Hamilton Lord Capel and Holland Did not the Parliament approve of what they did in that case as Just Honourable and Lawful Did not Duke Hamilton Did they not all Petition the House Did not the Parliament order Execution upon some and Cleared others To say this is without Precedent when Precedents are so frequent I wonder that should be said To that point of a Jury I must tell this Gentleman he speaks of a Jury but hath not put himself upon Trial after he hath pleaded not Guilty then it must be considered the manner of the Proceeding but to come before he plead Guilty or not Guilty to desire a Jury this is a little to anticipate your Judgement M. MORD. My Lord I am concern'd for the fatal Precedent that Learned Gentleman gives of the Queen of Scots it being in my opinion the greatest blurre to the Justice of Our Nation and for which we may yet suffer But allow that for a Precedent our Cases are strangely different She a Sovereign Queen and how to get a Jury of Kings and Queens to have sate upon her would have been hard Next She was a Foreiner and ought to have had six of her own Country to six of Ours which could not be found To this my Lord the next Parliament pardoned all those in particular sate upon her as having done an action Questionable by the Laws of the Land I my Lord am an English-man very well known and have a right to the Great Charter and Petition of Right which She had not and therefore desire Jury and Counsel M. ATTORN GEN. The Parliament hath thought fit to go this way and it is not to be disputed they that live in this Nation are not to dispute it If that Gentleman will please to recollect himself and not my Lord thus Expostulate and Dispute with the Court of Justice if he please to put himself upon Trial if he thinks himself Innocent I think it best and if he refuse it his Sentence is from himself M. MORD. I am not Convinced at all but forced upon it and it is a hard thing that my Reason should not be Convinced If this Act doth say in any place that I must lose those Privileges or if the Judges will declare it to be so I will submit to it If the Judges will declare that I must be try'd thus God's will be done I desire to stand and fall by the Laws M. ATTORN GEN. We are clearly of opinion we have not power in this to appoint any other Jury nor to summon a Jury we our selves having taken an Oath you would doe well to plead M. MORD. I do not shun to be try'd by Act of Parliament but refer my self to the Judges that those Privileges of the Act may not be taken from me If I am not suffered to dispute the Power of the Court yet I desire my Reason may be convinc'd and that I may have Counsel Here he was interrupted and a silence in the Court occasion'd by a Note handed to the President and from him to the Lieutenant of the Tower who got it delivered to the Prisoner The Note contain'd these words For God's sake plead plead for my sake and stand disputing it no longer Vpon the receit of this the Prisoner chang'd his Resolution mov'd thereunto by the great Kindness and value he had for his Lady who being at the Hall-door in a Coach had received information that unless he presently pleaded he was lost upon which her Vncle the Earl of Monmouth got her to write the Note and himself carried it to the Court. By this it appears how miraculously God preserv'd this Gentleman just as he was to be forc'd away to Inspire his Lady the means to save him 'T is certain that She is an extraordinary Person and never Woman so much oblig'd an Husband nor did him so many essential good Offices M. MORD. My Lord I have but little to say I desire to know whether the Court doth intend to try me by a Jury M. SOL. ELLIS They do not M. MORD. Is the Court Judge and Jury M. ATTORN GEN. Yes if you will deal Ingenuously with the Court I think that is best M. MORD. Seeing I am here over-ruled though not convinced in my Reason I shall demurre to the Jurisdiction of the Court and plead not Guilty I desire a Copy of my Endictment and time to plead L. PRES It was never done for any Indictment of High-Treason was never delivered to any Prisoner M. MORD. I urge my Lord Cooke for Authority for a Copy of my Indictment M. PHELPS John Mordaunt Esquire you stand here Charged of High-Treason to this Charge you plead not Guilty Is this your Plea M. MORD. Yes I beg my Lord that my Ignorance of the Laws may not prejudice me not understanding or knowing any thing of the Law and this granted me I shall address to my Justification M. ATTORN GEN. Do you stand to your Plea not Guilty M. MORD. Why yes M. LETCHMORE My Lord I shall open the Impeachment The Attourney General hath exhibited a Charge of High-Treason against John Mordaunt Esquire viz. That he the said John Mordaunt intending to Imbroil this Nation in new and intestine Warres the 30th of April last past and at divers times since the tenth of October 1656 together with Henry Bishop Hartgil Baron c. at the Parish of Clement Danes in the County of Middlesex did traitorously advisedly and maliciously plot contrive and endeavour First to stirre and raise force and levy Warre against his Highness the Lord Protector and the Commonwealth to subvert and alter the Government of the same Secondly that he did traitorously advisedly and maliciously Declare Publish and Promote CHARLES STUART to be King of England Scotland and Ireland Thirdly that he did traitorously advisedly and maliciously hold Intelligence and Correspondence with Charles Stuart and that he did declare these Treasons by overt Act that is to say by conferring with John Stapely and Henry Mallory how to effect the same and did deliver several Commissions from Charles Stuart to several Persons and this contrary to the Statute To this Charge of high-High-Treason the Prisoner pleads not Guilty We are ready my Lord to call our Witnesses to prove him Guilty of these several Crimes and with leave of the Court we shall call our Witnesses M. ATTORN GEN. I wish Mr Mordaunt had done this before and made himself capable of more Favour Mr Mordaunt then desired to have pen ink and paper which was granted him John Stapely and Anthony Stapely were then called John Stapely sworn M. ATTORN GEN. We produce this Gentleman I suppose he is well known to the Prisoner to prove the Charge I desire he may declare what he knows M. ATTORN GEN. What do you know concerning the discourses of Mr Mordaunt with you touching the bringing in of Charles Stuart JO. STAP. I have been in Mr Mordaunt's company several times and what I can say will not be much Mr Mordaunt did
capable of it and in these debates I wish he doth not lose those advantages that are really intended for him For the Court it is by Act of Parliament and no Judicature in England can require any account of their proceedings Your Papers Mr Mordaunt were better laid aside they will prejudice you M. MORD. With your leave Sir I shall not quit them Pray give me leave to ask this Question whether there be any precedent for this M. ATTORN GEN. By way of advice I do acquaint you that there is no Judicature in England superior to this but the Parliament immediately You are here impeach'd of a very high Crime high-High-Treason it may be a straying of Youth the first step to Mercy is Confession M. MORD. Sir I humbly thank you yet shall not betray mine own Innocence by confessing a Crime I will never know Treason and being Innocent I shall need no Mercy My Lord I have heard that the Judges of the Land are the best and most proper Expositors of the Law and I cannot but wonder I see none of them here If they declare that this is the sense of the Act I 'le submit to the Court if the Court will allow me Counsel I shall submit if my Counsel be convinced I desire to hear the Commission read M. ATTORN GEN. My Lord this Gentleman was a fellow-Prisoner with one that went before him he walks after the same steps I wish he may not run into the same Error these things were urg'd by Dr Hewet and the Court hath ruled that their Authority is sufficient and therefore my Lord be pleas'd that this Gentleman may plead M. MORD. My Lord I see I shall be overborn both as to Counsel and Jury and that you endeavour not to convince me Will this Counsel give it under their hands that this is Law by the Act of 1656 If you will say under your hands that this is Law that I shall be excluded of Jury and Counsel and that I must not know the Commission by which I am tried I will proceed L. PRES I am afraid you have received ill advice from others possibly you know what is become of that Prisoner that spake of Counsel we cannot assign you Counsel as to matter of Fact The Law and Act of Parliament have made us your Judges and therefore you are to plead M. MORD. My Lord I desire that that Act may be read to know whether I am to be excluded of Jury and Counsel I durst referre it to the Counsel against me M. ATTORN GEN. I doubt the Gentleman is in jest We are here to attend by command of his Highness the Lord Protector these Gentlemen are all sworn by Act of Parliament it is a little slighting of the Court to appeal from the Court to the Counsel But my Lord I beseech you he may forbear to say he is overborn You shall have Justice done if you plead if not there was a Precedent but now if you please to put your self upon the Trial you shall have a fair Trial. M. MORD. My Lord I hope it will be understood frank Ingenuity to referre my self to the Protector 's Counsel and not slighting the Court neither am I convinced by this Act that I am to lose the right of Jury I have not heard any Reason why I must lose it I shall insist upon a fair Trial. M. ATTORN GEN. I do tell you the Court hath given Judgement just now in the like Case M. MORD. I ask a Precedent for this M. ATTORN GEN. I tell you a Precedent Sr Henry Slingsby and Dr Hewet M. MORD. Is it a good Precedent if any give an ill Precedent it is no reason I should follow it but debate it my self M. ATTORN GEN. I humbly conceive that this Court is your Court and that you ought to plead to it M. MORD. If I could conceive this Court were so I would plead My Lord I desire I may be heard 't is hard I should be excluded those Privileges my Ancestors have so often sweat and bled for in purchasing the Rights of the Great Charter and the Petition of Right I am told I have just claim both to Counsel and Jury And indeed I suppos'd that in this place which is so famous for Administration of Justice and Law I should not have been debarr'd what appears to me to be so but since I cannot obtain the having the Act read I shall as well as I can explain my sense of it The words are these That the respective Commissioners or the major part of them are to meet c. The major part only having power to meet and adjourn and not to determine and try and in seventeen there is no major part the whole being 150. now I humbly conceive without the whole I cannot be try'd L. PRES All this that you ask of us now we have declared this morning already to one who was before you at the Barre The Quorum of this Commission is seventeen or any more of them We must require you again to plead M. MORD. My Lord I desire a little Patience That the Number of Commissioners to try is seventeen I conceive must be very much forc'd because the words relate to the respective Commissioners Several Persons were allowed Counsel I desire Counsel L. PRES That is when there is matter of Law you have alledged nothing you are now upon matter of Fact M. MORD. My Lord my Indictment is matter of Law and upon that I may safely demand Counsel I desire to have Counsel as to my Indictment L. PRES Your Reason and my Reason and all Reason must submit to the Law you are now upon matter of Fact the single Question is Whether Guilty or not Guilty M. ATTORN GEN. My advice to you is that you would put your self upon your Trial. M. MORD. I am clearly resolved not to put my self upon a Trial that never had a Precedent neither am I so mean to doe it did I respect the Liberties and Privileges only of my Country-men M. SOL. ELLIS I will tell you where this Mistake is He speaks of former Trials which we do not deny but this Gentleman will agree that it is in the power of Parliament by Acts of Parliament to alter those Trials We conceive that this Act of Parliament hath determined this very question for my Lord it is that you shall examine upon Oath and thereupon proceed to Conviction and final Sentence not by Jury And this Act of Parliament hath entrusted you to be both Judge and Jury All English men must submit to what the Parliament hath done and the Parliament hath determin'd this Question that you have power to examine upon Oath and thereupon to proceed to Conviction c. If a Jury was to doe it you were not to proceed to Conviction This Gentleman saies there is no Precedent for it but we say it was the same in Queen Elizabeth's time They proceeded to Conviction and final Sentence when they proceeded against Duke
once tell me there was such a Design as the bringing in of the King and he did ask me if I did not know of such a thing I told him no. He was pleased to tell me somewhat of it I asked him if he was ingaged in it He told me he was not M. ATTORN GEN. What did he tell you concerning his being Intrusted by the King therein Here the Witness spake so low the Prisoner heard him not but desir'd Mr Stapely to turn his face to him that the sound of his words might be heard JO. STAP. He told me the King wrote to him to speak to his friends that they would be ready to Assist him when he should come into England with Force which he told me was with 7000 men this was the chief of all M. ATTORN GEN. Did he not say that he had Commissions from the King JO. STAP. He did not tell me so but I have heard him say others had had Commissions two other Gentlemen in Surrey M. ATTORN GEN. Did he not encourage you thereunto what Arguments did he use J. STAP. He spoke to me of it several times M. ATTORN GEN. After what manner JO. STAP. Only in commendation of the thing I heard him say that if there were a necessity Surrey folks would come into Sussex to assist them M. ATTORN GEN. Who was present at any of these discourses JO. STAP. There was none but my self and him M. ATTORN GEN. At what Place and at what Time JO. STAP. Near his own House at several times I have told you the main of the Discourses M. MORD. Mr Stapely about what Time was this JO. STAP. Above a year since M. MORD. Mr Stapely at what Place was the Encouragement made JO. STAP. I do not know what he means by Encouragement he only told me of it M. MORD. I desire to know when I told you that I had received a Letter to encourage my friends from beyond Sea and who was by J. STAP. There was no body by L. PRES About what time did he tell you of that Letter JO. STAP. About half a year since L. PRES Who was by JO. STAP. No body my Lord. M. SOL. ELLIS Did he tell you it was the King that wrote to him and therefore it was just to assist him JO. STAP. I think I heard him say so I cannot take my Oath of it L. PRES Did he tell you what considerable persons were concern'd JO. STAP. I have heard him speak of some persons that were engag'd in this Design Sir Francis Vincent and one Brown and I think Sir William Waller L. PRES When JO. STAP. Above a year since it was since the Parliament M. MORD. My Lord we may all see the strange effects of fear these worthy Gentlemen mentioned by Mr Stapely have clear'd themselves fully to the Protector And what in his Examination at White-Hall he was forc'd to say I blame him not for but to mention them here unless it were to their honours I know not at what it tends and need not justifie them any further Anthony Stapely sworn M. ATTORN GEN. What discourse have you had with Mr Mordaunt touching Charles Stuart ANT. STAP. We were about a quarter of a year ago at the Half-moon Tavern over against the New Exchange at that time there was no discourse about the business at all After that he was speaking to me about the Times losses of Privileges great Taxations c. wherein I agreed with him and wish'd they might be better I asked him if there was any way to help it He said Yea and said that Charles Stuart was intending for England and that would be a fair opportunity to redress all Grievances At Berkshire-House there he was pleased to enquire concerning the affairs of Sussex and in what preparation they were in case the King of Scots should land I told him I did not know I had not been in the Country lately I did believe that there would not be an appearance suitable to his expectation He told me something concerning Surrey that there was a considerable strength there ready to assist us in Sussex and joyn with us when any such thing should happen he did say something about delivering out four Commissions three for Horse and one for Foot to whom I know not I dare not swear it but it is to the best of my remembrance M. ATTORN GEN. What discourse past between you at the Half-moon Tavern about March last ANT. STAP. It was the day that the Cavalier party were to depart the City there was Captain Mallory my self and this Gentleman Mr Mordaunt and then he spoke again concerning Sussex that the King of Scots coming was suddainly expected and desired to know in what readiness we were I told him I could not tell but I did believe that things would be in as great a forwardness as the times would permit It was agreed upon that some of our Country should meet Mr Mordaunt at Crawly in Surrey upon the Tuesday following M. ATTORN GEN. What was the end of your meeting ANT. STAP. It was to consider further how things might be carried on as to the business of Surrey and Sussex there was an expectation of the landing of Charles Stuart and he did say that he heard Charles Stuart was in a readiness Mr Mallory my self and Mr Mordaunt were to meet further to debate of things I understood it was for the business of the King but it was not positively so expressed He asked me how things went on in Sussex I told him I could not satisfie him Therefore we told him there should some of our Countrymen meet him at Crawly to give him an account He said there was a considerable Force but I never heard him speak of any number of Horse or Foot in Surrey M. MORD. Mr Stapely I desire to know when I spoke to you of this ANT. STAP. My Lord it was I cannot tell the daies but it was suddenly after the breaking up of the Parliament all the discourses were since the breaking up of the last Parliament M. MORD. I desire to know where I spoke this and who was by ANT. STAP. As I take it the first discoure was at Long-Acre and no body by M. MORD. I desire to know the time when I met him at the Half-moon Tavern ANT. STAP. It was the day set for the departing of the Cavalier Party out of Town M. MORD. I desire to know who was by ANT. STAP. Captain Mallory M. MORD. I desire to know whether I did meet at the place appointed ANT. STAP. My Brother and M. Mallory did not meet him because my Brother was sent for to White-Hall M. MORD. I desire to know the Witnesses to all he saies ANT. STAP. It was all private only once at the Half-moon Tavern with Captain Mallory M. ATTORN GEN. My Lord there was mention made of one Captain Mallory whom we did intend to have as a Witness he was committed upon this Design being privy to it it hath so