thing to govern absolutely Gentlemen The Imperial Crown is a Word that is significative you shall find in all Statutes primo Eliz. and the first of King James nay even in the Act of Judicial proceedings of this Parliament it is called an Imperial Crown They that take the Oaths of Allegiance and Supremacy they swear that they will to their power assist and defend all Jurisdictions Priviledges Preheminences and Authorities granted or belonging to the King His Heirs and Successors or annexed to the Imperial Crown of this Realm What is an Imperial Crown It is that which as to the Coercive part is subject to no man under God The King of Poland has a Crown But what is it At his Coronation it is conditioned with the people That if he shall not Govern them according to such Rules they shall be freed from their Homage and Allegiance But the Crown of England is and always was an Imperial Crown and so sworn Gentlemen As I told you even now the Imperial Crown is a Word significative that Crown which as to the Coercive part is not subject-to any Humane Tribunal or Judicature whatsoever And truly that this is such an Imperial Crown though I have cited Authorities ancient enough you may find them much more ancient I remember in the Story of William Rufus you shall find it in Matthew Paris and Eadmerus some Question was about Investiture of Bishops and the like the King writes His Letter That c. God forbid I should intend any absolute Government by this It is one thing to have an Absolute Monarchy another thing to have that Government Absolutely without Laws as to any coercive power over the Person of the King for as to Things and Actions they will fall under another consideration as I will tell you by and by Gentlemen Since this is so consider the Oath of Supremacy which most men have taken or should take All men that enter into the Parliament-House they are expresly enjoyned by Statute to take the Oath of Supremacy What says that Oath We swear that The King is the only Supreme Governour within this Realm and Dominions He is Supreme and the onely Supreme and truly if he be Supreme there is neither Major nor Superior I urge this the more lest any Person by any Misconstruction or inference which they might make from something that hath been Acted by the Higher Powers they might draw some dangerous Inferences or Consequences to colour or shadow over those Murtherous and Traiterous Acts which afterwards they committed They had no Authority But as I told you though I do set forth this and declare this to you to let you know that the King was immediately subject to God and so was not punishable by any Perfon yet let me tell you there is that excellent Temperament in our Laws that for all this the King cannot rule but by His Laws It preserves the King and his Person and the peoples Rights There are three things touching which the Law is conversant Personae Res Actiones Persons Things and Actions For the Person of the King He is the Supreme Head He is not punishable by any coercive Power the Laws provide for that The King can do no wrong it is a Rule of Law it is in our Law-books very frequent 22d of Edward the Fourth Lord Coke and many others If he can do no Wrong He cannot be punished for any wrong The King He hath the infirmities and weakness of a man but he cannot do any injury at least not considerable in Person He must do it by Ministers Agents Instruments Now the Law though it provide for the King yet if any of his Ministers do wrong though by his command they are punishable The King cannot arrest a man as he cannot be arrested Himself but if He arrest me by another Man I have remedy against this man though not against the King and so He cannot take away my Estate This as to the Person of the King He is not to be touched Touch not mine Anointed I come to Things If the King claim a Right the King must sue according to His Laws the King is subject to the Laws in that case His Possessions shall be tried by Juries If He will try a man for His Fathers Death you see he will try them by the Laws The Law is the Rule and Square of His actions and by which He Himself-is judged Then for Actions that is such Actions whereby Rights and Titles are prosecuted or recovered the King cannot judge in Person betwixt man and man He does it by his Judges and upon Oath and so in all cases whatsoever If the King will have his Right it must be brought before His Judges Though this is an Absolute Monarchy yet this is so far from infringing the Peoples Rights that the People as to their Properties Liberties and Lives have as great a priviledge as the King It is not the sharing of Government that is for the Libertie and Benefit of the People but it is how they may have their Lives and Liberties and Estates safely secured under Government And you know when the Fatness of the Olive was laid aside and we were Governed by Brambles these Brambles they did not only tear the Skin but tore the Flesh to the very Bone Gentlemen I have done in this Particular to let you see that the Supreme Power being in the King the King is immediately under God owing his Power to none but God It is true blessed be God we have as great Liberties as any People have in Christendom in the World but let us own them where they are due We have them by the Concessions of Our Princes Our Princes have granted them and the King now He in them hath granted them likewise Gentlmen I have been a little too long in this and yet I cannot say it is too long because it may clear misunderstanding so many Poisonous Opinions having gone abroad To come a little nearer If we consider suppose there were the Highest Authority but when we shall consider this horrid Murther truly I cannot almost speak of it but Vox faucibus haeret When we shall consider that a few Members of the House of Commons those that had taken the Oath of Supremacy and those that had taken the Oath of Allegiance that was to defend the King and His Heirs against all Conspiracies and Attempts whatsoever against His and their Persons Their Crowns and Dignities not onely against the Pope's Sentence as some would pretend but as otherwise against all Attempts and Conspiracies not onely against His Person Crown and Royal Dignity nor Pope's Sentence nor onely in order to the Profession of Religion but absolutely or otherwise that is whatsoever Attempts by any power Authority or Pretence whatsoever I say when a few Members of the House of Commons not an eighth part of them having taken these Oaths shall assume upon themselves an Authority an Authority what to do shall assume to
Terrours of that Presence of God that was with his Servants in those days However it seemeth good to him to suffer this Turn to come on us and are Witnesses that the things were not done in a Corner I have desired as in the sight of him that searcheth all hearts whilest this hath been done to wait and receive from him Convictions upon my own Conscience though I have sought it with Tears many a time and Prayers over and over to that God to whom you and all Nations are less than a Drop of water of the Bucket and to this moment I have received rather Assurance of it and that the things that have been done as astonishing on one hand I do believe e're it be long it will be made known from Heaven There was more from God than men are aware of I do profess that I would not offer of my self the least Injury to the poorest Man or Woman that goes upon the Earth That I have humbly to offer is this to your Lordships You know what a Contest hath been in these Nations for many years Divers of those that sit upon the Bench were formerly as Active Court Pray Mr. Harrison do not thus Reflect on the Court This is not to the Business Mr. Harrison I followed not my own Judgment I did what I did as out of Conscience to the Lord. For when I found those that were as the Apple of mine Eye to turn aside I did loath them and suffered Imprisonment many years Rather then to turn as many did that did put their Hands to this Plough I chose rather to be separated from Wife and Family than to have Compliance with them though it was said Sit at my Right Hand and such kind of Expressions Thus I have given a little poor Testimony that I have not been doing things in a Corner or from my self May be I might be a little mistaken but I did it all according to the best of my understanding desiring to make the Revealed Will of God in his Holy Scriptures as a guide to me I humbly conceive That what was done was done in the name of the Parliament of England that what was done was done by their Power and Authority and I do humbly conceive it is my Duty to offer unto you in the beginning that this Court or any Court below the High Court of Parliament hath no Jurisdiction of their Actions Here are many Learned in the Law and to shorten the Work I desire I may have the help of Councel Learned in the Laws that may in this matter give me a little assistance to offer those Grounds that the Law of the Land doth offer I say what was done was done by the Authority of the Parliament which was then the Supreme Authority and that those that have Acted under them are not to be questioned by any Power less than them And for that I conceive there is much out of the Laws to be shewed to you and many Presidents also in the Case Much is to be offered to you in that according to the Laws of the Nations that was a due Parliament Those Commissions were issued forth and what was done was done by their Power And whereas it hath been said we did Assume and Usurp an Authority I say this was done rather in the Fear of the Lord. Court Away with him Know where you are Sir You are in the Assembly of Christians Will you make God the Author of your Treasons and Murthers Take heed where you are Christians must not hear this We will allow you to say for your own Defence what you can And we have with a great deal of Patience suffered you to sally out wherein you have not gone about so much for Extenuation of your Crimes as to Justifie them to fall upon others and to Blaspheme God and commit a new Treason For your having of Councel This is the reason for allowing of Councel when a man would Plead any thing because he would Plead it in Formality Councel is allowed But you must first say in what the Matter shall be and then you shall have the Court's Answer Lord Finch Though my Lords here have been pleased to give you a great Latitude this must not be suffered that you should run into these damnable Excursions to make God the Author of this damnable Treason Committed Mr. Harrison I have two things to offer to you to say for my Defence in Matter of Law One is That this that hath been done was done by a Parliament of England by the Commons of England assembled in Parliament and that being so whatever was done by their Commands or their Authority is not questionable by your Lordships as being as I humbly conceive a Power Inferiour to that of an High Court of Parliament That 's one A second is this That what therefore any did in obedience to that Power and Authority they are not to be questioned for it otherwise we are in a most miserable Condition bound to obey them that are in Authority and yet to be punished if obeyed We are not to Judg what is lawful or what is unlawful My Lords Upon these two Points I do desire that those that are Learned in the Laws may speak too on my behalf It concerns all my Countreymen There are Cases alike to this you know in King Richard the Second's Time wherein some Question had been of what had been done by a Parliament and what followed upon it I need not urge in it I hope it will seem good to you that Councel may be assigned for it concerns all my Countreymen Councel You are mistaken if you appeal to your Countreymen They will cry you Out and shame you Mr. Harrison May be so my Lords some will but I am sure others will not Mr. Sollicitor Gen. These two Points my Lords are but one and they are a new Treason at the Bar for which he deserves to dy if there were no other Indictment It is the Malice of his heart to the Dignity and Crown of England I say this is not matter for which Councel can be assigned Councel cannot put into Form that which is not Matter Pleadable it self It is so far from being true that this was the Act of the Supreme Parliament of the People of England that there was nothing received with more Heart-bleeding than this Bloody Business But that the World may not be abused by the Insinuations of a man who acts as if he had a Spirit and in truth is possessed I will say That the Lords and Commons are not a Parliament That the King and Lords cannot do any thing without the Commons Nor the King and Commons without the Lords Nor the Lords and Commons without the King especially against the King If they do they must answer it with their Head for the King is not accountable to any Coercive Power And for the Prisoner to Justifie his Act as if it were the Act of the Commons of England
he is very much to be reproved Shall he pretend that one House nay the eighth part of a House for so it was can Condemn a King when both Houses cannot condemn one man in spight of the King I desire my Lords it may pass with a due Reproach and a Sentence upon it Lord Chief Baron It is true your Questions are but one Point You pretend the Parliament's Authority and when you come to speak of it you say the Commons of England They were but one House of Parliament The Parliament what is that It is the King the Lords the Commons I would fain know of you where ever you read by the light you say you have in your Conscience that the Commons of England were a Parliament of England that the Commons in Parliament used a Legislative power alone Do you call that a Parliament that sate when the House was Purged as they call it and was so much under the Awe of the Army who were then but forty or forty five at most Then you say It was done by Authority of them You must know where there is such an Authority which indeed is no Authority he that confirms such an Authority he Commits a double offence therefore consider what your Plea is If your Plea were doubtfull we should and ought and would our selves be of Councel for you That which you speak concerning Conviction of your own Conscience remember that it is said in Scripture that they shall think they did God good service when they slay you as it is in St. John He hath a great deal of Charity that thinks that what you did was out of a Conscientious Principle It was against the Light of noon-day and common practice You make your self a Sollicitor in the Business Let us blacken him as much as we can I have not touched at all upon the Evidence I will not urge it now I say you justifie it upon Convictions of Conscience and pretend it upon Authority A thing never known or seen under the Sun that the Commons nay a few Commons alone should take upon them and call themselves the Parliament of England We have been cheated enough by Names and Words there is no colour for what you say I do think and hope my Brethren will speak to this Case that none of us do own that Convention whatsoever it be to be the Parliament of England There was another aggravation at this Time that this Pretended Authority usurped that Power the Lords were then sitting You had not taken this usurped Power to dissolve these Lords No you did this Act in dispight of the Lords you had sent up an Ordinance to the Lords and they rejected it and thereupon these Members took it upon themselves Amongst those there were some Negatives and those Members were under the Awe and Power of your Forces at that time What you Plead the Court are of Opinion tends to the subversion of the Laws for you to usurp Power over the People without their Consents to call this the People We never knew the like before But the Parliament of England was the King Lords and Commons For you to speak of this Power and Justifie this Power is an Aggravation adding one Sin and Treason to another We shall tell you that neither both Houses of Parliament if they had been there not any single Person Community not the People either Collectively or Representatively had any colour to have any Coercive Power over their King And this Plea which you have spoken of it ought to be over-ruled and not to stand good Mr. Annesley I do the more willingly speak to this Business because I was one of those that should have made up that Parliament that this Prisoner pretends to I was one of that Corrupt Majority as they called it that were put out of the House He cannot forget that at that time there were Guards upon both Houses of Parliament to attend them that were of their own appointment and that those Guards were forcibly removed by the Prisoner at the Bar and his Fellows and other Guards put there who instead of being a Defence unto them when those Commons stood at the Door were by them threatned Yet the Lords and Commons of England in Parliament Assembled a full House of Commons did resolve notwithstanding what was aforesaid that the Treaty in the Isle of Wight was a Ground for Peace Afterwards the Major part of the House of Commons having resolved on this sent it up to the Lords that very day when they were Adjourned there were Forces drawn down to the House of Commons Door and none suffered to come into the House but those that they pleased All those that had a mind for Peace that minded their Duty and Trust and Allegiance to their King were seized on by this Gentleman and his Fellows When this was done what did he and those Fellows do They sate and put a check upon all that should come in None must come in but those that would renounce their Allegiance and Duty to their King and the People for whom they served and then declared against that Vote which had been passed upon Debate of twelve or fourteen hours and then to call this an House of Commons nay the Supreme Authority of the Nation he knows is against the Laws of the Land For the House of Commons alone cannot so much as give an Oath It hath not power of Judicature of Life and Death this he knows well to be according to the Laws of England He knows that no Authority less then an Act of Parliament can make a Law and he knows an Act of Parliament must be passed by the King Lords and Commons I wonder much to hear a Justification in this kind by one that knows the Laws of England so well There will none of the Court allow that that was a Parliament The Majority of that House did all disavow it These things have been already discoursed of I shall onely say that he knowing the Laws so well I hope he shall suffer for trangression thereof Mr. Hollis You do very well know that this that you did this horrid detestable Act which you Committed could never be perfected by you till you had broken the Parliament That House of Commons which you say gave you Authority you know what your self made of it when you pulled out the Speaker Therefore do not make the Parliament to be the Author of your black Crimes It was innocent of it You know your self what Esteem you had of it when you broke and tore it in sunder when you scattered and made them hide themselves to preserve them from your Fury and Violence Do not make the Parliament to be the Authour of your Crimes The Parliament are the three Estates It must not be admitted that one House part of the Parliament should be called the Supreme Authority You know what that Rump that you left did what Laws they made Did you go home to advise
with your Countrey that chose you for that Place You know that no Act of Parliament is binding but what is Acted by King Lords and Commons And now as you would make God the Author of your Offence so likewise you would make the People guilty of your Opinion But your Plea is over-ruled To which the Court assented Mr. Harrison I was mistaken a little Whereas it was said the Points were one I do humhly conceive they were not so I say what was done was done in Obedience to the Authority If it were but an Order of the House of Commons thus under a Force yet this Court is not Judge of that Force I say if it was done by one Estate of Parliament it is not to be questioned Court It was not done by one Estate They were but a Part nay but an eighth Part. Denz Hollis It was not an House of Commons They kept up a Company by the power of the Sword Do not abuse the People in saying It was done by the Supreme Power Councel My Lord if it were an House of Commons neither House of Commons nor House of Lords nor House of Lords and Commons together no Authority upon Earth can give Authority for Murthering the King This that he alledgeth is Treason my Lord this that is said is a clear Evidence of that which is charged there is only this more in it he hath done it and if he were to do it again he would do it Lord Chief Baron It is clear as the Noon-day that this was not the House of Commons Suppose it had been an House of Commons and full and suppose which far be it from me to suppose they should have agreed upon such a Murtherous Act for the House of Commons to do such an Act it was void in it self nay any Authority without the House of Lords and King is void You plead to the Jurisdiction of the Court whether we should Judge it or no. Yes I tell you and proper too We shall not speak what Power we have The Judges have Power after Laws are made to go upon the Interpretation of them We are not to judge of those things that the Parliament do But when the Parliament is purged as you call it for the Commons alone to Act for you to say that this is the Authority of Parliament it is that which every man will say Intrenches highly upon his Liberty and Priviledge And what you have said to your Justification what doth it tend to but as much as this I did it justifie it and would do it again which is a new Treason The greatest Right that ever the House of Commons did claim is but over the Commons Do they claim a particular Right over the Lords Nay over the King Make it out if you can but it cannot possibly be made out What you have said doth aggravate your Crimes It is such an approvement of your Treason that all Evidences come short of it King Lords and Commons is the Ground of the English-Law Without that no Act of Parliament binds Justice Mallet I have been a Parliament-Man as long as any man here present and I did never know or hear that the House of Commons and Jurisdiction over any saving their own Members which is as much as I will say concerning the Parliament I have heard a Story of a Mute that was born Mute whose Father was slain by a Stranger a man unknown After twenty years or thereabouts this Mute-man fortuned to see the Murtherer of his Father and these were his Words Oh! here is he that slew my Father Sir The King is the Father of the Country Pater Patria so saith Sir Edward Coke He is Caput Reipublicae the Head of the Common-wealth Sir What have you done Here you have cut off the Head of the whole Common-Wealth and taken away Him that was our Father the Governour of the whole Countrey This you shall find Printed and Published in a Book of the greatest Lawyer Sir Edward Coke I shall not need my Lord to say more of this Business I do hold the Prisoner's Plea vain and unreasonable and to be rejected Justice Hide I shall not trouble you with many Words I am sorry that any man should have the Face and Boldness to deliver such words as you have You and all must know That the King is above the Two Houses They must propose their Laws to him The Laws are made by Him and not by Them by their consenting but they are His Laws That which you speak as to the Jurisdiction you are here Indicted for High Treason for you to come to talk of Justification of this by Pretence of Authority your Plea is naught illegal and wicked and ought not to be allowed As to having of Councel the Court understand what you are upon Councel is not to be allowed in that Case and therefore your Plea must be over-ruled Mr. Justice Twisden I shall agree with that which many have already said onely this You have eased the Jury you have confessed the Fact I am of the same Opinion that you can have no Councel therefore I over-rule your Plea if it had been put in never so good Form and Manner Earl of Manchester I beseech you my Lords let us go some other way to work Sir William Wild. That which is before us is Whether it be a matter of Law or Fact For the matter of Law your Lordships have declared what it is his Justification is as high a Treason as the former For matter of Fact he hath confessed it I beseech you My Lord direct the Jury for their Verdict This Gentleman hath forgot their Barbarousness they would not hear their King Court No Councel can be allowed to Justifie a Treason that this is a Treason you are Indicted by an Act of the 25th of Edw. 3d. That which you speak of the House of Commons is but part of the House of Commons they never did nor had any power to make a Law but by King Lords and Commons and therefore your Plea is naught and all the Court here is of the same opinion if they were not they would say so therefore what you have said is over-ruled by the Court. Have you any thing else to offer Mr. Harrison Notwithstanding the Judgment of so many Learned ones that the Kings of England are no ways accountable to the Parliament The Lords and Commons in the beginning of this War having declared the King's beginning War upon them the God of Gods Court Do you render your self so desperate that you care not what Language you let fall It must not be suffered Mr. Harrison I would not willingly speak to offend any man but I know God is no Respecter of Persons His setting up his Standard against the People Court Truly Mr. Harrison this must not be suffered this doth not at all belong to you Mr. Harrison Vnder Favour this doth belong to me I would have abhorred to have brought him to Account
such a Priviledge that no man shall ever be called to account for any thing spoken in Parliament if he be not called to account by the House before any other Member be suffered to speak Lord Ch. Bar. That is the House will not determine but that doth not extend to your Case you are not charged here criminally for speaking those words that have been testified against you but for Compassing and Imagining the Kings death of which there are other Evidences and this but an Evidence to prove that Scot. My Lord I never did say these words with that aggravation which is put upon them I have a great deal of hard measure as to say I hope I shall never repent I take God to witness I have often because it was spoken well of by some and ill by others I have by prayers and tears often sought the Lord that if there were iniquity in it he would shew it me I do affirm I did not say so Mr. Baker My Lord I omitted something which was this I had occasion to speak with Mr. Scot whilest Richard's Parliament was sitting and among other discourse insisting upon some things that Richard had done saith he I have cut off one Tyrants head and I hope to cut off another Scot. My Lord This is but a single witness Mr. Soll. Gen. I suppose he meant Rich. for he was a Tyrant Lord Ch. Bar. Speak on Mr. Scot whatever you have to say Sc. If that he laid aside as an impertinency I have the less to say L. Ch. Bar. The next thing you have to do is to answer to the fact whether you did it or did it not Scot. I say this Whatever I did be it more or less I did it by he Command and Authority of a Parliamentary Power I did sit as one of the Judges of the King and that doth justifie me whatever the nature of the fact was Lo. Ch. Bar. We have had these things alledged before us again and again The Court are clearly satisfied in themselves that this act could not be done by any Parliamentary power whatsoever I must tell you what hath been delivered that there is no power on earth that hath any coercive power over the King neither single Persons nor a Community neither the people Collectively nor Representatively In the next place that which you offer to be done as by Authority of Parliament it was done by a few members of the House of Commons there were but 46 there at that time and of these 46 not above 26 that voted it at that time the House of Lords was sitting who had rejected it and without them there was no Parliament there was a force upon the Parliament there was excluded seven parts of eight Supposing you were a full House of Commons and that without exception there was not Authority enough and it is known to you no man better that there never was a House of Commons before this time that this foul Act was made for erecting that High Court of Justice as you call'd it assumed that Authority of making a Law you cannot pretend to act by Authority of Parliament and because you would excuse it you did it by Authority of Parliament whether it were good or no If a man do that which is unlawful by an unlawful Authority the assuming to do it by that Authority is an Aggravation not an Extenuation of the Fact It was over-ruled I think my Lords will tell you That they do not allow of that Authority at all either to be for Justification or Plea Scot. My Lords I humbly pray leave to say that without offence to the Court every person whereof I honour This Court hath not Cognizance to Declare whether it were a Parliament or no. Lo. Ch. Bar. That was objected too and we must aquaint you That first of all it is no Derogation to Parliaments That what is a Statute or not a Statute should be adjudged by the Common Laws We have often brought it into question whether such and such a thing was an Act of Parliament or not any man may pretend to an Authority of Parliament If forty men should meet at Shooters Hill as the Little Convention did at Westminster and say We do declare our selves a Parliament of England because they do so shall not this be judged what is a Statute and what not It is every days practise we do judge upon it the Fact is so known to every body they did assume to themselves a Royal Authority it hath been over-ruled already it hath been the mistake of many the vulgar acceptation of the word Parliament A Parliament consists of the King Lords and Commons it is not the House of Commons alone and so it is not by Authority of Parliament It is not unless it be by that Authority which makes up the Parliament You cannot give one instance That ever the House of Commons did assume the Kings Authority Scot. I can many where there was nothing but a House of Commons Court When was that Scot. In the Saxons time Court You say it was in the Saxons time you do not come to any time within 600 years you speak of those times wherein things were obscure Scot. I know not but that it might be as lawful for them to make Laws as this late Parliament being called by the Keepers of the Liberties of England My Lords I have no seditious design but to submit to the providence of God Court This is notorious to every man This we have already heard and over-ruled L. Finch That that I hope is this That Mr. Scot will contradict that which he hath said before that is That he hopes he should not repent I hope he doth desire to repent Mr. Scot for this we must over-rule it as we have done before there is nothing at all to be pleaded to the Jurisdiction and this point hath been determined before Scot. The Parliament informer times consisted not so much of King Lords and Commons but King and Parliament In the beginning of the Parliament in 1641. the Bishops were one of the three Estates if it be not properly to be called a Parliament a legislative Power though it be not a Parliament it is binding If two Estates may take away the third if the second do not continue to execuâ—â— their trust he that is in occupancy may have a title to the whole I do affirm I have a Parliamentary Authority a legislative power to justifie me Lo. Ch. Bar. Mr. Scot what you speak concerning the Lords Spiritual is nothing to your Case be it either one way of other it was done by an Act of Parliament with consent of the King Lords and Commons though you will bring it down to make these Commons have a legislative Power I told you it was over-ruled before We have suffered you to expatiate into that which was a thing not intended by many of my Lords that you should have any such power to expatiate into that which is
by law that the right of the Militia was in them and your Lordships will remember in several Declarations and Acts that was mutually exchanged between his Majesty and Parliament and my Lord that was the Authority the Lords and Commons assembled in Parliament raised a Force and made the Earl of Essex Ceneral and after him the Earl of Manchester of the Eastern Association and after that Sir Tho. Fairfax Lord General of the Forces by this Authority I acted and this Authority I humbly conceive to be legal because this Parliament was called by the Kings Writ chosen by the People and passed a Bill they should not be dissolved without their own consents that the Parliament was in being when the Tryal was and a question whether yet legally Dissolved In the fourth place they were not only owned and obeyed at home but abroad to be the chief Authority of the Nation and also owned by Foreign States and Kingdoms sent Ambassadors to that purpose under them did all the Judges of the Land Act who ought to be the Eye of the Land and the very light of the People to Guide them in their right Actions and I remember the Judges upon Tryal I have read it of High Treason Judg Thorp Nicholas and Jermin have declared it publickly That it was a lawful justifiable thing by the Law of the Land to obey the Parliament of England My Lord it further appears as to their Authority over the People of this Nation petitioning them as the supreme and lawful Authority and My Lords as I have heard it hath been objected that the Houses of Lords and Commons could make no Act. Truly my Lord if you will not allow them to be Acts though they intitle them so call them so and obeyed as so by the Judges Ministers and Officers of State and by all other persons in the Nation yet I hope they cannot be denied to be Orders of Parliament and were they no more but Orders yet were they sufficient as I humbly couceive to bear out such as acted thereby And my Lord the Parliament thus constituted and having made their Generals he by their Authority did constitute and appoint me to be an Inferior Officer in the Army serving them in the quarters of the Parliament and under and within their power and what I have done my Lord it hath been done only as a Souldier deriving my power from the General he had his power from the Fountain to wit the Lords and Commons and my Lord this being done as hath been said by several that I was there and had command at Westminster-Hall truly my Lord if the Parliament command the General and the General the inferiour Officers I am bound by my Commission according to the Laws and Customs of War to be where the Regiment is I came not thither voluntarily but by command of the General who had a Commission as I said before from the Parliament I was no Counsellor no Contriver I was no Parliament-man none of the Judges none that Sentenced Signed none that had any hand in the Execution onely that which is charged is that I was an Officer in the Army if that be so great a crime I conceive I am no more guilty than the Earl of Essex Fairfax or the Lord of Manchester Judg Mallet You are not charged as you were an Officer of the Army Axtell My Lords That is the main thing they do insist upon my Lord I am no more guilty than his Excellency the Lord General Monck who Acted by the same Authority and all the People in the three Nations and my Lord I do humbly suppose if the Authority had been only an Authority in Fact and not Right yet those that Acted under them ought not to be questioned but if the Authority commanded whatsoever offence they committed especially that that guided me was no less than the declared Judgment of the Lords and Commons sitting in Parliament they declared that was their right as to the Militia and having explained several Statutes of Henry the 7th wherein the King having enterchanged Declarations with the Parliament the Parliament comes to make an Explanation on that Statute and my Lord it is in Folio 280. wherein they do positively expound it and declare it as their allowed Judgment To clear up all scruples to all that should take up Arms for them saith the Parliament there as to the Statute of 11. of Henry the 7th Chapter the first which is printed at large comes there to explain it in general and comes here Folio 281. and gives this Judgment It is not say they agreeable to Reason or Conscience that any ones duty should be known if the Judgment of the High Court of Parliament be not a Rule or Guide to them In the next place this is the next Guidance Rule and Judgment of Parliament upon the Exposition of this Statute and as they have said in several places was it not too much to take up your Lordships time they are the proper Judges and Expounders of the Laws The High Court of Parliament have taken upon them to expound the Law and said that we Lawyers will give the meaning of the Text contrary to what they have expounded the meaning under their hands in the same Declaration his Majesty is pleased to quit that Statute upon which I stand Indicted the 25th of Edward the Third where they do my Lord expound that very Statute in the Declaration made in 1643. Folio 722. I come to the declared Judgment wherein they did positively say that the persons that do Act under their Authority ought not to be questioned as persons Guilty Folio 727. that is the Exposition that the Lords and Commons Assembled in Parliament doth make upon the statute Councel My Lord this is an Argumentation of Discourse in justification of his proceedings we desire to know what he will answer as to the Plea Axtell My Lords I have this further to say that if a House of Commons Assembled in Parliament may be Guilty of Treason for the truth is if I Acted Treason that Acted under the Authority of the Lords and Commons in Parliament and of the Commons in Parliament then doubtless they must begin the Treason if the House of Commons who are the collective body and Representation of the Nation all the people of England who chose them are guilty too and then where will there be a Jury to try this concerning the Commons alone I have been over ruled L. ch Bar. If you have any thing to say to the Lords and Commons answer to your charge your charge is nothing of the Lords and Commons but what you Acted when the house was broke and Forced Coun. You cannot but know that there is nothing charged against you for which you can so much as pretend an Authority of the Lords and Commons you know before you could do this Horrid Murther you were the persons that destroyed the Lords and Commons both indeed you Ravel in a
Executioner and such other Acts prove these are in your Commission and you say something I am sure you cannot be ignorant that That very Authority that you do now urge to give life and power to your Actions that you destroyed it laid it in the dust acted contrary to it several ways when the Parliament protested against fetching the King from Holmby as they did when they went on proceeding in the way of peace then came you up to the Bar I think you your self and charged some of the Members first 11 as rotten Members and these Men were forced away this you know your General had no Commission to do and this you know was a Violation of that Power that gave our General the Commission After that when the Treaty was brought on in the Isle of Wight when there was great hopes of peace then you knew the King was hurried thence by Force which the Parliament protested against After that when both the House of Commons and Lords came to consider of one particular that passed they resolved that it was sufficient ground to proceed on for the settlement of peace then did you fall upon these Houses and tear them in pieces and throwing out above 200 suffering only about 40 to remain and they were glad to send for one Member out of Prison to make up a House That which you say of the Supreme Authority and that by Vertue of which you did Act it shews that you did not at all go by any Authority but you followed your own Lusts and therefore do not few these Fig-leaves together which will stand you in no stead if you would apply your self to answer that which you were charged with it were something Axt. I do desire to have no more interruptions then is me◠〈◊〉 making my own Defence My Lord here are many things by way of motive urged to the Jury which is not within the Charge I desire I may have that fair play that nothing may be urg'd but what is in the charge L. Ch. Bar. You give the occasion Mr. Axtell keep to the matter and you shall not be interrupted Lord Hollis I shall be very sorry to urge any thing against you which doth not necessarily follow for what you say touching your Authority I shall shew you have no Authority Axtell My Lord I have the same Commission as the General what I did was not of mine own head I had a Command As for all that hath been charged against me I shall say this I was none of the Court I did not fetch the King from the Isle of Wight nor advised compassed or imagined his Death or sentenced him to Death or signed the Warrant for his Execution or Executed Him I am none of them My Lords and therefore whoever did make any breach upon the House of Commons they were Grandees persons of a greater Quality I was an inferior Officer I was never at the House Bar but upon presenting one Petition to the Parliament from the Army I shall now come to speak to the Evidence which hath been given particularly against me and the first my Lord is Mr. Simpson he saith I had the Commands of the Guards at Westminster-Hall My Lords I have told you already shewn you by what Authority I came thither and that I ought not to refuse if I had according to the laws of War I must have suffer'd death and that is all as to Mr. Sympson only that a Lady he knows not who spake something there L. Ch. Bar. He saith he heard you bid the Souldiers give fire against the Lady Axt. My Lord I must say if there was any Lady that did speak who she was I know no more than the least child here but my Lord to silence a Lady I suppose is no Treason If a Lady will talk impertinently it is no Treason to bid her hold her tongue L. Ch. Bar. A Lady was speaking pertinently enough when she heard Bradshaw say to the King such a Charge is exhibited a charge of High Treason against Him in the Name of the Commons assembled in Parliament and the good People of England she said That was a lye not half nor a quarter of the people of England That Oliver Cromwel was a Traytor Then you took upon you to command Souldiers to fire at her and accordingly they levelled the muzles of their Musquets towards her Axtell My Lord as to that particular concerning Oliver Cromwell or any other words concerning the Court I understand them not but if any interruption was made to preserve the peace to desire a Woman to hold her tongue is no Treason To the next particular wherein Col. Huncks saith at a door at a certain lodging where Ireton and Harrison were in Bed together he saith that upon his refusal to sign the Warrant for executing the King I said to him Col. Huncks I am ashamed of you the Ship is now coming into Harbour and will you strike Sayle before we come to Anchor truly my Lord I think all that amounts to nothing if it were so which I deny it for to bring the Ship into Harbor what is that there is no person named Fact named nor Design named and I appeal to my conscience I remember not the time place person or words and I can call for Col. Phayre and Col. Hacker who were there for I desire things may appear right I desire they two persons may be called for their Evidence in that point L. ch Bar. They both are in the same condition Col. Hacker in the prison behind you Col. Phayre in the Tower Mr. Axtell you know the strength of one Affirmative witness I saw such a man and heard such a man say c. is more then if twenty should witness they stood by but did not see him or hear him speak Axt. My Lord he saith only this I saw you at the door going unto Ireton's chamber and said will you strike Sayl c. Truly my Lord he doth not say what or how or any thing I meant there must be according to Sir Edward Cook 's 7th Book of his Institutes that Oracle of the Law he saith That Evidence ought to he as clear as the Sun at noon day All that you can say is this it must be a wide Inference a large Inference I conceive there is nothing in these two witnesses and if the two Prisoners were here they would clear me in this L. ch Bar. If by Law you could have had them you should but I fear if they could be admitted they would not be to your advantage Axtell Then my Lord in the next place Col. Temple is pleased to say that the Lady Fairfax saying something against the Court which in truth as I said before I know not who it was or what the words were he saith I bid Fire against them I did nothing but what I was commanded upon pain of Death to preserve peace and in pursuance of that command from the superior
had not the blood of English-men that had been shed Councel Me thinks he should be sent to Bedlam till he comes to the Gallows to render an Account of this This must not be suffered It is in a manner a new Impeachment of this King to justifie their Treasons against His late Majesty Mr. Solicitour General My Lords I pray that the Jury may go together upon the Evidence Sir Edw. Turner My Lords This man hath the Plague all over him it is Pity any should stand near him for he will infect them Let us say to him as they use to write over an House infected The Lord have Mercy upon him and so let the Officer take him away Lord Chief Baron Mr. Harrison We are ready to hear you again but to hear such Stuff it cannot be suffered You have spoken that which is as high a Degree of Blasphemy next to that against God as I have heard You have made very ill use of these Favours that have been allowed you to speak your own Conscience cannot but tell you the Contradiction of your Actions against this that you have heard as the Opinion of the Court. To extenuate your Crimes you may go on but you must not go as before Mr. Harrison I must not speak so as to be pleasing to men but if I must not have liberty as an English-man Court Pray do not reflect thus You have had liberty and more then any Prisoner in your Condition can expect and I wish you had made a good use of it Keep to the Business say what you will Mr. Harrison My Lords thus There was a Discourse by one of the Witnesses that I was at the Committee preparing the Charge and that I should say Let us blacken Him The thing is utterly untrue I abhorred the doing of any thing touching the Blackning of the King There was a little Discourse between the King and my self The King had told me that He had heard that I should come privately to the Isle of Wight to offer some injury to Him But I told Him I abhorred the thoughts of it And whereas it is said that my Carriage was hard to Him when I brought Him to London it was not I that brought Him to London I was commanded by the General to fetch Him from Hurst-Castle I do not remember any hard Carriage towards Him Court Mr. Harrison You have said That you deny that of Blackning which the Witness hath sworn and somewhat else touching the King in His Way to London that the Witness hath sworn to also The Jury must consider of it both of their Oaths and your Contradictions If you have nothing more to say which tends to your Justification We must direct the Jury The end of your Speech is nothing but to infect the People Mr. Harrison You are uncharitable in that Justice Foster My Lords This ought not to come from the Bar to the Bench if you sally out thus about your Conscience If your Conscience should be a darkened Conscience that must not be the Rule of other mens Actions What you speak of that Nature is nothing to the Business If you have any thing to say by way of Excuse for your self for matter of Fact you may speak but if you will go on as before it must not be suffered Mr. Harrison The things that have been done have been done upon the Stage in the sight of the Sun Court All this is a Continuance of the Justification and Confession of the Fact We need no other Evidence Councel He hath confessed his Fact my Lords The matter it self is Treason upon Treason Therefore we pray Direction to the Jury Lord Chief Baron Mr. Harrison I must give Direction to the Jury if you will not go further touching the Fact Mr. Harrison My Lords I say what I did was by the Supreme Authority I have said it before and appeal to your own Consciences that this Court cannot call me to question Lord Chief Baron Mr. Harrison you have appealed to our Consciences We shall do that which by the Blessing of God shall be just for which we shall answer before the Tribunal of God Pray take heed of an Obdurate Hard Heart and a Seared Conscience Mr. Harrison My Lords I have been kept six Moneths a Close Prisoner and could not prepare my self for this Trial by Councel I have got here some Acts of Parliament of that House of Commons which your Lordships will not own and the Proceedings of that House whose Authority I did own Lord Chief Baron This you have said already If you shew never so many of that Nature they will not help you you have heard the Opinion of the Court touching that Authority They all unanimously concur in it Gentlemen of the Jury You see that this Prisoner at the Bar is Indicted for Compassing Imagining and Contriving the Death of our late Sovereign Lord King Charles the First of Blessed Memory In this Indictment there are several things given but as Evidences of it they are but the Overt-Acts of it The one is first that they did meet and consult together about the putting the King to Death and that alone if nothing else had been proved in the Case was enough for you to find the Indictment For the Imagination alone is Treason by the Law But beause the Compassing and Imagining the Death of the King is secret in the Heart and no man knowes it but God Almighty I say That the Imagination is Treason yet it is not such as the Law can lay hold of unless it appear by some overt-Overt-Act Then the first overt-Overt-Act is their Meeting Consulting and Proposing to put the King to Death The second is more open namely their Sitting together and Assuming an Authority to put the King to Death The third is Sentencing the King And I must tell you that any one of these Acts prove the Indictment If you find him guilty but of any one of them either Consulting Proposing Sitting or Sentencing though there is full Proof for all yet notwithstanding you ought to find the Indictment You have heard what the Witnesses have said and the Prisoner's own Confession Witnesses have sworn their sitting together and that he was one One swears he sate four times another twice some several times There are several Witnesses for this as Mr. Masterson Mr. Clark Mr. Kirk and Mr. Nutley And then you have another thing too which truly the Prisoner did not speak of Witness was given against him That he was the Person that Conducted the King this was before that which he would have to be done by a Legislative Power and that is another Overt-Act If a man will go about to Imprison the King the Law knows what is the sad Effect of such Imprisonment That hath often been adjudged to be an Evidence of Imagining and Compassing the Death of the King That man the Prisoner at the Bar it hath been proved to you did Imprison the King and it appears by his own
there I met this Gentleman whom indeed I knew not he told me who he was and when I understood who he was I said to him or words to this purpose I cannot tell the words because I would not distaste him and say you have done this therefore I put it thus We have done this What a sad case have we said I brought this Kingdom unto Why saith he you see said I how it is ruined now the King is murthered c Saith he some are of one opinion and some of another Sir said I do you think it was well done to murther the King saith he I will not make you my Confessor Sir it was much to this purpose Coun. When was this spoken Lord Elect. Truly I do not know the day but it was that day that Sir H. M. rendered himself to the Speaker it was since the coming in of the King M. Sol. Neither time nor the hand of God appearing in this business nor the condition he was in was ever able to bring this Gentleman to be sorry for his offence but we do not give it as any evidence of his crimes You have heard the Prisoner confess the two Warrants You have heard by several witnesses produced that he did sit in that which they called the High-Court of Justice by three that he sat particularly on that day they called the day of their Judgment you have heard how little penitence he hath had by his Declaration to the Lord Mayor Elect. Scr. I hope now that you have heard the Evidence against me that you will give me leave to make some defence for my self L. C. Bar. God forbid otherwise but that you should have free liberty Scr. Truly my Lords though my breeding hath not been in the way of the Laws and therefore I have a great disadvantage when there be such learned Gentlemen as these are to plead against me I must confess to you I have something for matter of Law to plead for the justification of the fact though I would not undertake to justifie the person this I humbly entreat if it may be granted that I may have some time given me and some Councel that I may answer matter of Law L. C. Bar. M. Scroop if you have any thing of matter of Law for which you would have Councel you must alledge that matter first the use of Councel is only to put in certainty what you have of matter of Law and then the Court and Judges must judge of it If you have matter of Law you must tell what it is if it be matter that there is cause to over-rule it there is no cause of making further use of Councel If one be Indicted for murther when he comes to Tryal he will say I have matter of Law to plead What is that That Murther is no felony Do you think Councel will be admitted in this If you do alledge what this matter is wherein you desire Councel you shall have your answer Scr. My Lords as well as I am able to do it I shall do it my Lord I was not of the Parliament take notice of that and that which was done in the High Court of Justice it was done by a Commission from the Parliament My Lord it was that Authority which was then I will not say it was so because I would not give offence it was that Authority then which was accounted the supreme Authority of the Nation and that Authority My Lord that a great many of the generality of the Nation submitted to My Lord I having received a command from that Authority what I did was in obedience to that Authority My Lord I have not had time to consider of these things because I have been for these six weeks time shut up a close Prisoner and that I could neither come at Councel nor any thing else nor to get any thing to prepare for it therefore I desire your Lordships to do me the savour if you see any weight in it to let me have time and Councel assigned me L. C. Bar. Have you done Sir Scr. Yes L. C. Bar. Then I take it this is the effect of what you have said if I have not taken it aright tell me so You say you justifie the fact though not your Person That you were not of the Parliament That what was done was by Commission from the Parliament Be pleased not to mistake me for I say you said this That that which I have to plead in justification of it I do not say that I justifie my self but that which I have to say is for justification of the Fact I was first no contriver of the business And then secondly I did it by virtue of the Command and in obedience to the Authority of the Parliament That that Authority was then accounted the Supream Authority of the Nations and that the Generality of the Nations did submit to their Authority I think I have repeated all you have said Then Mr. Scroop you must know this That there is no cause at all why Councel should be given for what you speak I profess it rather tends to the aggravation than extenuation of what you did First you say you did it by Authority of Parliament I am afraid you have been mistaken as well as others by the word Parliament what doth that mean I am sure you and e-every one knows that there was not one Precedent ever heard of till this That the House of Commons should take upon them the Legislative Power and make such an Act as this was there was no colour for it Then for men upon their own heads never heard of before and against the Liberty and Fredome of the People that they should call it the Parliament when there was but 46 sate whereas there was above 240 excluded and how you can call this a House of Commons is a great wonder to me but I tell you this take it for granted that if they were the most perfect House of Commons that could be Did ever the House of Commons before this single Act take upon them the Legislative Powers without the Lords The Acts are begun in the Commons House when you have done if the Lords not pass it it is a bortive if it be done by both Houses there ought to be a Royal assent But the Lords had rejected this Act then they must take upon them these 46 men whereof I do believe there was not above 25 or 26 men that did vote this and this must be called the Parliament the Commons of England I would fain know whether any man hath heard that the House of Commons took upon them the Legislative power before this Act but this hath been over-ruled in the like Case and I shall say no more to it What is the Oath of Allegiance is it not that you would defend the King his Crown Rights and Liberties against all persons whatsoever It was not only against the Pope as some would have it but the
of the Lord and did weigh the things After that when the Bill was brought into the house my name was put in there with several others so I came to be in and what I did was upon these two Accounts First in obedience as I told you to the Lord which was the chief thing And in obedience to that which was then the Supreme Authority of this Nation and therefore I shall mention these grounds very briefly because indeed the things that are controverted here at this time they have been controverted in the Face of the whole world in several Nations and the Lord hath given an answer upon solemn Appeals to these things I shall therefore mention them very briefly because they have been so publique The Declarations and Remonstrances that have passed between the King and Parliament concerning the beginning of the Wars L. Chief Baron Mr. Ca. I would be very loth to interrupt you But I see what course is taken and the peoples eyes are upon you You seek delays and against the course of Prisoners you say you will confess but you do confess the Fact after you have spent the time And all the Witnesses are heard for this that you speak of now you go about to justifie as in the fear of the Lord or any thing of that nature that we cannot allow of but we do allow you to speak and give the heads of what you will say as to the matter of Fact but to hear you make discourses and debates which are a justification of a horrid and notorious Treason we cannot hear it we ought not to hear the maintaining of open Treason cannot hear you to speak that upon your opening which is Treason We are willing that you open the Heads what you have to say we are upon our consciences and to appear before God for what we do and so are you too but remember the Devil sometimes appears in the habit of an Angel of light If you will couch your matter in a few words the Court affords you liberty which is indeed beyond the strict Rules of Law Ca. You say you sit here by the Laws of the Land and are sworn to maintain the Laws We ought not that we should plead to this Indictment for what we did was by an Act of Parliament Court Pray Sir this must not be let fall without reproof or rather punishment Ca. I believe there is no Precedent for it Court Sir We know the act of Parliament as well as you and most of the standers by You go upon a false ground there was no such Act of the Supreme Authority as you pretend to these are but Phantasms of your own brain and must not be suffered these things have been controverted and decided many a time again and again Ca. I desire to have time to speak how it was begun and carried on or else how shall I be able to make my defence or to tell you what are the Heads I wil insist upon I shall declare the grounds upon which the Parliament did proceed L. Chief Baron Mr. Carew If that be your ground the Parliament did it the House of Commons did it I have something to offer not to interrupt you to the then Commons Ca. In my humble opinion for the maintaining of this It was by Authority the supreme Authority by which it was done L. Chief Baron Did you sign this Warrant for the summoning and warning of that Court And did you sign the Warrant for executing the late King Ca. I desire I may go on with my defence L. Chief Baron We would not have you be mistaken You seem to confess the act and now you justifie it you cannot speak any thing for your justification till you confess the fact Ca. I shall speak to that in its time L. Chief Baron You must speak to that first that is matter of Fact whereupon the Jury are to go Ca. There is matter of Law Court You must speak to matter of Fact first Ca. I say this is that I was about to say That the Supreme Authority Court You must speak to the Fact first Whether you did compass c. the Kings death or not that is the first ground if you did not there is an end of the business It is proved against you that you did it if you come to justifie it it must be when you have first agreed the matter of Fact Ca. I desire I may have liberty to proceed either for matter of Fact or Law as I list Court No no you must first speak to the Fact you may be after heard You know in all cases they must begin with the Fact either denying or extenuating For matter of Law in this case must arise from the fact Ca. But I humbly conceive there is a matter of Law in this case and it is matter of Law that is above the jurisdiction of this inferior Court Mr. Sol. Finch I pray that he may be held to the issue Guilty or Not Guilty If he deny the Fact let us relie upon our Evidence and he upon his he cannot come to Law till he hath confessed the Fact The question is Whether you did or not there is the Fact if you have any thing to justifie that follows Ca. I was upon that and going on to shew the reasons and grounds of it Court First you must confess it if you will shew the reasons why you did it Ca. I told you there was some things I did Coun. What are those some Ca. I do acknowledg that I was there at the Court. Coun. Did you sign the Warrants for summoning that Court and for Execution of the King Ca. Yes I did sign them both Coun. Then say what you will L. Chief Baron Now go on Ca. In the Year 1640. there was a Parliament called according to the Laws and constitutions of this Nation and after that there was some difference between the King and the Parliament the two Houses of Parliament Lords and Commons and thereupon the King did withdraw from the two Houses of Parliament as appears by their own Declaration The great Remonstrance printed in 1642. and thereupon the Lords and Commons did declare L. Chief Baron Mr. Carew The Court are of opinion not to suffer you to go on in this they say it tends not only to justifie your Act but you cast in Bones here to make some difference You talk of the Lords and Commons you have nothing to do with that business your authority that you pretend to was an Act of Parliament as they called themselves and that where there was but 46 Commons in the House and but 26 Voted it Ca. I say that the Lords and Commons by their Declaration Mr. J. Foster Hold your hand a while Sir not so fast you go to raise up those differences which I hope are asleep new Troubles to revive those things which by the grace of God are extinct you are not to be suffered in this it is not the singling
instrumental in taking away the Kings life that is being any way instrumental Truly whether it be not instrumental to exhibit a Charge against him or complain of his delayes to ask Justice against him in the name of the people to do all this and desire that the Charge might be taken pro Confesso if this be not instrumental I know-nothing else Sentencing and signing Some signed the Sentence some the instrument for death the next degree of being Instrumental the highest degree of that is to accuse him to deliver in the Charge against him in the name of the people do it again and again be angry at the delayes The next thing is this that you did not do this falso or malitiose but for your Fee and that though there might be avaritia there was not malitia in it it was done by your Profession you were not Magisterial in it you thought the consequences that did follow would not follow If a man does but intend to beat a man and he dye upon it you know in Law it is all one You must understand there is a malice in the Law If a man beat one in the Streets and kill him though not maliciously in him but it is so in Law That you desire to have the benefit of the Kings Declaration that you did put in your petition proving the same that you were a prisoner before that the Commons in behalf of themselves and the people of England they craved the benefit of it which was granted excepting such as should be by Parliament exceptd and that the King should mention a Free Parliament for this it hath been fully answered to you and clearly by Mr. Sollicitor that you are not at all concerned in the Kings Declaration at Breda For first it is nothing in Law it binds in honour and we have given the same directions yesterday upon the like occasion that is that the Kings Declaration binds him in honour and in Conscience but it does not bind him in point of Law unless there were a pardon granted by the Broad Seal the thing is cleared to you what Parliament the King meant by it they were sitting at that time had acknowledged their dutie and allegiance to their King they went ad ultimum potentiae for a free and absolute Parliament whilst the King was absent though the King was away yet notwithstanding the King Declared whom he meant he directed one of those Declarations to our Speaker of the house of Commons and another to the Speaker of our Peers in this case it was loquendum ut vulgus it was owned by him as having the name of a Parliament it was done with great wisdom and prudence and so as it could be no otherwise they that were loyal subjects acting in the Kings absence he consenting to it the King owning that Authority so he was obliged in honour no further than his own meaning and words but there is another Clause in the act excludes all these persons The next thing is this you say the Statute of 25 Edward 3. and it is very true you say if it be any semblable Treason we were not to judge upon that unless they were the Treasons in the Act and it is most true now you would urge but this that this is but a semblable Treason but you are indicted for the compassing and imagining the Death of the King if these Acts did not tend to the compassing and imagining the Kings death I know not what does I am satisfied you are convicted in your conscience The next thing for you have said as much as any man can in such a Cause it is pity you have not a better you say though it was a Tyrannical Court as it is called but such a Court it was and there were Officers you say it had figuram judicii that aggravates the fact to you to your profession There is a difference between a standing Court and that which is but named to be a Court this was but one of a day or two's growth before and you know by whom by some that pretended to be only the Commons your knowledge can tell you that there was never an Act made by the Commons assembled in Parliament alone and you may find it in my Lord Cook that an Act by the Lords and Commons alone was naught as appeared by the Records Sir James Ormond was attainted of Treason the Act was a private Act by the King and Commons alone the Lords were forgot when the Judges came to try it it was void and another in Henry the 6. time you know this was no Court at all you know by a printed Authority that where a settled Court a true Court if that Court meddle with that which is not in their cognizance it is purely void the Minister that obeys them is punishable if it be Treasonable matter it is Treason if murder it is murder so in the Case of Martialsea and in the Common Pleas if a man shall begin an Appeal of death which is of a criminal nature and ought to be in the Kings Bench if they proceed in it it is void if this Court should condemn the party convicted he be executed it is murder in the Executioner the Court had no power over such things you speak of a Court. First it was not a Court Secondly no Court whatsoever could have any power over a King in a coercive way as to his person The last thing that you have said for your self is this that admitting there was nothing to be construed of an Act or an Order yet there was a difference it was an Act de facto that you urged rightly upon the Statute of 11 Hen. 7. which was denied to some God forbid it should be denied you if a man serve the King in the War he shall not be punished let the fact be what it will King Henry the 7. took care for him that was King de facto that his Subjects might be encouraged to follow him to preserve them whatever the event of the King was Mr. Cook you say to have the equity of that Act that here was an authority de facto these persons had gotten the supream power and therefore what you did under them you do desire the equity of that Act for that clearly the intent and meaning of that Act is against you it was to preserve the King de facto how much more to preserve the King de jure he was owned by these men and you as King you charged him as King and he was sentenced as King That that King Henry the 7. did was to take care of the King de facto against the King de jure it was for a King and Kingly Government it was not for an Antimonarchical Government you proceeded against your own King and as your King called him in your charge Charles Stewart King of England I think there is no colour you should have any benefit of the Letter or of the
what degree or quality whatsoever who within Four days after the publishing hereof shall lay hold upon this our grace and favour excepting only such persons as shall hereafter be excepted by Parliament that is a Parliament called by his own Writ You know this Parliament L. Ch. Bar. Mr. Axtell I would not interrupt you to that but this very Objection was made by one of the Prisoners before this answer was given First the King's Declaration is not a Pardon in point of Law it must be under the Broad-Seal but God forbid but it should bind in honour You instanced in the word Parliament what was meant by the word Parliament you must know this the exigency of the Times were such that there were many Noble Persons that took the advantage to Assemble themselves together to reinstate the King they did that which was just and lawful according to the exigency of the Times This Declaration he sent to the two Houses he called them His Two Houses so that it appears clearly and manifestly they were then sitting they being accepted by the King and owned by Him and they did sit in way of Convention according as a Parliament and his Majesty sent his Letter to them and these are the persons that have thought fit to except you out of that Act. Axtell My Lord may I speak to that any further L. Ch. Car. If you do it will be over-ruled Axt. I submit with submission to the providence of God I did apply to Sir Harbottle Grimston for the Mercy and Favour of his Majesty according to his Declaration and here is Sir Harbottle's own hand for a Certificate L. Ch. Bar. That is allowed you that you did claim that benefit within the time but you may remember that it was referred to those two Houses of Parliament they were to consider who was fit for the Pardon and you are by them Excepted out by Name Your question now is no more but whether guilty or not guilty and these are but extravagant Discourses that you say otherwise and rather do you harm then good Axtell I hope you will pardon me my Lord I hope I have spoken to clear the Point The Fact charged by your Lordships and before the Jury and I hope the Lord will give the Jury a Memory of it and a right Understanding in what I have said for my own Defence My Lord the next thing I have to offer is this to Expound that Act of Parliament that it was the intention of his Majesty and Parliament that all should be excepted but those guilty of Councelling Signing or Sentencing Truly my Lord I humbly conceive I being none of those am not guilty of Treason I shall only speak one word to my Jury That they will remember what I have said that there is but two things two Witnesses as to Justice and Execution that it relates to no person but in General and then I do not own the things but possibly they might hear such words I taking of them up upon a rebound reproved the Souldiers for the other that I should send one for the Executioner he heard so and that I should name who was the Executioner I would not have that person or any other to suffer for that L. Ch. Bar. That is not at all pressed upon you not as to any Charge Axtell I thank your Lordship I am very ignorant L. Ch. Bar. Have you done Sir Axtell I leave the matter to the Jury in whose hands I and my little Ones and Family are left I only say this to you Remember your Ancestors Remember your Posterity I never heard it before that words were Treason In Queen Maries time Throckmorton was acquitted for words by the Jury Gentlemen of the Jury I leave my Case my Life my All in your Hands L. Ch. Bar. Gentlemen of the Jury There hath been several things offered by the Prisoner at the Bar as near as my Memory will give me leave in so long a Discourse I shall repeat all things which he saith for himself and which are said against him There are some things that he seems to utter as tending to matter of Law and something meerly of Fact proper only for you of the Jury For matter of Law he hath urged several things for himself not by way of justification of the Fact I must do him that right but in excuse of himself and I hope his conscience hath so wrought upon him that he is of opinion the Fact was a horrid Fact which was so indeed For that which he hath said for himself First he doth alledge to have his Commission from the Lord Fairfax My Lord Fairfax had his Commission from the two Houses of Parliament and this Gentlemans was in March the beginning of the year 1648. he saith what he did was in obedience to his superiors as a Soldier that he never consulted or advised about any thing of the Tryal or execution of his Majesty For this point it hath already been spoken to Gentlemen for that which hath been spoken to at large heretofore I must repeat it here that he may know it That no Person whatsoever no Community not the people either collectively or representatively have any coercive Power over the King neither the Lord Fairfax his General not he nor any other person could be excused for this horrid Fact of bringing the King to Trial No person as I said before nor Community have any such power The Law-books which he hath lately seen and truly he hath imployed his time well in that the Law-books tell us that whereas the two Spenceers had broached a damnable and detestable principle that the homage was only due to the King in respect to his Crown that if he did not demean himself according to such and such rules his Subjects might rule him per aspertee by asperity and sharpness but this was condemned by two Acts of Parliament they both appear in my L. Cooke in Calvins case I do not go to repeat all the evidence that might clear this truth I say had there been any such thing but it hath been told him there was no such thing in Fact My Lord Fairfax's Commission was for the preservation of the King as well as for the liberties of the People The 11. of Rich. 2. Robert de Vere and others for levying a War was punished but this Gent. was not charged for levying of War If either of the Houses of Parliament should command such a thing as tends to the death of the King it would be void in it self Something he let fall of the Parliament not being dissolved My Masters for that you have heard some of my Lords declare how and in what manner this was an Authority of Parliament but it was clearly nothing at all this Gentlemen goes by Vertue of a Power from the Lord Fairfax The next thing he urges in point of Law was this he comes by way of Dilemma saith he either I must obey my General or dye
perceive by this Commission that hath been read that we are authorized by the King's Majesty to hear and determine all Treasons Felonies and other Offences within this County But because this Commission is upon a special occasion the Execrable Murther of the blessed King that is now a Saint in Heaven King Charls the first we shall not trouble you with the Heads of a long Charge The ground of this Commission was and is from the Act of Oblivion and Indempnity You shall find in that Act there is an Exception of several persons who for their Execrable Treasons in sentencing to Death and signing the Warrant for the taking away the Life of our said Sovereign are left to be proceeded against as Traytors according to the Laws of England and are out of that Act wholly excepted and fore-prized Gentlemen You see these Persons are to be proceeded with according to the Laws of the Land and I shall speak nothing to you but what are the words of the Laws By the Statute of the twenty fifth of Edward the third a Statute or Declaration of Treason it is made High-Treason to compass and imagine the Death of the King It was the ancient Laws of the Nation In no Case else Imagination or Compassing without an Actual Effect of it was punishable by our Law Nihil officit Conatus nisi sequatur Effectus that was the old Rule of Law But in the case of the King His Life was so pretious that the Intent was Treason by the Common Law and Declared Treason by this Statute The reason of it is this In the case of the Death of the King the Head of the Commonwealth that 's cut off and what a Trunk an inanimate Lump the Body is when the Head is gone you all know For the Life of a single man there 's the Life of the Offendor there 's some Recompence Life for Life But for the Death of the King what Recompence can be made This Compassing and Imagining the cutting off the Head of the King is known by some Overt-Act Treason it is in the wicked Imagination though not Treason Apparent but when this Poison swells out of the Heart and breaks forth into Action in that case it 's High-Treason Then what is an Imagination or Compassing of the King's Death Truly it is any thing which shews what the Imagination is Words in many cases are Evidences of this Imagination they are Evidences of the Heart Secondly As Words so if a man if two men do conspire to Levy War against the King and by the way what I say of the King is as well of the King dead as living for if a Treason be committed in the Life of one King it is a Treason and punishable in the Time of the Successor Then I say in case not only of Words but if they conspire to Levy War against the King there 's another Branch of this Statute the Levying of War is Treason But if men shall go and consult together and this is to kill the King to put Him to Death this Consultation is clearly an Overt-Act to prove this Imagination or Compassing of the King's Death But what will you say then if men do not only go about to conspire and consult but take upon them to Judge Condemn nay put to Death the King Certainly this is so much beyond the Imagination and Compassing as 't is not only laying the Cockatrice's Egg but brooding upon it till it hath brought forth a Serpent I must deliver to you for plain and true Law That no Authority no single person no community of persons not the people Collectively or Representatively have any coercive power over the King of England And I do not speak mine own Sence but the words of the Laws unto you It was the Treason of the Spencers in King Edward the Second's Time in Calvin's case second Report The Spencers had an opinion that all Homage and Allegiance was due to the King by reason of the Crown as they called it And thereupon say the Books and Records they drew out this execrable Inference among others That if the King did not demean himself according to Right because he could not be reformed by Law he might per aspertee that is by sharp Imprisonment but this was adjudged horrid Treason by two Acts of Parliament Gentlemen Let me tell you what our Law-books say for there 's the Ground out of which and the Statutes together we must draw all our Conclusions for matter of Government How do they Stile the King They call Him The Lieutenant of God and many other expressions in the Book of Primo Henrici Septimi Says that Book there The King is immediate from God and hath no Superior The Statutes say That the Crown of England is immediately subject to God and to no other Power The King says our Books He is not only Caput Populi the Head of the People but Caput Reipublicae the Head of the Commonwealth The three Estates And truly thus our Statutes speak very fully Common Experience tells you when we speak of the King and so the Statutes of Edward the Third we call the King Our Sovereign Lord the King Sovereign that is Supreme And when the Lords and Commons in Parliament apply themselves to the King they use this Expression Your Lords and Commons your faithful Subjects humbly beseech I do not speak any Words of my own but the Words of the Laws Look upon the Statute primo Jacobi there 's a Recognition that the Crown of England was lawfully descended on the King and His Progeny The Statute it self was read to which it is desired the Reader will be referred These are the Words of the Act. And this is not the first precedent for you shall find it primo Eli. cap. 3. They do acknowledge the Imperial Crown lawfully descended on the Queen the same Recognition with this Before that because we shall shew you we go upon Grounds of Law in what we say Stat. 24. Hen. 8. cap. 12. Whereas by sundry old authentick Histories and Chronicles it is manifestly declared and expressed that this Realm of England is an Empire and so hath been accepted in the world governed by one Supreme Head and King having the Dignity and Royal Estate of the Imperial Crown of the same c. 25 Hen. 8. c. 21. there it is the people speaking of themselves That they do recognize no Superiour under God but only the King's Grace Gentlemen You see if the King be immediate under God he derives his Authority from no body else if the King have an Imperial Power if the King be Head of the Commonwealth Head of the body Politick if the body Politick own him obedience truly I think it is an undenied consequence He must needs be Superiour over them Gentlemen This is no new thing to talk of an Emperour or an Imperial Crown Do not mistake me all this while It is one thing to have an Imperial Crown and another
out of a few persons that makes a Parliament We see as before so still it is your course to blow the Trumpet of Sedition Did you ever hear or can you produce instances of an Act of Parliament made by the House of Commons alone though this was not the House of Commons as you heard before Ca. Neither was there ever such a War or such a precedent Court Nor we hope never will be Pray remember you were returned to serve in the House what was that Writ that summon'd your appearance You had no manner of ground in the world to go that way that you did Coun. We pray that the Prisoner at the Bar give us pationce a little to repeat that to him which your Lordships have been so often troubled with declaring this is not the first or second time that in this publique Assembly it hath been said That neither the Lords nor the Commons jointly nor severally have any power at all to proceed upon the Person of the King That it is not in their power to condemn any man in England without the good pleasure of the King much less the King himself and that this is the great Liberty of the people of England that it should be so and it was the first breach and invasion of our Liberty that that first Parliament made and which you justifie in the name of the Lord. In this case to throw us upon Debates of the War and to talk here of the causes and reasons of that quarrel which ended in such a Tragedie For this person to come here with this confidence and to justifie it but that he knows he cannot be in a worse condition one would wonder it should fall from any man that hath any regard of himself it is all one to them that perish whether they fall by one sin or multitudes He makes no scruple to multiply Treasons I do beseech your Lordship he may not offer as he hath begun but that the Jury may proceed Court All the Court are of the same opinion not to hear any thing like the former Discourses Ca. I desire I may be heard I have not compassed the Death of the late King contrived the death of the King what I did I did by Authority Court This is not to be heard You have heard what hath bin said to you There could be no such Authority neither was nor could be but you would by a wyre-lace bring it in by this You have confessed the Fact which must be left to the Jury L. Ansley I think you were present in the House of Commons when that Vote passed for agreement with the King in the Treaty at the Isle of Wight You know the King having condescended to most of the desires of This Parliament there was a debate in the House and a conclusion that they were grounds for peace You know the Lords and Commons did resolve to agree with their King when that was done that would not satisfie you and other Members of the House Then you go and contrive new ways you contrive a new fashioned Parliament the driving away many Members by power which you could not do by the Law of the Land Nay the Parliament had Declared against that which you pretend is by Authority is no Authority for a few of you set up an Arbitrary Parliament of a few of your selves when you had driven away the rest This kind of Parliament gives you the Authority you pretend to You were saying that the Parliament was called at first the Lords and Commons by the King according to the ancient Constitutions of the Laws Did such a Parliament give you such Authority as you pretend to and Act of Parliament as you call it which was but an Order of some of the Commons and but a few of them you can have no manner of Justification and therefore your Plea must be over-ruled as yesterday it was in the like Case You are indicted upon a cleer Act of Parliament of 25. Edw. 3. and you defend your self upon pretence of an Act of Parliament which hath been over-ruled as no Act. Ca. I am a stranger to many of these things which you have offered and this is strange You give evidence sitting as a Judge L. Ch. Bar. You are mistaken it is not Evidence he shews you what Authority that was an Authority of 26 Members How is this Evidence Mr. Carew if you have any thing more of Fact go on If you have nothing but according to this kind of discourse I am commanded to direct the Jury Ca. I am very willing to leave it with the Lord if you will stop me that I cannot open the true nature of those things that did give me ground of satisfaction in my Conscience that I did it from the Lord. Mr. Sol. I do pray for the honour of God and our King That he may not be suffered to go on in this manner You have been suffered to speak you have said but little only Sedition You pretend a Conscience and the fear of the Lord when all the world knows you did it against the Law of the Lord your own Conscience the light of Nature and the Laws of the Land against the Oaths you have taken of Allegiance and Supremacy Ca. Gentlemen of the Jury I say I shall leave it with you This Authority I speak of is right which was the supreme Power it is well known what they were Coun. It is so indeed many have known what they were L. Ch. Bar. Mr. Carew You have been heard what and beyond what was fit to say in your own defence that which you have said the heads of it you see the whole Court hath over-ruled To suffer you to expatiate against God and the King by Blasphemy is not to be endured it is suffering poison to go about to infect people but they know now too well the old saying In Nomine Domini In the Name of the Lord all mischiefs have been done that hath been an old Rule I must now give directions to the Jury L. Ch. Bar. Gentlemen of the Jury Ca. I have desired to speak the words of truth and soberness but have been hindered L. Ch. Bar. Gentlemen of the Jury You see the Prisoner here at the Bar hath been Indicted of Treason and this was for Compassing and Imagining the Death of our Soveraign Lord K. Charles the First of blessed Memory The Indictment sets forth several overt-Acts to prove this Imagination for otherwise it is secret in the heart the Fact it self the Treason it self is the Imagination of the heart The overt-Acts that are laid down in the Indictment to prove this That they did consult and meet together how to put the King to death That they did sit upon him And thirdly That they did sentence him to death and afterwards he died You heard what is proved against the Gentleman the Prisoner at the Bar by several Witnesses His own Confession That he signed the Warrant for Summoning and
nothing but indeed to make a new Government which is the highest Treason next to the Murthering of the King in the world To subvert the Laws and to make a few of the Commons nay if they had been the whole to make them to have the Legislative power Mr. Scot if you have any thing in extenuation of the Fact we shall hear you further we cannot L. Finch If you speak to this purpose again for my part I will profess my self I dare not hear further of it It is so poysonous blasphemous a doctrine contrary to the Laws if you go upon this point I shall and I hope my Lords will be of that opinion too desire the Jury may be directed Scot. I thought my Lord you would rather be my Councel it is not my single opinion I am not alone in this Case therefore I think I may justifie my self in it it was the Judgement of many of the Secluded Members to own us to be a Parliament Lord Annesley What you said last doth occasion my rising you seem to deliver my opinion who you know could never agree to what you have alledged truly I have been heartily sorry to hear the defence you have made to day because you know I have had Letters from you of another nature I was very confident to have heard you an humble Penitent this day instead of justifying your self As to that which you say of the Secluded Members owning you to be a Parliament they were so far from it that you know for how many years they lay under sufferings and obscurity because they could not acknowledge that an Authority which was not so You cannot forget the Declaration of both Houses that was published upon a Jealousie that the people had they would change the Government of King Lords and Commons It was far from their thoughts it was called in that Declaration A black scandal cast upon them This Declaration you know was by Order of both Houses affixed in all Churches of England that people might take notice what they held to be the Fundamental Government of this Kingdom King Lords and Commons After this for you to set up another Government and under them to act such things that one would think should hardly enter into the heart of any man You know very well all along they declared themselves faithful Subjects to the King and so would have lived and dyed and you might have had your share of the happiness of that peace if you could have had an Inclination to submit to that which both Houses had resolved when you and others could not bring your hearts to stoop to your Fellow Subjects when you could not submit to that equal rule to take your share with them When Pride carried some so high then was the beginning of your fall and others and none could expect other than what is now come to pass That they should come to that shame and sorrow that this day hath brought upon you I could have wished to have heard nothing but an humble confession of the fault that hath been clearly proved and no Justification of it You have sworn among others to preserve the Laws and People of the Kingdom but you drove away not only the House of Lords but most of the Commons and then to give the name of a Parliament to the Remainder this is a great aggravation of your Treason I think we of the Secluded Members could not have discharged our duty to God and the Kingdom if we had not then appeared in Parliament to have dissolved that Parliament and so by our joynt assent put an end to all your pretences which if we had not done we had not so soon come to our happiness nor you to your miseries Lo. Ch. Bar. The Court hath told you before their opinions in the thing and no further debate is to be allowed in this the Justification of it doth comprehend treason We our selves are not by Law to allow the hearing of it If you have nothing to say for your self I must give direction to the Jury Scot. I humbly crave leave to move the Jury that they bethink themselves and consider of it rather as a special Verdict than of a definitive one I think there is cause of a special Verdict Court If there was need of a special Verdict We are upon our Oaths I should give direction to the Jury What We do We do upon our Oaths and must answer it before God Almighty The Court hath delivered their opinions before that in this Case the Pretended Authority under which you did derive that Power which you did execute that it is no Authority it is void in Law it is a foundation if it were true of subverting all Laws and indeed of all Religion a Power that you assumed to your selves of Judging and Condemning your King that you would countenance such an Authority is a great aggravation of the fault They are Jugdes whether you did Imagine or Compass the Kings Death that is all the Jurors have to do Gentlemen of the Jury Scot. I would know what particular Law I have transgressed in this thing Court The Law of God and Man 25 Edw. 3. Scot. I humbly conceive that reaches not to this Case Court To satisfie you in that the very words of the Statute are If any man do Compass or Imagine the Kings Death it is Treason The Indictment is That you did Imagine and Compass the death of the King if the Fact be proved against you you are within the Statute Scot. You will not say the King shall be a Traytor if he shall Compass the death of the Queen Court The Queen is a Subject Scot. I am not yet convinced Lo. Ch. Bar. Gentlemen of the Jury Scot. I do plead and claim that I am within the Compass of several Pardons and desire Councel in that particular I do come within the Compass of his Majesties Pardon Lo. Ch. Bar. If you had not gone on to matter of Justification you might have been more heard to this of Pardon but after a Justification then to come for a Pardon which implies a confession of Guilt they are contradictory I must tell you we are now upon point of Law That Proclamation I doubt not but his Majesty will inviolably make good but we are not to judge of that it is nothing to a legal proceeding You are now in a Court of Law it is not to be pleaded in a Court of Law the Kings Pardon in Law must be under his Broad Seal How far you are under that Proclamation care will be taken and what is fitting to be done will be done but it is nothing in the matter of the Charge to this Jury Scot. I desire Councel touching the Statute of 25 Edw. 3. Court You should have done it before you had confessed the Fact Scot. I may do it in Arrest of Judgement Lo. Ch. Bar. Mr. Scot for that of the Kings Proclamation if you be within the benefit and
demand that wicked Judgment before the Court pronounced it and he was the man that did against his own Conscience after he had acknowledged that he was a wise and gracious King yet says he That he must dye and Monarchy with him there in truth was the Treason and the cause of that fatal blow that fell upon the King This was his part to carry on how he did it as a wicked Counsellor we shall prove to you and the wages and reward of the Iniquity that he did receive James Nutley Sworn Councel Pray tell the Circumstances of the Prisoners Proceedings at Westminster Hall when he did exhibite a Charge against the King Mr. Nutley My Lords the first day of bringing his Majesty to his Tryal was Saturday Jan. 20. 1648. Before they sate in publick they that were of the Committee of that which they called the High Court of Justice did meet in the Painted Chamber which was in the forenoon of that day Being there I did observe that there was one Price a Scrivener that was writing of a Charge I stood at a great distance and saw him write and I saw this Gentleman the Prisoner at the Bar near thereabouts where it was writing I think it was at the Court of Wards This charge afterwards a Parchment writing I did see in the hands of this Gentleman the Prisoner at the Bar. A very little after that they called their names they did adjourn from the Painted Chamber into Westminster Hall the great Hall The Method that they observed the first thing was to call the Commissioners by name in the Act the pretended Act for trying the King was read that is when the Court was sat the Commissioners were called by their names and as I remember they stood up as their names were called The next thing was reading the Act for the trying of his late Majesty After that was read then this Gentleman the Prisoner at the Bar presented the Parchment Writing which was called the Impeachment or Charge against his Majesty Mr. Bradshaw was then President of that Court and so called Lord President he commanded that the Prisoner should be sent for saying Serjeant Dendy send for your Prisoner thereupon the King was brought up as a Prisoner and put within a Bar And when the Court was silenced and settled this Gentleman the Prisoner at the Bar did deliver the Charge the Impeachment to the Court and it was read The King was demanded to plead to it presently Here I should first tell you that upon the Kings first coming in there was a kind of a Speech made by Mr. Bradshaw to the King in this manner I â—hink I shall repeat the very words Charles Stuart King of England the Commons of England assembled in Parliament taking notice of the effusion of blood in the Land which is fixed on you as the Author of it and whereof you are guilty have resolved to bring you to a tryal and Judgment and for this cause this Tribunal is erected There was little reverence given to his Majesty then which I was troubled at he added this further That there was a charge to be exhibited against him by the Solicitor General I think this Gentleman was so called at that time and he called to him to exhibit the Charge and this Gentleman the Prisoner at the Bar did deliver an Impeachment a Parchment writing which was called a Charge against the King at that time which was received and read against him Coun. Did you ever see the Charge which was now shewn to Mr. Nutley Mr. Nut. My Lords I do believe that this is the very Charge I am confident it is the same writing I have often seen him write and by the Character of his hand this is the same Council Go on with your story Mr. Nut. My Lords immediately upon the delivery of this Charge of Impeachment which was delivered in the Kings presence after it was read the King was demanded to give an answer to it His Majesty desired to speak something before he did answer to the pretended Impeachment for so his Majesty was pleased to call it He did use words to this purpose saith he I do wonder for what cause you do convene me here before you he looked about him saith he I see no Lords here where are the Lords upon this Mr. Bradshaw the President for so he was called did interrupt his Majesty and told him Sir saith he you must attend the business of the Court to that purpose you are brought hither and you must give a positive answer to the Charge saith the King you will hear me to speak I have something to say before I answer after much ado he was permitted to go on in the discourse he was in so far as they pleased His Majesty said I was in the Isle of Wight and there I was treated with by divers honourable persons Lords and Commons a treaty of peace between me and my people the treaty was so far proceeded in that it was near a perfection truly saith he I must needs say they treated with me honourably and uprightly and when the business was come almost to an end then saith he was I hurried away from them hither I know not by what Authority now I desire to know by what Authority I was called to this place that is the first question I shall ask you before I answer the charge It was told him by Mr. Bradshaw the President that the Authority that called him hither was a lawful Authority he asked him what Authority it was the second time it was answered him by the President that it was the Authority of the Commons of England assembled in Parliament which he affirmed then to be the Supream Authority of this Nation the King said I do not acknowledge its Authority Authority if taken in the best sense it must be of necessity understood to be lawful therefore I cannot assent to that I am under a Power but not under an Authority and there are many unlawful Powers a Power that is on the high way I think I am under a Power but not under an Authority you cannot judge me by the Laws of the land nor the meanest Subject I wonder you will take the boldness to impeach me your lawful King To this purpose his Majesty was pleased to express himself at that time with more words to that purpose The King went on to further discourse concerning the Jurisdiction of the Court Bradshaw the President was pleased to interrupt him and told him several times that he trifled out the Courts time and they ought not to indure to have their Jurisdiction so much as questioned Court Pray go on Mr. Nutly This Gentleman at the Bar I did hear him demand the Kings answer several times a positive answer was required of the King the K. often desired to be heard and he interrupted him again and again several times and at length it was pray'd that the charge that was exhibited against him
the Bar concerning the Trial of his late Majesty Mr. Starkey My Lords this Gentleman now Prisoner and my self have been acquainted a great while being of the same Society of Grayes-Inne and truly my Lord I confess I owe all my knowledge in the Laws to that Gentleman when 〈◊〉 came first he was accused for debt and was pleased to do me and several other Gentlemen now and then the favour to reason the Law with us and assist us in the beginning of the long Parliament that is to give you an accompt of his being indebted he did desire I would do my endeavour to get his Protection Near the time of the Kings Trial there was a Gentleman with my self one Samuel Palmer of Grays-Inne which frequented his Company had several nights the opportunity of understanding the affairs at Westmin and truly he himself did seem to us to count that a very ridiculous Council I remember what he said one night I think they are all mad which was within two or three days before the Kings tryal and instanced how a Fellow cryed out to the Lord Fairfax that if he did not consent to the proceedings he would kill Christ and him After that I did not think he did go to this Council for imployment but out of curiosity when the King came to Tryal we heard that Mr. Cook was the person that was Solicitor and Acted that part that you have heard of and that during that Tryal whether the second or third day I cannot say that certainly Mr. Cook came to Grays-Inne that evening about Ten or Eleven of the clock at might only upon some particular occasion as he said I being walking in the Court in the walk before my Chamber with another Gentleman I did see him pass out of a house to go back again I thought it was he called after him Mr. Cook said I upon that he turned back and met me I took him by the hand said I I hear you are up to the ears in this business no saith he I am serving the people truly said I I believe there is a thousand to one will not give you thanks said I I hear you charge the King for the levying war against the Parliament how can you rationally do this when you have pulled out the Parliament to make way to his Trial he answered me you will see strange things and you must wait upon God I did ask him but first he said this of himself said he he was as gracious and wise a Prince as any was in the world which made me reflect upon him again and asked how he could press those things as I have heard what answer he made to that I cannot tell I did by the way inquire what he thought concerning the King whether he must suffer or no he told me he must die and Monarchy must die with him Cook Whether was this after or before the Sentence Mr. Starkey It was before the Sentence for it was either the second or third Trial or rather in some interim of time before the Sentence for there was an adjournment for a day or two but I am sure it was before the Sentence Court Mr. Cook they have concluded their Evidence plead for your self what you think fitting Cook My Lord I have been a Prisoner three months I humbly desire to acknowledge his Majesties and his Councils favour that I was not put into a Jeremy's Prison but in the Tower and not in Irons I give your Lordships humble thanks for that and truly considering the nature of the Charge had it been in some other Kingdom they would have served us as Iohn Baptist in prison I thank you that I have a fair Trial with the Judges of the Law who are upon their Oaths to do equal right and justice between our Soveraign Lord the King and every Prisoner concerning matters of life and death and likewise those Noble Lords that though they are not put upon their Oaths but upon their honour if they know any Law to preserve my life I trust they will rather save than destroy My Lords I do therefore say as Paul said my plea is much of that nature against the Law and against Caesar I hope I have not offended at all and so I have pleaded not guilty The learned Council have examined several witnesses against me and I humbly conceive that the matter will rest in a very narrow compass the substance of the Charge so far as my memory will serve doth rest in these three things the other being but matter of form That I with others should propound consult contrive and imagine the Death of the late King Secondly That to the perfecting and bringing about this wicked and horrid conspiracy that I with others did assume a Power and Authority as I remember power I am sure then to kill and murther the King thirdly That there was a person unknown that did cut off the Kings head and that we were abetting aiding assisting countenancing and procuring the person or words to that effect against the form of the Statutes and so forth I hâ—ve twelve poor words to offer for my self in this business wherein if I do not answer every thing that hath been particularly objected I hope you will give me leave afterwards to offer it First I humbly propound this that if it was not made appear to your Lordships that I did ever propound consult advise contrive attempt or any way plot or counsel the death of His Majestie then I hope I cannot be found guilty within the Statute of 25. Edward the third for the naked truth Mr. Nutly hath in a great part spoke to I was appointed upon the tenth of January 1648. for to give my advice concerning a Charge there having been upon the ninth a Proclamation for the Trial and upon the tenth Mr. Steel Dr. Dorislaus and Mr. Ask and my self were appointed and ordered to be of Council to draw up a Charge Here I have the order attested by Mr. Jessop and pray it may be read Court They do admit the thing that you were so assigned Cook Then I humbly conceive that that cannot be said to be done maliciously or advisedly or with any wicked intention in me which I was required and commanded to do Acting only within my Sphere and Element as a Counsellour no otherwise The next thing is this my L. that by Law words will not amount unto Treason we usually say that words may declare an Heretick but not a Traytor there were some Statutes formerly 1 Ed. 6. were words are made Treason but they are all repealed by 1 Mariae that nothing shall be Treason but what is expressed in 25 Ed. 3. this Objection will seem to lye that these were words put in writing and that I humbly conceive to be the greatest matter objected to which I answer 1. Whether there be any full certain clear proof that that is my hand to the Charge I must leave to you two or three
equitie of the Act. They had not all the Authority at that time they were a few of the people that did it they had some part of the Army with them the Lords were not dissolved then when they had adjourned some time they did sit afterwards so that all the particulars you alledge are against you The last thing was this you say that it having pleased God to restore the King Judgement should be given for example for terrour to others that this could not be drawn into example again why because by the blessing of God peace was restored no probability that if your life was spared that it would be drawn again into example this is the weakest thing you have urged you must know the reason there are two things there is the punishment and example punishment goes to the prisoner but example to the documents of all others God knows what such things may be in after ages if there should be impunity for them it would rather make men impudent and confident afterwards if you have any more to say I will hear you if not I must conclude to the Jury You hear the evidence is clear for compassing and imagining the Death of the King you have heard what he has said and what he hath done he has within and examined Witnesses against the King that he was by at the drawing of the charge where it was drawn you hear he exhibited this charge in the name of the Commons assembled in Parliament and the good people of England and what this charge is it is high Treason and other high misdemeanors you find that he does complain of delays dosagain and again speak of this Charge desire it may be taken pro confesso in the close of all it was not so much he as innocent blood that demanded Justice this was more than was dictated to him You have heard the Witnesses he was perswaded to forbear acknowledged the King to be a gracious and wise King The Oaths alledged against him and you have heard his excuse I have nothing to say more I shall be very willing to hear you further I have not absolutely directed the Jury Cook I do humbly acknowledge your patience in hearing me and that your Lordships have truly and justly stated both proofs and my answer If your Lordships are pleased to lay aside these Acts or Orders or Authority whereby I did at that time truly conscientiously act and did think that it would bear me out if you lay aside that and look upon it as so many men got together without authority and aswell those that were instrumental though not sentencers or signers and that clause in the Act I confess I humbly make bold to say I have not received satisfaction in my judgment those very words of not so much I as the innocent blood cries for justice were dictated to me there was nothing at all left to me because his Majesty did not plead there was no Tryal that which I did was according to the best though it may be according to the weakest part of my judgment I have no new matter L. Ch. Bar. You have said no new matter unless it be worse than before for now you warrant that Authority Cook Do not mistake me my Lord I mean so far as to excuse me in the point of High Treason L. C. B. We delivered our opinions as to that formerly we were of opinion that the acting by colour of that pretended authority was so far from any extenuation that it was an aggravation of the thing the meeting by that authoty was Treason and in them that acted under them and approving of it the making of that trayterous pretended Act making the Proclamation sitting upon it they were all so many Treasons That was the reason why that was urged against you assuming upon you the power that was you approving of their power by acting under them so that there is nothing more to be said Gentlemen of the Jury you have heard the indictment was for compassing and imagining the death of the King you have heard the several Overt acts repeated and whether these are guilty of Treason to deliver in a charge against the K. such a one as that was in these words as against a Traytor Tyrant Murderer and implacable enemy to the Commonwealth in these very words to desire Judgement against the Prisoner then the King at the Bar angry at delayes to desire that the Charge might be taken pro confesso to have it expresly again again to demand Judgement if these be not Overt acts of compassing and imagining the Death of the King that which hath been said by the Witnesses it must be left to you I think you need not go from the Bar. Jury went together Silence is commanded Clerk Are you agreed of your Verdict Jury Yes Clerk Who shall speak for you Jury The Fore-man Clerk John Cook hold up thy hand look upon the Prisoner at the Bar how say you is he guilty of the Treason in manner form as he stands indicted or not guilty Fore-man Guilty Clerk Look to him Keeper Clerk What Goods and Chattells Jury None that we know of The Tryal of Hugh Peters the same 13. of October and at the same Bar. Clerk of the Crown SET Hugh Peters to the Bar he was brought accordingly H. P. Hold up thy hand thou standest indicted c. If you will challenge any of the Jury you must challenge them when they come to the book before they are sworn L. Ch. Bar. Mr. Peters You may challenge to the number of 35 peremptiorily but beyond that you cannot without good cause shewn and you may have Pen Ink and Paper Peters My Lord I shall challenge none Jury sworn 12. Sir Jer. Whitch James Hally Christo Abdy Nich. Rainton Rich. Cheyney Jo. Smith Rich. Abell George Terry Charl. Pickern Jo. Nichol. Fran. Dorrington Anthony Hall Cler. Hugh Peters hold up thy hand Look on the Prisoner you that are sworn c. Sir Ed. Turner to the Jury You have often heard repeated to you that the substantial part of the charge is the compassing and imagining the death of the King and all the rest will be but evidence to prove that imagination against the Prisoner at the Bar whom we will prove to be a principal actor in this sad Tragedy and next to him whom God hath taken away and reserved to his own Judgment and we shall endeavour to prove That he was a chief Conspirator with Cromwell at serveral times and in several places and that it was designed by them We shall prove that he was the principal person to procure the Souldiery to cry out Justice Justice or assist or desire those for the taking away the life of the King He did make use of his profession wherein he should have been the Minister of peace to make himself a Trumpeter of war of Treason and Sedition in the Kingdom He preached many Sermons to the Souldiery in direct
Whitehall there were some Cavaliers then in the Regiment it was my fortune I came into your Company I wish I never had you commanded more besides my self to be a Witness against the King and Justice Cook took my Examination you brought me in you commanded the Guards that time at Whitehall when the King was upon his Tryal Axtell What more Burden And you commanded Elisha Axtell with a file of Souldiers to take a Boat and go down to the common Hangman that liv'd beyond the Tower to execute the King he is now Shepards Serjeant in Ireland Axtell My Lord I desire to ask him a question he was pleased to say I desired him to be a Witness Bur. Yes Axtell Where was it Burden In the Court at Whitehall Axtell My Lord I have seen the printed List of Witnesses against the King and in that list you shall find no such Name Burden I have been a Prisoner in Dublin by your means Axtell My Lord I hope you will take notice of that Councel Burden do you remember any of his commands to Web to draw up in the Banqueting-house Bur. He commanded Web to draw up in the Banqueting-house during the time of Execution his own company I was one of his own company then Coun. In order to what Bur. For Execution Axtell My Lord is Web here Bur. He is in Dublin Axt. I wish he were here Edward Cook sworn Cook And it please your Honour my Lord the last day of the Tryal of his Majesty I came into Westminster-hall coming where the Court was I did see Col. Axtell the Prisoner at the Bar there with some Musquetiers Coun. What day was this Cook The last day of his Majesties Tryal L. ch Bar. Go on Sir Cook Standing there a little while his Majesty came guarded with some Halberteers when he came by the Souldiers that stood with Col. Axtell his Majesty bowed and afterwards put off his Hat and went up to the Court I could not know what Bradshaw said to him I stood below I heard him say he was brought by the consent of the Commons and people of England there stood a Lady above in a Gallery crying out it is a lye where are the people or their consents Cromwel is a Traytor whereupon Col. Axtell standing by saith he what Drab is that that disturbs the Court come down or I will fetch you down Mr. Nelson sworn Coun. Tell my Lords and Gentlemen of the Jury touching the Discourse between you and the Prisoner at the Bar in Dublin Nelson My Lords and Gentlemen of the Jury upon a Discourse with the prisoner at the Bar in Dublin 5 or 6 years since upon the platform in that Castle we discoursed of the late Kings having had several reports I desired to know of him who it was that Executed the King thinking he might inform me he was pleased to tell me this saith he the persons that were imployed in that service you know them as well as I do truly Sir not I said I I saw them in Vizards but not their Visage as I know of yes saith he you do know them it is true saith he my self and others were imployed in that affair in order to the Execution but there were several persons came and offered themselves out of a kind of Zeal to do the thing but we did not think it proper to imploy persons whom we did not know but we made choice of a couple of Stout persons pray let me hear their Names said I saith he it was Heulet and Walker I desired to know their reward Truly saith he I do not know whether 30 l. a piece or between them I said it was a small reward for a work of that Nature truly saith he that was all Axt. You named one man I did not hear the other named Nelson I named Heulet and Walker we was one that managed the Execution he told me so and it pleased you Sir Axtell He is pleased to say that in Ireland there was such conference was any body by Nelson No Sir Axt. Did I name any body to you Nel. You named those two persons Axt. Certainly I must invent them then for I had no more knowledg of them then any one here Nel. You told me you were one of them that had the managing of that Affair Councel My Lord we have done with our Evidence those particulars that were first opened to you have rendred the prisoner much a blacker person then we thought we leave him to his defence Axt. May it please your Lordships in the first place because I am ignorant in the Laws I desire to know upon what Statute this indictment is grounded L. ch B. It is grounded upon the statute of the 25th of Edward the Third Axt. My Lords I must acknowledg my ignorance of the Laws being a thing I never studied nor have the knowledg of but I have heard it is the duty of your Lordships and the Judges to be of Counsel for the Prisoner in things wherein he is ignorant in matters of law to make his just defence and therefore my Lord the Indictment it self being matter of law if your Lordships please not to grant me Counsel to speak to matrers of law I humbly pray that your Lordships will be pleased that for want of knowledg formalities punctilloes and niceties of the Law I might not undo my self I have heard by a learned Judg that though the Judg be of Counsel to the King yet by his Oath he is also to be Counsellor to the Prisoner and stands as a Mediator between the King and Prisoner and therefore my Lord I shall beg that humble favour that wherein I shall fall short to make the best improvement of my Plea in matter of law that your Lordships will help me and not take advantages against me as to the niceties formalities and punctilloes of the Law and my Lord this is a resemblance of that Great day where Christ will be Judg and will judg the secrets of all hearts and of all words and of all persons and by him all Actions are weighed knows all our hearts whether there be malice or how it stands in the frame of each heart before him in this place and therefore I hope there will be nothing by prejudging or any thing by precluding to be so black a person as it seemed to be said against me My Lords I must shorten the time and come to speak as to the Authority L. Ch. Bar. As to what Sir Axt. I speak as to the Authority by which or under which I acted I humbly conceive my Lord under favour that I am not within the compass of that Statute of the 25th of Edward the Third for that questionless must intend private persons Counselling Compassing or Imagining the death of the King But you know my Lords the War was first stated by the Lords and Commons the Parliament of England and by vertue of their Authority was forced to be raised and they pretended
were the subsequent overtacts to prove the same Axtell I hope you will not think it much to give me some more freedom for my own defence for life My Lord I must needs say though there was a force on the Parliament I am not to justifie it I was no Lawyer no Statesman no Councellor but a Souldier and if the General who had a Commission from the Lords and Commons and that some years before and after the King's Death be not guilty of Treason what I did was by command from my General and though I am charged with being in Arms in Westminster-hall and at such and such a place yet it was not a Voluntary Act for I was bound to obey my General I do humbly pray that I may have your Lordships Judgment in this point I must say it was from the sense of their exposition of the Law and of the Statutes and from the Authority that every one took up Arms for and served them and obeyed either the one General or the other I say it was under this very Authority and this must needs acquit me from all the guilt that is laid upon me L. ch Bar. You put your self upon the Judgment of the Court upon this which you call a point in Law First it is manifest that there is no excuse at all for Treason no man by his Commission can warrant the doing of an Act which is Treason you must take notice of the Authority whether it be good or no your Commission was not to put the King to Death but on the contrary to preserve the Kings life The Lords and Commons what they did we do not meddle with the Reason and Ground of what they did was the preservation of the Kings Person as well as the maintenance of the Laws and Liberties of this Nation they made Protestations Declarations and Oaths for the preservation of the King's Person and you could not but take notice of those things Now whereas you go about to shroud your self under the Lord Fairfax he had no such Power and therefore you can challenge no more then he had and to what you say concerning the Judgment of the Parliament there will be a great deal of difference between a particular Case and a Declaration of Lords and Commons there is nothing you have said that hath any thing of Force and God forbid you should make use of it But I must tell you you could not but notoriously know all those Transactions that were in the Army what the Army had done that they came up with Swords in their Hands and turn'd out whom they would you saw what the Lords and Commons had done that the Treaty was ready for his Birth And then you come up with your Mermidons with Force and Arms and Exclude the greatest part of the Members and then the Lords were laid aside it is true the Lords were not wholly dissolved but they would not suffer them to Sit nor Act at all and this was apparent to the Nation If men under colour and pretence of such things Namely that a few persons for so they were but an Eighth part of the House of Commons permitted to remain and of that Eighth part which was but 46 in the whole there were but 26 that Voted that Act which you say you obeyed but you say you obeyed the General you were not to obey the General in this Case for the Facts that you have committed are not charged as Acts of War you are not charged for bringing the Souldiers in but for those Violent Actions that you were guilty of there you made the Souldiers cry out Justice Justice Execution Execution you sent officiously for a Hang-man to come down to you your Commission gave you no power for this the Death of the King you know how it was designed you know the Act for the bringing in of that Commission as they call'd it to sit in justice was after the House of Commons was reduced to a very small Number and some of those dissenting too what you did Act under that Authority if you can justifie it in the Name of God say so but do not Engage the Nation in those things which they abhorred and by the mercy of God are laid asleep Mr. Justice Foster You begin at the wrong End you ought as all men ought to do First to answer the matter of Fact and not to put in these long dilatory Pleas till you have answered the matter of Fact whether those things charged on you be true or not then if you have any thing further to say for your self by way of excuse it will be the time to speak and not before Axt. May it please your Lordships I humbly conceive I am upon that method to the first part of the witness they accuse me for commanding my Souldiers in Westminster-hall then I must prove my Authority which I have been about to do and declared the Judgment of Parliament L. ch B. The Court have heard you with a great deal of patience and that which is not at all to the business Axtell I only refer this as to the Authority I humbly conceive you will give me leave to insist upon this and how far I may improve it for my own defence here is the Commission by which my Lord Fairfax acted and that after the King's Death and I acted by the same Authority he did I had not been at Westminster-hall but on the command of the General Court Doth that Commission Authorize you to cry Justice Justice and to look up and down to get Witnesses against the King is that in your Commission Axt. I am to serve and obey all my Superior Officers that is my Commission if I do not I die by the Law of War Court You are to obey them in their just commands all unjust commands are invalid If our Superiors should command us to undue and irregular things much more if to the committing of Treason we are in each Case to make use of our passive not active Obedience Axt. Under Favour it is not proved that I did either Compass or Imagine the King's Death that is matter of Fact Court Let us try that Axt. My Lord I did nothing but as a meer Souldier I had Authority from the General I would leave this before your Lordships and the Jury that what I have done hath been by Authority of the Genetal L. Hollis Sir a word to you If you could satisfie the Court that you had received a Commission from the General to do those things with which you stand charged it were something then were it proper for you to plead it and the Court to judg Pray take this along with you the General gave you no such command what you are charged with in the Indictment is for Compassing and Imagining the Death of the King and that by such and such overt acts as making your Souldiers cry out Justice and Execution for being active and forward in sending for the
I did it ignorantly not knowing what I did I shall not deny the matter of Fact but as to that I pleaded Not Guilty before it was in relation to that which I was ignorant of the Law of the Nation I have not been bred to it I humbly desire your Lordships to consider that what I did was done ignorantly not knowing the Law Counsel What was that Smith I do confess that I sat in the Court I do not remember that I signed or sealed both the Warrants being shewed him adds My Lord I confess the hands are like mine but whether they be so or no I know not Counsel Then we will prove it Is the Seal yours Smith I do not know Counsel Do you confess you were in the Painted Chamber the 29th of January Do you remember any thing of that Smith I do not certainly know that Counsel My Lord he hath said enough Shall the Jury doubt of that which he believes Smith I do not remember that I did write it Counsel My Lord we press it no farther he hath confessed enough Smith My Lord what I have don I beseech you consider I did it in ignorance not knowing the Law there were those about me that were able to call me who were then in Authority whom I dared not disobey if so I had been in danger also Counsel My Lords we have done be pleased to direct the Jury upon these several Evidences and Confessions Smith I beg one word I must declare this I can speak it seriously That from the first to the last of these unhappy Wars I have been a Man of trouble and sorrow I have been as many wiser Men have been run upon Error My Lord I know not what I have done I pray that this Court will be pleased to be a Mediator for me that I may have his Majesties favour and that this Petition may be received on my behalf He then delivered his Petition to the Court. I can rejoice for that happy settlement that is again in the Nations and declare chearfully my humble submission to that Government and desire the Lord will bless and prosper his Majesty and the Parliament in these Nations My Lord I rendred my self according to the Proclamation I shall say no more Lord Chief Baron Gentlemen you of the Jury These Prisoners that stand before you at the Bar that is Mr. Harvy Pennington Marten Millington Titchburn Roe Lilburn and Mr. Smith there are eight these are Persons who by the Act of Indempnity are to be tried for their Lives for the Treasons they have committed but no Execution is to be until the Parliament have further considered the Matter that is before us and you are to find the Matter of Fact What Mercy they shall find hereafter that is to be left as I told you to the consideration of the Parliament we are to proceed according to Law and Justice They are all Indicted for Compassing and Imagining the Death of our late Soveraign Lord Charles the First of most glorious memory And for that that hath been opened to you there are so many Overt Acts which are as so many Evidences to prove that Indictment which is the compassing and imagination of their Hearts to put the King to Death If any one of these be proved that is alone enough to prove the Indictment which is the compassing and imagining of the Heart that is the Treason the other are but Evidences If any thing burst forth from the Mouth or from the Hand as here it is these are Evidences of the imagination of the Heart for this you have heard by the confession of all of them that they did enough to find the Indictment they have all of them confessed their sitting upon the King in that traiterous Assembly which they called the High Court of Justice There is one of the Overt Acts expresly laid down in the Indictment they took upon them an Authority to consider how to put the King to death and that they did put the King to death but they were mistaken as some of them said that the actual murdering of the King was not their meaning But if they did that which tended towards it they are all guilty of Treason it is all one to you if they be guilty of any of these either Sitting Sentencing or Signing they are guilty and all of these except two are guilty of all these The Matter is clear and pregnant there is something hath been said by many of them with a great deal of expression of sorrow they did confess all but one the Fact and that which tended to their defence was ignorance but that doth not at all concern you It will be taken in its due time into consideration the several deportments of them all that is for another Judicature Your business is to find the Matter of Fact only this let me repeat unto you There is Mr. Harvy who hath pleaded several Matters which are not proper for you expressing his sorrow and penitence We shall not trouble you with that because they are for the consideration of another Court We ought all to have a tender compassion ought to be sorry with and for them that are sorrowful The like of Alderman Pennington Marten hath done that which looks forward more than backward I could wish with all my heart he had looked more backward that is to repentance of that which is past than obedience to that which is to come it is a trouble to repeat those things which he said himself and truly I hope in charity he meant better than his words were Millington he hath done the like with the rest confessed the Fact put himself upon Mercy wholly and said He was over-awed by the present Power This I repeat not as any thing to you who are to consider only Matter of Fact For Alderman Titchburn he hath spoken very fully and truly very conscienciously upon the whole Matter acknowledges his ignorance his sorrow his conviction in point of Conscience and I beseech God Almighty to incline his heart more and more to repentance They that crucified Christ to use his own words through ignorance found mercy Colonel Roe He confesses the same wholly and casts himself upon the King's Mercy and he thought it a blessed thing that the King was restored again and submitted wholly to mercy and so did Mr. Lilburn he said he went to his Chamber and mourned the day the King was beheaded I am very glad he had so early a sense of it William Smith He did it ignorantly he was not guilty thus far that was he was led on even like one silly Sheep that follows another by what relation I have heard of the Person at that time he was not thought fit to be of the Privy Council There is nothing more to say to you the Fact is confessed by them all It is so clear you need not go from the Bar. After a little consultation between the Jurors they returned to their places
how to reconcile that which hath been said before with this that comes after I leave it to you I am totally at a loss When those times were how impetuous the Soldiers how not a man that durst either disown them or speak against them I was threatned with my very life by the threats of one that hath received his reward I was induced to it Certainly my Lord it doth argue that there was not malice predommant Love and Hatred cannot be at the same time in one person Design my Lord what should be my design a poor ordinary mean man Surely my Lord I could not design any great matters or places I knew my self unfit I humbly beg you would give me leave to tell you a little what I got Mr. Sol. Gen. By your favour my Lord the Prisoners at the Bar may say what they will by way of extenuation but we expect that when they enter upon these Discourses they will save your Lordships time and ours by a publick confession and evidence of sorrow We cannot spend so long time to hear these long Discourses we will rather prove it against every man singly Downes I will trouble you no further I do acknowledge all I humbly submit and beg your favour and leave my self eupon my Countrymen the Jury and beg the King's mercy specially Pray spare me one word that you would hear but a Witness or two unto that business Counsel He doth confess he sate and signed we beleive he is sorrowful and against his Conscience he did sign and that he did it out of a fear and from a threat that he was over-awed so was the Hangman too but after he had apprehended this sorrow and declared his Judgment upon the fact he signed the Warrant Downes My Lord I do humbly beg his Majesties mercy I came in upon the Proclamation Vincent Potter My Lord my condition requires ease for my Body he had a fit of the Stone upon him at that same time I pray that the passing the Sentence for execution may be suspended L. Ch. B. The Execution must be suspended for you are within that Qualification Potter I desire only this I am not in a condition to declare what I know and would speak I am mighty ful of pain if I am under that Qualification let me rest under that Counsel Do you confess the Indictment or will you put us to prove it Potter I am one that came in L. Ch. B. It is thus with you whether or no did you sit sign or act in this High Court of Justice against the King Potter I will deny nothing I confess the fact but did not contrive it I am full of pain Lord Chief Baron According to the demerit of the Case in Law you must receive Judgment here but no execution of that Judgment shall be until the King by advice and consent of Lords and Commons shall order the execution of it you are to be tried now Do you confess you signed the Warrant for execution of the King Potter I do confess it my Lord. Counsel We do accept it Potter I beseech you let me go to ease my self Lord Chief Baron Officer set a Chair for him which was done Mr Potter sit down Aug. Garland May it please your Lordship I came here this day intending to have waved my plea and referred my self to this honourable Court to be recommended to the Kings mercy and the Parliament But hearing of some scandal upâ—â— me more then ever I did hear till within these few dayes I shall desire your favour in hearing of my Trial. Mr. Sol. Gen. My Lord he saith well for if he had confessed the Indictment we should not have accepted it Call the Witnesses Garland I do confess this I sate and at the day of Sentence signed the Warrant for Execution Mr. Sol. Gen. And we will prove that he spat in the Kings face Gar. I pray let me hear that Otherwise I would not have put you to any trouble at all Clench sworn Counsel Do you know the prisoner at the Bar Augustine Garland Clench I know him very well Counsel Tell my Lords and the Jury how you saw him behave himself to our Sovereign Lord the King when he was at the Bar. Clench I was that day at Westminstar-hall when the King had sentence they hurried the King down this Mr. Garland came down stairs by them towards the bottome of the stairs he spit in his face at a little distance Couns Do you believe he did it on purpose upon your oath Clench I suppose he did it somewhat suspiciously in that way I did see the King put his hand in his left pocket but I do not know whether the king wiped it off Mr. Sol. Gen. The King wiped it off but he will never wipe it off so long as he lives He hath confessed that he sate that he sentenced and that he signed We say he contrived it at the beginning and at last bid defiance to the King I shall desire he may be remembred in another place Garland I do not know that I was near him at that time I do not remember this passage I am afraid he is an Indigent person If I was guilty of this inhumanity I desire no favour from God Almighty L. Ch. B. I will tell you this doth not at all concern the Jury but this Circumstance possibly may be considered in another place Gar. I refer my self whether you be satisfied that I did such an Inhumane act I submit that to you I dare appeal to all these Gentlemen here looking upon the prisoners or any other whether they ever heard of it nor I was never accused for such a thing till a few dayes since but I wave my plea and refer my self to the Court Now my Lord this is the truth of my Case there is that honorable Gentleman the Speaker of the House of Commons knows I lived in Essex in the beginning of these troubles and I was inforced to forsake my habitation I came from thence to London where I have behaved my self fairly in my way Afterwards in 1648 I was chosen a member into the Parliament in June 1648 I came in a Member of the Parliament My Lord after the division of the House by the insolency of the Soldiery some came to me and desired me that I would go to the House I was then at my Chamber at Lincolns-Inne I forbore a Week and more said I I do not expect to be admitted for they look upon me as another person said they If you will go you shall have no contradiction I went and went in when I was in the first business that came was the business of Tryal of the King and it was put on me to be Chair-man for bringing in this Act for Tryal I did not know how to contradict that power or authority be it what it will but I must obey I fear my ruine will follow it in that respect my Lord when I came there I