THE Beginning of his Trial, which lasted al­most till Night.

John Mordaunt Esquire, thou standest here charged with High-Treason against his Highness the Lord Protector and the Commonwealth: you have heard the Charge read, the Court demands your posi­tive Answer thereto, whether Guilty or not Guilty.

I desire I may hear the Com­mission read by which you sit.

You are impeached of High-Treason, we require your Answer.

I desire the Commission may be read, and the Commissioners names.

You are to be tried by the Laws of England, Act of Parliament, and Commis­sion of the great Seal of England in pursuance of that Act.

I claim it as my Right, I am igno­rant in the Law, I desire it may be read.

It is not granted to any.

Will you take away that Liberty, that we shall not know by what Commission [Page 8] we are tried, nor who are our Judges? I desire I may not be made the first Precedent.

It is visible who are your Judges, they are named by Act of Parliament. We are your Judges.

It appears you will be, though I am not satisfied in it: but the Act will not bear that it must not be read. I desire a Le­gal and just proceeding.

The Act of Parliament doth not require it.

The Act not denying Misera servitus ubi Lex est vagum aut incognitum. it, it follows, it is my Right.

You shall have all the Privilege that may be, but you must first plead.

My Lord, I demand this, to have the Commission read.

My Lord, pray let him know what is done, to warn him, lest he fall into the same condemnation. There was one but a little before you that demanded the same thing, and the Court hath ruled it otherwise, and he hath received his Sentence: I tell you of it, that you may beware, and know how to carry your self. If M ^r Mordaunt will be pleas'd to answer whether Guilty or not Guilty of those Crimes, then he shall [Page 9] have a fair Trial, and full Examination: if otherwise, the same Sentence must be requi­red as before; that is, upon refusal, the Judg­ment pronounced for High-Treason.

My Lord, I desire the Act may be read.

The Act is publick, the Court is not to give you an account of their Authority, or the way of their proceedings; they require your Answer.

My Lord, shall I not know by what Law I am tried, nor by what Act, nor by what Commission?

You seem to be a yong Gentleman; I wish you would rather plead not Guilty, or make an ingenuous Confession.

My Lord, truly it appears this Gentleman is for the Protector; I am for myself, and resolv'd not to lose my native Rights. I desire I may have Counsel assign'd to argue it with this learned Counsel. If this Counsel convince mine, I will submit; if on the con­trary, what I demand I expect will be allowed me. This is the first time I have been before any Court in my life. I desire that my Reason may be convinc'd, and to know if the Prote­ctor's Counsel will say I am debarr'd hearing [Page 10] the Commission and Act read: however I shall referre it to the Judges of the Land, by whose Opinion I will stand or fall.

My Lord, you have of­fered that Gentleman very seasonable advice, I wish he may be capable of it; and in these debates I wish he doth not lose those advanta­ges that are really intended for him. For the Court, it is by Act of Parliament, and no Judicature in England can require any account of their proceedings. Your Papers, M ^r Mor­daunt, were better laid aside, they will preju­dice you.

With your leave, Sir, I shall not quit them. Pray give me leave to ask this Question, whether there be any precedent for this.

By way of advice I do acquaint you, that there is no Judicature in England superior to this, but the Parliament immediately. You are here impeach'd of a very high Crime, High-Treason; it may be a straying of Youth: the first step to Mercy is Confession.

Sir, I humbly thank you, yet shall not betray mine own Innocence by con­fessing a Crime; I will never know Treason, and being Innocent I shall need no Mercy. My [Page 11] Lord, I have heard that the Judges of the Land are the best and most proper Exposi­tors of the Law; and I cannot but wonder I see none of them here: If they declare that this is the sense of the Act, I'le submit to the Court; if the Court will allow me Counsel, I shall submit if my Counsel be convinced. I desire to hear the Commission read.

My Lord, this Gentle­man was a fellow-Prisoner with one that went before him, he walks after the same steps; I wish he may not run into the same Error: these things were urg'd by D ^r Hewet, and the Court hath ruled that their Authority is suf­ficient; and therefore, my Lord, be pleas'd that this Gentleman may plead.

My Lord, I see I shall be over­born both as to Counsel and Jury, and that you endeavour not to convince me. Will this Counsel give it under their hands that this is Law by the Act of 1656? If you will say under your hands that this is Law, that I shall be ex­cluded of Jury and Counsel, and that I must not know the Commission by which I am tri­ed, I will proceed.

I am afraid you have received ill advice from others; possibly you know what [Page 12] is become of that Prisoner that spake of Counsel: we cannot assign you Counsel as to matter of Fact. The Law and Act of Parlia­ment have made us your Judges, and there­fore you are to plead.

My Lord, I desire that that Act may be read, to know whether I am to be ex­cluded of Jury and Counsel; I durst referre it to the Counsel against me.

I doubt the Gentle­man is in jest: We are here to attend by command of his Highness the Lord Protector, these Gentlemen are all sworn by Act of Parli­ament; it is a little slighting of the Court to appeal from the Court to the Counsel. But, my Lord, I beseech you he may forbear to say he is overborn. You shall have Justice done if you plead; if not, there was a Precedent but now: if you please to put your self upon the Trial, you shall have a fair Trial.

My Lord, I hope it will be un­derstood frank Ingenuity to referre my self to the Protector's Counsel, and not slighting the Court: neither am I convinced by this Act that I am to lose the right of Jury; I have not heard any Reason why I must lose it: I shall insist upon a fair Trial.

[Page 13]

I do tell you the Court hath given Judgement just now in the like Case.

I ask a Precedent for this.

I tell you a Precedent, S ^r Henry Slingsby and D ^r Hewet.

Is it a good Precedent? if any give an ill Precedent, it is no reason I should follow it, but debate it my self.

I humbly conceive that this Court is your Court, and that you ought to plead to it.

If I could conceive this Court were so, I would plead. My Lord, I desire I may be heard; 'tis hard I should be excluded those Privileges my Ancestors have so often sweat and bled for, in purchasing the Rights of the Great Charter, and the Petition of Right. I am told, I have just claim both to Counsel and Jury. And indeed I suppos'd that in this place, which is so famous for Ad­ministration of Justice and Law, I should not have been debarr'd what appears to me to be so: but since I cannot obtain the having the Act read, I shall as well as I can explain my sense of it. The words are these, That the respective Commissioners or the major part of them are [Page 14] to meet, &c. The major part only having power to meet and adjourn, and not to determine and try, and in seventeen there is no major part, the whole being 150. now I humbly conceive without the whole I cannot be try'd.

All this that you ask of us now we have declared this morning already to one who was before you at the Barre. The Quo­rum of this Commission is seventeen, or any more of them. We must require you again to plead.

My Lord, I desire a little Pati­ence. That the Number of Commissioners to try is seventeen, I conceive must be very much forc'd, because the words relate to the respective Commissioners. Several Persons were allowed Counsel, I desire Counsel.

That is when there is matter of Law; you have alledged nothing, you are now upon matter of Fact.

My Lord, my Indictment is matter of Law, and upon that I may safely demand Counsel; I desire to have Counsel as to my Indictment.

Your Reason, and my Reason, and all Reason must submit to the Law: you [Page 15] are now upon matter of Fact; the single Que­stion is, Whether Guilty or not Guilty?

My advice to you is, that you would put your self upon your Trial.

I am clearly resolved not to put my self upon a Trial that never had a Prece­dent; neither am I so mean to doe it, did I respect the Liberties and Privileges only of my Country-men.

I will tell you where this Mistake is: He speaks of former Trials, which we do not deny; but this Gentleman will agree that it is in the power of Parliament, by Acts of Parliament to alter those Trials. We conceive that this Act of Parliament hath de­termined this very question; for, my Lord, it is that you shall examine upon Oath, and thereupon proceed to Conviction, and final Sentence; not by Jury. And this Act of Parliament hath entrusted you to be both Judge and Jury. All English ▪men must sub­mit to what the Parliament hath done; and the Parliament hath determin'd this Questi­on, that you have power to examine upon Oath, and thereupon to proceed to Convi­ction, &c. If a Jury was to doe it, you were not to proceed to Conviction. This Gen­tleman [Page 16] saies there is no Precedent for it; but we say it was the same in Queen Elizabeth's time. They proceeded to Conviction, and final Sentence, when they proceeded against Duke Hamilton, Lord Capel, and Holland. Did not the Parliament approve of what they did in that case as Just, Honourable, and Lawful? Did not Duke Hamilton? Did they not all Petition the House? Did not the Parliament order Execution upon some, and Cleared others? To say this is without Precedent, when Prece­dents are so frequent, I wonder that should be said. To that point of a Jury, I must tell this Gentleman, he speaks of a Jury, but hath not put himself upon Trial; after he hath pleaded not Guilty, then it must be conside­red the manner of the Proceeding: but to come before he plead Guilty or not Guilty to desire a Jury, this is a little to anticipate your Judgement.

My Lord, I am concern'd for the fatal Precedent that Learned Gentleman gives of the Queen of Scots, it being in my opinion the greatest blurre to the Justice of Our Nation, and for which we may yet suf­fer. But allow that for a Precedent, our Cases are strangely different: She a Sovereign [Page 17] Queen, and how to get a Jury of Kings and Queens to have sate upon her would have been hard: Next, She was a Foreiner, and ought to have had six of her own Country to six of Ours, which could not be found: To this, my Lord, the next Parliament pardoned all those in particular sate upon her, as having done an action Questionable by the Laws of the Land.

I, my Lord, am an English-man, very well known, and have a right to the Great Char­ter and Petition of Right, which She had not, and therefore desire Jury and Counsel.

The Parliament hath thought fit to go this way, and it is not to be disputed; they that live in this Nation are not to dispute it. If that Gentleman will please to recollect himself, and not, my Lord, thus Expostulate and Dispute with the Court of Justice; if he please to put himself upon Tri­al, if he thinks himself Innocent, I think it best: and if he refuse it, his Sentence is from himself.

I am not Convinced at all, but forced upon it, and it is a hard thing that my Reason should not be Convinced. If this Act doth say in any place, that I must lose those [Page 18] Privileges, or if the Judges will declare it to be so, I will submit to it: If the Judges will de­clare that I must be try'd thus, God's will be done; I desire to stand and fall by the Laws.

We are clearly of opi­nion we have not power in this to appoint any other Jury, nor to summon a Jury, we our selves having taken an Oath: you would doe well to plead.

I do not shun to be try'd by Act of Parliament, but refer my self to the Judges, that those Privileges of the Act may not be taken from me. If I am not suffered to dispute the Power of the Court, yet I de­sire my Reason may be convinc'd, and that I may have Counsel.

Here he was interrupted, and a silence in the Court, occasion'd by a Note handed to the President, and from him to the Lieutenant of the Tower, who got it delivered to the Prisoner. The Note contain'd these words: For God's sake plead, plead for my sake, and stand disputing it no longer.

Ʋpon the receit of this, the Prisoner chang'd his Reso­lution, mov'd thereunto by the great Kindness and value he had for his Lady, who being at the Hall-door in a [Page 19] Coach, had received information that unless he presently pleaded, he was lost: upon which her Ʋncle the Earl of Monmouth got her to write the Note, and himself car­ried it to the Court.

By this it appears how miraculously God preserv'd this Gentleman, just as he was to be forc'd away, to Inspire his Lady the means to save him. 'Tis certain, that She is an extraordinary Person, and never Woman so much oblig'd an Husband, nor did him so many essential good Offices.

My Lord, I have but little to say; I desire to know whether the Court doth intend to try me by a Jury.

They do not.

Is the Court Judge and Jury?

Yes: if you will deal Ingenuously with the Court, I think that is best.

Seeing I am here over-ruled, though not convinced in my Reason, I shall demurre to the Jurisdiction of the Court, and plead, not Guilty. I desire a Copy of my En­dictment, and time to plead.

It was never done: for any In­dictment of High-Treason was never delivered to any Prisoner.

I urge my Lord Cooke for Au­thority, [Page 20] for a Copy of my Indictment.

John Mordaunt Esquire, you stand here Charged of High-Treason: to this Charge you plead, not Guilty. Is this your Plea?

Yes. I beg, my Lord, that my Ignorance of the Laws may not prejudice me, not understanding or knowing any thing of the Law: and this granted me, I shall address to my Justification.

Do you stand to your Plea, not Guilty?

Why, yes.

My Lord, I shall open the Impeachment. The Attourney General hath exhibited a Charge of High-Treason against John Mordaunt Esquire, viz. That he, the said John Mordaunt, intending to Imbroil this Na­tion in new and intestine Warres, the 30 ^th of April last past, and at divers times since the tenth of October 1656, together with Henry Bi­shop, Hartgil Baron, &c. at the Parish of Clement Danes in the County of Middlesex, did traito­rously, advisedly and maliciously plot, con­trive and endeavour, First, to stirre and raise force, and levy Warre against his Highness the Lord Protector, and the Commonwealth, [Page 21] to subvert and alter the Government of the same: Secondly, that he did traitorously, ad­visedly and maliciously Declare, Publish and Promote CHARLES STUART to be King of England, Scotland, and Ireland: Thirdly, that he did traitorously, advisedly and maliciously hold Intelligence and Correspondence with Charles Stuart: and that he did declare these Treasons by overt Act, that is to say, by con­ferring with John Stapely and Henry Mallory how to effect the same; and did deliver several Commissions from Charles Stuart to several Persons, and this contrary to the Statute. To this Charge of High-Treason the Prisoner pleads not Guilty. We are ready, my Lord, to call our Witnesses to prove him Guilty of these several Crimes, and with leave of the Court we shall call our Witnesses.

I wish M ^r Mordaunt had done this before, and made himself capable of more Favour.

M ^r Mordaunt then desired to have pen, ink and paper: which was granted him.

John Stapely and Anthony Stapely were then called.

[Page 22] John Stapely sworn.

We produce this Gen­tleman (I suppose he is well known to the Pri­soner) to prove the Charge. I desire he may declare what he knows.

What do you know concerning the discourses of M ^r Mordaunt with you, touching the bringing in of Charles Stuart?

I have been in M ^r Mordaunt's company several times, and what I can say will not be much. M ^r Mordaunt did once tell me there was such a Design as the bringing in of the King, and he did ask me if I did not know of such a thing. I told him no. He was plea­sed to tell me somewhat of it. I asked him if he was ingaged in it. He told me he was not.

What did he tell you concerning his being Intrusted by the King therein?

Here the Witness spake so low the Prisoner heard him not, but desir'd M ^r Stapely to turn his face to him, that the sound of his words might be heard.

He told me the King wrote to him to speak to his friends that they would [Page 23] be ready to Assist him when he should come into England with Force, which he told me was with 7000 men: this was the chief of all.

Did he not say that he had Commissions from the King?

He did not tell me so, but I have heard him say others had had Commis­sions; two other Gentlemen in Surrey.

Did he not encourage you thereunto? what Arguments did he use?

He spoke to me of it several times.

After what manner?

Only in commendation of the thing. I heard him say that if there were a ne­cessity, Surrey folks would come into Sussex to assist them.

Who was present at any of these discourses?

There was none but my self and him.

At what Place, and at what Time?

Near his own House at several times. I have told you the main of the Dis­courses.

M ^r Stapely, about what Time was this?

[Page 24]

Above a year since.

M ^r Stapely, at what Place was the Encouragement made?

I do not know what he means by Encouragement; he only told me of it.

I desire to know when I told you that I had received a Letter to encourage my friends from beyond Sea, and who was by.

There was no body by.

About what time did he tell you of that Letter?

About half a year since.

Who was by?

No body, my Lord.

Did he tell you it was the King that wrote to him, and therefore it was just to assist him?

I think I heard him say so, I can­not take my Oath of it.

Did he tell you what considerable persons were concern'd?

I have heard him speak of some persons that were engag'd in this Design; Sir Francis Vincent, and one Brown, and (I think) Sir William Waller.

When?

[Page 25]

Above a year since, it was since the Parliament.

My Lord, we may all see the strange effects of fear; these worthy Gentle­men mentioned by M ^r Stapely have clear'd themselves fully to the Protector: And what in his Examination at White-Hall he was forc'd to say, I blame him not for; but to mention them here, unless it were to their honours, I know not at what it tends, and need not justi­fie them any further.

Anthony Stapely sworn.

What discourse have you had with M ^r Mordaunt touching Charles Stuart?

We were about a quarter of a year ago at the Half-moon Tavern over against the New Exchange; at that time there was no discourse about the business at all. After that he was speaking to me about the Times, los­ses of Privileges, great Taxations, &c. where­in I agreed with him, and wish'd they might be better. I asked him if there was any way to help it. He said, Yea, and said that Charles Stuart was intending for England, and that would be a fair opportunity to redress all Grievan­ces. [Page 26] At Berkshire-House there he was pleased to enquire concerning the affairs of Sussex, and in what preparation they were, in case the King of Scots should land. I told him, I did not know, I had not been in the Country lately; I did believe that there would not be an ap­pearance suitable to his expectation. He told me something concerning Surrey, that there was a considerable strength there ready to as­sist us in Sussex, and joyn with us when any such thing should happen; he did say something about delivering out four Commissions, three for Horse, and one for Foot, to whom I know not; I dare not swear it, but it is to the best of my remembrance.

What discourse past between you at the Half-moon Tavern about March last?

It was the day that the Cava­lier party were to depart the City: there was Captain Mallory, my self, and this Gentleman M ^r Mordaunt, and then he spoke again concer­ning Sussex; that the King of Scots coming was suddainly expected; and desired to know in what readiness we were. I told him I could not tell, but I did believe that things would be in as great a forwardness as the times would [Page 27] permit. It was agreed upon, that some of our Country should meet M ^r Mordaunt at Crawly in Surrey upon the Tuesday following.

What was the end of your meeting?

It was to consider further how things might be carried on as to the bu­siness of Surrey and Sussex; there was an expe­ctation of the landing of Charles Stuart, and he did say that he heard Charles Stuart was in a readiness. M ^r Mallory, my self▪ and M ^r Mor­daunt were to meet, further to debate of things: I understood it was for the business of the King, but it was not positively so expressed. He asked me how things went on in Sussex. I told him I could not satisfie him. Therefore we told him, there should some of our Coun­trymen meet him at Crawly to give him an ac­count. He said there was a considerable Force; but I never heard him speak of any number of Horse or Foot in Surrey.

M ^r Stapely, I desire to know when I spoke to you of this.

My Lord, it was, I cannot tell the daies, but it was suddenly after the break­ing up of the Parliament▪ all the discourses were since the breaking up of the last Parli­ament.

[Page 28]

I desire to know where I spoke this, and who was by.

As I take it, the first discoure was at Long-Acre, and no body by.

I desire to know the time when I met him at the Half-moon Tavern.

It was the day set for the de­parting of the Cavalier Party out of Town.

I desire to know who was by.

Captain Mallory.

I desire to know whether I did meet at the place appointed.

My Brother and M. Mallory did not meet him, because my Brother was sent for to White-Hall.

I desire to know the Witnesses to all he saies.

It was all private, only once at the Half-moon Tavern with Captain Mallory.

My Lord, there was mention made of one Captain Mallory, whom we did intend to have as a Witness; he was committed upon this Design, being privy to it: it hath so fallen out, that he is lately esca­ped: I desire that M ^r Serjeant at Armes, Major Ellison, Thomas Tatlock, and William Cappat may be sworn.

[Page 29] All four sworn▪

Here the Prisoner sate down during their Examinations.

We do produce these Witnesses for this end: Captain Mallory was a Prisoner, and we did intend to make use of him here: but it hath so fallen out, that his guilty Conscience hath made him to fly. Ask these concerning his being in Custody, and endeavour of Escape.

My Lord, Captain Mallory was in Custody, and a Guard constantly set upon him, which Guard was relieved every twenty four hours. The manner of his Escape I only had by relation. We have used all en­deavours to have found him since he was escaped: We did that night send presently to Southwark to Innes there, and laid wait for him, and sent to Captain Mallory's Brother-in-law, where he formerly lay, examined him, but all in vain; where we had any intimation of any relation of his▪ we did send to search for him.

My Lord, upon the 28 ^th of May last, since the Escape of Captain Mallory I receiv'd a Warrant from the Councel, com­manding [Page 30] me to use all diligence for appre­hending of Captain Mallory. I have accor­dingly endeavoured it: Not knowing his Re­lations, I did not speak to them: I have used all means I could, but cannot find him.

My Lord, Captain Mal­lory went away about nine a clock at night: he went away in a black Suit and Cloak.

All that I know, my Lord, is, that Captain Mallory was a Prisoner, and changed his habit and hair, went away, and left money in the window to pay for his Lodging.

My Lord, the intention is, to shew you Captain Mallory was a Prisoner, is escaped, and what means have been used for his apprehension. Officer, pray swear M ^r Scobel.

M ^r Scobel sworn.

My Lord, Captain Mallory gave Information upon Oath before my Lord Goff and my self, upon the one and twentieth of April last, and upon his Oath did inform us, that about the beginning of March last Cap­tain Anthony Stapely and himself being at the Half-moon Tavern, John Mordaunt Esquire being [Page 31] upon the Exchange, was sent for to M ^r Stapely, and that he came: thereupon M ^r Stapely presen­ted Captain Mallory to M ^r Mordaunt, as a Gen­tleman that was interessed in Charles Stuart's Design, together with M ^r Stapely, that was his Brother; he said by that Brother he meant John Stapely Esquire. Thereupon he informed us, that M ^r Mordaunt did demand of Captain Mallory, in what readiness the Horse that were to be raised in Sussex were. M ^r Mallory infor­med us, that to that he returned an Answer, that they were not in so good a posture as he did believe M ^r John Stapely had represented to M ^r Mordaunt, but doubted that it would fall much short. Mallory told us that at that An­swer M ^r Mordaunt did much wonder, because he said Charles Stuart the King was in a very good posture, and that there was a daily ex­pectation of his coming over with his For­ces: And that thereupon M ^r Mordaunt did de­sire, that there might be a meeting in some convenient place between him and M ^r Stapely, and such others of that County of Sussex as should be thought fit. My Lord, it was, he said, to this End, that there they might con­ferre together, and understand how the af­fairs stood in reference to the Counties of [Page 32] Sussex and Surrey, that they might the better assist each other in the intended Insurrection. He did inform us, my Lord, that accordingly it was agreed there should be a meeting up­on the Tuesday following at Crawly, and in or­der thereunto he said that M ^r Anthony Stapely and himself did speak with M ^r John Stapely, to have a meeting accordingly at Crawly upon the Tuesday following: and they did agree to it, he said, that they should meet with M ^r Mordaunt at Crawly; but in the mean time M ^r John Stapely being sent for to White-Hall, that meeting was prevented. My Lord, this is all.

M ^r Mordaunt, would you ask M ^r Sco­bel any Questions?

Here the Prisoner rose up.

I suppose M ^r Mordaunt's asking me any Questions will not advantage him, or that my Testimony is disadvantagious to him; for all that I have spoke was the same that Mallory declared to me and my Lord Goff as Justices of the Peace.

My Lord, it will not concern me to ask any Question, no testimony being valid against me but what is Vivâ voce; to this, [Page 33] I neither know this Gentleman nor M ^r Mal­lory.

M ^r Anthony Stapely, were you with Captain Mallory and M ^r Mordaunt at Dinner together at the Half-moon?

My Lord, Captain Mallory was once there, but not at Dinner.

The Attourney General hath exhibited a Charge of High-Treason against the Prisoner at the Barre, that was to raise Force against the Government, and publish Charles Stuart to be King, and hold Correspon­dence with him.

Here the Prisoner made a little pause, and looked on his Papers, which he had just written on the Bar. His Defence was in these words:

My Lord, you have heard the Witnesses. The first Gentleman, M ^r John Stape­ly, was pleased to urge against me that I said the King—

—writ to me to engage my friends; but said not that he saw the Letter, or that any one was by; he did not name the Time or Place, but at random, but that I said so. Being asked about Commissions, he denies that I told [Page 34] him I either had Commissions, or delivered any. He saies I gave him Encouragement to this Engagement, or what he calls it I know not: but he doth not say what kind of En­couragement it was; he doth not say I pro­mised him Money or Preferment. He saies, he heard I engaged two other Gentlemen, Sir Francis Vincent and Col. Brown; but saies not that I told him so: and I can make it appear the Information he speaks of was false. He was asked if any were by at these discourses: he said none was by. What can this be, but a bare single Evidence on news, or surmise? He saies it was a year or more since. He saies I was intrusted by Charles Stuart about the later end of the last Winter. This is the summe of his Accusation.

I shall now, my Lord, compare his Brothers with his, and how farre they are agreeing to­gether let all the World judge, who will find they are no where of a Piece but in their Malice.

For M ^r Anthony Stapely, he urges against me, that at his Lodging I discours'd with him, that the way to help us was to bring in Charles Stuart: which if true, might prove trouble­some to me. And for Surrey, I have not been in [Page 35] it this year and half. He saies only, to the best of his remembrance▪ I said I had three or four Commissions: but he saies, it is to the best of his remembrance▪ but doth not say he saw the Commissions, and will not swear whether they were for Horse or Foot. He saies, at the Half-moon I spoke with him and Mallory; of whom I have already spoke. He saies I did not name the number of any Forces that were ready, and that, I said, (not should, but) would come into Sussex, if those Forces were oppressed. He saies we agreed to meet the Tuesday following at Crawly with M ^r Mallory, but saies that I was not there. My Lord, I do not know that place. He saies it is in our Coun­try▪ but it is not. He sales it was his Bro­ther John Stapely was to meet me: He saies it was not about any positive thing I was to meet there, but in General, to carry on things about the intended Design. He saies not that I said it, but that I said I heard that Charles Stuart would land with a considerable Party. He saies it was to debate things in Ge­neral. He said, it was not said about the King, that He was not mentioned, but he sup­posed it to be so: He saies positively, I never spake of any number of Horse and Foot, or [Page 36] any thing of that kinde. I asked him when I first spoke of this; he returned no time, would not say any positive time, but said all was since the breaking up of the Parlia­ment: I asked him who was by; he said, No body, all was private.

This, my Lord, can amount to no more then one single Testimony: and in Rolph's Case there was a single Witness to each Act; yet Serjeant Mainard being of Counsel, he satisfied the Court, one Witness could not condemn him, though it were for the grea­test Treason imaginable, Attempts on the King's Person: and yet this Rolph had Coun­sel assigned him, and I am refus'd it.

He saies, the time when we were at the Half-moon was near the time when those that served the late King were banished. He saies positively, I did not meet at the place ap­pointed, and he gives the reason, (a very insufficient one) because his Brother was sent for up: that could not hinder me. He waves his own meeting: he saies, all was private.

How little there is in this Evidence to bring me to such a Tribunal, I leave it to the world, who I am confident will be satisfied, base Fear [Page 37] and Malice in them, and not any Crime of mine, brought me hither: my Innocence makes me confident, and I referre my self to the Court.

The Charge is for Levying Warre to alter the Government, and imbroil us again in a new Warre, to which he pleads not Guilty. For the proof of this we have offered to you Witnesses: I shall take them in order as the Gentleman did at the Barre.

John Stapely said, M ^r Mordaunt said the King writ to him, to encourage and engage his friends to assist him at his Coming; but saies not the Time when this was done. He saies he did not see the Letter; but saies M ^r Mor­daunt told him he had a Letter. By all the discourses (because that he saies there was no Time) it agrees that they were since the tenth of October 1656. And so it is clear within the Act, and within your Jurisdiction.

Now see how it was carried on. After he had told him this, how doth he encourage him, in telling him the Justice of the Cause, the Persons engaged therein, and of Sir Wil­liam Waller? Then, my Lord, he told him, that if the Forces of Sussex were not sufficient, the Surrey Forces would come to assist them, for [Page 38] the coming in of Charles Stuart. This both John and Anthony Stapely say: so that we con­ceive, under favour, that both John Stapely and Anthony Stapely do agree in most of the Cir­cumstances.

Anthony Stapely saies that M ^r Mordaunt came to him, tells him there were great Grievan­ces. I, saies he, but how shall it be remedied? Tells him that Charles Stuart intended to come to England with a great Force, which would re­dress them. He asked him how the business was in Sussex. He said, it was not in so good a posture as he expected. He said that Surrey Forces should joyn with Sussex.

My Lord, I leave it nakedly to you; if we finde this to be true, we submit it to you: and M ^r Attourney General will pray what his place re­quires.

You have heard the business: this Gentleman hath interposed himself where he was not called: it is a hap­piness this business was discovered: upon this evidence I leave it to your Justice. Judge as you please: I shall say no more.

My Lord, I shall speak to you very short, it is this; That to all this, though it be urged against me by the ablest men of [Page 39] the Law, yet there is but one Witness in a manner, and that differing in many Circum­stances—

—My Lord, I am forc'd to leave it to you, and must remit my Life into your hands, expecting you will remember of what Nation I am, an English-man: I must leave it to you, and God's will be done.

Withdraw the Prisoner.

The third of June the Prisoner being brought to receive Sentence, the President spake as fol­loweth:

I have now a word to speak to you, M ^r Mordaunt: God hath appeared in Ju­stice, and God doth appear in Mercy. As the Lord is Just to them, so he is exceeding Merciful to you: and I may say to you, that God appears to you at this time as he speaks to Sinners in Jesus Christ: for, Sir, he doth clear Sinners in Jesus Christ even when they are Guilty; and so God cleareth you. I will not say you are Guilty, but ask your own Conscience whether you are or no. Sir, bless God as long as you live, and bless my Lord Protector, by whose Authority you are cleared. [Page 40] Sir, I speak no more, but beseech you to speak to God.

To this the Prisoner made no Answer.

The Sentence being passed against Sir Henry Slingsby and Doctor Hewet, the Judge­ment of the Court was declared concerning Ma­ster Mordaunt, which in short was,

That upon consideration of the whole mat­ter, in reference to the Charge against him, and his Plea thereunto, they did adjudge him not Guilty.

The Number of his Judges were thirty nine, whereof nineteen condemn'd him, and nineteen acquitted him; the President's voice turn'd the Scale. The Souldiers were whol­ly against him, except one. He was the first that ever was acquitted by a High Court of Justice.

After Sentence pronounced, the Prisoners were guarded back to the Court of Requests; from thence S ^r Henry Slingsby and Doctor Hewet were return'd to the Tower: And M ^r Mordaunt left without Guard in the Chamber, as he [Page 41] was taking leave of his Keeper, and appoin­ting him to come to him about some Expen­ces in the Tower, the Lieutenant sent to him, to let him know that he was to goe back to the Tower with him. M ^r Mordaunt refus'd it, and insisted upon his publick Acquitment and clearing, saying, he was tried in vain, if after all his persecution and being found inno­cent, he was still kept Prisoner. He demanded on what account he was returned back, and whether the Court had not Power to release him. To this he was answer'd, he was confin'd by a double Power the Protector had, and was only cleared as he was Protector; but as General he was still his Prisoner: and until he had a Warrant from the Protector directed to him for his Release, he would not free him; he acting as an Officer of the Protector's, not as an Offi­cer of the High Court. Notwithstanding all M ^r Mordaunt urg'd, he took him back in his Coach. The tenth of June he was not re­leased. Being released, he unexpectedly came into Berkshire-House as they were at Supper, & was received with all the affection imaginable by the Countess of Peterburgh his Mother, who was infinitely concern'd for him during all his Persecutions, and assisted him in making all [Page 42] the Friends she could. All his Relations there were joy'd to see him safe, whom they had so often lamented as lost.

The Lieutenant, after he was freed, con­fess'd never any man was us'd so ill; but it was not long of him, but them above, and a French Servant M ^r Mordaunt had, who would have be­tray'd him, and confess'd several Instru­ments and means were used and conceal'd in order to an Escape. But after a strict search nothing was found, & the Villaine imprison'd for an Impostor; though what he told was precisely true.

He was twice sent for out of the Tower to White-Hall, & was upon Examination till Night, and the subtilest waies used to bring him to Confession: But resolv'd to know nothing might hurt a third Person, he vertuously stood the shock of Cromwell's fury, and left him, though enrag'd, in admiration of his Temper and Constancy. And Colonel Goffe, to whom Cromwell committed the last part of his Exami­nation, gave him the Character of a Confident Resolv'd Cavalier.