Beheaded John Hewytts Ghost, Plea
BEHEADED Dr. John Hewytts Ghoſt Pleading, yea crying for EXEMPLARIE JUSTICE AGAINST The Arbitrarie, Un-exampled Injuſtice of his late Judges and Executioners in the New High-Commiſsion, or Court of Juſtice, ſitting in WEST MINSTER-HALL.
Conteining his Legal Plea, Demurrer, and Exceptions to their illegal Juriſdiction, Proceedings, and bloody Sentence againſt him; drawn up by Counſel, and left behinde him ready ingroſſed; the Substance whereof he pleaded before them by word of mouth, and would have tendred them in writing in due form of Law, had he not diſcerned their peremptory Reſolution to reject and over-rule, before they heard them read,
Gen. 3. 10.
The voyce of thy brothers BLOUD CRYETH UNTO ME from the ground.
Exod. 21. 14.
If a man come preſumptuouſly upon his neighbour to ſlay him with guile, thou ſhalt take him from mine Altar, that he may die.
Pſ, 94. 20, 21, 23.
Shall the throne of Iniquity have fellowſhip with thee, which frameth miſchief by a Law? They gather themſelves together againſt the ſoul of the righteous, and condemn the innocent bloud: But the Lord ſhall bring upon them their own iniquity, and ſhall cut them off in their own wickedneſs: yea, the Lord our God ſhall cut them off.
Prov. 28. 17.
A man that doth violence to the bloud of any perſon, ſhall flee to the pit, Let no man stay him.
LONDON Printed in the Year of our Lord, 1659.
The Plea and Demurrer of John Hewytt, Dr. of Divinity, to the Juriſdiction and Proceedings of the Commiſſioners in purſuance of an Act, for the ſecurity of the Lord Protectors Perſon, &c. and to the Sentence of Death pronounced againſt him by them.
THis Defendant ſaith, That he is by Birth a Freeman of England, and that it is the undoubted antient inſeparable Birthright, Privilege, and Inheritance of every Engliſh Freeman both by the Common Laws, Franchiſes, Great Charters, Statutes and Uſages of this Land, ratified from Age to Age by the Votes, Reſolutions, Declarations, Judgements of the High Court of Parliament, and other publike Courts of Juſtice, the Oathes of the Kings of England and their Juſtices, and by manie other ſolemn publick Confirmations, Proteſtations, Oathes, Vowes, and Covenants:aCooks 2 Inſtit. p. 45, to 57. Magna Charta of King John, H. 3. & E. 1. c. 29. 25 E. 1. c 1. 28 E. 1. c. 1. 5 E. 3 c. 9. 25 E. 3. n. 26 &c. 4. 28 E. 3. c. 3. 42 E. 3. c. 23. 2 H. 4. rot. Parl. n. 60 the Petition of Right, 3 Caroli. That no Freeman of England may or ought to be taken or impriſoned, or diſſeiſed, or diſinherited of his Freehold, Liberties, or Free Customs; or to be outlawed, exiled, or any way deſtroyed, paſſed upon, dealt with, or forejudged of life or limb, or put to death, upon any accuſation whatſoever, but by the lawfull Judgement of his Peers, or by the Law of the Land; and that he ſhall not be put to anſwer without Preſentment before the Juſtices, or thing of Record, or by due proceſs of the Law, or by writ original, according to the old Law of the Land;b25 E. 3 c. 2. 26 H. 8. c. 13. 33 H 8. c. 20. 35 H. 8. c. 1. 1 Ed. 6. c. 12. 1, & 2 Phil. & Mar. c. 10, 11. 5 E 6. c. 11. 1 Eliz: c 6 5 Eliz. c. 11. 13 Eliz. c. 1. 14 Eliz. c. 1. 18 Eliz. c. 1. 27 Eliz. c. 2. 1 H. 4. c. 14. And that all trials hereafter to be had, awarded, or made for any Tre…ſon, ſhall be had and uſed only according to the due order & courſe of the Common Laws of this Realm, and not otherwiſe, upon Inquest and preſentment by the Oaths of 12 good and lawfull men upon good and probable evidence and witneſs; And that c5 E. 1. c. 21. 2. Cooks 2 Inſtit p. 526, 527 28 E. 3. rot. Parl. n. 7, 8, 9, 10, 11, 12, 13. 29 E 3. rot. Parl. n. 29, 30. E 3. co…am rege, rot. 92. Cooks 3 Inſtit p. 52. 42 E. 3. c. 1. 3.if any thing be done to the contrary of the Premiſes, it ſhall be void in Law, redreſſed, and holden for errour, and nought: And if any Statute be made to the contrary, that ſhall be holden for none. And moreover this Defendant ſaith, that in the Parliament of 2. R. 2. rot. Parl. n. 47. the Commons petitioned the King and Lords, that the Conſtable and Marſhall of England (then encroaching upon this Priviledge of the Commons, by holding Pleas of Treaſon and Felony before them after the courſe of Martial Law) might from thenceforth ſurceaſe to hold Pleas of Treaſon and Felony before them, done within the Realme, and that the ſame may be determine, only before the Kings Justic…s, according to the Great Charter; which was then aſſented to: And that upon the like petitions of the Commons in the Parliaments of 1 H …. and 2. H. 4. rot. Parl. n. 89. it was aſſented to, and enacted by the King and Lords, that the Kings liege people dCooks 4. Inſtit. p. 124, 125.ſhould not be put to anſwer before the Conſtable or Marſhall in Courts of Chivalry, for any thing done within the Realme, but that (as before in the times of his Progenitors) the ſame might be tried & determined only before his Juſtices in his Courts, as it ought to be according to the Common Law of the Realm, & in no other place or manner. Ʋpon which Conſiderations many of the Kings loyal Lords, Gentlemen and other ſubjects in the general inſurrection of the Villains & other Rebels againſt the King, in the 5th year of Richard the 2d. having inflicted divers puniſhments upon the ſaid villains and traytors without due proceſſe of the Law, and otherwiſe then the Lawes and uſages of the Realme required; though they did it out of no malice prepenſed, but out of meer loyalty to the King, and to appeaſe and ceaſe the preſent miſchief, and out of ignorance of the ſaid Lawes and uſage, in which if they had been learned, yet at that time they ought not to have tarried the pro…ſs of the Law in thoſe puniſhments of their good diſcretion; yet thoſe puniſhments and executions of them in a ſummary way being contrary to, and not warranted by the Laws and uſages of the Realme, they were enforced for their future indemnity againſt the King and his heires, and the heires, wives and friends of thoſe they puniſhed, to petition the King and Parliament, for a general pardon by act of Parliament, to ſecure and indemnifie themſelves; which was granted them, in 5. R. 2. Parl. 1. ch. 5. elſe they might have been impeached and puniſhed for the ſame, as well as King Richard the ſecond himſelf; who in the Parliament of 1 H. 4. rot. Parl. n. 44 (wherein he was enforced to reſigne his Crown, & then depoſed for his miſgovernment) was amongſt other Articles impeached of this in particular by that Parliament, for that againſt the great Charter (ch. 19.) and his Coronation Oath, be ſuffered many of his Li…ge people to be maliciouſly accuſed, apprehended, impriſoned, and tried before the Constable and Marſhall of England in their military Court, for words ſecretly ſpoken, or acts privately done, to the ſcandal of his Royal Perſon, where they were enforced to acquit themſelves by duell; whence the destruction not only of the Nobles and Great Men, but likewiſe of all and every the perſons of the Commons of the Realm might probably have enſued. And this Defendant further ſaith, that one Peter Burchet of the Temple in the 13th year of Queen Elizabeths Reign, having wilfully ſtabbed that famous Sea-Captain John Hawkins, for not being of his opinion in Religion, (Burchet being perſwaded in Conſcience, that it was lawfull for him to kill every one who was not of his opinion) the Queen being much incenſed againſt him for this horrid fact, commanded him to be forthwith tried and executed for it by Martial Law: But her Judges and Councill informing her, that he could not be ſo tried by law, it being done not in an Army, but in time of peace, when her Courts of Law and Juſtice were open; thereupon ſhe deſiſted from this way of Tryall; After which he was tried according to Law, for this and his murdering his keeper in the Tower, as Mr. Camden records in his Annals of Queen Elizabeth, p. 242. 243. And whereas in the Parliament of the 4th. of King James holden at Weſtminſter, there was ſome kind of motion made; that to extirpate and reforme the inveterate evil cuſtomes, diſorders, fewds, bloudſheds, thefts and ſpoiles wherewith the worſt ſort of Inhabitants near the borders and limits of both Realmes of England and Scotland were infected and inured; that they might be tried by a ſummary Proceeding, by way of Martiall Law, or by the Lawes of the Kingdome into which they fled to purchaſe their impunity: This Parliament was ſo farre from approving thereof, that they ſpecially enacted, in this caſe (even of theſe worſt ſort of men) *4 Iacob. ch. 1.That in regard of ſome difference and inequality in the Laws, Trials, and Proceedings in caſes of life, between the Juſtice of the Realm of England and that of the Realme of Scotland, it appearing to be moſt convenient for the contentment and ſatisfaction of all his Majeſties Subjects, to proceed with all poſſible ſeverity againſt ſuch offenders in their own country, ACCORDING TO THE LAWES OF THE SAME, WHEREUNTO THEY ARE BORNE AND INHERITABLE; and by and before the naturall borne ſubjects of the ſame Realme; by whom their Murders, Felonies, Rapes, &c. ſhould be inquired of, heard and determined before his Majeſties Juſtices of Aſſize, or Commiſſioners of Oyer and Terminer, or Goal delivery, by good and lawfull men of the 3. Counties therein ſpecified, and none other. And that at all ſuch Trials the Jurie then and there ſworne, ſhall have in their power and election, according to their conſcience and diſcretion upon their Oathes, to receive and admit only ſuch ſufficient good and lawfull witneſſes upon their Oathes, either for or againſt the party arraigned, as ſhall not appear to them, or the greater part of them to be unfit and unworthy to be witneſſes in that cauſe, either in regard of their hatred and malice, or their favour and affection either to the party proſecuting or to the party arraigned, or of their former evil life and converſation. Which common, equal, indifferent Juſtice allowed to the worſt Malefactors, as their birthright and inheritance by this Parliament and Act, this Defendant now onelyonly craves, and hopes you cannot in Law or Juſtice deny him; nor proceed againſt him by way of Martial Law. And ſo much the rather, becauſe ſince this Statute, King Charles in the 3d. year of his Reign, by the advice of his Counſell (to ſuppreſſe the Inſolencies of Souldiers and Mariners then billeted in ſundry parts of the Realm) having iſſued out Commiſſions to ſundry perſons of quality, in time of peace, to execute Martiall Law upon thoſe Soldiers and Mariners, and other diſſolute perſons (only) joyntng with them, for Murther, Robbery, Felony, Mutiny, and other outrages committed by them, by ſuch ſummary courſe and order as is agreeable to Martiall Law, a… is uſed in Armies in time of Warre; to proceed to the triall and condemnation of ſuch offenders, and then to cauſe them to be executed and put to death, according to the Law Martiall; By pretext whereof ſome of the ſaid ſouldiers and ſubjects were put to death by ſome of the ſaid Commiſſioners, when and where, if by the Lawes and Statutes of the Land they had deſerved death, by the ſame Lawes and Statutes alſo they might, and by no other ought to have been Judged, (before the Kings Iuſtices) and executed. Upon Complaint of theſe Commiſsions, as illegal, in the Parliament of 3. Caroli, they were, after a full debate by both Houſes, voted to be againſt Law; And in the Petition of Right it ſelf, it was then prayed by the Lords and Commons, aſſented to by the late beheaded King himſelf, and enacted by this Law, That hereafter no Commiſſions of like Nature may iſſue forth to any perſon or perſons whatſoever, to be executed as aforeſaid, lest by colour of them any of his Majesties Subjects be deſtroyed or put to death, contrarie to the Laws and Franchiſe of the Land: which the Lords and Commons then prayed, and the King granted, confirmed by Act of Parliament, as their Right and Liberty according to the Lawes: which Act ſtands yet in its full force. Upon conſideration of which late Excellent Law, the laſt long Parliament, in the caſes of the Lord Connor Magwire and Mac-mohun, and the Court of Kings Bench wherein they were tried by their ſpecial order, in Michaelmas and Hilary Terms 20 Caroli, were ſo juſt, punctual and honorable, in confining themſelves to the rules of Law and Juſtice; that though theſe were principal Conſpirators, and Actors in the late moſt horrid, barbarous, bloody Treaſon, Rebellion and Maſſacre in Ireland, and taken in its proſecution; yet they were ſo far from trying them by Marſhal Law in a Council of Warre, or, High Court of Juſtice, even in a time of open warre both in England and Ireland, that they aſſigned the ſaid Maguire Counſil, to argue againſt the very Juriſdiction of the Kings Bench it ſelf; whether he, being a Peer of Ireland, could in point of Law or juſtice by the Statute of 35 H 8. ch. 2. … any other Act, be …uted of his Trial by his Peers, and tried by a Jury of good and lawfull men of the County of Middleſex, for a Treaſon committed in Ireland, being ſent a Priſoner from thence againſt his will? Which was there*See Mr. Prynnes Argument thereof. publickly argued at the Bar by Counſel pro & contra; and then by the Judges, and overruled at laſt againſt him, before he was put to plead guilty or not guilty to his Indictment: after which they both were admitted to take both their peremptory and legal challenges to the Juries returned; (*32 H. 6. f 26. 14 H. 7. f 19. Brook Challenge, 86, 211, 217. Stamfords Pleas l. 3. c. 7 Cooks 3 Inſtit. p. 27. according to Law, admitting ſuch challenges even in Caſes of high Treaſon;) and all juſt Exceptions to the Witneſſes produced; and had a moſt fair and free triall; being found guilty by the Jury, before any Judgment paſſed againſt them, Which Juſtice he humbly craves in his Caſe, of leſs hainouſneſs and importance than theirs, being a native Engliſh free-man, and they onelyonly Iriſh Rebells; becauſe this his inherent Birthright and Liberty can e1 E 6. c. 12. 1 & 2 Phil. & Mar. c. 10, 11. Cooks 3 Inſtit. c. 1, 2.neither be forfeited by him for any real or pretended … or offence whatſoever, nor yet be denied or deferred to him (after all the premiſed Laws, Statutes, Charters, Judgments, Reſolutions, Preſidents) without the higheſt injuſtice; And he further ſaith, that to proceed againſt, trie, condemn, execute him in this high-Court without a legal Indictment, Preſentment, and Trial by the Oaths of twelve good and lawfull men according to the due order and courſe of the Common Laws of this Realm (and that in Weſtminſter Hall it ſelf, the place of Law & publick Juſtice, in time of Peace, when and where all other Courts of Juſtice are open) or in any other form by way of Martial Law, or otherwiſe than a juſt Jurie of his Equals, is not only illegal, erroneous, & againſt all Rules of Juſtice (the Commiſſioners themſelves being both his grand and pettie Jurie, and his Judges likewiſe; if not parties intereſſed, to whom he can take no peremptory nor legal challenges, which thefCook's 3 Inſtit. f. 27. Brook Challenge 217. Law allows him if tried by a Jury, in caſes of high Treaſonat this day;) but alſo wilfull and malicious Murder by the Laws of England, being againſt Magna Charta, c. 29. and done by ſuch power and ſtrength as he this Defendant cannot defend himſelf againſt, as is reſolved in Sir Edward Cook's 3 Inſtit. p. 52. & 224. (printed by ſpecial Order of the Houſe of Commons, dated 12 May, 1641.) and long before in Andrew Horn his Mirrour of Juſtices, c. 5, p. 296, 297. who records, that our noble King Alfred, cauſed no leſs than 44. of his Juſtices to be hanged in one year as Murderers, for condemning and executing ſome of his people without a legal Indictment and Trial by a ſworn Jury; and others of them for offences not capital by the known Laws of the Land, and without clear and pregnant Evidence. And this Defendant likewiſe ſaith, that the Commons themſelves ſitting at Westminſter, after the late Kings Execution, in their printed Declaration of 17 Martii, 1648. (expreſſing the grounds of their proceedings against the ſaid King, and for ſettling the preſent Government in way of a Free State, to which many in preſent power and …tting here were aſſenting and gave their Votes) did thereby faithfully promiſe and engage to the whole Engliſh Nation; That the good old Laws and Customes of England, The Badges of our Freedom, (the benefit whereof our Ancestors enjoyed long before the Conqueſt and ſpent much of their bloud to have confirmed by the great Charters of their Liberti…) which have continued in all former Changes, and being duly executed are the moſt juſt, free, and equal of any other Laws in the world; ſhall be duly continued and maintained; the Liberty, Property and peace of the Subject being ſo fully preſerved by them; adding, that if theſe Laws ſhould be taken away, all induſtrie muſt ceaſe, all miſerie, bloud and confuſion would follow; and greater calamities, if poſſible, than fell upon us by the late Kings miſ-government would certainly involve all perſons, under which they muſt inevitably periſh. And moreover, the General Council of the Officers and Army themſelves (whereunto moſt Officers and Souldiers in preſent power and ſome Commiſſioners here ſitting were parties) in the Declaration of their Engagements, Remonſtrances, Repreſentations, Propoſals, Deſires, and Reſolutions for ſettling the Parliament in their juſt Privileges, and the Subjects in their Liberties and Freedoms (printed by their own Orders and reprinted all together by Order of the Lords in Parliament, 27 September 1647) pag. 11, 36, 37, 38, 39. (eſpecially in their Declaration and Repreſentation tendered to the Parliament concerning the juſt and fundamental Rights and Liberties of the Kingdom, 14 May 1647) do profeſs and declare. That they were not a meer mercinarie Armie, hired to ſerve any arbitrarie power of State, but called forth and conjured by ſeveral Declarations of Parliament, to the defence of their own and the peoples juſt Rights and Liberties, and that they took up Arms in Judgment and Conſcience to thoſe Ends, and have ſo continued them, and are reſolved, according to the Parliaments juſt deſires in their Declarations, and ſuch principles as they have received from their frequent informations, and their own common ſenſe concerning thoſe fundamental Rights and Liberties, to aſſert and vindicate the ſame againſt all arbitrarie power, violence and oppreſſion, and againſt all particular parties and intereſts whatſoever; that ſo all the free-born people of this Nation may ſit down in quiet under the glorious adminiſtration of juſtice and righteouſneſs, and in full poſſeſſion of thoſe fundamental Rights and Liberties; without which we can have little hopes (as to humane conſiderations) to enjoy any comfort of life, or ſo much as life it ſelf, but at the pleaſure of ſome men Ruling according to will and power. That they deſire the eſtabliſhment of ſuch good Laws, as may duly and readily render to every man their juſt Rights and Liberties. And more particularly, in their Propoſals to the Commiſſioners of Parliament in order to the clearing and ſecuring of the Rights and Liberties of the Kingdom, Auguſt 1. 1647. Sect. 10. p. 114. they propoſed, That the Rights and Liberties of the Commons of England, May be cleared and vindicated from any other Iudgment, Sentence, or Proceeding againſt them other than by their Equals, or according to the Law of the Land. And this Defendant finally ſaith, that by the Instrument of Government it ſelf 16 December 1653. Artic. 6. and the Oath therein preſcribed to, and accordingly taken by his Highneſs, Oliver Cromwell Lord Protector, he is limited and ſworn; not to alter, ſuſpend, abrogate or repeal the Laws, and to govern theſe Nations according to the Laws, Statutes and Cuſtomes; cauſing Juſtice and Law to be equally adminiſtred: whereunto he is likewiſe obliged and ſworn again, by his Oath preſcribed in the late printed humble Petition and Advice. Neither doth that pretended Act, by which you here ſit as Commiſſioners to trie this Defendant (made by no legitimate, nor free Parliament of England, and that when near one hundred and fiftie Members thereof were cauſleſly and forcibly ſecluded) authorize you (as he humbly conceiveth) to proceed againſt him for any Crime therein ſpecified, to Conviction or final Sentence, but onelyonly as in Caſes of high Treaſon, and miſpriſion of Treaſon, and according to Juſtice; and that you cannot do but onelyonly by proceeding againſt him by a lawfull Indictment and Trial by a Grand and Pettie Jurie, according to the great Charter, Laws, and Statutes of the Land, and the late Petition of Right, which this new Act cannot repeal or null. All which this Defendant is readie to averr, juſtifie, and make good, when and where this high Commiſſion Court, or his Highneſs the Lord Protector ſhall appoint: which being a meer matter of Law, wherein both the liberties and lives of all the Free born people of England are ſo univerſally, highly, and equally concerned, as well as the libertie and life of this Defendant, proper only to be debated before, and reſolved by the Judges of the Law, or the high Court of Parliament; This Defendant thereupon humbly praieth, That it may be referred to, openly argued by his learned Counſel, before all the Judges, or a Parliament, & by them determined: and in the mean time humbly demandeth the Judgement of this High Commiſſion; Whether they may, can, or ought in point of Law and Justice, to proceed againſt, condemn, or execute this Defendant, upon anie illegal accuſation or Impeachment whatſoever, here exhibited or read againſt him, without a legal Indictment, Preſentment and Trial by a Jurie of his Equals? Or can take anie further connuſance of the Charge againſt him, for the premiſed Authorities & Reaſons; which he in all humilitie referreth to, and imploreth you to take into your ſaddeſt conſiderations, and that in the Name and dreadfull preſence of the Omniſcient, Omnipotent, SoveraigngGen. 18. 25 Judge of all the Earth, h2 Cor. 25. …0.before whoſe glorious Tribunal you muſt all ere long appear, (ſtript of all Earthlie Honors, Pomp, Guards, and Power,) to give a ſtrict acount of all your Actions, whether good or evil, and of your proceedings in this verie Cauſe; when this his Plea and Demurrer will riſe up in judgement againſt, and condemn you, in caſe you willfully prejudge, miſjudge, or reject it now, without due and full examination according to Law, Juſtice, Conſcience: And if the Conſideration of this terrible day of account and juſt retribution before Chriſts own Tribunal, ſhall not prevail with you to admit of this his Legal Plea and Demurrer, (as being after your deaths, perhaps manie years yet to come, and no waies endangering the loſs of your Lives, Lands, Honors or Eſtates in this preſent world,) He ſhall then humbly intreat you for your own future indemnitie (he hopes, without offence) ſeriouſly to conſider; That in the Parliament of 11 R. 2. c. 1. 5. 21 R. 2. c. 11, 12. Treſylian chief Juſtice of the Kings Bench, Belknappe Chief Juſtice of the Common Pleas, John Care, Iohn Holt, Roger Fulthorpe, William de Burgh Judges, and Iohn Locton the Kings Serjeant, were all impeached of high Treaſon, condemned, and ſome of them executed as Traytors and Enemies to the King & Realm, the reſt perpetually baniſhed, their Lands and Eſtates confiſcated to the King, and all acceſs of their wives, children or others to them during their exile, prohibited by Judgement & Act of Parliament, only for delivering their opinions (through menaces and fear of death at Nottingham Caſtle) under their hands and Seals, againſt the Law of the Land; That the Lords and Commons who procured the Commiſſion in the Parliament of 10 R. 2. for the better Government of the Realm, and moved the King to conſent thereto, deſerved to be puniſhed as Traytors, by capital pain of death: That ſo by colour of theſe their opinions, Robert de Veer Duke of Ireland, Nicholas Brambre, Knight, and others of the Kings ill Counſellers, might take occaſion to deſtroy and take away the lives of the Lords who procured and executed that Commiſſion, and others of the Kings people, by undue and illegal Indictments and proceedings, without any lawfull Trial by their Peers, as Traitors to the King. And the ſaid Sir iHenry de Knyghton de Event. Angliae l. 5. p. 2718, 2726, 2727, 27, 28.Nicholas Brambre for enforcing the Judges, with others of the Kings ill Counſellors, to deliver their opinions against Law, and for his beheading, executing 22 Priſoners of Newgate, (impeached and indicted of felony, or ſuspition of felony) at Foul-…oke in Kent by regal and tyrannical power incroached by him, without warrant, or due proceſſe of the Law, aagainſt the Great Charter and Ʋſage of the Realm of Engl. was in the ſame Parl. condemned for high Treaſon, & beheaded at Tower-hill on the ſame block, with the ſame Axe he had prepared to cut off the heads of others he intended there to execute as his Enemies. And that in the laſt Parliament of King Charles, thekTheir Impeachments are entred in the Iournals of the Lords and Commons Houſe. two chief Juſtices, Brampſton, and Finch, the chief Baron Davenport, and all the rest of the Judges and Barons, except two, were by the whole Houſe of Commons, and ſome of the Commiſſioners here ſitting, and Counſel pleading againſt this Defendant, impeached of high Treaſon, diſ-Judged, and put to fines and ranſoms, for that they had trayterouſly endeavoured to ſubvert the fundamental Laws and Government of the Realm of England, and inſtead thereof to introduce an arbitrary and tyrannical Government againſt Law; which they had declared by trayterous words, opinions and judgements in the caſe of Ship-money, againſt Mr. John Hampden; Which judgement and opinions concerned only the propertie of the Subjects goods, not the hazard of their lives, inheritances and forfeiture of their eſtates, as your preſent proceedings doe, being of a more high and dangerous conſequence; In which Parliament, by the like Impeachment and proſecution;*See Canterburie & Straffords printed Trials. William Laud Archbiſhop of Canterburie, and Thomas Earl of Strafford Lord Deputie of Ireland, were condemned and executed by Judgement of Parliament, and ſome here preſent, as Traitors, guiltie of High Treaſon, for that they endeavoured traiterouſly to ſubvert the Fundamental laws, and eſtabliſhed government of this Realm, and in ſtead thereof to bring in and ſet up an arbitrarie and tyrannical power, againſt Law. To prove which Charge, their arbitrarie proceedings contrarie to the Laws and great Charters of England, both at the Counſil Table, in the High Commiſſion, Star Chamber, and elſewhere were given in Evidence againſt them; and more particularly, the Earl of Strafford's proceeding againſt the Lord Mount-Norris in Ireland, by a Council of War in time of Peace, and condemning him to death therein without any legal Indictment and Trial by his Peers, againſt the great Charter & Laws of the Land, though he did not execute him thereupon: And whether your preſent proceedings of like nature againſt this Defendant, in caſe you reject or over-rule this his Plea and Demurrer, and condemn and execute him by pretext of an illegal Act (made by no free and lawfull Parliament of England,) for offences not treaſonable by the known Laws and Statutes of the Land, nor legally proved againſt him by any one Witneſs produced in Court before his face, without conſulting the preſent Judges of the Land (who refuſe to join or ſit with you in this new illegal way of Trial) will not much more involve you in the Crime and guilt of the verie ſelf ſame high Treaſons, for which they were thus anciently and lately impeached, condemned, executed by Judgment of Parliament, and ſo expoſe you to the like capital cenſures, forfeitures, confiſcations of your real and perſonal Eſtates, as they underwent, in future Parliaments, by your endevoring to ſubvert all the premiſed fundamental Laws and eſtabliſhed legal proceedings in the Land, and to introduce and ſet up a meer arbitrarie and tyrannical power contrarie to Law, to the endangering not onelyonly of the properties, but lives, liberties, and Inheritances of all the Noblemen, Gentlemen, Clergie-men, and other Freemen of England by ſuch exorbitant, martial proceedings, after all theſe Statutes, Judgments, with the late Remonſtrances, Declaratiions, Leagues, Covenants, and ſolemn Oaths of the Lord Protectour himſelf and others againſt them, yea after the many years Wars and heavie Taxes impoſed on the Nation for the maintaining and inviolable preſervation of theſe fundamental Laws, Liberties, and Rights againſt all arbitrarie Commiſſions and proceedings whatſoever; he humbly ſubmits to your own impartial Reſolutions and conſciences. And thereupon this Defendant praies his Diſmiſſion from any ſuch further proceedings againſt him without a lawful Jury and Trial by his Peers. And that you will be pleaſed after deliberate conſideration of the premiſes to reverſe and recall that arbitrary, unrighteous, bloudy Sentence of Death, you have newly paſſed againſt him, without anie lawfull Indictment, Preſentment, Trial, Confeſſion or Conviction of Treaſon, which ſtrikes at the Root of the Fundamental Laws, liberties, franchiſes of all Engliſh Free-men, and cuts off all their necks at one ſtroke, tranſcending all the arbitrarie, tyrannical proceedings of Strafford, Canterbury, and the late King Charles (whom ſome of your ſelves have impeached, cenſured, condemned, decapitated as the very worſt, and greateſt of Tyrants) leſt it become a moſt pernicious fatal preſident to poſteritie, to others, or your own deſtruction, and render you as execrable to all ſucceeding generations, as anie formerly guiltie of the like exorbitant proceedings.
Juſt and Legal Exceptions to the Cauſe and Manner of the Illegal Judgement given against Dr Iohn Hewytt; humbly tendred by him to the conſideration of thoſe Commiſsioners who denounced it.
THat it is ſpecially enacted by the Statute of Westminster the 1. ch. 12. and accordingly reſolved in Brook Pain 1, 2, 4, 5, 8, 9, 12, 13, 14, 15, 19, and the Year-Books therein abridged, by Stamfords Pleas of the Crown, l. 2. c. 60. Dyer, f. 205. a. 300. b. Cooks 2. Inſtitutes, p. 177, 178, 179. and 3. Inſtitutes, p. 217. That no man ought by Law to be condemned, or put to death in caſe of Treaſon or Felony, for ſtanding mute, or refuſing to plead, or put himſelf upon his Trial, or for challenging more than 36. of the Jurie peremptorily; but only in theſe caſes.
1. When and where the perſon accuſed and arraigned, is aaWeſt. 1. c. 12. Stamford, l. 2. c. 60. f. 149. b. Cooks 2 Inſtit. p. 177. 179 Notorious Traytor or Felon, and openly of evil name, and defamed thereof: But Dr. Hewytt is no ſuch perſon
2. When and where the Treaſon or Felony for which he ſtands accuſed, is bCooks 2 Inſtit. p. 177. Stamford, f. 150. a.notorious, evident, certain, or at leaſt very probable, and already found upon Oath againſt him by the Preſentment, or Indictment of an honeſt lawfull Grand-Iury of his Equals, of the ſame County wherein he is arraigned, or confeſſed by himſelf: All which Circumſtances and Evidences of Guilt were wanting in Doctor Hewytts caſe.
3. When and where the Judges, cStamford, l. 2. c. 60. f. 150 a.for the better ſatisfaction of their conſciences, and diſcharge of their duties, doe (as they ought by Law,) firſt openly examin the Evidence and Witneſſes, which prove the perſon arraigned guilty of the Fact of Treaſon or Felonie for which he ſtands indicted, before they proceed to give Iudgement againſt him for not pleading, or ſtanding mute. Which was not done in this caſe, there being neither Witneſſes nor Evidence produced in open Court to prove him guiltie.
4. When and where there is a legal Indictment found againſt the partie arraigned, which being read openly to him in Court, the Traytor or Felon thereupon, doth eitherdStamf. l. 2. c. 60 Cooks 2 Inſtit. p 177, 178. wilfully or maliciouſly ſtand mute, refuſing to anſwer or plead thereunto, (which theeStamford f. 150. b. 43 Aſſ. 30. Fitz. Corone, 225. 8 H. 4. 2. Cooks 2 Inſtit. p. 178. 21 E. 3. 18. Iury there impannelled to trie him, are by Law to enquire of, finde and return upon Oath:) Or, peremptorily challengeth above 35 of his Iury, without any legal cauſe or exceptions; Or elſe obſtinately fCooks 2 Inſtit. p. 178.refuſeth to put himſelf upon a Legal Tryal by God and his Country, being a Iury of honeſt, lawfull men of the County then and there preſent, *11 H. 4. c. 11 Cooks 3 Inſtit. p. 32, 33.retorned by the Sheriff alone, not Iuſtices or others, for to try him; to whom by Law he may take both his legal and peremptory Challenges) ſaying, That he will be tried, only by God and the Bench; or, by God and the Court, or Judge; org4 E, 4 11. 7 E. 4 29. Brook Pain 14. by God and the Virgin Mary, or Holy Church: there being no preſident extant in Records, or Law-books, of any Traytor or Felon hitherto condemned to die, for ſtanding mute, or not pleading, onelyonly for refuſing to be tried by God and the honourable Bench, Judges, Court Alone, without any Indictment or Jurie; and for earneſtly importuning the Court and his Judges, that he may be tried onelyonly by God and his Countrey, and on an Indictment by a Jury of his Equals according to Law, casting himſelf wholly upon ſuch a Trial, after a lawfull Preſentment and Indictment firſt found againſt him by a Jury. The onelyonly reaſon rendered in and by the forecited Statute and Law-books of all Judgments hitherto given againſt any Traitour or Felon, for ſtanding mute, and refuſing to plead, being this, hW. 1. c. 12. 3. Inſtit. p. 217. 2. Inſtit. p. 179. 8 E. 3. Itin. Nort. Fitz. Corone. 359. 14 H. 4. 7. Brook. Pain. 14, 15.Becauſe he peremptorily refuſeth to ſtand to and be tried by the Law of the Land, and a due and lawfull Triall by a Jury of his Equals, according to the courſe of the Common Law, and the great Charter. But Dr. John Hewytt is now condemned to be executed as a Traitour by the High Court of Juſtice, contrarie to all former Preſidents, Statutes, Law-books, and the onelyonly legal reaſon in former times of all Judgments rendered againſt any perſons in ſuch caſes; even for his frequent, earneſt, importunate demanding and peremptorie caſting of himſelf, upon a due legal Trial by God and his Countrie, and an indifferent Jurie of his Equals, according to the common, Statute Laws and great Charter of Englaud, after a legal Preſentment and Indictment to be firſt found againſt him: and for refuſing to waive this his legal Trial (to the publick prejudice of all other Engliſh Freemen) and caſt himſelf whollie and ſolie upon a new kind of arbitrarie Trial, contrarie to Law, By God and the Bench, Court, and the Commiſſioners themſelves, (who would be both his Grand and Petty Jury as well as Judges) without and before any legal Preſentment, Indictment, or Jurie impannelled or return'd to trie him. Therefore he humblie conceives this Judgment denounced againſt him upon this reaſon & ground alone, to be moſt erroneous, illegal, unjuſt, repugnant to all former Preſidents, & to one this verie Week at the Seſſions in the Old Baily by Judgment of ſome of his Judges at Weſtminſter) and of very dangerous conſequence. Whereupon he humbly praies the ſuſpenſion & reverſal thereof as unjuſt, and meerlie void in Law, by the Statutes of 25 E. 1. cap. 2. & 42 E. 3 c. 1. leſt the Execution of him for a Traitour upon this Judgment and ground, ſhould prove wilfull Murder, and a ſhedding of innocent bloud in the account both of God and man.
What therefore the Prophet Jeremiah alleged to the Princes of Judah, in a like caſe, when they reſolved him at firſt to be worthy of death, without a legal hearing or trial, Jerem 26. 11, 14, 15. As for me, bebold, I am in your hands, to do unto me what ſeemeth good and meet unto you: But know ye for certain, that if ye put me to death, ye ſhall ſurely bring innocent bloud upon your ſelves, and upon this City, and upon the Inhabitants thereof: Whereupon the Princes and People, upon ſecond and better adviſed thoughts altered their former bloudie Sentence, ſaying; This man is not worthy to die; for he hath ſpoken unto us in the Name of the Lord our God. And the hand of Ahikam was with Jeremiah, that they ſhould not give him into the hand of the People to put him to death. Shall be my Allegation to thoſe who have paſſed this unjuſt Sentence of Death againſt me; and if it produce not the like effect for their reverſal thereof, and my preſervation from its violent bloudie Execution, as it did in this Prophets caſe; I ſhall then earneſtly pray to God, that it may not draw down from Heaven that heavie Sentence of wrath upon them, nor that ſad Judgment upon the whole Land of England which this Prophet denounced againſt Jehojakim, Jer. 20. 17, 18, 19. But thine eys amd thine heart are but for thy covetouſneſs, and for to ſhed Innocent Bloud, and for oppreſſion and violence to do it. Therefore thus ſaith the Lord concerning Jehojakim; They ſhall not lament for him, ſaying, Ah my brother, or ah ſiſter, ah Lord, or ah his glory: But he ſhall be buried with the burial of an Aſs, drawn and caſt forth beyond the gates of Jeruſalem. And that which the Prophet Joel threatened to Egypt and Edom, Joel 3. 19. Egypt ſhall be a deſolation, and Edom a deſolate Wilderneſs, for their violence againſt the children of Judah, becauſe they have ſhed Innocent Bloud in the Land. And that againſt all Rules of Law and Juſtice, in that they intitle, The High Court of Juſtice, which will not palliate, butiEccleſ. 3 16, 17. Pſal. 94. 20, 21, 23. aggravate the Injuſtice acted in it, and make it more deteſtable both to Man and God himſelf, who averrs this for an undoubted truth;
Gen. 9. 5, 6. Surely your bloud of your lives, will I require; at the hand of everie Beaſt will I require it, and at the hand of everie mans brother will I require the life of man. Who ſo ſheddeth Mans Bloud, by Man ſhall his Bloud be ſhed; for in the Image of God made he Man.
FINIS.
End of the text · William Prynne, Beheaded John Hewytts Ghost (1659)