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 rec∣koned 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, Page 12 and takes in a series of publick action, of above twenty years continu∣ance. It took its rise and had its root in the Being, Authority Judg∣ment, Resolutions, Votes and Orders of a Parliament, and that, a Par∣liament 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 Parlia∣men•, 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 ne∣cessary and unavoidable Actings of the Representative Body of the Kingdom, for the preservation of the good People thereof, in their al∣legiance 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 Privi∣ledges of Parliament, and the Rights and Liberties of the Subjects, with their Swords; The Blood and Destruction that should ensue ther∣upon, must be wholly cast upon their account, God and their own con∣sciences 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 pre∣tence of a Guard) expressed in the humble Petition of the Lords and Commons, (May 23. 1642.) wherein they beseech his Majesty to dis∣band 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 Page 13 Laws and Constitutions of this Kingdom, to employ their care and ut∣most power, to secure the Parliament, and preserve the peace and quiet of the Kingdom.
May 20. 1642, The two Houses of Parliament gave their Judg∣ment, 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 Consul∣tations 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 Par∣liament, 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 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 Parlia∣ment, 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 sup∣pressing 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 Ene∣mies 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 wret∣ched 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 Vo•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 Page 14 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 Rea∣son 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 be∣fore, 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 pro∣per 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 Ju∣stice, 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 Page 15 of his People in Parliament, to make Remedy and Law, for the re∣moving 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 Consci∣ence, 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 An∣swer 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 Par∣don 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 De∣terminations 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 Page 16 no War can be levied against the King, but what is directed and in∣tended against his Person; Or, that every levying of Forces for the de∣fence of the King's Authority, and of his Kingdom, against the per∣sonal Commands of the King, opposed thereunto, (though accompa∣nied 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 neces∣sarily 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 le∣vying War, though not against his Person, is a levying War against the King; whereas the levying of Force against his personal Com∣mands, 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 King∣dom, 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 Try∣al, 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: Other∣wise, under this pretext, the Priviledge of Parliament in this matter, may be so essentially broken, as thereby the very Being of Parlia∣ments 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 up∣holds the Kingdom.
Page 17 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 King∣dom, 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 Maje∣sties 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 mean∣ing 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 at∣tainted, or forfeit any thing.
What was the scope of this Statute?
Answ. To provide, that men should not suffer as Traitors for ser∣ving 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 ex∣pressed 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 Page 18 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 there∣by, 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 War∣beck, or any that should call himself King, but such a one, as (what∣ever his Title might prove, either in himself or in his Ancestors) should be received and acknowledged for such, by the Kingdome, the Con∣sent whereof cannot be discern'd but by Parliament; the Act where∣of, 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 King∣dom. 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 to have dissolv'd all the bands of service and confidence be∣tween his Majesty and his Parliament, of whom the Law sayes, a dishonourable thing ought not to be imagined.
This Conclusion then is a clear Result from what hath been argued; That in all Cases of such difficulty and unusualness, happening by the over-ruling Providence of God, as render it impossible for the Subject to know his duty, by any known Law or certain Rule ex∣tant, his relying then, upon the Judgment and Reason of the whole Realm, declared by their Representative Body in Parliament, then sit∣ting, and adhering thereto, and pursuing thereof, (though the same afterwards be by succeeding Parliaments, judged erroneous, factious and unjust) is most agreeable to right Reason and good Conscience; and in so doing, all persons are to be free and secure from all Account Page 19 and Penalties, not only upon the ground and equity of that Statute, 11 Hen. 7. but according to all Rules of Justice, natural or moral.