The Parliament who appointed the Council must be much more unwarrantable And here he offered these points to be considered and pray'd earnestly to have Counsel assigned him to speak to them 1. Whether the collective body of the Parliament can be impeached of High Treason 2. Whether any person acting by Authority of Parliament can so long as he acteth by that Authority commit Treason 3. Whether matters acted by that Authority can be called in question in an inferiour Court 4. Whether a King de jure and out of possession can have Treason committed against him he not being King de facto and in actual possession and pray'd it might be argued by Counsel 5. Whether matters done in Southwark in another County may be given in evidence to a Middlesex Jury As to the last Exception the Court said That he was indicted for compassing and imagining the King's Death in Middlesex and any overt act to prove this Imagination may be given in evidence wheresoever it be acted To which Sir Hen. Vane prayed the benefit of a Bill of Exception upon the Statute of Westminster 2. cap. 31. and prayed that the Justices might seal it which they all refused and held it lay not in any case of the Crown The King's Counsel desired he might call his Witnesses if any he had for if they once came to reply to him he must then be silent and consented that if it would aid him they would allow his Actings to be in the Name and by the Authority of the Council of State and the Actings of the Council of State to be by Authority of what he called a Parliament Sir Hen. Vane replyed Then what I acted in the Council of State and Committee of Safety constituted by the Parliament to endure for eight dayes you will allow me Then you must prove that I ever acted in the other Council of State after the Parliament was turned out Then the King's Counsel produced a Warrant dated Novemb. 3. 1659 which was sent in pursuance of an Order of the Committee of Safety by Sir Hen. Vane as Treasurer of the Navie This Warrant was for the sending of divers Arms Northwards after Mr. Lambert who was gone down to oppose the now Duke of Albemarle Sir Hen. Vane produced Will Angel Brisco Middleton c. Officers of that Regiment which went under his name who having recourse unto him for Orders about Octob. 1659 he bad them desist and declared his dis-satisfaction in their proceedings and this after their several importunities to have Orders from him And thus he closed his Defence FYNCH Sollicitor As to pretence of the power of Parliament It is to be known that it was not the eighth part of the House of Commons such as were let in to do all that hath been complained and the acting under Authority of such an End of a Parliament under such a Violation was no Excuse but an Aggravation but that the Parliament was in Law ended by the death of the late King notwithstanding that Act of 17. Caroli primi appears thus First The King 's Writ for a Parliament is ad tractandum nobiscum which is intended as well of the natural capacity of the King as of his politick Secondly 'T is absurd to say that the Acts of Parliament of King Charles the first should be his Acts in the time of King Charles the second Thirdly A Commission of Sewers enacted to be on foot for ten years expires by the death of the King and the authority of the Commissioners is at an end Fourthly It is not possible for one King to impose a Parliament upon a successor So much for his acting by colour of authority of Parliament And as to the Question Whether an House of Parliament can commit Treason If they depart from that Allegiance which they have sworn at their first meeting they are impeachable for it As to a Co-ordination in the Parliament he denied it As to the Question Whether the King being out of actual possession can have Treason committed against him he affirmed it And said otherwise if Rebellion should be so prosperous as to depose or oppress the King in Battel the Offenders are not to be called in question because they prevailed He said it was the Plea of Watson the Jesuite who being Indicted for compassing the death of King James in Scotland after he was declared King of England and before his actual entring into this Realm made this Defence That the King was never in possession of the Crown Windam Justice As to the Act of 17. Caroli and the Preamble of that Act so much insisted upon by the Prisoner 1. He held that the Parliament had not greater Authority by it but were onely made more durable than other Parliaments have been but he held that the Parliament was absolutely dissolved by the death of the King and put this case If it should be enacted that such a Marriage should continue till it was dissolved by Act of Parliament If one dies it is a determination of it in Fact so as no man can say but it is absolutely dissolved 2. It must continue in the degree and dignity of a Parliament If the House be under a force and some kept out some let in to serve a Turn what-ever they act is a Nullity in Law For Freedom is the principal essence and honour of a Parliament yet though the House be under a Force the House is not dissolved by such Force but the proceedings are to be suspended till it require its former Liberty and this as well by the Common Law as by the Civil and Canon Laws of all other Countries 3. The Parliament is the King 's great Council The Peers are Consiliarii nati If they be forc'd away or laid aside as here they were all the rest is but Magni Nominis Umbra Twisden held the same opinion That it is not the sitting of a few Members within those Walls that will continue it a Parliament And though another Parliament a great many years after the Kings death declared it to be at an end yet that Act was but Declaration it was at an end before Whether a Parliament may commit Treason is not the Question but Whether a few of the House shutting out their Fellows and usurping the Government were not Traitors Foster held the same opinion and said The distinction between the Politick and Natural capacity of the King was the Treason of the two Spencers That Priviledge of the Parliament is no shelter for breach of the Peace much less for Treason Twisden added That to compass the Death of the King as a natural person was Treason to compass his Death in his Politick capacity as to depose him was Treason and both provided for by the Act of 25. Ed. 3. That in the same instant the late King expired in the very same his now Majesty was King de facto and affirmed the cases of Watson and Cleark 1. Jac. If an Army be raised against the King
and Reason out of his hands by force or noise for half an hour or more they finally refused to hear his following Plea and Reasons for an Arrest of Judgment or forbearing their sudden and rash proceeding to Sentence They had promised him before Verdict they would hear any thing in that kind he had to offer as they had also before his pleading not guilty promised him Counsel which never was granted neither They drew him on step by step first to plead on his Arraignment-day then to admit the Juries Verdict on his Tryal-day so called for he never owned it for a Legal Tryal to his last breath and after that out comes the Judgement or Sentence of Death against him pronounced by the Lord Chief Justice Forster and that of the worst complexion and most infamous famous circumstances to wit that he should be hang'd drawn and quartered at Tyburn the common Execution-place for Theeves and Robbers But in the Order for his Execution for reasons best known to them that made it the manner of his death was altered into a beheading only on Tower-hill to which place they carried him on a Sled drawn with horses a circumstance very singular and never used for those that die there and which he was kept ignorant of till the very time one of the Sheriffs men having that morning a little before told him there was to be no Sled but that he was to walk on foot Some farther Remarques of this last dayes Proceedings of the Court with him besides what is already mentioned received from one that was present and did hear and see all being what he could best remember take as followeth After the customary formalities of the Court The Clerk demanded of Sir Henry Vane what he had to say why Sentence of Death should not be passed upon him Sir Henry Vane first alledged that he had not yet heard the Indictment read in Latine The debate upon this took up some time At length some of the King's Counsel desired that the Prisoner might be satisfied in that point Sir Henry desired that Counsel then might also be assigned him to make Exceptions thereto if they found cause otherwise he valued not the hearing of it read in Latine This was over-ruled by the Court he soon therefore desisted from any further urging it The next thing Sir Henry offered in his own defence was the Bill of Exceptions which he brought with him ready drawn and offered it to the Judges desiring them according to the Statute of Westminst 2. 31. made 13. Ed. 1. to sign it This he urged so home that the Statute was consulted and read in open Court running in favour of the Prisoner to this effect That if any man find himself aggrieved by the proceedings against him before any Justices let him write his Exception and desire the Justices to set their seals to it This Act was made sayes Cook that the party wronged might have a Foundation for a legal Process against the Justices by a Writ of Error having his Exception entred upon Record in the Court where the injury is done which through the Justices over-ruling it they could not before procure so the party grieved was without remedy for whose relief this Statute was made The Justices refusing to set to their seals the party grieved may have a Writ grounded on this Statute commanding them to set their seals to his Exception This Exception extends not only to all Pleas dilatory and peremptory c. but to all Challenges of any Jurors and any material Evidence given to any Jury which by the Court is over-ruled As in this Prisoners Case the Testimony about falsifying of his hand to writings c. was by what was offered to the Jury by Justice Windham Further sayes Cook on this Statute If the Justice or Justices die their Executors or Administrators may be proceeded against for the injury done And if the Judge or Judges deny to seal the Exception the party wronged may in the Writ of Error take Issue thereupon if he can prove by Witnesses the Judge or Judges denied to seal it Notwithstanding all this the Judges over-ruled this Plea also by such interpretation as themselves put upon that Statute to wit that it was not allowable in Criminal Cases for Life This makes the Law less careful for the preservation of a man's Life than any particulars of his Estate in controversies about which this Statute is affirmed by them to hold whereas Life is the greater and innocent Blood when spilt is irreversible as to the matter it cannot be gathered up again the Estate is the lesser and if an erroneous Judgment pass about it 't is reversible upon Traverse Writ of Error or otherwise The Reason they alledged for their pretended Opinion was this That if it be held in Criminal Cases for Life every Felon in Newgate might plead the same and so there would be no Goal-delivery Sir Henry answered his Case was not the Case of common Felons alledging the Grant of his Majesty to the Petition of both Houses for his Life in case he should be attainted There is no need therefore sure said he of fearing the consequence of spinning out the time a little with a person in his circumstances Besides he said he had been a Prisoner two years and never call'd on to give any account of himself and his actions so is it not with Felons which with other considerations may sufficiently evince that there is no need of such hasting his Death He told them withal that he desired not this for his own sake only but for theirs and for posterity that they might on a more leisurely and unprejudiced hearing of what may be said on all hands prevent the bringing of innocent Blood upon themselves and the Land But being in this also over-ruled by the Court say what he could He only desired he might understand whether they would all give it as their Common Judgment they would stand to That what he desired was not his due by the Law By this means they were all put upon it one by one to declare themselves in that point unanimously denying him the benefit of that Act. To the by-standers their chief Reason seemed to be that it had not been practised this hundred or two of years The third thing Sir Henry desired was That the Petition of both Houses with his Majesties Answer thereunto might be read in the Court which after some dispute was concluded to be a thing they were not bound to take notice of not being an Act of Parliament Yet what is any Act of Parliament but a Bill presented with the Petition of both Houses to his Majesty with his Royal Assent thereto upon Publick Record At length they condescended to reade it and that was all The fourth and last thing Sir Henry offered to the consideration of of the Bench was this That in regard there were questions touching matter of Law in his Case which must receive their determination in
Judgement and the Lord's Day And this is that in every individual man which in the collective Body of the People and meeting of Head and Members in Parliament is called The Supream Authority and is the publick reason and will of the whole Kingdon the going against which is in Nature as well as by the Law of Nations an offence of the highest rank amongst men For it must be presumed that there is more of the Wisdom and Will of God in that publick Suffrage of the whole Nation than of any private Person or lesser collective Body whatsoever not better quallified and principled For Man is made in God's Image or in a likeness in Judgement and Will unto God himself according to the measure that in his nature he is proportioned and made capable to be the receiver and bearer thereof Therefore it is that the resisting and opposing either of that Judgement of Will which is in it self Supream and the Law to all others or which bears so much proportion and likeness to the Supream Will as is possible for a Society and community of Men agreeing together for that end to contrive and set up for an administration thereof unto them is against the duty of any member of that Society as well as it is against the duty of the Body of the whole Society to oppose its Judgement and Will to that of the Supream Law-giver their highest Soveraign God himself The highest Judgement and Will set up by God for Angels and Men in their particular beings to hold proportion with and bear conformity unto in the capacity of Ruled in relation to their chief Ruler sinnes forth in the person of Christ the engrafted Word And when by the Agreement or common Consent of a Nation or State there is such a Constitution and Form of Administration pitched upon as in a standing and ordinary way may derive and conveigh the nearest and greatest likeness in humane Laws or Acts of such a Constitution unto the Judgement and Will of the Supream Legislator as the Rule and declared Duty for every one in that Society to observe It is thereby that Government or Supream Power comes to receive Being in a Nation or State and is brought into exercise according to God's Ordinance and Divine Institution So then it is not so much the Form of the Administration as the thing Administred wherein the good or evil of Government doth consist that is to say a greater likeness or unlikeness unto Judgement and Will of the highest Being in all the Acts or Laws flowing from the Fundamental Constitution of the Government Hence it is that common Consent lawfully and rightfully given by the Body of a Nation and intrusted with Delegates of their own free choice to be exercised by them as their Representatives as well for the Welfare and good of the Body that trusts them as to the Honour and Well-pleasing of God the Supream Legislator is the Principle and Means warranted by the Law of Nature and Nations to give Constitution and Admission to the exercise of Government and Supream Authority over them and amongst them Agreeable hereunto we are to suppose that our Ancestors in this Kingdom did proceed when they constituted the Government thereof in that form of Administration which hath been derived to us in the course and channel of our Customes and Laws amongst which the Law and Customes in and of the Parliaments are to be accounted as chief For Hereby First The Directive or Legislative Power having the Right to State and Give the Rule for the Governors Duty and the Subjects Obedience is continued in our Laws which as well the King as People are under the Observation of witness the Coronation Oath and the Oath of Allegiance Secondly The Coercive or Executive Power is placed in one Person under the Name and Style of a King to be put forth not by his own single personal Command but by the signification of his Will and Pleasure as the Will of the whole State in and by his Courts of Justice and stated publick Counsels and Judicatures agreed on for that purpose between him and his People in their Parliamentary Assemblies The Will of the whole State thus signified the Law it self prefers before the personal Will of the King in distinction from the Law and makes the one binding the other not So that the publick Will of the State signified and declared by the publick Suffrage and Vote of the People or Kingdom in Parliament Assembled is a Legal and Warrantable ground for the Subjects Obedience in the things commanded by it for the good and welfare of the whole Body according to the best Understanding of such their Representative Body by it put forth during the time of its sitting The Body with whom the Delegated Vote and publick Suffrage of the whole Nation is Intrusted being once Assembled with Power not to be Dissolved but by their own consent in that capacity the highest Vote and Trust that can be is exercised and this by Authority of Parliament unto ex Officio or by way of Office are the Keepers of the Liberties of England or of the People by the said Authority for which they are accountable if they do not faithfully discharge that their duty This Office of keeping the Liberty which by the Law of God and Nature is due to the Community or whole Body of the People is by way of Trust committed by themselves to their own Delegates and in effect amounts unto this 1. That they may of right keep out and refuse any to exercise Rule and Command over them except God himself who is the Supream and Universal King and Governour or such as shall agree in their Actings to bear his Image which is to be Just and shew for the Warrant of their Exercise of Soveraignty both a likeness in Judgement and Will unto him who is Wisdom and Righteousness it self and the Approbation and common Consent of the whole Body rationally reposing that Trust in them from what is with visible and apparent Characters manifest to them of an aptness and sufficiency in them to give forth such publick Acts of Government that may bear the Stamp of God's Impression upon them in the Judgements they do and execute especially being therein helped with a National Counsel of the Peoples own choosing from time to time 2. They may of right keep hold and restrain him or them with whom the Coercive or Executive Power is intrusted unto a punctual performance of Duty according to the Fundamental Constitution the Oath of the Ruler and the Laws of the Land And if they shall refuse to be so held and restrained by the humble Desires Advice and common Consent in Parliament and the Peoples Delegates be invaded and attempted upon by force to deter them from the faithful discharge of this their Duty they may in asserting their Right and in a way of their own just Defence raise Armes put the issue upon Battel and Appeal unto
God 3. Such Appeal answered and the issue decided by Battel the Peoples Delegates still sitting and keeping together in their Collective Body may of right and according to reason refuse the re-admission or new-admission of the Exercise of the former Rulers or any new Rulers again over the whole Body till there be received Satisfaction for the former Wrongs done the expence and hazzard of the War and Security for the time to come that the like be not committed again Until this be obtained they are bound in duty in such manner as they judge most fit to provide for the present Government of the whole Body that the Common-weal receive no detriment 4. In this which is the proper Office of the Peoples Delegates and concerns the keeping and defending the Liberty and Right of the whole People and Nation they may and ought during their sitting to Exercise their own proper Power and Authority the Exigents of the Kingdom requiring it although the other two Estates joyntly instructed with them in the exercise of the Legislative Authority should desert their station or otherwise sail in the Execution of their Trusts yea or though many or most of their own Members so long as a lawful Quorum remains shall either voluntarily withdraw from them or for just cause become excluded In this discharge of their trust for the common welfare and safety of the whole their Actings though extraordinary and contrarient to the right of the other two cannot be treasonable or criminal though they may be tortious and erroneous seeing they are equals and co-ordinate in the exercise of the Legislative Power and have the Right of their own proper Trust and Office to discharge and defend though their fellow Trustees should fail in theirs Nor can nor ought the People as Adherents to their own Delegates and Representatives to be reputed criminal or blame worthy by the Law In the exercise of one and the same Legislative power according to the Fundamental Constitution of the Government of England there are three distinct publick Votes allowed for Assent or Discent in all matters coming before them the Agreement of which is essential and necessary to the passing of a Law the personal Vote of the King the personal Votes of the Lords in a House or distinct Body and the Delegated Vote and Suffrage of the whole People in their Representative Body or the House of Commons Unto each of these appertains a distinct Office and Priviledge proper to them 1. The Regal Office and the Prerogative thereof to the King 2. The Judicial Office to the Lords as the highest Judicature and Court of Justice under the King for the exercising Coercive Power and punishing of Malefactors 3. The Office of the Keepers of the Liberties and Rights of the People as they are the whole Nation incorporated under one Head by their own free and common Consent The Regal Office is the Fountain of all Coercive and Executive Power pursuant to the Rule set to the same by Law or the Agreement of the three Estates in Parliament The Rule which is set is that of Immutable Just and Right according to which penalties are applicable and become due and is first stated and ascertained in the declared Law of God which is the signification or making known by some sign the Will of the Supream Legislator proceeding from a perfect Judgement and Understanding that is without all Error or Defect The Will that flowes from such a Judgement is in its nature Legislative and binding and of right to be obeyed for its own sake and the perfection it carries in it and with it in all its actings This Will is declared by Word or Works or both By Word we are to understand either the immediate Breath and Spirit of Gods mouth or mind or the Inspiration of the Almighty ministred by the holy Ghost in and by some creature as his vessel and instrument through which the holy Scriptures of the old and new Testament were composed By works that declare God's Will we are to understand the whole Book of the Creature but more eminently and especially the particular Beings and Natures of Angels and Men who bear the name and likeness of God in and upon their Judgements and their Wills their directing Power and their executive Power of mind which are essential to their Being Life and Motion When these direct and execute in conjunction and harmony with God's Judgement and Will made known in his Law they do that which is right and by adhering and conforming themselves unto this their certain and unerring Guide do become Guides and Rulers unto others and are the Objects of right choice where Rulers are wanting in Church or State The Rule then to all action of Angels or Men is that of moral or immutable Just and Right which is stated and declared in the Will and Law of God The first and highest imitation of this Rule is the Creature-being in the person of Christ The next is the Bride the Lambs Wife The next is the innumerable Society of the holy Angels The next is the Company of Just Men fixed in their natural Obedience and Duty through Faith manifesting it self not onely in their Spirits but in their outward Man redeemed even in this World from the body of corruption as far as is here attainable The Power which is directive and states and ascertains the morallity of the Rule for Obedience is in the Law of God But the original whence all just executive Power arises which is Magistratical and Coercive is from the will or free gift of the People who may either keep the Power in themselves or give up their Subjection into the hands and will of another as their Leader and Guide if they shall judge that thereby they shall better answer the end of Government to wit the welfare and safety of the whole then if they still kept the Power in themselves And when they part with it they may do it conditionally or absolutely and whilst they keep it they are bound to the right use of it In this Liberty every man is created and it is the Priviledge and just Right which is granted unto Man by the Supream Law-giver even by the Law of Nature under which man was made God himself leaves man to the free exercise of this his Liberty when he tenders to him his safety and immutability upon the well or ill use of this his Liberty allowing him the choice either to be his own guide and self-ruler in the ability communicated to him to know and execute Gods Will and so to keep the Liberty he is possessed of in giving away his subjection or not or else upon God's Call and Promise to give up himself in way of subjection to God as his Guide and Ruler either absolutely or conditionally To himself he expects absolute Subjection to all subordinate Rulers conditional While mans Subjection is his own and in his own keeping unbestowed and ungiven out of himself he
is not nor cannot be accountable by way of crime or offence against his Ruler and Soveraign but may do with his own what he please but still at his peril if he use not this his Liberty as he should to the end for which it is given him which is by voluntary and entire resignation to become an obedient Subject unto him who is the Supream Law-giver and Rightful King without possibility of change or defection Unto this right and the lawful exercise and possession of it this Nation did arive by the good providence and gift of God in calling and assembling the Parliament November 3d. 1640. and then continuing their Session by an express Act 17. Car. with power not to be dissolved but by their own consent which was not so much the introducing of a new Law as declaratory of what was Law before according to Man's natural Right in which he was created and of which he was possessed by God the soveraign giver of all things But the passing that said Act of Parliament alone was not that which restored the Nation to their original Right and just Natural Liberty but onely put them in the capacity and possibility of it That which wanted to make out to the Nation a clearness in having and obtaining this their right was the obligation they had put upon themselves and their posterities to their present Soveraign and his Authority which in justice and by the Oathes of Allegiance they were solemnly bound to in the sight of God as well as of Man And therefore unless by the abuse of that office of Trust to that degree as on his part to break the fundamental compact and constitution of Government they could not be set free nor restored to their original Right and first Liberty especially if together with such breach of Trust both parties appeal to God and put it upon the issue of Battel and God give the decision and in consequence thereof that original Right be asserted and possession thereof had and held for some years and then not rightfully lost but treacherously betrayed and given up by those in whom no power was rightfully placed to give up the subjection of the Nation again unto any whatsoever Unto which is to be added that how and when the dissolution of the said Parliament according to Law hath been made is yet unascertained and not particularly declared by reason whereof and by what hath been before shewed the state of the Case on the Subjects part is much altered as to the matter of Right and the Usurpation is now on the other hand there being as is well known two sorts of Usurpers either such as having no right of consent at all unto the Rule they exercise over the Subject or such who under pretence of a Right and Title do claim not by consent but by conquest and power or else hold themselves not obliged to the Fundamental compact and constitution of Government but gain unduely from the Subject by advantages taken through deceit and violence that which is not their own by Law For a rational Man to give up his Reason and Will unto the Judgement and Will of another without which no outward coercive Power can be whose Judgement and Will is not perfectly and unchangeably good and right is unwise and unsafe and by the Law of Nature forbidden And therefore all such gift made by rational men must be conditional either implied or explicite to be followers of their Rulers so far as they are followers of that good and right which is contained in the Law of the Supream Law-giver and no further reserving to themselves in case of such defection and declining of the Rulers actings from the Rule their primitive and original Freedom to resort unto that so they may in such case be as they were before they gave away their subjection unto the Will of another and reserving also the power to have this judged by a meet and competent Judge which is the Reason of the King and Kingdom declared by their Representatives in Parliament that is to say the Delegates of the People in the House of Commons assembled and the Commissioners on the Kings behalf by his own Letters Patents in the House of Peers which two concurring do very far bind the King if not wholly And when these cannot agree but break one from another the Commons in Parliament assembled are ex Officio the Keepers of the Liberties of the Nation and righteous Possessors and Defendors of it against all Usurpers and Usurpations whatsoever by the Laws of England The Valley of Jehoshaphat considered and opened by comparing 2. Chron. 20. with Joel 3. IT was the saying of Austine Nothing falls under our senses or happens in this visible World but is either commanded or permitted from the invisible and unintelligible Court and Pallace of the highest Emperor and universal King who is the chief over all the kings of the earth For although he hath both commanded and permitted a subordinate external Government over Men administred by man for the upholding of Justice in humane Societies and for the peace welfare and safety of men that are made in Gods Image yet he hath not so entirely put the Rule of the whole earth out of his own hands but that in cases of eminent injustice and oppression committed in Provinces States and Kingdomes contrary to his Lawes to their own and the very end of Magistracy which is the conservation of the Peoples just Rights and Liberties He that is higher than the highest amongst men doth regard and will shew by some extraordinary interposition of his that there are higher than they Such a seasonable and signal appearance of God for the Succor and Relief of his People in their greatest Straits and Exigencies when they have no might visible Power or armed Force to undertake the great company and multitude that comes against them nor know what to do save onely to have their eyes towards him is called in Scripture The day of the Lord's Judgement Then the Battel and cause of the Quarrel will appear to be not so much theirs as the Lord's and the frame of their heart will be humble before the Lord believing in the Lord and believing his Prophets for their good success and establishment This Dispensation is very lively described under the Type and by the Name of The Valley of Jehoshaphat as to the Season and Place wherein God will give forth a signal appearance of himself in Judgement on the behalf of his People for a final decision of the Controversie between them and their enemies It Litterally and Typically fell out thus as is at large recorded 2 Chron. 20. By way of allusion to this and upon occasion of the like yea and far greater Extreamities which God's People in the last dayes are to be brought into is that Prophesie Joel 3. for a like yea a far greater and more signal appearance of God for their Deliverance and Rescue in order to
Rule cap 29. Nullus liber homo capiatur c. No free-man shall be taken or imprisoned or be disseised of his freehold or liberties or free-customs or be outlawed or exiled or any otherwise destroyed Nor we will not passe upon him nor condemn him but by lawful Judgement of his Peers or by the Law of the Land We will sell to no man we will not deny or defer to any man either Justice or Right Out of this Chapter as out of a root saith Sir Edward Cook do many fruitful branches of the Law of England spring It contains nine branches some whereof I shall insist upon in my Case First That no man be taken or imprisoned but per Legem Terrae that is by the Common Law or Custom of England which words per Legem Terrae though put last refer to all the precedent branches Secondly The Goods of any Offender cannot regularly be taken and seized to the King's use before Conviction nor be Inventoried nor the Town charged therewith before the owner be indicted of Record Thirdly No man shall be exiled or banished out of his Country not be in any sort destroyed but by the verdict of his Peers This appears by Bracton and other ancient Writers quoted by Cook in the third part of his Institutes fol. 228. Upon the whole matter saith Cook these two Conclusions are manifestly proved First That before Indictment the Goods or other things of any Offender cannot be searched inventoried or in any sort seized nor after Indictment seized removed or taken away before Conviction or Attainder Secondly That the begging of the Goods or Estate of any Delinquent accused or indicted of any Treason Felony or other offence before he be convicted and attainted is utterly unlawful Stat. Ri. 1. cap. 3. And besides it maketh the prosecution against the Delinquent more precipitant violent and undue than the quiet and equal proceedings of the Law and Justice would permit Or else by some under-hand Agreement stops or hinders the due course of Justice and discourageth both Judge Juror and Witness to do their duty Thirdly The Judges are not to give so much as their Opinion before-hand concerning the Offence whether it prove that Offence in that Case Cook in the chap. of Petty Treason fol. 29. expresly saith And to the end the Tryal may be the more indifferent seeing the safety of the Prisoner consists in the indifferency of the Court the Judges ought not to deliver their Opinions before-hand of any Criminal Case that may come before them judicially And he there cites Humphrey Staffords Case that Arch Traitor in which Hussey Chief Justice besought Hen. 7. not to demand of them their Opinions before-hand And in the 4th of his Institutes in the chap. of the High Court of Parliament fol. 37 he fully shews the evil of asking the Judges Opinions before-hand But instead of this The Judges being assistant in the Lords house when all Acts of Parliament passe and whose Advice is taken in them have as appears by what is declared in the said Acts prejudg'd by their Opinions and the Opinions of the Parliament before-hand the merit of the Cause that now appears to be put upon the Issue in my Tryal Hereby the Judges are rendred ex parte and the indifferency the Law requires impossible to be afforded Nor is this all but by the Rules declared in the Act of Indempnity all are disenabled to plead or make use of the Ordinances Orders and Votes of both or either Houses of Parliament that may have occasion thereof and then by excepting the Prisoner and his fellow out of the said Act and all benefit thereby a door is left open to Arraign bring to Tryal and Sentence the whole Cause from the beginning to the ending in the person of the Prisoner and at the same time deprive him of all means and possibility of Justification and Defence Fourthly It is observable how early hard measure appeared in the way wherein the Prisoner became excepted out of the Act of Indempnity when the Commons his proper Judges declared him in their thoughts not fit to be endangered in the point of Life yet unto the Judgment of the Lords that ought not to judge Commoners unbrought before them by the Commons much less in opposite Judgement to the Commons The Commons were necessitated to yeeld lest otherwise the Act of Indempnity to the whole Nation should stop upon this dispute and essential difference between the two Houses A Competition easily over-ruled although as it proves by the sequel That Act of Indempnity is like to become felo de se or a destroyer of it self if your Lordships shall conceive your selves at liberty notwithstanding that Act not only to bring anew into memory upon the stage the state of all the passed differences from first to last but to try and judge the merit of them in my person and therein call in question the validity of that whole Act and make void the benefit intended by it in case the War undertaken and managed by both or either of the Houses of Parliament be judged unlawful and within the Statute of 25. Ed. 3. For this adjudges all the People of England morally guilty of the evil of a sin and offence against the Law of Nature which once done what ever promised Indempnity be granted for the present the Evil of the Action remaining upon Record not only to the Infamy of the whole People of England but their future danger upon pretence they have forfeited the very Indempnity granted Fifthly The length of time taken to search out matter against the Prisoner and the undue practices and courses to find out Witnesses do further evidence how unlike the Prisoner is to have an equal and indifferent Tryal He doubts not this will appear in his two years close Imprisonement six months whereof was Banishment during which time he was never so much as once examined or had any question put to him whereby he might conjecture wherefore he was committed to Prison any further than was expressed in the Warrants of Commitments Now these were so general that nothing certain or particular could be gathered out of them But upon the received opinion that he was excepted out of the Act of Indempnity and in the sence of both Houses a great Delinquent his Estate was attempted to be inventoried his Rentals demanded his Rents were actually seized in the Tenants hands and they forbidden to pay them His very Courts were prohibited by Officers of great Personages claiming the Grant of the Estate and threatning his Officers from doing their duty By these kind of undue proceedings the Prisoner had not wherewithal to maintain himself in Prison and his Debts to the value of above ten thousand pounds were undischarged either Principal or Interest The hopes of private lucre and profit hereby was such in the Tenants and other persons sought out for far and near to be Witnesses that it is no wonder at last something by way
to his Majesty that now is and to the Church and People of God in these Nations and to the innocent Blood of all that have been slain in this Quarrel Nothing it seems will now serve unless by the Condemnation passed upon my person they be rendred to posterity Murderers and Rebels and that upon Record in a Court of Justice in Westminster-hall And this would inevitably have followed if I had voluntarily given up this Cause without asserting their and my Innocency by which I should have pulled that Blood upon my own head which now I am sure must lie at the door of others and in particular of those that knowingly and precipitately shall embrew their hands in my innocent Blood under whatever form or pretext of Justice My Case is evidently new and unusual that which never happened before wherein there is not only much of God and of his Glory but all that is dear and of true value to all the good People in these three Nations And as I have said it cannot be Treason against the Law of Nature since the duties of the Subjects in relation to their Soveraigns and Superiours from highest to lowest are owned and conscientiously practised and yeelded by those that are the Assertors of this Cause Nor can it be Treason within the Statute of 25. Ed. 3 since besides what hath been said of no King in possession and of being under Powers regnant Kings de facto as also of the Fact in its own nature and the Evidence as to Overt Acts pretended it is very plain it cannot possibly fall within the purview of that Statute For this Case thus circumstantiated as before declared is no Act of any private person of his own head as that Statute intends nor in relation to the King there meant that is presumed to be in the exercise of his Royal Authority in conjunction with the Law and the two Houses of Parliament if they be sitting as the fundamental Constitutions of the Government do require My Lords If I have been free and plain with you in this matter I beg your Pardon For it concerns me to be so and something more than ordinarily urgent where both my Estate and Life are in such eminent peril nay more than my Life the Concerns of thousands of Lives are in it not only of those that are in their graves already but of all posterity in time to come Had nothing been in it but the care to preserve my own Life I needed not have stayed in England but might have taken my opportunity to have withdrawn my self into forreign parts to provide for my own safety Nor needed I to have been put upon pleading as now I am for an Arrest of Judgment but might have watch'd upon advantages that were visible enough to me in the managing of my Tryal if I had consulted only the preservation of my Life or Estate No my Lords I have otherwise learned Christ than to fear them that can but kill the Body and have no more that they can do I have also taken notice in the little reading that I have had of History how glorious the very Heathens have rendred their names to posterity in the contempt they have shewed of Death when the laying down of their Life has appeared to be their Duty from the love which they have owed to their Country Two remarkable examples of this give me leave to mention to you upon this occasion The one is of Socrates the divine Philosopher who was brought into question before a Judgment-Seat as now I am for maintaining that there was but one onely true God against the multiplicity of the superstitious Heathen gods and he was so little in love with his own Life upon this account wherein he knew the Right was on his side that he could not be perswaded by his friends to make any defence but would chuse rather to put it upon the conscience and determination of his Judges to decide that wherein he knew not how to make any choice of his own as to what would be best for him whether to live or to die he ingenuously professing that for ought he knew it might be much to his prejudice and loss to endeavour longer continuance in this bodily Life The other example is that of a chief Governour that to my best remembrance had the Command of a City in Greece which was besieged by a potent Enemy and brought into unimaginable straits Hereupon the said Governor makes his address to the Oracle to know the event of that danger The answer was That the City should be safely preserved if the chief Governour were slain by the Enemy He understanding this immediately disguis'd himself and went into the Enemies Camp amongst whom he did so comport himself that they unwittingly put him to death by which means immediately safety and deliverance arose to the City as the Oracle had declared So little was his Life in esteem with him when the Good and Safety of his Country required the laying of it down The BILL of EXCEPTIONS translated out of the best Latine form the Prisoner could procure No Counsel learned in the Law daring to assist him in those Circumstances without Assignment from the Court which was denied First Concerning my Imprisonment 1. I Shall here mention my entrance into this new Scene of Sufferings under the present Power after my having been handled at will and pleasure under the six years Usurpation of Cromwel which I conceive not to have been at all according to the Law of the Land as may appear by the 29th chap. of Magna Charta and Cook upon it with many other Statutes and Law-Books In all which it appears that the Law of England is so tender not to say curious in providing for the Subjects Liberty that he is not to suffer the least restraint confinement of imprisonment but by the lawfull Judgment of his Peers or by the Law of the Land Contrary to all which I was committed at meer Will and Pleasure and have been detained close Prisoner these two years without any cause specified or any particular crime laid to my charge Secondly Concerning Transactions at the Grand Jury 2. The Grand Jury of Middlesex without my privity knowledge or presence after I had been kept a close Prisoner two full years did meet take the Depositions of Witnesses and find the Bill against me which inevitably exposed me to a Tryal at the Kings Bench Bar for I knew not what whereas Major Rolph and others have had the Right of Englishmen granted them to be present at the Grand Juries proceedings yea and to have Counsel also present to plead any thing in a way of Reason or Law for invalidating the Testimony or disabling the Witnesses whereby the Indictment hath been immediately quash'd and so the party accused delivered from any shadow of Infamy by so much as appearing in the circumstances of a Male-factor at any publick Bar of Justice That this Prisoner had great need
of that Priviledge of being present himself or having Counsel and other Friends present at the Grand Jury will appear hereafter by the subdolous and injurious handling of matters there Thirdly Concerning the Jurisdiction of the Court. 3. The Offences supposed to be committed by me are things done not of my own head but as a Member of the Long Parliament or in pursuance of their Authority The matters done by me in the one respect or the other if they be deemed Offences are punishable only in Parliament and I ought not to be questioned for them in any inferiour Court As Cook shews in the 4th part of his Institutes chap. 1. concerning the high Court of Parliament For the Parliament is not confined in their Actings by the Law which inferiour Courts are tied up to but in divers cases are priviledged to act extraordinarily and unaccountably to any but themselves or succeeding Parliaments Moreover That Parliament was extraordinarily commissioned qualified and authorized by express Act of Parliament beyond all preceding Parliaments for the Causes and Ends declared in the Preamble of the Act for their Establishment accorded and passed by the joynt Consent of King Lords and Commons whereby they became unsubjected to Adjournment Prorogation or Dissolution but by their own respective voluntary Consents to be by them expressed and passed for that purpose with the Royal Assent which occasioned his late Majesty in his Answer to the nineteen Propositions to say That the Power hereby legally placed in both Houses was more than sufficient to prevent and restrain the Power of Tyranny And further The bringing of this Case under the Jurisdiction of this Court or of any other but a Parliament may prove of very dangerous consequence in point of Precedent and most disagreeing to all Rules of Justice For First By the same reason that I am questioned in this Court not only every Member of Parliament but the very Houses themselves with all their Debates Votes and Orders may not only be questioned but referred to a Petty Jury and so come to be judged and sentenc'd by a Court inferiour to themselves which Judges in all times have disclaimed and acknowledged to be out of their power according to the known Rule Par in pares non habet imperium multo minus in eos qui majus imperium habent Secondly In such case the Parties accused will be debarred of Evidence or Witness for their Justification and Defence For no Members c. present at Debates in Parliament who are the onely eye and ear-witnesses of what is said and done there ought to discover the Counsels of the House Fourthly Concerning the Indictment 1. I have not been permitted to have a copy or sight of the Indictment nor so much as to hear it read in Latine which is the original Record of the Court and ought to be the foundation of their whole proceeding with me I often desired these things of the Court yea or at least to have but the Transcripts of some particular clauses in the Indictment to enable me to shew the deficiencies thereof in Law all which others in such cases have often obtained but nothing would be granted herein This then was my hard lot and usage I was put after two years close Imprisonment to answer for my Life to a long Indictment read in English which whether it were rightly translated how should I know that might not hear the Original Record in Latine Counsel also learned in the Law were denied me though pressed for by me again and again before I pleaded And had they been granted what could they have said as to defects of Law in the Indictment unless they might have a Copy of it What can any Counsel say to any petty business concerning any part of a man's Estate that 's in controversie unless they may have a leisurely view and perusal of the Writings thereabouts much more sure will it appear requisit to the reason of all mankind when a man 's whole Estate Life and all are at stake 'T is true before I pleaded this Court promised I should have Counsel assigned me after pleading God forfend else said the Lord Chief Justice but 't is as true I never could yet see that promise made good All things tending to a fair Tryal were promised me in general before pleading but every material particular for the just defence of my Life hath been denied me ever since And my Tryal for Life was hudled up the next day of my appearing before you The Jury as was told me must not eat or drink till they had done their work so the more than forty Jewry-men that resolved to kill Paul Act. 23. 21. But why such haste and precipitancy for a man's Life that 's more than Meat or Estate when you can let Civil Causes about mens Estates depend many years and if an erroneous Judgment be passed in such matters 't is reversible But if innocent Blood be spilt it cannot be gathered up again as the wise woman of Tekoah said 2 Sam. 14. 2. But secondly then As to defects in the Indictment which I was in some measure enabled to observe from that broken hearing thereof that was afforded me here in the Court I say there are many and those very considerable and by the Law of England I ought not to have been urged to plead or make answer to such an illegal and defective Indictment 1. There is no sufficient Overt Act therein alledged of the Prisoner's imagining the King's Death or that he had any the least intention that way 2. The Levying of a War is alledged in Southwark and cannot therefore be tryed by a Jury of Middlesex Dyer fol. 234. and the 3d part of Cook 's Institutes fol. 34. 3. There is uncertainty and obscurity in the main thing alledged against me in the Indictment to wit That I together with a multitude of persons to the number of a thousand unknown to the Jury c. whereas no Criminal Act can be tryed that is not certain Certa res debet esse quae deducitur in Judicium 4. The Treason laid to my charge is alledged to have been committed with a multitude of other false Traitors which were pardoned by the Act of Indempnity such supposed crimes therefore of theirs cannot be remembred or alledged without a manifest breach of the Act of Indempnity and Oblivion The Indictment is or ought to be founded on some clause or branch of 25. Ed. 3. chap. 2. But no such Overt Act is alledged in the Indictment or proved by Witnesses as doth discover that I had any intention to kill depose or hold out the King from the possession and exercise of his Regal Power Whereas I am accused of compassing or imagining the Death of the King this must be understood of his natural or personal not politick capacity for in this latter sence the Law sayes the King cannot die First then to compass only the Deposition of the King is not within the words
meet the King of Terrors without the least affrightment But to shew where his strength lay he said he was a poor unworthy wretch and had nothing but the Grace and Goodness of God to depend upon He said moreover Death shrunk from him rather than he from it Upon the occasion of parting with his Relations he said There is some flesh remaining yet but I must cast it behind me and press forward to my Father Then one of the Sheriffs men came in and told him There was no Sled to come but he was to walk on foot He told his Friends the Sheriffs Chaplain came to him at twelve of the clock that night with an Order for his Execution telling him he was come to bring him that fatal Message of Death I think Friends that in this Message was no dismalness at all After the receipt of which I slept four hours so soundly that the Lord hath made it sufficient for me and now I am going to sleep my last after which I shall need sleep no more Then Mr. Sheriff coming into the Room was friendly saluted by him and after a little pause communicated a Prohibition that he said he had received which was That he must not speak any thing against his Majesty or the Government His Answer to this he himself relates on the Scaffold He further told Mr. Sheriff he was ready but the Sheriff said he was not nor could be this half hour yet Then Sir it rests on you not on me said Sir Henry for I have been ready this half hour Then the Shriff at his request promised him his servants should attend him on the Scaffold and be civilly dealt with neither of which were performed for notwithstanding this promise they were beaten and kept off the Scaffold till he said What have I never a servant here After this one of the Sheriffs men came and told him there must be a Sled to which Sir Henry replied Any way how they please for I long to be at home to be dissolved and to be with Christ which is best of all He went very chearfully and readily down the stairs from his Chamber and seated himself on the Sled Friends and Servants standing about him then he was forthwith drawn away towards the Scaffold As he went some in the Tower Prisoners as well as others spake to him praying the Lord to go with him And after he was out of the Tower from the tops of houses and out of windows the people used such means and gestures as might best discover at a distance their respects and love to him crying aloud The Lord go with you The great God of Heaven and Earth appear in you and for you whereof he took what notice he was capable in those circumstances in a chearful manner accepting their respect putting off his Hat and bowing to them Being asked several times how he did by some about him he answered Never better in all my life Another replied How should he do ill that suffers for so glorious a Cause To which a tall black man said Many suffered for a better Cause and may for a worse said Sir Henry wishing That when they come to seal their better Cause as he called it with their Blood as he was now going to seal his they might not find themselves deceived And as to this Cause said he it hath given Life in Death to all the Owners of it and Sufferers for it Being passed within the Rails on Tower-hill there were many loud acclamations of the people crying out The Lord Jesus go with your dear Soul c. One told him that was the most glorious Seat he ever sate on he answered It is so indeed and rejoyced exceedingly Being come to the Scaffold he chearfully ascends and being up after the crowd on the Scaffold was broken in two pieces to make way for him he shewed himself to the People on the front of the Scaffold with that Noble and Christian-like deportment that he rather seemed a looker-on than the person concerned in the Execution Insomuch that it was difficult to perswade many of the People that he was the Prisoner But when they knew that the Gentleman in the black Sute and Cloak with a Scarlet silk Wastcoat the victorious colour shewing it self at the breast was the Prisoner they generally admired that Noble and great Presence he appeared with How chearful he is said some he does not look like a dying-man said others with many like speeches as astonished with that strange appearance he shined forth in Then silence being commanded by the Sheriff lifting up his hands and eyes towards Heaven and then resting his hands on the Rails and taking a very serious composed and majestick view of the great multitude about him he spake as followeth His SPEECH on the SCAFFOLD Gentlemen fellow-Countrymen and Christians VVHen Mr. Sheriff came to me this morning and told me he had received a Command from the King that I should say nothing reflecting upon his Majesty or the Government I answered I should confine and order my Speech as near as I could so as to be least offensive saving my faithfulness to the Trust reposed in me which I must ever discharge with a good Conscience unto Death for I ever valued a man according to his faithfulness to the Trust reposed in him even on his Majesties behalf in the late Controversie And if you dare trust my discretion Mr. Sheriff I shall do nothing but what becomes a good Christian and an Englishman and so I hope I shall be civilly dealt with When Mr. Sheriffs Chaplain came to me last night about twelve of the clock to bring me as he called it the fatal Message of Death it pleased the Lord to bring that Scripture to my mind in the third of Zechary to intimate to me that he was now taking away my filthy garments causing mine iniquities to pass from me with intention to give me change of raiment and that my mortal should put on Immortality I suppose you may wonder when I shall tell you that I am not brought hither according to any known Law of the Land It is true I have been before a Court of Justice and am now going to appear before a greater Tribunal where I am to give an account of all my actions under their Sentence I stand here at this time When I was before them I could not have the liberty and priviledge of an Englishman the grounds reasons and causes of the Actings I was charged with duly considered I therefore desired the Judges that they would set their Seals to my Bill of Exceptions I pressed hard for it again and again as the Right of my self and every free-born English-man by the Law of the Land but was finally denied it Here Sir John Robinson Lieutenant of the Tower interrupted him saying Sir you must not go on thus and in a furious manner generally observed even to the dis-satisfaction of some of their own attendants said that he