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
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
nothing but indeed to make a new Government which is the highest Treason next to the Murthering of the King in the world To subvert the Laws and to make a few of the Commons nay if they had been the whole to make them to have the Legislative power Mr. Scot if you have any thing in extenuation of the Fact we shall hear you further we cannot L. Finch If you speak to this purpose again for my part I will profess my self I dare not hear further of it It is so poysonous blasphemous a doctrine contrary to the Laws if you go upon this point I shall and I hope my Lords will be of that opinion too desire the Jury may be directed Scot. I thought my Lord you would rather be my Councel it is not my single opinion I am not alone in this Case therefore I think I may justifie my self in it it was the Judgement of many of the Secluded Members to own us to be a Parliament Lord Annesley What you said last doth occasion my rising you seem to deliver my opinion who you know could never agree to what you have alledged truly I have been heartily sorry to hear the defence you have made to day because you know I have had Letters from you of another nature I was very confident to have heard you an humble Penitent this day instead of justifying your self As to that which you say of the Secluded Members owning you to be a Parliament they were so far from it that you know for how many years they lay under sufferings and obscurity because they could not acknowledge that an Authority which was not so You cannot forget the Declaration of both Houses that was published upon a Jealousie that the people had they would change the Government of King Lords and Commons It was far from their thoughts it was called in that Declaration A black scandal cast upon them This Declaration you know was by Order of both Houses affixed in all Churches of England that people might take notice what they held to be the Fundamental Government of this Kingdom King Lords and Commons After this for you to set up another Government and under them to act such things that one would think should hardly enter into the heart of any man You know very well all along they declared themselves faithful Subjects to the King and so would have lived and dyed and you might have had your share of the happiness of that peace if you could have had an Inclination to submit to that which both Houses had resolved when you and others could not bring your hearts to stoop to your Fellow Subjects when you could not submit to that equal rule to take your share with them When Pride carried some so high then was the beginning of your fall and others and none could expect other than what is now come to pass That they should come to that shame and sorrow that this day hath brought upon you I could have wished to have heard nothing but an humble confession of the fault that hath been clearly proved and no Justification of it You have sworn among others to preserve the Laws and People of the Kingdom but you drove away not only the House of Lords but most of the Commons and then to give the name of a Parliament to the Remainder this is a great aggravation of your Treason I think we of the Secluded Members could not have discharged our duty to God and the Kingdom if we had not then appeared in Parliament to have dissolved that Parliament and so by our joynt assent put an end to all your pretences which if we had not done we had not so soon come to our happiness nor you to your miseries Lo. Ch. Bar. The Court hath told you before their opinions in the thing and no further debate is to be allowed in this the Justification of it doth comprehend treason We our selves are not by Law to allow the hearing of it If you have nothing to say for your self I must give direction to the Jury Scot. I humbly crave leave to move the Jury that they bethink themselves and consider of it rather as a special Verdict than of a definitive one I think there is cause of a special Verdict Court If there was need of a special Verdict We are upon our Oaths I should give direction to the Jury What We do We do upon our Oaths and must answer it before God Almighty The Court hath delivered their opinions before that in this Case the Pretended Authority under which you did derive that Power which you did execute that it is no Authority it is void in Law it is a foundation if it were true of subverting all Laws and indeed of all Religion a Power that you assumed to your selves of Judging and Condemning your King that you would countenance such an Authority is a great aggravation of the fault They are Jugdes whether you did Imagine or Compass the Kings Death that is all the Jurors have to do Gentlemen of the Jury Scot. I would know what particular Law I have transgressed in this thing Court The Law of God and Man 25 Edw. 3. Scot. I humbly conceive that reaches not to this Case Court To satisfie you in that the very words of the Statute are If any man do Compass or Imagine the Kings Death it is Treason The Indictment is That you did Imagine and Compass the death of the King if the Fact be proved against you you are within the Statute Scot. You will not say the King shall be a Traytor if he shall Compass the death of the Queen Court The Queen is a Subject Scot. I am not yet convinced Lo. Ch. Bar. Gentlemen of the Jury Scot. I do plead and claim that I am within the Compass of several Pardons and desire Councel in that particular I do come within the Compass of his Majesties Pardon Lo. Ch. Bar. If you had not gone on to matter of Justification you might have been more heard to this of Pardon but after a Justification then to come for a Pardon which implies a confession of Guilt they are contradictory I must tell you we are now upon point of Law That Proclamation I doubt not but his Majesty will inviolably make good but we are not to judge of that it is nothing to a legal proceeding You are now in a Court of Law it is not to be pleaded in a Court of Law the Kings Pardon in Law must be under his Broad Seal How far you are under that Proclamation care will be taken and what is fitting to be done will be done but it is nothing in the matter of the Charge to this Jury Scot. I desire Councel touching the Statute of 25 Edw. 3. Court You should have done it before you had confessed the Fact Scot. I may do it in Arrest of Judgement Lo. Ch. Bar. Mr. Scot for that of the Kings Proclamation if you be within the benefit and
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
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
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
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
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
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
equitie of the Act. They had not all the Authority at that time they were a few of the people that did it they had some part of the Army with them the Lords were not dissolved then when they had adjourned some time they did sit afterwards so that all the particulars you alledge are against you The last thing was this you say that it having pleased God to restore the King Judgement should be given for example for terrour to others that this could not be drawn into example again why because by the blessing of God peace was restored no probability that if your life was spared that it would be drawn again into example this is the weakest thing you have urged you must know the reason there are two things there is the punishment and example punishment goes to the prisoner but example to the documents of all others God knows what such things may be in after ages if there should be impunity for them it would rather make men impudent and confident afterwards if you have any more to say I will hear you if not I must conclude to the Jury You hear the evidence is clear for compassing and imagining the Death of the King you have heard what he has said and what he hath done he has within and examined Witnesses against the King that he was by at the drawing of the charge where it was drawn you hear he exhibited this charge in the name of the Commons assembled in Parliament and the good people of England and what this charge is it is high Treason and other high misdemeanors you find that he does complain of delays dosagain and again speak of this Charge desire it may be taken pro confesso in the close of all it was not so much he as innocent blood that demanded Justice this was more than was dictated to him You have heard the Witnesses he was perswaded to forbear acknowledged the King to be a gracious and wise King The Oaths alledged against him and you have heard his excuse I have nothing to say more I shall be very willing to hear you further I have not absolutely directed the Jury Cook I do humbly acknowledge your patience in hearing me and that your Lordships have truly and justly stated both proofs and my answer If your Lordships are pleased to lay aside these Acts or Orders or Authority whereby I did at that time truly conscientiously act and did think that it would bear me out if you lay aside that and look upon it as so many men got together without authority and aswell those that were instrumental though not sentencers or signers and that clause in the Act I confess I humbly make bold to say I have not received satisfaction in my judgment those very words of not so much I as the innocent blood cries for justice were dictated to me there was nothing at all left to me because his Majesty did not plead there was no Tryal that which I did was according to the best though it may be according to the weakest part of my judgment I have no new matter L. Ch. Bar. You have said no new matter unless it be worse than before for now you warrant that Authority Cook Do not mistake me my Lord I mean so far as to excuse me in the point of High Treason L. C. B. We delivered our opinions as to that formerly we were of opinion that the acting by colour of that pretended authority was so far from any extenuation that it was an aggravation of the thing the meeting by that authoty was Treason and in them that acted under them and approving of it the making of that trayterous pretended Act making the Proclamation sitting upon it they were all so many Treasons That was the reason why that was urged against you assuming upon you the power that was you approving of their power by acting under them so that there is nothing more to be said Gentlemen of the Jury you have heard the indictment was for compassing and imagining the death of the King you have heard the several Overt acts repeated and whether these are guilty of Treason to deliver in a charge against the K. such a one as that was in these words as against a Traytor Tyrant Murderer and implacable enemy to the Commonwealth in these very words to desire Judgement against the Prisoner then the King at the Bar angry at delayes to desire that the Charge might be taken pro confesso to have it expresly again again to demand Judgement if these be not Overt acts of compassing and imagining the Death of the King that which hath been said by the Witnesses it must be left to you I think you need not go from the Bar. Jury went together Silence is commanded Clerk Are you agreed of your Verdict Jury Yes Clerk Who shall speak for you Jury The Fore-man Clerk John Cook hold up thy hand look upon the Prisoner at the Bar how say you is he guilty of the Treason in manner form as he stands indicted or not guilty Fore-man Guilty Clerk Look to him Keeper Clerk What Goods and Chattells Jury None that we know of The Tryal of Hugh Peters the same 13. of October and at the same Bar. Clerk of the Crown SET Hugh Peters to the Bar he was brought accordingly H. P. Hold up thy hand thou standest indicted c. If you will challenge any of the Jury you must challenge them when they come to the book before they are sworn L. Ch. Bar. Mr. Peters You may challenge to the number of 35 peremptiorily but beyond that you cannot without good cause shewn and you may have Pen Ink and Paper Peters My Lord I shall challenge none Jury sworn 12. Sir Jer. Whitch James Hally Christo Abdy Nich. Rainton Rich. Cheyney Jo. Smith Rich. Abell George Terry Charl. Pickern Jo. Nichol. Fran. Dorrington Anthony Hall Cler. Hugh Peters hold up thy hand Look on the Prisoner you that are sworn c. Sir Ed. Turner to the Jury You have often heard repeated to you that the substantial part of the charge is the compassing and imagining the death of the King and all the rest will be but evidence to prove that imagination against the Prisoner at the Bar whom we will prove to be a principal actor in this sad Tragedy and next to him whom God hath taken away and reserved to his own Judgment and we shall endeavour to prove That he was a chief Conspirator with Cromwell at serveral times and in several places and that it was designed by them We shall prove that he was the principal person to procure the Souldiery to cry out Justice Justice or assist or desire those for the taking away the life of the King He did make use of his profession wherein he should have been the Minister of peace to make himself a Trumpeter of war of Treason and Sedition in the Kingdom He preached many Sermons to the Souldiery in direct