to weed out the Lutherans Calvinists and Anabaptists So is this High Court set up in England to root out the Royallists Presbyterians and Levellers and generally all that will not wholly concur with our Independents in Practice and Opinions As will manifestly 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 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 parties pre ingaged as well as their Masters and pay Masters that named them ignorant men and of vild base professions uncapable of places of Judicature Necessitous Persons and some of them Scandalous and the High Court it self hath neither Law President nor any 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 disfranchise 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 Iustice 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 amongst 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 secure 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 alleage They did all this upon Honest intentions to enrich the Saints and rob the Egyptians With these 3. Principles they Iustifie all their Villanies Which is an Invention so meerly their own That the Devil must acknowledge 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 Stowell of the County of Sommerset 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 Opinion 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 Complement 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 1. Ashe is a Parliament-man in which capacity Sir Iohn Stowel bore Arms for the King against him 2. Ashe as a Parliament-man is one of the constitutors of this murderous Court and the Judges thereof and therefore their Creatures who expect rewards from them bear a more awful respect to his testimony then a witnes ought to have from Iudges 3. It is publickly known that Ashe hath begged of the House a great summe of mony out of the Composition for or Confiscation of Sir Iohns Estate And 4ly It is known to many That during Sir Iohns many years Imprisonment Ashe often laboured 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 procure his enlargement from Prison and send him home in peace and quiet if he granted his desire But although 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 concerned 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 Acquite 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 give Enlargement Contrary to the Nature of all Courts of Judicature and of Justice it self it is therefore 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 The humble Answer of Coll. Eusebius Andrews Esquire to the Proceedings against him before the Honourable The high Court of Justice 1650. THe said Respondent with favour of this Honourable 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 Iudgment 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 establishing 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 therupon the Respondent doth humbly inferre and affirme that the Tenor of the said Act is diametrically 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 or 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 Executions had bin had and done against the Subjects by Commissions Martial c. it was therby prayed and by Commission enacted That 1. No Commissions of the like nature might be thenceforth 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 is though under a dâ—fferent 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 by the Opinion of the Major 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 the Declaration 12. July 6. 1. Octob. 1642. The Prosecution 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. Aprill 1646. Promise was made not to interrupt the Course of Justice in the ordinary 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 Iustice in the ordinary Courts thereof * * Th y forget the 2. Declarations 9. Febr. 17. March 1648. And therfore this Respondent humbly averreth and affirmeth 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 proceed against him or to 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 And humbly prayeth That this his present Answer and Salvo may be accepted and registred Eusebius Andrewes The Second Answer of Col. Eusebius Andrews Esquire To the Honorable The High Court of Justice 1650. THe said Respondent with the Favour of this Honorable Court reserving and praying to be allowed the Benefit and Liberty of making further Answer if it shall be Necessary In all humblenesse for the present Answer offereth 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 respectively 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 Writ of Errour is due by Presidents Paschae 39. Ed. III. John of Gaunts Case Rot. Parliament 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 Darlâ—is 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 Eâ—â— 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 according to the best of your skill and
that purpose and that the House of Peers shall not at any time or times during this present Parliament be Adjourned unless it be by themselves or by their own Order And in like manner That the House of Commons shall not at any time or times be Adjourned c. as aforesaid From whence it is undeniable 1. That this Act was onely to prevent untimely Dissolving Proroguing and Adjourning of that present Parliament then assembled and no other by Acts of Royal Power 2. That the King was the Principal Estate and Member yea our Soveraign Lord the sole Declarer and Enacter of this Law by Assent of the Lords and Commons 3. That neither this Act nor any other for Dissolving Proroguing or Adjourning this Parl. could be made without the Kings Royal Assent which the Lords and Commons in their Remonstrance 26. May 1642. often acknowledge together with His Negative Voice to Bills exact Collect. p. 69 70. 736. 709. 722. 4. That it was not the Kings intent in passing this Act to shut Himself out of Parliament or create Members of Parliament without a King as He professeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 â— 5. Nor the Lords and Commons intent to Dis-member Him from His Parliament and make themselves a Parliament without Him as their said Remonstrance testifies and the words of the Act import much less was it their intent to pack a Parliament of 40 or 50 Commons onely selected by Colonel Pride to Vote according to the Dictates of a Councel of War after they had destroyed the King and House of Peers Against which transcendent usurpation this very Act provides That the House of Peers shall not be so much as Adjourned or Prorogued but by themselves or their own Order 5. Neither did King Lords and Commons in passing this Act intend That by Murdering the King Abolishing the House of Lords and expelling by power of the Sword eight parts of ten of the Commons the remaining Faction should con titute themselves their Heires and Successours a perpetual Parliament It is against the nature and essence of a Parl. to be Perpetual and against the Liberty of the People which would Crosse and Repeal the Act for a Triennial Parliament made on the same day in Law Brook Parliament 80. Relation 85. Dyer 85. 6. The last Clause of this Act concludes as much And that all and every thing or things whatsoever done or to be done to wit by the King or his Authority for the Adjournment Proroguing or Dissolving of this Parliament contrary to this present Act shall be utterly void and of none effect Now Death of the King and Dissolution of this Parliament thereby cannot properly be stiled a thing done or to be done by the King if by those words things done or to be done for the dissolving c. they shall say they related to the Kings Natural Death Natural Death is the Act of God which these Saints cannot make void if they related to His violent Death it could not then be said a thing done or to be done for the unlawfulness and injustice of it This Act passed long before any War or Bloodshed The onely pretence they have since found out for the Kings Murder 2. If this Parliament were not Dissolved by the Kings Death Yet the House of Peeres formerly Voted down by the Commons gave no consent to the passing this Act Entituled An Act of the House of Commons who without the concurring Assent of the Lords and the Kings Royal Assent have no power to passe any Act Make or Declare any Law or impose any Tax as appeares by the fore-recited Acts The Petition of Right The Act for the Triennial Parliament and this very Act against Dissolving Proroguing c. with all our Printed Statutes Parliament Rolls and Law-Books The Commons being so far from claiming the sole Legislative power heretofore as that they were not Summoned to our Ancient Parliaments which consisted onely of King Lords Temporal and Spiritual until 47 Hen. 3. nor had they so much as a House of Commons or Speaker until the Reign of Edw. 3. nor never tendred any Acts or Bills to the King but Petitions onely of Grievances until long after Rich. 2. time See the Printed Prologues to the Stat. 1 4 5 9 10 20 23 36 37. 50 Edw. 3. 1 Ric. 2. 1 2 4 5 7 9 11. 13 Hâ—n 4. 1 2 3 4 8. 9 Hen. 5. 1 2 3 4 6 8 9 10 11 14 15 28 29. 39 Hen. 6. 1 4 7 8 12 17. 22 Edw. 4. 1 Rich. 3. 3. But suppose the Commons alone had p wer to impose Taxes yet it must be in a full and free House whereas when this Act for 90000 l. a Moneth passed the House was neither Full nor Free The Major part of the House who by Law are the House to wit 8. parts of 10. at tht least being Secured or Secluded by Col. Pride and his Souldiers by Confederacy with those 40 or 50 then sitting when this Act passed and passing the Wills of the Councel of Officers to the subversion of Parliaments and the great wrong of those Counties and Burroughs for whom they served Object If it be objected that by usage of Parliament 40 Members make a House of Commons Answ 1. I Answer not to all intents and purposes Not to grant Subsidies nor pass Lawes or matters of greatest moment Modus tenendi Parl. Cooks 4. Instit pag. 1 2 26 35 36. Cromptons Juris of Courts fol. 1. 39 Edw. 3. 7. Brook Parl. 27. 1 Jac. 1. 2. 40 Members make not a House when the rest are Excluded by force without doors and fraud of their Fellow-members within doors on purpose that being the Major number they may not over-vote them The Commons not having power to expel any of their Members without consent of King and Lords in whom onely the Judicial Power resides Paribus in Pares non est Potestas Claus Dors 7 Rich. 2. M. 27. Seldens Title of Honour pag. 737 Baron Camoyes case discharged by the Kings Writ and Judgment from serving amongst the Commons because a Peer of the Realm The practice for Members to Expel and Sequester their Fellow-members being a late dangerous innovation to pack a Factious Conventicle instead of a Parliament If the King should send forth no more Writs than would Summon forty or fifty Commons it were no House Added by the Abridger So Mr. Pryn concludes That if he should voluntarily submit to pay this Tax by vertue of the said pretended Act of Parliament Dated 7. of April 1649. made by those now sitting some of whose Elections have been Voted void others of them Elected by new Illegal Writs under a new kinde of Seal since the Kings Beheading as the Earl of Pembroke and Lord Edward Howard uncapable of being Knights or Burgesses by the Common Law because Peers of the Realm as was adjudged in the Lord Cannoyes case Claus Dors 7 Rich. 2. M. 32. and asserted by Mr. Seldens Titles of Honour
perswade them to reason and Justice in the mean time wishing them to acquiesce in what they should order thus he marcheth with his whole Army modelling to his own mind all Garisons and forces in his way This and his number of men that he brought with him being far beyond allowance for they ordered only three hundred put our Rumpers to a stand and they could not be satisfied untill they send the subtilest couple in the house Scot and Robinson are sent to Monck Scot and Robinson to sound his intention under pretence of congratulating his coming to England and complementing him to whom he carried himself with so much gravity and reservedness that they could not catch one dropping syllable that might betray him About this time the City by their Sword-bearer The City Couâ—t him send to him to whom he returnes that he is for the Parliament as aforesaid yet assures them that when he came to the City he would satisfie their desires and hopes conceived of him thus owning the authority then in being he keeps close to his commission notwitstanding all the addresses of the Countries for a free Parliament promising nothing more but that he would see all force removed from the Parliament 2. The House filled and 3. That there should be good provision made for future Parliaments Thus with a slow and orderly march attended by the prayers and wishes of the whole Nation he comes at length to St. Albans He comes to St. Albans In this interval of time the Rumpers minding to ingross the whole power both Legislative and Executive into their own hands and to share all places of trust and profit among themselves on the fifth of January pass this following vote Resolved Observe this Touching absent Members that the Parliament doth adjudge and declare that the Members who stand discharged from voting or fitting in the years 1648 and 1649. do stand duly discharged by judgment of Parliament from sitting as Members of this Parliament during this Parliament and that writs do issue forth for electing of new Members in their places Thus did they intend to have perpetuated themselves for their lâ—ves and to have bequeathed their villany in succession to such as were to be new chosen having already concluded Oath of abjuraiâ—on that the Oath of renunciation of the title of CHARLES STUART as these unmannerly mungrels were pleased to stile their Soveraign and the whole line of the late King James should be taken by every member that hereafter shall sit in Parliament nay so high were they now grown that they committed diverse for but Petitioning for a free Parliament M. comes to London This made his Excellency hast up to London where his Lady and Family were come before him by Sea into which City he comes about the beginning of February and takes up his lodging at White-Hall as the Parliament had appointed him contrary to the thoughts of many and after two or three dayes refreshment taking no notice of his resentment of the aforesaid insolencies he solemnly attends the house according to their order Goes to the house and with much modesty gives them an account of his undertakings refusing the chair offered him for his ease and honour but leaning on the back of it he delivered himself to this effect Hâ—s speech then That he deserved not the thanks they gave him having done no more than his duty but wished them rather to praise God for his mercy then he humbly desired them to satisfie the expectation of the Nation in the establishment of their laws liberties properties c. God having restored them not so much that they should seek their own as the publick good He desired them in particular to take away the jealousie men had of their perpetuity by determining their own sessions and providing for future Parliaments wishing them to use the Nobility and Gentry civilly intimating that it was their wisdom rather to enlarge than contract their interest he told them that the fewer qualifications they put upon succeeding Parliaments the better and desired them to be tender in imposing new oaths for he had heard of the oath of abrenunciation alledging there was more reason to repent of those already taken than to take new ones so warning them to take heed of Cavaliers and Phanaticks he concluded commending Scotland to their care and assuring them of Ireland and hinting at a Free-State This done and he retired loaden with thanks How the P. employ him he withdrawes to his place in the Councill of State where the first that he finds under consideration is the reducing of the City which to make a short digression was now grown unruly being stifly resolved to own no power but that of a full and Free Parliament whereto they had been encouraged by the Country in severall Declarations but especially that of Devonshire which in regard it gives the sence of all in one and was that chiefly stuck to by the City I shall give it you at large as Mr. Bamfield the Recorder of Exon sent it to the Speaker January the 14th The Declaration We the Gentry of Devon finding ourselves without a Regular Government after your last interruption designed a publick meeting to consult remedies which we could not so conveniently effect till this weeke at our general quarter Sessions at Exon where we found diverse of the Inhabitants groaning under high oppressions and a general defect of trade to the utter ruine of many and fear of the like to others which is so visible in the whole Country that it occasioned such disorders as were no small trouble and disturbance to us which by Gods blessing upon our endeavours were soon supprest without blood And though we find since our last purposes an alteration in the State of affairs by the re-assembling you at the helme of Government yet we conceive that we are but in part redrest of our grievances and that the chief expedient to amend the whole will be the recalling all those Members that were secluded in 1648. And sate before the first force upon the Parliament and also by filling up vacant places and all to be admitted without any Oath and engagement previous to their entrance for which things if you please to take a speedy course we shall defend you against all opposers and future interrupters with our Lives and fortunes for the accomplishment whereof we shall use all lawfull means which we humbly conceive may best conduce to the peace and safety of this Nation This was signed by most of the chief gentry of the Country Now the City owning the purport of this Declation by one of their own and refusing to pay taxes had drawn the Councill of State to that violent ebulliency of reducing it to a submission which was as I said before the point upon which they fell when first General Monck came first among them for they had rather bring the whole World into a combustion than their usurped