BEHEADED Dr. John Hewytts Ghost Pleading, yea crying for EXEMPLARIE JUSTICE AGAINST The Arbitrarie, Un-exampled Injustice of his late Judges and Executioners in the New High-Commission, or Court of Justice, sitting in WEST MINSTER-HALL.

Conteining his Legal Plea, Demurrer, and Exceptions to their illegal Jurisdiction, Proceedings, and bloody Sentence against him; drawn up by Counsel, and left behinde him ready ingrossed; the Substance whereof he pleaded before them by word of mouth, and would have tendred them in writing in due form of Law, had he not discerned their peremptory Resolution to reject and over-rule, before they heard them read,

Gen. 3. 10.

The voyce of thy brothers BLOUD CRYETH UNTO ME from the ground.

Exod. 21. 14.

If a man come presumptuously upon his neighbour to slay him with guile, thou shalt take him from mine Altar, that he may die.

Ps, 94. 20, 21, 23.

Shall the throne of Iniquity have fellowship with thee, which frameth mischief by a Law? They gather themselves to­gether against the soul of the righteous, and condemn the innocent bloud: But the Lord shall bring upon them their own iniquity, and shall cut them off in their own wickedness: yea, the Lord our God shall cut them off.

Prov. 28. 17.

A man that doth violence to the bloud of any person, shall flee to the pit, Let no man stay him.

LONDON Printed in the Year of our Lord, 1659.

The Plea and Demurrer of John Hewytt, Dr. of Divinity, to the Jurisdiction and Proceedings of the Commissioners in pursuance of an Act, for the security of the Lord Protectors Person, &c. and to the Sentence of Death pronounced against him by them.

THis Defendant saith, That he is by Birth a Freeman of England, and that it is the un­doubted antient inseparable Birthright, Privilege, and Inheritance of every English Freeman both by the Common Laws, Franchises, Great Charters, Statutes and Usages of this Land, ratified from Age to Age by the Votes, Resolutions, Decla­rations, Judgements of the High Court of Parliament, and other publike Courts of Justice, the Oathes of the Kings of England and their Justices, and by manie other solemn publick Confirmations, Protestations, Oathes, Vowes, and Covenants:Cooks 2 Instit. p. 45, to 57. Magna Charta of King John, H. 3. & E. 1. c. 29. 25 E. 1. c 1. 28 E. 1. c. 1. 5 E. 3 c. 9. 25 E. 3. n. 26 &c. 4. 28 E. 3. c. 3. 42 E. 3. c. 23. 2 H. 4. rot. Parl. n. 60 the Petition of Right, 3 Ca­roli. That no Freeman of Eng­land may or ought to be taken or imprisoned, or disseised, or disinherited of his Freehold, Liberties, or Free Customs; or to be outlawed, exiled, or any way destroyed, passed upon, dealt with, or forejudged of life or limb, or put to death, upon any accusation whatsoever, but by the lawfull Judgement of his Peers, or by the Law of the Land; and that he shall not be put to answer without Presentment before the Justices, or thing of Record, or by due process of the Law, or by writ original, ac­cording to the old Law of the Land;25 E. 3 c. 2. 26 H. 8. c. 13. 33 H 8. c. 20. 35 H. 8. c. 1. 1 Ed. 6. c. 12. 1, & 2 Phil. & Mar. c. 10, 11. 5 E 6. c. 11. 1 Eliz: c 6 5 Eliz. c. 11. 13 Eliz. c. 1. 14 Eliz. c. 1. 18 Eliz. c. 1. 27 Eliz. c. 2. 1 H. 4. c. 14. And that all trials hereafter to be had, awarded, or made for any Tre [...]son, shall be had and used only according to the due order & course of the Common Laws of this Realm, and not otherwise, upon In­quest and presentment by the Oaths of 12 good and lawfull men upon good and probable evidence and witness; And that [Page 2] 5 E. 1. c. 21. 2. Cooks 2 In­stit p. 526, 527 28 E. 3. rot. Parl. n. 7, 8, 9, 10, 11, 12, 13. 29 E 3. rot. Parl. n. 29, 30. E 3. co [...]am re­ge, rot. 92. Cooks 3 Instit p. 52. 42 E. 3. c. 1. 3. if any thing be done to the contrary of the Premises, it shall be void in Law, redressed, and holden for errour, and nought: And if any Statute be made to the contrary, that shall be holden for none. And moreover this Defendant saith, that in the Parliament of 2. R. 2. rot. Parl. n. 47. the Commons petitioned the King and Lords, that the Constable and Marshall of England (then encroaching upon this Priviledge of the Commons, by holding Pleas of Treason and Felony before them after the course of Martial Law) might from thenceforth surcease to hold Pleas of Treason and Felony before them, done within the Realme, and that the same may be determine, only before the Kings Justic [...]s, according to the Great Charter; which was then assented to: And that upon the like petitions of the Commons in the Parliaments of 1 H [...]. and 2. H. 4. rot. Parl. n. 89. it was assented to, and enacted by the King and Lords, that the Kings liege people Cooks 4. Instit. p. 124, 125. should not be put to answer before the Constable or Marshall in Courts of Chi­valry, for any thing done within the Realme, but that (as before in the times of his Progenitors) the same might be tried & determined only before his Justices in his Courts, as it ought to be according to the Common Law of the Realm, & in no other place or manner. Ʋpon which Con­siderations many of the Kings loyal Lords, Gentlemen and other subjects in the general insurrection of the Villains & other Re­bels against the King, in the 5th year of Richard the 2d. having inflicted divers punishments upon the said villains and traytors without due processe of the Law, and otherwise then the Lawes and usages of the Realme required; though they did it out of no malice prepensed, but out of meer loyalty to the King, and to appease and cease the present mischief, and out of ignorance of the said Lawes and usage, in which if they had been learned, yet at that time they ought not to have tarried the pro [...]ss of the Law in those punishments of their good dis­cretion; yet those punishments and executions of them in a summary way being contrary to, and not warranted by the Laws and usages of the Realme, they were enforced for their future indemnity against the King and his heires, and the [Page 3] heires, wives and friends of those they punished, to petition the King and Parliament, for a general pardon by act of Parlia­ment, to secure and indemnifie themselves; which was gran­ted them, in 5. R. 2. Parl. 1. ch. 5. else they might have been impeached and punished for the same, as well as King Richard the second himself; who in the Parlia­ment of 1 H. 4. rot. Parl. n. 44 (wherein he was enfor­ced to resigne his Crown, & then deposed for his mis­government) was amongst other Articles impeached of this in particular by that Parliament, for that against the great Charter (ch. 19.) and his Coronation Oath, be suffered many of his Li [...]ge people to be maliciously accused, apprehen­ded, imprisoned, and tried before the Constable and Marshall of England in their military Court, for words secretly spo­ken, or acts privately done, to the scandal of his Royal Person, where they were enforced to acquit themselves by duell; whence the destruction not only of the Nobles and Great Men, but likewise of all and every the persons of the Commons of the Realm might probably have ensued. And this Defendant further saith, that one Peter Burchet of the Temple in the 13th year of Queen Elizabeths Reign, having wil­fully stabbed that famous Sea-Captain John Hawkins, for not being of his opinion in Religion, (Bur­chet being perswaded in Conscience, that it was lawfull for him to kill every one who was not of his opinion) the Queen being much incensed against him for this horrid fact, commanded him to be forthwith tried and execu­ted for it by Martial Law: But her Judges and Councill informing her, that he could not be so tried by law, it being done not in an Army, but in time of peace, when her Courts of Law and Justice were open; thereupon she desisted from this way of Tryall; After which he was tried according to Law, for this and his murdering his keeper in the Tower, as Mr. Camden records in his Annals of Queen Elizabeth, p. 242. 243. And whereas in the Parliament of the 4th. of King James holden at Westminster, there was some kind of motion made; that to extirpate and reforme the inveterate evil customes, disorders, fewds, bloudsheds, thefts [Page 4] and spoiles wherewith the worst sort of Inhabitants near the borders and limits of both Realmes of England and Scot­land were infected and inured; that they might be tried by a summary Proceeding, by way of Martiall Law, or by the Lawes of the Kingdome into which they fled to purchase their impunity: This Parliament was so farre from approving thereof, that they specially ena­cted, in this case (even of these worst sort of men) 4 Iacob. ch. 1. That in regard of some difference and inequality in the Laws, Trials, and Proceedings in cases of life, be­tween the Justice of the Realm of England and that of the Realme of Scotland, it appearing to be most con­venient for the contentment and satisfaction of all his Majesties Subjects, to proceed with all possible se­verity against such offenders in their own country, ACCORDING TO THE LAWES OF THE SAME, WHEREUNTO THEY ARE BORNE AND INHERITABLE; and by and before the na­turall borne subjects of the same Realme; by whom their Murders, Felonies, Rapes, &c. should be in­quired of, heard and determined before his Majesties Justices of Assize, or Commissioners of Oyer and Terminer, or Goal delivery, by good and lawfull men of the 3. Counties therein specified, and none other. And that at all such Trials the Jurie then and there sworne, shall have in their power and election, accor­ding to their conscience and discretion upon their Oathes, to receive and admit only such sufficient good and lawfull witnesses upon their Oathes, either for or against the party arraigned, as shall not ap­pear to them, or the greater part of them to be unfit and unworthy to be witnesses in that cause, either in regard of their hatred and malice, or their favour and affection either to the party prosecuting or to the party arraigned, or of their former evil life and con­versation.’ Which common, equal, indifferent Justice allowed to the worst Malefactors, as their birthright and inheritance by this Parliament and Act, this De­fendant [Page 5] now onely craves, and hopes you cannot in Law or Justice deny him; nor proceed against him by way of Martial Law. And so much the rather, because since this Statute, King Charles in the 3d. year of his Reign, by the advice of his Counsell (to suppresse the Insolencies of Souldiers and Mariners then billeted in sundry parts of the Realm) having issued out Commissi­ons to sundry persons of quality, in time of peace, to execute Martiall Law upon those Soldiers and Mariners, and other dissolute persons (only) joyntng with them, for Murther, Robbery, Felony, Mutiny, and other outrages committed by them, by such summary course and order as is agreeable to Martiall Law, a [...] is used in Armies in time of Warre; to proceed to the triall and condemnation of such offenders, and then to cause them to be executed and put to death, according to the Law Martiall; By pretext whereof some of the said souldiers and subjects were put to death by some of the said Commissioners, when and where, if by the Lawes and Statutes of the Land they had deserved death, by the same Lawes and Statutes also they might, and by no other ought to have been Judged, (before the Kings Iustices) and executed. Upon Complaint of these Commissions, as illegal, in the Par­liament of 3. Caroli, they were, after a full debate by both Houses, voted to be against Law; And in the Petiti­on of Right it self, it was then prayed by the Lords and Commons, assented to by the late beheaded King himself, and enacted by this Law, That hereafter no Com­missions of like Nature may issue forth to any person or per­sons whatsoever, to be executed as aforesaid, lest by colour of them any of his Majesties Subjects be destroyed or put to death, contrarie to the Laws and Franchise of the Land: which the Lords and Commons then prayed, and the King gran­ted, confirmed by Act of Parliament, as their Right and Liberty according to the Lawes: which Act stands yet in its full force. Upon consideration of which late Excellent Law, the last long Parliament, in the cases of the Lord Connor Magwire and Mac-mohun, and the Court of Kings Bench wherein they were tried by their special [Page 6] order, in Michaelmas and Hilary Terms 20 Caroli, were so just, punctual and honorable, in confining them­selves to the rules of Law and Justice; that though these were principal Conspirators, and Actors in the late most horrid, barbarous, bloody Treason, Rebellion and Massacre in Ireland, and taken in its prosecution; yet they were so far from trying them by Marshal Law in a Council of Warre, or, High Court of Justice, even in a time of open warre both in England and Ireland, that they assigned the said Maguire Counsil, to argue against the very Jurisdiction of the Kings Bench it self; whether he, being a Peer of Ireland, could in point of Law or justice by the Statute of 35 H 8. ch. 2. [...] any other Act, be [...]uted of his Trial by his Peers, and tried by a Jury of good and lawfull men of the County of Middlesex, for a Treason com­mitted in Ireland, being sent a Prisoner from thence against his will? Which was thereSee Mr. Prynnes Ar­gument thereof. publickly argued at the Bar by Counsel pro & contra; and then by the Judges, and overruled at last against him, before he was put to plead guilty or not guilty to his Indictment: after which they both were admitted to take both their peremptory and legal challenges to the Juries returned; (32 H. 6. f 26. 14 H. 7. f 19. Brook Chal­lenge, 86, 211, 217. Stam­fords Pleas l. 3. c. 7 Cooks 3 Instit. p. 27. according to Law, admitting such challenges even in Cases of high Treason;) and all just Exceptions to the Witnesses produced; and had a most fair and free triall; being found guilty by the Jury, before any Judgment passed a­gainst them, Which Justice he humbly craves in his Case, of less hainousness and importance than theirs, being a native English free-man, and they onely Irish Rebells; because this his inherent Birthright and Liberty can 1 E 6. c. 12. 1 & 2 Phil. & Mar. c. 10, 11. Cooks 3 In­stit. c. 1, 2. neither be forfeited by him for any real or pretended [...] or offence whatsoever, nor yet be denied or deferred to him (after all the premised Laws, Statutes, Charters, Judgments, Resolutions, Presidents) without the highest injustice; And he further saith, that to proceed against, trie, condemn, execute him in this high-Court without a legal Indictment, Presentment, and Trial by the Oaths of twelve good and lawfull men according to the due order [Page 7] and course of the Common Laws of this Realm (and that in Westminster Hall it self, the place of Law & pub­lick Justice, in time of Peace, when and where all other Courts of Justice are open) or in any other form by way of Martial Law, or otherwise than a just Jurie of his Equals, is not only illegal, erroneous, & against all Rules of Justice (the Commissioners themselves being both his grand and pettie Jurie, and his Judges likewise; if not parties interessed, to whom he can take no peremptory nor legal challenges, which theCook's 3 In­stit. f. 27. Brook Chal­lenge 217. Law allows him if tried by a Ju­ry, in cases of high Treasonat this day;) but also wilfull and malicious Murder by the Laws of England, being against Magna Charta, c. 29. and done by such power and strength as he this Defendant cannot defend himself against, as is resolved in Sir Edward Cook's 3 Instit. p. 52. & 224. (printed by spe­cial Order of the House of Commons, dated 12 May, 1641.) and long before in Andrew Horn his Mirrour of Justices, c. 5, p. 296, 297. who records, that our noble King Alfred, caused no less than 44. of his Justices to be hanged in one year as Murderers, for condemning and executing some of his people without a legal Indictment and Trial by a sworn Jury; and others of them for offences not capital by the known Laws of the Land, and without clear and pregnant Evidence. And this Defendant likewise saith, that the Commons themselves sitting at Westminster, after the late Kings Exe­cution, in their printed Declaration of 17 Martii, 1648. (expressing the grounds of their proceedings against the said King, and for settling the present Government in way of a Free State, to which many in present power and [...]tting here were assenting and gave their Votes) did thereby faith­fully promise and engage to the whole English Nation; That the good old Laws and Customes of England, The Bad­ges of our Freedom, (the benefit whereof our Ancestors en­joyed long before the Conquest and spent much of their bloud to have confirmed by the great Charters of their Liberti [...]) which have continued in all former Changes, and being duly execu­ted are the most just, free, and equal of any other Laws in the world; shall be duly continued and maintained; the Liberty, [Page 8] Property and peace of the Subject being so fully preserved by them; adding, that ‘if these Laws should be taken away, all industrie must cease, all miserie, bloud and confusion would follow; and greater calamities, if possible, than fell upon us by the late Kings mis-go­vernment would certainly involve all persons, under which they must inevitably perish.’ And moreover, the General Council of the Officers and Army themselves (whereunto most Officers and Souldiers in present power and some Commissioners here sitting were par­ties) in the Declaration of their Engagements, Remon­strances, Representations, Proposals, Desires, and Re­solutions for settling the Parliament in their just Pri­vileges, and the Subjects in their Liberties and Free­doms (printed by their own Orders and reprinted all together by Order of the Lords in Parliament, 27 Se­ptember 1647) pag. 11, 36, 37, 38, 39. (especially in their Declaration and Representation tendered to the Parlia­ment concerning the just and fundamental Rights and Liberties of the Kingdom, 14 May 1647) do profess and declare. ‘That they were not a meer mercinarie Armie, hired to serve any arbitrarie power of State, but called forth and conjured by several Declarations of Parliament, to the defence of their own and the peoples just Rights and Liberties, and that they took up Arms in Judgment and Conscience to those Ends, and have so continued them, and are resolved, accord­ing to the Parliaments just desires in their Declarati­ons, and such principles as they have received from their frequent informations, and their own common sense concerning those fundamental Rights and Li­berties, to assert and vindicate the same against all ar­bitrarie power, violence and oppression, and against all particular parties and interests whatsoever; that so all the free-born people of this Nation may sit down in quiet under the glorious administration of justice and righteousness, and in full possession of those fundamental Rights and Liberties; without [Page 9] which we can have little hopes (as to humane consi­derations) to enjoy any comfort of life, or so much as life it self, but at the pleasure of some men Ruling according to will and power. That they desire the establishment of such good Laws, as may duly and readily render to every man their just Rights and Liberties. And more particularly, in their Proposals to the Commissioners of Parliament in order to the clearing and securing of the Rights and Liberties of the Kingdom, August 1. 1647. Sect. 10. p. 114. they proposed, That the Rights and Liberties of the Commons of England, May be cleared and vindi­cated from any other Iudgment, Sentence, or Pro­ceeding against them other than by their Equals, or according to the Law of the Land. And this De­fendant finally saith, that by the Instrument of Govern­ment it self 16 December 1653. Artic. 6. and the Oath therein prescribed to, and accordingly taken by his Highness, Oliver Cromwell Lord Protector, he is limited and sworn; ‘not to alter, suspend, abrogate or repeal the Laws, and to govern these Nations according to the Laws, Statutes and Customes; causing Justice and Law to be equally administred: whereunto he is like­wise obliged and sworn again, by his Oath prescribed in the late printed humble Petition and Advice. Neither doth that pretended Act, by which you here sit as Com­missioners to trie this Defendant (made by no legiti­mate, nor free Parliament of England, and that when near one hundred and fiftie Members thereof were causlesly and forcibly secluded) authorize you (as he humbly con­ceiveth) to proceed against him for any Crime therein specified, to Conviction or final Sentence, but onely as in Cases of high Treason, and misprision of Treason, and ac­cording to Justice; and that you cannot do but onely by proceeding against him by a lawfull Indictment and Trial by a Grand and Pettie Jurie, according to the great Charter, Laws, and Statutes of the Land, and the late Petition of Right, which this new Act cannot [Page 10] repeal or null. All which this Defendant is readie to averr, justifie, and make good, when and where this high Commission Court, or his Highness the Lord Protector shall appoint: which being a meer matter of Law, wherein both the liberties and lives of all the Free born people of England are so universally, highly, and equally con­cerned, as well as the libertie and life of this Defendant, proper only to be debated before, and resolved by the Judges of the Law, or the high Court of Parliament; This Defendant thereupon humbly praieth, That it may be referred to, openly argued by his learned Counsel, before all the Judges, or a Parliament, & by them determined: and in the mean time humbly demandeth the Judgement of this High Commission; Whether they may, can, or ought in point of Law and Justice, to proceed against, con­demn, or execute this Defendant, upon anie illegal ac­cusation or Impeachment whatsoever, here exhibited or read against him, without a legal Indictment, Present­ment and Trial by a Jurie of his Equals? Or can take anie further connusance of the Charge against him, for the premised Authorities & Reasons; which he in all humilitie referreth to, and imploreth you to take into your saddest considerations, and that in the Name and dreadfull presence of the Omniscient, Omnipotent, SoveraignGen. 18. 25 Judge of all the Earth, 2 Cor. 25. [...]0. before whose glo­rious Tribunal you must all ere long appear, (stript of all Earthlie Honors, Pomp, Guards, and Power,) to give a strict acount of all your Actions, whether good or evil, and of your proceedings in this verie Cause; when this his Plea and Demurrer will rise up in judgement against, and condemn you, in case you willfully prejudge, mis­judge, or reject it now, without due and full examinati­on according to Law, Justice, Conscience: And if the Consideration of this terrible day of account and just retribution before Christs own Tribunal, shall not prevail with you to admit of this his Legal Plea and Demurrer, (as being after your deaths, perhaps manie years yet to come, and no waies endangering the loss [Page 11] of your Lives, Lands, Honors or Estates in this present world,) He shall then humbly intreat you for your own future indemnitie (he hopes, without offence) seriously to consider; That in the Parliament of 11 R. 2. c. 1. 5. 21 R. 2. c. 11, 12. Tresylian chief Justice of the Kings Bench, Belknappe Chief Justice of the Com­mon Pleas, John Care, Iohn Holt, Roger Fulthorpe, Willi­am de Burgh Judges, and Iohn Locton the Kings Serjeant, were all impeached of high Treason, condemned, and some of them executed as Traytors and Enemies to the King & Realm, the rest perpetually banished, their Lands and Estates confisca­ted to the King, and all access of their wives, children or others to them during their exile, prohibited by Judgement & Act of Parliament, only for delivering their opinions (through me­naces and fear of death at Nottingham Castle) under their hands and Seals, against the Law of the Land; That the Lords and Commons who procured the Commission in the Par­liament of 10 R. 2. for the better Government of the Realm, and moved the King to consent thereto, deserved to be puni­shed as Traytors, by capital pain of death: That so by co­lour of these their opinions, Robert de Veer Duke of Ireland, Nicholas Brambre, Knight, and others of the Kings ill Counsellers, might take occasion to destroy and take a­way the lives of the Lords who procured and executed that Commission, and others of the Kings people, by undue and illegal Indictments and proceedings, without any lawfull Trial by their Peers, as Traitors to the King. And the said Sir Henry de Knyghton de Event. Angliae l. 5. p. 2718, 2726, 2727, 27, 28. Nicholas Brambre for enforcing the Judges, with others of the Kings ill Counsellors, to deliver their opinions against Law, and for his beheading, executing 22 Prisoners of New­gate, (impeached and indicted of felony, or suspition of felony) at Foul- [...]oke in Kent by regal and tyrannical power incroa­ched by him, without warrant, or due processe of the Law, a­against the Great Charter and Ʋsage of the Realm of Engl. was in the same Parl. condemned for high Treason, & beheaded at Tower-hill on the same block, with the same Axe he had prepared to cut off the heads of others he intended there to execute as his Enemies. And that in the last Parliament [Page 12] of King Charles, theTheir Im­peachments are entred in the Iournals of the Lords and Commons House. two chief Justices, Brampston, and Finch, the chief Baron Davenport, and all the rest of the Judges and Barons, except two, were by the whole House of Commons, and some of the Commissioners here sitting, and Counsel pleading against this Defen­dant, impeached of high Treason, dis-Judged, and put to fines and ransoms, for that they had trayterously endeavoured to subvert the fundamental Laws and Government of the Realm of England, and instead thereof to introduce an arbitrary and tyrannical Government against Law; which they had declared by trayterous words, opinions and judgements in the case of Ship-money, against Mr. John Hampden; Which judge­ment and opinions concerned only the propertie of the Subjects goods, not the hazard of their lives, inhe­ritances and forfeiture of their estates, as your present proceedings doe, being of a more high and dangerous consequence; In which Parliament, by the like Im­peachment and prosecution;See Canter­burie & Straf­fords printed Trials. William Laud Archbi­shop of Canterburie, and Thomas Earl of Strafford Lord Deputie of Ireland, were condemned and executed by Judgement of Parliament, and some here pre­sent, as ‘Traitors, guiltie of High Treason, for that they endeavoured traiterously to subvert the Fundamental laws, and established government of this Realm, and in stead thereof to bring in and set up an arbitrarie and tyrannical power, against Law. To prove which Charge, their arbitrarie pro­ceedings contrarie to the Laws and great Charters of England, both at the Counsil Table, in the High Commission, Star Chamber, and elsewhere were gi­ven in Evidence against them; and more particular­ly, the Earl of Strafford's proceeding against the Lord Mount-Norris in Ireland, by a Council of War in time of Peace, and condemning him to death therein without any legal Indictment and Trial by his Peers, against the great Charter & Laws of the Land, though he did not execute him thereupon:’ And whether your present proceedings of like nature against this [Page 13] Defendant, in case you reject or over-rule this his Plea and Demurrer, and condemn and execute him by pretext of an illegal Act (made by no free and lawfull Parlia­ment of England,) for offences not treasonable by the known Laws and Statutes of the Land, nor legally proved against him by any one Witness produced in Court before his face, without consulting the present Judges of the Land (who refuse to join or sit with you in this new illegal way of Trial) will not much more involve you in the Crime and guilt of the verie self same high Treasons, for which they were thus anciently and lately impeached, condemned, executed by Judgment of Parliament, and so expose you to the like capital cen­sures, forfeitures, confiscations of your real and perso­nal Estates, as they underwent, in future Parliaments, ‘by your endevoring to subvert all the premised funda­mental Laws and established legal proceedings in the Land, and to introduce and set up a meer arbitrarie and tyrannical power contrarie to Law, to the endan­gering not onely of the properties, but lives, liberties, and Inheritances of all the Noblemen, Gentlemen, Clergie-men, and other Freemen of England by such exorbitant, martial proceedings, after all these Sta­tutes, Judgments, with the late Remonstrances, Declara­tiions, Leagues, Covenants, and solemn Oaths of the Lord Protectour himself and others against them, yea after the many years Wars and heavie Taxes imposed on the Nation for the maintaining and inviolable pre­servation of these fundamental Laws, Liberties, and Rights against all arbitrarie Commissions and proceed­ings whatsoever; he humbly submits to your own im­partial Resolutions and consciences.’ And thereupon this Defendant praies his Dismission from any such further proceedings against him without a lawful Ju­ry and Trial by his Peers. And that you will be pleased after deliberate consideration of the premises to reverse and recall that arbitrary, unrighteous, bloudy Sentence of Death, you have newly passed against him, without [Page 14] anie lawfull Indictment, Presentment, Trial, Confes­sion or Conviction of Treason, which strikes at the Root of the Fundamental Laws, liberties, franchises of all English Free-men, and cuts off all their necks at one stroke, transcending all the arbitrarie, tyran­nical proceedings of Strafford, Canterbury, and the late King Charles (whom some of your selves have impea­ched, censured, condemned, decapitated as the very worst, and greatest of Tyrants) lest it become a most pernicious fatal president to posteritie, to others, or your own destruction, and render you as execrable to all succee­ding generations, as anie formerly guiltie of the like exorbitant proceedings.

Just and Legal Exceptions to the Cause and Manner of the Illegal Judgement given against Dr Iohn Hewytt; humbly tendred by him to the conside­ration of those Commissioners who denounced it.

THat it is specially enacted by the Statute of West­minster the 1. ch. 12. and accordingly resolved in Brook Pain 1, 2, 4, 5, 8, 9, 12, 13, 14, 15, 19, and the Year-Books therein abridged, by Stamfords Pleas of the Crown, l. 2. c. 60. Dyer, f. 205. a. 300. b. Cooks 2. Institutes, p. 177, 178, 179. and 3. Institutes, p. 217. That no man ought by Law to be condemned, or put to death in case of Treason or Felony, for standing mute, or refusing to plead, or put himself upon his Trial, or for challenging more [Page 15] than 36. of the Jurie peremptorily; but only in these ca­ses.

1. When and where the person accused and arraign­ed, is aWest. 1. c. 12. Stamford, l. 2. c. 60. f. 149. b. Cooks 2 In­stit. p. 177. 179 Notorious Traytor or Felon, and openly of evil name, and defamed thereof: But Dr. Hewytt is no such person

2. When and where the Treason or Felony for which he stands accused, is Cooks 2 Instit. p. 177. Stamford, f. 150. a. notorious, evident, certain, or at least very probable, and already found upon Oath against him by the Presentment, or Indictment of an honest lawfull Grand-Iury of his Equals, of the same County wherein he is arraign­ed, or confessed by himself: All which Circumstances and Evidences of Guilt were wanting in Doctor Hewytts case.

3. When and where the Judges, Stamford, l. 2. c. 60. f. 150 a. for the better satis­faction of their consciences, and discharge of their duties, doe (as they ought by Law,) first openly examin the Evi­dence and Witnesses, which prove the person arraigned guilty of the Fact of Treason or Felonie for which he stands indicted, before they proceed to give Iudgement against him for not plea­ding, or standing mute. Which was not done in this case, there being neither Witnesses nor Evidence pro­duced in open Court to prove him guiltie.

4. When and where there is a legal Indictment found against the partie arraigned, which being read openly to him in Court, the Traytor or Felon thereupon, doth eitherStamf. l. 2. c. 60 Cooks 2 Instit. p 177, 178. wilfully or maliciously stand mute, refusing to answer or plead thereunto, (which theStamford f. 150. b. 43 Ass. 30. Fitz. Co­rone, 225. 8 H. 4. 2. Cooks 2 Instit. p. 178. 21 E. 3. 18. Iury there impannelled to trie him, are by Law to enquire of, finde and return upon Oath:) Or, peremptorily challengeth above 35 of his Iury, without any legal cause or exceptions; Or else obstinately Cooks 2 In­stit. p. 178. refuseth to put himself upon a Legal Tryal by God and his Country, being a Iury of honest, lawfull men of the County then and there present, 11 H. 4. c. 11 Cooks 3 In­stit. p. 32, 33. retorned by the Sheriff alone, not Iustices or others, for to try him; to whom by Law he may take both his legal and peremptory Challenges) saying, That he will be tried, only by God and the Bench; or, by God and the Court, or Judge; or4 E, 4 11. 7 E. 4 29. Brook Pain 14. by God and the Virgin Mary, or Holy Church: there being [Page 16] no president extant in Records, or Law-books, of any Traytor or Felon hitherto condemned to die, for standing mute, or not pleading, onely for refusing to be tried by God and the honourable Bench, Judges, Court Alone, without any Indictment or Jurie; and for earnestly importuning the Court and his Judges, that he may be tried onely by God and his Coun­trey, and on an Indictment by a Jury of his E­quals according to Law, casting himself wholly upon such a Trial, after a lawfull Presentment and Indictment first found against him by a Jury. The onely reason rendered in and by the forecited Statute and Law-books of all Judg­ments hitherto given against any Traitour or Felon, for standing mute, and refusing to plead, being this, W. 1. c. 12. 3. Instit. p. 217. 2. Instit. p. 179. 8 E. 3. Itin. Nort. Fitz. Corone. 359. 14 H. 4. 7. Brook. Pain. 14, 15. Because he peremptorily refuseth to stand to and be tried by the Law of the Land, and a due and law­full Triall by a Jury of his Equals, according to the course of the Common Law, and the great Charter. But Dr. John Hewytt is now condemned to be executed as a Traitour by the High Court of Justice, con­trarie to all former Presidents, Statutes, Law-books, and the onely legal reason in former times of all Judgments rendered against any persons in such cases; even for his frequent, earnest, importunate demanding and peremptorie casting of himself, upon a due legal Trial by God and his Countrie, and an indifferent Jurie of his Equals, according to the common, Sta­tute Laws and great Charter of Englaud, after a legal Presentment and Indictment to be first found against him: and for refusing to waive this his legal Trial (to the publick prejudice of all other English Free­men) and cast himself whollie and solie upon a new kind of arbitrarie Trial, contrarie to Law, By God and the Bench, Court, and the Commissioners themselves, (who would be both his Grand and Petty Jury as well as Judges) without and before any legal Presentment, Indictment, or Jurie impannelled or re­turn'd to trie him.’ Therefore he humblie conceives [Page 17] this Judgment denounced against him upon this rea­son & ground alone, to be most erroneous, illegal, un­just, repugnant to all former Presidents, & to one this verie Week at the Sessions in the Old Baily by Judgment of some of his Judges at Westminster) and of very dan­gerous consequence. Whereupon he humbly praies the suspension & reversal thereof as unjust, and meerlie void in Law, by the Statutes of 25 E. 1. cap. 2. & 42 E. 3 c. 1. lest the Execution of him for a Traitour upon this Judgment and ground, should prove wilfull Murder, and a shedding of innocent bloud in the account both of God and man.

What therefore the Prophet Jeremiah alleged to the Princes of Judah, in a like case, when they resolved him at first to be worthy of death, without a legal hearing or trial, Jerem 26. 11, 14, 15. As for me, bebold, I am in your hands, to do unto me what seemeth good and meet unto you: But know ye for certain, that if ye put me to death, ye shall surely bring innocent bloud upon your selves, and upon this City, and upon the Inhabitants thereof: Whereupon the Princes and People, upon second and better advised thoughts altered their former bloudie Sentence, saying; This man is not worthy to die; for he hath spoken unto us in the Name of the Lord our God. And the hand of Ahikam was with Jeremiah, that they should not give him into the hand of the People to put him to death. Shall be my Allegation to those who have passed this unjust Sentence of Death against me; and if it pro­duce not the like effect for their reversal thereof, and my preservation from its violent bloudie Execution, as it did in this Prophets case; I shall then earnestly pray to God, that it may not draw down from Heaven that heavie Sentence of wrath upon them, nor that sad Judgment upon the whole Land of England which this Prophet denounced against Jehojakim, Jer. 20. 17, 18, 19. But thine eys amd thine heart are but for thy cove­tousness, and for to shed Innocent Bloud, and for op­pression and violence to do it. Therefore thus saith the Lord [Page 18] concerning Jehojakim; They shall not lament for him, say­ing, Ah my brother, or ah sister, ah Lord, or ah his glory: But he shall be buried with the burial of an Ass, drawn and cast forth beyond the gates of Jerusalem. And that which the Prophet Joel threatened to Egypt and Edom, Joel 3. 19. Egypt shall be a desolation, and Edom a desolate Wilderness, for their violence against the children of Judah, because they have shed Innocent Bloud in the Land. And that against all Rules of Law and Justice, in that they intitle, The High Court of Justice, which will not palliate, butEccles. 3 16, 17. Psal. 94. 20, 21, 23. aggravate the Injustice acted in it, and make it more detestable both to Man and God himself, who averrs this for an undoubted truth;

Gen. 9. 5, 6. Surely your bloud of your lives, will I require; at the hand of everie Beast will I require it, and at the hand of everie mans brother will I require the life of man. Who so sheddeth Mans Bloud, by Man shall his Bloud be shed; for in the Image of God made he Man.

FINIS.

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