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 behind him ready engrossed; the
Substance
whereof he
pleaded
before them by
word of mouth,
and
would have tendered 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 voice of thy brothers BLOUD CRYETH UNTO
ME from the ground.
Exod. 21. 14.
If a man come presumptuously upon his neighbor 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
blood: 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 blood 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.
T
His Defendant saith, That he is by Birth a
Freeman of England,
and that it is the undoubted
ancient 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,
Judgments of the High Court of Parliament,
and other public Courts of Justice, the Oaths of the
Kings of
England
and their Justices, and by many other
solemn public Confirmations, Protestations, Oaths,
Vowes, and Covenants:
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 lawful Judgment 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;
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 lawful men
upon good and probable evidence and witness; And that
if anything be done to the contrary of the Premises, it
shall be void in Law, redressed, and holden for error, and
naught: 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 Lord's, that the
Constable and Marshall of England
(then encroaching
upon this Privilege 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
Realm, 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 Lord's, that the Kings liege people
should not be put
to answer before the Constable or Marshall in Courts of Chivalry,
for anything done within the Realm, 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.
Upon which Considerations
many of the Kings loyal Lord's, 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
traitors without due process of the Law, and otherwise then
the Laws and usages of the Realm required; though they
did it out of no malice prepensed, but out of mere loyalty to the
King, and to appease and cease the present mischief, and out of
ignorance of the said Laws 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 Realm, they were enforced for their
future indemnity against the King and his heirs, and the
heirs, 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 resign 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 duel;
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
Elizabeth's
Reign, having willfully
stabbed that famous Sea-Captain
John Hawkins,
for not being of his opinion in Religion, (
Burchet
being persuaded in Conscience, that it was lawful
for him to kill everyone 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 Council
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 Trial; 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 reform the
inveterate evil customs, disorders, fewds, bloudsheds, thefts
and spoils wherewith the worst sort of Inhabitants near the
borders and limits of both Realms of
England
and
Scotland
were infected and inured;
that they might be tried
by a
summary Proceeding,
by way of
Martial Law,
or
by the Laws of the Kingdom into which they fled to
purchase their impunity: This Parliament was so
far from approving thereof, that they specially enacted,
in this case (even of these worst sort of men)
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 Realm of
Scotland,
it appearing to be most convenient
for the contentment and satisfaction of all
his Majesty's 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 natural
borne subjects of the same Realm; by whom
their Murders, Felonies, Rapes, &c. should be inquired
of, heard and determined before his Majesty's
Justices of Assize, or Commissioners of Oyer and
Terminer, or Goal delivery, by good and lawful men
of the 3. Counties therein specified, and
none other.
And that at all such Trials the Jury then and there
sworn, shall have in their power and election, according
to their conscience and discretion upon their
Oaths, to receive and admit only such sufficient
good and lawful witnesses upon their Oaths, 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 favor
and affection either to the party prosecuting or to the
party arraigned, or of their former evil life and conversation.
Which common, equal, indifferent Justice
allowed to the worst Malefactors, as their
birthright
and
inheritance
by this Parliament and Act, this Defendant
now only 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 Counsel
(to suppress the
Insolencies of
Soldiers
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 Martial Law upon those Soldiers and Mariners, and
other dissolute persons (only) joyntng with them, for Murder,
Robbery, Felony, Mutiny, and other outrages committed by
them, by such summary course and order as is agreeable to
Martial Law, a
•…
is used in Armies in time of War; to
proceed to the trial and condemnation of such offenders, and
then to cause them to be executed and put to death, according
to the Law Martial; By pretext whereof some of the said
soldiers and subjects were put to death by some of the said
Commissioners, 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
ought to have been
Judged, (before the Kings Justices) 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
itself, it was then prayed by the
Lord's 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 color of
them any of his Majesty's Subjects be destroyed or put to death,
contrary to the Laws and Franchise of the Land:
which the Lord's and Commons then prayed, and the King granted,
confirmed by Act of Parliament,
as their Right and
Liberty according to the Laws:
which Act stands
yet in its full force. Upon consideration of which late
Excellent Law, the last long
Parliament,
in the cases of
the
Lord Connor Magwire
and
Mac-mohun,
and the Court
of
Kings Bench
wherein they were tried by their special
order, in
Michaelmas
and
Hilary
Terms 20
Caroli,
were
so just, punctual and honorable, in confining themselves
to the rules of Law and Justice; that though
these were principal
Conspirators,
and
Actors
in the
late most
horrid, barbarous, bloody Treason, Rebellion and
Massacre in Ireland,
and taken in its prosecution; yet
they were so far from trying them by
Marshal Law
in
a
Council of War,
or,
High Court of Justice,
even in a
time of
open war
both in
England
and
Ireland,
that
they assigned the said
Maguire
Council, to argue against
the very
Jurisdiction
of the
Kings Bench itself; 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
lawful men of the County of
Middlesex,
for a Treason committed
in
Ireland,
being sent a Prisoner from thence against
his will?
Which was there
publicly 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; (
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 trial;
being
found guilty by the Jury,
before any Judgment passed against
them, Which Justice he humbly craves in his Case,
of less heinousness and importance than theirs, being
a native
English free-man,
and they only
Irish
Rebells;
because this his inherent
Birthright
and
Liberty can
neither be forfeited by him for any real or pretended
〈…〉
or offense 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,
try, condemn, execute him in this
high-Court
without a
legal
Indictment, Presentment, and Trial by the Oaths of
twelve good and lawful men
according to the due order
and course of the Common Laws of this Realm (and
that in
Westminster Hall
itself, the place of Law & public
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 Jury of his
Equals, is not only illegal, erroneous, & against all Rules
of Justice (the Commissioners themselves being both his
grand and petty Jury, and his Judges likewise; if not
parties interested, to whom
he can take no peremptory nor
legal challenges,
which the
Law allows him if tried by a Jury,
in cases of high Treasonat this day;
) but also
willful
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 offenses 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 Customs of
England,
The Badges
of our Freedom,
(the benefit whereof our Ancestors enjoyed
long before the Conquest and spent much of their blood to
have confirmed by the great Charters of their Liberti
••
) which
have continued in all former Changes, and being duly executed
are the most just, free, and equal of any other Laws in the
world; shall be duly continued and maintained; the Liberty,
Property and peace of the Subject being so fully preserved by
them;
adding, that
if these Laws should be taken
away, all industry must cease, all misery, blood 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 Soldiers 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
Lord's
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 mere mercinarie
Army, hired to serve any arbitrary power of State,
but called forth and conjured by several Declarations
of Parliament, to the defense of their own and the
people's 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 arbitrary
power, violence and oppression, and against
all particular parties and interests whatsoever; that
so all the free-born people of this Nation may sit
down in quiet under the glorious administration of
justice and righteousness, and in full possession of
those fundamental Rights and Liberties; without
which we can have little hopes (as to human considerations)
to enjoy any comfort of life, or so much
as life itself, 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 Judgment, 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
itself 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 Customs; causing Justice and
Law to be equally administered: 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 try this Defendant (made by no
legitimate,
nor free
Parliament
of
England,
and that when near
one hundred and fifty Members thereof were
causelessly
and
forcibly
secluded) authorize you (as he humbly conceiveth)
to proceed against him for any Crime therein
specified,
to Conviction
or
final Sentence,
but
only as in
Cases of high Treason, and misprision of Treason,
and according
to Justice;
and that you cannot do but only
by proceeding against him by a lawful Indictment and
Trial by a Grand and Pettie Jury, according to the
great Charter, Laws, and Statutes of the Land, and
the late
Petition of Right,
which this new Act cannot
repeal or null. All which this Defendant is ready to
aver, justify, and make good, when and where this
high
Commission Court,
or his
Highness the Lord Protector
shall
appoint: which being a mere 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 liberty 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 prayeth, 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 Judgment 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 any
illegal accusation
or
Impeachment
whatsoever, here exhibited or
read against him, without a legal Indictment, Presentment
and Trial by a Jury of his Equals? Or can take
any further connusance of the
Charge
against him, for
the premised Authorities & Reasons; which he in all
humility referreth to, and imploreth you to take into
your saddest considerations, and that in the Name and
dreadful presence of the Omniscient, Omnipotent,
Sovereign
Judge of all the Earth,
before whose glorious
Tribunal you must all ere long appear,
(stripped of all
Earthlie Honors, Pomp, Guards, and Power,)
to give
a strict account of all your Actions, whether good or evil,
and
of your proceedings in this very Cause; when this his
Plea
and
Demurrer
will rise up in judgment 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 Christ's own Tribunal, shall not
prevail with you to admit of this his
Legal Plea
and
Demurrer,
(as being after your deaths, perhaps many
years yet to come, and no ways endangering the loss
of your Lives, Lands, Honors or Estates in this present
world,) He shall then humbly entreat you for your
own future indemnity (he hopes, without offense)
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, John Holt, Roger Fulthorpe, William
de Burgh
Judges, and
John Locton
the Kings Serjeant,
were all
impeached of high Treason, condemned, and some of
them executed as Traitors 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 Judgment & 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
Lord's 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 Traitors, by capital pain of death:
That so by color
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 Lord's who procured and executed that
Commission, and others of the Kings people, by undue and illegal
Indictments and proceedings, without any lawful Trial by
their Peers, as Traitors to the King.
And the said Sir
Nicholas Brambre
for
enforcing the Judges, with others
of the Kings ill Counselors, to deliver their opinions against
Law, and for his beheading, executing 22 Prisoners of
Newgate,
(
impeached and indicted of felony, or suspicion of felony)
at
Foul-
•
oke
in
Kent
by regal and tyrannical power encroached
by him, without warrant, or due process of the Law, against
the Great Charter and Usage of the Realm of
Engl.
was in the same Parl. condemned for high Treason, & beheaded
at Tower-hill on the same block, with the same Axe he had
prepared to cut off the heads of others he intended there to
execute as his Enemies.
And that in the last Parliament
of King
Charles,
the
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 traitorously endeavored 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 traiterous words, opinions and judgments in the case of
Ship-money,
against Mr.
John Hampden;
Which judgment
and opinions concerned only the property of
the Subjects goods, not the hazard of their lives, inheritances
and forfeiture of their estates, as your present
proceedings do, being of a more high and dangerous
consequence; In which Parliament, by the like Impeachment
and prosecution;
William Laud
Archbishop
of
Canterbury,
and
Thomas Earl of Strafford
Lord
Deputy of
Ireland,
were condemned and executed by
Judgment of Parliament, and some here present,
as
Traitors, guilty of High Treason, for
that they endeavored traitorously to subvert the
Fundamental laws, and established government of
this Realm, and instead thereof to bring in and
set up an arbitrary and tyrannical power, against
Law. To prove which Charge, their arbitrary proceedings
contrary to the Laws and great Charters of
England,
both at the Council Table, in the High
Commission, Star Chamber, and elsewhere were given
in Evidence against them; and more particularly,
the Earl of
Strafford
's proceeding against the Lord
Mount-Norris
in
Ireland,
by a Council of War in time
of Peace, and condemning him to death therein
without any legal Indictment and Trial by his Peers,
against the great Charter & Laws of the Land, though
he did not execute him thereupon:
And whether
your present proceedings of like nature against this
Defendant, in case you reject or over-rule this his
Plea
and
Demurrer,
and condemn and execute him by pretext
of an
illegal Act
(made by no free and lawful Parliament
of
England,
) for offenses 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 very 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 mere arbitrary
and tyrannical power contrary to Law, to the endangering
not only of the properties, but lives, liberties,
and Inheritances of all the Noblemen, Gentlemen,
Clergy-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 heavy Taxes imposed
on the Nation for the maintaining and inviolable preservation
of these fundamental Laws, Liberties, and
Rights against all arbitrary
Commissions
and proceedings
whatsoever; he humbly submits to your own impartial
Resolutions and consciences.
And thereupon
this Defendant prays 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, bloody Sentence of
Death,
you have newly passed against him, without
any lawful 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 arbitrary, tyrannical
proceedings of
Strafford, Canterbury,
and the late
King Charles
(whom some of yourselves have impeached,
censured, condemned, decapitated as the
very worst,
and greatest of Tyrants
) lest it become a most pernicious
fatal president to posterity, to others, or your own
destruction, and render you as execrable to all succeeding
generations, as any formerly guilty of the
like exorbitant proceedings.
Just and Legal Exceptions to the Cause and Manner
of the Illegal Judgment given against Dr John
Hewytt; humbly tendered by him to the consideration
of those Commissioners who denounced it.
THat it is specially enacted by the Statute of
Westminster
the 1. ch. 12. and accordingly resolved in
Brook
Pain 1, 2, 4, 5, 8, 9, 12, 13, 14, 15, 19, and the
Year-Books therein abridged, by
Stamfords
Pleas of the
Crown, l. 2. c.
60. Dyer, f. 205. a. 300. b. Cooks 2.
Institutes, p. 177, 178, 179.
and
3. Institutes,
p.
217.
That no man ought by Law to be condemned, or put to death in
case of Treason or Felony, for standing mute, or refusing to
plead, or put himself upon his Trial, or for challenging more
than 36. of the Jury peremptorily; but only in these cases.
1.
When and where the person accused and arraigned,
is a
Notorious Traitor 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
notorious, evident, certain, or at
least very probable, and already found upon Oath against him
by the Presentment, or Indictment of an honest lawful Grand-Jury
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,
for the better satisfaction
of their consciences, and discharge of their duties, do
(
as they ought by Law,
) first openly examine 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 Judgment 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 guilty.
4. When and where there is a
legal Indictment
found
against the party arraigned, which being read openly
to him in Court, the
Traitor
or
Felon
thereupon, doth
either
willfully or maliciously stand mute, refusing to answer
or plead
thereunto, (which the
Jury
there impannelled
to try him,
are by Law to inquire of, find and return upon
Oath:
) Or,
peremptorily challengeth above 35 of his Jury,
without any legal cause or exceptions;
Or else obstinately
refuseth to put himself upon a Legal Trial
by God and
his Country,
being a Jury of honest, lawful men of the
County then and there present,
retorned by the Sheriff alone,
not Justices 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;
or
by God
and the Virgin Mary,
or
Holy Church:
there being
no president extant in Records, or Law-books, of
any
Traitor
or
Felon
hitherto condemned to die,
for
standing mute, or not pleading, only for refusing to
be tried
by God and the honorable Bench, Judges, Court
Alone,
without any Indictment or Jury; and for
earnestly importuning the Court and his Judges,
that he may be tried only by God and his Country,
and on an Indictment by a Jury of his Equals
according to Law,
casting himself wholly upon such
a Trial, after a lawful Presentment and Indictment
first
found against him by a Jury.
The only 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,
Because he peremptorily refuseth to stand to and be
tried by
the Law of the Land, and a due and lawful
Trial 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,
contrary
to all former Presidents, Statutes, Law-books,
and the only legal reason in former times of all
Judgments rendered against any persons in such cases;
even for his frequent, earnest, importunate demanding
and peremptory casting of himself, upon a due legal
Trial by God and his Country, and an indifferent
Jury 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 public prejudice of all other
English
Freemen)
and cast himself wholly and solie upon a new
kind of arbitrary Trial, contrary 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 Jury impannelled or returned
to try him.
Therefore he humbly conceives
this Judgment denounced against him upon this reason
& ground alone, to be most erroneous, illegal, unjust,
repugnant to all former Presidents, & to one this
very Week at the
Sessions
in the
Old Bailey
by Judgment
of some of his Judges at
Westminster
) and of very dangerous
consequence. Whereupon he humbly prays 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
willful Murder,
and
a shedding of
innocent blood
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 blood upon yourselves, and
upon this City, and upon the Inhabitants thereof:
Whereupon the
Princes
and
People,
upon second and
better advised thoughts altered their former bloody
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 bloody Execution, as
it did in this Prophets case; I shall then earnestly pray
to God, that it may not draw down from Heaven that
heavy Sentence of wrath upon them, nor that sad
Judgment upon the whole Land of
England
which
this Prophet denounced against
Jehoiakim, Jer. 20. 17,
18, 19. But thine eyes amd thine heart are but for thy covetousness,
and
for to shed Innocent Blood,
and for oppression
and violence to do it. Therefore thus saith the Lord
concerning
Jehoiakim;
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 Blood in the Land.
And
that against all Rules of Law and Justice, in that they
entitle, The High Court of Justice, which will not
palliate, but
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 blood of your lives, will I
require; at the hand of every Beast will I require it,
and at the hand of every man's brother will I require
the life of man.
Who so sheddeth Mans Blood, by
Man shall his Blood be shed;
for in the Image of God
made he Man.
FINIS.