The true Copy of the Prisoner's own Papers, containing the sub∣stance 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. Page 37 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 al∣teration, but by their own common Assent, declared by Act of Par∣liament, 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 Ma∣jesties 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 Mo∣neys; which Credit cannot be obtained until such obstacles be first re∣moved, as are occasioned by fears, jealousies and apprehensions of di∣vers 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, Page 38 whatever occasions others might have, by a voluntary or forc'd de∣parture 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 Trea∣son 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 du∣ring the sitting of the Parliament) were safe and indempnified from all punishment. And for Government-sake it self, it is requisit it should be so; because none are Judges of the Power and Priviledges of Par∣liament, but themselves. For admit once, that their Judgment may be called in question, and disputed by private persons, or by inferiour Courts, (whose Votes are included in theirs) the Fundamentals of Government are plucked up by the roots. Par in pares non habet Imperium, multó minus in eos qui majus Imperium habent; An Equal has no command over his Equal, much less over those that have a greater command or authority.
His late Majesty, in his Answer to the nineteen Propositions, does very briefly and exactly state the nature and kind of Government, that is exercised in this Kingdom, saying, The Laws in this Kingdom are made by a King, a House of Peers, and a House of Commons, chosen by the People, all having free Votes, and particular Priviledges. These three Estates, making one incorporate body, are they, in whom the So∣veraignty and Supream Power is placed, as to the making and re∣pealing of Laws. And the Government, according to these Laws, is trusted to the King, who in the Interval of Parliaments, is sole in the exercise of Government, which (the Parliament sitting) he is to exercise in conjunction with the two Houses.
And his said Majesty asserting three sorts of Government, Absolute Monarchy, Aristocracy, and Democracy, does most rightly distinguish the Monarchy of England from all those three, and commends the Page 39 Constitution of this Kingdom, as it is a mixture of all three, having the conveniencies of them all, without the inconveniencies of any one, as long as the ballance hangs even between the three Estates, that they run joyntly on in their proper channels, and that the overflowing of either on either side, raise no deluge nor inundation.
By the passing of the foresaid Act, for the continuance of the fore∣mentioned Parliament, the Intervals of Parliament were no longer, as before, at the will and pleasure of the King, but the Power to continue the said Parliament, without Adjournment, Prorogation, or Dis∣solution, resided in the two Houses with the King, joyntly, and in none of them severally; so that in effect, the Government of the Kingdom, during the continuance of that Parliament, was in conjunction of the three Estates, and in their common consents and agreements among themselves, given in Parliament, the assembling and meeting whereof was appointed and fixed to a place certain, by Law.
By reason hereof, it is not the attendance of any of the Members in Parliament (for discharge of the Trust reposed in them, confirm'd and enlarged by the said Act) that is faulty or censurable by the Law, but those that unwarrantably depart and desert that their Trust and station, are to be blamed; 6. Hen. 8. 16.
The King in conjunction with the Parliament, is maxime Rex, and is supported in the Throne and exercise of his Regal Power, by the joynt concurrence of both Houses. And because (as his late Ma∣jesty well observed) the happiness and good of the Constitution of this Government, lies in keeping the ballance even between the three Estates, containing themselves within the bounds of their proper channels, there∣fore in attempts of either to overflow those bounds, (they being co∣ordinate) the Office of a Parliament is by the very fundamental consti∣tution of the Government, to keep this ballance well poised. And to that end (as was before mentioned) his Majesties own words are in his said Answer to the nineteen Propositions; That there was legally placed in both Houses, a Power more than sufficient to prevent and restrain the Power of Tyranny. If so, then are they the legal Judges, when there is danger of Tyranny; and have legal power to require their Judgment and Resolves to be obeyed, not only when Arms are actually raised against them, but when they discern and accordingly declare a preparation towards it: else, they may find it too late to pre∣vent the power of Tyranny. There is no greater attempt of Tyranny, than to arm against the Parliament; and there is no visible way for the restraining such Tyranny, but by raising Arms in their own and the Page 40 Kingdoms defence. Less than this is not sufficient, and therefore far from more than sufficient, for the punishment of Delinquents and re∣straint of Tyranny.
Unto the King in conjunction with his two Houses, according as is provided by the Law, in this capacity of his as maxime Rex, was the duty of Allegiance to be yeelded by his Subjects, during the indis∣solved state of that Parliament. For they were the King's great Coun∣cil, and supream Court, exercising the known Power and Priviledges, that time out of mind have appertained to them, and been put forth by them, as the Exigents of the Kingdom have required, when differences have happened about the very title of the Crown, in declaring the duty of the Subject, by yeelding their Allegiance to Kings de facto, when Kings de jure have been kept out of possession. This our Chro∣nicles, and the Histories of former times, do plentifully inform.
The causes that did happen, to move his late Majesty to depart from his Parliament, and continue for many years, not only at a distance and in a disjunction from them, but at last, in a declared posture of Enmity and War against them, are so well known and fully stated in print (not to say, written in characters of blood) on both parts, that I shall only mention it, and refer to it.
This matter was not done in a corner. The Appeals were solemn, and the decision by the Sword, was given by that God, who being the Judge of the whole World, does Right, and cannot do other∣wise.
By occasion of these unhappy differences, thus happening most great and unusual Changes and Revolutions, like an irresistible Torrent, did break in upon us, not only to the disjoynting that Parliamentary Assem∣bly among themselves, (the head from the members, the co-ordinates from each other, and the houses within themselves) but to the creating such formed divisions among the people, and to the producing such a general state of Confusion and Disorder, that hardly any were able to know their duty, and with certainly to discern who were to command and who to obey. All things seemed to be reduced, and in a manner resolved into their first elements and principles.
Nevertheless, as dark as such a state might be, the Law of England leaves not the Subjects thereof (as I humbly conceive) without some glimpses of direction what to do, in the cleaving to, and pursuing of which, I hope I shall not be accounted nor judged an offender; or if I am, I shall have the comfort and peace of my Actions to support me in and under my greatest sufferings.
Page 41 The Resolutions of all the Judges in Calvin's Case, entituled, Post∣nati, in the 7th Book of Cook's Reports, and the learned Arguments thereupon, afforded me instruction even in this matter. It may be 'tis truly thence affirmed, that Allegiance is due only to the King, and how due, is also shewed.
The King is acknowledged to have two capacities in him; one a natural, as he is descended of the Blood Royal of the Realm; and the Body natural he hath in this capacity, is of the creation of Almighty God and mortal: The other is a politick capacity, in respect of which he is a Body politick or mystical, framed by the policy of man, which is immortal and invisible. To the King, in both these capacities con∣joyn'd, Allegiance is due; that is to say, to the natural person of the King, accompanied with his politick capacity, or the politick appro∣priated to the natural.
The politick capacity of the King hath properly no body nor soul: for it is framed by the policy of man.
In all Indictments of Treason, when any one does intend the death and destruction of the King, it must needs be understood of his natural body, the other being immortal. The Indictment therefore concludes contra Legiantiae suae debitum, against the duty of his Allegiance, so that Allegiance is due to the natural body.
Admitting then that thus by Law, Allegiance is due to the King (as before recited) yet it is alwayes to be presumed, that it is to the King in conjunction with the Parliament, the Law, and the Kingdom, and not in disjunction from, or opposition to them; and that, while a Par∣liament is in being and cannot be dissolved, but by the Consent of the three Estates.
This is therefore that, which makes the matter in question, a new Case, that never before happened in the Kingdom, nor was possible to happen, unless there had been a Parliament constituted, as this was, un∣subjected to Adjournment, Prorogation or Dissolution, by the King's will. Where such a power is granted, and the co-ordinates thereupon disagree and fall out, such effects and consequents as these that have happened, will but too probably follow. And, if either the Law of Nature, or England, inform not in such case, it will be impossible for the Subjects to know their duty, when that Power and Command which ought to flow from three in conjunction, comes to be exercised by all or either of them, singly and apart, or by two of them against one.
When new and never-heard-of Changes do fall out in the Kingdom, it is not like that the known and written Laws of the Land should be Page 42 the exact Rule, but the Grounds and Rules of Justice, contained and declared in the Law of Nature, are and ought to be a Sanctuary in such cases, even by the very Common Law of England: For, thence originally spring the unerring Rules, that are set by the Divine and Eternal Law, for Rule and Subjection in all States and Kingdoms.
In contemplation hereof, as the Resolve of all the Judges, it was agreed,
1. That Allegiance is due to Soveraignty by the Law of Nature, to wit, that Law which God at the creation of Man, infused into his heart, for his preservation and direction, the Law eternal. Yet, is it not this Law, as it is in the heart of every individual man, that is bind∣ing over many, or legislative, but as it is the Act of a Community, or an Associated People, by the right dictates and perswasions of the work of this Law in their hearts. This appears in the Case of the Israelites, Judg. 20, & 21 chapters, cited in the 4th part of Cook's In∣stitutes, where mention is made of a Parliament without a King, that made War, and that with their Brethren. They met as one man to do it, in vindication of that Justice unto which they were obliged even by the Law of Nature. This is that which Chancellor Fortescue calls Political Power, here in England; by which, as by the Ordinance of man, in pursuance of the Ordinance of God, the Regal Office consti∣tuted, or the King's Politick Capacity, and becomes appropriated to his natural person.
Thus Politick Power is the immediate Efflux and Off-spring of the Law of Nature, and may be called a part of it. To this, Hooker in his Ecclesiastical Polity agrees, and Selden on that subject.
The Law of Nature thus considered, is part of the Law of England, as is evident by all the best received Law-Books, Bracton, Fleta, Lam∣bard upon the Saxon Laws, and Fortescue in the praise of the Laws of England. This is the Law that is before any judicial or municipal Law, as the root and fountain whence these and all Government un∣der God and his Law do flow.
This Politick Power, as it is exercised in conjunction with, and con∣formity to the Eternal Law, partakes of its moral and immutable na∣ture, and cannot be changed by Act of Parliament. Of this Law it is that Magna Charta and the Charter of Forest, with other Statutes, re∣hearsed in the Petition of Right, are for the most part declaratory. For they are not introductive of any new Law, but confirmations of what was good in all Laws of England, before. This agrees with that Maxime, Salus Populi suprema Lex; that being made due and binding Page 43 by this Law, which in the Judgment of the Community, declaring their mind by their own free chosen Delegates and Trustees, in har∣mony with the Eternal Law, appears profitable and necessary for the preservation and good of the whole Society.
This is the Law, which is put forth by the common consent of the whole Realm, in their Representative; and (according to the funda∣mental Constitutions of this Kingdom) is that, with which the Kings of this Land, by the joynt co-operation of the three Estates, do make and repeal Laws.
But through the disorders and divisions of the times, these two Po∣wers, the Regal and Political, (which, according to the Law of Eng∣land, make up but one and the same supream Authority) fell assunder, and found themselves in disjunction from, and opposition to one ano∣ther. I do not say, The question is now, which of these is most rightly, (according to the principles of the Law of Nature and the Law of England) to be adhered unto and obeyed, but unto whether Po∣wer adherence is a crime, in such an Exigent of State? Which, since it is such a new and extraordinary Case, evidently above the Track of the ordinary Rules, contained in the positive and municipal Laws of England, there can be no colour to bring it within the Statute of 25. Ed. 3. cap. 2. forasmuch as all Statutes presuppose these two Powers, Regal and Political, in conjunction, perfect unity and subserviency, which this Case does not, cannot admit. So exceeding new and ex∣traordinary a Case is it, that it may be doubted whether, and questi∣oned how far, any other Parliament, but that Parliament it self that was privy to all its own Actings and Intentions, can be an indifferent and competent Judge. But however, the point is of so abstruse and high consideration, as no inferiour Court can, or ought to judge of it, as by Law-Books is most undeniable; to wit, Bracton and others.
This then being the true state of the Case, and the spring of that Contest that ensued, and received its decision by the late War; The next Consideration is, how far I have had my share and part therein, that by the Laws is not warrantable, or by what appears in way of proof, to the Jury.
For the first, I shall crave leave to give you this account of my self, who have best known my own mind and intentions throughout, and would not now, to save my life, renounce the principles of that Righte∣ous Cause, which my conscience tells me, was my duty to be faithful unto.
I do therefore humbly affirm, That in the afore-mentioned great Page 44 Changes and Revolutions, from first to last, I was never a first mover, but alwayes a follower, chusing rather to adhere to things than per∣sons; and (where Authority was dark or dubious) to do things justi∣fiable 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 de∣pend 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 for∣tune, 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 Page 45 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 p•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 foun∣dations, 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 Bo∣dy of the Kingdom, represented in Parliament. Nay, though this Re∣presentation (as hath fallen out) be restrained for a season, to the Com∣mons 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 re∣moteness 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 sit∣ting among them.
Page 46 But to return to what I have before affirmed, as to my being no lea∣ding or first Actor in any Change, it is very apparent by my deport∣ment 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 al∣teration 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 the Parliament, to take an Oath, to give my approbation ex post facto to what was done, I utterly refused, and would not accept of sitting in the Council of State upon those terms, but occasioned a new Oath to be drawn, wherein that was omitted. Hereupon, many of the Council of State sate, that would not take the other.
In like manner, The Resolutions and Votes for changing the Go∣vernment into a Commonwealth or Free-State were passed, some weeks before my return to Parliament. Yet afterwards (so far as I judged the same consonant to the principles and grounds, declared in the Laws of England, for upholding that Political Power, which hath given the rise and introduction in this Nation, to Monarchy it self, by the account of antient Writers) I conceived it my duty, as the state of things did then appear to me, (notwithstanding the said Alteration made) to keep my station in Parliament, and to perform my Allegiance therein, to King and Kingdom, under the Powers then regnant, (up∣on my principles before declared) yeelding obedience to their Autho∣rity and Commands. And having received Trust, in reference to the safety and preservation of the Kingdom, in those times of imminent danger, (both within and without) I did conscientiously hold my self obliged, to be true and faithful therein. This I did upon a publick account, not daring to quit my station in Parliament, by vertue of my first Writ. Nor was it for any private or gainful ends, to profit my self or enrich my Relations. This may appear as well by the great Debt I have contracted, as by the destitute condition my many Children are in, as to any provision made for them. And I do publickly challenge all persons whatsoever, that can give information of any Bribes or co∣vert Page 47 wayes, used by me, during the whole time of my publick acting. Therefore I hope it will be evident to the Consciences of the Jury, that what I have done, hath been upon principles of Integrity, Honour, Justice, Reason and Conscience, and not as is suggested in the Indict∣ment, by instigation of the Devil, or want of the fear of God.
A second great Change that happened upon the Constitution of the Parliament, and in them, of the very Kingdom it self and the Laws thereof (to the plucking up the Liberties of it by the very roots, and the introducing of an Arbitrary Regal Power, under the name of Pro∣tector, by force, and the Law of the Sword) was the Usurpation of Cromwel, which I opposed from the beginning to the end, to that de∣gree of suffering, and with that constancy, that well near had cost me not only the loss of my Estate, but of my very Life, if he might have had his will, which a higher than he hindred. Yet I did remain a Prisoner, under great hardship, four months, in an Island, by his Orders.
Hereby, That which I have asserted, is most undeniably evident, as to the true grounds and ends of my actions all along, that were against Usurpation on the one hand, or such extraordinary Actings on the other, as I doubted the Laws might not warrant or indempnifie, unless I were inforced thereunto, by an over-ruling and inevitable necessity.
The third considerable Change, was the total disappointing and re∣moving of the said Usurpation, and the returning again of the Mem∣bers of Parliament to the exercise of their primitive and original Trust, for the good and safety of the Kingdom, so far as the state of the times would then permit them, being so much as they were, under the po∣wer of an Army, that for so long a time had influenced the Govern∣ment. Towards the recovery therefore of things again into their own channel, and upon the legal Root of the Peoples Liberties, to wit, their Common Consent in Parliament, given by their own Deputies and Trustees, I held it my duty to be again acting in publick Affairs, in the capacity of a Member of the said Parliament, then re-entred upon the actual Exercise of their former Power, or at least strugling for it. In this season I had the opportunity of declaring my true intentions, as to the Government, upon occasion of refusing the Oath of Abjuration be∣fore mentioned.
And whereas I am charged with keeping out his Majesty that now is, from exercising his Regal Power or Royal Authority in this his Kingdom; through the ill-will born me by that part of the Parliament then sitting, I was discharg'd from being a Member thereof, about Page 48Jan. 9. 1659, and by many of them was charged, or at least strongly suspected to be a Royalist: Yea, I was not only discharged from my attendance in Parliament, but confined as a prisoner at mine own house, some time before there was any visible power in the Nation that thought it seasonable to own the King's Interest. And I hope my sitting still, will not be imputed as a failer of duty, in the condition of a prisoner, and those circumstances I then was in. This I can say, that from the time I saw his Majesties Declarations from Breda, declaring his Inten∣tions and Resolutions as to his Return to take upon him the actual Ex∣ercise of his Regal Office in England, and to indempnifie all those that had been Actors in the late Differences and Wars, (as in the said De∣claration doth appear) I resolved, not to avoid any publick question, (if called thereto) as relying on mine own Innocency and his Majesties declared Favour, as beforesaid. And for the future I determined to de∣mean my self with that inoffensiveness and agreeableness to my duty, as to give no just matter of new provocation to his Majesty in his Go∣vernment. All this on my part, hath been punctually observed, what∣ever my sufferings have been. Nor am I willing, in the least, to har∣bour any discouraging thoughts in my mind, as to his Majesties Gene∣rosity and Favour towards me, who have been faithfull to the Trust I was engaged in, without any malicious intentions against his Majesty, his Crown or Dignity, as before hath been shewed. And I am de∣sirous for the future, to walk peaceably and blamelesly.
Whatever therefore my personal sufferings have been, since his Ma∣jesties Restoration, I rather impute them to the false reports and ca∣lumnies of mine enemies and misjudgers of my actions, than reckon them as any thing that hath proceeded from his Majesties proper incli∣nation, whose favour and clemency I have had just reason with all humility to acknowledge.
First, with regard to his Majesties Speech made the 27th of July, 1660, in the House of Peers, wherein his Majesty expresly declared it to be no intention of his, that a person under my circumstances should be excepted out of the Act of Indempnity, either for Life or Estate.
And, secondly, however it was the Parliaments pleasure (my self unheard, though then in the Tower, and ready to have been brought before them) to except me out of the common Indempnity, and subject me to question for my actions, yet they themselves, of their own accord (admitting the possibility that in such questioning of me, I might be at∣tainted) made it their humble desire to his Majesty, that in such case, Execution, as to my Life, might be remitted. Unto this his Majesty Page 49 readily gave his Grant and Assent. And I do firmly believe, if the Houses had pleased to give me the opportunity and leave of being heard, they would never have denied me the Indempnity granted to the rest of the Nation.
That which remains of further Charge yet to me, is the business of a Regiment, an imployment, which I can in truth affirm, mine own inclinations, nature and breeding little fitted me for, and which was intended onely as honorary and titular, with relation to Volunteers, who, by their application to the Council of State, in a time of great Commotions, did propound their own Officers, and (without any seeking of mine, or my considering any farther of it, than as the use of my Name) did (among others) nominate me for a Colonel, which the Council of State approved, granting Commissions to my self and all other Officers relating thereunto. And the Parliament confirmed my said Commission, upon report thereof made to them.
This will appear by several Witnesses I have to produce in this mat∣ter, that will be able to affirm, how little I took upon me, or at all, to give any Orders, or make use of such my Commission, any other∣wise than in name only.
'Tis true indeed, that at a certain time, when I was summoned to appear at the Committee of the Militia in Southwark, whereof I was a Member; That which was called my own Company of Foot (from the respect which they and their Officers pretended to me) were de∣sirous to be in a posture, fit for me to see them, and as I passed by, I took the opportunity at their desire to shew my self to them, and only (as taking notice of their respect) in some few words, expressing the reason I had to receive it in good part, I told them I would no longer detain them from their other occasions. After I was gone from them, I appointed my Capt. Lieutenant to give them from me something to drink, as might be fitting on such an occasion, which, to my best re∣membrance was five pounds, and he laid it out of his own money.
More than this (as I remember) was not done by me, so much as to the seeing any more, the Companies of that Regiment gathered to∣gether, or giving Orders to them, which I publickly and avowedly declined, perswading the Officers to lay down their Charges, in mine own example, so soon as I discern'd the intentions of the sitting down of the Committee of Safety, and the exorbitant power committed to them to exercise, and the way of proceedings by the Army, in interest∣ing themselves in the Civil Government of the Nation, which I utter∣ly disliked.
Page 50 And although I forbore not to keep my station, in reference to the Council of State while they sate, or as a Commissioner of the Admi∣ralty, during the time by them appointed to act by Parliamentary Au∣thority; and so, had occasion to be daily conversant with the Mem∣bers of the Committee of Safety, (whereof my self, with others that would not accept, were named) yet I perfectly kept my self dis-inte∣rested from all those Actings of the Army, as to any Consent or Ap∣probation of mine, (however in many things by way of discourse, I did not decline converse with them) holding it my duty, to penetrate as far as I could into their true Intentions and Actions, but resolving within my self to hold true to my Parliamentary Trust, in all things wherein the Parliament appeared to me to act for the safety and good of the Kingdom, however I was mis-interpreted and judged by them, as one that rather favoured some of the Army and their power.
Upon the whole matter, There is not any precedent, that ever both or either of the Houses of Parliament did commit Treason. For though Priviledge of Parliament does not so hold in Treason, but that particular Members may be punished for it, yet it is unprecedented, That both or either Houses of Parliament, as a collective Body, ever did or could commit Treason.
All the Acts done in Parliaments, have been reversed indeed, and repealed, as what was done 11. Ric. 2. was repealed, 21. Ric. 2; and what was done 21. Ric. 2. was repealed 1 Hen. 4. 3; as ap∣pears by the printed Statutes. Yet I do not find, that both or either House of Parliament were declared Traitors for what they did in those Parliaments; Or that any which acted under them, suffered for the same in any inferiour Courts. And surely, the reason is obvious: For they had a co-ordinacy in the Supream or Legislative Power, for the making, altering and repealing Laws. And if so, Par in parem non habet imperium; and by authorities out of Bracton, Fleta, and others, it may appear what Superiours the King himself hath, (who yet hath no Peer in his Kingdom, nisi Curium Baronum) God, Law, and Parliament.
And if either or both Houses cannot commit Treason. Then those that act by their Authority, cannot: For, plus peccat Author quam Actor, the Author offends more than the Actor. If those that com∣mand, do not, not can commit Treason, how can those that act by their Authority, be guilty of it?
Further, I must crave leave to assert, by reason of what I see opened upon the Evidence; That what is done in Parliament, or by their Page 51 Authority, ought not to be questioned in any other Court. For every offence committed in any Court, must be punished in the same, or in some higher, and not any inferiour Court. Now, the Court of Parlia∣ment hath no superiour Court, as is said in Cook's Jurisdiction of Courts. And the reason there given, that Judges ought not to give any opinion in a matter of Parliament, is, because it is not to be decided by the Common Laws, but secundum Legem & Consuetudinem Par∣liamenti. This, the Judges in divers Parliaments have confessed. And that reason is not to be waved, which the Lord Cook gives: That a man can make no defence; for what is said and acted there, is done in Council, and none ought to reveal the secrets of the House: Every Member hath a Judicial Voice, and can be no Witness.
The main substance of these Papers was read and enlarged upon by the Prisoner, this day of his Tryal. He was often interrupted, but his memory was still relieved by his Papers, so as after whatever diversi∣ons caused by the Court or Counsel, he could recover himself again, and proceed. Yet the edge and force of his Plea, as to the influencing of the Jurors Consciences, may appear to have been much abated by such interruptions, as doubtless was intended, and will more at large appear, when it shall please God to afford us a full Narrative of the Proceedings of the King's Judges, Counsel and Jurors about him, and of all that he occasionally said, upon the digressions by them caused.