the Kings absence he consenting to it the King owning that Authority so he was obliged in honour no further than his own meaning and words but there is another Clause in the act excludes all these persons The next thing is this you say the Statute of 25 Edward 3. and it is very true you say if it be any semblable Treason we were not to judge upon that unless they were the Treasons in the Act and it is most true now you would urge but this that this is but a semblable Treason but you are indicted for the compassing and imagining the Death of the King if these Acts did not tend to the compassing and imagining the Kings death I know not what does I am satisfied you are convicted in your conscience The next thing for you have said as much as any man can in such a Cause it is pity you have not a better you say though it was a Tyrannical Court as it is called but such a Court it was and there were Officers you say it had figuram judicii that aggravates the fact to you to your profession There is a difference between a standing Court and that which is but named to be a Court this was but one of a day or two's growth before and you know by whom by some that pretended to be only the Commons your knowledge can tell you that there was never an Act made by the Commons assembled in Parliament alone and you may find it in my Lord Cook that an Act by the Lords and Commons alone was naught as appeared by the Records Sir James Ormond was attainted of Treason the Act was a private Act by the King and Commons alone the Lords were forgot when the Judges came to try it it was void and another in Henry the 6. time you know this was no Court at all you know by a printed Authority that where a settled Court a true Court if that Court meddle with that which is not in their cognizance it is purely void the Minister that obeys them is punishable if it be Treasonable matter it is Treason if murder it is murder so in the Case of Martialsea and in the Common Pleas if a man shall begin an Appeal of death which is of a criminal nature and ought to be in the Kings Bench if they proceed in it it is void if this Court should condemn the party convicted he be executed it is murder in the Executioner the Court had no power over such things you speak of a Court. First it was not a Court Secondly no Court whatsoever could have any power over a King in a coercive way as to his person The last thing that you have said for your self is this that admitting there was nothing to be construed of an Act or an Order yet there was a difference it was an Act de facto that you urged rightly upon the Statute of 11 Hen. 7. which was denied to some God forbid it should be denied you if a man serve the King in the War he shall not be punished let the fact be what it will King Henry the 7. took care for him that was King de facto that his Subjects might be encouraged to follow him to preserve them whatever the event of the King was Mr. Cook you say to have the equity of that Act that here was an authority de facto these persons had gotten the supream power and therefore what you did under them you do desire the equity of that Act for that clearly the intent and meaning of that Act is against you it was to preserve the King de facto how much more to preserve the King de jure he was owned by these men and you as King you charged him as King and he was sentenced as King That that King Henry the 7. did was to take care of the King de facto against the King de jure it was for a King and Kingly Government it was not for an Antimonarchical Government you proceeded against your own King and as your King called him in your charge Charles Stewart King of England I think there is no colour you should have any benefit of the Letter or of the
of Injustice that was Erected for Tryal of the late King it had all the formalities of a Court to put in Execution that bloody Act they had their President their Council their Chaplain and their Guards some of their Judges have been already Tryed one of their Council and their Chaplain Now my Lord we come to the Guards and this Gentleman at the Bar that is now the Prisoner He was Commander of that Black Guard that cruel and bloody Guard The Indictment is That he did Imagin and compass the Death of the King there be several overt acts that are mentioned in the Indictment as Evidences of that Imagination as the consultation to bring him to Tryal the Actual bringing him to Tryal and the Bloody Execution upon the Scaffold Our Evidence shall be this That during the time of the Tryal the Prisoner at the Bar did Command the Souldiers in Westminster-Hall himself did keep the Entrance into the Court and when Bradshaw did speak to the King and told him he trifled away time and required his answer to the charge exhibited in the Name of the Commons of England Assembled in Parliament and the good People of England that a Noble person in the Gallery there cryed out it was a Lye saying that above half the Commons disowned it saying where are these good people it is a lye Oliver Cromwel is a Traytor this bloodly Fellow commanded the Souldiers to shoot her he did several times command and encourage the Souldiers to cry out Justice justice and the last day of that horrid Tryal called by them the day of Judgement he likewise commanded them to cry out Execution Execution and when some of them would not do it he had the Valour to Beat them My Lords and Gentlemen of the Jury if we prove any of these particulars to demonstrate unto you that he was Guilty of compassing and imagining the King's Death it is equal as if we had proved he did Actually cut off the King's head Mr. Bodurdoe Mr. Nutly Mr. Harrington Sir Purback Temple Mr. Sympson Mr. Baker Mr. Huncks and Mr. Jeoner Sworn Coun. Mr. Symp. tell my Lords and the Jury who had the command of the Souldiers during the Tryal of the King in Westminster-Hall Sym. My Lords as I said before in the Case of Mr. Peters Col. Stubberd and Col. Axtel had the command of the Souldiers below Stairs near that which was called the High Court of Justice Axtell I desire to know his Name my Lord Sym. My Name is Holland Sympson Coun. Did you see him there commanding the Souldiers Sym. There was a kind of a Hubbub in the Court there was a Lady they said it was the Lady Fairfax who at the Exhibiting of the Charge against the King said to be in the Name of the Commons and people of England She spoke out aloud and said it was a lye that not half not a quarter of the people Oliver Comwell is a Rogue and a Traytor they called for a Guard this Gentleman he was called and brought up some Musqueteers and commanded his Souldiers to Present and give Fire against the Lady and commanded her to Unmask Axtell What Lady was it I desire to know Sim. She went by the name of the Lady Fairfax I know not whether it was so or no it was the common report it was she Cl. Mr. H. pray tell my Lord what you know of the Prisoner at the Bar. Huncks My Lord to say positively any thing of the man touching his command I cannot but only that morning the King Dyed he came into the Door of the Room where Colonel Phayre Colonel Hacker Cromwell and my self were Ireton and Harrison lying in bed together in the same Room and then he stood at the Door half in and half out I refusing to Sign an Order for Executing the King as Cromwell ordered me and some little cross Language having passed saith the Prisoner at the Bar Colonel Huncks Iam ashamed of you the Ship is now coming into the Harbour and will you strike Sayle before we come to Anchor This I appeal to your self but for crying out Knock them down Shoot them I know not who it was the Officers cryed Justice and some of the Souldiers but I profess I know not who it was particularly but they cryed Justice and then I fell a trembling for I was afraid of the King but these were the words he used to me will you strike sayle c. Axtell My Lord I desire to ask him a question L. Ch. Bar. Ask him what you will Axtell If I am not in the right I hope your Lordships will direct me L. Ch. Bar. Go on Axtell Col. Huncks where was it Huncks In a little Room in White hall where Ireton and Harrison lay in bed together Axtell Do you know whereabouts Huncks I think I can go to the Room I appeal to your own conscience before all this people Axtell By your favour Sir the Room I perceive you know not and truly Sir My Lord if you please to give me leave because he appeals to my conscience I do appeal to the Great God before whom it may be I may be Arraigned to give an account of all my Words thoughts and Actions I do not remember that ever I had any converse with this man there or met him there or any of that company there that day he was a stranger to me but I wish that you to save your self being in the Warrant for Execution do not make others a Peace-Offiring to save your self the Lord that knows my heart I appeal to him I appeal to your own conscience because you appeal to my conscience I never met you nor saw you there Huncks Have you done then give me leave you say you do not know me I appeal to the same God when Cromwell took upon him to have the Crown have not I said What have you got by being Jehu-like Lord strike me dead here if it be not true Axtell I will not reflect upon him but because he hath appealed to my conscience therefore I speak it it is known Notoriously how Jehu-like you were when you were one of the chief Guards of his Majesty one of the Fourty Halberteers that did oppose every person then for the King had I had time and had not been a close Prisoner as I was there were Witnesses enough Council This after our Evidence is more proper Huncks Spare me not Col. Axtell L. Ch. Bar. Take the Old and Antient course let the Witnesses that are produced for the King be all heard then give your answer to all of them together Axtell My Memory is not very good L. Ch. Bar. You have Pen Ink and Paper L. Ch. Bar. Mr. Axtell is this all that you desire to speak to Col. Huncks Axtell Yes my Lord. L. Ch. Bar. Have you any other Questions Council My Lord we have a few words he Objects as if Col. Huncks were under a danger he is pardoned Axtell I desire to ask
by law that the right of the Militia was in them and your Lordships will remember in several Declarations and Acts that was mutually exchanged between his Majesty and Parliament and my Lord that was the Authority the Lords and Commons assembled in Parliament raised a Force and made the Earl of Essex Ceneral and after him the Earl of Manchester of the Eastern Association and after that Sir Tho. Fairfax Lord General of the Forces by this Authority I acted and this Authority I humbly conceive to be legal because this Parliament was called by the Kings Writ chosen by the People and passed a Bill they should not be dissolved without their own consents that the Parliament was in being when the Tryal was and a question whether yet legally Dissolved In the fourth place they were not only owned and obeyed at home but abroad to be the chief Authority of the Nation and also owned by Foreign States and Kingdoms sent Ambassadors to that purpose under them did all the Judges of the Land Act who ought to be the Eye of the Land and the very light of the People to Guide them in their right Actions and I remember the Judges upon Tryal I have read it of High Treason Judg Thorp Nicholas and Jermin have declared it publickly That it was a lawful justifiable thing by the Law of the Land to obey the Parliament of England My Lord it further appears as to their Authority over the People of this Nation petitioning them as the supreme and lawful Authority and My Lords as I have heard it hath been objected that the Houses of Lords and Commons could make no Act. Truly my Lord if you will not allow them to be Acts though they intitle them so call them so and obeyed as so by the Judges Ministers and Officers of State and by all other persons in the Nation yet I hope they cannot be denied to be Orders of Parliament and were they no more but Orders yet were they sufficient as I humbly couceive to bear out such as acted thereby And my Lord the Parliament thus constituted and having made their Generals he by their Authority did constitute and appoint me to be an Inferior Officer in the Army serving them in the quarters of the Parliament and under and within their power and what I have done my Lord it hath been done only as a Souldier deriving my power from the General he had his power from the Fountain to wit the Lords and Commons and my Lord this being done as hath been said by several that I was there and had command at Westminster-Hall truly my Lord if the Parliament command the General and the General the inferiour Officers I am bound by my Commission according to the Laws and Customs of War to be where the Regiment is I came not thither voluntarily but by command of the General who had a Commission as I said before from the Parliament I was no Counsellor no Contriver I was no Parliament-man none of the Judges none that Sentenced Signed none that had any hand in the Execution onely that which is charged is that I was an Officer in the Army if that be so great a crime I conceive I am no more guilty than the Earl of Essex Fairfax or the Lord of Manchester Judg Mallet You are not charged as you were an Officer of the Army Axtell My Lords That is the main thing they do insist upon my Lord I am no more guilty than his Excellency the Lord General Monck who Acted by the same Authority and all the People in the three Nations and my Lord I do humbly suppose if the Authority had been only an Authority in Fact and not Right yet those that Acted under them ought not to be questioned but if the Authority commanded whatsoever offence they committed especially that that guided me was no less than the declared Judgment of the Lords and Commons sitting in Parliament they declared that was their right as to the Militia and having explained several Statutes of Henry the 7th wherein the King having enterchanged Declarations with the Parliament the Parliament comes to make an Explanation on that Statute and my Lord it is in Folio 280. wherein they do positively expound it and declare it as their allowed Judgment To clear up all scruples to all that should take up Arms for them saith the Parliament there as to the Statute of 11. of Henry the 7th Chapter the first which is printed at large comes there to explain it in general and comes here Folio 281. and gives this Judgment It is not say they agreeable to Reason or Conscience that any ones duty should be known if the Judgment of the High Court of Parliament be not a Rule or Guide to them In the next place this is the next Guidance Rule and Judgment of Parliament upon the Exposition of this Statute and as they have said in several places was it not too much to take up your Lordships time they are the proper Judges and Expounders of the Laws The High Court of Parliament have taken upon them to expound the Law and said that we Lawyers will give the meaning of the Text contrary to what they have expounded the meaning under their hands in the same Declaration his Majesty is pleased to quit that Statute upon which I stand Indicted the 25th of Edward the Third where they do my Lord expound that very Statute in the Declaration made in 1643. Folio 722. I come to the declared Judgment wherein they did positively say that the persons that do Act under their Authority ought not to be questioned as persons Guilty Folio 727. that is the Exposition that the Lords and Commons Assembled in Parliament doth make upon the statute Councel My Lord this is an Argumentation of Discourse in justification of his proceedings we desire to know what he will answer as to the Plea Axtell My Lords I have this further to say that if a House of Commons Assembled in Parliament may be Guilty of Treason for the truth is if I Acted Treason that Acted under the Authority of the Lords and Commons in Parliament and of the Commons in Parliament then doubtless they must begin the Treason if the House of Commons who are the collective body and Representation of the Nation all the people of England who chose them are guilty too and then where will there be a Jury to try this concerning the Commons alone I have been over ruled L. ch Bar. If you have any thing to say to the Lords and Commons answer to your charge your charge is nothing of the Lords and Commons but what you Acted when the house was broke and Forced Coun. You cannot but know that there is nothing charged against you for which you can so much as pretend an Authority of the Lords and Commons you know before you could do this Horrid Murther you were the persons that destroyed the Lords and Commons both indeed you Ravel in a
business and to make people gaze upon you without any Ground Axt. I am upon my life I hope you will hear me patiently L. ch Bar. God forbid but we should Axt. I do desire to assert my Authority if any thing was done upon the House of Lords and Commons I do not come here to justifie their Actions I was not concerned in it My next Plea is this that if a House of Commons can be charged Guilty of High Treason as a community the distributive Body must needs be Guilty Court If there should have been 20 or 40 men come out of the House of Commons and should Murther a man they must answer for that it is not the community that can do such an Act of Treason these persons that you call a House of Commons there was but 26 of them and these must be the people this is the state of the case and when you have thrust out thrice the number of those remaining only those can serve your turn L. Annesly Mr. Axtell I am very sorry to see you in that place and it troubles me as much to hear you vent that for an Authority which you know your self was no Authority you would now for your defence for life and it is reason you should make as full a defence for life as you can you would shelter your self under that Authority which I am sorry I must say were one of the greatest Violators of you cannot forget how near a close of this bloody war by the mercy of God this Nation was when the Army interposed whose Trade it was to live by War when they had felt so much of the sweet of War they would not suffer the people to enjoy peace though the Lords and Representatives in Parliament had agreed to it A Treaty was begun terms of peace propounded and agreed to this you cannot forget and will have no need of Notes or Books to help your Memory when the people Groaned under the miseries of War and thirsted after Peace then came up the Army who were servants to the Parliament till that time taking upon them the Authority you cannot forget that your self was one of the number that came to offer accusations against the majority of the Commons House calling them Rotten Members the House of Lords was not then suffered to sit they would not joyn in that Ordinance that was preparing for the Tryal of the King when the Lords had refused they were no longer fit to be Lords neither then comes in a new Authority which we never heard of before a remnant of the House of Commons joyning with the Army that had driven away the greatest part of the House of Commons for in all Assemblies and Courts the major part must determine or no determination after this course was taken then is an Act set on foot they take upon them by Votes of their own to be the Parliament of England that the supreme power of the Nation is in the Representatives of the people who were they those few only that remained almost all the Cities Counties and Burroughs of England had none left to represent them they were driven away by Force then was this Act of Parliament such an Act as was never heard of before set on foot and passed as an Act by a few of the House of Commons if you can plead this for your defence this is the Act that you must shelter under But you know the Lords and Commons had Unanimously resolved for peace and so agree with the King if this Act will be any defence you may plead it to the full and this is all you have to say therefore go upon no Forreign matter Axt. If it please your Lordship that worthy Lord that spoke last is pleased to say that I was one of the persons that did accuse some of those Members of Parliament truly my Lord I never did come to the Commons Bar but once presenting a petition and for my hand either in charging any of the Members or Secluding any of them I never had any hand in that matter this is all to that part Next I Humbly conceive here I must ground my bottome and if I perish I perish by a Judgement in a Parliament My Commission that did Authorize me to obey my General was given me when the Lords and Commons sate in Parliament I had no other Commission then this my Lord Fairfax commanded the Army after the Kings Death by the like Commission I did but my duty in going to my Regiment the General saith go to such a place stay there if I refuse by the law of War I Dye if I obey I am in danger likewise I say my Commission was given me by the Lords and Commons and therefore I hope my Lord that what I have said and offered in that particular is not Truthless but of Weight Court The Effect of your Commission is only to make you an Officer Axtell My Commission bears date the 27th of March 1648. Ten months before the Kings Death we had no other Commissions therefore I humbly conceive the question will be this in point of law and I humbly desire it may be Truly and Fairly stated by your Lordship and these Honourable Jugdes that whether a man being guided by the Judgment of the Lords and Commons Assembled in Parliament and having declared their Judgments and Exposition of that Statute of the 25th of Edward the Third and Acting only by that Judgment of Parliament and under their Authority can be questioned for Treason That my Lord is a question that I do humbly think is a point in law and that you will please fairly and truly to state it whether I am within the compass of that Statute whereupon I am indicted Councel My Lord We do not charge him with any thing that he did Act under the colour of his Commission or with any thing he did before that but that which we charge him with are rhe Acts that he did at the Tryal of the King shew us your Commission from the Lords and Commons Assembled in Parliament for Tryal and Execution of the King you say something we do not charge him for any thing done by Vertue of that Commission but with those violent Acts that he did in encouraging the Souldiers to cry Justice Justice Execution Execution and all those other Violent Actions of his own malicious heart against the King We humbly beseech you he may answer to that which is the charge against him and that is the Compassing and Imagining the Death of the late King and his declaring that by those overt-acts that we have proved My Lords we desire that the Prisoner at the Bar may remember that he is not Indicted for levying War against the King if so then that Sir which you offer might be given as a Plea and we should have spoken to it but you are Indicted for Compassing and Imagining the Death of the King and that which we have given in Evidence
says he did it not Traiterously I humbly conceive he means it was Justifiable Sir P. Temple At another time I was in Town on a Friday and wanting Horses I went to Smithfield where I saw the Horses of State of his late Majesty to be sold in the Common Market at which I called to the Rider said I What makes these Horses here says he I am to sell them Why said I there 's the King's Brand upon them C. R. and he shew'd them me said I Will you sell these Horses What price he asked me three or fourscore pound a piece said I Who warrants the sale of these Horses says he Mr. Marten and Sir Wil. Brereton Afterwards I heard the Horses were taken into the Mews by the Prisoner at the Bar and Sir Wil. Brereton Counsel Was this before the Trial Sir P. Temple It was in 1642 or 1643. Counsel That 's nothing to this Business Marten My Lord the Commission went in the name of the Commons assembled in Parliament and the Good People of England and what a matter is it for one of the Commissioners to say Let it be acted by the Good People of England Mr. Sol. Gen. You know all good People did abhor it I am sorry to see so little repentance Marten My Lord I hope that which is urged by the Learned Counsel will not have that impression upon the Court and Jury that it seems to have That I am so obstinate in a thing so apparently ill My Lord if it were possible for that Blood to be in the Body again and every drop that was shed in the late Wars I could wish it with all my heart But my Lord I hope it is lawful to offer in my own defence that which when I did it I thought I might do My Lord there was the House of Commons as I understood it perhaps your Lordships think it was not a House of Commons but then it was the Supream Authority of England it was so reputed both at home and abroad My Lord I suppose he that gives obedience to the Authority in being de facto whether de jure or no I think he is of a peaceable disposition and far from a Traitor My Lord I think there was a Statute made in Henry the Seventh's time whereby it was provided That whosoever was in Arms for the King de facto he should be indempnified though that King de facto was not so de jure And if the Supream Officers de facto can justifie a War the most pernicious Remedy that was ever adjudged by Mankind be the Cause what it will I presume the Supream Authority of England may justifie a Judicature though it be but an Authority de facto My Lord if it be said that it is but a third estate and a small parcel of that my Lord it was all that was extant I have heard Lawyers say That if there be Commons appurtenant to a Tenement and that Tenement be all burnt down except a small Stick the Commons belong to that one small piece as it did to the Tenement when all standing My Lord I shall humbly offer to consideration whether the King were the King indeed such a one whose Peace Crowns and Dignities were concerned in Publick Matters My Lord he was not in execution of his Offices he was a Prisoner My Lord I will not defer you long neither would I be offensive I had then and I have now a peaceable inclination a resolution to submit to the Government that God hath set over me I think his Majesty that now is is King upon the best Title under Heaven for he was called in by the Representative Body of England I shall during my life long or short pay obedience to him Besides my Lord I do owe my life to him if I am acquitted for this I do confess I did adhere to the Parliaments Army heartily my life is at his mercy if his Grace be pleased to grant it I have a double obligation to him Mr. Sol. Gen. My Lord this Gentleman the Prisoner at the Bar hath entred into a Discourse that I am afraid he must have an answer in Parliament for it He hath owned the King but thinks his best title is the acknowledgment of the People and he that hath that let him be who he will hath the best Title we have done with our Evidence Marten I have one word more my Lord I humbly desire that the Jury would take notice That though I am accused in the Name of the King that if I be acquitted the King is not Cast It doth not concern the King that the Prisoner be Condemned it concerns him that the Prisoner be Tried it is as much to his Interest Crown and Dignity that the Innocent be acquitted as that the Nocent be condemned Mr. Sol. Gen. My Lord this puts us now upon the reputation of our Evidence and you may see how necessary it is to distinguish between Confidence and Innocence for this very Person that desires you to have a care how you condemn the Innocent he doth seem to intimate to you that he is an innocent Person at the Bar and yet confesses he did sit upon the King did Sentence him to Death that he signed the Warrant for the Execution and yet here stands that Person that desires you to have a care of condemning Innocence What is this at the bottom of it but that my Fact is such as I dare not call it Innocence but would have you to believe it such Gentlemen of the Jury was it your intention the King should be so tried as this Prisoner moved It will concern you to declare That the People of England do abhor his Facts and Principles every Fact the Prisoner hath confessed himself the sitting in that Court which was Treason his Sentencing was Treason signing the Warrant for Execution was the highest of Treasons Gentlemen all that he hath to say for himself is there was an Authority of his own making whereby he becomes innocent But we hope out of his own Mouth you will find him guilty Gilbert Millington I desire you to hear me I come not hither to dispute but to acknowledg I will not trouble you with long Discourses My Lord it is not fit for wise Men to hear them I am not able to express them I will not justifie my self I will acknowledg my self Guilty My Lord The reason why I said the last day Not Guilty was in respect of being upon the Scaffold and murthering the King and those things but I will wave all things if your Lordship will give me leave and will go unto the lowest strain that possible can be I will confess my self Guilty every way I was awed by the present Power then in being This I leave with you and lay my self at your feet and have no more at all to say but a few words in a Petition which I desire you will please to accept and so I conclude Counsel We do accept this
honest and humble Confession and shall give no evidence against him to aggravate the Matter L. Ch. B. Your Petition is accepted and shall be read Robert Titchburne My Lord when I first pleaded to the Indictment it was Not Guilty in manner and form as I stood Indicted My Lord it was not then in my Heart either to deny or justify any tittle of the matter of Fact My Lord The Matter that I was led into by ignorance my Conscience leads me to acknowledg But my Lord if I should have said Guilty in manner and form as I stood Indicted I was fearful I should have charged my own Conscience as then knowingly and maliciously to act it My Lord it was my unhappiness to be call'd to so sad a Work when I had so few years over my head A Person neither bred up in the Laws nor in Parliaments where Laws are made I can say with a clear Conscience I had no more enmity in my heart to his Majesty than I had to my Wife that lay in my bosom My Lord I shall deny nothing After I was summoned I think truly I was at most of the Meetings and I do not say this that I did not intend to say it before but preserving that Salvo to my own Conscience That I did not maliciously and knowingly do it I think I am bound in Conscience to own it As I do not deny but I was there so truly I do believe I did sign the Instrument And had I known that then which I do now I do not mean my Lord my Afflictions and Sufferings it is not my Sufferings make me acknowledg I would have chosen a red hot Oven to gone into as soon as that Meeting I bless God I do this neither out of fear nor hopes of favour though the penalty that may attend this acknowledgment may be grievous My Lord I do acknowledg the Matter of Fact and do solemnly profess I was led into it for want of years I do not justify either the Act or the Person I was so unhappy then as to be ignorant and I hope shall not now since I have more light justify that which I was ignorant of I am sure my Heart was without malice if I had been only asked in matter of Fact at first I should have said the same I have seen a little The Great God before whom we all stand hath shewn his tender mercy to Persons upon repentance Paul tells us Though a Blasphemer and a Persecuter of Christ it being done ignorantly upon repentance he found mercy My Lord Mercy I have found and I do not doubt but mercy I shall find My Lord I came in upon the Proclamation and now I am here I have in truth given your Lordship a clear and full account what ever that Law shall pronounce because I was ignorant yet I hope there will be room found for that Mercy and Grace that I think was intended by the Proclamation and I hope by the Parliament of England I shall say no more but in pleading of that humbly beg that your Lordships will be instrumental to the King and Parliament on that behalf Counsel We shall give no evidence against the Prisoner he says he did it ignorantly and I hope and do believe he is penitent and as far as the Parliament thinks fit to shew mercy I shall be very glad Owen Rowe I have not much to say I never had any ability therefore my Lord it was never my intent upon my Plea as was said before to deny any thing I have done for I was clearly convinced that I ought to confess it before and I do confess against my self that I did sit there several times and to the best of my remembrance I did sign and seal the Warrant for his Execution and truly my Lord it was never in my heart to contrive a Plot of this nature How I came there I do not know I was very unfit for such a Business and I confess I did it ignorantly not understanding the Law so was carried away hidden in the Business not understanding what I did therefore my Lord I humbly intreat this honourable Court that you will consider of it and look upon me as one that out of ignorance did it and if I had known of my Act I would rather have been torn in pieces with a thousand Horses When I heard of the Declaration and gracious Pardon of his Majesty I confess I went to my Lord Mayors laid hold of it and I thought my life as secure as it is now in my own hands But I do wholly cast my self upon the King's Mercy and as I have heard he is a gracious King full of lenity and mercy so I hope I shall find it I was never against Government it is a blessed thing that we have it I hope all the Nations will be happy under it I shall submit to his Majesty and Government I can say no more I was not brought up a Scholar but was a Tradesman and was meerly ignorant when I went on in that Business I do humbly intreat your Lordships that you would as tenderly as may be present my case to the King whom I rest upon and leave all to your Lordships wisdom and discretion to do what you will concerning me Counsel We accept his Confession and do hope he is penitent before God as well as before the World Robert Lilburn Be pleased to give me leave to speak a few words I shall be ingenuous before your Lordships I shall not wilfully nor obstinately deny the Matter of Fact But my Lord I must and I can with a very good Conscience say That what I did I did it very innocently without any intention of Murder nor was I ever Plotter or Contriver in that Murder I never read in the Law nor understood the Case throughly What-ever I have done I have done ignorantly L. Ch. B. Because you shall not be mistaken in your words God forbid that we should carp at your words the word Innocent hath a double acceptation Innocent in respect of Malice and Innocent in respect of the Fact Lilburn The truth is my Lord I was for the withdrawing of the Court when the King made the motion to have it withdrawn and upon the day my Lord that the King was put to death I was so sensible of it that I went to my Chamber and mourn'd and would if it had been in my power have preserved his life My Lord I was not at all any disturber of the Government I never interrupted the Parliament at all I had no hand in those things neither in 1648 nor at any other time I shall humbly beg the favour of the King that he would be pleased to grant me his Pardon according to his Declaration which I laid hold on and rendred my self according to the Proclamation Counsel We shall say nothing against him Henry Smith My Lord I shall not desire to spend your Lordships time what I have done
Whitehall there were some Cavaliers then in the Regiment it was my fortune I came into your Company I wish I never had you commanded more besides my self to be a Witness against the King and Justice Cook took my Examination you brought me in you commanded the Guards that time at Whitehall when the King was upon his Tryal Axtell What more Burden And you commanded Elisha Axtell with a file of Souldiers to take a Boat and go down to the common Hangman that liv'd beyond the Tower to execute the King he is now Shepards Serjeant in Ireland Axtell My Lord I desire to ask him a question he was pleased to say I desired him to be a Witness Bur. Yes Axtell Where was it Burden In the Court at Whitehall Axtell My Lord I have seen the printed List of Witnesses against the King and in that list you shall find no such Name Burden I have been a Prisoner in Dublin by your means Axtell My Lord I hope you will take notice of that Councel Burden do you remember any of his commands to Web to draw up in the Banqueting-house Bur. He commanded Web to draw up in the Banqueting-house during the time of Execution his own company I was one of his own company then Coun. In order to what Bur. For Execution Axtell My Lord is Web here Bur. He is in Dublin Axt. I wish he were here Edward Cook sworn Cook And it please your Honour my Lord the last day of the Tryal of his Majesty I came into Westminster-hall coming where the Court was I did see Col. Axtell the Prisoner at the Bar there with some Musquetiers Coun. What day was this Cook The last day of his Majesties Tryal L. ch Bar. Go on Sir Cook Standing there a little while his Majesty came guarded with some Halberteers when he came by the Souldiers that stood with Col. Axtell his Majesty bowed and afterwards put off his Hat and went up to the Court I could not know what Bradshaw said to him I stood below I heard him say he was brought by the consent of the Commons and people of England there stood a Lady above in a Gallery crying out it is a lye where are the people or their consents Cromwel is a Traytor whereupon Col. Axtell standing by saith he what Drab is that that disturbs the Court come down or I will fetch you down Mr. Nelson sworn Coun. Tell my Lords and Gentlemen of the Jury touching the Discourse between you and the Prisoner at the Bar in Dublin Nelson My Lords and Gentlemen of the Jury upon a Discourse with the prisoner at the Bar in Dublin 5 or 6 years since upon the platform in that Castle we discoursed of the late Kings having had several reports I desired to know of him who it was that Executed the King thinking he might inform me he was pleased to tell me this saith he the persons that were imployed in that service you know them as well as I do truly Sir not I said I I saw them in Vizards but not their Visage as I know of yes saith he you do know them it is true saith he my self and others were imployed in that affair in order to the Execution but there were several persons came and offered themselves out of a kind of Zeal to do the thing but we did not think it proper to imploy persons whom we did not know but we made choice of a couple of Stout persons pray let me hear their Names said I saith he it was Heulet and Walker I desired to know their reward Truly saith he I do not know whether 30 l. a piece or between them I said it was a small reward for a work of that Nature truly saith he that was all Axt. You named one man I did not hear the other named Nelson I named Heulet and Walker we was one that managed the Execution he told me so and it pleased you Sir Axtell He is pleased to say that in Ireland there was such conference was any body by Nelson No Sir Axt. Did I name any body to you Nel. You named those two persons Axt. Certainly I must invent them then for I had no more knowledg of them then any one here Nel. You told me you were one of them that had the managing of that Affair Councel My Lord we have done with our Evidence those particulars that were first opened to you have rendred the prisoner much a blacker person then we thought we leave him to his defence Axt. May it please your Lordships in the first place because I am ignorant in the Laws I desire to know upon what Statute this indictment is grounded L. ch B. It is grounded upon the statute of the 25th of Edward the Third Axt. My Lords I must acknowledg my ignorance of the Laws being a thing I never studied nor have the knowledg of but I have heard it is the duty of your Lordships and the Judges to be of Counsel for the Prisoner in things wherein he is ignorant in matters of law to make his just defence and therefore my Lord the Indictment it self being matter of law if your Lordships please not to grant me Counsel to speak to matrers of law I humbly pray that your Lordships will be pleased that for want of knowledg formalities punctilloes and niceties of the Law I might not undo my self I have heard by a learned Judg that though the Judg be of Counsel to the King yet by his Oath he is also to be Counsellor to the Prisoner and stands as a Mediator between the King and Prisoner and therefore my Lord I shall beg that humble favour that wherein I shall fall short to make the best improvement of my Plea in matter of law that your Lordships will help me and not take advantages against me as to the niceties formalities and punctilloes of the Law and my Lord this is a resemblance of that Great day where Christ will be Judg and will judg the secrets of all hearts and of all words and of all persons and by him all Actions are weighed knows all our hearts whether there be malice or how it stands in the frame of each heart before him in this place and therefore I hope there will be nothing by prejudging or any thing by precluding to be so black a person as it seemed to be said against me My Lords I must shorten the time and come to speak as to the Authority L. Ch. Bar. As to what Sir Axt. I speak as to the Authority by which or under which I acted I humbly conceive my Lord under favour that I am not within the compass of that Statute of the 25th of Edward the Third for that questionless must intend private persons Counselling Compassing or Imagining the death of the King But you know my Lords the War was first stated by the Lords and Commons the Parliament of England and by vertue of their Authority was forced to be raised and they pretended