Selections from the Trial and Execution of Col. Daniel Axtell in October 1660.
An Exact and Impartial Accompt Of the Indictment, Arraignment, Tryal, and Judgment (according to Law) of Twenty Nine Regicides, The Murtherers of His Late Sacred Majesty Of Most Glorious Memory...; London: Andrew Crook & Edward Powel, 1660. 329 pages.
(This is a transcription of the 1679 edition available on a microfilm of 17th century books through interlibrary loan. I believe the 1679 edition is an exact reprint of the 1660 edition published in London by Andrew Crook & Edward Powel. There is also a 1739 edition and may be others.)
Some introductory notes:
These pages are transcribed from the book by Daniel Gibson Axtell. Spelling, capitalization, and italicization have been carefully transcribed. Only the occasional obvious transposition of two letters or other singular misspellings have been corrected for ease of reading. 21st Century readers should note that English spelling was not formalized in 1660. Capitalization is similar to that of modern German, where nouns get capitalized, but its not that consistent. Clearly, several persons had the job of transcribing the court proceedings, and each had different ideas of the rules of English. Names get various spellings even in the same paragraph. These inconsistencies have been carefully copied.
Note that Daniel Axtell (a 27-year-old captain in 1649 at the time of the crime) is not charged with anything he did as a Souldier, only for those things he did on his own that were not part of his Commission. He never does deny that he encouraged his soldiers to shout Execution, Execution! He is accused of Compassing and Imagining the Death of the King. The earliest meaning of compass is to arrange or measure. The early definition of imagine is to create the idea of. (Find a Merriam-Webster dictionary if you canthat publisher always lists the oldest definitions first, instead of the most common definition.)
There are references to Elisha/Alisha Axtell. I havent yet figured out who he is.DGA March 2000.
October 15, 1660 started with William Howlets plea. Daniel Axtells trial followed, but the book has this section titled, The Tryal of William Howlet. Justice was moving quickly; John Carew was executed the same morning as this trial and the Colonel was executed just four days later.
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15.Octo.1660 at the Sessions House in the Old Bailey.
The Tryal of William Howlet.
Memorandum, that the Bill of Indictment against William Hewlet alias Howlet was found at Hickes-hall 12 Octob. instant.
Proclamation of the Court being made,
Clerk of the Crown. Set William Hewlet alias Howlet to the Bar : which was done accordingly.
Cl. William Hewlet alias Howlet hold up thy hand. Thou standest Indicted of High Treason in the County of Middlesex, by the name of William Hewlet alias Howlet, for that thou, &c. How sayest thou, art thou guilty of the High Treason whereof you hast been Indicted and art now arraigned, or not guilty ?
Hewlet. I am not guilty my Lord.
Clerk. How wilt thou be tryed ?
Hewlet. By God and the Countrey.
Cl. God send thee a good delivery.
Set him aside.
Octob. 15. 1660.
Clerk of the Crown. Set Axtell to the Bar ; which was done accordingly.
Clerk. Daniel Axtell hold up thy Hand.
Axtell. Pray my Lord, let me have Pen and Ink.
L. Ch. Bar. Give Mr. Axtell Pen and Ink.
Cler. Daniel Axtell, these men that were last called of the Jury are to pass, &c. if you will challenge them or any of them, you must challenge them when they come to the Book before they are sworn.
L. Ch. Bar. Do you know how many you have liberty to challenge? because I would not have you misinformed, 35 you may challenge peremptorily, and no more.
Axtell. I thank you Lordship.
L. Ch. Bar. Unless you have any particular cause ; if so, you may challenge more.
Axtell. I confess I am wholly ignorant of the law.
John Kirke, John Smith, Thomas Morris, Ralph Halsell, John Sherecroft, Francis Beale, Robert Cromwell, John Gallyerd, John Shelbury, George Rithe, were called, and by the Prisoner challenged.
Thomas Bide, Charles Pitfield, Robert Sheppard, William Dod, Thomas Usman, William Maynerd, George Plucknet, Samuel Harris, John Nicoll of Hendon, Henry Marsh, Thomas Bishop, Thomas Snow, in all 12 were admitted, and sworn of the Jury.
Cler. of the Crown. If any man can inform my Lords the Kings Justices , &c.
Cl. Daniel Axtell hold up thy hand. Look upon the prisoner you that are sworn, and harken to your charge ; you shall understand that the prisoner stands Indicted, &c.
K. Council. May it please your Lordships, and you Gentlemen that are Sworn of the Jury, The High Court of Injustice that was Erected for Tryal of the late King, it had all the formalities of a Court to put in Execution that bloody Act ; they had their President, their Council, their Chaplain, and their Guards : some of their Judges have been already Tryed, one of their Council, and their Chaplain. Now may Lord, we come to the Guards, and this Gentleman at the Bar , that is now the Prisoner, He was Commander of that Black Guard, that cruel and bloody Guard : The Indictment is, That he did Imagin and compass the Death of the King ; there be several overt acts that are mentioned in the Indictment as Evidences of that Imagination, as the consultation to bring him to Tryal, the Actual bringing him to Tryal, and the Bloody Execution upon the Scaffold ; Our Evidence shall be this, That during the time of the Tryal, the Prisoner at the Bar did Command the Souldiers in Westminster-Hall, himself did keep the Entrance into the Court, and when Bradshaw did speak to the King and told him he trifled away time, and required his answer to the charge exhibited in the Name of the Commons of England Assembled in Parliament, and the good People of England ; that a Noble person in the Gallery there cryed out, it was a Lye, saying, that above half the Commons disowned it, saying, where are these good people ? it is a lye, Oliver Cromwel is a Traytor; this bloodly Fellow commanded the Souldiers to shoot her : he did several times command and encourage the Souldiers to cry out Justice, justice, and the last day of that horrid Tryal, called by them, the day of Judgement ; he likewise commanded them to cry out Execution, Execution, and when some of them would not do it, he had the Valour to Beat them. My Lords and Gentlemen of the Jury, if we prove any of these particulars to demonstrate unto you that he was Guilty of compassing and imagining the Kings Death, it is equal as if we had proved he did Actually cut off the Kings head.
Mr. Bodurdoe, Mr. Nutly, Mr. Harrington,
Sir Purback Temple, Mr. Sympson, Mr. Baker,
Mr. Huncks and Mr. Jeoner Sworn.
Coun. Mr. Symp. tell my Lords and the Jury, who had the command of the Souldiers during the Tryal of the King in Westminster-Hall.
Sym. My Lords (as I said before in the Case of Mr. Peters,) Col. Stubberd and Col. Axtel had the command of the Souldiers below Stairs, near that which was called the High Court of Justice.
Axtell. I desire to know his Name my Lord?
Sym. My Name is Holland Sympson.
Coun. Did you see him there commanding the Souldiers?
Sym. There was a kind of a Hubbub in the Court, there was a Lady (they said it was the lady Fairfax) who at the Exhibiting of the Charge against the King, said to be in the Name of the Commons and people of England; She spoke out aloud, and said, it was a lye, that not half, not a quarter of the people, Oliver Comwell is a Rogue and a Traytor, they called for a Guard, this Gentleman he was called, and brought up some Musqueteers, and commanded his Souldiers to Present and give Fire against the lady, and commanded her to Unmask.
Axtell. What Lady was it, I desire to know ?
Sim. She went by the name of the Lady Fairfax, I know not whether it was so or no, it was the common report it was she.
Cl. Mr. H. pray tell my Lord what you know of the Prisoner at the Bar.
Huncks. My Lord, to say positively any thing of the man touching his command I cannot, but only that morning the King Dyed he came into the Door of the Room where Colonel Phayre, Colonel Hacker , Cromwell and my self were (Ireton and Harrison lying in bed together in the same Room) and then he stood at the Door half in and half out ; I refusing to Sign and Order for Executing the King as Cromwell ordered me, and some little cross Language having passed, saith the Prisoner at the Bar, Colonel Huncks I am ashamed of you, the Ship is now coming into the harbour and will you strike Sayle before we come to Anchor. This I appeal to your self: but for crying out, knock them down, shoot them, I know not who it was, the Officers cryed Justice, and some of the Souldiers, but I profess I know not who it was particularly, but the cryed Justice, and then I fell a trembling , for I was afraid of the King ; but these were the words he used to me, will you strike Sayle, &c.
Axtell. My Lord, I desire to ask him a question.
L. Ch. Bar. Ask him what you will.
Axtell. If I am not in the right, I hope you Lordships will direct me.
L. Ch. Bar. Go on.
Axtell. Col. Huncks, where was it ?
Huncks. In a little Room in White hall, where Ireton and Harrison lay in bed together.
Axtell. Do you know whereabouts ?
Huncks. I think I can go to the Room ; I appeal to your own conscience before all this people.
Axtell. By your favour Sir the Room I perceive you know not , and truly Sir, My Lord, if you please to give me leave, because he appeals to my conscience, I do appeal to the Great God before whom it may be I may be Arraigned to give an account of all my words, thoughts and Actions ; I do not remember that ever I had any converse with this man there, or met him there, or any of that company there that day, he was a stranger to me, but I wish that you (to save your self being in the Warrant for Execution) do not make others a Peace-Offiring to save your self, the Lord that knows my heart, I appeal to him, I appeal to your own conscience because you appeal to my conscience, I never met you nor saw you there.
Huncks. Have you done? then give me leave, you say you do not know me , I appeal to the same God, when Cromwell took upon him to have the Crown, have not I said, What have you got by being Jehu-like, Lord strike me dead here if it be not true.
Axtell. I will not reflect upon him, but because he hath appealed to my conscience, therefore I speak it, it is known Notoriously how Jehu-like you were, when you were one of the chief Guards of his Majesty, one of the Fourty Halberteers that did oppose every person then for the King had I had time and had not been a close Prisoner as I was, there were Witnesses enough.
Council. This after our Evidence is more proper.
Huncks. Spare me not Col. Axtell.
L. Ch. Bar. Take the Old and Antient course, let the Witnesses that are produced for the king be all heard, then give your answer to all of them together.
Axtell. My Memory is not very good.
L. Ch. Bar. You have Pen, Ink and paper.
L. Ch. Bar. Mr. Axtell, is this all that you desire to speak to Col. Huncks ?
Axtell. Yes my Lord.
L. Ch. Bar. Have you any other Questions ?
Council. My Lord we have a few words, he Objects as if Col. Huncks were under a danger, he is pardoned.
Axtell. I desire to ask him upon what account these words were spoke ?
Huncks. My Lord it was this ; Cromwell having a Commission (which I think I heard read here) Colonel Hacker was reading of it, My Lord, Cromwell he comes to me and by Vertue of that Commission, he would have me to write a Warrant for Execution the King. I refusing to write that Warrant (upon this which he speaks of that standing a the Door, if God bless me I will search all the Doors at Whitehall but I will find it out) I not doing it, I said why should it be offered to me, sayes Cromwell thou art a peevish Fellow, Cromwell fell a writing, assoon as ever he had done that writing, he gave Hacker the pen, what Hacker writes I know not, and upon my refusing, this prisoner at the Bar said, Col. Huncks I am now ashamed of you, The Ship is now coming into the Harbour, and will you now strike Sayle before you cast Anchor ?
Council. You observe the course of this evidence, there was a Warrant or Commission directed to three person; Hacker, Huncks, and Phaire for Execution of the King ; Cromwell demanded of this Gentleman (Col. Huncks) that he should sign a Warrant by Vertue of that other Warrant, and this Gentleman refusing it, the Prisoner objects this, that he to save himself doth witness this against the Prisoner, Gentlemen he did refuse the thing , have you any thing to ask Col. Huncks?
Axtell. He says Col. Phaire and Hacker were there; I do not doubt but they will be so conscientious to vindicate me from all this Charge.
L. Ch. Bar. If it be any thing that tends to your defence, that you will be heard afterwards; but have you any Questions to ask Col. Huncks ?
Axtell. No more, I know nothing of it, if I were to dye at this Bar presently.
Council. Sir. Purback Temple, pray tell my Lords and the Jury you knowledge of the carriage of this Gentleman touching the Tryal of his Late Majesty.
Sir P. Tem. My Lord, being present, and engaged by some persons of Honour, Servants of his late Majesty, to be present when that horrid Murther was acting before this Court of Justice (as they called it) I was present at all the Tryals of the King, and very near him, I heard the King demand from Bradshaw by what Authority and Commission they proceeded thus strangely to Try him. Then I heard the Lady Fairfax and one Mrs. Nelson (my Sister) after the exhibiting of the charge in the Name of the Commons Assembled in Parliament, and the good people of this Kingdom against Charles Stuart King of England, I say I heard the said Lady cry out from a Gallery over the Court, Not half the people; it is false ! where are they or their Consents ? Oliver Cromwell is a Traitor ! Upon which I heard the Prisoner at the Bar cry out, Down with the Whores, shoot them , which made me take the further notice of him, seeing him in Westminster-Hall commanding the Souldiers there , I saw him the most activest person there ; and during the time that the King was urging to be heard, he was then laughing, entertaining his Souldiers, scoffing aloud, whilst some of the Souldiers by his suffering, and (I believe) procurement, did fire powder in the palms of their hands, that they did not onely offend his Majesties smell, but enforced him to rise up out of his Chair, and with his hand to turn away the smoke ; and after this he turned about to the people and smiled upon them, and those Souldiers that so rudely treated him : Then turning himself to Bradshaw, said to him and the Court, There are some sitting here (fixing his Eyes upon some persons near Bradshaw) that well knew, that if I would have Forfeited or Betrayed the Liberties and Rights of the People, I need not have come hither, (or words to this effect :) But their Liberties and Rights are dearer and nearer to me that my three Kingdoms ; nay than my life it self. Therefore I desire you to hear me, and remember, that I am your lawful King that have done you many Acts of Grace and Favour.
After which this person Mr. Axtell, Prisoner at the Bar, commanded his Souldiers to cry out, Justice, which the Souldiers not readily obeying of him, I saw him beat four or five of them with his Cane , until they cried out, (with himself) Justice, Justice, Execution, Execution, which made me turn to a Noble Lord, by whom I then stood , and said, Pray my Lord take notice, there is not above 4 or 5 that cry out Justice, Justice : I heard also of their spitting in the Kings Face; and I think no bodies sufferings have been so like those of our Saviour Christ Jesus, as his Majesties were. After this, this persons crying Justice, Justice, Execution, Execution a second time, the Court proceeded to pass a Sentence ; the which his Majesty pressed hard against, and told him, Sir, before you pass that ugly Sentence (which I very well understand you are intended to do, ) I desire you to hear me, hear me, hear me, passionately and not affectionately expressing it , which they denying the King, and the noice of Justice, Justice, Execution, Execution, being repeated, they proceeded , and read that ugly Sentence of Death : after which his Majesty was immediately hurried away from the Bar into a common Cedan, where he was carried by two common Porters ; which Cedan I followed to the middle of Kings Street , where I saw the two Porters, in reverence, go bare, till the Souldiers (under the Command of the Prisoner at the Bar) beat them, and would not suffer them to go bare when they carried him. After this the people cried out, What do you carry the King in a common Cedan as they carry such as have the Plague ? God deliver your Majesty out of such Enemies hands. In which Street I was forced to leave the sight of his Majesty, occasioned by the injuries and hurts I received in my person from the Souldiers under Axtels command, they carrying him through the Streets shouting in triumph. A short time after I received an importuate command from a Lady of great Honour ( a Servant of his Majesties) that I would endeavour to find out where the body of the Martyrd King was, and to give her an account where it then was : Applying my self to Whitehall, after two or threescore Intreaties, I was denyed; but understanding that money would do it , I gave the persons then under the command of Mr. Axtell that then kept it, to shew it me, half a piece, who in scoffing manner took me by the hand, said, If thou thinkest there is any sanctity or business in it, look here ; where I saw the Head of that blessed martyrd King lie in a Coffin with his Body, which smiled as perfectly as if it had been alive : this is the sad account of the martyrd King, and this sad horrid Prisoner Mr. Axtell.
Axtell. My Lord, may I ask that Gentleman some Questions ?
L. ch. Bar. Yes, yes.
Axtell. My Lord, He seems to say, that I bid the Souldiers cry out for Justice, he doth not at all say I was there in command, but he saith a Lady, by report the Lady Fairfax, spake some words, and that I should bid the Souldiers silence her ; truly I desire to know the certainty of the place where I stood.
Sir P. T. My lords and Gentlemen of the Jury, I saw this person standing within a Pike or twos length as I can guess it, (I remember the place within a yard of the ground in Westminster-Hall,) I do not say this person sate in the Court as a principal Officer that did then hold his Majesty Prisoner at the Bar, I did not say, it was a Lady unknown, or reported to be such a one ; but I said it was the Lady Fairfax , and my own Sister Mrs. Nelson, and he cried Shoot the Whores.
Axtell. He seems now to say, I commanded the Guards ; I never was a Guard to his Majesty, or had any thing to do in that business, but it was wholly committed to a company of men I know not of. That Gentleman that spoke I have no acquaintance with him ; I think he did not know me at that time.
L. ch. Bar. Have you any thing to ask him ?
Sir P. T. My Lord, another passage he puts into my memory, when I did observe a thousand of sad faces , I saw none laughing but your self, as if you had been carousing and entertaining the Souldiers. I do not charge you that you commanded those Halbertiers , but those Red-coats ; you were all in Red : I saw you cane those 4 or 5 Souldiers I mentioned, till they cried Justice, Justice with you ; and that with the powder in the plams of their hands, they forced the King to rise out of his Chair, which you were much pleased with and laughed at.
Axtell. I say before the Lord , before whom I must be judged again for this, I do deny this whole Evidence.
Griffith Bodurdoe, Esq; sworn.
Gr. Bod. My Lords and you Gentlemen of the jury, I was at the time of this sad Tryal in Westminster-Hall.
Axtell. Your Name Sir, I beseech you ?
Counsel. His Name is Mr. Bodurdoe.
Gr. Bo. I say I was all the time of the Kings Tryal in Westminster-Hall ; I was in a Gallery that I had out of my house where I then lived, just under and besides the House of Commons ; and I do remember I saw this Gentleman there ; I do think he was then called Lieutenant Colonel Axtell. so far as I remember ; truly, I have not seen him since before this day, nor have had any reason to have known him, but that I saw him very active in giving commands to the Souldiers there : this Gentleman was keeping the Court, letting some in, and putting others out : he seemed to have command of it; One day (whether it was about some passage or their Presidents Speech I know not,) there was a Lady in the same Gallery where I stood, and some muttering, It is a lye, not half the people, or words to this effect. He the now Prisoner at the Bar standing below in the Court within the Bar not far from Dendy , with some five or six Souldiers; upon this muttering and disturbance (as he apprehended) to the Court, he called to the Souldiers saying Shoot them if they speak one word more ; they did also present the muzles of their Muskets up to the Gallery : My Lord, by this we were very hush ; Dendy came to the Gallery from the Court to know who it was that made that disturbance. but the Lady was withdrawn into my Chamber , and did not come out afterwards.
Axtell. Where was this Sir ?
L. ch. Bar. What is it you desire ?
Axtell. My Lord, where he saw me then ?
L. ch. Bar. Mr. Bodurdoe, you hear the question.
Mr. Bod. There was a Gallery which I do believe is yet standing, and the Court was just underneath the Gallery and you were just underneath the Gallery and five or six Souldiers with you.
Richard Young, sworn.
Councel. What do you know of the carriage of the prisoner at the time of the Tryal.
Young. I was upon a Scaffold whereby I did see what was done in the Hall ; I saw that Lieut. Col. Axtell was busie and very active in encouraging the Souldiers to say, let us have Justice against the King.
Axtell. I desire to ask Mr. Young one question ? others say that the word was cry for Justice, this Gentleman is pleased to make some Addition, Let us have justice against the King.
Young. No not against the King, but I conceived you meant against the King.
Axtell. I cry you mercy, you do but conceive so.
Young. You were upon the right hand of the Hall almost at the corner near the pavement, it could not be otherwise applyed.
John Jeonar, sworn.
Councel. Speak your knowledge of Col. Axtells carriage at the High Court of Justice.
Jeonar. I had the Honour to wait upon the King as a domestick Servant to the time of his Death ; that day which was the first day the King was brought to his Tryal, I did wait upon Him among other servants, we stood close to the Bar where the King was, some three or four of us, Col. Axtell was upon the right hand of us commanding the Guard to keep things in order when the Court was to be withdrawn (the many circumstances about the Lady Fairfax shall be omitted) the President commanded the prisoner to be withdrawn, with that Col. Axtell steps down before me to draw out his Guard, this I heard him say, Souldiers cry for Justice, Justice, I was the next man to him ; and upon the last day of the Tryal, he did come down in the same manner, and bid the Souldiers cry out for Execution, Execution.
Axtell. I do desire a question may be asked of that Gentleman ? I must confess I did not know the Gentleman at that time, though he said he knew me. He seems to say, that at the first day I encouraged the Souldiers to cry, Justice, Justice, and the last day, Execution, Execution; What place was this in Sir?
Jeon. I tell you, the King was brought from Cotton House through a Guard that you managed of Musquetiers, and with a Guard of Partisans; besides, there was my self and others there: when we came up, we got as close to the Bar as we could; you were passing up and down from above and below: when the Court was dissolved, you stept down just before to draw your Guard to make ready, and to cry, Justice, Justice, and the second time, Execution, Execution, you were very near me, and then you cryed, Justice, Justice, Execution, Execution.
Axtell. Are you certain; I have heard other men, I confess, accused for this, Some other Officers.
Jeonar. I did hear you, I do know you by sight.
Councel. You know him now to be the same person?
Samuel Burden, sworn.
Councel. Tell my Lord and the Jury what you know of the carriage of the Prisoner.
Burden. My Lords and Gentlemen, I do believe Col. Axtell knows me well enough, I was then under his own command at Whitehall; there were some Cavaliers there in the Regiment: it was my fortune I came into your Company, I wish I never had : you commanded more besides my self to be a Witness against the King, and Justice Cook took my Examination : you brought me in, you commanded the Guards that time at Whitehall when the King was upon his Tryal.
Axtell. What more?
Burden. And you commanded Elisha Axtell with a file of Souldiers, to take a Boat and go down to the common Hangman that livd beyond the Tower to execute the King; he is now Shepards Serjeant in Ireland.
Axtell. My Lord, I desire to ask him a question; he was pleased to say, I desired him to be a Witness.
Axtell. Where was it?
Burden. In the Court at Whitehall.
Axtell. My Lord, I have seen the printed List of Witnesses against the King, and in that list you shall find no such Name.
Burden. I have been a Prisoner in Dublin by your means.
Axtell. My Lord, I hope you will take notice of that.
Councel. Burden do you remember any of his commands to Web, to draw up the Banqueting-house?
Bur. He commanded Web to draw up in the Banqueting-house, during the time of Execution, his own company. I was one of his own company then.
Coun. In order to what?
Bur. For Execution.
Axtell. My Lord, is Web here?
Bur. He is in Dublin.
Axt. I wish he were here.
Edward Cook, sworn
Cook. And it please your Honour my Lord, the last day of the Tryal of his Majesty, I came into Westminster-hall, coming where the Court was, I did see Col. Axtell the Prisoner at the Bar there with some Musquetiers.
Coun. What day was this?
Cook. The last day of his Majesties Tryal.
L. ch. Bar. Go on Sir.
Cook. Standing there a little while, his Majesty came guarded with some Halberteers, when he came by the Souldiers that stood with Col. Axtell, his Majesty bowed, and afterwards put off his Hat, and went up to the Court; I could not know what Bradshaw said to him, I stood below. I heard him say, he was brought by the consent of the Commons and people of England : there stood a Lady above in a Gallery crying out, it is a lye, where are the people, or their consents; Cromwel is a Traytor : whereupon Col. Axtell standing by, saith he, what Drab is that that disturbs the Court; come down or I will fetch you down.
Mr. Nelson, sworn.
Coun. Tell my Lords and Gentlemen of the Jury, touching the Discourse between you and the Prisoner at the Bar in Dublin.
Nelson. My Lords and Gentlemen of the Jury, upon Discourse with the prisoner at the Bar in Dublin 5 or 6 years since, upon the platform in that Castle we discoursed of the late Kings, having had several reports, I desired to know of him who it was that Executed the King, thinking he might inform me, he was pleased to tell me this, saith he, the persons that were imployed in that service, you know them as well as I do; truly Sir not I, said I, I saw them in Vizards but not their Visage as I know of, yes saith he you do know them, it is true saith he, my self and others were imployed in that affair in order to the Execution; but there were several persons came and offered themselves out of a kind of Zeal to do the thing, but we did not think it proper to imploy person whom we did not know, but we made choice of a couple of Stout persons, pray let me hear their Names said I, saith he it was Heulet and Walker, I desired to know their reward, Truly saith he I do not know whether 30l. a piece, or between them; I said it was a small reward for a work of that Nature, truly saith he that was all.
Axt. You named on man, I did not hear the other named.
Nelson. I named Heulet and Walker, we was one that managed the Execution, he told me so, and it pleased you Sir.
Axtell. He is pleased to say that in Ireland there was such conference, was any body by?
Neson. No Sir.
Axt. Did I name any body to you?
Nel. You named those two persons.
Axt. Certainly I must invent them then, for I had no more knowledg of them than any one here.
Nel. You told me you were one of them that had the managing of that Affair.
Councel. My Lord, we have done with our Evidence, those particulars that were first opened to you, have rendred the prisoner much a blacker person then we thought; we leave him to his defence.
Axt. May it please your Lordships, in the first place because I am ignorant in the Laws, I desire to know upon what Statute this indictment is grounded.
L. ch. B. It is grounded upon the statute of the 25th. of Edward the Third.
Axt. My Lords, I must acknowledg my ignorance of the Laws, being a thing I never studied, nor have the knowledg of, but I have heard it is the duty of your Lordships and the Judges to be of Counsel for the Prisoner in things wherein he is ignorant in matters of law, to make his just defence; and therefore my Lord the Indictment it self being matter of law, if your Lordships please not to grant me Counsel to speak to matters of law, I humbly pray that your Lordships will be pleased that for want of knowledg, formalities, punctilloes, and niceties of the Law, I might not undo my self : I have heard by a learned Judg, that though the Judg be of Counsel to the King, yet by his Oath he is also to be Counsellor to the Prisoner, and stands as a Mediator between the King and Prisoner, and therefore my Lord I shall beg that humble favour, that wherein I shall fall short to make the best improvement of my Plea in matter of law, that your Lordships will help me, and not take advantages against me, as to the niceties, formalities, and punctilloes of the Law; and my Lord this is a resemblance of that Great day when Christ will be Judg, and will judg the secrets of all hearts, and of all words, and of all persons, and by him all Actions are weighed, knows all our hearts whether there be malice, or how it stands in the frame of each heart before him in this place, and therefore I hope there will be nothing by prejudging, or any thing by precluding to be so black a person as it seemed to be said against me. My Lords, I must shorten the time and come to speak as to the Authority.
L. ch. Bar. As to what Sir,
Axt. I speak as to the Authority by which or under which I acted, I humbly conceive, my Lord, under favour, that I am not within the compass of that Statute of the 25th of Edward the Third, for that questionless must intend private persons, Counselling, Compassing, or Imagining the death of the King. But you know, my Lords, the War was first stated by the Lords and Commons the Parliament of England, and by vertue of their Authority was forced to be raised, and they pretended by law that the right of the Militia was in them, and your Lordships will remember in several Declarations and Acts that was mutually exchanged between his Majesty and Parliament, and, my Lord, that was the Authority the Lords and Commons assembled in Parliament, raised a Force, and made the Earl of Essex General, and after him the Earl of Manchester, of the Eastern Association, and after that Sir Tho. Fairfax Lord General of the Forces; by this Authority I acted, and this Authority I humbly conceive to be legal, because this Parliament was called by the Kings Writ, chosen by the People, and passed a Bill they should not be dissolved without their own consents, that the Parliament was in being when the Tryal was, and a question whether yet legally Dissolved.
In the fourth place they were not only owned and obeyed at home but abroad, to be the chief Authority of the Nation, and also owned by Foreign States and Kingdoms, sent Ambassadors to that purpose, under them did all the Judges of the Land Act, who ought to be the Eye of the Land and the very light of the People, to Guide them in their right Actions, and I remember the Judges upon Tryal (I have read it of High Treason,) Judg Thorp, Nicholas and Jeonar have declared it publickly, That it was a lawful justifiable thing by the Law of the Land to obey the Parliament of England. My Lord, it further appears, as to their Authority over the People, of this Nation petitioning them as the supreme and lawful Authority : and, My Lords, as I have heard it hath been objected, that the Houses of Lords and Commons could make no Act. Truly, my Lord, if you will not allow them to be Acts, though they intitle them so, call them so, and obeyed as so by the Judges, Ministers, and Officers of State, and by all other persons in the Nation, yet I hope they cannot be denied to be Orders of Parliament, and were they no more but Orders, yet were they sufficient, as I humbly conceive, to bear out such as acted thereby. And my Lord, the Parliament ;thus constituted, and having made their Generals, he by their Authority did constitute and appoint me to be an Inferior Officer in the Army, serving them in the quarters of the Parliament, and under and within their power; and what I have done, my Lord, it hath been done only as a Souldier, deriving my power from the General, he had his power from the Fountain, to wit, the Lords and Commons; and, my Lord, this being done, as hath been said by several, that I was there, and had command at Westminster-hall; truly, my Lord, if the Parliament command the General, and the General the inferiour Officers, I am bound by my Commission, according to the Laws and Customs of War to be where the Regiment is; I came not thither voluntarily, but by command of the General, who had a Commission (as I said before) from the Parliament. I was no Counsellor, no Contriver, I was no Parliament-man, none of the Judges, none that Sentenced, Signed, none that had any hand in the Execution, onely that which is charged is that I was an Officer in the Army, if that be so great a crime, I conceive I am no more guilty than the Earl of Essex, Fairfax, or the Lord of Manchester.
Judg Mallet. You are not charged as you were an Officer of the Army.
Axtell. My Lords, That is the main thing they do insist upon : my Lord, I am no more guilty than his Excellency the Lord General Monck, who Acted by the same Authority, and all the People in the three Nations; and my Lord, I do humbly suppose if the Authority had been only an Authority in Fact and not Right, yet those that Acted under them, ought not to be questioned; but if the Authority commanded whatsoever offence they committed, especially that that guided me was no less than the declared Judgment of the Lords and Commons sitting in Parliament; they declared that was their right as to the Militia, and having explained several Statutes of Henry the 7th, wherein the King having enterchanged Declarations with the Parliament, the Parliament comes to make an Explanation on that Statute; and, my Lord it is Folio 280. wherein they do positively expound it, and declare it as their allowed Judgment. To clear up all scruples to all that should take up Arms for them; saith the Parliament there as to the Statute of 11. of Henry the 7th. Chapter the first, which is printed at large, comes there to explain it in general, and comes here, Folio 281. and gives this Judgment; It is not, say they, agreeable to Reason or Conscience that any ones duty should be known, if the Judgment of the High Court of Parliament be not a Rule or Guide to them. In the next place, this is the next Guidance, Rule, and Judgment of Parliament, upon the Exposition of this Statute and as they have said in several places (was it not too much to take your Lordships time) they are the proper Judges and Expounders of the Laws. The High Court of Parliament have taken upon them to expound the Law, and said, that we Lawyers will give the meaning of the Text contrary to what they have expounded the meaning under their hand in the same Declaration his Majesty is pleased to quit that Statute upon which I stand Indicted, the 25th of Edward the Third, where they do my Lord expound that very Statute in the Declaration made in 1643. Folio 722. I come to he declared Judgment, wherein they did positively say, that the persons that do Act under their Authority, ought not to be questioned as persons Guilty Folio 727. that is the Exposition that the Lords and Commons Assembled in Parliament doth make upon the statute.
Councel. My Lord, this is an Argumentation of Discourse in justification of his proceedings, we desire to know what he will answer as to the Plea.
Axtell. My Lords, I have this further to say, that if a House of Commons Assembled in Parliament may be Guilty of Treason; (for the truth is, if I Acted Treason that Acted under the Authority of the Lords and Commons in Parliament, and of the Commons in Parliament) then doubtless they must begin the Treason : if the House of Commons, who are the collective body and Representation of the Nation, all the people of England, who chose them, are guilty too; and then where will there be a Jury to try this? concerning the Commons alone, I have been over ruled.
L. ch. Bar. If you have any thing to say to the Lords and Commons, answer to your charge; you charge is nothing of the Lords and Commons; but what you Acted when the house was broke and Forced.
Coun. You cannot but know that there is nothing charged against you, for which you can so much as pretend an Authority of the Lords and Commons, you know before you could do this Horrid Murther, you were the persons that destroyed the Lords and Commons both; indeed you Ravel in a business, and to make people gaze upon you without any Ground.
Axt. I am upon my life, I hope you will hear me patiently.
L. ch. Bar. God forbid but we should.
Axt. I do desire to assert my Authority; if any thing was done upon the House of Lords and Commons, I do not come here to justifie their Actions, I was not concerned in it. My next Plea is this; that if a House of Commons can be charged Guilty of High Treason as a community the distributive Body must needs be Guilty.
Court. If there should have been 20 or 40 men come out of the House of Commons, and should Murther a man, they must answer for that; it is not the community that can do such an Act of Treason : these persons that you call a House of Commons, there was but 26 of them, and these must be the people; this is the state of the case : and when you have thrust out thrice the number of those remaining, only those can serve you turn.
L. Annesly. Mr. Axtell, I am very sorry to see you in that place and it troubles me as much to hear you vent that for an Authority which you know your self was no Authority; you would now for you defence for life (and it is reason you should make as full a defence for life as you can) you would shelter your self under that Authority, which I am sorry I must say were one of the greatest Violators of : you cannot forget how near a close of this bloody War by the mercy of God, this Nation was when the Army interposed, whose Trade it was to live by War, when they had felt so much of the sweet of War they would not suffer the people to enjoy peace, though the Lords and Representatives in Parliament had agreed to it; A Treaty was begun, terms of peace propounded and agreed to, this you cannot forget, and will have no need of Notes or Books to help you Memory : when the people Groaned under the miseries of War, and thirsted after Peace, then came up the Army, who were servants to the Parliament till that time, taking upon them the Authority (you cannot forget that, your self was one of the number that came to offer accusations against the majority of the Commons House, calling them Rotten Members;) the House of Lords was not then suffered to sit, they would not joyn in that Ordinance that was preparing for the Tryal of the King; when the Lords had refused, they were no longer fit to be Lords neither; then comes in a new Authority which we never heard of before; a remnant of the House of Commons joyning with the Army, that had driven away the greatest part of the House of Commons; (for in all Assemblies and Courts the major part must determine, or no determination) after this course was taken, then is a Act set on foot, they take upon them by Votes of their own to be the Parliament of England, that the supreme power of the Nation is in the Representatives of the people; who were they? those few only that remained almost all the Cities, Counties and Burroughs of England had none left to represent them, they were driven away by Force, then was this Act of Parliament (such an Act as was never heard of before) set on foot and passed as an Act by a few of the House of Commons, if you can plead this for you defence, this is the Act that you must shelter under. But you know the Lords and Commons had Unanimously resolved for peace, and so agree with the King : if this Act will be any defence, you may plead it to the full; and this is all you have to say; therefore go upon no Forreign matter.
Axt. If it please you Lordship, that worthy Lord that spoke last is pleased to say, that I was one of the persons that did accuse some of those Members of Parliament; truly my Lord, I never did come to the Commons Bar but once, presenting a petition; and for my hand either in charging any of the Members, or Secluding any of them, I never had any hand in that matter, this is all to that part. Next I Humbly conceive here I must ground my bottome, and if I perish, I perish by a Judgement in a Parliament; My Commission that did Authorize me to obey my General, was given me when the Lords and Commons sate in Parliament, I had no other Commission then this : my Lord Fairfax commanded the Army after the Kings Death by the like Commission, I did but my duty in going to my Regiment, the General saith, go to such a place, stay there, if I refuse, by the law of War I Dye, if I obey I am in danger likewise; I say my Commission was given me by the Lords and Commons, and therefore I hope my Lord that what I have said and offered in that particular, is not Truthless but of Weight.
Court. The Effect of you Commission is only to make you an Officer.
Axtell. My Commission bears date of the 27th. of March 1648. Ten months before the Kings Death; we had no other Commissions, therefore I humbly conceive the question will be this in point of law, and I humbly desire it may be Truly and Fairly stated by your Lordship and these Honourable Judges, that whether a man being guided by the Judgment of the Lords and Commons Assembled in Parliament, and having declared their Judgments and Exposition of that State of the 25th. of Edward the Third, and Acting only by that Judgment and under their Authority can be questioned for Treason. That my Lord is a question that I do humbly think is a point in law, and that you will please fairly and truly to state it, whether I am within the compass of that Statute whereupon I am indicted.
Councel, My Lord, We do not charge him with any thing that he did Act under the colour of his Commission, or with any thing he did before that, but that which we charge him with are the Acts that he did at the Tryal of the King, shew us your Commission from the Lords and Commons Assembled in Parliament for Tryal and Execution of the King, you say something; we do not charge him for any thing done by Verture of that Commission, but with those violent Acts that he did in encouraging the Souldiers to cry Justice, Justice, Execution, Execution, and all those other Violent Actions of his own malicious heart against the King. We humbly beseech you he may answer to that which is the charge against him, and that is the Compassing and Imagining the Death of the late King, and his declaring that by those overt-acts that we have proved. My Lords, we desire that the Prisoner at the Bar may remember that he is not Indicted for levying War against the King, if so, then that Sir which you offer might be given as a Plea, and we should have spoken to it; but you are Indicted for Compassing and Imagining the Death of the King; and that which we have given in Evidence were the subsequent overt acts to prove the same.
Axtell. I hope you will not think it much to give me some more freedom for my own defence for life; My Lord, I must needs say though there was a force on the Parliament, I am not to justifie it; I was no Lawyer, no Statesman, no Councellor, but a Souldier; and if the General who had a Commission from the Lords and Commons, and that some years before and after the Kings Death, be not guilty of Treason, what I did was by command from my General; and though I am charged with being in Arms in Westminster-hall, and at such and such a place, yet it was not a Voluntary Act; for I was bound to obey my General; I do humbly pray that I may have your Lordships Judgment in this point, I must say it was from the sense of their exposition of the Law and of the Statutes, and from the Authority that every one took up Arms for and served them, and obeyed either the one General or the other; I say it was under this very Authority, and this must needs acquit me from all the guilt that is laid upon me.
L. ch. Bar. You put your self upon the Judgment of the Court upon this which you call a point in Law. First, it is manifest that there is no excuse at all for Treason, no man by his Commission can warrant the doing of an Act which is Treason : you must take notice of the Authority whether it be good or no, your Commission was not to put the King to Death, but on the contrary, to preserve the Kings life. The Lords and Commons what they did, we do not meddle with the Reason and Ground of what they did was the preservation of the Kings Person, as well as the maintenance of the Laws and Liberties of this Nation, they made Protestations, Declarations, and Oaths for the preservation of the Kings Person; and you could not but take notice of those things : Now whereas you go about to shroud your self under the Lord Fairfax, he had no such Power, and therefore you can challenge no more than he had : and to what you say concerning the Judgment of the Parliament, there will be a great deal of difference between a particular Case, and a Declaration of Lords and Commons; there is nothing you have said that hath any thing of Force, and God forbid you should make use of it; But I must tell you, you could not but notoriously know all those Transactions that were in the Army, what the Army had done, that they come up with Swords in their Hands, and turnd out whom they would; you saw what the Lords and Commons had done, that the Treaty was ready for his Birth; And then you come up with your Mermidons, with Force and Arms and Exclude the greatest part of the Members, and then the Lords were laid aside : it is true, the Lords were not wholly dissolved, but they would not suffer them to Sit nor Act at all, and this was apparent to the Nation. If men under colour and pretence of such things, Namely, that a few persons (for so they were) but an Eighth part of the House of Commons permitted to remain, and of that Eighth part (which was but 46 in the whole) there were but 26 that Voted that Act which you say your obeyed : but you say you obeyed the General : you were not to obey the General in this Case; for the Facts that you have committed, are not charged as Acts of War; you are not charged for bringing the Souldiers in, but for those Violent Actions that you were guilty of there; you made the Souldiers cry out, Justice, Justice, Execution, Execution, you sent officiously for a Hang-man to come down to you; your Commission gave you no power for this the Death of the King you know how it was designed, you know the Act for the bringing in of that Commission (as they calld it) to sit in justice was after the House of Commons was reduced to a very small Number, and some of those dissenting too, what you did Act under that Authority, if you can justifie it, in the Name of God say so, but do not Engage the Nation in those things which they abhorred, and by the mercy of God are laid asleep.
Mr. Justice Foster. You begin at the wrong End, you ought as all men ought to do First, to answer the matter of Fact, and not to put in these long dilatory Pleas till you have answered the mater of Fact, whether those things charged on you be true or not; then if you have any thing further to say for your self by way of excuse, it will be the time to speak and not before.
Axt. May it please your Lordships, I humbly conceive I am upon that method to the first part of the witness, they accuse me for commanding my Souldiers in Westminster-hall, then I must prove my Authority, which I have been about to do, and declared the Judgment of Parliament.
L. ch. B. The Court have heard you with a great deal of patience, and that which is not at all to the business.
Axtell. I only refer this as to the Authority (I humbly conceive you will give me leave to insist upon this, and how far I may improve it for my own defence) here is the Commission by which my Lord Fairfax acted and that after the Kings Death, and I acted by the same Authority he did, I had not been at Westminster-hall but on the command of the General.
Court. Doth that Commission Authorize you to cry Justice, Justice? and to look up and down to get Witnesses against the King, is that in your Commission?
Axt. I am to serve and obey all my Superior Officers, that is my Commission; if I do not, I die by the Law of War.
Court. You are to obey them in their just commands, all unjust commands are invalid. If our Superiours should command us to undue and irregular things (much more if to the committing of Treason) we are in each Case to make use of our passive not active Obedience.
Axt. Under Favour, it is not proved, that I did either Compass or Imagine the Kings Death, that is matter of Fact.
Court. Let us try that.
Axt. My Lord, I did nothing but as a meer Souldier, I had Authority from the General, I would leave this before your Lordships and the Jury, that what I have done hath been by Authority of the General.
L. Hollis. Sir a word to you. If you could satisfie the Court that you had received a Commission from the General to do those things with which you stand charged it were something, then were it proper for you to plead it, and the Court to judg. Pray take this along with you, the General gave you no such command, what you are charged with in the Indictment, is for Compassing and Imagining the Death of the King, and that by such and such overt acts, as making your Souldiers cry out Justice and Execution, for being active and forward in sending for the Executioner, and such other Acts, prove these are in your Commission, and you say something : I am sure, you cannot be ignorant, that That very Authority that you do now urge to give life and power to your Actions, that you destroyed it, laid it in the dust, acted contrary to it several ways when the Parliament protested against fetching the King from Holmby as they did, when they went on proceeding in the way of peace, then came you up to the Bar (I think you your self) and charged some of the Members; first 11 as rotten Members, and these Men were forced away; this you know your General had no Commission to do, and this you know was a Violation of that Power that gave our General the Commission. After that when the Treaty was brought on in the Isle of Wight, when there was great hopes of peace, then you knew the King was hurried thence by Force, which the Parliament protested against. After that when both the House of Commons and Lords came to consider of one particular that passed, they resolved that it was sufficient ground to proceed on for the settlement of peace; then did you fall upon these Houses and tear them in pieces, and throwing out above 200, suffering only about 40 to remain, and they were glad to send for one Member out of Prison to make up a House. That which you say of the Supreme Authority, and that by Vertue of which you did Act; it shews that you did not at all go by any Authority, but you followed your own Lusts; and therefore do not sew these Fig-leaves together, which will stand you in no stead; if you would apply your self to answer that which you were charged with, it were something.
Axt. I do desire to have no more interruptions then is men [?] making my own Defence. My Lord, here are many things by way of motive urged to the Jury, which is not within the Charge, I desire I may have that fair play, that nothing my be urgd but what is in the charge.
L. Ch. Bar. You give the occasion Mr. Axtell, keep to the matter, and you shall not be interrupted.
Lord Hollis. I shall be very sorry to urge any thing against you which doth not necessarily follow; for what you say touching your Authority, I shall shew you have no Authority.
Axtell. My Lord, I have the same Commission as the General; what I did was not of mine own head : I had a Command. As for all that hath been charged against me, I shall say this; I was none of the Court, I did not fetch the King form the Isle of Wight, nor advised, compassed, or imagined his Death, or sentenced him to Death, or signed the Warrant for his Execution, or Executed Him; I am none of them. My Lords, and therefore whoever did make any breach upon the House of Commons, they were Grandees, persons of a greater Quality; I was an inferior Officer, I was never at the House Bar, but upon presenting one Petition to the Parliament from the Army. I shall now come to speak to the Evidence which hath been given particularly against me; and the first, my Lord, is Mr. Simpson, he saith, I had the Commands of the Guards at Westminster-Hall. My Lords, I have told you already, shewn you by what Authority I came thither, and that I ought not to refuse; if I had, according to the laws of War, I must have sufferd death; and that is all as to Mr. Sympson, only that a Lady (he knows not who) spake something there.
L. Ch. Bar. He saith he heard you bid the Souldiers give fire against the Lady.
Axt. My Lord, I must say, if there was any Lady that did speak, who she was I know no more than the least child here; but my Lord, to silence a Lady, I suppose is no Treason. If a Lady will talk impertinently, it is no Treason to bid her hold her tongue.
L. Ch. Bar. A Lady was speaking pertinently enough, when she heard Bradshaw say to the King, such a Charge is exhibited a charge of High Treason against Him, in the Name of the Commons assembled in Parliament, and the good People of England; she said, That was a lye, not half, nor a quarter of the people of England, That Oliver Cromwell was a Traytor; Then you took upon you to command Souldiers to fire at her; and accordingly they levelled the muzles of their Musquets towards her.
Axtell. My Lord, as to that particular concerning Oliver Cromwell, or any other words concerning the Court, I understand them not; but if any interruption was made, to preserve the peace, to desire a Woman to hold her tongue is no Treason. To the next particular wherein Col. Huncks saith, at a door at a certain lodging where Ireton and Harrison were in Bed together, he saith, that upon his refusal to sign the Warrant for executing the King, I said to him, Col. Huncks, I am ashamed of you, the Ship is now coming into Harbour, and will you strike Sayle before we come to Anchor? truly my Lord I think all that amounts to nothing, if it were so, which I deny it; for to bring the Ship into Harbor, what is that? there is no person named, Fact named, nor Design named? and I appeal to my conscience, I remember not the time, place, person, or words; and I can call for Col. Phayre and Col. Hacker, who were there; for I desire things may appear right, I desire they two person may be called for their Evidence in that point.
L. ch. Bar. They both are in the same condition, Col. Hacker in the prison behind you, Col. Phayre in the Tower; Mr. Axtell, you know the strength of one Affirmative witness, I saw such a man, and heard such a man say, etc. is more then if twenty should witness they stood by, but did not see him, or hear him speak.
Axt. My Lord, he saith only this, I saw you at the door going into Iretons chamber, and said, will you strike Sayl. &c. Truly my Lord he doth not say, what, or how, or any thing I meant; there must be according to Sir Edward Cooks 7th Book of his Institutes that Oracle of the Law : he saith, That Evidence ought to be as clear as the Sun at noon day : All that you can say is this; it must be a wide Inference, a large Inference, I conceive there is nothing in these two witnesses, and if the two Prisoners were here, they would clear me in this.
L. ch. Bar. If by Law you could have had them, you should; but I fear if they could be admitted, they would not be to your advantage.
Axtell. Then my Lord, in the next place Col. Temple is pleased to say, that the Lady Fairfax saying something against the Court (which in truth as I said before, I know not who it was, or what the words were) he saith, I bid Fire against them, I did nothing but what I was commanded upon pain of Death to preserve peace, and in pursuance of that command from the superior Officers of the Army? silence was required, and that was all that was done. I suppose where a man is commanded to keep silence, as the Sheriff is required to keep all at peace in a Court; if he restrain a person that will not be quiet, it is not Treason in him, nor in me in this particular. My Lord, in the next place Mr. Temple is pleased to say that I stood upon the pavement laughing, while others sighed; Truly my Lord, I know not whether I saw the Gentleman or no; certainly smiling is no Treason, if I did so, though I believe I had as great a sense that day as many other persons there; this is the sum of that he saith, only he further adds that I bid the Souldiers to cry for Justice, truly my Lord------
L. ch. Bar. Because it may be your Notes are short, I will acquaint you there was a little more in it, he said you bid the Souldiers cry out, Justice, Justice; and they coming not very readily to it, you struck some of them till they with your self cryed out Justice, Justice, till they with your self did it.
Axt. My Lord, To that I answer, that in the Hall there was some kind of people did set up a crying some kind of words, and may be some of the Souldiers might cry so too, I might command them to hold their Tongues, and to say, Ill teach you to cry Justice, and so the Gentleman standing by, might believe I was the person that bid them do it : Truly my Lord, is this all that the Gentleman says, which I humbly conceive is nothing, because he does not say against any person; and therefore my Lord, I do hold to that Maxim in the Law, as Sir Edward Cooke holds (that man of great parts of learning and knowledg) That in matters of Treason wherein a man is the most highliest concernd in his life and posterity, there ought not to be construed against him Inferences or presumptions, or strains of wit; there is no more in this, and this is all that I say in this particular. In the next place, Mr. Temple is pleased to say, that after the Court had sentenced his Majesty, he was hurried away in a Cedan : Truly, whether he was or not I know not, There was a Guard of Halbertiers, whereof Col. Huncks was one, and several others as I have heard; they were Select Guards of his Majesty, Guarding him from St. James to other places : how he came to be hurried I know not, it was not by me : and whereas he says, during the whole Tryal, I was there, truly I think I was there by command of my General by Authority of the Lords and Commons.
L. ch. Bar. You speak this, that the Jury may understand you did it by command of your General. Do you mean by express command?
Axt. I did not move a day but by special command.
L. ch. Bar. By whom!
Axtell. The Lord Fairfax have his Orders every morning to his Adjutant General, or Major General, and they issued them out to such and such persons as he appoints.
L. ch. Bar. Who gave these Orders out?
Axt. The Lord Fairfax, we did all under him.
L. ch. Bar. You ha not the order immediately from him.
Axtell. The Major General had.
L. ch. Bar. What Major General gave you that Order?
Axtell. There was Cromwell and Ireton.
L. ch. Bar. The Lord Fairfax gave you no immediate Commission.
Axtell. He have my Superior Officers.
L. ch. Bar. How do you know that?
Axtell. My Lord, because they told me so, it was by his command.
L. ch. Bar. The question is now understood.
Axt. The next person that speaks is Mr. Bodurdoc; and he says, that I commanded the Souldiers at the Kings Tryal, and that a Lady that was speaking, was commanded silence, to this purpose; Truly (my Lord) this is the same as before.
L. ch. Bar. You said Shoot too.
Axt. No (my Lord) I said not any such word, or any thing like it, I heard there was an Officer went up and intreated her to be silent, I say it is the same with the former it is no Treason to desire one to be silent. My Lord, the next Witness that speaks in Evidence against me is Mr. Young; he says this, I bid the Souldiers cry for justice : it is very like that person as well as Mr. Temple might see me in the croud speaking to make the Souldiers quiet, I might repeat the words that the people said, repeat the word justice, or some such word, as the peoples words.
L. ch. Bar. Remember how he repeats them, he saw you active in setting on the Souldiers to cry justice.
Axt. If I have taken them right, one says he heard me say such words as justice, and that he saw me strike two or three Souldiers; if in the Tumult such a word should be started, I hearing of them, I might strike those Souldiers that said, justice, justice, and might repeat the words, Ile give you justice, and so strike them, that is a good Evidence that it might be a repetition of their words, and not any of mine own : They both speak as to the word justice, but here was not justice mentioned to any person; I might repeat their own words, and chastise them for those words; besides this, (though I do not say the word was spoken by me,) if the word justice had been spoken, my Lord I hope it is no Treason to say, desire justice, it is Gods great Attribute, it is Gods Ordinance, and that can be no Treason. I have read in Law Books, (though but lately) and I cannot find that the word Justice should be made Treason, then there is no person to whom that adjunct doth belong. the next Evidence, my Lord, is Capt. Jeonar, he saith, I commanded a Guard; truly several Regiments took their turns as they were commanded by the General, and I as an inferior Officer was there, but that is no more than what was said before; it was done by the Authority of the General; if I had not done it, I had died by the Law of War : He saith, there was a cry for Justice, I can say nothing more that I have formerly said, it may be in the Tumult the Souldiers might say so, and I chastising of them, and repeating that in my chastisement, they might think they were mine own words.
L. ch. Bar. Mr. Axtell, I would help your memory, he swears the last day you encouraged the Souldiers to cry Execution, Execution.
Axt. For that particular I am coming to it (I thank your Lordship for helping me) My Lord, for that of Execution, truly, I cannot say whether I was there that day or no; one day I was commanded to be there with some Companies in Westminster-Hall, but whether I was there any more than that one time, is the question : Admit I was there that day, I was never there but when I was commanded; when the Colonel that commanded the Regiment was there, I as an inferior Officer ought to be there : I was there by a special Order, and not by a voluntary act of mine own, and so it cannot be Compassing the death of the King. For to the word Execution, what can be the sense of this word? Execution is a single word, those people that started the word justice, might put it in the heads of the Souldiers, which I might strike to command silence; they likewise might upon the same account cry out Execution, and so to hinder all Tumults and Hubbubs and the like in the place, I might repeat their words in correcting of them for it, I might say, Ile justice you, Ile execution you : But my lord, this word Execution of justice, it is a glorious word, not that there can be an inference that what they did I should say was Justice, or to approve of any thing that they did, but only in general Execution of justice, which my Lord, relates not to any person, possibly the rude people might be speaking (as hath been said before) in that manner, and the Souldiers might take it up, and I might reprove them and make use of their own words by word of repetition I will Justice you, I will Execution you.
My Lord, in the next place, I do observe to speak that of Mr. Burden, he did observe to your Lordships and the Jury, my Country-men my Brethren, with whom are the issues of life and death, for whose life they must answer before the Lord as to Righteousness, Judgment, and Equity; I say my Lord as to Mr. Burden, he tells you , that for my sake, he was imprisoned; saith he, I have suffered much by him, and speaks it with much indignation of spirit, I have suffered and been imprisoned by him, and afterwards he comes to speak his Evidence; how much his Evidence my be of Force, I desire my Lord, the Jury may consider of that; and then he comes and saith, I commanded a Guard at the Banqueting-house in Whitehall. Truly my Lord, the Lord Fairfax commanded a Regiment to quarter there, and I as an inferior Officer might be there : in the next place, my Lord, he saith, I sent Alisha Axtell to fetch the Hang-man; Truly my lord, I wonder this person is come from Ireland, (if this were so) the Authority there would not send that person with his great Evidence as well as this person; he may as well charge any person with this as me : It is evident, Ireton, Harrison and Cromwell, they did all amongst themselves; I never was with them, amongst them, received no command from them, nor obeyed them; nor did any thing but what I had command for from the General, who by the Law, I was bound to obey as a Souldier. I shall only observe one thing more; this person being so long a Prisoner, to Extricate himself out of his imprisonment and chains, poor man! he may say more than is true. I wonder he should say I sent for the Executioner, I never knew of any circumstance touching consultation about his Death, or took him Prisoner. When they sent to me to be one of his Guard, I never would go; I humbly conceive there is nothing sticks upon me in this, considering the circumstances and the words of the person that spoke them.
My Lord, the next person that speaks against me, is Mr. Cooke, and he saith he heard me say, Thrust that Lady down that made a disturbance in the Court, or words to that purpose : it is probably there might be a desire of silence. The next Evidence is Lt. Col. Nelson, he saith that upon a Discourse
L. Ch. Bar. I would put you in remembrance, lest you should forget what Sir. Purback Temple said, That by leave of persons under your command, he saw the body of the King. It is only a Circumstance.
Axtell. I have heard there were Chirurgions, Physitians and Halberteers, appointed by whom I know not, they had the care of such things, and had the keeping of him, he was locked up by them, no body could come in but by them; I never had a Key; possibly Col. Temple might come to me, quartering there, and desire me t speak to some persons that had the charge of it to let him in, whether I did or no I cannot remember, but if it were so, I hope it will not amount to Treason. The last thing given in Evidence against me is Mr. Nelson, he saith that upon some discourse between us, he was asking what person cut off the Kings head, and that I should say Hewlet, &c. Truly my Lord I was never privy, and I appeal to Mr. Rushworth if he were here, who was Secretary, if ever he saw me in any Counsel, to advise, or Act, or any thing in that kind in relation to the Kings Tryal, Sentence or execution; for me to know the person that was imployed about the Execution, it is strange when (as I said before) they did all within themselves,. I had no knowledg thereof, and medled not with any thing, but within my own Sphear, as a Souldier under my L. Fairfax, by Authority of Parliament. For naming of any person; truly my Lord it would be a wonder to me that I should name any person, to go to do any person that wrong and injury to say he was the person, I must invent it, for I knew nothing of it. But by common fame up and down the City, it was said to be another person, but who it was I cannot say my Lord, but to all this that hath been said against me, there are but two things upon two Witnesses that are placed upon me, the First my Lord here is two Witnesses for crying, Justice, and Execution.
L. Ch. Bar. I think you have more than two to those words.
Axtell. Not for both together.
L. Ch. Bar. No but several for Justice.
Axtell. There is three to that, I shall only say this to your Lordship, and this Jury in whose hand this life of mine is, and is committed to them either to acquit or condemn me, and God knows the hearts of men, and my innocency and integrity, I shall say nothing to the Witnesses, it is a day of Temptation; and I desire the Jury my Countrymen, my fellow Citizens, my Brethren, that they would well consider of it, the word, Execution and Justice, admit I had said them (which my Lord I do not, I must not Grant) there being an uprore of people, there such words might be used and possibly Souldiers might take them up from them, and chastising the Souldiers I might repeat the words, I will Justice you, I will Execution you.
L. Ch. Bar. The Evidence is that you beat them because they did not readily cry Justice, Justice.
Axtel. It might be more probable I beat them because they did do it, I might chastise them for doing of it, and repeat it as a reason for their Chastisement; and but admitting it was true, which I grant not, yet I hope Justice and Execution of Justice, as it is so great an Attribute of God, by Gods Laws nor Mans Laws is no where made Treason, but Mercy attends it, and Judgment attends the contrary; I leave it upon the consciences of the Jury, to weigh it carefully how I could be guilty of Compassing or Imagining the Death of the King, when nothing is charged against me to be either of Counsel, Sentencing, or Signing, or to be at the execution, only one man, as I told you before, he spoke something wrathly, and that he had suffered much, and therefore he is come over now, and saith I should send for the Executioner, which I never knew of, or had any hand in sending for, how much validity that hath, I leave to the Jury, if it were so, it is not treason, for words may make a Heretick, not a Traytor; I speak that by way of preface; I do humbly conceive that these being only noted words, Execution and Justice, the King not so much as named, nor any thing done to it by me, I say I conceive it doth not amount to Treason by the Law; and besides, it is against the Law of the great Judg, the Judg of Judges; all of us, that are now, and are to come shall stand before him to receive our deserts, I say it is against the Law of God, to make me an Offender for a word; for a word, I have heard the Judges say that the Laws of England are grounded upon the Laws of God, and the Laws of England are Laws of mercy, not of rigour : My Lord, if a man shall be destroyed in his Life, in his Posterity for a word (admit the thing had been so) I leave upon the consciences of my Jury, before the presence of Jesus Christ, and before whom they and I must come to be rejudged again at the Tribunal; and besides it is only words, and words uncertain; and Sir Edward Cook saith, he must declare plain truth in matter of Treason, nothing must be taken for Evidence that may be a presumption or inference, or strain of wit, I hope upon this consideration that the word Justice fixed upon me by two Witnesses may be taken up at second or third hand from the People or Souldiers by chastising them for the Tumult. Then my Lord in the next place these words were never put in writing, and so not Treason; then, my Lord, there was never an overt act done by me; for that Act of Indemnity that his Majesty and both Houses of Parliament passed, wherein they were pleased the very last to except me, I wonderd when I came to be excepted of that number, I do come back to the place where I left, and that is the overt act. My Lord, I would only bring it in in this place, when I was excepted by the House of Commons, one of the twenty, I was excepted thus for not extending to life, I went up and down free at noon day, I did not hide my self, ingaging a person that was one of his Majesties Servants to do me a courtesie, he promised me he would do it, and contrary to his promise he was pleased to bring the Kings Warrant to carry me to the Tower, and after that I came to be excepted with that black Catalogue of excepted persons, and to be brought to the Tryal of the Law. Now (my Lord) I return to that overt act as it was but words uncertain, and they may be words repeated from the third or the fourth hand, for they were not put in writing; according to that Act of Indemnity which I understand the meaning of to be thus, That for their Execrable Treasons in Sentencing, Signing, or otherwise Instrumental, they are excepted out of this Act, and to be Tryed according to the Laws of this Nation; I understand that to be Instrumental, to be Instrumentally the Executioner of the King, I never had any hand in that. Upon the whole this is the Fact that is proved by two Witnesses, they heard me say Justice and Execution, which must relate to the Execution of Justice, which by the Law of God is not Treason, especially when there was not the word King; for a word to take away and destroy so many, my Life, Wife, Children and many Fatherless that are under the Charge of the Prisoner at the Bar is very sad, the words I do not grant but upon such probabilities as I have said; I might repeat them, I will Justice you, I will Execution you, and then the words were not written, I say as Sir Edw. Cook said, they may make a Heretick but not a Traytor, the other part of the Evidence is this, that I was there with Souldiers at Westminster-Hall, I must say if that be Treason to be guided by Judgment of Lords and Commons in Parliament, I must say if that be Treason to take up Arms for a Parliament upon such Grounds and Expositions of the statute which they have made and published by their own Authority, if I am Guilty under the General, then the Parliament would be guilty of Treason.
L. Ch. Bar. That you spoke toI am loth to interrupt you.
Axt. I thank your Lordships for informing me, but I was commanded to be there by my General, if I had not gone I must have dyed, I did only stand there for preservation of the peace, in no other sense, if the General order me to be at such a Rendezvous, I must be there; if I disobeyed he would have condemned me by the Law of War. The next thing against me material are these two things, that is that I should send on Elisha Axtell for the Executioner, I must say it is most Admirable such things should be laid to my charge, I hope your Lordships and the Jury do observe, he told you he suffered much, and a poor man under his extremities and losses and sufferings, perhaps might start some unadvised words, and being now sent over my ascertain it. But doubtless this Elisha Axtell being in Ireland, if by command it had been so, would have been sent over, truly I must say I had no hand in the business, it was left wholly to them amongst themselves, and what ever was done, or whatever was said, it was said and done by them, I never was acquainted with any thing of that nature, he said he heard I should send Elisha Axtell for an Executioner, if hearsays my be Treason it will be a hard Lesson; and my Lord, Sir Edw. Cooke saith there must be two witnesses, here is but one. It comes from such a man, my Lord as the providence of God, but I will say no more as to that, but pray the Jury will take notice of it.
L. Ch. Bar. You need not doubt of it, it shall be taken notice of, this of Burden.
Axt. Now my Lord, I have but two or three words more, the Statute of the 25th of Edward the Third, it doth intend private persons, my Lord here is my Commission.
L. Ch. Bar. It is owned, you had it from your General.
Axt. My Lord, his Majesty is pleased to say in his Gracious Letter, We do by these presents declare, That we do grant a free and General Pardon to all our Subjects of what degree or quality whatsoever, who within Four days after the publishing hereof shall lay hold upon this our grace and favour, excepting only such persons as shall hereafter be excepted by Parliament, that is a Parliament called by his own Writ. You know this Parliament----
L. Ch. Bar. Mr. Axtell, I would not interrupt you to that, but this very Objection was made by one of the Prisoners before; this answer was given; First the Kings Declaration is not a Pardon in point of Law, it must be under the Broad-Seal; but God forbid but it should bind in honour. You instanced in the word Parliament, what was meant by the word Parliament : you must know this, the exigency of the Times were such, that there were many Noble Persons that took the advantage to Assemble themselves together to reinstate the King; they did that which was just and lawful, according to the exigency of the Times : This Declaration he sent to the two Houses, he called them His Two Houses, so that it appears clearly and manifestly, they were then sitting, they being accepted by the King, and owned by Him; and they did sit in way of Convention, according as Parliament, and his Majesty sent his Letter to them; and these are the persons that have thought fit to except you out of that Act.
Axtell. My Lord, may I speak to that any further?
L. Ch. Bar. If you do, it will be over-ruled.
Axtell. I submit----with submission to the providence of God; I did apply to Sir Harbottle Grimston for the Mercy and Favour of his Majesty according to his Declaration; and here is Sir Harbottles own hand for a Certificate.
L. Ch. Bar. That is allowed you that did claim that benefit within the time, but you may remember that it was referred to those two Houses of Parliament, they were to consider who was fit for the Pardon, and you are by them Excepted out by Name : Your question now is no more, but whether guilty or not guilty, and these are but extravagant Discourses that you say otherwise, and rather do you harm then good.
Axtell. I hope you will pardon me, my Lord, I hope I have spoken to clear the Point; The Fact charged by your Lordships and before the Jury; and I hope the Lord will give the Jury a Memory of it, and a right Understanding in what I have said for my own Defence. My Lord, the next thing I have to offer, is this, to Expound that Act of Parliament, that it was the intention of his Majesty and Parliament, that all should be excepted but those guilty of Councelling, Signing or sentencing. Truly my Lord, I humbly conceive, I being none of those, am not guilty of reason. I shall only speak one word to my Jury, That they will remember what I have said, that there is but two things, two Witnesses, as to Justice and Execution, that it relates to no person but in General; and then I do not own the things, but possibly they might hear such words, I taking of them up upon a rebound, reproved the Souldiers; for the other that I should send one for the Executioner (he heard so) and that I should name who was the Executioner, I would not have that person or any other so suffer for that.
L. Ch. Bar. That is not at all pressed upon you, not as to any Charge.
Axtell. I thank your Lordship. I am very ignorant.
L. Ch. Bar. Have you done Sir?
Axtell. I leave the matter to the Jury, in whose hands I and my little Ones, and Family are left, I only say this to you, Remember your Ancestors, Remember your Posterity. I never heard it before that words were Treason. In Queen Maries time Throckmorton was acquitted for words, by the Jury. Gentlemen of the Jury I leave my Case, my Life, my All, in your Hands.
L. Ch. Bar. Gentlemen of the Jury, There hath been several things offered by the Prisoner at the Bar, as near as my Memory will give me leave in so long a Discourse. I shall repeat all things which he saith for himself, and which are said against him. There are some things that he seems to utter as tending to matter of Law, and something meerly of Fact, proper only for you of the Jury. For matter of Law, he hath urged several things for himself, not by way of justification of the Fact, (I must do him that right,) but in excuse of himself, and I hope his conscience hath so wrought upon him, that he is of opinion, the Fact was a horrid Fact, which was so indeed.
For that which he hath said for himself; First, he doth alledge to have his Commission from the Lord Fairfax : My Lord Fairfax has his Commission from the two Houses of Parliament, and this Gentlemans was in March the beginning of the year 1648. he saith what he did was in obedience to his superiors, as a Soldier; that he never consulted or advised about any thing of the Tryal or execution of his Majesty. For this point it hath already been spoken to Gentlemen, for that which hath been spoken to at large heretofore I must repeat it here that he may know it, That no Person whatsoever, no Community, not the people either collectively or representatively have any coercive Power over the King, neither the Lord Fairfax his General, not he, nor any other person could be excused for this horrid Fact of bringing the King to Trial, No person, as I said before, nor Community have any such power. The Law-books which he hath lately seen (and truly he hath imployed his time well in that) the Law-books tell us, that whereas the two Spencers had breached a damnable and detestable principle, that the homage was only due to the King in respect to his Crown, that if he did not demean himself according to such and such rules his Subjects might rule him per asperice by asperity and sharpness; but this was condemned by tow Acts of Parliament, they both appear in my L. Cooke in Calvins case. I do not go to repeat all the evidence that might clear this truth, I say, had there been any such thing, but it hat been told him there was no such thing in Fact, My Lord Fairfaxs Commission... [end of page 253]
From the sentencing.
Cl. Tho. Waite hold up thy hand, thou art in the same condition, what canst thou say for thy self?
Waite. My Lord, I refer it to your Lordships.
Clerk. Francis Hacker, hold up thy hand, thou art in the same condition, what canst thou say for thy self why Judgment, etc.
Hacker. My Lord. I have nothing to say, but what has been before your Lordships.
Clerk. Daniel Axtel, hold up thy hand, thou art in the same condition, what canst thou say for thy self why Judgment, etc.
Axtell. My it please the your Lordships, my case differs from the rest of the Gentlemen.
L. Ch. B. I would be loth to hinder you, but I must tell you, that what hath been over-ruled must not be spoke to, if you have any thing against the Indictment, matter of Law, go on.
Axtell. My Lord, then I shall apply my self to that point, I humbly conceive my Lord, that my overt acts were not sufficiently set down in the Indictment, as might be sufficient in Law to attaint me of High Treason, I do not remember that the Overt act that was applyed to me in evidence was charged in the Indictment, I have onely that exception, because of the insufficiency of that point. In the next place, my Lord, there is not the right additions to my name, there are many persons of the same name, I am arraigned by the name of Daniel Axtel of Westminster in the County of Middlesex, Gentlemen. I think none knew me to live there, and inhabit there.
Lord Chief Baron. I would not interrupt you, this is past, you should have made your exception to that as Master Marten did before concerning his name, that should have been first done, you have appeared and pleaded to that name, and it was, late of Westminster.
Axtell. My Lord, I have this to speak in arrest of Judgment, that the Indictment being grounded upon that statute of the twenty fifth of Edward the third, it is either mistaken or not pursued; my Lords, I did yesterday give you the Judgment of the Lords and Commons concerning the statute in relation to my case, I say the Statute was mistaken, or not pursued.
Lord chief Baron. That was offered before Sir, as to the matter of it.
Axtell. My Lord, I think not, I am mistaken if it were.
Lord Chief Baron. Then open it.
Axtell. My Lord, I do not find in the statute, that words are an overt act, words only.
L. Ch. B. That was over-ruled. The things that you objected were these, That there is not any overt act that is laid, that could be applicable to your case if it were not particularly applicable (you are found guilty by the Jury) it would be nothing : But there is an overt act, you were present a the Court, beating the Souldiers, sending for an Executioner : but for words, if one man should say, here is the King, go and kill him, this is Treason; but you were guilty in all according to the Law. You being there and doing this, you were not guilty onely of the words, but of all that was done, there is none but Principals in Treason. What we say and do to you, we well know we must answer before God Almighty for it.
Axtell. I have but one word more, truly I do appeal to God before whom I shall have another tryall, I do not find my self guilty either of consulting, contriving, or having a hand in the death of the King, I am innocent, and I pray God that my innocent blood----
Lord Chief Baron. Pray Sir----
Axtell. May not cry----
Lord Chief Baron. You are now to speak in arrest of Judgment.
Axtell. I have no more, I pray your Lordships favour and mercy to me.
William Hulet, alias Howlet, hold up thy hand, thou art in the same condition, what canst thou say for thy self why Judgment, etc.
Hulet. Truly my Lord, I have little further to say, If you had been pleased to give me further time, I should have cleared myself, I call God above to witness upon this account, that I am as clear as any man, I submit to the mercy of the Court.
L. Ch. B. For that I do (but cannot positively say it) that at your request (notwithstanding the Judgment will pass against you) there may be some time till his Majesties pleasure be know before any execution will be upon that Judgment against you, in the mean time we must proceed according to Law and Justice.
Proclamation for silence whilst Judgment is giving.
The Lord Chief Barons speech before the Sentence
pronounced against the aforenamed Prisoners found guilty.
You that are Prisoners at the Bar, you stand here in several Capacities, yet all of you persons convicted of the detestable and execrable murder of our Soveraign Lord King Charles the first, of blessed memory. Mistake me not, I do not say that you are all of you guilty of executing the fact, but in Law and in conscience (pro tanto, though not pro toto) you are guilty of it, in that you prepared the way and means to it, in that you brought his head to the block, though you did not cut it off. You are here in three forts, and I must apply my words accordingly, and truely I do it with as much sorrow of heart as you have, many of you being persons of liberal education, great parts, I say you are of three forts. There are some of you that though the Judgment of death is to pass against you, by his Majesties grace and favour, and the mercy under him, of the two houses of Parliament, Execution is to be suspended untill another Act of Parliament shall pass to that purpose, that is, all of you but three; for those three, the one of whom was last called, William Heveningham, he is in another capacity too, for I presume some time will be given to him to consider of something relating to him, before any order will be given for his execution; there are tow others of you, and that is Dan. Axtel and Francis Hacker, and for you, as it yet stands before us, there is no mercy, there is no room for it : but though you be in these several Classes, yet what I shall say will concern you all, because I do not know how it may fall with you, none of us knows how soon we may come to our deaths, some (probably) sooner then others, all must come to it : you are now before the Tribunal of man, but that is for Judgment for your offence here, but there is another Judgment hereafter, and a Tribunal before which both you and we must stand, every man here, and we must receive according to our work; those that have done ignorantly, by a serious and unfeigned repentance, God Almighty may shew mercy unto them. He hath reserved mercy even for the greatest offenders. Saint Paul himself when he persecuted Christ ignorantly, upon his repentance he found mercy; those of you that are not yet convicted in your consciences of the foulness of this horrid fact, look into you Consciences a little more, and see if it be not a great Judgment for your former offence that you should be given over to a reprobate sense; let me tell you, a feared Conscience, a bold confidence not upon good grounds, is so far from securing the Conscience, it may stifle perhaps the mouth of Conscience, but it will rise up more in Judgment against you. Here you have made your defence, and I do not blame you for it; life is precious, but remember that thoughts of your hearts are open, whether you did it ignorantly, covetously, or to get the Government into your own hands, that I am not able to search into, God and you only know that; give me leave to say something, perhaps I have repeated it by parts before. God is my witness what I speak, I speak from mine own Conscience, and that is this Gentlemen, because I saw it stuck with some you that is, that whatsoever the case was, that by the Laws of these Nations, the fundamental Laws, there could not be any coercive powers over your King. I speak it again, because I would as near as I could, speak the whole truth, and would not mislead any man is such a case; remember that no power, no person, no Community or body of men, (not the people, either collectively or representatively, have any coercive power over the person of the King by the fundamental Laws : for that, Gentlemen, I shall begin to shew you that which all of you might remember, that is, your oaths of Allegiance and Supremacy, and to add to this that obligation which all this whole Nation did oblige themselves to, by the Parliament, without question then rightly represented and in being, the first of K. James ; whereby to shew you, that not only persons, but the Body politick of the Nations, not only the single Members, but the Members in both houses of Parliament, were loyal and obedient subjects to the King, their head, even to yeeld a natural and humble Obedience, and Allegiance. I told you the Act of the I.of K. James, when K. James came first into Engl. We the Lords and Com. representing the whole People of the Nation, (the very words of the Act are so primo Jacobi, Chapter the first,) Representing the whole Body of the Nation, do acknowledge an humble natural Leige Obedience to the King, as Supreme, his Heirs and Successors. And in the name of themselves and all the people, humbly submit themselves, untill the last drop of their bloud be spent in defence of the King and his Royall posterity ; and therefore they did oblige themselves, and all the People of England, as far as they could represent them, (the words are more full then I can express them) and indeed it is so dark I cannot read them. They did acknowledg, to be bound to him and his Imperial Crown. Remember these were not words of Complement, you shall find that they all of them, and so did so many of you as were Members of Parliament, yea all of you, before you came into the House of Commons, did take the Oath of Allegiance, which was made after this Recognition, the third and fourth of King James, or otherwise, were not to be Members. What was that Oath of Allegiance that you took ? it was, That you should defend the King his Person, (that is in 3 Jacobi, Chapter the fourth, his Crown and Dignity) What was it ? Not only against the Popes Power to depose, but the words are, or otherwise : look into the Act, and reflect upon your Conscience, and you shall find that all did swear to defend the King, his Crown and Dignity, and there it is called Imperial Crown. I would have you lay this to heart, and see how far you have kept this Oath. Gentlemen, In the Oath of Supremacy which you all took therein, you did further acknowledg that the King was the only Supream Governour of this realm : Mark the words, I will repeat them that you may lay it to heart, you that have more time to apply it to your Fact ; and you that have less time for ought I know, you have reason to consider what I have to say ; you sware then, That the King by the Oath of Supremacy, which all of you have taken, or ought to have taken ; if any of you have not taken it, yet notwithstanding you are not absolved from the obligation of it ; but most of you did take it, there you sware that the King is the only Supream Governor of this Realm ; and you sware there, that you would defend all Jurisdictions, Priviledges, Preeminencies and Authorities granted or belonging to the Kings Highness, His Heirs and Successors, or united and annexed unto the Imperial Crown of this Realm. For the first ; If the King be Supream, then there is no coordination. Non habet majorem, non habet parem, that (word Imperial Crown) is at least in nine or ten several Statutes ; it is the very word in this Act that was made lately in pursuance of former Acts concerning Judicial Proceedings. And so in the time of King Charles, they acknowledged him to be their Leige Sovereign ; I say that word Supream, and so the word Imperial Crown, is in the first of Queen Elizabeth ; the third, and the eighth of Elizabeth ; the twenty fourth of Henry the Eighth, Chap. 12. there it is said this Kingdom is an Imperial Crown, subject to none but God Almighty. Before these times, you shall find in the sixteenth of Richard the Second, the Statute of Premunire, the Crown of England subject to God alone. I will go higher, William Rufus (some of you are Historians, and you shall find the same in Eadmerus, and also in Matthew Paris, shortly after William Rufus his Time) when he wrote to the Pope, he challenged, and had the same liberty in this Kingdom of England, as the Emperor had in his Empire, ( mistake me not, I speak only as to the Person of the King ) I do not meddle of Rights between the King and Subjects, or Subject and Subject ; you see in this Case concerning the Death of his Majestys dear Father, and our Blessed Sovereign of happy memory, he doth not judg himself but according to Law, that which I assert is as to the Person of the King, which was the priveledg of Emperors as to their Personal Priviledges, if he had offended and committed an Offence, he was only accountable to God himself. I will come back to what I have said ; You swore to be faithful to the King as Supreme. The King of Poland hath a Crown, but at his Oath of Coronation, it is conditioned with the People, That if he shall not govern according to such and such Rules, they shall be freed from their Homage and Allegiance. But it differs with our King, for he was a King before Oath. The King takes his Oath, but not upon any condition ; this I shew you, to let you see that we have no coercive Power against the King. The King of England was anointed with Oil at his Coronation, which was to shew that Absolute Power, (I do not say of Government) but of being accountable to God for what he did : The Law saith, The King doth no injury to any Man ; not but that the King may have the imbecilities and infirmities of other Men, but if the King command a Man to beat me, or to disseize me of my Land, I have my remedy against the Man, though not against the King. The Law in all Cases preserves the Person of the King to be untouched, but what is done by his Ministers unlawfully, there is a remedy against his Ministers for it ; but in this Case, when you come to the Person of the King, what do our Law Books say he is ? they call it, Caput Reipublicae, salus Populi, the Leiutenant of God ; and let me tell you, there was never such a blow given to the Church of England and the Protestant Religion. There was a Case, and that of the Spencers, you shall find in the 7th Report of the Lord Cook, in Calvins Case, that Homage is due to the King in his Politick Capacity ; and then they made this damnable Inference, That therefore if the King did not demean himself as he ought, that he should be reformed pure aspertee, by asperity, sharpness or Imprisonment : but these were condemned by two Acts of Parliament in Print, that they could not do that even in that Case, one was called the Banishment of Hugh Spencer ; and the other is in I. Edward 3. upon the Roll. My Masters, In the first of Henry the Seventh, you shall find it in the printed seven Books, he saith, That as to the Regality of his Crown, he is immediately subject unto God. Mark the Doctrine of the Church of England, Gentlemen, I do not know with what Spirit of Equivocation any Man can take that Oath of Supremacy : You shall find in the Articles of the Church of England, the last but one or two ; it is that Article which sets forth the Doctrine of the Church of England ; they say, That the Queen, and so the King, hath the Supreme Power in this Realm, and hath the chief Government over all the Estates of the Realm, the very words are so ; this was shortly after making the Act ; the Articles were in 1552, and she came in 1558, or 1559 ; it is to shew you the King hath the chief Government over all the Estates within the Nation ; and if you look upon it, you shall find it was not only the Judgment of the Church, but of the Parliament at the same time. They did confirm this Article so far, that they appointed that no Man should take or be capable of a Living, but those that had taken that Oath. God forgive those Ministers that went against it. The Queen and the Church were willing that these should be put into Latin, that all the World might see the Confession of the Church of England, and of the People of England, you may reade it in Cambden : I have told you how and wherein the chief Power consisted, not in respect the King could do what he would ; no, the Emperors themselves did not challenge that, but this they challenge by it, That they were not accountable to Man for what they did : No Man ought to touch the Person of the King, I press it to you in point of Conscience ; you see in the Scripture, in Psalm. 51. the Psalm of Mercy, whereby we ask pardon of God for our great Offences ; I think none of you in this condition, but will join in this ; you know that Adultery and Murder that David committed, this penitential Psalm was made for that ; What doth he say ? Against thee, thee only have I sinned, &c. tibi soli peccavi, Domine ; not because he had not sinned against Man, for 'tis plain, he had sinned both against Bathsheba and Uriah too : But because he was not liable to the Tribunal of Man, he was not bound nor accountable to any Man upon Earth. And now, my Master, I beseech you consider, that some of you for ought I know suddenly, and some of you for ought I know not long after, all of us we do not know how soon, must come to make a right account to god of what we have done. After this Life you enter into an Eternity, an Eternity of Happiness or of Woe ; God Almighty is merciful to those that are truly penitent ; the Thief upon the Cross, and to all that are of a penitent heart. You are Persons of education, do not you go on in an obstinate perverse course, for shame of Men, even this shame which you now have and which you may have when you come to die, a sanctified use may be made of it, you pay to God some part of that punishment which you owe to him for your sins. I have no more to say, but the next thing I have to do is, to give sentence, the Judgment ; which truly I do with as unwilling a heart as you do receive it. You Prisoners at the Bar, the Judgment of the Court is this, and the Court doth award that, &c. And the Lord have mercy on your Souls.
Court adjourned till Friday morning seven a Clock.
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[top of page 327:]
Friday, Octob. 19. 1660.
Set William Heveningham to the Bar.
Serjeant Keeling. May it please your Lordships, the Prisoner at the Bar, William Heveningham, hath been indicted of High-Treason, for compassing and imagining the Death of the late King of blessed memory ; he has been tried, the Jury has found him guilty : I do humbly move your Lordships in the behalf of the King, that you will proceed to Judgment.
Clerk. William Heveningham, hold up thy hand, what canst thou say for thy self, why Judgment, &c.
Heveningham. My Lords, I have nothing more to say than I said formerly, only I plead the benefit of the Proclamation, and cast my self upon the Mercy of our most gracious Sovereign, and desire your Lordships to be Mediators on my behalf.
Lord Ch. Baron. By the Act of Indempnity ( of which you claim the Benefit, and we ought to take notice of it ) we are to proceed to Judgment, but no Execution of this Judgment is to be until by another Act of Parliament by consent of the King it shall be ordered. And therefore I need not speak any more of that, or any Exhortation to prepare your self for Death ; our work is only to give Judgment. The Judgment of the Court is this, and the Court doth award, that you the Prisoner at the Bar be led back to, &c. And the Lord have mercy upon your Soul.
Thus having given the Reader a most impartial view of every Passage occurring in this so solemn and legal Indictment, Arraignment, Trial, and Condemnation of these twenty nine black Regicides, with their several Pleas and Defences in their own words. It may be also some additional satisfaction, to let the Reader know the time and manner of such of them who were according to the Sentence Executed. For their last Discourses and Prayers, as they were made in a Croud, and therefore not possible to be taken exactly ; so it was thought fit rather to say nothing, than give an untrue account thereof ; chusing rather to appear lame, than to be supported with imperfect assistances.
On Saturday the 13th of October 1660, betwixt nine and ten of the clock in the Morning, Mr. Tho. Harrison, or, Major General Harrison, according to this sentence, was upon a Hurdle drawn from Newgate to the place called Charing-Cross; where within certain Rails lately there made, a Gibbet was erected, and he hanged with his face looking towards the Banqueting-house at Whitehall, (the place where our late Sovereign of eternal memory was sacrificed) being half dead, he was cut down by the common Executioner, his Privy Members cut off before his eyes, his Bowels burned, his Head severed from his Body, and his Body divided into Quarters, which were returned back to Newgate upon the same Hurdle that carried it. His Head is since set on a Pole on the top of the South-East end of Westminster-Hall, looking towards London. The Quarters of his Body are in like manner exposed upon some of the City Gates.
Monday following, being the fifteenth of October, about the same hour, Mr. John Carew was carried in the like manner to the same place of Execution; where having suffered like pains, his Quarters were also returned to Newgate on the same Hurdle which carried him. His Majesty was pleased to give, upon intercession made by his Friends, his Body to be buried.
Tuesday following, being the sixteenth of October, Master John Cook, and Mr. Hugh Peters, were about the same hour carried on two Hurdles to the same place, and executed in the same manner, and their Quarters returned in like manner to the place whence they came. The Head of John Cook is since set on a Pole on the North-East end of Westminster-Hall (on the left of Mr. Harrisons) looking towards London; and the head of Mr. Peters on London-Bridg. Their Quarters are exposed in like manner upon the tops of some of the City Gates.
Wednesday, October 17, about the hour of nine in the morning, Mr. Thomas Scot, and Mr. Gregory Clemen, were brought in several Hurdles; and about one hour after Master Adrian Scroop and Mr. John Jones together in one Hurdle were carried to the same place, and suffered the same death, and were returned and disposed of in the like manner.
Mr. Francis Hacker, and Mr. Daniel Axtel, were on Friday the 19th of October, about the same time of the morning, drawn on one Hurdle from Newgate to Tiburn, and there both Hanged; Mr. Axtel was Quartered, and returned back, and disposed as the former; but the Body of Mr. Hacker was, by his Majesties great favour, given entire to his Friends, and buried.
Back to Col. Daniel Axtell, Regicide.
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