THE TRYAL OF Sir Henry Vane Kt. AT The KINGS BENCH Westminster June the 2d and 6th 1662. Together With what he intended to have Spoken the Day of his Sentence June 11. for Arrest of Judgment had he not been interrupted and over-ruled by the Court and his Bill of Exceptions With other Occasional SPEECHES c. Also his SPEECH and PRAYER c. on the Scaffold Printed in the Year 1662. The TRYAL of Sir Henry Vane Knight at the Kings Bench Westminster June the 2d and 6th 1662. READER THou shalt not be detained with any flourishing Preface 'T is true whether we consider the Person or Cause so much might pertinently be said as were the Pen of some ready Writer imployed therein a large Preamble might seem to need but a very short Apolâ—gy if any at all Yet by that time we have well weighed what this Sufferer hath said for himself and left behind him in writing it will appear that there needed not any tongue of the Learned to form up an Introduction thereunto but meerly the hand of a faithful Transcriber of his own Observations in defence of himself and his Cause Rest assured of this thou hast them here fully and clearly represented The necessity of this course for thy information as to the truth of his Case be pleased to consider on these following accounts He was much over-ruled diverted interrupted and cut short in his Plea as to a free and full delivery of his mind upon the whole matter at the Bar by the Judges of the Kings-Bench and by the Kings Counsel He was also denyed the benefit of any Counsel to speak on his behalf And what he did speak at the Bar and on the Scaffold was so disgustful to some that the Books of those that took Notes of what passed all along in both places were carefully called in and suppressed It is therefore altogether unpossible to give thee a full Narrative of all he said or was said to him either in Westminster-Hall or on Tower-Hill The Defendant foreseeing this did most carefully set down in writing the substance of what he intended to enlarge upon the three dayes of his appearance at the Kings-Bench Bar and the day of his Execution Monday June 2. 1662 was the day of his Arraignment Friday June 6. was the day of his Tryal and the Jurors Verdict Wednesday June 11. was the day of his Sentence Saturday June 14. was the day of his Execution on Tower-Hill where limitations were put upon him and the interruptions of him by many hard speeches and disturbing carriages of some that compassed him about upon the Scaffold as also by the sounding of Trumpets in his face to prevent his being heard had many eye and ear witnesses Vpon these considerations I doubt not it will appear undispensably necessary to have given this faithful Transcript of such Papers of his as do contain the most substantial and pleadable grounds of his publick actings any time this twenty years and more as the only means left of giving any tolerable account of the whole matter to thy satisfaction Yet such Information as could be picked up from those that did preserve any Notes taken in Court or at the Scaffold are here also recorded for thy use and that faithfully word for word Chancellor Fortescue doth right worthily commend the Laws of England as the best now extant and in force in any Nation of the world affording if duely administred just outward liberty to the People and securing the meanest from any oppressive and injurious practices of Superiours against them They give also that just Prerogative to Princes that is convenient or truly useful and advantagious for them to have that is to say such as doth not enterfere with the Peoples just Rights the intire and most wary preservation of which as it is the Covenant-duty of the Prince so is it his best security and greatest honour 'T is safer and better for him to be loved and rightly feared by free Subjects than to be feared and hated by injured slaves The main fundamental Liberties of the free People of England are summed up and comprehended in the 29th Chapter of Magna Charta These be the words No freeman shall be taken or imprisoned or be disseized of his Freehold or Liberties or free-customs or be out-lawed or exiled or any otherwise destroyed Nor will we pass upon him or condemn him but by lawful Judgement of his Peers or by the Law of the Land We will sell to no man we will not deny or defer to any man either Justice or Right Lord Chief Justice Cook observes here nine famous branches of the Law of England couched in this short Chapter and discourses upon them to good purpose He saith also that from this Chapter as out of a root many fruitful branches of the Law of England have sprung As for the very leading injury to other wrongings of the Subject to wit the restraint or imprisonment of his person so curious and tender is the Law in this point that sayes Cook no man is to be attached arrested taken or restrained of his liberty by petition or suggestion to the King or to his Council unless it be by Indictment or Presentment of good and lawful men of the neighbourhood where such deeds be done This great Charter of Englands Liberties made 9 Hen. 3. and set in the front of all succeeding Statute-Laws or Acts of Parliament as the Standard Touch-stone or Jury for them to be tryed by hath been ratified by about two and thirty Parliaments and the Petition of Right 3. Caroli The two most famous Ratifications hereof entituled Confirmationes Chartarum Articuli super Chartas were made 25 and 28 of Edw. 1. All this stir about the great Charter some conceive very needless seeing that therein are contained those fundamental Laws or Liberties of the Nation which are so undeniably consonant to the Law of Nature or Light of Reason that Parliaments themselves ought not to abrogate but preserve them Even Parliaments may seem to be bounded in their Legislative Power and Jurisdiction by divine Equity and Reason which is an eternal and therefore unalterable Law Hence is it that an Act of Parliament that is evidently against common Right or Reason is null and void in it self without more ado Suppose a Parliament by their Act should constitute a man Judge in his own cause give him a meer Arbitrary power such Act would be in it self void This is declared to be the ground of that exemplary Justice done upon Empson and Dudley as acting contrary to the Peoples Liberties in Magna Charta whose Case is very memorable in this point For though they gratified Hen. 7th in what they did and had an Act of Parliament for their Warrant made the 11th of his Reign yet met they with their due reward from the hands of Justice that Act being against Equity and common Reason and so no justifiable ground or apology for those infinit Abuses and
Oppressions of the People they were found guilty of The Statute under colour whereof they acted ran to this effect Be it enacted that the Justices of the Assizes and Justices of the Peace upon Information for the King before them to be made have full power and authority by their discretion to hear and determine all offences and contempts Having this ground they proceeded against the People upon meer Information in the execution of Penal Laws without any Indictment or Presentment by good and lawful men but only by their own Promoters or Informers contrary to the 29th of Magna Charta which requires That no free-man be proceeded against but by lawful Judgment of his Peers or by the Law of the Land Secondly This Act allowed them to hear and determine arbitrarily by their own discretion which is not according to the Law and Custom of England And Cook sayes 't is the worst and most aggravated oppression of all that is done under the colour of Law or disguise of Justice Such a Statute or Act of Parliament is not only against the light of Reason but against the express letter of unrepealed Statute-Law 42. Edw. 3. 1. It is assented and accorded That the great Charter and the Charter of Forest be holden and kept in all points and if any Statute be made to the contrary that shall be holden for none This also is consonant to the first chapter of the great Charter it self made 9. Hen. 3. We have granted to all the free-men of our Realm these Liberties under-written to have and to hold to them and their heirs of Us and our Heirs for ever But what if this great Charter it self had never been made had England been to seek for righteous Laws and just Liberties nothing lesse The same Liberties and Laws were ratified before that in the great Charter made the seventeenth year of King John and mentioned among others by Matthew Paris And to what yet amounted the matter of all these Grants but what the Kings themselves were bound before to observe by their Coronation Oaths as the antient fundamental Laws or Customs of this Land This we may find in Mr. Lambard's Translation of the Saxon Laws from the time of King Ina who began anno 712 to Hen. 1. who began 1100. Amongst the Saxons King Alfred is reputed the most famous and learned Compiler of our Laws which were still handed along from one King to another as the unalterable Customs of the Kingdom In the 17th chapter of Edward the Confessor's Laws The mention of the duty of a King which if not performed nec nomen Regis in eo constabit is remarkable And Mr. Lambard tells us that even William the Conqueror did ratifie and observe the same Laws that his kinsman Edward the Confessor did as obliged by his Coronation Oath So then neither the great Charter in King John's time nor that of 9. Hen. 3. were properly a new Body of Law but a Declaration of the antient fundamental Laws Rights and Liberties of this Nation in Brittish Saxon Danish and Norman times before This Cook in his Proem to the second part of his Institutes observes where he notes also that this Charter is not called great for quantity of words a sheet of Paper will contain it but for the great importance and weight of its matter Through the advice of Hubert de Burgo Chief Justice of England Edward the first in the eleventh year of his Reign did in a Council held at Oxford unjustly cancel this great Charter and that of Forest Hubert therefore was justly sentenc'd according to Law by his Peers in open Parliament Then 25 Ed. 1. The Statute called Confirmationes Charrarum was made in the first chapter whereof the Mag. Charta is peculiarly called the Common Law 25. Ed. 1. cap. 2. Any Judgment given contrary to the said Charter is to be undone and holden for naught And cap. 4. Any that by word deed or counsel go contrary to the said Charter are to be excommunicated by the Bishops and the Arch-Bishops of Canterbury and York are bound to compel the other Bishops to denounce sentence accordingly in case of their remisness or neglect The next famous sticklers to Hubert de Burgo for Arbitrary Domination were the two Spencers father and son by whose rash and evil counsel sayes Cook Edward the second was seduced to break the Great Charter and they were banished for their pains By these passages we may observe how the People would still be strugling in and by their Representatives for their Legal Rights and Just Liberties to obviate the Encroachers whereof they procured several new Ratifications of their old Laws which were indeed in themselves unrepealable even by Parliaments if they will act as men and not contradict the Law of their own Reason and of the common Reason of all mankind By 25 Ed. 1. cap. 1. Justices Sheriffs Majors and other Ministers that have the Laws of the Land to guide them are required to allow the said Charter to be pleaded in all its points and in all causes that shall come before them in Judgment This is a clause sayes Cook worthy to be written in letters of gold That the Laws to be the Judges guides and therefore not the Judges the guides of the Laws by their arbitrary glosses which never yet misguided any that certainly knew and truly followed them In consonancy herewith the Spaniard sayes Of all the three learned Professions The Lawyer is the only letter'd man his business and duty being to follow the plain literal construction of the Law as his guide in giving Judgment Pretence of mystery here carries in the bowels of it intents or at least a deep suspition of arbitrary domination The mind of the Law is not subject to be clouded disturbed or perverted by passion or interest 'T is far otherwise with Judges therefore 't is fitter and safer the Law should guide them than they the Law Cook on the last mentioned Statute affirms That this great Charter and the Charter of Forest are properly the Common Law of this Land or the Law that is common to all the People thereof 2 Ed. 3. cap. 8. Exact care is taken that no Commands by the Great or Little Seal shall come to disturb or delay Common Right Or if such Commands come the Justices are not thereby to leave to do Right in any point So 14 Ed. 3. 14. 11 Ric. 2. 10. The Judges Oath 18 Ed. 3. 7 runs thus If any force come to disturb the execution of the Common Law ye shall cause their bodies to be arrested and put into Prison Ye shall deny no man Right by the King's Letters nor counsel the King any thing that may turn to his dammage or disherison The late King in his Declaration at Newmarket 1641 acknowledged the Law to be the Rule of his Power And his Majesty that now is in his Speech to both Houses the 19th of May last said excellently The good old Rules of Law are
The Parliament who appointed the Council must be much more unwarrantable And here he offered these points to be considered and pray'd earnestly to have Counsel assigned him to speak to them 1. Whether the collective body of the Parliament can be impeached of High Treason 2. Whether any person acting by Authority of Parliament can so long as he acteth by that Authority commit Treason 3. Whether matters acted by that Authority can be called in question in an inferiour Court 4. Whether a King de jure and out of possession can have Treason committed against him he not being King de facto and in actual possession and pray'd it might be argued by Counsel 5. Whether matters done in Southwark in another County may be given in evidence to a Middlesex Jury As to the last Exception the Court said That he was indicted for compassing and imagining the King's Death in Middlesex and any overt act to prove this Imagination may be given in evidence wheresoever it be acted To which Sir Hen. Vane prayed the benefit of a Bill of Exception upon the Statute of Westminster 2. cap. 31. and prayed that the Justices might seal it which they all refused and held it lay not in any case of the Crown The King's Counsel desired he might call his Witnesses if any he had for if they once came to reply to him he must then be silent and consented that if it would aid him they would allow his Actings to be in the Name and by the Authority of the Council of State and the Actings of the Council of State to be by Authority of what he called a Parliament Sir Hen. Vane replyed Then what I acted in the Council of State and Committee of Safety constituted by the Parliament to endure for eight dayes you will allow me Then you must prove that I ever acted in the other Council of State after the Parliament was turned out Then the King's Counsel produced a Warrant dated Novemb. 3. 1659 which was sent in pursuance of an Order of the Committee of Safety by Sir Hen. Vane as Treasurer of the Navie This Warrant was for the sending of divers Arms Northwards after Mr. Lambert who was gone down to oppose the now Duke of Albemarle Sir Hen. Vane produced Will Angel Brisco Middleton c. Officers of that Regiment which went under his name who having recourse unto him for Orders about Octob. 1659 he bad them desist and declared his dis-satisfaction in their proceedings and this after their several importunities to have Orders from him And thus he closed his Defence FYNCH Sollicitor As to pretence of the power of Parliament It is to be known that it was not the eighth part of the House of Commons such as were let in to do all that hath been complained and the acting under Authority of such an End of a Parliament under such a Violation was no Excuse but an Aggravation but that the Parliament was in Law ended by the death of the late King notwithstanding that Act of 17. Caroli primi appears thus First The King 's Writ for a Parliament is ad tractandum nobiscum which is intended as well of the natural capacity of the King as of his politick Secondly 'T is absurd to say that the Acts of Parliament of King Charles the first should be his Acts in the time of King Charles the second Thirdly A Commission of Sewers enacted to be on foot for ten years expires by the death of the King and the authority of the Commissioners is at an end Fourthly It is not possible for one King to impose a Parliament upon a successor So much for his acting by colour of authority of Parliament And as to the Question Whether an House of Parliament can commit Treason If they depart from that Allegiance which they have sworn at their first meeting they are impeachable for it As to a Co-ordination in the Parliament he denied it As to the Question Whether the King being out of actual possession can have Treason committed against him he affirmed it And said otherwise if Rebellion should be so prosperous as to depose or oppress the King in Battel the Offenders are not to be called in question because they prevailed He said it was the Plea of Watson the Jesuite who being Indicted for compassing the death of King James in Scotland after he was declared King of England and before his actual entring into this Realm made this Defence That the King was never in possession of the Crown Windam Justice As to the Act of 17. Caroli and the Preamble of that Act so much insisted upon by the Prisoner 1. He held that the Parliament had not greater Authority by it but were onely made more durable than other Parliaments have been but he held that the Parliament was absolutely dissolved by the death of the King and put this case If it should be enacted that such a Marriage should continue till it was dissolved by Act of Parliament If one dies it is a determination of it in Fact so as no man can say but it is absolutely dissolved 2. It must continue in the degree and dignity of a Parliament If the House be under a force and some kept out some let in to serve a Turn what-ever they act is a Nullity in Law For Freedom is the principal essence and honour of a Parliament yet though the House be under a Force the House is not dissolved by such Force but the proceedings are to be suspended till it require its former Liberty and this as well by the Common Law as by the Civil and Canon Laws of all other Countries 3. The Parliament is the King 's great Council The Peers are Consiliarii nati If they be forc'd away or laid aside as here they were all the rest is but Magni Nominis Umbra Twisden held the same opinion That it is not the sitting of a few Members within those Walls that will continue it a Parliament And though another Parliament a great many years after the Kings death declared it to be at an end yet that Act was but Declaration it was at an end before Whether a Parliament may commit Treason is not the Question but Whether a few of the House shutting out their Fellows and usurping the Government were not Traitors Foster held the same opinion and said The distinction between the Politick and Natural capacity of the King was the Treason of the two Spencers That Priviledge of the Parliament is no shelter for breach of the Peace much less for Treason Twisden added That to compass the Death of the King as a natural person was Treason to compass his Death in his Politick capacity as to depose him was Treason and both provided for by the Act of 25. Ed. 3. That in the same instant the late King expired in the very same his now Majesty was King de facto and affirmed the cases of Watson and Cleark 1. Jac. If an Army be raised against the King
and the King is slain in the battel This Treason is questionable by the Successor as Stonies Case is in Dyer Thus ended the questions of Law proposed The Sollicitor spake after to the Jury concerning the Fact which after they withdrew to consider and being withdrawn about half an hour returned with their Verdict which being delivered by the Foreman in the name of his fellows with their consent found the Prisoner guilty of High Treason from Januar. 30. 1648. They not only found him guilty according to the Indictment which was laid for what the Prisoner did 1659 but for a long series of High Treason as they reckon from Jan. 30. 1648. By which it may appear they were a well-prepared Jury for their work The Judges oft if not alwayes pretend that the Jury is to pass Verdict only as to matter of Fact according to the Evidence given by the Witnesses thereof But a general Verdict evidently involves both that he is guilty of such fact and that the fact is Treason as they in this Verdict openly undertake to determine taking in the full sence of the Indictment and much more Unless a Jury distinguish themselves out of this usually imposed snare by giving a special Verdict concerning the Fact only they undeniably have a share with their Tutors and Instructors in the shedding of innocent blood in case matter of Law be wrongfully stated For a Jury to resolve a Case of Law that so eminent a Subjects life was concern'd in and that in less than half an hour which never yet came before any Bench of Judicature in England may seem a very strange and bold adventure But Reader How far this falls short of a full Account of all that was spoken by the Prisoner though much interrupted by the King's Bench and Counsel in those ten hours which on this day of his Tryal he stood at the Bar pleading and answering for his Life and the Cause he had with many thousands been engaged in I leave to thee to imagine till a fuller and compleater Account thereof can be obtained than is yet come to hand This was remarkable That never being indulg'd the liberty of any repose to his body all that while which indeed he asked not nor receiving any creature-refreshings though sent him for his support yea and though after all his most rational Plea in his Defence the Jury gave their Verdict against his Life he came chearfully and pleasantly from the Bar as thought worthy to suffer for the Name of Christ and was so raised and full of rejoycing that evening at the place of his confinement in the Tower that he was a wonder to any that were about him This spiritual rejoycing in Christ Jesus and his heavenly raisedness of spirit increased more and more to the very moment of his death insomuch that meer strangers to his person yea very foreigners wondred at his triumphant dissolution The true Copy of the Prisoner's own Papers containing the substance of what he pleaded on the said day of his Tryal June 6. Memorandums as to my main Defence in relation to matter of Fact and as a Narrative thereof THat without any seeking of mine I was chosen by Writ under the Great Seal to serve as Burgess for the Town of Kingston upon Hull in the Parliament that sate down on the third of Novemb. 1640. and having in pursuance thereof taken my seat in the said Parliament I was obliged by Law to give my attendance upon the said Trust as well as upon grounds of Duty and Conscience The said Parliament was not onely called and assembled after the usual manner and had the Power and Priviledges incident to that high Court but was by express Statute and Consent of the three Estates so constituted as to its Continuance Adjournment Prorogation and Dissolution that in none of these particulars they were subject to alteration but by their own common Assent declared by Act of Parliament to be passed by themselves for that purpose with the Royal Assent In the Preamble to the Act for continuance of the said Parliament these words are contained Whereas great sums of Money must of necessity be speedily advanced and provided for the relief of his Majesties Army and People in the Northern parts of this Realm and for preventing the imminent danger this Kingdom is in and for supply of his Majesties present and urgent occasions which cannot be so timely effected as is requisit without Credit for raising the said Moneys which Credit cannot be obtained until such obstacles be first removed as are occasioned by fears jealousies and apprehensions of divers his Majesties loyal Subjects That this present Parliament may be Adjourned Prorogued or Dissolved before Justice shall be duely executed upon Delinquents Publick Grievances redressed a firm Peace between the two Nations of England and Scotland concluded and before sufficient Provision be made for the repayment of the said Moneys so to be raised c. By all which the very work that was between the three Estates agreed to be done for the Good and Safety of the Kingdom was in sundry particulars declared and expressed and not only so but as is acknowledged by the late King himself in his Answer to the nineteen Propositions The Power which thereby was legally placed in both Houses was more than sufficient to prevent and restrain Tyranny So that by what hath been shewed the Law it self is with me and for me enjoyning my continued attendance on the Trust which by this means was committed to me and authorized me in particular to effect the things contained in the said Preamble and to act in all matters belonging to the high Court of Parliament for the Good and Safety of the Kingdom in time of imminent danger I had been liable to great punishment by the Law for dis-attendance and deserting my station therein till lawfully or by force dismissed there-from and this whatever occasions others might have by a voluntary or forc'd departure from attendance upon that Trust The actions therefore done by me in this capacity and according to the Law Priviledges Customs and Power of Parliament and that such a one as was thus extraordinarily constituted neither are nor can be brought within the Statute of 25. Ed. 3. cap. 2. nor are to be questioned tried much less judged and sentenc'd in any inferior Court Nay so far is it from this that by a Declaration and Resolution of Parliament Aug. 13. 1642 it is adjudged to be committing Treason in the highest degree to bring both or either Houses of Parliament under that or such like Imputations Nor till of late have I ever heard but that those who took the Judgment of Parliament for their rule and guide however tortuous or erroneous it might afterwards be accounted in succeeding times and they that acted by and under the countenance of their declared Judgments Orders or Ordinances ever acknowledged binding during the sitting of the Parliament were safe and indempnified from all punishment And
the Parliament to take an Oath to give my approbation ex post facto to what was done I utterly refused and would not accept of sitting in the Council of State upon those terms but occasioned a new Oath to be drawn wherein that was omitted Hereupon many of the Council of State sate that would not take the other In like manner The Resolutions and Votes for changing the Government into a Commonwealth or Free-State were passed some weeks before my return to Parliament Yet afterwards so far as I judged the same consonant to the principles and grounds declared in the Laws of England for upholding that Political Power which hath given the rise and introduction in this Nation to Monarchy it self by the account of antient Writers I conceived it my duty as the state of things did then appear to me notwithstanding the said Alteration made to keep my station in Parliament and to perform my Allegiance therein to King and Kingdom under the Powers then regnant upon my principles before declared yeelding obedience to their Authority and Commands And having received Trust in reference to the safety and preservation of the Kingdom in those times of imminent danger both within and without I did conscientiously hold my self obliged to be true and faithful therein This I did upon a publick account not daring to quit my station in Parliament by vertue of my first Writ Nor was it for any private or gainful ends to profit my self or enrich my Relations This may appear as well by the great Debt I have contracted as by the destitute condition my many Children are in as to any provision made for them And I do publickly challenge all persons whatsoever that can give information of any Bribes or covert wayes used by me during the whole time of my publick acting Therefore I hope it will be evident to the Consciences of the Jury that what I have done hath been upon principles of Integrity Honour Justice Reason and Conscience and not as is suggested in the Indictment by instigation of the Devil or want of the fear of God A second great Change that happened upon the Constitution of the Parliament and in them of the very Kingdom it self and the Laws thereof to the plucking up the Liberties of it by the very roots and the introducing of an Arbitrary Regal Power under the name of Protector by force and the Law of the Sword was the Usurpation of Cromwel which I opposed from the beginning to the end to that degree of suffering and with that constancy that well near had cost me not only the loss of my Estate but of my very Life if he might have had his will which a higher than he hindred Yet I did remain a Prisoner under great hardship four months in an Island by his Orders Hereby That which I have asserted is most undeniably evident as to the true grounds and ends of my actions all along that were against Usurpation on the one hand or such extraordinary Actings on the other as I doubted the Laws might not warrant or indempnifie unless I were inforced thereunto by an over-ruling and inevitable necessity The third considerable Change was the total disappointing and removing of the said Usurpation and the returning again of the Members of Parliament to the exercise of their primitive and original Trust for the good and safety of the Kingdom so far as the state of the times would then permit them being so much as they were under the power of an Army that for so long a time had influenced the Government Towards the recovery therefore of things again into their own channel and upon the legal Root of the Peoples Liberties to wit their Common Consent in Parliament given by their own Deputies and Trustees I held it my duty to be again acting in publick Affairs in the capacity of a Member of the said Parliament then re-entred upon the actual Exercise of their former Power or at least strugling for it In this season I had the opportunity of declaring my true intentions as to the Government upon occasion of refusing the Oath of Abjuration before mentioned And whereas I am charged with keeping out his Majesty that now is from exercising his Regal Power or Royal Authority in this his Kingdom through the ill-will born me by that part of the Parliament then sitting I was discharg'd from being a Member thereof about Jan. 9. 1659 and by many of them was charged or at least strongly suspected to be a Royalist Yea I was not only discharged from my attendance in Parliament but confined as a prisoner at mine own house some time before there was any visible power in the Nation that thought it seasonable to own the King's Interest And I hope my sitting still will not be imputed as a failer of duty in the condition of a prisoner and those circumstances I then was in This I can say that from the time I saw his Majesties Declarations from Breda declaring his Intentions and Resolutions as to his Return to take upon him the actual Exercise of his Regal Office in England and to indempnifie all those that had been Actors in the late Differences and Wars as in the said Declaration doth appear I resolved not to avoid any publick question if called thereto as relying on mine own Innocency and his Majesties declared Favour as beforesaid And for the future I determined to demean my self with that inoffensiveness and agreeableness to my duty as to give no just matter of new provocation to his Majesty in his Government All this on my part hath been punctually observed whatever my sufferings have been Nor am I willing in the least to harbour any discouraging thoughts in my mind as to his Majesties Generosity and Favour towards me who have been faithfull to the Trust I was engaged in without any malicious intentions against his Majesty his Crown or Dignity as before hath been shewed And I am desirous for the future to walk peaceably and blamelesly Whatever therefore my personal sufferings have been since his Majesties Restoration I rather impute them to the false reports and calumnies of mine enemies and misjudgers of my actions than reckon them as any thing that hath proceeded from his Majesties proper inclination whose favour and clemency I have had just reason with all humility to acknowledge First with regard to his Majesties Speech made the 27th of July 1660 in the House of Peers wherein his Majesty expresly declared it to be no intention of his that a person under my circumstances should be excepted out of the Act of Indempnity either for Life or Estate And secondly however it was the Parliaments pleasure my self unheard though then in the Tower and ready to have been brought before them to except me out of the common Indempnity and subject me to question for my actions yet they themselves of their own accord admitting the possibility that in such questioning of me I might be attainted made
and Reason out of his hands by force or noise for half an hour or more they finally refused to hear his following Plea and Reasons for an Arrest of Judgment or forbearing their sudden and rash proceeding to Sentence They had promised him before Verdict they would hear any thing in that kind he had to offer as they had also before his pleading not guilty promised him Counsel which never was granted neither They drew him on step by step first to plead on his Arraignment-day then to admit the Juries Verdict on his Tryal-day so called for he never owned it for a Legal Tryal to his last breath and after that out comes the Judgement or Sentence of Death against him pronounced by the Lord Chief Justice Forster and that of the worst complexion and most infamous famous circumstances to wit that he should be hang'd drawn and quartered at Tyburn the common Execution-place for Theeves and Robbers But in the Order for his Execution for reasons best known to them that made it the manner of his death was altered into a beheading only on Tower-hill to which place they carried him on a Sled drawn with horses a circumstance very singular and never used for those that die there and which he was kept ignorant of till the very time one of the Sheriffs men having that morning a little before told him there was to be no Sled but that he was to walk on foot Some farther Remarques of this last dayes Proceedings of the Court with him besides what is already mentioned received from one that was present and did hear and see all being what he could best remember take as followeth After the customary formalities of the Court The Clerk demanded of Sir Henry Vane what he had to say why Sentence of Death should not be passed upon him Sir Henry Vane first alledged that he had not yet heard the Indictment read in Latine The debate upon this took up some time At length some of the King's Counsel desired that the Prisoner might be satisfied in that point Sir Henry desired that Counsel then might also be assigned him to make Exceptions thereto if they found cause otherwise he valued not the hearing of it read in Latine This was over-ruled by the Court he soon therefore desisted from any further urging it The next thing Sir Henry offered in his own defence was the Bill of Exceptions which he brought with him ready drawn and offered it to the Judges desiring them according to the Statute of Westminst 2. 31. made 13. Ed. 1. to sign it This he urged so home that the Statute was consulted and read in open Court running in favour of the Prisoner to this effect That if any man find himself aggrieved by the proceedings against him before any Justices let him write his Exception and desire the Justices to set their seals to it This Act was made sayes Cook that the party wronged might have a Foundation for a legal Process against the Justices by a Writ of Error having his Exception entred upon Record in the Court where the injury is done which through the Justices over-ruling it they could not before procure so the party grieved was without remedy for whose relief this Statute was made The Justices refusing to set to their seals the party grieved may have a Writ grounded on this Statute commanding them to set their seals to his Exception This Exception extends not only to all Pleas dilatory and peremptory c. but to all Challenges of any Jurors and any material Evidence given to any Jury which by the Court is over-ruled As in this Prisoners Case the Testimony about falsifying of his hand to writings c. was by what was offered to the Jury by Justice Windham Further sayes Cook on this Statute If the Justice or Justices die their Executors or Administrators may be proceeded against for the injury done And if the Judge or Judges deny to seal the Exception the party wronged may in the Writ of Error take Issue thereupon if he can prove by Witnesses the Judge or Judges denied to seal it Notwithstanding all this the Judges over-ruled this Plea also by such interpretation as themselves put upon that Statute to wit that it was not allowable in Criminal Cases for Life This makes the Law less careful for the preservation of a man's Life than any particulars of his Estate in controversies about which this Statute is affirmed by them to hold whereas Life is the greater and innocent Blood when spilt is irreversible as to the matter it cannot be gathered up again the Estate is the lesser and if an erroneous Judgment pass about it 't is reversible upon Traverse Writ of Error or otherwise The Reason they alledged for their pretended Opinion was this That if it be held in Criminal Cases for Life every Felon in Newgate might plead the same and so there would be no Goal-delivery Sir Henry answered his Case was not the Case of common Felons alledging the Grant of his Majesty to the Petition of both Houses for his Life in case he should be attainted There is no need therefore sure said he of fearing the consequence of spinning out the time a little with a person in his circumstances Besides he said he had been a Prisoner two years and never call'd on to give any account of himself and his actions so is it not with Felons which with other considerations may sufficiently evince that there is no need of such hasting his Death He told them withal that he desired not this for his own sake only but for theirs and for posterity that they might on a more leisurely and unprejudiced hearing of what may be said on all hands prevent the bringing of innocent Blood upon themselves and the Land But being in this also over-ruled by the Court say what he could He only desired he might understand whether they would all give it as their Common Judgment they would stand to That what he desired was not his due by the Law By this means they were all put upon it one by one to declare themselves in that point unanimously denying him the benefit of that Act. To the by-standers their chief Reason seemed to be that it had not been practised this hundred or two of years The third thing Sir Henry desired was That the Petition of both Houses with his Majesties Answer thereunto might be read in the Court which after some dispute was concluded to be a thing they were not bound to take notice of not being an Act of Parliament Yet what is any Act of Parliament but a Bill presented with the Petition of both Houses to his Majesty with his Royal Assent thereto upon Publick Record At length they condescended to reade it and that was all The fourth and last thing Sir Henry offered to the consideration of of the Bench was this That in regard there were questions touching matter of Law in his Case which must receive their determination in
is not nor cannot be accountable by way of crime or offence against his Ruler and Soveraign but may do with his own what he please but still at his peril if he use not this his Liberty as he should to the end for which it is given him which is by voluntary and entire resignation to become an obedient Subject unto him who is the Supream Law-giver and Rightful King without possibility of change or defection Unto this right and the lawful exercise and possession of it this Nation did arive by the good providence and gift of God in calling and assembling the Parliament November 3d. 1640. and then continuing their Session by an express Act 17. Car. with power not to be dissolved but by their own consent which was not so much the introducing of a new Law as declaratory of what was Law before according to Man's natural Right in which he was created and of which he was possessed by God the soveraign giver of all things But the passing that said Act of Parliament alone was not that which restored the Nation to their original Right and just Natural Liberty but onely put them in the capacity and possibility of it That which wanted to make out to the Nation a clearness in having and obtaining this their right was the obligation they had put upon themselves and their posterities to their present Soveraign and his Authority which in justice and by the Oathes of Allegiance they were solemnly bound to in the sight of God as well as of Man And therefore unless by the abuse of that office of Trust to that degree as on his part to break the fundamental compact and constitution of Government they could not be set free nor restored to their original Right and first Liberty especially if together with such breach of Trust both parties appeal to God and put it upon the issue of Battel and God give the decision and in consequence thereof that original Right be asserted and possession thereof had and held for some years and then not rightfully lost but treacherously betrayed and given up by those in whom no power was rightfully placed to give up the subjection of the Nation again unto any whatsoever Unto which is to be added that how and when the dissolution of the said Parliament according to Law hath been made is yet unascertained and not particularly declared by reason whereof and by what hath been before shewed the state of the Case on the Subjects part is much altered as to the matter of Right and the Usurpation is now on the other hand there being as is well known two sorts of Usurpers either such as having no right of consent at all unto the Rule they exercise over the Subject or such who under pretence of a Right and Title do claim not by consent but by conquest and power or else hold themselves not obliged to the Fundamental compact and constitution of Government but gain unduely from the Subject by advantages taken through deceit and violence that which is not their own by Law For a rational Man to give up his Reason and Will unto the Judgement and Will of another without which no outward coercive Power can be whose Judgement and Will is not perfectly and unchangeably good and right is unwise and unsafe and by the Law of Nature forbidden And therefore all such gift made by rational men must be conditional either implied or explicite to be followers of their Rulers so far as they are followers of that good and right which is contained in the Law of the Supream Law-giver and no further reserving to themselves in case of such defection and declining of the Rulers actings from the Rule their primitive and original Freedom to resort unto that so they may in such case be as they were before they gave away their subjection unto the Will of another and reserving also the power to have this judged by a meet and competent Judge which is the Reason of the King and Kingdom declared by their Representatives in Parliament that is to say the Delegates of the People in the House of Commons assembled and the Commissioners on the Kings behalf by his own Letters Patents in the House of Peers which two concurring do very far bind the King if not wholly And when these cannot agree but break one from another the Commons in Parliament assembled are ex Officio the Keepers of the Liberties of the Nation and righteous Possessors and Defendors of it against all Usurpers and Usurpations whatsoever by the Laws of England The Valley of Jehoshaphat considered and opened by comparing 2. Chron. 20. with Joel 3. IT was the saying of Austine Nothing falls under our senses or happens in this visible World but is either commanded or permitted from the invisible and unintelligible Court and Pallace of the highest Emperor and universal King who is the chief over all the kings of the earth For although he hath both commanded and permitted a subordinate external Government over Men administred by man for the upholding of Justice in humane Societies and for the peace welfare and safety of men that are made in Gods Image yet he hath not so entirely put the Rule of the whole earth out of his own hands but that in cases of eminent injustice and oppression committed in Provinces States and Kingdomes contrary to his Lawes to their own and the very end of Magistracy which is the conservation of the Peoples just Rights and Liberties He that is higher than the highest amongst men doth regard and will shew by some extraordinary interposition of his that there are higher than they Such a seasonable and signal appearance of God for the Succor and Relief of his People in their greatest Straits and Exigencies when they have no might visible Power or armed Force to undertake the great company and multitude that comes against them nor know what to do save onely to have their eyes towards him is called in Scripture The day of the Lord's Judgement Then the Battel and cause of the Quarrel will appear to be not so much theirs as the Lord's and the frame of their heart will be humble before the Lord believing in the Lord and believing his Prophets for their good success and establishment This Dispensation is very lively described under the Type and by the Name of The Valley of Jehoshaphat as to the Season and Place wherein God will give forth a signal appearance of himself in Judgement on the behalf of his People for a final decision of the Controversie between them and their enemies It Litterally and Typically fell out thus as is at large recorded 2 Chron. 20. By way of allusion to this and upon occasion of the like yea and far greater Extreamities which God's People in the last dayes are to be brought into is that Prophesie Joel 3. for a like yea a far greater and more signal appearance of God for their Deliverance and Rescue in order to