The Trial of Henry Vane, Part 9 – Part 10
The BILL of EXCEPTIONS, tranſlated out of the beſt Latine form the Priſoner could procure, No Counſel learned in the Law daring to aſſiſt him in thoſe Circumſtances, without Aſſignment from the Court, which was denied.
Firſt, Concerning my Impriſonment.
(1.) I Shall here mention my entrance into this new Scene of Sufferings, under the preſent Power, (after my having been handled at will and pleaſure, under the ſix years Uſurpation of Cromwel) which I conceive not to have been at all according to the Law of the Land, as may appear by the 29th chap. of Magna Charta, and Cook upon it, with many other Statutes and Law-Books: In all which it appears, that the Law of England is ſo tender, not to ſay curious, in providing for the Subjects Liberty, that he is not to ſuffer the leaſt reſtraint, confinement of impriſonment, but by the lawfull Judgment of his Peers, or by the Law of the Land: Contrary to all which, I was committed at meer Will and Pleaſure, and have been detained cloſe Priſoner theſe two years, without any cauſe ſpecified, or any particular crime laid to my charge.
Secondly, Concerning Tranſactions at the Grand Jury.
(2.) The Grand. Jury of Middleſex, without my privity, knowledge or preſence, (after I had been kept a cloſe Priſoner two full years) did meet, take the Depoſitions of Witneſſes, and find the Bill againſt me, which inevitably expoſed me to a Tryal at the Kings Bench Bar, for I knew not what; whereas Major Rolph and others have had the Right of Engliſhmen granted them, to be preſent at the Grand Juries proceedings; yea, and to have Counſel alſo preſent, to plead any thing in a way of Reaſon or Law, for invalidating the Teſtimony or diſabling the Witneſſes, whereby the Indictment hath been immediately quaſh'd, and ſo, the party accuſed, delivered from any ſhadow of Infamy, by ſo much as appearing in the circumſtances of a Male-factor at any publick Bar of Juſtice.
That this Priſoner had great need of that Priviledge, of being preſent himſelf, or having Counſel and other Friends preſent at the Grand Jury, will appear hereafter, by the ſubdolous and injurious handling of matters there.
Thirdly, Concerning the Juriſdiction of the Court.
(3.) The Offences ſuppoſed to be committed by me, are things done not of my own head, but as a Member of the Long Parliament. or in purſuance of their Authority. The matters done by me, in the one reſpect or the other, if they be deemed Offences, are puniſhable only in Parliament, and I ought not to be queſtioned for them in any inferiour Court; As Cook ſhews in the 4th part of his Inſtitutes, chap. 1. concerning the high Court of Parliament. For the Parliament is not confined in their Actings, by the Law which inferiour Courts are tied up to, but in divers caſes are priviledged to act extraordinarily and unaccountably to any but themſelves, or ſucceeding Parliaments. Moreover, That Parliament was extraordinarily commiſſioned, qualified and authorized by expreſs Act of Parliament, beyond all preceding Parliaments, for the Cauſes and Ends declared in the Preamble of the Act for their Eſtabliſhment, accorded and paſſed by the joynt Conſent of King, Lords and Commons, whereby they became unſubjected to Adjournment, Prorogation or Diſſolution, but by their own reſpective voluntary Conſents, to be by them expreſſed and paſſed for that purpoſe, with the Royal Aſſent; which occaſioned his late Majeſty in his Anſwer to the nineteen Propoſitions, to ſay, That the Power hereby legally placed in both Houſes, was more than ſufficient to prevent and reſtrain the Power of Tyranny.
And further, The bringing of this Caſe under the Juriſdiction of this Court, or of any other, but a Parliament, may prove of very dangerous conſequence, in point of Precedent, and moſt diſagreeing to all Rules of Juſtice. For,
Firſt, By the ſame reaſon that I am queſtioned in this Court, not only every Member of Parliament, but the very Houſes themſelves, with all their Debates, Votes and Orders, may not only be queſtioned, but referred to a Petty Jury, and ſo come to be judged and ſentenc'd by a Court inferiour to themſelves, which Judges in all times have diſclaimed and acknowledged to be out of their power, according to the known Rule, Par in pares non habet imperium, multo minus in eos, qui majus imperium habent.
Secondly, In ſuch caſe, the Parties accuſed, will be debarred of Evidence or Witneſs for their Juſtification and Defence. For no Members, &c. preſent at Debates in Parliament, (who are the onelyonly eye and ear-witneſſes of what is ſaid and done there) ought to diſcover the Counſels of the Houſe.
Fourthly, Concerning the Indictment.
1. I have not been permitted to have a copy or ſight of the Indictment, nor ſo much as to hear it read in Latine, which is the original Record of the Court, and ought to be the foundation of their whole proceeding with me. I often deſired theſe things of the Court; yea, or at leaſt, to have but the Tranſcripts of ſome particular clauſes in the Indictment, to enable me to ſhew the deficiencies thereof in Law, (all which, others in ſuch caſes have often obtained) but nothing would be granted herein.
This then was my hard lot and uſage; I was put (after two years cloſe Impriſonment) to anſwer for my Life, to a long Indictment, read in Engliſh, which whether it were rightly tranſlated how ſhould I know, that might not hear the Original Record in Latine? Counſel alſo learned in the Law, were denied me, though preſſed for by me, again and again, before I pleaded. And had they been granted, what could they have ſaid as to defects of Law in the Indictment, unleſs they might have a Copy of it? What can any Counſel ſay to any petty buſineſs concerning any part of a man's Eſtate that's in controverſie, unleſs they may have a leiſurely view and peruſal of the Writings thereabouts? much more ſure will it appear requiſit, to the reaſon of all mankind, when a man's whole Eſtate, Life and all are at ſtake. 'Tis true, before I pleaded, this Court promiſed I ſhould have Counſel aſſigned me after pleading, (God forfend elſe, ſaid the Lord Chief Juſtice) but 'tis as true, I never could yet ſee that promiſe made good. All things tending to a fair Tryal, were promiſed me in general before pleading, but every material particular for the juſt defence of my Life, hath been denied me ever ſince. And my Tryal for Life was hudled up the next day of my appearing before you; The Jury as was told me) muſt not eat or drink, till they had done their work; (ſo the more than forty Jewry-men that reſolved to kill Paul, Act. 23. 21.) But why ſuch haſte and precipitancy for a man's Life, that's more than Meat or Eſtate, when you can let Civil Cauſes about mens Eſtates depend many years? and if an erroneous Judgment be paſſed in ſuch matters, 'tis reverſible; But if innocent Blood be ſpilt, it cannot be gathered up again, as the wiſe woman of Tekoah ſaid, 2 Sam. 14.
2. But ſecondly then, As to defects in the Indictment, which I was in ſome meaſure enabled to obſerve from that broken hearing thereof, that was afforded me here in the Court; I ſay, there are many, and thoſe very conſiderable; and by the Law of England I ought not to have been urged to plead or make anſwer to ſuch an illegal and defective Indictment.
1. There is no ſufficient Overt Act therein alledged, of the Priſoner's imagining the King's Death, or that he had any the leaſt intention that way.
2. The Levying of a War, is alledged in Southwark, and cannot therefore be tryed by a Jury of Middleſex; Dyer, fol. 234. and the 3d part of Cook's Inſtitutes, fol. 34.
3. There is uncertainty and obſcurity in the main thing alledged againſt me in the Indictment; to wit, That I, together with a multitude of perſons, to the number of a thouſand, unknown to the Jury, &c. whereas no Criminal Act can be tryed that is not certain; Certa res debet eſſe quae deducitur in Judicium.
4. The Treaſon laid to my charge, is alledged to have been committed with a multitude of other falſe Traitors, which were pardoned by the Act of Indempnity; ſuch ſuppoſed crimes therefore of theirs cannot be remembred or alledged, without a manifeſt breach of the Act of Indempnity and Oblivion.
The Indictment is, or ought to be founded on ſome clauſe or branch of 25. Ed. 3. chap. 2. But no ſuch Overt Act is alledged in the Indictment, or proved by Witneſſes, as doth diſcover that I had any intention to kill, depoſe or hold out the King from the poſſeſſion and exerciſe of his Regal Power.
Whereas I am accuſed of compaſſing or imagining the Death of the King; this muſt be underſtood of his natural or perſonal, not politick capacity; for in this latter ſence, the Law ſayes, the King cannot die.
Firſt then, to compaſs only the Depoſition of the King, is not within the words of that Statute, (ſeveral Kings have been depoſed by Parliaments ſince the Conqueſt) and as to my compaſſing or deſigning the natural death of the King's Perſon, with what colour can I be accuſed of ſuch intentions, in the circumſtances the King at that time was in beyond the Seas?
Secondly, The aſſembling of men together, without any hoſtility or injury offered to any perſon, but for a man's own ſecurity and defence, in a time of confuſion and diſtraction, is not Levying War, or Treaſon at the Common Law, or by that Statute. Yea, in this Caſe, and at the ſeaſon wherein ſuch an Act as this is alledged, it might be ſuppoſed to be done for the King's Reſtoration as well as in oppoſition thereunto; and the moſt favourable and advantagious conſtruction ought to be made and put upon the Priſoner's actings or words, where there is ambiguity, ſo that they may be taken or interpreted divers wayes. For the Law alwayes preſumeth actions to be innocent, till the contrary be manifeſtly proved. However, in a time of vacancy or an Interregnum, when the Foundations of Government are out of courſe, by the Law of Reaſon, Nature, and Common Prudence, every man may ſtand upon his own guard, endeavouring his own ſecurity and protection from injury and violence.
Thirdly, To be adherent to the King's Enemies within his Realm, &c. cannot, ought not to be underſtood of any adhaeſion to a Parliament, wherein the King by Law is ſuppoſed alwayes preſent, as a part thereof. Nor can the Long Parliament be called the King's Enemies, without overthrowing the Act of Indempnity, which the King hath declared to be the Foundation of the Nations preſent Peace and Security.
Laſtly, The Treaſons alledged in the Indictment, are ſaid to have been committed when the King was out of poſſeſſion; So the Indictments runs, to keep out the King, &c. Now my Lord Cook in the third part of his Inſtitutes, fol. 7. ſaith, A King de jure, and not de facto, is not within this Statute; Againſt ſuch a one no Treaſon can be committed. For if there be a King regnant in poſſeſſion, though he be Rex de facto, and not de jure, yet is he Seignior le Roy, within the purview of this Statute; and the other that hath Right, and is out of poſſeſſion, is not within this Act. Nay, if Treaſon be committed againſt a King de facto, & non de jure, and after the King de jure cometh to the Crown, he ſhall puniſh the Treaſon done to the King de facto.
And after, in the ſame place he ſaith, That by Law there is alwayes a King, in whoſe Name the Laws are to be maintained and executed; otherwayes Juſtice would fail. The Act alſo of 11. Hen. 7. was made for ſecurity of the Subject on this behalf. The word King alſo may and ought to be taken largely for any Sovereign Power, in a King or Queen, as Cook in the place fore-quoted, ſhews; and why not by the ſame reaſon, in a Protector, though a Uſurper, or any other perſons, one or more, in whom Soveraignty is lodged, or that have all the badges of Soveraignty, as the calling of Parliaments, enacting of Laws, coining of Money, receiving Forreign Ambaſſadors, &c.? His Majeſty that now is, is granted by the very Indictment to have been then out of poſſeſſion: If ſo, then was there either ſome other King, or what was equivolent, ſome Sovereign Power in actual poſſeſſion and exerciſe, or none. If the former, then was there a King de facto, ſo no Treaſon could be committed againſt him that was King de jure only: If the latter, then the Government was diſſolved, no allegiance was due to any perſons, and ſo no offence could be properly Treaſon, within the Statute.
But had the late Protector had the name and ſtile of a King, no Treaſon could have been committed againſt the King de jure only. Now God forbid that you ſhould give away my Life upon ſuch niceties, becauſe a uſurping Protector was not clothed with the Title as well as Power of a King. The Protector or any Uſurper's taking or not taking the Title of a King, in caſe he have the Power, cannot alter the ſtate of my ſuppoſed crime. You ought not to be byaſſed by popular Reports concerning me. 'Tis eaſier to be innocent, than ſo reported. The one is in our own power, not the other.
Fifthly, Concerning the Evidence.
1. No allegation was directly proved by two poſitive lawful Witneſſes, as in this caſe it ought to be.
2. One of the Witneſſes for the King, confeſſed in open Court, that to his knowledge my hand had been counterfeited, to my prejudice and dammage, in great Sums of Money; yet Orders pretended to be ſigned by me, (wherein my hand may as well be counterfeited) are taken as Evidence againſt me.
3. The Iſſue of the whole Cauſe depended on the ſolution of ſome difficult Queſtions, of ſo high a nature and great importance, as could not ſafely be determined but in the high Court of Parliament; As,
1. Whether the Long Parliament, called in Novemb. 1640, were diſſolved by the late King's Death?
2. Whether the ſucceſſive remaining Powers, that exerciſed the Royal or Supream Authority from 1648, to the Reſtoration of his now Majeſty, were not within the true ſenſe and meaning of 25. Edw. 3. and 11. Hen. 7?
As to other pertinent Queries, thou mayeſt ſee them, Reader, in other parts of this Tryal.
That which remains, as an Appendix to this Bill of Exceptions, is to lay before thee the Grounds which plainly ſhew that there was a downright Conſpiracy in Sir Henry Vane's Tenants and others, to proſecute him for Life and Eſtate, under colour and pretence of Juſtice.
1. Preſently after I was committed to the Tower for High Treaſon, and made a Cloſe-Priſoner, Mr. Oneale, Sir William Darcy and Dr. Cradock obtained an Order from the King, to ſeize and take into their poſſeſſion, all the Eſtates of ſuch perſons, that were already or ſhould be forfeited to his Majeſty.
Hereupon the ſaid Mr. Oneale and Sir Will. Darcy appointed ſome under them in the Biſhoprick of Durham, (by name, Thomas Bowes Eſ que now deceaſed, and Capt. William Darcy) to joyn with the ſaid Dr. Cradock, to put in execution the ſaid Warrant, as their Deputies, who thereupon went to Raby Caſtle, and demanded the Rent-Books of Thomas Mowbray my Steward, offering him his place under them, which he refuſed.
Contrary to this proceeding, Sir Edward Cook expreſly declares, That before Indictment, the Goods or other things of any Offender, cannot be ſearched, inventoried, or in any ſort ſeized; nor after Indictment, ſeized, removed, or taken away, before Conviction or Attainder. Inſtitut. 3d part, chap. 133. concerning the Seizure of Goods, &c. for Offences, &c. before Conviction.
2. At the Inſtance and Proſecution of my Tenants and others, an Order was made by the Houſe of Commons (not of the Lords) requiring the Tenants of ſuch perſons as were excepted out of the General Pardon, to detain their Rents in their own hands. By pretence of this Order, (though that Parliament that made it, were diſſolved) The Tenants refuſed to pay their reſpective Rents, as they grew due, contrary to all Law and Equity; and joyned together in open defiance and conſpiracy againſt their Landlord.
3. The ſaid Tenants, (when legally proſecuted in his Majeſties Courts at Weſtminſter, for the recovery of the ſaid Rents out of their hands) did petition the late Houſe of Commons to put a ſtop to ſuch legal Proſecution and Suits; which Motion of theirs, put the Houſe into a great heat and violence againſt me, inſomuch that they had no moſt paſſed a Vote to ſequeſter all my Eſtate, though unheard or unconvicted.
4. William Watſon of Cock-field, and other of the ſaid Tenants, have continued in London to carry on this Conſpiracy againſt me, by whoſe means, with others, the King hath been importuned to ſend for men from the Iſle of Silly, in order to this Tryal.
5. By common fame (which, at leaſt, affords a ſtrong preſumption) my Goods and Eſtate have been long begg'd by ſeveral perſons, and granted: whereas the begging of the Goods and Eſtate of any Delinquent, accuſed or indicted of Treaſon, before he be Convicted and Attainted, is utterly unlawful; becauſe till then, nothing is forfeited to the King, and ſo, not his to diſpoſe of; as Sir Edward Cook ſhews, in the fore-mentioned Chapter about the Seizure of Goods, &c.
6. I am credibly informed, that about December laſt, a certain Captain came from the Duke of Albemarle, to Capt. Linn, with threatning language, that if he would not confeſs things againſt Sir Henry Vane, he ſhould be fetch'd up before the Council and made to do it. Linn anſwered, he knew nothing againſt Sir Henry Vane, nor had any Orders from him, but from the Parliament and Council.
The ſame Captain came again, about a fortnight after, from the Duke of Albemarle, with a parcel of fine words, that if he the ſaid Linn would teſtifie, that Sir Henry Vane was in the head of his Regiment, and that he received Orders from him, the Duke of Albemarle would gratifie him with any civility he ſhould deſire. Linn replied, he knew no Regiment Sir Henry Vane had, but that it was the Parliaments and Council of States Regiment. The ſame Captain came again to him, from the Duke of Albemarle, and told him, The Duke deſired him to teſtifie Sir Henry Vane's being in the head of his Regiment, and that he received Orders from him, to fight Sir George Booth; Linn replied, he knew no ſuch things. The Captain told him, as from the Duke, he ſhould have any Place or Office in the Court. Be not afraid to ſpeak, ſaid he, I warrant you, we ſhall hang Sir Henry Vane, for he is a Rogue.
7. I am credibly informed, that one of the Grand Jury declared, that after the Bill of Indictment againſt me, was brought in, ſome from the King's Counſel came to deſire them, they would pleaſe to come into the inward Court of Wards; Upon which, one of the Jury ſaid, they were there to judge of matters brought before them, and ought not to go in thither; but if the Counſel had any thing to ſay, they ought to come to them. This was ſeconded by ſome; others ſaid, They were the King's Counſel, and it was but matter of civility to grant them their Requeſt: whereupon they went into the inward Court of Wards, where the King's Counſel were, to wit, Attorney-General Palmer, Sollicitor-General Fynch, Serjeant Glyn and Serjeant Keeling. After a while, they cauſed all to withdraw but the Jury. Then the Clerk read the Indictment in the uſual form for Levying War from 1659. After it was read, one of the Counſel told them, It was a Bill of High Treaſon againſt his Majeſty, and they were to conſider of it according to their Evidence. Then they proceeded to examine their Witneſſes.
Jefford ſaid, Sir Henry Vane offered him a Commiſſion to go againſt Sir George Booth; which, ſaid Serjeant Keeling, was to go againſt the King.
Wright, being examined whether he ſaw Sir Henry Vane in the Council, ſaid, Yes. The Attorney-General replied, that if he was amongſt them, they might find the Bill upon that.
Upon this, the Jury withdrew, and were by themſelves. Then Sir John Croply, the Foreman, ſaid, We muſt paſs this Bill; at which all the Jury were ſilent. At laſt, one ſtood up and ſaid; This Bill contains matter of Fact, and matter of Law. Some of this Jury, to my knowledge, were never of any Jury before, as well as I, therefore ignorant of the Law, (in ſo difficult and unuſual a point as this is) and conſequently could not give in their Verdict, as to Law, but only Fact. Several others of the Jury ſeconded him in this, and proteſted againſt giving in their Verdict, as to matter of Law; notwithſtanding all which, the Bill was carried up to the King's Bench.
8. On the day of my Arraignment, an eminent perſon was heard to ſay, I had forfeited my head, by what I ſaid that day, before ever I came to my Defence: what that ſhould be, I know not, except my ſaying in open Court, Soveraign Power of Parliament, which the Attorney-General writ down, after he had promiſed at my requeſt, no exception ſhould be taken at words. And whole Volumns of Lawyers Books paſs up and down the Nation with that Title, Soveraign Power of Parliaments.
9. Six moderate men, that were like to conſider what they did, before they would throw away my Life, were ſummoned to be of my Petty Jury, which the King's Counſel hearing, writ a Letter to one of the Sheriffs, to unſummon them; and a new Liſt was made, the night immediately before the day of Verdict, on purpoſe that the Priſoner might not have any knowledge of them, till preſented to his view and choice in Weſtminſter-hall. Yet one of the fourty eight of this Liſt, (who ſaid he would have ſtarv'd himſelf before he would have found Sir Hen. Vane guilty of Treaſon) was never called, though he walked in the Hall all the while. And in that Hurry of thoſe that compaſſed him about, he being alone, ſtripp'd of all aſſiſtance, Sir William Roberts Foreman, and Sir Chriſtopher Abdy, were ſworn by the Court, before I was aware; ſo my challenging them, might ſeem a perſonal diſobliging and exaſperation of them againſt me, after they were ſworn and fixed.
The Sollicitor alſo had a long whiſper with the Foreman of the Jury, in the Court, before they went to Verdict, telling him, The Priſoner muſt be a Sacrifice for the Nation, &c.
Suddenly after which I am here called to receive my Sentence.
10. After the day of my Tryal, the Judges went to Hampton-Court.
11. None were more forward to abſolve the King from his Grant about my Life, than they that had appeared moſt forward in promoting the Bill by way of Petition to the King, for it. This Grant, being upon Record, may ſeem to have the ſame validity that other Acts of Parliament have, which are ſtill but the two Houſes Petition to the King for his Aſſent to the Bills by them drawn up and paſſed. They uſed this, as a means to induce the King to exempt me from all benefit of the Act of Indempnity and Oblivion, and then at laſt perſwade and abſolve him from making good this Grant alſo, thereby depriving me of all viſible relief for my Life. I conceived my Life as ſecure by that Grant, as others Lives or Eſtates are by the Act of Indempnity it ſelf; for what is that but the Bill of both Houſes, with the King's Aſſent to it, upon their Petition?
The PETITION of both Houſes of Parliament to the King's moſt excellent Majeſty, on the behalf of Sir Henry Vane, and Col. John Lambert, after they left them uncapable of having any benefit of the Act of Indempnity.
To the King's most Excellent Majeſty. The humble Petition of the Lords and Commons aſſembled in PARLIAMENT.
Sheweth,
THat Your Majeſty having declared your gracious pleaſure to proceed only againſt the immediate Murderers of your Royal Father: We your Majeſties moſt humble Subjects, the Lords and Commons aſſembled, not finding Sir Henry Vane nor Col. Lambert to be of that number,
Are humble Suiters to Your Majeſty, that if they ſhall be Attainted, that Execution, as to their Lives, may be remitted;
And as in duty bound, &c.
The ſaid Petition being read, it was agreed to, and ordered to be preſented to his Majeſty by the Lord Chancellor.
The Lord Chancellor reported, That he had preſented the Petition of both Houſes, to the King's Majeſty, concerning Sir Henry Vane and Col. Lambert, and his Majeſty grants the Deſires in the ſaid Petition.
John Browne, Cler. Parliamentorum.