you may do, more or better we cannot by any Light of reason expect.

The Sixth Argument.

But, my Lord, if all this be but a wind against a rock, and move you to no declining of the exercise of your power, though against my right; yet certainly, my Lord, where your power and my right may be consistent, you will not stretch your power to the taking away my right; but rather by giving me my right, magnify your power.

This I may reasonably expect. It is my right (granting you to be my judges), to be tried by my peers, the good men of my neighbourhood, and it is in your power (if your power be not inward), to try me so.

That this is my right, I must revisit (f) Magna Charta,Nisi per legale judicium parium

• suorum.'

The law of Ed. 1. having confirmed the great Charter, (g) saith, And we will, that if any judgment hereafter be given contrary to the points of the Charter aforesaid, by the justices, or by any other our ministers that hold plea before them against the points of the Charter, it shall be undone and holden for 'nought.' And upon this very Law or Clause, a writ of error was brought by the (h) earl of Lancaster, for the misattainder of his brother, whose heir he was; and in that the points were two, and upon them both, judgment given for a reversal.

1. Quod non fuit araniatus et ad responsionem positis tempore pacis, eo quod cancellaria, et aliæ curiæ regis fuerant apertæ, in quo lex fiebat unicuique prout fieri consuevit.

Attinctus.

2. Quod condemnatus sive adjudicatus fuit absque araniamento seu responsione, seu legali judicio parium, contra legem, et contra tenorem Magna Chartæ.

The like reversals, and upon the like reasons, have been had, In the (i) count de Arundel's case. In sir John of Lee's Case, It is provided, That no man from thenceforth should be attached by any accusation, nor forejudged of life, nor of limb, nor his lands, &c. against the form of the great Charter, and the law of the land. (k)

My Lord; Our fathers saw a Parliament (and reaped the blessing of it), which was called Benedictum Parliamentum (which hath circumscribed the loose interpreters of treasons to a standard, and not left it to be individuum vagum); and there it is said, that persons guilty of High-Treason (and my charge is not for less) must be provably attaint of open deed, by people of their own condition. And again it is

(f) Magna Charta, 9 Hen. 3. 29.
(g) 25 Edw. I. cap. 1 and 2.

(h) Pasch. 39 Edw. 3. John of Gaunt's

Case.

(i) 4 Edw. 3. Num. 13. Rot. Parl. 42 Edw. 3. Num. 23. Rot. Parl. 5 Edw. 3.

(k) 52 Edw. 3. 2 cap. 4 ejusd.

accorded, assented and established, that from henceforth none shall be taken by petition, or suggestion made to the king, or his council, unless it be by indictment, or presentment of his good and lawful people of his neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law; Nor (1) that none be ousted of his franchises, or of his freehold, unless he be duly brought to answer, and fore-judged of the same by the course of law; and if any thing be done against the same, it shall be redressed, and holden for none. It is assented and established (for the good governance of the Commons), that no man be put to answer without presentment before Justices, or matter of record, or by due process and writ original, according to the old law of the land; and if any thing from henceforth be done contrary, it shall be void in law, and holden for error.

My Lord; That it is my right to be tried by a Jury of twelve men de viceneto, is evident; and it is as evident, that if you otherwise proceed with me (if law were not out of fashion), you would but weave Penelope's web, and one day's judgment would be unraveled by the next day's writ of error.

But after-games for life are dangerous; and for estate, I have no great cause to be solici tous: but my right is my duty to preserve, as in relation to myself, and my honour to keep it if it may be, from being in iny precedent taken also from my countrymen, the Freemen (if any such be now) of England, who have equal reason, though they may be wanting (some of them) of the same reasons wherewith to defend it.

That your Lordship may proceed by Jury, for aught is said, or contained in your Act to the contrary;

1. I pray consider the before-recited laws are all unrepealed; and therefore if this law intend to oppose those laws, it should have repealed them, or at least have afforded a slight Non-obstante, or have given the subject the comfort of a hac vice tantum, that we might not have thought ourselves robbed of all, but only plundered of a part of our right for necessity and experience sake, or at least have given us the favour of the earl of Strafford's Act, that it should never be drawn into example: but I am sure in this Act, that proceeding against him is super-exampled.

2. I desire you would consider your qualification; you are made commissioners, and that of Oyer and Terminer, and those are not proceeders in their own proper, natural and habitual constitution and practices, upon and according to their own judgments in matters of fact: you are in these words, viz.

Required to hear and determine, &c. constituted Commissioners of Oyer and Terminer.

3. You are authorised to proceed to Trial, condemnation and execution, &c. but you are not restrained to the manner of such proceed

(1) The like in effect in 28 Edw. 3. 3. 37. Edw. 3. 18. 42 Edw. 3. 3.

In Treason, two sufficient witnesses by the Statute of Edw. 6, are requisite; sufficient in relation to their quality, and to the fulness of their testimony.

ings to Trial exclusively, as to trial per pares, but left to do the manner of the Trial, as well as the judgment or execution, as you, or the major part of you, or twelve of you shall judge to appertain to justice: And if such major part shall think fit to proceed by presentment and Jury, doubtless such your proceeding is no Præmunire against the power given you by the Act; but it is justifiable to fall within the letter of the Act, and that without a strained con

struction.

4. And if when you may lawfully (I mean by your own law, if Argumenti ergo, it be granted a law) try me by a jury, and will not; then, my lord, pardon me, that I must aver, that you take from me, and in me from the commonalty of England, three great privileges, franchise and rights; to which I and they are, by the known, ancient, and unabrogated, unrepealed, and constantly practised laws, entitled; which will be neither equitable nor honourable for you to do.

1. You take away the benefit of Challenge, which I might make to a jury or jurors.

And that is contrary to my right, which is given me by the (m) Common Law, in favorem vite, to challenge in case of High-Treason, for I go to no less) thirty-five peremptorily, and for reason of challenge sans number.

This was judged in 32 Hen. 6, abridged by* Fitz-Herbert, fol. 26, per challeng. where eight Jurors were sworn, and the rest challenged, a new return made; and those eight returned, and though formerly allowed and sworn, yet challenged, and adjudged good.

The like allowed in Hil. 1 Jac. in the Cases of sir Walter Raleigh and Brook.

If this benefit were allowed me, my Lord, to except or challenge the whole Court, who are in number and quality my Triers, as a Jury are, I should not need to be peremptory in my challenge, being furnished with abundant rea

son.

[Here he was interrupted by Keeble, who said, those Statutes and Cases were out of date now.]

My lord; A jury of Middlesex will be no more nor less, if what I am accused of, to have endeavoured, should take effect; and therefore are not less concerned: I cannot say the same of the Court (or if I should, I should not be believed,) and he that but whispers against Diana at Ephesus, makes all the craftsmen his ene

mies.

2. The second benefit and right, which by denying me a Trial per pares, you take from me, is the benefit of seeing, hearing, and counterquestioning the witnesses produced against me; which, in such way of trials, ought to be

Τίτα voce.

That such is the law, † Mr. Stamford averreth in his Pleas of the Crown. And,

(m) Stamp. pl. Cor. T. Chaleng. fol. 150. Poyning's Case.

+ Stam. P. C. fol. 163, 164, Stat. Philip and Mary 1, and 2 cap. 10.

Sir Edward Coke 3 Inst. f. 12. (an Author as authentic as any) put this for law in his expositions of the words in the Statutes for Treason, Provablement attaint;' because the punishment was great, the proof should be punctual; not upon presumptions or inferences, or strains of wit, but upon good and sufficient proofs. And this he makes good by the authority of Stamford, and the several statutes of Philp and Mary, and of queen Elizabeth, and of Edw. 6.-Now, my lord, an evidence either taken in writing, as the person will voluntarily give it, or cautiously taken as the examiner will ask it (who is not sworn to take it indifferently, no more than the framers of the questions are to propound them fairly,) may be a seeming fair, apposite, and a full testimony; or concerning the person giving testimony, or concerning the modus, the ubi, the quando, &c. the whole laid together may prove either nothing, or a malicious thing.||-The case of sir Thomas More, Lord Chancellor, accused for bribery, is common; and I hope, if mine have fair play, it will prove no worse.

3. The third and last right and privilege you take from me, is the main of all the rest, and to the making of which (as it should be made up) all the rest are but conducing, and leading; that is, of a fair Verdict.

My Lord; By a Jury a verdict passeth from all, or not at all; and one knowing and conscientious man may preserve that innocent man, whom eleven either ignorant or careless men would destroy. This Court's sentence is to be stated by number of voices, and some of them possibly not judging their own judgments, but concurring where their opinion of another's judgment shall lead them; which, as it was the great evil of the late court of Star-Chamber, so wheresoever it is used (in Trials of life especially) it is and can be no other than an evil.

My lord; By and from a Jury a verdict passeth before their discharge upon their necessary affairs, nay affairs of nature; and therefore they will give it both the righter, because their evidence is fresh in memory, without the intervention of other matters, as also for that they are without opportunity to be perverted by money or friendship. If this Court receive

Stam. P. C. 164, 89, 1 Ed. 6, cap. 12. 1 and 2 Philip and Mary, 10, 11, 1 Edw. 6, and 16 Eliz. 1.

|| Bernard and Pits, witnesses against col. John Andrewe and sir John Gell, were apparently suborned by Bradshaw and sir Henry Mildinay against them, and good proof offered to the Court that they were both flagitious men, of scandalous life and conversation: both Bernard and Pitts were set to work to betray Andrewe and Geil, for which Bernard had 300!. and a troop of horse conferred on him. Walker's History of Independency, p. 29,

See 34.

my Oath of Allegiance (from which no man can absolve me) is a negative to that, &c. 4. I have not taken the present Engagement, much more against my Oath of Allegiance than the Negative Oath.-If I had had so little conscience as to have taken them, I would have bad so much as to have kept them; and the State cannot in reason expect from me, or any other, that we should take a second, when we see no conscience made of keeping the first; nor to take a third, the first and second being broken, without other dispensation than power, which, like Alexander's sword, cuts the Gordian knot which it cannot untie.-Neither hath any man assurance, if he should take the last Engagement, that he should have liberty to keep it longer than the fancy of the State held to the now new fashion of goverument.--And therefore I stand clear as a down-right subject of England, to stand or fall by the Common Laws of England; and if they will deny me that, they deny my Birth-right, which is equally righteous, and no more just, than to deny me my estate, my calling, my abode, my means of right.

Secondly, As to my Action at Linton, I justify myself, 1. By the late King's Commission, which my accuser knows I had, and under which he was by the same king constituted my major. 2. What was done, was so done, when he who gave me the commission was in being, and oppressed by injurious imprisonment; and what I did, was in order to his inlargement from his thraldom, and restorement to his lawful power; which was that to which my duty as a subject, by my Oath of Allegiance did bind me in general terms, and the duty of my qualification laid me under a particular obligation *.It was done before the now reputed Parliament were, or pretended to be the supreme authority of the nation, or had assumed the power of government, or were framed into a state: and consequently I am not answerable to them for any opposition to them, further than the common law binds to Parliaments without their head and hand, or defective in their members; and as to such offence (if it be one) this Court is not qualified to take any cognizance.

Thirdly, As to the design concerning the surprise of the isle of Ely, it was but a bare discourse or communication, and no formal design laid, agreed unto, nor person engaged in it, so much as by promise. And in cases of Conspiracy against the lives of kings, there were some statutes made, that very words and communications should be reputed Treason; but all repealed or expired, and not thought fit by wisdom of law-makers (having indisputable power to make laws) to be revived since the

11 Hen. 1, c. 1. That the subjects of this realm are obliged, by reason of their allegiance, to serve the prince for the time being, in his wars for the defence of him and the land against every rebellion or foreign power, within the land or without; and ought not to suffer in life, member, estate or office for so doing.

VOL. V.

days of queen Mary, notwithstanding those very many Treasons hatched and designed against queen Elizabeth, and king James, &c. If, in the highest point of Treason, communication be not Treason against lawful princes, certainly an affection, where the offence (such as it is) is of a far inferior nature of itself, so it had a far inferior object, or subject, concerning whom such discourse was holden.

Fourthly, As to my supposed corresponding with the king, the lord Hopton and the earl of Cleveland (if true) it was so long since, as that it falls not within compass of this Court's commission to try, being confined to infant matters of a year old, and my Charge not exhibited to the Court of Justice before Monday the 15th of July. My last letter, received from lord Hopton, bears date at the Hague, 18th or 28th of June, and was received in two days into Sussex.

Fifthly, As to the drawing, signing, or sealing of the Engagement, it consists of several branches. That, de facto, I did it, and must not deny it, because I have confessed it, which was more than needed to them who knew it without enquiry; for I dare aver, that they had their instrument by them employed and cherished in betraying me to it; and have some years past had a man in my bosom to watch me and my motions, which I did affirm to the Lord President, and he not denied it, but said, it was no more than did become any state to do, who had so much cause to hold an active man in suspect, as they had me, having never come in and laid down the cudgels, but held to my principles, and was ready upon every occasion to take fire.

And this I will prove, if I have legal, or (because that word is worn out of use) fair dealing from the Court. And out of that I may justly infer, what will be visible enough, that it is the State's act, and but my consent, and they in no danger of me, but that I should preserve myself from their new laws; into the lapse of which I was not otherwise, or by any other action, fallen.

As to the parts of it: 1. It consists of an Oath of Secrecy. 2. An owning of King Charles II to be such. 3. A Resolution to endeavour to make him such. 4. A crimination of the State, under the names of Rebels and Opposers, who would not have him to be such. To these, as they are ranked, 1. The Oath of Secrecy hath relation only as to the not discovering the co-engagers in that resolution, and the resolution itself being not treason, the oath of keeping secret that resolution is not greater than the thing resolved. 1. The thing resolved was to endeavour, but not an actual endeavouring. 2. If it were an actual endeavouring, yet it can only be supposed that it must be endeavoured by a war to be levied; and the endeavour to levy a war never actually levied, is not treason against the king, against whom only, and his relations, by our old laws, which are laws, a treason can be committed; and party treason I am not accused for. That a bare intention, D

resolution, or engagement, to levy a war is not treason, I refer myself to my lord Coke, 3 Inst. fol. 14 and 38, who tells us (and he is a man of credit) in his book (printed and allowed for law by the houses, when they were two) that a conspiracy (and this Engagement amounts not to so much, but rather to an intention only to conspire) to raise a war (as hath been said, and so resolved) is no treason by the act of Edw. 3, until the war levied, as within, or to be reached by those words in that law (Overt Act); and if it were not Treason in those words in the original, it falls not within the words of the translation of this new-born law, viz. by any open deed. As to the first and third branches of the Engagement, which are interwoven, I conclude that neither of them, that is to say, neither the Oath nor the Resolution, are Treasons, either within the old or the few laws, either in respect of the persons against whom, or the progress made in the thing itself.

2. As to the owning of Charles 2, it falls not within your law; for that it is not a publishing, proclaiming, or publicly declaring his title. The words of the act are, proclaim, declare, publish, or any way promote,' which promoting is matter of action more than a private owning And this by the oath itself was not to be published, nor could, without publishing the engagement itself, which was contrary to

the oath.

And though it may be objected, that the raising the war could not be done, but by publishing his Title, and the Engagement at last; yet that, if it be granted, was no forwarder than an intendment; no more was this publishing, and being not done, falls not within your act.

The crimination of the State is but guessed at by implication (for they are not named) to be meant, and I believe your law reaches only to things literal, and not constructive only; and for the word Rebels, I hope they will not take that to themselves, and the word Opposers is a very innocent expression, and at the worst is all but a scandal.

Defence, as in all Courts, where such proceedings were used, was allowed. If it be objected, That it was not used in cases of Treason, I answer, it is true; if they hold the ancient way of Trials, not; but if they proceed this way, it is but just; and otherwise the Court are at liberty to use all means, public or private, to catch me; but I have none to defend myself: so that it appears that they seek not to do justice, but execution.

And whether they be confronted or examined, these questions are to be propounded, either viva voce, or by Interrogatory; and if by Interrogatory, I must stand upon a fair way of examination, viz. That some one from me, as well as one for the State's behalf, may be present, and set down the Examinations or Depositions; and that I may have a copy of them, as well against me, as for me, as well taken already by the State, or to be taken upon my

motion.

The Questions.

1. Whether he knows major? Barnard, how long? &c. What communication and corre spondence concerning me, or my actions held between them? Whether he knew of the supposed design against the isle of Ely, and of the late Engagement? How he knew them, and upon what reason, and to what end discovered to him, and by whom?

2. Whether he did inform the state (or any member of the council) of them, and how long he hath so informed?

3. Whether he ever had in his custody the Engagement under the hands and seals, and my letter to sir John Gell? If so, where, and whe ther not at Gravesend at my being there? Whether he were sent to watch me, and knew of my being there, before my being apprehended?

The same questions, mutatis mutandis, to bę. propounded to Barnard; and farther to him, and to Benson, Holmes, Ashley, Smith, as they are marked.

4. Whether he did propound in both designs to me, or I to him? Whether I sought him, or he me? In what disposition he found me, upon the time by the Act limited for departure? &c.

5. Whether he were real to me in the particulars of persons, confederates, or money, ready to engage and to be advanced; and if not, then to what end he feigned these to me?

If the Court proceeds by way of Indictment, then I shall move, that those persons may be confronted, whom, in my Narrative, Exauninations, and Letters, I have named, and that I may demand of them, &c. As also, that major Parker may be produced, to be likewise demanded of, as a person by me lately, and since my papers sent to the State, discovered to be of the plot to betray me.

If the Court proceed by way of Articles, and upon Examinations taken against me, I desire, and that is but reason, that I may examine my

7. Whether he were set upon me, to watch my ways and motions? And whether he were not promised, or did design unto himself profit for the discovering of me, and such whom I should bring in ?

8. Whether I framed, or ever read the said supposed design? Or was to be de futuro ac quainted with it?

9. Whether he brought, or I sought Benson,. or Holmes? And whether confederates with him, or designed upon by him?

10. Whether my engagement were absolute,