IF that malice which hath brought this affliction upon me could have been contented with ordi­nary and legall prosecution; and if my estate and livelihood were the things only in question, and my good name not sullied with infamous and filthy slanders, I should in all probability rather patiently have sate down under my sufferings, then have been induc'd to lay open my condition unto the World. But since I cannot but be of opinion that many Per­sons both of worth and conscience, content to rest in the first Representations, may by this means be brought to a true and just knowledge of the whole matter, and consequently be reduc'd to the mode­ration [Page 2]of doing what is but just, and that my good Name, (which to an honest man ought to be dearer then life) may be in some measure retrived, I could not but put down as well the true circumstances of my condition, as the violent and passionate proceedings of my prosecutors against me.

I have been these twenty two yeers together Mar­shall of the (Kings Bench, now the) upper Bench Prison by Letters Patents under the great seal of England, wherein as I am inwardly satisfied to have behaved my self uprightly and legally, so till this storme overtook me, I hope it was without infamy or re­proach. But it is the misfortune of such employ­ments as mine, that we must necessarily in doing our offices raise up to our selves enemies. For it is so difficult, if not impossible, to carry our selves even between Creditor and Debtor, that there is no avoid­ing of it, but one of them will be dissatisfied. For if the Debtour be either unruly, or enable to put in secu­rity for his true imprisonment, and so kept safe, he straight crieth out of Restraint, and harsh us [...]ge; if he put in security, and lie in the Rules, or legally go abroad about his occasions with a Keeper, then does the Creditour cry out of too much Liber [...]y, and it may be files for a Bill for an escape. So that let a man carry himself with all the care and circumspecti­on which is possible, he shall be sure to meet with clamours and enemies, and these so much the more, in regard that being persons either in low condition or decayed fortunes, they account it somewhat either of ease or pleasure to reville or vex those whom they look upon as the instruments of their misfortunes.

Yet upon the dissolution of the late Parliament there was an Oder obtained from the new Counsell of Sate, bearing the date the of April 1653. em­powring [...] to enquire into all matters concerning Prisons and Keepers of Prisons; by vertue whereof, I was sum­moned to appear before them; which I obeyed. But it was a wonder to me (who had been a faithfull Ser­vant to the Parliament in their most doubtfull and difficult times, and who had been constantly in all their commissions, and stuck to them throughout, when others declined them) to see Mr. Fountaine in the Chaire, one of the most active for the late King, and one by whose power and interest at Oxford, my place was given away for disobeying a Warrant of the late Kings, dated the 23 of November 1653. for the discharge of William Cobb. Yet humbly sub­mitting (as it was my duty) to the Authority set over me, and withall weighing with my self the right that all Governours have to call whom they please to their assistance; besides, hoping that Mr. Foun­taine had manifested unto them his hatred to his for­mer Principles and courses, I, with all the sub­mission I could, prepared my self to give the best satisfaction that lay in my power unto that Com­mittee.

The General things they fell upon, were, first, about the List of my Prisoners, a perfect and full copie whereof I delivered in. Next, about the ex­tent and liberty of the Rules of the Prison; by which [Page 4]means (as was alledged) there are many escapes occasioned, and Creditours extreamly delayed, if not ab­solutely defrauded. In answer to this, I shall on­ly say, That the Prison-house being so little, as that it is not able to containe a fourth part of the Priso­ners, my Predecessors in their severall times, and that alwaies by permission and appointment of the Judges, used to lodge them (having first taken secu­rity for their true imprsonment) in the houses about, and that they call the Rules: Which, as it avoids a grand inconvenience (for otherwise every particular man must have a particular keeper, which were a charge to him insupportable, or else the Marshal of the Prison were to maintaine them, and so he should be a loser by his office) so it brings this great ad­vantage and security to the Creditour, that the secu­rity being double the debt, it is thereby strengthened, and the Creditor in better probability to recover his own. For if any escape be made, I am liable to pay the debt, and upon recovery had against me at Law, I either resort to the security, or turne it over to the Creditour; by which means many have re­covered their debts, which probably otherwise they had not done▪ But these Bonds being of late doubted to be within the Stat. 33 H. 6. (though e­ver before held good, and so often adjudged) many have under this pretence, esc [...]ped or violently broke Prison, and thereby both defrauded the Creditors, and occasioned great damages to be given against the Marshall.

And although I have done nothing but what by Law was formerly accustomed and justifiable, yet [Page 5]I desire a difference may be made between voluntary and involuntary escapes, that is to say, escapes hap­pening either by my granting too much liberty, or by negligence or connivence; and those which in despight of the strength of the Prison, the care and diligence of the watchmen, are oftentimes made by desperate persons, groaning under their wants, and impatient of restraint: And therefore I apeal to all the Nation, whether there was yet ever any debt re­covered against me for an escape, which I have not sa­tisfied. And as I cannot be denied the liberty of a true Englishman, to make my best defence when I am impleaded at Law; so if it can be proved that any e­scape hath been wilfull in me, or that I ever took a peny of mony for granting any illegal Liberty, I shall be content to suffer all that which the malice of my adversaries would inflict upon me.

Nor it is enough to say, that the best and most considerable Prisoners should be put into the house, for so the more insolvent should be set at randome, and their debts by this means become desperate. For the security of the others (besides their owne repu­tation) renders them as safe in the Rules, as if they were close; and there is many a man, that will ra­ther be bound in a bond of 1000 l. for a mans true imprisonment, then he bound with him in a bond of 100 l. debt.

But when they came to descend into particular mat­ters, it was very strange to me to see Mr. Fountain (I will not say more like a feed Lawyer, or an enraged enemy, then a sober judge) afford so much counte­nance to all Petitions and complaints that came in [Page 6]against me, to stretch matter further then by Law they would endure. And when I desir'd but Co­pies of Petitions, that I might be the better enabled to make my defence, utterly to refuse me, and put me to answer upon the place: which when I endea­voured to do, as well as the smalness of the time, and my owne surprisal would permit me, I was sundry times reviled, many opprobrious speeches, both against my self and my nearest relations, were pub­lickly uttered, without the least control or check. The Witnesses which I brought in order to my justification, were discountenanced; Mr. Fountain in the mean time privately commenting and glossing his owne conceptions, as I have reason to conceive, and writing them downe, so that things seemed to be carried on (I will not say it was by design, or in­justly) meerly in a manner to compass my ruine.

The Petitions and charges that came in, to look on the number, were a great many, on the weight of them, a very few. Some of them are either so false or inconsiderable, that they are not worth men­tioning here, as I have done otherwhere; some the very stating of my case imediately detects the malice and impertinency. But since that there is one parti­cularly insisted upon as a matter very horrid and ug­ly, I shall not forbear to set it down, that by the estimate of this grand business an account may be taken of the rest.

And the business stands thus: One Iohn Guyet was committed to the upper Bench Prison, Feb. 10. 1650. upon an action of Trespass, at the suit of Edmund Child, but not upon Iudgement [Page 7]or Execution. This Guyet broke the Prison-house, (he being kept in close Prison, together with four o­thers) in the night time, having burned down the win­dow with hot irons, poisoned a fierce Mastisse, and given some Opiate Medicine to the watchman, where­with he laid him in a dead sleep all night; and by that means the said Guyet went away in the night time by ladders of ropes provided for that purpose, as is pro­ved by many witnesses.

Thereupon Child brings his Action of the case against Sir John Lenthal for 579 l. for the escape; and at a tryal at Guidhal had given him by the Jury (who fa [...]l'd not to be his friends at a dead lift) the whole money and damages, 584 l. 13 s. 4 d. For reliefe of this verdict, I preferr'd a Bill in Chancery, to which he put in an unperfect answer, and sate in contempt. Hereupon I mov'd at the Rolls for an Injunction, to stop proceedings a [...] Common Law; which the Master of the Rolls (being satisfied that Child in equity ought to have no more of me, then he could have reco­vered of Guyet at Common Law; and for that a man may lay an action of 10000 l. and yet possibly not recover 100 l. and for that this was the onely course I had left to make Child confess what his debt really was; he having already in his answer confessed 100 l. given by the Verdict more then was due to him) granted; as well for these reasons, as that it had been the constant practice and rule of that Court, to grant injunctions upon the like occasions. And whether I had not reason to seek for reliefe in Chan­cery or no, let any man judge: For though there were abundance of equitable circumstances, which [Page 8]I could not make out at my Tryal; yet by that (a­mong other things) which I said before the Equitie was very evident.

Nay this Case among others was referr'd by the Parliaments Order of the ninteenth of Ian. 1653. to the Justices of the Upper Bench; who upon hearing of the whole matter, declared me not in fault for the escape, and the business therefore onely proper for the Chancery: wherein, being a Court of Equity, I was onely relievable: For certainly the Verdict was a strange one; and the oppression that lyes upon me by the means of it, as heavy, and of as ill example, as can be possible.

This is the great business as to the Execution of my Office; but because the rage of my enemies was not content to stay here, but would strike at my life as well as my livelihood, they have set abroach an old business voted scandalous by the Parliament many yeers ago, and threatned to try me for my life about it. The business stands thus.

George Smithson was committed to the upper Bench Prison, June 13. 1637. where he carried himself with such extream disorder, that in the yeer 1640. he was put into the common goale, where he was not only so troublesome, but also so dangerous to the Priso­ners, that they petitioned for his removall. Here­upon I ordered him every night to be put into the house which is set apart for unruly Prisoners. There continuing his old manners, he was kept for some time, all which space he was fed with victualls sent from my own Table; and the Stewards of the house had express order to take care that he should be con­stantly [Page 9]relieved. He died the 5 of Sept. 1640. A Co­roner sate upon him, a Jury was sworn, six Priso­ners, and six neighbours, who found that Smithson dyed by the visitation of God, and not otherwise or by any other means, as appeares by the Record.

I thank God I have this comfort yet left me, that I can say, I finde not in my heart to thirst after blood. And certainly these people, had they not been blind­ed by their owne malice, and carried on by an ex­tream desire of my ruine, might have found our somewhat more probable to have employ'd their perjuries about, then for to say that I should hazard my Salvation, my Reputation, my Life, the well-being of my Wife and Children, and all this for the blood of a poor Lunatick in Prison, whom till that time I had never known, and from whose death I could draw no advantage.

The very same men that have reviv'd this com­plaint against me before this Committee, brought the same complaint to the Parliament seven or eight years since, at which time it was examined with all industry, scrutiny, earnestness, and integrity possi­ble: all their owne examinations, and those of what witness they could produce, a were taken; and seve­ral persons were admitted by that Committee, in the name and behalf of the City, to take notice of all proceedings. The Committee after a full hearing, made the report to the Parliament, that they found the Accusations false, and prosecuted without cause; whereupon, the 5 of Sept. 1645. they voted, That the complaints were raised and prosecuted without any ground at all, falsely, maliciously, and scandalously, [Page 10] and that William Pendred, Edward Jenks, Hannah his wife, James Freez, and Stephen Pratt were princi­pal instigators and prosecutors of these proccedings, and do deserve severe and exemplary punishment; and according­ly referr'd it to a Committee to consider what exem­plary punishment were fit to be inflicted upon them.

Nor indeed did they vote it malicious without ground, for Freeze & Jenks, with one Magick (who is a great stickler in the business, though not so openly as the other) having been formerly Prisoner in the Upper Bench, and there very unruly and mischievous, the Judges did remove them to Newgate, which first kind­led in them that malice, that hath several times since attempted my life.

Notwithstanding all this, their wickedness was so restless, that though they saw how little they were able to satisfie any just men of the ground of their complaints, they had the impudence to renew the business again at the Committee for the Army; who also upon examination, voted, Aug. 24. 1649. to the same purpose as the Parliament had formerly done; yet after all these repulses they have again brought it to this Committee, where it seems it receives fresh entertainment.

These are the two principal things, out of which, with some other helps (I will not say additions of his owne) Mr. Fountain hath stuff'd his papers, and at last hatch'd a Report. But however it is, though it be not fitting for me to say, that he carried himself there rather like an Adversary, then a Judge; so it should seem he hath a mind, by the carriage of this business, that men should finde him turne from a [Page 11]Judge to a Sollicitor. For this report of his, he very assiduously promotes to the Committee of Parlia­ment; who upon the report, order'd Iuly 25. 1653. that I should appear before the same Committee the next day, which was Tuesday following, at 3 in the after­noon, and bring with me a perfect List of the names, sir-names, places of last aboad of all the prisoners in custody, since the last list in print; together with all Bonds, Statutes, Judgements, Warrants of Atturney to acknowlede judge­ments to Creditors, or others in their behalf.

Hereupon I petitioned the Committe, Tuesday July 26. 1653. in regard I had not received their Or­der till late, and that I was threatned to be arrested for several sums of mony, as I gave my attendance, That I might either be exempted from personal at­tendance, or else be protected from arrests; that I might have copies of reports and Petitions, and be admitted to put in my defence in writing, or by my Counsel. But being expresly commanded to attend the Thursday after, I accordingly did so, and carried in the List; but shew'd them that I could not deliver in the Bonds, by reason they were the onely securi­ty which enabled me to perform several trusts setled out of the Office, and the onely defence I had against all escapes, sued and to be sued. But the Committee press'd me for a positive answer, whether I would deliver them or no; and though I Petitioned for it, would grant me no longer time then the next morn­ing for my positive answer; which I was to deliver to the Chairman by 10 of the clock. According to the appointment, next morning, being Friday, I deli­vered a letter to the Chairman, with a paper of Rea­sons [Page 12]enclosed, why I could not in discretion and safety deliver in the Bonds: both which, since I am so much concerned in them, for better satisfaction follow thus.