THE TRIALL OF M R MORDAUNT Second Son to JOHN Earl of PETERBURGH AT The pretended High Court of Justice in Westminster-Hall the first and second of June 1658. With some Passages before and after it LONDON Printed by JAMES FLESHER 1661. TO The Right Honourable ELIZABETH Countess Dowager of PETERBURGH MADAM HAving the Original of my Lord Viscount MORDAUNT'S Trial by me I believ'd it a Duty to my Country to publish so Signal so great and Generous an Action that in case Our Nation be traduc'd by Strangers for so low and mean a Compliance under that horrid USURPER and TYRANT CROMWELL we may be able to produce upon record as Noble a list of Martyrs and Heroick Spirits as ever the number of years considered suffered for any unfortunate Prince in Europe And Madam although my Lord Your Son appears not in this Calender in Bloudy Letters yet to Your fuller satisfaction he will ever be Registred in Golden ones the declension of Cromwell's Fortune and Family taking its Visible beginning from my Lord Mordaunt's Escape who was mark'd out a Victim for the Nobility as Dr Hewet and Sr Henry Slingsby were for the Gentry and Clergie and his Deliverance had this of singular in it that having set up his rest on his Defence he was clear'd by that bloudy pretended High Court of Justice and remains Recorded the first Precedent of that Nature To whom then can I dedicate this Memorial so properly as to Your Ladyship the Noble Stock from whom this Branch proceeds And indeed this Remarkable Action was an Honour to Your Family though ne're so fertile for high Atchievments as well as to his own and none can say which of Your Houses has more right to the Glory of it the Howard or Mordaunt To be particular in the Relation of this were needless there being thousands of Witnesses and Westminster-Hall scarce ever so throng'd Yet I cannot omit to observe it was manifest to all present he knew to speak as well as how to attempt or die 'T is now Madam visible that God preserv'd Your Son for greater Actions which to Your lasting comfort You will alwaies remember How after his unexpected and almost Miraculous Escape from the Axe he calmly undertook a second worthy attempt the uniting of two long-jarring Parties at the time when the Consternation was so universal upon mens spirits that few though otherwise honest would hear what he design'd so great a regard had men in those daies to what they desir'd should be thought Prudence Vpon which Conjunction he founded the certainty of a Noble Warre or a healing Peace The considerable Rising of Sr George Booth satisfies he was not mistaken in the first and the happy composure of all Our Differences by his Maties Restauration evinces his foresight Prophetick as to the other I protest Madam I cannot without some amazement reflect upon the Providences attended him by Sea by Land in all his Concealments and Negotiations and after he had been so often and publickly proclaim'd Traitor and the Coasts watch'd to take him he never in the least declin'd any Risque or Hazzard whatsoever though he knew Death attended him every Minute if he came to be discover'd but with a quiet Resignation prosecuted what his heart was set upon his Maties Restauration and his Country's Liberty How great and Eminent an Instrument he has been towards His Maties Restauration what Employments and Transactions have been committed to his Prudence and Resolution and how fortunately he has acquitted himself of those great Trusts and what faithful Services he has rendred the Crown is doubtless known to all who pretend to business else I could not but wish all good Fortune and Success to that Merit and Courage which first broke the Ice and gave Reputation to the Counsels and Party of our long-banish'd SOVERAIGN But Madam Your Family will finde greater Rewards from His Maty then I dare express In confidence of which I have no other wish then bumbly to beseech Your Ladyship to look on me as Madam The most Obedient of all your Servants T. W. THE Trial of Mr MORDAUNT AT The pretended High Court of Justice AP ril 1. 1658. Mr Mordaunt was by a Guard of Souldiers taken in his Bed at Berkshire-House and carried directly to the Protector All his Writings were then seiz'd on and never returned He was for that time dismiss'd upon his Honour to appear upon Summons and remained at Berkshire-House till the fifteenth when after some hours Examination he was committed for High-Treason to the Tower During which fourteen daies time Mr Stapeley who was one of the Witnesses against him was never pleas'd so much as to acquaint him with his Danger or his own Examination though he was Prisoner at large and â—ay next door to him This was the reason made Mr Mordaunt so secure believing that a Gentleman could not wrong him so much as to accuse him and not give him notice of it His Imprisonment in the Tower was the severest that ever was heard of for the time He was ever close but the last three weeks had constantly an Officer and a Souldier by his Bed-side locked in with him two Keepers having several Keys so that but by joynt consent no person could be admitted to him and lest this was not sufficient he had two Souldiers at the house doors day and night His Ladie 's being with him made this unheard-of Cruelty unsupportable She being likewise stript and search'd by women sworn to that purpose and her hair pull'd about her ears to find Papers As himself likewise afterward and his Servants had all their Clothes cut and opened yet nothing could be found which extremely enrag'd the Officer His very Prayers were not private nor had he one hour free from disturbance when he was providing for his Trial so insolent were the Souldiers with him Till within two daies of his Trial he was permitted neither Pen nor Ink And to the Lieutenant Colonel whose name was Miller who gave him so short a summons to prepare for such a Defence he express'd his dissatisfaction in point of time for so serious a Work and desired Counsel But the Lieutenant of the Tower refus'd his hand to their Warrant for their safe return so he had none but immediately said he was resolved not to own the Court nor that way of Trial. One usage was so barbarous I cannot omit it The night before his Trial he sate up late to provide his Defence committing himself into the hands of God as verily believing by their Cruelties shewn he was ordained for Death Scarce was this persecuted person asleep by his Lady but a Captain going the round commanded the Souldiers to wake him and make him speak they obeyed the command opened the curtain and stirr'd him His Lady at first feared foul play but compos'd her self again and he waking demanded the reason of such insolence No answer was given but that it was by Command Are ye commanded saies he to keep me
he saw the Commissions and will not swear whether they were for Horse or Foot He saies at the Half-moon I spoke with him and Mallory of whom I have already spoke He saies I did not name the number of any Forces that were ready and that I said not should but would come into Sussex if those Forces were oppressed He saies we agreed to meet the Tuesday following at Crawly with Mr Mallory but saies that I was not there My Lord I do not know that place He saies it is in our Country but it is not He sales it was his Brother John Stapely was to meet me He saies it was not about any positive thing I was to meet there but in General to carry on things about the intended Design He saies not that I said it but that I said I heard that Charles Stuart would land with a considerable Party He saies it was to debate things in General He said it was not said about the King that He was not mentioned but he supposed it to be so He saies positively I never spake of any number of Horse and Foot or any thing of that kinde I asked him when I first spoke of this he returned no time would not say any positive time but said all was since the breaking up of the Parliament I asked him who was by he said No body all was private This my Lord can amount to no more then one single Testimony and in Rolph's Case there was a single Witness to each Act yet Serjeant Mainard being of Counsel he satisfied the Court one Witness could not condemn him though it were for the greatest Treason imaginable Attempts on the King's Person and yet this Rolph had Counsel assigned him and I am refus'd it He saies the time when we were at the Half-moon was near the time when those that served the late King were banished He saies positively I did not meet at the place appointed and he gives the reason a very insufficient one because his Brother was sent for up that could not hinder me He waves his own meeting he saies all was private How little there is in this Evidence to bring me to such a Tribunal I leave it to the world who I am confident will be satisfied base Fear and Malice in them and not any Crime of mine brought me hither my Innocence makes me confident and I referre my self to the Court M. SOL. ELLIS The Charge is for Levying Warre to alter the Government and imbroil us again in a new Warre to which he pleads not Guilty For the proof of this we have offered to you Witnesses I shall take them in order as the Gentleman did at the Barre John Stapely said Mr Mordaunt said the King writ to him to encourage and engage his friends to assist him at his Coming but saies not the Time when this was done He saies he did not see the Letter but saies Mr Mordaunt told him he had a Letter By all the discourses because that he saies there was no Time it agrees that they were since the tenth of October 1656. And so it is clear within the Act and within your Jurisdiction Now see how it was carried on After he had told him this how doth he encourage him in telling him the Justice of the Cause the Persons engaged therein and of Sir William Waller Then my Lord he told him that if the Forces of Sussex were not sufficient the Surrey Forces would come to assist them for the coming in of Charles Stuart This both John and Anthony Stapely say so that we conceive under favour that both John Stapely and Anthony Stapely do agree in most of the Circumstances Anthony Stapely saies that Mr Mordaunt came to him tells him there were great Grievances I saies he but how shall it be remedied Tells him that Charles Stuart intended to come to England with a great Force which would redress them He asked him how the business was in Sussex He said it was not in so good a posture as he expected He said that Surrey Forces should joyn with Sussex My Lord I leave it nakedly to you if we finde this to be true we submit it to you and Mr Attourney General will pray what his place requires M. ATTORN GEN. You have heard the business this Gentleman hath interposed himself where he was not called it is a happiness this business was discovered upon this evidence I leave it to your Justice Judge as you please I shall say no more M. MORD. My Lord I shall speak to you very short it is this That to all this though it be urged against me by the ablest men of the Law yet there is but one Witness in a manner and that differing in many Circumstances Here he was interrupted My Lord I am forc'd to leave it to you and must remit my Life into your hands expecting you will remember of what Nation I am an English-man I must leave it to you and God's will be done L. PRES Withdraw the Prisoner The third of June the Prisoner being brought to receive Sentence the President spake as followeth L. PRES I have now a word to speak to you Mr Mordaunt God hath appeared in Justice and God doth appear in Mercy As the Lord is Just to them so he is exceeding Merciful to you and I may say to you that God appears to you at this time as he speaks to Sinners in Jesus Christ for Sir he doth clear Sinners in Jesus Christ even when they are Guilty and so God cleareth you I will not say you are Guilty but ask your own Conscience whether you are or no. Sir bless God as long as you live and bless my Lord Protector by whose Authority you are cleared Sir I speak no more but beseech you to speak to God To this the Prisoner made no Answer The Sentence being passed against Sir Henry Slingsby and Doctor Hewet the Judgement of the Court was declared concerning Master Mordaunt which in short was That upon consideration of the whole matter in reference to the Charge against him and his Plea thereunto they did adjudge him not Guilty The Number of his Judges were thirty nine whereof nineteen condemn'd him and nineteen acquitted him the President 's voice turn'd the Scale The Souldiers were wholly against him except one He was the first that ever was acquitted by a High Court of Justice After Sentence pronounced the Prisoners were guarded back to the Court of Requests from thence Sr Henry Slingsby and Doctor Hewet were return'd to the Tower And Mr Mordaunt left without Guard in the Chamber as he was taking leave of his Keeper and appointing him to come to him about some Expences in the Tower the Lieutenant sent to him to let him know that he was to goe back to the Tower with him Mr Mordaunt refus'd it and insisted upon his publick Acquitment and clearing saying he was tried in vain if after all his persecution and being found innocent he was still kept Prisoner He demanded on what account he was returned back and whether the Court had not Power to release him To this he was answer'd he was confin'd by a double Power the Protector had and was only cleared as he was Protector but as General he was still his Prisoner and until he had a Warrant from the Protector directed to him for his Release he would not free him he acting as an Officer of the Protector 's not as an Officer of the High Court. Notwithstanding all Mr Mordaunt urg'd he took him back in his Coach The tenth of June he was not released Being released he unexpectedly came into Berkshire-House as they were at Supper was received with all the affection imaginable by the Countess of Peterburgh his Mother who was infinitely concern'd for him during all his Persecutions and assisted him in making all the Friends she could All his Relations there were joy'd to see him safe whom they had so often lamented as lost The Lieutenant after he was freed confess'd never any man was us'd so ill but it was not long of him but them above and a French Servant Mr Mordaunt had who would have betray'd him and confess'd several Instruments and means were used and conceal'd in order to an Escape But after a strict search nothing was found the Villaine imprison'd for an Impostor though what he told was precisely true He was twice sent for out of the Tower to White-Hall was upon Examination till Night and the subtilest waies used to bring him to Confession But resolv'd to know nothing might hurt a third Person he vertuously stood the shock of Cromwell's fury and left him though enrag'd in admiration of his Temper and Constancy And Colonel Goffe to whom Cromwell committed the last part of his Examination gave him the Character of a Confident Resolv'd Cavalier FINIS Misera servitus ubi Lex est vagum aut incognitum
capable of it and in these debates I wish he doth not lose those advantages that are really intended for him For the Court it is by Act of Parliament and no Judicature in England can require any account of their proceedings Your Papers Mr Mordaunt were better laid aside they will prejudice you M. MORD. With your leave Sir I shall not quit them Pray give me leave to ask this Question whether there be any precedent for this M. ATTORN GEN. By way of advice I do acquaint you that there is no Judicature in England superior to this but the Parliament immediately You are here impeach'd of a very high Crime High-Treason it may be a straying of Youth the first step to Mercy is Confession M. MORD. Sir I humbly thank you yet shall not betray mine own Innocence by confessing a Crime I will never know Treason and being Innocent I shall need no Mercy My Lord I have heard that the Judges of the Land are the best and most proper Expositors of the Law and I cannot but wonder I see none of them here If they declare that this is the sense of the Act I 'le submit to the Court if the Court will allow me Counsel I shall submit if my Counsel be convinced I desire to hear the Commission read M. ATTORN GEN. My Lord this Gentleman was a fellow-Prisoner with one that went before him he walks after the same steps I wish he may not run into the same Error these things were urg'd by Dr Hewet and the Court hath ruled that their Authority is sufficient and therefore my Lord be pleas'd that this Gentleman may plead M. MORD. My Lord I see I shall be overborn both as to Counsel and Jury and that you endeavour not to convince me Will this Counsel give it under their hands that this is Law by the Act of 1656 If you will say under your hands that this is Law that I shall be excluded of Jury and Counsel and that I must not know the Commission by which I am tried I will proceed L. PRES I am afraid you have received ill advice from others possibly you know what is become of that Prisoner that spake of Counsel we cannot assign you Counsel as to matter of Fact The Law and Act of Parliament have made us your Judges and therefore you are to plead M. MORD. My Lord I desire that that Act may be read to know whether I am to be excluded of Jury and Counsel I durst referre it to the Counsel against me M. ATTORN GEN. I doubt the Gentleman is in jest We are here to attend by command of his Highness the Lord Protector these Gentlemen are all sworn by Act of Parliament it is a little slighting of the Court to appeal from the Court to the Counsel But my Lord I beseech you he may forbear to say he is overborn You shall have Justice done if you plead if not there was a Precedent but now if you please to put your self upon the Trial you shall have a fair Trial. M. MORD. My Lord I hope it will be understood frank Ingenuity to referre my self to the Protector 's Counsel and not slighting the Court neither am I convinced by this Act that I am to lose the right of Jury I have not heard any Reason why I must lose it I shall insist upon a fair Trial. M. ATTORN GEN. I do tell you the Court hath given Judgement just now in the like Case M. MORD. I ask a Precedent for this M. ATTORN GEN. I tell you a Precedent Sr Henry Slingsby and Dr Hewet M. MORD. Is it a good Precedent if any give an ill Precedent it is no reason I should follow it but debate it my self M. ATTORN GEN. I humbly conceive that this Court is your Court and that you ought to plead to it M. MORD. If I could conceive this Court were so I would plead My Lord I desire I may be heard 't is hard I should be excluded those Privileges my Ancestors have so often sweat and bled for in purchasing the Rights of the Great Charter and the Petition of Right I am told I have just claim both to Counsel and Jury And indeed I suppos'd that in this place which is so famous for Administration of Justice and Law I should not have been debarr'd what appears to me to be so but since I cannot obtain the having the Act read I shall as well as I can explain my sense of it The words are these That the respective Commissioners or the major part of them are to meet c. The major part only having power to meet and adjourn and not to determine and try and in seventeen there is no major part the whole being 150. now I humbly conceive without the whole I cannot be try'd L. PRES All this that you ask of us now we have declared this morning already to one who was before you at the Barre The Quorum of this Commission is seventeen or any more of them We must require you again to plead M. MORD. My Lord I desire a little Patience That the Number of Commissioners to try is seventeen I conceive must be very much forc'd because the words relate to the respective Commissioners Several Persons were allowed Counsel I desire Counsel L. PRES That is when there is matter of Law you have alledged nothing you are now upon matter of Fact M. MORD. My Lord my Indictment is matter of Law and upon that I may safely demand Counsel I desire to have Counsel as to my Indictment L. PRES Your Reason and my Reason and all Reason must submit to the Law you are now upon matter of Fact the single Question is Whether Guilty or not Guilty M. ATTORN GEN. My advice to you is that you would put your self upon your Trial. M. MORD. I am clearly resolved not to put my self upon a Trial that never had a Precedent neither am I so mean to doe it did I respect the Liberties and Privileges only of my Country-men M. SOL. ELLIS I will tell you where this Mistake is He speaks of former Trials which we do not deny but this Gentleman will agree that it is in the power of Parliament by Acts of Parliament to alter those Trials We conceive that this Act of Parliament hath determined this very question for my Lord it is that you shall examine upon Oath and thereupon proceed to Conviction and final Sentence not by Jury And this Act of Parliament hath entrusted you to be both Judge and Jury All English men must submit to what the Parliament hath done and the Parliament hath determin'd this Question that you have power to examine upon Oath and thereupon to proceed to Conviction c. If a Jury was to doe it you were not to proceed to Conviction This Gentleman saies there is no Precedent for it but we say it was the same in Queen Elizabeth's time They proceeded to Conviction and final Sentence when they proceeded against Duke
fallen out that he is lately escaped I desire that Mr Serjeant at Armes Major Ellison Thomas Tatlock and William Cappat may be sworn All four sworn Here the Prisoner sate down during their Examinations M. ATTORN GEN. We do produce these Witnesses for this end Captain Mallory was a Prisoner and we did intend to make use of him here but it hath so fallen out that his guilty Conscience hath made him to fly Ask these concerning his being in Custody and endeavour of Escape MAJ. ELLISON My Lord Captain Mallory was in Custody and a Guard constantly set upon him which Guard was relieved every twenty four hours The manner of his Escape I only had by relation We have used all endeavours to have found him since he was escaped We did that night send presently to Southwark to Innes there and laid wait for him and sent to Captain Mallory's Brother-in-law where he formerly lay examined him but all in vain where we had any intimation of any relation of his we did send to search for him SERJ DENDY My Lord upon the 28th of May last since the Escape of Captain Mallory I receiv'd a Warrant from the Councel commanding me to use all diligence for apprehending of Captain Mallory I have accordingly endeavoured it Not knowing his Relations I did not speak to them I have used all means I could but cannot find him THO. TATLOCK My Lord Captain Mallory went away about nine a clock at night he went away in a black Suit and Cloak WILL. CAPPUT All that I know my Lord is that Captain Mallory was a Prisoner and changed his habit and hair went away and left money in the window to pay for his Lodging M. ATTORN GEN. My Lord the intention is to shew you Captain Mallory was a Prisoner is escaped and what means have been used for his apprehension Officer pray swear Mr Scobel Mr Scobel sworn M. SCOBEL My Lord Captain Mallory gave Information upon Oath before my Lord Goff and my self upon the one and twentieth of April last and upon his Oath did inform us that about the beginning of March last Captain Anthony Stapely and himself being at the Half-moon Tavern John Mordaunt Esquire being upon the Exchange was sent for to Mr Stapely and that he came thereupon Mr Stapely presented Captain Mallory to Mr Mordaunt as a Gentleman that was interessed in Stuart's Design together with Mr Stapely that was his Brother he said by that Brother he meant John Stapely Esquire Thereupon he informed us that Mr Mordaunt did demand of Captain Mallory in what readiness the Horse that were to be raised in Sussex were Mr Mallory informed us that to that he returned an Answer that they were not in so good a posture as he did believe Mr John Stapely had represented to Mr Mordaunt but doubted that it would fall much short Mallory told us that at that Answer Mr Mordaunt did much wonder because he said Charles Stuart the King was in a very good posture and that there was a daily expectation of his coming over with his Forces And that thereupon Mr Mordaunt did desire that there might be a meeting in some convenient place between him and Mr Stapely and such others of that County of Sussex as should be thought fit My Lord it was he said to this End that there they might conferre together and understand how the affairs stood in reference to the Counties of Sussex and Surrey that they might the better assist each other in the intended Insurrection He did inform us my Lord that accordingly it was agreed there should be a meeting upon the Tuesday following at Crawly and in order thereunto he said that Mr Anthony Stapely and himself did speak with Mr John Stapely to have a meeting accordingly at Crawly upon the Tuesday following and they did agree to it he said that they should meet with Mr Mordaunt at Crawly but in the mean time Mr John Stapely being sent for to White-Hall that meeting was prevented My Lord this is all L. PRES Mr Mordaunt would you ask Mr Scobel any Questions Here the Prisoner rose up M. SCOBEL I suppose Mr Mordaunt's asking me any Questions will not advantage him or that my Testimony is disadvantagious to him for all that I have spoke was the same that Mallory declared to me and my Lord Goff as Justices of the Peace M. MORD. My Lord it will not concern me to ask any Question no testimony being valid against me but what is Vivâ voce to this I neither know this Gentleman nor Mr Mallory M. ATTORN GEN. Mr Anthony Stapely were you with Captain Mallory and Mr Mordaunt at Dinner together at the Half-moon M. ANT. STAP My Lord Captain Mallory was once there but not at Dinner M. SOL. ELLIS The Attourney General hath exhibited a Charge of High-Treason against the Prisoner at the Barre that was to raise Force against the Government and publish Charles Stuart to be King and hold Correspondence with him Here the Prisoner made a little pause and looked on his Papers which he had just written on the Bar. His Defence was in these words M. MORD. My Lord you have heard the Witnesses The first Gentleman Mr John Stapely was pleased to urge against me that I said the King Here he was interrupted The President answers You mean Charles Stuart writ to me to engage my friends but said not that he saw the Letter or that any one was by he did not name the Time or Place but at random but that I said so Being asked about Commissions he denies that I told him I either had Commissions or delivered any He saies I gave him Encouragement to this Engagement or what he calls it I know not but he doth not say what kind of Encouragement it was he doth not say I promised him Money or Preferment He saies he heard I engaged two other Gentlemen Sir Francis Vincent and Col. Brown but saies not that I told him so and I can make it appear the Information he speaks of was false He was asked if any were by at these discourses he said none was by What can this be but a bare single Evidence on news or surmise He saies it was a year or more since He saies I was intrusted by Charles Stuart about the later end of the last Winter This is the summe of his Accusation I shall now my Lord compare his Brothers with his and how farre they are agreeing together let all the World judge who will find they are no where of a Piece but in their Malice For Mr Anthony Stapely he urges against me that at his Lodging I discours'd with him that the way to help us was to bring in Charles Stuart which if true might prove troublesome to me And for Surrey I have not been in it this year and half He saies only to the best of his remembrance I said I had three or four Commissions but he saies it is to the best of his remembrance but doth not say