The Trial of Henry Vane, Part 8
Reaſons for an Arreſt of Judgment: writ by the Priſoner, but refuſed to be heard by the Court.
I. I Have been denied ſo much as to hear the Indictment read in Latine, as it is the Original Record of the Court; yea, ſo much as a Copy of it in Engliſh hath been denied me, during the whole time of my Tryal, by the fight whereof I might be able to aſſign the defects of Law that may be in it.
Counſel alſo hath been denied, not only before I pleaded, but after; and all points by me offered in Law, to the Judges of the Court, have been over-ruled, without admitting me Counſel to argue the ſame, and better inform the Judgment of the Court. I have demanded, that I might put in a Bill of Exceptions, upon the Statute of Weſtminſt. 2d. cap. 31. This likewiſe is denied me, over-ruled and judged, as out of that Statute. Neither will Counſel be allowed me in this, to ſhew cauſe, why it ought to be admitted as of Right. And as no Counſel was allowed, ſo neither were the Judges Counſel to me, as they ſaid themſelves, they would, and ought to be, but rather ſuffered me to wrong and prejudice my ſelf, ſome of them ſaying, Let him go on, the worſt will be his own at laſt. And they neither checked nor reſtrained the King's Counſel, in their high and irritating expreſſions to the Jury, to find me guilty, One of whom were ſeen to ſpeak privately with the Foreman of the Jury, immediately before the Jurors went from the Bar, after he had ſpoken openly, That the Priſoner was to be made a publick Sacrifice, in reference to the Actions done againſt his Majesty that now is.
All this is very far from that Indifferency in Tryal, and from that Equality which the Law requires, and they are bound by their Oath to afford me; beſides the undue proceedings in the buſineſs of the Petty Jury. A Liſt of forty eight perſons was preſented to me, who being to me unknown, and no time allowed me to gain any knowledge of them, though I was permitted to challenge and refuſe three Juries, without ſhewing cauſe, yet could not that refuſal be upon ſuch rational grounds as the Law ſuppoſes, which doubtleſs intends ſubſtantial relief to the Priſoner, in allowing him the liberty of ſuch refuſal: whereas, through my ignorance of the perſons, I might refuſe the beſt, and chuſe the worſt, as to my ſafety. And then, whereas the Law further allows me the refuſal of any other beyond the thirty five, on juſt and exceptionable cauſe ſhewen; what juſt exception was I capable to alledge in a ſudden hurry, againſt perſons to me altogether unknown, unleſs it would be taken for a juſt one, that they were unknown to me?
All theſe things, being ſo contrary to the Right which the Judges ſtand obliged to do to every one, as they are for that purpoſe entruſted by God and the King, is juſt cauſe for an Arreſt of Judgment; and a good Reaſon why they ſhould yet at length allow me a Copy of the Indictment, and aſſign Counſel to argue for the Priſoner, againſt the defects in Law that may be found therein. Without this, Law is denied me, which is my Birthright and Inheritance; the beſt Birthright the Subject hath, ſayes Cook on Mag. Charta, for thereby (ſayes he) his Goods, Lands, Wife, Children, his Body, Life, Honour and Eſtimation are protected from injury. The Life, Birthright or Inheritance we have from our parents, may ſoon be gone, if this Fence thereof be broken down. How great a wrong then it is for the Court to withhold it from me, is manifeſt. Are they not therefore in effect, chargeable with my Blood, by ſuch unequal Proceedings as I have had in my Tryal?
II. My ſecond Reaſon for an Arreſt of Judgment, is drawn from the Iſſue that is joyned in my Caſe, which ſeems to depend chiefly upon matter of Law, and that in ſuch tender and high points, as are only determinable in the high Court of Parliament.
For it is become the queſtion, Whether I am guilty, or not guilty, according as theſe Propoſitions following, are truly or erroneouſly reſolved?
1. Whether the Parliament, that began Novemb. 3. 1640, were diſſolved by the King's Death? and whether this Court may judge things done in Parliament?
2. Whether the Powers regnant, and de facto, that ſucceſſively were in being, from Jan. 30. 1648, to Decemb. 20, 1659, were ſuch Powers de facto, as are the King, or Seigneur le Roy, within the purview of the Stat. 25. Ed. 3. having the exerciſe of Regal Power in all the particulars of it, though not the name?
3. Whether during that time fore-mentioned, his Majeſty that now is, were properly King de facto? or whether he were not out of poſſeſſion, and without all exerciſe of his Regal Authority within the Realm?
4. Whether the Caſe now in queſtion, be a Treaſon literally within the words of the Statute, 25. Ed. 3. or at moſt, any other, than an interpretative and new Treaſon, not declared before the very time of my Tryal; and that only by the Judgment of the Court, or opinion of my Judges, eleven years after ſome of the things charged on me, are alledged to have been committed?
As to the firſt of theſe; The Act for Continuance of the Long Parliament, is expreſs; That all and every thing or things whatſoever, done or to be done, for the Adjournment, Proroguing or Diſſolving of that Parliament, contrary to that Act, ſhall be utterly void and of none effect. I then thus argue;
The Judges do upon occaſion of this Tryal, reſolve, That the King's Death diſſolv'd that Parliament. No Act of Parliament hath yet declared it to be ſo; and the Judges ought to have ſome Law for their guide, as Cook well ſayes. To be ſure, if in proceſs of time, the Parliament ſhall expreſly declare, That not the King's Death, but the Act for the Diſſolution of that Parliament, did diſſolve it; In ſuch caſe, theſe Judges Reſolution by vertue of ſuch Act, is abſolutely void. But innocent Blood in the mean time may be ſhed, and an Eſtate wrongfully taken away. And in caſe what the Judges aſſert herein, were Law, 'tis Law not known or declared till many years after the Fact committed. At this rate, who is ſecure of Eſtate or Life?
As to the ſecond and third Queries or Propoſitions; It does appear out of the third part of Cook's Inſtitutes, fol. 7. and the Statute, 11. Hen. 7. cap. 1. That Actings for the King in Fact, are not to be queſtioned by the King in Right. If it be ſaid, That there was no King in this caſe; it may be replied, That they who had the Power and Exerciſe of the Royal Juriſdiction, as to Peace and War, Coynage of Money, power of Life and Death, &c. which are the higheſt Enſigns of Regal Authority, muſt needs be the Powers regnant, though not under the name of King, and are within the Statute, 25. Edw. 3. cap. 2. as a Queen alſo is adjudged, and any ſovereign Prince, though under the title only of Lord, as was the caſe of Ireland, before it was a Kingdom. And if ſo, why not in more ſuch perſons as well as one, that de facto exerciſe the Royal Power and Sovereign Authority, under what name or title ſoever? If upon this Nicety, Judgment be given againſt me, becauſe the Powers regnant wanted the name and formality of a King, I ſhall doubtleſs have very hard meaſure. For the reaſon and equity is the ſame, if the Powers regnant had the thing, though not the Title. And where there is the ſame Reaſon, there is the ſame Law, as is a known Rule. Now there is the ſame Reaſon the Subject ſhould be equally indempnified, that acteth under any Sovereign Authority that hath not the name of a King, as if it had. If there had been many Kings, as a Heptarchy hath been in England heretofore, thoſe would have been underſtood to be within the Statute; and the reaſon and equity of the Statute is the ſame in all caſes. For the Law is made for the benefit and ſecurity of the Subject, whom the Law requires not to examine the right of Soveraignty. Nor is the danger leſs under one Government than another.
The Statute is, for ſecuring the Subject from all dormant Titles, that they may ſafely pay their Allegiance when they receive Protection, and that they may not be in danger of being deſtroyed by two Powers at the ſame time. For that Power which is ſupream and de facto, will be obeyed, and make it Treaſon to do otherwiſe, be it right or wrong. And if the Subject be at the ſame time in danger of committing Treaſon againſt the Power de jure, then is he in a miſerable condition and ſtate of unavoidable neceſſity, which is provided againſt by the Laws of the Land. Otherwiſe, if he be loyal to the King de jure, he ſhall be hanged by the King de facto; and if he be faithful to the King de facto, he ſhall die by the King de jure, when he recovers poſſeſſion.
Againſt this it was, that the Statute of 11. Hen. 7. was provided, in the difference betwixt the two houſes of York and Lancaſter. My Caſe is either the ſame with that, and then I deſire the benefit of that Statute; or elſe, it is new, and then I deſire, as is provided, 25. Ed. 3. that it be referred to the Parliament. So that it is either within the Equity of the Statute, 11. Hen. 7. or elſe it is a new Caſe, and not to be judged by this Court.
If the Judges in the Reſolves by them delivered, upon any of the particulars before-alledged, have not declared that Law that ought to guide them, but their particular Judgments or Opinions, as undertaking to guide the Law, and that in points of ſo grand concern as touch the Subjects Life, in caſe their Judgments after ſhould prove erroneous, the Verdict given upon ſuch Errors, muſt needs be illegal and void. Judgment therefore ought to be ſuſpended till ſuch time as the truth and certainty of the Law may be fully argued and cleared, and that, in the proper Court for the hearing and judging of this Caſe. If this be not done, but I be forthwith proceeded againſt (notwithſtanding any thing however rationally or legally alledged to the contrary) by ſuch undue precipitation and giving Sentence, I am (contrary to Magna Charta, or Law of the Land) run upon and deſtroyed, without due form and courſe of Law. And I am like to be deprived of Eſtate and Life upon no Law or certain Rule, which was declared before the Fact; no, nor before the Tryal.
Upon theſe Conſiderations, I deſire an Arreſt of Judgment, and that Counſel may be aſſigned me, and competent time allowed to make good my Averrements.
As an Argument to preſs this, I deſire leave of the Court, That the Petition of the two Houſes, and the King's Aſſent to it, may be read in open Court, atteſted by one that is preſent, who examined and compared it with the Book of Record in the Lords Houſe, by which it evidently appears, that as well the King as both Houſes of Parliament, were agreed, that admitting I were attainted, yet Execution, as to my Life, ſhould be remitted. And if ſo, there is no cauſe to precipitate the paſſing Sentence; eſpecially, when alſo ſuch weighty points in the Law are yet to be argued and cleared, unleſs the Judges will evidently charge themſelves with my innocent Blood.
III. My third Reaſon for an Arreſt of Judgment, is the manifeſt newneſs of this Caſe, being ſuch as never happened before in the Kingdom: which withal, is of ſo vaſt a conſequence to people of all ſorts and conditions within this Realm, as nothing more. And being ſo, (as I doubt not with your Lordſhips patience I ſhall make it appear) It is the known Law, witneſſed by Bracton and antient approved Law-Books; That in ſuch Caſes, the Judges in the inferiour Courts ought not to proceed, but bring it before the high Court of Parliament.
To prove therefore the newneſs of this Caſe, (beſides what I have already alledged in my Defence, before the Verdict) give me leave to adde that, which yet further ſhews the newneſs and extraordinarineſs thereof. And I beſeech your Lordſhips to let me go on without interruption, in my endeavouring to make it out as clearly, as God ſhall enable me, and as briefly alſo, not to ſpend too much of your time.
In general, I do affirm of this Caſe; That it is ſo comprehenſive, as to take in the very Intereſts of Heaven and Earth: Firſt, Of God the Univerſal Soveraign and King of Kings; Secondly, That of earthly Soveraigns, who are God's Vicegerents; as alſo the Intereſts of all Mankind, that ſtand in the relation of Subjects to the one or both thoſe ſorts of Soveraigns.
This is general. More particularly; within the bowels of this Caſe is that Cauſe of God, that hath ſtated it ſelf in the late Differnces and Wars, that have happened and ariſen within theſe three Nations, and have been of more than twenty years continuance: which for the greater certainty and ſolemnity, hath been recorded in the form of a National Covenant, in which the generality of the three Nations have been either implicitly involved, or expreſly concern'd, by the ſigning of their Names.
The principal things contained in that Covenant, were the known and commonly received Duties, which either as Men or as Chriſtians, we owed and ſtood obliged to perform either to God, the higheſt and univerſal King in Church and State, or to our natural Lord and Sovereign, the Kings of this Realm, in ſubordination to God and his Laws.
Again, It contains as well the Duties which we owe to every particular and individual perſon, in their ſeveral ſtations and callings, as to the King in general, and our Repreſentative Body in Parliament aſſembled. Theſe Duties we are thereby obliged to yeeld and perform, in conſiſtency with, and in a juſt ſubordination and manifeſt agreeableneſs to, the Laws of God, as is therein expreſſed: And this alſo, in no diſagreement to the Laws of the Land, as they then were.
By this ſolemn Covenant and Agreement of the three Nations, giving up themſelves in ſubjection to God and to his Laws, in the firſt place, as the Allegiance they owe to their higheſt Soveraign, (as the Creator, Redeemer, Owner and Ruler of all Mankind) they have ſo far intereſted the Son of God in the the Supream Rule and Government of theſe Nations, that nothing therein ought to be brought into practice, contrary to his revealed Will in the holy Scriptures, and his known and moſt righteous Laws.
This Duty which we owe to God, the univerſal King, Nature and Chriſtianity do ſo clearly teach and aſſert, that it needs no more than to be named. For this ſubjection and allegiance to God and his Laws, by a Right ſo indiſputable, all are accountable before the Judgment-ſeat of Chriſt.
It is true indeed, men may de facto become open Rebels to God and to his Laws, and prove ſuch as forfeit his Protection, and engage him to proceed againſt them as his profeſſed Enemies. But (with your Lordſhips favour) give me leave to ſay, that that which you have made a Rule for your proceedings in my Caſe, will indeed hold, and that very ſtrongly, in this; that is to ſay, in the ſence wherein Chriſt the Son of God is King de jure, not only in general, over the whole World, but in particular, in relation to theſe three Kingdoms. He ought not to be kept out of his Throne, nor his viſible Government, (that conſiſts in the Authority of his Word and Laws) ſuppreſſed and trampled under foot, under any pretence whatſoever.
And in the aſſerting and adhering unto the Right of this higheſt Soveraign, (as ſtated in the Covenant, before mentioned) The Lords and Commons joyntly, before the year 1648, and the Commons alone afterwards, to the very times charged in the Indictment, did manage the War and late Differences within theſe Kingdoms. And whatever defections did happen by Apoſtates, Hypocrites, and Time-ſerving worldlings, there was a party amongſt them, that continued firm, ſincere and chaſt unto the laſt, and loved it better than their very lives; of which number I am not aſhamed to profeſs my ſelf to be; not ſo much admiring the form and words of the Covenant, as the righteous and holy ends therein expreſſed, and the true ſenſe and meaning thereof, which I have reaſon to know.
Nor will I deny, but that, as to the manner of the proſecution of the Covenant to other ends than it ſelf warrants, and with a rigid oppreſſive ſpirit, (to bring all diſſenting minds and tender Conſciences under one Uniformity of Church-diſcipline and government) it was utterly againſt my Judgment. For I alwayes eſteemed it more agreeable to the Word of God, that the Ends and Work declared in the Covenant, ſhould be promoted in a ſpirit of love and forbearance to differing Judgments and Conſciences, that thereby we might be approving our ſelves in doing that to others, which we deſire they would do to us; and ſo, (though upon different principles) be found joynt and faithful advancers of the Reformation contained in the Covenant, both publick and perſonal.
This happy Union and Conjunction of all Intereſts in the reſpective duties of all relations, agreed and conſented to by the common ſuffrage of the three Nations (as well in their publick Parliamentary capacity, as private ſtations) appeared to me a Rule and meaſure approved of, and commanded by Parliament, for my action and deportment, though it met with great oppoſition, in a tedious, ſad and long War; and this, under the name and pretext of Royal Authority. Yet, as this Caſe appeared to me in my conſcience, under all its circumſtances of Times, of Perſons, and of Revolutions inevitably happening, by the hand of God and the courſe of his wiſe Providences, I held it ſafeſt and beſt to keep my ſtation in Parliament to the laſt, under the guidance and protection of their Authority, and in purſuance of the Ends before declared, in my juſt Defence.
This general and publick Caſe of the Kingdoms, is ſo well known by the Declarations and Actions that have paſſed on both ſides, that I need but name it, ſince this matter was not done in a corner, but frequently contended for in the high places of the Field, and written even with characters of Blood. And out of the bowels of theſe Publick Differences and Diſputes, doth my particular Caſe ariſe, for which I am called into queſtion. But admitting it come to my lot to ſtand ſingle, in the witneſs I am to give to this Glorious Cauſe, and to be left alone, (as in a ſort I am) yet being upheld with the Authority before aſſerted, and keeping my ſelf in union and conjunction therewith, I am not afraid to bear my Witneſs to it in this great Preſence, nor to ſeal it with my Blood, if called thereunto. And I am ſo far ſatisfied in my conſcience and underſtanding, that it neither is nor can be Treaſon, either againſt the Law of Nature, or the Law of the Land, either malum per ſe, or malum prohibitum; that on the contrary, it is the duty I owed to God the univerſal King, and to his Majeſty that now is, and to the Church and People of God in theſe Nations, and to the innocent Blood of all that have been ſlain in this Quarrel. Nothing it ſeems will now ſerve, unleſs by the Condemnation paſſed upon my perſon, they be rendred to poſterity Murderers and Rebels, and that upon Record in a Court of Juſtice in Weſtminster-hall. And this would inevitably have followed, if I had voluntarily given up this Cauſe, without aſſerting their and my Innocency, by which I ſhould have pulled that Blood upon my own head, which now I am ſure muſt lie at the door of others, and in particular, of thoſe that knowingly and precipitately ſhall embrew their hands in my innocent Blood, under whatever form or pretext of Juſtice.
My Caſe is evidently new and unuſual, that which never happened before; wherein there is, not only much of God and of his Glory, but all that is dear and of true value to all the good People in theſe three Nations. And (as I have ſaid) it cannot be Treaſon againſt the Law of Nature, ſince the duties of the Subjects in relation to their Soveraigns and Superiours, from higheſt to loweſt, are owned and conſcientiouſly practiſed and yeelded by thoſe that are the Aſſertors of this Cauſe.
Nor can it be Treaſon within the Statute of 25. Ed. 3; ſince, beſides what hath been ſaid of no King in poſſeſſion, and of being under Powers regnant & Kings de facto, as alſo of the Fact in its own nature, and the Evidence as to Overt Acts pretended, it is very plain it cannot poſſibly fall within the purview of that Statute. For this Caſe, thus circumſtantiated, (as before declared) is no Act of any private perſon, of his own head, as that Statute intends; nor in relation to the King there meant, that is preſumed to be in the exerciſe of his Royal Authority in conjunction with the Law and the two Houſes of Parliament, if they be ſitting, as the fundamental Conſtitutions of the Government do require.
My Lords, If I have been free and plain with you in this matter, I beg your Pardon: For it concerns me to be ſo, and ſomething more than ordinarily urgent, where both my Eſtate and Life are in ſuch eminent peril; nay, more than my Life, the Concerns of thouſands of Lives are in it, not only of thoſe that are in their graves already, but of all poſterity in time to come. Had nothing been in it, but the care to preſerve my own Life, I needed not have ſtayed in England, but might have taken my opportunity to have withdrawn my ſelf into forreign parts, to provide for my own ſafety. Nor needed I to have been put upon pleading, as now I am, for an Arreſt of Judgment, but might have watch'd upon advantages that were viſible enough to me, in the managing of my Tryal, if I had conſulted only the preſervation of my Life or Eſtate.
No, my Lords, I have otherwiſe learned Chriſt, than to fear them that can but kill the Body, and have no more that they can do. I have alſo taken notice, in the little reading that I have had of Hiſtory, how glorious the very Heathens have rendred their names to poſterity, in the contempt they have ſhewed of Death, (when the laying down of their Life has appeared to be their Duty) from the love which they have owed to their Country.
Two remarkable examples of this, give me leave to mention to you upon this occaſion. The one is, of Socrates the divine Philoſopher, who was brought into queſtion before a Judgment-Seat, as now I am, for maintaining, that there was but one onelyonly true God, againſt the multiplicity of the ſuperſtitious Heathen gods; and he was ſo little in love with his own Life upon this account, (wherein he knew the Right was on his ſide) that he could not be perſwaded by his friends, to make any defence, but would chuſe rather to put it upon the conſcience and determination of his Judges, to decide that wherein he knew not how to make any choice of his own, as to what would be beſt for him, whether to live or to die; he ingenuouſly profeſſing, that for ought he knew, it might be much to his prejudice and loſs, to endeavour longer continuance in this bodily Life.
The other example, is that of a chief Governour, that (to my beſt remembrance) had the Command of a City in Greece, which was beſieged by a potent Enemy, and brought into unimaginable ſtraits. Hereupon the ſaid Governor makes his addreſs to the Oracle, to know the event of that danger. The anſwer was; That the City ſhould be ſafely preſerved, if the chief Governour were ſlain by the Enemy. He, underſtanding this, immediately diſguiſ'd himſelf and went into the Enemies Camp, amongſt whom he did ſo comport himſelf, that they unwittingly put him to death; by which means, immediately ſafety and deliverance aroſe to the City, as the Oracle had declared. So little was his Life in eſteem with him, when the Good and Safety of his Country required the laying of it down.