Fourthly, Concerning the Indictment.
1. I have not been permitted to have a copy or sight of the Indict∣ment, nor so much as to hear it read in Latine, which is the original Record of the Court, and ought to be the foundation of their whole proceeding with me. I often desired these things of the Court; yea, or at least, to have but the Transcripts of some particular clauses in the Indictment, to enable me to shew the deficiencies thereof in Law, (all which, others in such cases have often obtained) but nothing would be granted herein.
This then was my hard lot and usage; I was put (after two years close Imprisonment) to answer for my Life, to a long Indictment, read in English, which whether it were rightly translated how should I know, that might not hear the Original Record in Latine? Counsel also learned in the Law, were denied me, though pressed for by me, again and again, before I pleaded. And had they been granted, what could they have said as to defects of Law in the Indictment, unless they might have a Copy of it? What can any Counsel say to any petty bu∣siness concerning any part of a man's Estate that's in controversie, un∣less they may have a leisurely view and perusal of the Writings therea∣bouts? much more sure will it appear requisit, to the reason of all man∣kind, when a man's whole Estate, Life and all are at stake. 'Tis true, before I pleaded, this Court promised I should have Counsel assigned me after pleading, (God forfend else, said the Lord Chief Justice) but 'tis as true, I never could yet see that promise made good. All things tending to a fair Tryal, were promised me in general before pleading, but every material particular for the just defence of my Life, hath been Page 67 denied me ever since. And my Tryal for Life was hudled up the next day of my appearing before you; The Jury as was told me) must not eat or drink, till they had done their work; (so the more than forty Jewry-men that resolved to kill Paul, Act. 23. 21.) But why such haste and precipitancy for a man's Life, that's more than Meat or Estate, when you can let Civil Causes about mens Estates depend ma∣ny years? and if an erroneous Judgment be passed in such matters, 'tis reversible; But if innocent Blood be spilt, it cannot be gathered up again, as the wise woman of Tekoah said, 2 Sam. 14.
2. But secondly then, As to defects in the Indictment, which I was in some measure enabled to observe from that broken hearing thereof, that was afforded me here in the Court; I say, there are ma∣ny, and those very considerable; and by the Law of England I ought not to have been urged to plead or make answer to such an illegal and defective Indictment.
1. There is no sufficient Overt Act therein alledged, of the Prisoner's imagining the King's Death, or that he had any the least intention that way.
2. The Levying of a War, is alledged in Southwark, and cannot therefore be tryed by a Jury of Middlesex; Dyer, fol. 234. and the 3d part of Cook's Institutes, fol. 34.
3. There is uncertainty and obscurity in the main thing alledged against me in the Indictment; to wit, That I, together with a multi∣tude of persons, to the number of a thousand, unknown to the Jury, &c. whereas no Criminal Act can be tryed that is not certain; Certa res debet esse quae deducitur in Judicium.
4. The Treason laid to my charge, is alledged to have been com∣mitted with a multitude of other false Traitors, which were pardoned by the Act of Indempnity; such supposed crimes therefore of theirs cannot be remembred or alledged, without a manifest breach of the Act of Indempnity and Oblivion.
The Indictment is, or ought to be founded on some clause or branch of 25. Ed. 3. chap. 2. But no such Overt Act is alledged in the Indict∣ment, or proved by Witnesses, as doth discover that I had any inten∣tion to kill, depose or hold out the King from the possession and exer∣cise of his Regal Power.
Whereas I am accused of compassing or imagining the Death of the King; this must be understood of his natural or personal, not politick capacity; for in this latter sence, the Law sayes, the King cannot die.
First then, to compass only the Deposition of the King, is not within Page 68 the words of that Statute, (several Kings have been deposed by Par∣liaments 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 de∣fence, 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 Parlia∣ment, wherein the King by Law is supposed alwayes present, as a part thereof. Nor can the Long Parliament be called the King's Ene∣mies, 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 Indict∣ments 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 Page 69 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 per∣sons, 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 Ma∣jesty 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 exer∣cise, 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, with∣in the Statute.
But had the late Protector had the name and stile of a King, no Trea∣son 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. 'Tis easier to be innocent, than so reported. The one is in our own power, not the other.