others to inveigh against his backslidings with the more bitterness, and to undervalue the services he had ever done; to tax his vanities and his breach of faith. When the question was put concerning him, they who were for the negative, exceeded the number of the other by three or four votes; Cromwell having more than an ordinary animosity against him, for his behaviour in the beginning of the summer, and for some words of neglect and contempt he had let fall concerning himself. The earl of Norwich came next upon the stage; who having always lived a chearful and jovial life, without contracting many enemics, had many there who wished him well, and few who had animosity against him; so that when the question was put concerning him, the house was equally divided, the votes which rejected his Petition, and those which would preserve his life, were equal so that his life or death depended upon the single vote of the Speaker; who told the house,That he had received many obligations 'from that lord; and that once when he had been like to have incurred the king's displcasure, by some misinformation, which would have been very penal to him, the lord Goring' (under which stile he was treated, the additional of Norwich not being allowed by them upon their old rule,) had by his credit preserved him, and removed the prejudice that was against him; and therefore he was obligel in gratitude to give his vote for the saving him. By this good fortune he came to be preserved; whether the ground of it were true or no, or whether the Speaker made it only as an excuse for saving any man's life who was put to ask it in that place. be trusted, conceiving that he might be more secure in a place to which there was less resort, and where there were so many harboured who were every day sought after, had provided a lodging for him in a private house in Lambeth Marsh; and calling upon him in an evening, when it was dark, to go thither, they chose rather to take any boat they found ready at the Temple stairs, than to trust one of that people with the secret; and it was so late that there was one only boat left there. In that the lord Capel, as well disguised as he thought necessary, and his friend, put themselves, and bid the water-man row them to Lambeth. Whether, in their passage thither the other gentleman called him my lord, as was confidently reported, or whether the waterman had any jealousy by observing what he thought was a disguise, when they were landed, the wicked water-man, undiscerned, followed them, till he saw into what house they went; and then went to an officer, and demanded, what he would give him to bring him to the place where the lord Capel lay?' And the officer promising to give him ten pounds, he led him presently to the house, where that excellent person was seized upon, and the next day carried to the Tower. "When the Petition that his wife had delivered, was read, many gentlemen spoke on his behalf; and mentioned the great virtues which were in him; and that he had never 'deceived them, or pretended to be of their party; but always resolutely declared himself for the king' and Cromwell, who had known him very well, spoke so much good of him, and professed to have so much kindness and respect for him, that all men thought he was now safe, when he concluded, that his affection to the public so much weighed down his private friendship, that he could not but tell them, that the question was now, whether they would preserve the most bitter and most implacable enemy they had : that he knew the lord Capel very well, and knew that he would be the last man in England that would forsake the royal interest; that he had great courage, industry, and generosity; that he had many friends who would always adhere to him; and that as long as he lived, what condition soever he was in, he would be a thorn in their sides; and therefore for the good of the commonwealth, he should give his vote against the petition.' Ireton's hatred was immortal: he spake of him, and against him, as of a man of whom he was heartily afraid. Very many were swayed by the argument that had been urged against duke Hamilton, 'that God was not pleased that he should escape, 'because he had put him into their hands again, when he was at liberty.' And so, after a long debate, though there was not a man who had not a value for him, and very few who had a particular malice, or prejudice towards him, the question being put, the nega tive was more by three or four voices; So "The lord Capel, shortly after he was brought prisoner to the Tower from Windsor Castle, had by a wonderful adventure, having a cord and all things necessary conveyed to him, let himself down out of the window of his chamber in the night, over the wall of the Tower; and had been directed through what part of the ditch he might be best able to wade. Whether he found the right place, or whether there was no safer place, he found the water and the mud so deep, that, if he had not been by the head taller than other men, he must have perished, since the water came up to his chin. The way was so long to the other side, and the fatigue of drawing himself out of so much mud so intolerable, that his spirits were near spent, and he was once ready to call out for help, as thinking it better' to be carried back again to the prison, than to be found in such a place, from whence he could not extricate bimself, and where be was ready to expire. But it pleased God, that he got at last to the other side; where his friends expected him, and carried him to a chamber in the Temple, where he remained two or three nights secure from any discovery, notwithstanding the diligence that could not but be used to recover a inan they designed to use no better. After two or three days a friend whom he trusted much, and who deserved to that, of the four lords, three were without the mercy of that unmerciful people. There being no other petition presented, Ireton told them, there had been great endeavours and ⚫ solicitations used to save all those lords; but that there was a commoner, another 'condemned person, for whom no one man had spoke a word, nor had he himself so 'much as petitioned them; and therefore he ' desired, that sir John Owen might be preserved by the mere motive, and goodness of the house itself; which found little opposition, whether they were satiated with blood, or that they were willing, by this instance, that the nobility should see that a commoner should be preferred before them. 6 sprung. He was a very well bred man, ani a fine gentleman in good times; but too much desired to enjoy ease and plenty when the king could have neither; and did think poverty the most insupportable evil that could befal any man in this world. He was then so weak that he could not have lived long; and when his head was cut off, very little blood followed. "The lord Capel was then called; who walked through Westminster-hall, saluting such of his friends and acquaintance as he saw there, with a very serene countenance, accompanied with his friend Dr. Morley; who had been with him from the time of his sentence; but, a' the foot of the scaffold, the soldiers stopping the Doctor, his lordship took his leave of him; and. embracing him, thanked him; and said, te should go no farther, having some apprehension that he might receive some affront by that rude people after his death; the chaplains who at tended the two other lords, being men of the time, and the Doctor being well known to be most contrary. 6 "As soon as his lordship had ascended the scaffold, he looked very vigorously about, and asked, whether the other lords had spoken to the people with their hats on?' and being to. that they were bare;' he gave his hat to lo servant, and then with a clear and a strong voice, he said, that he was brought thisherto 'die for doing that which he could not repet of: that he had been born and bred under the government of a king, whom he was bound in 'conscience to obey; under laws, to which he had been always obedient; and in the boson of a church, which he thought the best in the world: that he had never violated his faith to either of those, and was now condemured to de against all the laws of the land; to which sentence he did submit.' "A scaffold was erected before WestminsterHall, and all the prisoners condemned were brought from St. James's, as well the two who were reprieved, as the three who were to suffer, upon the ninth of March, that was at the end of the year 1648, a little more than a month after the murder of the king, to sir Thomas Cotton's house, at the upper end of Westminster Hall; where they were suffered to repose themselves about the space of an hour, and then were led successively through the Hall to the scaffold, duke Hamilton being first; who seemed yet to have some hope of a reprieve, and made some stay in the Hall, till the car of Denbigh came to him, and, after a short whisper, in which he found there was no hope, he ascended the scaffold. He complained much of the injustice that was done him; and that he was put to death for obeying 'the laws of his country; which if he had not done, he must have been put to death there.' He acknowledged the obligations he had to the king, and seemed not sorry for the gratitude he had expressed, how dear soever it cost him. Ilis natural darkness, and reservation in his discourse, made him to be thought a wise man, and his having been in command under the king of Sweden, and his continued discourses of battles, and fortifications, made him begive the nation that innocent blood.' Then thought a great soldier. And both these mis takes were the cause that made him be looked upon as a worse and a more dangerous man, than in truth he deserved to be. "The carl of Holland was brought next, who, by his long sickness, was so spent, that his spirits served not to entertain the people with long discourse. He spoke of his religion, as a matter unquestionable, by the education he had had in the religious family of which he was a branch: which was thought a strange discourse for a dying man, who, though a son, knew enough of the iniquity of his father's house, which should rather have been buried in silence, than, by such an unseasonable testimony, have been revived in the memory and discourse of men. He took more care to be thought a good friend to parliaments, than a good servant to his master, and was thought to say too little of his having failed so much in his duty to him, which most good men believed to be the source from whence his present calamity "He enlarged himself in commending 'the great virtue aud piety of the king, whom the had put to death; who was so just and merciful a prince; and prayed to God, to recommended to them the present king; wh 6 the Protestant religion.' And having with great vehemence recommended it to them, after some prayers very devoutly pronounced upo his knees, he submitted himself, with an unpa ralleled Christian courage, to the fatal stroke, which deprived the nation of the noblest champion it had. "He was a man in whom the malice of his enemies could discover very few faults, and, whom his friends could not wish better accomplished; whom Cromwell's own character well described; and who indeed would never have been contented to have lived under that government. His memory all men loved and reverenced, though few followed his example. He had always lived in a state of great plenty and general estimation, having a very noble fortune of his own by descent, and a fair addition to it by his marriage with an excellent wife, a lady of very worthy extraction, of great virtue and beauty, by whom he had a numerous issue of both sexes, in which he took great joy and comfort: so that no man was more happy in all his domestic affairs; and he was so much the more happy, in that he thought himself most blessed in them. those which his own honour and conscience suggested to him, he frankly engaged his person and his fortune from the beginning of the troubles, as many others did, in all actions and enterprizes of the greatest hazard and danger; and continued to the end, without ever making one false step, as few others did, though he had once, by the iniquity of a faction, that then prevailed, an indignity put upon him that might have excused him for some remission of his former warmth. But it made no other impression upon him, than to be quiet and contented, whilst they would let him alone, and, with the same cheerfulness, to obey the first summons when he was called out; which was quickly after. In a word, he was a man, that whoever shall, after him, deserve best of the English nation, he can never think himself undervalued, "And yet the king's honour was no sooner when he shall hear, that his courage, virtue, and violated, and his just power invaded, than he | fidelity, is laid in the balance with, and comthrew all those blessings behind him; and hav-pared to that of the lord Capel.” ing no other obligations to the crown, than 185. The Trial of Colonel JOHN MORRIS, Governor of Pontefract Castle; at the Assizes at the Castle of York, before Mr. John Puleston, and Mr. Baron Thorpe,* Justices of Assize, for High Treason:† 1 CHARLES II. A. D. 1649. COLONEL Morris being demanded to hold up his hand, refused, and the Indictment was read against him for Treason, for levying War against the late King and the Parliament, upon statute 25 Ed. 3. The Court desired him to plead Guilty, or Not Guilty. Morris. My lords, under correction, I conceive this Court hath not power to try me in * Mr. John Puleston should probably be this first day of the term, it would be some inMr. Justice Puleston. He was called Serjeant, terruption to the course of justice, and reflect October 12th, 1648. Whitelocke, shortly after upon the parliament. They were entreated to the execution of the king, on the 8th of Feb. draw the Declaration themselves, as they de1649, tells us, "Instructions passed for Commis-sired the House should pass it; which they did sions to the Judges; of whom six agreed to presently, and the Commissioners of the Seal hold, viz. Rolles, Jermyn, St. John, Pheasant, went into the house, and acquainted them Wilde, and Yates, provided that by act of with the consequence of the business, which. the commons the fundamental laws be not they tendered to them, to be forthwith passed, abolished.' The other six Judges, viz. Bacon, to enable the six Judges to sit in Court this Brown, Bedingfield, Creswell, Trevor, and At- morning. The House were so sensible of the kins, were not satisfied to hold. Order for al- reasonableness, and fitness to give a speedy distering the Judges' Oaths, formerly in the patch to this business, that they laid aside all name of the King,' now to be in the People.' other, and soon Voted, "That the Oaths of Al"The next day, being the first day of the legiance and Supremacy should be null and term, the six Judges, who were inclined to hold void," made a satisfactory alteration of the Oath their places, were as yet much unsatisfied, be- of a Judge, and passed the Declaration drawn cause the Oaths of Allegiance and Supremacy by the Judges. They were satisfied herewith, were still continued, and because the house had and the Commissioners presently sealed their not declared that the fundamental laws should Patents, and gave them the new Oath of be continued, and the judges to administer Judges; then they went and sate in their seve justice accordingly. They debated these mat-ral Courts, and the Commissioners of the Seal ters together, and in conclusion came to this result, That if the House would pass such a Declaration, repeal the Oaths of Allegiance and Supreinacy, and alter the Oath of a Judge, that then they would presently sit in their places.' It was told them, it would be hard to procure all this to be done in the House, so soon as that they might sit in the several Courts this morning, and if they should not sit, VOL. IV. sate in Chancery. They caused the Declaration to be read, and spake to the auditory concerning the business, to give them satisfaction, and to settle their minds; this they took occasion to do in their speeches to the Judges, and therein, it is believed, they did some service for the Parliament. "Three days afterwards there were Orders appointing the several Judges to go the Cir 4 L this case; I being a martial man, I ought to be tried by a Council of War. Court. Sir, What do you say, Are you Guilty or Not Guilty? This is the second time you have been asked: Sir, if you will not answer the third time, we shall know what to do. Are you Guilty or Not Guilty? cuits this Lent, and for completing the num- Morris. My lords, I still conceive I ought not to be tried here; if I have done any thing worthy of death, i appeal to a martial Court, to my lord Fairfax, major-general, or a general Council of War: you have not any precedent for it, either for you to try me in this way, of me to suffer by it. plied, he had not yet kissed the book. The Court answered, It was no matter; that was but a ceremony, alledging, he was recorded 'Sworn;' there was no speaking against a re cord. Sure they made great haste to record him Sworn,' before he could kiss the book. So Brook was kept in upon this cavail, by whose obstinacy Morrice was condemned. I cannot wonder that legal forms and ceremonies are laid by (although Justice cannot subsist without those legalities to ascertain her proceedings, which otherwise would be left at large to the discretion of the Judge) when I see our known laws, Magna Charta, the Petition of Right, 3 Car. and the rest, with the fundamental government of this nation, pulled up by the roots, to carry on their designs of enslaving the people to their lusts, notwithstanding the Parliament's declarations, remonstrances, protestations, covenants, and oaths, to the conWhitelocke has left us the Speech which he trary, and their late vote in the Act for Abomade on the swearing in of Puleston and War-lishing Kingly Government. That in all things burton, on the 12th of June. Clement Walker, speaking of the transactions relative to the Judges, says, "Instructions were given by the Commons for drawing new Commissions for the Judges, according to the new Antimonarchical stile and way, the new Great Seal being now ready, a Committee of the House met the Judges about it: whereof six agreed to hold upon a provision to be made by Act of the House of Commons, That the Fundamental Laws be not abolished.' This very provision, so made by Act of the Commons, (heside all their former Votes against Monarchy, Peerage, altering in the stile of Writs, Coinage of Money, &c.) is itself an abolition of the Fun- | dainental Laws. This is but a Fig-leaf to cover their shame. Those that held were, Of the King's Bench, Mr. Justice Rolls, &c. &c. Those who quitted their places, and kept their consciences, were, Justice Bacon, &c. &c." It appears from Whitelocke, under date March 10th, 1649, that the salary of a Judge was 1,000l. per ann. Clement Walker, in his History of Independency,' relates this Proceeding thus: 66 Augus 16th, 1649. Colonel Morrice (who kept Pontefract Castle for the King) was indicted before Judge Thorpe and Pulestone, at York assizes, upon the statute 25 Edw. 3, for levying War against the late King and Parliament. The colonel challenged one Brook (foreman of the jury) for being his professed enemy; but the Court (knowing Brook to be the principal veib, the key of their work) answered Morrice, he spake too late; Brook was sworn already. Brook being asked the question, Whether he were sworn or no? re concerning the lives, liberties, properties, and estates of the people, they would observe the known laws of the land. But to return to our relation: Then Morrice challenged sixteen more of the Jury, where Puleston was so pettish, that he bade Morrice keep his compass. or else he would give him such a blow as should strike off his head; until Morris cited the str tute 14 Hen. 7, folio 19, whereby he might challenge thirty-five men without shewig cause. Here you see the Judges (who ought to be of counsel with the prisoner in matter of law) endeavouring to outface and blind the prisoner with ignorance of the law, being a martial man. Then he desired a copy of bis Indictment, that he might know what to an swer, saying, he might plead special as well as general; which the Court denied him. Next, because there was a point of law in it, he desired to have Counsel, citing the statute ! Hen. 7, folio 23; which was likewise denied him. Yet I am deceived, if Rolte had not Counsel allowed him, being indicted at Win-. chester, for an endeavour to murder King Charles 1, and had many other favours, denied to Morrice. Then col Morrice, for his dis charge, produced the Prince's commission, as Geser llissimo to the Fing his father. The Judges answered, The Prince was but a subject as Morrice was, and, if he were present, inust be tried, as he was, and rejected the commis sion without reading. Mor ice told them, the Prince had his authority from the King, whose name all Judges and Officers did then act. The Court answered, The power was not in the King, but the Kingdom. Observe, they indicted him for Levying War against the king 1 Court. Are you Guilty or Not Guilty? This is the third time. Morris. My lords, if your honours will force me to plead, I conceive I am Not Guilty.. Court. How will you be tried? Morris. My lords, I was never at any bar before, I am ignorant herein. Court. Tell him what to say. [Upon that, some near him, told him, By God and his Coun try.] but Colonel Pride opposed it, urging, That it would not stand with the justice of the Army,' (you see now who is the fountain of Justice) nor the safety of the Commonwealth, to let 'such enemies live, the Parliament having ad and given instructions to the Judges accordingly. (O serviceable Judges!) So the General was overborne by this Drayman. This fellow sitteth frequently at the sessions-house the Old Bailey, where the weight of his slings turneth the scale of Justice which way be pleaseth." and Parliament. The word Parliament' was a surplusage, for which no indictment could lie. No Allegiance, no Treason; and we owe allegiance to the King alone. Whosoever levieth war in England (in the intendment of the law) is said to levy war against the King only, al- ́judged him worthy of death,' (without hearing) though he aim not at his person, but at some other person; and if he that levieth war against the King, his crown, and dignity, be a traitor, how much more must they be traitors that have actually murdered the King, and dis-in inherited and proscribed his lawful and undoubted Heir, and, as much as in them lies, have subverted the monarchical government of the land, and consequently all monarchical of the Transactions at Pontefract, in which col. Lord Clarendon gives the following history laws, whereof the Statute of Treasons for Le-Morris or Morrice had so great a share: vying War against the King's Majesty is one; and therefore Morrice, under a free state, "When the parliament had finished the ought not to be condemned or tried upon any war, they reduced and slighted most of the inmonarchical law. So Morrice was found guilty land garrisons, the maintenance whereof was by a Jury for that purpose, and an illegal pre- very chargeable; yet by the interest of some cedent begun, to cut off whom the Faction person who commanded it, or out of the consipleaseth, under a pretence and form of law, deration of the strength and importance of the without help of a council of war, or a private place, they kept still a garrison in Pontfret slaughter-house, or a midnight coach, guarded Castle, a noble royalty and palace belonging to with soldiers to Tyburn. These usurpers have the crown, and then part of the queen's joingot the old tyrannical trick, To rule the peo- ture. The situation in itself was very strong; ple by the laws, but first to over-rule the laws no part whereof was commanded by any other by their lawyers;' and therefore, Ut rei inno- ground: the house very large, with all offices centes pereant, fiunt nocentes judices;' that suitable to a princely seat, and though built true men may go to the gallows, thieves must very near the top of a hill, so that it had the sit on the bench. But, Silent leges inter prospect of a great part of the West Riding of 'arma;' and now, Silet justitia inter leges, Yorkshire, and of Lincolnshire, and of Nottingsilet jus inter judices:' The mungrel, hypocri-hamshire, yet it was plentifully supplied with tical, three-headed conquest we live under hath water. Colonel Cotterell, the governor of this despoiled Justice of her balance, and left her castle, exercised a very severe jurisdiction over in a military posture, with a sword to strike, his neighbours of those parts; which were inbut no scales to weigh withal. Our licensed habited by many gentlemen, and soldiers who news-books, like ill-hoding birds, fore-told and had served the king throughout the war, and fore-judged Morrice's death a month before who were known to retain their old affections, He died resolutely.' Observe the thing aimed though they lived quietly under the present goat in this new form of Indictment of High vernment. Upon the least jealousy or humour, Treason, for Levying War against the King these men were frequently sent for, reproached, and Parliament, is, first, That the word 'King' and sometimes imprisoned by the governor in may hold in the Indictuent, which otherwise this garrison; which did not render them the would be found to have error in it; and though more devoted to him. When there appeared the words for Levying War against the Par- some hopes that the Scots would raise an army 'liament,' be a vain surplusage, signifying no- for the relief and release of the king, sir Marthing, yet at last (by help of their own Judges maduke Langdale, in his way for Scotland, had and new-made Presidents) to levy War against visited and conferred with some of his old the Parliament shall stand alone, be the only friends and country-men, who now lived quietly significator, and take up the whole room in the within some distance of Pontfret, who informed Indictment, and thrust the word 'King' out of him of that garrison, the place whereof was well doors, and then Treason shall be as frequent known to him. And he acquainting them with as Malignancy is now. Morrice had moved, the assurance he had of the resolution of the he might be tried, like a Soldier, by a Coun- principal persons of the kingdom of Scotland, 'cil of War,' alledging the inconveniency of and that they had invited him to join with such a precedent, if the King's party should re- them, in order 40 which he was then going thitaliate it, which would not be granted; yet Co-ther, they agreed, that, when it should aplonel Bethel wrote to the General, and his ( pear that an army was raised in Scotland upon Council of War, desiring he might be reprieved; that account, which must draw down the par 6 |