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
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
there I met this Gentleman whom indeed I knew not he told me who he was and when I understood who he was I said to him or words to this purpose I cannot tell the words because I would not distaste him and say you have done this therefore I put it thus We have done this What a sad case have we said I brought this Kingdom unto Why saith he you see said I how it is ruined now the King is murthered c Saith he some are of one opinion and some of another Sir said I do you think it was well done to murther the King saith he I will not make you my Confessor Sir it was much to this purpose Coun. When was this spoken Lord Elect. Truly I do not know the day but it was that day that Sir H. M. rendered himself to the Speaker it was since the coming in of the King M. Sol. Neither time nor the hand of God appearing in this business nor the condition he was in was ever able to bring this Gentleman to be sorry for his offence but we do not give it as any evidence of his crimes You have heard the Prisoner confess the two Warrants You have heard by several witnesses produced that he did sit in that which they called the High-Court of Justice by three that he sat particularly on that day they called the day of their Judgment you have heard how little penitence he hath had by his Declaration to the Lord Mayor Elect. Scr. I hope now that you have heard the Evidence against me that you will give me leave to make some defence for my self L. C. Bar. God forbid otherwise but that you should have free liberty Scr. Truly my Lords though my breeding hath not been in the way of the Laws and therefore I have a great disadvantage when there be such learned Gentlemen as these are to plead against me I must confess to you I have something for matter of Law to plead for the justification of the fact though I would not undertake to justifie the person this I humbly entreat if it may be granted that I may have some time given me and some Councel that I may answer matter of Law L. C. Bar. M. Scroop if you have any thing of matter of Law for which you would have Councel you must alledge that matter first the use of Councel is only to put in certainty what you have of matter of Law and then the Court and Judges must judge of it If you have matter of Law you must tell what it is if it be matter that there is cause to over-rule it there is no cause of making further use of Councel If one be Indicted for murther when he comes to Tryal he will say I have matter of Law to plead What is that That Murther is no felony Do you think Councel will be admitted in this If you do alledge what this matter is wherein you desire Councel you shall have your answer Scr. My Lords as well as I am able to do it I shall do it my Lord I was not of the Parliament take notice of that and that which was done in the High Court of Justice it was done by a Commission from the Parliament My Lord it was that Authority which was then I will not say it was so because I would not give offence it was that Authority then which was accounted the supreme Authority of the Nation and that Authority My Lord that a great many of the generality of the Nation submitted to My Lord I having received a command from that Authority what I did was in obedience to that Authority My Lord I have not had time to consider of these things because I have been for these six weeks time shut up a close Prisoner and that I could neither come at Councel nor any thing else nor to get any thing to prepare for it therefore I desire your Lordships to do me the savour if you see any weight in it to let me have time and Councel assigned me L. C. Bar. Have you done Sir Scr. Yes L. C. Bar. Then I take it this is the effect of what you have said if I have not taken it aright tell me so You say you justifie the fact though not your Person That you were not of the Parliament That what was done was by Commission from the Parliament Be pleased not to mistake me for I say you said this That that which I have to plead in justification of it I do not say that I justifie my self but that which I have to say is for justification of the Fact I was first no contriver of the business And then secondly I did it by virtue of the Command and in obedience to the Authority of the Parliament That that Authority was then accounted the Supream Authority of the Nations and that the Generality of the Nations did submit to their Authority I think I have repeated all you have said Then Mr. Scroop you must know this That there is no cause at all why Councel should be given for what you speak I profess it rather tends to the aggravation than extenuation of what you did First you say you did it by Authority of Parliament I am afraid you have been mistaken as well as others by the word Parliament what doth that mean I am sure you and e-every one knows that there was not one Precedent ever heard of till this That the House of Commons should take upon them the Legislative Power and make such an Act as this was there was no colour for it Then for men upon their own heads never heard of before and against the Liberty and Fredome of the People that they should call it the Parliament when there was but 46 sate whereas there was above 240 excluded and how you can call this a House of Commons is a great wonder to me but I tell you this take it for granted that if they were the most perfect House of Commons that could be Did ever the House of Commons before this single Act take upon them the Legislative Powers without the Lords The Acts are begun in the Commons House when you have done if the Lords not pass it it is a bortive if it be done by both Houses there ought to be a Royal assent But the Lords had rejected this Act then they must take upon them these 46 men whereof I do believe there was not above 25 or 26 men that did vote this and this must be called the Parliament the Commons of England I would fain know whether any man hath heard that the House of Commons took upon them the Legislative power before this Act but this hath been over-ruled in the like Case and I shall say no more to it What is the Oath of Allegiance is it not that you would defend the King his Crown Rights and Liberties against all persons whatsoever It was not only against the Pope as some would have it but the
such a Priviledge that no man shall ever be called to account for any thing spoken in Parliament if he be not called to account by the House before any other Member be suffered to speak Lord Ch. Bar. That is the House will not determine but that doth not extend to your Case you are not charged here criminally for speaking those words that have been testified against you but for Compassing and Imagining the Kings death of which there are other Evidences and this but an Evidence to prove that Scot. My Lord I never did say these words with that aggravation which is put upon them I have a great deal of hard measure as to say I hope I shall never repent I take God to witness I have often because it was spoken well of by some and ill by others I have by prayers and tears often sought the Lord that if there were iniquity in it he would shew it me I do affirm I did not say so Mr. Baker My Lord I omitted something which was this I had occasion to speak with Mr. Scot whilest Richard's Parliament was sitting and among other discourse insisting upon some things that Richard had done saith he I have cut off one Tyrants head and I hope to cut off another Scot. My Lord This is but a single witness Mr. Soll. Gen. I suppose he meant Rich. for he was a Tyrant Lord Ch. Bar. Speak on Mr. Scot whatever you have to say Sc. If that he laid aside as an impertinency I have the less to say L. Ch. Bar. The next thing you have to do is to answer to the fact whether you did it or did it not Scot. I say this Whatever I did be it more or less I did it by he Command and Authority of a Parliamentary Power I did sit as one of the Judges of the King and that doth justifie me whatever the nature of the fact was Lo. Ch. Bar. We have had these things alledged before us again and again The Court are clearly satisfied in themselves that this act could not be done by any Parliamentary power whatsoever I must tell you what hath been delivered that there is no power on earth that hath any coercive power over the King neither single Persons nor a Community neither the people Collectively nor Representatively In the next place that which you offer to be done as by Authority of Parliament it was done by a few members of the House of Commons there were but 46 there at that time and of these 46 not above 26 that voted it at that time the House of Lords was sitting who had rejected it and without them there was no Parliament there was a force upon the Parliament there was excluded seven parts of eight Supposing you were a full House of Commons and that without exception there was not Authority enough and it is known to you no man better that there never was a House of Commons before this time that this foul Act was made for erecting that High Court of Justice as you call'd it assumed that Authority of making a Law you cannot pretend to act by Authority of Parliament and because you would excuse it you did it by Authority of Parliament whether it were good or no If a man do that which is unlawful by an unlawful Authority the assuming to do it by that Authority is an Aggravation not an Extenuation of the Fact It was over-ruled I think my Lords will tell you That they do not allow of that Authority at all either to be for Justification or Plea Scot. My Lords I humbly pray leave to say that without offence to the Court every person whereof I honour This Court hath not Cognizance to Declare whether it were a Parliament or no. Lo. Ch. Bar. That was objected too and we must aquaint you That first of all it is no Derogation to Parliaments That what is a Statute or not a Statute should be adjudged by the Common Laws We have often brought it into question whether such and such a thing was an Act of Parliament or not any man may pretend to an Authority of Parliament If forty men should meet at Shooters Hill as the Little Convention did at Westminster and say We do declare our selves a Parliament of England because they do so shall not this be judged what is a Statute and what not It is every days practise we do judge upon it the Fact is so known to every body they did assume to themselves a Royal Authority it hath been over-ruled already it hath been the mistake of many the vulgar acceptation of the word Parliament A Parliament consists of the King Lords and Commons it is not the House of Commons alone and so it is not by Authority of Parliament It is not unless it be by that Authority which makes up the Parliament You cannot give one instance That ever the House of Commons did assume the Kings Authority Scot. I can many where there was nothing but a House of Commons Court When was that Scot. In the Saxons time Court You say it was in the Saxons time you do not come to any time within 600 years you speak of those times wherein things were obscure Scot. I know not but that it might be as lawful for them to make Laws as this late Parliament being called by the Keepers of the Liberties of England My Lords I have no seditious design but to submit to the providence of God Court This is notorious to every man This we have already heard and over-ruled L. Finch That that I hope is this That Mr. Scot will contradict that which he hath said before that is That he hopes he should not repent I hope he doth desire to repent Mr. Scot for this we must over-rule it as we have done before there is nothing at all to be pleaded to the Jurisdiction and this point hath been determined before Scot. The Parliament informer times consisted not so much of King Lords and Commons but King and Parliament In the beginning of the Parliament in 1641. the Bishops were one of the three Estates if it be not properly to be called a Parliament a legislative Power though it be not a Parliament it is binding If two Estates may take away the third if the second do not continue to execuâ—â— their trust he that is in occupancy may have a title to the whole I do affirm I have a Parliamentary Authority a legislative power to justifie me Lo. Ch. Bar. Mr. Scot what you speak concerning the Lords Spiritual is nothing to your Case be it either one way of other it was done by an Act of Parliament with consent of the King Lords and Commons though you will bring it down to make these Commons have a legislative Power I told you it was over-ruled before We have suffered you to expatiate into that which was a thing not intended by many of my Lords that you should have any such power to expatiate into that which is
actually guilty of putting the King to death nay admitting in charity you had no intent to go as far as you did you are by the laws of Christ and this Nation guilty of high Treason in that you that are a Lawyer know very well and I speak it that you may lay it to your heart in the convictions of your conscience I must say to you as Joshua said to Achan my son give glory to God and confess and it would become you so to do you know very well it is the law of this Nation that no one house nor both houses of Parliament have any coercive power over the King much less to put him to death you know as you cited very well that the imprisoning of the King is Treason You know both of you this is an undoubted truth the rule of Law is that the King can do no wrong that is the King can do no wrong in the estimation of Law he may do some particular Acts as a private person but he can do little prejudice in his own person if he would hurt any it must be by Ministers in that case the Law provides a remedy if he doth it by Ministers they must answer for it The King of England is one of those Princes who hath an Imperial Crown what is that It is not to do what he will no but it is that he shall not be punished in his own person if he doth that which in it self is unlawful Now remember this when you took the oaths of Allegiance and Supremacy I presume you both did so what was your oath of Supremacy It was this that the King was the only Supream Governour of these Realms it goes farther as he was Supream Governour so he was the only Supream Governour that excludes Coordination you swear farther that you will to the utmost of your power defend the King against all conspiracies and attempts whatsoever truly you that were a Lawyer when you had thus sworn your fee could be no excuse against what you had sworn to We know that the King in his politick or natural capacity is not only salus populi but salus Reipublicae The Law hath taken care that the people shall have justice and right the Kings person ought not to be touched the King himself is pleased to judge by the Law you see he doth by Law question the death of his Father he doth not judge it himself but the Law judges it Mr. Peters knows very well he subscribed the 39. Articles of Religion look upon them that were made in 1552. and upon those Articles that were confirmed in 13. Elizabeth the King is there acknowledged to have the chief power in these Nations the medling with the King was a Jesutical doctrine This I speak not that the King should or ought to govern but by the Fundamental laws of the land they that keep within the bounds of the law are happy you that are a Lawyer know this in point of law and you that are a Divine know this in point of Divinity You both know the truth of it and when you have thought upon it I hope you will reflect upon that horrid crime the shedding of Royal Blood You see he had granted all those grievances of the people taken them away secured them for the future and at this very time when this horrid act was done you see he had granted all at the desire of the people he had made those concessions such as were it not in respect of others more than those that treated themselves they thought was more than could be expected by the Nation You that had a hand in the Kings death it falls upon you the guilt of it because you were some of those instruments that assisted those persons that broke the Treaty prepare your selves for that death which you are to die it is a debt which we all owe to nature if in this case there is something of shame comes to you it is that you must take as part of the reward of your sin The only work I have now to do is to pronouce the Judgment and this is the judgment of the Court and the Court doth award That both of you be led back to the place from whence you came and from thence shall be drawn upon a hurdle c. and the Lord have mercy upon your souls Cl. Cryer make proclamation Cryer O yes c. All manner of persons c. and all Jurors and witnesses are to appear at this place to morrow morning at seven of the Clock in the morning upon pain of 100. l. a piece So God bless King Charles c. 15. Octo. 1660. at the Sessions House in the Old Bailey The Tryal of William Howlet Memorandum that the Bill of Indictment against William Hewlet alias Howlet was found at Hickes-hall 12 Octob. instant Proclamation of the Court being made Clerk of the Crown SET William Hewlet alias Howlet to the Bar which was done accordingly Cl. William Hewlet alias Howlet hold up thy hand Thou standest Indicted of High Treason in the County of Middlesex by the name of William Hewlet alias Howlet for that thou c. How sayest thou art thou guilty of the High Treason whereof thou hast been Indicted and art now arraigned or not guilty Hewlet I am not guilty my Lord. Clerk How wilt thou be tryed Hewlet By God and the Country Cl. God send thee a good delivery Set him aside Octob. 15. 1660. Clerk of the Crown Set Axtell to the Bar which was done accordingly Clerk Daniel Axtell hold up thy Hand Axtell Pray my Lord let me have Pen and Ink. L. Ch. Bar. Give Mr. Axtell Pen and Ink. Cler. Daniel Axtell these men that were last called of the Jury are to pass c. if you will challenge them or any of them you must challenge them when they come to the Book before they are sworn L. Ch. Bar. Do you know how many you have liberty to challenge because I would not have you misinformed 35 you may challenge peremptorily and no more Axtell I thank you Lordship L. Ch. Bar. Unless you have any particular cause if so you may challenge more Axtell I confess I am wholly ignorant of the law John Kirke John Smith Thomas Morris Ralph Halsell John Sherecroft Francis Beale Robert Cromwell John Gallyerd John Shelbury George Rithe were called and by the Prisoner challenged Thomas Bide Charles Pitfield Robert Sheppard William Dod Thomas Vsman William Maynerd George Plucknet Samuel Harris John Nicoll of Hendon Henry Marsh Thomas Bishop Thomas Snow in all 12 were admitted and sworn of the Jury Cler. of the Crown If any man can inform my Lords the Kings Justices c. Cl. Daniel Axtell hold up thy hand Look upon the prisoner you that are sworn and harken to your charge you shall understand that the prisoner stands Indicted c. K. Council May it please your Lordships and you Gentlemen that are Sworn of this Jury The High Court
of Injustice that was Erected for Tryal of the late King it had all the formalities of a Court to put in Execution that bloody Act they had their President their Council their Chaplain and their Guards some of their Judges have been already Tryed one of their Council and their Chaplain Now my Lord we come to the Guards and this Gentleman at the Bar that is now the Prisoner He was Commander of that Black Guard that cruel and bloody Guard The Indictment is That he did Imagin and compass the Death of the King there be several overt acts that are mentioned in the Indictment as Evidences of that Imagination as the consultation to bring him to Tryal the Actual bringing him to Tryal and the Bloody Execution upon the Scaffold Our Evidence shall be this That during the time of the Tryal the Prisoner at the Bar did Command the Souldiers in Westminster-Hall himself did keep the Entrance into the Court and when Bradshaw did speak to the King and told him he trifled away time and required his answer to the charge exhibited in the Name of the Commons of England Assembled in Parliament and the good People of England that a Noble person in the Gallery there cryed out it was a Lye saying that above half the Commons disowned it saying where are these good people it is a lye Oliver Cromwel is a Traytor this bloodly Fellow commanded the Souldiers to shoot her he did several times command and encourage the Souldiers to cry out Justice justice and the last day of that horrid Tryal called by them the day of Judgement he likewise commanded them to cry out Execution Execution and when some of them would not do it he had the Valour to Beat them My Lords and Gentlemen of the Jury if we prove any of these particulars to demonstrate unto you that he was Guilty of compassing and imagining the King's Death it is equal as if we had proved he did Actually cut off the King's head Mr. Bodurdoe Mr. Nutly Mr. Harrington Sir Purback Temple Mr. Sympson Mr. Baker Mr. Huncks and Mr. Jeoner Sworn Coun. Mr. Symp. tell my Lords and the Jury who had the command of the Souldiers during the Tryal of the King in Westminster-Hall Sym. My Lords as I said before in the Case of Mr. Peters Col. Stubberd and Col. Axtel had the command of the Souldiers below Stairs near that which was called the High Court of Justice Axtell I desire to know his Name my Lord Sym. My Name is Holland Sympson Coun. Did you see him there commanding the Souldiers Sym. There was a kind of a Hubbub in the Court there was a Lady they said it was the Lady Fairfax who at the Exhibiting of the Charge against the King said to be in the Name of the Commons and people of England She spoke out aloud and said it was a lye that not half not a quarter of the people Oliver Comwell is a Rogue and a Traytor they called for a Guard this Gentleman he was called and brought up some Musqueteers and commanded his Souldiers to Present and give Fire against the Lady and commanded her to Unmask Axtell What Lady was it I desire to know Sim. She went by the name of the Lady Fairfax I know not whether it was so or no it was the common report it was she Cl. Mr. H. pray tell my Lord what you know of the Prisoner at the Bar. Huncks My Lord to say positively any thing of the man touching his command I cannot but only that morning the King Dyed he came into the Door of the Room where Colonel Phayre Colonel Hacker Cromwell and my self were Ireton and Harrison lying in bed together in the same Room and then he stood at the Door half in and half out I refusing to Sign an Order for Executing the King as Cromwell ordered me and some little cross Language having passed saith the Prisoner at the Bar Colonel Huncks Iam ashamed of you the Ship is now coming into the Harbour and will you strike Sayle before we come to Anchor This I appeal to your self but for crying out Knock them down Shoot them I know not who it was the Officers cryed Justice and some of the Souldiers but I profess I know not who it was particularly but they cryed Justice and then I fell a trembling for I was afraid of the King but these were the words he used to me will you strike sayle c. Axtell My Lord I desire to ask him a question L. Ch. Bar. Ask him what you will Axtell If I am not in the right I hope your Lordships will direct me L. Ch. Bar. Go on Axtell Col. Huncks where was it Huncks In a little Room in White hall where Ireton and Harrison lay in bed together Axtell Do you know whereabouts Huncks I think I can go to the Room I appeal to your own conscience before all this people Axtell By your favour Sir the Room I perceive you know not and truly Sir My Lord if you please to give me leave because he appeals to my conscience I do appeal to the Great God before whom it may be I may be Arraigned to give an account of all my Words thoughts and Actions I do not remember that ever I had any converse with this man there or met him there or any of that company there that day he was a stranger to me but I wish that you to save your self being in the Warrant for Execution do not make others a Peace-Offiring to save your self the Lord that knows my heart I appeal to him I appeal to your own conscience because you appeal to my conscience I never met you nor saw you there Huncks Have you done then give me leave you say you do not know me I appeal to the same God when Cromwell took upon him to have the Crown have not I said What have you got by being Jehu-like Lord strike me dead here if it be not true Axtell I will not reflect upon him but because he hath appealed to my conscience therefore I speak it it is known Notoriously how Jehu-like you were when you were one of the chief Guards of his Majesty one of the Fourty Halberteers that did oppose every person then for the King had I had time and had not been a close Prisoner as I was there were Witnesses enough Council This after our Evidence is more proper Huncks Spare me not Col. Axtell L. Ch. Bar. Take the Old and Antient course let the Witnesses that are produced for the King be all heard then give your answer to all of them together Axtell My Memory is not very good L. Ch. Bar. You have Pen Ink and Paper L. Ch. Bar. Mr. Axtell is this all that you desire to speak to Col. Huncks Axtell Yes my Lord. L. Ch. Bar. Have you any other Questions Council My Lord we have a few words he Objects as if Col. Huncks were under a danger he is pardoned Axtell I desire to ask
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
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
Gentlemen I shall begin to shew you that which all of you might remember that is your oaths of Allegiance and Supremacy and to add to this that obligation which all this whole Nation did oblige themselves to by the Parliament without question then rightly represented and in being the first of K. James whereby to shew you that not only persons but the Body politick of the Nations not only the single Members but the Members in both houses of Parliament were loyal and obedient subjects to the King their head even to yeeld a natural and humble Obedience and Allegiance I told you the Act of the 1. of K. James when K. James came first into Engl. We the Lords and Com. representing the whole People of the Nation the very words of the Act are so primo Jacobi Chapter the first Representing the whole Body of the Nation do acknowledge an humble natural Leige Obedience to the King as Supreme his Heirs and Successors And in the name of themselves and all the people humbly submit themselves untill the last drop of their bloud be spent in defence of the King and his Royall posterity and therefore they did oblige themselves and all the People of England as far as they could represent them the words are more full then I can express them and indeed it is so dark I cannot read them They did acknowledg to be bound to him and his Imperial Crown Remember these were not words of Complement you shall find that they all of them and so did so many of you as were Members of Parliament yea all of you before you came into the House of Commons did take the Oath of Allegiance which was made after this Recognition the third and fourth of King James or otherwise were not to be Members What was that Oath of Allegiance that you took it was That you should defend the King his Person that is in 3 Jacobi Chapter the fourth his Crown and Dignity What was it Not only against the Pope's Power to depose but the words are or otherwise look into the Act and reflect upon your Conscience and you shall find that all did swear to defend the King his Crown and Dignity and there it is called Imperial Crown I would have you lay this to heart and see how far you have kept this Oath Gentlemen In the Oath of Supremacy which you all took therein you did further acknowledg that the King was the only Supream Governour of this Realm Mark the words I will repeat them that you may lay it to heart you that have more time to apply it to your Fact and you that have less time for ought I know you have reason to consider what I have to say you sware then That the King by the Oath of Supremacy which all of you have taken or ought to have taken if any of you have not taken it yet notwithstanding you are not absolved from the obligation of it but most of you did take it there you sware that the King is the only Supream Governor of this Realm and you sware there that you would defend all Jurisdictions Priviledges Preeminencies and Authorities granted or belonging to the King's Highness His Heirs and Successors or united and annexed unto the Imperial Crown of this Realm For the first If the King be Supream then there is no co-ordination Non habet majorem non habet parem that word Imperial Crown is at least in nine or ten several Statutes it is the very word in this Act that was made lately in pursuance of former Acts concerning Judicial Proceedings And so in the time of King Charles they acknowledged him to be their Leige Sovereign I say that word Supream and so the word Imperial Crown is in the first of Queen Elizabeth the third and the eighth of Elizabeth the twenty fourth of Henry the Eighth Chap. 12. there it is said this Kingdom is an Imperial Crown subject to none but God Almighty Before these times you shall find in the sixteenth of Richard the Second the Statute of Praemunire the Crown of England subject to God alone I will go higher William Rufus some of you are Historians and you shall find the same in Eadmerus and also in Matthew Paris shortly after William Rufus his Time when he wrote to the Pope he challenged and had the same liberty in this Kingdom of England as the Emperor had in his Empire mistake me not I speak only as to the Person of the King I do not meddle of Rights between the King and Subjects or Subject and Subject you see in this Case concerning the Death of his Majesty's dear Father and our Blessed Sovereign of happy memory he doth not judg himself but according to Law that which I assert is as to the Person of the King which was the priviledg of Emperors as to their Personal Priviledges if he had offended and committed an Offence he was only accountable to God himself I will come back to what I have said You swore to be faithful to the King as Supreme The King of Poland hath a Crown but at his Oath of Coronation it is conditioned with the People That if he shall not govern according to such and such Rules they shall be freed from their Homage and Allegiance But it differs with our King for he was a King before Oath The King takes his Oath but not upon any condition this I shew you to let you see that we have no coercive Power against the King The King of England was anointed with Oil at his Coronation which was to shew that Absolute Power I do not say of Government but of being accountable to God for what he did The Law saith The King doth no injury to any Man not but that the King may have the imbecilities and infirmities of other Men but the King in his single Person can do no wrong but if the King command a Man to beat me or to disseize me of my Land I have my remedy against the Man though not against the King The Law in all Cases preserves the Person of the King to be untouched but what is done by his Ministers unlawfully there is a remedy against his Ministers for it but in this Case when you come to the Person of the King what do our Law Books say he is they call it Caput Reipublicae salus Populi the Leiutenant of God and let me tell you there was never such a blow given to the Church of England and the Protestant Religion There was a Case and that of the Spencers you shall find in the 7th Report of the Lord Cook in Calvin's Case that Homage is due to the King in his Politick Capacity and then they made this damnable Inference That therefore if the King did not demean himself as he ought that he should be reformed pure aspertee by asperity sharpness or Imprisonment but these were condemned by two Acts of Parliament in Print that they could not do that even