The Parliament who appointed the Council must be much more unwarrantable And here he offered these points to be considered and pray'd earnestly to have Counsel assigned him to speak to them 1. Whether the collective body of the Parliament can be impeached of High Treason 2. Whether any person acting by Authority of Parliament can so long as he acteth by that Authority commit Treason 3. Whether matters acted by that Authority can be called in question in an inferiour Court 4. Whether a King de jure and out of possession can have Treason committed against him he not being King de facto and in actual possession and pray'd it might be argued by Counsel 5. Whether matters done in Southwark in another County may be given in evidence to a Middlesex Jury As to the last Exception the Court said That he was indicted for compassing and imagining the King's Death in Middlesex and any overt act to prove this Imagination may be given in evidence wheresoever it be acted To which Sir Hen. Vane prayed the benefit of a Bill of Exception upon the Statute of Westminster 2. cap. 31. and prayed that the Justices might seal it which they all refused and held it lay not in any case of the Crown The King's Counsel desired he might call his Witnesses if any he had for if they once came to reply to him he must then be silent and consented that if it would aid him they would allow his Actings to be in the Name and by the Authority of the Council of State and the Actings of the Council of State to be by Authority of what he called a Parliament Sir Hen. Vane replyed Then what I acted in the Council of State and Committee of Safety constituted by the Parliament to endure for eight dayes you will allow me Then you must prove that I ever acted in the other Council of State after the Parliament was turned out Then the King's Counsel produced a Warrant dated Novemb. 3. 1659 which was sent in pursuance of an Order of the Committee of Safety by Sir Hen. Vane as Treasurer of the Navie This Warrant was for the sending of divers Arms Northwards after Mr. Lambert who was gone down to oppose the now Duke of Albemarle Sir Hen. Vane produced Will Angel Brisco Middleton c. Officers of that Regiment which went under his name who having recourse unto him for Orders about Octob. 1659 he bad them desist and declared his dis-satisfaction in their proceedings and this after their several importunities to have Orders from him And thus he closed his Defence FYNCH Sollicitor As to pretence of the power of Parliament It is to be known that it was not the eighth part of the House of Commons such as were let in to do all that hath been complained and the acting under Authority of such an End of a Parliament under such a Violation was no Excuse but an Aggravation but that the Parliament was in Law ended by the death of the late King notwithstanding that Act of 17. Caroli primi appears thus First The King 's Writ for a Parliament is ad tractandum nobiscum which is intended as well of the natural capacity of the King as of his politick Secondly 'T is absurd to say that the Acts of Parliament of King Charles the first should be his Acts in the time of King Charles the second Thirdly A Commission of Sewers enacted to be on foot for ten years expires by the death of the King and the authority of the Commissioners is at an end Fourthly It is not possible for one King to impose a Parliament upon a successor So much for his acting by colour of authority of Parliament And as to the Question Whether an House of Parliament can commit Treason If they depart from that Allegiance which they have sworn at their first meeting they are impeachable for it As to a Co-ordination in the Parliament he denied it As to the Question Whether the King being out of actual possession can have Treason committed against him he affirmed it And said otherwise if Rebellion should be so prosperous as to depose or oppress the King in Battel the Offenders are not to be called in question because they prevailed He said it was the Plea of Watson the Jesuite who being Indicted for compassing the death of King James in Scotland after he was declared King of England and before his actual entring into this Realm made this Defence That the King was never in possession of the Crown Windam Justice As to the Act of 17. Caroli and the Preamble of that Act so much insisted upon by the Prisoner 1. He held that the Parliament had not greater Authority by it but were onely made more durable than other Parliaments have been but he held that the Parliament was absolutely dissolved by the death of the King and put this case If it should be enacted that such a Marriage should continue till it was dissolved by Act of Parliament If one dies it is a determination of it in Fact so as no man can say but it is absolutely dissolved 2. It must continue in the degree and dignity of a Parliament If the House be under a force and some kept out some let in to serve a Turn what-ever they act is a Nullity in Law For Freedom is the principal essence and honour of a Parliament yet though the House be under a Force the House is not dissolved by such Force but the proceedings are to be suspended till it require its former Liberty and this as well by the Common Law as by the Civil and Canon Laws of all other Countries 3. The Parliament is the King 's great Council The Peers are Consiliarii nati If they be forc'd away or laid aside as here they were all the rest is but Magni Nominis Umbra Twisden held the same opinion That it is not the sitting of a few Members within those Walls that will continue it a Parliament And though another Parliament a great many years after the Kings death declared it to be at an end yet that Act was but Declaration it was at an end before Whether a Parliament may commit Treason is not the Question but Whether a few of the House shutting out their Fellows and usurping the Government were not Traitors Foster held the same opinion and said The distinction between the Politick and Natural capacity of the King was the Treason of the two Spencers That Priviledge of the Parliament is no shelter for breach of the Peace much less for Treason Twisden added That to compass the Death of the King as a natural person was Treason to compass his Death in his Politick capacity as to depose him was Treason and both provided for by the Act of 25. Ed. 3. That in the same instant the late King expired in the very same his now Majesty was King de facto and affirmed the cases of Watson and Cleark 1. Jac. If an Army be raised against the King
our best security The Common Law then or Liberties of England comprized in the Magna Charta and the Charter of Forest are rendred as secure as authentick words can set them from all Judgments or Precedents to the contrary in any Courts all corrupting advice or evil counsel of any Judges all Letters or Countermands from the Kings Person under the Great or Privy Seals yea and from any Acts of Parliament it self that are contrary thereunto As to the Judges no question they well know the story of the 44 corrupt Judges executed by King Alfred as also of Tresillian Belknap and many others since By 11 Hen. 7. cap. 1. They that serve the King in his Wars according to their duty of Allegiance for defence of the King and the Land are indempnified If against the Land and so not according to their Allegiance the last clause of that chapter seems to exclude them from the benefit of this Act. 6 Hen. 8. 16. Knights and Burgesse of Parliament are required not to depart from the Parliament till it be fully finished ended or prorogued 28 Ed. 3. cap. 3. No man is to be imprisoned disherited or put to death without being heard what he can say for himself 4 Ed. 3. 14. and 36. Ed. 3. 10. A Parliament is to be holden every year or oftner if need be 1 Ric. 3. cap. 2. The subjects of this Realm are not to be charged with any new imposition called a Benevolence 37 Ed. 3. c. 18. All those that make suggestions against any man to the King are to be sent with their suggestions before the Chancellor Treasurer and his grand Council and there to find surety that they will pursue their suggestions and are to incur the same pain the party by them accused should have had if attained in case the suggestion be found evil or false 21 Jacobi cap. 3. All Monopolies and Dispensations with Penal Laws are made void as contrary to the great Charters These quotations of several Statutes as Ratifications and Restorers of the Laws of the Land are prefixed to the following Discourses and Pleas of this Sufferer as certain steady unmovable Land-marks to which he oft relates The rouling Seas have other Laws peculiar to themselves as Cook observes on that expression Law of the Land in his Comment on the 29th Chapter of Magna Charta Offences done upon the High Sea the Admiral takes conusance of and proceeds by the Marine Law But have those steady Land-marks though exactly observed and never so pertinently quoted and urged by this Sufferer failed him as to the securing of his Life 'T is because we have had Land-floods of late Tumults of the People that are compared to the raging Seas Psal 65. 7. The first Paper of this deceased Sufferer towards the defence of his Cause and Life preparatory to the Tryal as the foundation of all that follows before he could know how the Indictment was laid and which also a glance back to any crime of Treason since the beginning of the late War that the Attorney General reckoned him chargeable with shews to be very requist take as followeth Memorandums touching my Defence THe Offence objected against me is levying War within the Statute 25 Ed. 3. and by consequence a most high and great failer in the duty which the Subject according to the Laws of England stands obliged to perform in relation to the Imperial Crown and Soveraign Power of England The crime if it prove any must needs be very great considering the circumstances with which it hath been accompaned For it relates to and takes in a series of publick action of above twenty years continuance It took its rise and had its root in the Being Authority Judgment Resolutions Votes and Orders of a Parliament and that a Parliament not onely authorized and commissionated in the ordinary and customary way by his Majesties Writ of Summons and the Peoples Election and Deputation subject to Adjournment Discontinuance and Dissolution at the King's will but which by express Act of Parliamenâ— was constituted in its continuance and exercise of its Power free from that subjection and made therein wholly to depend upon their own will to be declared in an Act of Parliament to be passed for that purpose when they should see cause To speak plainly and clearly in this matter That which is endeavoured to be made a Crime and an Offence of such an high nature in my person is no other than the necessary and unavoidable Actings of the Representative Body of the Kingdom for the preservation of the good People thereof in their allegiance and duty to God and his Law as also from the imminent dangers and destruction threatned them from God's and their own Enemies This made both Houses in their Remonstrance May 26. 1642. protest If the Malignant spirits about the King should ever force or necessitate them to defend their Religion the Kingdom the Priviledges of Parliament and the Rights and Liberties of the Subjects with their Swords The Blood and Destruction that should ensue therupon must be wholly cast upon their account God and their own consciences telling them that they were clear and would not doubt but that God and the whole world would clear them therein In his Majesties Answer to the Declaration of the two Houses May 19. 1642. he acknowledgeth his going into the House of Commons to demand the five Members was an errour And that was it which gave the Parliament the first cause to put themselves in a posture of defence by their own Power and Authority in commanding the Trained-Bands of the City of London to guard and secure them from Violence in the discharge of their Trust and Duty as the two Houses of Parliament appointed by Act to continue as above-mentioned The next cause was his Majesties raising Forces at York under pretence of a Guard expressed in the humble Petition of the Lords and Commons May 23. 1642. wherein they beseech his Majesty to disband all such Forces and desist from any further designs of that nature otherwise they should hold themselves bound in duty towards God and the Trust reposed in them by the People and the Fundamental Laws and Constitutions of this Kingdom to employ their care and utmost power to secure the Parliament and preserve the peace and quiet of the Kingdom May 20. 1642 The two Houses of Parliament gave their Judgment in these Votes First That it appears that the King seduced by wicked Counsel intends to make War against the Parliament who in all their Consultations and Actions have proposed no other end to themselves but the Care of his Kingdoms and the performance of all Duty and Loyalty to his Person Secondly That whensoever the King maketh War upon the Parliament it is a breach of Trust reposed in him by his People contrary to his Oath and tending to the dissolution of this Government Thirdly That whosoever shall serve or assist him in such Wars are Traytors by the fundamental
of the King's Authority and of his Kingdom against the personal Commands of the King opposed thereunto though accompanied with his presence is Treason or levying War against the King Such Interpretation is very far from the sense of that Statute and so much the Statute it self speaks beside the authority of Book-cases For if the clause of levying War had been meant only against the King's Person what need had there been thereof after the other branch in the same Statute of compassing the King's death which would necessarily have implied this And because the former doth imply this it seems not at all to be intended at least not chiefly in the latter branch but the levying War against his Laws and Authority and such a levying War though not against his Person is a levying War against the King whereas the levying of Force against his personal Commands though accompanied with his Presence and not against his Laws and Authority but in the maintenance thereof is no levying of War against the King but for him especially in a time of so many successive plots and designs of Force against the Parliament and Kingdom of probable Invasion from abroad and of so great distance and alienation of his Majesties affections from his Parliament and People and of the particular danger of the Place and Magazine of Hull of which the two Houses sitting are the most proper Judges In proclaiming Sir John Hotham Traitor they say The breach of the Priviledge of Parliament was very clear and the subversion of the Subjects common Right For though the Priviledges of Parliament extend not to these cases mentioned in the Declaration of Treason Felony and breach of the Peace so as to exempt the Members of Parliament from Punishment or from all manner of Process and Tryal yet it doth priviledge them in the way and method of their Tryal and Punishment and that the Parliament should first have the Cause brought before them that they may judge of the Fact and of the grounds of their Accusation and how far forth the manner of their Tryal may or may not concern the Priviledge of Parliament Otherwise under this pretext the Priviledge of Parliament in this matter may be so essentially broken as thereby the very Being of Parliaments may be destroyed Neither doth the sitting of a Parliament suspend all or any Law in maintaining that Law which upholds the Priviledge of Parliament which upholds the Parliament which upholds the Kingdom They further assert That in some sense they acknowledge the King to be the only person against whom Treason can be committed that is as he is King and that Treason which is against the Kingdom is more against the King than that which is against his Person because he is King For Treason is not Treason as it is against him as a man but as a man that is a King and as he hath and stands in that relation to the Kingdom entrusted with the Kingdom and discharging that Trust They also a vow That there can be no competent Judge of this or any the like case but a Parliament and do say that if the wicked Counsel about the King could master this Parliament by force they would hold up the same power to deprive us of all Parliaments which are the ground and pillar of the Subjects Liberty and that which only maketh England a free Monarchy The Orders of the two Houses carry in them Law for their limits and the Safety of the Land for their end This makes them not doubt but all his Majesties good Subjects will yeeld obedience to his Majesties Authority signified therein by both Houses of Parliament for whose encouragement and that they may know their Duty in matters of that nature and upon how sure a ground they go that follow the Judgement of Parliament for their guide They alledge the true meaning and ground of that Statute 11. Hen. 7. cap. 1. printed at large in his Majesties Message May 4 This Statute provides that none that shall attend upon the King and do him true service shall be attainted or forfeit any thing What was the scope of this Statute Answ To provide that men should not suffer as Traitors for serving the King in his Wars according to the duty of their Allegiance But if this had been all it had been a very needless and ridiculous Statute Was it then intended as they seem to make it that print it with his Majesties Message that those should be free from all crime and penalty that should follow the King and serve him in War in any case whatsoever whether it were for or against the Kingdom or the Laws thereof That cannot be for that could not stand with the duty of their Allegiance which in the beginning of this Statute is expressed to be to serve the King for the time being in his Wars for the defence of him and the Land If therefore it be against the Land as it must be if it be against the Parliament the Representative Body of the Kingdom it is a declining from the duty of Allegiance which this Statute supposes may be done though men should follow the Kings Person in the War Otherwise there had been no need of such a Proviso in the end of the Statute that none should take benefit thereby that should decline from their Allegiance That therefore which is the Principal Verb in this is the serving of the King for the time being which cannot be meant of a Perkin Warbeck or any that should call himself King but such a one as whatever his Title might prove either in himself or in his Ancestors should be received and acknowledged for such by the Kingdome the Consent whereof cannot be discern'd but by Parliament the Act whereof is the Act of the whole Kingdom by the personal Suffrage of the Peers and the Delegate Consent of the Commons of England Henry 7th therefore a wise Prince to clear this matter of contest happening between Kings de facto and Kings de jure procured this Statute to be made That none shall be accounted a Traitor for serving in his Wars the King for the time being that is him that is for the present allowed and received by the Parliament in behalf of the Kingdom And as it is truly suggested in the Preamble of the Statute It is not agreeable to reason or conscience that it should be otherwise seeing men should be put upon an impossibility of knowing their duty if the Judgment of the highest Court should not be a Rule to guide them And if the Judgment thereof is to be followed when the question is who is King much more when the question is what is the best service of the King and Kingdom Those therefore that shall guide themselves by the Judgment of Parliament ought what ever happen to be secure and free from all account and penalties upon the ground and equity of this Statute To make the Parliament countenancers of Treason they say is enough
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 pâ—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
it their humble desire to his Majesty that in such case Execution as to my Life might be remitted Unto this his Majesty readily gave his Grant and Assent And I do firmly believe if the Houses had pleased to give me the opportunity and leave of being heard they would never have denied me the Indempnity granted to the rest of the Nation That which remains of further Charge yet to me is the business of a Regiment an imployment which I can in truth affirm mine own inclinations nature and breeding little fitted me for and which was intended onely as honorary and titular with relation to Volunteers who by their application to the Council of State in a time of great Commotions did propound their own Officers and without any seeking of mine or my considering any farther of it than as the use of my Name did among others nominate me for a Colonel which the Council of State approved granting Commissions to my self and all other Officers relating thereunto And the Parliament confirmed my said Commission upon report thereof made to them This will appear by several Witnesses I have to produce in this matter that will be able to affirm how little I took upon me or at all to give any Orders or make use of such my Commission any otherwise than in name only 'T is true indeed that at a certain time when I was summoned to appear at the Committee of the Militia in Southwark whereof I was a Member That which was called my own Company of Foot from the respect which they and their Officers pretended to me were desirous to be in a posture fit for me to see them and as I passed by I took the opportunity at their desire to shew my self to them and only as taking notice of their respect in some few words expressing the reason I had to receive it in good part I told them I would no longer detain them from their other occasions After I was gone from them I appointed my Capt. Lieutenant to give them from me something to drink as might be fitting on such an occasion which to my best remembrance was five pounds and he laid it out of his own money More than this as I remember was not done by me so much as to the seeing any more the Companies of that Regiment gathered together or giving Orders to them which I publickly and avowedly declined perswading the Officers to lay down their Charges in mine own example so soon as I discern'd the intentions of the sitting down of the Committee of Safety and the exorbitant power committed to them to exercise and the way of proceedings by the Army in interesting themselves in the Civil Government of the Nation which I utterly disliked And although I forbore not to keep my station in reference to the Council of State while they sate or as a Commissioner of the Admiralty during the time by them appointed to act by Parliamentary Authority and so had occasion to be daily conversant with the Members of the Committee of Safety whereof my self with others that would not accept were named yet I perfectly kept my self dis-interested from all those Actings of the Army as to any Consent or Approbation of mine however in many things by way of discourse I did not decline converse with them holding it my duty to penetrate as far as I could into their true Intentions and Actions but resolving within my self to hold true to my Parliamentary Trust in all things wherein the Parliament appeared to me to act for the safety and good of the Kingdom however I was mis-interpreted and judged by them as one that rather favoured some of the Army and their power Upon the whole matter There is not any precedent that ever both or either of the Houses of Parliament did commit Treason For though Priviledge of Parliament does not so hold in Treason but that particular Members may be punished for it yet it is unprecedented That both or either Houses of Parliament as a collective Body ever did or could commit Treason All the Acts done in Parliaments have been reversed indeed and repealed as what was done 11. Ric. 2. was repealed 21. Ric. 2 and what was done 21. Ric. 2. was repealed 1 Hen. 4. 3 as appears by the printed Statutes Yet I do not find that both or either House of Parliament were declared Traitors for what they did in those Parliaments Or that any which acted under them suffered for the same in any inferiour Courts And surely the reason is obvious For they had a co-ordinacy in the Supream or Legislative Power for the making altering and repealing Laws And if so Par in parem non habet imperium and by authorities out of Bracton Fleta and others it may appear what Superiours the King himself hath who yet hath no Peer in his Kingdom nisi Curium Baronum God Law and Parliament And if either or both Houses cannot commit Treason Then those that act by their Authority cannot For plus peccat Author quam Actor the Author offends more than the Actor If those that command do not not can commit Treason how can those that act by their Authority be guilty of it Further I must crave leave to assert by reason of what I see opened upon the Evidence That what is done in Parliament or by their Authority ought not to be questioned in any other Court. For every offence committed in any Court must be punished in the same or in some higher and not any inferiour Court. Now the Court of Parliament hath no superiour Court as is said in Cook 's Jurisdiction of Courts And the reason there given that Judges ought not to give any opinion in a matter of Parliament is because it is not to be decided by the Common Laws but secundum Legem Consuetudinem Parliamenti This the Judges in divers Parliaments have confessed And that reason is not to be waved which the Lord Cook gives That a man can make no defence for what is said and acted there is done in Council and none ought to reveal the secrets of the House Every Member hath a Judicial Voice and can be no Witness The main substance of these Papers was read and enlarged upon by the Prisoner this day of his Tryal He was often interrupted but his memory was still relieved by his Papers so as after whatever diversions caused by the Court or Counsel he could recover himself again and proceed Yet the edge and force of his Plea as to the influencing of the Jurors Consciences may appear to have been much abated by such interruptions as doubtless was intended and will more at large appear when it shall please God to afford us a full Narrative of the Proceedings of the King's Judges Counsel and Jurors about him and of all that he occasionally said upon the digressions by them caused Wednesday June 11. being the Sentence-day AFter some little skirmishings with the Prisoner to dash all the humane weapons of Law
is not nor cannot be accountable by way of crime or offence against his Ruler and Soveraign but may do with his own what he please but still at his peril if he use not this his Liberty as he should to the end for which it is given him which is by voluntary and entire resignation to become an obedient Subject unto him who is the Supream Law-giver and Rightful King without possibility of change or defection Unto this right and the lawful exercise and possession of it this Nation did arive by the good providence and gift of God in calling and assembling the Parliament November 3d. 1640. and then continuing their Session by an express Act 17. Car. with power not to be dissolved but by their own consent which was not so much the introducing of a new Law as declaratory of what was Law before according to Man's natural Right in which he was created and of which he was possessed by God the soveraign giver of all things But the passing that said Act of Parliament alone was not that which restored the Nation to their original Right and just Natural Liberty but onely put them in the capacity and possibility of it That which wanted to make out to the Nation a clearness in having and obtaining this their right was the obligation they had put upon themselves and their posterities to their present Soveraign and his Authority which in justice and by the Oathes of Allegiance they were solemnly bound to in the sight of God as well as of Man And therefore unless by the abuse of that office of Trust to that degree as on his part to break the fundamental compact and constitution of Government they could not be set free nor restored to their original Right and first Liberty especially if together with such breach of Trust both parties appeal to God and put it upon the issue of Battel and God give the decision and in consequence thereof that original Right be asserted and possession thereof had and held for some years and then not rightfully lost but treacherously betrayed and given up by those in whom no power was rightfully placed to give up the subjection of the Nation again unto any whatsoever Unto which is to be added that how and when the dissolution of the said Parliament according to Law hath been made is yet unascertained and not particularly declared by reason whereof and by what hath been before shewed the state of the Case on the Subjects part is much altered as to the matter of Right and the Usurpation is now on the other hand there being as is well known two sorts of Usurpers either such as having no right of consent at all unto the Rule they exercise over the Subject or such who under pretence of a Right and Title do claim not by consent but by conquest and power or else hold themselves not obliged to the Fundamental compact and constitution of Government but gain unduely from the Subject by advantages taken through deceit and violence that which is not their own by Law For a rational Man to give up his Reason and Will unto the Judgement and Will of another without which no outward coercive Power can be whose Judgement and Will is not perfectly and unchangeably good and right is unwise and unsafe and by the Law of Nature forbidden And therefore all such gift made by rational men must be conditional either implied or explicite to be followers of their Rulers so far as they are followers of that good and right which is contained in the Law of the Supream Law-giver and no further reserving to themselves in case of such defection and declining of the Rulers actings from the Rule their primitive and original Freedom to resort unto that so they may in such case be as they were before they gave away their subjection unto the Will of another and reserving also the power to have this judged by a meet and competent Judge which is the Reason of the King and Kingdom declared by their Representatives in Parliament that is to say the Delegates of the People in the House of Commons assembled and the Commissioners on the Kings behalf by his own Letters Patents in the House of Peers which two concurring do very far bind the King if not wholly And when these cannot agree but break one from another the Commons in Parliament assembled are ex Officio the Keepers of the Liberties of the Nation and righteous Possessors and Defendors of it against all Usurpers and Usurpations whatsoever by the Laws of England The Valley of Jehoshaphat considered and opened by comparing 2. Chron. 20. with Joel 3. IT was the saying of Austine Nothing falls under our senses or happens in this visible World but is either commanded or permitted from the invisible and unintelligible Court and Pallace of the highest Emperor and universal King who is the chief over all the kings of the earth For although he hath both commanded and permitted a subordinate external Government over Men administred by man for the upholding of Justice in humane Societies and for the peace welfare and safety of men that are made in Gods Image yet he hath not so entirely put the Rule of the whole earth out of his own hands but that in cases of eminent injustice and oppression committed in Provinces States and Kingdomes contrary to his Lawes to their own and the very end of Magistracy which is the conservation of the Peoples just Rights and Liberties He that is higher than the highest amongst men doth regard and will shew by some extraordinary interposition of his that there are higher than they Such a seasonable and signal appearance of God for the Succor and Relief of his People in their greatest Straits and Exigencies when they have no might visible Power or armed Force to undertake the great company and multitude that comes against them nor know what to do save onely to have their eyes towards him is called in Scripture The day of the Lord's Judgement Then the Battel and cause of the Quarrel will appear to be not so much theirs as the Lord's and the frame of their heart will be humble before the Lord believing in the Lord and believing his Prophets for their good success and establishment This Dispensation is very lively described under the Type and by the Name of The Valley of Jehoshaphat as to the Season and Place wherein God will give forth a signal appearance of himself in Judgement on the behalf of his People for a final decision of the Controversie between them and their enemies It Litterally and Typically fell out thus as is at large recorded 2 Chron. 20. By way of allusion to this and upon occasion of the like yea and far greater Extreamities which God's People in the last dayes are to be brought into is that Prophesie Joel 3. for a like yea a far greater and more signal appearance of God for their Deliverance and Rescue in order to
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
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
of Powder Then one Marsh was produced a Witness who proves That Sir Henry Vane proposed the new Model of Government Whitlock being in the Chair in these particulars 1. That the Supream Power delegated by the People to their Trustees ought to be in some Fundamentals not dispensed with 2. That it is destructive to the Peoples Liberties to which by God's blessing they are restored to admit any earthly King or single person to the Legislative or Executive Power over this Nation 3. That the Supream Power delegated is not on trusted to the Peoples Trustees to erect matters of Faith or Worship so as to exercise compulsion therein Tho. Pury proves That he was at the debating of the two last of these Propositions and believes they were proposed to the Chairman Whitlock by Sir Henry Vane but affirms confidently that Sir Hen. Vane gave Reasons to maintain them Tho. Wallis produced proves Sir Henry Vane and Col. Rich in the head of a Company in Winchester Park in Southwark and that the Capt. Leiutenant Linn said to the Souldiers that Sir Henry Vane had given them five pounds to drink that the said Linn sent home a key to his wife to send him four pounds out of his trunk to give the Souldiers John Cook deposeth That he was sent to the Horseshoe-stairs to meet Sir Henry Vane and Col. Rich and that Sir H. Vane delivered five pound to Capt. Linn to reward the Souldiers This was all the Evidence given by the King's Counsel To which Sir Henry Vane was required to make his Defence and to go through with his Case all at once and not to reply again upon the King's Counsel who resolved to have the last word to the Jury Sir HENRY VANE Cook in his Pleas of the Crown fol. 6. saith King is to be understood of a King regnant and in actual possession of the Crown and not of a King when he is onely Rex de jure and out of possession Now an interregnum is confessed by the Indictment All ensigns of Authority and badges of Government were visibly in another name and stile the King 's best friends suing and being sued in another name The Court told him He should first make his Case out in point of Suit and it would be then seasonable to stand upon matter of Law for said they it is a good Rule in facto jus Oritur and enjoyn'd him to call his Witnesses if he had any To which Sir Henry Vane desired Process of Court to summon them and a further time to answer the Charge But it was told him The Jury were to be kept without meat drink fire or candle till their Verdict was delivered in and therefore that could not be granted He then cited the 4th part of Cook 's Institutes concerning the Priviledge of Parliament and that many of these things being transacted there The Court here interrupted him and said If the things charged were done justifie them if not excuse them So he went to give answer to the Fact And as to the first Warrant Jan. 30. 1648 He said that his hand had been oftentimes counterseited and amongst other occasions for two great sums to the value of ten thousand pounds and that he had great reason to believe that this Warrant was forged and produced two Witnesses to prove it Then said Windham Justice It may be your hand may have been forged for receiving of Money but it is not to be conjectured that it should be forged to set Ships to Sea and directed to the Jury to consider of the circumstances Sir H. Vane Neither of the Witnesses ever saw me set my hand to either of these Warrants or Orders nor doth one Witness prove that he ever saw me sit in the Council of State He further said That he absented from the House from Decemb. 3. 1648 till Febr. 7. That he 〈◊〉 â—â—osen a Member of the Council of State without his consent and knowledge and being demanded to take an Oath of Approbation of what had been done to the late King he refused and caused it to be expunged That these Actings in Council if any were were by Authority of Parliament of a Parliament constituted in an extraordinary manner made indissolvable but by Act of Parliament He insisted much on the Preamble of that Act so as that Parliament being co-ordinate with the King for the Government was in the King and the two Houses what-ever he acted by Them or their Authority cannot be Treason within the Statute of 25 Ed. 3. He cited an Ordinance of Parliament in 1642 and said That he hoped these things had been laid asleep by the Act of Oblivion and if they should now rise in Judgment against him he feared they would shake that Security which the People promised themselves under that Act. But if he should be now called in question for those things which were transacted in that Parliament of which he was a Member he shal have the comfort and peace of those Actions to support him in his greatest sufferings He added That if he were excepted then must he be judged for the crime of the whole Nation and that crime must be ravelled into through him That the Case is such as never yet fell out to wit that the Government being entrusted to three Estates they should so fall out among themselves as the People cannot tell which to obey That where these great Changes fall out it is not possible for any man to proceed according to all formalities of Law That there was a Political Power by this Act of 17. Caroli co-ordinate with the King and where these Powers are not in conjunction but enmity to each other no Court inferiour to the Parliament by whose Authority these things were acted ought to be Judges of this Case which certainly never happened before He farther saith he was not the first mover in these actions and that he should be called in question for these matters by a King that was out of possession at the time when these things were acted would be inconvenient to say no more That when the three Estates were disjoyned he thought it the best policy to preserve the Government in its root to wit the Commons by whom it was preserved and at last restored to its former course That as to the Regiment that passed under his name he disown'd it That Reports of Messages are not the fault of the Reporter for his judgment does not always go along with them but he is bound to deliver his Message That he alwayes loved the Government as it is set forth in our ancient Law-Books and that that Parliament so much decried at last restored affairs to the â—â—sture in which they now are As to the Warrants signed by him he said they appear to be signed in the Name and by Order of the Council and his hand that subscribes is not so much active as passive to the Commands of the Council If the Council who commanded the signing were unwarrantable
and the King is slain in the battel This Treason is questionable by the Successor as Stonies Case is in Dyer Thus ended the questions of Law proposed The Sollicitor spake after to the Jury concerning the Fact which after they withdrew to consider and being withdrawn about half an hour returned with their Verdict which being delivered by the Foreman in the name of his fellows with their consent found the Prisoner guilty of High Treason from Januar. 30. 1648. They not only found him guilty according to the Indictment which was laid for what the Prisoner did 1659 but for a long series of High Treason as they reckon from Jan. 30. 1648. By which it may appear they were a well-prepared Jury for their work The Judges oft if not alwayes pretend that the Jury is to pass Verdict only as to matter of Fact according to the Evidence given by the Witnesses thereof But a general Verdict evidently involves both that he is guilty of such fact and that the fact is Treason as they in this Verdict openly undertake to determine taking in the full sence of the Indictment and much more Unless a Jury distinguish themselves out of this usually imposed snare by giving a special Verdict concerning the Fact only they undeniably have a share with their Tutors and Instructors in the shedding of innocent blood in case matter of Law be wrongfully stated For a Jury to resolve a Case of Law that so eminent a Subjects life was concern'd in and that in less than half an hour which never yet came before any Bench of Judicature in England may seem a very strange and bold adventure But Reader How far this falls short of a full Account of all that was spoken by the Prisoner though much interrupted by the King's Bench and Counsel in those ten hours which on this day of his Tryal he stood at the Bar pleading and answering for his Life and the Cause he had with many thousands been engaged in I leave to thee to imagine till a fuller and compleater Account thereof can be obtained than is yet come to hand This was remarkable That never being indulg'd the liberty of any repose to his body all that while which indeed he asked not nor receiving any creature-refreshings though sent him for his support yea and though after all his most rational Plea in his Defence the Jury gave their Verdict against his Life he came chearfully and pleasantly from the Bar as thought worthy to suffer for the Name of Christ and was so raised and full of rejoycing that evening at the place of his confinement in the Tower that he was a wonder to any that were about him This spiritual rejoycing in Christ Jesus and his heavenly raisedness of spirit increased more and more to the very moment of his death insomuch that meer strangers to his person yea very foreigners wondred at his triumphant dissolution The true Copy of the Prisoner's own Papers containing the substance of what he pleaded on the said day of his Tryal June 6. Memorandums as to my main Defence in relation to matter of Fact and as a Narrative thereof THat without any seeking of mine I was chosen by Writ under the Great Seal to serve as Burgess for the Town of Kingston upon Hull in the Parliament that sate down on the third of Novemb. 1640. and having in pursuance thereof taken my seat in the said Parliament I was obliged by Law to give my attendance upon the said Trust as well as upon grounds of Duty and Conscience The said Parliament was not onely called and assembled after the usual manner and had the Power and Priviledges incident to that high Court but was by express Statute and Consent of the three Estates so constituted as to its Continuance Adjournment Prorogation and Dissolution that in none of these particulars they were subject to alteration but by their own common Assent declared by Act of Parliament to be passed by themselves for that purpose with the Royal Assent In the Preamble to the Act for continuance of the said Parliament these words are contained Whereas great sums of Money must of necessity be speedily advanced and provided for the relief of his Majesties Army and People in the Northern parts of this Realm and for preventing the imminent danger this Kingdom is in and for supply of his Majesties present and urgent occasions which cannot be so timely effected as is requisit without Credit for raising the said Moneys which Credit cannot be obtained until such obstacles be first removed as are occasioned by fears jealousies and apprehensions of divers his Majesties loyal Subjects That this present Parliament may be Adjourned Prorogued or Dissolved before Justice shall be duely executed upon Delinquents Publick Grievances redressed a firm Peace between the two Nations of England and Scotland concluded and before sufficient Provision be made for the repayment of the said Moneys so to be raised c. By all which the very work that was between the three Estates agreed to be done for the Good and Safety of the Kingdom was in sundry particulars declared and expressed and not only so but as is acknowledged by the late King himself in his Answer to the nineteen Propositions The Power which thereby was legally placed in both Houses was more than sufficient to prevent and restrain Tyranny So that by what hath been shewed the Law it self is with me and for me enjoyning my continued attendance on the Trust which by this means was committed to me and authorized me in particular to effect the things contained in the said Preamble and to act in all matters belonging to the high Court of Parliament for the Good and Safety of the Kingdom in time of imminent danger I had been liable to great punishment by the Law for dis-attendance and deserting my station therein till lawfully or by force dismissed there-from and this whatever occasions others might have by a voluntary or forc'd departure from attendance upon that Trust The actions therefore done by me in this capacity and according to the Law Priviledges Customs and Power of Parliament and that such a one as was thus extraordinarily constituted neither are nor can be brought within the Statute of 25. Ed. 3. cap. 2. nor are to be questioned tried much less judged and sentenc'd in any inferior Court Nay so far is it from this that by a Declaration and Resolution of Parliament Aug. 13. 1642 it is adjudged to be committing Treason in the highest degree to bring both or either Houses of Parliament under that or such like Imputations Nor till of late have I ever heard but that those who took the Judgment of Parliament for their rule and guide however tortuous or erroneous it might afterwards be accounted in succeeding times and they that acted by and under the countenance of their declared Judgments Orders or Ordinances ever acknowledged binding during the sitting of the Parliament were safe and indempnified from all punishment And
for Government-sake it self it is requisit it should be so because none are Judges of the Power and Priviledges of Parliament but themselves For admit once that their Judgment may be called in question and disputed by private persons or by inferiour Courts whose Votes are included in theirs the Fundamentals of Government are plucked up by the roots Par in pares non habet Imperium multó minus in eos qui majus Imperium habent An Equal has no command over his Equal much less over those that have a greater command or authority His late Majesty in his Answer to the nineteen Propositions does very briefly and exactly state the nature and kind of Government that is exercised in this Kingdom saying The Laws in this Kingdom are made by a King a House of Peers and a House of Commons chosen by the People all having free Votes and particular Priviledges These three Estates making one incorporate body are they in whom the Soveraignty and Supream Power is placed as to the making and repealing of Laws And the Government according to these Laws is trusted to the King who in the Interval of Parliaments is sole in the exercise of Government which the Parliament sitting he is to exercise in conjunction with the two Houses And his said Majesty asserting three sorts of Government Absolute Monarchy Aristocracy and Democracy does most rightly distinguish the Monarchy of England from all those three and commends the Constitution of this Kingdom as it is a mixture of all three having the conveniencies of them all without the inconveniencies of any one as long as the ballance hangs even between the three Estates that they run joyntly on in their proper channels and that the overflowing of either on either side raise no deluge nor inundation By the passing of the foresaid Act for the continuance of the forementioned Parliament the Intervals of Parliament were no longer as before at the will and pleasure of the King but the Power to continue the said Parliament without Adjournment Prorogation or Dissolution resided in the two Houses with the King joyntly and in none of them severally so that in effect the Government of the Kingdom during the continuance of that Parliament was in conjunction of the three Estates and in their common consents and agreements among themselves given in Parliament the assembling and meeting whereof was appointed and fixed to a place certain by Law By reason hereof it is not the attendance of any of the Members in Parliament for discharge of the Trust reposed in them confirm'd and enlarged by the said Act that is faulty or censurable by the Law but those that unwarrantably depart and desert that their Trust and station are to be blamed 6. Hen. 8. 16. The King in conjunction with the Parliament is maxime Rex and is supported in the Throne and exercise of his Regal Power by the joynt concurrence of both Houses And because as his late Majesty well observed the happiness and good of the Constitution of this Government lies in keeping the ballance even between the three Estates containing themselves within the bounds of their proper channels therefore in attempts of either to overflow those bounds they being co-ordinate the Office of a Parliament is by the very fundamental constitution of the Government to keep this ballance well poised And to that end as was before mentioned his Majesties own words are in his said Answer to the nineteen Propositions That there was legally placed in both Houses a Power more than sufficient to prevent and restrain the Power of Tyranny If so then are they the legal Judges when there is danger of Tyranny and have legal power to require their Judgment and Resolves to be obeyed not only when Arms are actually raised against them but when they discern and accordingly declare a preparation towards it else they may find it too late to prevent the power of Tyranny There is no greater attempt of Tyranny than to arm against the Parliament and there is no visible way for the restraining such Tyranny but by raising Arms in their own and the Kingdoms defence Less than this is not sufficient and therefore far from more than sufficient for the punishment of Delinquents and restraint of Tyranny Unto the King in conjunction with his two Houses according as is provided by the Law in this capacity of his as maxime Rex was the duty of Allegiance to be yeelded by his Subjects during the indissolved state of that Parliament For they were the King 's great Council and supream Court exercising the known Power and Priviledges that time out of mind have appertained to them and been put forth by them as the Exigents of the Kingdom have required when differences have happened about the very title of the Crown in declaring the duty of the Subject by yeelding their Allegiance to Kings de facto when Kings de jure have been kept out of possession This our Chronicles and the Histories of former times do plentifully inform The causes that did happen to move his late Majesty to depart from his Parliament and continue for many years not only at a distance and in a disjunction from them but at last in a declared posture of Enmity and War against them are so well known and fully stated in print not to say written in characters of blood on both parts that I shall only mention it and refer to it This matter was not done in a corner The Appeals were solemn and the decision by the Sword was given by that God who being the Judge of the whole World does Right and cannot do otherwise By occasion of these unhappy differences thus happening most great and unusual Changes and Revolutions like an irresistible Torrent did break in upon us not only to the disjoynting that Parliamentary Assembly among themselves the head from the members the co-ordinates from each other and the houses within themselves but to the creating such formed divisions among the people and to the producing such a general state of Confusion and Disorder that hardly any were able to know their duty and with certainly to discern who were to command and who to obey All things seemed to be reduced and in a manner resolved into their first elements and principles Nevertheless as dark as such a state might be the Law of England leaves not the Subjects thereof as I humbly conceive without some glimpses of direction what to do in the cleaving to and pursuing of which I hope I shall not be accounted nor judged an offender or if I am I shall have the comfort and peace of my Actions to support me in and under my greatest sufferings The Resolutions of all the Judges in Calvin's Case entituled Post-nati in the 7th Book of Cook 's Reports and the learned Arguments thereupon afforded me instruction even in this matter It may be 't is truly thence affirmed that Allegiance is due only to the King and how due is also shewed The
the Parliament to take an Oath to give my approbation ex post facto to what was done I utterly refused and would not accept of sitting in the Council of State upon those terms but occasioned a new Oath to be drawn wherein that was omitted Hereupon many of the Council of State sate that would not take the other In like manner The Resolutions and Votes for changing the Government into a Commonwealth or Free-State were passed some weeks before my return to Parliament Yet afterwards so far as I judged the same consonant to the principles and grounds declared in the Laws of England for upholding that Political Power which hath given the rise and introduction in this Nation to Monarchy it self by the account of antient Writers I conceived it my duty as the state of things did then appear to me notwithstanding the said Alteration made to keep my station in Parliament and to perform my Allegiance therein to King and Kingdom under the Powers then regnant upon my principles before declared yeelding obedience to their Authority and Commands And having received Trust in reference to the safety and preservation of the Kingdom in those times of imminent danger both within and without I did conscientiously hold my self obliged to be true and faithful therein This I did upon a publick account not daring to quit my station in Parliament by vertue of my first Writ Nor was it for any private or gainful ends to profit my self or enrich my Relations This may appear as well by the great Debt I have contracted as by the destitute condition my many Children are in as to any provision made for them And I do publickly challenge all persons whatsoever that can give information of any Bribes or covert wayes used by me during the whole time of my publick acting Therefore I hope it will be evident to the Consciences of the Jury that what I have done hath been upon principles of Integrity Honour Justice Reason and Conscience and not as is suggested in the Indictment by instigation of the Devil or want of the fear of God A second great Change that happened upon the Constitution of the Parliament and in them of the very Kingdom it self and the Laws thereof to the plucking up the Liberties of it by the very roots and the introducing of an Arbitrary Regal Power under the name of Protector by force and the Law of the Sword was the Usurpation of Cromwel which I opposed from the beginning to the end to that degree of suffering and with that constancy that well near had cost me not only the loss of my Estate but of my very Life if he might have had his will which a higher than he hindred Yet I did remain a Prisoner under great hardship four months in an Island by his Orders Hereby That which I have asserted is most undeniably evident as to the true grounds and ends of my actions all along that were against Usurpation on the one hand or such extraordinary Actings on the other as I doubted the Laws might not warrant or indempnifie unless I were inforced thereunto by an over-ruling and inevitable necessity The third considerable Change was the total disappointing and removing of the said Usurpation and the returning again of the Members of Parliament to the exercise of their primitive and original Trust for the good and safety of the Kingdom so far as the state of the times would then permit them being so much as they were under the power of an Army that for so long a time had influenced the Government Towards the recovery therefore of things again into their own channel and upon the legal Root of the Peoples Liberties to wit their Common Consent in Parliament given by their own Deputies and Trustees I held it my duty to be again acting in publick Affairs in the capacity of a Member of the said Parliament then re-entred upon the actual Exercise of their former Power or at least strugling for it In this season I had the opportunity of declaring my true intentions as to the Government upon occasion of refusing the Oath of Abjuration before mentioned And whereas I am charged with keeping out his Majesty that now is from exercising his Regal Power or Royal Authority in this his Kingdom through the ill-will born me by that part of the Parliament then sitting I was discharg'd from being a Member thereof about Jan. 9. 1659 and by many of them was charged or at least strongly suspected to be a Royalist Yea I was not only discharged from my attendance in Parliament but confined as a prisoner at mine own house some time before there was any visible power in the Nation that thought it seasonable to own the King's Interest And I hope my sitting still will not be imputed as a failer of duty in the condition of a prisoner and those circumstances I then was in This I can say that from the time I saw his Majesties Declarations from Breda declaring his Intentions and Resolutions as to his Return to take upon him the actual Exercise of his Regal Office in England and to indempnifie all those that had been Actors in the late Differences and Wars as in the said Declaration doth appear I resolved not to avoid any publick question if called thereto as relying on mine own Innocency and his Majesties declared Favour as beforesaid And for the future I determined to demean my self with that inoffensiveness and agreeableness to my duty as to give no just matter of new provocation to his Majesty in his Government All this on my part hath been punctually observed whatever my sufferings have been Nor am I willing in the least to harbour any discouraging thoughts in my mind as to his Majesties Generosity and Favour towards me who have been faithfull to the Trust I was engaged in without any malicious intentions against his Majesty his Crown or Dignity as before hath been shewed And I am desirous for the future to walk peaceably and blamelesly Whatever therefore my personal sufferings have been since his Majesties Restoration I rather impute them to the false reports and calumnies of mine enemies and misjudgers of my actions than reckon them as any thing that hath proceeded from his Majesties proper inclination whose favour and clemency I have had just reason with all humility to acknowledge First with regard to his Majesties Speech made the 27th of July 1660 in the House of Peers wherein his Majesty expresly declared it to be no intention of his that a person under my circumstances should be excepted out of the Act of Indempnity either for Life or Estate And secondly however it was the Parliaments pleasure my self unheard though then in the Tower and ready to have been brought before them to except me out of the common Indempnity and subject me to question for my actions yet they themselves of their own accord admitting the possibility that in such questioning of me I might be attainted made
and Reason out of his hands by force or noise for half an hour or more they finally refused to hear his following Plea and Reasons for an Arrest of Judgment or forbearing their sudden and rash proceeding to Sentence They had promised him before Verdict they would hear any thing in that kind he had to offer as they had also before his pleading not guilty promised him Counsel which never was granted neither They drew him on step by step first to plead on his Arraignment-day then to admit the Juries Verdict on his Tryal-day so called for he never owned it for a Legal Tryal to his last breath and after that out comes the Judgement or Sentence of Death against him pronounced by the Lord Chief Justice Forster and that of the worst complexion and most infamous famous circumstances to wit that he should be hang'd drawn and quartered at Tyburn the common Execution-place for Theeves and Robbers But in the Order for his Execution for reasons best known to them that made it the manner of his death was altered into a beheading only on Tower-hill to which place they carried him on a Sled drawn with horses a circumstance very singular and never used for those that die there and which he was kept ignorant of till the very time one of the Sheriffs men having that morning a little before told him there was to be no Sled but that he was to walk on foot Some farther Remarques of this last dayes Proceedings of the Court with him besides what is already mentioned received from one that was present and did hear and see all being what he could best remember take as followeth After the customary formalities of the Court The Clerk demanded of Sir Henry Vane what he had to say why Sentence of Death should not be passed upon him Sir Henry Vane first alledged that he had not yet heard the Indictment read in Latine The debate upon this took up some time At length some of the King's Counsel desired that the Prisoner might be satisfied in that point Sir Henry desired that Counsel then might also be assigned him to make Exceptions thereto if they found cause otherwise he valued not the hearing of it read in Latine This was over-ruled by the Court he soon therefore desisted from any further urging it The next thing Sir Henry offered in his own defence was the Bill of Exceptions which he brought with him ready drawn and offered it to the Judges desiring them according to the Statute of Westminst 2. 31. made 13. Ed. 1. to sign it This he urged so home that the Statute was consulted and read in open Court running in favour of the Prisoner to this effect That if any man find himself aggrieved by the proceedings against him before any Justices let him write his Exception and desire the Justices to set their seals to it This Act was made sayes Cook that the party wronged might have a Foundation for a legal Process against the Justices by a Writ of Error having his Exception entred upon Record in the Court where the injury is done which through the Justices over-ruling it they could not before procure so the party grieved was without remedy for whose relief this Statute was made The Justices refusing to set to their seals the party grieved may have a Writ grounded on this Statute commanding them to set their seals to his Exception This Exception extends not only to all Pleas dilatory and peremptory c. but to all Challenges of any Jurors and any material Evidence given to any Jury which by the Court is over-ruled As in this Prisoners Case the Testimony about falsifying of his hand to writings c. was by what was offered to the Jury by Justice Windham Further sayes Cook on this Statute If the Justice or Justices die their Executors or Administrators may be proceeded against for the injury done And if the Judge or Judges deny to seal the Exception the party wronged may in the Writ of Error take Issue thereupon if he can prove by Witnesses the Judge or Judges denied to seal it Notwithstanding all this the Judges over-ruled this Plea also by such interpretation as themselves put upon that Statute to wit that it was not allowable in Criminal Cases for Life This makes the Law less careful for the preservation of a man's Life than any particulars of his Estate in controversies about which this Statute is affirmed by them to hold whereas Life is the greater and innocent Blood when spilt is irreversible as to the matter it cannot be gathered up again the Estate is the lesser and if an erroneous Judgment pass about it 't is reversible upon Traverse Writ of Error or otherwise The Reason they alledged for their pretended Opinion was this That if it be held in Criminal Cases for Life every Felon in Newgate might plead the same and so there would be no Goal-delivery Sir Henry answered his Case was not the Case of common Felons alledging the Grant of his Majesty to the Petition of both Houses for his Life in case he should be attainted There is no need therefore sure said he of fearing the consequence of spinning out the time a little with a person in his circumstances Besides he said he had been a Prisoner two years and never call'd on to give any account of himself and his actions so is it not with Felons which with other considerations may sufficiently evince that there is no need of such hasting his Death He told them withal that he desired not this for his own sake only but for theirs and for posterity that they might on a more leisurely and unprejudiced hearing of what may be said on all hands prevent the bringing of innocent Blood upon themselves and the Land But being in this also over-ruled by the Court say what he could He only desired he might understand whether they would all give it as their Common Judgment they would stand to That what he desired was not his due by the Law By this means they were all put upon it one by one to declare themselves in that point unanimously denying him the benefit of that Act. To the by-standers their chief Reason seemed to be that it had not been practised this hundred or two of years The third thing Sir Henry desired was That the Petition of both Houses with his Majesties Answer thereunto might be read in the Court which after some dispute was concluded to be a thing they were not bound to take notice of not being an Act of Parliament Yet what is any Act of Parliament but a Bill presented with the Petition of both Houses to his Majesty with his Royal Assent thereto upon Publick Record At length they condescended to reade it and that was all The fourth and last thing Sir Henry offered to the consideration of of the Bench was this That in regard there were questions touching matter of Law in his Case which must receive their determination in
to the first of these The Act for Continuance of the Long Parliament is express That all and every thing or things whatsoever done or to be done for the Adjournment Proroguing or Dissolving of that Parliament contrary to that Act shall be utterly void and of none effect I then thus argue The Judges do upon occasion of this Tryal resolve That the King's Death dissolv'd that Parliament No Act of Parliament hath yet declared it to be so and the Judges ought to have some Law for their guide as Cook well sayes To be sure if in process of time the Parliament shall expresly declare That not the King's Death but the Act for the Dissolution of that Parliament did dissolve it In such case these Judges Resolution by vertue of such Act is absolutely void But innocent Blood in the mean time may be shed and an Estate wrongfully taken away And in case what the Judges assert herein were Law 't is Law not known or declared till many years after the Fact committed At this rate who is secure of Estate or Life As to the second and third Queries or Propositions It does appear out of the third part of Cook 's Institutes fol. 7. and the Statute 11. Hen. 7. cap. 1. That Actings for the King in Fact are not to be questioned by the King in Right If it be said That there was no King in this case it may be replied That they who had the Power and Exercise of the Royal Jurisdiction as to Peace and War Coynage of Money power of Life and Death c. which are the highest Ensigns of Regal Authority must needs be the Powers regnant though not under the name of King and are within the Statute 25. Edw. 3. cap. 2. as a Queen also is adjudged and any sovereign Prince though under the title only of Lord as was the case of Ireland before it was a Kingdom And if so why not in more such persons as well as one that de facto exercise the Royal Power and Sovereign Authority under what name or title soever If upon this Nicety Judgment be given against me because the Powers regnant wanted the name and formality of a King I shall doubtless have very hard measure For the reason and equity is the same if the Powers regnant had the thing though not the Title And where there is the same Reason there is the same Law as is a known Rule Now there is the same Reason the Subject should be equally indempnified that acteth under any Sovereign Authority that hath not the name of a King as if it had If there had been many Kings as a Heptarchy hath been in England heretofore those would have been understood to be within the Statute and the reason and equity of the Statute is the same in all cases For the Law is made for the benefit and security of the Subject whom the Law requires not to examine the right of Soveraignty Nor is the danger less under one Government than another The Statute is for securing the Subject from all dormant Titles that they may safely pay their Allegiance when they receive Protection and that they may not be in danger of being destroyed by two Powers at the same time For that Power which is supream and de facto will be obeyed and make it Treason to do otherwise be it right or wrong And if the Subject be at the same time in danger of committing Treason against the Power de jure then is he in a miserable condition and state of unavoidable necessity which is provided against by the Laws of the Land Otherwise if he be loyal to the King de jure he shall be hanged by the King de facto and if he be faithful to the King de facto he shall die by the King de jure when he recovers possession Against this it was that the Statute of 11. Hen. 7. was provided in the difference betwixt the two houses of York and Lancaster My Case is either the same with that and then I desire the benefit of that Statute or else it is new and then I desire as is provided 25. Ed. 3. that it be referred to the Parliament So that it is either within the Equity of the Statute 11. Hen. 7. or else it is a new Case and not to be judged by this Court If the Judges in the Resolves by them delivered upon any of the particulars before-alledged have not declared that Law that ought to guide them but their particular Judgments or Opinions as undertaking to guide the Law and that in points of so grand concern as touch the Subjects Life in case their Judgments after should prove erroneous the Verdict given upon such Errors must needs be illegal and void Judgment therefore ought to be suspended till such time as the truth and certainty of the Law may be fully argued and cleared and that in the proper Court for the hearing and judging of this Case If this be not done but I be forthwith proceeded against notwithstanding any thing however rationally or legally alledged to the contrary by such undue precipitation and giving Sentence I am contrary to Magna Charta or Law of the Land run upon and destroyed without due form and course of Law And I am like to be deprived of Estate and Life upon no Law or certain Rule which was declared before the Fact no nor before the Tryal Upon these Considerations I desire an Arrest of Judgment and that Counsel may be assigned me and competent time allowed to make good my Averrements As an Argument to press this I desire leave of the Court That the Petition of the two Houses and the King's Assent to it may be read in open Court attested by one that is present who examined and compared it with the Book of Record in the Lords House by which it evidently appears that as well the King as both Houses of Parliament were agreed that admitting I were attainted yet Execution as to my Life should be remitted And if so there is no cause to precipitate the passing Sentence especially when also such weighty points in the Law are yet to be argued and cleared unless the Judges will evidently charge themselves with my innocent Blood III. My third Reason for an Arrest of Judgment is the manifest newness of this Case being such as never happened before in the Kingdom which withal is of so vast a consequence to people of all sorts and conditions within this Realm as nothing more And being so as I doubt not with your Lordships patience I shall make it appear It is the known Law witnessed by Bracton and antient approved Law-Books That in such Cases the Judges in the inferiour Courts ought not to proceed but bring it before the high Court of Parliament To prove therefore the newness of this Case besides what I have already alledged in my Defence before the Verdict give me leave to adde that which yet further shews the newness and
to his Majesty that now is and to the Church and People of God in these Nations and to the innocent Blood of all that have been slain in this Quarrel Nothing it seems will now serve unless by the Condemnation passed upon my person they be rendred to posterity Murderers and Rebels and that upon Record in a Court of Justice in Westminster-hall And this would inevitably have followed if I had voluntarily given up this Cause without asserting their and my Innocency by which I should have pulled that Blood upon my own head which now I am sure must lie at the door of others and in particular of those that knowingly and precipitately shall embrew their hands in my innocent Blood under whatever form or pretext of Justice My Case is evidently new and unusual that which never happened before wherein there is not only much of God and of his Glory but all that is dear and of true value to all the good People in these three Nations And as I have said it cannot be Treason against the Law of Nature since the duties of the Subjects in relation to their Soveraigns and Superiours from highest to lowest are owned and conscientiously practised and yeelded by those that are the Assertors of this Cause Nor can it be Treason within the Statute of 25. Ed. 3 since besides what hath been said of no King in possession and of being under Powers regnant Kings de facto as also of the Fact in its own nature and the Evidence as to Overt Acts pretended it is very plain it cannot possibly fall within the purview of that Statute For this Case thus circumstantiated as before declared is no Act of any private person of his own head as that Statute intends nor in relation to the King there meant that is presumed to be in the exercise of his Royal Authority in conjunction with the Law and the two Houses of Parliament if they be sitting as the fundamental Constitutions of the Government do require My Lords If I have been free and plain with you in this matter I beg your Pardon For it concerns me to be so and something more than ordinarily urgent where both my Estate and Life are in such eminent peril nay more than my Life the Concerns of thousands of Lives are in it not only of those that are in their graves already but of all posterity in time to come Had nothing been in it but the care to preserve my own Life I needed not have stayed in England but might have taken my opportunity to have withdrawn my self into forreign parts to provide for my own safety Nor needed I to have been put upon pleading as now I am for an Arrest of Judgment but might have watch'd upon advantages that were visible enough to me in the managing of my Tryal if I had consulted only the preservation of my Life or Estate No my Lords I have otherwise learned Christ than to fear them that can but kill the Body and have no more that they can do I have also taken notice in the little reading that I have had of History how glorious the very Heathens have rendred their names to posterity in the contempt they have shewed of Death when the laying down of their Life has appeared to be their Duty from the love which they have owed to their Country Two remarkable examples of this give me leave to mention to you upon this occasion The one is of Socrates the divine Philosopher who was brought into question before a Judgment-Seat as now I am for maintaining that there was but one onely true God against the multiplicity of the superstitious Heathen gods and he was so little in love with his own Life upon this account wherein he knew the Right was on his side that he could not be perswaded by his friends to make any defence but would chuse rather to put it upon the conscience and determination of his Judges to decide that wherein he knew not how to make any choice of his own as to what would be best for him whether to live or to die he ingenuously professing that for ought he knew it might be much to his prejudice and loss to endeavour longer continuance in this bodily Life The other example is that of a chief Governour that to my best remembrance had the Command of a City in Greece which was besieged by a potent Enemy and brought into unimaginable straits Hereupon the said Governor makes his address to the Oracle to know the event of that danger The answer was That the City should be safely preserved if the chief Governour were slain by the Enemy He understanding this immediately disguis'd himself and went into the Enemies Camp amongst whom he did so comport himself that they unwittingly put him to death by which means immediately safety and deliverance arose to the City as the Oracle had declared So little was his Life in esteem with him when the Good and Safety of his Country required the laying of it down The BILL of EXCEPTIONS translated out of the best Latine form the Prisoner could procure No Counsel learned in the Law daring to assist him in those Circumstances without Assignment from the Court which was denied First Concerning my Imprisonment 1. I Shall here mention my entrance into this new Scene of Sufferings under the present Power after my having been handled at will and pleasure under the six years Usurpation of Cromwel which I conceive not to have been at all according to the Law of the Land as may appear by the 29th chap. of Magna Charta and Cook upon it with many other Statutes and Law-Books In all which it appears that the Law of England is so tender not to say curious in providing for the Subjects Liberty that he is not to suffer the least restraint confinement of imprisonment but by the lawfull Judgment of his Peers or by the Law of the Land Contrary to all which I was committed at meer Will and Pleasure and have been detained close Prisoner these two years without any cause specified or any particular crime laid to my charge Secondly Concerning Transactions at the Grand Jury 2. The Grand Jury of Middlesex without my privity knowledge or presence after I had been kept a close Prisoner two full years did meet take the Depositions of Witnesses and find the Bill against me which inevitably exposed me to a Tryal at the Kings Bench Bar for I knew not what whereas Major Rolph and others have had the Right of Englishmen granted them to be present at the Grand Juries proceedings yea and to have Counsel also present to plead any thing in a way of Reason or Law for invalidating the Testimony or disabling the Witnesses whereby the Indictment hath been immediately quash'd and so the party accused delivered from any shadow of Infamy by so much as appearing in the circumstances of a Male-factor at any publick Bar of Justice That this Prisoner had great need
of that Priviledge of being present himself or having Counsel and other Friends present at the Grand Jury will appear hereafter by the subdolous and injurious handling of matters there Thirdly Concerning the Jurisdiction of the Court. 3. The Offences supposed to be committed by me are things done not of my own head but as a Member of the Long Parliament or in pursuance of their Authority The matters done by me in the one respect or the other if they be deemed Offences are punishable only in Parliament and I ought not to be questioned for them in any inferiour Court As Cook shews in the 4th part of his Institutes chap. 1. concerning the high Court of Parliament For the Parliament is not confined in their Actings by the Law which inferiour Courts are tied up to but in divers cases are priviledged to act extraordinarily and unaccountably to any but themselves or succeeding Parliaments Moreover That Parliament was extraordinarily commissioned qualified and authorized by express Act of Parliament beyond all preceding Parliaments for the Causes and Ends declared in the Preamble of the Act for their Establishment accorded and passed by the joynt Consent of King Lords and Commons whereby they became unsubjected to Adjournment Prorogation or Dissolution but by their own respective voluntary Consents to be by them expressed and passed for that purpose with the Royal Assent which occasioned his late Majesty in his Answer to the nineteen Propositions to say That the Power hereby legally placed in both Houses was more than sufficient to prevent and restrain the Power of Tyranny And further The bringing of this Case under the Jurisdiction of this Court or of any other but a Parliament may prove of very dangerous consequence in point of Precedent and most disagreeing to all Rules of Justice For First By the same reason that I am questioned in this Court not only every Member of Parliament but the very Houses themselves with all their Debates Votes and Orders may not only be questioned but referred to a Petty Jury and so come to be judged and sentenc'd by a Court inferiour to themselves which Judges in all times have disclaimed and acknowledged to be out of their power according to the known Rule Par in pares non habet imperium multo minus in eos qui majus imperium habent Secondly In such case the Parties accused will be debarred of Evidence or Witness for their Justification and Defence For no Members c. present at Debates in Parliament who are the onely eye and ear-witnesses of what is said and done there ought to discover the Counsels of the House Fourthly Concerning the Indictment 1. I have not been permitted to have a copy or sight of the Indictment nor so much as to hear it read in Latine which is the original Record of the Court and ought to be the foundation of their whole proceeding with me I often desired these things of the Court yea or at least to have but the Transcripts of some particular clauses in the Indictment to enable me to shew the deficiencies thereof in Law all which others in such cases have often obtained but nothing would be granted herein This then was my hard lot and usage I was put after two years close Imprisonment to answer for my Life to a long Indictment read in English which whether it were rightly translated how should I know that might not hear the Original Record in Latine Counsel also learned in the Law were denied me though pressed for by me again and again before I pleaded And had they been granted what could they have said as to defects of Law in the Indictment unless they might have a Copy of it What can any Counsel say to any petty business concerning any part of a man's Estate that 's in controversie unless they may have a leisurely view and perusal of the Writings thereabouts much more sure will it appear requisit to the reason of all mankind when a man 's whole Estate Life and all are at stake 'T is true before I pleaded this Court promised I should have Counsel assigned me after pleading God forfend else said the Lord Chief Justice but 't is as true I never could yet see that promise made good All things tending to a fair Tryal were promised me in general before pleading but every material particular for the just defence of my Life hath been denied me ever since And my Tryal for Life was hudled up the next day of my appearing before you The Jury as was told me must not eat or drink till they had done their work so the more than forty Jewry-men that resolved to kill Paul Act. 23. 21. But why such haste and precipitancy for a man's Life that 's more than Meat or Estate when you can let Civil Causes about mens Estates depend many years and if an erroneous Judgment be passed in such matters 't is reversible But if innocent Blood be spilt it cannot be gathered up again as the wise woman of Tekoah said 2 Sam. 14. 2. But secondly then As to defects in the Indictment which I was in some measure enabled to observe from that broken hearing thereof that was afforded me here in the Court I say there are many and those very considerable and by the Law of England I ought not to have been urged to plead or make answer to such an illegal and defective Indictment 1. There is no sufficient Overt Act therein alledged of the Prisoner's imagining the King's Death or that he had any the least intention that way 2. The Levying of a War is alledged in Southwark and cannot therefore be tryed by a Jury of Middlesex Dyer fol. 234. and the 3d part of Cook 's Institutes fol. 34. 3. There is uncertainty and obscurity in the main thing alledged against me in the Indictment to wit That I together with a multitude of persons to the number of a thousand unknown to the Jury c. whereas no Criminal Act can be tryed that is not certain Certa res debet esse quae deducitur in Judicium 4. The Treason laid to my charge is alledged to have been committed with a multitude of other false Traitors which were pardoned by the Act of Indempnity such supposed crimes therefore of theirs cannot be remembred or alledged without a manifest breach of the Act of Indempnity and Oblivion The Indictment is or ought to be founded on some clause or branch of 25. Ed. 3. chap. 2. But no such Overt Act is alledged in the Indictment or proved by Witnesses as doth discover that I had any intention to kill depose or hold out the King from the possession and exercise of his Regal Power Whereas I am accused of compassing or imagining the Death of the King this must be understood of his natural or personal not politick capacity for in this latter sence the Law sayes the King cannot die First then to compass only the Deposition of the King is not within the words
the two Houses Petition to the King for his Assent to the Bills by them drawn up and passed They used this as a means to induce the King to exempt me from all benefit of the Act of Indempnity and Oblivion and then at last perswade and absolve him from making good this Grant also thereby depriving me of all visible relief for my Life I conceived my Life as secure by that Grant as others Lives or Estates are by the Act of Indempnity it self for what is that but the Bill of both Houses with the King's Assent to it upon their Petition The PETITION of both Houses of Parliament to the King 's most excellent Majesty on the behalf of Sir Henry Vane and Col. John Lambert after they left them uncapable of having any benefit of the Act of Indempnity To the King 's most Excellent Majesty The humble Petition of the Lords and Commons assembled in PARLIAMENT Sheweth THat Your Majesty having declared your gracious pleasure to proceed only against the immediate Murderers of your Royal Father We your Majesties most humble Subjects the Lords and Commons assembled not finding Sir Henry Vane nor Col. Lambert to be of that number Are humble Suiters to Your Majesty that if they shall be Attainted that Execution as to their Lives may be remitted And as in duty bound c. The said Petition being read it was agreed to and ordered to be presented to his Majesty by the Lord Chancellor The Lord Chancellor reported That he had presented the Petition of both Houses to the King's Majesty concerning Sir Henry Vane and Col. Lambert and his Majesty grants the Desires in the said Petition John Browne Cler. Parliamentorum Concerning the Proceedings of the Court 1. THe Judges denied Counsel to the Prisoner on this pretext that they as they were to be would be his Counsel They are the King's Commissary Judges preferred and paid for their work by the King who in this case was through evil and false suggestions rendred the Prisoners chief or only Adversary whose Death he stood accused of imagining and compassing What Counsel or Assistance the Prisoner was like to have from them let the World judge 2. His Jury consisted of persons that had been engaged against him in that very Controversie and Cause for which he was tryed A Forreigner in any Criminal Case amongst us may require six of his Jurors to be of his own Countrymen a French-man six French-men a Dutch-man six Dutch-men c. There was but one here that was suspected only to have something of an English man in him sworn of the Jury and the Lord Chief Justice sharply rebuked the Clerk of the Court alledging that he knew not but he might have brought bread and cheese in his pocket and would keep them all night with other words to like purpose 3. The Prisoner was not suffered to speak a word to the Jury after the King's Counsel had spoken to take off the aggravating glosses they had put upon his pretended crime and the Judges that said they would be the Prisoner's Counsel dismissed the Jury possessed with the last exasperating charge given by those who were both the Accusers and professed Counsel against him 4. The Prisoner on his Sentence-day challenged the Sollicitor before the Court as to the injury done him on the day of his Tryal by his large and bitter Invective which he had not liberty to reply to for the vindicating of his own Innocency and unpejudicing the Juries understanding in the fittest season The Judges that had promised him before pleading they would be his Counsel instead of relieving him herein as in all reason they ought afforded him no other answer but a sharp Rebuke for criminating and scandalizing the Court together with some threatning expressions But what need had he to regard their threatnings that he saw resolved to pass a Sentence of Death upon him say what he would The main thing he charged the Sollicitor with was his saying openly in Court that he must be made a publick Sacrifice shewing no reason why and of whispering to the Foreman of the Jury in the Court before they went to Verdict a thing notoriously against all Law and Reason Amongst other things he had also said What Counsel did the Prisoner think would or durst speak for him in such a manifest Case of Treason unless he could call down the heads of those his fellow-Traitors Bradshaw or Cook from the top of Westminster-Hall or to that effect when as there were able heads in the bottom of Westminster-hall ready to have spoken to his Case if they might have been assigned by the Court But what may not be said when nothing may be replied For a person that is designing his own Interest Honours Advantages and Preferments to have the last word to the Jury against a Prisoner that stands at the Bar in danger of his Life and that a person of so generally acknowledged worth and publick concern and to perform it with impertinent flashes of Wit and declamatory flourishes of Rhetorick sending away the Jury with the fresh and last impressions of all that noise and buzze of his glosses upon the whole matter and having with irritating expressions misrepresented and aggravated the supposed crimes is a thing to be hissed oft the stage of this earth by the common Reason of all mankind What worse circumstances can a Prisoner be in than to stand at a Bar of Justice to be tryed and there hear his professed Accuser and Adversary misrepresenting miscalling and aggravating the actions he is questioned for pressing all upon the Jurors consciences with the greatest edge and flourish of all the Art Wit and Eloquence he is furnished with as Tertullus served Paul and then be deprived of all possible defence against his slanderous and injurious suggestions Paul was not so served he had the last word to his Jury when Tertullus had done Acts 24. But the children of this world are wise in their generation they knew well they had to deal with one that had been experienced for twenty years together to be a person of a very happy and unparallel'd dexterity in taking off the paint and false appearances that others by premeditated Speeches could put upon ill matters with an extemporary breath If it be said he had fair warning beforehand to say all that he had to mind the Jury of and that he was not to speak after the King's Counsel It is answered Though this were hard at best and indeed not at all sutable to the true and lawfull Liberties of English-men yet were it more tolerable in case the King's Counsel had started no new thing against the Prisoner used no provoking and unworthy expressions or made no new and unforeseen glosses upon the matter he stood charged with For then the Prisoner might be presumed to have sufficiently obviated beforehand any thing that would be said by the Counsel had they only recapitulated and so probably might have rendred his Jury somewhat uncapable
even whilst here in the body be made partaker of Eternal Life in the first fruits of it and at last sit down with Christ in Glory at his right-hand Here I shall mention some remarkable passages and changes of my Life In particular how unsought for by my self I was called to be a Member of the Long Parliament what little advantage I had by it and by what steps I became satisfied with the Cause I was engaged in and did pursue the same What the Cause was did first shew it self in the first Remonstrance of the House of Commons Secondly in the Solemn League and Covenant Thirdly in the more refined pursuit of it by the Commons House in their Actings single with what Result they were growing up into which was in the breast of the House and unknown or what the three Proposals mentioned in my Charge would have come to at last I shall not need now to say but only from all put together to assert That this Cause which was owned by the Parliament was the CAUSE of GOD and for the Promoting of the Kingdom of his dear Son JESUS CHRIST wherein are comprehended our Liberties and Duties both as Men and as Christians And since it hath pleased God who separated me from the womb to the knowledge and service of the Gospel of his Son to separate me also to this hard and difficult service at this time and to single me out to the defence and justification of this his Cause I could not consent by any words or actions of mine that the innocent Blood that hath been shed in the defence of it throughout the whole War the Guilt and moral evil of which must and does certainly lye somewhere did lye at my door or at theirs that have been the faithful Adherers to this Cause This is with such evidence upon my heart that I am most freely and chearfully willing to put the greatest Seal to it I am capable which is the pouring out of my very Blood in witness to it which is all I shall need to say in this place and at this time having spoken at large to it in my Defence at my Tryal intending to have said more the last day as what I thought was reasonable for Arrest of the Judgment but I was not permitted then to speak it Both which may with time and God's providence come to publick view And I must still assert That I remain wholly unsatisfied that the course of proceedings against me at my Tryal were according to Law but that I was run upon and destroyed contrary to Right and the Liberties of Magna Charta under the form only of Justice which I leave to God to decide who is the Judge of the whole World and to clear my Innocency Whilst in the mean time I beseech him to forgive them and all that have had a hand in my Death and that the Lord in his great mercy will not lay it unto their charge And I do account this Lot of mine no other than what is to be expected by those that are not of the World but whom Christ hath chosen out of it for the Servant is not greater than his Lord And if they have done this to the green tree they will do it much more to the dry However I shall not altogether excuse my self I know that by many weaknesses and failers I have given occasion enough of the ill usage I have met with from men though in the main the Lord knows the sincerity and integrity of my heart whatever Aspersions and Reproaches I have or do lye under I know also that God is just in bringing this Sentence and Condemnation upon me for my sins there is a body of sin and death in me deserves this Sentence and there is a similitude and likeness also that as a Christian God thinks me worthy to bear with my Lord and head in many circumstances in reference to these dealings I have met with in the good I have been endeavouring for many years to be doing in these Nations and especially now at last in being numbred amongst transgressors and made a publick Sacrifice through the wrath and contradictions of men and in having finished my course and fought the good fight of Faith and resisted in a way of suffering as you see even unto blood This is but the needful preparation the Lord hath been working in me to the receiving of the Crown of Immortality which he hath prepared for them that love him The prospect whereof is so chearing that through the Joy in it that is set before the eyes of my Faith I can through mercy endure this Cross despise this Shame and am become more than Conquerour through Christ that hath loved me For my Life Estate and all is not so dear to me as my Service to God to his Cause to the Kingdom of Christ and the future welfare of my Country and I am taught according to the Example as well as that most Christian saying of a Noble Person that lately died after this publick manner in Scotland How much better is it to chuse Affliction and the Cross than to sin or draw back from the Service of the Living God into the wayes of Apostacy and Perdition That Noble Person whose Memory I honour was with my self at the beginning and making of the Solemn League and Covenant the Matter of which and the holy Ends therein contained I fully assent unto and have been as desirous to observe but the rigid way of prosecuting it and the oppressing Uniformity that hath bin endeavored by it I never approved This were sufficient to vindicate me from the false Aspersions and Calumnies which have been laid upon me of Jesuitism and Popery and almost what not to make my Name of ill savour with good men which dark mists do now dispel of themselves or at least ought and need no pains of mine in making an Apology For if any man seek a proof of Christ in me let him reade it in his action of my Death which will not cease to speak when I am gone And henceforth let no man trouble me for I bear in my body the marks of the Lord Jesus I shall not desire in this place to take up much time but only as my last words leave this with you That as the present storm we now lie under and the dark Clouds that yet hang over the Reformed Churches of Christ which are coming thicker and thicker for a season were not un-fore-seen by me for many years passed as some Writings of mine declare So the coming of Christ in these Clouds in order to a speedy and sudden Revival of his Cause and spreading his Kingdom over the face of the whole Earth is most clear to the eye of my Faith even that Faith in which I dye whereby the Kingdoms of this world shall become the Kingdom of our Lord and of his Christ Amen Even so come Lord Jesus Some Passages of his PRAYER on the Scaffold
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
of that Statute several Kings have been deposed by Parliaments since the Conquest and as to my compassing or designing the natural death of the King's Person with what colour can I be accused of such intentions in the circumstances the King at that time was in beyond the Seas Secondly The assembling of men together without any hostility or injury offered to any person but for a man 's own security and defence in a time of confusion and distraction is not Levying War or Treason at the Common Law or by that Statute Yea in this Case and at the season wherein such an Act as this is alledged it might be supposed to be done for the King's Restoration as well as in opposition thereunto and the most favourable and advantagious construction ought to be made and put upon the Prisoner's actings or words where there is ambiguity so that they may be taken or interpreted divers wayes For the Law alwayes presumeth actions to be innocent till the contrary be manifestly proved However in a time of vacancy or an Interregnum when the Foundations of Government are out of course by the Law of Reason Nature and Common Prudence every man may stand upon his own guard endeavouring his own security and protection from injury and violence Thirdly To be adherent to the King's Enemies within his Realm c. cannot ought not to be understood of any adhaesion to a Parliament wherein the King by Law is supposed alwayes present as a part thereof Nor can the Long Parliament be called the King's Enemies without overthrowing the Act of Indempnity which the King hath declared to be the Foundation of the Nations present Peace and Security Lastly The Treasons alledged in the Indictment are said to have been committed when the King was out of possession So the Indictments runs to keep out the King c. Now my Lord Cook in the third part of his Institutes fol. 7. saith A King de jure and not de facto is not within this Statute Against such a one no Treason can be committed For if there be a King regnant in possession though he be Rex de facto and not de jure yet is he Seignior le Roy within the purview of this Statute and the other that hath Right and is out of possession is not within this Act. Nay if Treason be committed against a King de facto non de jure and after the King de jure cometh to the Crown he shall punish the Treason done to the King de facto And after in the same place he saith That by Law there is alwayes a King in whose Name the Laws are to be maintained and executed otherwayes Justice would fail The Act also of 11. Hen. 7. was made for security of the Subject on this behalf The word King also may and ought to be taken largely for any Sovereign Power in a King or Queen as Cook in the place fore-quoted shews and why not by the same reason in a Protector though a Usurper or any other persons one or more in whom Soveraignty is lodged or that have all the badges of Soveraignty as the calling of Parliaments enacting of Laws coining of Money receiving Forreign Ambassadors c. His Majesty that now is is granted by the very Indictment to have been then out of possession If so then was there either some other King or what was equivolent some Sovereign Power in actual possession and exercise or none If the former then was there a King de facto so no Treason could be committed against him that was King de jure only If the latter then the Government was dissolved no allegiance was due to any persons and so no offence could be properly Treason within the Statute But had the late Protector had the name and stile of a King no Treason could have been committed against the King de jure only Now God forbid that you should give away my Life upon such niceties because a usurping Protector was not clothed with the Title as well as Power of a King The Protector or any Usurper's taking or not taking the Title of a King in case he have the Power cannot alter the state of my supposed crime You ought not to be byassed by popular Reports concerning me 'T is easier to be innocent than so reported The one is in our own power not the other Fifthly Concerning the Evidence 1. No allegation was directly proved by two positive lawful Witnesses as in this case it ought to be 2. One of the Witnesses for the King confessed in open Court that to his knowledge my hand had been counterfeited to my prejudice and dammage in great Sums of Money yet Orders pretended to be signed by me wherein my hand may as well be counterfeited are taken as Evidence against me 3. The Issue of the whole Cause depended on the solution of some difficult Questions of so high a nature and great importance as could not safely be determined but in the high Court of Parliament As 1. Whether the Long Parliament called in Novemb. 1640 were dissolved by the late King's Death 2. Whether the successive remaining Powers that exercised the Royal or Supream Authority from 1648 to the Restoration of his now Majesty were not within the true sense and meaning of 25. Edw. 3. and 11. Hen. 7 As to other pertinent Queries thou mayest see them Reader in other parts of this Tryal That which remains as an Appendix to this Bill of Exceptions is to lay before thee the Grounds which plainly shew that there was a downright Conspiracy in Sir Vane's Tenants and others to prosecute him for Life and Estate under colour and pretence of Justice 1. Presently after I was committed to the Tower for High Treason and made a Close-Prisoner Mr. Oneale Sir William Darcy and Dr. Cradock obtained an Order from the King to seize and take into their possession all the Estates of such persons that were already or should be forfeited to his Majesty Hereupon the said Mr. Oneale and Sir Will. Darcy appointed some under them in the Bishoprick of Durham by name Thomas Bowes Esque now deceased and Capt. William Darcy to joyn with the said Dr. Cradock to put in execution the said Warrant as their Deputies who thereupon went to Raby Castle and demanded the Rent-Books of Thomas Mowbray my Steward offering him his place under them which he refused Contrary to this proceeding Sir Edward Cook expresly declares 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 Institut 3d part chap. 133. concerning the Seizure of Goods c. for Offences c. before Conviction 2. At the Instance and Prosecution of my Tenants and others an Order was made by the House of Commons not of the Lords requiring the Tenants of such persons as were excepted out of the General Pardon to detain their Rents in
their own hands By pretence of this Order though that Parliament that made it were dissolved The Tenants refused to pay their respective Rents as they grew due contrary to all Law and Equity and joyned together in open defiance and conspiracy against their Landlord 3. The said Tenants when legally prosecuted in his Majesties Courts at Westminster for the recovery of the said Rents out of their hands did petition the late House of Commons to put a stop to such legal Prosecution and Suits which Motion of theirs put the House into a great heat and violence against me insomuch that they had no most passed a Vote to sequester all my Estate though unheard or unconvicted 4. William Watson of Cock-field and other of the said Tenants have continued in London to carry on this Conspiracy against me by whose means with others the King hath been importuned to send for men from the Isle of Silly in order to this Tryal 5. By common fame which at least affords a strong presumption my Goods and Estate have been long begg'd by several persons and granted whereas the begging of the Goods and Estate of any Delinquent accused or indicted of Treason before he be Convicted and Attainted is utterly unlawful because till then nothing is forfeited to the King and so not his to dispose of as Sir Edward Cook shews in the fore-mentioned Chapter about the Seizure of Goods c. 6. I am credibly informed that about December last a certain Captain came from the Duke of Albemarle to Capt. Linn with threatning language that if he would not confess things against Sir Henry Vane he should be fetch'd up before the Council and made to do it Linn answered he knew nothing against Sir Henry Vane nor had any Orders from him but from the Parliament and Council The same Captain came again about a fortnight after from the Duke of Albemarle with a parcel of fine words that if he the said Linn would testifie that Sir Henry Vane was in the head of his Regiment and that he received Orders from him the Duke of Albemarle would gratifie him with any civility he should desire Linn replied he knew no Regiment Sir Henry Vane had but that it was the Parliaments and Council of States Regiment The same Captain came again to him from the Duke of Albemarle and told him The Duke desired him to testifie Sir Vane's being in the head of his Regiment and that he received Orders from him to fight Sir George Booth Linn replied he knew no such things The Captain told him as from the Duke he should have any Place or Office in the Court Be not afraid to speak said he I warrant you we shall hang Sir Henry Vane for he is a Rogue 7. I am credibly informed that one of the Grand Jury declared that after the Bill of Indictment against me was brought in some from the King's Counsel came to desire them they would please to come into the inward Court of Wards Upon which one of the Jury said they were there to judge of matters brought before them and ought not to go in thither but if the Counsel had any thing to say they ought to come to them This was seconded by some others said They were the King's Counsel and it was but matter of civility to grant them their Request whereupon they went into the inward Court of Wards where the King's Counsel were to wit Attorney-General Palmer Sollicitor-General Fynch Serjeant Glyn and Serjeant Keeling After a while they caused all to withdraw but the Jury Then the Clerk read the Indictment in the usual form for Levying War from 1659. After it was read one of the Counsel told them It was a Bill of High Treason against his Majesty and they were to consider of it according to their Evidence Then they proceeded to examine their Witnesses Jefford said Sir Henry Vane offered him a Commission to go against Sir George Booth which said Serjeant Keeling was to go against the King Wright being examined whether he saw Sir Henry Vane in the Council said Yes The Attorney-General replied that if he was amongst them they might find the Bill upon that Upon this the Jury withdrew and were by themselves Then Sir John Croply the Foreman said We must pass this Bill at which all the Jury were silent At last one stood up and said This Bill contains matter of Fact and matter of Law Some of this Jury to my knowledge were never of any Jury before as well as I therefore ignorant of the Law in so difficult and unusual a point as this is and consequently could not give in their Verdict as to Law but only Fact Several others of the Jury seconded him in this and protested against giving in their Verdict as to matter of Law notwithstanding all which the Bill was carried up to the King 's Bench. 8. On the day of my Arraignment an eminent person was heard to say I had forfeited my head by what I said that day before ever I came to my Defence what that should be I know not except my saying in open Court Soveraign Power of Parliament which the Attorney-General writ down after he had promised at my request no exception should be taken at words And whole Volumns of Lawyers Books pass up and down the Nation with that Title Soveraign Power of Parliaments 9. Six moderate men that were like to consider what they did before they would throw away my Life were summoned to be of my Petty Jury which the King's Counsel hearing writ a Letter to one of the Sheriffs to unsummon them and a new List was made the night immediately before the day of Verdict on purpose that the Prisoner might not have any knowledge of them till presented to his view and choice in Westminster-hall Yet one of the fourty eight of this List who said he would have starv'd himself before he would have found Sir Hen. Vane guilty of Treason was never called though he walked in the Hall all the while And in that Hurry of those that compassed him about he being alone stripp'd of all assistance Sir William Roberts Foreman and Sir Christopher Abdy were sworn by the Court before I was aware so my challenging them might seem a personal disobliging and exasperation of them against me after they were sworn and fixed The Sollicitor also had a long whisper with the Foreman of the Jury in the Court before they went to Verdict telling him The Prisoner must be a Sacrifice for the Nation c. Suddenly after which I am here called to receive my Sentence 10. After the day of my Tryal the Judges went to Hampton-Court 11. None were more forward to absolve the King from his Grant about my Life than they that had appeared most forward in promoting the Bill by way of Petition to the King for it This Grant being upon Record may seem to have the same validity that other Acts of Parliament have which are still but