BHO

Volume 72A: June 1654

Pages 233-240

Calendar of State Papers Domestic: Interregnum, 1654. Originally published by Her Majesty's Stationery Office, London, 1880.

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June 1654

June. Account by John Lisle, one of the Commissioners of the Great Seal, of the proceedings in the High Court of Justice, of which he was chosen president, at the trial of John Gerard, or Garrett, Peter Vowell, and Somerset Fox.
A messenger brought me the Ordinance constituting the said Court, dated 13 June 1654, to Chelsea, and the first meeting of the Commissioners appointed was that day, at the Middle Temple. Those present were "myself Judge Atkins, Judge Aske, Judge Nicolas, Mr. Serjeant Steele, Recorder of London, and about 10 more, about 16 of us that day. There was also Sir Thos. Witherington there present, who was impowered, being one of the Commissioners of the Great Seal by the ordinance, to give an oath to each Commissioner nominated by virtue of the ordinance. Sir Thos. Witherington caused the ordinance to be read, and speaking first to Judge Atkins, asked whether he were ready to take the oath which he said he was ready to give to those who were ready to take it. Judge Atkins said it was a matter of great weight and concernment, that the ordinance came but very lately to his knowledge, and desired time to consider of it before he took the oath. Judge Aske and Judge Nicolas said that indeed it was a matter of great concernment, and if others desired time they should desire time likewise. Recorder Steele said that which was moved was reasonable. Thereupon, seeing we were likely to depart all of us at present, and do nothing, I said, viz., 'That which we were empowered to put in execution, by virtue of the ordinance of the 13 of June 1654, was the ordinance declaring what offences shall be adjudged high treason, which ordinance passed in January last, so that ordinance is no new thing to us, and my lords the judges, especially, are no strangers to it. The last ordinance doth chiefly empower us to put that ordinance in execution, and we are to take an oath well and truly to do it, according to the best of our skill; so that unless any scruple the ordinance declaring what offences shall be high treason, and the manner of putting it in execution, I do not see any scruple in it; and therefore having considered of the first ordinance, which passed in June last, and having had the last ordinance by me and considered of it above 2 days, I am ready to take it.' Thereupon I took the oath, and after me, Judge Aske and Judge Nicolas and Serj. Steele, Recorder of London, with about 8 more; but Mr. Justice Atkins went away, after he had spoken as aforesaid, before anyone took his oath; but we that were then sworn, not being full 13, which was the quorum by the ordinance, could not this day choose our President, or any of the officers for the High Court of Justice." [Pages 1–3.]
At the next meeting, 2 days later, "Mr. Justice Atkins he did appear again the said day, and gave for his reason to the Lord Commissioner Witherington and myself why he could not take this oath, viz., that he had already taken several oaths as a serjeant and as a judge to do nothing contrary to the laws of England; the oath that we are to take by the ordinance seems to be contrary to the other oaths I have taken; by the law, no man indicted for treason but ought to be tried by a jury; by this ordinance it is otherwise; and therefore this oath seeming contrary to the other oaths I have taken, I desire they may be given in as my reason why I desire to be excused.'" [Page 4.]
Sir Thos. Witherington, as Commissioner of the Great Seal, gave the oaths to those who had not taken them before, and we proceeded to the choice of our officers and servants, and their salaries. I was chosen president, though I remonstrated, as not having had experience in such trials.
The Attorney-General not being ready, we adjourned 4 days more, and then met first in the Painted Chamber, Westminster, and then in Westminster Hall (Justice Aske being prevented attending by illness), and after several adjournments, the trial began.
"The hall was very full of people. After the Court was set, I required the Lieutenant of the Tower to send for his prisoners. After they were brought to the bar, I demanded of Mr. AttorneyGeneral what he had to say against those prisoners. He said he had an impeachment of high treason against them, and desired it may be read. Thereupon, by the direction of the Court, I required the clerk to take it and to read it.
"Mr. Vowell, the prisoner, he began to speak. I said to him, he should be heard in his time; the impeachment must first be read. After the impeachment was read, the clerk demanded first of Somerset Fox what he said to the impeachment of high treason, guilty, or not guilty? He said he could not confess the indictment, but said his examination was taken, and what was in his examination he would confess. I told him he ought to plead positively to the indictment, and if he pleaded to the matter of fact, must plead guilty or not guilty.
"After Somerset Fox, John Garrett was arraigned, and the clerk demanded of him what he said to his indictment of high treason; guilty, or not guilty? He said, not guilty.
"Then Mr. Vowell was arraigned, and demanded in like manner by the clerk, guilty or not guilty? He urged several things to the Court, viz. (1.), that he had not sufficient notice of the time for his trial, could not speak with any, nor have use of pen or paper. I said that the Lieutenant of the Tower had 3 days' notice of it from the Court, and was required to give them notice of it, at which the Lieutenant of the Tower said he gave them present notice of it. (2.) He desired counsel to plead. I said that he could not have counsel unless he offered some particular matter pleadable by counsel, as yet he offered none. Then (3), he desired to be tried by a jury. I said his judges were almost the number of 2 juries, and we were all his peers; that by the ordinance upon which he was to be tried, a jury was not requisite, If he demanded anything of the Court which they could allow him in justice, they would allow it him.
"Then (4.) he said that the offences we had in the impeachment were only offences made so by a new law just published, that it is treason to compass death to the Protector. "Mr. Serjeant Glynn answered that to kill the supreme magistrate was treason to the common law of England.
(5.) "He did object that the Protector in his Government had taken an oath to observe the laws of England, and by the laws of England by Magna Carta, he ought to be tried by a jury. Solr. 'The Protector swears to the Government, and in all other things to observe the laws of England. Now by the Government, the Protector and the Council hath a power to make a law which shall be binding until order to be taken in Parliament, touching the welfare of the nation, and this highly concerneth the peace of the nation.'
"Then (6.) he did object that the power the Protector and the Council had by the Government was but a temporary power to make laws until Parliament took further order, and by such a temporary law, he ought not to be questioned for his life, for if he should die by this law, how could his life be restored if Parliament should reverse their ordinance?
"To that the Solicitor-General answered, viz., that the same objection is to be made against any law, for no law is in force but till Parliament take further order, for any Act of Parliament may be repealed by Parliament.
"Then I urged him to plead, and told him the penalty of the law in case he refused to plead; that by the law, in cases of high treason, he that refuses to plead doth confess the guilt, in the judgment of the law, and therefore it would be as penal to him as if he confessed it or were found not guilty.
Then he pleaded not guilty.
"After he had pleaded also not guilty, the Attorney General began to open and state the evidence against them, and was very long in it; the sum of the evidence you will have in that speech I made to them before judgment was read and pronounced against them." [Pages 9–12.]
After examination of the witnesses, the prisoners were dismissed. The Court adjourned into the Painted Chamber, where they chose a Committee to prepare the form of a judgment, and to advise with the State's counsel about it, and directed Mr. Phelps, who had taken in shorthand all the evidence, to write it out that the Court might hear all read over to them before they delivered their opinion, and adjourned the Court for 3 days. They ordered the lieutenant of the Tower to admit the prisoners to have pen, ink, and paper, and to see their friends in his presence.
When the Court met again, the clerk read over the notes he had taken of the examinations.
"Then I began, and opened the proofs, first in relation to John Gerard, and delared my opinion that he was guilty of endeavouring to raise forces against the Protector, and the present government, and for compassing of the death of the Protector.
"As soon as I had ended, Judge Nicolas and Serjeant Steele declared their opinions to the same effect, and after that, these 2 questions were put upon John Gerard, viz.: (1.) Whether John Gerard be guilty of plotting, contriving, and endeavouring to stir up and raise forces against the Lord Protector and the present government, and for the subversion and alteration of the same, and hath declared his endeavour by open deed. (2.) Whether John Gerard be guilty of the treason within the charge for compassing and imagining the death of the Lord Protector by practising and endeavouring to kill and destroy him since the 19th of January 1653–4, and before the charge exhibited. The question passed in the affirmative.
"Both the questions were put also as to Somerset Fox, and both passed in the affirmative.
"The first of the questions only were put upon Peter Vowell, and it passed in the affirmative.
"Resolved that Somerset Fox, John Gerard, and Peter Vowell have judgment of death by hanging only." [Pages 14–16.]
The Attorney General and the rest of the State's counsel were requested to draw up the judgment and sentence, and the Lieutenant of the Tower to have the prisoners at Westminster to attend the Court the 2nd day from this day, to which day the Court adjourned.
They then met in the Painted Chamber, read over the judgment, passed it, and adjourned into Westminster Hall.
"As soon as the Court was sat, I said, 'Mr. Gerard, Mr. Fox, Mr. Somerset, you have been indicted for high treason. To this indictment you have severally pleaded not guilty. The Court, upon clear and manifest proofs, have found you severally guilty of high treason. Mr. Vowell, you offered then some objections to the Court, but the Court hath overruled them, and I am commanded to ask you what you can say further for yourselves, why judgment should not be given against you.'
"Then I directed the clerk to demand it of them severally, and after the clerk had demanded it of Mr. Gerard, he said he had nothing to say, but desired he may die the death of a soldier, and denied that he was guilty.
"Mr. Fox he offered a petition for the Commissioners to intercede for his pardon. Vowell he repeated over what he had said before, and spoke something to the people to raise them to sedition. To that I said, 'It is well discerned what your end is by this seditious discourse of yours, but (although I am very unwilling to interrupt you in anything, because you speak for your life), I must and am commanded by the Court to interrupt you if you have nothing else to say, for you add sedition to your treason.'
"Before that the judgments were severally read and pronounced against them by the clerk, I spoke to the prisoners at the bar to this effect, viz.: 'Before judgment be pronounced against you, I shall, as well as tears will give me leave, speak a few words to you. And I hope when you see others with bowels of compassion so sensible of the greatness and horror of your guilt, this will make your hearts to bleed likewise, and I pray God your grief may be a summons to repentance. After a long war, so lately ended, the Lord was pleased to give this nation a happy and blessed peace, and not only peace at home and among ourselves, but peace with our neighbour nations likewise, with the Low Countries, Denmark, Swedeland, with almost all the considerable Protestant interests in Christendom. Our happiness is not only in peace at home, and in this league and union with the Protestant interest abroad, but a Parliament is likewise summoned, now near approaching, for improving all this, and for settling whatever may be thought fit for the further good and happiness of the 3 nations. The treasons that you are guilty of (if God had not prevented you) would have proved a most bloody assassination to all these.
" 'The Lord knows I do not delight to insult over your miseries, but hold it my duty to lay before you the blackness of your guilt, as it is clearly proved, that you may lay yourselves before God in sorrow and repentance, that the Lord may be merciful to your souls.
" 'That there was a design to cut off, assassinate, and murder the Lord Protector with some of his Council, to seize upon the guards, and in this confusion, to proclaim Charles Stuart to be King, is proved by all the witnesses.
" 'The beginning of this horrid and wicked design, the progress of it, and all the circumstances with relation to the manner of putting it in execution, this is likewise clearly proved before us, which shows the extraordinary providence that did attend it, and the great vigilancy of those that that were God's instruments in the discovery.
" 'This design was a hatching the beginning of Lent last, for Major Henshaw then told his brother Wiseman there was a design, but he should hear more of it after his return from France. Major Henshaw then goeth over into France, then communicates it to Charles Stuart and Prince Rupert, and Prince Rupert, he said, encouraged him in it.
" 'Then Major Henshaw speeds into England, and not long after, Mr. John Garrett (who had met together in France (sic)) comes out of France into England. Upon the return of Mr. John Garrett out of France, Major Henshaw comes to his lodgings.
" 'Your several meetings afterwards, the names, places, and persons you met with, to consider how this should be put in execution, this is proved at large in the depositions. At length it is resolved to put it in execution in this manner, viz., Major Henshaw saith that he had listed 7 or 800 men, and had engaged 2 or 3,000 of the city. That Col. Deane had listed 200, and Billingsley had listed 300 men. The Protector he is to be cut off and assassinated, as he was to go to Hampton Court, and Mr. John Garrett was to do this work with 30 horse. Col. Deane he was to command one part of the listed men, and with them he was to seize the guards at St. James's. Col. Finch and Major Henshaw, they were to command 2 other parts of them. Mr. John Garrett he with another party was to seize on 'Whitehall and the Council, and in the midst of this confusion, Col. Finch with his party was to seize on the Lord Mayor of London, and to enforce him to proclaim Charles Stuart to be " 'King.
" 'I do more particularly open and observe this part of the evidence that we may all behold in what an extraordinary manner the providence of God did attend this work of darkness for the manifestation of it.
" 'Mr. Fox, you have confessed your guilt, and your remorse and ingenuity therein doth difference you from your accomplices. It is true upon your arraignment you pleaded not guilty, but in your examination taken before you came to the Court, you confessed your guilt, and your examination being read in Court to you, you confessed all contained in your examination to be true. You have confessed your compassing the death of the Lord Protector, and what you did for the subversion of the present government, and for bringing in Charles Stuart to be king. And besides it is proved by 2 witnesses against you, viz., Charles Gerard and Will. Dodd, that the design was communicated to you at Blackfriars, and that you did then endeavour to engage some in it.
" 'I shall not put you in hopes of life, because you ought to prepare for death, for your offence is of the highest nature, and judgment will be given against you; only this I may say to you, and I hope you will find comfort in it, either in life or death, He that confesseth his offences and forsakes them will be sure to find mercy.'
" 'Mr. Gerard, is it not clearly proved against you that you are guilty of compassing the death of the Lord Protector, and also of endeavouring to raise forces against the Protector and the present government? Mr. Wiseman proves it against you that you undertook to cut off the Protector as he went to Hampton Court with 30 horse; that you undertook to persuade 25 of them for this purpose, and Major Henshaw the rest, and that you said you would dispatch him with your own pistol, which would discharge 3 times, one after another. Was it not proved against you, by your own brother, that you encouraged Major Henshaw to go on with the design, assuring him that it would be very acceptable to Charles Stuart ? This your own brother proves. Was it not also proved that a party of the listed men were assigned for you to seize on Whitehall and the Council, and did not you say that your party should take an oath of secresy?
" 'And what did you say to this proof against you? It is true you still denied it, and said it was false what they testified against you. Did not your own brother testify it against you ? Were there not 3 witnesses that clearly proved it, and could you except to any one of them ? It is true you did except to Mr. Wiseman, because you said he was party to the guilt; did not your exception make his testimony the stronger against you, for how could he clearly discover you, unless he had been a party with you ?
" 'You asked where was the money to do all this ? If you and your accomplices could have made confusion in the nation, by your murders and assassinations,—for the Protector was to have been murdered and assassinated, Major-Gen. Lambert, and some others of the Council were to have been murdered,—if Charles Stuart could have been proclaimed King in the midst of this confusion, would you not have thought that the moneys and the treasures of the nation should have carried on this your wicked and bloody design ?
" 'If God hath discovered you, and the matter of the past be so clearly proved against you, if He hath brought you unto judgment, and the hour of your death be near approaching, what if you are so desperate that you care not for your body, yet add not sin to your rebellion by denying and persisting in it, lest you murder your own soul.
" 'And Mr. Vowell, there were 3 witnesses that fully proved this treason against you. And what did you say to this proof against you ? You said little or nothing to the proof, but I will truly repeat what you said. 1°. You said that there were treasons only made so by a new law never proclaimed, and you ought not to be indicted for such offences. It was proved against you that you endeavoured to compass the death of the Lord Protector, the supreme magistrate of this nation. To compass the death of the supreme magistrate of this nation, whether called by the name of King, Queen, or what name soever, is treason by the common law of England, and not only declared so by a late law, but by the statute of 25 Edw. III., and by several laws made since.
" 'You further said for yourself that the Lord Protector had taken an oath to observe all the laws of the land, and this trial was not according to Magna Carta, or the laws of the land. Solr. The words of the Lord Protector's oath are, viz., that he will not infringe the matters or things contained in the government, and in all other things, govern these nations according to the laws, statutes, and customs. By the 30th article of the Government, it is expressly provided that the Lord Protector, with the consent of his Council, until the meeting of the next Parliament, may make laws and ordinances for the peace and welfare of this nation. And doth not the punishing of such offences highly concern the welfare and peace of this nation ?
" 'And you did further object, viz., that your life ought not to be taken away by any law made by virtue of the 30th article in the Government, for the laws made by virtue thereof were but temporary laws, and only to be binding and in force until order shall be taken in Parliament concerning the same. The same objection may be made against all the laws of England, for in that sense, they are all but temporary laws, and are to continue no longer but until they are repealed by Parliament, and until order shall be taken in Parliament concerning them.
" 'And as for the objection you made against our authority, it was not an objection as if the indictment was not pursuant to our authority or commission, but it was an objection against the authority of the nation, and that is not to be disputed.
" 'And now let me speak to you all, and I hope God will speak to your hearts likewise, that even you, as well as the nation, may see the providence of His mercy in this discovery; that He hath restrained the violence of your hands, and not suffered you to be bloody executioners of this horrible wickedness which your hearts intended.
" 'The peace which England enjoys, by God's blessing, after so long a war, instead of this happy peace, nothing but war and confusion, nothing but blood and desolation, if God had not restrained the execution of your treason. The league and union which this nation hath with the Protestant interest abroad, would not that have been stabbed to the heart likewise ?
" 'The Parliament was near approaching, and never the like Parliament heard of for the interest of England, a Parliament for England, Scotland, and Ireland, fine (?) Parliament, and in this our hopes of ever having the like Parliament, had not this been destroyed likewise, if God had not prevented you ?
" 'And his Highness the Lord Protector, who dwelleth in the secret place of the Most High, and abideth under the shadow of the Almighty, whose life God hath protected both in peace and war, from the terror of the night, and from the arrow that flieth by day, for the honour, greatness, and happiness of these nations, his life and the nation's you would have taken away together, if God, in great mercy, had not prevented the execution of your most wicked and bloody design.
" 'I beseech God that all others may take example by your punishments, for which end let the judgment of the Court be read.'
"As soon as this was said, the several judgments were read by the clerk, and then I bid the Lieutenant [of the] Tower take care of his prisoners. The Court adjourned into the Painted Chamber, where we all signed the warrant for their execution. [Pages 17–28.]
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