Memorandums for, and towards my Defence.
Upon hearing the Indictment read, and before pleading.
FIrst, To lay before the Court the impossibility that he humbly con∣ceives, is already in view, as to the having any such indifferent and equal Tryal, as the Law intends him, and doth require and command on the behalf of all the free-People of England. The Rise for this Conception he takes from what hath been already done in relation to the Prisoner himself, unheard, unexamined, and yet kept close Prisoner for near two whole years. This he shall leave to the Judgment of the Court, after he hath made known the particulars thereof unto them, as necessary to precede the thing demanded of him, in pleading guilty, or not guilty.
Secondly, What is the indifferency which the Law requires and appoints throughout, as well in matters that go before the Tryal, as in the proceedings at the Tryal if it self?
Before the Tryal, and in the first step to it, which is the keeping and securing his person, Magna Charta is clear, and gives this Rule, cap 29. Nullus liber homo capiatur, &c.
No free-man shall be taken or imprisoned, or be disseised of his free∣hold or liberties, or free-customs, or be outlawed or exiled, or any other∣wise destroyed; Nor we will not passe upon him, nor 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.
Out of this Chapter, as out of a root (saith Sir Edward Cook) do many fruitful branches of the Law of England spring. It contains nine branches; some whereof I shall insist upon in my Case.
First, That no man be taken or imprisoned but per Legem Terrae, that is, by the Common Law or Custom of England; which words, per Legem Terrae, though put last, refer to all the precedent branches.
Secondly, The Goods of any Offender cannot regularly be taken Page 22 and seized to the King's use before Conviction, nor be Inventoried, nor the Town charged therewith, before the owner be indicted of Record.
Thirdly, No man shall be exiled or banished out of his Country, not be in any sort destroyed but by the verdict of his Peers.
This appears by Bracton and other ancient Writers, quoted by Cook, in the third part of his Institutes, fol. 228.
Upon the whole matter saith Cook, these two Conclusions are ma∣nifestly proved.
First, 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.
Secondly, That the begging of the Goods or Estate of any De∣linquent, accused or indicted of any Treason, Felony, or other offence, before he be convicted and attainted, is utterly unlawful; Stat. Ri. 1. cap. 3.
And besides, it maketh the prosecution against the Delinquent, more precipitant, violent and undue, than the quiet and equal proceedings of the Law and Justice would permit: Or else, by some under-hand Agreement, stops or hinders the due course of Justice, and discoura∣geth both Judge, Juror and Witness to do their duty.
Thirdly, The Judges are not to give so much as their Opinion be∣fore-hand, concerning the Offence, whether it prove that Offence in that Case.
Cook in the chap. of Petty Treason, fol. 29. expresly saith; And to the end the Tryal may be the more indifferent, seeing the safety of the Prisoner consists in the indifferency of the Court, the Judges ought not to deliver their Opinions before-hand, of any Criminal Case, that may come before them judicially. And he there cites Humphrey Staffords Case that Arch Traitor, in which Hussey Chief Justice, be∣sought Hen. 7. not to demand of them their Opinions before-hand. And in the 4th of his Institutes, in the chap. of the High Court of Parliament, fol. 37, he fully shews the evil of asking the Judges Opi∣nions before-hand.
But instead of this, The Judges being assistant in the Lords house, when all Acts of Parliament passe, and whose Advice is taken in them, have (as appears by what is declared in the said Acts) prejudg'd by their Opinions and the Opinions of the Parliament before-hand, the merit of the Cause that now appears to be put upon the Issue in my Page 23 Tryal. Hereby the Judges are rendred ex parte, and the indifferency the Law requires, impossible to be afforded.
Nor is this all; but by the Rules declared in the Act of Indempni∣ty; all are disenabled to plead, or make use of the Ordinances, Orders and Votes of both, or either Houses of Parliament, that may have occa∣sion thereof; and then by excepting the Prisoner and his fellow out of the said Act, and all benefit thereby, a door is left open to Arraign, bring to Tryal and Sentence the whole Cause from the beginning to the ending, in the person of the Prisoner, and at the same time, de∣prive him of all means and possibility of Justification and Defence.
Fourthly, It is observable how early hard measure appeared in the way wherein the Prisoner became excepted out of the Act of Indemp∣nity, when the Commons, his proper Judges, declared him in their thoughts, not fit to be endangered in the point of Life; yet unto the Judgment of the Lords, (that ought not to judge Commoners, un∣brought before them by the Commons, much less, in opposite Judge∣ment to the Commons) The Commons were necessitated to yeeld, lest otherwise the Act of Indempnity to the whole Nation should stop upon this dispute and essential difference between the two Houses; A Competition, easily over-ruled; although (as it proves by the sequel) That Act of Indempnity is like to become felo de se, or a destroyer of it self, if your Lordships shall conceive your selves at liberty, (not∣withstanding that Act) not only to bring anew into memory upon the stage, the state of all the passed differences, from first to last, but to try and judge the merit of them in my person, and therein call in que∣stion the validity of that whole Act, and make void the benefit in∣tended by it, in case the War undertaken and managed by both or either of the Houses of Parliament, be judged unlawful, and within the Statute of 25. Ed. 3. For this adjudges all the People of England morally guilty of the evil of a sin and offence against the Law of Na∣ture, which once done, what ever promised Indempnity be granted for the present, the Evil of the Action remaining upon Record; not only to the Infamy of the whole People of England, but their future danger, upon pretence they have forfeited the very Indempnity granted.
Fifthly, The length of time taken to search out matter against the Prisoner, and the undue practices and courses to find out Witnesses, do further evidence how unlike the Prisoner is to have an equal and in∣different Tryal. He doubts not, this will appear in his two years close Imprisonement, (six months whereof was Banishment) during which Page 24 time, he was never so much as once examined, or had any question put to him, whereby he might conjecture wherefore he was committed to Prison, any further than was expressed in the Warrants of Commit∣ments.
Now these were so general, that nothing certain or particular could be gathered out of them. But upon the received opinion, that he was excepted out of the Act of Indempnity, and in the sence of both Houses, a great Delinquent, his Estate was attempted to be invento∣ried, his Rentals demanded, his Rents were actually seized in the Te∣nants hands, and they forbidden to pay them. His very Courts were prohibited by Officers of great Personages, claiming the Grant of the Estate, and threatning his Officers from doing their duty. By these kind of undue proceedings, the Prisoner had not wherewithal to maintain himself in Prison, and his Debts, to the value of above ten thousand pounds, were undischarged, either Principal or Interest. The hopes of private lucre and profit hereby, was such, in the Tenants and other persons, sought out for far and near, to be Witnesses, that it is no wonder at last, something by way of Charge comes to be exhi∣bited.
And as this is the Case of the Person before his appearance at this Bar, with respect to the foresaid unequal proceedings towards him, and the great disadvantages put upon him, and all these, as it were, in a continued series of Design; so, the matters and things themselves with which it now appears he is charged in the Indictment, make his Case still very extraordinary and unusual, involving him in difficulties that are insuperable, unless God's own immediate Power do shew it self in working his deliverance.
The things done, are for many years past, in a time of Differences between King and Parliament, and Wars ensuing thereupon. Many extraordinary Changes and Revolutions in the State and Government were necessitated in the course of God's Providence, for wise and holy ends of his, above the reach of humane wisdom.
The Authority by which they are done, is prejudged. The Orders, Votes and Resolutions of Parliament are made useless, and forbidden to be produced. Hereby, all manner of defence is taken away from the Prisoner; and that which was done according to Law, as the Laws of those times were, is endeavoured to be made unlawful, and so the per∣sons, acting according to such Laws, are brought to punishment.
The Judges (as hath been shewed) are forestalled in their Judge∣ments, by the declared sence of Parliaments, given ex post facto.Page 25 The Jurors are put upon difficulties never known before, for twelve Commoners to judge the Actions of all the Commons of England, in whom they are included, as to whose Judgment is the right, the one or the others; and whether their Representatives be trusty.
The Party indicted is under an incapacity to bring Witnesses, as well from the nature of the place wherein the things were done, within the Walls of the House, as from the shortness of time, having heard no∣thing of his Charge, and being kept a close Prisoner to the last day. His Solicitors and persons imployed in his Law-businesses, were also restrained from him.
It is also most evident, that the matters for which he is questioned, being the Product of so many years Agitations of Parliamantary Coun∣sels and Arms, cannot be of a single concern, nor be reputed as the actions of a private man, done of his own head, nor therefore come within any of the six Classes of Treason, contained in 25. Ed. 3.
It is a Case most unusual, and never happening before in this King∣dom; yet it is alledged in the Indictment to be a levying War with∣in that Statute, and so comes to have the name of High Treason put upon it, thereby (if possible) to deprive him of the use and benefit of Counsel, as also of competent time to prepare for his Defence, and all fitting and requisit means for the clearing of his Innocency. Unto this, unless some remedy be afforded by the justice, candor and favour of this Court, it may be better for the Prisoner (for ought he yet knows) to be immediately destroyed by special Command (if nothing else will satisfie) without any form of Law, as one to whom Quarter, after at least two years cool blood, is thought fit to be denied in relation to the late Wars. This may seem better, than under a colour and form of Justice, to pretend to give him the benefit of the Law and the King's Courts, whose part it is, to set free the Innocent, upon an Equal and Indifferent Tryal had before them, if their Cause will bear it: but it is very visible beforehand, that all possible means of Defence are taken and withheld from him, and Laws are made ex post facto, to fore∣judge the merit of the Cause, the Party being unheard.
And when he hath said all this, that as a rational man, does occur to him, and is fit for him to represent in all humility to the Court, he craves leave further to adde; That he stands at this Bar not only as a man, and a man clothed with the Priviledges of the most Sovereign Court, but as a Christian, that hath Faith and reliance in God, through whose gracious and wise appointment, he is brought into these circum∣stances, and unto this place at this time, whose Will he desires to be Page 26 found resigned up into, as well in what He now calls him to suffer, as in what He hath called him formerly to act, for the good of his Coun∣try, and of the People of God in it. Upon this bottom (he blesses the Name of his God) he is fearless, and knows the issue will be good what ever it prove. God's strength may appear in the Prisoner's weak∣ness; and the more all things carry the face of certain ruine and de∣struction unto all that is near and dear to him in this world, the more will divine deliverance and salvation appear; to the making good of that Scripture, That he that is content to lose his life in God's Cause and Way, shall save it, and he that instead thereof goes about to save his life upon undue terms, shall lose it.
Far be it therefore from me, to have knowingly, maliciously or wittingly offended the Law, rightly understood and asserted; much less, to have done any thing that is malum per se, or that is morally evil. This is that I allow not as I am a Man, and what I desire with stedfastness to resist, as I am a Christian. If I can judge any thing of my own Case, The true reason of the present difficulties and straits I am in, is because I have desired to walk by a just and righte∣ous Rule in all my Actions, and not to serve the lusts and passions of men, but had rather die, than wittingly and deliberately sin against God and transgress his holy Laws, or prefer my own private Interest before the Good of the whole Community I relate unto, in the King∣dom where the lot of my residence is cast.