The Trial of Henry Vane, Part 4
Here follow the chief Obſervables (as to matter of new Argument) on the day of his Tryal, being Friday June 6. 1662.
ON this day, the Sheriff returned forty eight Freeholders of the Country of Middleſex. After thirty two were challenged by the Priſoner, he had a Jury of Twelve men ſworn, to wit, Sir William Roberts, junior. Sir Chriſtopher Abdy. John Stone. Henry Carter. John Leech. Daniel Cole. Daniel Browne. Thomas Chelſam. Thomas Pitts. Thomas Ʋpman. Andrew Bent, and William Smith.
The Attorney-General's Speech to the Jury.
The Indictment is, for traiterouſly imagining and intending, &c. the Death of the King. This very imagination and compaſſing, &c. is Treaſon. Yet, foraſmuch as the intentions of the heart are ſecret; the Law cannot take notice of them, till they are declared by Overt Act. Therefore we ſhall give in Evidence, That for the accompliſhing of theſe Intentions, the Priſoner ſate with others in ſeveral Councils, or rather Confederacies, incroached the Government, levied Forces, appointed Officers, and at laſt, levied open and actual War, in the head of a Regiment. If any of theſe crimes be proved, it is ſufficient to make him guilty within this Indictment. And the open levying of War, and appearing in the head of a Regiment, is not only a Treaſon of it ſelf, but an evidence of all thoſe other Treaſons he ſtands charged with in the Indictment.
Theſe things happening before the Act of Oblivion, you will take notice of that Act,☜ and that the Priſoner being excepted by name from the benefit of that Pardon, though he be chargeable for any crime of Treaſon ſince the beginning of the late War, yet we ſhall confine the Facts for which we charge him, to the Reign of his now Majeſty.
After the Houſe had voted the late King's Conceſſions in the Iſle of Wight to be a good ground for Peace, many of the Members were kept out by force, others turned out; the Peers laid aſide, and at laſt, the King murdered. The firſt thing then that we ſhall lay to the charge of the Priſoner, is, That that very day, wherein that horried Act was committed, we find his hand and ſeal to a Warrant to the Officers of the Navie, to iſſue out Stores for a Summers Guard of the Narrow Seas. This was the firſt day of the Reign of his now Majeſty; and ſo he enumerated all the Particulars which he intended to charge him with, and proved them, as followeth.
1. The Warrant of the 30th of Jan. 48, was proved to be the hand of Sir Henry Vane, by Thomas Lewis and Thomas Turner, as they believe, neither of them affirming that they ſaw him write it, but knowing his hand, believed it to be ſo.
2. Ralph Darnel, an Under-Clerk of the Houſe of Commons, proved the Journal Book of the Houſe, and ſaid, though he will not take upon him to ſay, when Sir Henry Vane was there, and when he was abſent, yet he ſaid poſitively, that at what time ſoever he is ſet down in the Journal, to have acted or reported any thing, he was there. In which Book, Febr. 7. 1648. fol. 653, was the Order to ſet up a Council of State.
Fol. 684. 13th Feb. were the Inſtructions preſented to the Houſe, upon which the Council of State was to act.
1. The firſt was, That you, or any four or more, are to ſuppreſs all and every perſon and perſons pretending Title to the Kingly Government of this Nation, from or by the late King; Charles Steward, his ſon; or any claiming from or by them or either of them, or any other Single Perſon whatſoever.
This the Attorney ſaid, was in the firſt part of that Inſtruction, to deſtroy the King's Perſon, and in the ſecond part, the Kingly Government.
2. That you, &c. are appointed to direct the Forces of this Commonwealth, for the preventing and ſuppreſſing of Tumults and Inſurrections at home, or Invaſions from abroad; and for theſe ends, to raiſe Forces, &c.
3. That Febr. 14. 1648. fol. 695; Sir Henry Vane was choſen a Member of the Council of State, and acted upon theſe Inſtructions, which they proved thus; To wit,
Firſt, That Sir Henry Vane, as (fol. 893) 23d of March 1648, Reported from the Council of State, an Eſtimate of the number of Ships for the Summers Guard of the Narrow Seas.
Secondly, March 30. 1649, Sir Henry Vane reports from the Council of State, That ten thouſand pounds, parcel of the twenty thouſand pounds, aſſeſſed upon South Wales for their Delinquency, be allowed towards the ſetting out of this Fleet, for the ſervice of the Parliament; which was Ordered accordingly, and to be paid to Sir Henry Vane, as Treaſurer of the Navie.
Thirdly, That Sir Hen. Vane uſually ſate in Council, but this Deponent, being never admitted to go in, after the Council was ſate, proves, that he often ſaw him go in at the fore-door and back-door, and often continue there all the time the Council was ſitting.
William Dobbins and Matthew Lock ſay, That they ſeveral times ſaw Sir Henry Vane ſit in a Committee of the Council, in the years 1651 and 1652, which conſiſted only of Members of the Council, and particularly at the Committee for Scotiſh and Iriſh Affairs, where Sir Henry Vane was often in the Chair, and produced ſeveral …ders of that Committee.
Fourthly, Febr. 12. 1649, A new Council of State was choſen, of which Sir Henry Vane was one, fol. 720.
Feb. 13. 1649, All the Inſtructions of the former year were read and aſſented to.
Feb. 22. 1649. fol. 760, Sir Henry Vane reported the form of an Oath of Secreſie to be adminiſtred to every of the Members of the Council, which was, to keep all things which ſhould be tranſacted in Council, ſecret, and to be true and faithful to their Inſtructions; which the Attorney ſaid, (ſince their firſt Inſtruction was, to ſuppreſs all perſons pretending Title from the King) was in effect, an Oath of Abjuration.
Fifthly, Anno 1652, Sir Henry Vane was Preſident of the Council of State, and ſeveral Warrants were produced, to wit, May 20. 1652, and 22d of May - 52; to deliver to Major Wigan, two hundred Firelocks, and ten Drums. The other, for the delivery of five hundred Foot-Arms, for Recruit of Col. Ingoldsbyes Regiment; and theſe were ſubſcribed by Order of the Council, H. Vane, Preſident.
April 2. 1653. A Warrant of that date was produced by the Commiſſioners of the Navy, of which he was one, for furniſhing out the Hampſhire Frigat, with Proviſions and Ammunition for the uſe of the State.
From this time to 1659, they charge him with nothing, and then the Journal-Book was produced and atteſted by Ralph Darnel, wherein, May 7. 1659, an Order was made for appointing a Committee of Safety (whereof Sir Henry Vane was one) That they, or any four or more of them, ſhould take care of the Safety of this Commonwealth, and they to ſit for eight dayes and no longer, fol. 36.
Die Ven. May 13. 1659, Sir Henry Vane reported, That they had conferred with all the Foreign Ambaſſadors. That the Common-wealth is in Amity with all Foreign Princes, but Spain.
Reſolved, That Ch. Fleetwood, J. Lambert, J. Disbrough, Jam. Berry, Arthur Haſlerigg, Edmund Ludlow, and Sir Henry Vane be Commiſſioners to nominate Commiſſion-Officers for the Army of this Commonwealth. By vertue hereof they proceeded, June 17. 1659, to nominate Commiſſion-Officers, appointed Robert Moſſe a Colonel, preſenting a Liſt of his Commiſſion-Officiers; and John Maſon to be Governour of Jerſey.
Die Ven. May 31. fol. 158. Sir Henry Vane reports, concerning affairs between the two Northern Kings, in the Zound, wherein the affairs of this Commonwealth are concerned.
Die Ven. Sept. 2. 1659. At the Committee of State at White-hall, An Order was produced for the redelivery of the City-horſes to their reſpective owners, Signed, H. Vane, Preſident.
A Warrant was produced under the hand of Sir Henry Vane, proved by Thomas Lewis and one Falconer, for ſo many Hangers to Col. Tompſon, as he ſhall require for his Regiment.
Three ſeveral Letters, to deliver 1200 Arms for the uſe of my Regiment; to wit, To Sam. Linn my Capt. Leiutenant, 30 Arms for my Company; To Maj. Tho. Shurman, Major of my Regiment, four or five barrels 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 onelyonly 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 … …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 …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, 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, 'Tis 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 onelyonly 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, 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.