The high court of justice, or Cromwels new slaughter-house in England. : With the authority that constituted, and ordained it. Arraigned, convicted, and condemned, for usurpation, treason, tyranny, theft and murther. / Walker, Clement, 1595-1651

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THE
High Court
OF
JUSTICE,
OR,
CROMWEL'S New Slaughter-
House in
ENGLAND.

With the Authority that Constituted,
and Ordained it.

Arraigned, Convicted, and Condemned,
FOR
Usurpation, Treason, Tyranny, Theft
and Murther.

Being the Third Part of the History of
INDEPENDENCY,
Written by the same Authour.

Printed Anno Domini 1651. In the second Year
of the States Liberty, and the Peoples Slavery.

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Plin. Paneg. ad Trajanum.

Olim criminibus, jam legibus laboratur, & metuendum est, ne legi-
bus fundata Respublica, sit legibus eversa.

Isaiah 59. vers. 3, 4.

Your hands are defiled with blood, and your fingers with iniquity,
your lips have spoken lyes, your tongues have muttered perversness.
None calleth for Justice, nor any pleadeth for truth; they trust in
vanity and speak lies, they conceive Mischief, and bring forth Ini-
quity.

Vers. 7.

Their feet run to evil, and they make haste to shed innocent blood;
their thoughts are thoughts of iniquity, wasting and destruction are
in their pathes. The way of peace they know not, and there is no
judgement in their goings.

Vers. 11.

We look for Judgement, but there is none; For Salvation, but it is
far from us.

Vers. 14.

Judgement is turned away backward, and Justice standeth afar off;
For truth is fallen in the streets, and Equity cannot enter.

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3

Unumquodque
conservatur
eadem modo
quo sit.

THat everything is kept and maintained by the
same wayes and means it was got and obtained,
is a rule true both in Philosophy and Policy.
And therefore Dominion gotten by fraud and force
must by fraud and force be preserved. Things impi-
ously got, must be impiously kept. When usurped
Tyranny layes its foundation in blood, the whole Su-
perstruction must be built with Mortar, tempered with
blood. One sin must defend and make good another.
And hence ariseth a Necessity upon Ambitious men to
flanke and fortifie one Crime with another. But to
plead this Necessity, which they have so wilfully
drawn upon themselves, in justification of their
wicked Courses. To expect submission, obedience,
and an equal engagement from men uninterressed
therein; and to entitle the Divine Providence and
unrevealed Will of God thereto (in opposition to
His Will revealed and declared in the Scriptures, as
is now a dayes used) is to accuse the Holy Ghost
of our Sins, and an Hypocrisie so impudently sin-
ful and danmable, that I doubt no Age but this (the
Dregs and Lees of time) ever gave an example of
the like.

To illustrate my first Maxime by some forreign
Examples (before I lay the Bastard at our own
Doors) Sylla at Rome, by the power of the Sword, pro-
claimed (or voted) himself Dictator to make good which
usurpation with a Mask of Authority, he compelled the
Senate, or Parliament) to approve of all his forepassed

A2 Vil-

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4 The History of Independency. Part III.

Villanies, Murthers and illegal Acts, and to confer a
power upon him; To kill whom he pleased and con-
fiscate their Estates; To build and destroy Cities;
Dispose Kingdomes; And exercise an Arbitrary, Su-
preme Authority, and then (to establish himself in his
self-created power) he posted up at Rome, and in most
Cities of Italy, Bills of Proscription or Outlawry, con-
taining the names of such persons, as (without any form
of Law or Justice) he appointed to be slain by his Soul-
diers. These Proscribed men were (for the most part) such
as having some sparks of Roman vertue in them, durst
love the antient Government, Laws and Liberties of
Rome, and were therefore thought fit to be weeded out,
as Malignants against his Innovations and arbitrary
courses. Yet many mean spirited fellows, were proscri-
scribed and murdered, partly for confiscation of their
Estates, and partly to gratifie the malice and hatred of
particular friends who (in that carnage) prayed in aid
of Syllas sword to rid them of their Enemies.

After this Augustus Caesar at Rome, having by terror
of Arms made himself Consul, and finding himself not
strong enough singly to subjugate his Country, he
called Antonius aud Lepidus to joyn with him, with
whom entring into confederacy to subvert the fun-
damental Government, and usurp the Supreme Au-
thority; they divide that vast Empire between
them, and passed a Decree amongst themselves, that
they should be called the Triumvirate for Reforming
and Re-establishing the Commonwealth (well enough be-
fore if they had let it alone) with Supreme Authority
to give Estates and Offices to whom they thought fit,
without asking the advice of Senate or people. They ap-
pointed what Consuls, Magistrates & officers they pleased

They

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Part III. The History of Independency. 5

They designed rich donatives, and 18 of the Chief
Cities of Italy to be given to their Souldiers, if, by
their valour they should obtain victory over Brutus
and Cassius. They fixed publick lists or Tables of Pro-
scription, naming such persons as they exposed so slaugh-
ter. They proscribed at one time 130 Senators, at ano-
ther time 150 and 2000 Knights. Whereby the best men
for understanding, Conduct, Resolution and Affection,
beeng cut of, the rest (terrified by their example) be-
came but Terra Maledicta (as Chymicks call it) dull
liveless Ashes or clods of Earth, without power or ver-
tue to quicken them, or make them productive. After
some revolutions, wherein Augustus and Antonius had
discarded the dull and stupid Lepidus, and (at last) Au-
gustus had subdued Antonius: Augustus usurped thE
Title of Tribune of the People, whereby his Person be-
came sacred and inviolable; and (humouring the irra-
tional Animals) took upon him the special Protection
of that Brutish Herd, the Rascal Multitude, the
Tribunes of the people having been originally insti-
tuted to Protect the people. His next step was to
make himself Perpetual Dictator, whereby he arro-
gated to himself a vast unlimited power above all
Lawes. The Tribuneship was his Buckler. The Di-
ctatorship was his Sword. And last of all (for Orna-
ment only) He having already full power of an absolute
Monarch (although he forbore the Title of (King) be-
cause it was hateful to the people, and against the Laws
evea since the Regifugium) he took upon him the Title
of Princeps Senatus, or President of the Senate; to keep
a corresponding power over that great Counsel or Par-
liament: And finally usurped the Title and Office of
Imperator or Generalissimo of all Forces by Land and
Sea, Garrisons, &c.

Phi-

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6 The History of Independency. Part III.

In novum reg-
uum vi armis-
que partum re-
digere, atque
aliis Novis le-
gibus domare
ac gubernare
Belgium.
Meteran. in
anno 1567.
Roidan in an.
1566. John
Fraunces Pe-
tit. Thuanus.

Philip King of Spain, Lord of the 17. Belgick
Provinces, by several Titles, and under several limi-
tations, Priviledges, Exemptions and Fundamental
Laws, according to which he was to govern, and they
to obey: Resolving to subvert the Fundamentall
Lawes and Government, and reduce those 17. petty
Signiories into one meer absolute Monarchy, sent
the Duke D'Alva thither (a Warriour of a resolute
stern nature) Governour, with a powerful Army;
Who taking advantage of some rude Commotions
formerly raised by the Protestants, in throwing down
Images, and Sacreligiously plundering Churches,
erected a New Tribunal Criminal, or (to speak in our
modern uncouth Language) A High Court of Justice,
consisting of 12 Commnissioners or Judges purposely
chosen, most of them hangers by of the Law, of mean
fortunes, practice, birth, and breeding; Covetous,
Ambitious, and slavishly addicted fo the Spanish Fa-
ction. To these was given by special Commission full
Power and Authority to enquire into, and judge (or
to hear and determine) the forepassed Commotions,
whereupon they stiled this Court, Concilium Turbarum,
but the multitude called it Concilium Sanguinis, or the
Bloody Conventicle. This Councel or Inquisition did
supersede or extinguish the Authority of all other
Courts of Judicature, and make void all Laws, Con-
stitutions, Jurisdictions, and Priviledges of the Nati-
on, as to the aforesaid commotions, and all other cau-
ses they pleased to call High Treason. They had no o-
ther bounds nor limits in their proceedings, than what
they prefixed to themselves in certain Articles. Some few
whereof I will here present unto my Reader, because
they judged of High treason by those Articles, not by

the

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Part III. The History of Independency. 7

the known Laws of the Land (a thing very observable
and applicable to my purpose) so that they were not only
Judges, Leges dicere, but also Law-makers, Leges dare:
as all Judges are who take upon them a liberty to observe
no set forms of proceedings, but at their own pleasure.

I. Article. All Petitions hererofore tendered to the
States, or Cities Corporate against the erecting of new
Episcopal Sees: or against the Holy Inquisition: or
or requiring a Moderation of Decrees or Acts of State
Parliament, are accounted meer conspiracies against
God and the King.

Petitioning a-
gainst Inno-
vations in
Government,
and for the
known Laws
made Trea-
son, the like
the Parliament practiceth against such as petitioned for peace by accommodation. And against
our High Court of Justice, Arbitrary Imprisonments and Taxes.

2. Art. All Nobles, Gentry, Judges, Magistrates,
and all others who connived at Heretical Sermons,
plundering of Churches, aud delivering such Petitions
as aforesaid, pretending the necessity of the times, and
did not resist and oppose them.

3. Art. Whosoever affirms that all Mis Majesties Sub-
jects of Belgia have not forfeited their ancient Privi-
ledges, immunities and laws for Treason: and that it is
not lawful for the King to use and handle them for the
aforesaid Treasons as he pleaseth, to prevent the like
Treasons for the time to come, and that the King is
not absolved thereby from all Oaths, Promises, Grants,
Contracts and Obligations whatsoever.

We have for-
feited our
laws by con-
quest, or else
our Grandees
would not
pass the two
Acts for Trea-
son, 14. May,
17. July,
1648 nor e-
rect the High
Court of Justice, and abolish our ancient lawes and government. See Pol. 3. Oct. 1650. and
the Case of the Kingdome stated.

Art. 4.

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8 The History of Independency. Part III.

Compare this
with the two
Acts for New
Treasons, 14.
May, 17. Ju-
ly, 1649. and
the Act 26 March, 1650. and Sir John Gells Case stated.

4. Art. They that affirm this Councel or High Court
of Justice exercise Tyranny in their Proceedings, or
Judgements; and that they are not Supreme and compe-
tent Judges in all causes Criminal and Civil.

Our High
Court of Just-
exceeds all
this. See Sir
John Gells
Case stated,
Printed Aug.
1650.

5. Art. Those that in case of Heresie deny, that all
manner of Informers and Witnesses of whatsoever De-
gree and condition they be, are to be credited: and that
upon the Testimony of any two witnesses, this High
Court ought to proceed to Judgment, Execution and
Confiscation of life and goods, without publishing the
cause or charge, and without any legal forme of Trial.
All thefe are guilty of High Treason against God and
the King.

The Rigour, Cruelty, and Injustice of this
New erected Counsel of Blood, or High
Court of Justice, enforced the Low
Countries to revolt and cast off the King
of Spain.

LEt us now examine whether in some one little
Province or Island belonging to that vast Roman
Empire: and in some mean petty fellowes (Na-
tives of that Island) men ¢ven at home of obscure
Birth, Breeding, and Fortunes; we cannot finde
examples of Ambition Usurpation, and Tyranny, as
high and transcendent, as bloody and destructive, as
covetous and greedy, as any of the fore-recited pre-
sidents: And (which is worst of all) carried on by
those that call themselves Christians, nay Saints,
(which is more than they vouchsafe to Saint Peter

and

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Part III. The History of Independency. 11

and the rest of the Apostles, though glorified Saints
in the Church Triumphant) and such as in all their
bloody, opressing, cheating Designs (promoted by
Perjury, Treachery, breach of Faith, Oaths, and
publick Declarations) pretend to the singular favour,
Providence and will of heaven, as confidently, as if
they could shew Gods special Commission, to warrant
Usurpation, Treason, Tyranny, and Thievery.

It is not unknown by what Artifices, frauds, falsified
promises, Oaths, and Covenants, a party of Antimo-
narchists, Schismaticks, and Anabaptists lurking in the
Parliament fooled the people to contribute their blood
and money towards the subduing of the King (and in
him of themselves) and how by the same wayes and
subtilties the said party in the two Houses (now com-
bined openly, under the General Title of Indepen-
dents) engaging and conspiring with the Officers of the
Army and Souldiery expelled by armed force seven
parts of eight of the House of Commons, leaving not a-
bove 43. or 44. of their own engaged party fitting,
men inriched with publick spoyls) and voting under
the power of the Armies Commanders, whose commands
are now become a law to the said sitting Members, as their
Votes are become Laws to the Kingdome. In Obedience
to their said Masters of the Army, The said remainder
of Commons voted down the House of Lords (though
an integral and principal Member of the Parliament
of England, far antienter than the House of Commons,
and having a power of Judicature to administer an
Oath (which the House of Conmons never had, nor
pretended to have, until this time that they overflow
their Bounds, and the whole Kingdomes, under the
Protection of their Army) which prerogative of the

B House

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0 The History of Independency. Part III.

House of Lords is clearly demonstrated by the
House of Commons standing bare before them at all
conferences, as the Grand Inquest doth before the
Judges) because they rejected the Ordinance for
Trial of the King. And now those Dregs and Lees of the
House of Commons, take upon them to be a compleat Par-
liament: To enact and repeal Statutes; To subvert the
Fundamental Government, Laws and Liberties of the
Land; To pull up by the Roots without Legal
proceedings) every mans private property and pos-
session, and destroy his life: To burden the people
with unsupportable, unheard of, unparliamentary
Taxes, Impositions, Excise, Freequarter, buying of
New Arms after the Countrey have been disarmed of
their old Arms three times in one year; Pressings
and Leavying of Souldiers, Sequestrations, Plunder-
ing of Houses and Horse, and many other oppressions,
more than the Turke, Russe, or Tartar ever heard
of: of all which our Grandees are free, and lay them
upon others as partially as they please, purposely to
consume them. To make Religion but a stalking
horse to their Designs, and the Ministers thereof but
Hostlers to rub down, curry, and dress it for their
riding; to whom they send Commands, what they

In their tax
Rolls they u-
sually set in
the Margent
to every
name private
notes of di-
stinction, an
M. an N. or
P. The letter
M. stands for
Malignant; he
that is so
branded, is
highly taxed,
and his com-
plaints for redress slighted. N stands for a Neuter, he is more indifferently rated, and upon
cause shewn, may chance to be relieved. The letter P. signifies a perfect Parliamentarian. He
is so favourably taxed, as he bears an inconsiderable part of the burden, and that they may the
better consume with Taxes and want, all such as do not concur with them in the height of
their villanies. The pretended Parliament, are now debating to raise the Monethly Tax to
240000 lib. or to deprive every man of the third part of his Estate, both Real and Personal,
for maintenance of their immortal Wars, and short lived Commonwealth. Besides Excise, Cu-
stomes, Tonnage and Poundage, Freequarter, finding Arms and Horses, and the sale of Corpo-
ration Lands now in agitation. Whilest our Grandees enrich all the Banks of Christendome
with vast summes raised by publick Theft and Rapines.

shall,

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Part III. The History of Independency. 11

shall, and shall not preach to the people; as if
preaching were the Ordinance of man, not of God.
At last by way of preparative to their machinations,
they pass these following Votes.

1. That all Supreme power is in the people.

2. That the Supreme Authority under them is in the
peoples Representatives, or delegates in Parliament as-
sembled. Meaning themselves (you may be sure) the
Quintessence and Elixar of the House of Commons,
extracted by those learned Chimeks, Doctour Fairfax,
Doctour Cromwel, and the rest, graduated at that de-
graded University of Oxford. Here note they voted
the Supreme power to be in the people, that they
might use those Gulles as Conduit pipes or Trunks
to convey the Supreme Authority into themselves, the
better to enslave the people; And tickle them, whilest
they fasten about their necks the Iron yoke of a Mili-
tary Oligarchy, wearing the Mask of a perpetual Par-
liament.

3. That whatsoever the Commons in Parliament shall
enact, shall have the power and force of an Act of Par-
liament, or Law, without the consent of the House of
Lords, or the Kings Royal Assent; any statute, law cu-
stome or usage to the contrary notwithstanding (they
might have said all our statutes, laws, customes, &c.
notwithstanding) This one vote hath more of Dissolu-
tion and more of Usurpation and Innovation in it, than
any I yet ever read of; This is universally Arbitrary,
and Layes the Ax to the root of all our Laws, Liberties,
Lives, and properties at once.

what these men will, they vote:
What they vote is Law.
Therefore what they will is Law.

B2 4. That

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12 The History of Independency. Part III.

4. That to wage war, or to bear Arms against the Re-
presentative body of the People, or Parliament is high
Treason. By the Law all Treasons are committed a-
gainst the King, his Crown and Dignity.

5. That the King hath taken up Arms against this
Parliament, and is therefore guilty of all the blood shed
this War, and should expiate those crimes with his blood.
If the King were not guilty, these men are; And
therefore they passed this Vote, Se defendendo. Yet
observe that herein they became Judges in their own
cause, and forejudged his Majesty before his Trial, if
that may be called a Trial, that was carried on by
men, who were both Accusers, Prosecuters, parties
and Judges; and had neither Law, president, forma-
lity of proceedings, nor any other foundation of Ju-
stice or Reason to warrant them, nor were delegated
by any lawful Authority?

These Votes thus passed, and by this kinde of men,
were the foundation upon which they built their
great Engine to destroy the King and Kingly Govern-
ment together with the Religion, Laws, Liberties,
Lives, and properties of the people; all condemned in
that deadly sentence given against the King) For
having (as aforesaid) created (by their own Vote)
themselves as absolute a power as they pleased and
cast the people and all they have into that bottomless
Chaos of their Arbitrary Domination: They erect
an Extrajudicial, unpresidented High Court of Justice
to Try (or rather to condenm without Trial) the
King, consisting of 150. Commissioners, Souldiers,
Parliament men, Trades men; the most violent, en-
gaged and factious incendiaries of all the Antimonar-
chical faction: Amongst whom were many low

con-

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Part III. The History of Independency. 13

conditioned Mechanicks, and Banquerouts, whose
Fortunes are since repaired out of the Kings Estate,
and other publick Lands, Goods, and Offices, as a
reward for that Royal Blood they spilt. The King
the Fountain of Law, Justice, Mercy, Honour, War,
and Peaces; the Head of the Parliament, and Supreme
Governour over all persons, and in all causes) thus
violently removed; presently (as if the Mounds and
banks of the Sea had been overturned) an impetuous
inundation of bloody, thievish Tyranny and Oppres-
sion brake in upon us: So that no man can call his life,
liberty, house, lands, goods, or any other his Rights,
or Franchises his own, longer than the gracious as-
pect of some of our Grandees shine favourably up-
on him.

See Star. Re-
cognition
1 Jac. The
Oaths of Al-
giance, Obe-
dience and
Supremacy,
and all our
Law-books.

In the next place: contrary to their own Decla-
rations of the 9. Feb. and 27. March 1648. Wherein
they promise that in all things concerning the lives,
liberties, and properties of the people, they will ob-
serve the known laws of the Land, with all things inci-
dent thereto) They pass misbegotten Acts of Parliament,
one of the 14. of May, another of the 17. of July, 1649.
whereby (in derogation and annihilation of that ex-
cellent Stat. 25 Ed. 3. Chap. 2. Ascertaining Treasons,
and reducing them to a small number, and leaving no-
thing to the interpretation of the Judges, that the peo-
ple might not be ensnared) they exceeding by multiply-
ing Treasons bringing bare words as well as deeds within
the compass of that offence: and making many duties to
which the laws af God & the Land, the Protestation & Co-
venant, the oaths of allegiance, obedience, & supremacy ob-
lige us, to be high treason, & these new acts of treason pen-
ned in obscure, ambiguous terms, purposely to leave a lati-

This Stat. 25
Ed. 3. c.2.5.
Johns against
Strafford, cals
the security of the people.
And the Stat.
1 Hen. 4. cap.
10. Ed. 6.
cap. 12. 1.
Mariae 1. ra-
tifie and high-
ly commend.

tude,

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14 The History of Independency. Part III.

tude of Interpretation in (their own creatures) the
Judges, that the People may be ensnared.

The King thus taken out of their way. They
passe pretended Acts. 1. To Disinherit his Children.
2. To abolish Kingly Government for ever. 3. To con-
vert our ancient well-tempered Monarchy into that
(which they call a Common-wealth, or Free-State; al-
though nothing be therein free but their lusts: nor
hath it any form or face of Civil and just Go-
vernment; wherein a confused Multitude rule by
their own Wills, without Law: and for their own
benefit; no consideration being had of the good
and happinesse of the people in general, 4. They
Constitute a Senate, or Councel of State of 40 men (a-
mongst which some Trades-men, Souldiers, illiterate
Lawyers, Parliament-Members, men already engaged
over head and eares in sin, therefore to be confided
in) to these or any nine of these they entrust the Ad-
ministration of this Utopian Common-wealth, and
these they would have us believe (without telling us
so) are the Keepers (or Gaolers) of the Liberties of
England.

They have
converted our
ancient Mo-
narchy into
a Free-state;
and tell us
they are the
State. They
tell us they
have bestow-
ed Liberty
upon the peo-
ple: but they
and their fa-
ction onely
are the peo-
ple. All the
rest of the
English Nati-
on are anni-
hilated, and
reduced to
nothing, that
these fellows
may become
all things:
Meer ciphers,
serving onely
to make them
of more ac-
count. And
this gross fal-
lacy must not
be disputed
against, lest
their New
Acts of Par-
liament call
it Treason.

These things being but Introductions to the Usur-
pation of these Kinglings: and having been already
shewed to the world by many pens. I content my
self to give a cursory view oF them, and haste to my
intended task, to shew that this Usurped power is
kept and administred by as wicked and violent poli-
cies, as it was gotten by.

The first endeavour of all Tyrannical Usurpers is,
To lessen the number of their Enemies; either by

flastering

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Part III. The History of Independency. 15

flattering and deceiving them: or by violently extir-
pating and rooting them out. And such have been the
attempts of our new Cromwellian Statists, ever since
(without any calling from God or the people) they
took upon them the Supreme Authority of the Nati-
on; subverted our well-mixed Monarchy, and crea-
ted themselves a Free-State

1.
A Collusive
Accommodat-
tion.

1. They endeavoured to sweeten and allure to act
with them, as many of the Secured and Secluded Mem-
bers, Ministers, and other Presbyterians, as they could,
to the end that ex post facto being guilty of their sins,
they might be engaged in one common defence, and
go halfs with them in their ignominy and punishment,
though not in their power, profit, and preferments, in
which the Godly will admit no Rivals, but (like their
Patron the Devil) cry all's mine. But this Design fail-
ed for the most part.

2.
An intended
Massacre.

2. Their second Endeavour how to dimmish the
number of their Opposites, Royalists and Presbyteri-
ans, by a Massacre, for which purpose many Dark Lan-
thorns and Poniards were provided last Winter, 1649.
But fame prevented this plot: which coming to be the
common rumour of the Town, put them in mind of
the danger, infamy, and hatred that would overwhelm
them. So this was laid aside.

At last they invented two other Engins, no less bloody
then, and as effectual as a Massacre.

3. The Engage-
ment.

3. The Engagement is the first of these two Gins)
which all persons are enjoyned to subscribe by their
Act 2 Jan. 1649. To be true to the Common-wealth
of England, as it is now established, without a King,
or House of Peeres. And this is obtruded under
no lesse penalty, than, To be totally deprived of all

Benefit

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16 The History of Independency. Part III.

Benefit of Law whatsoever. Now the Lawes of the
Land being the only Conservators of our Lives, Liber-
ties and Estates (without which Lawes all men have
a like property to all things, and the strongest have
right to all is possest by the weaker; since the Law
onely distinguisheth Meum and Tuum) what is this but
to expose the Liberties of the Non-Engagers to false
Imprisonments; our Estates to rapine, spoil, and in-
justice: and our Lives and Persons to wounds and
murders, at the will and pleasure of such as will en-
gage with our Usurpers: but especially at the plea-
sure of their own Souldiers: to whom (I conceive)
this Outlawry was intended as an Alarm or Invita-
tion to plunder and massacre the Non-Engagers, and
to pay themselves their Arreares of which these
Parliamennt men have cousened them) out of their
Estates, and though the Souldiers were not so wicked
as their Masters, yet we daily see many good Fa-
milies in England despoiled of their Estates, for
want of protection of the Lawes, brought to mise-
rable beggery, rather than they will wrong their con-
sciences by subscribing this damnable Engagement
contrary to the Protestation and Covenant imposed
by this Parliament, contrary to the known Law
of this Land, which this Parliament hath declared to
observe and keep in all things concerning the lives,
liberties, and properties of the people, with all things
incident thereto; contrary to this Parliaments rei-
terated Votes, that they would not change the An-
cient Government, by a King, Lords and Commons.
And contrary to the Oathes of Allegiance, Obe-
dience, and Supremacy: whereby (and by the Stat.
of Recognition, 1 Jac.) our Allegiance is tied onely

to

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Part III. The History of Independency. 17

to the King, his Heirs and lawful Suceessors; from
which no power on earth can absolve us, and so much
we attest in the Oath of Supremacy. Politicus (Inter-
preter to our new State-puppet play) Numb. 19. from
Sept. 19. to Sept. 26. out of the dictates of his Masters
tells us, that in Answer to the Kings Act of oblivion
granted, the Parliament intends to pass an Act of
General pardon; for which they expect in future a
General obedience and submission to the Government
(you see though they will not be the Kings subjects
they will be his Apes) and in the beginning of the said
Pamphlet, Politicus saith, That Protection implies o-
bedience, otherwise they may be handled as publick
Enemies and Out-laws, and ought to be destroyed as
Traitors. Here you have the end to which this gene-
ral pardon is intended; it is but a shooing-horn to
draw on the utmost penalty upon Non-engagers, ap-
pointed by the said pretended Act 2. Jan. 1649. to
weed them out of this good Land, that the Saints on-
ly may enjoy the earth and the fulness thereof; to
which purpose all their new coyned Acts and Laws
are directed. The Scripture points forth these kind of
men, when it saith, The Mercies of the wicked are
cruel. The sum of all is, If we will not acknowledge
Allegiance to these Mushromes, we shall be Traitors
without Allegiance (a Treason never yet heard of in
any Law) If we will acknowledge Allegiance, we
put our selves in a capacity to be Traitors, when they
shall please to make us such. But let them know,
That we are all Englishmen, Free-born alike, un-
der the protection of an ancient, legal Monarchy, to
which we owe Allegeance; and how we come to
forfeit that legal Protection, our setled Laws

C and

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18 The History of Independency. Part III.

and Government; and be subjected to a New, un-
known protection obtruded upon us by a company
of upstarts (Mushromes of Majesty, so mean in birth
and breeding (for the most part) that the place of a
Constable equalls the highest of their education)
imposing what Laws and conditions upon us they
please; I would be glad to hear without being hin-
dred by Guns, Drums, High Courts of Justice, and
other Instruments of Violence and Murther. But the
greatest Mystery in this cheat is, That our Self-created
Supremists, having voted the original power to be
in the people, and but a derivative Authority to be
in themselves as the Representative of the people,
should notwithstanding so yoak their Sovereign
Lord the people, and make them pay Allegiance to
their own Delegates (the eighth part of a House of
Commons) under the penalty unless they subscribe
as the far major part have not) of out-lawing and de-
priving all the people of this Land of all benefit
of the Laws they were born to; and consequently of
annihilating and making them no longer a Nation or
people. As if they were meer Salvages, newly con-
quered, collected and formed into a politick body or
Commonwealth, and endowed with Laws newly in-
vented by the Novice Statists. But the unlawfulness
of the said Engagement with the Injustice of the
Self-created power that obtrudeth it hath been hand-
led by many good pens, especially by the Cheshire
and Lancashire Ministers in their plea for Non-subscri-
bers. Therefore I pass onto my principal scope; The
second Engine appointed to root out all such as are of
a different party, the High Court of Justice. A for-
midable Monster, upon which no pen (that I know of)
hath yet adventured.

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Part III. The History of Independency. 19

4.
The High
Court of
Justice.

4. In treating of the High Court of Justice, I must
consider, 1. By what persons and Authority this new
erected unpresidented Court is constituted? 2 Of
what persons it is constituted? 3. The way and manner of
their proceedings? What Formalities and Laws they
observe therein? How suitable to the known Laws of
the Land, and the Parliaments Declarations, Protesta-
tions and Covenant they are? 4. To what end this
Court is constituted?

1. The Persons constituting this extrajudicial Court
are the present pretended Parliament, consisting of forty
or fifty thriving Commons only, who conspired with
Cromwel and the Army to expel seven parts of eighth
of their Fellow-Members, without any cause shewn,
abolished the House of Peers, erected this High Court
of Justice (in nature of a Court Martial) to murther
the King, abolished Kingly Government, turned it in-
to a thing they call a Free State, disinherited the Royal
Family and now usurp to themselves (without any
calling from God or the People) more than a Regal,
Legal or Parliamentary Authority, wherewith they have
subverted the Fundamental Government, Religion,
Laws, Liberties and Property of the Nation, and en-
vassallised and enslaved them to their Arbitrary Do-
mination; the Authority by which they erect this ex-
trajudicial Court is, The usurped, Legislative power;
by colour of which they passed an Act dated 26.
March 1650. establishing the said High Court of
Justice. Yet their own creature Master St. Johns, in his
Argument against the E. of Strafford (in a Book called
Speeches and Passages of this great aud happy Parlia-
ment, printed by William Cooke, 1641. pag. 24.) saith,
The Parliament is the Representative of the whole King-

C2 dome,

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20 The History of Independency. Part III.

dome, wherein the King as head, The Lords are the more
Noble, and the Commons the other Members, are knit to-
gether as one body politick; The Laws are the Arteries
and Ligaments that hold the body together. (And a little
after) Its Treason to embesel a Judicial Record, Straf-
ford swept then all away. Its Treason to counterfeit a
20 s. peece; here is a counterfeiting of Law (so in these
counterfeit new Acts) we can call neither the counter-
feit nor true one our own. Its treason to counterfeit the
great Seal for an acre of land, no property hereby is
left to any land at all (no more is there by the votes
and practise of our new Supremists (thus far Mr. St
Johns.) But that the parliament doth necessarily consist
of the King and the two Houses assembled by his Writ, &
can pass no Act without their joint consent. See the pre-
ambles of all our Statutes, all our Parliament Records,
all our Law books, Modus tenendi Parliamentum. Hack-
wels manner of passing Bills. Sir Tho. Smith de Repub.
Anglorum. Cambdeni Britania. All our Historians, Poli-
titians, and the uninterrupted practise of all Ages. That
it is now, lately otherwise practised, is not by any
Law of the Land, but by the will of lawless power
and Rebellion, that hath cancelled all our Laws, Li-
berties and Properties, and subverted our Fundamen-
tal Government, and disfranchised and disinherited
the whole Nation. Yet Master St. Johns in his said
Argument against Strafford, pag. 38. was then of opi-
nion, That to subvert the Laws and Government, and
make a Kingdome no Kingdome, was Treason at the
Common Law. This Act 26. Mar. 1650. is a new model-
led Commission of Oyer and Terminer; and all the
people of the Land, are by the consequence thereof
disfranchised and proscribed. The illegality and ty-

ranny

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Part III. The History of Independency. 21

ranny thereof, they have introduced, who in this Par-
liament so zealously complained against the Court of
the President and Counsel of York, or of the North,
as an intollerable grievance (notwithstanding it had
been of as long continuance as from 41 H.8.) as ap-
peares by a worthy Members Speech or Argument a-
gainst it (in the said Book of Speeches and Passages p.
409. made by order of the House of Commons in April
1649. I find not one Exception there made against
the Court of York, to which this upstart High Court
is not more liable than it. 1. The Commissioners of
this High Court are not appointed to enquire, per Sa-
cramentume proborum & legalium hominum, that is, by
Juries; as by Magna Charta, and above 30. Statutes
confirming it, all Commissions ought to run. 2. They
are not appointed (nor sworn) to hear and determine,
Secnndum Leges Angliae, according to the known
Laws (as they ought to be) but according to certain
Articles and powers given in the said Act 26. March,
1650. 3. The said Act 26 March leaves a dangerous la-
tude to the interpretation and discretion of the Com-
missioners (contrary to what is done in the Act 25
Edw.3. chap. 2.) namely; It hath one Clause enabling
them to inflict upon Offenders such punishment, either by
death or otherwise corporally, as the said Commissioners,
or the major part of them present shall judge to apper-
tain to Justice. This leaves it in the brests of the Com-
missioners (without any Law or rule to walk by) to
inflict what torments and ignominious punishments
they please, although not used in our Nation; and ar-
bitrary corporal pains are proper to slaves, not to subjects.
Here (after the loss of all but these bodies) the people
may see their bodies subject to the lawless wills of

C3 out

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22 The History of Independency. Part III.

our Grandees. And by another clause, this Act im-
powereth the Commissioners. To examine witnesses up-
on oath, or otherwise, if need be. This word (or otherwise,
&c.) gives them power to examine witnesses with-
out oath (if they cannot procure witnesses so far the
sons of Belial, and cauterised in conscience as to ad-
venture upon an oath) even iu case of life and death,
and mutilation of members; contrary to the current
of all our Lawes, and practise of all our Courts of
Law, and of all Nations. See Stat. 1 Edw- VI. chap.
12. 5 Edw. VI. chap. 11. Cooks 3. Inst. p. .24, 25, 26.
Deut. 17.6. Ex ore duorum vel triam peribit qui occide-
tur. Deut. 17.6. Matth. 18.16. John 18.23. 2 Cor. 13.
1. Heb. 10.28. This is the most arbitrary and destroy-
ing liberty that ever was given to Judges; And such
as none but professed thieves and murderers will ac-
cept or make use of. The Scripture saith, An oath is the
end of controversy between man and man. How then can
they end and determine a controversie without oath?
But the end of all controversies before this Butcher-
row of Judges, is cutting of throats., and confiscation
of estates. And by the same clause of the said Act (To
examine witnesses) they may, and (I hear) do examine
witnesses clandestinely, and proceed upon bare Depo-
sitions read in Court, whereas they ought to produce
the witnesses face to face in open Court, and there
swear them, that the party accused may interrogate
them, and examine the circumstances, and whether they
contradict themselves, or one another, for clearing the
Evidence? And whether they be lawful witnesses or
no? Nay (I hear) they do privately suborn and en-
gage witnesses without oath. And then produce them

See Stat. 5 Ed.
6. chap. 11. &
Cooks 2. Inst.
pag. 26.

to

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Part III. The History of Independency. 23

to swear what they have formerly related only: and
if they scruple at an oath; punish them for mis-inform-
ing the State. 4. That I may make some more use of
the aforesaid Members words, Whether the King, or a
prevailing Party usurping his Kingly power, may canton
out a part of his Kingdom (or cull and mark out for
slaughter some principal men, and deny them the
benefit of Law, in order thereto, as these Judges do) to
be tried by special Commission, since the whole Kingdom
under the known laws and Courts established at West-
minster? It should seem by this Parliaments eager
complaint against the special Commission of York, this
Parliament hath determined this question in the nega-
tive already (whatsoever their present practise to car-
ry on their Design is) See Stat. 17. Car. 1. against the
Star-Chamber. To what purpose serve those Statutes
of Magna Charta, and the Petition of Right, if men
may be fined and imprisoned (nay murdered) without
Law, according to the discretion of Commissioners?
This discretion is the quick-sand that hath swallowed
our Properties & Liberties (but is now ready to swal-
low our carkasses.) Thus far that Gentlenan, Whose
words then carried the Parliamentary stamp upon
them. Let me add some more exceptions of my own
against this High Court of Injustice. 5 Souldiers of the
Army are appointed by the Act 26 March, to be assistant
to the Commissioners, contrary to the peaceable pro-
ceedings of the Law, which never make use of any
but Civil Magistrates and Officers of the Law. See
Stat. 7 Ed. I. 2 Ed. III. chap. 3. 7. R. 2. chap. 13. 6. And
contrary to the old oath which all Judges ought to take,
these words. You shall swear well and faithfully to serve
the King and people, in the Office of Justice, &c.

And

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24 The History of Independency. Part III.

And that to what estate and condition they be come be-
fore you in the Sessions with force and arms, against the
peace, against the Statute thereof made, to disturb the
Execution of the Common Laws, or to menace the people,
that you arrest their bodies, &c. Stat. 18 Ed.3. in An.
Dom. 1344. p.144. Poultons Book of Stat. at large. But
the oath appointed for these Commissioners to take, is
not penned in terms of indifferency, nor doth any waies
oblige them to the people, 26. Mar. 1550. (viz.) You shall
swear well and truly according to the best of your skill
and knowledge, to execute the several powers given you by
this Act (not well and lawfully to serve the people.) Be-
sides, they swear to execute the several powers given
(not to do Justice according to the Laws. Now the Laws
are the only rules of Justice, by which we distinguish
crooked from strait, true from false, right from
wrong. This is not the work these Judges are packed
for, but to execute Acts of power and will. But powers
are often usurped, tyrannical, illegal and unjust: So
are these. Injuria est quod contra legem sit. 7. How
can the House of Commons (if it were full and free)
constitute a new unpresidented Court of Justice, nomi-
nate and ordain Judges, and enable them to administer
Oaths, having never had, nor so much as pretended
to have any power to judge, to nominate Judges, or
to administer an Oath; as having never been more
than the Grand Enquest of the Kingdom, humbly to
present to His Majesty in a petitionary way, the grie-
vances of the people? Nemo dat quod non habet. 8. Sup-
pose the House of Commons had power of Judica-
ture, delegated to them from the people as their Re-
presentative? Delegati non possunt substituere Delega-
tos, & Protestatam sibi concreditam, in alios transferre.

Delegates

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Part III. The History of Independency. 25

legates cannot make subdelegates, and transfer their
trust to others. See Col. Andrews 3. Answers given into
this High Court, for his defence. Printed at the latter
end hereof.

2. My second consideration will be, Of what Per-
sons delegated or Commissioned, this Court consisteth? The
pretended Act. 26. March 1650. names 25. Commis-
sioners, all which (for their better credit) it enacteth
Esquires, amongst whom are 4. or 5. that have pro-
sessed the Law, (as farre as wearing a Lawyers Gown
comes to) but were better known by their leisure
then by their Law; untill by adhering to our pre-
vailing Schismaticks, in subverting our Laws, they
seem to be eminent Lawyers. Of Keeble see the Triall
of L. Collonel John Lilburn, first and second Part.
Steel cited expired Statutes at Winchester against Cap-
tain Burley. The rest are (for the most part) poor
ignorant Trades men, some so young they are but
lately out of their Apprentiships, others Broken
Trades-men that have compounded with their Cre-
diturs, some of vild and base professions; One or two
of these Wolvish Saints (I hear) have with some
difficulty escaped the Gallowes for Man-slaying: Wil-
liam Wibeard Esquier is a Rope-seller: this employment
may happily help him to the Hangmans Custom.
William Pemoier Esquire was heretofore an Ape-car-
rier, Cherry-lickom or Mountredinctido. Cook a Vintner
at the Bear at the Bridge-foot, he keeps a vaulting-
School for our sanctified Grandees, and their Ladies
of the Game. If the House of Commons had power
to make Judges (which I have disproved) yet, Ex
quovis ligno non sit Mercurius. They must name such
Persons as may be competent Judges. And therefore

D must

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26 The History of Independency. Part III.

must not choose. 1. Ignorant men. 2. Nor such
as the Law calls, Viles Personas, men base or con-
temptible for their Persons or Sordide callings;
Mechanicks of the lowest rank. 3. Persons of
Scandalous life and conversations. 4. Not Banque-
routs and Indigent Persons. Necessitas cogit ad turpia.
5. Not partiall and preingaged Persons, chosen to
suppresse another party. As these Commissioners are
engaged to the present power to suppresse all others.
6. Nor such as Schismatically or Heretically affected, are
seasoned with such Doctrines and Principles, as neither agree
with the Duties of a good Christian, a good Common-wealths
man, nor a good Judge. Which two last Objections not
only these Commissioners, but the pretended Parlia-
ment that commissioned them are apparently guilty of,
as being all of the Independent Faction conspiring to rob
and rout out all other Parties: Royallists, Presbyteri-
ans and Levellers: For which purpose this New Tri-
bunall or, Inquisicion is set up. Independency being a meer
complication and Syncretismus, or rather a Sink and Com-
mon Sewer of all Errours, Heresies, Blasphemies, and
Schismes, (though they peevishly differ in some inconsidera-
ble Tenents) yet having one Generall End or scope at which
they all chiefly aime (viz.) power, preferment, profit, and the
suppression of the Truth and Magistracy, they have likewise
some common principles to soader them together, which they
use as a Meanes conducing to that Generall End. Some
few whereof I will here set down for my Readers satis-
faction. 1. To tollerate no King nor Magistrate Superior to
themselves, as Being a Tyranny or Bondage over the
Christian Liberty of the Saints and Kingdom of Christ.
Because they know no Christian Magistrate can tol-
lerate them, being (by the Genius of their Sect)

enemies

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Part III. The History of Independency. 27

enemies to all Civil Societies, whether Monarchi-
call, Aristocraticall, Democraticall or Mixed; as
the Kingdom of England was before these men de-
stroyed it. Besides their common Doctrine, That they are
appointed to break the powers of the Earth to pieces, To levell
the hils and fill up the vallies, That they are called, To bruise
the Nations with a rod of Iron, and break them in pieces like
a Potters vessell: Which they have done in England, and
threaten the like in France, Germany, &c. whereof,
their Pulpits and discourses sound. Observe their
Practises in the Low Countries. Where having by their
spies and Emissaries, found out some Burgers of the
same humour with themselves; They propagated
their Doctrine so far; as to endeavour to strike the
Aristocraticall Members out of that Common-wealh
by abetting some of the States Provincial to lessen
(and so to abolish by degrees) The Lords States
Generall (the Optimates of that State) To ruine
the Prince of Orange, to whose Family they owe
their Liberty; To dissolve the Generall Union of the said
United Provinces, and so take in pieces the whole Frame of
that Republick. To say nothing of their Insolencies in
fighting and killing their men, because the Belgike Li-
on will not strike saile to their Crosse and Harpe; and
in blowing up the Antelope in Helversluce: Which
shews what good Neighbours Holland, and other
Parts, are like to have of the New State of England
and Ireland (when they have made themselves intire
by the purchase of Scotland) that is born (like our
English Richard III.) with Teeth in its head; and
snappeth at its Neighbours before it be out of its
Swadling clouts. This is the cause that Cromwell,
before he set saile for Ireland, caused his Journey-

D2 men

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28 The History of Independency. Part III.

men, the pretended Parliament. To passe an Act for
Tolleration of all Errors, Heresies and Schismes, under
the Notion of Liberty of Conscience, and Ease for Ten-
der Consciences. 2. Their second Principle is, That the
Good things of this World belong onely to the Saints (that is;
Themselves) all others being usurpers thereof: and therefore
they may rob, plunder, sequester, extort, cheat and confiscate
(by illegal Laws of their own making, by extrajudicial Courts
and partial Judges of their own constituting) other mens goods
and estates, upon as good Title as the Jews spoyled the Egyp-
tians, or expelled the Canaanites. 3. Their third Principle.
That the Spirit (which sanctifies and illuminates these men)
in every particular man blowes when and where it will, some-
times this way, sometimes that way, often contrary waies:
And therefore they can make no profession of any certain
Rule of Doctrine or Discipline, because they know not which
way the Spirit will inspire, For this reason they are still
pulling down old and setting up New Doctrines, as the
Nomades do cottages, onely constant in unconstancy.
They professe their consciences are the Rule and Sym-
boll both of their Faith and Doctrine, by this Leaden
Lesbian Rule they interpret, and to this they con-
form the Scriptures, not their Consciences to the Scri-
ptures; setting the Sun-Dyall by the clock; not the
clock by the Sun-Dyall. That every man must pray
according to the Dictates of his Private Spirit; They
reject the Lords Prayer, for fear of quenching the Spi-
rit. When they break their Faith, Articles, Promises,
Declarations and Covenant, they Alleage, the Spirit is
the Author thereof. When Cromwell (contrary to
his vowes and Protestations made to the King) kept
him close Prisoner in Carisbrook Castle; He affirm-
ed the Spirit wonld not let him keep his word. When,

contrary

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Part III. The History of Independency. 29

contrary to the Publick Faith, they Murdered Him:
they pretended: They could not resist the Motions of the
Spirit. Sua cuique Deus sit dira libido. This Hobgoblin
serves all turnes. 4. Their fourth Principle is, That they
may commit any sin, and retain their Sanctity in the very
Act of sinning: For what is sinfull in other men, is not so in
the Saints; who may commit any crime against the Law of
God, and yet it cannot be imputed to them for sin; Because
they know in their Consciences what they do. So ten-
der and delicate are their Consciences, That they are ca-
pable of any Offence against their Neighbour, without breach
of Justice or Charity. A righteous man is a Law to him-
self. 5. Their fift Principle is, That 7. make a Church: al-
though men, women and children, and that this Church is In-
dependent upon any other. The Anabaptists (thoush they
neither professe to follow Paul nor Cephas) yet declare
themselves to be some of Cromwells Church, some of
John Goodwins, some of Kiffins, some of Patiences, and
some of Carters Church. 6. Their sixt Independent Prin-
ciple is. That if a man be questioned for any crime, though his
Judges have neither competent witnesses, proofs nor Evidence
of his guiltinesse, yet if they think in their Consciences he his
guilty, they may condemn him out of the Testimony of their
own Private Consciences. Is it not fit men so Principled
should be Judges and Jury too; and condemn men by in-
spiration? So Colonel Andrews and Sir John Gell were
condemned; for Bernard and Pits (witnesses against
them) were apparently suborned by Bradshaw and
Sir Henry Mildmay against them, and forsworn in
the same cause; and good proof offered to the
Court, that they were both Flagitious men, of scan-
dalous life and conversation. The letter (supposed
to be sent by Andrews to Gell) was delivered to

Bradshaw,

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30 The History of Independency. Part III.

Bradshaw, whereof Bradshaw sent a Copy onely to
Gell at 10. of the clock at night; and had a war-
rant then ready to arrest Gell, which was done earely
next morning before he could conveniently discover
it: Yet was Gell sentenced for Misprision of High
Treason. See Sir John Gells case stated August, 1650.
with Colonel Andrews Attestation (in his behalf) under
his hand a little before his death. And though Sir John
was Impeached and Mr. Atturney prosecuted him onely
for Misprision, yet had he much ado to keep that
bloud-thirsty, old cur Keeble from taking a leap at
his throat, and giving Judgement against him for
High Treason. So for want of Law Sir John had like
to be hanged by Inspiration and Instinct of the Spirit.
He that will see more of the Independent Tenets,
Let him read Cl. Salmasius chapter 10. Defeasionis Regiae,
Elenchus Motuum nuperorum in Anglia. And the History
of Independency first and second part. These 6. I have
selected, that by comparing ther Doctrine with their
daily Practise, the Reader may perceive what pious
Christians, good Patriots, and upright Judges, these
engaged, Independent Commissioners of the High
Court of Justice are like to prove. The builders of
this New Common-wealth or Babel, hold forth to the
People, Justice and Liberty, as their Motto: as if
those excellent gifts had never received their birth,
nor been so much as shewen to the People untill they
murdered the King, and stepped into his Throne.
But how righteous a Free-State or Common-wealth is
this like to be? And how well are the People therein
likely to be instructed in the waies of Righteousnesse,
Justice and Charity, and improyed in good life and
conversation, by men so principled as aforesaid, Let

the

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Part III. The History of Independency. 31

the world judge. Especially when they observe, That
our New Statists have enacted in the said pretended
Act. 2. January, 1649. enjoyning the Engagement,
That whosoever will promise Truth and fidelity to
them by subscribing the Engagement may deal falsely
and fraudulently with all the world besides. And
break all Bonds, Assurances and Contracts made with
Non-engagers, concerning their Estates; and pay
their Debts by pleading in Bar of all Actions, That
the complaint hath not taken the Engagement:
This is to rob the Egyptians of the good things of this
world, This is to break their Faith by the Motions of
the Spirit, This is to cheat and rob their Neigh-
bours without breach of Charity or Justice, and without
imputation of Sin according to their aforesaid Te-
nets.

3. I am come now to consider in the third place, The
way and Manner of their proceedings; How consonant they
are to the usuall proceedings of our known Lawes, and
Legall Courts of Judicature; (the best Inheritance of
all Freemen) whereof see Colonel Andrews 3. Answers
in his Defence given into the said High Court, herewith
printed.

1. The first course they commonly take is; To
break open mens Houses, Studies, Chests, &c. and
seise their Papers; and thereby hunt for Matter of
Charge against them: And then to examine them
against themselves, upon the said Papers, contrary
to Magna Charta which saith, Nemo tenetur prodere se-
ipsum. And contrary to the Doctrine of Christianity,
which forbids a man to destroy his own life, or be,
Felo de se, as many men unwittingly do, who answer
to captious, ensnaring questions. When that tempting

question

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32 The History of Independency. Part III.

question was put to Christ; Art thou the King of the Jews?
He returned no other Answer then Thou sayest it: Why
askest thou me? Ask them that heard me, That is, Ask
witnesses. It was objected against the Oath ex Officio,
That it was High Injustice to examine a man against him-
self: Because his Answers may only serve to condemn,
but not to acquit him.

2. They usually break open houses with Souldiers, at
all houres of the night, pulling men out of their beds with
great violence and Terrour, and so carry them away, un-
der pretence whereof Robberies and Murders have been
committed, Whereas by the Stat. 1. Ed. VI. chap. 12.
and 5. and 6. Ed. VI. chap. 11, A man ought not to be
accused of High Treason but to one of the Kings Coun-
sel; or to one of the Kings Justices of the Assize; or to
one of the Kings Justices of the Peace being of the Quo-
rum: or to 2. Justices of the Peace where the Offence is
committed. Cooks 3, Instit. chap. High Treason, pag. 26.
27, 28.

3. They Commit men to Prison without any Accu-
sation or Accusor made known, and during pleasure:
and detain them in Prison many yeares together with-
out any Legall proceedings or Charge against them;
sharing their Estates, Offices and Revenues (by Se-
questrations and Suspensions of the Profits) amongst
themselves; without any Crime objected: And so
leave them to starve, rot and dye in nasty Gaoles for
want of Maintenance, under the cruelty of covetous
and mercilesse Gaolers, whom they bear out (for
mony) in all their Extortions. And being thus im-
prisoned and wounded with the displeasure of the
State, no man dares adventure, upon any security,
to lend him money for fear of incurring the disfavour,

of

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Part III. The History of Independency. 33

Witness about
3000. Scottish
Prisoners of
War starved
to death at
Durham:
where they
eate one ano-
ther for hun-
ger. These
were taken at
the battle of
Dunbar an.
1650.3.Sept.
and many
hundred Pri-
soners have
been murde-
red in Gaoles,
with hunger,
cold, nastiness
and contagi-
on, after they
have been
robbed of
their Estates
and no Crime
laid to their
Charge: this
is become
a daily
practise.

of the State, and a Note of Malignancy, whereby their
Prisons are become private Slaughter-houses, as well
as their Courts Publick shambles of Injustice. Pri-
soners in the Tower of London (To which prison no
Goale-delivery belongs) were alwaies wont in the
time of (that supposed Tyrant) King Charles I. and his
Predecessors, to have allowance from the King, ac-
cording to their severall degrees; As 5l. a weeke
for an Esquire, &c. although the King deprived them
of no part of their Estates untill conviction, and this
Maintenance was provided for them by the Lieu-
tenant of the Tower, and in respect of his care and
paines in procuring it he had Fees, and not otherwise,
though now they continue and encrease the said Fees;
the cause being taken away the effect ceaseth not. But
these men now in power, after they have Committed
men and robbed them of their Estates, without cause
shewen, are so far from giving them any allowance
to feed them; that they shut them up close Prisoners
in unwholsome Chambers, denying them the Liberty
of the Tower, and the benefit of fresh Aire (the
Cameleons Diet) for their health, and resort of friends,
for their accommodation. And that they may be sure
to deprive them of all legall meanes by habeas corpus to
recover their liberties, They Commit men by illegall
warrants not expressing any particular Offence, or
cause for their Commitment: so that it is impossible
for the keeper of the prison to obey the habeas corpus,
which is directed to him in these words: Praecipimus
tibi quod corpus A. B. unâ cum causa detentionis suae, habeas
coram nobis, &c. ad recipiendum ea qua curia nostra, &c.
Whereupon the Gaoler or Sheriff is to bring his Prisoner
to the Bar, and tender his mittimus to the Court,

E shewing

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34 The History of Independency. Part III.

shewing the particular cause of his Imprisonment, that
the Court may judge whether it be Legall, or no, Dolo-
sus versatur in Generalibus. In the Acts of the Apostles,
chap. 25. vers. 26, 27. Festus thought it unreasonable to
send Paul a prisoner to Cesar (to whom he had appealed)
and not withall to signifie the Crimes laid to his Charge.
See Cooks 2. Instit. fol. 591.

4. Their usuall Course of practising and suborning
witnesses, tempting them with hopes and terrifying them with
fears, is so notorious; That it is known the Counsell
of State have hundreds of Spies and Intelligencers, Affi-
davit-men and Knights of the Post, swarming over all
England as Lice and Frogs did in Egypt: and have both
Pensions and set rates for every Pole brought in: So that
now the whole Nation is proscribed, and every mans head set
to sale, and made a staple commodity, (far beyond the
definite Proscriptions of Silla and the Triumvirate a-
foresaid) These Sons of Belial are sent forth to com-
passe the earth seeking whom they may devour.
These, (with the Liberty of Priviledged Spies)
speak bold language to draw other men into
danger: and plot conspiracies, which themselves de-
tect, and are rewarded like Decoy Duckes for their
paines, Of this sort are Bernard and Pits set no work
to betray Gell and Andrewes, as aforesaid. For which
Bernard had 300l. and a Troop of horse conferred
upon him. Johnson that falsly accused Sir Robert Sherly,
and Colanel Egerton for their charity in relieving his
wants, is another; Varney is a Fourth. So well are
they fitted with these Sonnes of Belial, that no Naboth
can keep his Vineyard, if a Grandee cast a covetous
eye upon it; they can prove what they list. Nay it is
usuall for our Grandees to molest one man with

examining

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Part III. The History of Independency. 35

examining him 20 or 30. severall times, against one
Prisoner, and upon one point, to distract his memory,
and not to let hin be quiet untill he perceive he
must speak what their questions and discourses lead
him to, to redeem himself from vexation. To say no-
thing of their Menaces, To torture men if they will not
confess, what they impudently pretend is already dis-
covered by other meanes: And their insinuating into the
Affections of witnesses, by asking them, Whether the
State doth not owe them money? And why they do not
use fitting meanes and opportunities to recover it? And
why they do not make meanes for some beneficiall em-
ployment?

5. In Magna Charta, chap. 29. it is enacted, That no
Freeman shall be taken or imprisoned; or be disseised of his
Free-hold or Liberties or Free-Customes, or be outlawed or
exiled, or any otherwise destroyed, nor we will not passe upon
him or condemn him, but by lawfull Judgement of his Peers,
or by the Law of the Land. We will sell to no man, we will
not deny or defer to any man, Justice or Right. See Sta-
tute 2. Edward III. chap. 8. 5. Ed. III. chap. 9. 14. Ed.
III. chap. 14. 25. Ed. III. chap. 4. 11. R.II. chap. 10.
Pet. of Right. 3. Car. 1. 10. Edward IV. fol. 6. Dier
folio 104. Cook lib. 5. folio 6. lib. 10. folio 74. lib. 11.
folio 99. Regist. folio 86. Where note the word
(Peers) signifies, that no man is to be condemned
or destroyed, but by the lawfull verdict of a Jury of
12. sworn men of the Neighbourhood where the Fact was
committed; because (in probability) Neighbours
may have best cognisance of the Fact, and of the life
and conversation of the Party Accused. And these
only are Competent Judges of Matter of Fact; and in ma-
ny cases of Matter of Law too, if they will take the

E2 knowledge

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36 The History of Independency. Part III.

knowledge of the Law upon them. Neither can this
Petty Jury of 12. men go upon the Prisoner unlesse
a Bill of Enditement containing the whole Matter of
charge be first found in open Court by a Grande Jury
or Enquest of sworn men; who are to enquire of the
Fact upon the Oathes of two lawfull witnesses (at
least) to every materiall Point of the Enditement: and
then, when the Grande Enquest are all agreed, the
Foreman endorseth upon the back of the Bill (Billa
vera) and then presents it in open Court, as the In-
formation for the King of the whole Enqueste:
otherwise the Enditement is quasht, and null. Cookes
3. Instit. chapter High Treason and Petty Treason.
And whereas the Statute saith, (but by his Peeres, or
by the Law of the Land) Lex Terrae, signifies, The
Antient Customes of the Land; Amongst which
Fundamentall Customes; Trialls by Juries hold a
principall place. And when the King Charles I. accused
this Parliament, That they disposed of the Subjects Lives and
Fortunes by their votes, contrary to the known Laws of the
Land, Ths Parliament in their Remonstrance, Sept. 1642.
(1. Part of the Book of Declarations fol. 6 9 3.
highly resented it. And Magna Charta being nothing else
but an Affirmation of the Common Law, inserted
this Clause (or by the Law of the Land) as a speciall
caution, not to annihilate or frustrate (no; not so
much as tacitely, or by preterition) any of the said
Fundamentall Lawes or Customes; nor any other
particular lawfall Customes, which are not one and
the same in all parts of England: Witnesse the Custom
of Gavelkind in Kent. I have told you what our known
antient Legal Courts of Justice do. And I must tell
you that Legal formes and set Modes of procecdings are

so

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Part III. The History of Independency. 37

so essentiall unto Justice, that without them we can not mea-
sure the Rectitude of Obliquity of Justice or Injustice: where
they do not chalk forth the way, both Judges, Lawyers,
Officers and Atturneys will tread what subtle, obscure
pathes they please, usurp an Arbitrary power and la-
titude to prevaricate; and so far corrupt and work
the Law of their sense, that they will rather Leges da-
re, then Leges dicere, so that what is Law in one mans
case, shall not be so in another mans, They will so
intricate and intangle causes; that every case shall be
Casus pro amico; as Civilians call it; when upon full hea-
ring, The Merits of the cause appear so equall, and
undistinguishable on both parties; that the Judge may
(according to his discretion) look upon the Merits
of the Persons onely: and give the cause; Pauperiori,
viâ Charitatis or digniori, ratione virtutis. Justice not fixed
by Formalities, will become such a vagrant, that no man shall
know where to find her. Let us now see what our new sham-
bles, our upstart High Court doth. Which in this work
of Reformation and Destruction, so much abhorres
Superstition and Ceremonies, and sticks so close to
a Summary way of proceeding, that they have not
onely stripped, but flead her: as their Masters the Par-
liament not onely fleece but flea the People. In lieu
of a Bill of presentment, by a Grande Enquest, the
pretended Parliament or Counsell of State, send a List
of such Persons names, as they have proscribed, And set
a Nigrum Theta upon, (as men dangerous to their
designed interest) to the Masters of their Slaughter-
house, The said High Court, together with such De-
positions as they have taken in corners, against the
Prisoners: and this is such a forejudging of them that
the said Court neither will nor dare acquite, whom

their

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38 The History of Independency. Part III.

their Masters and Pay-Masters have precondemned.
Next Articles of Impeachment in nature of a charge are
drawn up against the Prisoner (although such Arti-
cles are nothing in Law, which regards onely a Bill of
Inditement) Then the Prisoner (after a close Imprison-
ment for he knows not what) upon two daies warn-
ing is led to the Bar, where the first work is to
dazle his eyes, amaze and diftract his Judgement and
Memory with the terror of their Souldiers, the Nu-
merousnesse, high affronting words and looks of his
Judges; having thus mortified the Prisoner, he is com-
manded to hear his charge read: and bid plead to it,
Guilty, or not Guilty. If he own their Jurisdiction
and plead the said Generall Plea, they have him where
they would have him: they never ask him; how
he will be tried, Whether by God and his Coun-
try? For God hath no hand in these proceedings, nor
anongst such Judges: and this rod of Iron is provided to
bruise his Country, as well as himself. Lieutenant Col-
lonel Lilbornes Trial hath taught them That it is an easier
Matter for them to pack a Butcher-Rowe of confi-
ding, partiall Judges, then a Jury; who are liable to
be challenged, if suspected of partiality. When Col-
lonel Andrewes claimed to be tried legally as a Free-
man by a Jury, and vouched Great Charter, and ma-
ny other Statutes, (whereof see his aforesaid 3. An-
swers) that sneaking Bloud-sucker, illiterate Keeble
answered, Those Statutes were out of date now,
(meaning, They were taken away by conquest.) So
that this Shamble Rowe of Judges, take upon them to be,
both Judges of the Law, (without acknowledging the
Fundamentall Lawes of the Land, or taking any Oath
of Indifferency to the People) Triors of the Fact, or

Jurates

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Part III. The History of Independency. 39

Jurates of life and death (without being sworn to find accor-
ding to Evidence) as well as Parties and Prosecutors.
Theeves upon the high way may as justly arraign a True
man before them, because he brought no more Mony in
his purse, offered to draw his sword and hid his mony
about him in contempt of their jurisdiction and Au-
thority, and condemn him upon such a Mock Triall
and Mummery or Enterlude of Justice, as these Fellows.
If they allow him Counsel, his Counsel must apprehend
the mindes of his Judges, at his perill; and not be so
faithfull and diligent as to help his client in earnest;
Lest the Counsel of State, or some other power (whose
will is a Law) interpose, and banish him 20. miles
from London; as they did Master Sprat, Sir John Gells
Solicitor, before Sir Johns businesse was ended; whereby
Sir John was left deftitute of meanes to follow his bu-
sinesse, himself being Close Prisoner. If they permit any
witnesse to speak on the prisoners part, He comes at his pe-
rill: Sir John Gells first witnesse was so baffled in Court,
that the rest stole away and durst not appear. I have not
heard whether they give any Copy of their Articles of Im-
peachment to the Prisoner, (for they cover all their do-
ings with such a Plaguy Egyptian Darknesse, that we
cannot see a glimpse of light) or whether they go a
Starre Chamber way, and make him Answer Ore tenus,
and ex tempore for his life and Estate. But if they give him
any Copy, or any time to answer, it is not above four or five
days or a week, nor do they allow him Counsell or any o-
ther Clearing of the way to his defence, untill he have en-
snared himself by owning their Jurisdiction, and pleaded
the Generall Plea, Not Guilty. If he pleade not an Issuable
Plea, and yield to their Jurisdiction, quitting all benefit of the
Law and Legal proceedings; the Razor at his throat,

they

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40 The History of Independency. Part III.

they thirst after his Bloud, and they presently sentence him
guilty of contumacy and take it pro confesso. Aad if he do
submit and plead: His plea will have the operation but of a
Psalm of Mercy, prolonging his life but for a short time, in the
interim Keeble and his Court plays with him as a Cat with a
Mouse, and then devours him. For no man is sent to this Court
to be Tried, but to be condemned. In hac arena dimicatur sine
missione. Herein they shew themselves much more Ty-
rannous and bloudy then the Duke D'Alva when he e-
rected his said Counsel of Troubles, called Concilium
Sanguinis or the Bloudy conventicle; as this will shortly
be. For saith Strada Declar. 1. lib. 7. Procurator reginus
menses 4. Conficiende Accusationi accipiens sibi; 5. Concede-
bat ad Defensionem regis (Egmontio, Hornano, &c.) The
Kings Atturney took 4. Moneths time to draw up the
charge or accusation, and gave 5. Months time to the
Respondents to make their defence. And had he given
less then 5. Moneths time, To Instruct Counsel, Pen their
Answers, produce and summon witesses, inquire into the
lives and conversation of their Accusors, his feet had
been swift to shed bloud. Nulla unquam de morte hominis
cunctatio longa est, But our Inquisitors take whole
yeares to themselves to hunt for Matter of Accusati-
on, and hire and engage witnesses against men kept in
ignorance and want with close Imprisonment: and al-
low not them so many daies to make their Defence.
All manner of Accusors and witnesses, though apparently
suborned and forsworn in the same cause, and proofes with-
out exceptions offered to the Court that they are of infa-
mous life and conversation, are in this Court (the Object
of whose desires are Bloud and Confiscations, not Ju-
stice) lawfull witnesses, such witnesses were the said Ber-
nard and Pits; Monsters of men. See Sir John Gells

case

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Part III. The Hiftory of Independency. 41

case stated: Printed about August, 1650. To cite any anti-
ent known Laws or Statutes, or any other then their own new
coined Acts, passed by this 8th. Part of a House of Com-
mons, (since they became elect Members chosen by Thomas
Pride) is to incur the High Indignation of the Court, ex-
pressed abundantly in their words and looks. But to put them
in mind of the Parliaments many Declarations, To maintain
the antient known Laws, Liberties and Properties of the
People, is to scandall the present Government and incur the
Censure of that unknown Mysterious Crime which knaves
call Malignancy. The witnesses and Judges being
thus irrefragable, the first may swear what they will,
the second may judge what they will, since they are
left at large and have all things in scrinio pectoris: and
Book Law must give place to Bench Law, The Juris-
diction and Authority of this New unparalled Court is such a
Mistery of iniquity, so inscrutable and unquestionable,
that if a Prisoner scruple (in the least) either it, or
any of the uncouth proceedings of it, it is a Mortall
Sinne to him, and he is presently interrupted, and af-
fronted both with disdainfull words and looks, And
told, We are satisfied with our Authority that are your
Judges, (So are Theeves upon the high way satisfied
with their Authority that rob and murder us by Gods
Providence and permission.) It is upon Gods Authority
and the Kingdoms (yet what they do is against the will
of God revealed in his Scriptures and against the
known establithed Lawes, Statutes and continuall
Practise of the Kingdom:) Which Authority commands
you in the name of the People of England to answer them. (Yet
at least) 9. Parts of 10. of the People so much abhor
these and other their Practises,that every mans mouth
speakes against them with bitter curses and reproaches,

See the Trial
of King Char.
I. in the Hi-
story of Inde-
pendency 2.
Part. pag. 91.
&c.

F to

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42 The History of Independency. Part III.

to restrain which they have minted Acts of New
Treasons, to make men Offenders, nay Traitors,
even for bare words; and erected this bloudy, illegall
Theater, The High Court (so called, for its High
Injustice) as a Spanish Inquisition over them, and every
mans hand would be about their eares, did they not
keep an Army of Janisaries to suppresse them.) Their
Authority they do avow to the whole World, that the whole
Kingdom are to rest satisfied therewith. (You see here a
Whip and a Bell provided to keep the whole King-
dom in awe: the declared Supreme power of their So-
veraign Lord the People, must resign their known
Lawes to their Trustees, their Representatives in
Parliament, and take New Lawes from their Arbi-
trary votes, or woe to be to their Necks and Shoulders.)
I must interrupt you, what you do is not agreeable to the Pro-
ceedings of any Court of Justice. You are about to enter into
Argument and dispute concerning the Authority of this
Court: before whom you appear as a Prisoner; you may not
dispute the Authority of this Court: nor will any Court give
way to it, you are to submit to it. (It is not safe co confute
a lie told with Authority. Yet if a man be Endited of
Treason or Felony in the Court of Common Pleas, a
man may Demur to and dispute the Juristdiction of that
Court; because it is not in Criminall Causes, Compe-
tens Forum; nor the Judges Competent Judges: every
man, and every cause must be tried Suo Foro, non Alie-
no. So if a Peer be arraigned in the Kings Bench.
And for this upstart, unpresidented High Court, it is
no Court of Judicature at all; as being erected with-
out lawfull Authority; Consisting of Incompetent
Judges: no Records belonging to it: and tending
to disinherit, and disfranchise all the People of Eng-

land:

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Part III. The History of Independency. 43

land, and to murder them.) You may not dispute the Juris-
diction of the Supreme and Highest authority of England
from which there is no Appeal, The votes of the Commons of
England assembled in Parliament is the Reason of the King-
dom. (Oh Brutish, irrationall Kingdom! Where 40, or
50, Anabaptisticall Members, the Dregs and lees of
the House of Commons, after all the best and since-
rest (7. Parts of 8.) had been racked and purged out at
the Bunghole by Cromwell the Bruer and Pride his Dray-
man shall be called the Reason and Law of the Land.
This confirmes the truth of what King Charles I.
Objected to the Parliament (whereof I have formerly
spoken) That they disposed of the Subjects Lives and For-
tunes, by their own Votes, against the known Laws of
the Land. But that there should be no Appeal to their
declared Sovereign Lord the People, fom their
subordinate Trustees in Parliament is wonderfull;
Considering that in all Governments the last Appeal
is ever the Highest and most Absolute Power. But it
may be they will be the Peoples Trustees in spight of
their Teeth, and by the power of the Sword; and
so free themselves from rendring any account of their
Stewardship. You may not demure to the Jurisdiction
of the Court. If you do, they let you know, that they outr-
rule your Demurrer, and affirm their own Jurisdiction.
Reason is not to be heard against the Highest Jurisdiction, the
Commons of Engl.make a direct and positive Answer, either
by denying or confessing, and put in immediately an issuable
Plea, Guilty, or Not Guilty of the Charge, or we will record
your Default and Contumacy, and by an implicite confession
take you Guilty proconfesso, and immediately give Judgement
against you. This (as I told you before) is it that blanches
the Deer into the Toile, But God deliver us from that

F2 Jurisdiction

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44 The History of Independency. Part III.

Jurisdiction that is too high to hear Reason: and that o-
verrules Demurrers before they be heard.) I have told
you as much of the proceedings of this Court as the No-
velty, Obscurity, Uncertainty and confusion thereof will
give me leave. Let me now (by way of overplus) give
you the great dangers and Slavery that will befall all
sorts of People if they tamely and cowardly suffer them-
selves to be deprived of their antient, Legall Trialls
by Enditement and Juries of the Neighbourhood: (then
which the whole world cannot boast of a more equall
way) and suffer their Lives, Liberties, Estates and Ho-
nours to be subject to an Arbitrary, Extrajudiciall con-
venticle of Bloud, (Cromwells New Slaughterhouse) which
hach neither Law, Justice, Conscience, Reason, Presi-
sident or Authority Divine or Humane, but onely the
pretended Parliaments irrationall Votes and the Po-
wer of the Sword to maintain it, which will prove
a Cittadell over their Liberties, a Snare to
their Estates, a Deadfall to their Lives, and Scan-
dall to their honors and Families, if not timely oppo-
sed.

1. By the Law The Enditement must specifie what the
Treason is, and against what Person committed; As, against
our Soveraign Lord the King his Crown and Dignity. But in
the said Articles of Impeachment, it is alleaged that
the Treason is committed against the present Govern-
ment; or, against the Keepers of the Liberties of Eng-
land; but in this dead-water our turning Tide be-
tween the old Regall, and this New, unknown
Government; no man knows how to do, look or
speak for fear of contradicting the guilt of an Inter-
pretative Treason, upon the said two Statutes for
New Treasons, and before this boundless, lawless New

Court

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Part III. The History of Independency. 45

Court. And to say that Treason is committed against a Go-
vernment in abstracto is Non-sence: it must be said that
Treason is committed against the Governors in Concreto, na-
ming them. For there being, no Treason without Allegeance;
And Allegeance being a personall Obligation, must be due
from a certain known Person, to a certain known Person or
persons. And therefore the Keepers of the Liberties of Eng-
land, not being yet made particularly known to us, who they
are, or where to be found, or what their power, Duty or Office
is; and being not tied by any set Oath to deal well and truly
with the People, (as Kings are by their Coronation Oath; for
if the stipulation be not mutuall, the People are Slaves, not
Subjects.) Since the Duties of Allegeance and Protecti-
on; Obedience and Command being reciprocall (as they
must needs be, the Parliament having declared the Su-
preme power to be in the People; they must not go-
vern them Mero Imperio (by Lawless votes) like Turkish
Tartarian and Russian Slaves.) I cannot owe nor perform
Allegiance to those individua vaga (the Keepers or Gao-
lers of our Liberties) nor to an Utopian Commonwealth.
And without Allegeance no Treason: for in all En-
ditements of High Treason it must be alleaged, That
the Accused did (Proditoriè) perpetrate such and such
Crimes; Contra debitam Allegantiam suam. And the word
(Proditoriè) signifies the betraying of a Trust: According
to the Proverb; In Trust, is Treason. Now where there is
no profession of Allegeance, there is no Acceptance of a Trust,
no man can trust me against my will. I was born under a
Regall Government, have read the Stat. Recogniti-
on, 1. Jac. Have taken (as well as others) the Legall
Oathes of Allegeance, Obedience and Supremacy
to the King his Heires and Lawfull Successors, imposed
upon me by lawfull Authority, and from which no

power

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46 The History of Independency. Part III.

power on Earth can absolve me: and so much I at-
test in the Oath of Supremacy. And how I should
now come (after the New Moduling of the Parlia-
ment and Kingdom by Souldiers) to owe Allegeance
to Cromwell the Bruer, Scot the Bruers Clerk, Bradshaw
the Murderous Petty fogger, Sir Henry Mildmay the Court
Pander and Projector, Holland the Linkeboy, John Trench-
arde that packed a Committee (in which he was a
Member) and voted to himself 2000l. Love the
super-inducted Six Clerk, or any other of that Self-
created Authority, let them sheath their swords and tell
me.

See the Addi-
tionall Post-
script at the
Latter end of
this Book.

2. A Enditement must certainly allege the Offence com-
mitted, in respect of the Matter, Time, Place, Persons and o-
ther Circumstances; But in these Articles of Impeach-
ment they tie themselves to no such certainties; Where-
by the Accused knows not at what ward to lie, nor how
to make his Defence. The Circumstances of Time,
Place and Persons, being the assured Testimony of all
Humane Actions. This Lawless Court leaves him in a
vast Sea of Troubles, without Pole-star, card or compass
to steer by: The Arbitrary Opinions of this Court, de-
clared upon emergent Occasions, being a false-hearted
Pilot to him. These Judges not being of Counsel with the
Prisoner, as our Legall Judges are, who swear to do Justice
according to the Law.

3. By the Law, any learned man that I present, may inform
the Court, for the benefit of the Prisoner, of any thing that
may make the proceedings erronious. Cooks 3. Instit. p.29.
But the whole Proceedings of this Court, their Meeting
and sitting being erroneous, here is no room left tor Ad-
monition, To take away their errours, is to take away
Court.

4. Cooks

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Part III. The History of Independency. 47

4 Cooks 2. Instit. pag. 51. expounding the 19. chapter
of Magna Charta hath these words. All Commissions
ought to be grounded upon the Laws of England (not upon
the votes of the House of Commons) and to contain this
Clause in them. To do what is just according to the Laws and
Customs of England, (not to execute the severall powers
given them by the Act 26. March 1650) and a little fur-
ther he saith, Agains this Antient and Fundamentall
Law I find an Act of Parliament made 11. Hen. VII. c. 3.
That as well Justices of Assize as Justices of the Peace,
without any finding or presentment by the verdict of
12 men, upon a bare Information for the King before
them made, should have full power and Authority by
their Discretions, to hear and determine all Offences
and Contempts committed, or done by any Person or
Persons, against the Form, Ordinance or effect of
any Statute made and not repealed; saving Treason,
Murder or Felony. By colour of which Act shaking
this Fundamentall Law, it is not credible what horri-
ble Oppressions and Exactions, to the undoing of in-
finite number of People, were Committed by Emp-
son and Dudley Justices of the Peace throughout England.
And upon this unjust and injurious Act, a New Office was
erected (as commonly in like cases it falleth out) and they
made Masters of the Kings Forfeitures. (I hear such an other
Office will be erected, when the Novelty of this wonderfull
High Court is lessened, and the yoke thereof throughly selted
upon the Peoples Necks) Yet observe the said Act. 11. Hen.
VII. c. 3. went not so high as to Treason, Murder and Fe-
lony. But by the Stat. 1. Hen. VIII. chap. 6. the said Act
11. Hen. VII. was repealed, and the reason given, For that
by force of the said Act it was manifestly known;
That many sinister and crafty, forged and feigned In-

formations

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48 The History of Independency. Part III.

formations had been pursued against many of the Kings
subjects, to their great dammage and wrongfull vexation.
The ill successe hereof (saith Cook) and the fearfull end of
these two Oppressors, (who were Endited and suffered
for High Treason for all the said Act 11. Hen. VII. pas-
sed in a full and Free Parliament. Cooks 3. Instit. p.208.)
Should admonish Parliaments, That instead of this Ordi-
nary and precious Triall by the Law of the Land, they bring
not in Absolute and Partiall Trialls by Discretion. And
in his 4. Instit. page 41. Cook saith, Let Parliaments
leave all Causes to be measured by the golden and streight-
ned wand of the Law, and not the uncertain and crooked
cord of Discretion: for it is not almost Credible to foresee,
when any Maxime or Fundamentall Law of the Land
is altered, what dangerous inconveniences will follow; as
appeares by this unjust and strange Act 11. Henry VII.
chap. 3.

5. This Parliament alwaies declared they bore Arms a-
gainst the King, in Defence of the Laws, Liberties and Pro-
perties of the People. This way ran the whole current of
their Declarations. And they alwaies reckoned Magna Char-
ta, the Petition of Right and Trialls by Juries, the Chief
and most Fundamentall of all our Laws. See their 1. Remon-
srrance: Therefore in their 7. Article against Strafford. They
charged him with High Treason, for giving Judgements a-
gainst mens Estates without Trials by Juries. Much aggrava-
ted by Master St. Iohns in his aforesaid Argument against
Strafford. And for the better preservation of Legall
Trialls by Juries, it is provided in the Bill of At-
tainder of Strafford, that the case of the same Earl
should not be used as a President in succeeding
times. And in two of this Parliaments late Declarations 9.
Febr. and 17. March 1648. The Parliament promiseth,

To

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Part III. The History of Independency. 49

To preserve and keep the fundamental Laws of the land,
for preservation of the lives, liberties and properties of
the people, with all things incident thereto. Now to erect
an arbitrary lawless high Court, to give judgment against
mens lives and estates, and attain their bloods, without
Enditement found by a grand Jury and a trial by a Jury
of twelve sworn men vicineto, is a far fouler breach of
trust in them against their Sovereign Lords the People,
than all they charged the King withall, and a far higher
act of tyranny and injustice than either the late King, or
Empson and Dudley, or Strafford were accused of. But if
they alledg, They do not put down Juries in general, but
only in some particular mens cases and upon necessity.
I answer, that we are all born Freemen of England alike,
That our ancient known Laws, Laws Courts and trials by
Juries are our inheritance equal alike to all. And one party
or part of the people ought not to be disherited, disfran-
chised or forejudged no more than another. No man can be
said guilty of any crime until he be legally convicted and
sentenced, the Law must first go upon him and condemn
him, Ubi lex non distinguit, non est distinguendum. If we
do not live all under one Law and form of Justice, we are
not all of one Commonwealth. See the aforementioned
Gentlemans Argument, against the Special Commission
of the Court of York. For Necessity; our_present power is
under none, but the fears and terrors of their own guilty
consciences. No apparence nor probability of any ene-
my by their own confession; nor can they plead in their
excuse, a necessity which they have brought upon them-
selves. I know some Kings have, de facto, used the Ani-
madversion of the Sword to cut off such powerful and
dangerous persons as could not safely be called to ac-
count by the Law; so dyed Joab, Adonijah, &c. for which

G the

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50 The History of Independency. Part III.

the rule is, Neminem adeo eminere debere, legibus in-
terrogari nequeat; qui jus aequum ferre non potest, in
eum vim haud injustam fore. No man ought to advance
himself above the powers of the Law; he that will not
submit to equal right, if he be cut off by violence, suf-
fers no wrong; but this is to be understood of the emi-
nency and greatness of the person, not of the greatness of
the crime, whereof no man is to be forejudged, because a
great crime may prove a great calumny, until a legal trial
have adjudged it. But there is no person in England so
eminent for power or Authority, but that the least of
Bradshaws Ban-dogs can drive him to the Slaughter-
house, & make him offer his throat to Keeble. Therefore
Animadverso Gladii, if at any time lawful, is now un-
lawful. To make great examples upon men of little power,
is great injustice. But the way of this Court is not A-
nimodversio per Gladium. It is a Mocking, a Counter-
feiting, an Adulterating and Alchimisting of Justice; it
is to falsifie her weights and ballance, and steal her
sword to commit Murder withall.

See Col.
Andrews
three An-
swers.

6. By the known Laws Matter of fact is intrusted to the
Jury, matter of Law to the Judges, to prevent all errours,
combinations and partiallities. The Judges are sworn to
do justice according to the Law; the Jury are sworn to
finde according to their evidence. But in this high Court
the Commissioners or Judges are all packed, confiding
men, chosen by and out of one party, to destroy all of
a different party. They usurp the office of Judges, not be-
ing sworn to deal well and lawfully with the people (as by
the said Stat. 18. Ed. 3.) nor to do justice according to the
Law. But only to execute powers given by the said Act,
26. Mar. 1650. And they arrogate (as Jury-men) to be
Triers of the Fact without being sworn, to find according

to

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Part III. The History of Independency. 51

to evidence. So that they are Judges, Juries, and parties,
(& for ease of their tender consciences (without any Oath
of Indifferency. A most excellent Compendium of Op-
pression. They may go to the Devil for injustice, and
not be forsworn. Great is the priviledge of the godly.

7. The prisoner may except against his Jurors, either a-
gainst the Array, of the Sheriff or Bayly impannelling
the Jury, be not wholly disingaged and indifferent, both
to the cause, and to the parties, prosecuting, and prosecu-
ted; or against the Poll, he may challenge 35 peremptorily,
& as many more as he can render legal cause of challenge
for. As for defect of estate, or other abilities, or for partia-
lity, Disaffection, Engagement, Infamy. But this Array of
Jury-men Judges (a Medley so new we know not how
to express it) though picked and empannelled by an en-
gaged remainder of the Commons, and abnoxious to all
exceptions, must not be challenged, their backs are too
much galled to indure the least touch. Take heed you
scandal not the Court (cries Mr. Atturney) See Col. An-
drews three Answers.

8. Many exceptions in a legal Trial, are allowed a-
gainst Imperfections, Uncertainties and Illegallities in
the Bill of Endictment, for the advantage of the Priso-
ner. But no Exceptions are allowed against these ille-
gal Articles of Impeachment, which are made uncer-
tain, intricate and obscure and ambiguous purposely
to puzle, confound and entangle the Respondent.

Where there
is but one
witness, it
shall be tried
by combate
before the
Earl Martial
Cooke, ibidem.

9. By the Law a bill of Endictment must have two full
and clear lawful witnesses to every considerable Matter
of Fact, both at finding the Bill and at the Trial. Cooks
3. Instit. pag. 25, 26. And Probationes debent esse luce
clariores. Proofs must be as clear as the Sun, not groun-
ded upon Inferences, Presumptions, Probabilities. And
the Prisoner must be Provablement Attaint, saith the

G2 Stat.

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52 The History of Independency. Part III.

Stat. 25. Ed. 3. chap. 2. Cooks 3. Instit. pag. 12. The word
(attainted) shews he must be legally proceeded with; not by
absolute power as formerly had been used (and as is now
used by this bloody High Court) But before these Slaugh-
ter-men of the High Court, all manner of witnesses, Le-
gal or Illegal, one or two, sworn or not sworn, or ap-
parently forsworn and suborned, and all proofs clear
or not clear are sufficient. The Prisoner is sent thither
foredoomed, and hath its deaths Mark, his fate in his
forehead.

10. The said Act 26. March 1650. carries two faces
under one hood, and looks backwards as well as for-
wards. To facts precedent as well as subsequent the said
Act, contrary to the nature of all Laws, whose office is
to prohibit it before it punish, to warn before it strike.
Where St. Paul defineth Sin to be the breach of Com-
mandement, or Law. I had not known Sin but by the
Law. The Law must therefore be precedent to the
Offence. But these Acts are not Laws to admonish, but
Lime-twigs and Traps to ensnare and catch men. See
Col. Andrews 3. Answers at the latter end of this book.

Fourthly and lastly, I am to consider, To what end
and purpose this new invented High Court is constituted
and appointed? Concerning which see a Letter dated
6. June 1650. Stilo veteri, from the Hague, (suppo-
sed to be Walter Stricklands, the Parliaments Agent
there) as I finde in Walter Frosts brief Relations of
some affairs and transactions, &c. from Tuesday June
11. to June 18. 1650. wherein the Epistoler hath these
words, "One piece of the cure (viz. of the dangers
"that threaten your new State) must be Phlebotomy, but
"then you must begin before Decumbency, and then it
"wil be facile to prevent danger, &c. they are here most
"of all afraid of your high Court of Justice, which they

"doubt

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Part III. The History of Independency. 53

doubt may much discourage their party, they wish"
you would not renew the power thereof, but let it"
expire: then they think that after Michaelmas they"
may expect Assistance with you. And indeed that"
Court is of almost as much use to you as an Army:"
and will prevent the rising of as many Enemies, as the"
other will destroy, only you must be sure to execute"
Justice there with all severity. A few of the first stir-"
rers taken away, by the power thereof, without re-"
spect to cousin or Countrey, will keep all the rest"
quiet. But whosoever that Court condemns, let them"
be as already dead, &c. But let them be most free in"
cutting the vena Coephalica (that is the Presbyterian"
Party) for the Basilica (or Royal Party) will be la-"
tent. The Median (or Levellers) would be spared as"
much as may be, that the body be not too much ema-"
ciated. Besides, the blood is most corrupt in the Coe-"
phalicks (or Presbyterians) and is the very causa"
continens of your disease. You need not fear to take"
freely of this vein, &c. Here you set this State Moun-
tebank gives you the use and application of this cor-
rasive. (The High Shambles of Justice) so fully that I
shall not need to comment upon it. And in the latter
end of a Letter from Cromwel, dated from Dunbar,
4. Sept. 1650. (as I find it in Politicus) speaking of his
new purchased victory over the Scots, Cromwel saith;
God puts it more and more into your hands to improve
your power, (viz. your absolute Authority) we pray
own his People more and more, (that is, the Army) they
are the Chariots and Horsmen of Israel (of the King-
dom of the Saints) disown your selves but own your Au-
thority (which you enjoy under the Protection of the
Army, your Lords Paramount) and improve it; to Curb
the Proud and Insolent, &c. (That is, all men of dif-

G3 ferent

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54 The History of Independency. Part III.

ferent opinions and parties from them, that will not
engage to be true and owe Allegiance to the Kingdom
of the Saints, and resign their Laws, Liberties and pro-
perties to their lusts and wills.) That I have not mis-
construed the contents of Cromwels mystical letter, will
appear by a Discourse in the same Politicus, Numb. 17.
from Thursday Sept. 26. to Octob. 3. 1650. Where (ac-
cording to his custom) delivering forth State-Oracles
to the people, He tels them in plain English, That after
the Confusions of a Civil War, there is a necessity of some
Settlement, and it cannot be imagined (the Controversie
being determined by the Sword) that the Conquerours
should submit to the conquered, though more in number
than themselves. Nor are they obliged to settle the Go-
vernment again according to the former Laws and Con-
stitutions, but may erect such a form as they themselves
conceive most convenient for their own preservation.
For after a Civil War the written Laws (viz. establish-
ed Laws of the Nation) are of no force, but onely those
which are not written. (And a little after) the King ha-
ving by Right of war lost his share and interest in Au-
thority and power, being conquered, by Right of war
the whole must needs reside in that part of the People
which prevailed over him: There being no middle pow-
er to make any claim, and so the whole Right of Kingly
Authority in England being by Military Decision resolv-
ed into the prevailing Party, what Government soever
it pleaseth them to erect, is as valid de Jure, as if it had
the consent of the whole Body of the people. That he
should affirm, That after a Civil War the Established
Laws cease, is so gross a piece of ignorance, that there
is hardly any History extant but confutes it: After our
Barons war, and the Civil War between York and Lan-

caster,

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Part III. The History of Independency. 55

caster, Our Established Laws flourished; so did they
after the Norman Conquest. How many Civil Wars in
France have left their Laws nntouched? That of the
Holy Leage lasted 40 years; Belgia keeps her Laws
maugre her intestine Wars: What is now become of
the Parliaments declared Supreme Power and Sove-
raign Lord the People, the Original and Fountain of all
just power? are they not all here proclamed Ear-bored
slaves for ever? But I had thought that an Army of
Mercenary Saints raised, payed and commissioned by
the Parliament to defend the Religion, Laws, Liberties
and Properties of the people, and the Kings Crowns and
Dignity, according to the Protestation and Covenant,
and the Parliaments Declarations, would not have
made such carnal and hypocritical use of their Victo-
ries gotten by Gods providence and the peoples mo-
ney, as to destroy our known Laws, Liberties and Pro-
perties, and claim by Conquest, and impose their own
lusts for Laws upon us, thereby rendring themselves
Rebels against their God, their King and Countrey.
Nor was it ever the State of the Quarrel between the
King and Parliament whose slaves the people should
be? Or whether we should have one King, Governing
by the known established Laws? or 40 Tyrants Go-
verning by their own lusts and arbitrary votes, against
our written Laws? Nor can the success make n Con-
quest just, unless the cause of the war were originally
just, and the prosecution thereof justly managed. As
1. To vindicate a Just Claim and Title. 2. Ad res re-
petenaas. To recover Damages wrongfully sustained.
3. To repel an injury done to your self, or to your
Ally in league with you.

The ultimate end of these wicked endeavors is, To

establish

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56 The History of Independency. Part III.

establish and cement with the blood of their adver-
saries, the Kingdom of the Brambles or Saints, al-
ready founded in blood, by cutting of all such by
their said New Acts of Treason and High Court of
Justice, as will not bow their Necks to their Iron
yoke. Which appears more clearly in an Additio-
nal Act giving farther power to the said High Court,
(dated 27. Aug. 1650.) To hear and determine all
Misprisions or Concealments of Treasons mentioned or
contained in any of the said Articles or Acts of Par-
liaments: And to inflict such punishments, and award
such execution, as by the Laws and Statutes have been,
or may be inflicted. This Law (if I miscal it not) con-
sidering how they have multiplied Treasons by their said
3 New Statutes, 14. May, 17 July 1649. and 26. March
1650. Whereby bare words without Act are made High
Treason, contrary to those well approved Statutes, 25
Edw. 3. chap. 2. 1 Hen. 4. chap. 10. 1 Edw. 6. chap.
12. 1 Mariae, chap. 1. Cook 3 Instit. saith, That words
may make an Heretick not a Traitor, Chap. High
Treason. And the Scripture denounceth a woe to him;
That maketh a man an Offender for a word, is one of the
cruelst, and most generally dangerons and entrapping
that ever was made. For hereby all relations, Husband and
Wife, Parents and Children, Brothers and Sisters, Masters
and Servants, are all injoyned to be informers against,
and accusers of one another (which is to take upon them
the Devils office (and be Accusatores Fratrum) for light
and vain words spoken only in passion or ignorantly: or
else they fall into the jaws of this all-devouring Court,
from whence, no more then from hell, there is no redem-
ption) for Misprision of Treason: the Penalty whereof is
loss of liberty and lands for life, and of goods for ever,

Who

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Part III. The History of Independency. 57

Who can imagine lesse hereby, but that our Statists in-
tend to raise a yearly revenue by this Court, by Forfeitures
and Confiscations: and to erect an Office of Master of the
States Forfeitures: like Empsons and Dudleys in Hen. VII.
time aforesaid. And so continue this Court, to weede
out the Ancient inhabitants Canaanites and Amalekites.
The said Additional Act, 27. Aug. 1650. concludes,
That the said High Court shall not Examine, Try or
proceed against any person other then such as shall be
first by name appointed by the Parliament or Councel
of State. It should seem the Parliament and Councel of
State supply the want of a Grand Inquest; and their Ap-
pointment is in stead of a Bill of Enditement found and
presented. As Assuredly as the High Inquisition was erected
in Spain by Ferdinando and Isabella to extirpate the Maho-
metan Moors: And the said Councel of Blood in the Lowe
Countreys, by the Duke D'Alva to weed out the Lutherans,
Calvinists and Anabaptists. So is this High Court set up
in England, to root out the Royallists, Presbyterians and Le-
vellers; and generally all that will not wholly concur with
our independents in practice and Opinions. As will mani-
festly appear when their work is done in Scotland, which
will soon be effected: the more zealous Scots being now
as ready to sell their Kingdom; as they were formerly
to sell their King.

10. Decemb.
1650. A New
Act passed, for
establishing
an High Court
of Justice in
Norfolk, Suf-
folk, Hunting-
ton, Cambridge,
Lincoln, and
the Isle of Ely,
&c. And so by
degrees this
gangrene shall
enlarge it self
all the King-
dom over.

I. Conclude therefore upon the Reasons aforesaid;
That because the Commissioners or Judges are not
sworn to do Justice according to the Laws: and are par-
ties pre-ingaged (as well as their Masters, and pay Ma-
sters, that named them) ignorant men, and of vild & base
professions, uncapable of places of Judicature, Neces-
sitous Persons, and some of them Scandalous, and the
High Court it self hath neither Law, President, nor any

H just

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58 The History of Independency. Part III.

just Authority for constituting thereof or the Judges
therein. And all proceedings before them are directly
Contrary to Magna Charta, the Statute 25. Edw. III.
chap. 2. The Petition of Right and all other known
and Established Laws, and the continual Practice of our
Nations; and (in many points) contrary to the Law of
God and the Dictates of Right Reason. That these
Commissioners are Incompetent Judges; Their Court an
Extrajudicial Conventicle, tending to disinherit, disfran-
chise and enslave all the Freemen of the Nation; and all
Proceedings before them are void, and coram non Judice.
See Col. Andrews 3. Answers, The said High Court
of Justice to be a meer bloody Theater of Murder and
Oppression. It being against Common Reason, and all
Laws divine and humane, That any man should be
Iudge in his own Cause. Neminem posse in sua causa
Iudicem esse. Is the Rule in Law. But this Parliament
and Councel of State know they cannot establish and confirm
their usurped Tyranny, (The Kingdom of the Saints,) eate
up the People with Taxes, and share publike Lands, Offices,
and Mony among themselves, enslave the Nation to their
Lawless wills and pleasures, but by cutting off the most able
and active men of all opposite parties by some such expedient
as this Arbitrary Lawless High Court is. The old Legal
way by Iuries (being found by Iohn Lilbourns Trial) to
be neither sure enough nor speedy enough to do their work,
A Butcher-Rowe of Iudges being easier packed, then a
Jury who may be challenged. So that it fareth with the
People of England, as with a Traveller fallen into the hands
of Thieves. First, they take away his Purse. And then, to se-
cure themselves, they take away his life. So they Robbe
him by Providence, And then Murder him by Necessity.
And (to bring in their third insisting Principle) they may

al-

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Part III. The History of Independency. 59

alleage; They did all this upon Honest intentions; to enrich
the Saints, and rob the Egyptians. With these 3. Princi-
ples they Instifie all their Villanies. Which is an Inven-
tion so meerly their own, That the Devil must acknow-
ledge: They have propagated his Kingdom of Sinne
and Death more by their impudent Iustifications, then
by their Turbulent Actions.

An Additional Postscript.

SInce the Conclusion of the Premises hath hapned,
the Trial of that worthy Knight Sir Iohn Seawell,
of the County of Sommerfet: Who having bin often
before this Court, hath so well defended himself, and
wiped off all Objections, and made such good use of the
Articles of the Rendition of Excester, that in the Opi-
nion of all men, and in despite of their ensnaring Acts
for New Treasons, he cannot be adjudged guilty of any
Treason, Old or New, which was the Sum and Com-
plement of the Charge against him. Wherefore the
Court put off his Trial for a longer time, to hunt for
New Crimes and Witnesses against him. At last came
into the Court as a witness Iohn Ashe, notwithstanding
he is a Party many wayes engaged against him. I. Ashe
is a Parliament-man; in which capacity Sir Iohn Stowel
bore Arms for the King against him. 2. Ashe as a Parlia-
ment-man is one of the constitutors of this murderous
Court and the Judges thereof, and therefore their Crea-
tures (who expect rewards from them) bear a more aw-
ful respect to his testimony, then a witnes ought to have
from Iudges. 3. It is publicly known that Ashe hath

A2 begged

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60 The History of Independency. Part III.

begged of the House a great summe of Mony out of
the Composition for, or Confiscation of Sir Iohns E-
state. And 4ly. It is known to many, That during
Sir Iohns many years Imprisonment Ashe often labour-
ed with Sir Iohn to sell unto him for 4000.l. a Parcel
of Land which cost Sir Iohn above 10000 l. promising
him to passe his Composition at an easie rate, to pro-
cure his enlargement from Prison, and send him home
in peace and quiet if he granted his desire. But al-
though with all their malicious diligence, they cannot
finde him guilty of High Treason, yet their Articles
of Impeachment Charge him in general Tearms with
Treason, Murder, Felony, and other High Crimes and
Misdemeanors; and amasse together such a Sozites and
an Accumulation of Offences, as if one fail another
shall hit right to make him punishable in one kinde or
other: such an hailshot charge cannot wholly misse;
either they will have life, estate, or both; Contrary
to the nature of all Enditements and Criminal Charges
whatsoever; which ought to be particular, clear and
certain (Lamb. page 487.) that the accused may know
for what Crime he puts himself upon issue; But this
Court (as High as it is) not being Constituted a Court
of Record; the Prisoner, and those that are concern-
ed in him, can have no Record to resort to either.
1. To demand a Writ of Errour, in Case of Erroneous
Judgment. 2. To ground a plea of Auterfois Ac-
quite, in case of New Question for the same fact.
3ly, Or to demand an enlargement upon Acquital.
Or 4ly, To demand a writ of conspiracy, against such as
have combined to betray the life of an innocent man.
Whereby it follows, That this prodigious Court hath
power only to Condemn and Execute; not to Acquit

and

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Part III. The History of Independency. 61

and give Enlargement; Contrary to the Nature of all
Courts of Judicature, and of Justice itself it is there-
fore a meer Slaughter—house to Commit Free-State
Murders in, without, nay against Law and Justice: and
not a Court of Judicature; to condemne the Nocent,
and absolve the Innocent. And the Iudges of this Court
runne Parallel with their Father the Devill; who is
ever the Minister of Gods wrath and fury, never of his
Mercy.

H3 The

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Part II. The History of Independency. 63

The humble Answer of Coll. Euse-
bius Andrews Esquire, to the Pro-
ceedings against him before the
Honourable, The high Court of
Justice 1650.

THe said Respondent (with favour of this Honour-
able Court) reserving & praying to be allowed the
benefit and liberty of making farther Answer, if it shall
be adjudged necessary, offereth to this Honorable Court
That by the Stat. or Charter stiled Magna Charta,
(which is the Fundamental Law, and ought to be the
Standard of the Laws of England, Confirmed above
30. times, and yet unrepealed, it is in the 29. Chapter
thereof granted and enacted,

1. That no Freeman shall be taken or imprisoned, or be
disseised of his Freehold or Liberties, or Free Customs;
or be out-lawed or exiled, or any other ways destroyed,
Nor we shall not pass upon him but by a lawful Iudg-
ment of his Peers, or by the Law of the Land.

2. We shall sell to no man, nor deferr to any man Iustice
or Right.

By the Stat. 42. Ed. III chap III. The Great Charter
is commanded to be kept in all points: and it is enacted.

That if any Stat. be made to the contrary, That shall be
holden for none.

By the Act 26. March 1650. entituled, An Act for
esablishing, An High Court of Iustice, Power is given to
this Court; To Try, Condemn, and cause execution of death
to be done, upon the Freemen of England, according as the
Major number of any 12. of the Members thereof shall
judge to appertain to Justice.

And

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64 The History of Independency. Part III.

And therupon the Respondent doth humbly inferre,
and affirme that the Tenor of the said Act is diametri—
cally opposite to, and inconsistent with the said Great
Charter. And is therefore by the said recited Stat.
42. Ed. III to be holden for none.

Secondly, That it can with no more Reason, Equity
of Justice, hold the reputation or value of a Law, (if
the said Stat. had not bin) then if (contrary to the 2d.
Clause of the 29. chap of Magna Charta) it had bin
also enacted, That Iustice and Right shall be deferred
to all Freemen, and sould to all that will buy it.

By the Petition of Right, 3. Car. upon premising:
That contrary to the Great Charter, Trials and Execu-
tions had bin had and done against the Subjects, by
Commissions Martial, &c. it was therby prayed, and by
Commnission enacted. That:

1. No Commissions of the like nature might be thence-
forth issued, &c.

2. To prevent least any of the Subjects should be put to
death, Contrary to the Laws and Franchises of the Land.

The Respondent hereupon humbly observeth; and
affirmeth: That this Court (though under a different stile)
in nature, and in the Proceedings therby directed, the same
with a Commission Martial. The Freemen thereby being
to be tried for life, and adjudged Ly the Opinion of the Ma-
jor Number of the Commissioners sitting, as in Courts of
Commissioners Martiall was practised, and was agreeable
to their constitution: And consequently against the Petition
of Right: in which he, and all the Freemen of England
(if it be granted there be any such) hath and have Right
and Interest, & he humbly claimes his right accordingly.

By the Declarations of this Parliament, Dec. and Jan. 17.
1641. The benefit of the Laws, and the ordinary course
of Justice are the Subjects Birthright.

By

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Part III. The History of Independency. 56

By the Declaration, 13 July. 6. 1. Octob. 1642. The Pro-
secution of the Laws, and due administration of Iustice, are
owned to be the justifying cause of the War, and the end of the
Parliaments Affaires managed by their Swords and Counsels,
and Gods curse is by them imprecated, in case they should ever
decline those ends.

By the Declaration 17. April 1646. Promise was
made not to interrupt the Course of Justice, in the ordina-
ry Courts.

By the Ordinance or Votes of Non-addresses, Jan. 1648. It
is assured, That, though they lay aside the King; yet they will
govern by the Laws, and not interrupt the course of Justice, in
the ordinary Courts thereof.*

And therfore this Respondent humbly averreth and af-
firmeth, That the constitution of this Court, is a breach
of the publique Faith of the Parliament exhibited and
pledged in those Declarations and Votes to the Freemen of
England.

And upon the whole matter, the Respondent (saving as
aforesaid) doth affirme for Law and claimeth as is Right.
That:

1. This Court in defect of the validity of the said Act,
by which it is constituted, hath no power to pro-
ceed against him, or so presse him to a further Answer.

2. That by vertue of Magna Charta, The Petition of
Right, and the before recited Declarations, he
ought not to be proceeded against in this Court, but
by an ordinary Court of Iustice, and to be tried by
his Peers.

*They forget the 2. Declarations
9. Febr. 17. March 1648.

And humbly prayeth: That this his present
Answer and Salvo may be accepted
and registred.

Eusebius Andrewes.

I The

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66 The History of Independency. Part III.

The Second Answer of Col. Eusebius
Andrews Esquire, To the Hono-
rable, The High Court of Justice.
1650.

THe said Respondent (with the Favour of this Honorable
Court) reserving and praying to be allowed the Bene-
fit, and Liberty of making further Answer, if it shall be
Necessary. In all humblenesse for the present Answer of-
fereth to this Honourable Court.

That by the Letter and genuine sense of the Act, entituled
An Act for establishing an High Court of Justice. The said
Court is not qualified to try a Freeman of England, (such as the
Respondent averreth himself to be) for life in case of Treason.
For that: 1. The said Court is not constituted a Court of Record;
neither hath Commission returnable into a Court of Record.

So that: 1. The State cannot upon the Record (and but upon
Record cannot at all) have that account of their Freemen,
which Kings were wont to have of their Subjects, and States
exact else where at the hands of their Ministers of Justice.

2. The Freemen, and those who are or may be concerned in him,
can have no Record to resort to, by which to preserve the Rights
due to him and them respestively. viz.

1. A writ of Errour in case of erronious judgment.

2. A plea of Auterfoies acquit, in case of new question for
the same fact.

3. An Enlargement upon Acquitall.

4. A Writ of Conspiracy, not to be brought until Acquital,
against those who have practised to betray the life of the
Respondent.

1. The

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Part III. The History of Independency. 67

1. The writ of Errour is due by Presidents.
Paschae 39. Ed. III. John of Gaunts Case Rot. Par-
liament 4 Ed. III. Num. 13. Count de Arundells Case.
Rot. Parliament 49. Ed. III Num. 23. Sr. John of Lees Case

2. Auterfois acquit appears by:
Wetherell and Darlois Case. 4. Rep. 43. Eliz Vaux his
Case. 4. Rep. 33. Eliz.

3. The Enlargement appears by:
Stat 14. Hen. IV. chap. 1. Diers Reports fol. 121.
The year book of Ed. IV. 10. fol. 19.

4. The writ of Conspiracy, by:
The Poulters Case. 9, Rep. fol. 55.

This Court is to determine at a day; without account of their
proceedings, and have power to try, judge and cause Execution:
but not to acquit or give Enlargement. So that the nocent are
therby punishable; the injured and betrayed not vindicable.
Which are defects incompatible with a Court of Iustice,
and inconsistent with Iustice it self; and the honor of a
Christian Nation and Common wealth.

2. The Members of this Court, are by the said Act directed
to be sworn.

1. Not in conspectu populi; For the Freemans satisfaction.

2. Not in words of Indifferency and obliging in equality.

3. But in words of manifest partiality, viz.

You shall swear; That you shall well and truly, accord-
ing to the best of your skill and knowledge, execute the se-
verall powers given you by this Act.

1. If the Court be Triers and Iudges too, it is humbly offered by the
respondent, that it is but reasonable-that they should be sworn as
triers; in the sight of the Freeman who shall be upon his Triall.

2. And, that as Iustices of Oyer and Terminer (They being au-
thorized to hear and decernsine by the words of the Act.
They should take an oath, such as is usual and equal, set down E. III-

I2 viz.

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68 The History of Independency. Part III

Viz. You shall swear, that well and lawfull you shall
serve our Lord the King, and his People in the Office of
Iustice, &c. And that you deny to no man Common Right.

3. Or that this Court (taking Notice of such high mat-
ters as Treason upon the guilt wherof the Freemans
life depends) should take an Oath (at least) as e-
quall as a Iustice of the Peace. Daltons lust. of Peace,
fol. 13. the words are,

1 A. B. do swear that I will do equall Right, &c. accord-
ing to my best wit, cunning and power, after the Laws and Cu-
stomes of the Land, and the Statutes therof made, &c.

4. If the Court will be Iudges and Triers too: (for they
have power given them to conclude the Freemen, by
the opinion of the major number of twelve, holding
some resemblance (but with a signal difference) with
the verdict of a Iury) it were but reasonable that they
should take an Oath correspondent to that usually
administred to Iury-men. The words are,

You shall well and truly try, and true deliverance make be-
tweene the Keepers of the Liberties of England, and the Prisoner
at the Bar, according to your evidence. So help you God, &c.

5. When this Court (as it is now constituted) hath con-
demned a Freeman, by applying their skill and know-
ledge to the power given them, whether justly or not:
the Oath injoyned them by the Act 26. Marh, 1650.
is not broken, literally; as to be exactable by man,
though God will have a better account.

And therefore upon the whole matter premised:
The Respondent (saving as before) averreth
for Law and Reason: This Court by the
words of the Act constituting it; is not qua-
lified, (in respect cf the objected defects)
to passe upon him for life in case of Treason,
And prayes this his 2. Answer may be recei-
ved, with the Salvo's, and registred,

Eusebius Andrews.

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Part III. The History of Independency. 69

The third Answer of Coll. Eusebius
Andrews Esquire, to the Honorable,
The High Court of Justice. 1650.

THe said Respondent (with favour of this Honourable
Court) reserving and praying to be allowed the bene-
fit and liberty of making further Answer, if it shall be ne-
cessary, in all humblenesse for present Answer offereth to
this Honourable Court,

1 That it is his Right (if he admit this Court to be duly
and legally established, and constituted as to their being a
Court) to be tried by his Peers, men of his own condition
and Neighbourhood.

2. That it is within the power of this Court, by the Letter of
the act, 26. March 1650. Or (at least) not repugnant to the
Act, to try him by such his Peers, &c.

1. That it is his Right to be tried only so: appears by
Magna Charta, chap. 29. 25. Ed. 1. chap. 1. and 2.
25. Ed. 3. chap. 9. 25. Ed. 3. chap. 2. and 4.
28. Ed. 3. chap. 4. 37. Ed. 3. chap. 18.
42. Ed. 3. chap. 3.

By all which this Right is maintainable; And the Pro-
ceedings contrary thereunto will be held for none, and to be re-
dressed as void and erroneous.

So that if the Laws and Courts were not obstructed in
the cases of some sort of Freemen of England, the
whole Proceedings contrary to these Laws without a
Jury of his Peers, were avoidable and reversible by
Writ of Errour, as appears by the Presidents vouch-
ed in the Respondents second Answer.

I3 3.That

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70 The History of Independency. Part III.

3.That it is in the Courts power, To try the Freeman, &
consequently the Respondent, by a Jury of his Equalls; The
Court is humbly desired to consider the words of qualifi-
cation.

1. The Court is Authorised; To hear and determine: and so (if at
all Commissioners) then Commissioners of Oyer and Termi-
ner, and such Commissioners, in their natural constitution and
practical execution, do proceed against Freemen according to
Law by a Iury of their Peers, and not otherwise.

2. Authorised to proceed to Trial, condemnation and execution:
But not restrained to the manner limitateves: As, to Triall by the
Opinion of the Court, as Triers Nor exclusive. As, to Triall
per pares. But is left in the Manner, as in the Iudgement it
self, To the Opinion of the major part of 12. and if they shall
think fit to try by a Iury, it will be no offence against the Act,
there being no Prohibition to the contrary.

And though this Respondent insisteth upon his said
Right, consisting with the Courts said power, and the more
to induce the Court to grant him his said Right; He humbly
representeth the wrong done to himself, and in him to the Free-
manzy of England in the following particulars, against their
just Rights depending upon such Trials to be allowed or denied.

1. Challenges to his Triers peremtory, or with cause of Chal-
lenge.

2. Seeing, hearing, and counter-questioning the witnesses for
clearing of the Evidence: in matter of Fact and Circum-
stance

3. The being convicted or acquitted by a full and fully con-
sented verdict.

To all which benefits as his undoubted Right, and the
Right of all the Freemen of England, the Respondent
maketh claim by these Reasons, Laws and Presidents
following.

1. The

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Part III. The History of Independency. 71

1. The benefit of Challenges by the leaning of Stanford in his
Pleas of the Crown, Title challenge fol. 150. To challenge
35. without Reason shewed; and with Reason shewn, with-
out Number adjudged 32. Hen. VI. in Poinings case, abriged
by Fitzherb. Tit. Challenge, fol. 26. allowed in Hillary 1.
Jac. Sir Walter Rawleigh and Brooks.

2. To the hearing and questioning the value and weight of the
witnesses. The Laws are plain in Stanfords pleas of the Crown
fol. 163, 164. Stat. 1 and 2. of Phil and Mary, Chap. 10. 11.
1. Ed. VI. chap. 12. Cookes 3. Instit. pag. 12. upon the words
in the St. 25. Ed. III. chap 2 (Provablement atteint) Because
the punishment was heavy, the proof must be punctual, and not up-
on Presumptions, or Inferences, or Streins of wit, nor upon Argu-
ments simili, or Minori ad Majus, &c. But upon good and
clear proofs, made good also by the St. 1. Ed. c. 6. 19. Ed. c. 1.

3d. A verdict by Iury passeth from all, or not at all, in this way
of proceeding by the Court immediatly: it passeth by way of con-
currence (or voting) the great fault found with the Star-Cham-
ber, and all Commissionary Courts, proceeding without present-
ment or Enditement.

4. A Verdict passeth from a Iury before discharged, upon their
Affairs of business, or supplies of Nature; to prevent corruption
by mony or power. In this way of Trial a man may be heard to day,
and a Sentence given at leisure, when the power and will of those
by whom the Freeman is prosecuted, be first known. And from
such a proceeding this Respondent can hope little equality;
he being (to his knowledge) forejudgad already by them.

And therefore (if at all this Honourable Court think fit
to proceed to a Trial of this Respondent) he claims the
benefit of Trial per pares: by Evidence viva voce. And
rests on the Opinion of the Court; saving (as for-
merly) Liberty of farther Answer, if over-ruled.

And prayes that this his Answer and Salvos
may be accepted and registred.

Eusebius Andrews.

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WHereas mention hath bin made in several prin-
ted Books, that John Fowke Alderman, was one
of those persons, that did actually sit as Judges
upon the Trial of his Majesty, with the Councel and At-
tendants of the Court. And was in the number of the
Judges at the Kings sentence of death. These are to give
notice to all men, that the same is most false and scandalous,
as will many wayes appear; And in particular, by the
Certificate of Henry Scobell Clerk of the Parliament, in
these words following, (ViZ.)

IN a Book Ordered by the Parliament to be kept among
the Records of the Parliament read in the House the
11. of December 1640. and Entituled, A Journal of the
Proceedings of the High Court of Justice, erected by Act of the
Commons of England, Entituled, An Act of the Commons of
England in Parliament Assembled, for Erecting of an High
Court of Justice, for the trying and judging of Charles Stew-
art, King of England; In which Books are set down the
Names of the Commissioners, appearing each day in
Court. Having diligently searched the same, the name
of John Fowke Alderman of London, is not therein men-
tioned, as being present with the Commissioners at any
meeting upon the said Trial, either publike or private.

March 28. 1660.

Henry Scobell Clerk of
the Parliament.

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