THE TRIAL OF MR MORDAUNT, Second Son to JOHN Earl of PETERBURGH, AT The pretended High Court of Justice in Westminster-Hall, the first and second of June, 1658. With some Passages before and after it.  
LONDON, Printed by JAMES FLESHER, 1661.   

  

TO The Right Honourable ELIZABETH Countess Dowager of PETERBURGH.  
MADAM,  
HAving the Original of my Lord Viscount mordant's Trial by me, I believed it a Duty to my Country, to publish so Signal, so great and Generous an Action: that in case Our Nation be traduced by Strangers, for so low and mean a Compliance under that horrid USURPER and TYRANT, CROMWELL; we may be able to produce upon record as Noble a list of Martyrs and Heroic Spirits, as ever (the number of years considered) suffered for any unfortunate Prince in Europe.  
And, Madam, although my Lord Your Son appears not in this Calendar in Bloody Letters, yet, to Your fuller satisfaction, he will ever be Registered in Golden ones; the declension of Cromwell's Fortune and Family taking its Visible beginning from my Lord mordant's Escape, who was marked out a Victim for the Nobility, as Dr Hewet and Sr Henry Slingsby were for the Gentry and Clergy: and his Deliverance had this of singular in it, that having set up his rest on his Defence, he was cleared by that bloody pretended High Court of Justice, and remains Recorded the first Precedent of that Nature.  
To whom then can I dedicate this Memorial so properly as to Your Ladyship, the Noble Stock from whom this Branch proceeds? And indeed this Remarkable Action was an Honour to Your Family (though ne'er so fertile for high Achievements) as well as to his own, and none can say which of Your Houses has more right to the Glory of it, the Howard, or Mordaunt.  
To be particular in the Relation of this were needless, there being thousands of Witnesses, and Westminster-Hall scarce ever so thronged: Yet I cannot omit to observe it was manifest to all present, he knew to speak, as well as how to attempt or die.  
'Tis now, Madam, visible that God preserved Your Son for greater Actions, which to Your lasting comfort You will always remember: How after his unexpected and almost Miraculous Escape from the Axe, he calmly undertook a second worthy attempt; the uniting of two long-jarring Parties, at the time when the Consternation was so universal upon men's spirits, that few (though otherwise honest) would hear what he designed (so great a regard had men in those days to what they desired should be thought Prudence.) Upon which Conjunction he founded the certainty of a Noble War, or a healing Peace.  
The considerable Rising of Sr George Booth satisfies he was not mistaken in the first; and the happy composure of all Our Differences by his Ma.tie Restauration, evinces his foresight Prophetic as to the other.  
I protest, Madam, I cannot without some amazement reflect upon the Providences attended him, by Sea, by Land, in all his Concealments and Negotiations: and after he had been so often and publicly proclaimed Traitor, and the Coasts watched to take him, he never in the least declined any Risque or Hazzard whatsoever, though he knew Death attended him every Minute if he came to be discovered; but with a quiet Resignation prosecuted what his heart was set upon, his Ma.tie Restauration, and his Country's Liberty.  
How great and Eminent an Instrument he has been towards His Ma.tie Restauration, what Employments and Transactions have been committed to his Prudence and Resolution, and how fortunately he has acquitted himself of those great Trusts, and what faithful Services he has rendered the Crown, is doubtless known to all who pretend to business; else I could not but wish all good Fortune and Success to that Merit and Courage which first broke the Ice, and gave Reputation to the Counsels and Party of our long-banished SOVEREIGN.  
But, Madam, Your Family will find greater Rewards from His Ma.tie then I dare express: In confidence of which I have no other wish, then bumbly to beseech Your Ladyship to look on me as  
Madam, The most Obedient of all your Servants, T. W.   

THE Trial of Mr MORDAUNT AT The pretended High Court of Justice.  
AP ril 1. 1658. Mr Mordaunt was by a Guard of Soldiers taken in his Bed at Berkshire-House, and carried directly to the Protector. All his Writings were then seized on, and never returned. He was for that time dismissed upon his Honour, to appear upon Summons; and remained at Berkshire-House till the fifteenth: when after some hours Examination, he was committed for High-Treason to the Tower. During which fourteen days time Mr Stapeley, who was one of the Witnesses against him, was never pleased so much as to acquaint him with his Danger, or his own Examination, though he was Prisoner at large, and ●ay next door to him. This was the reason made Mr Mordaunt so secure, believing that a Gentleman could not wrong him so much, as to accuse him, and not give him notice of it.  
His Imprisonment in the Tower was the severest that ever was heard of for the time: He was ever close, but the last three weeks had constantly an Officer and a Soldier by his Bedside, locked in with him; two Keepers, having several Keys, so that, but by joint consent, no person could be admitted to him: and lest this was not sufficient, he had two Soldiers at the house doors day and night. His lady's being with him made this unheard-of Cruelty unsupportable, She being likewise stripped and searched by women sworn to that purpose; and her hair pulled about her ears to find Papers. As himself likewise afterward, and his Servants, had all their Clothes cut and opened; yet nothing could be found, which extremely enraged the Officer. His very Prayers were not private, nor had he one hour free from disturbance when he was providing for his Trial, so insolent were the Soldiers with him.  
Till within two days of his Trial he was permitted neither Pen nor Ink: And to the Lieutenant Colonel (whose name was Miller) who gave him so short a summons to prepare for such a Defence, he expressed his dissatisfaction in point of time, for so serious a Work, and desired Counsel. But the Lieutenant of the Tower refused his hand to their Warrant for their safe return; so he had none, but immediately said he was resolved not to own the Court, nor that way of Trial.  
One usage was so barbarous I cannot omit it. The night before his Trial he sat up late to provide his Defence, committing himself into the hands of God, as verily believing by their Cruelties shown he was ordained for Death. Scarce was this persecuted person asleep by his Lady, but a Captain going the round, commanded the Soldiers to wake him, and make him speak: they obeyed the command, opened the curtain, and stirred him. His Lady at first feared foul play, but composed herself again; and he waking, demanded the reason of such insolence. No answer was given, but that it was by Command. Are ye commanded, says he, to keep me waking till my Trial? Cozen not yourselves, by God's assistance, these insolences will not so distract me, but that I shall be able to make a good and just defence. To this the Soldiers made excuse, saying, they durst not disobey Commands.  
As he was led out by a Guard, the Countess of Peterburgh, his Mother, sent his young and only Son Charles to receive his last Blessing. The Child, and the Servants that attended him, met Mr Mordaunt at the Court of Guard, where before the soldiers he put off his Hat and blessed him, and openly commanded he should be brought up in his Father's Principles and Religion; saying, that though hereafter he came to that end which he was going to, he could not choose but die Happily and Nobly. These expressions so moved the Soldiers, that he left the most barbarous with tears in their eyes.  
The first day of Trial he was led out of the Tower by one Foster, a Captain of the Lieutenant's Regiment, (the Villain that shot Sir Charles Lucas and Sir George Lisle) who held him always by the hand. By reason of his swollen face, he was last ready, so that the Prisoners stayed expecting him at the Water-gate; which displeased the Captain so much, that he told him he was very lazy, for the Prisoners had stayed an hour in the cold. Mr Mordaunt, when he saw the Prisoners, begged their Pardon, who seeing his condition were easily satisfied. But Foster said, he could not blame his stay, for never man went out to Trial so sure to lose his Head. This was said publicly; which gave Mr Mordaunt occasion to ask him if he were one of his Judges; and protest he could never be satisfied he ought to plead before those who did in effect condemn him beforehand: For the Lieutenant had said as much too. This Foster offered to give him a hundred pounds for a Piece, if he escaped: yet after (having received the money) was taken off his wager by Licutenant Col. Miller.  
Tuesday the twenty fifth of May the three Prisoners. Sr Henry Slingsby, Dr Hewet and Mr Mordaunt, being in the Court of Requests, Sr Henry Slingsby was carried to Trial. The Court adjourn▪ d till Thursday, from Thursday it adjourn▪ d till Tuesday June the second; in which time it pleased God to strike such a horror into Mallory of the hateful part he was to perform, by appearing personally against two such eminent persons, that by the assistance of a maid which served Mr Mordaunt he took a Disguise and a Purse she brought him, and made an escape out of prison, lying concealed till Mr mordant's Trial was over; and then being unfortunately retaken, was imprisoned in the Tower the rest of Cromwell▪ s life.  
This, together with Mr Mordaunt▪ s Aposteme, of which he had like to have died in the Tower, his lady's Note, sent whilst he was in the height of his debate, and Colonel Pride's going out, were the wonderful Providences it pleased God to use for the preservation of this Gentleman. Dr Hewet was tried first, and not suffered to plead. Mr Mordaunt seeing him returned, asked him how he was tried. He said he could get neither Jury nor Counsel, and insisting for both, was hurried away; but he prayed God to bless him with better fortune.  
Mr Mordaunt being brought to the Bar, he put on his Hat, and sat unconcernedly down before the Precedent; who rose, and told him there was a respect due to the Court he performed not, and spoke to Sergeant Dendy to take off his Hat: which Mr Mordaunt perceiving, to prevent him, threw it away himself.  

THE Beginning of his Trial, which lasted almost till Night.  MR Phelps Cl. 
John Mordaunt Esquire, thou standest here charged with High-Treason against his Highness the Lord Protector and the Commonwealth: you have heard the Charge read, the Court demands your positive Answer thereto, whether Guilty or not Guilty.  M. MORD. 
I desire I may hear the Commission read by which you sit.  L. PRES. 
You are impeached of High-Treason, we require your Answer.  M. MORD. 
I desire the Commission may be read, and the Commissioners names.  L. PRES. 
You are to be tried by the Laws of England, Act of Parliament, and Commission of the great Seal of England in pursuance of that Act.  M. MORD. 
I claim it as my Right, I am ignorant in the Law, I desire it may be read.  L. PRES. 
It is not granted to any.  M. MORD. 
Will you take away that Liberty, that we shall not know by what Commission we are tried, nor who are our Judges? I desire I may not be made the first Precedent.  L. PRES. 
It is visible who are your Judges, they are named by Act of Parliament. We are your Judges.  M. MORD. 
It appears you will be, though I am not satisfied in it: but the Act will not bear that it must not be read. I desire a Legal and just proceeding.  L. PRES. 
The Act of Parliament doth not require it.  M. MORD. 
The Act not denying 
Misera servitus ubi Lex est vagum aut incognitum.  it, it follows, it is my Right.  L. PRES. 
You shall have all the Privilege that may be, but you must first plead.  M. MORD. 
My Lord, I demand this, to have the Commission read.  M. ATTORN. GEN. 
My Lord, pray let him know what is done, to warn him, lest he fall into the same condemnation. There was one but a little before you that demanded the same thing, and the Court hath ruled it otherwise, and he hath received his Sentence: I tell you of it, that you may beware, and know how to carry yourself. If Mr Mordaunt will be pleased to answer whether Guilty or not Guilty of those Crimes, than he shall have a fair Trial, and full Examination: if otherwise, the same Sentence must be required as before; that is, upon refusal, the Judgement pronounced for High-Treason.  M. MORD. 
My Lord, I desire the Act may be read.  M. ATTORN. GEN. 
The Act is public, the Court is not to give you an account of their Authority, or the way of their proceedings; they require your Answer.  M. MORD. 
My Lord, shall I not know by what Law I am tried, nor by what Act, nor by what Commission?  M. ATTORN. GEN. 
You seem to be a young Gentleman; I wish you would rather plead not Guilty, or make an ingenuous Confession.  M. MORD. 
My Lord, truly it appears this Gentleman is for the Protector; I am for myself, and resolved not to lose my native Rights. I desire I may have Counsel assigned to argue it with this learned Counsel. If this Counsel convince mine, I will submit; if on the contrary, what I demand I expect will be allowed me. This is the first time I have been before any Court in my life. I desire that my Reason may be convinced, and to know if the Protector's Counsel will say I am debarred hearing the Commission and Act read: however I shall refer it to the Judges of the Land, by whose Opinion I will stand or fall.  M. ATTORN. GEN. 
My Lord, you have offered that Gentleman very seasonable advice, I wish he may be capable of it; and in these debates I wish he doth not lose those advantages that are really intended for him. For the Court, it is by Act of Parliament, and no Judicature in England can require any account of their proceedings. Your Papers, Mr Mordaunt, were better laid aside, they will prejudice you.  M. MORD. 
With your leave, Sir, I shall not quit them. Pray give me leave to ask this Question, whether there be any precedent for this.  M. ATTORN. GEN. 
By way of advice I do acquaint you, that there is no Judicature in England superior to this, but the Parliament immediately. You are here impeached of a very high Crime, High-Treason; it may be a straying of Youth: the first step to Mercy is Confession.  M. MORD. 
Sir, I humbly thank you, yet shall not betray mine own Innocence by confessing a Crime; I will never know Treason, and being Innocent I shall need no Mercy. My Lord, I have heard that the Judges of the Land are the best and most proper Expositors of the Law; and I cannot but wonder I see none of them here: If they declare that this is the sense of the Act, I'll submit to the Court; if the Court will allow me Counsel, I shall submit if my Counsel be convinced. I desire to hear the Commission read.  M. ATTORN. GEN. 
My Lord, this Gentleman was a fellow-Prisoner with one that went before him, he walks after the same steps; I wish he may not run into the same Error: these things were urged by Dr Hewet, and the Court hath ruled that their Authority is sufficient; and therefore, my Lord, be pleased that this Gentleman may plead.  M. MORD. 
My Lord, I see I shall be overborne both as to Counsel and Jury, and that you endeavour not to convince me. Will this Counsel give it under their hands that this is Law by the Act of 1656? If you will say under your hands that this is Law, that I shall be excluded of Jury and Counsel, and that I must not know the Commission by which I am tried, I will proceed.  L. PRES. 
I am afraid you have received ill advice from others; possibly you know what is become of that Prisoner that spoke of Counsel: we cannot assign you Counsel as to matter of Fact. The Law and Act of Parliament have made us your Judges, and therefore you are to plead.  M. MORD. 
My Lord, I desire that that Act may be read, to know whether I am to be excluded of Jury and Counsel; I durst refer it to the Counsel against me.  M. ATTORN. GEN. 
I doubt the Gentleman is in jest: We are here to attend by command of his Highness the Lord Protector, these Gentlemen are all sworn by Act of Parliament; it is a little slighting of the Court to appeal from the Court to the Counsel. But, my Lord, I beseech you he may forbear to say he is overborne. You shall have Justice done if you plead; if not, there was a Precedent but now: if you please to put yourself upon the Trial, you shall have a fair Trial.  M. MORD. 
My Lord, I hope it will be understood frank Ingenuity to refer myself to the Protector's Counsel, and not slighting the Court: neither am I convinced by this Act that I am to lose the right of Jury; I have not heard any Reason why I must lose it: I shall insist upon a fair Trial.  M. ATTORN. GEN. 
I do tell you the Court hath given Judgement just now in the like Case.  M. MORD. 
I ask a Precedent for this.  M. ATTORN. GEN. 
I tell you a Precedent, Sr Henry Slingsby and Dr Hewet.  M. MORD. 
Is it a good Precedent? if any give an ill Precedent, it is no reason I should follow it, but debate it myself.  M. ATTORN. GEN. 
I humbly conceive that this Court is your Court, and that you ought to plead to it.  M. MORD. 
If I could conceive this Court were so, I would plead. My Lord, I desire I may be heard; 'tis hard I should be excluded those Privileges my Ancestors have so often sweat and bled for, in purchasing the Rights of the Great Charter, and the Petition of Right. I am told, I have just claim both to Counsel and Jury. And indeed I supposed that in this place, which is so famous for Administration of Justice and Law, I should not have been debarred what appears to me to be so: but since I cannot obtain the having the Act read, I shall as well as I can explain my sense of it. The words are these, That the respective Commissioners or the major part of them are to meet, etc. The major part only having power to meet and adjourn, and not to determine and try, and in seventeen there is no major part, the whole being 150. now I humbly conceive without the whole I cannot be tried.  L. PRES. 
All this that you ask of us now we have declared this morning already to one who was before you at the Bar. The Quorum of this Commission is seventeen, or any more of them. We must require you again to plead.  M. MORD. 
My Lord, I desire a little Patience. That the Number of Commissioners to try is seventeen, I conceive must be very much forced, because the words relate to the respective Commissioners. Several Persons were allowed Counsel, I desire Counsel.  L. PRES. 
That is when there is matter of Law; you have alleged nothing, you are now upon matter of Fact.  M. MORD. 
My Lord, my Indictment is matter of Law, and upon that I may safely demand Counsel; I desire to have Counsel as to my Indictment.  L. PRES. 
Your Reason, and my Reason, and all Reason must submit to the Law: you are now upon matter of Fact; the single Question is, Whether Guilty or not Guilty?  M. ATTORN. GEN. 
My advice to you is, that you would put yourself upon your Trial.  M. MORD. 
I am clearly resolved not to put myself upon a Trial that never had a Precedent; neither am I so mean to do it, did I respect the Liberties and Privileges only of my Countrymen.  M. SOL. ELLIS. 
I will tell you where this Mistake is: He speaks of former Trials, which we do not deny; but this Gentleman will agree that it is in the power of Parliament, by Acts of Parliament to alter those Trials. We conceive that this Act of Parliament hath determined this very question; for, my Lord, it is that you shall examine upon Oath, and thereupon proceed to Conviction, and final Sentence; not by Jury. And this Act of Parliament hath entrusted you to be both Judge and Jury. All English▪ men must submit to what the Parliament hath done; and the Parliament hath determined this Question, that you have power to examine upon Oath, and thereupon to proceed to Conviction, etc. If a Jury was to do it, you were not to proceed to Conviction. This Gentleman says there is no Precedent for it; but we say it was the same in Queen Elizabeth's time. They proceeded to Conviction, and final Sentence, when they proceeded against Duke Hamilton, Lord Capel, and Holland. Did not the Parliament approve of what they did in that case as Just, Honourable, and Lawful? Did not Duke Hamilton? Did they not all Petition the House? Did not the Parliament order Execution upon some, and Cleared others? To say this is without Precedent, when Precedents are so frequent, I wonder that should be said. To that point of a Jury, I must tell this Gentleman, he speaks of a Jury, but hath not put himself upon Trial; after he hath pleaded not Guilty, than it must be considered the manner of the Proceeding: but to come before he plead Guilty or not Guilty to desire a Jury, this is a little to anticipate your Judgement.  M. MORD. 
My Lord, I am concerned for the fatal Precedent that Learned Gentleman gives of the Queen of Scots, it being in my opinion the greatest blur to the Justice of Our Nation, and for which we may yet suffer. But allow that for a Precedent, our Cases are strangely different: She a Sovereign Queen, and how to get a Jury of Kings and Queens to have sat upon her would have been hard: Next, She was a Foreiner, and aught to have had six of her own Country to six of Ours, which could not be found: To this, my Lord, the next Parliament pardoned all those in particular sat upon her, as having done an action Questionable by the Laws of the Land.  
ay, my Lord, am an Englishman, very well known, and have a right to the Great Charter and Petition of Right, which She had not, and therefore desire Jury and Counsel.  M. ATTORN. GEN. 
The Parliament hath thought fit to go this way, and it is not to be disputed; they that live in this Nation are not to dispute it. If that Gentleman will please to recollect himself, and not, my Lord, thus Expostulate and Dispute with the Court of Justice; if he please to put himself upon Trial, if he thinks himself Innocent, I think it best: and if he refuse it, his Sentence is from himself.  M. MORD. 
I am not Convinced at all, but forced upon it, and it is a hard thing that my Reason should not be Convinced. If this Act doth say in any place, that I must lose those Privileges, or if the Judges will declare it to be so, I will submit to it: If the Judges will declare that I must be tried thus, God's will be done; I desire to stand and fall by the Laws.  M. ATTORN. GEN. 
We are clearly of opinion we have not power in this to appoint any other Jury, nor to summon a Jury, we ourselves having taken an Oath: you would do well to plead.  M. MORD. 
I do not shun to be tried by Act of Parliament, but refer myself to the Judges, that those Privileges of the Act may not be taken from me. If I am not suffered to dispute the Power of the Court, yet I desire my Reason may be convinced, and that I may have Counsel.  
Here he was interrupted, and a silence in the Court, occasioned by a Note handed to the Precedent, and from him to the Lieutenant of the Tower, who got it delivered to the Prisoner. The Note contained these words: For God's sake plead, plead for my sake, and stand disputing it no longer.  
Upon the receipt of this, the Prisoner changed his Resolution, moved thereunto by the great Kindness and value he had for his Lady, who being at the Hall-door in a Coach, had received information that unless he presently pleaded, he was lost: upon which her Uncle the Earl of Monmouth got her to write the Note, and himself carried it to the Court.  
By this it appears how miraculously God preserved this Gentleman, just as he was to be forced away, to Inspire his Lady the means to save him. 'Tis certain, that She is an extraordinary Person, and never Woman so much obliged an Husband, nor did him so many essential good Offices.  M. MORD. 
My Lord, I have but little to say; I desire to know whether the Court doth intend to try me by a Jury.  M. SOL. ELLIS. 
They do not.  M. MORD. 
Is the Court Judge and Jury?  M. ATTORN. GEN. 
Yes: if you will deal Ingenuously with the Court, I think that is best.  M. MORD. 
Seeing I am here overruled, though not convinced in my Reason, I shall demur to the Jurisdiction of the Court, and plead, not Guilty. I desire a Copy of my Endictment, and time to plead.  L. PRES. 
It was never done: for any Indictment of High-Treason was never delivered to any Prisoner.  M. MORD. 
I urge my Lord Cook for Authority, for a Copy of my Indictment.  M. PHELPS. 
John Mordaunt Esquire, you stand here Charged of High-Treason: to this Charge you plead, not Guilty. Is this your Plea?  M. MORD. 
Yes. I beg, my Lord, that my Ignorance of the Laws may not prejudice me, not understanding or knowing any thing of the Law: and this granted me, I shall address to my Justification.  M. ATTORN. GEN. 
Do you stand to your Plea, not Guilty?  M. MORD. 
Why, yes.  M. LETCHMORE. 
My Lord, I shall open the Impeachment. The Attorney General hath exhibited a Charge of High-Treason against John Mordaunt Esquire, viz. That he, the said John Mordaunt, intending to Imbroil this Nation in new and intestine Wars, the 30th of April last passed, and at divers times since the tenth of October 1656, together with Henry Bishop, Hartgil Baron, etc. at the Parish of Clement Danes in the County of Middlesex, did traitorously, advisedly and maliciously plot, contrive and endeavour, First, to stir and raise force, and levy War against his Highness the Lord Protector, and the Commonwealth, to subvert and alter the Government of the same: Secondly, that he did traitorously, advisedly and maliciously Declare, Publish and Promote CHARLES STUART to be King of England, Scotland, and Ireland: Thirdly, that he did traitorously, advisedly and maliciously hold Intelligence and Correspondence with Charles Stuart: and that he did declare these Treasons by overt Act, that is to say, by conferring with John Stapely and Henry Mallory how to effect the same; and did deliver several Commissions from Charles Stuart to several Persons, and this contrary to the Statute. To this Charge of High-Treason the Prisoner pleads not Guilty. We are ready, my Lord, to call our Witnesses to prove him Guilty of these several Crimes, and with leave of the Court we shall call our Witnesses.  M. ATTORN. GEN. 
I wish Mr Mordaunt had done this before, and made himself capable of more Favour.  
Mr Mordaunt then desired to have pen, ink and paper: which was granted him.  
John Stapely and Anthony Stapely were then called.  
John Stapely sworn.  M. ATTORN. GEN. 
We produce this Gentleman (I suppose he is well known to the Prisoner) to prove the Charge. I desire he may declare what he knows.  M. ATTORN▪ GEN. 
What do you know concerning the discourses of Mr Mordaunt with you, touching the bringing in of Charles Stuart?  JO. STAP. 
I have been in Mr mordant's company several times, and what I can say will not be much. Mr Mordaunt did once tell me there was such a Design as the bringing in of the King, and he did ask me if I did not know of such a thing. I told him no. He was pleased to tell me somewhat of it. I asked him if he was engaged in it. He told me he was not.  M. ATTORN. GEN. 
What did he tell you concerning his being Entrusted by the King therein?  
Here the Witness spoke so low the Prisoner heard him not, but desired Mr Stapely to turn his face to him, that the sound of his words might be heard.  JO. STAP. 
He told me the King wrote to him to speak to his friends that they would be ready to Assist him when he should come into England with Force, which he told me was with 7000 men: this was the chief of all.  M. ATTORN. GEN. 
Did he not say that he had Commissions from the King?  JO. STAP. 
He did not tell me so, but I have heard him say others had had Commissions; two other Gentlemen in Surrey.  M. ATTORN. GEN. 
Did he not encourage you thereunto? what Arguments did he use?  J. STAP. 
He spoke to me of it several times.  M. ATTORN. GEN. 
After what manner?  JO. STAP. 
Only in commendation of the thing. I heard him say that if there were a necessity, Surrey folks would come into Sussex to assist them.  M. ATTORN. GEN. 
Who was present at any of these discourses?  JO. STAP. 
There was none but myself and him.  M. ATTORN. GEN. 
At what Place, and at what Time?  JO. STAP. 
Near his own House at several times. I have told you the main of the Discourses.  M. MORD. 
Mr Stapely, about what Time was this?  JO. STAP. 
Above a year since.  M. MORD. 
Mr Stapely, at what Place was the Encouragement made?  JO. STAP. 
I do not know what he means by Encouragement; he only told me of it.  M. MORD. 
I desire to know when I told you that I had received a Letter to encourage my friends from beyond Sea, and who was by.  J. STAP. 
There was no body by.  L. PRES. 
About what time did he tell you of that Letter?  JO. STAP. 
About half a year since.  L. PRES. 
Who was by?  JO. STAP. 
No body, my Lord.  M. SOL. ELLIS. 
Did he tell you it was the King that wrote to him, and therefore it was just to assist him?  JO. STAP. 
I think I heard him say so, I cannot take my Oath of it.  L. PRES. 
Did he tell you what considerable persons were concerned?  JO. STAP. 
I have heard him speak of some persons that were engaged in this Design; Sir Francis Vincent, and one Brown, and (I think) Sir William Waller.  L. PRES. 
When?  JO. STAP. 
Above a year since, it was since the Parliament.  M. MORD. 
My Lord, we may all see the strange effects of fear; these worthy Gentlemen mentioned by Mr Stapely have cleared themselves fully to the Protector: And what in his Examination at White-Hall he was forced to say, I blame him not for; but to mention them here, unless it were to their honours, I know not at what it tends, and need not justify them any further.  
Anthony Stapely sworn.  M. ATTORN. GEN. 
What discourse have you had with Mr Mordaunt touching Charles Stuart?  ANT. STAP. 
We were about a quarter of a year ago at the Halfmoon Tavern over against the New Exchange; at that time there was no discourse about the business at all. After that he was speaking to me about the Times, losses of Privileges, great Taxations, etc. wherein I agreed with him, and wished they might be better. I asked him if there was any way to help it. He said, Yea, and said that Charles Stuart was intending for England, and that would be a fair opportunity to redress all Grievances. At Berkshire-House there he was pleased to inquire concerning the affairs of Sussex, and in what preparation they were, in case the King of Scots should land. I told him, I did not know, I had not been in the Country lately; I did believe that there would not be an appearance suitable to his expectation. He told me something concerning Surrey, that there was a considerable strength there ready to assist us in Sussex, and join with us when any such thing should happen; he did say something about delivering out four Commissions, three for Horse, and one for Foot, to whom I know not; I dare not swear it, but it is to the best of my remembrance.  M. ATTORN. GEN. 
What discourse passed between you at the Halfmoon Tavern about March last?  ANT. STAP. 
It was the day that the Cavalier party were to depart the City: there was Captain Mallory, myself, and this Gentleman Mr Mordaunt, and then he spoke again concerning Sussex; that the King of Scots coming was suddenly expected; and desired to know in what readiness we were. I told him I could not tell, but I did believe that things would be in as great a forwardness as the times would permit. It was agreed upon, that some of our Country should meet Mr Mordaunt at Crawly in Surrey upon the Tuesday following.  M. ATTORN. GEN. 
What was the end of your meeting?  ANT. STAP. 
It was to consider further how things might be carried on as to the business of Surrey and Sussex; there was an expectation of the landing of Charles Stuart, and he did say that he heard Charles Stuart was in a readiness. Mr Mallory, myself▪ and Mr Mordaunt were to meet, further to debate of things: I understood it was for the business of the King, but it was not positively so expressed. He asked me how things went on in Sussex. I told him I could not satisfy him. Therefore we told him, there should some of our Countrymen meet him at Crawly to give him an account. He said there was a considerable Force; but I never heard him speak of any number of Horse or Foot in Surrey.  M. MORD. 
Mr Stapely, I desire to know when I spoke to you of this.  ANT. STAP. 
My Lord, it was, I cannot tell the days, but it was suddenly after the breaking up of the Parliament▪ all the discourses were since the breaking up of the last Parliament.  M. MORD. 
I desire to know where I spoke this, and who was by.  ANT. STAP. 
As I take it, the first discover was at Long-Acre, and no body by.  M. MORD. 
I desire to know the time when I met him at the Halfmoon Tavern.  ANT. STAP. 
It was the day set for the departing of the Cavalier Party out of Town.  M. MORD. 
I desire to know who was by.  ANT. STAP. 
Captain Mallory.  M. MORD. 
I desire to know whether I did meet at the place appointed.  ANT. STAP. 
My Brother and M. Mallory did not meet him, because my Brother was sent for to White-Hall.  M. MORD. 
I desire to know the Witnesses to all he says.  ANT. STAP. 
It was all private, only once at the Halfmoon Tavern with Captain Mallory.  M. ATTORN. GEN. 
My Lord, there was mention made of one Captain Mallory, whom we did intend to have as a Witness; he was committed upon this Design, being privy to it: it hath so fallen out, that he is lately escaped: I desire that Mr Serjeant at Arms, Major Ellison, Thomas Tatlock, and William Cappat may be sworn.  
All four sworn▪  
Here the Prisoner sat down during their Examinations.  M. ATTORN. GEN. 
We do produce these Witnesses for this end: Captain Mallory was a Prisoner, and we did intend to make use of him here: but it hath so fallen out, that his guilty Conscience hath made him to fly. Ask these concerning his being in Custody, and endeavour of Escape.  MAJ. ELLISON. 
My Lord, Captain Mallory was in Custody, and a Guard constantly set upon him, which Guard was relieved every twenty four hours. The manner of his Escape I only had by relation. We have used all endeavours to have found him since he was escaped: We did that night send presently to Southwark to Inns there, and laid wait for him, and sent to Captain Mallory's Brother-in-law, where he formerly lay, examined him, but all in vain; where we had any intimation of any relation of his▪ we did send to search for him.  SERJ. DENDY. 
My Lord, upon the 28th of May last, since the Escape of Captain Mallory I received a Warrant from the Council, commanding me to use all diligence for apprehending of Captain Mallory. I have accordingly endeavoured it: Not knowing his Relations, I did not speak to them: I have used all means I could, but cannot find him.  THO. TATLOCK. 
My Lord, Captain Mallory went away about nine a clock at night: he went away in a black Suit and Cloak.  WILL. CAPPUT. 
All that I know, my Lord, is, that Captain Mallory was a Prisoner, and changed his habit and hair, went away, and left money in the window to pay for his Lodging.  M. ATTORN. GEN. 
My Lord, the intention is, to show you Captain Mallory was a Prisoner, is escaped, and what means have been used for his apprehension. Officer, pray swear Mr Scobel.  
Mr Scobel sworn.  M. SCOBEL. 
My Lord, Captain Mallory gave Information upon Oath before my Lord Goff and myself, upon the one and twentieth of April last, and upon his Oath did inform us, that about the beginning of March last Captain Anthony Stapely and himself being at the Halfmoon Tavern, John Mordaunt Esquire being upon the Exchange, was sent for to Mr Stapely, and that he came: thereupon Mr Stapely presented Captain Mallory to Mr Mordaunt, as a Gentleman that was interessed in Charles Stuart's Design, together with Mr Stapely, that was his Brother; he said by that Brother he meant John Stapely Esquire. Thereupon he informed us, that Mr Mordaunt did demand of Captain Mallory, in what readiness the Horse that were to be raised in Sussex were. Mr Mallory informed us, that to that he returned an Answer, that they were not in so good a posture as he did believe Mr John Stapely had represented to Mr Mordaunt, but doubted that it would fall much short. Mallory told us that at that Answer Mr Mordaunt did much wonder, because he said Charles Stuart the King was in a very good posture, and that there was a daily expectation of his coming over with his Forces: And that thereupon Mr Mordaunt did desire, that there might be a meeting in some convenient place between him and Mr Stapely, and such others of that County of Sussex as should be thought fit. My Lord, it was, he said, to this End, that there they might confer together, and understand how the affairs stood in reference to the Counties of Sussex and Surrey, that they might the better assist each other in the intended Insurrection. He did inform us, my Lord, that accordingly it was agreed there should be a meeting upon the Tuesday following at Crawly, and in order thereunto he said that Mr Anthony Stapely and himself did speak with Mr John Stapely, to have a meeting accordingly at Crawly upon the Tuesday following: and they did agree to it, he said, that they should meet with Mr Mordaunt at Crawly; but in the mean time Mr John Stapely being sent for to White-Hall, that meeting was prevented. My Lord, this is all.  L. PRES. 
Mr Mordaunt, would you ask Mr Scobel any Questions?  
Here the Prisoner rose up.  M. SCOBEL. 
I suppose Mr mordant's ask me any Questions will not advantage him, or that my Testimony is disadvantageous to him; for all that I have spoke was the same that Mallory declared to me and my Lord Goff as Justices of the Peace.  M. MORD. 
My Lord, it will not concern me to ask any Question, no testimony being valid against me but what is Viuâ voce; to this, I neither know this Gentleman nor Mr Mallory.  M. ATTORN. GEN. 
Mr Usum Stapely, were you with Captain Mallory and Mr Mordaunt at Dinner together at the Halfmoon?  M. ANT. STAP▪ 
My Lord, Captain Mallory was once there, but not at Dinner.  M. SOL. ELLIS. 
The Attorney General hath exhibited a Charge of High-Treason against the Prisoner at the Bar, that was to raise Force against the Government, and publish Charles Stuart to be King, and hold Correspondence with him.  
Here the Prisoner made a little pause, and looked on his Papers, which he had just written on the Bar. His Defence was in these words:  M. MORD. 
My Lord, you have heard the Witnesses. The first Gentleman, Mr John Stapely, was pleased to urge against me that I said the King— [Here he was interrupted. The Precedent answers, You mean Charles Stuart]— writ to me to engage my friends; but said not that he saw the Letter, or that any one was by; he did not name the Time or Place, but at random, but that I said so. Being asked about Commissions, he denies that I told him I either had Commissions, or delivered any. He says I gave him Encouragement to this Engagement, or what he calls it I know not: but he doth not say what kind of Encouragement it was; he doth not say I promised him Money or Preferment. He says, he heard I engaged two other Gentlemen, Sir Francis Vincent and Col. Brown; but says not that I told him so: and I can make it appear the Information he speaks of was false. He was asked if any were by at these discourses: he said none was by. What can this be, but a bare single Evidence on news, or surmise? He says it was a year or more since. He says I was entrusted by Charles Stuart about the later end of the last Winter. This is the sum of his Accusation.  
I shall now, my Lord, compare his Brothers with his, and how far they are agreeing together let all the World judge, who will find they are no where of a Piece but in their Malice.  
For Mr Anthony Stapely, he urges against me, that at his Lodging I discoursed with him, that the way to help us was to bring in Charles Stuart: which if true, might prove troublesome to me. And for Surrey, I have not been in it this year and half. He says only, to the best of his remembrance▪ I said I had three or four Commissions: but he says, it is to the best of his remembrance▪ but doth not say he saw the Commissions, and will not swear whether they were for Horse or Foot. He says, at the Halfmoon I spoke with him and Mallory; of whom I have already spoke. He says I did not name the number of any Forces that were ready, and that, I said, (not should, but) would come into Sussex, if those Forces were oppressed. He says we agreed to meet the Tuesday following at Crawly with Mr Mallory, but says that I was not there. My Lord, I do not know that place. He says it is in our Country▪ but it is not. He sales it was his Brother John Stapely was to meet me: He says it was not about any positive thing I was to meet there, but in General, to carry on things about the intended Design. He says not that I said it, but that I said I heard that Charles Stuart would land with a considerable Party. He says it was to debate things in General. He said, it was not said about the King, that He was not mentioned, but he supposed it to be so: He says positively, I never spoke of any number of Horse and Foot, or any thing of that kind. I asked him when I first spoke of this; he returned no time, would not say any positive time, but said all was since the breaking up of the Parliament: I asked him who was by; he said, No body, all was private.  
This, my Lord, can amount to no more than one single Testimony: and in Rolph's Case there was a single Witness to each Act; yet Sergeant Mainard being of Counsel, he satisfied the Court, one Witness could not condemn him, though it were for the greatest Treason imaginable, Attempts on the King's Person: and yet this Rolph had Counsel assigned him, and I am refused it.  
He says, the time when we were at the Halfmoon was near the time when those that served the late King were banished. He says positively, I did not meet at the place appointed, and he gives the reason, (a very insufficient one) because his Brother was sent for up: that could not hinder me. He waves his own meeting: he says, all was private.  
How little there is in this Evidence to bring me to such a Tribunal, I leave it to the world, who I am confident will be satisfied, base Fear and Malice in them, and not any Crime of mine, brought me hither: my Innocence makes me confident, and I refer myself to the Court.  M. SOL. ELLIS. 
The Charge is for Levying War to alter the Government, and imbroil us again in a new War, to which he pleads not Guilty. For the proof of this we have offered to you Witnesses: I shall take them in order as the Gentleman did at the Bar.  
John Stapely said, Mr Mordaunt said the King writ to him, to encourage and engage his friends to assist him at his Coming; but says not the Time when this was done. He says he did not see the Letter; but says Mr Mordaunt told him he had a Letter. By all the discourses (because that he says there was no Time) it agrees that they were since the tenth of October 1656. And so it is clear within the Act, and within your Jurisdiction.  
Now see how it was carried on. After he had told him this, how doth he encourage him, in telling him the Justice of the Cause, the Persons engaged therein, and of Sir William Waller? Then, my Lord, he told him, that if the Forces of Sussex were not sufficient, the Surrey Forces would come to assist them, for the coming in of Charles Stuart. This both John and Anthony Stapely say: so that we conceive, under favour, that both John Stapely and Anthony Stapely do agree in most of the Circumstances.  
Anthony Stapely says that Mr Mordaunt came to him, tells him there were great Grievances. ay, says he, but how shall it be remedied? Tells him that Charles Stuart intended to come to England with a great Force, which would redress them. He asked him how the business was in Sussex. He said, it was not in so good a posture as he expected. He said that Surrey Forces should join with Sussex.  
My Lord, I leave it nakedly to you; if we find this to be true, we submit it to you: and Mr Attorney General will pray what his place requires.  M. ATTORN. GEN. 
You have heard the business: this Gentleman hath interposed himself where he was not called: it is a happiness this business was discovered: upon this evidence I leave it to your Justice. Judge as you please: I shall say no more.  M. MORD. 
My Lord, I shall speak to you very short, it is this; That to all this, though it be urged against me by the ablest men of the Law, yet there is but one Witness in a manner, and that differing in many Circumstances— [Here he was interrupted]— My Lord, I am forced to leave it to you, and must remit my Life into your hands, expecting you will remember of what Nation I am, an Englishman: I must leave it to you, and God's will be done.  L. PRES. 
Withdraw the Prisoner.  
The third of June the Prisoner being brought to receive Sentence, the Precedent spoke as followeth:  L. PRES. 
I have now a word to speak to you, Mr Mordaunt: God hath appeared in Justice, and God doth appear in Mercy. As the Lord is Just to them, so he is exceeding Merciful to you: and I may say to you, that God appears to you at this time as he speaks to Sinners in Jesus Christ: for, Sir, he doth clear Sinners in Jesus Christ even when they are Guilty; and so God cleareth you. I will not say you are Guilty, but ask your own Conscience whether you are or no. Sir, bless God as long as you live, and bless my Lord Protector, by whose Authority you are cleared. Sir, I speak no more, but beseech you to speak to God.  
To this the Prisoner made no Answer.  
The Sentence being passed against Sir Henry Slingsby and Doctor Hewet, the Judgement of the Court was declared concerning Master Mordaunt, which in short was,  
That upon consideration of the whole matter, in reference to the Charge against him, and his Plea thereunto, they did adjudge him not Guilty.  
The Number of his Judges were thirty nine, whereof nineteen condemned him, and nineteen acquitted him; the President's voice turned the Scale. The Soldiers were wholly against him, except one. He was the first that ever was acquitted by a High Court of Justice.  
After Sentence pronounced, the Prisoners were guarded back to the Court of Requests; from thence Sr Henry Slingsby and Doctor Hewet were returned to the Tower: And Mr Mordaunt left without Guard in the Chamber, as he was taking leave of his Keeper, and appointing him to come to him about some Expenses in the Tower, the Lieutenant sent to him, to let him know that he was to go back to the Tower with him. Mr Mordaunt refused it, and insisted upon his public Acquitment and clearing, saying, he was tried in vain, if after all his persecution and being found innocent, he was still kept Prisoner. He demanded on what account he was returned back, and whether the Court had not Power to release him. To this he was answered, he was confined by a double Power the Protector had, and was only cleared as he was Protector; but as General he was still his Prisoner: and until he had a Warrant from the Protector directed to him for his Release, he would not free him; he acting as an Officer of the Protector's, not as an Officer of the High Court. Notwithstanding all Mr Mordaunt urged, he took him back in his Coach. The tenth of June he was not released. Being released, he unexpectedly came into Berkshire-House as they were at Supper, & was received with all the affection imaginable by the Countess of Peterburgh his Mother, who was infinitely concerned for him during all his Persecutions, and assisted him in making all the Friends she could. All his Relations there were joyed to see him safe, whom they had so often lamented as lost.  
The Lieutenant, after he was freed, confessed never any man was used so ill; but it was not long of him, but them above, and a French Servant Mr Mordaunt had, who would have betrayed him, and confessed several Instruments and means were used and concealed in order to an Escape. But after a strict search nothing was found, & the Villain imprisoned for an Impostor; though what he told was precisely true.  
He was twice sent for out of the Tower to White-Hall, & was upon Examination till Night, and the subtlest ways used to bring him to Confession: But resolved to know nothing might hurt a third Person, he virtuously stood the shock of Cromwell's fury, and left him, though enraged, in admiration of his Temper and Constancy. And Colonel Goffe., to whom Cromwell committed the last part of his Examination, gave him the Character of a Confident Resolved Cavalier.  
FINIS.