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-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
Laws of this Kingdom and have been so adjudged by two Acts of Parliament and ought to suffer as Traitors Die Jovis Octob. 8. 1642. In the Instructions agreed upon by the Lords and Commons about the Militia They declare That the King seduced by wicked Counsel hath raised War against the Parliament and other his good Subjects And by the Judgment and Resolution of both Houses bearing date Aug. 13. 1642 upon occasion of his Majesties Proclamation for suppressing the present Rebellion under the Command of Robert Earl of Essex They do unanimously publish and declare That all they who have advised declared abetted or countenanced or hereafter shall abet and countenance the said Proclamation are Traytors and Enemies to God the King and Kingdom and guilty of the highest degree of Treason that can be committed against the King and Kingdom as that which invites his Majesties Subjects to destroy his Parliament and good People by a Civil War and by that means to bring ruine confusion and perpetual slavery upon the surviving part of a then wretched Kingdom The Law is acknowledged by the King to be the onely Rule by which the People can be iustly governed and that as it is his duty so it shall be his perpetual vigilant care to see to it Therefore he will not suffer either or both Houses by their Voâ—es without or against his Consent to enjoyn any thing that is forbidden by the Law or to forbid any thing that is enjoyned by the Law The King does assert in his Answer to the Houses Petition May 23. 1642. That He is a part of the Parliament which they take upon them to defend and secure and that his Prerogative is a part of and a defence to the Laws of the Land In the Remonstrance of both Houses May 26. 1642. They do assert That if they have made any Precedents this Parliament they have made them for posterity upon the same or better grounds of Reason and Law than those were upon which their Predecessors made any for them and do say That as some Precedents ought not to be Rules for them to follow so none can be limits to bound their Proceedings which may and must vary according to the different condition of times And for the particular with which they were charged of setting forth Declarations to the People who have chosen and entrusted them with all that is dearest to them if there be no example for it in former times They say it is because there never were such Monsters before that attempted to disaffect the People towards a Parliament They further say His Majesties Towns are no more his care than his Kingdom nor his Kingdom than his People who are not so his own that he hath absolute power over them or in them as in his proper Goods and Estate but fiduciary for the Kingdom and in the paramount right of the Kingdom They also acknowledge the Law to be the safeguard and custody of all publick and private Interests They also hold it fit to declare unto the Kingdom whose Honour and Interest is so much concerned in it what is the Priviledge of the great Council of Parliament herein and what is the Obligation that lies upon the Kings of this Realm as to the passing such Bills as are offered to them by both Houses in the name and for the good of the whole Kingdom whereunto they stand engaged both in Conscience and Justice to give their Royal Assent First In Conscience in respect of the Oath that is or ought to be taken by them at their Coronation as well to confirm by their Royal Assent all such good Laws as the People shall chuse whereby to remedy such inconveniencies as the Kingdom may suffer as to keep and protect the Laws already in being The form of the Oath is upon Record and asserted by Books of good authority Unto it relation is had 25 Ed. 3. entitiled The Statute of Provisors of Benefices Hereupon The said Commons prayed our said Lord the King sith the Right of the Crown of England and the Law of the said Realm is such that upon the mischiefs and dammages which happen to this Realm he ought and is bound by his Oath with the accord of his People in Parliament to make Remedy and Law for the removing thereof That it may please him to ordain Remedy This Right thus claimed by the Lords and Commons the King doth not deny in his Answer thereunto Secondly In Justice the Kings are obliged as well as in Conscience in respect of the Trust reposed in them to preserve the Kingdom by the making of new Laws where there shall be need as well as by observing of Laws already made a Kingdom being many times as much exposed to ruine for want of a new Law as by the violation of those that are in being This is a most clear Right not to be denyed but to be as due from his Majesty to his People as his Protection In all Laws framed by both Houses as Petitions of Right they have taken themselves to be so far Judges of the Rights claimed by them That when the King's Answer hath not been in every point fully according to their desire they have still insisted upon their Claim and never given it over till the Answer hath been according to their demand as was done in the late Petition of Right 3. Caroli This shews the two Houses of Parliament are Judge between the King and the People in question of Right as in the Case also of Ship-money and other illegal Taxes and if so why should they not also be Judge in the Cases of the Common Good and Necessity of the Kingdom wherein the Kingdom hath as clear a Right to have the benefit and remedy of the Law as in any other matter saying Pardon and Grants of Favour The Malignant Party are they that not only neglect and despise but labour to undermine the Law under colour of maintaining it They endeavour to destroy the Fountain and Conservators of the Law the Parliament They make other Judges of the Law than what the Law hath appointed They set up other Rules for themselves to walk by than such as are according to Law and dispence with the Subjects obedience to that which the Law calls Authority and to their Determinations and Resolutions to whom the Judgment doth appertain by Law Yea though but private persons they make the Law to be their Rule according to their own understanding only contrary to the Judgment of those that are the competent Judges thereof The King asserts That the Act of Sir John Hotham was levying War against the King by the letter of the Statute 25 Ed. 3. cap. 2. The Houses state the Case and deny it to be within that Statute saying If the letter of that Statute be thought to import this That no War can be levied against the King but what is directed and intended against his Person Or that every levying of Forces for the defence
of Charge comes to be exhibited And as this is the Case of the Person before his appearance at this Bar with respect to the foresaid unequal proceedings towards him and the great disadvantages put upon him and all these as it were in a continued series of Design so the matters and things themselves with which it now appears he is charged in the Indictment make his Case still very extraordinary and unusual involving him in difficulties that are insuperable unless God's own immediate Power do shew it self in working his deliverance The things done are for many years past in a time of Differences between King and Parliament and Wars ensuing thereupon Many extraordinary Changes and Revolutions in the State and Government were necessitated in the course of God's Providence for wise and holy ends of his above the reach of humane wisdom The Authority by which they are done is prejudged The Orders Votes and Resolutions of Parliament are made useless and forbidden to be produced Hereby all manner of defence is taken away from the Prisoner and that which was done according to Law as the Laws of those times were is endeavoured to be made unlawful and so the persons acting according to such Laws are brought to punishment The Judges as hath been shewed are forestalled in their Judgements by the declared sence of Parliaments given ex post facto The Jurors are put upon difficulties never known before for twelve Commoners to judge the Actions of all the Commons of England in whom they are included as to whose Judgment is the right the one or the others and whether their Representatives be trusty The Party indicted is under an incapacity to bring Witnesses as well from the nature of the place wherein the things were done within the Walls of the House as from the shortness of time having heard nothing of his Charge and being kept a close Prisoner to the last day His Solicitors and persons imployed in his Law-businesses were also restrained from him It is also most evident that the matters for which he is questioned being the Product of so many years Agitations of Parliamantary Counsels and Arms cannot be of a single concern nor be reputed as the actions of a private man done of his own head nor therefore come within any of the six Classes of Treason contained in 25. Ed. 3. It is a Case most unusual and never happening before in this Kingdom yet it is alledged in the Indictment to be a levying War within that Statute and so comes to have the name of High Treason put upon it thereby if possible to deprive him of the use and benefit of Counsel as also of competent time to prepare for his Defence and all fitting and requisit means for the clearing of his Innocency Unto this unless some remedy be afforded by the justice candor and favour of this Court it may be better for the Prisoner for ought he yet knows to be immediately destroyed by special Command if nothing else will satisfie without any form of Law as one to whom Quarter after at least two years cool blood is thought fit to be denied in relation to the late Wars This may seem better than under a colour and form of Justice to pretend to give him the benefit of the Law and the King's Courts whose part it is to set free the Innocent upon an Equal and Indifferent Tryal had before them if their Cause will bear it but it is very visible beforehand that all possible means of Defence are taken and withheld from him and Laws are made ex post facto to fore-judge the merit of the Cause the Party being unheard And when he hath said all this that as a rational man does occur to him and is fit for him to represent in all humility to the Court he craves leave further to adde That he stands at this Bar not only as a man and a man clothed with the Priviledges of the most Sovereign Court but as a Christian that hath Faith and reliance in God through whose gracious and wise appointment he is brought into these circumstances and unto this place at this time whose Will he desires to be found resigned up into as well in what He now calls him to suffer as in what He hath called him formerly to act for the good of his Country and of the People of God in it Upon this bottom he blesses the Name of his God he is fearless and knows the issue will be good what ever it prove God's strength may appear in the Prisoner's weakness and the more all things carry the face of certain ruine and destruction unto all that is near and dear to him in this world the more will divine deliverance and salvation appear to the making good of that Scripture That he that is content to lose his life in God's Cause and Way shall save it and he that instead thereof goes about to save his life upon undue terms shall lose it Far be it therefore from me to have knowingly maliciously or wittingly offended the Law rightly understood and asserted much less to have done any thing that is malum per se or that is morally evil This is that I allow not as I am a Man and what I desire with stedfastness to resist as I am a Christian If I can judge any thing of my own Case The true reason of the present difficulties and straits I am in is because I have desired to walk by a just and righteous Rule in all my Actions and not to serve the lusts and passions of men but had rather die than wittingly and deliberately sin against God and transgress his holy Laws or prefer my own private Interest before the Good of the whole Community I relate unto in the Kingdom where the lot of my residence is cast Here follow the chief Observables as to matter of new Argument on the day of his Tryal being Friday June 6. 1662. ON this day the Sheriff returned forty eight Freeholders of the Country of Middlesex After thirty two were challenged by the Prisoner he had a Jury of Twelve men sworn to wit Sir William Roberts junior Sir Christopher Abdy John Stone Henry Carter John Leech Daniel Cole Daniel Browne Thomas Chelsam Thomas Pitts Thomas Vpman Andrew Bent and William Smith The Attorney-General's Speech to the Jury The Indictment is for traiterously imagining and intending c. the Death of the King This very imagination and compassing c. is Treason Yet forasmuch as the intentions of the heart are secret the Law cannot take notice of them till they are declared by Overt Act. Therefore we shall give in Evidence That for the accomplishing of these Intentions the Prisoner sate with others in several Councils or rather Confederacies incroached the Government levied Forces appointed Officers and at last levied open and actual War in the head of a Regiment If any of these crimes be proved it is sufficient to make him guilty within this Indictment
King is acknowledged to have two capacities in him one a natural as he is descended of the Blood Royal of the Realm and the Body natural he hath in this capacity is of the creation of Almighty God and mortal The other is a politick capacity in respect of which he is a Body politick or mystical framed by the policy of man which is immortal and invisible To the King in both these capacities conjoyn'd Allegiance is due that is to say to the natural person of the King accompanied with his politick capacity or the politick appropriated to the natural The politick capacity of the King hath properly no body nor soul for it is framed by the policy of man In all Indictments of Treason when any one does intend the death and destruction of the King it must needs be understood of his natural body the other being immortal The Indictment therefore concludes contra Legiantiae suae debitum against the duty of his Allegiance so that Allegiance is due to the natural body Admitting then that thus by Law Allegiance is due to the King as before recited yet it is alwayes to be presumed that it is to the King in conjunction with the Parliament the Law and the Kingdom and not in disjunction from or opposition to them and that while a Parliament is in being and cannot be dissolved but by the Consent of the three Estates This is therefore that which makes the matter in question a new Case that never before happened in the Kingdom nor was possible to happen unless there had been a Parliament constituted as this was unsubjected to Adjournment Prorogation or Dissolution by the King's will Where such a power is granted and the co-ordinates thereupon disagree and fall out such effects and consequents as these that have happened will but too probably follow And if either the Law of Nature or England inform not in such case it will be impossible for the Subjects to know their duty when that Power and Command which ought to flow from three in conjunction comes to be exercised by all or either of them singly and apart or by two of them against one When new and never-heard-of Changes do fall out in the Kingdom it is not like that the known and written Laws of the Land should be the exact Rule but the Grounds and Rules of Justice contained and declared in the Law of Nature are and ought to be a Sanctuary in such cases even by the very Common Law of England For thence originally spring the unerring Rules that are set by the Divine and Eternal Law for Rule and Subjection in all States and Kingdoms In contemplation hereof as the Resolve of all the Judges it was agreed 1. That Allegiance is due to Soveraignty by the Law of Nature to wit that Law which God at the creation of Man infused into his heart for his preservation and direction the Law eternal Yet is it not this Law as it is in the heart of every individual man that is binding over many or legislative but as it is the Act of a Community or an Associated People by the right dictates and perswasions of the work of this Law in their hearts This appears in the Case of the Israelites Judg. 20 21 chapters cited in the 4th part of Cook 's Institutes where mention is made of a Parliament without a King that made War and that with their Brethren They met as one man to do it in vindication of that Justice unto which they were obliged even by the Law of Nature This is that which Chancellor Fortescue calls Political Power here in England by which as by the Ordinance of man in pursuance of the Ordinance of God the Regal Office constituted or the King 's Politick Capacity and becomes appropriated to his natural person Thus Politick Power is the immediate Efflux and Off-spring of the Law of Nature and may be called a part of it To this Hooker in his Ecclesiastical Polity agrees and Selden on that subject The Law of Nature thus considered is part of the Law of England as is evident by all the best received Law-Books Bracton Fleta Lambard upon the Saxon Laws and Fortescue in the praise of the Laws of England This is the Law that is before any judicial or municipal Law as the root and fountain whence these and all Government under God and his Law do flow This Politick Power as it is exercised in conjunction with and conformity to the Eternal Law partakes of its moral and immutable nature and cannot be changed by Act of Parliament Of this Law it is that Magna Charta and the Charter of Forest with other Statutes rehearsed in the Petition of Right are for the most part declaratory For they are not introductive of any new Law but confirmations of what was good in all Laws of England before This agrees with that Maxime Salus Populi suprema Lex that being made due and binding by this Law which in the Judgment of the Community declaring their mind by their own free chosen Delegates and Trustees in harmony with the Eternal Law appears profitable and necessary for the preservation and good of the whole Society This is the Law which is put forth by the common consent of the whole Realm in their Representative and according to the fundamental Constitutions of this Kingdom is that with which the Kings of this Land by the joynt co-operation of the three Estates do make and repeal Laws But through the disorders and divisions of the times these two Powers the Regal and Political which according to the Law of England make up but one and the same supream Authority fell assunder and found themselves in disjunction from and opposition to one another I do not say The question is now which of these is most rightly according to the principles of the Law of Nature and the Law of England to be adhered unto and obeyed but unto whether Power adherence is a crime in such an Exigent of State Which since it is such a new and extraordinary Case evidently above the Track of the ordinary Rules contained in the positive and municipal Laws of England there can be no colour to bring it within the Statute of 25. Ed. 3. cap. 2. forasmuch as all Statutes presuppose these two Powers Regal and Political in conjunction perfect unity and subserviency which this Case does not cannot admit So exceeding new and extraordinary a Case is it that it may be doubted whether and questioned how far any other Parliament but that Parliament it self that was privy to all its own Actings and Intentions can be an indifferent and competent Judge But however the point is of so abstruse and high consideration as no inferiour Court can or ought to judge of it as by Law-Books is most undeniable to wit Bracton and others This then being the true state of the Case and the spring of that Contest that ensued and received its decision by the late War
Son Lay him low and humble abase his soul for his sins and all his unworthinesses before thee Men cannot speak evil enough of our sins In this perswasion this abasement and humiliation thy Servant desires to die And dear Lord thou seest knowst all things and art able to witness to the truth integrity of thy Servant When his blood is shed upon the Block let it have a voice afterward that may speak his Innocency and strengthen the Faith of thy Servants in the Truth Let it also serve for conviction to the worst of thy Enemies that they may say Surely the Lord knows and the Lord owns his Servant as one that belongs to him The desire of our soul is to hasten to thee O God to be dissolved that we may be with Christ Blessed be thy Name that this great strait that we were before in is now determined that there is no longer abode for me in this mortal body Our great Captain the great General of our souls did go in a way of affliction before us to Heaven Come Lord declare thy Will that thy poor Servant may manifest a readiness to come to Thee Prepare his heart that in his access to Thee may he be brought down at thy feet in shame confusion for all the evil is so of hul but Thou art his salvation Let thy Servant speak something on the behalf of the Nation wherein he hath lived Lord did we not exceed other Nations in our day Great things have been done by thee in the midst of us Oh that thou wouldst look down in pity compassion and pardon the sins of this whole Nation and lay them not to their charge shew them what is thy good and acceptable Will and bring them into subjection thereunto We humbly pray thee O Lord look down with compassion upon this great populous City cleanse away the impurity sinfulness and defilements thereof cause their souls to delight in thy Word that they may live Let a spirit of Reformation and Purity spring up in and amongst them with power make them willing to lay down all that is dear to them for thee that Thou mayst give them a Crown of Life that they may always desire chuse affliction and to be exposed to the worst condition hardest circumstances that can be brought upon them in this world rather than sin against him that hath loved them and bought them with a price that they might live to him in their bodies and in their spirits We are assured Thou knowest our suffering case and condition how it is with us We desire to give no just occasion of offence nor to provoke any but in meekness to forgive our Enemies Thy Servant that is now falling asleep doth heartily desire of thee that thou wouldest forgive them and not lay this sin to their charge Before the stroke he spake to this effect I bless the Lord who hath accounted me worthy to suffer for his Name Blessed be the Lord that I have kept a conscience void of offence to this day I bless the Lord I have not disserted the Righteous Cause for which I suffer But his very last words of all at the Block were as followeth Father glorifie thy Servant in the sight of men that he may glorifie thee in the discharge of his Duty to Thee and to his Country It was observed that no signs of inward fear appeared by any trembling or shaking of his hands or any other parts of his body all along on the Scaffold Yea an ancient Traveller and curious observer of the demeanor of persons in such publick Executions did narrowly eye his Countenance to the last breath and his Head immediatly after the separation he observed that his Countenance did not in the least change and whereas the Heads of all he had before seen did some way or other move after severing which argued some reluctancy and unwillingness to that parting-blow the Head of this Sufferer lay perfectly still immediately upon the separation on which he said to this purpose That his Death was by the free consent and act of his mind which Animadversion notably accords with what the Sufferer himself had before expressed in differencing a death by rational choice from that by sickness which is with constraint upon the body He desired to be dissolved to be with Christ The Names of the Grand Jury in the Case of Sir Henry Vane SIr John Cropley of Clarkenwel London Knight and Baronet Thomas Taylor of St. Martins in the Fields London Esq Francis Swift of St. Gyles in the Fields Esq. Jonas Morley of Hammersmith Gent. George Cooper of Covent Garden Gent. Thomas Constable of Covent Garden Gent. Edward Burrows of East-Smithfield Gent. Michael Dibbs of the same Gent. Edward Gregory of St. Gyles in the Fields Gent. Richard Freeman of Istington Gent. Thomas Pitcock of the same Gent. Richard Towers of Clarkenwel Gent. Robert Vauce of Paddington Gent. Thomas Benning of Wilsdon Gent. Francis Child of Acton Gent. Isaac Cotton of Bow Gent. Peter Towers of Mile-end Gent. Thomas Vffman of Hammersmith Gent. Matthew Child of Kensington Gent. Bryan Bonnaby of Westminster Gent. George Rouse of St. Gyles in the Fields Gent. Twenty one in all The Names of the Petty Jury Sir William Roberts Sir Christopher Abdy John Leech Daniel Cole John Stone Daniel Brown Henry Carter Thomas Chelsam Thomas Pitts Thomas Upman Andrew Brent William Smith Judges of the King 's Bench. Chief Justice Foster Justice Mallet Justice Twisden Justice Windham The Kings Counsel against the Prisoner no Counsel being permited to speake one word in his behalf to the matter or form of the Indictment or any thing else Sir Geoffry Palmer the King's Attorney General Sir Henneage Fynch the King's Sollicitor General Sir John Glyn. Sir John Maynard Sir William Wild. Serjeant Keeling Witnesses against Sir Henry Vane Marsh a Papist 't is said who witnessed what was accounted most dangerous against the Prisoner as to change of Government William Dobbins Mathew Lock Thomas Pury Thomas Wallis John Coot The Peoples Cause Stated HE in whom is the Right of Soveraign and to give Law is either so of himself or in the Right of another that may derive the same unto him which shews that there are two sorts of Soveraings A Soveraign in the first sense none is nor can be but God who is of himself most absolute And he that is first of all others in the second sence is the Man Christ Jesus to whom the Power of Soveraign in the Right of the Father is committed over all the Works of Gods hands Christ exercised the same in the capacity of David's Root from before the beginning of the World He owne himself thus to be long before he became David's Seed This his being in Spirit or hidden being even as a Creature the first of all Creatures in personal Union with the Word David saw and acknowledged Psal 110. 1. Thus Christ may be called God's Lieutenant
Judgement and the Lord's Day And this is that in every individual man which in the collective Body of the People and meeting of Head and Members in Parliament is called The Supream Authority and is the publick reason and will of the whole Kingdon the going against which is in Nature as well as by the Law of Nations an offence of the highest rank amongst men For it must be presumed that there is more of the Wisdom and Will of God in that publick Suffrage of the whole Nation than of any private Person or lesser collective Body whatsoever not better quallified and principled For Man is made in God's Image or in a likeness in Judgement and Will unto God himself according to the measure that in his nature he is proportioned and made capable to be the receiver and bearer thereof Therefore it is that the resisting and opposing either of that Judgement of Will which is in it self Supream and the Law to all others or which bears so much proportion and likeness to the Supream Will as is possible for a Society and community of Men agreeing together for that end to contrive and set up for an administration thereof unto them is against the duty of any member of that Society as well as it is against the duty of the Body of the whole Society to oppose its Judgement and Will to that of the Supream Law-giver their highest Soveraign God himself The highest Judgement and Will set up by God for Angels and Men in their particular beings to hold proportion with and bear conformity unto in the capacity of Ruled in relation to their chief Ruler sinnes forth in the person of Christ the engrafted Word And when by the Agreement or common Consent of a Nation or State there is such a Constitution and Form of Administration pitched upon as in a standing and ordinary way may derive and conveigh the nearest and greatest likeness in humane Laws or Acts of such a Constitution unto the Judgement and Will of the Supream Legislator as the Rule and declared Duty for every one in that Society to observe It is thereby that Government or Supream Power comes to receive Being in a Nation or State and is brought into exercise according to God's Ordinance and Divine Institution So then it is not so much the Form of the Administration as the thing Administred wherein the good or evil of Government doth consist that is to say a greater likeness or unlikeness unto Judgement and Will of the highest Being in all the Acts or Laws flowing from the Fundamental Constitution of the Government Hence it is that common Consent lawfully and rightfully given by the Body of a Nation and intrusted with Delegates of their own free choice to be exercised by them as their Representatives as well for the Welfare and good of the Body that trusts them as to the Honour and Well-pleasing of God the Supream Legislator is the Principle and Means warranted by the Law of Nature and Nations to give Constitution and Admission to the exercise of Government and Supream Authority over them and amongst them Agreeable hereunto we are to suppose that our Ancestors in this Kingdom did proceed when they constituted the Government thereof in that form of Administration which hath been derived to us in the course and channel of our Customes and Laws amongst which the Law and Customes in and of the Parliaments are to be accounted as chief For Hereby First The Directive or Legislative Power having the Right to State and Give the Rule for the Governors Duty and the Subjects Obedience is continued in our Laws which as well the King as People are under the Observation of witness the Coronation Oath and the Oath of Allegiance Secondly The Coercive or Executive Power is placed in one Person under the Name and Style of a King to be put forth not by his own single personal Command but by the signification of his Will and Pleasure as the Will of the whole State in and by his Courts of Justice and stated publick Counsels and Judicatures agreed on for that purpose between him and his People in their Parliamentary Assemblies The Will of the whole State thus signified the Law it self prefers before the personal Will of the King in distinction from the Law and makes the one binding the other not So that the publick Will of the State signified and declared by the publick Suffrage and Vote of the People or Kingdom in Parliament Assembled is a Legal and Warrantable ground for the Subjects Obedience in the things commanded by it for the good and welfare of the whole Body according to the best Understanding of such their Representative Body by it put forth during the time of its sitting The Body with whom the Delegated Vote and publick Suffrage of the whole Nation is Intrusted being once Assembled with Power not to be Dissolved but by their own consent in that capacity the highest Vote and Trust that can be is exercised and this by Authority of Parliament unto ex Officio or by way of Office are the Keepers of the Liberties of England or of the People by the said Authority for which they are accountable if they do not faithfully discharge that their duty This Office of keeping the Liberty which by the Law of God and Nature is due to the Community or whole Body of the People is by way of Trust committed by themselves to their own Delegates and in effect amounts unto this 1. That they may of right keep out and refuse any to exercise Rule and Command over them except God himself who is the Supream and Universal King and Governour or such as shall agree in their Actings to bear his Image which is to be Just and shew for the Warrant of their Exercise of Soveraignty both a likeness in Judgement and Will unto him who is Wisdom and Righteousness it self and the Approbation and common Consent of the whole Body rationally reposing that Trust in them from what is with visible and apparent Characters manifest to them of an aptness and sufficiency in them to give forth such publick Acts of Government that may bear the Stamp of God's Impression upon them in the Judgements they do and execute especially being therein helped with a National Counsel of the Peoples own choosing from time to time 2. They may of right keep hold and restrain him or them with whom the Coercive or Executive Power is intrusted unto a punctual performance of Duty according to the Fundamental Constitution the Oath of the Ruler and the Laws of the Land And if they shall refuse to be so held and restrained by the humble Desires Advice and common Consent in Parliament and the Peoples Delegates be invaded and attempted upon by force to deter them from the faithful discharge of this their Duty they may in asserting their Right and in a way of their own just Defence raise Armes put the issue upon Battel and Appeal unto
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
Rule cap 29. Nullus liber homo capiatur c. No free-man shall be taken or imprisoned or be disseised of his freehold or liberties or free-customs or be outlawed or exiled or any otherwise destroyed Nor we will not passe upon him nor 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 Out of this Chapter as out of a root saith Sir Edward Cook do many fruitful branches of the Law of England spring It contains nine branches some whereof I shall insist upon in my Case First That no man be taken or imprisoned but per Legem Terrae that is by the Common Law or Custom of England which words per Legem Terrae though put last refer to all the precedent branches Secondly The Goods of any Offender cannot regularly be taken and seized to the King's use before Conviction nor be Inventoried nor the Town charged therewith before the owner be indicted of Record Thirdly No man shall be exiled or banished out of his Country not be in any sort destroyed but by the verdict of his Peers This appears by Bracton and other ancient Writers quoted by Cook in the third part of his Institutes fol. 228. Upon the whole matter saith Cook these two Conclusions are manifestly proved First That before Indictment the Goods or other things of any Offender cannot be searched inventoried or in any sort seized nor after Indictment seized removed or taken away before Conviction or Attainder Secondly That the begging of the Goods or Estate of any Delinquent accused or indicted of any Treason Felony or other offence before he be convicted and attainted is utterly unlawful Stat. Ri. 1. cap. 3. And besides it maketh the prosecution against the Delinquent more precipitant violent and undue than the quiet and equal proceedings of the Law and Justice would permit Or else by some under-hand Agreement stops or hinders the due course of Justice and discourageth both Judge Juror and Witness to do their duty Thirdly The Judges are not to give so much as their Opinion before-hand concerning the Offence whether it prove that Offence in that Case Cook in the chap. of Petty Treason fol. 29. expresly saith And to the end the Tryal may be the more indifferent seeing the safety of the Prisoner consists in the indifferency of the Court the Judges ought not to deliver their Opinions before-hand of any Criminal Case that may come before them judicially And he there cites Humphrey Staffords Case that Arch Traitor in which Hussey Chief Justice besought Hen. 7. not to demand of them their Opinions before-hand And in the 4th of his Institutes in the chap. of the High Court of Parliament fol. 37 he fully shews the evil of asking the Judges Opinions before-hand But instead of this The Judges being assistant in the Lords house when all Acts of Parliament passe and whose Advice is taken in them have as appears by what is declared in the said Acts prejudg'd by their Opinions and the Opinions of the Parliament before-hand the merit of the Cause that now appears to be put upon the Issue in my Tryal Hereby the Judges are rendred ex parte and the indifferency the Law requires impossible to be afforded Nor is this all but by the Rules declared in the Act of Indempnity all are disenabled to plead or make use of the Ordinances Orders and Votes of both or either Houses of Parliament that may have occasion thereof and then by excepting the Prisoner and his fellow out of the said Act and all benefit thereby a door is left open to Arraign bring to Tryal and Sentence the whole Cause from the beginning to the ending in the person of the Prisoner and at the same time deprive him of all means and possibility of Justification and Defence Fourthly It is observable how early hard measure appeared in the way wherein the Prisoner became excepted out of the Act of Indempnity when the Commons his proper Judges declared him in their thoughts not fit to be endangered in the point of Life yet unto the Judgment of the Lords that ought not to judge Commoners unbrought before them by the Commons much less in opposite Judgement to the Commons The Commons were necessitated to yeeld lest otherwise the Act of Indempnity to the whole Nation should stop upon this dispute and essential difference between the two Houses A Competition easily over-ruled although as it proves by the sequel That Act of Indempnity is like to become felo de se or a destroyer of it self if your Lordships shall conceive your selves at liberty notwithstanding that Act not only to bring anew into memory upon the stage the state of all the passed differences from first to last but to try and judge the merit of them in my person and therein call in question the validity of that whole Act and make void the benefit intended by it in case the War undertaken and managed by both or either of the Houses of Parliament be judged unlawful and within the Statute of 25. Ed. 3. For this adjudges all the People of England morally guilty of the evil of a sin and offence against the Law of Nature which once done what ever promised Indempnity be granted for the present the Evil of the Action remaining upon Record not only to the Infamy of the whole People of England but their future danger upon pretence they have forfeited the very Indempnity granted Fifthly The length of time taken to search out matter against the Prisoner and the undue practices and courses to find out Witnesses do further evidence how unlike the Prisoner is to have an equal and indifferent Tryal He doubts not this will appear in his two years close Imprisonement six months whereof was Banishment during which time he was never so much as once examined or had any question put to him whereby he might conjecture wherefore he was committed to Prison any further than was expressed in the Warrants of Commitments Now these were so general that nothing certain or particular could be gathered out of them But upon the received opinion that he was excepted out of the Act of Indempnity and in the sence of both Houses a great Delinquent his Estate was attempted to be inventoried his Rentals demanded his Rents were actually seized in the Tenants hands and they forbidden to pay them His very Courts were prohibited by Officers of great Personages claiming the Grant of the Estate and threatning his Officers from doing their duty By these kind of undue proceedings the Prisoner had not wherewithal to maintain himself in Prison and his Debts to the value of above ten thousand pounds were undischarged either Principal or Interest The hopes of private lucre and profit hereby was such in the Tenants and other persons sought out for far and near to be Witnesses that it is no wonder at last something by way
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
Soveraign or General Vicegerent of his Supremacy over all in Heaven and in Earth He therefore is the true Universal King and Root of all Soveraign and just Governing Power whether in Heaven or on Earth His Soveraignty is unquestionable and unaccountable because of the Perfection of his Person carrying in it an aptitude and sufficiency to Govern without possibility of Error or Defect of any kind Soveraign and Governing Power doth necessarily relate to Subjects that are to be the Ruled and Subjects capable of such Government Therefore when God himself purposes within himself to be Supream Legislator and Governour he doth withal purpose the Being and Creation of both Worlds as the Subject matter of his Kingdom He propounds to Govern his Subjects by and with their own consent and good liking or without and against it in the way of his revenging Justice Governing by Laws clearly stating and ascertaining the Duty or the Offence as also the Rewards and Penalties Herein Just Government consists or the Justice of Government for he that Rules over others must be Just and indeed should be seen to be so in all his Commands so seen as to render the Consciences of the Ruled and those whose duty it is to Obey inexcusable before God and before Men if they Dissent or Resist Inexcusable they are before God because the matter Commanded is the matter of God's Law therefore just to be obeyed They are also Inexcusable before Men that which is required of them being generally acknowledged and affirmed by those in whom the common consent of the Subjects is intrusted to that end to be Just and Reasonable and therefore to be Obeyed For the end of all Government being for the Good and Welfare and not for the Destruction of the Ruled God who is the Institutor of Government as he is pleased to Ordain the Office of Governors intrusting them with Power to command the Just and Reasonable Things which his own Law Commands that carry their own evidence to common Reason and Sense at least that do not evidently contradict it so he grants a Liberty to the Subjects or those that by him are put under the Rule to refuse all such Commands as are contrary to his Law or to the judgement of common Reason and Sense whose trial he allows by way of assent or dissent before the Commands of the Ruler shall be Binding or put in Execution and this in a Co-ordinacy of Power with Just Government and as the due Ballance thereof The Original Impressions of Just Laws are in Mans Nature and very Constitution of Being Man hath the Law in his Mind or the Superior and Intellectual part of him convincing and bringing that into obedience and subjection to the Law of God in Christ himself He hath also that which is a Law in his Members that are on the Earth or his earthly and sensual part whose Power is Co-ordinate with the other but such that if it be not gained into a Harmony and Conjunction with its Head the Spirit or Mind of man hath ability to let and hinder his Mind or Ruling part from performing and putting in execution that which is good just fit and to be acknowledged as the righteous dictates of the Mind which ought to be the Ruling Power or Law to the Man So in the outward Government over Man the secondary or co-ordinate Power concurring with that which is the chief ruling Power is essential to Just Government and is acknowledged to be so by the Fundamental Constitution of the Government of England as well as in the Legal Being and Constitution of Parliaments whether that which hath been usual and ordinary according to the Common Law or that which of late hath been Extraordinary by express Statute for the continuance of the Parliament 17. Car. until dissolved by Act of Parliament For together with the Legal Being which is given to Regal Power and the Prerogative of the Crown there is the Legal Power and Being reserved also unto that Body which is the Peoples or Kingdoms Representative who are the Hands wherein that which is called Power Politick is seated and are intrusted with giving or with holding the common Consent of the whole Nation according to the best of their Understandings in all matters coming before them and are to keep this Liberty Inviolate and Entire against all Invasions or Encroachments upon it whatsoever This second Power in the very Writ of Summons for calling a Parliament is declared to be of that Nature that what the first doth without obtaining the Consent and Approbation of the second in Parliament is not binding but ineffectual And when the Representative Body of the Kingdom in and with whom this Power is intrusted as the Due and Legal Ballance and Boundary to the Regal Power set and fixed by the Fundamental Constitution is made a standing Court and of that Continuance as not to be dissolvable but by its own consent during such its continuance it hath right to preserve it self from all violent and undue Dissolution and to maintain and defend its own Just Priviledges a chief of which is to binde or loose the People in all matters good or hurtful to them according to their best Judgement and discretion In the exercise of this their Trust they are Indemnified by Law and no hurt ought to come unto them that Governing Power which is originally in God and slowes at first from him as the sole and proper Fountain thereof is brought into exercise amongst men upon a differing and distinct account First As it is a Trust and Right derived conditionally from God to his Officers and Ministers which therefore may be lost who being called by him and in the course of his Providence to the exercise of it are to hold it of him the Universal King and to own themselves in the exercise thereof as his Vicegerents to cut off by the Sword of Justice evil-doers and to be a Protection and encouragement to them that do well But because it is part of God's Call of any person to this high Trust to bring him into the possession and free Exercise thereof by the common consent of the Body of the People where such Soveraign Power is set up unless they have forfeited this Liberty Therefore Secondly God doth allow and confer by the very Law of Nature upon the Community or Body of the People that are related to and concerned in the right of Government placed over them the Liberty by their common Vote or Suffrage duely given to be Assenters or Dissenters thereunto and to Affirm and make Stable or Disallow and render Ineffectual what shall apparently be found by them to be for the good or hurt of that Society whose welfare next under the justice of God's Commands and his Glory is the Supream Law and very end of all Subordinate governing Power Soveraign Power then comes from God as its proper Root but the restraint or enlargement of it in its Execution over such or
before and who is the Proper and Competent Judge Also whether the Laws be not perfectly silent as never supposing such a Case possible to happen by reason that the Power used by the one for Dissolving the other never before suffered the Opposition to rise so high The Fourth Querie is Whether he in this Case that keeps his Station and place of Trust wherein God and the Law did set him with care to demean himself according to the best of his Vnderstanding agreeably to the Law and Customes of Parliament and pursuant to their Votes and Directions so long as they sit and affirm themselves to be a Parliament and uses his best endeavours in the exercise of that publick Trust that no Detriment in the general come unto the Common-wealth by the failer of Justice and the necessary Protection due from Government without any designing or intending the Subversion of the Constitution but onely the securing more fully the Peoples Liberties and just Rights from all future Invasions and Oppressions be not so far from deserving to be judged Criminal in respect of any Law of God or Man that he ought rather to be affirmed One that hath done his Duty even the next best that was left to him or possible for him to do in such a dark stormy season and such difficult Circumstances As to the Right of the Cause it self it ariseth out of the matter of Fact that hath happened and by the Just and Wise Providence of God hath been suffered to state it self in the Contest between the Personal Will and declared Pleasure of the King on the one Hand and the publick Will or Vote of the People in Parliament on the other declaring it self either in Orders or Ordinances of both Houses or in the single Act of the House of Commons asserting it self a Parliament upon the Grounds of the Act 17 Car. providing against its dissolution This will appear with the more evidence and certainty by considering wherein either part had a wrong Cause or did or might do that which was not their Duty taking the measure of their Duty from what as well the King as the Peoples Representative are obliged unto by the Fundamental Constitution of the Government which binds them in each of their Capacities and distinct Exercises of their Trust to intend and pursue the true good and welfare of the whole Body or Community as their End This in effect is to detain the People in Obedience and Subjection to the Law of God and to guide them in the wayes of Righteousness unto God's well-pleasing and to avoid falling out or disagreeing about the Way or Means leading to that End Hence that party which in his or their actings was at the greatest distance from or opposition unto this end and wilfully and unnecessarily disagreed and divided from the other in the Ways and Means that were most likely to attain this End they were assuredly in the Fault and had a Wrong Cause to mannage under what ever Name of Face of Authority it was Headed and Upheld And such a Wrong Cause was capable of being espoused and mannaged under the face of Authority as might be pretended unto by either part For as the King insisting upon his Prerogative and the binding force which his personal Will and Pleasure ought to have though in distinction from and opposition to his Parliament might depart from the end of Government answerable to his Trust and yet urge his Right to be obeyed So the publick Will of the People exercised in and by the Vote of their Representative in Parliament asserting it self to be of a binding force also and to have the place of a Law though in distinction from the King and Laws also as saith the King whatever otherwise by them is pretended might also depart from the true end of Government answerable to their Trust and yet insist upon their Right to be Obeyed and submitted unto and having Power in their hands might unduely go about also to compel Obedience It is not lawful either for King or Parliament to urge Authority and compel Obedience as of Right in any such Cases where according to the Law of Nature the People are at Liberty and ought to have a Freedom from yeelding Obedience as they are and ought to have when ever any would compel them to disobey God or to do things that evidently in the eye of Reason and common sense are to their hurt and destruction Such things Nature forbids the doing of having for that very purpose armed Man with the defensive Weapon of refusing to consent and obey as that Priviledge whereby Man is distinguished from a Beast which when he is deprived of he is made a Beast and brought into a state of perfect Servitude and Bondage Such a state of Servitude and Bondage may by God's just Judgement be inflicted upon man for sin and the abuse of his Liberty when by God restored The Liberty which man was at first created in is that Priviledge and Right which is allowed to him by the Law of Nature of not being compelled under any pretence whatsoever to sin against God or to go against the true good and welfare of his own Being that is to say of his inward or outward man but in both these cases to have and to use his just Liberty to Dissent and refuse to Obey For this every man hath that in himself which by God is made a proper and competent Judge For as to all sin against God and the righteousness of his Law the Light of Conscience that is to say the Work of the Law in and upon the Mind or inward Sense and in conjunction with it doth lighten every one that cometh into the World accusing or excusing if it be but hearkened unto and kept awake And for all such actings as tend to the ruine and destruction of man in his outward and bodily concerns and as he is the Object of Magistratical Power and Jurisdiction every man hath a Judgement of common Sense or a way of discerning and being sensible thereof common to bruit Beasts that take in their Knowledge by the door of their Senses but is much heightned and enobled in man by the personal union it is taken into with his intellectual part and intuitive way of discerning things through the inward reflectings of the mind compared with the Law of God This inferiour Judgement in man when it is conjoyned with and confirmed by the Judgement of his Superiour part is that which we call Rational or the dictates of right Reason that man hath a natural right to adhere unto as the ordinary certain Rule which is given him by God to walk by and against which he ought not to be compelled or be forced to depart from it by the meer Will and Power of another without better Evidence that is a higher a greater or more certain way of discerning This therefore in Scripture is called Man's Judgement or Man's Day in distinction from the Lord's