The Trial of Henry Vane, Title page
THE TRYAL OF Sir Henry Vane, Kt. AT The KINGS BENCH, Weſtminſter, June the 2d. and 6th. 1662. Together With what he intended to have Spoken the Day of his Sentence, (June 11.) for Arreſt of Judgment, (had he not been interrupted and over-ruled by the Court) and his Bill of Exceptions. With other Occaſional SPEECHES, &c. Alſo his SPEECH and PRAYER, &c. on the Scaffold.
Printed in the Year, 1662.
The TRYAL of Sir Henry Vane Knight, at the Kings Bench, Weſtminſter, June the 2d. and 6th. 1662.
READER,
THou ſhalt not be detained with any flouriſhing Preface. 'Tis true; whether we conſider the Perſon or Cauſe, ſo much might pertinently be ſaid, as (were the Pen of ſome ready Writer imployed therein) a large Preamble might ſeem to need but a very ſhort Apol…gy, if any at all. Yet, by that time we have well weighed what this Sufferer hath ſaid for himſelf, and left behind him in writing, it will appear, that there needed not any tongue of the Learned, to form up an Introduction thereunto, but meerly the hand of a faithful Tranſcriber of his own Obſervations▪ in defence of himſelf and his Cauſe. Reſt aſſured of this, thou haſt them here fully and clearly repreſented.
The neceſſity of this courſe for thy information, as to the truth of his Caſe, be pleaſed to conſider on theſe following accounts. He was much over-ruled, diverted, interrupted, and cut ſhort in his Plea (as to a free and full delivery of his mind upon the whole matter at the Bar) by the Judges of the Kings-Bench, and by the Kings Counſel. He was alſo denyed the benefit of any Counſel to ſpeak on his behalf.
And what he did ſpeak at the Bar and on the Scaffold, was ſo diſguſtful to ſome, that the Books of thoſe that took Notes of what paſſed all along in both places, were carefully called in and ſuppreſſed. It is therefore altogether unpoſſible to give thee a full Narrative of all he ſaid, or was ſaid to him, either in Weſtminſter-Hall, or on Tower-Hill.
The Defendant foreſeeing this, did moſt carefully ſet down in writing the ſubſtance of what he intended to enlarge upon, the three dayes of his appearance at the Kings-Bench Bar, and the day of his Execution. Monday June 2. 1662, was the day of his Arraignment. Friday June 6. was the day of his Tryal, and the Jurors Verdict. Wedneſday June 11. was the day of his Sentence. Saturday June 14. was the day of his Execution on Tower-Hill, where limitations were put upon him, and the interruptions of him by many hard ſpeeches and diſturbing carriages of ſome that compaſſed him about upon the Scaffold, as alſo by the ſounding of Trumpets in his face to prevent his being heard, had many eye and ear witneſſes.
Ʋpon theſe conſiderations, I doubt not, it will appear undiſpenſably neceſſary, to have given this faithful Tranſcript of ſuch Papers of his, as do contain the moſt ſubſtantial and pleadable grounds of his publick actings▪ any time this twenty years and more, as the only means left of giving any tolerable account of the whole matter, to thy ſatisfaction. Yet ſuch Information as could be picked up from thoſe that did preſerve any Notes, taken in Court or at the Scaffold, are here alſo recorded for thy uſe, and that, faithfully, word for word.
Chancellor Forteſcue doth right worthily commend the Laws of England, as the beſt now extant and in force, in any Nation of the world, affording (if duely adminiſtred) juſt outward liberty to the People, and ſecuring the meaneſt from any oppreſſive and injurious practices of Superiours againſt them. They give alſo that juſt Prerogative to Princes, that is convenient or truly uſeful and advantagious for them to have; that is to ſay, ſuch as doth not enterfere with the Peoples just Rights, the intire and moſt wary preſervation of which, as it is the Covenant-duty of the Prince, ſo is it his beſt ſecurity and greateſt honour. 'Tis ſafer and better for him to be loved and rightly feared by free Subjects, than to be feared and hated by injured ſlaves.
The main fundamental Liberties of the free People of England, are ſummed up and comprehended in the 29th Chapter of Magna Charta. Theſe be the words;
No freeman ſhall be taken or impriſoned, or be diſſeized of his Freehold, or Liberties, or free-cuſtoms, or be out-lawed or exiled, or any otherwiſe deſtroyed. Nor will we paſs upon him, or condemn him, but by lawful Judgement of his Peers, or by the Law of the Land. We will ſell to no man, we will not deny or defer to any man, either Juſtice or Right.
Lord Chief Juſtice Cook obſerves here nine famous branches of the Law of England, couched in this ſhort Chapter, and diſcourſes upon them to good purpoſe. He ſaith alſo, that from this Chapter, as out of a root, many fruitful branches of the Law of England have ſprung.
As for the very leading injury to other wrongings of the Subject, (to wit, the reſtraint or impriſonment of his perſon) ſo curious and tender is the Law in this point, that (ſayes Cook) no man is to be attached, arreſted, taken, or reſtrained of his liberty, by petition or ſuggeſtion to the King or to his Council, unleſs it be by Indictment or Preſentment of good and lawful men (of the neighbourhood) where ſuch deeds be done.
This great Charter of Englands Liberties, made 9 Hen. 3. and ſet in the front of all ſucceeding Statute-Laws or Acts of Parliament, (as the Standard, Touch-ſtone or Jury for them to be tryed by) hath been ratified by about two and thirty Parliaments, and the Petition of Right, 3. Caroli.
The two moſt famous Ratifications hereof, entituled, Confirmationes Chartarum, & Articuli ſuper Chartas, were made 25 and 28 of Edw. 1.
All this ſtir about the great Charter, ſome conceive very needleſs, ſeeing that therein are contained thoſe fundamental Laws or Liberties of the Nation, which are ſo undeniably conſonant to the Law of Nature, or Light of Reaſon, that Parliaments themſelves ought not to abrogate, but preſerve them. Even Parliaments may ſeem to be bounded in their Legiſlative Power and Juriſdiction, by divine Equity and Reaſon, which is an eternal and therefore unalterable Law. Hence is it, that an Act of Parliament that is evidently againſt common Right or Reaſon, is null and void in it ſelf, without more ado. Suppoſe a Parliament by their Act ſhould conſtitute a man Judge in his own cauſe, give him a meer Arbitrary power; ſuch Act would be in it ſelf void.
This is declared to be the ground of that exemplary Juſtice done upon Empſon and Dudley, (as acting contrary to the Peoples Liberties in Magna Charta) whoſe Caſe is very memorable in this point. For, though they gratified Hen. 7th in what they did, and had an Act of Parliament for their Warrant, made the 11th of his Reign, yet met they with their due reward from the hands of Juſtice, that Act being againſt Equity and common Reaſon, and ſo, no juſtifiable ground or apology for thoſe infinit Abuſes and Oppreſſions of the People, they were found guilty of.
The Statute, under colour whereof they acted, ran to this effect. Be it enacted, that the Juſtices of the Aſſizes, and Juſtices of the Peace upon Information for the King, before them to be made, have full power and authority by their diſcretion, to hear and determine all offences and contempts. Having this ground, they proceeded againſt the People, upon meer Information, in the execution of Penal Laws, without any Indictment or Preſentment by good and lawful men, but only by their own Promoters or Informers, contrary to the 29th of Magna Charta, which requires, That no free-man be proceeded againſt, but by lawful Judgment of his Peers, or by the Law of the Land.
Secondly, This Act allowed them to hear and determine arbitrarily, by their own diſcretion, which is not according to the Law and Cuſtom of England. And Cook ſayes, 'tis the worst (and most aggravated) oppreſſion of all, that is done under the colour of Law, or diſguiſe of Juſtice.
Such a Statute or Act of Parliament, is, not only againſt the light of Reaſon, but against the expreſs letter of unrepealed Statute-Law; 42. Edw. 3. 1. It is aſſented and accorded, That the great Charter, and the Charter of Foreſt be holden and kept in all points, and if any Statute be made to the contrary, that ſhall be holden for none.
This alſo is conſonant to the first chapter of the great Charter it ſelf, made 9. Hen. 3. We have granted to all the free-men of our Realm, theſe Liberties under-written, to have and to hold to them and their heirs, of Us and our Heirs, for ever.
But what if this great Charter it ſelf had never been made? had England been to ſeek for righteous Laws and just Liberties? nothing leſſe. The ſame Liberties and Laws were ratified before that, in the great Charter made the ſeventeenth year of King John, and mentioned (among others) by Matthew Paris.
And to what yet amounted the matter of all theſe Grants, but what the Kings themſelves were bound before to obſerve, by their Coronation Oaths, as the antient fundamental Laws or Cuſtoms of this Land? This we may find in Mr. Lambard's Tranſlation of the Saxon Laws, from the time of King Ina, who began anno 712; to Hen. 1. who began 1100. Amongst the Saxons, King Alfred is reputed the moſt famous and learned Compiler of our Laws, which were ſtill handed along from one King to another, as the unalterable Customs of the Kingdom. In the 17th chapter of Edward the Confeſſor's Laws, The mention of the duty of a King (which, if not performed, nec nomen Regis in eo conſtabit) is remarkable. And Mr. Lambard tells us, that even William the Conqueror, did ratifie and obſerve the ſame Laws that his kinſman Edward the Confeſſor did, as obliged by his Coronation Oath.
So then, neither the great Charter in King John's time, nor that of 9. Hen. 3. were properly a new Body of Law, but a Declaration of the antient fundamental Laws, Rights and Liberties of this Nation, in Brittiſh, Saxon, Daniſh and Norman times, before. This, Cook in his Proem to the ſecond part of his Inſtitutes, obſerves; where he notes alſo, that this Charter is not called great, for quantity of words, (a ſheet of Paper will contain it) but for the great importance and weight of its matter.
Through the advice of Hubert de Burgo Chief Juſtice of England, Edward the firſt, in the eleventh year of his Reign, did, in a Council held at Oxford, unjuſtly cancel this great Charter, and that of Foreſt: Hubert therefore was juſtly ſentenc'd according to Law, by his Peers, in open Parliament. Then, 25 Ed. 1. The Statute, called, Confirmationes Charrarum was made, in the firſt chapter whereof, the Mag. Charta is peculiarly called the Common Law. 25. Ed. 1. cap. 2. Any Judgment given contrary to the ſaid Charter, is to be undone and holden for naught And cap. 4. Any that by word, deed, or counſel, go contrary to the ſaid Charter, are to be excommunicated by the Biſhops; and the Arch-Biſhops of Canterbury and York are bound to compel the other Biſhops to denounce ſentence accordingly, in caſe of their remiſneſs or neglect.
The next famous ſticklers to Hubert de Burgo, for Arbitrary Domination, were the two Spencers, father and ſon, by whoſe raſh and evil counſel (ſayes Cook) Edward the ſecond was ſeduced to break the Great Charter, and they were baniſhed for their pains.
By theſe paſſages we may obſerve, how the People would ſtill be ſtrugling (in and by their Repreſentatives) for their Legal Rights and Juſt Liberties; to obviate the Encroachers whereof, they procured ſeveral new Ratifications of their old Laws, which were indeed in themſelves unrepealable, even by Parliaments, if they will act as men, and not contradict the Law of their own Reaſon, and of the common Reaſon of all mankind.
By 25 Ed. 1. cap. 1. Juſtices, Sheriffs, Majors, and other Miniſters, that have the Laws of the Land to guide them, are required to allow the ſaid Charter to be pleaded in all its points, and in all cauſes that ſhall come before them in Judgment.
This is a clauſe (ſayes Cook) worthy to be written in letters of gold; That the Laws to be the Judges guides, (and therefore not the Judges, the guides of the Laws, by their arbitrary gloſſes) which never yet miſguided any that certainly knew and truly followed them. In conſonancy herewith, the Spaniard ſayes, Of all the three learned Profeſſions, The Lawyer is the only letter'd man, his buſineſs and duty being to follow the plain literal conſtruction of the Law, as his guide, in giving Judgment. Pretence of mystery here, carries in the bowels of it, intents, or at leaſt a deep ſuspition of arbitrary domination. The mind of the Law is not ſubject to be clouded, diſturbed or perverted by paſſion or intereſt. 'Tis far otherwiſe with Judges; therefore 'tis fitter and ſafer the Law ſhould guide them, than they the Law. Cook on the laſt mentioned Statute affirms, That this great Charter, and the Charter of Foreſt, are properly the Common Law of this Land, or the Law that is common to all the People thereof.
2 Ed. 3. cap. 8. Exact care is taken, that no Commands by the Great or Little Seal, ſhall come to diſturb or delay Common Right. Or, if ſuch Commands come, the Juſtices are not thereby to leave to do Right, in any point. So 14 Ed. 3. 14. 11 Ric. 2. 10. The Judges Oath, 18 Ed. 3. 7, runs thus:
If any force come to diſturb the execution of the Common Law, ye ſhall cauſe their bodies to be arreſted and put into Priſon. Ye ſhall deny no man Right by the King's Letters, nor counſel the King any thing that may turn to his dammage or diſheriſon.
The late King in his Declaration at Newmarket, 1641, acknowledged the Law to be the Rule of his Power. And his Majeſty that now is, in his Speech to both Houſes, the 19th of May last, ſaid excellently, The good old Rules of Law are 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? 'Tis becauſe we have had Land-floods of late; Tumults of the People, that are compared to the raging Seas, Pſal. 65. 7.