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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A63192	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.	Vane, Henry, Sir, 1612?-1662, defendant.; England and Wales. Court of King's Bench.	1662 (1662)	Wing T2216; ESTC R21850	115,834	133

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 next Consideration is how far I have had my share and part therein that by the Laws is not warrantable or by what appears in way of proof to the Jury For the first I shall crave leave to give you this account of my self who have best known my own mind and intentions throughout and would not now to save my life renounce the principles of that Righteous Cause which my conscience tells me was my duty to be faithful unto I do therefore humbly affirm That in the afore-mentioned great Changes and Revolutions from first to last I was never a first mover but alwayes a follower chusing rather to adhere to things than persons and where Authority was dark or dubious to do things justifiable by the Light and Law of Nature as that Law is acknowledged part of the Law of the Land things that are in se bona and such as according to the grounds and principles of the Common Law as well as the Statutes of this Land would warrant and indempnifie me in doing them For I have observed by Precedents of former times when there have arisen disputes about Titles to the Crown between Kings de facto and Kings de jure the People of this Realm wanted not directions for their safety and how to behave themselves within the duty and limits of Allegiance to the King and Kingdom in such difficult and dangerous seasons My Lord Cook is very clear in this point in his Chap. of Treason fol. 7. And if it were otherwise it were the hardest case that could be for the people of England For then they would be certainly exposed to punishment from those that are in possession of the supream power as Traitors if they do any thing against them or do not obey them and they would be punishable as Traitors by him that hath right and is King de jure in case they do obey the Kings de facto and so all the people of England are necessarily involved in Treasons either against the Powers de facto or de jure and may by the same reason be questioned for it as well as the Prisoner if the Act of Indempnity and the King's Pardon did not free them from it The security then and safety of all the People of England is by this means made to depend upon a Pardon which might have been granted or denied and not upon the sure foundations of Common Law an opinion sure which duly weighed and considered is very strange to say no more For I would gladly know that person in England of estate and fortune and of age that hath not counselled aided or abetted either by his person or estate and submitted to the Laws and Government of the Powers that then were and if so then by your Judgments upon me you condemn in effigies and by necessary consequence the whole Kingdom And if that be the Law and be now known to be so it is worth consideration whether if it had been generally known and understood before it might not have hindred his Majesties Restoration Besides although until this Judgement be passed upon me the people have apprehended themselves as free from question and out of danger by reason of the Act of Indempnity and General Pardon yet when it shall appear to them that such their safety is not grounded on the Common Law nor upon the Law of Nature but that against both these in their actions they are found faulty and tainted with a moral guilt and that as principals also since in Treason there are no Accessories what terrifying Reflexions must this needs stir up in the mind of every man that will be apt to believe his Turn will come next at least once in two years as hath befallen me in my p●rson who however I have been misjudged and misunderstood can truly affirm that in the whole series of my Actions that which I have had in my eye hath been to preserve the ancient well-constituted Government of England on its own basis and primitive righteous foundations most learnedly stated by Fortescue in his Book made in praise of the English Laws And I did account it the most likely means for the effecting of this to preserve it at least in its root whatever changes and alterations it might be exposed unto in its branches through the blustrous and stormy times that have passed over us This is no new doctrine in a Kingdom acquainted with Political Power as Fortescue shews ours is describing it to be in effect the Common Assent of the Realm the Will of the People or whole Body of the Kingdom represented in Parliament Nay though this Representation as hath fallen out be restrained for a season to the Commons House in their single actings into which as we have seen when by the inordinate fire of the times two of the three Estates have for a season been melted down they did but retire into their Root and were not hereby in their Right destroyed but rather preserved though as to their exercise laid for a while asleep till the season came of their Revival and Restoration And whatever were the intents and designs of others who are to give an account of their own actions It is sufficient for me that at a time critical and decisive though to my own hazard and ill usage I did declare my Refusal of the Oath of Abjuration which was intended to be taken by all the Members of Parliament in reference to Kingly Government and the Line of his now Majesty in particular This I not only positively refused to take but was an occasion of the second thoughts which the Parliament reassumed thereof till in a manner they came wholly at last to decline it a proof undeniable of the remoteness of any intentions or designs of mine as to the endeavouring any alteration or change in the Government and was that which gave such jealousie to many in the House that they were willing to take the first occasion to shew their dislike of me and to discharge me from sitting among them But to return to what I have before affirmed as to my being no leading or first Actor in any Change it is very apparent by my deportment at the time when that great Violation of Priviledges happened to the Parliament so as by force of Arms several Members thereof were debarred coming into the House and keeping their seats there This made me forbear to come to the Parliament for the space of ten weeks to wit from the third of Decemb. 1648 till towards the middle of February following or to meddle in any publick transactions And during that time the matter most obvious to exception in way of alteration of the Government did happen I can therefore truly say that as I had neither consent nor vote at first in the Resolutions of the Houses concerning the Non-Addresses to his late Majesty so neither had I in the least any consent in or approbation to his Death But on the contrary when required by

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

meet the King of Terrors without the least affrightment But to shew where his strength lay he said he was a poor unworthy wretch and had nothing but the Grace and Goodness of God to depend upon He said moreover Death shrunk from him rather than he from it Upon the occasion of parting with his Relations he said There is some flesh remaining yet but I must cast it behind me and press forward to my Father Then one of the Sheriffs men came in and told him There was no Sled to come but he was to walk on foot He told his Friends the Sheriffs Chaplain came to him at twelve of the clock that night with an Order for his Execution telling him he was come to bring him that fatal Message of Death I think Friends that in this Message was no dismalness at all After the receipt of which I slept four hours so soundly that the Lord hath made it sufficient for me and now I am going to sleep my last after which I shall need sleep no more Then Mr. Sheriff coming into the Room was friendly saluted by him and after a little pause communicated a Prohibition that he said he had received which was That he must not speak any thing against his Majesty or the Government His Answer to this he himself relates on the Scaffold He further told Mr. Sheriff he was ready but the Sheriff said he was not nor could be this half hour yet Then Sir it rests on you not on me said Sir Henry for I have been ready this half hour Then the Shriff at his request promised him his servants should attend him on the Scaffold and be civilly dealt with neither of which were performed for notwithstanding this promise they were beaten and kept off the Scaffold till he said What have I never a servant here After this one of the Sheriffs men came and told him there must be a Sled to which Sir Henry replied Any way how they please for I long to be at home to be dissolved and to be with Christ which is best of all He went very chearfully and readily down the stairs from his Chamber and seated himself on the Sled Friends and Servants standing about him then he was forthwith drawn away towards the Scaffold As he went some in the Tower Prisoners as well as others spake to him praying the Lord to go with him And after he was out of the Tower from the tops of houses and out of windows the people used such means and gestures as might best discover at a distance their respects and love to him crying aloud The Lord go with you The great God of Heaven and Earth appear in you and for you whereof he took what notice he was capable in those circumstances in a chearful manner accepting their respect putting off his Hat and bowing to them Being asked several times how he did by some about him he answered Never better in all my life Another replied How should he do ill that suffers for so glorious a Cause To which a tall black man said Many suffered for a better Cause and may for a worse said Sir Henry wishing That when they come to seal their better Cause as he called it with their Blood as he was now going to seal his they might not find themselves deceived And as to this Cause said he it hath given Life in Death to all the Owners of it and Sufferers for it Being passed within the Rails on Tower-hill there were many loud acclamations of the people crying out The Lord Jesus go with your dear Soul c. One told him that was the most glorious Seat he ever sate on he answered It is so indeed and rejoyced exceedingly Being come to the Scaffold he chearfully ascends and being up after the crowd on the Scaffold was broken in two pieces to make way for him he shewed himself to the People on the front of the Scaffold with that Noble and Christian-like deportment that he rather seemed a looker-on than the person concerned in the Execution Insomuch that it was difficult to perswade many of the People that he was the Prisoner But when they knew that the Gentleman in the black Sute and Cloak with a Scarlet silk Wastcoat the victorious colour shewing it self at the breast was the Prisoner they generally admired that Noble and great Presence he appeared with How chearful he is said some he does not look like a dying-man said others with many like speeches as astonished with that strange appearance he shined forth in Then silence being commanded by the Sheriff lifting up his hands and eyes towards Heaven and then resting his hands on the Rails and taking a very serious composed and majestick view of the great multitude about him he spake as followeth His SPEECH on the SCAFFOLD Gentlemen fellow-Countrymen and Christians VVHen Mr. Sheriff came to me this morning and told me he had received a Command from the King that I should say nothing reflecting upon his Majesty or the Government I answered I should confine and order my Speech as near as I could so as to be least offensive saving my faithfulness to the Trust reposed in me which I must ever discharge with a good Conscience unto Death for I ever valued a man according to his faithfulness to the Trust reposed in him even on his Majesties behalf in the late Controversie And if you dare trust my discretion Mr. Sheriff I shall do nothing but what becomes a good Christian and an Englishman and so I hope I shall be civilly dealt with When Mr. Sheriffs Chaplain came to me last night about twelve of the clock to bring me as he called it the fatal Message of Death it pleased the Lord to bring that Scripture to my mind in the third of Zechary to intimate to me that he was now taking away my filthy garments causing mine iniquities to pass from me with intention to give me change of raiment and that my mortal should put on Immortality I suppose you may wonder when I shall tell you that I am not brought hither according to any known Law of the Land It is true I have been before a Court of Justice and am now going to appear before a greater Tribunal where I am to give an account of all my actions under their Sentence I stand here at this time When I was before them I could not have the liberty and priviledge of an Englishman the grounds reasons and causes of the Actings I was charged with duly considered I therefore desired the Judges that they would set their Seals to my Bill of Exceptions I pressed hard for it again and again as the Right of my self and every free-born English-man by the Law of the Land but was finally denied it Here Sir John Robinson Lieutenant of the Tower interrupted him saying Sir you must not go on thus and in a furious manner generally observed even to the dis-satisfaction of some of their own attendants said that he