King is acknowledged to have two capacities in him one a natural as he is descended of the Blood Royal of the Realm and the Body natural he hath in this capacity is of the creation of Almighty God and mortal The other is a politick capacity in respect of which he is a Body politick or mystical framed by the policy of man which is immortal and invisible To the King in both these capacities conjoyn'd Allegiance is due that is to say to the natural person of the King accompanied with his politick capacity or the politick appropriated to the natural The politick capacity of the King hath properly no body nor soul for it is framed by the policy of man In all Indictments of Treason when any one does intend the death and destruction of the King it must needs be understood of his natural body the other being immortal The Indictment therefore concludes contra Legiantiae suae debitum against the duty of his Allegiance so that Allegiance is due to the natural body Admitting then that thus by Law Allegiance is due to the King as before recited yet it is alwayes to be presumed that it is to the King in conjunction with the Parliament the Law and the Kingdom and not in disjunction from or opposition to them and that while a Parliament is in being and cannot be dissolved but by the Consent of the three Estates This is therefore that which makes the matter in question a new Case that never before happened in the Kingdom nor was possible to happen unless there had been a Parliament constituted as this was unsubjected to Adjournment Prorogation or Dissolution by the King's will Where such a power is granted and the co-ordinates thereupon disagree and fall out such effects and consequents as these that have happened will but too probably follow And if either the Law of Nature or England inform not in such case it will be impossible for the Subjects to know their duty when that Power and Command which ought to flow from three in conjunction comes to be exercised by all or either of them singly and apart or by two of them against one When new and never-heard-of Changes do fall out in the Kingdom it is not like that the known and written Laws of the Land should be the exact Rule but the Grounds and Rules of Justice contained and declared in the Law of Nature are and ought to be a Sanctuary in such cases even by the very Common Law of England For thence originally spring the unerring Rules that are set by the Divine and Eternal Law for Rule and Subjection in all States and Kingdoms In contemplation hereof as the Resolve of all the Judges it was agreed 1. That Allegiance is due to Soveraignty by the Law of Nature to wit that Law which God at the creation of Man infused into his heart for his preservation and direction the Law eternal Yet is it not this Law as it is in the heart of every individual man that is binding over many or legislative but as it is the Act of a Community or an Associated People by the right dictates and perswasions of the work of this Law in their hearts This appears in the Case of the Israelites Judg. 20 21 chapters cited in the 4th part of Cook 's Institutes where mention is made of a Parliament without a King that made War and that with their Brethren They met as one man to do it in vindication of that Justice unto which they were obliged even by the Law of Nature This is that which Chancellor Fortescue calls Political Power here in England by which as by the Ordinance of man in pursuance of the Ordinance of God the Regal Office constituted or the King 's Politick Capacity and becomes appropriated to his natural person Thus Politick Power is the immediate Efflux and Off-spring of the Law of Nature and may be called a part of it To this Hooker in his Ecclesiastical Polity agrees and Selden on that subject The Law of Nature thus considered is part of the Law of England as is evident by all the best received Law-Books Bracton Fleta Lambard upon the Saxon Laws and Fortescue in the praise of the Laws of England This is the Law that is before any judicial or municipal Law as the root and fountain whence these and all Government under God and his Law do flow This Politick Power as it is exercised in conjunction with and conformity to the Eternal Law partakes of its moral and immutable nature and cannot be changed by Act of Parliament Of this Law it is that Magna Charta and the Charter of Forest with other Statutes rehearsed in the Petition of Right are for the most part declaratory For they are not introductive of any new Law but confirmations of what was good in all Laws of England before This agrees with that Maxime Salus Populi suprema Lex that being made due and binding by this Law which in the Judgment of the Community declaring their mind by their own free chosen Delegates and Trustees in harmony with the Eternal Law appears profitable and necessary for the preservation and good of the whole Society This is the Law which is put forth by the common consent of the whole Realm in their Representative and according to the fundamental Constitutions of this Kingdom is that with which the Kings of this Land by the joynt co-operation of the three Estates do make and repeal Laws But through the disorders and divisions of the times these two Powers the Regal and Political which according to the Law of England make up but one and the same supream Authority fell assunder and found themselves in disjunction from and opposition to one another I do not say The question is now which of these is most rightly according to the principles of the Law of Nature and the Law of England to be adhered unto and obeyed but unto whether Power adherence is a crime in such an Exigent of State Which since it is such a new and extraordinary Case evidently above the Track of the ordinary Rules contained in the positive and municipal Laws of England there can be no colour to bring it within the Statute of 25. Ed. 3. cap. 2. forasmuch as all Statutes presuppose these two Powers Regal and Political in conjunction perfect unity and subserviency which this Case does not cannot admit So exceeding new and extraordinary a Case is it that it may be doubted whether and questioned how far any other Parliament but that Parliament it self that was privy to all its own Actings and Intentions can be an indifferent and competent Judge But however the point is of so abstruse and high consideration as no inferiour Court can or ought to judge of it as by Law-Books is most undeniable to wit Bracton and others This then being the true state of the Case and the spring of that Contest that ensued and received its decision by the late War
The next Consideration is how far I have had my share and part therein that by the Laws is not warrantable or by what appears in way of proof to the Jury For the first I shall crave leave to give you this account of my self who have best known my own mind and intentions throughout and would not now to save my life renounce the principles of that Righteous Cause which my conscience tells me was my duty to be faithful unto I do therefore humbly affirm That in the afore-mentioned great Changes and Revolutions from first to last I was never a first mover but alwayes a follower chusing rather to adhere to things than persons and where Authority was dark or dubious to do things justifiable by the Light and Law of Nature as that Law is acknowledged part of the Law of the Land things that are in se bona and such as according to the grounds and principles of the Common Law as well as the Statutes of this Land would warrant and indempnifie me in doing them For I have observed by Precedents of former times when there have arisen disputes about Titles to the Crown between Kings de facto and Kings de jure the People of this Realm wanted not directions for their safety and how to behave themselves within the duty and limits of Allegiance to the King and Kingdom in such difficult and dangerous seasons My Lord Cook is very clear in this point in his Chap. of Treason fol. 7. And if it were otherwise it were the hardest case that could be for the people of England For then they would be certainly exposed to punishment from those that are in possession of the supream power as Traitors if they do any thing against them or do not obey them and they would be punishable as Traitors by him that hath right and is King de jure in case they do obey the Kings de facto and so all the people of England are necessarily involved in Treasons either against the Powers de facto or de jure and may by the same reason be questioned for it as well as the Prisoner if the Act of Indempnity and the King's Pardon did not free them from it The security then and safety of all the People of England is by this means made to depend upon a Pardon which might have been granted or denied and not upon the sure foundations of Common Law an opinion sure which duly weighed and considered is very strange to say no more For I would gladly know that person in England of estate and fortune and of age that hath not counselled aided or abetted either by his person or estate and submitted to the Laws and Government of the Powers that then were and if so then by your Judgments upon me you condemn in effigies and by necessary consequence the whole Kingdom And if that be the Law and be now known to be so it is worth consideration whether if it had been generally known and understood before it might not have hindred his Majesties Restoration Besides although until this Judgement be passed upon me the people have apprehended themselves as free from question and out of danger by reason of the Act of Indempnity and General Pardon yet when it shall appear to them that such their safety is not grounded on the Common Law nor upon the Law of Nature but that against both these in their actions they are found faulty and tainted with a moral guilt and that as principals also since in Treason there are no Accessories what terrifying Reflexions must this needs stir up in the mind of every man that will be apt to believe his Turn will come next at least once in two years as hath befallen me in my pâ—rson who however I have been misjudged and misunderstood can truly affirm that in the whole series of my Actions that which I have had in my eye hath been to preserve the ancient well-constituted Government of England on its own basis and primitive righteous foundations most learnedly stated by Fortescue in his Book made in praise of the English Laws And I did account it the most likely means for the effecting of this to preserve it at least in its root whatever changes and alterations it might be exposed unto in its branches through the blustrous and stormy times that have passed over us This is no new doctrine in a Kingdom acquainted with Political Power as Fortescue shews ours is describing it to be in effect the Common Assent of the Realm the Will of the People or whole Body of the Kingdom represented in Parliament Nay though this Representation as hath fallen out be restrained for a season to the Commons House in their single actings into which as we have seen when by the inordinate fire of the times two of the three Estates have for a season been melted down they did but retire into their Root and were not hereby in their Right destroyed but rather preserved though as to their exercise laid for a while asleep till the season came of their Revival and Restoration And whatever were the intents and designs of others who are to give an account of their own actions It is sufficient for me that at a time critical and decisive though to my own hazard and ill usage I did declare my Refusal of the Oath of Abjuration which was intended to be taken by all the Members of Parliament in reference to Kingly Government and the Line of his now Majesty in particular This I not only positively refused to take but was an occasion of the second thoughts which the Parliament reassumed thereof till in a manner they came wholly at last to decline it a proof undeniable of the remoteness of any intentions or designs of mine as to the endeavouring any alteration or change in the Government and was that which gave such jealousie to many in the House that they were willing to take the first occasion to shew their dislike of me and to discharge me from sitting among them But to return to what I have before affirmed as to my being no leading or first Actor in any Change it is very apparent by my deportment at the time when that great Violation of Priviledges happened to the Parliament so as by force of Arms several Members thereof were debarred coming into the House and keeping their seats there This made me forbear to come to the Parliament for the space of ten weeks to wit from the third of Decemb. 1648 till towards the middle of February following or to meddle in any publick transactions And during that time the matter most obvious to exception in way of alteration of the Government did happen I can therefore truly say that as I had neither consent nor vote at first in the Resolutions of the Houses concerning the Non-Addresses to his late Majesty so neither had I in the least any consent in or approbation to his Death But on the contrary when required by
of the King's Authority and of his Kingdom against the personal Commands of the King opposed thereunto though accompanied with his presence is Treason or levying War against the King Such Interpretation is very far from the sense of that Statute and so much the Statute it self speaks beside the authority of Book-cases For if the clause of levying War had been meant only against the King's Person what need had there been thereof after the other branch in the same Statute of compassing the King's death which would necessarily have implied this And because the former doth imply this it seems not at all to be intended at least not chiefly in the latter branch but the levying War against his Laws and Authority and such a levying War though not against his Person is a levying War against the King whereas the levying of Force against his personal Commands though accompanied with his Presence and not against his Laws and Authority but in the maintenance thereof is no levying of War against the King but for him especially in a time of so many successive plots and designs of Force against the Parliament and Kingdom of probable Invasion from abroad and of so great distance and alienation of his Majesties affections from his Parliament and People and of the particular danger of the Place and Magazine of Hull of which the two Houses sitting are the most proper Judges In proclaiming Sir John Hotham Traitor they say The breach of the Priviledge of Parliament was very clear and the subversion of the Subjects common Right For though the Priviledges of Parliament extend not to these cases mentioned in the Declaration of Treason Felony and breach of the Peace so as to exempt the Members of Parliament from Punishment or from all manner of Process and Tryal yet it doth priviledge them in the way and method of their Tryal and Punishment and that the Parliament should first have the Cause brought before them that they may judge of the Fact and of the grounds of their Accusation and how far forth the manner of their Tryal may or may not concern the Priviledge of Parliament Otherwise under this pretext the Priviledge of Parliament in this matter may be so essentially broken as thereby the very Being of Parliaments may be destroyed Neither doth the sitting of a Parliament suspend all or any Law in maintaining that Law which upholds the Priviledge of Parliament which upholds the Parliament which upholds the Kingdom They further assert That in some sense they acknowledge the King to be the only person against whom Treason can be committed that is as he is King and that Treason which is against the Kingdom is more against the King than that which is against his Person because he is King For Treason is not Treason as it is against him as a man but as a man that is a King and as he hath and stands in that relation to the Kingdom entrusted with the Kingdom and discharging that Trust They also a vow That there can be no competent Judge of this or any the like case but a Parliament and do say that if the wicked Counsel about the King could master this Parliament by force they would hold up the same power to deprive us of all Parliaments which are the ground and pillar of the Subjects Liberty and that which only maketh England a free Monarchy The Orders of the two Houses carry in them Law for their limits and the Safety of the Land for their end This makes them not doubt but all his Majesties good Subjects will yeeld obedience to his Majesties Authority signified therein by both Houses of Parliament for whose encouragement and that they may know their Duty in matters of that nature and upon how sure a ground they go that follow the Judgement of Parliament for their guide They alledge the true meaning and ground of that Statute 11. Hen. 7. cap. 1. printed at large in his Majesties Message May 4 This Statute provides that none that shall attend upon the King and do him true service shall be attainted or forfeit any thing What was the scope of this Statute Answ To provide that men should not suffer as Traitors for serving the King in his Wars according to the duty of their Allegiance But if this had been all it had been a very needless and ridiculous Statute Was it then intended as they seem to make it that print it with his Majesties Message that those should be free from all crime and penalty that should follow the King and serve him in War in any case whatsoever whether it were for or against the Kingdom or the Laws thereof That cannot be for that could not stand with the duty of their Allegiance which in the beginning of this Statute is expressed to be to serve the King for the time being in his Wars for the defence of him and the Land If therefore it be against the Land as it must be if it be against the Parliament the Representative Body of the Kingdom it is a declining from the duty of Allegiance which this Statute supposes may be done though men should follow the Kings Person in the War Otherwise there had been no need of such a Proviso in the end of the Statute that none should take benefit thereby that should decline from their Allegiance That therefore which is the Principal Verb in this is the serving of the King for the time being which cannot be meant of a Perkin Warbeck or any that should call himself King but such a one as whatever his Title might prove either in himself or in his Ancestors should be received and acknowledged for such by the Kingdome the Consent whereof cannot be discern'd but by Parliament the Act whereof is the Act of the whole Kingdom by the personal Suffrage of the Peers and the Delegate Consent of the Commons of England Henry 7th therefore a wise Prince to clear this matter of contest happening between Kings de facto and Kings de jure procured this Statute to be made That none shall be accounted a Traitor for serving in his Wars the King for the time being that is him that is for the present allowed and received by the Parliament in behalf of the Kingdom And as it is truly suggested in the Preamble of the Statute It is not agreeable to reason or conscience that it should be otherwise seeing men should be put upon an impossibility of knowing their duty if the Judgment of the highest Court should not be a Rule to guide them And if the Judgment thereof is to be followed when the question is who is King much more when the question is what is the best service of the King and Kingdom Those therefore that shall guide themselves by the Judgment of Parliament ought what ever happen to be secure and free from all account and penalties upon the ground and equity of this Statute To make the Parliament countenancers of Treason they say is enough
a final Decision of the Controversie between his People and the Inhabitants of the earth by his own Judgement This is there called The Valley of Jehoshaphat in which the Lord will sit to Judge all his enemies round about In this Battel and great Decision of his Peoples Controversie he will cause his Mighty Ones to come down from Heaven to put in their sickle as reapers in this Vintage and Harvest when the wickedness is great Unto this Revel 14. 14 20. refers which doth plainly evidence that this grand Decision is to fall out in the very last of times and probably is that which will make way to the Rising of the Witnesses and will be accompanied with that Earthquake in which shall be slain of men seven thousand and the tenth part of the City will thereupon fall Rev. 11. It is expressed Joel 3. That in this day of the Lord wherein he will be near in the Valley of Decision the Heavens and the Earth shall shake by the Lords own roaring out of Sion and he himself will be the Harbour Hope and Strength of his People The Sun and Moon of earthly Churches and Thrones of Judicature that contest with them shall be darkened and the Stars even the choicest and most illuminated gifted Pastors Leaders in the earthly Jerusalem Churches with their most refined Forms of Worship resisting the power of true spiritual Godliness shall withdraw their shining Even their holy flesh will pass off from them and consume away upon their spiritual lewdness and confident opposing the Faith of Gods Elect Jer. 11. 17. Their very Eyes will consume away in their holes with which they say we see and for which Christ tells the Pharisees in like case that therefore ther sin remaineth John 9. 41. Or there remaineth no more benefit from Christ's Sacrifice for their sin and therefore onely a fearful looking for of the fiery and devouring indignation Heb. 10. 26 27. Here 's that the great confidence and boast of many professing Churches and eminent Pastors in the earthly Jerusalem Fabrick or House on the sand will come to Ezek. 13. and Mat. 7. Their very Eyes their high enlightenings and excellent spiritual Gifts their supernatural or infused humane Learning that 's admitted only as an adorning and accomplishment of the natural man unaccompanied with that Fire-Baptisme that 's performed by the unspeakable gift of the Spirit it self for the transforming of the natural man into spiritual even these Eyes becoming evil Mat. 6. 23. and this light opposing and preferring it self to the more excellent discerning and marvellous light in spiritual Believers are turned by the just Judgement of God into the greatest and most fatal blindness and darkness of all Their tongues also though the tongues of men and angels for excellency and dexterity of expressing what they see with the forementioned eyes will consume away in their mouth Zech. 14. 12. and leave them exposed to become and accordingly be dealt with as meer sounding brass and tinckling Cymbals 1 Cor. 12. 31. and 13. 1. giving no certain sound and right warning to the Battels of the Lord the good sight of Faith This comes to pass through their confidence in those attainments which may be and oft are turned into an Idol of jealousie and spiritual whoredom Ezek. 16. 1 15. All these considerations of Church and State put together afford great ground of enquiry as to the Condition of the times in which we live how far the face which they bear and which God hath put upon them in the course of his Providences for some years now past doth speak or signifie the near approach of any such extraordinary and signal appearance or day of Gods Judgement for the Decision of his own or his Peoples quarrel and controversie with the prophane Heathen that are round about them waiting for an advantage utterly and universally to remove and root them out from off the face of the whole earth That which hath been acted upon the Theater of these Nations amongst us in the true state of our Controversie seems to be reducible to this following Querie Whether the Representative Body of the Kingdom of England in Parliament assembled and in their Supream Power and Trust made indissolvable unless by their own Consent and free Vote and this by particular and express Statute have not had a just and righteous Cause A Quarrel more God's than their own 1. It may appear they had First from the Ground of their undertaking the War Was it not in their own and the Kingdoms just and necessary defence and for the maintaining of the publick Rights and Liberties of both 2. Secondly Was it not undertaken upon mutual Appeals of both Parties to God desiring him to judge between them to give the Decision and Issue by the Law of War when no other Law could be heard as the definitive Sentence in this Controversie from the Court of Heaven 3. Thirdly Pursuant to such Decision did they not recover and repossess the Kingdoms original and primitive freedom Did they not endeavour to conserve and secure it as due to them by the Law of God and of Nature For man was made in God's Image and all Adams Posterity are properly one Universal Kingdom on earth under the Rule and Government of the Son of God both as Creator and Redeemer By virtue of this original and primitive Freedom so recovered they were at their own choice whether to remain in and retain this their true freedom unresigned and unsubjected to the Will of any Man under the Rule of the Son of God and his Lawes or else to set up a King or any other Form of Government over them after the manner of other Nations In this latter case it is acknowledged that when a Common-wealth or People do choose their first King upon condition to obey him and his Successors Ruling justly they ought to remain subject to him according to the Law and tenor of the Fundamental Compact with him on whom they have transferred their Authority No Jurisdiction remaineth in them after that free and voluntary Act of theirs either to Judge the Realm or determine who is the true Successor otherwise than is by them reserved and stipulated by their Fundamental Laws and Constitutions of Government And though the righteousness of this Cause contained in the forementioned particulars be such as carries in it its own evidence yet as as things have fallen out it is come to be oppressed and buried in the grave of Malefactors in the room of which a contrary Judgement and Way is visibly owned upheld and intended to be prosecuted to the utmost for its own fast-rooting and establishment and this by the common Consent and Association of Multitudes What then remaines for the recovery and restitution of that good old Cause and Way but such a seasonable and signal appearance of God as aforesaid in the Valley of Jehoshaphat What but the taking things immediately into his own hands for administration
THE TRYAL OF Sir Henry Vane Kt. AT The KINGS BENCH Westminster June the 2d and 6th 1662. Together With what he intended to have Spoken the Day of his Sentence June 11. for Arrest of Judgment had he not been interrupted and over-ruled by the Court and his Bill of Exceptions With other Occasional SPEECHES c. Also his SPEECH and PRAYER c. on the Scaffold Printed in the Year 1662. The TRYAL of Sir Henry Vane Knight at the Kings Bench Westminster June the 2d and 6th 1662. READER THou shalt not be detained with any flourishing Preface 'T is true whether we consider the Person or Cause so much might pertinently be said as were the Pen of some ready Writer imployed therein a large Preamble might seem to need but a very short Apolâ—gy if any at all Yet by that time we have well weighed what this Sufferer hath said for himself and left behind him in writing it will appear that there needed not any tongue of the Learned to form up an Introduction thereunto but meerly the hand of a faithful Transcriber of his own Observations in defence of himself and his Cause Rest assured of this thou hast them here fully and clearly represented The necessity of this course for thy information as to the truth of his Case be pleased to consider on these following accounts He was much over-ruled diverted interrupted and cut short in his Plea as to a free and full delivery of his mind upon the whole matter at the Bar by the Judges of the Kings-Bench and by the Kings Counsel He was also denyed the benefit of any Counsel to speak on his behalf And what he did speak at the Bar and on the Scaffold was so disgustful to some that the Books of those that took Notes of what passed all along in both places were carefully called in and suppressed It is therefore altogether unpossible to give thee a full Narrative of all he said or was said to him either in Westminster-Hall or on Tower-Hill The Defendant foreseeing this did most carefully set down in writing the substance of what he intended to enlarge upon the three dayes of his appearance at the Kings-Bench Bar and the day of his Execution Monday June 2. 1662 was the day of his Arraignment Friday June 6. was the day of his Tryal and the Jurors Verdict Wednesday June 11. was the day of his Sentence Saturday June 14. was the day of his Execution on Tower-Hill where limitations were put upon him and the interruptions of him by many hard speeches and disturbing carriages of some that compassed him about upon the Scaffold as also by the sounding of Trumpets in his face to prevent his being heard had many eye and ear witnesses Vpon these considerations I doubt not it will appear undispensably necessary to have given this faithful Transcript of such Papers of his as do contain the most substantial and pleadable grounds of his publick actings any time this twenty years and more as the only means left of giving any tolerable account of the whole matter to thy satisfaction Yet such Information as could be picked up from those that did preserve any Notes taken in Court or at the Scaffold are here also recorded for thy use and that faithfully word for word Chancellor Fortescue doth right worthily commend the Laws of England as the best now extant and in force in any Nation of the world affording if duely administred just outward liberty to the People and securing the meanest from any oppressive and injurious practices of Superiours against them They give also that just Prerogative to Princes that is convenient or truly useful and advantagious for them to have that is to say such as doth not enterfere with the Peoples just Rights the intire and most wary preservation of which as it is the Covenant-duty of the Prince so is it his best security and greatest honour 'T is safer and better for him to be loved and rightly feared by free Subjects than to be feared and hated by injured slaves The main fundamental Liberties of the free People of England are summed up and comprehended in the 29th Chapter of Magna Charta These be the words No freeman shall be taken or imprisoned or be disseized of his Freehold or Liberties or free-customs or be out-lawed or exiled or any otherwise destroyed Nor will we pass upon him or condemn him but by lawful Judgement of his Peers or by the Law of the Land We will sell to no man we will not deny or defer to any man either Justice or Right Lord Chief Justice Cook observes here nine famous branches of the Law of England couched in this short Chapter and discourses upon them to good purpose He saith also that from this Chapter as out of a root many fruitful branches of the Law of England have sprung As for the very leading injury to other wrongings of the Subject to wit the restraint or imprisonment of his person so curious and tender is the Law in this point that sayes Cook no man is to be attached arrested taken or restrained of his liberty by petition or suggestion to the King or to his Council unless it be by Indictment or Presentment of good and lawful men of the neighbourhood where such deeds be done This great Charter of Englands Liberties made 9 Hen. 3. and set in the front of all succeeding Statute-Laws or Acts of Parliament as the Standard Touch-stone or Jury for them to be tryed by hath been ratified by about two and thirty Parliaments and the Petition of Right 3. Caroli The two most famous Ratifications hereof entituled Confirmationes Chartarum Articuli super Chartas were made 25 and 28 of Edw. 1. All this stir about the great Charter some conceive very needless seeing that therein are contained those fundamental Laws or Liberties of the Nation which are so undeniably consonant to the Law of Nature or Light of Reason that Parliaments themselves ought not to abrogate but preserve them Even Parliaments may seem to be bounded in their Legislative Power and Jurisdiction by divine Equity and Reason which is an eternal and therefore unalterable Law Hence is it that an Act of Parliament that is evidently against common Right or Reason is null and void in it self without more ado Suppose a Parliament by their Act should constitute a man Judge in his own cause give him a meer Arbitrary power such Act would be in it self void This is declared to be the ground of that exemplary Justice done upon Empson and Dudley as acting contrary to the Peoples Liberties in Magna Charta whose Case is very memorable in this point For though they gratified Hen. 7th in what they did and had an Act of Parliament for their Warrant made the 11th of his Reign yet met they with their due reward from the hands of Justice that Act being against Equity and common Reason and so no justifiable ground or apology for those infinit Abuses and
Oppressions of the People they were found guilty of The Statute under colour whereof they acted ran to this effect Be it enacted that the Justices of the Assizes and Justices of the Peace upon Information for the King before them to be made have full power and authority by their discretion to hear and determine all offences and contempts Having this ground they proceeded against the People upon meer Information in the execution of Penal Laws without any Indictment or Presentment by good and lawful men but only by their own Promoters or Informers contrary to the 29th of Magna Charta which requires That no free-man be proceeded against but by lawful Judgment of his Peers or by the Law of the Land Secondly This Act allowed them to hear and determine arbitrarily by their own discretion which is not according to the Law and Custom of England And Cook sayes 't is the worst and most aggravated oppression of all that is done under the colour of Law or disguise of Justice Such a Statute or Act of Parliament is not only against the light of Reason but against the express letter of unrepealed Statute-Law 42. Edw. 3. 1. It is assented and accorded That the great Charter and the Charter of Forest be holden and kept in all points and if any Statute be made to the contrary that shall be holden for none This also is consonant to the first chapter of the great Charter it self made 9. Hen. 3. We have granted to all the free-men of our Realm these Liberties under-written to have and to hold to them and their heirs of Us and our Heirs for ever But what if this great Charter it self had never been made had England been to seek for righteous Laws and just Liberties nothing lesse The same Liberties and Laws were ratified before that in the great Charter made the seventeenth year of King John and mentioned among others by Matthew Paris And to what yet amounted the matter of all these Grants but what the Kings themselves were bound before to observe by their Coronation Oaths as the antient fundamental Laws or Customs of this Land This we may find in Mr. Lambard's Translation of the Saxon Laws from the time of King Ina who began anno 712 to Hen. 1. who began 1100. Amongst the Saxons King Alfred is reputed the most famous and learned Compiler of our Laws which were still handed along from one King to another as the unalterable Customs of the Kingdom In the 17th chapter of Edward the Confessor's Laws The mention of the duty of a King which if not performed nec nomen Regis in eo constabit is remarkable And Mr. Lambard tells us that even William the Conqueror did ratifie and observe the same Laws that his kinsman Edward the Confessor did as obliged by his Coronation Oath So then neither the great Charter in King John's time nor that of 9. Hen. 3. were properly a new Body of Law but a Declaration of the antient fundamental Laws Rights and Liberties of this Nation in Brittish Saxon Danish and Norman times before This Cook in his Proem to the second part of his Institutes observes where he notes also that this Charter is not called great for quantity of words a sheet of Paper will contain it but for the great importance and weight of its matter Through the advice of Hubert de Burgo Chief Justice of England Edward the first in the eleventh year of his Reign did in a Council held at Oxford unjustly cancel this great Charter and that of Forest Hubert therefore was justly sentenc'd according to Law by his Peers in open Parliament Then 25 Ed. 1. The Statute called Confirmationes Charrarum was made in the first chapter whereof the Mag. Charta is peculiarly called the Common Law 25. Ed. 1. cap. 2. Any Judgment given contrary to the said Charter is to be undone and holden for naught And cap. 4. Any that by word deed or counsel go contrary to the said Charter are to be excommunicated by the Bishops and the Arch-Bishops of Canterbury and York are bound to compel the other Bishops to denounce sentence accordingly in case of their remisness or neglect The next famous sticklers to Hubert de Burgo for Arbitrary Domination were the two Spencers father and son by whose rash and evil counsel sayes Cook Edward the second was seduced to break the Great Charter and they were banished for their pains By these passages we may observe how the People would still be strugling in and by their Representatives for their Legal Rights and Just Liberties to obviate the Encroachers whereof they procured several new Ratifications of their old Laws which were indeed in themselves unrepealable even by Parliaments if they will act as men and not contradict the Law of their own Reason and of the common Reason of all mankind By 25 Ed. 1. cap. 1. Justices Sheriffs Majors and other Ministers that have the Laws of the Land to guide them are required to allow the said Charter to be pleaded in all its points and in all causes that shall come before them in Judgment This is a clause sayes Cook worthy to be written in letters of gold That the Laws to be the Judges guides and therefore not the Judges the guides of the Laws by their arbitrary glosses which never yet misguided any that certainly knew and truly followed them In consonancy herewith the Spaniard sayes Of all the three learned Professions The Lawyer is the only letter'd man his business and duty being to follow the plain literal construction of the Law as his guide in giving Judgment Pretence of mystery here carries in the bowels of it intents or at least a deep suspition of arbitrary domination The mind of the Law is not subject to be clouded disturbed or perverted by passion or interest 'T is far otherwise with Judges therefore 't is fitter and safer the Law should guide them than they the Law Cook on the last mentioned Statute affirms That this great Charter and the Charter of Forest are properly the Common Law of this Land or the Law that is common to all the People thereof 2 Ed. 3. cap. 8. Exact care is taken that no Commands by the Great or Little Seal shall come to disturb or delay Common Right Or if such Commands come the Justices are not thereby to leave to do Right in any point So 14 Ed. 3. 14. 11 Ric. 2. 10. The Judges Oath 18 Ed. 3. 7 runs thus If any force come to disturb the execution of the Common Law ye shall cause their bodies to be arrested and put into Prison Ye shall deny no man Right by the King's Letters nor counsel the King any thing that may turn to his dammage or disherison The late King in his Declaration at Newmarket 1641 acknowledged the Law to be the Rule of his Power And his Majesty that now is in his Speech to both Houses the 19th of May last said excellently The good old Rules of Law are
Laws of this Kingdom and have been so adjudged by two Acts of Parliament and ought to suffer as Traitors Die Jovis Octob. 8. 1642. In the Instructions agreed upon by the Lords and Commons about the Militia They declare That the King seduced by wicked Counsel hath raised War against the Parliament and other his good Subjects And by the Judgment and Resolution of both Houses bearing date Aug. 13. 1642 upon occasion of his Majesties Proclamation for suppressing the present Rebellion under the Command of Robert Earl of Essex They do unanimously publish and declare That all they who have advised declared abetted or countenanced or hereafter shall abet and countenance the said Proclamation are Traytors and Enemies to God the King and Kingdom and guilty of the highest degree of Treason that can be committed against the King and Kingdom as that which invites his Majesties Subjects to destroy his Parliament and good People by a Civil War and by that means to bring ruine confusion and perpetual slavery upon the surviving part of a then wretched Kingdom The Law is acknowledged by the King to be the onely Rule by which the People can be iustly governed and that as it is his duty so it shall be his perpetual vigilant care to see to it Therefore he will not suffer either or both Houses by their Voâ—es without or against his Consent to enjoyn any thing that is forbidden by the Law or to forbid any thing that is enjoyned by the Law The King does assert in his Answer to the Houses Petition May 23. 1642. That He is a part of the Parliament which they take upon them to defend and secure and that his Prerogative is a part of and a defence to the Laws of the Land In the Remonstrance of both Houses May 26. 1642. They do assert That if they have made any Precedents this Parliament they have made them for posterity upon the same or better grounds of Reason and Law than those were upon which their Predecessors made any for them and do say That as some Precedents ought not to be Rules for them to follow so none can be limits to bound their Proceedings which may and must vary according to the different condition of times And for the particular with which they were charged of setting forth Declarations to the People who have chosen and entrusted them with all that is dearest to them if there be no example for it in former times They say it is because there never were such Monsters before that attempted to disaffect the People towards a Parliament They further say His Majesties Towns are no more his care than his Kingdom nor his Kingdom than his People who are not so his own that he hath absolute power over them or in them as in his proper Goods and Estate but fiduciary for the Kingdom and in the paramount right of the Kingdom They also acknowledge the Law to be the safeguard and custody of all publick and private Interests They also hold it fit to declare unto the Kingdom whose Honour and Interest is so much concerned in it what is the Priviledge of the great Council of Parliament herein and what is the Obligation that lies upon the Kings of this Realm as to the passing such Bills as are offered to them by both Houses in the name and for the good of the whole Kingdom whereunto they stand engaged both in Conscience and Justice to give their Royal Assent First In Conscience in respect of the Oath that is or ought to be taken by them at their Coronation as well to confirm by their Royal Assent all such good Laws as the People shall chuse whereby to remedy such inconveniencies as the Kingdom may suffer as to keep and protect the Laws already in being The form of the Oath is upon Record and asserted by Books of good authority Unto it relation is had 25 Ed. 3. entitiled The Statute of Provisors of Benefices Hereupon The said Commons prayed our said Lord the King sith the Right of the Crown of England and the Law of the said Realm is such that upon the mischiefs and dammages which happen to this Realm he ought and is bound by his Oath with the accord of his People in Parliament to make Remedy and Law for the removing thereof That it may please him to ordain Remedy This Right thus claimed by the Lords and Commons the King doth not deny in his Answer thereunto Secondly In Justice the Kings are obliged as well as in Conscience in respect of the Trust reposed in them to preserve the Kingdom by the making of new Laws where there shall be need as well as by observing of Laws already made a Kingdom being many times as much exposed to ruine for want of a new Law as by the violation of those that are in being This is a most clear Right not to be denyed but to be as due from his Majesty to his People as his Protection In all Laws framed by both Houses as Petitions of Right they have taken themselves to be so far Judges of the Rights claimed by them That when the King's Answer hath not been in every point fully according to their desire they have still insisted upon their Claim and never given it over till the Answer hath been according to their demand as was done in the late Petition of Right 3. Caroli This shews the two Houses of Parliament are Judge between the King and the People in question of Right as in the Case also of Ship-money and other illegal Taxes and if so why should they not also be Judge in the Cases of the Common Good and Necessity of the Kingdom wherein the Kingdom hath as clear a Right to have the benefit and remedy of the Law as in any other matter saying Pardon and Grants of Favour The Malignant Party are they that not only neglect and despise but labour to undermine the Law under colour of maintaining it They endeavour to destroy the Fountain and Conservators of the Law the Parliament They make other Judges of the Law than what the Law hath appointed They set up other Rules for themselves to walk by than such as are according to Law and dispence with the Subjects obedience to that which the Law calls Authority and to their Determinations and Resolutions to whom the Judgment doth appertain by Law Yea though but private persons they make the Law to be their Rule according to their own understanding only contrary to the Judgment of those that are the competent Judges thereof The King asserts That the Act of Sir John Hotham was levying War against the King by the letter of the Statute 25 Ed. 3. cap. 2. The Houses state the Case and deny it to be within that Statute saying If the letter of that Statute be thought to import this That no War can be levied against the King but what is directed and intended against his Person Or that every levying of Forces for the defence
The Parliament who appointed the Council must be much more unwarrantable And here he offered these points to be considered and pray'd earnestly to have Counsel assigned him to speak to them 1. Whether the collective body of the Parliament can be impeached of High Treason 2. Whether any person acting by Authority of Parliament can so long as he acteth by that Authority commit Treason 3. Whether matters acted by that Authority can be called in question in an inferiour Court 4. Whether a King de jure and out of possession can have Treason committed against him he not being King de facto and in actual possession and pray'd it might be argued by Counsel 5. Whether matters done in Southwark in another County may be given in evidence to a Middlesex Jury As to the last Exception the Court said That he was indicted for compassing and imagining the King's Death in Middlesex and any overt act to prove this Imagination may be given in evidence wheresoever it be acted To which Sir Hen. Vane prayed the benefit of a Bill of Exception upon the Statute of Westminster 2. cap. 31. and prayed that the Justices might seal it which they all refused and held it lay not in any case of the Crown The King's Counsel desired he might call his Witnesses if any he had for if they once came to reply to him he must then be silent and consented that if it would aid him they would allow his Actings to be in the Name and by the Authority of the Council of State and the Actings of the Council of State to be by Authority of what he called a Parliament Sir Hen. Vane replyed Then what I acted in the Council of State and Committee of Safety constituted by the Parliament to endure for eight dayes you will allow me Then you must prove that I ever acted in the other Council of State after the Parliament was turned out Then the King's Counsel produced a Warrant dated Novemb. 3. 1659 which was sent in pursuance of an Order of the Committee of Safety by Sir Hen. Vane as Treasurer of the Navie This Warrant was for the sending of divers Arms Northwards after Mr. Lambert who was gone down to oppose the now Duke of Albemarle Sir Hen. Vane produced Will Angel Brisco Middleton c. Officers of that Regiment which went under his name who having recourse unto him for Orders about Octob. 1659 he bad them desist and declared his dis-satisfaction in their proceedings and this after their several importunities to have Orders from him And thus he closed his Defence FYNCH Sollicitor As to pretence of the power of Parliament It is to be known that it was not the eighth part of the House of Commons such as were let in to do all that hath been complained and the acting under Authority of such an End of a Parliament under such a Violation was no Excuse but an Aggravation but that the Parliament was in Law ended by the death of the late King notwithstanding that Act of 17. Caroli primi appears thus First The King 's Writ for a Parliament is ad tractandum nobiscum which is intended as well of the natural capacity of the King as of his politick Secondly 'T is absurd to say that the Acts of Parliament of King Charles the first should be his Acts in the time of King Charles the second Thirdly A Commission of Sewers enacted to be on foot for ten years expires by the death of the King and the authority of the Commissioners is at an end Fourthly It is not possible for one King to impose a Parliament upon a successor So much for his acting by colour of authority of Parliament And as to the Question Whether an House of Parliament can commit Treason If they depart from that Allegiance which they have sworn at their first meeting they are impeachable for it As to a Co-ordination in the Parliament he denied it As to the Question Whether the King being out of actual possession can have Treason committed against him he affirmed it And said otherwise if Rebellion should be so prosperous as to depose or oppress the King in Battel the Offenders are not to be called in question because they prevailed He said it was the Plea of Watson the Jesuite who being Indicted for compassing the death of King James in Scotland after he was declared King of England and before his actual entring into this Realm made this Defence That the King was never in possession of the Crown Windam Justice As to the Act of 17. Caroli and the Preamble of that Act so much insisted upon by the Prisoner 1. He held that the Parliament had not greater Authority by it but were onely made more durable than other Parliaments have been but he held that the Parliament was absolutely dissolved by the death of the King and put this case If it should be enacted that such a Marriage should continue till it was dissolved by Act of Parliament If one dies it is a determination of it in Fact so as no man can say but it is absolutely dissolved 2. It must continue in the degree and dignity of a Parliament If the House be under a force and some kept out some let in to serve a Turn what-ever they act is a Nullity in Law For Freedom is the principal essence and honour of a Parliament yet though the House be under a Force the House is not dissolved by such Force but the proceedings are to be suspended till it require its former Liberty and this as well by the Common Law as by the Civil and Canon Laws of all other Countries 3. The Parliament is the King 's great Council The Peers are Consiliarii nati If they be forc'd away or laid aside as here they were all the rest is but Magni Nominis Umbra Twisden held the same opinion That it is not the sitting of a few Members within those Walls that will continue it a Parliament And though another Parliament a great many years after the Kings death declared it to be at an end yet that Act was but Declaration it was at an end before Whether a Parliament may commit Treason is not the Question but Whether a few of the House shutting out their Fellows and usurping the Government were not Traitors Foster held the same opinion and said The distinction between the Politick and Natural capacity of the King was the Treason of the two Spencers That Priviledge of the Parliament is no shelter for breach of the Peace much less for Treason Twisden added That to compass the Death of the King as a natural person was Treason to compass his Death in his Politick capacity as to depose him was Treason and both provided for by the Act of 25. Ed. 3. That in the same instant the late King expired in the very same his now Majesty was King de facto and affirmed the cases of Watson and Cleark 1. Jac. If an Army be raised against the King
for Government-sake it self it is requisit it should be so because none are Judges of the Power and Priviledges of Parliament but themselves For admit once that their Judgment may be called in question and disputed by private persons or by inferiour Courts whose Votes are included in theirs the Fundamentals of Government are plucked up by the roots Par in pares non habet Imperium multó minus in eos qui majus Imperium habent An Equal has no command over his Equal much less over those that have a greater command or authority His late Majesty in his Answer to the nineteen Propositions does very briefly and exactly state the nature and kind of Government that is exercised in this Kingdom saying The Laws in this Kingdom are made by a King a House of Peers and a House of Commons chosen by the People all having free Votes and particular Priviledges These three Estates making one incorporate body are they in whom the Soveraignty and Supream Power is placed as to the making and repealing of Laws And the Government according to these Laws is trusted to the King who in the Interval of Parliaments is sole in the exercise of Government which the Parliament sitting he is to exercise in conjunction with the two Houses And his said Majesty asserting three sorts of Government Absolute Monarchy Aristocracy and Democracy does most rightly distinguish the Monarchy of England from all those three and commends the Constitution of this Kingdom as it is a mixture of all three having the conveniencies of them all without the inconveniencies of any one as long as the ballance hangs even between the three Estates that they run joyntly on in their proper channels and that the overflowing of either on either side raise no deluge nor inundation By the passing of the foresaid Act for the continuance of the forementioned Parliament the Intervals of Parliament were no longer as before at the will and pleasure of the King but the Power to continue the said Parliament without Adjournment Prorogation or Dissolution resided in the two Houses with the King joyntly and in none of them severally so that in effect the Government of the Kingdom during the continuance of that Parliament was in conjunction of the three Estates and in their common consents and agreements among themselves given in Parliament the assembling and meeting whereof was appointed and fixed to a place certain by Law By reason hereof it is not the attendance of any of the Members in Parliament for discharge of the Trust reposed in them confirm'd and enlarged by the said Act that is faulty or censurable by the Law but those that unwarrantably depart and desert that their Trust and station are to be blamed 6. Hen. 8. 16. The King in conjunction with the Parliament is maxime Rex and is supported in the Throne and exercise of his Regal Power by the joynt concurrence of both Houses And because as his late Majesty well observed the happiness and good of the Constitution of this Government lies in keeping the ballance even between the three Estates containing themselves within the bounds of their proper channels therefore in attempts of either to overflow those bounds they being co-ordinate the Office of a Parliament is by the very fundamental constitution of the Government to keep this ballance well poised And to that end as was before mentioned his Majesties own words are in his said Answer to the nineteen Propositions That there was legally placed in both Houses a Power more than sufficient to prevent and restrain the Power of Tyranny If so then are they the legal Judges when there is danger of Tyranny and have legal power to require their Judgment and Resolves to be obeyed not only when Arms are actually raised against them but when they discern and accordingly declare a preparation towards it else they may find it too late to prevent the power of Tyranny There is no greater attempt of Tyranny than to arm against the Parliament and there is no visible way for the restraining such Tyranny but by raising Arms in their own and the Kingdoms defence Less than this is not sufficient and therefore far from more than sufficient for the punishment of Delinquents and restraint of Tyranny Unto the King in conjunction with his two Houses according as is provided by the Law in this capacity of his as maxime Rex was the duty of Allegiance to be yeelded by his Subjects during the indissolved state of that Parliament For they were the King 's great Council and supream Court exercising the known Power and Priviledges that time out of mind have appertained to them and been put forth by them as the Exigents of the Kingdom have required when differences have happened about the very title of the Crown in declaring the duty of the Subject by yeelding their Allegiance to Kings de facto when Kings de jure have been kept out of possession This our Chronicles and the Histories of former times do plentifully inform The causes that did happen to move his late Majesty to depart from his Parliament and continue for many years not only at a distance and in a disjunction from them but at last in a declared posture of Enmity and War against them are so well known and fully stated in print not to say written in characters of blood on both parts that I shall only mention it and refer to it This matter was not done in a corner The Appeals were solemn and the decision by the Sword was given by that God who being the Judge of the whole World does Right and cannot do otherwise By occasion of these unhappy differences thus happening most great and unusual Changes and Revolutions like an irresistible Torrent did break in upon us not only to the disjoynting that Parliamentary Assembly among themselves the head from the members the co-ordinates from each other and the houses within themselves but to the creating such formed divisions among the people and to the producing such a general state of Confusion and Disorder that hardly any were able to know their duty and with certainly to discern who were to command and who to obey All things seemed to be reduced and in a manner resolved into their first elements and principles Nevertheless as dark as such a state might be the Law of England leaves not the Subjects thereof as I humbly conceive without some glimpses of direction what to do in the cleaving to and pursuing of which I hope I shall not be accounted nor judged an offender or if I am I shall have the comfort and peace of my Actions to support me in and under my greatest sufferings The Resolutions of all the Judges in Calvin's Case entituled Post-nati in the 7th Book of Cook 's Reports and the learned Arguments thereupon afforded me instruction even in this matter It may be 't is truly thence affirmed that Allegiance is due only to the King and how due is also shewed The
to the first of these The Act for Continuance of the Long Parliament is express That all and every thing or things whatsoever done or to be done for the Adjournment Proroguing or Dissolving of that Parliament contrary to that Act shall be utterly void and of none effect I then thus argue The Judges do upon occasion of this Tryal resolve That the King's Death dissolv'd that Parliament No Act of Parliament hath yet declared it to be so and the Judges ought to have some Law for their guide as Cook well sayes To be sure if in process of time the Parliament shall expresly declare That not the King's Death but the Act for the Dissolution of that Parliament did dissolve it In such case these Judges Resolution by vertue of such Act is absolutely void But innocent Blood in the mean time may be shed and an Estate wrongfully taken away And in case what the Judges assert herein were Law 't is Law not known or declared till many years after the Fact committed At this rate who is secure of Estate or Life As to the second and third Queries or Propositions It does appear out of the third part of Cook 's Institutes fol. 7. and the Statute 11. Hen. 7. cap. 1. That Actings for the King in Fact are not to be questioned by the King in Right If it be said That there was no King in this case it may be replied That they who had the Power and Exercise of the Royal Jurisdiction as to Peace and War Coynage of Money power of Life and Death c. which are the highest Ensigns of Regal Authority must needs be the Powers regnant though not under the name of King and are within the Statute 25. Edw. 3. cap. 2. as a Queen also is adjudged and any sovereign Prince though under the title only of Lord as was the case of Ireland before it was a Kingdom And if so why not in more such persons as well as one that de facto exercise the Royal Power and Sovereign Authority under what name or title soever If upon this Nicety Judgment be given against me because the Powers regnant wanted the name and formality of a King I shall doubtless have very hard measure For the reason and equity is the same if the Powers regnant had the thing though not the Title And where there is the same Reason there is the same Law as is a known Rule Now there is the same Reason the Subject should be equally indempnified that acteth under any Sovereign Authority that hath not the name of a King as if it had If there had been many Kings as a Heptarchy hath been in England heretofore those would have been understood to be within the Statute and the reason and equity of the Statute is the same in all cases For the Law is made for the benefit and security of the Subject whom the Law requires not to examine the right of Soveraignty Nor is the danger less under one Government than another The Statute is for securing the Subject from all dormant Titles that they may safely pay their Allegiance when they receive Protection and that they may not be in danger of being destroyed by two Powers at the same time For that Power which is supream and de facto will be obeyed and make it Treason to do otherwise be it right or wrong And if the Subject be at the same time in danger of committing Treason against the Power de jure then is he in a miserable condition and state of unavoidable necessity which is provided against by the Laws of the Land Otherwise if he be loyal to the King de jure he shall be hanged by the King de facto and if he be faithful to the King de facto he shall die by the King de jure when he recovers possession Against this it was that the Statute of 11. Hen. 7. was provided in the difference betwixt the two houses of York and Lancaster My Case is either the same with that and then I desire the benefit of that Statute or else it is new and then I desire as is provided 25. Ed. 3. that it be referred to the Parliament So that it is either within the Equity of the Statute 11. Hen. 7. or else it is a new Case and not to be judged by this Court If the Judges in the Resolves by them delivered upon any of the particulars before-alledged have not declared that Law that ought to guide them but their particular Judgments or Opinions as undertaking to guide the Law and that in points of so grand concern as touch the Subjects Life in case their Judgments after should prove erroneous the Verdict given upon such Errors must needs be illegal and void Judgment therefore ought to be suspended till such time as the truth and certainty of the Law may be fully argued and cleared and that in the proper Court for the hearing and judging of this Case If this be not done but I be forthwith proceeded against notwithstanding any thing however rationally or legally alledged to the contrary by such undue precipitation and giving Sentence I am contrary to Magna Charta or Law of the Land run upon and destroyed without due form and course of Law And I am like to be deprived of Estate and Life upon no Law or certain Rule which was declared before the Fact no nor before the Tryal Upon these Considerations I desire an Arrest of Judgment and that Counsel may be assigned me and competent time allowed to make good my Averrements As an Argument to press this I desire leave of the Court That the Petition of the two Houses and the King's Assent to it may be read in open Court attested by one that is present who examined and compared it with the Book of Record in the Lords House by which it evidently appears that as well the King as both Houses of Parliament were agreed that admitting I were attainted yet Execution as to my Life should be remitted And if so there is no cause to precipitate the passing Sentence especially when also such weighty points in the Law are yet to be argued and cleared unless the Judges will evidently charge themselves with my innocent Blood III. My third Reason for an Arrest of Judgment is the manifest newness of this Case being such as never happened before in the Kingdom which withal is of so vast a consequence to people of all sorts and conditions within this Realm as nothing more And being so as I doubt not with your Lordships patience I shall make it appear It is the known Law witnessed by Bracton and antient approved Law-Books That in such Cases the Judges in the inferiour Courts ought not to proceed but bring it before the high Court of Parliament To prove therefore the newness of this Case besides what I have already alledged in my Defence before the Verdict give me leave to adde that which yet further shews the newness and
such a Body is sounded in the common consent of that Body The Office of chief Ruler or Head over any State Common-wealth or Kingdom hath the Right of due Obedience from the People inseparably annexed to it It is an Office not onely of Divine Institution but for the Safety and Protection of the whole Body or Community and therefore justly and necessarily draws to it and engages their Subjection This Office of the Soveraign according to the Laws and Fundamental Constitutions of the Government of England is ministred by the King in a twofold Capacity as his Will and personal Command is in Conjunction and Agreement with his People in Parliament during the Session thereof or as it is in Conjunction and Agreement with the Law the Parliament not Sitting But his Will and Personal Command single in dis-junction and disagree from the Parliament or the Laws hath not the force of a Law saith Fortescue and gives the Reason of it Because this is a limitted Monarchy where the King's Power as to the exercise of it is onely a Power Politick The Obedience then which from the Subject is due to the King and which they are sworn to perform by the Oath of Allegiance is to him in the ministry of the Royal Office according to the reason and intent of the Fundamental Compact and Constitution and according to his own Oath which is to Govern by Law that is to Exercise his Rule or Royal commanding Power in Conjunction and Agreement with the Parliament when sitting and in Conjunction and Agreement with the Laws of the Land they not sitting To exercise his Power otherwise is and hath been alwayes judged a grievance to the People and a going against that which is the original Right and just Liberty of the Community who are not to be bound to such personal Commands at will and pleasure nor compelled to yield Obedience thereunto The contrary hereunto was the Principle at bottom of the Kings Cause which he endeavoured to uphold and maintain in order to decline and lay aside the Legal Restraints as aforesaid which the Government of England by the Fundamental Constitution is subjected unto as to the exercise and ministery of the Royal Office From the Observation and Experience which the Pople of England had and made many years together by their Representatives in Parliament of a desire in the King to shake off these Legal Restraints in the Exercise of the Regal Power and on their having tried the best wayes and means that occurred to their Understandings to prevent the same and to secure to themselves the enjoyment of their Just Rights and Liberty they at last pitch'd upon the desiring from the King the continuance of the sitting of the Parliament called November 3d 1640 in such sort as is expressed in that Act 17. Car. wherein it is provided That it shall not be Discontinued or Dissolved but by Act of Parliament This was judged by them the greatest Security imaginable for keeping the ministry of the Royal Office within its due Bounds and for quieting the People in the enjoyment of their Rights But experience hath shewed that this yet could not be done without a War the worst and last of Remedies For although their Continuance as the Representative Body of the Kingdom with the Right to exercise the Power and Priviledges inherent in and inseparable from that Supream Court and Chief Senate whereof the King is Head both making but one Person or Politick Body in Law yet they themselves as well as the King were bound by the Fundamental Constitution or Compact upon which the Government was at first built containing the Condition upon which the King accepted of the Royal Office and on which the People granted to him the Tribute of their Obedience and due Allegiance This Condition as the Lawes and Experience declare is that the King shall exercise his Office of Rule over them according to the Laws as hath been shewed and as he and his People shall from time to time agree in Common Council in Parliament for that end assembled In respect hereof the Laws so made are called the Concords or Agreements passed between the King and the Subject in the 3d part of Cooks Institutes These Agreements then are the Standard unto the Kings Rule and the Peoples Obedience signifying the justice of his Commands and the dueness of their Allegiance But the case so happening that this Conjunction and Agreement which ought to be found between the personal Will of the King and Representative Will of the Kingdom failing and these two Wills declaring themselves in Contrariety and Opposition both of them becoming standing Powers Co-ordinate and distinct parts of the Supremacy as the two Channels wherein the Supremacy is placed and appointed to run as to its exercise by the Fundamental Constitution hence sprang the War each asserting and endeavouring to defend and maintain their own part and right which ought not to be kept up in dis-junction and contrariety but in Unity and Agreement each with other These two Parties with their Adherents in this Case may be according to the Law Contrarients one towards another as the Law affords an Example in the Preamble to Cook 's 4th Part of his Institutes not properly Traytors being co-ordinate Powers parts of the Supremacy that are the Heads to each Party and by consequence have a right of making a War as their last Appeal if they cannot otherwise agree Being once entred thus into a state of War and actual Enmity they do as it were become two Nations and cease to be under the Obligations they were in before for during this state of War and Enmity the standing Laws in a sort cease and a new way of Rule each Party Forms to himself and his Adherents as may best consist for each of their Safeties and Preservations Upon this Dis-junction of the two Wills in the Harmony and Agreement whereof the Supremacy is placed these following Queries do naturally arise First To which or Whether of these by Law is the Allegiance required as due Is it to be yeilded to the Personal Will of the King single in disjunction from the Will of the Representative Body of the Kingdom or to the Will of the People in dis-junction from the Will of the King Or is it to the Personal Will of the King in conjunction with the Laws though in opposition and contrariety to the Will of the Kingdoms Representative in Parliament Assembled Or is it to the Will of the Kingdomes Representative in conjunction with the Laws though in opposition to the Personal Will of the King The Second Querie is In whose Judgement in this case are the People by Law to acquiesce as to the declaring with whom the Laws are Whether the Personal Judgement of the King single or the Vote of the Senate that is the Kingdoms Representative Body The Third Querie is With whom will the Laws be found to go in this Case so rare unusual and never happening
is not nor cannot be accountable by way of crime or offence against his Ruler and Soveraign but may do with his own what he please but still at his peril if he use not this his Liberty as he should to the end for which it is given him which is by voluntary and entire resignation to become an obedient Subject unto him who is the Supream Law-giver and Rightful King without possibility of change or defection Unto this right and the lawful exercise and possession of it this Nation did arive by the good providence and gift of God in calling and assembling the Parliament November 3d. 1640. and then continuing their Session by an express Act 17. Car. with power not to be dissolved but by their own consent which was not so much the introducing of a new Law as declaratory of what was Law before according to Man's natural Right in which he was created and of which he was possessed by God the soveraign giver of all things But the passing that said Act of Parliament alone was not that which restored the Nation to their original Right and just Natural Liberty but onely put them in the capacity and possibility of it That which wanted to make out to the Nation a clearness in having and obtaining this their right was the obligation they had put upon themselves and their posterities to their present Soveraign and his Authority which in justice and by the Oathes of Allegiance they were solemnly bound to in the sight of God as well as of Man And therefore unless by the abuse of that office of Trust to that degree as on his part to break the fundamental compact and constitution of Government they could not be set free nor restored to their original Right and first Liberty especially if together with such breach of Trust both parties appeal to God and put it upon the issue of Battel and God give the decision and in consequence thereof that original Right be asserted and possession thereof had and held for some years and then not rightfully lost but treacherously betrayed and given up by those in whom no power was rightfully placed to give up the subjection of the Nation again unto any whatsoever Unto which is to be added that how and when the dissolution of the said Parliament according to Law hath been made is yet unascertained and not particularly declared by reason whereof and by what hath been before shewed the state of the Case on the Subjects part is much altered as to the matter of Right and the Usurpation is now on the other hand there being as is well known two sorts of Usurpers either such as having no right of consent at all unto the Rule they exercise over the Subject or such who under pretence of a Right and Title do claim not by consent but by conquest and power or else hold themselves not obliged to the Fundamental compact and constitution of Government but gain unduely from the Subject by advantages taken through deceit and violence that which is not their own by Law For a rational Man to give up his Reason and Will unto the Judgement and Will of another without which no outward coercive Power can be whose Judgement and Will is not perfectly and unchangeably good and right is unwise and unsafe and by the Law of Nature forbidden And therefore all such gift made by rational men must be conditional either implied or explicite to be followers of their Rulers so far as they are followers of that good and right which is contained in the Law of the Supream Law-giver and no further reserving to themselves in case of such defection and declining of the Rulers actings from the Rule their primitive and original Freedom to resort unto that so they may in such case be as they were before they gave away their subjection unto the Will of another and reserving also the power to have this judged by a meet and competent Judge which is the Reason of the King and Kingdom declared by their Representatives in Parliament that is to say the Delegates of the People in the House of Commons assembled and the Commissioners on the Kings behalf by his own Letters Patents in the House of Peers which two concurring do very far bind the King if not wholly And when these cannot agree but break one from another the Commons in Parliament assembled are ex Officio the Keepers of the Liberties of the Nation and righteous Possessors and Defendors of it against all Usurpers and Usurpations whatsoever by the Laws of England The Valley of Jehoshaphat considered and opened by comparing 2. Chron. 20. with Joel 3. IT was the saying of Austine Nothing falls under our senses or happens in this visible World but is either commanded or permitted from the invisible and unintelligible Court and Pallace of the highest Emperor and universal King who is the chief over all the kings of the earth For although he hath both commanded and permitted a subordinate external Government over Men administred by man for the upholding of Justice in humane Societies and for the peace welfare and safety of men that are made in Gods Image yet he hath not so entirely put the Rule of the whole earth out of his own hands but that in cases of eminent injustice and oppression committed in Provinces States and Kingdomes contrary to his Lawes to their own and the very end of Magistracy which is the conservation of the Peoples just Rights and Liberties He that is higher than the highest amongst men doth regard and will shew by some extraordinary interposition of his that there are higher than they Such a seasonable and signal appearance of God for the Succor and Relief of his People in their greatest Straits and Exigencies when they have no might visible Power or armed Force to undertake the great company and multitude that comes against them nor know what to do save onely to have their eyes towards him is called in Scripture The day of the Lord's Judgement Then the Battel and cause of the Quarrel will appear to be not so much theirs as the Lord's and the frame of their heart will be humble before the Lord believing in the Lord and believing his Prophets for their good success and establishment This Dispensation is very lively described under the Type and by the Name of The Valley of Jehoshaphat as to the Season and Place wherein God will give forth a signal appearance of himself in Judgement on the behalf of his People for a final decision of the Controversie between them and their enemies It Litterally and Typically fell out thus as is at large recorded 2 Chron. 20. By way of allusion to this and upon occasion of the like yea and far greater Extreamities which God's People in the last dayes are to be brought into is that Prophesie Joel 3. for a like yea a far greater and more signal appearance of God for their Deliverance and Rescue in order to
our best security The Common Law then or Liberties of England comprized in the Magna Charta and the Charter of Forest are rendred as secure as authentick words can set them from all Judgments or Precedents to the contrary in any Courts all corrupting advice or evil counsel of any Judges all Letters or Countermands from the Kings Person under the Great or Privy Seals yea and from any Acts of Parliament it self that are contrary thereunto As to the Judges no question they well know the story of the 44 corrupt Judges executed by King Alfred as also of Tresillian Belknap and many others since By 11 Hen. 7. cap. 1. They that serve the King in his Wars according to their duty of Allegiance for defence of the King and the Land are indempnified If against the Land and so not according to their Allegiance the last clause of that chapter seems to exclude them from the benefit of this Act. 6 Hen. 8. 16. Knights and Burgesse of Parliament are required not to depart from the Parliament till it be fully finished ended or prorogued 28 Ed. 3. cap. 3. No man is to be imprisoned disherited or put to death without being heard what he can say for himself 4 Ed. 3. 14. and 36. Ed. 3. 10. A Parliament is to be holden every year or oftner if need be 1 Ric. 3. cap. 2. The subjects of this Realm are not to be charged with any new imposition called a Benevolence 37 Ed. 3. c. 18. All those that make suggestions against any man to the King are to be sent with their suggestions before the Chancellor Treasurer and his grand Council and there to find surety that they will pursue their suggestions and are to incur the same pain the party by them accused should have had if attained in case the suggestion be found evil or false 21 Jacobi cap. 3. All Monopolies and Dispensations with Penal Laws are made void as contrary to the great Charters These quotations of several Statutes as Ratifications and Restorers of the Laws of the Land are prefixed to the following Discourses and Pleas of this Sufferer as certain steady unmovable Land-marks to which he oft relates The rouling Seas have other Laws peculiar to themselves as Cook observes on that expression Law of the Land in his Comment on the 29th Chapter of Magna Charta Offences done upon the High Sea the Admiral takes conusance of and proceeds by the Marine Law But have those steady Land-marks though exactly observed and never so pertinently quoted and urged by this Sufferer failed him as to the securing of his Life 'T is because we have had Land-floods of late Tumults of the People that are compared to the raging Seas Psal 65. 7. The first Paper of this deceased Sufferer towards the defence of his Cause and Life preparatory to the Tryal as the foundation of all that follows before he could know how the Indictment was laid and which also a glance back to any crime of Treason since the beginning of the late War that the Attorney General reckoned him chargeable with shews to be very requist take as followeth Memorandums touching my Defence THe Offence objected against me is levying War within the Statute 25 Ed. 3. and by consequence a most high and great failer in the duty which the Subject according to the Laws of England stands obliged to perform in relation to the Imperial Crown and Soveraign Power of England The crime if it prove any must needs be very great considering the circumstances with which it hath been accompaned For it relates to and takes in a series of publick action of above twenty years continuance It took its rise and had its root in the Being Authority Judgment Resolutions Votes and Orders of a Parliament and that a Parliament not onely authorized and commissionated in the ordinary and customary way by his Majesties Writ of Summons and the Peoples Election and Deputation subject to Adjournment Discontinuance and Dissolution at the King's will but which by express Act of Parliamenâ— was constituted in its continuance and exercise of its Power free from that subjection and made therein wholly to depend upon their own will to be declared in an Act of Parliament to be passed for that purpose when they should see cause To speak plainly and clearly in this matter That which is endeavoured to be made a Crime and an Offence of such an high nature in my person is no other than the necessary and unavoidable Actings of the Representative Body of the Kingdom for the preservation of the good People thereof in their allegiance and duty to God and his Law as also from the imminent dangers and destruction threatned them from God's and their own Enemies This made both Houses in their Remonstrance May 26. 1642. protest If the Malignant spirits about the King should ever force or necessitate them to defend their Religion the Kingdom the Priviledges of Parliament and the Rights and Liberties of the Subjects with their Swords The Blood and Destruction that should ensue therupon must be wholly cast upon their account God and their own consciences telling them that they were clear and would not doubt but that God and the whole world would clear them therein In his Majesties Answer to the Declaration of the two Houses May 19. 1642. he acknowledgeth his going into the House of Commons to demand the five Members was an errour And that was it which gave the Parliament the first cause to put themselves in a posture of defence by their own Power and Authority in commanding the Trained-Bands of the City of London to guard and secure them from Violence in the discharge of their Trust and Duty as the two Houses of Parliament appointed by Act to continue as above-mentioned The next cause was his Majesties raising Forces at York under pretence of a Guard expressed in the humble Petition of the Lords and Commons May 23. 1642. wherein they beseech his Majesty to disband all such Forces and desist from any further designs of that nature otherwise they should hold themselves bound in duty towards God and the Trust reposed in them by the People and the Fundamental Laws and Constitutions of this Kingdom to employ their care and utmost power to secure the Parliament and preserve the peace and quiet of the Kingdom May 20. 1642 The two Houses of Parliament gave their Judgment in these Votes First That it appears that the King seduced by wicked Counsel intends to make War against the Parliament who in all their Consultations and Actions have proposed no other end to themselves but the Care of his Kingdoms and the performance of all Duty and Loyalty to his Person Secondly That whensoever the King maketh War upon the Parliament it is a breach of Trust reposed in him by his People contrary to his Oath and tending to the dissolution of this Government Thirdly That whosoever shall serve or assist him in such Wars are Traytors by the fundamental