such a Body is sounded in the common consent of that Body The Office of chief Ruler or Head over any State Common-wealth or Kingdom hath the Right of due Obedience from the People inseparably annexed to it It is an Office not onely of Divine Institution but for the Safety and Protection of the whole Body or Community and therefore justly and necessarily draws to it and engages their Subjection This Office of the Soveraign according to the Laws and Fundamental Constitutions of the Government of England is ministred by the King in a twofold Capacity as his Will and personal Command is in Conjunction and Agreement with his People in Parliament during the Session thereof or as it is in Conjunction and Agreement with the Law the Parliament not Sitting But his Will and Personal Command single in dis-junction and disagree from the Parliament or the Laws hath not the force of a Law saith Fortescue and gives the Reason of it Because this is a limitted Monarchy where the King's Power as to the exercise of it is onely a Power Politick The Obedience then which from the Subject is due to the King and which they are sworn to perform by the Oath of Allegiance is to him in the ministry of the Royal Office according to the reason and intent of the Fundamental Compact and Constitution and according to his own Oath which is to Govern by Law that is to Exercise his Rule or Royal commanding Power in Conjunction and Agreement with the Parliament when sitting and in Conjunction and Agreement with the Laws of the Land they not sitting To exercise his Power otherwise is and hath been alwayes judged a grievance to the People and a going against that which is the original Right and just Liberty of the Community who are not to be bound to such personal Commands at will and pleasure nor compelled to yield Obedience thereunto The contrary hereunto was the Principle at bottom of the Kings Cause which he endeavoured to uphold and maintain in order to decline and lay aside the Legal Restraints as aforesaid which the Government of England by the Fundamental Constitution is subjected unto as to the exercise and ministery of the Royal Office From the Observation and Experience which the Pople of England had and made many years together by their Representatives in Parliament of a desire in the King to shake off these Legal Restraints in the Exercise of the Regal Power and on their having tried the best wayes and means that occurred to their Understandings to prevent the same and to secure to themselves the enjoyment of their Just Rights and Liberty they at last pitch'd upon the desiring from the King the continuance of the sitting of the Parliament called November 3d 1640 in such sort as is expressed in that Act 17. Car. wherein it is provided That it shall not be Discontinued or Dissolved but by Act of Parliament This was judged by them the greatest Security imaginable for keeping the ministry of the Royal Office within its due Bounds and for quieting the People in the enjoyment of their Rights But experience hath shewed that this yet could not be done without a War the worst and last of Remedies For although their Continuance as the Representative Body of the Kingdom with the Right to exercise the Power and Priviledges inherent in and inseparable from that Supream Court and Chief Senate whereof the King is Head both making but one Person or Politick Body in Law yet they themselves as well as the King were bound by the Fundamental Constitution or Compact upon which the Government was at first built containing the Condition upon which the King accepted of the Royal Office and on which the People granted to him the Tribute of their Obedience and due Allegiance This Condition as the Lawes and Experience declare is that the King shall exercise his Office of Rule over them according to the Laws as hath been shewed and as he and his People shall from time to time agree in Common Council in Parliament for that end assembled In respect hereof the Laws so made are called the Concords or Agreements passed between the King and the Subject in the 3d part of Cooks Institutes These Agreements then are the Standard unto the Kings Rule and the Peoples Obedience signifying the justice of his Commands and the dueness of their Allegiance But the case so happening that this Conjunction and Agreement which ought to be found between the personal Will of the King and Representative Will of the Kingdom failing and these two Wills declaring themselves in Contrariety and Opposition both of them becoming standing Powers Co-ordinate and distinct parts of the Supremacy as the two Channels wherein the Supremacy is placed and appointed to run as to its exercise by the Fundamental Constitution hence sprang the War each asserting and endeavouring to defend and maintain their own part and right which ought not to be kept up in dis-junction and contrariety but in Unity and Agreement each with other These two Parties with their Adherents in this Case may be according to the Law Contrarients one towards another as the Law affords an Example in the Preamble to Cook 's 4th Part of his Institutes not properly Traytors being co-ordinate Powers parts of the Supremacy that are the Heads to each Party and by consequence have a right of making a War as their last Appeal if they cannot otherwise agree Being once entred thus into a state of War and actual Enmity they do as it were become two Nations and cease to be under the Obligations they were in before for during this state of War and Enmity the standing Laws in a sort cease and a new way of Rule each Party Forms to himself and his Adherents as may best consist for each of their Safeties and Preservations Upon this Dis-junction of the two Wills in the Harmony and Agreement whereof the Supremacy is placed these following Queries do naturally arise First To which or Whether of these by Law is the Allegiance required as due Is it to be yeilded to the Personal Will of the King single in disjunction from the Will of the Representative Body of the Kingdom or to the Will of the People in dis-junction from the Will of the King Or is it to the Personal Will of the King in conjunction with the Laws though in opposition and contrariety to the Will of the Kingdoms Representative in Parliament Assembled Or is it to the Will of the Kingdomes Representative in conjunction with the Laws though in opposition to the Personal Will of the King The Second Querie is In whose Judgement in this case are the People by Law to acquiesce as to the declaring with whom the Laws are Whether the Personal Judgement of the King single or the Vote of the Senate that is the Kingdoms Representative Body The Third Querie is With whom will the Laws be found to go in this Case so rare unusual and never happening
Oppressions of the People they were found guilty of The Statute under colour whereof they acted ran to this effect Be it enacted that the Justices of the Assizes and Justices of the Peace upon Information for the King before them to be made have full power and authority by their discretion to hear and determine all offences and contempts Having this ground they proceeded against the People upon meer Information in the execution of Penal Laws without any Indictment or Presentment by good and lawful men but only by their own Promoters or Informers contrary to the 29th of Magna Charta which requires That no free-man be proceeded against but by lawful Judgment of his Peers or by the Law of the Land Secondly This Act allowed them to hear and determine arbitrarily by their own discretion which is not according to the Law and Custom of England And Cook sayes 't is the worst and most aggravated oppression of all that is done under the colour of Law or disguise of Justice Such a Statute or Act of Parliament is not only against the light of Reason but against the express letter of unrepealed Statute-Law 42. Edw. 3. 1. It is assented and accorded That the great Charter and the Charter of Forest be holden and kept in all points and if any Statute be made to the contrary that shall be holden for none This also is consonant to the first chapter of the great Charter it self made 9. Hen. 3. We have granted to all the free-men of our Realm these Liberties under-written to have and to hold to them and their heirs of Us and our Heirs for ever But what if this great Charter it self had never been made had England been to seek for righteous Laws and just Liberties nothing lesse The same Liberties and Laws were ratified before that in the great Charter made the seventeenth year of King John and mentioned among others by Matthew Paris And to what yet amounted the matter of all these Grants but what the Kings themselves were bound before to observe by their Coronation Oaths as the antient fundamental Laws or Customs of this Land This we may find in Mr. Lambard's Translation of the Saxon Laws from the time of King Ina who began anno 712 to Hen. 1. who began 1100. Amongst the Saxons King Alfred is reputed the most famous and learned Compiler of our Laws which were still handed along from one King to another as the unalterable Customs of the Kingdom In the 17th chapter of Edward the Confessor's Laws The mention of the duty of a King which if not performed nec nomen Regis in eo constabit is remarkable And Mr. Lambard tells us that even William the Conqueror did ratifie and observe the same Laws that his kinsman Edward the Confessor did as obliged by his Coronation Oath So then neither the great Charter in King John's time nor that of 9. Hen. 3. were properly a new Body of Law but a Declaration of the antient fundamental Laws Rights and Liberties of this Nation in Brittish Saxon Danish and Norman times before This Cook in his Proem to the second part of his Institutes observes where he notes also that this Charter is not called great for quantity of words a sheet of Paper will contain it but for the great importance and weight of its matter Through the advice of Hubert de Burgo Chief Justice of England Edward the first in the eleventh year of his Reign did in a Council held at Oxford unjustly cancel this great Charter and that of Forest Hubert therefore was justly sentenc'd according to Law by his Peers in open Parliament Then 25 Ed. 1. The Statute called Confirmationes Charrarum was made in the first chapter whereof the Mag. Charta is peculiarly called the Common Law 25. Ed. 1. cap. 2. Any Judgment given contrary to the said Charter is to be undone and holden for naught And cap. 4. Any that by word deed or counsel go contrary to the said Charter are to be excommunicated by the Bishops and the Arch-Bishops of Canterbury and York are bound to compel the other Bishops to denounce sentence accordingly in case of their remisness or neglect The next famous sticklers to Hubert de Burgo for Arbitrary Domination were the two Spencers father and son by whose rash and evil counsel sayes Cook Edward the second was seduced to break the Great Charter and they were banished for their pains By these passages we may observe how the People would still be strugling in and by their Representatives for their Legal Rights and Just Liberties to obviate the Encroachers whereof they procured several new Ratifications of their old Laws which were indeed in themselves unrepealable even by Parliaments if they will act as men and not contradict the Law of their own Reason and of the common Reason of all mankind By 25 Ed. 1. cap. 1. Justices Sheriffs Majors and other Ministers that have the Laws of the Land to guide them are required to allow the said Charter to be pleaded in all its points and in all causes that shall come before them in Judgment This is a clause sayes Cook worthy to be written in letters of gold That the Laws to be the Judges guides and therefore not the Judges the guides of the Laws by their arbitrary glosses which never yet misguided any that certainly knew and truly followed them In consonancy herewith the Spaniard sayes Of all the three learned Professions The Lawyer is the only letter'd man his business and duty being to follow the plain literal construction of the Law as his guide in giving Judgment Pretence of mystery here carries in the bowels of it intents or at least a deep suspition of arbitrary domination The mind of the Law is not subject to be clouded disturbed or perverted by passion or interest 'T is far otherwise with Judges therefore 't is fitter and safer the Law should guide them than they the Law Cook on the last mentioned Statute affirms That this great Charter and the Charter of Forest are properly the Common Law of this Land or the Law that is common to all the People thereof 2 Ed. 3. cap. 8. Exact care is taken that no Commands by the Great or Little Seal shall come to disturb or delay Common Right Or if such Commands come the Justices are not thereby to leave to do Right in any point So 14 Ed. 3. 14. 11 Ric. 2. 10. The Judges Oath 18 Ed. 3. 7 runs thus If any force come to disturb the execution of the Common Law ye shall cause their bodies to be arrested and put into Prison Ye shall deny no man Right by the King's Letters nor counsel the King any thing that may turn to his dammage or disherison The late King in his Declaration at Newmarket 1641 acknowledged the Law to be the Rule of his Power And his Majesty that now is in his Speech to both Houses the 19th of May last said excellently The good old Rules of Law are
of Powder Then one Marsh was produced a Witness who proves That Sir Henry Vane proposed the new Model of Government Whitlock being in the Chair in these particulars 1. That the Supream Power delegated by the People to their Trustees ought to be in some Fundamentals not dispensed with 2. That it is destructive to the Peoples Liberties to which by God's blessing they are restored to admit any earthly King or single person to the Legislative or Executive Power over this Nation 3. That the Supream Power delegated is not on trusted to the Peoples Trustees to erect matters of Faith or Worship so as to exercise compulsion therein Tho. Pury proves That he was at the debating of the two last of these Propositions and believes they were proposed to the Chairman Whitlock by Sir Henry Vane but affirms confidently that Sir Hen. Vane gave Reasons to maintain them Tho. Wallis produced proves Sir Henry Vane and Col. Rich in the head of a Company in Winchester Park in Southwark and that the Capt. Leiutenant Linn said to the Souldiers that Sir Henry Vane had given them five pounds to drink that the said Linn sent home a key to his wife to send him four pounds out of his trunk to give the Souldiers John Cook deposeth That he was sent to the Horseshoe-stairs to meet Sir Henry Vane and Col. Rich and that Sir H. Vane delivered five pound to Capt. Linn to reward the Souldiers This was all the Evidence given by the King's Counsel To which Sir Henry Vane was required to make his Defence and to go through with his Case all at once and not to reply again upon the King's Counsel who resolved to have the last word to the Jury Sir HENRY VANE Cook in his Pleas of the Crown fol. 6. saith King is to be understood of a King regnant and in actual possession of the Crown and not of a King when he is onely Rex de jure and out of possession Now an interregnum is confessed by the Indictment All ensigns of Authority and badges of Government were visibly in another name and stile the King 's best friends suing and being sued in another name The Court told him He should first make his Case out in point of Suit and it would be then seasonable to stand upon matter of Law for said they it is a good Rule in facto jus Oritur and enjoyn'd him to call his Witnesses if he had any To which Sir Henry Vane desired Process of Court to summon them and a further time to answer the Charge But it was told him The Jury were to be kept without meat drink fire or candle till their Verdict was delivered in and therefore that could not be granted He then cited the 4th part of Cook 's Institutes concerning the Priviledge of Parliament and that many of these things being transacted there The Court here interrupted him and said If the things charged were done justifie them if not excuse them So he went to give answer to the Fact And as to the first Warrant Jan. 30. 1648 He said that his hand had been oftentimes counterseited and amongst other occasions for two great sums to the value of ten thousand pounds and that he had great reason to believe that this Warrant was forged and produced two Witnesses to prove it Then said Windham Justice It may be your hand may have been forged for receiving of Money but it is not to be conjectured that it should be forged to set Ships to Sea and directed to the Jury to consider of the circumstances Sir H. Vane Neither of the Witnesses ever saw me set my hand to either of these Warrants or Orders nor doth one Witness prove that he ever saw me sit in the Council of State He further said That he absented from the House from Decemb. 3. 1648 till Febr. 7. That he 〈◊〉 â—â—osen a Member of the Council of State without his consent and knowledge and being demanded to take an Oath of Approbation of what had been done to the late King he refused and caused it to be expunged That these Actings in Council if any were were by Authority of Parliament of a Parliament constituted in an extraordinary manner made indissolvable but by Act of Parliament He insisted much on the Preamble of that Act so as that Parliament being co-ordinate with the King for the Government was in the King and the two Houses what-ever he acted by Them or their Authority cannot be Treason within the Statute of 25 Ed. 3. He cited an Ordinance of Parliament in 1642 and said That he hoped these things had been laid asleep by the Act of Oblivion and if they should now rise in Judgment against him he feared they would shake that Security which the People promised themselves under that Act. But if he should be now called in question for those things which were transacted in that Parliament of which he was a Member he shal have the comfort and peace of those Actions to support him in his greatest sufferings He added That if he were excepted then must he be judged for the crime of the whole Nation and that crime must be ravelled into through him That the Case is such as never yet fell out to wit that the Government being entrusted to three Estates they should so fall out among themselves as the People cannot tell which to obey That where these great Changes fall out it is not possible for any man to proceed according to all formalities of Law That there was a Political Power by this Act of 17. Caroli co-ordinate with the King and where these Powers are not in conjunction but enmity to each other no Court inferiour to the Parliament by whose Authority these things were acted ought to be Judges of this Case which certainly never happened before He farther saith he was not the first mover in these actions and that he should be called in question for these matters by a King that was out of possession at the time when these things were acted would be inconvenient to say no more That when the three Estates were disjoyned he thought it the best policy to preserve the Government in its root to wit the Commons by whom it was preserved and at last restored to its former course That as to the Regiment that passed under his name he disown'd it That Reports of Messages are not the fault of the Reporter for his judgment does not always go along with them but he is bound to deliver his Message That he alwayes loved the Government as it is set forth in our ancient Law-Books and that that Parliament so much decried at last restored affairs to the â—â—sture in which they now are As to the Warrants signed by him he said they appear to be signed in the Name and by Order of the Council and his hand that subscribes is not so much active as passive to the Commands of the Council If the Council who commanded the signing were unwarrantable
for Government-sake it self it is requisit it should be so because none are Judges of the Power and Priviledges of Parliament but themselves For admit once that their Judgment may be called in question and disputed by private persons or by inferiour Courts whose Votes are included in theirs the Fundamentals of Government are plucked up by the roots Par in pares non habet Imperium multó minus in eos qui majus Imperium habent An Equal has no command over his Equal much less over those that have a greater command or authority His late Majesty in his Answer to the nineteen Propositions does very briefly and exactly state the nature and kind of Government that is exercised in this Kingdom saying The Laws in this Kingdom are made by a King a House of Peers and a House of Commons chosen by the People all having free Votes and particular Priviledges These three Estates making one incorporate body are they in whom the Soveraignty and Supream Power is placed as to the making and repealing of Laws And the Government according to these Laws is trusted to the King who in the Interval of Parliaments is sole in the exercise of Government which the Parliament sitting he is to exercise in conjunction with the two Houses And his said Majesty asserting three sorts of Government Absolute Monarchy Aristocracy and Democracy does most rightly distinguish the Monarchy of England from all those three and commends the Constitution of this Kingdom as it is a mixture of all three having the conveniencies of them all without the inconveniencies of any one as long as the ballance hangs even between the three Estates that they run joyntly on in their proper channels and that the overflowing of either on either side raise no deluge nor inundation By the passing of the foresaid Act for the continuance of the forementioned Parliament the Intervals of Parliament were no longer as before at the will and pleasure of the King but the Power to continue the said Parliament without Adjournment Prorogation or Dissolution resided in the two Houses with the King joyntly and in none of them severally so that in effect the Government of the Kingdom during the continuance of that Parliament was in conjunction of the three Estates and in their common consents and agreements among themselves given in Parliament the assembling and meeting whereof was appointed and fixed to a place certain by Law By reason hereof it is not the attendance of any of the Members in Parliament for discharge of the Trust reposed in them confirm'd and enlarged by the said Act that is faulty or censurable by the Law but those that unwarrantably depart and desert that their Trust and station are to be blamed 6. Hen. 8. 16. The King in conjunction with the Parliament is maxime Rex and is supported in the Throne and exercise of his Regal Power by the joynt concurrence of both Houses And because as his late Majesty well observed the happiness and good of the Constitution of this Government lies in keeping the ballance even between the three Estates containing themselves within the bounds of their proper channels therefore in attempts of either to overflow those bounds they being co-ordinate the Office of a Parliament is by the very fundamental constitution of the Government to keep this ballance well poised And to that end as was before mentioned his Majesties own words are in his said Answer to the nineteen Propositions That there was legally placed in both Houses a Power more than sufficient to prevent and restrain the Power of Tyranny If so then are they the legal Judges when there is danger of Tyranny and have legal power to require their Judgment and Resolves to be obeyed not only when Arms are actually raised against them but when they discern and accordingly declare a preparation towards it else they may find it too late to prevent the power of Tyranny There is no greater attempt of Tyranny than to arm against the Parliament and there is no visible way for the restraining such Tyranny but by raising Arms in their own and the Kingdoms defence Less than this is not sufficient and therefore far from more than sufficient for the punishment of Delinquents and restraint of Tyranny Unto the King in conjunction with his two Houses according as is provided by the Law in this capacity of his as maxime Rex was the duty of Allegiance to be yeelded by his Subjects during the indissolved state of that Parliament For they were the King 's great Council and supream Court exercising the known Power and Priviledges that time out of mind have appertained to them and been put forth by them as the Exigents of the Kingdom have required when differences have happened about the very title of the Crown in declaring the duty of the Subject by yeelding their Allegiance to Kings de facto when Kings de jure have been kept out of possession This our Chronicles and the Histories of former times do plentifully inform The causes that did happen to move his late Majesty to depart from his Parliament and continue for many years not only at a distance and in a disjunction from them but at last in a declared posture of Enmity and War against them are so well known and fully stated in print not to say written in characters of blood on both parts that I shall only mention it and refer to it This matter was not done in a corner The Appeals were solemn and the decision by the Sword was given by that God who being the Judge of the whole World does Right and cannot do otherwise By occasion of these unhappy differences thus happening most great and unusual Changes and Revolutions like an irresistible Torrent did break in upon us not only to the disjoynting that Parliamentary Assembly among themselves the head from the members the co-ordinates from each other and the houses within themselves but to the creating such formed divisions among the people and to the producing such a general state of Confusion and Disorder that hardly any were able to know their duty and with certainly to discern who were to command and who to obey All things seemed to be reduced and in a manner resolved into their first elements and principles Nevertheless as dark as such a state might be the Law of England leaves not the Subjects thereof as I humbly conceive without some glimpses of direction what to do in the cleaving to and pursuing of which I hope I shall not be accounted nor judged an offender or if I am I shall have the comfort and peace of my Actions to support me in and under my greatest sufferings The Resolutions of all the Judges in Calvin's Case entituled Post-nati in the 7th Book of Cook 's Reports and the learned Arguments thereupon afforded me instruction even in this matter It may be 't is truly thence affirmed that Allegiance is due only to the King and how due is also shewed The
King is acknowledged to have two capacities in him one a natural as he is descended of the Blood Royal of the Realm and the Body natural he hath in this capacity is of the creation of Almighty God and mortal The other is a politick capacity in respect of which he is a Body politick or mystical framed by the policy of man which is immortal and invisible To the King in both these capacities conjoyn'd Allegiance is due that is to say to the natural person of the King accompanied with his politick capacity or the politick appropriated to the natural The politick capacity of the King hath properly no body nor soul for it is framed by the policy of man In all Indictments of Treason when any one does intend the death and destruction of the King it must needs be understood of his natural body the other being immortal The Indictment therefore concludes contra Legiantiae suae debitum against the duty of his Allegiance so that Allegiance is due to the natural body Admitting then that thus by Law Allegiance is due to the King as before recited yet it is alwayes to be presumed that it is to the King in conjunction with the Parliament the Law and the Kingdom and not in disjunction from or opposition to them and that while a Parliament is in being and cannot be dissolved but by the Consent of the three Estates This is therefore that which makes the matter in question a new Case that never before happened in the Kingdom nor was possible to happen unless there had been a Parliament constituted as this was unsubjected to Adjournment Prorogation or Dissolution by the King's will Where such a power is granted and the co-ordinates thereupon disagree and fall out such effects and consequents as these that have happened will but too probably follow And if either the Law of Nature or England inform not in such case it will be impossible for the Subjects to know their duty when that Power and Command which ought to flow from three in conjunction comes to be exercised by all or either of them singly and apart or by two of them against one When new and never-heard-of Changes do fall out in the Kingdom it is not like that the known and written Laws of the Land should be the exact Rule but the Grounds and Rules of Justice contained and declared in the Law of Nature are and ought to be a Sanctuary in such cases even by the very Common Law of England For thence originally spring the unerring Rules that are set by the Divine and Eternal Law for Rule and Subjection in all States and Kingdoms In contemplation hereof as the Resolve of all the Judges it was agreed 1. That Allegiance is due to Soveraignty by the Law of Nature to wit that Law which God at the creation of Man infused into his heart for his preservation and direction the Law eternal Yet is it not this Law as it is in the heart of every individual man that is binding over many or legislative but as it is the Act of a Community or an Associated People by the right dictates and perswasions of the work of this Law in their hearts This appears in the Case of the Israelites Judg. 20 21 chapters cited in the 4th part of Cook 's Institutes where mention is made of a Parliament without a King that made War and that with their Brethren They met as one man to do it in vindication of that Justice unto which they were obliged even by the Law of Nature This is that which Chancellor Fortescue calls Political Power here in England by which as by the Ordinance of man in pursuance of the Ordinance of God the Regal Office constituted or the King 's Politick Capacity and becomes appropriated to his natural person Thus Politick Power is the immediate Efflux and Off-spring of the Law of Nature and may be called a part of it To this Hooker in his Ecclesiastical Polity agrees and Selden on that subject The Law of Nature thus considered is part of the Law of England as is evident by all the best received Law-Books Bracton Fleta Lambard upon the Saxon Laws and Fortescue in the praise of the Laws of England This is the Law that is before any judicial or municipal Law as the root and fountain whence these and all Government under God and his Law do flow This Politick Power as it is exercised in conjunction with and conformity to the Eternal Law partakes of its moral and immutable nature and cannot be changed by Act of Parliament Of this Law it is that Magna Charta and the Charter of Forest with other Statutes rehearsed in the Petition of Right are for the most part declaratory For they are not introductive of any new Law but confirmations of what was good in all Laws of England before This agrees with that Maxime Salus Populi suprema Lex that being made due and binding by this Law which in the Judgment of the Community declaring their mind by their own free chosen Delegates and Trustees in harmony with the Eternal Law appears profitable and necessary for the preservation and good of the whole Society This is the Law which is put forth by the common consent of the whole Realm in their Representative and according to the fundamental Constitutions of this Kingdom is that with which the Kings of this Land by the joynt co-operation of the three Estates do make and repeal Laws But through the disorders and divisions of the times these two Powers the Regal and Political which according to the Law of England make up but one and the same supream Authority fell assunder and found themselves in disjunction from and opposition to one another I do not say The question is now which of these is most rightly according to the principles of the Law of Nature and the Law of England to be adhered unto and obeyed but unto whether Power adherence is a crime in such an Exigent of State Which since it is such a new and extraordinary Case evidently above the Track of the ordinary Rules contained in the positive and municipal Laws of England there can be no colour to bring it within the Statute of 25. Ed. 3. cap. 2. forasmuch as all Statutes presuppose these two Powers Regal and Political in conjunction perfect unity and subserviency which this Case does not cannot admit So exceeding new and extraordinary a Case is it that it may be doubted whether and questioned how far any other Parliament but that Parliament it self that was privy to all its own Actings and Intentions can be an indifferent and competent Judge But however the point is of so abstruse and high consideration as no inferiour Court can or ought to judge of it as by Law-Books is most undeniable to wit Bracton and others This then being the true state of the Case and the spring of that Contest that ensued and received its decision by the late War
of that Statute several Kings have been deposed by Parliaments since the Conquest and as to my compassing or designing the natural death of the King's Person with what colour can I be accused of such intentions in the circumstances the King at that time was in beyond the Seas Secondly The assembling of men together without any hostility or injury offered to any person but for a man 's own security and defence in a time of confusion and distraction is not Levying War or Treason at the Common Law or by that Statute Yea in this Case and at the season wherein such an Act as this is alledged it might be supposed to be done for the King's Restoration as well as in opposition thereunto and the most favourable and advantagious construction ought to be made and put upon the Prisoner's actings or words where there is ambiguity so that they may be taken or interpreted divers wayes For the Law alwayes presumeth actions to be innocent till the contrary be manifestly proved However in a time of vacancy or an Interregnum when the Foundations of Government are out of course by the Law of Reason Nature and Common Prudence every man may stand upon his own guard endeavouring his own security and protection from injury and violence Thirdly To be adherent to the King's Enemies within his Realm c. cannot ought not to be understood of any adhaesion to a Parliament wherein the King by Law is supposed alwayes present as a part thereof Nor can the Long Parliament be called the King's Enemies without overthrowing the Act of Indempnity which the King hath declared to be the Foundation of the Nations present Peace and Security Lastly The Treasons alledged in the Indictment are said to have been committed when the King was out of possession So the Indictments runs to keep out the King c. Now my Lord Cook in the third part of his Institutes fol. 7. saith A King de jure and not de facto is not within this Statute Against such a one no Treason can be committed For if there be a King regnant in possession though he be Rex de facto and not de jure yet is he Seignior le Roy within the purview of this Statute and the other that hath Right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto And after in the same place he saith That by Law there is alwayes a King in whose Name the Laws are to be maintained and executed otherwayes Justice would fail The Act also of 11. Hen. 7. was made for security of the Subject on this behalf The word King also may and ought to be taken largely for any Sovereign Power in a King or Queen as Cook in the place fore-quoted shews and why not by the same reason in a Protector though a Usurper or any other persons one or more in whom Soveraignty is lodged or that have all the badges of Soveraignty as the calling of Parliaments enacting of Laws coining of Money receiving Forreign Ambassadors c. His Majesty that now is is granted by the very Indictment to have been then out of possession If so then was there either some other King or what was equivolent some Sovereign Power in actual possession and exercise or none If the former then was there a King de facto so no Treason could be committed against him that was King de jure only If the latter then the Government was dissolved no allegiance was due to any persons and so no offence could be properly Treason within the Statute But had the late Protector had the name and stile of a King no Treason could have been committed against the King de jure only Now God forbid that you should give away my Life upon such niceties because a usurping Protector was not clothed with the Title as well as Power of a King The Protector or any Usurper's taking or not taking the Title of a King in case he have the Power cannot alter the state of my supposed crime You ought not to be byassed by popular Reports concerning me 'T is easier to be innocent than so reported The one is in our own power not the other Fifthly Concerning the Evidence 1. No allegation was directly proved by two positive lawful Witnesses as in this case it ought to be 2. One of the Witnesses for the King confessed in open Court that to his knowledge my hand had been counterfeited to my prejudice and dammage in great Sums of Money yet Orders pretended to be signed by me wherein my hand may as well be counterfeited are taken as Evidence against me 3. The Issue of the whole Cause depended on the solution of some difficult Questions of so high a nature and great importance as could not safely be determined but in the high Court of Parliament As 1. Whether the Long Parliament called in Novemb. 1640 were dissolved by the late King's Death 2. Whether the successive remaining Powers that exercised the Royal or Supream Authority from 1648 to the Restoration of his now Majesty were not within the true sense and meaning of 25. Edw. 3. and 11. Hen. 7 As to other pertinent Queries thou mayest see them Reader in other parts of this Tryal That which remains as an Appendix to this Bill of Exceptions is to lay before thee the Grounds which plainly shew that there was a downright Conspiracy in Sir Vane's Tenants and others to prosecute him for Life and Estate under colour and pretence of Justice 1. Presently after I was committed to the Tower for High Treason and made a Close-Prisoner Mr. Oneale Sir William Darcy and Dr. Cradock obtained an Order from the King to seize and take into their possession all the Estates of such persons that were already or should be forfeited to his Majesty Hereupon the said Mr. Oneale and Sir Will. Darcy appointed some under them in the Bishoprick of Durham by name Thomas Bowes Esque now deceased and Capt. William Darcy to joyn with the said Dr. Cradock to put in execution the said Warrant as their Deputies who thereupon went to Raby Castle and demanded the Rent-Books of Thomas Mowbray my Steward offering him his place under them which he refused Contrary to this proceeding Sir Edward Cook expresly declares That before Indictment the Goods or other things of any Offender cannot be searched inventoried or in any sort seized nor after Indictment seized removed or taken away before Conviction or Attainder Institut 3d part chap. 133. concerning the Seizure of Goods c. for Offences c. before Conviction 2. At the Instance and Prosecution of my Tenants and others an Order was made by the House of Commons not of the Lords requiring the Tenants of such persons as were excepted out of the General Pardon to detain their Rents in
before and who is the Proper and Competent Judge Also whether the Laws be not perfectly silent as never supposing such a Case possible to happen by reason that the Power used by the one for Dissolving the other never before suffered the Opposition to rise so high The Fourth Querie is Whether he in this Case that keeps his Station and place of Trust wherein God and the Law did set him with care to demean himself according to the best of his Vnderstanding agreeably to the Law and Customes of Parliament and pursuant to their Votes and Directions so long as they sit and affirm themselves to be a Parliament and uses his best endeavours in the exercise of that publick Trust that no Detriment in the general come unto the Common-wealth by the failer of Justice and the necessary Protection due from Government without any designing or intending the Subversion of the Constitution but onely the securing more fully the Peoples Liberties and just Rights from all future Invasions and Oppressions be not so far from deserving to be judged Criminal in respect of any Law of God or Man that he ought rather to be affirmed One that hath done his Duty even the next best that was left to him or possible for him to do in such a dark stormy season and such difficult Circumstances As to the Right of the Cause it self it ariseth out of the matter of Fact that hath happened and by the Just and Wise Providence of God hath been suffered to state it self in the Contest between the Personal Will and declared Pleasure of the King on the one Hand and the publick Will or Vote of the People in Parliament on the other declaring it self either in Orders or Ordinances of both Houses or in the single Act of the House of Commons asserting it self a Parliament upon the Grounds of the Act 17 Car. providing against its dissolution This will appear with the more evidence and certainty by considering wherein either part had a wrong Cause or did or might do that which was not their Duty taking the measure of their Duty from what as well the King as the Peoples Representative are obliged unto by the Fundamental Constitution of the Government which binds them in each of their Capacities and distinct Exercises of their Trust to intend and pursue the true good and welfare of the whole Body or Community as their End This in effect is to detain the People in Obedience and Subjection to the Law of God and to guide them in the wayes of Righteousness unto God's well-pleasing and to avoid falling out or disagreeing about the Way or Means leading to that End Hence that party which in his or their actings was at the greatest distance from or opposition unto this end and wilfully and unnecessarily disagreed and divided from the other in the Ways and Means that were most likely to attain this End they were assuredly in the Fault and had a Wrong Cause to mannage under what ever Name of Face of Authority it was Headed and Upheld And such a Wrong Cause was capable of being espoused and mannaged under the face of Authority as might be pretended unto by either part For as the King insisting upon his Prerogative and the binding force which his personal Will and Pleasure ought to have though in distinction from and opposition to his Parliament might depart from the end of Government answerable to his Trust and yet urge his Right to be obeyed So the publick Will of the People exercised in and by the Vote of their Representative in Parliament asserting it self to be of a binding force also and to have the place of a Law though in distinction from the King and Laws also as saith the King whatever otherwise by them is pretended might also depart from the true end of Government answerable to their Trust and yet insist upon their Right to be Obeyed and submitted unto and having Power in their hands might unduely go about also to compel Obedience It is not lawful either for King or Parliament to urge Authority and compel Obedience as of Right in any such Cases where according to the Law of Nature the People are at Liberty and ought to have a Freedom from yeelding Obedience as they are and ought to have when ever any would compel them to disobey God or to do things that evidently in the eye of Reason and common sense are to their hurt and destruction Such things Nature forbids the doing of having for that very purpose armed Man with the defensive Weapon of refusing to consent and obey as that Priviledge whereby Man is distinguished from a Beast which when he is deprived of he is made a Beast and brought into a state of perfect Servitude and Bondage Such a state of Servitude and Bondage may by God's just Judgement be inflicted upon man for sin and the abuse of his Liberty when by God restored The Liberty which man was at first created in is that Priviledge and Right which is allowed to him by the Law of Nature of not being compelled under any pretence whatsoever to sin against God or to go against the true good and welfare of his own Being that is to say of his inward or outward man but in both these cases to have and to use his just Liberty to Dissent and refuse to Obey For this every man hath that in himself which by God is made a proper and competent Judge For as to all sin against God and the righteousness of his Law the Light of Conscience that is to say the Work of the Law in and upon the Mind or inward Sense and in conjunction with it doth lighten every one that cometh into the World accusing or excusing if it be but hearkened unto and kept awake And for all such actings as tend to the ruine and destruction of man in his outward and bodily concerns and as he is the Object of Magistratical Power and Jurisdiction every man hath a Judgement of common Sense or a way of discerning and being sensible thereof common to bruit Beasts that take in their Knowledge by the door of their Senses but is much heightned and enobled in man by the personal union it is taken into with his intellectual part and intuitive way of discerning things through the inward reflectings of the mind compared with the Law of God This inferiour Judgement in man when it is conjoyned with and confirmed by the Judgement of his Superiour part is that which we call Rational or the dictates of right Reason that man hath a natural right to adhere unto as the ordinary certain Rule which is given him by God to walk by and against which he ought not to be compelled or be forced to depart from it by the meer Will and Power of another without better Evidence that is a higher a greater or more certain way of discerning This therefore in Scripture is called Man's Judgement or Man's Day in distinction from the Lord's
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
our best security The Common Law then or Liberties of England comprized in the Magna Charta and the Charter of Forest are rendred as secure as authentick words can set them from all Judgments or Precedents to the contrary in any Courts all corrupting advice or evil counsel of any Judges all Letters or Countermands from the Kings Person under the Great or Privy Seals yea and from any Acts of Parliament it self that are contrary thereunto As to the Judges no question they well know the story of the 44 corrupt Judges executed by King Alfred as also of Tresillian Belknap and many others since By 11 Hen. 7. cap. 1. They that serve the King in his Wars according to their duty of Allegiance for defence of the King and the Land are indempnified If against the Land and so not according to their Allegiance the last clause of that chapter seems to exclude them from the benefit of this Act. 6 Hen. 8. 16. Knights and Burgesse of Parliament are required not to depart from the Parliament till it be fully finished ended or prorogued 28 Ed. 3. cap. 3. No man is to be imprisoned disherited or put to death without being heard what he can say for himself 4 Ed. 3. 14. and 36. Ed. 3. 10. A Parliament is to be holden every year or oftner if need be 1 Ric. 3. cap. 2. The subjects of this Realm are not to be charged with any new imposition called a Benevolence 37 Ed. 3. c. 18. All those that make suggestions against any man to the King are to be sent with their suggestions before the Chancellor Treasurer and his grand Council and there to find surety that they will pursue their suggestions and are to incur the same pain the party by them accused should have had if attained in case the suggestion be found evil or false 21 Jacobi cap. 3. All Monopolies and Dispensations with Penal Laws are made void as contrary to the great Charters These quotations of several Statutes as Ratifications and Restorers of the Laws of the Land are prefixed to the following Discourses and Pleas of this Sufferer as certain steady unmovable Land-marks to which he oft relates The rouling Seas have other Laws peculiar to themselves as Cook observes on that expression Law of the Land in his Comment on the 29th Chapter of Magna Charta Offences done upon the High Sea the Admiral takes conusance of and proceeds by the Marine Law But have those steady Land-marks though exactly observed and never so pertinently quoted and urged by this Sufferer failed him as to the securing of his Life 'T is because we have had Land-floods of late Tumults of the People that are compared to the raging Seas Psal 65. 7. The first Paper of this deceased Sufferer towards the defence of his Cause and Life preparatory to the Tryal as the foundation of all that follows before he could know how the Indictment was laid and which also a glance back to any crime of Treason since the beginning of the late War that the Attorney General reckoned him chargeable with shews to be very requist take as followeth Memorandums touching my Defence THe Offence objected against me is levying War within the Statute 25 Ed. 3. and by consequence a most high and great failer in the duty which the Subject according to the Laws of England stands obliged to perform in relation to the Imperial Crown and Soveraign Power of England The crime if it prove any must needs be very great considering the circumstances with which it hath been accompaned For it relates to and takes in a series of publick action of above twenty years continuance It took its rise and had its root in the Being Authority Judgment Resolutions Votes and Orders of a Parliament and that a Parliament not onely authorized and commissionated in the ordinary and customary way by his Majesties Writ of Summons and the Peoples Election and Deputation subject to Adjournment Discontinuance and Dissolution at the King's will but which by express Act of Parliamenâ— was constituted in its continuance and exercise of its Power free from that subjection and made therein wholly to depend upon their own will to be declared in an Act of Parliament to be passed for that purpose when they should see cause To speak plainly and clearly in this matter That which is endeavoured to be made a Crime and an Offence of such an high nature in my person is no other than the necessary and unavoidable Actings of the Representative Body of the Kingdom for the preservation of the good People thereof in their allegiance and duty to God and his Law as also from the imminent dangers and destruction threatned them from God's and their own Enemies This made both Houses in their Remonstrance May 26. 1642. protest If the Malignant spirits about the King should ever force or necessitate them to defend their Religion the Kingdom the Priviledges of Parliament and the Rights and Liberties of the Subjects with their Swords The Blood and Destruction that should ensue therupon must be wholly cast upon their account God and their own consciences telling them that they were clear and would not doubt but that God and the whole world would clear them therein In his Majesties Answer to the Declaration of the two Houses May 19. 1642. he acknowledgeth his going into the House of Commons to demand the five Members was an errour And that was it which gave the Parliament the first cause to put themselves in a posture of defence by their own Power and Authority in commanding the Trained-Bands of the City of London to guard and secure them from Violence in the discharge of their Trust and Duty as the two Houses of Parliament appointed by Act to continue as above-mentioned The next cause was his Majesties raising Forces at York under pretence of a Guard expressed in the humble Petition of the Lords and Commons May 23. 1642. wherein they beseech his Majesty to disband all such Forces and desist from any further designs of that nature otherwise they should hold themselves bound in duty towards God and the Trust reposed in them by the People and the Fundamental Laws and Constitutions of this Kingdom to employ their care and utmost power to secure the Parliament and preserve the peace and quiet of the Kingdom May 20. 1642 The two Houses of Parliament gave their Judgment in these Votes First That it appears that the King seduced by wicked Counsel intends to make War against the Parliament who in all their Consultations and Actions have proposed no other end to themselves but the Care of his Kingdoms and the performance of all Duty and Loyalty to his Person Secondly That whensoever the King maketh War upon the Parliament it is a breach of Trust reposed in him by his People contrary to his Oath and tending to the dissolution of this Government Thirdly That whosoever shall serve or assist him in such Wars are Traytors by the fundamental
of the King's Authority and of his Kingdom against the personal Commands of the King opposed thereunto though accompanied with his presence is Treason or levying War against the King Such Interpretation is very far from the sense of that Statute and so much the Statute it self speaks beside the authority of Book-cases For if the clause of levying War had been meant only against the King's Person what need had there been thereof after the other branch in the same Statute of compassing the King's death which would necessarily have implied this And because the former doth imply this it seems not at all to be intended at least not chiefly in the latter branch but the levying War against his Laws and Authority and such a levying War though not against his Person is a levying War against the King whereas the levying of Force against his personal Commands though accompanied with his Presence and not against his Laws and Authority but in the maintenance thereof is no levying of War against the King but for him especially in a time of so many successive plots and designs of Force against the Parliament and Kingdom of probable Invasion from abroad and of so great distance and alienation of his Majesties affections from his Parliament and People and of the particular danger of the Place and Magazine of Hull of which the two Houses sitting are the most proper Judges In proclaiming Sir John Hotham Traitor they say The breach of the Priviledge of Parliament was very clear and the subversion of the Subjects common Right For though the Priviledges of Parliament extend not to these cases mentioned in the Declaration of Treason Felony and breach of the Peace so as to exempt the Members of Parliament from Punishment or from all manner of Process and Tryal yet it doth priviledge them in the way and method of their Tryal and Punishment and that the Parliament should first have the Cause brought before them that they may judge of the Fact and of the grounds of their Accusation and how far forth the manner of their Tryal may or may not concern the Priviledge of Parliament Otherwise under this pretext the Priviledge of Parliament in this matter may be so essentially broken as thereby the very Being of Parliaments may be destroyed Neither doth the sitting of a Parliament suspend all or any Law in maintaining that Law which upholds the Priviledge of Parliament which upholds the Parliament which upholds the Kingdom They further assert That in some sense they acknowledge the King to be the only person against whom Treason can be committed that is as he is King and that Treason which is against the Kingdom is more against the King than that which is against his Person because he is King For Treason is not Treason as it is against him as a man but as a man that is a King and as he hath and stands in that relation to the Kingdom entrusted with the Kingdom and discharging that Trust They also a vow That there can be no competent Judge of this or any the like case but a Parliament and do say that if the wicked Counsel about the King could master this Parliament by force they would hold up the same power to deprive us of all Parliaments which are the ground and pillar of the Subjects Liberty and that which only maketh England a free Monarchy The Orders of the two Houses carry in them Law for their limits and the Safety of the Land for their end This makes them not doubt but all his Majesties good Subjects will yeeld obedience to his Majesties Authority signified therein by both Houses of Parliament for whose encouragement and that they may know their Duty in matters of that nature and upon how sure a ground they go that follow the Judgement of Parliament for their guide They alledge the true meaning and ground of that Statute 11. Hen. 7. cap. 1. printed at large in his Majesties Message May 4 This Statute provides that none that shall attend upon the King and do him true service shall be attainted or forfeit any thing What was the scope of this Statute Answ To provide that men should not suffer as Traitors for serving the King in his Wars according to the duty of their Allegiance But if this had been all it had been a very needless and ridiculous Statute Was it then intended as they seem to make it that print it with his Majesties Message that those should be free from all crime and penalty that should follow the King and serve him in War in any case whatsoever whether it were for or against the Kingdom or the Laws thereof That cannot be for that could not stand with the duty of their Allegiance which in the beginning of this Statute is expressed to be to serve the King for the time being in his Wars for the defence of him and the Land If therefore it be against the Land as it must be if it be against the Parliament the Representative Body of the Kingdom it is a declining from the duty of Allegiance which this Statute supposes may be done though men should follow the Kings Person in the War Otherwise there had been no need of such a Proviso in the end of the Statute that none should take benefit thereby that should decline from their Allegiance That therefore which is the Principal Verb in this is the serving of the King for the time being which cannot be meant of a Perkin Warbeck or any that should call himself King but such a one as whatever his Title might prove either in himself or in his Ancestors should be received and acknowledged for such by the Kingdome the Consent whereof cannot be discern'd but by Parliament the Act whereof is the Act of the whole Kingdom by the personal Suffrage of the Peers and the Delegate Consent of the Commons of England Henry 7th therefore a wise Prince to clear this matter of contest happening between Kings de facto and Kings de jure procured this Statute to be made That none shall be accounted a Traitor for serving in his Wars the King for the time being that is him that is for the present allowed and received by the Parliament in behalf of the Kingdom And as it is truly suggested in the Preamble of the Statute It is not agreeable to reason or conscience that it should be otherwise seeing men should be put upon an impossibility of knowing their duty if the Judgment of the highest Court should not be a Rule to guide them And if the Judgment thereof is to be followed when the question is who is King much more when the question is what is the best service of the King and Kingdom Those therefore that shall guide themselves by the Judgment of Parliament ought what ever happen to be secure and free from all account and penalties upon the ground and equity of this Statute To make the Parliament countenancers of Treason they say is enough
and the King is slain in the battel This Treason is questionable by the Successor as Stonies Case is in Dyer Thus ended the questions of Law proposed The Sollicitor spake after to the Jury concerning the Fact which after they withdrew to consider and being withdrawn about half an hour returned with their Verdict which being delivered by the Foreman in the name of his fellows with their consent found the Prisoner guilty of High Treason from Januar. 30. 1648. They not only found him guilty according to the Indictment which was laid for what the Prisoner did 1659 but for a long series of High Treason as they reckon from Jan. 30. 1648. By which it may appear they were a well-prepared Jury for their work The Judges oft if not alwayes pretend that the Jury is to pass Verdict only as to matter of Fact according to the Evidence given by the Witnesses thereof But a general Verdict evidently involves both that he is guilty of such fact and that the fact is Treason as they in this Verdict openly undertake to determine taking in the full sence of the Indictment and much more Unless a Jury distinguish themselves out of this usually imposed snare by giving a special Verdict concerning the Fact only they undeniably have a share with their Tutors and Instructors in the shedding of innocent blood in case matter of Law be wrongfully stated For a Jury to resolve a Case of Law that so eminent a Subjects life was concern'd in and that in less than half an hour which never yet came before any Bench of Judicature in England may seem a very strange and bold adventure But Reader How far this falls short of a full Account of all that was spoken by the Prisoner though much interrupted by the King's Bench and Counsel in those ten hours which on this day of his Tryal he stood at the Bar pleading and answering for his Life and the Cause he had with many thousands been engaged in I leave to thee to imagine till a fuller and compleater Account thereof can be obtained than is yet come to hand This was remarkable That never being indulg'd the liberty of any repose to his body all that while which indeed he asked not nor receiving any creature-refreshings though sent him for his support yea and though after all his most rational Plea in his Defence the Jury gave their Verdict against his Life he came chearfully and pleasantly from the Bar as thought worthy to suffer for the Name of Christ and was so raised and full of rejoycing that evening at the place of his confinement in the Tower that he was a wonder to any that were about him This spiritual rejoycing in Christ Jesus and his heavenly raisedness of spirit increased more and more to the very moment of his death insomuch that meer strangers to his person yea very foreigners wondred at his triumphant dissolution The true Copy of the Prisoner's own Papers containing the substance of what he pleaded on the said day of his Tryal June 6. Memorandums as to my main Defence in relation to matter of Fact and as a Narrative thereof THat without any seeking of mine I was chosen by Writ under the Great Seal to serve as Burgess for the Town of Kingston upon Hull in the Parliament that sate down on the third of Novemb. 1640. and having in pursuance thereof taken my seat in the said Parliament I was obliged by Law to give my attendance upon the said Trust as well as upon grounds of Duty and Conscience The said Parliament was not onely called and assembled after the usual manner and had the Power and Priviledges incident to that high Court but was by express Statute and Consent of the three Estates so constituted as to its Continuance Adjournment Prorogation and Dissolution that in none of these particulars they were subject to alteration but by their own common Assent declared by Act of Parliament to be passed by themselves for that purpose with the Royal Assent In the Preamble to the Act for continuance of the said Parliament these words are contained Whereas great sums of Money must of necessity be speedily advanced and provided for the relief of his Majesties Army and People in the Northern parts of this Realm and for preventing the imminent danger this Kingdom is in and for supply of his Majesties present and urgent occasions which cannot be so timely effected as is requisit without Credit for raising the said Moneys which Credit cannot be obtained until such obstacles be first removed as are occasioned by fears jealousies and apprehensions of divers his Majesties loyal Subjects That this present Parliament may be Adjourned Prorogued or Dissolved before Justice shall be duely executed upon Delinquents Publick Grievances redressed a firm Peace between the two Nations of England and Scotland concluded and before sufficient Provision be made for the repayment of the said Moneys so to be raised c. By all which the very work that was between the three Estates agreed to be done for the Good and Safety of the Kingdom was in sundry particulars declared and expressed and not only so but as is acknowledged by the late King himself in his Answer to the nineteen Propositions The Power which thereby was legally placed in both Houses was more than sufficient to prevent and restrain Tyranny So that by what hath been shewed the Law it self is with me and for me enjoyning my continued attendance on the Trust which by this means was committed to me and authorized me in particular to effect the things contained in the said Preamble and to act in all matters belonging to the high Court of Parliament for the Good and Safety of the Kingdom in time of imminent danger I had been liable to great punishment by the Law for dis-attendance and deserting my station therein till lawfully or by force dismissed there-from and this whatever occasions others might have by a voluntary or forc'd departure from attendance upon that Trust The actions therefore done by me in this capacity and according to the Law Priviledges Customs and Power of Parliament and that such a one as was thus extraordinarily constituted neither are nor can be brought within the Statute of 25. Ed. 3. cap. 2. nor are to be questioned tried much less judged and sentenc'd in any inferior Court Nay so far is it from this that by a Declaration and Resolution of Parliament Aug. 13. 1642 it is adjudged to be committing Treason in the highest degree to bring both or either Houses of Parliament under that or such like Imputations Nor till of late have I ever heard but that those who took the Judgment of Parliament for their rule and guide however tortuous or erroneous it might afterwards be accounted in succeeding times and they that acted by and under the countenance of their declared Judgments Orders or Ordinances ever acknowledged binding during the sitting of the Parliament were safe and indempnified from all punishment And
The next Consideration is how far I have had my share and part therein that by the Laws is not warrantable or by what appears in way of proof to the Jury For the first I shall crave leave to give you this account of my self who have best known my own mind and intentions throughout and would not now to save my life renounce the principles of that Righteous Cause which my conscience tells me was my duty to be faithful unto I do therefore humbly affirm That in the afore-mentioned great Changes and Revolutions from first to last I was never a first mover but alwayes a follower chusing rather to adhere to things than persons and where Authority was dark or dubious to do things justifiable by the Light and Law of Nature as that Law is acknowledged part of the Law of the Land things that are in se bona and such as according to the grounds and principles of the Common Law as well as the Statutes of this Land would warrant and indempnifie me in doing them For I have observed by Precedents of former times when there have arisen disputes about Titles to the Crown between Kings de facto and Kings de jure the People of this Realm wanted not directions for their safety and how to behave themselves within the duty and limits of Allegiance to the King and Kingdom in such difficult and dangerous seasons My Lord Cook is very clear in this point in his Chap. of Treason fol. 7. And if it were otherwise it were the hardest case that could be for the people of England For then they would be certainly exposed to punishment from those that are in possession of the supream power as Traitors if they do any thing against them or do not obey them and they would be punishable as Traitors by him that hath right and is King de jure in case they do obey the Kings de facto and so all the people of England are necessarily involved in Treasons either against the Powers de facto or de jure and may by the same reason be questioned for it as well as the Prisoner if the Act of Indempnity and the King's Pardon did not free them from it The security then and safety of all the People of England is by this means made to depend upon a Pardon which might have been granted or denied and not upon the sure foundations of Common Law an opinion sure which duly weighed and considered is very strange to say no more For I would gladly know that person in England of estate and fortune and of age that hath not counselled aided or abetted either by his person or estate and submitted to the Laws and Government of the Powers that then were and if so then by your Judgments upon me you condemn in effigies and by necessary consequence the whole Kingdom And if that be the Law and be now known to be so it is worth consideration whether if it had been generally known and understood before it might not have hindred his Majesties Restoration Besides although until this Judgement be passed upon me the people have apprehended themselves as free from question and out of danger by reason of the Act of Indempnity and General Pardon yet when it shall appear to them that such their safety is not grounded on the Common Law nor upon the Law of Nature but that against both these in their actions they are found faulty and tainted with a moral guilt and that as principals also since in Treason there are no Accessories what terrifying Reflexions must this needs stir up in the mind of every man that will be apt to believe his Turn will come next at least once in two years as hath befallen me in my pâ—rson who however I have been misjudged and misunderstood can truly affirm that in the whole series of my Actions that which I have had in my eye hath been to preserve the ancient well-constituted Government of England on its own basis and primitive righteous foundations most learnedly stated by Fortescue in his Book made in praise of the English Laws And I did account it the most likely means for the effecting of this to preserve it at least in its root whatever changes and alterations it might be exposed unto in its branches through the blustrous and stormy times that have passed over us This is no new doctrine in a Kingdom acquainted with Political Power as Fortescue shews ours is describing it to be in effect the Common Assent of the Realm the Will of the People or whole Body of the Kingdom represented in Parliament Nay though this Representation as hath fallen out be restrained for a season to the Commons House in their single actings into which as we have seen when by the inordinate fire of the times two of the three Estates have for a season been melted down they did but retire into their Root and were not hereby in their Right destroyed but rather preserved though as to their exercise laid for a while asleep till the season came of their Revival and Restoration And whatever were the intents and designs of others who are to give an account of their own actions It is sufficient for me that at a time critical and decisive though to my own hazard and ill usage I did declare my Refusal of the Oath of Abjuration which was intended to be taken by all the Members of Parliament in reference to Kingly Government and the Line of his now Majesty in particular This I not only positively refused to take but was an occasion of the second thoughts which the Parliament reassumed thereof till in a manner they came wholly at last to decline it a proof undeniable of the remoteness of any intentions or designs of mine as to the endeavouring any alteration or change in the Government and was that which gave such jealousie to many in the House that they were willing to take the first occasion to shew their dislike of me and to discharge me from sitting among them But to return to what I have before affirmed as to my being no leading or first Actor in any Change it is very apparent by my deportment at the time when that great Violation of Priviledges happened to the Parliament so as by force of Arms several Members thereof were debarred coming into the House and keeping their seats there This made me forbear to come to the Parliament for the space of ten weeks to wit from the third of Decemb. 1648 till towards the middle of February following or to meddle in any publick transactions And during that time the matter most obvious to exception in way of alteration of the Government did happen I can therefore truly say that as I had neither consent nor vote at first in the Resolutions of the Houses concerning the Non-Addresses to his late Majesty so neither had I in the least any consent in or approbation to his Death But on the contrary when required by
the Parliament to take an Oath to give my approbation ex post facto to what was done I utterly refused and would not accept of sitting in the Council of State upon those terms but occasioned a new Oath to be drawn wherein that was omitted Hereupon many of the Council of State sate that would not take the other In like manner The Resolutions and Votes for changing the Government into a Commonwealth or Free-State were passed some weeks before my return to Parliament Yet afterwards so far as I judged the same consonant to the principles and grounds declared in the Laws of England for upholding that Political Power which hath given the rise and introduction in this Nation to Monarchy it self by the account of antient Writers I conceived it my duty as the state of things did then appear to me notwithstanding the said Alteration made to keep my station in Parliament and to perform my Allegiance therein to King and Kingdom under the Powers then regnant upon my principles before declared yeelding obedience to their Authority and Commands And having received Trust in reference to the safety and preservation of the Kingdom in those times of imminent danger both within and without I did conscientiously hold my self obliged to be true and faithful therein This I did upon a publick account not daring to quit my station in Parliament by vertue of my first Writ Nor was it for any private or gainful ends to profit my self or enrich my Relations This may appear as well by the great Debt I have contracted as by the destitute condition my many Children are in as to any provision made for them And I do publickly challenge all persons whatsoever that can give information of any Bribes or covert wayes used by me during the whole time of my publick acting Therefore I hope it will be evident to the Consciences of the Jury that what I have done hath been upon principles of Integrity Honour Justice Reason and Conscience and not as is suggested in the Indictment by instigation of the Devil or want of the fear of God A second great Change that happened upon the Constitution of the Parliament and in them of the very Kingdom it self and the Laws thereof to the plucking up the Liberties of it by the very roots and the introducing of an Arbitrary Regal Power under the name of Protector by force and the Law of the Sword was the Usurpation of Cromwel which I opposed from the beginning to the end to that degree of suffering and with that constancy that well near had cost me not only the loss of my Estate but of my very Life if he might have had his will which a higher than he hindred Yet I did remain a Prisoner under great hardship four months in an Island by his Orders Hereby That which I have asserted is most undeniably evident as to the true grounds and ends of my actions all along that were against Usurpation on the one hand or such extraordinary Actings on the other as I doubted the Laws might not warrant or indempnifie unless I were inforced thereunto by an over-ruling and inevitable necessity The third considerable Change was the total disappointing and removing of the said Usurpation and the returning again of the Members of Parliament to the exercise of their primitive and original Trust for the good and safety of the Kingdom so far as the state of the times would then permit them being so much as they were under the power of an Army that for so long a time had influenced the Government Towards the recovery therefore of things again into their own channel and upon the legal Root of the Peoples Liberties to wit their Common Consent in Parliament given by their own Deputies and Trustees I held it my duty to be again acting in publick Affairs in the capacity of a Member of the said Parliament then re-entred upon the actual Exercise of their former Power or at least strugling for it In this season I had the opportunity of declaring my true intentions as to the Government upon occasion of refusing the Oath of Abjuration before mentioned And whereas I am charged with keeping out his Majesty that now is from exercising his Regal Power or Royal Authority in this his Kingdom through the ill-will born me by that part of the Parliament then sitting I was discharg'd from being a Member thereof about Jan. 9. 1659 and by many of them was charged or at least strongly suspected to be a Royalist Yea I was not only discharged from my attendance in Parliament but confined as a prisoner at mine own house some time before there was any visible power in the Nation that thought it seasonable to own the King's Interest And I hope my sitting still will not be imputed as a failer of duty in the condition of a prisoner and those circumstances I then was in This I can say that from the time I saw his Majesties Declarations from Breda declaring his Intentions and Resolutions as to his Return to take upon him the actual Exercise of his Regal Office in England and to indempnifie all those that had been Actors in the late Differences and Wars as in the said Declaration doth appear I resolved not to avoid any publick question if called thereto as relying on mine own Innocency and his Majesties declared Favour as beforesaid And for the future I determined to demean my self with that inoffensiveness and agreeableness to my duty as to give no just matter of new provocation to his Majesty in his Government All this on my part hath been punctually observed whatever my sufferings have been Nor am I willing in the least to harbour any discouraging thoughts in my mind as to his Majesties Generosity and Favour towards me who have been faithfull to the Trust I was engaged in without any malicious intentions against his Majesty his Crown or Dignity as before hath been shewed And I am desirous for the future to walk peaceably and blamelesly Whatever therefore my personal sufferings have been since his Majesties Restoration I rather impute them to the false reports and calumnies of mine enemies and misjudgers of my actions than reckon them as any thing that hath proceeded from his Majesties proper inclination whose favour and clemency I have had just reason with all humility to acknowledge First with regard to his Majesties Speech made the 27th of July 1660 in the House of Peers wherein his Majesty expresly declared it to be no intention of his that a person under my circumstances should be excepted out of the Act of Indempnity either for Life or Estate And secondly however it was the Parliaments pleasure my self unheard though then in the Tower and ready to have been brought before them to except me out of the common Indempnity and subject me to question for my actions yet they themselves of their own accord admitting the possibility that in such questioning of me I might be attainted made
Parliament he desired he might have Counsel assigned him to argue them before their Lordships Some of these points he instanced in to wit 1. Whether a Parliament were accountable to any inferiour Court 2. Whether the King being out of possession and the Power Regent in others Here they stopt him not suffering him to proceed nor admitting that the King was ever out of possession To which Sir Henry replied The words of his Indictment ran thus that he endeavoured to keep out his Majesty and how could he keep him out of the Realm if he were not out But when he saw they would over-rule him in all and were bent upon his Condemnation he put up his Papers appealing to the Righteous Judgment of God who he told them must judge them as well as him often expressing his satisfaction to die upon this Testimony which Keeling one of the King's Counsel insultingly answered So you may Sir in good time by the grace of God The same person had often before shewed a very snappish property towards the Prisoner and Sir Henry sometimes answered him according to his folly For when he would have had the Book out of the Prisoner's hand wherein was the Statute of Westminster 2d. 31. Sir Henry told him he had a very officious Memory and when he was of Counsel for him he would find him Books Whereby was verified what was said to be spoken by him at first in answer to one of his Brethren on the Arraignment day Though we know not what to say to him we know what to do with him After Sentence given Chief Justice Forster endeavoured to take off the King from any Obligation by that Grant to the Petition of both Houses saying That God though full of mercy yet intended his mercy only to the penitent Reasons for an Arrest of Judgment writ by the Prisoner but refused to be heard by the Court. I. I Have been denied so much as to hear the Indictment read in Latine as it is the Original Record of the Court yea so much as a Copy of it in English hath been denied me during the whole time of my Tryal by the fight whereof I might be able to assign the defects of Law that may be in it Counsel also hath been denied not only before I pleaded but after and all points by me offered in Law to the Judges of the Court have been over-ruled without admitting me Counsel to argue the same and better inform the Judgment of the Court I have demanded that I might put in a Bill of Exceptions upon the Statute of Westminst 2d. cap. 31. This likewise is denied me over-ruled and judged as out of that Statute Neither will Counsel be allowed me in this to shew cause why it ought to be admitted as of Right And as no Counsel was allowed so neither were the Judges Counsel to me as they said themselves they would and ought to be but rather suffered me to wrong and prejudice my self some of them saying Let him go on the worst will be his own at last And they neither checked nor restrained the King's Counsel in their high and irritating expressions to the Jury to find me guilty One of whom were seen to speak privately with the Foreman of the Jury immediately before the Jurors went from the Bar after he had spoken openly That the Prisoner was to be made a publick Sacrifice in reference to the Actions done against his Majesty that now is All this is very far from that Indifferency in Tryal and from that Equality which the Law requires and they are bound by their Oath to afford me besides the undue proceedings in the business of the Petty Jury A List of forty eight persons was presented to me who being to me unknown and no time allowed me to gain any knowledge of them though I was permitted to challenge and refuse three Juries without shewing cause yet could not that refusal be upon such rational grounds as the Law supposes which doubtless intends substantial relief to the Prisoner in allowing him the liberty of such refusal whereas through my ignorance of the persons I might refuse the best and chuse the worst as to my safety And then whereas the Law further allows me the refusal of any other beyond the thirty five on just and exceptionable cause shewen what just exception was I capable to alledge in a sudden hurry against persons to me altogether unknown unless it would be taken for a just one that they were unknown to me All these things being so contrary to the Right which the Judges stand obliged to do to every one as they are for that purpose entrusted by God and the King is just cause for an Arrest of Judgment and a good Reason why they should yet at length allow me a Copy of the Indictment and assign Counsel to argue for the Prisoner against the defects in Law that may be found therein Without this Law is denied me which is my Birthright and Inheritance the best Birthright the Subject hath sayes Cook on Mag. Charta for thereby sayes he his Goods Lands Wife Children his Body Life Honour and Estimation are protected from injury The Life Birthright or Inheritance we have from our parents may soon be gone if this Fence thereof be broken down How great a wrong then it is for the Court to withhold it from me is manifest Are they not therefore in effect chargeable with my Blood by such unequal Proceedings as I have had in my Tryal II. My second Reason for an Arrest of Judgment is drawn from the Issue that is joyned in my Case which seems to depend chiefly upon matter of Law and that in such tender and high points as are only determinable in the high Court of Parliament For it is become the question Whether I am guilty or not guilty according as these Propositions following are truly or erroneously resolved 1. Whether the Parliament that began Novemb. 3. 1640 were dissolved by the King's Death and whether this Court may judge things done in Parliament 2. Whether the Powers regnant and de facto that successively were in being from Jan. 30. 1648 to Decemb. 20 1659 were such Powers de facto as are the King or Seigneur le Roy within the purview of the Stat. 25. Ed. 3. having the exercise of Regal Power in all the particulars of it though not the name 3. Whether during that time fore-mentioned his Majesty that now is were properly King de facto or whether he were not out of possession and without all exercise of his Regal Authority within the Realm 4. Whether the Case now in question be a Treason literally within the words of the Statute 25. Ed. 3. or at most any other than an interpretative and new Treason not declared before the very time of my Tryal and that only by the Judgment of the Court or opinion of my Judges eleven years after some of the things charged on me are alledged to have been committed As
to the first of these The Act for Continuance of the Long Parliament is express That all and every thing or things whatsoever done or to be done for the Adjournment Proroguing or Dissolving of that Parliament contrary to that Act shall be utterly void and of none effect I then thus argue The Judges do upon occasion of this Tryal resolve That the King's Death dissolv'd that Parliament No Act of Parliament hath yet declared it to be so and the Judges ought to have some Law for their guide as Cook well sayes To be sure if in process of time the Parliament shall expresly declare That not the King's Death but the Act for the Dissolution of that Parliament did dissolve it In such case these Judges Resolution by vertue of such Act is absolutely void But innocent Blood in the mean time may be shed and an Estate wrongfully taken away And in case what the Judges assert herein were Law 't is Law not known or declared till many years after the Fact committed At this rate who is secure of Estate or Life As to the second and third Queries or Propositions It does appear out of the third part of Cook 's Institutes fol. 7. and the Statute 11. Hen. 7. cap. 1. That Actings for the King in Fact are not to be questioned by the King in Right If it be said That there was no King in this case it may be replied That they who had the Power and Exercise of the Royal Jurisdiction as to Peace and War Coynage of Money power of Life and Death c. which are the highest Ensigns of Regal Authority must needs be the Powers regnant though not under the name of King and are within the Statute 25. Edw. 3. cap. 2. as a Queen also is adjudged and any sovereign Prince though under the title only of Lord as was the case of Ireland before it was a Kingdom And if so why not in more such persons as well as one that de facto exercise the Royal Power and Sovereign Authority under what name or title soever If upon this Nicety Judgment be given against me because the Powers regnant wanted the name and formality of a King I shall doubtless have very hard measure For the reason and equity is the same if the Powers regnant had the thing though not the Title And where there is the same Reason there is the same Law as is a known Rule Now there is the same Reason the Subject should be equally indempnified that acteth under any Sovereign Authority that hath not the name of a King as if it had If there had been many Kings as a Heptarchy hath been in England heretofore those would have been understood to be within the Statute and the reason and equity of the Statute is the same in all cases For the Law is made for the benefit and security of the Subject whom the Law requires not to examine the right of Soveraignty Nor is the danger less under one Government than another The Statute is for securing the Subject from all dormant Titles that they may safely pay their Allegiance when they receive Protection and that they may not be in danger of being destroyed by two Powers at the same time For that Power which is supream and de facto will be obeyed and make it Treason to do otherwise be it right or wrong And if the Subject be at the same time in danger of committing Treason against the Power de jure then is he in a miserable condition and state of unavoidable necessity which is provided against by the Laws of the Land Otherwise if he be loyal to the King de jure he shall be hanged by the King de facto and if he be faithful to the King de facto he shall die by the King de jure when he recovers possession Against this it was that the Statute of 11. Hen. 7. was provided in the difference betwixt the two houses of York and Lancaster My Case is either the same with that and then I desire the benefit of that Statute or else it is new and then I desire as is provided 25. Ed. 3. that it be referred to the Parliament So that it is either within the Equity of the Statute 11. Hen. 7. or else it is a new Case and not to be judged by this Court If the Judges in the Resolves by them delivered upon any of the particulars before-alledged have not declared that Law that ought to guide them but their particular Judgments or Opinions as undertaking to guide the Law and that in points of so grand concern as touch the Subjects Life in case their Judgments after should prove erroneous the Verdict given upon such Errors must needs be illegal and void Judgment therefore ought to be suspended till such time as the truth and certainty of the Law may be fully argued and cleared and that in the proper Court for the hearing and judging of this Case If this be not done but I be forthwith proceeded against notwithstanding any thing however rationally or legally alledged to the contrary by such undue precipitation and giving Sentence I am contrary to Magna Charta or Law of the Land run upon and destroyed without due form and course of Law And I am like to be deprived of Estate and Life upon no Law or certain Rule which was declared before the Fact no nor before the Tryal Upon these Considerations I desire an Arrest of Judgment and that Counsel may be assigned me and competent time allowed to make good my Averrements As an Argument to press this I desire leave of the Court That the Petition of the two Houses and the King's Assent to it may be read in open Court attested by one that is present who examined and compared it with the Book of Record in the Lords House by which it evidently appears that as well the King as both Houses of Parliament were agreed that admitting I were attainted yet Execution as to my Life should be remitted And if so there is no cause to precipitate the passing Sentence especially when also such weighty points in the Law are yet to be argued and cleared unless the Judges will evidently charge themselves with my innocent Blood III. My third Reason for an Arrest of Judgment is the manifest newness of this Case being such as never happened before in the Kingdom which withal is of so vast a consequence to people of all sorts and conditions within this Realm as nothing more And being so as I doubt not with your Lordships patience I shall make it appear It is the known Law witnessed by Bracton and antient approved Law-Books That in such Cases the Judges in the inferiour Courts ought not to proceed but bring it before the high Court of Parliament To prove therefore the newness of this Case besides what I have already alledged in my Defence before the Verdict give me leave to adde that which yet further shews the newness and
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
their own hands By pretence of this Order though that Parliament that made it were dissolved The Tenants refused to pay their respective Rents as they grew due contrary to all Law and Equity and joyned together in open defiance and conspiracy against their Landlord 3. The said Tenants when legally prosecuted in his Majesties Courts at Westminster for the recovery of the said Rents out of their hands did petition the late House of Commons to put a stop to such legal Prosecution and Suits which Motion of theirs put the House into a great heat and violence against me insomuch that they had no most passed a Vote to sequester all my Estate though unheard or unconvicted 4. William Watson of Cock-field and other of the said Tenants have continued in London to carry on this Conspiracy against me by whose means with others the King hath been importuned to send for men from the Isle of Silly in order to this Tryal 5. By common fame which at least affords a strong presumption my Goods and Estate have been long begg'd by several persons and granted whereas the begging of the Goods and Estate of any Delinquent accused or indicted of Treason before he be Convicted and Attainted is utterly unlawful because till then nothing is forfeited to the King and so not his to dispose of as Sir Edward Cook shews in the fore-mentioned Chapter about the Seizure of Goods c. 6. I am credibly informed that about December last a certain Captain came from the Duke of Albemarle to Capt. Linn with threatning language that if he would not confess things against Sir Henry Vane he should be fetch'd up before the Council and made to do it Linn answered he knew nothing against Sir Henry Vane nor had any Orders from him but from the Parliament and Council The same Captain came again about a fortnight after from the Duke of Albemarle with a parcel of fine words that if he the said Linn would testifie that Sir Henry Vane was in the head of his Regiment and that he received Orders from him the Duke of Albemarle would gratifie him with any civility he should desire Linn replied he knew no Regiment Sir Henry Vane had but that it was the Parliaments and Council of States Regiment The same Captain came again to him from the Duke of Albemarle and told him The Duke desired him to testifie Sir Vane's being in the head of his Regiment and that he received Orders from him to fight Sir George Booth Linn replied he knew no such things The Captain told him as from the Duke he should have any Place or Office in the Court Be not afraid to speak said he I warrant you we shall hang Sir Henry Vane for he is a Rogue 7. I am credibly informed that one of the Grand Jury declared that after the Bill of Indictment against me was brought in some from the King's Counsel came to desire them they would please to come into the inward Court of Wards Upon which one of the Jury said they were there to judge of matters brought before them and ought not to go in thither but if the Counsel had any thing to say they ought to come to them This was seconded by some others said They were the King's Counsel and it was but matter of civility to grant them their Request whereupon they went into the inward Court of Wards where the King's Counsel were to wit Attorney-General Palmer Sollicitor-General Fynch Serjeant Glyn and Serjeant Keeling After a while they caused all to withdraw but the Jury Then the Clerk read the Indictment in the usual form for Levying War from 1659. After it was read one of the Counsel told them It was a Bill of High Treason against his Majesty and they were to consider of it according to their Evidence Then they proceeded to examine their Witnesses Jefford said Sir Henry Vane offered him a Commission to go against Sir George Booth which said Serjeant Keeling was to go against the King Wright being examined whether he saw Sir Henry Vane in the Council said Yes The Attorney-General replied that if he was amongst them they might find the Bill upon that Upon this the Jury withdrew and were by themselves Then Sir John Croply the Foreman said We must pass this Bill at which all the Jury were silent At last one stood up and said This Bill contains matter of Fact and matter of Law Some of this Jury to my knowledge were never of any Jury before as well as I therefore ignorant of the Law in so difficult and unusual a point as this is and consequently could not give in their Verdict as to Law but only Fact Several others of the Jury seconded him in this and protested against giving in their Verdict as to matter of Law notwithstanding all which the Bill was carried up to the King 's Bench. 8. On the day of my Arraignment an eminent person was heard to say I had forfeited my head by what I said that day before ever I came to my Defence what that should be I know not except my saying in open Court Soveraign Power of Parliament which the Attorney-General writ down after he had promised at my request no exception should be taken at words And whole Volumns of Lawyers Books pass up and down the Nation with that Title Soveraign Power of Parliaments 9. Six moderate men that were like to consider what they did before they would throw away my Life were summoned to be of my Petty Jury which the King's Counsel hearing writ a Letter to one of the Sheriffs to unsummon them and a new List was made the night immediately before the day of Verdict on purpose that the Prisoner might not have any knowledge of them till presented to his view and choice in Westminster-hall Yet one of the fourty eight of this List who said he would have starv'd himself before he would have found Sir Hen. Vane guilty of Treason was never called though he walked in the Hall all the while And in that Hurry of those that compassed him about he being alone stripp'd of all assistance Sir William Roberts Foreman and Sir Christopher Abdy were sworn by the Court before I was aware so my challenging them might seem a personal disobliging and exasperation of them against me after they were sworn and fixed The Sollicitor also had a long whisper with the Foreman of the Jury in the Court before they went to Verdict telling him The Prisoner must be a Sacrifice for the Nation c. Suddenly after which I am here called to receive my Sentence 10. After the day of my Tryal the Judges went to Hampton-Court 11. None were more forward to absolve the King from his Grant about my Life than they that had appeared most forward in promoting the Bill by way of Petition to the King for it This Grant being upon Record may seem to have the same validity that other Acts of Parliament have which are still but
Soveraign or General Vicegerent of his Supremacy over all in Heaven and in Earth He therefore is the true Universal King and Root of all Soveraign and just Governing Power whether in Heaven or on Earth His Soveraignty is unquestionable and unaccountable because of the Perfection of his Person carrying in it an aptitude and sufficiency to Govern without possibility of Error or Defect of any kind Soveraign and Governing Power doth necessarily relate to Subjects that are to be the Ruled and Subjects capable of such Government Therefore when God himself purposes within himself to be Supream Legislator and Governour he doth withal purpose the Being and Creation of both Worlds as the Subject matter of his Kingdom He propounds to Govern his Subjects by and with their own consent and good liking or without and against it in the way of his revenging Justice Governing by Laws clearly stating and ascertaining the Duty or the Offence as also the Rewards and Penalties Herein Just Government consists or the Justice of Government for he that Rules over others must be Just and indeed should be seen to be so in all his Commands so seen as to render the Consciences of the Ruled and those whose duty it is to Obey inexcusable before God and before Men if they Dissent or Resist Inexcusable they are before God because the matter Commanded is the matter of God's Law therefore just to be obeyed They are also Inexcusable before Men that which is required of them being generally acknowledged and affirmed by those in whom the common consent of the Subjects is intrusted to that end to be Just and Reasonable and therefore to be Obeyed For the end of all Government being for the Good and Welfare and not for the Destruction of the Ruled God who is the Institutor of Government as he is pleased to Ordain the Office of Governors intrusting them with Power to command the Just and Reasonable Things which his own Law Commands that carry their own evidence to common Reason and Sense at least that do not evidently contradict it so he grants a Liberty to the Subjects or those that by him are put under the Rule to refuse all such Commands as are contrary to his Law or to the judgement of common Reason and Sense whose trial he allows by way of assent or dissent before the Commands of the Ruler shall be Binding or put in Execution and this in a Co-ordinacy of Power with Just Government and as the due Ballance thereof The Original Impressions of Just Laws are in Mans Nature and very Constitution of Being Man hath the Law in his Mind or the Superior and Intellectual part of him convincing and bringing that into obedience and subjection to the Law of God in Christ himself He hath also that which is a Law in his Members that are on the Earth or his earthly and sensual part whose Power is Co-ordinate with the other but such that if it be not gained into a Harmony and Conjunction with its Head the Spirit or Mind of man hath ability to let and hinder his Mind or Ruling part from performing and putting in execution that which is good just fit and to be acknowledged as the righteous dictates of the Mind which ought to be the Ruling Power or Law to the Man So in the outward Government over Man the secondary or co-ordinate Power concurring with that which is the chief ruling Power is essential to Just Government and is acknowledged to be so by the Fundamental Constitution of the Government of England as well as in the Legal Being and Constitution of Parliaments whether that which hath been usual and ordinary according to the Common Law or that which of late hath been Extraordinary by express Statute for the continuance of the Parliament 17. Car. until dissolved by Act of Parliament For together with the Legal Being which is given to Regal Power and the Prerogative of the Crown there is the Legal Power and Being reserved also unto that Body which is the Peoples or Kingdoms Representative who are the Hands wherein that which is called Power Politick is seated and are intrusted with giving or with holding the common Consent of the whole Nation according to the best of their Understandings in all matters coming before them and are to keep this Liberty Inviolate and Entire against all Invasions or Encroachments upon it whatsoever This second Power in the very Writ of Summons for calling a Parliament is declared to be of that Nature that what the first doth without obtaining the Consent and Approbation of the second in Parliament is not binding but ineffectual And when the Representative Body of the Kingdom in and with whom this Power is intrusted as the Due and Legal Ballance and Boundary to the Regal Power set and fixed by the Fundamental Constitution is made a standing Court and of that Continuance as not to be dissolvable but by its own consent during such its continuance it hath right to preserve it self from all violent and undue Dissolution and to maintain and defend its own Just Priviledges a chief of which is to binde or loose the People in all matters good or hurtful to them according to their best Judgement and discretion In the exercise of this their Trust they are Indemnified by Law and no hurt ought to come unto them that Governing Power which is originally in God and slowes at first from him as the sole and proper Fountain thereof is brought into exercise amongst men upon a differing and distinct account First As it is a Trust and Right derived conditionally from God to his Officers and Ministers which therefore may be lost who being called by him and in the course of his Providence to the exercise of it are to hold it of him the Universal King and to own themselves in the exercise thereof as his Vicegerents to cut off by the Sword of Justice evil-doers and to be a Protection and encouragement to them that do well But because it is part of God's Call of any person to this high Trust to bring him into the possession and free Exercise thereof by the common consent of the Body of the People where such Soveraign Power is set up unless they have forfeited this Liberty Therefore Secondly God doth allow and confer by the very Law of Nature upon the Community or Body of the People that are related to and concerned in the right of Government placed over them the Liberty by their common Vote or Suffrage duely given to be Assenters or Dissenters thereunto and to Affirm and make Stable or Disallow and render Ineffectual what shall apparently be found by them to be for the good or hurt of that Society whose welfare next under the justice of God's Commands and his Glory is the Supream Law and very end of all Subordinate governing Power Soveraign Power then comes from God as its proper Root but the restraint or enlargement of it in its Execution over such or
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