High Courts (xxx) of juftice, the terror of the and them detain, under fecure imprisonment, in the caftle of Jersey, until you fhall receive further orders from us: and, for fo doing, this fhall be your warrant. Given at Whitehall, the 8th of January, 1657. Thefe commitments were voted by the houfe illegal and unjust, and the gentlemen were ordered to be difcharged from their imprifonment.'It appears alfo from the Journal of the fame day, that the committee found, that divers commoners of England had, by illegal warrants, been committed to prifon into the iflands of Jersey, and other the islands belonging to this commonwealth, out of the reach of the Habeas Corpus. Thus we fee that Cromwell, who had oppofed and punished Charles for his illegal acts, became an imitator of him, and, in some of these inftances, went even beyond him: for I queftion whether all Charles's reign can produce fo daring a violation of the right of the fubject, as his imprisoning Maynard and his brethren, for pleading in behalf of Coney their client: nor is there a greater, than the imprifoning and banishing men on his own warrant, and depriving them of the benefit of the laws made for their relief. Vain, indeed, might the unhappy fufferers have faid, were the efforts made against the King, when the effect of them was ftill flavery and oppreffion! (xxx) The high courts of justice. The erection of a high court of justice for the trial of Charles gave rife to many others. When the nature of the fuppofed crime was fuch as fell not under the cognizance of the common law; when the perfons accufed were of a quality which might incline a jury to treat them with compaffion and regard; or when they had been engaged in actions popular, though illegal, it was then thought proper by thofe in power to erect high courts of justice, in order that offenders might not, escape punishment. These courts were conftituted of commiffioners named by the government, who performed the feveral offices of the Royalists, as their enemies were their judges! of judges and juries, and determined concerning the rity of his highnefs the lord protector his perfon, and continuance of the nation in peace and fafety.' In the preamble it is faid, Forafmuch as the profperity and fafety of this nation-very much dependeth, under God, upon the fecurity and preservation of the perfon of his highness; and, for that it hath manifeftly appeared, that divers wicked plots and means() have been of late devifed and laid- to the great endangering his highnefs perfon, and the embroyling this commonwealth in new and inteftine wars and feditions; therefore be it enacted, that if any perfon fhall attempt, compafs or imagine the death of the lord protector, and declare it by open deed; or fhall advifedly and malitioufly proclaim, declare, publish or promote Charles Stuart, or any other perfon claiming from the late King; or fhall aid and affift, hold intelligence with, or contribute money towards the affiftance of the faid Charles Stuart, his brothers or mother, &c. then all and every the offences abovementioned fhall be adjudged to be high treafon : and that in all fuch cafes, and upon all fuch occafions, the lord chancellor, the lord keeper, or lords commiffioners of the great feal of England for the time being, are authorifed and required from time to time, judges!If to all these things we add the by warrant from his highness to iffue out one or more commiffion or commiffions, under the great feal of C England, to cor any feventeen or more of them: which faid commiffioners fhall have authority to hear, examine and determine all matters, crimes and offences aforefaid; and alfo to hear and determine all mifprifions of the treafons in this act • mentioned, and to take order for charging the offender or offenders, with all or any the crimes aforefaid, and for the receiving their perfonal anfwer there'unto; and for examination of witneffes upon oath, and thereupon, or upon the confeffion of the party, or, in default of fuch answer, to proceed to conviction and final fentence, as in cafes of high treafon, and mifprifion of treafon, according to juftice and the merits of the caufe-Commiffioners were alfo appointed for the fame purpofe in Scotland and Ireland. This act was to continue in force unto the end of the laft feffion of the next parliament, and no () Scobel. longer (t). By this laft claufe it feems fufficiently evident that the framers of this law were fenfible of its severity and ill confequences. However, this feemed to give a fanction to it. But what is unreafonable never fatisfies. It was urged that trials by juries were the birthrights of Englishmen; that all trials for treafon were to be had and used only according to the due order and courfe of the common laws of the realm, and not otherwife, upon inqueft and prefentment by the oaths of twelve good and lawful men, upon good and probable evidence and witnefs; and that if any thing be done to the contrary, it shall be void in law, redreffed and holden for error and nought: and if any statute be made to the contrary, that fhall be holden for none. That to proceed against any without legal indictment, prefentment and trial, in the way of the high courts of juftice, was very unequitable; the commiffioners themselves being both grand and petty jury, and the violation of the privileges of (YYY) par in the 2d and judges likewife, if not parties interested, to whom no peremptory or legal challenges could be made; and, finally, that fuch proceedings were contrary to Magna Charta; the petition of right; the declarations of the (a) See the Tryals of parliament and to an article in the inftrument of go- Gerard, vernment which was fworn to by the protector him- Vowel, and felf (u).How good foever thefe pleas might have Dr. Hewet, been, they were not fuffered to be of ufe to the pri- vol. of State foners. Judges are generally well enough fatisfied of Tryals, the authority by which they act, and will not have it Fol. 1730. queftioned. To demur to the jurifdiction, or refuse to answer, is equivalent to the cleareft proof of guilt, and judgment is accordingly given. However, the protector had his end by this method of proceeding. He ⚫ thought it more effectual, fays Whitlock, than the ordi6 nary courfe of tryals at the common law, and would the more terrify the offenders (x):' and terrify it did; rials, p. 673. for, on the erection of the last high court of justice, according to Clarendon, it put all those who knew how liable they themselves were, under a terrible confter⚫ nation. Whitlock would not fit when nominated as a commiffioner, it being, as he fays, against his judgment. This is to his reputation. (YYY) The violation of the privileges of parliament, &c.] Cromwell feems to have had honeft intentions, when he adopted the form of chufing members of parliament, which his old mafters had prefcribed. He ⚫ did not obferve, therefore, the old courfe in fending writs out to all the little boroughs throughout England, which use to send burgeffes (by which method fome fingle counties fend more members to the parlia⚫ment than fix other counties do) he took a more equal way, by appointing more knights for every fhire. to be chofen, and fewer burgeffes; whereby the number of the whole was much leffened; and yet, the 'people being left to their own election, it was not, by him, thought an ill temperament, and was then (x) Memo parliament, fo much and fo juftly com plained (y) Claren- generally' looked upon as an alteration fit to be more warrantably made, and in a better time (y). don, vol. vi, P. 495. Indeed, at firft fight, it appears that very little room was, or could be given in this way, for bribery and corruption, whether from private hands or the publick exchequer. The firft fpeech to the parliament that met September 3, 1654, was calculated to footh the members, as well as give them great hopes from the new government. After having told them what things he had already done, and what a profpect there was, through their means, of advancing the happiness of the nation, the protector added, Having faid this, and, perhaps, omitted many other material things through the frailty of my memory, I fhall exercife plainnefs and freedom with you, in telling you, that I have not spoken these things as 6 one that affumes to himself dominion over you; but . as one that doth refolve to be a fellow fervant with you, to the intereft of thefe great affairs, and to the people of these nations.' The parliament, after fome needful preliminaries, fell upon bufinefs. On the 5th of September it was refolved by them that the houfe do take the matter of the government into debate the first business to morrow morning. On that day it was again refolved upon the queftion, that the fubject-matter of the debate to morrow morning fhall be, whether the house shall approve the government shall be in one fingle perfon and a parliament. Accordingly, on the three following days, this important fubject was debated, wherein the courtiers and republicans exerted (*) Journals, themselves (z). Cromwell was alarmed at these proceedings, and, on the 12th of the fame month, fent a meffage to the parliament, defiring them to meet him in the painted chamber. The members being come, he made, according to his cuftom, a long speech, expreffing his refentment at their conduct, telling them what he expected from them, or else what they niuft truft to. Among others we find the following paf fages. |