260 Records of the Rising in the West, A.D. 1655. 



law. Or a prisoner may alledge he is not rightly named in the indietment, or 

 hath not his right title or addition, or the fact is not set down with sufficient 

 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. YL, and 5 Edw.'YI., 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 faot, 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 oath, 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. f 



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. J 



* 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 know, no intercepted letters were produced. 



tThe 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. 



