The Trial of Henry Vane, Part 1
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 onelyonly 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 Parliamen…, 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 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 onelyonly 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 Vo…es, without or againſt his Conſent, to enjoyn any thing that is forbidden by the Law, or to forbid any thing that is enjoyned by the Law.
The King does aſſert in his Anſwer to the Houſes Petition, (May 23. 1642.) That He is a part of the Parliament, which they take upon them to defend and ſecure; and that his Prerogative is a part of, and a defence to the Laws of the Land.
In the Remonſtrance of both Houſes, (May 26. 1642.) They do aſſert; That if they have made any Precedents this Parliament, they have made them for poſterity, upon the ſame or better grounds of Reaſon and Law, than thoſe were, upon which their Predeceſſors made any for them; and do ſay, That as ſome Precedents ought not to be Rules for them to follow, ſo none can be limits to bound their Proceedings, which may and muſt vary, according to the different condition of times.
And for the particular, with which they were charged, of ſetting forth Declarations to the People who have choſen and entruſted them with all that is deareſt to them, if there be no example for it in former times; They ſay, it is becauſe there never were ſuch Monſters before, that attempted to diſaffect the People towards a Parliament.
They further ſay; His Majeſties Towns are no more his care than his Kingdom, nor his Kingdom than his People, who are not ſo his own, that he hath abſolute power over them, or in them, as in his proper Goods and Eſtate; but fiduciary, for the Kingdom, and in the paramount right of the Kingdom. They alſo acknowledge the Law, to be the ſafeguard and cuſtody of all publick and private Intereſts. They alſo hold it fit, to declare unto the Kingdom, (whoſe Honour and Intereſt is ſo much concerned in it) what is the Priviledge of the great Council of Parliament, herein; and what is the Obligation that lies upon the Kings of this Realm, as to the paſſing ſuch Bills as are offered to them by both Houſes, in the name, and for the good of the whole Kingdom, whereunto they ſtand engaged, both in Conſcience and Juſtice, to give their Royal Aſſent.
Firſt, In Conſcience; in reſpect of the Oath that is, or ought to be taken by them, at their Coronation, as well to confirm by their Royal Aſſent, all ſuch good Laws as the People ſhall chuſe, (whereby to remedy ſuch inconveniencies as the Kingdom may ſuffer) as to keep and protect the Laws already in being.
The form of the Oath is upon Record, and aſſerted by Books of good authority, Unto it relation is had, 25 Ed. 3. entitiled, The Statute of Proviſors of Benefices.
Hereupon, The ſaid Commons prayed our ſaid Lord the King, (ſith the Right of the Crown of England, and the Law of the ſaid Realm, is ſuch, that upon the miſchiefs and dammages which happen to this Realm, he ought and is bound by his Oath, with the accord of his People in Parliament, to make Remedy and Law, for the removing thereof) That it may pleaſe him to ordain Remedy.
This Right, thus claimed by the Lords and Commons, the King doth not deny, in his Anſwer thereunto.
Secondly, In Juſtice the Kings are obliged as well as in Conſcience, in reſpect of the Truſt repoſed in them, to preſerve the Kingdom by the making of new Laws, where there ſhall be need, as well as by obſerving of Laws already made; a Kingdom being many times as much expoſed to ruine for want of a new Law, as by the violation of thoſe that are in being.
This is a moſt clear Right, not to be denyed, but to be as due from his Majeſty to his People, as his Protection. In all Laws framed by both Houſes, as Petitions of Right, they have taken themſelves to be ſo far Judges of the Rights claimed by them, That when the King's Anſwer hath not been in every point, fully according to their deſire, they have ſtill inſiſted upon their Claim, and never given it over, till the Anſwer hath been according to their demand, as was done in the late Petition of Right, 3. Caroli.
This ſhews, the two Houſes of Parliament are Judge between the King and the People in queſtion of Right, as in the Caſe alſo of Ship-money and other illegal Taxes; and if ſo, why ſhould they not alſo be Judge in the Caſes of the Common Good and Neceſſity of the Kingdom, wherein the Kingdom hath as clear a Right to have the benefit and remedy of the Law, as in any other matter, ſaying Pardon and Grants of Favour?
The Malignant Party are they, that not only neglect and deſpiſe, but labour to undermine the Law, under colour of maintaining it. They endeavour to deſtroy the Fountain and Conſervators of the Law, the Parliament. They make other Judges of the Law, than what the Law hath appointed. They ſet up other Rules for themſelves to walk by, than ſuch as are according to Law; and diſpence with the Subjects obedience, to that which the Law calls Authority, and to their Determinations and Reſolutions, to whom the Judgment doth appertain by Law: Yea, though but private perſons, they make the Law to be their Rule, according to their own underſtanding only, contrary to the Judgment of thoſe that are the competent Judges thereof.
The King aſſerts, That the Act of Sir John Hotham was levying War againſt the King, by the letter of the Statute, 25 Ed. 3. cap. 2.
The Houſes ſtate the Caſe, and deny it to be within that Statute; ſaying, If the letter of that Statute be thought to import this; That no War can be levied againſt the King, but what is directed and intended againſt his Perſon; Or, that every levying of Forces for the defence of 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 to have diſſolv'd all the bands of ſervice and confidence between his Majeſty and his Parliament, of whom the Law ſayes, a diſhonourable thing ought not to be imagined.
This Concluſion then is a clear Reſult from what hath been argued; That in all Caſes of ſuch difficulty and unuſualneſs, happening by the over-ruling Providence of God, as render it impoſſible for the Subject to know his duty, by any known Law or certain Rule extant, his relying then, upon the Judgment and Reaſon of the whole Realm, declared by their Repreſentative Body in Parliament, then ſitting, and adhering thereto, and purſuing thereof, (though the ſame afterwards be by ſucceeding Parliaments, judged erroneous, factious and unjuſt) is moſt agreeable to right Reaſon and good Conſcience; and in ſo doing, all perſons are to be free and ſecure from all Account and Penalties, not only upon the ground and equity of that Statute, 11 Hen. 7. but according to all Rules of Juſtice, natural or moral.