A True RELATION OF The Proceedings, Examination, Tryal and HORRID MURDER OF Col. Eusebius Andrewe. By John Bradshaw, President of the pretended High-Court of Justice, and others of the same Court.
Published by FRANCIS BUCKLEY Gent.
Who was assistant to Mr. Andrewe in the time [...]Imprisonment [...] an Eye witness to all the said most Blood [...] [...] execrable proceedings.
LONDON, Printed for Daniel Paken [...] at the Sign of the Rain-bow in Fleetstreet. 1660.
A True RELATION OF The Proceedings, Examination, Tryal, and Horrid Murder of Collonel Eusebius Andrewe.
ON Munday the 24th. of March 1649. Col. Andrewe, was taken prisoner at Gravesend by Major Parker, and by a Troop of horse that night conveyed to the George in Kings street Westminster.
The next day, he was convented before the Lord President Bradshaw, Sir Henry Mildmay Knight, & Thomas Scot Esquire, three of the Members of State, delegated by the Council for the taking of the examination of him, and of Sir Henry Chichley Knight, Doctor Henry Edwards, and Mr. Clark, casually found in the same Inn with Mr. Andrewe.
Those Gent. examined him so punctually to every action and circumstance that had passed on his part since he took up Armes, and especially since the render of Worcester, and his return from thence to London; and also concerning his several Lodgings, Names, Acquaintances, Removes, Abodes in the Countrey, correspondencies by Letters, and interest in places and persons, as if they had kept a Diary for him. Which considered, and that Sir John Gell Baronet, Major Barnard, Captain Smith, Captain Benson, and Captain Ashley, (with whom he had the last and most questionable correspondence,) were all in custody, he found himself to be betrayed, but could not at present guess by whom, but well saw that he had better be fair in his confession [Page 2] then to deny what he saw by the perfectness of his examirers, would be proved against him, by the discoverie of some of those formerly secured, and examined before his comming up; and was resolved to beare the worse, and not so much to shame himself, or his matter, as to deny things evident, or easily evidenceable, but rather to cast himself upon God, and come off as well as he could with a truth in his mouth, as the best way to meet death without shame.
In his Answers, he would have bin circumstantial, but was kept close to the Question; at his departure he desired that he might set down his own Narrative, according to his own sence, which was granted him to prepare, and to send or bring to them as there was opportunity. And having totally, as much as in him lay, excused (as was just for him to do) his fellow prisoners, as to any thing related to his Delinquency, he was with them committed to the Gatehouse.
Wednesday following, he was reconvented and reexamined.
On Friday, he was again convented, and delivered in his Narrative to the Lord President, and the House by business happenning detaining the other two examiners, he was by the President returned.
On Saturday, he was recalled, and the [...] as at all times before, used and treated with civility, and no little pressure to dcisover some great persons, his supposed confederates; the aime, as he conjectur'd (and that upon strong inference, and some expressions) was at Sir Guy Palmes, Sir John Curson, and Sir Thomas Whitmore &c. But he accounted it a great blessing in his inhappiness, that his misfortune was not cumulative, nor fatal to any his friends or familiars, who yet knew nothing of the reason of his Imprisonment, more then for what they were beholding to common fame, and had no share in his fault, (such as it was) and he was glad that he could as well engross the suffering to himself.
On Sunday next, he was called out of his bed, and by two Messengers, his Keeper, and his Man, brought into a boat at Kings-bridg at Westminster, and thence carried to the Tower. The warrant which at the Lievtenants house was read, imported, That he was committed close prisoner for high treason, in endeavouring [Page 3] to subvert the present Goverment, &c. To be kept till delivered by Law.
He was designed by the Lievtenant, Collonel Francis West, to a prison-lodging; but having notified to him his quality, he was put into the custody of Mr. Richard Standon, one of the Yeomen Warders, in his house, equally convenient with the best in the Tower. At his coming to the Tower he had but two shillings in his purse, and supposing he should have been provided for diet as the States prisoner, he sent to the Lievtenant, to know what he would order for him? who returned, That if he had money he might have what he would, but at his provision nothing.
His Keeper was upon his delivery to his charge, commanded to keep him safe, and if he escaped threatened to be hang'd, and a centinel set immediatly at the dore, and that day two Gentlewomen comming to see him, were all night imprisoned in the Round-house, and next day carried to the Council of State, and strictly examined.
His Waterman that week brought him some money, for which, and some affectionate words spoken of him, he was convented before the President, examined, rebuked, and dismissed; and a centinel set at the window of M. Andrews Lodging, that he might not speak to any without.
The Narrative follows.
To the Right Honourable the Council of State.
The humble Narrative of Collonel Eusebius Andrewe, as to the Questions and matters of charge whereupon he was examined before the President, Sir Henry Mildmay, and Thomas Scot, Esquire, in that behalf delegated by the Council the 27th day of March 1650.
BEing unfortunatley, and by a treacherous practice seduced into an action which renders me obnoctious to your Lordships displeasure and Justice, and thereupon convented and brought to examination, I assured your Lordships delegates, that I came with a resolution to deal candidly, and not to preserve my life by framing a Lye, or by denying a Truth. The same purpose I still retein, casting my self wholly at your Lordships feet; humbly praying leave, that while I answer to matter of fact, I may be permitted to cloth it with the pertinent circumstances; That while the one layes me liable to your Justice, the other may bring me within the capacity of your mercy; which in case it be afforded, I shall embrace with all humility and thankfullness. And if denied, I shall find cause within my bosome to justifie God Almighty in his permission of my ruine, and I hope Charity enough to forgive whosoever have, or shall be instrumental to it, and bear the gurdon of my folly with a sober confidence of Gods reserved favour.
My Engagement for his late Majesty began soon after Hillary Terme 1642. and continued until the surrender of Worcester in July 1645.
I have omitted to make my composition, not having a considerable, and not willing to own an inconsiderable estate.
I have not taken the Protestation, Solemn League and Covenant, Negative Oath, nor subscribed the present engagement.
[Page 5] John Barnard, sometimes Major under me, and by reason of his good parts and sober demeanour, being in my good opinion, at my return to a private practice in my calling for my necessary support, frequently visited me, and imparted to me such occurrences as he met abroad in discourse, and did often intimate the discontents of the Reformades, the factions of the Levellers and Agitators, and the proceeding of a certain Committee, or select Council of Officers, of which Col Cooke was cheif, and himself their Clerk, upon a printed charge against some for oppression, and against others for conceal'd delinquencie, to the penning, promoting or counselling in which, I was originally a stranger, This is mentioned because the Speaker & I his Brother hold me in jealousie and were both accused by that printed paper. nor did ever interest my self therein further then the hearing his discourse, neither did ever mediatly or immediatly meddle with any of the persons or actions of the Reformades, Levellers, or Agitators upon any his discourses.
This error in time, as some others both of substance and circumstance, are rectified upon better memory by some following papers sent to the Lord President M. Bush though discovered by B [...]nson, & first upon my examination and after by my Nar [...]. mentioned, yet was not apprehended, which gave me ocasion to believe him a dissemblor. About Trinity term last, Major Barnard obtruded to my acquaintance one Captain Holmes, who soon after brought with him one John Benson, (who pretended to have had command under Sir John Gell, was anciently his servant, and until this time his dependant,) who uninvited frequently produced to me transcripts of Letters, (with the coppying of which he pretended to be entrusted under Mr. Rushworth) which did appear to purport the occurrences in reference to the affaires of the State, and their concernments at home and abroad, from their several agents; which I only read in his sight, and immediatly delivered them back, he pretending that he was to carry them to Mr. Thomas Bushell to be transmitted over sea.
Captain Holmes, and John Benson, in their discourses did insinuate that their interest was great in the Reformades, and that by them great advantage would upon any importunity be done for the Royal partie, and magnified Sir John Gells interest in his countrey, his reluctance at what he had done in the Parliaments service, & his willingness to expiate his former fault with a beneficial service to the Prince. And Major Barnard propounded, that a former design in the time of the warr laid by me for the taking of the Isle of Ely, might by their help, and the conjuncture of some strength to be raised by Sir John Gell, then to me a stranger, and by Holmes and Benson, pretended to be willing [Page 6] and able to raise considerable numbers, be revived and executed; and thereupon it was concluded, This relation is rectified by another Pap [...]r being mistaken in time &c. that I should with Benson trie who in Cambridgshire would engage in it, and then ride down to Sir John Gell, to see if his strength and purpose were such as pretended; and this not to be executed but upon the contingency of successes in Ireland, and Scotland, was let fall as soon as conceived.
About the middle of December, Captain Holmes brought me instructions, to draw a petition for Sir John Gell, for the getting of his arrears, which I drew accordingly, and not long after, I was invited to give him meeting, till then having not seen or corresponded with him, and received an invitation and instruction to arbitrate between him and his Lady, with Sir Thomas Prestwich, and amongst other discourses, Sir John Gell did take notice of his irrequital for his service, and his losses, and the misapplication of his, and other services, to an end they intended not, & that he desired to be so understood, and when opportunity should be, This had been confessed by Benson and all particularly questioned of me. to be so represented to the Prince; and did intimate, that if ever he took up armes again, it should be for the Prince: and at several other subsequent meetings, the discourses were general, and much to this purpose, but no particular design laid or contrived.
The time limited by the Act for departure, &c. being neer expired, and my self being purposed to withdraw into the countrey, vntil the summer voyage into some of the Plantations, and to that purpose being in treaty with Sir Edmond Plowden, about the conditions of New Albion plantation, of which he writes himself Count Palatine, and Proprietor; on Saturday 16 Martii, I was unexpectedly visited by Major Barnard, and John Benson, and they enquiring my resolution concerning my leaving the Town in obedience to the Act; Bernard & Bensons proposition. I signified my purpose to go to New Albion, or to Virginia; upon which they took opportunity to make proposal to me in effect, that they had a considerable design laid, and friends and money to set on foot and back it, and that I should have two hundred pounds in hand, and power to draw money by bills of exchange for what more should be necessary for my supports, and manage of what should concern the said design in Holland, if I would undertake to go over, [Page 7] and promote it to the Prince: and they did then in general termes signifie, that it was an easy matter, especially, the Cavaliers going out of the Town, by correspondence in all counties, to surprise the horse of the army in their several quarters; and did intimate, that Major Barnard had a design in a draught, which as I remember he produced, and I believe was concerning such surprisal, but was not read, but referred to further time of consideration. My Answer was, My Answer. That if the money were ready I would divert my former purpose from any Plantation, & entertain the motion.
Sunday morning, they came again and informed me, that several persons of quality and fortune in Kent, Buckingham, and Dorset, were, or would then presently come up neer the Town, and would joyn in an engagement, and advance moneys, and that Sir John Gell would also engage, and might with a word of his mouth bring in his friends, and Sir Andrew Kniveton, Sir Guy Palmes, and Mr. Fitzherbert, and a fourth person, whose name I remember not; and therefore desired me to draw an engagement, (which I did in a loose paper, after the sence by them or one of them, the said Barnard, or Benson, instructed) and to move Sir John Gell to joyn in such an engagement, but did not press me to joyn in the same at that present, for the encouraging of their before mentioned friends, amongst whom, I remember only these Sir-names Boyes, Thatch, Baker, all to me absolute strangers.
That day I spake with Sir John Gell, and acquainted him with their offer and proposal to me, Sir John Gell. and desire from him. He answered, That he would not meddle with acting in that design (which he took upon him to be acquainted withal,) for which he was as then in no capacity, nor would be engaged under his hand & seal, to be bound to be any future action for them, for that Benson was a fellow given to drink, and lavish of his tongue; but entrusted me that if I went over upon rhis occasion, to possesse the Prince with a good opinion of him, and that he would do nothing against him; & if he were at all in command, he would be so to his advantage, or to that effect.
I returned to them Sir John Gells answer, with which they were not, or seemed not altogether unsatisfied, and appointed on Munday five of the clock, that the persons of the Counties of Kent, [Page 8] Buckingham, and Dorset, or some of each Countie from the rest, should give meeting at the Three Cranes at the Savoy gate, and be all satisfied in the Design, and agree their respective proportions of monyes to be paid in present, and raised for the future; desiring me to take care to move, that they might be also provided for to be able to hold intelligence, and ride about from place to place to lay the design.
At the time I came, and Major Barnard produced two letters, one subscribed by Smith, another by Thatcher, purporting, that the Kentish Gentlemen were come as farr as Rochester, and would that night be within twelve miles of London, and lie there all day, and then in the evening, on Tuesday by eight of the clock, would at any place give meeting to himself, and his Collonel; and that they had sent an especiall guide to bring Barnard to them that night, whether he was instantly desired to repaire and that they durst come no nearer in feare of the watchfullness of Collonel Blunt; and that two hundred and fifty pounds were ready to be laid down to perform their undertaking. No man of any Countie giving any meeting according to the first appointment at the Cranes, but the said Barnard, and Benson, and one who calls himself Captain Ashley, only known in face to me, who pretended to be privy and knowing of the truth of all what their former discourse and these letters tended to; and Barnard pretending to go instantly to horse from Westminster; I brought him and Benson, to the water side, and in the walk they importun'd me again to obtain Sir John Gells signature, and seale to the engagement, which Benson had then ready engrossed, and that I would go persently to Westminster with them about it; which I refused, and told them, that I was able to satisfie any man of quallity, discretion, and secresie, concerning Sir Johns reallity, though not actually engaged; and so left them.
That night about eight of the clock, one Smith, to me (till then) an absolute stranger, and Captain Ashley came to me, and brought me a letter from Major Barnard, highly reproving me, and Sir John Gell of backwardness, in witholding our own hands from the engagement, and that we intended our own honours upon their dangers, without giving them assurance of our secresie and constancy; and that unless the engagement were subscribed [Page 9] b [...] Sir John Gell, his Kentish friends would not proceed further, aywas known to Mr. Smith, who took upon him to come as from them for satisfaction in that point. And in answer, I under a vow of secresie told him, that I was satisfied concerning Sir John Gell, and presume, that if any Gentleman of quallity in whose Judgment the rest would abide, should address to Sir John, that under an Oath of secresie he would satisfie him, but durst not trust Benson, and Barnard was to him a stranger; with this they departed, assuring me that they thought no more would be expected from Sir John, and that they would, or one of them, away that night to the company, and that the next day being Tuesday the money should be paid at the Palsgraves head.
They brake their time, and my occasions prest me into London, being next day to be gone by the Act, and about nine of the clock at night, This was done by three and confessed, but omitted here but is by another paper supplyed, &c. I was sent for by Captain Ashley and Benson, who delivered me a letter from Barnard, pressing me to subscribe the engagement which Benson engrossed, and that being done, he would go with me next day to Gravesend, and the Gentlemen of Kent should meet there, and there the money to be paid.
The tide being fit for passage, on Wednesday Barnard came not, but Benson pretended him to be at Tottenham Court with the Buckinghamshire Gentlemen, and that he was well hors'd, and would come presently, and should follow; and so Captain Ashley and my self, with no more then fifty shillings in my purse, presuming upon the money there, went to Gravesend, and expected till Thursday night, but found no Kentish men, and no one from London coming. Captaine Ashley went that night with the evening tide for London to enquire the reason, and on the Friday morning early came Major Barnard, and Mr. Smith with a letter from Benson, purporting that if Sir John Gell would not co-ingage under his hand and seal, with those whose names were subscribed (of which I only know Barnard, Smith, Benson, and Ashley,) they would go over themselves (meaning himself and Barnard) to the Prince, and spoile both mine and Sir. Johns credit with him, and disappoint all that I intended in his favour, and that he had letters [Page 10] from Sir John which he could produce should make him repent his refusal, or to such effect, and therefore desired me to write to Sir John Gell, to let him see his danger, which I did, laying the case before him, and not pressing him, but leaving him to do as God should direct him, and his judgment lead him: with which letter Barnard and Smith went away, with assurance that whether Sir John Gell engage or not, I should hear next day from them, and if he did engage, they would come down and go for Rochester, where their former undertaking should be performed to me; and if he did not, I should be disengaged, and have my subscription and seal sent me, and the design should fall. I expected till Saturday night, and finding no answer, resolved on Munday to intendmy privicie in the Countrey upon my first purpose for new Albion, and in the morning early was seized by a party of horse, and brought to London.
In that Narrative you will see a believing nature wrought upon by treacherous men, such who cannot be true to any, whilest false to parties.
The pretended design vanisht, as never being more then a phantasm, and not worth your regard, the real design effected so farr as they had power or opportunity, that is, to bring the game into the toyle, and there leave them to be entangled and made a quarry.
You will find me passively Active, being prompted and enticed by their insinuation, and not once but hearkening to them.
It lies in your Lordships power to cut me off, Since I saw the Act I am of another opinion if Law be not altogether out of fashion. by extending which you can arrive no honour amongst men, and possibly by an Act of lenitie you may do an office acceptable to God.
Whosoever shall be present at my Tryal, or into whose hands this Narrative shall fall, will easily conclude with me.
[Page 11] On the Tuesday after his remove to the Tower, 1 Apr. he was called to be further examined, and at his return writ back to them some particulars ( viz) concerning Captain Holmes by want of memory not before signified. And in case the State should have suffered ought by the said Holmes, it might have made Mr. Andrews incapable of lawful favour, by reason of his tenacity concerning the said Holmes, who (for ought Mr. Andrewe knew) was guilty of his being betrayed; And if so, might as well intimate his knowledge of Holmes purposes, to the end that Mr. Andrews concealment of them might augment his crime, He was much prest concerning Mr. Bar. and also concerning Mr. Thomas Barnard, who being at large and unquestioned, Mr. Andrew had cause to have the like jealousie of.
On Friday sevenight following, 11 Apr. he was called again, and was confronted with Sir John Gell, and avowed what he did indeed neither directly deny, nor was troubled that he did averr; freely telling the President, that howbeit he did not remember some things in point, yet he was confident that he would not do him, nor any man wrong; And then declared to the President that he look'd upon Sir John Gell, as upon himself, as a betrayed man, but as concerning others, he knew not by whom he had been free in his confessions though to his own injury.
He then acquainted their Lordships, that he had something to rectifie in his former examinations and papers, upon better memory in point of material circumstances. They directed him to put them into writing, and to send them, and they called for his hand to the former examinations and papers; which he gave them, and the same day writ to them as followeth.
To the Right Honorable the Lord President and Council of State.
ACcording to the favourable licence by your Lordships to me given, I have digested into writing those matters of circumstance, wherein my examinations and narrative, are in defect of my memory only incertain and short; humbly praying that they may be recieved and made a part of that relation, which I must abide by at my Tryal; and that the former errors may be rectified and defects supplied so far, as by this suppl [...]mentary account upon my serious recollections given, may be done. And I shall then be confident, I shall appear not to have willfully concealed (however guilty) or misrendred any thing pertinent, whether the same carry with it my condemnation, or excuse.
What passed between my self and Mr. Barnard, before my acquaintance with Holmes and Benson, and which is exprest in my answers, and narrative, was in time before Easter Term last, when there was an order for departure of persons in my condition, from this Town, and I in obedience thereunto, did leave this City on Saturday the sixt of May, and came to Mr. Osborns house at Carleton Hall in Suffolk, on Thursday following, from whence I stirred not at any time more then five miles, until the sixt of August, when I was sent for to make assurances between a Kinswoman and her husband in point of Joynture, Arth. Wollaston Anne his wife Jane Andrewe Mr. St. John. by them to me mutually referred, in which business, and in other matters between another Kinswoman, and a Merchant of London, being under refference to Arbitrement: as also in endeavouring to get some friend to contract in the behalf of my daughter, for the reversion of a Lease holden of the Deane and Chapter of Ely, in which she is interested for a Life in being, I continued in and near the City, until the third day of September, in which time Barnard voluntarily brought to my acquaintance Holmes and Benson, upon the pretences in my Answers [Page 13] and Narrative set forth, and to which I humbly referr.
The note which mentioneth Bensons going with me to Cambridgshire, and so to Sir John Gell, which in my Answers I have expounded, was drawn from me by Barnards importunity, and written at his request, but what use he made of it, (other then to lay it up and reserve it for his present purpose) I know not, nor had any account of it, but went away the third of September, there being no conclusion of any thing to be done in substance, or circumstance positive. But Mr. Barnard who knew how to direct o me, promised by Letter to intimate further to me, from whom after that, I never received any letter or message to that, or any other purpose, untill my return neer Michaelmas Terme, when he told me, that the insuccesfulness of things in Ireland had been the impediment.
As to the day, viz. The 18th day of October, being the Fair day at Ely, it was only in discourse mentioned to be an opportune time, in case the Isle were (as indeed it was not) Garrisond. Neither any solemn or serious design or conclusion, then to-fore or then after made or laid, other then in transient communication, nor any person engaged so much as by word or promise, until this fresh stratagem was set on foot by Barnard.
I drew Sir John Gells petition before Christmas, and had several complements from him by Holmes, (at least pretended) before I saw him, and I believe after Twelftide I was invited to him, and entrusted by him in the composing the differences between him and his Lady: In the last Terme I drew his answer, and in the several times of our casual or occasional meeting, the discourses have amounted to what I have before signified, and in your presence and his avowed, and how more exactly to give your Lordships an account in time I cannot.
As to the matter of the engagement I abide by what I have formerly said, with this only, that at my engaging, which was late in the night, before my going out of Town, in obedience to the Act, I was promised by Benson, that if Sir John Gell, and their pretended friends of the Countrey did not co-engage, I should be disengaged; and in the hour of my going away, Barnard being not ready according to promise, but by Benson pretended [Page 14] to be at Tottenham Court with some Buckinghamshier men, and that he would undoubtedly follow, I told Benson as I remember in the presence of Captain Ashley, that whether he came or not, I must for the present remove to Gravesend not having convenience of horse to go elswhither so suddenly, and if there were performance on Barnards part with me, I should be ready on mine, and if not, I desired to be disengaged, and left to pursue my private occasions into Surrey, and I did really carry with me deeds of my Clients, to have employed my self upon, 11th Apr. in case of their failour with me.
I humbly begg your Lordships pardon for a favourable interpretation of this trouble, Dated by mistake the 13th but writ and sent the same 11th day of April. which is a duty to truth, and right to others, and my self; which could not be omitted by
This together with a petition penn'd by their own direction, for allowance and liberty of friends resorts, being the same day sign'd in the presence of the Lievtenent were seal'd up, and sent by Mr. John Standon, who delivered them to the Lord Presidents own hand.
This was his second petition, which with a former to the same effect, (and not of moment to subscribe) did never receive any answer.
At the same time he writ to Sir Henry Mildmay, on the behalf of the Gentlemen who were taken with him in these words.
The past nobleness I am sensible of at your hand, used towards me, in the civil treating me when before the State, though a great delinquent, gives me this encouragement, and you this trouble by my present address. It is no small encrease of my proper misfortune, that I see such who were taken with me, as Companions to my person, to share so deep in the punishment, as do those Gentlemen Dr. Edwards and Mr. Clarke, persons so free from the guilt of my evill, that I am confident they cannot yet give an account for what cause I am deservedly a prisoner, though it were made the price of their liberty. I am an humble suitor to you, that you would take them into your favourable consideration, and to mediate their enlargement. And that you would not let them have a worse place in your thoughts for that they are recommended to your favour by
This was read by the Leivtenant and sent with the other two, &c.
Mr. Andrewes at several times took upon him to averr to the Committee of States, that they had spies upon him for some years, and particularly Barnard, which the Lord President did not deny, but justified the State, by the practice of all States to set watches upon persons of ill affections to them.
This day the Lord Grey was with the other three of the State
His third petition sent about Easter, being by Sir Henry Mildmay, and Mr. Scot, put upon it, to submit himself, with promise of favour if he sought the State in such manner; which for his relations sake he did, but with some caution in these words.
To the Right Honorable the Lord President, and Council of State.
The humble Petition of Eus. ANDREWE.
THat your petitioner is seriously sensible, and humbly acknowledgeth, that for his high delinquency against the State, he is become forfeited to their Justice.
That he hath not in the least prevaricated with your Lordships, in the confession of his proper faults and follies, nor hath kept ought reserved concerning himself, or any person, or thing, which may satisfie your Lordships, and more secure the State, and is not hopeless to be look'd upon as capable of your present favour and future mercy, which he now doth, and shall alwayes implore.
That his present deserved condition is made more uncomfortable, by his wants, and the exclusion of his friends and relations, without a supply in which, life it self becomes a punishment.
Your petitioner casting himself at the feet of your Lordships, humbly prayes.
That his being prosecuted before the High Court of Justice, may be suspended.
That by your order, his pass and future charge of necessaries may be discharged, whilst he remains your prisoner.
That his friends and kindred may have recourse to him, and that he may have the freedome of his pen.
And in case your petitioner shall be bound in the least to misapply those favours, he shall adjudg himself worthy of a totall deprivation of them, and of your future goodness towards him.
[Page 17] This was less then was look'd for, though as much as he could venture on; in which his desire for respit of his Tryal was inserted, to prevent only his being the first, and exasperating them by giving others aime in the scrupling the Court.
This petition was solicited 33 dayes, but no answer could be obteined, and his wants growing upon him dayly, he sent this following Letter to the Lievtenant, who had begun to appeare for him, but had declined it again.
NEcessity hath bin long since out-law'd, and is in it self apology enough for that crime, of which uncompelled I cannot be guilty, The breach of good manners.
In what condition I was sent to you the States warrant tels you, with what punctuallity that hath bin observed your self well know. To which if you please to lay the conventing of my Waterman before the Lord President for supplying me with my own, and the imprisoning of my Kinswoman in your Round-house all night, and carrying them to the Councill, for but intending me a visit in my distress, the interdiction, and orders of the Tower being to them strange; as also the placing of a dayes Sentinel against my window next the river, whose greatest use (for ought I know) was to tell the inquisitive passers by, my name and dangerous quallity; you will easily inferr an impossibility for me to live of my self, or to be susteined by friends, to whom it is visibly imputable as crime enough but to be related to me, either in blood, or amity; and what is not safe for them to doe, is not honest in me to invite.
That I have not been wanting in praying for relief from the State my three petitions, to which you were privy, informe you, having in them said so much, that more I cannot say, and to repeat the same, would but argue that I thought my self hither to not understood, which may not without a new fault be made a question; how dilligently those have bin solicited, you [Page 18] have bin often a witness, and by my case A case concerning his condition besides my 3 peritions where was by the Lievt. presented to the President. presented to you may find that I may not in modesty longer press a person to me unrelated, and by me no wayes obliged to make his time and purse mine, by pursuing and undertaking, upon so little encouragement as ten weeks past fruitless attendance, and the expence of more then four pounds, which as all reward for his travaile are become as desperate in his thoughts, as I am in the opinion of all observers.
What by Mr. John Standon began, was by him and me intended in your ease, though (if I understand your words) misconstrued as a neglect of you to whom it belongs, (pardon that I must say it) as a duty to your place, not the persons, to acquaint the State with the wants of your prisoners, being not only obliged to keep a prisoner safe from avoyding the Law, but in a condition of life to be produceable to the law when called, which is at present understood and practised in less honorable prisons, and was in this, in the Government of your Ancestors.
Though I would not willingly beget you trouble, and do set a better price upon you, then to make you my solicitor; Yet when life and breach of complement are put into the ballance, my hand may justifie a little enclining of the Beam.
Having thus premised to you, I must and do call upon you to be instant with the honorable Council of State, that by their order upon my last petition I may receive releif in what is thereby desired, in such measure as they shall think me capable.
Sir, If you shall please to give your self, your honour, & conscience an account in this serious matter, I shall not doubt to receive, by your pressure and the States condescention, a seasonable help, and you shall not think it a concernment worthy of your place and person to take notice of; I must beg you pardon if I acquaint my wants to the people by hanging out a box for releif, which will beless dishonour for me to do, then for you to necessitate me unto.
[Page 19] In this letter be pleas'd to distinguish my capacities, a Gentleman, and a prisoner, in this I am not unreasonable your trouble, in the other I am and shall be.
This letter engaged Mr. Leivtenant, and he stirred again till he was weary, and then took to his assistance, and noble Lady who had obteined an order to speak with Mr. Andrewes but in the Lievtenants presence. And because the former coals were dead, he put in the Lievtenants hands this following petition, which with a Letter was sent in a letter of the Leivtenants to Serjeant Dandy, by the hands of Mrs. Elizabeth Colchester, and was both by her, and the Leivtenant several times attended but not answered.
The Petition, with stile as formerly &c.
That your Petitioner hath been 12 weekes close prisoner, his friends neither permitted to visit, nor daring to releive him, his score for necessaries swolne beyond his abillity to discharge, his credit protested, and nothing more visible to him then his immediate perishing.
That he hath not been wanting to pray your favours, having three petitions lodging with your Lordships, constantly folicited, but unanswered.
That he hath in his confessions spared nothing which can more conduce to the States security, or his own condemnation.
Your Petitioner therefore humbly prayes
[Page 20] That if at all he must, he may speedely receive his tryal, he being ready to submit to the will of God in the issue.
That if mercy be reserved for him, which he hath, and doth implore, your Lordships would please to admit him to sue out his pardon, and to a free conversation in this Commonwealth, upon security given for his future good demeanour.
That in the mean time he may have the liberty of the Church and Tower, and the freedome of his friends resorts, and that order may be given for the debt incurred there in the time of his close restraint to be discharged.
And your Petitioner &c.
Mrs. Colchester a person of quallity having many suits, in which Mr. Audrewes had bin formerly constantly and only her Council, as to all the advising and penning part of her business, after a months solicitation, and with the assistance of some powerfull friends obteined the following order. Which was strictly observed.
Whereas we are enformed by the Petition of Mrs. Elizabeth Colchester that she hath several suits at Law, wherein she hath formerly imploy'd Eusebius And ewe Esquire, now prisoner with you, by warrant of this Council, and that no other person can enable her to instruct other Council, and hath thereupon petitioned us that she may have access unto him. These are to will and Authorize you to permit and suffer the said Mrs. Colchester to speak with the said Mr. Andrewes, provided it be in your presence, and within you hearing, and that it be not about any matter concerning the affaires of the Common wealth, but about her own particular affaires only. For which this shall be your warrant.
[Page 21] When this order was granted Mr. Andrewes three Petitions, were with the State, and moved by many friends, might have been taken into consideration, but were not; and had not his life been preserved by this Gentlewoman, who under colour of the said order did often releive him, he must of necessity have perished, having been fourteen weeks close prisoner.
The Warrant of Commitment which I could not get a Coppy of till the 14th of July, is as followeth.
THese are to will and require you herewith, to receive into your custody the body of Eusebius Andrewe Esquire, and him you are safely to keep in close imprisonment in the Tower of London, in order to his further examination, he being committed unto you for high Treason, in plotting and endeavouring the subversion and alteration of the present Government; of this you are not to faile, and for so doing this shall be your warrant.
This warrant is vitious in it self, Cook 2d par [...] Inst it. so, 5 [...] 590. 591. allowed for b [...] the Parliame [...] fol. ult. in two reasons which make a right warrant of Commitment.
1. That it is not done by due process of Law.
[Page 22] 2. That it hath not a conclusion, viz. and safely to keep until he be delivered by course of law.
But leaves it indefinite and is rather a condemnation to perpetual, at least to arbitrary imprisonment, which is worse.
The close imprisonment, is but in order to his further examination, and he had been twice since examined, and signed his examinations before Easter, and did not refuse to answer any question demanded of him.
The warrant is dated from the Council of State sitting at Whitehall the 30th of May, whereas he was brought to the Tower the 30th. of March, being Sunday, by seven in the morning, at the opening of the Gate, (no Council sitting) and the warrant sign'd on Saturday the 29th of March.
Having attended a Month in expectation of an answer to his last petition, without answer he addressed the following letter to the Speaker, and the Petition inclosed to the Parliament, of which these following are the true Copies.
NOthing but an Iron necessity could have induc'd me to the fault of begetting you this present trouble, and to intrude upon that little vacancy you have from the publick, to intend your personal affaires, of that necessity the enclosed is the epitome: the treachery of my betrayers, and mine, and my innocent friends sufferings, by the inflexbility of those under whose immediate power I am hereby fallen, are extendible into no small volume. I am therefore compelled Fontem petere, and wanting the opportunity of a familiar, to make use of this extraodinary way of address, which I hope will meet such goodness in you as will not need a larger apology. Pardon I pray that I press your Honour, in sence of honour and piety, to present the inclosed as the humble representer of my sad condition, and, in my intendment, humble desires. And when it shall come to be by that grave Assembly taken into consideration; that your self, and those honorable persons would reflect [Page 23] upon me, however clouded under my present (though nothing justifiable) crimination, as upon a Christian, and a Gentleman, and of that, in it self, honorable long Robe, though sullied by my wearing. I will not multiply your distubance by an impertinently long Epistle, knowing I am easiely understood, and hoping to find a propensity in your honor to afford what favour may be lawfully extended to.
The Petition to the Parliament followes.
To the High and Honorable the Parliament of England.
The humble Petition of Eusebius Andrewe Esquire close prisoner in the Tower of London.
THat your petitioner hath been by a confederate pack of setters, wrought into action; which (abstracted from their circumstances) render him liable to your justice, and this done, not without their further hope, that your petitioner, as they supposed, had interest to have drawn divers persons of quallity and fortune into the same entanglement.
That failing of that part of their aime, the said confederates did betray your petitioner to the honorable Council of State, by whose warrant he hath bin 16 weeks a strictly close prisoner, [Page 24] without a fortune of his own, the access of friends, or means of substance allowed; and is like to perish by his wants, before it be distinguisht by a publick Tryal, whether he be a fitter object for the applying of your justice, or your mercy.
That he is hereby disabled to be accountable to the service of God, the duty to his family and friends, and to those who give him credit for bread. And in case he should be call'd from such his close restraint to his tryal, must be destitute and deprived of all fair means of making his reasonable defence, which however it may sute with pollicy, will not be consistent with Religion and Honour.
Your petitioner having, for releif in the premises, by all opportune addresses, and by four petitions improtunely solicited and sought the said Council of State without answer. In the deep sence of his pressing sufferings humbly appealeth to this high Court, casting himself wholly thereupon, and as humbly prayeth.
1. That you would prevent your Justice by your mercy, and admit him to sue out his pardon upon security given for his future good demeanor to the State in this Commonwealth.
2. That if that be too great a favour you would grant him licence to depart the Common wealth he engaging not to act or contrive ought to the disservice of the State.
3. That if he be not thought capable of either, but that he must receive a publick tryal he may have a convenient time of preparation after a quallifying of his imprisonment.
4. That in the mean time he may have the liberty of the Tower, and resort of his friends, and that by your order his debt for livelyhood incurred in his close restraint may be discharged.
In all which your petitioner is ready to submit to the will of God, whose providence hath put Justice and mercy into your present dispensing.
The humble Answer of Eusebius Andrewe Esquire, Answer. 1. in his defence to the proceeding against him before the Honorable the High Court of Justice presented 16th. day of Aug. 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, offereth to this honorable Court.
First, That by the Statute or Charter stiled Magna Charta, which is the fundamental Law, and ought to be the standard of the Laws of England, confirmed above thirty times and yet unrepealed, it is in the 29th. Chapter thereof Granted and Enacted,
1. That no freeman shall be taken, or imprisoned, or be disseised of his free hold or liberties, or free custome, or be out-lawed, or exiled, or be any otherwise destroyed, nor we shall not pass upon him, nor condemn him, but by a lawful Judgment of his Peeres, and by the Laws of the Land.
2. We shall sell to no man, nor deferr to any man Justice or right.
Secondly. That by the Statute of 42 of Edward 3d. Cha. 1.
1. The Great Charter is commanded to be kept in all the points. And
2. It is enacted that if any Statute be made to the Contrary, that shall be holden for none, which Statute is unrepealed.
The Respondent observeth that by an Act of the 26 of March 1650. Entitled an Act for establishing an High Court of Justice, 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 judg to appertain to justice.
And thereupon the Respondent doth humbly inferr and offereth for law,
That the said Act is diametrically contrary unto, and utterly inconsistent with the said Great Charter, and is therefore [Page 26] by the said recited Statute to be holden for none.
That it can with no more reason, equity, or justice, hold the value and reputation of a Law (the said Statute before recited being in force) then if, contrary to the second clause in that 29th Chap. of Magna Charta, it had been also enacted, that Justice and Right shall be deferred to all freemen, and sold to all that will buy it.
Thirdly, That upon premising, by the Petition of Right 3d Car. that contrary to the great Charter Tryals, and Executions, had been had and done against the Subjects by commissions Martial, &c. It was therefore prayed, and by the Commission enacted, That
1. No Commissions of the like nature, might be thenceforth issued, &c. and that done
2. To prevent, least any of the Subjects should be put to death contrary to the Laws and Franchise of the Land.
The Respondent humbly observeth and affirmeth, That
This Court is (though under a different stile) in Nature, and in the proceedings thereby directly the same with a Commission Martial; the Freeman thereby being to be tryed for life, and adjudged by the major number of the Commissioners sitting (as in Courts of Commissioners Martial 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, and he humbly claims his right accordingly.
Fourthly, That by he Remonstrance 15 of December, and the Declaration 17 January 1641. The benefit of the Laws and ordinary Courts of Justice, are the subjects Birth-rights.
By the Declarations of the 12th July and 16th October 1642. the preservation of the laws, and the due administration of justice, are owned to be the justifying cause of the warr; and the ends of the Parliaments affaires, managed by their swords and Councils; And Gods curse is by them imprecated, in case they should ever decline those ends.
By the Declaration of 17 Apr. 1646. promise was made not to interrupt the course of Justice in the ordinary Courts thereof.
[Page 27] By the Ordinance or Votes of non-addresses, Jan. 1648. it is assured of the Parliaments behalf, That
Though they lay the King aside, yet they will govern by the laws, and not interrupt the course of Justice in the ordinary Courts thereof.
And thereupon the Respondent humbly inferreth and affirmeth, That
The constitution of this Court is a Breath of that publick faith of the Parliments, exhibited, and pledged in the Declarations, and votes to the Freemen of England.
And upon the whole matter the Respondent (saving as aforesaid) doth humbly affirme for law, and claime as his right.
That this Court, in defect of the validity of the Act, by which it is constituted, hath not power against him, or to press him to a farther Answer.
That by vertue of Magna Charta, the Petition of Right, and the before recited Remonstance and Declarations, he ought not to be proceeded against by this Court, but by an ordinary Court of Justice, and to be tryed by his Peeres.
And prayes, That this his present Answer and Salvo may be accepted, and registred, and that he may be tryed by his Peeres accordingly.
The farther and second Answer of Eus. Andrewe Esq. to the Honorable the High Court of Justice, Answer. 2. presented the 16th day of Aug. 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 adjudged necessary) in all humbleness for present answer, offereth to this honorable 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 quallified to try a free man of England (and [Page 28] such the Respondent averreth to be) for life in case of Treason.
First, For that 1. The said Court is not constituted a Court of Record, and (but upon Record) cannot at all have that accompt of their freeman, which Kings were wont to have of their Ministers of Justice.
2. The Free man and such who are and may be concerned in him, can have no Record to resort unto, by which to preserve the rights due to him and them respectively. viz of
| 1. A Writ of Error, in case of erroneous judgment, due by the Presidents. |
|
| 2. A plea of anterfoyes acquit, in Case of new question for the same fact; the right to which, and the necessity of such Record, appears by |
|
| 3. A being enlarged upon acquital, as is the freemans due, by the Stat. 14. Hen. 6. and the Case thereupon grounded. | Dyer fol. 120 and abridg: fo. 33. |
| 4. A Writ of Conspiracy against those who have practised the betraying the life of the Respondent not to be brought before acquital, & no acquital, but upon Record, as appeareth by | The Poultiers Case, 9 Rep. fol. 55. |
This Court is to determine at a day, without accompt of their proceedings; have power to try, judg and cause execution, but not to acquit or to give enlargment; so that the nocent are thereby punishable, the innocent not preservable; the injured and betrayed, not vindicable; which are defects incompatible with a Court of Justice, and inconsistent with Justice it self [Page 29] and with the Honours of a Christian nation and Commonwealth.
Secondly, for that the members of this Court are by the Act directed to be sworne.
- 1. Not in conspectu populi for the freemans satisfaction.
- 2. Not in words of indifferency, and obliging to equallity.
- 3. In words of manifest Partiallity. viz.
You shall swear that you shall well and truely, according to the best of your skill and knowledg, execute the several powers given unto you by this Act.
The Respondent humbly offers, That
1. The Court in their capacity of Tryers ought (in reason) to have been appointed by their constitution, to have been sworn as Tryers in full Court, according to the practise in all equall wayes of Tryall.
2. The Court as Commissioners of Oyre, and Terminer, (being authorized by the Act to hear and determine) should in like reason be appointed an oath, such as is usual for persons so qualified, as provided 18. Edw. 3. viz.
You shall swear that well and lawfully you shall serve our Lord the King, and his people ( mutatis mutandis) in the office of Justice, &c. and that you deny to no man common right, &c.
Or some Oath equivalent at least to that of a Justice of Peace, Dalton fol. 13.
I A. B. do swear that I will do equall right; and according to my best wit, cunning, and power, after the laws and customes of the land and the Statutes thereof made &c.
3. The Court in the capacity of tryers should (in reason) be obliged by an oath, of as equitable sence as that usually administred to Jurors; viz.
[Page 30] You shall well and truly try, and true deliverance make between our Soveraigne Lord the King, ( mutatis mutandis) and the prisoner at the Barr; so help you God.
Whereas when this Court shall (as it is now constituted) have condemned the freeman, the Respondent, or other, by applying their skill and knowledg, to their power; whether justly or not, the oath by them taken is not in the letter broken; as to be exactible by man, though God will provably have a better accompt.
And therefore upon the whole matter premised, the Respondent (saving as before) offers for law and reason, that the honorable Court, the high Court of Justice, is not, by the letter and proper sence of the words of the Act, by which it is constituted, qualified in respect of the preobjected defects to pass upon him for his life, upon a charge or crimination of high Treason.
The farther and third Answer of Eusebius Andrewe Esquire, Answer. 3. to the Honorable the High Court of Justice, presented the 16 day of Aug. 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 adjudged necessary) in all humbleness for present Answer, offereth to this honorable Court.
That First. It is his right (if he must admit this Court to be duly and legally established and constituted, as to their being a Court) to be tryed by his Peeres, men of his own condition, and neighborhood.
[Page 31] 2. It is within the power of the Court by the letter, and sence of the Act, or at least as being not repugnant to the Act, to try him by such his Peeres, &c.
First, That it is his right to be so, and only so tryed, appears by Magna Charta Ca. 29. 25 Edw. 1. Ca. 1. and 2. 5, Edw. 3. Ca. 9. 25. Edw. 3. Ca. 2. and 4. 28. Edw. 3. Ca. 4. 37. Edw. 3. Ca. 18. 42. Edw. 3. Ca. 3.
By all which Statutes made in full Parliament, consisting of the head, and all the members actually, as well as virtually, this the Respondents right is maintainable, and demandable, and the contrary proceedings thereunto are To be held for none, and redressed, &c.
To be held for voyd, and error, &c.
So that, If the laws and Courts were not obstructed, (in the cases of some sort of freemen of England,) the whole proceeding contrary to these laws, without a Jury of his Peeres, were avoydable, and reservable by writ of error, as appeares also by the Presidents vouched by the Respondent in his second Answer.
Secondly. That it is in the Courts power to try the freeman, and consequently the Respondent, by a Jury of his equals, the Court is humbly desired to consider the words of Qualification.
The Court is,
First, Required to hear and determine; and so, if at all Commissioners, then Commissioners of Oyre and Terminer, and such Commissioners in their natural constitution and practical execution, do proceed against the freeman according to law, by a Jury of his equals and not otherwise.
Secondly. Authorised to proceed to tryal, condemnation, and execution, &c. But not restrained to the manner of Tryal, Limitativè, as to tryal by the Courts opinion as tryers, Non exclusivè, as to tryal per Pares; But is left in the manner, as in the Judgment it self, to the opinion of the major number of 12, and if they shall think fit to try by a Jury, it will be no offence against the Act, there being no clause or prohibition to the contrary.
[Page 32] And therefore the Respondent humbly claimeth his said Right, as consisting with the said Power.
And the more to enduce the Court to grant him such his right, and the benefit thereof, the Respondent humbly representeth the manifest wrong, and multiplyed disherison, done to him, and in him to the Freemanry of England, in the following particulars of their like just right, (depending upon such tryal to be allowed) if denyed him, by this Honorable Court.
First. The benefit of
- Stampf. pl. Cor. fol. 150. Tit. Challenge Poynings case 32. Henry 6. Fitz. fo. 26. Allowed Hill. 1. Jacobi to Sir Wal. Rawleigh and Brooks.
Secondly. The liberty of
Seeing, hearing, and counter-questioning the witnesses, for clearing the evidence in matter of circumstance, as well as in matter of fact; which appears to be the Respondents right, by
- 1. and 2. Phil. and Mary, Cap. 10. and 11.
- 1. Edw. 6. Chap. 12.
The Authority of (the laws Oracle) Cook 2. part Inst. fol. 12. commenting upon the words in 25. Edw. 3. Ca. 2. Provablement Attanit, because the punishment was heavy, the proof to be Punctual, and not upon presumptions, or inferences, or straines of Wit, but upon good and sufficient proofs; also by the Stat. of 1. Eliz. Ca. 6. 13. Eliz. Ca. 1.
Thirdly. The being
Convinced, or acquitted by a full, free, and fully consented virdict. For
[Page 33] First. A verdict by a Jury passeth from all, or not at all. In the proceeding by voyces, a sentence passeth by way of Concurrence, with which the Star-chamber, High Commission, and Courts Martial were branded, and condemned of In-equality.
Secondly. A verdict passeth upon a Jury before discharged, upon their affaires of Estate, or supplies of Nature, to prevent corruption of money and power, but as this Court proceeds (if it will proceed by voyces,) a tryal may be had this day, and a sentence may be given at leasure; when the Will of those, by whom the Freeman is prosecuted, be first known.
And upon the whole matter
The Respondent humbly claimes the be nefit, and right, of being tryed (if before this honorable Court) per Pares, men of his own condition, and of his neighborhood, and that he may hear and see all the witnesses produced against him; viva voce et aperto vultu; And may have power, liberty, and time to produce witnesses in his defence.
And (saving as formerly) humbly prayes that this his Answer, and Salvo, may be received, and Registred.
HIs engagement originally for the King was lawfull by the Stat. of 11. Hen. 7. Cap. 1.
By his Commissions producable.
The King not virtually in the Parliament; but both virtually with us his Souldiers, and unlawfull for the Parliament to compell him, &c.
Hugh Spencer and his Son. Calums Case 7.
That homage and allegiance were due to the King only in respect of his Crown (which is a virtual allegiance and by which, Rep. Coo. or upon the same reason the Parliament inferrs their necessity or interest of Acting.
That the Leiger may remove the King.
[Page 34] That he might be reformed per asperte by force.
That they might and were bound to govern in aide of him, all damn'd by the Act of Exilius Hugonis le Ospence in Edw. 4. and in 25. Edw. 3. 2.
The natural, & politick bodies are indivisible & incorporate, 4 Eliz. resolv'd as law, Plowd. Com. fol. 113, by Sir Roo Ca'thline a Just. Sir Jam. Dyer a Just. Co. pl. Sandes a Bar. Russel, Brown, Corbet, Weston, Fren [...]t, Just. Carewe & Pewterel Serjeants, Gerrard Att. Gen. Caret Att. Dutchy, Plowden himself.
If the virtual power be in the King his assent needless, from 9. Hen. 3. to 1. Hen. 7. the stiles were.
The Kings ordinances at his Parliament, &c. or by advise of his Prolator, 1. Inst. Coo. fo. 234. and Barons, and at the petition of the Commons.
Since 7. Hen. 7. Ca [...] 14. by the King, Lords spiritual and temporal, and Commons assembled, &c.
The Queen summoned a Parliament 23 Jan. 1. 3. Eliz. Dyer 203. of her reign, and in regard of indisposition of health prorogued till 25 ejusd. Resolv'd, that the Parliament then and not till then began.
Where was the virtual presence when the King was in Newcastle, Holmby, Hampton Court, Carisbrook, Windsor, St. James's prisoner.
Declaration in Apr. to the Scots papers 22. Nov. pag. 8. that the King was not in condition to govern.
The Oath of a Parliament man, till which taken he is not effectually such.
His being with the Prince.
My being with the Prince in Holland, I was there before him, and in good manners having been his Souldier, Secretary to the Lord Capel, visited the Court, and took a friend from, and pulling him off, and this in his fathers life time, he being by him commissioned.
[Page 35] Refus'd command for Ireland, having expectation upon the treaty then on foot; when it seems warr was so precious, that the Petitioners for peace were Voted Malignants, and disabled, &c.
My message to Lord Hopton and Letter, was to certifie to the King my Interest in the Office of the Clerk of the Crown in Ireland; and to pray him, that if he surrendred there, he would not give away my right in my absence; which was a duty I ow'd to my Family and Person, and which every man in my condition would do.
The answer was only pertinent to such request, and as then not prohibited to be done, either to send or receive from any.
Mutual Interest the Commons are not to take notice of, being private and obscure, and only currant amongst their relators the Souldiery.
Testimony of Barnard not allowable; for unless he can fix upon me, he loseth his reward; and all done only in confidence of him, who held intelligence with the Lord President Bradshawe: so that no danger at any time to the State, but an expectation in them to get by the bargain, by my drawing in others, and then all to be snapt.
Smyth a counterfeit name, and Pitt his name, party with Barnard.
My name Dudley only as to Barnard in this kind of casual; to others only to prevent arrests of other mens debts, least by a suspition on my place of abode, my name should be discovered to my Creditors.
My name and person known and perfect where ever I lay, Gravesend. at Feres, at Sartaines, at Coopers, at Perkins, at Manes ordinary, Carleton-Hall. and known to all the streets and people.
Detaining them close prisoners, Decemb. 15. 1641. without the liberty of using Book, Pen, Ink or Paper; denying them all the comforts of life, Remon. fol. 7. all means of preservation of health, &c. denying them the means of spiritual consolation, not suffering them to go abroad to enjoy Gods Ordinances in Gods House, or Gods Ministers to come to them, to administer comfort to them in their private Chamber.
[Page 36] And the ordinary course of Justice, And fol. 8. Compare 9. Act for Removal. the common birthright of the Subject of England obstructed unto them.
The restraint of the liberties of the Subjects in their Habitations, Act for Engagement. Trades and other interests.
Starchamber deprive men of the society of their friends, exercise of their professions, comfort of books, Fol. 9. pen, &c.
Judges awed that they durst not do their duties. fol. 10.
New Oathes been forced upon the Subject against Law. fol. 10.
New Judicatories erected without Law. fol. 10.
The pretended Court of Earl Marshall, fol. 10. was arbitrary and illegal in its being and proceedings.
They imposed a new Oath upon divers of his Majesties Subjects, The Bishops 113. both Ecclesiastical and lay, for maintenance of their own Tyranny.
And then Magnifying their own doings in this Parliament, they say, That
These things will appear only in future times in story, fol. 17. to give us and our posterity more occasion to praise God for his Majesties goodness, and the faithfull endeavours of the Parliament.
The Laws of the triennial Parliament, fol. 16. and the non dissolving of this without consent of both Houses, may be thought more advantageous then the former.
What can we the Commissioners do without the conjunction of the House of Lords. fol. 22.
Acusatores.
Carere debet omni vitio qui paratus est in alterum dicere. Cic. in ver.
Nulla salus Reipublicae major est quam eos qui alterum accusant, non minus de laude, de honore, & de famâ suâ, quam illos qui accusatur de capite ac fortunis suis pertimes;cers; Ita (que) semper hi diligentissime laboriosissime (que) accusarunt qui se ipsos in discrimen existimationis veniri arbitrati sunt.
Exempla▪
To Plot.
Must argue the Propounder and Consenter to be both of one mind; If not, but that one intends not the thing purposed, but to betray the other by his consent thereto, cannot be a Plot in any interpretation.
The same for Contrive or Endeavour, 2 Clan. as to the second Clause in the Act for Establishment.
The Several Arguments of Collonel Andrewe at his Tryal.
The First Argument.
I Have (as becomes me) been attentive to the charge which hath been read against me. It appears in that dress it is put already, (though I presume it shall be clad in other apparel by Mr. Attorney) so specious, and so great, as that my friends (if I have any here) begin to fear, the indifferent to doubt, and the partial to desire, and joyne in my condemnation, my self (I hope I am not partial to my self) believe, that it will be no more then the mountaines labour, Perturient montes &c. and when it shall come to be dissected, will prove to be inane aliquid, like the Apples of Sodom, that however they take the first sence the eye, as this the eare, do rather foul the fingers that touch them, then satisfie the appetite in its expectation upon them.
My Lord, I am at an unusual Barr, and engaged in a great cause of a far extendible concernment, my fee is life, and my duty is self-preservation, which in it self were less considerable, if by a president of my suff'ring, the consequence would not prove mischievously Epidemical.
I do not willfully refuse to plead to the charge, but humbly crave leave to offer my reasons for the suspending of my Plea. And if I be importunate (yet within the bounds of civility) I beg your pardon, and that I may have a full, a free, and an uninterrupted hearing.
My Lord, When the Jews prest Pilate to sentence Christ, they obtruded [Page 39] to him that they had a Law, and by that law he ought to dye. What they thought reasonable to claim, when it served their turn to vent their Malice, Jer. 26. 6. Jehova justi [...] nostra. will be I hope warrantable for me to lay hold on in a better sence, for the vindication of Christ, who suffers when Justice is a sufferer. We have a law too, and by that law, I ought not to plead, not to be tryed, not to be judged.
The Laws of England were not unknown, but mispractised; when the Barons fought King John into a consent to the (not new making but) restorement of the ancient Laws.
And Magna Charta it self, Cook 1 part instit. fol. 81, 82. is but a confirmation or restitution of the Common Law, and is become the Standard by which Laws are reduceable, and is the foundation of all other Acts of Parliament.
It hath been at no time dismembred; no part abrogated by any repeal.
It hath been confirmed above 30 times, and commanded as often to be observed and put in Execution.
In the Act call'd Confirmatio Cartarum, 25 Edw. 1. ca. 1. it is directed to be allowed as the Common Law in judgment, in all points, by all the Judges and dispensers of Law, Bracton 414. 491. or which have the law to guide.
It hath in former ages gained an honourable esteem in the old books: Fiecta lib. 2. c. 48. lib. 3. c. 3 Charta libertatum Communis libertas Angliae, Mirror c. 2. 18. Britton fo. 177. Charta de Libertatibus, &c. these are the Appellations.
It was a Noli me tangere, 17 Henry 3. and for seeking a Reversal or Avoidance of it, Rot. Clamem. 1. 2. Rot. Proutrius. M. 1. Hubert de Burgo was sentenced by the Barons, and the sentence confirmed by King Henry the Third.
The great Hugh Speneer in the raign of Edward the second, 14 Edw. 2. was banisht but for rashly counselling against the Encounter la forme de la granda Charter.
And to draw downwards yet one Kings Reign, 42 Edw. 3. c. 1. and to the point to which I would apply; I find in the 42 year, this great Charter was not only barely confirmed and commanded to be kept in all the points, for those are the words; But to prevent any alteration of it, is enacted, That if any Statute be made to the contrary, that shall be holden for none.
By this Magna Charta it is granted, Cook. 1 Justi [...]. fol. 81. and Enacted too; if [Page 40] my Lord Cook say true, who saith it is a Statute, as well as a Charter, being made by Assent and Authority of Parliament. That
No Freeman shall be taken or Imprisoned or be disseised of his Free-hold, Ma. Cha. c. 29. or Liberties, or Free-customes, or be outlaw'd or exiled, or any otherwise destroyed; nor shall not pass upon him nor condemn him, but by lawfull judgment of his Peers, and by the Law of the Land.
We shall sell to no man, nor deferr to man either Justice or Right.
If this be Truth and Law, which I have in these particulars promised to you, then (my Lord) give me leave to take notice.
That by that Act by which you are constituted a Court of Justice, you are authorized to try the Freemen of England; not per Pares, upon or for offences against Articles, and the punishment to reach to life, as the Major part of any 12 of the Commissioners shall judg to appertain to justice.
Laying these together, a Posting Rider may Read, that these Lawes are diametrically opposite, and consequently inconsistent.
The latter hath its doom inherent by its innate contrariety to the former, and is a building a superstructure so unsutable to the foundation, that if it had not a double edged support, it need no help to be demolisht, but would fall I know not whether to say sua mole, or sua pensilitate.
The Constitutors of this Law are Gladiis cincti; and therefore as I am not in opportune place to speak to them, so there is somthing of danger to speak too freely to them; but (my Lord) your Lordship as you are in this place, are (I am sure ought to be) like the Escochions of Princes, with their addopted Supporters, Knowledg and Conscience, and if you are, I am confident you will doubt of your Commission, or warrant to proceed against me, and compel me to preserve an inch of life, by giving away mine and my Countrymens Liberty, in condescending to a Plea and Tryal, in this contra-legal way, and by power of this Act.
The second Argument.
I Shall further beg leave to call to your memory the Petition of Right; Petition of Right. 3 Car. which was made the business of the Parliament, at the time when it was preferred, and received the Royal assent, must never be forgotten by those who hold in esteem the care of Parliaments, and gracious concessions of Kings.
In the Proeme or leading part of that Petition, the Statute of Magna Charta is instanced as to this particular, tryal for life by proper Courts, with other the Laws and Statutes (some of which I have cited, and the rest shall upon another point in their place;) and as it is complained, that proceedings had been by Commissioners Martial; when and where, if by the Laws and Statutes of the land they had deserved death, by the same Laws and Statutes also they might, and by no other laws ought to have been judged; so is it prayed, and accordingly enacted, That no Commissions of like nature may be henceforth issued to any person or persons whatsoever, to be executed, &c. and this to prevent, least by colour of them any of the Subjects should be destroyed or put to death, contrary to the laws and franchize of he Land.
My Lord,
1. The Commissions Martial were not evil in respect of the persons commissioned, being as this power is to you, so those alwayes given to persons of quality and learning; but the evil of them were their Proceedings by their own will and opinion, being themselves the Judges, and the Jury; offices incompatible and inconsistent with the peoples Liberties, by the former Laws become their rights; when your Lordships shall read the Act by which you now sit, I am confident you will grant this power to be of the same nature, though not under the same name, and consequently in that Petition complained of, in supposition that such might be, and enacted against in Terminis, that none such should be.
2. For that you are called by the Act, Commissioners, and yet [Page 42] have no Commission, but the Act it self; whereas you should, in regard you are not a Court of Record in your selves, have Commissions returnable at a day into some Court of Record, where your proceedings might be extant and visible; & as you are now constituted, you have a day prefixed to determine in; but that being come, you are to vanish, & your vestigia will be as inperceptible to the times and men to come, as the trace of a Swallow in the Air, which is inconsistent with the honour and justice of any Kingdome, or of any Christian Commonwealth.
For that you have only by this Act, a bare and single power to adjudg, R [...]ades Case. Dar fol. 120. 10 Eaw. 4. fol. 19. and cause execution to be done, in case you shall judg it to appertain to justice; but you have no power if you think it appertain to justice, to acquit, and upon acquittal to discharge the person tryed, 14 Hen. 6. 1. Oath of a Juror. as is the law expresly in my Lord Diar; and in the year-book of Edw. 4. grounded upon the Statute of Henry the 6th. 14 of his reign Ca. 1. That
Justices of Nisi prius (who are Commissionary Justices) shall have power of all the cases of felony, and of Treason, to give their Judgment, as wel where a man is acquit of felony, & of treason, as where he is thereof attainted at the day and place where the Inquisition, Inquest, and Jury shall be taken; and then from thenceforth to award execution to be made by force of the same judgments, which in an acquitted mans case can only be enlargement.
But (my Lord) you have only power if you can to reach my life, if in your opinion deserving it, but not to reach me out of Prison; so that if you kill me not here with the sword of Justice, you must leave me in worse hands, to be buried alive in restraint and want.
Which all is against the laws of Nature and Nations, and particularly of this land, that are all so ballanced and poysed, as that they have equall regard to the delivery and freeing the Innocent, as to the condemnation of the nocent.
And Isadore in his Etimologies sayes of a law, thus, ‘Erit autem lex honesta justa, possibilis, secundum naturam et consuitudinem patriae; Loco, temporique conveniens necessaria, et utilis, manifesta quoque, nê aliquid incantum per obscuritatem captione contineat; nullo privato commodo, sed per communi civium ultilitate conscripta.’
[Page 43] And as laws should be, so should Courts and the dispense [...] of laws be.
But (my Lord) if this Court must be granted to be a Court, your selves can make no more of it then a Court, ex parte, and set up to serve a particular end, with the privation of the common utility and liberty, however usher'd with a preamble of an other stile, of preservation of peace, and prevention of wart; but Thucidides will tell you my Lord in his fourth book, That ‘Turpius est his qui impia tenent insidiare honesto pertextu, quam insidiosâ, mallevolentiâ, uti, nam violentia videtur aliquid furis habere, propter potentiam â fortunâ datam, sed fraus tantum ab injustitia oritur.’
The Third Argument.
BUt (my Lord) if your Lordship be in your judgment and conscience satisfied, that the Act it self, in, and as to its constitution, is good and valuable, and impowereth you sufficiently to proceed against me, some way then Argumenti ergo dato, sed non juris ergo concesso, that it is a law, or an Act, and that all those Ordinances are out of doores; yet I pray your Lordships leave, that I may make evident to your Lordship, that you are not hereby constituted a Court capable, in defect of the very letter of the Act, to pass upon any man, and consequently not upon me, in matter of life, or where life may may be the concernment.
1. For reason you are not constituted a Court of Record, Wetherel and Darly's Case 35. Eliz. which is absolutely necessary, having life and forfeiture of lands in your charge.
First, Apeal de murder convict de Homocide bonb [...]r [...]l endictment per murder. For the State that they may have an account, (not in their Council-chamber, but upon Record) what is become of the matter in issue, and of the person put upon his Tryal.
2. For the Freeman of England, that in case he be acquitted of the crime wherewith he shall stand charged before this Court, Affirme quo ho [...]re ne doit m [...]t [...]e, presuavic Deux fois per uncuosen. he might at all times resort to the Record, upon any new question for the same Fact in any other Court holding Pleas of that nature, by which Record to plead his Auterfoyes acquitte, and to make his defence, as also to preserve his estate, Si non legalment [Page 44] aquitte eu le Poulters Case 9. R. Benegist demant acquittal nul req. si non de Record. as also my benefit, a writ of Conspiracy.
To come nearer our own times, 17 Car. Act for abolishing Star-chamber. the like cause to complain, and the same redress is given in the Act for abolishing of the Star-chamber, upon the grounds and reasons drawn from these Laws; the Innovations and Invadings upon which (as being Fundamentals) was a great part of the substance of the grand Remonstrance, communicated to the whole World against the late King by the Press: Articles contra Strafford, Art. 1, 2. partis 1. 14 parti secundo. The charges against he Earl of Strasford and the Arch-Bishop of Canterbury.
The interest of the Subject in these laws, was cryed up to be so precious, as that it had influence even to the absolving of all old Oathes, and the imposing of new, and to bring to adventure Estate and Life, and soul, rather then to be usurped, or in the least intrenched upon.
Four several Declarations of the present Parliament have entitulated the subject to them, Declar. D.c. 15. 1641. Jan. 17. 1641. and to the benefit of the ordinary Courts of Justice, as their Birthright. I have owned the preservation of them to be the Cause of the War. July 12. 1642. and the ends of their affairs managed by their Swords or Councels, Oct. 23. 1642. and Gods curse is by them imprecated, in case they should ever decline the Ends.
My Lord, Declar. April 17. 1646. We have the Parliaments word and promise, not to interrupt the course of Justice in the ordinary Courts.
And in the Ordinance of Non addresses to the late King, Jan. 1648. they say, Though they lay the King aside, yet they will Govern by the Laws, and not interrupt the Course of Justice in the Ordinary Courts thereof.
My Lord, I am entitulated to all these Laws, and these Promises and Declarations; and if this Court proceed against me, those notwithstanding, (the Ordinary Courts of Justice being open and unobstructed.) I am robbed, and divested of them all, and in me the Freemanry of England are all despoyled, at the Parliaments will (according to this president) disployleable, and may with Mr. Stampsord in his Pleas of the Crown, take up this saying, It will serve for a Lamentation, ‘Misera servitus est ubi jus est vagum, & incognitum.’
The Fourth Argument.
THomas Acquinus (who though a Papist, is not the less worthy to be vouched, Beat. Thomas 1. 2 Q [...], 90. Art. 1. where not Religion, but Pollicy, is the thing in question) Sayth, That Lex est regula & mensura actuum agendorum vel omittendorum, not Actorum, and Omissorum.
And St. Paul says Concupiscentian nesciebam nisi lex diceret non concupisces. Rom. 7. 7.
My Lord, your Authority is in two several places to proceed against as Traytors, such who have broken the Articles before they were made, viz.
Whosoever hath, Art.2. or shall I lot, Contrive, or Endeavour, &c.
Whatsoever Officer, Art. 7. &c. hath, or shall desert their trust, &c. shall dye without mercy.
And thus my Lord, the end of Laws and Law-makings is perverted, which are not meerly to punish offenders, but to prevent offences, which amongst Christian men was never otherwise done, but by way of premonition; by laws first Interdictory, and then Subpenatory.
The Earl of Strafford did (and very reasonably) take it unkindly, and so exprest himself upon his Trial; That a neglected Law should lie moulding amongstold parchments 200. years unused and unexercised, and at last brought out to measure his passed Actions by, or to use his own words, To lye like a Coal raked up in the ashes, to be at pleasure blown into a flame, and to make him and his family the first fewel to feed it. Truly if he had seen these Articles (as he felt after somwhat like them) he would have cried out, and but modestly enough, That it is not the mending of the fault, but the destruction of the person which is manifestly defigned in these Articles of Retrospection.
Disusage of a law, is some excuse for him who falls into a transgression; but the non existence of a Law, is a Justification to the greatest offence.
And my Lord, as you are to look backward to Actions done [Page 46] before the Law made, so you are to take Cognizance of offenders against two former Acts, which make the Crimes therein certain in the matters of fact, fault and punishment; and if they be lawes, they must be deemed part of the lawes of the Land, and desireable and dispensable by the ordinary Courts of the Land, in cases Criminal; for extraordinary Courts of that king, have long since even (by the Parliament, of which this is the sarviving part) been denied.
And although it is true, that when some particular fact is committed by some one or more particular persons against the laws Crimi [...]al, it often falls (and properly enough) that especial Commissions of Oyre and Terminer are for some urgent and expedient reason issued to try the matter and men: yet those Commissions do not restrain the Commissioners to proceed only against those persons, and upon those particular crimes which the common fame hath rendred Hac vice to be Tryable, but run in general terms, and with general enablement to try all manner of Treasons, Felonies, &c.
And the Reason is,
1. For that it might possibly fall out, that a grand Jury will not find the Bill against Jo. at style, and if not, the Commissioners are sent down without their arrant, if only directed to try, J. S.
2. It may fall out, that where there are Treasons or Felonies commited by Jo. St. they may be accompanied with misprisions or misdemeanors, in Jo. O. And if the particular crime of Treason, and the particular person of J. S. be only authorised to be enquired of, then the Commissioners can do but half their work: And therefore this Commissionary power of yours (My Lord,) (the ordinary Courts being not obstructed, and you limited to particulars) is so far against the Common Law and usage, that it is against common and vulgar reason; and (pardon that I must say it) savours more of a Snare, then of a Law; and more of a warrant of Arbitrary Execution, then of an enablement, to and for a judicial and legal Proceeding or Tryal.
The Fifth Argument.
My Lord, In all Courts of Justice, as there is supposed to be an equality intended to such as shall fall under their Cognizance and Enquiry, which is a principle of merality innate, as well as a practical Policy: so there have always in this Nation, at least beyond memory, Not sworn. or indeed record to the contrary, been certain Oaths Obligatory, and of indifference administred to Persons either enquiring of, or passing judgment against or upon the Subjects in all cases whatsoever; and the same thing is but necessary in your Lordships and this Court to be done, (if at all you will proceed in so weighty a matter as life) against which I make this exception.
1. If you are at all sworn, you are not sworn in Conspectu, and if you will be my Jury and my Judges also, I ought to have a satisfaction that you are so sworn. Had you been only my Judges, and constituted after the ordinary manner, and to ordinary ends, I would have taken your being sworn for granted.
2. If you are sworn, (and to no other words of an oath then what are comprised in the Act) (which my self and all men else will easily believe you are not) then you are not sworn to any manner of Equality.
The words are, You shall swear that you shall well and truly, The Oath of the Commissioners. according to the best of your skill and knowledge, execute the several powers given unto you by this Act.
I beseech your Lordship, 18 Edw. 3. that I may compare these words with the Oath of Judges in England when it was a Kingdome.
The words Pertinent only are these, You shall swear that well and lawfully you shall serve our Lord the King and his people in the office of Justice, Oath of Justices. &c
And that you deny to no man common Right, by the Kings letters, or none other mans, nor for none other cause, &c.
I A. B. do swear that I will do equal right, Dalton J.P. fol. 33. &c. according to my best Wit, Cunning and Power, after the Laws and [Page 48] Customs of the Land, and the Statutes thereof made, &c.
My Lord, these will concern you as my Judges, to consider how little the stiles agree, & how far your Oath is in respect of these unobligatory, and consequently unsatisfactory to the persons which are or shall be concerned,
1. As to the first, yours contains no such words of Equality.
2. As to the second oath, yours hath such words as skill and knowledg, holding some resemblance with those of wit, cunning and power. But my Lord, if your words were as well usher'd, and as well paged as those, it were some satisfaction, viz.
To do equal right according &c.
After the laws and customes of the Land, and the Statutes thereof made.
My Lord, as you are my Tryers also, as well as my Judges, I beseech you to observe the oath of a Juror, and the difference in sence, (in letter I know for the dignity sake it ought to differ.)
You shall well and truly try, and true deliverance make between our Soveraigne Lord the King, Oath of a Juror. and the prisoner at the Barr, &c. I presume it is still the same (mutatis mutandis.)
Truly my Lord, when I look upon your enablement to try the matters and persons, which, and whom you are to try; you have power to destroy, and not to save; though [...]o spare, yet not to acquit, or discharge; and your obligation by oath to execute that power according to your best skill and knowledg, I must needs say, and it is apparant, that when you have destroyed me, you have discharged all the duty that man can exact from you (though God will have a better reckoning) and in stead of being tryed by sworne Jurors, and adjudged by sworne Justices, my self, and all who are or may fall into my condition, are to be tryed by our sworn Adversants, I might have said sworne enemies: and we cannot in reason expect more Justice, then, when the Son layes the wager, the Mother keeps stakes, and the Father is Judg in a point of controversie.
More and better you may do, more or better we cannot by any light of reason expect.
The Sixth Argument.
BUt (my Lord) if all this be but wind against a Rock, and move you to no declining of the exercise of your Power, My right to be tryed by a Jury, and in their power to try me so. though against my right; yet certainly (my Lord) where your power and my right may be consistent, you will not stretch your power to the taking away of my right, but rather by giving me my right, magnifie your power.
This I may reasonably expect.
It is my right (granting you to be my Judges) to be tryed by my Peers, the good men of my neighbourhood, and it is in your power (if your power be not inward) to try me so.
That this is my right I must revisit Magna Charta, M. Ch. 9 Hen. 3. 29. Nisi per legale Judicium Parium suorum.
The Law of Edward 1. having confirmed the great Charter, 25 Ed. 1. Ca. 1. & 2. saith, And we will that if any judgment hereafter be given contrary to the Poynts of the Charter aforesaid, by the Justices, or by any other our Ministers that hold Plea before them against the Poynts of the Charter, it shall be undone and holden for naught.
And upon this very Law or Clause, Cases adjudged in the Point. a writ of error was brought by the Earl of Lancaster, for the misattainder of his brother, Pasch. 39 Edward 3. whose Heyre he was, and in that the Poynts were two, and upon them both, judgement given for a reversal.
Attinctus.
The like reversals, 4 Ed. [...] N [...]. 13. and upon the like reasons, have been had,
In the Count de Arundels Case. Rot. Parl. 42 Edw. 3. Nu. 23.
In Sir John of Lees Case.
It is provided, Rot. Parl. 5 Ed. 3. 9. That no man from thenceforth should be attached by any accusation, nor fore-judged of life, nor of limb, [Page 50] nor his lands, &c. against the form of the great Charter, and the law of the land.
My Lord, 52 Edw. 3. 2. our fathers saw a Parliament (and reaped the blessing of it) which was called Benedictum Parliamentum, (which hath circumscribed the loose interpreters of Treasons to a standard, and not left it to be Individium vagum) and there it is said, That persons guilty of high Treason▪ (and my charge is not for less) must be provably attaint of open deed by people of their own condition.
And again it is accorded, Ca. 4. ejusd. assented and established, That from henceforth none shall be taken by petition, or suggestion made to the King, or his Councel, unless it be by indictment or presentment of his good and lawfull people of his neighbourhood where such deeds be done, in due manner, or by process made by writ Original at the common Law: The like in eff [...]ct in 28 E [...]. 3. 3. 37 Ed. 3. 18. Nor that none be ousted of his Franchises, or of his Free-hold, unless he be duly brought to answer, and forejudged of the same by the course of Law; and if any thing be done against the same, it shall be redressed, and holden for none.
It is Assented and Established (for the good governance of the Commons) that no man be put to answer without presentment before Justices, 42 Ed. 3. 3. or matter of Record, or by due Process and Writ original, according to the old law of the Land; and if any thing from henceforth be done contrary, it shall be void in Law, and holden for error.
My Lord, That it is my right to be tryed by a Jury of 12 men de vicineto, is evident; and it is as evident, that if you otherwise proceed with me (if law were not out of fashion) you would but weave Penelopes Web, and one days judgment would be unravel'd by the next days Writ of Error.
But after-games for Life are dangerous; and for Estate I have no great cause to be solicitous: but my right is my duty to preserve, as in relation to my self, and my honour to keep it, if it may be, from being in my president taken also from my Countrymen the free-men (if any such be now) of England, who have equal reason, though they may be wanting (some of them) of the same reasons wherewith to defend it.
That your Lordship may proceed by Jury, for ought is [Page 51] said or contained in your Act to the contrary, This may proceed by Jury.
1. I pray consider the before recited laws are all unrepealed, and therefore if this law intend to oppose those laws, it should have repealed them, No repeal or non obsta [...]e. or at least have afforded a slight non abstante, or have given the Subject the comfort of a hac vice tantum, that we might not have thought our selves rob'd of all, but only plundered of a part of our right for necessity and experience sake, or at least have given us the favour of the Earl of Straffords Act, that it should never be drawn into example; but I am sure in this Act, that proceeding against him is super-exampled.
2. I desire you would consider your qualification; you are made Commissioners, and that of Oyre and Terminer, and those are not proceeders in their own proper natural and habitual constitution and practises, upon and acording to their own judgments in matters of fact: you are in these words, viz.
Required to hear and determin, &c. constituted Commissioners of Oyre and Terminer. fol. 746.
3. You are authorised to proceed to Tryal, Condemnation & Execution, &c. but you are not restrained to the manner of such proceedings to Tryal exclusively, as to Tryal per Pares, but left to do the manner of the Tryal, as well as the Judgment or Execution, as you, or the major part of you, or 12 of you shall judge to appertain to justice: And if such major part shall think fit to proceed by Presentment and Jury, doubtless such your proceeding is no Premunire against the power given you by the Act, but is justifiable to fall within the letter of the Act, and that without a strained construction.
4. And if when you may lawfully (I mean) by your own law, if ( Argumenti ergo) it be granted a law) try me by a Jury, and will not, then my Lord (pardon me) that I must aver, that you take from me, and in me from the communalty of England three great priviledges, Franchise and Rights; to which I and they are, by the known, ancient, and unabrogated, unrepealed and constantly practized laws, entitulated, which will be neither equitable nor honorable for you to do.
1. You take away the benefit of challenge, Benefit Challeng. which I might make to a Jury or Jurors.
[Page 52] And that is contrary to my right which is given me by the Common Law, Stam. pl. Cor. T. Chaleng [...] 150. In favorem vitae, to challenge in case of high Treason (for I go no less) 35 peremptorily, and for reason of challenge Sans Number.
This was adjudged in 32 Henry 6. Poynings Case. abridged by Fitz Herbert, fol. 26 per Challeng. where 8 Jurors were sworne, the rest challenged, a new return made, and those 8 returned, and though formerly allowed and sworn, yet challenged, and adjudged good,
The like allowed in Hill. 1. Ja. Sir Wal. Rawleign, Brookes. in the Cases of Sir Walt▪ Rawleigh and Brooks.
If this benefit were allowed me, my Lord, to except or Challenge the whole Court, who are in number and in quality my tryers, as a Jury are, I should not need to be peremptory in my challenge, being furnished with abundant reason.
A Jury of Middlesex will be no more nor less, if what I am accused to have endeavored should take effect, and therefore are not less concerned; I cannot say the same of the Court, (or if I should, I should not be believed) and he that but whispers against Diana at Ephesus, makes all the Crafts-men his enemies.
2. The second benefit and right, Acts. C. 19. which by denying me a Tryal per Pares you take from me, is the benefit of seeing, hearing, and counterquestioning the witnesses produced against me; which in such way of Tryals, ought to be viva voce.
That such is the law, Stam. P. C. fo. 163. 164. St. Ph. and Ma. 1. and 2. C. 10. Mr. Stamford averreth in his Pleas of the Crown. And
In treason, two sufficient witnesses by the Stat. of Edward the sixth, 1 Ed. 6. C. 1 [...]. Clau. sult. Cook. 3. p. sufficiently in relation to their quality, and to the fulness of their testimony.
Sir Edward Cooke (an Author as authentick as any) puts this for law in his expositions of the words in the Statutes for Treason Provablement attaint; Inst. fol. 12. Stam. P. C. 164. 89. 1 Ed. 6. C. [...]2. 1. and 2. Ph. and Ma. 10, 11. [...] Ed. 6. and 16. Eliz. 1. Because the punishment was great, the proof should be punctual, not upon presumptions or inferences, or straines of wit, but upon good and sufficient proofes. And this he makes good by the Authority of Stamford, and the several Statutes of Philip and Mary, and of Queen Elizabeth, and of Edward the sixth.
[Page 53] Now, my Lord, an evidence either taken in writing, as the person will voluntarily give it, or cautiously taken as the examiner will ask it, (who is not sworne to take it indifferently, no more then the framers of the questions are to propound then fairly,) may be a seeming faire opposite, and a full testimony; which upon enquiry into circumstances, either concerning the person giving testimony, or concerning the Modus, the Ʋbi, the Quando, &c. the whole laid together may prove either nothing, or a malitious thing.
The Case of Sir Thomas Moor Lord Chancellor, accused for Bribery, is common, and I hope if mine have faire play it will prove no worse.
3. The third and last right and priviledg you take from me, is the many of all the rest, and to the making of which, (as it should be made up) all the rest are but conducing, and leading; that is, of a faire Verdict.
My Lord, By a Jury a verdict passeth from all, or not at all; & one knowing & conscientious man, may preserve that Innocent man, whom eleven either ignorant or careless men would destroy.
This Courts sentence is to be stated by number of voyces, and some of them possibly not judging their own Judgments, but concurring where their opinion of anothers Judgment shall lead them; which as it was the great evil of the late Court of Star-chamber, so wheresoever it is used (in tryals of life especially) it is and can be no other then an evil.
My Lord, By & from a Jury a verdict passeth before their discharge upon their necessary affairs, nay affairs of nature, & therefore will give it both the righter, because their evidence is fresh in memory, without the intervention of other matters, as also for that they are without opportunity to be perverted by money, or friendship. If this Court receive the evidence to day, they may at any time (before the 29 day of September next) give their sentence; for vere dictum I never expect but from a Jury; and in the mean time, how much their own affaires may put the remembrance of me out of their heads, and how much the States power may put my safety out of their hearts, I have just cause [Page 54] to suspect; for fear I will not, being resolved never to be in love with that life, which the common law of England cannot protect; and had rather die the Laws Martyr, then live the States slave.
The Close.
My Lord, I have said, and now it only remaines that I tell your Lordship that I desire you to take into consideration what I have said; & that you would not suddenly, but deliberately give your Judgment, Whether I ought to plead before you as Judges, and to the charge in Articles, and not in a presentment or Indictment? whether to be tryed without a Jury, & condemn'd upon evidence unseen? Which this is (& I desire it may be recorded.) As I do not now wilfully refuse to plead or answer, but offer my reasons for the suspension of my Plea, until your judgment in the points be known and pronounced; so, if I be in them overrul'd, I shall then give such Answer to the charge as shall become a man in my condition.
IF I be overrul'd by the Court, that I must either answer or be sentenced for my wilfulness,
Then I move that I may have a Copy of my charge, and a day assigned me to deliver in my Answer under my hand.
Upon these Reasons.
1. If the Court proceed upon Articles, Gen. issue to particular Art they cannot in reason conceive that I can plead the general issue to particulars; for in so doing, in case I be convinced of any one Article, I shall receive the doom of all.
2. For that De facto some of the Articles may be true, Defacto & de modo. yet de modo they may not be valuable against me, and upon the general issue, I shall not be received to qualifie fact with circumstance, & so in stead of being allowed the freedom of my defence, which is allowed to every thief at Newgate, I shall be tryed and snared by such confession or proof as will serve the turn of my prosecutors, and not preserve my self by making my self and actions understood.
The Articles are of several kinds and crimes, Several crimes & several Answ. necessary. and as one single Plea will not be applyable to them all, so it is but requisite that I have a Copy of them, to give thereby to each one his proper Answer, which though in Indictments is not allowed, yet in this way of proceeding was never denyed in the most Arbitrary Courts.
The Council Table gave a charge, Practice of Council table, Star chamber, High Comission, Spiritual Courte, Lord Stafford, Arch Bishop of Canterbury. and received answer in writing in cases of contempt against themselves or their commands.
The Star-chamber afforded the Defendant a Copy of the Bill, and liberty to examine and cross examine witnesses, in case the fact charged were denyed by the Answer.
The High Commission the like, by their Articles and proceedings upon them.
My Answer, if not in writing, may either not be understood, or misapprehended, or miss set down by the Clerk, to my prejudice.
If this be denyed me, Pretended Justice but intended mallice. then I must conclude they intend to wipe of my head with the smooth glazed sword of pretended [Page 56] Justice, and must apply my self to my memory, in reference to the charge, and shall hear it read, which by my own knowledg of what hath passed between the State and me, I may conjecture, and therefore prepare these following heads to help memory, which in a case of so much concernment, is not totally to be relyed upon.
First, As to what may be alledged against me in general terms, as a disaffected person, and oppugner of rhe State, or otherwise, &c.
There are two things which draw subjection, and oblige persons to a Commonwealth.
1. Protection in the State.
2. Personal engagement, or fealty in the Subject.
First, Protection I have received none, but stand in the condition of a proscribed person.
1. State (if any) sequestrable, and not permitted by the laws of the nation to vindicate it.
2. Calling taken away, which the Turke would not have done, had he been conqueror.
3. Dwelling not permitted where I can subsist, Hyl. Proclamation of remove to each mans dwelling part of the remonstrance, against him. but where I may be obnoctious to want, and to the States infliction of punishment, when they shall take occasion to repeat upon me any thing which they shall call a crime, in reference to my passed Actions for the late King, and my now Soveraign.
4. Right I can have none, unless I will damn my soul to preserve my estate, or repaire my wrong by a contra-legal and contra-evangelical engagement.
This was sufficient reason, Declar. 17. April 1646. Ordinance Non addr. in Jan. 1648. owned and justified by the Parliament for their substraction of obedience, [...], by their Declarations, and Ordinances.
2. Fealty or personal engagement I have given none viz.
1. I have not taken the Protestation of May 1642.
2. I have not taken the solemn Oath and Covenant, yet if I had, I might have justified my Actions by them.
3. I have not taken the negative Oath, because my oath of Allegiance (from which no man can absolve me) is a negative to that, &c.
[Page 57] 4. I have not taken the present engagement, much more against my oath of Allegiance then the negative oath.
If I had had so little conscience as to have taken them, I would have had so much as to have kept them; and the State cannot in reason expect from me, or any other, that we should take a second, when we see no conscience made of keeping the first; and to take a third, the first and second being broken, without other dispensation then Power, which like Alexanders sword cuts the Gordian. knot which it can not untye.
Neither hath any man assurance, if he should take the last engagement, that he should have liberty to keep it longer then the fancie of the State held to the now new fashion of Government.
And therefore I stand clear as a down-right subject of England, to stand or fall by the Common Laws of England; and if they will deny me that, they deny my Birth-right, which is equally righteous, and no more just, then to deny me my estate, my calling, my abode, my means of right-
Secondly, As to my action at Linton, I justifie my self by the late.
1. Kings Commission, which my accuser knowes I had, and under which he was by the same King constituted my Major.
2. Foreseeing his murder in this maxime, That Kings never survive their powers and liberties. What was done, 11. of Hen. 1. Ca. 1. That the Subjects of this realm are obliged by reason of their allegiance to serve the Prince. was so done, when he who gave me the Commission was in being, For if time being in his wars for defence of him and the land against every rebellion power, and might read against him within the land or without; ought not to suffer in life, member, estate nor office for so doing. and oppressed by injurious imprisonment, and what I did was in order to his enlargement from his Thraldome, and restorement to his lawfull power, which was that to which my duty as a Subject by my oath of Allegiance did bind me in general termes, and the duty of my qualification in particular obligation.
It was done before the now reputed Parliament were, or pretended to be the Supreme Authority of the Nation, or had assumed the power of Government, or were fram'd into a State, & consequently I am not answerable to them for any opposition to them, further then the Common Law binds to Parliaments without their head, & hand, or defective in their members; & as to such offence (if it be one) this Court is not qualified to take any cognizance.
Thirdly, Col. Gibsons Case in 2. war at the Castles in Kent. As to the design concerning the surprise of the Isle of Ely, it was but a bare discourse or communication, and no [Page 58] formal design said, agreed unto, nor person engaged in it, so much as by promise.
And in Cases of conspiracy against the lives of Kings, there were some statutes made, that very words and communication should be reputed I reason; but all repealed, or expired.
And not thought fit by wisdome of Law-makers (having indisputable power to make Laws) to be revived since the dayes of Q. Mary, notwithstanding those very many treasons hatched & designed against Queen Elizabeth, and King James, &c.
If in the highest point of treason, communication be not treason against lawful Princes, certainly, an affection where the offence (such as it is) is of a far inferiour nature of it self, so it had a far inferior object, or subject concerning whom such discourse was holden.
Fourthly, As to my supposed corresponding with the King, the Lord Hopton and Earle of Cleveland, (if true) it was so long since, as that it fals not within compase of this Courts Commission to try, being confin'd to infant matters of a year old, and my charge not exhibited to the Court of Justice before Munday In the second Act. the 15 of July. My last letter received from Lord Hopton, beats date at the Hague, 18. or 28. of June, and was received in two dayes into Sussex.
Fifthly, As to the Drawing, Signing, Sealing of the engagement, it consists of several branches.
That De facto I did it, and must not deny it, because I have confessed it, which was more their needed, to them who knew it without enquiry; for I dare averr, that they had their instrument, by them imployed, and cherisht in betraying me to it.
And have some years past had a man in my bosome to watch me and my motions, which I did affirm to the Lord President, and he not denyed, but said, it was no more then did become any State to do, who had so much cause to hold an active man in suspect, as they had me, having never come in, and laid down the Cudgels, but held to my principles, and was ready upon every occasion to take fire.
And this I will prove, if I have legal (or because that word is worne out of use) fair dealing from the Court. And
Out of that I may justly inferr, what will be visible enough [Page 59] that it is the States Act, and but my consent, and they in no danger of me, but that I should preserve my self from their new laws, into the lapse of which I was not otherwise, or by any other action fallen.
- 1. It consists of an oath of secresie.
- 2. An owning of Charles the Second to be such.
- 3. A resolution to endeavour to make him such,
- 4. A crimination of the State, under the names of Rebels, and opposers, who would not have him to be such.
To these as they are rankt.
The oath of Secresie hath relation only as to the not discovering the co-engagers in that resolution, These two will interweave. & the resolution it self being not Treason, the oath of keeping secret that resolution is not greater then the thing resolved.
1. The thing resolv'd was to endeavour, but was nor an actual endeavoring.
2. If it were an actual endeavouring, yet it can only be supposed, that it must be endeavoured by a warr to be levied; and the endeavour to levy a warr never actually leavyed, is not treason against the King, against whom only, and his relations, by our old laws, which are Laws, a treason can be committed; and petty-treason I am not accused for.
That a bare intention, Cook. 3. p. Inst. fo. 14. and 38. resolution, or engagement to levy a warr is not treason, I report my self to my Lord Cooke; who tels us, (and he is a man of credit) in his Book (printed and allowed for law by the Houses when they were two) that a conspiracy (and this engagement amounts not to so much, but rather to an intention only to conspire) to raise a warr, (as hath been said, and so resolv'd) is no treason by the Act of Edward the third, 25. Ed. 3. Ca. 2. until the warr levyed, as within, or to be reached by those words in that law, ( overt Act;) and if it were not treason in those words in the original, it fals not within the words of the translation of this new born law viz. by any open deed. Open deed.
So as the first and third branches of the engagement which are interwoven, and what ever, I conclude that neither of them, that is to say, neither the oath, nor the resolution, are treasons [Page 60] either within the old, or the new laws, either in respect of the persons against whom, or the progress made in the thing it self.
2. As to the owning of Charls the second, it falls not within your Law; for that it is not a Publishing, Proclaiming, or publickly Declaring his Title; The words of the Act are, [ Proclaim, Declare, Publish, or any way promote] which promoting is matter of Action more then a private owning. 30 Jan. 1648.
And this by the Oath it self was not to be publisht, nor could, without publishing the Engagement it self, which was contrary to the Oath.
And though it may be objected, that the raising the warr could not be done, but by a publishing his title, and the Engagement at last; yet that, if it be granted, was no forwarder then in intendment; no more was this publishing, and being not done, falls not within your Act.
The crimination of the State is but guessed at by implication (for they are not named) to be meant, and I believe your law reaches only to things literal, and not constructive only; and for the word Rebels, I hope they will not take that to themselves, and the word opposers is a very innocent expression, and at the worst is all but a scandal.
Lastly, Be this Engagement what it will, yet the terms upon which I signed and sealed it were such, as that it was my act not absolute, but upon condition, and to be undone and avoided, in case of the non-coengaging of others, by the States decoy assured to be ready to do it; and at whose instance, and for whose satisfaction it was pretended to be desired at my hands.
If the Court proceeds by way of Indictment, then I shall move, that those persons may be confronted, whom in my Narrative, Examinations and Letters I have named; and that I may demand of them, &c.
As also that Major Parker may be produced to be likewise demanded of as a person by me lately, and since my papers sent to the State, discovered to be of the Plot to betray me.
If the Court proceed by way of Articles, and upon Examinations taken against me; I desire, and that is but reason, that I may examine, my defence, as in all Courts, where such proceedings were used, was allowed.
[Page 61] If it be objected, That it was not used in cases of Treason, I answer, it it true, if they hold the ancient way of Tryals, not; but if they proceed this way, it is but just; and otherwise the Court are at liberty to use all means, publick or private, to catch me; but I have none to defend my self: So that it appears that they seek not to do Justice, but Execution.
And whether they be confronted or examined, these questions are to be propounded, either viva voce, or Interogatory; and if by Interogatory, I must stand upon a fair way of Examination, viz.
That some one from me, as well as one for the States behalf, may be present, and set down the examinations or depositions; and that I may have a Copy of them as well against me, as for me, as well taken already by the State, or to be taken upon my motion.
- 1. Whether he knows Major
Burnard? how long? &c. What communication and correspondence concerning me,
Major Parker.or my actions held between them? Whether he knew of the supposed design against the Isle of Ely, and of the late Engagement? how he knew them, and upon what reason, and to what end discovered to him, and by whom?
- 2. Whether he did inform the State (or any member of the Councel) of them, and how long he hath so informed?
- 3. Whether he ever had in his custody the Engagement under the hands and Seals, and my letter to Sir John Gell? if so, where, and whether not at Gravesend at my being there? Whether he were sent to watch mee, and knew of my being there, before my being apprehended?
- The same questions ( mutatis mutandis) to be propounded to Barnard; and farther to him, and to Benson, Holmes, Ashley, Smyth, as they are marked.
- 4. Whether he did propound in both designs to me,
Barnard.or I to him? Whether I sought him, or he me? In what disposition he found me, upon the time by the Act limited for departure, &c.
- 5. Whether he were real to me in the particulars of persons,
Idem & Benson.confederates or monyes, ready to engage and to be advanced, and if not, then to what end he faigned these to me?
-
[Page 62] 6. Whether the Letters by him to me produced from
Smyth and
Thach or
Thatcher,
Bar. & Benson.were true, or seigned? and if seigned, to what end, and by whom let on work?
- 7.
Bar.Whether he were set upon me to watch my ways and motions? And whether he were not promised, or did design unto himself profit for the discovering of me, and such whom I should bring in?
- 8.
Bar. & Benson.Whether I fram'd, or ever read the said supposed design? Or was to be de future acquainted with it?
- 9.
Bar. Benson Holms.Whether he brought, or I sought Benson, or Holmes? And whether confederates with him, or designed upon by him?
- 10.
Ashley & Ban.Whether my engagement were absolute, or conditional, and what I signified at my departure, and upon Barnards not comming, and where Barnard was pretended to be, and where he really was? what promise I had concerning the return of my engagement in case Sir John Gell did not engage at Gravesend?
- 11.
Ben, & Holms Mr. P [...]t subscribed to the Coppy of the Letter, Smy. Bar. & Benson.Whether Copies of Letters weekly shew'd to me, were reall of feigned? and if feigned, why pretended to be real?
- 12. Whether were there really any Kentish, Dorset or Buckinghamshire men, and who confederites? &c.
These preparations formerly made in rough notes, were transcribed and put into form, and finished the 8 day of July 1650. by Gods good assistance; notwithstanding my abundant disadvantages of close Imprisonment, and want of Books, or Advice; and I commit and submit the issue to God, whom I beseech to fortifie my spirit, and enlarge my understanding when they shall come to be made use of; my self resolving to be the Laws confessor while I live, and (if called to it) to be the Laws Martyr when I die by the hand of the impending violence, under the specious name of Justice.
His Exceptions to his Tryers.
J [...]hn Hurst Esq Bartin Hazelrigge. a man who hath had his hand in blood, viz. Mr. Bartin Hazelrigge in a duel, for which arraigned, &c.
A person trying, viz. a Juror, and in this way of Tryal he is such, ought to be a freeman, viz. not only free in person, but in his prejudicating opinion; which he is not, having published that the respondent was the greatest Traytor in England, and that there was enough under his hand to hang him the Respondent.
Sir William Roe, Captain John Stone, two of my tryers were imployed to examine the Respondent, on the 2. of July 1650. and brought with them all the evidence against him, and therefore in their capacity of my triers, by the rule in Challenges, they are challengeable, and incapable to sit.
The last Will and Testament of Collonel Eusebius Andrewe, 14. of August 1650.
IF it be the unalterable, and uncontrollable will of God, that I Eusebius Andrewe Esquire, shall for my manifold and high provocations of his Divine Majesty be shipwrackt by that storme which at present impendeth over my head; I most humbly and cheerfully submit unto such his good will and [Page 64] pleasure; freely and from the bottome of my heart forgiving my betrayers, prosecutors, and Judges, and all other my injurers, as I desire him for his Sons my Saviour Christ Jesus sake to forgive me my many and enormous transgressions; and do lay down my life, (though under his present wrath, yet) with a sober confidence of his reserved favour: And desire that my body may be privately interred in the Parish Church of Alhallowes, Barkin London, as neer as may be to the Reverend Arch-Bishop of Canterbury, there with him to expect a joyful Resurrection, at the comming of Christ to Judgment; of which through his merits, and through them only, I am right well assured.
I beseech God to bless my Daughter Matilda Andrewe, and to supply unto her, what by my improvidence, (& the accidents of the late tempestuous times, in which I could not swim to Riches without the drowning of my conscience,) is in my being taken away become deficient; and that he would preserve her from want, and dishonor, and from being by any evil Counsel or Example led aside into the foul errors of this Nation, in matters concerning her Souls health. And to that end, I hereby give her and the whole world an account of that faith and profession, wherein by Gods assistance I shall be found at my death, and shall seal with my blood; and in which I pray to God, she, and all my dear friends (whom I spare to name, because I love them) may live and die.
I renounce all dependance upon the Pope and Church of Rome, and that out of a serious consideration of their adulterate errors and doctrines, inconsistant with the truth and light of the Gospel; and not meerly out of habit, as being bred a Protestant, nor out of the general noyse now made against them, as if all the evil in the Land were from them: For so abominable have been the actions of the Presbyterians on the one side, and the Sectarians on the other, that if I had not both found my conscience and judgment unsatisfied in the the Romish Doctrine, and my soul comforted in hope of Gods returning in favour to his late mutilated Church, I had long since profest my self a Roman Catholick, rather then have submitted to the multiplyed Tyranny of the one, or the Babylonish confusion of the other.
[Page 65] I have hitherto liv'd, and resolve (by Gods gracious aid) to dy a true protestant; that is to say, a member of that Church, and professor of that faith, and obedient to that discipline which hath been professed, and maintained, and exercised in England, in the reign of Queen Elizabeth, King James, and Charles the Martyr; which I trust God will again restore to its former purity and power.
I look upon the Presbyterian, as upon one whose discipline is inconsistent with, and improper for the natural and long habituated Government of this Kingdome and Church, and the Author of all this Lands mischeifs, in the supplanting that ancient and Apostolical Governance by Bishops, and the taking away of the life of the King, by exposing him to the madness of the Independent, by their first opening the gap to Anarchy and confusion in Church and State, by breaking the Golden Chain of either due prerogative.
I consider the Independent, as fire out its place, which is alwayes mischievous; who hath already given earnest (in his making a superstructure upon the Presbyterians basis,) for his performing the whole work of confusion upon Religion and Law, if God prevent not by confounding their politick Councils, as much as themselves have done their Fanatick opinions: God in his good time put a hook in their nostrils, and their Leviathans.
Of those to whom I am any wayes indebted, I ask their pardon, it not being my intendment, in case God had pleas'd to have preserv'd me from the snare and violence under which I am fallen, to have been (to my power) irresponsible to any.
I desire such who approve my profession, to cover my faults in their charity, and to let me be sweet in their memory. As for the rest, I wish them a seasonable repentance, but set no price upon either their opinion or report.
A Letter from a friend to Colonel EUSEBIUS ANDREWE.
YOu have been long the subject of my prayers, now take my councel; while I am not able to do what I would, accept of what I can.
I hope I shall not need divert your thoughts from the fears and terrors of death; you are too well acquainted with that Monster, to shrink at his menaces; you know the Statute, All men once to die; your death is accellerated by the malicious machinations of a bad man, under the name of friend; if he had not betrayed you, a Feaver, or other violent disease, or 1000. other mischiefs would have done it; a few inches of time are cut from your life, be not you offended to hasten to your immortality; you would have been glad to have been freed from your prison, let not your soul be clouded while it hastens to its glory; do not look to the next causes of suffering, so much as to that providence which orders all things wisely to the glory of his name, and the salvation of your soul. (I attest your own conscience) Had you died under the bloody hand of War, or in the height and heat of your youthfull aberrations, could you have appeared so chearfully before the great Tribunal, as now in this time of humiliation and preparation you may? May be, the unworthy condition of your betrayer, works your dispositions to high indignations; yet your dear Saviour betrayed by as great a pretender, said no more, but, Dost thou betray me with a kiss? Strange way it was (then,) but from that arch-traytors example, its now become familiar; Do not entertain animosities against your Judges; you know who said, Father forgive them. And that great Martyr (dying,) Lord lay not this to their charge. Be assured they must (one day) give an account of your sentence, before an higher Court of Justice. If they have rightly judged, complain not; If they have done you wrong, you know to whom vengeance [Page 67] belongeth (shortly:) In your patience, possess your soul that time you have to live, abandoning all thoughts and eares of this world; study how to appear before the judgment seat of Christ, to give account for your 42 years; consider what answer to make to that Judg which renders to every man according to his works; let all your disquisition be, what to do to obtain Eternal Life.
Much I have to say to that question; Reduce all to these two, those two ways which Almighty God has chalk'd out for all men to Eternal Glory. One of innocency; the fathers before the flood had none other, those after were directed by that; Our blessed Saviour resolves that question, What's written in the Law, that do, and thou shalt live. Consider first, how far or right you have walked in this way; but if you perceive your aberrations, despair not; our good God has propounded a second way unto that end; it's humble penitence; If you have erred from that good way, come into this; Repent you truly for all your sins; Afflict your soul for offending your mercifull Father; Implore his pitty, mercy and pardon, and your Soul shall live. Remember you have a most gracious God, That desires not the death of a Sinner, but rather that he should repent and live. You have a blessed Mediator, Intercessor, Saviour, who dyed for your sins, and rose again for your Justification; and be assured, Whosoever believeth in him shall not perish; be confident, he that believeth on him, shall live though he die; and he that liveth and believeth on him, shall not die Eternally.
I am straitned, while I would direct you in all the steps of this way, which are humble Confession, hearty Contrition, serious Detestation, and (so far as you are able) real Satisfaction; These four.
I have already exceeded the limits of an Epistle; what is wanting, I shall beseech you to make your addresses to the most learned and reverend Bishop of Ely; intreat his help and direction, follow his counsel, implore his absolution, and consider how much gain it should be to you, though you lose all the world, so your Soul may be saved.
[Page 68] The God of all goodness in mercy look upon you, direct you by his Wisdom, guide you by his Counsell, comfort and sanctifie you by his holy Spririt, that alone shall make you wise unto Salvation, and lead you through all the miseries of a perplexed life and untimely death, to that glory which is beyond my expression and your apprehension, is the daily prayer of your real partaker in all your sufferings.
August 17. 1650.
Mr. Andrewe, his answer to the aforesaid Letter.
YOur words sent to me were such and so seasonable, that I have given them the same entertainment and lodging as becomes me to afford to Apples of Gold with pictures of Silver; and if I be after my decollation dissected, you may find them in my heart, where your self have always held a Mansion.
If fear were absolutely a necessary passion by which to denote a man, I must as yet be accounted amongst some other species of animality, there being not a scruple in the whole frame of my mind and body of so tenuous a Composure. The fear of Isaac hath banisht all other dreadings.
I look upon death, as upon that rod in the hand of God, with which he would not have corrected me, if less correction had not been unprevailing; and which he doth now exercise upon me, because he is resolved not to let me be less then a son beloved; and I am content to bear the stripes, and kiss the Instrument.
I am sorry that my rod is bound together with the sin of my betrayer, and wish him repentance, that when the Rod comes to be burn'd, he suffer not in the flame. I shall not need to say I forgive either him, or my Judges, having already forgotten them in all, my prayers excepted.
[Page 69] I am proud and covetous to be released from the double imprisonment I lie under, of the flesh, and bonds, and am ready for the opportunity to make my escape, though in a fiery Chariot. All things betwixt me and God are removed from my sight, and I see him clearly without reflection upon my accusers and Judges, and submit cheerfully to his fatherly dispensation and judgment.
It is Gods mercy that I was not long since consumed; for an earlier death, in my heats and follies, had not proved less then a total consumption of all, which now will become precious in despight of ignominious Death, or attending nauseous Corruption.
My betrayer wanted only Judas his subject to make his sin as great, being transcendent to his in the circumstance; and I wish him Peters tears to wash away Judas guilt, and to avoid Judas his punishment, by Peters repentance.
My Judges have done me no wrong; they have a law for their warrant, and my confession for their evidence; neither have capacity to be Chancellors in matters of life; let them go free, and the Law-makers and inforcers of it, for their errors of constituting them, before the padling in blood grow too customary to be thought a sin worthy their confession or sorrow; which I desire for the sakes of their souls, and the lives of the oppressed, and indeed proscribed Free-Christians of the Nation.
The Fathers Plea of Innocence I cannot make, but I can say, (and bless God that I can say) Veri penitence est pene innocence; I have erred, and cannot say I have voluntarily returned, but I am graciously brought home, as a lost sheep, not to be eternally slaughtered, but put again amongst the flock, to be kept safe under the staff, as well as the rod, for the great shepherd of my soul Christ Jesus.
I dare not tell you I have not sinned, you are a witness against me, if I had none within me; but I can tell you what my faith dictates to me, and Gods holy Spirit assures me, that the Lord hath put away my iniquity.
I am already sensible (and that in a measure unexpressable) of Gods goodness to me; who as he will be glorified upon me [Page 70] on earth, so he hath given me an earnest of my future glory in heaven, by the sweet perfume he hath cast upon my name amongst the people, and the Christian-like compassion he hath begotten for me amongst all men, who have yet an eye of expectation upon his return in mercy to this poor distressed Nation, and oppressed People. The God of all goodness hath in mercy looked upon me, directed me, counsel'd me, comforted me, and sanctified my affliction to me; and I am ready to fall into his mercifull hands, as soon as the heavy hand of the Executioner shall have given a Nunc dimittis to.
The last speech of Colonel EUSEBIUS ANDREWE, on the Scaffold on Tower-hill, August 22. 1650.
THe Lieutenant of the Tower delivering the Colonel to the Sheriff, said, he had brought him thus far on his journey; The Col. replied, I hope I shall neyther tyre in the way, nor go out of it.
When he came on the Scaffold (kissing the Block) he said, I hope there is no more but this block between me and heaven. After he had been some while on the Scaffold, he spake to the people as followeth.
Christian Gentlemen and good people, your business hither this day is to see a sad Spectacle, a man brought in a moment to be unmann'd, cut off in the prime of his years, taken from further opportunity of doing service to himself, his friends, the Common-wealth, or especially to God. It seldom happens but upon very great cause; and though (truly) if my general known course of life were enquired into, I may modestly say, there is such a moral honesty, as some may be so forward as to expostulate, why this great judgment is fallen upon me? But know, I am able to give them and my self an answer; and out of this brest, to give a better account of my Judgment and Execution, then my Judges themselves, or you. It's Gods just displeasure towards me, for my sins long unrepented of; many judgments withstood, and mercies slighted; therefore doth my gracious father chastise me with this correction, that he may not lose me; and I pray you assist me with your prayers, that this rod may not be fruitless: That when under his rod I have laid down my life, by his staff I may be comforted, and received into Glory.
[Page 72] I am very confident, by what I have heard since my sentence, there is more exceptions made against the proceedings against men, then ever I made; my Tryers had a Law, and the validity of that Law is indisputable for me to say against it, or to make a question of it: I should but shame my self and my discretion: In the strictness of the Law, something is done by me, that is applyable to some clause therein, by which I stand condemned; the means by which I was brought under that interpretation of that which was not in my self intended maliciously, being testimony given by persons whom I pitty, so false, yet so positive, that I cannot condemn my Judges for passing Sentence against me, accorcing to legal justice; for equity lies in higher brests. For my accusors, or rather betrayers, I pitty, and am sorry for them; they have committed Judas his crime, I wish and pray for them, St Peters tears; and I wish other people so happy, they may be taken up betimes, before they have drunk more blood of Christian men, possibly, less deserving then my self.
It is true, there have been several addresses made for mercy, and I will lay the obstructions to nothing more then my own sins; and seeing God sees it fit (I having not glorified him in my life) I shall do it in my death, I am content.
I profess in the face of God, particular malice to any one of the State or Parliament, to do them a personal injury, I had never; for the cause in which I had a great while waded, I must say, my engagements and pursuance in it hath laid no scruple upon my conscience; it was upon principles of Law, whereof I am a professor, and upon principles of Religion, my judgment rectified, and my conscience satisfied, that I have persued these wayes; for which (I bless God.) I find no blackness upon my conscience, nor have I put into the bed-role of my sins.
I presume not to decide controversies, I desire God to glorifie himself in prospering that side that hath right with it, and that you may enjoy peace and plenty here, when I shall enjoy my God.
In my conversation in the world, I do not know where I have an enemy with cause, or that there is a person, to whom I have [Page 73] regret; but if there be any whom I cannot recollect under the notion of Christian men, I pardon them as freely as if I had named them; yea, I forgive all the world, as I desire my heavenly Father for his Christ to forgive me.
For the business of Death, it is a sad Sentence in it self, if men consult with Flesh and Blood: But (truly) without boasting I say it, or if I do boast, it is in the Lord, I have not to this minute had one consultation with Flesh about the blow of the Axe, or one thought of it, more then my pasport to Glory.
I take it as an honor, and I owe a thankfulness to those under whose power I am, that they have sent me hither to a place, however of punishment, yet of some honor, to dye a death somewhat worthy my Blood; and this courtesie of theirs hath much helped towards the satisfaction of my mind.
I shall desire God, that those Gentlemen in that sad Bed-rol to be tryed by the High Court of Justice, that they may find that Really there, that is Nominal in the Act; An High Court of Justice, or Court of High Justice; High in its Righteousness, not in its Severity: no more clouded with the Testimony of folk that sell Blood for gain. Father forgive them, and I forgive them, as I desire thee to forgive me
I desire you now to pray for me, and not give over praying until my last moment; that as I have a very great load of sins, so I may have the wings of your prayers assisting those Angels that shall conveigh my soul to Heaven. And I doubt not but I shall there see my Blessed Saviour, and my gallant Master the King of England, and another Master which I much honor, my Lord Capel; hoping this day to see Christ in the presence of the Father, the King in the presence of him, my Lord Capel in the presence of them all, and my self with them, and all Saints, to rejoyce for evermore.
You have this morning, in the presence of a few, given some account of your Religion, and under general notions or words, have given account of your Faith, Charity and Repentance: (then speaking to the standers by) if you please to hear the same questions asked here, you shall, that it may be a general Testimony to you all, that he dyeth in the favour of God.
( To the Colonel,) Now, Sir, I begin to deal with you; you [Page 74] do acknowledg, that this stroke you are by and by to suffer, is a just punishment laid upon you by God for your former sins.
I dare not only not deny it, but dare not but confess it. I have no opportunity of glorifying God more, then by taking shame to my self; and I have a reason of Justice, for justifying God in my own besome, which I have intrusted to yours.
You acknowledg you deserve more then this stroak of the Axe, and that a far greater misery is due to you, even the pains and torments of Hell that the damned there indure.
I know it is due in righteous judgment; but I know again, I have a Satisfaction made by my elder Brother Christ Jesus, and then I say it is not due; it's due to me, but acquitted by his Mediation.
Do you believe to besaved by that Mediation, and no other?
By that, and that only, renouncing all Secondary Causes.
Are you truly and unfeignedly sorry before God, as you appeare to us, for all these sins that have brought you hither?
I am sorry, and can never be sorrowfull enough, and am sorry that I cannot be more sorry.
If God should by a miracle, not to put you to a vaine hope, but if God should, as he did to Hezekiah, renue your days, what life do you resolve to lead hereafter?
It is a question of great length, requires a great time to answer; men in such streights would promise great things; but I would first call some friends to limit how far I should make a Vow, that I should not make a rash one, and so offer the Sacrifice of fooles; but a Vow I would make, and by Gods help endeavour to keepe it.
Do you wish health and happiness upon all lawfull authority and government?
I doe prize all obedience to lawfull Government, and the adventuring against them is sinful; and I do not justifie my self (what ever my judgment be) for my thus venturing against the present Government; I leave it to God to judg whether it be righteous; if it be, it must stand.
Are you now in love and charity with all men? do you freely forgive them?
With all the world freely; and the Lord forgive them, and forgive me as I freely forgive them.
You have for some late years laid down the Gown and took up the Sword, and you were a man of note in these parts where you had your residence; I have nothing to accuse you for want of diligence in hindring, in doing of injuries; yet possibly there might be some wrong done by your Officers or those under you to some particular men; if you had your Estate in your hands, would you make restitution?
The wrongs themselves you bring to my mind are not great nor many; some things of no great moment; but such as they are, my desire is to make restitution, but have not wherewithal.
If you had ability you would likewise leave a Legacy of thankfulness to Almighty God; something to his poor Servants, to his Lame members, to his Deaf members, to his Dumb members.
My will hath been alwayes better then my ability that way.
Sir, I shall trouble you very little farther; I thank you for all those heavenly Colloquies I have enjoyed by being in your company these three days; and truly I am very sorry I must part with so heavenly an associate: we have known one another heretofore, but never to Christianitie before: I have rather been a Schollar to learne from you, then an instructer.
I wish this Stage whereon you are made a spectacle to God, Angels and the World, may be a School to all about you; for though I will not diminish you sins, nor shall I conceal or hypocrize my own, for they are great ones between God and my self; but I think there is few here have a lighter load upon them then you have, if we consider things well; and I only wish them your repentance, and that measure of faith God hath given you, and that measure of courage you have attained from God, and that constant perseverance God hath crowned you hitherto with.
His Name be praised.
[Page 76] Here the Doctor prayed with him almost a quarter of an hour, after which the Colonel turning himself again to the people, spake as followeth;
One thing more I desire to be clear in, There lyeth a common imputation upon the Cavaliers, that they are Papists and under that name we are made odious to those of the contrary opinion. I am not a Papist, but renounce the Pope with all his dependencies, where the distractions in Religion first sprung up. I might have been thought apt to turn off from this Church to the Romish, but was utterly unsatisfied in their Doctrine in point of Faith, and very much as to their Discipline. The Religion I Profess is that which passeth under the name of Protestant, though that be rather a name of distinction, then properly essential to Religion: but that Religion found out in the Reformation, purged from all the Errors of Rome in the Reign of Edward the 6 th, practised in the Reign of Queen Elizabeth, King James and King Charles, that blessed Prince deceased; that Religion before it was defaced I am off, which I take to be Christ's Catholick, though not the Roman Catholick Religion.
Then he turned himself to the Executioner:
I have no reason to quarrel with thee; thou art not the hand that throws the Stone: I am not of such Estate to be liberal, but here is 3l. for thee, which is all I have; now tell me what I lack.
Your hair to be turned up.
Shew me how to fit my self for the Block.
After which, his doublet off, his hair turn'd up, he turned himself about to the people, and prayed a good while before he lay down to the Block. He spake to the people as followeth;
There is none that looks upon me, though many faces, and perhaps different from me in opinion and practice, but hath something of pity in it: And may that mercie that is in your hearts, fall into your own bosomes when you have need of it: And may you never find such a block of sin to stand in the way of yout mercy as I have met with.
I beseech you joyn with me in Prayer. Then he prayed, [Page 77] leaning on the Scaffold, half a quarter of an hour. Having done, he had some private conference with Dr. Swadling; then he taking his leave of the Sheriff and his friends, kissing them, and saluting him next him, he prepared himself for the Block, kneeling down, said, Let me try the Block, which he did: After casting his eyes, and fixing them very intentively above, he said, When I say, Lord Jesus receive me, Executioner then do thy office; then kissing the Axe, he lay down, and with as much undaunted, yet Christian courage as possibly could be in man, did he expose his Throate to the fatal Axe, his life to the Executioner, and commended his soul into the hands of God, as into the hands of a faithful and merciful creator, through the Meritorious passion of a gratious Redeemer. Saying the forementioned words, his Head was stricken off at one blow.
Vera copia exam.
Here the Att. Gen. Prideaux put a stop to Mr. Andrewe, telling him that the Court was not at leasure to take notice of those law cases, but of his confession; that he had an affection to act, though nothing acted, was sufficient Treason, and for that affection he deserved death, and thereupon the Court pronouned sentence against him. Thus was the Birth-right of the Freeman of England denyed by most cruel murtherers, whose only will was their Law.