The Trial of Henry Vane, Part 6 – Part 7
Wedneſday June 11. being the Sentence-day.
AFter ſome little skirmiſhings with the Priſoner, to daſh all the humane weapons of Law and Reaſon out of his hands, by force or noiſe, for half an hour or more they finally refuſed to hear his following Plea and Reaſons for an Arreſt of Judgment, or forbearing their ſudden and raſh proceeding to Sentence. They had promiſed him before Verdict, they would hear any thing in that kind he had to offer, as they had alſo before his pleading not guilty, promiſed him Counſel, which never was granted, neither. They drew him on, ſtep by ſtep, firſt, to plead, on his Arraignment-day, then to admit the Juries Verdict on his Tryal-day (ſo called, for he never owned it for a Legal Tryal to his laſt breath) and after that, out comes the Judgement or Sentence of Death againſt him, (pronounced by the Lord Chief Juſtice Forſter) and that, of the worſt complexion and moſt infamous famous circumſtances, to wit, that he ſhould be hang'd, drawn and quartered, at Tyburn, the common Execution-place for Theeves and Robbers.
But in the Order for his Execution, (for reaſons beſt known to them that made it) the manner of his death was altered, into a beheading only, on Tower-hill; to which place they carried him on a Sled, drawn with horſes, a circumſtance very ſingular, and never uſed for thoſe that die there, and which he was kept ignorant of till the very time; one of the Sheriffs men having that morning, a little before, told him, there was to be no Sled, but that he was to walk on foot.
Some farther Remarques of this laſt dayes Proceedings of the Court with him, beſides what is already mentioned, (received from one that was preſent, and did hear and ſee all, being what he could beſt remember) take as followeth.
After the cuſtomary formalities of the Court,
The Clerk demanded of Sir Henry Vane, what he had to ſay, why Sentence of Death ſhould not be paſſed upon him?
Sir Henry Vane firſt alledged, that he had not yet heard the Indictment read in Latine. The debate upon this, took up ſome time. At length ſome of the King's Counſel deſired that the Priſoner might be ſatisfied in that point. Sir Henry deſired that Counſel then might alſo be aſſigned him, to make Exceptions thereto, if they found cauſe, otherwiſe he valued not the hearing of it read in Latine: This was over-ruled by the Court; he ſoon therefore deſiſted from any further urging it.
The next thing Sir Henry offered in his own defence, was the Bill of Exceptions, which he brought with him ready drawn, and offered it to the Judges, deſiring them according to the Statute of Weſtminſt. 2. 31. made 13. Ed. 1. to ſign it. This he urged ſo home, that the Statute was conſulted and read in open Court, running in favour of the Priſoner, to this effect, That if any man find himſelf aggrieved by the proceedings againſt him before any Juſtices, let him write his Exception, and deſire the Juſtices to ſet their ſeals to it. This Act was made (ſayes Cook) that the party wronged might have a Foundation for a legal Proceſs againſt the Juſtices, by a Writ of Error, having his Exception entred upon Record in the Court where the injury is done, which through the Juſtices over-ruling it, they could not before procure; ſo the party grieved was without remedy, for whoſe relief this Statute was made: The Juſtices refuſing to ſet to their ſeals, the party grieved may have a Writ grounded on this Statute, commanding them to ſet their ſeals to his Exception. This Exception extends not only to all Pleas, dilatory and peremptory &c. but to all Challenges of any Jurors, and any material Evidence, given to any Jury, which by the Court is over-ruled: As in this Priſoners Caſe, the Teſtimony about falſifying of his hand to writings, &c. was, by what was offered to the Jury by Juſtice Windham.
Further, ſayes Cook on this Statute, If the Juſtice (or Juſtices) die, their Executors or Adminiſtrators may be proceeded againſt, for the injury done. And if the Judge (or Judges) deny to ſeal the Exception, the party wronged, may in the Writ of Error take Iſſue thereupon, if he can prove by Witneſſes, the Judge or Judges denied to ſeal it.
Notwithſtanding all this, the Judges over-ruled this Plea alſo, by ſuch interpretation as themſelves put upon that Statute, to wit, that it was not allowable in Criminal Caſes for Life. This makes the Law leſs careful for the preſervation of a man's Life, than any particulars of his Eſtate, in controverſies about which, this Statute is affirmed by them to hold; whereas Life is the greater, and innocent Blood when ſpilt is irreverſible, as to the matter, it cannot be gathered up again; the Eſtate is the leſſer, and if an erroneous Judgment paſs about it, 'tis reverſible upon Traverſe, Writ of Error, or otherwiſe.
The Reaſon they alledged for their pretended Opinion, was this; That if it be held in Criminal Caſes for Life, every Felon in Newgate might plead the ſame, and ſo there would be no Goal-delivery.
Sir Henry anſwered, his Caſe was not the Caſe of common Felons, alledging the Grant of his Majeſty to the Petition of both Houſes for his Life, in caſe he ſhould be attainted; There is no need therefore ſure (ſaid he) of fearing the conſequence of ſpinning out the time a little with a perſon in his circumſtances. Beſides (he ſaid) he had been a Priſoner two years, and never call'd on to give any account of himſelf and his actions, (ſo is it not with Felons) which with other conſiderations, may ſufficiently evince, that there is no need of ſuch haſting his Death. He told them withal, that he deſired not this, for his own ſake only, but for theirs, and for poſterity, that they might on a more leiſurely and unprejudiced hearing of what may be ſaid on all hands, prevent the bringing of innocent Blood upon themſelves and the Land.
But being in this alſo over-ruled by the Court, (ſay what he could) He only deſired, he might underſtand whether they would all give it as their Common Judgment they would ſtand to, That what he deſired was not his due by the Law? By this means they were all put upon it, one by one, to declare themſelves in that point, unanimouſly denying him the benefit of that Act. To the by-ſtanders their chief Reaſon ſeemed to be, that it had not been practiſed this hundred or two of years.
The third thing Sir Henry deſired, was, That the Petition of both Houſes, with his Majeſties Anſwer thereunto, might be read in the Court, which, after ſome diſpute, was concluded to be a thing they were not bound to take notice of, not being an Act of Parliament. Yet what is any Act of Parliament, but a Bill preſented with the Petition of both Houſes to his Majeſty, with his Royal Aſſent thereto, upon Publick Record? At length they condeſcended to reade it, and that was all.
The fourth and laſt thing Sir Henry offered to the conſideration of of the Bench, was this; That in regard there were queſtions touching matter of Law, in his Caſe, which muſt receive their determination in Parliament, he deſired he might have Counſel aſſigned him, to argue them before their Lordſhips. Some of theſe points he inſtanced in, to wit,
1. Whether a Parliament were accountable to any inferiour Court?
2. Whether the King, being out of poſſeſſion, and the Power Regent in others—
Here they ſtopt him, not ſuffering him to proceed, nor admitting that the King was ever out of poſſeſſion. To which Sir Henry replied, The words of his Indictment ran thus, that he endeavoured to keep out his Majeſty; and how could he keep him out of the Realm, if he were not out?
But when he ſaw they would over-rule him in all, and were bent upon his Condemnation, he put up his Papers, appealing to the Righteous Judgment of God, who (he told them) muſt judge them as well as him, often expreſſing his ſatisfaction to die upon this Teſtimony; which Keeling, one of the King's Counſel, inſultingly anſwered, So you may, Sir, in good time, by the grace of God. The ſame perſon had often before ſhewed a very ſnappiſh property towards the Priſoner; and Sir Henry ſometimes anſwered him according to his folly: For when he would have had the Book out of the Priſoner's hand, wherein was the Statute of Weſtminſter 2d. 31.
Sir Henry told him, he had a very officious Memory, and when he was of Counſel for him, he would find him Books. (Whereby was verified what was ſaid to be ſpoken by him, at firſt, in anſwer to one of his Brethren, on the Arraignment day, Though we know not what to ſay to him, we know what to do with him)
After Sentence given, Chief Juſtice Forſter endeavoured to take off the King from any Obligation by that Grant to the Petition of both Houſes, ſaying, That God, though full of mercy, yet intended his mercy only to the penitent.