The Trial of Henry Vane, Part 5
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 onelyonly 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 coordinate) 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, Poſtnati, in the 7th Book of Cook's Reports, and the learned Arguments thereupon, afforded me inſtruction even in this matter. It may be 'tis truly thence affirmed, that Allegiance is due only to the King, and how due, is alſo ſhewed.
The King is acknowledged to have two capacities in him; one a natural, as he is deſcended of the Blood Royal of the Realm; and the Body natural he hath in this capacity, is of the creation of Almighty God and mortal: The other is a politick capacity, in reſpect of which he is a Body politick or myſtical, framed by the policy of man, which is immortal and inviſible. To the King, in both theſe capacities conjoyn'd, Allegiance is due; that is to ſay, to the natural perſon of the King, accompanied with his politick capacity, or the politick appropriated to the natural.
The politick capacity of the King hath properly no body nor ſoul: for it is framed by the policy of man.
In all Indictments of Treaſon, when any one does intend the death and deſtruction of the King, it muſt needs be underſtood of his natural body, the other being immortal. The Indictment therefore concludes contra Legiantiae ſuae debitum, againſt the duty of his Allegiance, ſo that Allegiance is due to the natural body.
Admitting then that thus by Law, Allegiance is due to the King (as before recited) yet it is alwayes to be preſumed, that it is to the King in conjunction with the Parliament, the Law, and the Kingdom, and not in diſjunction from, or oppoſition to them; and that, while a Parliament is in being and cannot be diſſolved, but by the Conſent of the three Eſtates.
This is therefore that, which makes the matter in queſtion, a new Caſe, that never before happened in the Kingdom, nor was poſſible to happen, unleſs there had been a Parliament conſtituted, as this was, unſubjected to Adjournment, Prorogation or Diſſolution, by the King's will. Where ſuch a power is granted, and the co-ordinates thereupon diſagree and fall out, ſuch effects and conſequents as theſe that have happened, will but too probably follow. And, if either the Law of Nature, or England, inform not in ſuch caſe, it will be impoſſible for the Subjects to know their duty, when that Power and Command which ought to flow from three in conjunction, comes to be exerciſed by all or either of them, ſingly and apart, or by two of them againſt one.
When new and never-heard-of Changes do fall out in the Kingdom, it is not like that the known and written Laws of the Land ſhould be the exact Rule, but the Grounds and Rules of Juſtice, contained and declared in the Law of Nature, are and ought to be a Sanctuary in ſuch caſes, even by the very Common Law of England: For, thence originally ſpring the unerring Rules, that are ſet by the Divine and Eternal Law, for Rule and Subjection in all States and Kingdoms.
In contemplation hereof, as the Reſolve of all the Judges, it was agreed,
1. That Allegiance is due to Soveraignty by the Law of Nature, to wit, that Law which God at the creation of Man, infuſed into his heart, for his preſervation and direction, the Law eternal. Yet, is it not this Law, as it is in the heart of every individual man, that is binding over many, or legiſlative, but as it is the Act of a Community, or an Aſſociated People, by the right dictates and perſwaſions of the work of this Law in their hearts. This appears in the Caſe of the Iſraelites, Judg. 20, & 21 chapters, cited in the 4th part of Cook's Inſtitutes, where mention is made of a Parliament without a King, that made War, and that with their Brethren. They met as one man to do it, in vindication of that Juſtice unto which they were obliged even by the Law of Nature. This is that which Chancellor Forteſcue calls Political Power, here in England; by which, as by the Ordinance of man, in purſuance of the Ordinance of God, the Regal Office conſtituted, or the King's Politick Capacity, and becomes appropriated to his natural perſon.
Thus Politick Power is the immediate Efflux and Off-ſpring of the Law of Nature, and may be called a part of it. To this, Hooker in his Eccleſiaſtical Polity agrees, and Selden on that ſubject.
The Law of Nature thus conſidered, is part of the Law of England, as is evident by all the beſt received Law-Books, Bracton, Fleta, Lambard upon the Saxon Laws, and Forteſcue in the praiſe of the Laws of England. This is the Law that is before any judicial or municipal Law, as the root and fountain whence theſe and all Government under God and his Law do flow.
This Politick Power, as it is exerciſed in conjunction with, and conformity to the Eternal Law, partakes of its moral and immutable nature, and cannot be changed by Act of Parliament. Of this Law it is that Magna Charta and the Charter of Foreſt, with other Statutes, rehearſed in the Petition of Right, are for the moſt part declaratory. For they are not introductive of any new Law, but confirmations of what was good in all Laws of England, before. This agrees with that Maxime, Salus Populi ſuprema Lex; that being made due and binding by this Law, which in the Judgment of the Community, declaring their mind by their own free choſen Delegates and Truſtees, in harmony with the Eternal Law, appears profitable and neceſſary for the preſervation and good of the whole Society.
This is the Law, which is put forth by the common conſent of the whole Realm, in their Repreſentative; and (according to the fundamental Conſtitutions of this Kingdom) is that, with which the Kings of this Land, by the joynt co-operation of the three Eſtates, do make and repeal Laws.
But through the diſorders and diviſions of the times, theſe two Powers, the Regal and Political, (which, according to the Law of England, make up but one and the ſame ſupream Authority) fell aſſunder, and found themſelves in diſjunction from, and oppoſition to one another. I do not ſay, The queſtion is now, which of theſe is moſt rightly, (according to the principles of the Law of Nature and the Law of England) to be adhered unto and obeyed, but unto whether Power adherence is a crime, in ſuch an Exigent of State? Which, ſince it is ſuch a new and extraordinary Caſe, evidently above the Track of the ordinary Rules, contained in the poſitive and municipal Laws of England, there can be no colour to bring it within the Statute of 25. Ed. 3. cap. 2. foraſmuch as all Statutes preſuppoſe theſe two Powers, Regal and Political, in conjunction, perfect unity and ſubſerviency, which this Caſe does not, cannot admit. So exceeding new and extraordinary a Caſe is it, that it may be doubted whether, and queſtioned how far, any other Parliament, but that Parliament it ſelf that was privy to all its own Actings and Intentions, can be an indifferent and competent Judge. But however, the point is of ſo abſtruſe and high conſideration, as no inferiour Court can, or ought to judge of it, as by Law-Books is moſt undeniable; to wit, Bracton and others.
This then being the true ſtate of the Caſe, and the ſpring of that Conteſt that enſued, and received its deciſion by the late War; 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 p…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 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 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 onelyonly 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.
'Tis 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.