having owned his Majesty as our supream Magistrate by our solemn proclaiming of him and recognized upon our publick records our Governour as his Governour virtually by his Majesties Declaration The Governour thus authorized empowred and confirmed by the Kings Declaration and his power and authority therein as Governour by virtue thereof recognized by us upon our own Records the disowning of him so to be and the declaring and endeavouring by an Overt act to set up and exect any other Governour in opposition to and contempt of the King his Crown and Dignity signified by his Royal Will and Pleasure requiring our subjection and obedience to his commands and Declaration is treason in such opposers and contrivers Answ … Sect. 3. At length out comes the true reason for this establishment but it is not remembred 1. That Byam plaid the seditions person when out of all publick emploiment and raised many disputes against the power left in possession of the Government by Holdip and therein continued by the peoples representatives as not sufficiently authorized instigating the people to an actual disobedience Nor 2. That though at that time I had the sword of that authority in my hand and the authority to back me yet I did not drive him into exile but made way for him to the Chair by perswading those that sate in it to descend and give the people leave to place in it whom they liked best Nor 3. That after all this notwithstanding the aâ—mes he had particularly against me in all his mâ—vings to sedition in emulation of my eminency and disdain of his own nullity I laid on many on that heap of votes which mounted him to his height therein consulting the Colonies not my own advance this person being of so restlesse an Ambition that if he ruled not all there was no ruling him But of this no more He thus coming to the possession of the Government labours every year to be perpetuated without an annual standing candidate and at last fearing to hazard himself longer on the unconstant multitude elated also with the conscience of his sufferings and service in the Royal cause saies I will continue and I will say the King hath so commanded and I will with force drive away all those that have hitherto and still shall impede me herein be their constant loyalty never so exemplar For what is all this talk of the Kings proclamation but Byams ipse dixit Nay what is it else but a meer fiction raised from a presumption that probably enough the King in this so great a change might so proclaim And these elaborate Arguments or more truly * Major Noel the scribler of this Conclusion a worshipper of O. Cromwel and triumpher in his motto over the martyred Charles with devictâ— hoste libertate donati Noellian Inganneations drawn from this supposal are but like those about the Golden tooth which proved at last a forgery But though to expend wit on an erroneous principle may consist with innocence yet to joyn with those whom onely forgetfulness hath left out of the list of traytours and rebels in bespotting a precise never-varied loyalty with the abominated aspersions of Treason and Rebellion pulling Ruine on whole families and all by a mistake should I exclude malice cannot but by justice be condemned as a criminal temerity I need not controvert the Law our Surinam Iudge so Magisterially concludes with but shall onely add these few assertions out of Iudge Ienkins fol. 195. c. To alter the established Lawes in any part by force is High Treason To usurp the Royal Power is High Treason To subvert the Fundamental lawes is High Treason A necessity of a mans own making doth not excuse him Presentment or tryal by Iury is the Birth right of the subject Magna charta the Petition of Right and other good laws of this land ordain that all mens tryals should be by the established laws and not otherwise they are the very words of the Petition of Right An Act of Parliament that a man should be judge in his own cause is a void Act. ib. fol. 139. The common law of this land is that every Freeman is subject to a tryal by Bill of Attainder in Parliament wherein the King and both Houses must necessarily concur for that tryal is an Act of Parliament to which all men are subject But otherwise no man shall be destroyed c. but by the lawfull judgement of his Peers or by the Common law of the land ib. fol. 93. The Governour and General Assembly as they call themselves of Surinam do here confess that in our tryal and punishment they have usurped a Power equal if not superior to that of the King and both houses of Parliament subverted the fundamental Laws end by force of an Army altered the established Lawes of England in the whole From my own reading I shall subjoine this to discharge men guilty of Treason and Felony is Treason and Felony Byam c. have accused us of both punished us for neither if we be guilty they are answerable for not bringing us to a tryal if we be innocent they are puilty of conspiracy nor can they avoid this Dilemma by objecting our Irons Fines and Banishment for all lawyers know these are not the punishments for treason nor felony nor had we the tryal due to either they did this way indeed revenge themselves on some for endeavouring to unfix them in their usurp't dominion and on me for labouring to disappoint them of their revenge which may possibly be termed an inconsiderate cannot rationally be censured a criminal attempt FINIS The Copy of a Letter which Byam sent to Barbados to my Uncle together with this his Declaration Superscribed For Captain Nathaniel Kingsland my respected friend SIR YOur affection to and interest in this Colony are sufficient obligations to render you an account of the late distempers in our Government and I am sorry to tell you that your Nephew Lieutenant Col. Robert Sanford hath not onely abetted but heaâ—ed the unruly authours of our sad disturbance I have enclosed presented you with an impartial relation of all passages most remarkable wherein I have not the least been swayed by prejudice or animosity What faâ—e thus hurried him to that excess of insolence I cannot well judge unless soaring too high with an â—ver weening gale of his natural and acquired parts which too early advanced him to publick offices of Eminency in the Colony he unadvisedly over-set for want of the ballast of experience and discretion had be learn's to obey before he commanded he would not have commanded before he obeyed which you finde was his errour what Apology he may present you for it I know not I am sure I have not painted it so foul as it really was Sir when you have perused the inclosed papers be pleased to recommend them to the view of Mr. John Kirton and Sergeant Major Authony Rous to whom I desire my respects and service may be presented then after a general accompt of the Colonies present condition he concludes your Nephew had of late a desire to give you a visit which I could not admit at present being the positive order for his departure was for London which was his desire nor would I reverse what the united authority had concluded on If I may serve you in these parts you may he assured of my readiness and fidelity I wish you happiness and rest Surinam the 13th of Decemb. 1661. Your very affectionate friend and servant William Byam This was writ and sent away by those other Proscripes while I remained behind in fetters but their vessel failing them I came to and from the Barbados before this arrived there and so never saw it till I received it sent from my Vncle here in London
be excuse for them when they come to the Bar to say we bound and gagged him because he should not proclaim our theft and call in defence Declaration Sect. 15. On the 28. of November the General Assembly being sate I sent for Collonel Christopher Legard Captain Charls Legard and Captain Nicholas Sulke who were in England at the happy revolution and did there declare and aver that they had seen and heard his Majesties Proclamation for the continuance of all Governours Magistrates c. I then caused all the inhabitants then present to be drawn up to whom I declar'd the cause of their convention the authours of our disturbances the drift of their designs their rebellious fellonious and most impudent actings and Gods mercy in our preservation The people being all well satisfied I sent for the prisoners one by one before the united authority of the Colony where their charges and impeachments were read evidence viva voce of the words and actions which the annexed depositions will at large declare And according to their crimes and qualities were censured some to depart the Colony and not to return in five years others to depart and were fined others were fined and not sent off but one as deep as the rest carrying himself with remorse submission and civility obtained a more moderate censure Answer Sect 15. There is a sort of men in the world that will say more in their friends behalf then they will swear and such Byam hath got to prove the publishing of a Royal Proclamation which I cannot hear any man in England say he ever heard or saw But it is somewhat strange that Byam and Marten should not above a year before themselves form and contrive an Act for the General Assembly to pass wherein it was ordained That the constitution of the Delegates should not be altered though a Commission came from the sovereign power for the government or propriety untill we had first sent home to acquaint the power with the inconveniencies of admitting a change of rule and obtained an answer And that now upon a hear-say nay some moneths before that hear-say arrived they should be the leading men to change this established form But every man is nearest to himself and Marten besides is so famous in nothing as his variety of councels and it seems the whole bulk of Government must dance to the changes of his brain Yet how slender soever this proof was of a thing of that nature it was sufficâ—ent and less would have been so in a matter that Byam would that it should be to cause this General Assembly as they call themselves even before any of us were called before them to sentence the disputes to the authority as a trayterous and rebellious opposing his Majesties power and the taking the Shallop without ever examining any reasons as a felonious act so that when we were brought to the Tribunal it was to judgement not to tryal and accordingly we no sooner appeared than received their condemnation Now though be it true that these men heard such a Proclamation I will not determine how far such Royal Edicts exact their obedience within whose precincts they never came to be published yet this I dare aver that there was never any command from his Majesty that any free-man should be taken disseized and axiled without tryal by his Peers and the Law Nor did the King authorize any to be Judges in their own cause or ever grant Commission to Byam to proceed against his Majesties subjects by a martial court and way contrary to the laws and franchises of the land And yet see here Byams confession for thus proceeding against us Nor can they deny this by stiling themselves the united authority for grant their authority lawfull it cannot deprive us of our Magna Charta Priviledges Let Bradshaw declaim with a voice of thunder and face of brass that his Court is founded on the highest authority yet nothing but an army can draw an honest mans silent assent I cannot less wonder at the diversities of judgements on one and the same fact had the law appointed the penalty it could not have been so strangely different nor the Judge if sworn to observe that law have dared to dispense it in a various manner Hence it is evident their judgement if by law was by a diverse and uncertain law and ubi lex aut vaga aut incerta miserrima est servitus Declaration Sect. 16. The last that came before authority was Lieutenant Collonel Sanford who though he brought up the Rear was the head of the faction The first word that proceeded out of his mouth was the lye which he seconded with most impudent railing against the General Assembly whereupon I remanded him to prison to be secured in irons and afterwards fined in five thousand pounds of sugar and to be sent off in the first ship bound for England which was his desire Answer Sect. 16. It is accompted a dangerous birth where the feet come formost and certainly if I were the head of this sedition as they call it the chief reason of its miscarriage was my appearing last in the action The first word that proceeded out of my mouth was a truth and that I seconded by others as great truths but when my arguments grew of force I was silenced And though this General Answer might serve well enough to his general criminations such kinde of Returns having been often adjudged iusufficient it being a Rule that Generale nil certi implicat and therefore the law requires and injoyns certainty yet I will be more particular a curiosity which Byam hath no good successe in and therefore cunningly declines it and tell the world the whole manner of my tryall Being guarded up to the judgement-seat in the night through lanes of souldiers Byam reads to me some depositions containing the manner of my attempting a rescous on the prisoners the witnesses had not front enough to appear and therefore I must credit Byam though no sworn Magistrate and my enemy that they had made such oath When he came to those words that I should say to the prisoners I will assist you with my life and fortunes I said that was a lye whoever swore it And so it was for I never said so nor need I disown it if I had spoke it it being no crime for me to declare a readinesse of exposing life and fortunes for the protection of innocence from a violent oppression But to proceed A silence expecting it I spake these very and onely words I see here so few formalities of a legal Court that I shall use as few in confessing or denying what I stand accused of nor can I expect a very equal proceeding finding those sit as my Judges who are my accusers whom it concerns as much that I be guilty as it concerns me to be not guilty You Sir to Byam and Major Noel there arrested me for High Treason you ought to prosecute not to judge me
curse Come we now to the Testimonies which were brought against us and the particular facts of which we are charged as they are by Byam himself exposed to the worlds view But before I come to their examination I shall premise a few things to the readers consideration There is not in my opinion a more rational evidence of the slenderness of our guilt then our charge if we consider the inquisition upon our actions which was managed in our absence by the subtilest of our enemies and principal parties concerned in the quarrel who having already designed us for destruction and acted againstus with conformable injuries had a Necessity urging them to make us as criminal as was possible Byam therefore when he had seized imprisoned our persons sends for all that can pretend to know or to have heard any thing that might render us culpable and takes their Depositions the reader may finde by the dates of most of them that they were taken before our time of trial while we were cooped up ignorant of our crime and accuser their contents will shew that much of our offence is words and let candor determine whether the most innocent persons may not be destroyed where words are capital if his enemy who is concerned in his ruine have the sole examination of such men as himself will call for and makes severe scrutiny into all his discourses picking there-hence such words as may serve his malicious purpose and cunningly omitting those which being spoken at the same time might extenuate if not amove the evil of the other inserting neither the occasion incitements time place nor condition of the speaker circumstances which illustrate a discourse and make it often appear very divers from the sense of some of its words Nor will his Declaration let us expect more integrity in Byam since when the reader hath throughly read and weighed him he will all along finde him stretching his criminations beyond any thing of proof which he could purchase against us And that strange passage of Harmunds and Lacons some years before whose names vvritten in their ovvn character were found as witnesses to a bill of debt due to Byam and yet themselves did upon their oaths declare they never saw that deed before nor were in place when it was made makes me ready to conclude him not very scrupulous of anothers perjury where it may be to his advantage And though Byam assert that evidence was given vivâ voce of our words and actions yet I shall desire the reader to understand him rightly vvhat he meanes by vivâvoce it vvas not that the vvitness came in in presence of the prisoner and there upon a mutual confrontment did take his oath and then upon that oath charge the prisoner vvith such and such facts the prisoner having liberty of putting questions to him and the court of his side to enjoin an ansvver to such questions but as I said before all or most of the vvitnesses vvere svvore before-hand in the prisoners absence Byam being the man that took the Depositions as much I must suppose to our disadvantage as he could and then vvhen the Delinquents vvere brought before them this Deposition vvas read in presence of the witness vvho by his silence asserts it and if the prisoner began to question him Marten and Noel vvould call it impudence to argue against an oath and Byam command his Marshal to take him avvay and lay him in irons Nor had every one priviledge of seeing his accuser but vvas condemned on Depositions taken God knovvs when where or of whom Yet all this notvvithstanding they found as I hope the reader also vvill our faults so much beneath the punishment they had destinied us to that they durst not bring us before an indifferent Judicature to a trial by our Peers vvhere vve might have liberty of defending our actions by law and should have had our judges of councel with us and sworne to give judgement according to law but brought us before themselves vvho vvere none of them svvorne Magistrates except those tvvo that vvere my assistants in the court of Common-pleas where we were not permitted to enter on any defence that being presently adjudged as an aggravation of our guilt but according to their own wills and prejudices sentenced to inflictions not to be precedented I think in the whole body of our law Statute or Common And herein they acted not onely Counter to the lawes of England to which they had alwaies owned a subjection but to their own constitutions also one instance of that subjection for not many moneths before these very men Enacted That a General Sessions of the Peace and Goal delivery be held twice a year viz. On the first thursday in September and the first thursday in March That this General Sessions doe by a Jury of Grand Inquest enquire into all breaches of the Peace and breaches of Statute and all criminal matters whatsoever and make presentment thereof by Indictment and proceed to the punishment of all malefactours especially where it concernes life or limb according to the known lawes of England But this was made while their authority was derived from the Delegates they decreed then like Substitutes conforming to their Commission and instructions but since that they have given themselves a greater latitude of Power a Power not differing from absoluteness which that they might retain with the less controll they must remove them who have been so long the obstacles to it and because such a general sessions as this Act prescribes cannot compleat their desires therefore are they necessitated to this other manner of proceedings But God grant us more indifferent judges of this necessity then persons so deeply interessed who having themselves created it by usurping a power over us could no other way secure themselves in the dispute made to their power from a being cast in their own action but by an illegal prosecution of us And now I will no longer detein the Reader from a view of the Depositions Deposition The Deposition of Capt. Tho. Griffith aged forty years or thereabouts taken before me this 28 th of Novemb. 1661. 1. Saith That sometime in July last or thereabouts being at the house of Mr. Michael Mashart and having some discourse of what had passed the last Assembly the Deponent told him that it was ordered that the Governour should continue and no new Election to be and this by vertue of a Proclamation from the King Sworne before me William Byam Answer 1. Themselves have confessed that the Kings Proclamation never came to be published amongst us and indeed how should it since such Proclamation never was and also that this very order for their Authorities continuation was never proclaimed but onely mentioned by some few Gentlemen of the Assembly in their occasional discourses as is confessed here and in Sect. 4. Yet see how severely they punish the breach of a law which never had promulgation But grant this order duly published