rannical Power, against Law. 6 6 To prove delivering their opinions, through menaces and fear of death at Nottingham Castle, under which Charge, their arbitrary proceedingstheir hands and seals, against the Law of the contrary to the Laws and Great Charters of Land; that the Lords and Commous who pro- England, both at the Connell Table, in the cured the Commission in the Parliament of 10 High-Commission, Star-Chamber, and elseR. 2, for the better government of the realm, 'where, were given in evidence against them; and moved the King to consent thereto, de- and more particularly, the Earl of Stratford's served to be punished as traitors, by capital proceeding against the Lord Mount Norris pain of death. That so by colour of these in Ireland, by a Council of War, in time of their opinions, Robert de Veer duke of Iie- peace, and condemning him to Death therein' Jand, Nicholas Brambre, knight, and others of without any legal Indictment and Trial by his the King's ill counsellors, might take occasion 'Peers against the Great Charter and Laws of to destroy and take away the lives of the lords 'the Land, though he did not execute bim who procured and executed that Commission, thereupon:' And whether your present Proand others of the king's people, by undue and ceedings of like nature against this Defendant, illegal Indictments and Proceedings, without in case you reject or over-rule this is Plea and any lawful Trial by their Peers as traitors to the Demurrer, and condemn and execute bum by king. And the said Sir (1) Nicholas Brambre pretext of an illegal Act (made by no free and for enforcing the Judges, with others of the lawful Parliament of England,) for offences not King's ill counsellors to deliver their opinions treasonable by the known laws and statutes of against law, and for his beheading and exe- the land, nor legally proved against him by any cuting 22 prisoners of Newgate impeached and one witness produced in Court before his face, indicted of felony, (or suspicion of felony) at without consulting the present Judges of the Foul-Hoke in Kent by regal and tyrannical Land (who refuse to join or sit with you in this power incroached by him, without warrant, or new illegal way of trial) will not much more due process of the law, against the Great involve you in the crime and guilt of the very Charter and usage of the realm of England, self-same High Treasons, for which they were was in the same parliament condemned for thus anciently and lately impeached, condemBHigh-Treason, and beheaded at Tower-hill on ed, executed by Judgment of Parliament, and the same block, with the same ax he had pre- so expose you to the like capital censures, forpared to cut of the beads of others he intended feitures, confiscations of your real and personal there to execute as his enemies. And that in estates, as they underwent, in future Parliathe last parliament of King Charles, the two ments, by your endeavouring to subvert all Chief Justices, Brampston and Finch, the Chief the premised Fundamental Laws and esta Baron Davenport, and all the rest of the Judges 'blished legal proceedings in the land, and to and Barons, except two, were by the whole introduce and set up a mere Arbitrary and house of commons, and some of the commis- Tyrannical Power, contrary to law, to the sioners here sitting, and counsel pleading against endangering not only of the properties, but this Defendant, impeached of High-Treason, lives, liberties, and inheritances of all the dis-judged and put to tines and ransoms, for noblemen, gentlemen, clergymen, and other that they had traitorously endeavoured to sub- 'freemen of England, by such exorbitant, vert the fundamental Laws and Government of martial proceedings,' after all these statutes, the realm of England, and instead thereof to judgments, with the late Remonstrances, Deintroduce an Arbitrary and Tyrannical Go-clarations, Leagues, Covenants, and solemn vernment against law; which they had declared by traitorous words, opinions and judgments in the case of Ship-Money, against Mr. John Hampden; Which Judgmeat and Opinions concerned only the property of the subjects goods, not the hazard of their lives, inheritances and forfeiture of their estates, as your present proceedings do, being of a more high and dangerous consequence; In which parlament, by the like Impeachment and Prosecution, Willian Laud, Archbishop of Canterbury, and Thomas Earl of Stratford Lord Deputy of Ireland, were condemned and executed by Judgment of Parliament, and some bore present, as Traitors, guilty of High-Treason, for that they endeavoured traitorously to subvert the Fundamental Laws and established Government of this Realm, and instead thereof to bring in and set up an Arbitrary and Ty 6 Oaths of the Lord Protector himself and others R of -65 * See No. 12, vol. 1, p. 89. (i) Henry de Knyghton de Event. Angliæ bitrary, tyrannical proceedi 1. 5, p. 2718, 2726, 2727, 2728. Canterbury, and the late king Chalies (Who@ some of yourselves have impeached, censured, condemned, decapitated as the very worst, and greatest of Tyrants,) lest it become a most pernicious fatal precedent to posterity, to others, or your own destruction, and render you as execrable to all succeeding generations, as any formerly guilty of the like exorbitant proceedings. Just and legal EXCEPTIONS to the Cause and Manner of the Illegal Judgment given against Dr. John Hewet; humbly tendered by him to the consideration of those Commissioners who denounced it. pannelled to try him, are by law to enquire of, find and return upon oath :) Or, peremptory' challengeth above 35 of his jury without any legal cause or exceptions; or else obstinately (f) refuseth to put himself upon a legal trial by God and his country, (being a jury of honest and lawful men of the county then and there present, (g) returned by the sheriff alone, not justices or others, for to try him: to whom by law he may take both his legal and peremptory challenges) saying, that he will be tried only by God and the Bench; or, by God and the Court, or judge; or (h) by God and the Virgin Mary, or Holy Church: there being That it is specially enacted by the Statute no precedent extant in records, or law-books, of Westminster the 1, ch. 12. and accordingly of any traitor or felon hitherto condemned to resolved in Brook Pain 1, 2, 4, 5, 8, 9, 12, 13, die, for standing mute, or not pleading, only 14, 15, 19, and the Year-Books therein abridg- for refusing to be tried by God and the honoured, by Stamford's Pleas of the Crown, 1. 2. c. able Bench, judges, Court aloue, without any 60. Dyer, f. 205. a. 300. b. Coke's 2 Institutes, Indictment or jury; and for earnestly imporp. 177, 178, 179. and 3 Institutes, p. 217. tuning the Court and his judges, that he may That no man ought by law to be condemned, be tried only by God and his country, and on or put to death in case of treason and felony, an Indictment by a jury of his equals accordfor standing mute or refusing to plead, or puting to law, casting himself wholly upon such a himself upon his trial, or for challenging more than 36 of the jury peremptorily; but ' only in these cases.' 1. When and where the person accused and arraigned, is a (a) notorious traitor or felon, and openly of evil name, and defamed thereof: But Dr. Hewet is no such person. 2. When and where the treason or felony for which he stands accused, is (b) notorious, evident, certain, or at least very probable, and already found upon oath against him by the presentment, or indictment of an honest lawful Grand Jury, of his equals of the same county wherein he is arraigned, or confessed by himself: all which circumstances and evidences of guilt were wanting in Dr. Hewet's Case. 3. When and where the judges, (c) for the better satisfaction of their consciences, and discharge of their duties, do (as they ought by law,) first openly examine the evidences and witnesses, which prove the person arraigned guilty of the fact of treason or felony for which be stands indicted, before they proceed to give judgment against him for not pleading, or standing mute. Which was not done in this Case, there being neither witnesses nor evidence produced in open Court to prove him guilty. 4. When and where there is a legal Indictment found against the party arraigned, which being read openly to him in Court, the traitor or felon thereupon doth either (d) wilfully or maliciously stand mute, refusing to answer or plead thereunto, (which the (e) jury there im (a) West. 1. c. 12. Stamford, l. 2. c. 60. f. 149. b. Coke's 2 Instit. p. 177. 179. (b) Coke's 2 Instit. p. 177. Stamford, f. (c) Stamford, 1. 2. c. 60. f. 150. a. (d) Stamf. 1. 2. c. 60. Coke's 2 Instit. p. 150 a. 177, 178. (e) Stamford, f. 150. b. 43. Ass. 30. Fitz. Corone, 225. 8 H. 4. 2. Coke's 2 Instit. p. 178. 21 E. 3. 13. a trial, after a lawful presentment and Indictment first found against him by a jury. The only reason rendered in and by the forecited statute and law-books of all judgments hitherto given against any traitor or felon, for standing mute, and refusing to plead, being this, (i) 'Because he peremptorily refuseth to stand to and be tried by the law of the land, and a due ' and lawful trial by a jury of his equals, ac'cording to the course of the common-law, and the great Charter.' But Dr. John Hewet is now condemned to be executed as a traitor by the High Court of Justice, contrary to all 'former precedents, statutes, law-books, and 'the only legal reason in former times of all judgments rendered against any persons in such cases; even for his frequent, earnest, importunate demanding and peremptory casting of himself, upon a due legal trial by God and his country, and an indifferent jury of his equals, according to the common statute laws and Great Charter of England, after a 'legal presentment and Indictment to be first found against him and for refusing to wave this his legal trial' (to the public prejudice of all other English freemen) and, cast himself wholly and solely upon a new kind of arbitrary trial,' contrary to law, by God and the Bench, Court, and the commissioners themselves, (who would be both his Grand and Petty Jury as well as Judges) without and before any legal presentment, Indictment, or jury impannelled or returned to try him.' Therefore he humbly conceives this Judgment denounced against him upon this reason and ground alone, to be most erroneous, illegal, unjust, repugnant to all for (f) Coke's 2 Instit. p. 178. (g) 11 H. 4. c. 11. Coke's 3 Instit. 32. 33. (h) 4 E. 4. 11. 7 E. 4. 29. Brook Pain 14. (i) W. 1. c. 12. 3 Instit. p. 217. 2 Inst. p. 179. 8 E. 3, Itin. Nort, Fitz. Corone, 359. 14 H. 4, 7. Brook Pain. 14, 15. mer precedents, and to one this very week at [draw down from heaven that heavy sentence of the sessions in the Old-Bailey by judgment of wrath upon them, nor that sad judgment upon some of his judges at Westminster, and of the whole land of England which this prophet very dangerous consequence. Whereupon he denounced against Jehoiakim, Jer. xxii. 17, 18, humbly prays the suspension and reversal 19, But thine eyes and thine heart are but for thereof as unjust, and merely void in law, by thy covetousness, and for to shed innocent the statutes of 25 E. 1, cap. 2, and 42 E. 3, c. blood, and for oppression and violence to do 1, lest the execution of him for a traitor upon it. Therefore thus saith the Lord concerning this judgment and ground, should prove wilful Jehoiakim; they shall not lament for him, murder, and a shedding of innocent blood in saying, al my brother, or ah sister, ab Lord, or the account both of God and man. ah his glory but he shall be buried with the burial of an ass drawn and cast forth beyond 'the gates of Jerusalem.' And that which the prophet Joel threatened to Egypt and Edom,Joe! desolate wilderness, for their violence against the children of Judah, because they have shed innocent blood in the land.' And that against all rules of law and justice, in that they intitle, the High Court of Justice, which will not palliate, but aggravate the injustice acted in it, and make it more detestable both to man and God himself, who avers this for an undoubted truth ; What therefore the prophet Jeremiah alledged to the Princes of Judah, in a like case, when they resolved him at first to be worthy of death, without a legal hearing or trial, Jerem.iii. 19. Egypt shall be a desolation, and Edom a xxvi. 11, 14, 15. 'As for me, behold, I am in | 'your hands, to do unto me what seemeth good and meet unto you: but know ye for certain, that if ye put me to death, ye shall surely bring innocent blood upon yourselves, and upon this city, and upon the inhabitants thereof: whereupon the princes and people, upon second and better advised thoughts, altered their former bloody sentence, saying: 'man is not worthy to die; for he hath spoken unto us in the name of the Lord cur God. And the hand of Ahikam was with Jeremiah, that they should not give him into the hand of the people to put him to death;' shall be my allegation to those who have passed this unjust sentence of death against me; and if it produce not the like effect for their reversal thereof, and my preservation from its violent bloody execution, as it did in this prophet's case; I shall then earnestly pray to God, that it may not This Gen. ix. 5, 6. Surely your hlood of your lives will I require; at the hand of every beast will I require it, and at the hand of every man's brother will I require the life of man. Whoso sheddeth man's blood, by man shall 'his blood be shed; for in the image of God 'made he man.'t * Eccles. iii. 16, 17. Psal. xciv. 20, 21, 23. See the account of the Sentence and Exe cution at the end of the next Case. 204. The Trial of JOHN MORDANT, esq. before the High Court of Justice, for High-Treason: 10 CHARLES II.* the 1st of June, A. D. 1658. THE Serjeant at Arms was commanded to bring John Mordant, esq. to the bar, who was brought accordingly. * Mordant's name occurs prominently in some of the Examinations respecting this Plot which are published in the 7th volume of Thurloe's State Papers. "There was a young gentleman, John Mordant, the younger son, and brother, of the earls of Peterborough; who having been too young to he engaged in the late war, during which time he had his education in France and Italy, was now of age, of parts, and great vigour of mind, and newly married to a young beautiful lady of a very loyal spirit, and notable vivacity of wit and humour, who concurred with him in all honourable dedications of himself. He resolved to embrace all opportunities to serve the king, and to dispose those upon whom he had influence, to take the same resolution; and being allied to the marquis of Ormond, he did by him inform his majesty of his resolution, and his readiness to receive any Lord President (Lisle). Mr. Attorney, what have you to say against the prisoner at the bar? commands from him. This was many months before the marquis's journey into England. : "Mr. Stapley was well known to Mr. Mor dant, who had represented his affections to the king, and how useful he might be towards the possessing some place in Sussex, and his undertaking that he would do so, by a letter to the king, under Mr. Stapley's own hand and thereupon Mr. Mordant desired, that his ma jesty would send a commission for the com mand of a regiment of horse to him; which he would provide, and cause to be ready against the season he should be required to appear: which commission, with many others, was sent to Mr. Mordant; and he delivered it to Mr. Stapley; who was exceedingly pleased with it, renewed all his vows and protestations; and it is still believed that he really meant all be pretended. But he had trusted some servant, who betrayed him; and being thereupon sent Attorney General (Prideaux). My lord, I have prepared a Charge of High-Treason against the gentleman at the bar, which I desire may be read. for by Cromwell, his father's fast old friend, The Substance of the IMPEACHMENT. Mr. Phelps (Clerk.) John Mordant, esq. stand at the bar, and hear your Charge. 6 former resolution, refused to plead not-guilty; but insisted, that by the law of the land he ought not to be tried by that Court ;' for which he gave more reasons than they could answer; and then desired, that his counsel might have liberty to argue the point in law; which of 'course used to be granted in all legal Courts. But he was told, that he was better to bethink himself; that they were well satisfied in the legality of their Court, and would not suffer the jurisdiction of it to be disputed; that the law of England had provided a sentence for 'such obstinate persons as refused to be tried by it; which was, that they should be con'demned as mutes; which would be his case,' if he continued refractory so he was carried back to the Tower, to consider better what he would do the next day. Sir Harry Slingsby was called next. He knowing nothing of, or for the other resolution, pleaded not-guilty; and so was sent to the prison to be tried in his turn. Dr. Hewet, whose greatest crime was collecting and sending money to the king, besides having given money to some officers, refused to plead, as Mr. Mordant had done, and deinanded that his counsel might be heard; and received the same answer, and admonition, that the other had done; and was remitted again to prison. : "Those courts seldom consisted of fewer than twenty judges; amongst whom, there were usually some, who, out of pity or for money, were inclined to do good offices to the prisoners who came before them; at least to communicate such secrets to them, as might inform them what would be most pressed against them. Mr. Mordant's lady had, by giving money, procured some in the number to be very propitious to her husband: and in the evening of that day the trial had been begun, she received two very important advices from them. The one, that she should prevail with her husband to plead; then his 'friends might do him some service: whereas, "Before this High Court of Justice, of which John Lisle, who gave his vote in the king's blood, and continued an entire confident and instrument of Cromwell's, was president; there were first brought to be tried, John Mordant; sir Harry Slingsby, a gentleman of a very ancient family, and of a very ample fortune in Yorkshire; and Dr. Hewet, an eminent preacher in London, and very orthodox, to whose church those of the king's party frequently resorted, and few but those. These three were totally unacquainted with each other; and though every one of them knew enough against himself, they could not accuse one another, if they had been inclined to it.if he insisted upon the point of law, he would The first and the last could not doubt but that there would be evidence enough against them; and they had found means to correspond so much together, as to resolve that neither of them would plead to the impeachment, but demur to the jurisdiction of the Court, and desire to have counsel assigned to argue against it in point of law; they being both sufficiently instructed, how to urge law enough to make it evident that neither of them could be legally tried by that Court, and that it was erected contrary to law. The first that was brought to trial, was Mr. Mordant. After his arraignment, by which he found that the delivery of the commission to Stapley would be principally insisted on, and which he knew might too easily be proved, he, according to infallibly suffer, and no man durst speak for him.' The other, that they had no sufficient 'proof to condemn him upon any particular with which he stood charged, but only for the 'delivery of the commission to Stapley; and that there was to that point, besides Stapley, one colonel Mallory, whose testimony was more valued than the others.' This Mallory had the reputation of an honest man, and loved Mr. Mordant very well, and was one of those who were principally trusted in the business of Sussex, and had been apprehended about the same time that Stapley was; and finding, upon his first Examination, by the questions administered to him by Thurlow, that all was discovered, he unwarily confessed all that he knew concerning Mr. Mordant; A CHARGE of High-Treason against John Mor-sex, esq. minding and intending to e abril this Commonwealth in new and intestine wars and dant of Clement Danes, in the County of seditions, on the S0th of April now last past, Middlesex, Esq. as followeth, viz. and at divers other days and times since the "That John Mordant, late of the parish of 10th of October, 1656, and before the said com Clement Danes, in the said county of Middle- of April last, as a false traitor and enemy to tence. And it so fell out by one of the judges withdrawing upon a sudden fit of the stoat, that the Court was divided, one half for the condemning him, and the other half that he wa not Guilty; whereupon the determination deponded upon the single vote of the President; who made some excuses for the justice he was about to do, and acknowledged many obl gations to the mother of the prisoner, and, in comtemplation thereof, pronounced him cent for ought appeared to the Court. Toe was not in Cromwell's time the like instance; and scarce any other man escaped the jeag ment, that was tried before any High Court of Justice." [" Echard affirms that there is not the like instance of acquitting a prisoner by a High Court of Justice, as that of Mordan"; what does he take the earl of Norwich and Sir John Owen to be?? Oldmixon.] And he was so offended at it, that, contrary t all the forms used by themselves, he cause. him to be kept for some months after in the Tower, and would willingly have brought him to be tried again. For, within a day or two after, Mallory was retaken, and they had likewise corrupted a Frenchman, who had long served him, and was the only servant whoo he had made choice of (since he was to be allowed but one) to attend him in the prison: and he had discovered enough to have taken away his life several ways. But the scand was so great, and the case so unheard of, that any man, discharged upon a public inal, should be again proceeded against upoa new evidence for the same offence, that Cromwell himself thought not fit to undergo the reproach of it, but was in the end prevailed with to set him at liberty. And he was yery few days at liberty, before he embarked himself as frankly in the king's service as before, and with better success." Clarendon. having been himself the person principally employed between him and Stapley. He was brought in custody from the Tower, to give in evidence against Mr. Mordant, with an intention in the Court, after he had done that good service, to proceed as strictly against himself, though they promised him indemnity. "The lady, having clear information of this whole matter, could not find any way that night to advertise her husband, that he should no more insist upon the want of jurisdiction in the Court. For there was no possibility of speaking with, or sending to him, during the time of his trial. Therefore she laid aside the thought of that business till the morning, and passed the night in contriving how Mallory might be prevailed with to make an escape; and was so dextrous, and so fortunate, that a friend of hers disposed the money she gave him so effectually, that the next morning, when Mallory was brought to the ball to be ready to give in his evidence, he found some means to withdraw from his guard, and when he was in the croud he easily got away. "She had as good fortune likewise to have a little note she writ concerning the other advice, put into her husband's hand, as he passed to the bar; which having perused, he departed from his former resolution; and after he had modestly urged the same again which he had done the day before, to spend time, and the President, in much choler, answering as he had done, he submitted to his trial; and behaved himself with courage; and easily evaded the greatest part of the evidence they had against him; nor could they find proof, what presumption socver there might be, that he had spoken with the marquis of Ormond; and he evaded many other particulars of his correspondence with the king, with notable address. That of the commission of Stapley was reserved to the last; and the commission being produced, and both the hand and the signet generally known, by reason of so many of the like, which had fallen into their hands at Worcester, and by many other accidents, Mr. Stapley was called to declare where he had it; and seeing himself confronted by Mr. Mordant, though he did, after many questions and reproaches from the counse! that prosecuted, at last confess that he did receive it from Mr. Mordant; yet he did it in so disorderly and confused a manner, that it appeared he had much rather not have said it; and answered the questions Mr. Mordant asked him with that confusion, that his evidence could not be satisfactory to any impartial judges. Then Mallory was called for; but by no search could be found; and they could not, by their own rules, defer their sen And afterwards the noble Historian, in re lating the measures taken for effecting the Restoration of Charles the second, says: . "Mr. Mordant, who had so lately his bead upon the block, was more active than any man; and was so well trusted by men of all conditions, upon the courage of his former Lehaviour, that he had in truth very full engagements from very good men in most quarters of the kingdom, that if the king would assiga them a day, and promise to come to then after they were embodved, they would not fail to appear at the day.' Whereupon, Mr Mordant ventured himself to come in disguise to the king to Brussels, to give Lim a clear ac count how his business stood, and what prohability there was of success, and Levise to complain of the want of forwardness in some |