The Trial of Henry Vane, Part 3
Memorandums for, and towards my Defence.
Upon hearing the Indictment read, and before pleading.
FIrſt, To lay before the Court the impoſſibility that he humbly conceives, is already in view, as to the having any ſuch indifferent and equal Tryal, as the Law intends him, and doth require and command on the behalf of all the free-People of England. The Riſe for this Conception he takes from what hath been already done in relation to the Priſoner himſelf, unheard, unexamined, and yet kept cloſe Priſoner for near two whole years. This he ſhall leave to the Judgment of the Court, after he hath made known the particulars thereof unto them, as neceſſary to precede the thing demanded of him, in pleading guilty, or not guilty.
Secondly, What is the indifferency which the Law requires and appoints throughout, as well in matters that go before the Tryal, as in the proceedings at the Tryal if it ſelf?
Before the Tryal, and in the firſt ſtep to it, which is the keeping and ſecuring his perſon, Magna Charta is clear, and gives this 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 Charge comes to be exhibited.
And as this is the Caſe of the Perſon before his appearance at this Bar, with reſpect to the foreſaid unequal proceedings towards him, and the great diſadvantages put upon him, and all theſe, as it were, in a continued ſeries of Deſign; ſo, the matters and things themſelves with which it now appears he is charged in the Indictment, make his Caſe ſtill very extraordinary and unuſual, involving him in difficulties that are inſuperable, unleſs God's own immediate Power do ſhew it ſelf in working his deliverance.
The things done, are for many years paſt, in a time of Differences between King and Parliament, and Wars enſuing thereupon. Many extraordinary Changes and Revolutions in the State and Government were neceſſitated in the courſe of God's Providence, for wiſe and holy ends of his, above the reach of humane wiſdom.
The Authority by which they are done, is prejudged. The Orders, Votes and Reſolutions of Parliament are made uſeleſs, and forbidden to be produced. Hereby, all manner of defence is taken away from the Priſoner; and that which was done according to Law, as the Laws of thoſe times were, is endeavoured to be made unlawful, and ſo the perſons, acting according to ſuch Laws, are brought to puniſhment.
The Judges (as hath been ſhewed) are foreſtalled in their Judgements, by the declared ſence of Parliaments, given ex poſt facto. The Jurors are put upon difficulties never known before, for twelve Commoners to judge the Actions of all the Commons of England, in whom they are included, as to whoſe Judgment is the right, the one or the others; and whether their Repreſentatives be truſty.
The Party indicted is under an incapacity to bring Witneſſes, as well from the nature of the place wherein the things were done, within the Walls of the Houſe, as from the ſhortneſs of time, having heard nothing of his Charge, and being kept a cloſe Priſoner to the laſt day. His Solicitors and perſons imployed in his Law-buſineſſes, were alſo reſtrained from him.
It is alſo moſt evident, that the matters for which he is queſtioned, being the Product of ſo many years Agitations of Parliamantary Counſels and Arms, cannot be of a ſingle concern, nor be reputed as the actions of a private man, done of his own head, nor therefore come within any of the ſix Claſſes of Treaſon, contained in 25. Ed. 3.
It is a Caſe moſt unuſual, and never happening before in this Kingdom; yet it is alledged in the Indictment to be a levying War within that Statute, and ſo comes to have the name of High Treaſon put upon it, thereby (if poſſible) to deprive him of the uſe and benefit of Counſel, as alſo of competent time to prepare for his Defence, and all fitting and requiſit means for the clearing of his Innocency. Unto this, unleſs ſome remedy be afforded by the juſtice, candor and favour of this Court, it may be better for the Priſoner (for ought he yet knows) to be immediately deſtroyed by ſpecial Command (if nothing elſe will ſatisfie) without any form of Law, as one to whom Quarter, after at leaſt two years cool blood, is thought fit to be denied in relation to the late Wars. This may ſeem better, than under a colour and form of Juſtice, to pretend to give him the benefit of the Law and the King's Courts, whoſe part it is, to ſet free the Innocent, upon an Equal and Indifferent Tryal had before them, if their Cauſe will bear it: but it is very viſible beforehand, that all poſſible means of Defence are taken and withheld from him, and Laws are made ex poſt facto, to forejudge the merit of the Cauſe, the Party being unheard.
And when he hath ſaid all this, that as a rational man, does occur to him, and is fit for him to repreſent in all humility to the Court, he craves leave further to adde; That he ſtands at this Bar not only as a man, and a man clothed with the Priviledges of the moſt Sovereign Court, but as a Chriſtian, that hath Faith and reliance in God, through whoſe gracious and wiſe appointment, he is brought into theſe circumſtances, and unto this place at this time, whoſe Will he deſires to be found reſigned up into, as well in what He now calls him to ſuffer, as in what He hath called him formerly to act, for the good of his Country, and of the People of God in it. Upon this bottom (he bleſſes the Name of his God) he is fearleſs, and knows the iſſue will be good what ever it prove. God's ſtrength may appear in the Priſoner's weakneſs; and the more all things carry the face of certain ruine and deſtruction unto all that is near and dear to him in this world, the more will divine deliverance and ſalvation appear; to the making good of that Scripture, That he that is content to loſe his life in God's Cauſe and Way, ſhall ſave it, and he that inſtead thereof goes about to ſave his life upon undue terms, ſhall loſe it.
Far be it therefore from me, to have knowingly, maliciouſly or wittingly offended the Law, rightly underſtood and aſſerted; much leſs, to have done any thing that is malum per ſe, or that is morally evil. This is that I allow not as I am a Man, and what I deſire with ſtedfaſtneſs to reſiſt, as I am a Chriſtian. If I can judge any thing of my own Caſe, The true reaſon of the preſent difficulties and ſtraits I am in, is becauſe I have deſired to walk by a juſt and righteous Rule in all my Actions, and not to ſerve the luſts and paſſions of men, but had rather die, than wittingly and deliberately ſin againſt God and tranſgreſs his holy Laws, or prefer my own private Intereſt before the Good of the whole Community I relate unto, in the Kingdom where the lot of my reſidence is caſt.