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 two Houses Petition to the King for his Assent to the Bills by them drawn up and passed They used this as a means to induce the King to exempt me from all benefit of the Act of Indempnity and Oblivion and then at last perswade and absolve him from making good this Grant also thereby depriving me of all visible relief for my Life I conceived my Life as secure by that Grant as others Lives or Estates are by the Act of Indempnity it self for what is that but the Bill of both Houses with the King's Assent to it upon their Petition The PETITION of both Houses of Parliament to the King 's most excellent Majesty on the behalf of Sir Henry Vane and Col. John Lambert after they left them uncapable of having any benefit of the Act of Indempnity To the King 's most Excellent Majesty The humble Petition of the Lords and Commons assembled in PARLIAMENT Sheweth THat Your Majesty having declared your gracious pleasure to proceed only against the immediate Murderers of your Royal Father We your Majesties most humble Subjects the Lords and Commons assembled not finding Sir Henry Vane nor Col. Lambert to be of that number Are humble Suiters to Your Majesty that if they shall be Attainted that Execution as to their Lives may be remitted And as in duty bound c. The said Petition being read it was agreed to and ordered to be presented to his Majesty by the Lord Chancellor The Lord Chancellor reported That he had presented the Petition of both Houses to the King's Majesty concerning Sir Henry Vane and Col. Lambert and his Majesty grants the Desires in the said Petition John Browne Cler. Parliamentorum Concerning the Proceedings of the Court 1. THe Judges denied Counsel to the Prisoner on this pretext that they as they were to be would be his Counsel They are the King's Commissary Judges preferred and paid for their work by the King who in this case was through evil and false suggestions rendred the Prisoners chief or only Adversary whose Death he stood accused of imagining and compassing What Counsel or Assistance the Prisoner was like to have from them let the World judge 2. His Jury consisted of persons that had been engaged against him in that very Controversie and Cause for which he was tryed A Forreigner in any Criminal Case amongst us may require six of his Jurors to be of his own Countrymen a French-man six French-men a Dutch-man six Dutch-men c. There was but one here that was suspected only to have something of an English man in him sworn of the Jury and the Lord Chief Justice sharply rebuked the Clerk of the Court alledging that he knew not but he might have brought bread and cheese in his pocket and would keep them all night with other words to like purpose 3. The Prisoner was not suffered to speak a word to the Jury after the King's Counsel had spoken to take off the aggravating glosses they had put upon his pretended crime and the Judges that said they would be the Prisoner's Counsel dismissed the Jury possessed with the last exasperating charge given by those who were both the Accusers and professed Counsel against him 4. The Prisoner on his Sentence-day challenged the Sollicitor before the Court as to the injury done him on the day of his Tryal by his large and bitter Invective which he had not liberty to reply to for the vindicating of his own Innocency and unpejudicing the Juries understanding in the fittest season The Judges that had promised him before pleading they would be his Counsel instead of relieving him herein as in all reason they ought afforded him no other answer but a sharp Rebuke for criminating and scandalizing the Court together with some threatning expressions But what need had he to regard their threatnings that he saw resolved to pass a Sentence of Death upon him say what he would The main thing he charged the Sollicitor with was his saying openly in Court that he must be made a publick Sacrifice shewing no reason why and of whispering to the Foreman of the Jury in the Court before they went to Verdict a thing notoriously against all Law and Reason Amongst other things he had also said What Counsel did the Prisoner think would or durst speak for him in such a manifest Case of Treason unless he could call down the heads of those his fellow-Traitors Bradshaw or Cook from the top of Westminster-Hall or to that effect when as there were able heads in the bottom of Westminster-hall ready to have spoken to his Case if they might have been assigned by the Court But what may not be said when nothing may be replied For a person that is designing his own Interest Honours Advantages and Preferments to have the last word to the Jury against a Prisoner that stands at the Bar in danger of his Life and that a person of so generally acknowledged worth and publick concern and to perform it with impertinent flashes of Wit and declamatory flourishes of Rhetorick sending away the Jury with the fresh and last impressions of all that noise and buzze of his glosses upon the whole matter and having with irritating expressions misrepresented and aggravated the supposed crimes is a thing to be hissed oft the stage of this earth by the common Reason of all mankind What worse circumstances can a Prisoner be in than to stand at a Bar of Justice to be tryed and there hear his professed Accuser and Adversary misrepresenting miscalling and aggravating the actions he is questioned for pressing all upon the Jurors consciences with the greatest edge and flourish of all the Art Wit and Eloquence he is furnished with as Tertullus served Paul and then be deprived of all possible defence against his slanderous and injurious suggestions Paul was not so served he had the last word to his Jury when Tertullus had done Acts 24. But the children of this world are wise in their generation they knew well they had to deal with one that had been experienced for twenty years together to be a person of a very happy and unparallel'd dexterity in taking off the paint and false appearances that others by premeditated Speeches could put upon ill matters with an extemporary breath If it be said he had fair warning beforehand to say all that he had to mind the Jury of and that he was not to speak after the King's Counsel It is answered Though this were hard at best and indeed not at all sutable to the true and lawfull Liberties of English-men yet were it more tolerable in case the King's Counsel had started no new thing against the Prisoner used no provoking and unworthy expressions or made no new and unforeseen glosses upon the matter he stood charged with For then the Prisoner might be presumed to have sufficiently obviated beforehand any thing that would be said by the Counsel had they only recapitulated and so probably might have rendred his Jury somewhat uncapable
and the King is slain in the battel This Treason is questionable by the Successor as Stonies Case is in Dyer Thus ended the questions of Law proposed The Sollicitor spake after to the Jury concerning the Fact which after they withdrew to consider and being withdrawn about half an hour returned with their Verdict which being delivered by the Foreman in the name of his fellows with their consent found the Prisoner guilty of High Treason from Januar. 30. 1648. They not only found him guilty according to the Indictment which was laid for what the Prisoner did 1659 but for a long series of High Treason as they reckon from Jan. 30. 1648. By which it may appear they were a well-prepared Jury for their work The Judges oft if not alwayes pretend that the Jury is to pass Verdict only as to matter of Fact according to the Evidence given by the Witnesses thereof But a general Verdict evidently involves both that he is guilty of such fact and that the fact is Treason as they in this Verdict openly undertake to determine taking in the full sence of the Indictment and much more Unless a Jury distinguish themselves out of this usually imposed snare by giving a special Verdict concerning the Fact only they undeniably have a share with their Tutors and Instructors in the shedding of innocent blood in case matter of Law be wrongfully stated For a Jury to resolve a Case of Law that so eminent a Subjects life was concern'd in and that in less than half an hour which never yet came before any Bench of Judicature in England may seem a very strange and bold adventure But Reader How far this falls short of a full Account of all that was spoken by the Prisoner though much interrupted by the King's Bench and Counsel in those ten hours which on this day of his Tryal he stood at the Bar pleading and answering for his Life and the Cause he had with many thousands been engaged in I leave to thee to imagine till a fuller and compleater Account thereof can be obtained than is yet come to hand This was remarkable That never being indulg'd the liberty of any repose to his body all that while which indeed he asked not nor receiving any creature-refreshings though sent him for his support yea and though after all his most rational Plea in his Defence the Jury gave their Verdict against his Life he came chearfully and pleasantly from the Bar as thought worthy to suffer for the Name of Christ and was so raised and full of rejoycing that evening at the place of his confinement in the Tower that he was a wonder to any that were about him This spiritual rejoycing in Christ Jesus and his heavenly raisedness of spirit increased more and more to the very moment of his death insomuch that meer strangers to his person yea very foreigners wondred at his triumphant dissolution The true Copy of the Prisoner's own Papers containing the substance of what he pleaded on the said day of his Tryal June 6. Memorandums as to my main Defence in relation to matter of Fact and as a Narrative thereof THat without any seeking of mine I was chosen by Writ under the Great Seal to serve as Burgess for the Town of Kingston upon Hull in the Parliament that sate down on the third of Novemb. 1640. and having in pursuance thereof taken my seat in the said Parliament I was obliged by Law to give my attendance upon the said Trust as well as upon grounds of Duty and Conscience The said Parliament was not onely called and assembled after the usual manner and had the Power and Priviledges incident to that high Court but was by express Statute and Consent of the three Estates so constituted as to its Continuance Adjournment Prorogation and Dissolution that in none of these particulars they were subject to alteration but by their own common Assent declared by Act of Parliament to be passed by themselves for that purpose with the Royal Assent In the Preamble to the Act for continuance of the said Parliament these words are contained Whereas great sums of Money must of necessity be speedily advanced and provided for the relief of his Majesties Army and People in the Northern parts of this Realm and for preventing the imminent danger this Kingdom is in and for supply of his Majesties present and urgent occasions which cannot be so timely effected as is requisit without Credit for raising the said Moneys which Credit cannot be obtained until such obstacles be first removed as are occasioned by fears jealousies and apprehensions of divers his Majesties loyal Subjects That this present Parliament may be Adjourned Prorogued or Dissolved before Justice shall be duely executed upon Delinquents Publick Grievances redressed a firm Peace between the two Nations of England and Scotland concluded and before sufficient Provision be made for the repayment of the said Moneys so to be raised c. By all which the very work that was between the three Estates agreed to be done for the Good and Safety of the Kingdom was in sundry particulars declared and expressed and not only so but as is acknowledged by the late King himself in his Answer to the nineteen Propositions The Power which thereby was legally placed in both Houses was more than sufficient to prevent and restrain Tyranny So that by what hath been shewed the Law it self is with me and for me enjoyning my continued attendance on the Trust which by this means was committed to me and authorized me in particular to effect the things contained in the said Preamble and to act in all matters belonging to the high Court of Parliament for the Good and Safety of the Kingdom in time of imminent danger I had been liable to great punishment by the Law for dis-attendance and deserting my station therein till lawfully or by force dismissed there-from and this whatever occasions others might have by a voluntary or forc'd departure from attendance upon that Trust The actions therefore done by me in this capacity and according to the Law Priviledges Customs and Power of Parliament and that such a one as was thus extraordinarily constituted neither are nor can be brought within the Statute of 25. Ed. 3. cap. 2. nor are to be questioned tried much less judged and sentenc'd in any inferior Court Nay so far is it from this that by a Declaration and Resolution of Parliament Aug. 13. 1642 it is adjudged to be committing Treason in the highest degree to bring both or either Houses of Parliament under that or such like Imputations Nor till of late have I ever heard but that those who took the Judgment of Parliament for their rule and guide however tortuous or erroneous it might afterwards be accounted in succeeding times and they that acted by and under the countenance of their declared Judgments Orders or Ordinances ever acknowledged binding during the sitting of the Parliament were safe and indempnified from all punishment And
and Reason out of his hands by force or noise for half an hour or more they finally refused to hear his following Plea and Reasons for an Arrest of Judgment or forbearing their sudden and rash proceeding to Sentence They had promised him before Verdict they would hear any thing in that kind he had to offer as they had also before his pleading not guilty promised him Counsel which never was granted neither They drew him on step by step first to plead on his Arraignment-day then to admit the Juries Verdict on his Tryal-day so called for he never owned it for a Legal Tryal to his last breath and after that out comes the Judgement or Sentence of Death against him pronounced by the Lord Chief Justice Forster and that of the worst complexion and most infamous famous circumstances to wit that he should be hang'd drawn and quartered at Tyburn the common Execution-place for Theeves and Robbers But in the Order for his Execution for reasons best known to them that made it the manner of his death was altered into a beheading only on Tower-hill to which place they carried him on a Sled drawn with horses a circumstance very singular and never used for those that die there and which he was kept ignorant of till the very time one of the Sheriffs men having that morning a little before told him there was to be no Sled but that he was to walk on foot Some farther Remarques of this last dayes Proceedings of the Court with him besides what is already mentioned received from one that was present and did hear and see all being what he could best remember take as followeth After the customary formalities of the Court The Clerk demanded of Sir Henry Vane what he had to say why Sentence of Death should not be passed upon him Sir Henry Vane first alledged that he had not yet heard the Indictment read in Latine The debate upon this took up some time At length some of the King's Counsel desired that the Prisoner might be satisfied in that point Sir Henry desired that Counsel then might also be assigned him to make Exceptions thereto if they found cause otherwise he valued not the hearing of it read in Latine This was over-ruled by the Court he soon therefore desisted from any further urging it The next thing Sir Henry offered in his own defence was the Bill of Exceptions which he brought with him ready drawn and offered it to the Judges desiring them according to the Statute of Westminst 2. 31. made 13. Ed. 1. to sign it This he urged so home that the Statute was consulted and read in open Court running in favour of the Prisoner to this effect That if any man find himself aggrieved by the proceedings against him before any Justices let him write his Exception and desire the Justices to set their seals to it This Act was made sayes Cook that the party wronged might have a Foundation for a legal Process against the Justices by a Writ of Error having his Exception entred upon Record in the Court where the injury is done which through the Justices over-ruling it they could not before procure so the party grieved was without remedy for whose relief this Statute was made The Justices refusing to set to their seals the party grieved may have a Writ grounded on this Statute commanding them to set their seals to his Exception This Exception extends not only to all Pleas dilatory and peremptory c. but to all Challenges of any Jurors and any material Evidence given to any Jury which by the Court is over-ruled As in this Prisoners Case the Testimony about falsifying of his hand to writings c. was by what was offered to the Jury by Justice Windham Further sayes Cook on this Statute If the Justice or Justices die their Executors or Administrators may be proceeded against for the injury done And if the Judge or Judges deny to seal the Exception the party wronged may in the Writ of Error take Issue thereupon if he can prove by Witnesses the Judge or Judges denied to seal it Notwithstanding all this the Judges over-ruled this Plea also by such interpretation as themselves put upon that Statute to wit that it was not allowable in Criminal Cases for Life This makes the Law less careful for the preservation of a man's Life than any particulars of his Estate in controversies about which this Statute is affirmed by them to hold whereas Life is the greater and innocent Blood when spilt is irreversible as to the matter it cannot be gathered up again the Estate is the lesser and if an erroneous Judgment pass about it 't is reversible upon Traverse Writ of Error or otherwise The Reason they alledged for their pretended Opinion was this That if it be held in Criminal Cases for Life every Felon in Newgate might plead the same and so there would be no Goal-delivery Sir Henry answered his Case was not the Case of common Felons alledging the Grant of his Majesty to the Petition of both Houses for his Life in case he should be attainted There is no need therefore sure said he of fearing the consequence of spinning out the time a little with a person in his circumstances Besides he said he had been a Prisoner two years and never call'd on to give any account of himself and his actions so is it not with Felons which with other considerations may sufficiently evince that there is no need of such hasting his Death He told them withal that he desired not this for his own sake only but for theirs and for posterity that they might on a more leisurely and unprejudiced hearing of what may be said on all hands prevent the bringing of innocent Blood upon themselves and the Land But being in this also over-ruled by the Court say what he could He only desired he might understand whether they would all give it as their Common Judgment they would stand to That what he desired was not his due by the Law By this means they were all put upon it one by one to declare themselves in that point unanimously denying him the benefit of that Act. To the by-standers their chief Reason seemed to be that it had not been practised this hundred or two of years The third thing Sir Henry desired was That the Petition of both Houses with his Majesties Answer thereunto might be read in the Court which after some dispute was concluded to be a thing they were not bound to take notice of not being an Act of Parliament Yet what is any Act of Parliament but a Bill presented with the Petition of both Houses to his Majesty with his Royal Assent thereto upon Publick Record At length they condescended to reade it and that was all The fourth and last thing Sir Henry offered to the consideration of of the Bench was this That in regard there were questions touching matter of Law in his Case which must receive their determination in
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
of that Statute several Kings have been deposed by Parliaments since the Conquest and as to my compassing or designing the natural death of the King's Person with what colour can I be accused of such intentions in the circumstances the King at that time was in beyond the Seas Secondly The assembling of men together without any hostility or injury offered to any person but for a man 's own security and defence in a time of confusion and distraction is not Levying War or Treason at the Common Law or by that Statute Yea in this Case and at the season wherein such an Act as this is alledged it might be supposed to be done for the King's Restoration as well as in opposition thereunto and the most favourable and advantagious construction ought to be made and put upon the Prisoner's actings or words where there is ambiguity so that they may be taken or interpreted divers wayes For the Law alwayes presumeth actions to be innocent till the contrary be manifestly proved However in a time of vacancy or an Interregnum when the Foundations of Government are out of course by the Law of Reason Nature and Common Prudence every man may stand upon his own guard endeavouring his own security and protection from injury and violence Thirdly To be adherent to the King's Enemies within his Realm c. cannot ought not to be understood of any adhaesion to a Parliament wherein the King by Law is supposed alwayes present as a part thereof Nor can the Long Parliament be called the King's Enemies without overthrowing the Act of Indempnity which the King hath declared to be the Foundation of the Nations present Peace and Security Lastly The Treasons alledged in the Indictment are said to have been committed when the King was out of possession So the Indictments runs to keep out the King c. Now my Lord Cook in the third part of his Institutes fol. 7. saith A King de jure and not de facto is not within this Statute Against such a one no Treason can be committed For if there be a King regnant in possession though he be Rex de facto and not de jure yet is he Seignior le Roy within the purview of this Statute and the other that hath Right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto And after in the same place he saith That by Law there is alwayes a King in whose Name the Laws are to be maintained and executed otherwayes Justice would fail The Act also of 11. Hen. 7. was made for security of the Subject on this behalf The word King also may and ought to be taken largely for any Sovereign Power in a King or Queen as Cook in the place fore-quoted shews and why not by the same reason in a Protector though a Usurper or any other persons one or more in whom Soveraignty is lodged or that have all the badges of Soveraignty as the calling of Parliaments enacting of Laws coining of Money receiving Forreign Ambassadors c. His Majesty that now is is granted by the very Indictment to have been then out of possession If so then was there either some other King or what was equivolent some Sovereign Power in actual possession and exercise or none If the former then was there a King de facto so no Treason could be committed against him that was King de jure only If the latter then the Government was dissolved no allegiance was due to any persons and so no offence could be properly Treason within the Statute But had the late Protector had the name and stile of a King no Treason could have been committed against the King de jure only Now God forbid that you should give away my Life upon such niceties because a usurping Protector was not clothed with the Title as well as Power of a King The Protector or any Usurper's taking or not taking the Title of a King in case he have the Power cannot alter the state of my supposed crime You ought not to be byassed by popular Reports concerning me 'T is easier to be innocent than so reported The one is in our own power not the other Fifthly Concerning the Evidence 1. No allegation was directly proved by two positive lawful Witnesses as in this case it ought to be 2. One of the Witnesses for the King confessed in open Court that to his knowledge my hand had been counterfeited to my prejudice and dammage in great Sums of Money yet Orders pretended to be signed by me wherein my hand may as well be counterfeited are taken as Evidence against me 3. The Issue of the whole Cause depended on the solution of some difficult Questions of so high a nature and great importance as could not safely be determined but in the high Court of Parliament As 1. Whether the Long Parliament called in Novemb. 1640 were dissolved by the late King's Death 2. Whether the successive remaining Powers that exercised the Royal or Supream Authority from 1648 to the Restoration of his now Majesty were not within the true sense and meaning of 25. Edw. 3. and 11. Hen. 7 As to other pertinent Queries thou mayest see them Reader in other parts of this Tryal That which remains as an Appendix to this Bill of Exceptions is to lay before thee the Grounds which plainly shew that there was a downright Conspiracy in Sir Vane's Tenants and others to prosecute him for Life and Estate under colour and pretence of Justice 1. Presently after I was committed to the Tower for High Treason and made a Close-Prisoner Mr. Oneale Sir William Darcy and Dr. Cradock obtained an Order from the King to seize and take into their possession all the Estates of such persons that were already or should be forfeited to his Majesty Hereupon the said Mr. Oneale and Sir Will. Darcy appointed some under them in the Bishoprick of Durham by name Thomas Bowes Esque now deceased and Capt. William Darcy to joyn with the said Dr. Cradock to put in execution the said Warrant as their Deputies who thereupon went to Raby Castle and demanded the Rent-Books of Thomas Mowbray my Steward offering him his place under them which he refused Contrary to this proceeding Sir Edward Cook expresly declares That before Indictment the Goods or other things of any Offender cannot be searched inventoried or in any sort seized nor after Indictment seized removed or taken away before Conviction or Attainder Institut 3d part chap. 133. concerning the Seizure of Goods c. for Offences c. before Conviction 2. At the Instance and Prosecution of my Tenants and others an Order was made by the House of Commons not of the Lords requiring the Tenants of such persons as were excepted out of the General Pardon to detain their Rents in
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
extraordinariness thereof And I beseech your Lordships to let me go on without interruption in my endeavouring to make it out as clearly as God shall enable me and as briefly also not to spend too much of your time In general I do affirm of this Case That it is so comprehensive as to take in the very Interests of Heaven and Earth First Of God the Universal Soveraign and King of Kings Secondly That of earthly Soveraigns who are God's Vicegerents as also the Interests of all Mankind that stand in the relation of Subjects to the one or both those sorts of Soveraigns This is general More particularly within the bowels of this Case is that Cause of God that hath stated it self in the late Differnces and Wars that have happened and arisen within these three Nations and have been of more than twenty years continuance which for the greater certainty and solemnity hath been recorded in the form of a National Covenant in which the generality of the three Nations have been either implicitly involved or expresly concern'd by the signing of their Names The principal things contained in that Covenant were the known and commonly received Duties which either as Men or as Christians we owed and stood obliged to perform either to God the highest and universal King in Church and State or to our natural Lord and Sovereign the Kings of this Realm in subordination to God and his Laws Again It contains as well the Duties which we owe to every particular and individual person in their several stations and callings as to the King in general and our Representative Body in Parliament assembled These Duties we are thereby obliged to yeeld and perform in consistency with and in a just subordination and manifest agreeableness to the Laws of God as is therein expressed And this also in no disagreement to the Laws of the Land as they then were By this solemn Covenant and Agreement of the three Nations giving up themselves in subjection to God and to his Laws in the first place as the Allegiance they owe to their highest Soveraign as the Creator Redeemer Owner and Ruler of all Mankind they have so far interested the Son of God in the the Supream Rule and Government of these Nations that nothing therein ought to be brought into practice contrary to his revealed Will in the holy Scriptures and his known and most righteous Laws This Duty which we owe to God the universal King Nature and Christianity do so clearly teach and assert that it needs no more than to be named For this subjection and allegiance to God and his Laws by a Right so indisputable all are accountable before the Judgment-seat of Christ It is true indeed men may de facto become open Rebels to God and to his Laws and prove such as forfeit his Protection and engage him to proceed against them as his professed Enemies But with your Lordships favour give me leave to say that that which you have made a Rule for your proceedings in my Case will indeed hold and that very strongly in this that is to say in the sence wherein Christ the Son of God is King de jure not only in general over the whole World but in particular in relation to these three Kingdoms He ought not to be kept out of his Throne nor his visible Government that consists in the Authority of his Word and Laws suppressed and trampled under foot under any pretence whatsoever And in the asserting and adhering unto the Right of this highest Soveraign as stated in the Covenant before mentioned The Lords and Commons joyntly before the year 1648 and the Commons alone afterwards to the very times charged in the Indictment did manage the War and late Differences within these Kingdoms And whatever defections did happen by Apostates Hypocrites and Time-serving worldlings there was a party amongst them that continued firm sincere and chast unto the last and loved it better than their very lives of which number I am not ashamed to profess my self to be not so much admiring the form and words of the Covenant as the righteous and holy ends therein expressed and the true sense and meaning thereof which I have reason to know Nor will I deny but that as to the manner of the prosecution of the Covenant to other ends than it self warrants and with a rigid oppressive spirit to bring all dissenting minds and tender Consciences under one Uniformity of Church-discipline and government it was utterly against my Judgment For I alwayes esteemed it more agreeable to the Word of God that the Ends and Work declared in the Covenant should be promoted in a spirit of love and forbearance to differing Judgments and Consciences that thereby we might be approving our selves in doing that to others which we desire they would do to us and so though upon different principles be found joynt and faithful advancers of the Reformation contained in the Covenant both publick and personal This happy Union and Conjunction of all Interests in the respective duties of all relations agreed and consented to by the common suffrage of the three Nations as well in their publick Parliamentary capacity as private stations appeared to me a Rule and measure approved of and commanded by Parliament for my action and deportment though it met with great opposition in a tedious sad and long War and this under the name and pretext of Royal Authority Yet as this Case appeared to me in my conscience under all its circumstances of Times of Persons and of Revolutions inevitably happening by the hand of God and the course of his wise Providences I held it safest and best to keep my station in Parliament to the last under the guidance and protection of their Authority and in pursuance of the Ends before declared in my just Defence This general and publick Case of the Kingdoms is so well known by the Declarations and Actions that have passed on both sides that I need but name it since this matter was not done in a corner but frequently contended for in the high places of the Field and written even with characters of Blood And out of the bowels of these Publick Differences and Disputes doth my particular Case arise for which I am called into question But admitting it come to my lot to stand single in the witness I am to give to this Glorious Cause and to be left alone as in a sort I am yet being upheld with the Authority before asserted and keeping my self in union and conjunction therewith I am not afraid to bear my Witness to it in this great Presence nor to seal it with my Blood if called thereunto And I am so far satisfied in my conscience and understanding that it neither is nor can be Treason either against the Law of Nature or the Law of the Land either malum per se or malum prohibitum that on the contrary it is the duty I owed to God the universal King 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
Parliament he desired he might have Counsel assigned him to argue them before their Lordships Some of these points he instanced in to wit 1. Whether a Parliament were accountable to any inferiour Court 2. Whether the King being out of possession and the Power Regent in others Here they stopt him not suffering him to proceed nor admitting that the King was ever out of possession To which Sir Henry replied The words of his Indictment ran thus that he endeavoured to keep out his Majesty and how could he keep him out of the Realm if he were not out But when he saw they would over-rule him in all and were bent upon his Condemnation he put up his Papers appealing to the Righteous Judgment of God who he told them must judge them as well as him often expressing his satisfaction to die upon this Testimony which Keeling one of the King's Counsel insultingly answered So you may Sir in good time by the grace of God The same person had often before shewed a very snappish property towards the Prisoner and Sir Henry sometimes answered him according to his folly For when he would have had the Book out of the Prisoner's hand wherein was the Statute of Westminster 2d. 31. Sir Henry told him he had a very officious Memory and when he was of Counsel for him he would find him Books Whereby was verified what was said to be spoken by him at first in answer to one of his Brethren on the Arraignment day Though we know not what to say to him we know what to do with him After Sentence given Chief Justice Forster endeavoured to take off the King from any Obligation by that Grant to the Petition of both Houses saying That God though full of mercy yet intended his mercy only to the penitent Reasons for an Arrest of Judgment writ by the Prisoner but refused to be heard by the Court. I. I Have been denied so much as to hear the Indictment read in Latine as it is the Original Record of the Court yea so much as a Copy of it in English hath been denied me during the whole time of my Tryal by the fight whereof I might be able to assign the defects of Law that may be in it Counsel also hath been denied not only before I pleaded but after and all points by me offered in Law to the Judges of the Court have been over-ruled without admitting me Counsel to argue the same and better inform the Judgment of the Court I have demanded that I might put in a Bill of Exceptions upon the Statute of Westminst 2d. cap. 31. This likewise is denied me over-ruled and judged as out of that Statute Neither will Counsel be allowed me in this to shew cause why it ought to be admitted as of Right And as no Counsel was allowed so neither were the Judges Counsel to me as they said themselves they would and ought to be but rather suffered me to wrong and prejudice my self some of them saying Let him go on the worst will be his own at last And they neither checked nor restrained the King's Counsel in their high and irritating expressions to the Jury to find me guilty One of whom were seen to speak privately with the Foreman of the Jury immediately before the Jurors went from the Bar after he had spoken openly That the Prisoner was to be made a publick Sacrifice in reference to the Actions done against his Majesty that now is All this is very far from that Indifferency in Tryal and from that Equality which the Law requires and they are bound by their Oath to afford me besides the undue proceedings in the business of the Petty Jury A List of forty eight persons was presented to me who being to me unknown and no time allowed me to gain any knowledge of them though I was permitted to challenge and refuse three Juries without shewing cause yet could not that refusal be upon such rational grounds as the Law supposes which doubtless intends substantial relief to the Prisoner in allowing him the liberty of such refusal whereas through my ignorance of the persons I might refuse the best and chuse the worst as to my safety And then whereas the Law further allows me the refusal of any other beyond the thirty five on just and exceptionable cause shewen what just exception was I capable to alledge in a sudden hurry against persons to me altogether unknown unless it would be taken for a just one that they were unknown to me All these things being so contrary to the Right which the Judges stand obliged to do to every one as they are for that purpose entrusted by God and the King is just cause for an Arrest of Judgment and a good Reason why they should yet at length allow me a Copy of the Indictment and assign Counsel to argue for the Prisoner against the defects in Law that may be found therein Without this Law is denied me which is my Birthright and Inheritance the best Birthright the Subject hath sayes Cook on Mag. Charta for thereby sayes he his Goods Lands Wife Children his Body Life Honour and Estimation are protected from injury The Life Birthright or Inheritance we have from our parents may soon be gone if this Fence thereof be broken down How great a wrong then it is for the Court to withhold it from me is manifest Are they not therefore in effect chargeable with my Blood by such unequal Proceedings as I have had in my Tryal II. My second Reason for an Arrest of Judgment is drawn from the Issue that is joyned in my Case which seems to depend chiefly upon matter of Law and that in such tender and high points as are only determinable in the high Court of Parliament For it is become the question Whether I am guilty or not guilty according as these Propositions following are truly or erroneously resolved 1. Whether the Parliament that began Novemb. 3. 1640 were dissolved by the King's Death and whether this Court may judge things done in Parliament 2. Whether the Powers regnant and de facto that successively were in being from Jan. 30. 1648 to Decemb. 20 1659 were such Powers de facto as are the King or Seigneur le Roy within the purview of the Stat. 25. Ed. 3. having the exercise of Regal Power in all the particulars of it though not the name 3. Whether during that time fore-mentioned his Majesty that now is were properly King de facto or whether he were not out of possession and without all exercise of his Regal Authority within the Realm 4. Whether the Case now in question be a Treason literally within the words of the Statute 25. Ed. 3. or at most any other than an interpretative and new Treason not declared before the very time of my Tryal and that only by the Judgment of the Court or opinion of my Judges eleven years after some of the things charged on me are alledged to have been committed As