equal value notwithstanding they had been adjudged comprized within Articles Sir Iohn Stawell himself hath measured the same and far worse measure to others for the whole Parish of Cothelstone in Somerset hath been by him miserably and totally depopulated And not awaiting the expiring of their Estates he by force fraude and terror expelled them their wives children and families to swim through their own tears to new Plantations Here therefore as the Law warrants and necessity commands so the Finger of God seems to direct and Justice it self to cry aloud for retaliation It would be a very great cruelty and injustice by not making good publick sales to sacrifice to his rage and revenge all the well-affected people of fifteen or sixteen great Mannors who have incurred his hatred meerly out of service to the publick and have the faith and honour both of military and civil power engaged to protect them which if not performed unto them he will in point of Estate neither give quarter to man woman or child but will totally extirpate and destroy them The said Sir Iohn Stawell himself is in no such case as he pretends For as your Petitioner is informed his principal place of Residence being a magnificent seat is purchased by his Lady for his use and besides he hath left him unsold and purchased by his Ladies assigns and friends fifteen hundred pounds per annum more And if he hath the residue of his Rents filled up with Rents of State-Land the money whereof is as good as his own he hath nothing to object but that he scorns the title and desires only to deal in Merchandize will swim best if the ship of the Commonwealth and Government sink together But certainly cannot say but as touching his poor depopulated Tenants whom he pull'd out like snails from their only houses to which their lives were tied But he is far better dealt then he dealt with them or intends to deal with the residue if ever delivered into his hands REASONS FOR ESTABLISHMENT OF PUBLIKE SALE Humbly tendered as well in behalf of the Common-wealth as likewise of the Purchasers of the Estate of Sir Iohn Stawell and all others who upon the Warrant and Authority of an Act of Parliament and in service thereto have not onely engaged their Estates and money but the price and blood of themselves and nearest Relations 1. TT is an absolute maxime that no power can be of continuance unless founded on the title of Land and that foundation cannot be laid without credit to sell 2. One President of Revocation will make the credit of the State excommunicate none will buy or fell with it For once forsworn ever forlorn 3. This will destroy the being of Souldiery by making all got by the sword unseasonable neither can the spoils and Conquests though of the whole world be of use if not vendible but then the more victories the poorer 4. There is no other permanent Bar against the King of the Scots but sales of land and to destroy these will reduce him 5. If Articles may reverse sales by the same justice ought perjury in Witnesses injustice in Judges absence of Witnesses or Parties at time of their trial new Discoveries since and infinite others which principle will make questionable or destroy all Sales ever made or to be made and leave the Parliament no power at all to warrant any 6. Reversing Sales will make the Enemie potent and formidable and Friend poor and despicable 7. The Friend lost and Enemy not got but made more fit for dissimulation and dangerousness neither is there any way to assure them but transplanting to other lands on the Parliaments title 8. To unfreeze an Enemy and be stung to death is folly not charity 9. Touching Grants by Act of Parliament necessity and the Law of the Land frees them from being avoided by any errour of Fact Law or Equity preceding 1. Otherwise no Enemy could or would Article Truce or League with the Parliament for fear of invisible errour and preincumbrance on their Acts and want of power to warrant them 2. Such a principle may not onely destroy all Articles in general but doth part icularly those of Exceter For at the beginning of the wars all adherers to the Parliament were promised indemnity therein against the Delinquent and his party which very Indemnity is clean contrary since by those Articles granted the Delinquent against them and that without any ceremony or hearing of those innocent adherers to their friends who had lost their lives and estates in the service And it cannot therefore be reason or justice to allow the Delinquent to disannul the Act of Sale by a pre-promise of indemnity in Articles and not to allow those Innocents to avoid his Act of Articles by those pre-promises of indemnity to them at the beginning of the wars 3. All Acts of indemnity to their owne Souldiery might be avoided by admitting Reviews for error or equity preceding 4. All ancient Parliament laws and Magna Charta it self may be avoided on that ground 5. As to Estates and Titles if an Act of Parliament shall not be a Non ultra of Controversies the liberty of the people is destroyed and there is no Free-hold in England but all Tenants at will 6. It is in vain in the regulation of the Law to free inferiour transactions from secret pre-incumbrances if the Supream are liable to the same or worse 10. It is unjust if Acts of Sale should be binding to innocents and not to Delinquents what a shame would it be if our Laws should be cords to one and cob-webs to the other 11. It is unjust to prefer a pure promise before property For Rem Domino vel non Domino vendente duobus In jure est potior traditione prior 12. Quod fieri non debet factum valet If an Inheretrix happen to be married or Inheritance sold though contrary to Articles it is not lawful to perform those Articles by committing adultery or robbery for that were to do evil that good might com thereby But there is an honourable and just way left to perform them which is restitution in value and may be more honourable too then specie for value may be sevenfold if Parties please But specie can be but single 13. It is a known Rule if Covenants happen by matter ex post facto to be either impossible in themselves injust as to third persons contrary to the Laws or inconsistent with publick safety It is unlawful to perform them otherwise then in value 14. No supream power ought to repeal their own Bargains and Sales though they may their laws for Regum Contractus non sunt leges 15. By the very words of the Articles of Exceter a Delinquent neither doth nor can claim to be in better condition then the residue of the subjects of England And they if their Estates happen to be sold by command of authority either by a mistake in Parliament or erroneous judgment at
Common-Law or if they have a Title to a Trust or Equity in Chancery whereof Purchasers have no notice they must lose it and be content with such recompence in value as the Law allows what an abomination would it be if two measures of justice should be kept a greater for the Enemy and a smaller for the Subject 16. The Case in point is resolved and practised to the subjects of Ireland yet have they as good Articles as those of Exceter as appears by the Act for setling Ireland dated 12 August 1652. in the tenth Article and last Proviso for it is expresly enacted That they may be transplanted from their own Estates to remote Estate of like value notwithstanding they have been adjudged comprised within Articles 17. Purchasers for the most part are undone and incapable of Indemnity Tenants having drowned and forfeited their Estates Widows Wives Orphants and Fatherless having yeilded up their portions and the estate passed from hand to hand to so many manner of conveyances uses trusts and crose Covenants as is impossible to reconcile or accommodate with any value whereas the estate of the Delinquent is only the interest of a single person who can alledge no reason why to avoid all these inconveniencies he should not accept an estate equal or better then his own in value But only that he scorns to take land on the Title either of Parliament or Army 18. Touching Honour it will reflect deeply on the Honour of the Parliament to retract their own Sales on the Honor of the Protector himself being so eminently named and made a party to the Act of Sale on the Honour of the army the people esteeming publick Sales to be the military Market and planting of the Sphear where by the Laws of Nations all ought to have security and protection in dealing and the rights of buying and selling to be observed inviolable And the Honour of God not to justifie Delinquents to destroy Innocents By all which it is hoped it will appear to all just and intelligent persons that to reverse publick Sales of Delinquents Lands made by Act of Parliament upon Articles or any cause preceding whereof Purchasers had no notice is contrary to wisdom Justice Honour and the Laws of God and man Reasons why the Purchasers of Sir John Stawels Estate desire the late Vote concerning the confirmation of the Purchases may be enacted 1. A Great noise of terrour is spread amongst the People by the proceeding of the Committee of Articles and men still remain fearful to bring in their money to the State unless satisfied with an Act. 2. The presumption of the Committee of Articles in those proceedings against the Resolution of the late Parliament was grounded meerly on this That the same was a Vote and not an Act. 3. In the Intervals of Parliaments on the same grounds men of impudent spirits will sleight a Vote not enacted 4. It is usual and equal for Sellers to do Acts of further assurance 5. The Purchasers are menaced and threatned they shall not hold quiet long what they have purchased 6. They shall not be able to sell off their Purchases to others but with great loss 7. An Act leaves Purchasers in no other condition as against the State then they were before but onely is to secure them against Sir Iohn Stawel 8. Many Acts of Parliament have been confirmed again by Parliament though sufficiently valid before and particularly Magna Charta though unquestionable in it self hath been confirmed above thirty several times Thursday the thirteenth of October 1653. An Act for confirmation of the Sale of the Lands and Estate of Sir John Stawell Knight of the Bath BE it Enacted and declared by Authority of Parliament That all Sales made of any Estate Lands Tenements Hereditaments Goods or Chattels of Sir Iohn Stawell Knight of the Bath by vertue or appointment of any Act or Acts of Parliament are hereby confirmed and established And accordingly all purchasers and buyers of the same shall and may have hold and quietly enjoy the same to them their Heirs and Assignes according to their respective interest and estates purchased or bought and according to the Rules Conditions and Limitations prescribed in the said Acts any Law or Judgement to the contrary notwithstanding Hen. Scobell Clerk Parl. FINIS
AN ANSWER TO DIVERS SCANDALS Mentioned in a certain Pamphlet Entituled THE Humble Remonstrance OF Sr. IOHN STAWELL WRITTEN By JOHN ASHE Esquire 1654. LONDON Printed by Thomas Newcomb dwelling in Thamestreet over against Baynards Castle Anno Domini 1654. AN ANSWER TO Divers Scandals mentioned in a certain PAMPHLET Entituled THE Humble Remonstrance OF Sir John Stawell IT is not my purpose at this time to write an exact Narrative of all proceedings and passages which have been in the Case of Sir John Stawel from the 18 of July 1646. which was the time of his first coming to London from Exceter unto the year 1652. at which time he was Arraigned before the High Court of Justice I having done that formerly even upon the first sight of that Scandalous Pamphlet Entituled The Humble Remonstrance of Sir John Stawell but did not at that time expose it to publique view for these Reasons 1. First Because an Answer had been given by me to all those Particulars which may any way seem to reflect on me before the High-Court of Justice to the general satisfaction of the whole Court and all that were present and to the shame and confusion of the said Sir John Stawel who was then a Prisoner at the Barr of the said Court 2. Secondly Because the Scandals mentioned in the said Pamphlet were so apparently false and improbable that any one who hath been in the least manner acquainted with those transactions might easily perceive even in the said Paper a manifest confutation of those falshoods which are therein malitiously suggested and vainly charged on me 3. Thirdly Because that in regard of my respects to his Family I was willing to be silent lest in giving an Answer to those scandals wherewith he endeavoureth in the said Pamphlet to asperse me by saying that I did clandestinely obstruct his composition I should do what I conceive my self at this time obliged unto viz. clearly prove by undeniable arguments and circumstances that he never intended to compound at all but resolved on the contrary flattering himself with hopes of seeing the late King restored to his Power and greatness from whom he might receive not only his whole Estate which was unjustly taken from him as he constantly affirmed but also a great reward for his many sufferings in owning and defending the Cause of the said King beyond any of his Party But since the Honourable Parliament hath been pleased to refer the Petition of the said Sir John Stawell unto a Committee where the matter of Fact may be throughly examined to the end that my testimony on the behalf of the Commonwealth may not seem to be any way impeached in regard of those feigned Scandals mentioned in his said Pamphlet and lest my carriage in the business of his Composition might be misrepresented to those who were strangers to my actions therein I have judged it necessary to publish these ensuing lines premising a few Particulars which were fully cleared in that discourse which I did then write which are as followeth First That although Sir John Stawell did appear at the Committee of Gold-Smiths Hall about four daies before the time limited by the Articles of Exceter for Compositions were expired yet he never intended to make any Composition there according to the Order of Parliament and the Rules prescribed for Composition upon the said Articles but did oftentimes declare his resolution to the contrary And when the Lady Stawell his wife and Sir Edward Stawell his son then in France did earnestly solicite him that they or either of them might Petition the Parliament to be admitted to compound for the said Estate since he refused it Sir John Stawell did deny to give his consent thereunto and did threaten his said son that in case he did attempt any such thing he would disinherit him and was much incensed against the said Sir Edward Stawell for that he had written Letters unto Mr. Ashe for his admission to Composition since his Father refused it some of which Letters Sir John Stawell intercepted 2 That Sir Iohn Stawel did wholly depend upon the late Kings restoring to his power and authority that from him he might receive not only his whole estate then unjustly taken from him by the Parliament as he said but also a great reward for his many sufferings in owning and justifying the late Kings Cause beyond any other of his party and did send to the said King when he was last at Hampton Court desiring him to take notice of the great suffering he had undergone for his Majesties Cause and did let him know the hopes he had of his Majesties great favor and reward when he should be restored And upon this confidence did Sir Iohn Stawell neglect his composition and refused the benefit of Exceter Articles 3. That Sir Iohn Stawell during the life of the late King and after his first appearance at Goldsmiths Hall did never tender any Petition for his admittance to composition or to claim the benefit of Exceter Articles either unto the Parliament or Committee of Parliament or any other Court whatsoever And when in the life time of the late King he was arraigned for Treason at the Upper Bench Bar he did not then claim the benefit of Exceter Articles nor made any mention of them for his exemption from that tryal but on the contrary he not onely refused to own the Judge that sat there by Commission from the Parliament but uttered an expression to the Court to this or the like effect viz. My offence is not Treason for which I am here arraigned but because I would not permit the Committee of Goldsmiths Hall to pick my purse and give my consent to pay a sum of money for the redemption of my Estate which is unjustly taken from me by which expression he sufficiently declared his resolution against compounding 4. That I did with all reallity and faithfulness use my utmost endeavours to perswade Sir Iohn Stawell to submit unto the Parliament and to make his Composition that so himself and his posterity might be preserved from ruine and that Sir Iohn Stawell did refuse to follow that my councel and advice and did declare that his resolution was not to Compound but to depend upon the said Kings favour And when I did press him to follow the examples of all the other Gentlemen of the Kings Party who submitted to Composition he did seem to jeer and deride them for their follies intimating that his Estate would be restored him by the King with sufficient damages from those that had possessed the same during the Sequestration and for that reason would not permit either his Lady or any other friend for her to take any of his Estate at a Rent from the Sequestrators Fifthly That those scandalous aspersions cast upon me by Sir John Stawell in his Pamphlet Entituled his Humble Remonstrance and mentioned in page 23 24 28 and 30. are meer fictions and never heard of by me or any other person
place to be declared and is as followeth being my answer unto the second particular contained in the 30 and 31 pages of the said Remonstrance When I came to Newgate and the Lady Stawell had directed me to her Husbands Lodging I found sir John Stawell sitting in a Chaire taking a Pipe of Tobacco who said to me You are welcome this is done like a friend indeed to visit me in Prison so late in the night and then called his man to give me a stool to sit down by him and requested me to accompany him in taking a Pipe of Tobacco I told him that I understood by his Lady that he had a business of importance to impart unto me and therefore had sent for me I desired him in regard it was very late That he would let me know his business because I had engaged to my Brother in Fanchurch street to return home unto him speedily Sir John Stawell still pressed me first to take some Tobacco saying It was not then much past ten of the Clock and his custom was not to go to Bed before one or two in the morning The Lady Stawell then standing by said I pray Mr. Stawell impart unto Mr. Ashe what you have to say unto him for which you caused me to bring him hither For I have engaged to Mr. Edward Ashe that his Brother shall not be detained here by you above half an hour at the most Sir John Stawell hereupon caused the servants then present to depart the Room and there was only left with me himself and his Lady Then said Sir John Stawell Mr. Ash you know very well in what houses and in what manner I have lived all my life time and now see into what a noisom and little ugly Chamber I am put into There said he pointing to one side of the Chamber is a Trunk through which passeth the filth of the upper Prison and under my Chamber is the Vault into which all the filth of the Prison is emptied by means whereof I am annoyed with such a noisom stink the weather being hot that it is impossible for me to endure it for any time without the danger of my life Wherefore you being my only faithfull friend upon whom I can relie did think fit to send to you for my relief and therefore do now entreat you That either by a Motion or upon a short Petition you would procure leave from the Parliament that I may be removed to another Prison where I may enjoy the benefit of the open air and some wholsome walk and if upon your Motion or the delivery of my Petition you nominate the Tower of London though it be a very chargeable place I am contented rather to be placed there then to lose my life in this stinking Goal I gave Sir John Stawell then this answer Sir as I am most ready and willing to deliver to the Parliament any Petition for you that may tend to your good so am I very unwilling to deliver that which may be for your hurt For said I the Parliament will make this construction of your Petition That you stand still resolved in you contempt of their power and Authority and for that end do only desire health and strength to carry you through the encounter and therefore my advice is and as a faithfull friend I give you my Councel That since you have a mind to preferr a Petition unto the Parliament let it be such a one as may doe you good and quite free you from this and all other prisons What Petition said Sir John Stâ—well do you mean A Petition said I wherein you should acknowledge all your miscarriages both at Goldsmiths Hall and at the Parliament and crave pardon for the same and let the Prayer of your Petition be to be remitted to Goldsmiths Hall to make your Composition and receive the benefit of Exceter Articles To this advice of mine Sir John Stawell gave this Answer Sir you know my resolution as to Compounding and you know as I have often told you That if I had a mind to Compound yet have I no money to pay the Composition and therefore Sir let me entreat you to deliver this short Petition to the Parliament for my removal out of this Prison and therein you will do the part of a faithfull friend since it is for the saving of my life You have said he told me the danger of this Petition so that if I suffer by it it is my own fault and none of yours I did at last consent when I could not perswade him to doe otherwise and did promise him to deliver this Petition unto the Parliament so as he would draw it up in such humble Language as I might not receive a reproof upon the delivery thereof Sir Iohn Stawell then promised to send me a foul draught of that Petition the next day that in case I did mislike his expressions I should correct it and I bad him good night and left him Reader thou hast here a faithfull and an exact Narrative of what was said and done by Sir Iohn Stawell and my self at that time when I visited him at Newgate which if compared with what is set down by Sir John Stawell in his Remonstrance page the 30 and 31. is quite another thing and thou maist clearly understand that the Petition which he often mentioneth and which I promised to deliver to the Parliament was not the Petition which he hath there Printed nor a Petition for his re-admission to Composition at Goldsmiths Hall as he told the High-Court of Justice was it but a Petition onely for his removal from Newgate to a better Prison as will more plainly appear by what followeth Upon the next day after I was at Newgate Sir John Stawell performed his promise and I had a sight of the foul draught of the Petition which he intended for me but the Preamble was penned in such high and unseemly language that I was enforced with my own Pen to correct the greatest part of it and so returned the same unto him again with my amendments which he not liking did the next day send me another Petition of his own drawing but I disliked that also because the language was such as did not become a Delinquent in his condition to tender unto the Parliament but at last after several amendments when I could not prevail to have it drawn as well as I desired I took it as it was and promised sir John Stawell to take the first opportunity to present it to the Parliament which promise I did faithfully perform and did for about sixteen dayes together for so long and no longer had I that Petition in my custody wait early and late to get a time to deliver the same unto the Parliament but Michaelmas then drawing on and my particular occasions calling me home into the Countrey for the ordering my affairs and setling my Estate there having been above four years absent from thence by reason of