260 Records of the Rising in the West, A.D. 1655. 
law. Or a prisoner may alledge he is not rightly named in the indictment, or 
hath not his right title or addition, or the fact is not set down with safficient 
certainty, and by some or all these we may get council assigned. 
27. If the indictment be for levying war, alledge, that there is no such open 
deed set down as is sufficient in law, and in such case, desire council to argue it, 
and endeavour to make our bearing of arms only a riot or unlawful assembly, 
and not a levying of war; for every bearing of arms in a warlike manner is not 
by the law a levying of war, as was adjudged in the earl of Northumberland’s 
case, 5 Hen. IV.* 
28. If we could say we met together upon some private revenge against the 
sheriff, or some private man, and not for the destruction or reformation of any 
law of the land, or to oppose any lawful authority, then unless two witnesses 
shall swear that we did declare some other end, the case must be resolved in 
law, whether it be a levying war; yet this point must not be insisted upon until 
the grand point in law be overruled by the court, viz., that the indictment is 
sufficient in law, notwithstanding it is not grounded upon the common law or 
any act of parliament; for we ought to lose ground by inches. 
29. If they proceed upon the indictment to give evidence against us, insisting 
upon it, that the matter of fact be proved by two sufficient lawful witnesses ; 
then let their witnesses depose openly in court face to face, for the law exacts two 
lawful witnesses in case of treason by statute 1 Edw. VI., and 5 Edw. VI., cap. 
11, and 1 & 2 Ph. & Mar., cap. 11. Let the witnesses be strictly examined, 
and put to swear punctually to the fact, &c., charged in the indictment as the 
open deed, declaring and levying of war; and that both witnesses swear to the 
same fact, and at the same time and place, else they are but single testimonies 
to two facts of the same nature. 
30. Insist upon it to make them prove the act or ordinance is a true copy of 
the parliament roll, and examine them upon oatb, whether they examined it by 
that roll; (for ’tis possible they may have forgot to do it,) alledging that we are 
not to be tried by every private or printed paper, and demand it may not be read 
or given in evidence, ’till it be proved. + 
31. If they offer to prove by any intercepted letters, whereof they have copies, 
that we levied war, then deny those copies, and demand the originals, and if the 
originals could (which cannot) be produced, they can never prove them to be any 
of our hands, if we put them to it, 
32. If the Commissioners that try us be serjeant Glynne or recorder Steele, or 
any other, who are not the ordinary judges at Westminster, tell the jury, that 
these are not the sworn judges of the law, but practitioners and pleaders, servants 
to the Lord Protector and are made judges only for this purpose, to take our 
lives contrary to law, because the sworn judges refused it. If baron Thorpe 
comes he is a sworn judge. 
* See Penruddock’s trial infra, as also for the objections to plea 28. 
+ We may trust the Attorney-General and his coadjutors to have secured the prosecution against 
this plea and the next. As far as we knov, no intercepted letters were produced. 
+The Protector being (so the Judges decided) the supreme head of justice, had power to commis- 
sion the two serjeants, It is and has been the practice to place in the commission others besides 
the Justices of Assize, for instance, Serjeants and Queen’s counsell who preside in additional 
courts, or in the absence of the Judges. 
