The Parliament who appointed the Council must be much more unwarrantable And here he offered these points to be considered and pray'd earnestly to have Counsel assigned him to speak to them 1. Whether the collective body of the Parliament can be impeached of High Treason 2. Whether any person acting by Authority of Parliament can so long as he acteth by that Authority commit Treason 3. Whether matters acted by that Authority can be called in question in an inferiour Court 4. Whether a King de jure and out of possession can have Treason committed against him he not being King de facto and in actual possession and pray'd it might be argued by Counsel 5. Whether matters done in Southwark in another County may be given in evidence to a Middlesex Jury As to the last Exception the Court said That he was indicted for compassing and imagining the King's Death in Middlesex and any overt act to prove this Imagination may be given in evidence wheresoever it be acted To which Sir Hen. Vane prayed the benefit of a Bill of Exception upon the Statute of Westminster 2. cap. 31. and prayed that the Justices might seal it which they all refused and held it lay not in any case of the Crown The King's Counsel desired he might call his Witnesses if any he had for if they once came to reply to him he must then be silent and consented that if it would aid him they would allow his Actings to be in the Name and by the Authority of the Council of State and the Actings of the Council of State to be by Authority of what he called a Parliament Sir Hen. Vane replyed Then what I acted in the Council of State and Committee of Safety constituted by the Parliament to endure for eight dayes you will allow me Then you must prove that I ever acted in the other Council of State after the Parliament was turned out Then the King's Counsel produced a Warrant dated Novemb. 3. 1659 which was sent in pursuance of an Order of the Committee of Safety by Sir Hen. Vane as Treasurer of the Navie This Warrant was for the sending of divers Arms Northwards after Mr. Lambert who was gone down to oppose the now Duke of Albemarle Sir Hen. Vane produced Will Angel Brisco Middleton c. Officers of that Regiment which went under his name who having recourse unto him for Orders about Octob. 1659 he bad them desist and declared his dis-satisfaction in their proceedings and this after their several importunities to have Orders from him And thus he closed his Defence FYNCH Sollicitor As to pretence of the power of Parliament It is to be known that it was not the eighth part of the House of Commons such as were let in to do all that hath been complained and the acting under Authority of such an End of a Parliament under such a Violation was no Excuse but an Aggravation but that the Parliament was in Law ended by the death of the late King notwithstanding that Act of 17. Caroli primi appears thus First The King 's Writ for a Parliament is ad tractandum nobiscum which is intended as well of the natural capacity of the King as of his politick Secondly 'T is absurd to say that the Acts of Parliament of King Charles the first should be his Acts in the time of King Charles the second Thirdly A Commission of Sewers enacted to be on foot for ten years expires by the death of the King and the authority of the Commissioners is at an end Fourthly It is not possible for one King to impose a Parliament upon a successor So much for his acting by colour of authority of Parliament And as to the Question Whether an House of Parliament can commit Treason If they depart from that Allegiance which they have sworn at their first meeting they are impeachable for it As to a Co-ordination in the Parliament he denied it As to the Question Whether the King being out of actual possession can have Treason committed against him he affirmed it And said otherwise if Rebellion should be so prosperous as to depose or oppress the King in Battel the Offenders are not to be called in question because they prevailed He said it was the Plea of Watson the Jesuite who being Indicted for compassing the death of King James in Scotland after he was declared King of England and before his actual entring into this Realm made this Defence That the King was never in possession of the Crown Windam Justice As to the Act of 17. Caroli and the Preamble of that Act so much insisted upon by the Prisoner 1. He held that the Parliament had not greater Authority by it but were onely made more durable than other Parliaments have been but he held that the Parliament was absolutely dissolved by the death of the King and put this case If it should be enacted that such a Marriage should continue till it was dissolved by Act of Parliament If one dies it is a determination of it in Fact so as no man can say but it is absolutely dissolved 2. It must continue in the degree and dignity of a Parliament If the House be under a force and some kept out some let in to serve a Turn what-ever they act is a Nullity in Law For Freedom is the principal essence and honour of a Parliament yet though the House be under a Force the House is not dissolved by such Force but the proceedings are to be suspended till it require its former Liberty and this as well by the Common Law as by the Civil and Canon Laws of all other Countries 3. The Parliament is the King 's great Council The Peers are Consiliarii nati If they be forc'd away or laid aside as here they were all the rest is but Magni Nominis Umbra Twisden held the same opinion That it is not the sitting of a few Members within those Walls that will continue it a Parliament And though another Parliament a great many years after the Kings death declared it to be at an end yet that Act was but Declaration it was at an end before Whether a Parliament may commit Treason is not the Question but Whether a few of the House shutting out their Fellows and usurping the Government were not Traitors Foster held the same opinion and said The distinction between the Politick and Natural capacity of the King was the Treason of the two Spencers That Priviledge of the Parliament is no shelter for breach of the Peace much less for Treason Twisden added That to compass the Death of the King as a natural person was Treason to compass his Death in his Politick capacity as to depose him was Treason and both provided for by the Act of 25. Ed. 3. That in the same instant the late King expired in the very same his now Majesty was King de facto and affirmed the cases of Watson and Cleark 1. Jac. If an Army be raised against the King
our best security The Common Law then or Liberties of England comprized in the Magna Charta and the Charter of Forest are rendred as secure as authentick words can set them from all Judgments or Precedents to the contrary in any Courts all corrupting advice or evil counsel of any Judges all Letters or Countermands from the Kings Person under the Great or Privy Seals yea and from any Acts of Parliament it self that are contrary thereunto As to the Judges no question they well know the story of the 44 corrupt Judges executed by King Alfred as also of Tresillian Belknap and many others since By 11 Hen. 7. cap. 1. They that serve the King in his Wars according to their duty of Allegiance for defence of the King and the Land are indempnified If against the Land and so not according to their Allegiance the last clause of that chapter seems to exclude them from the benefit of this Act. 6 Hen. 8. 16. Knights and Burgesse of Parliament are required not to depart from the Parliament till it be fully finished ended or prorogued 28 Ed. 3. cap. 3. No man is to be imprisoned disherited or put to death without being heard what he can say for himself 4 Ed. 3. 14. and 36. Ed. 3. 10. A Parliament is to be holden every year or oftner if need be 1 Ric. 3. cap. 2. The subjects of this Realm are not to be charged with any new imposition called a Benevolence 37 Ed. 3. c. 18. All those that make suggestions against any man to the King are to be sent with their suggestions before the Chancellor Treasurer and his grand Council and there to find surety that they will pursue their suggestions and are to incur the same pain the party by them accused should have had if attained in case the suggestion be found evil or false 21 Jacobi cap. 3. All Monopolies and Dispensations with Penal Laws are made void as contrary to the great Charters These quotations of several Statutes as Ratifications and Restorers of the Laws of the Land are prefixed to the following Discourses and Pleas of this Sufferer as certain steady unmovable Land-marks to which he oft relates The rouling Seas have other Laws peculiar to themselves as Cook observes on that expression Law of the Land in his Comment on the 29th Chapter of Magna Charta Offences done upon the High Sea the Admiral takes conusance of and proceeds by the Marine Law But have those steady Land-marks though exactly observed and never so pertinently quoted and urged by this Sufferer failed him as to the securing of his Life 'T is because we have had Land-floods of late Tumults of the People that are compared to the raging Seas Psal 65. 7. The first Paper of this deceased Sufferer towards the defence of his Cause and Life preparatory to the Tryal as the foundation of all that follows before he could know how the Indictment was laid and which also a glance back to any crime of Treason since the beginning of the late War that the Attorney General reckoned him chargeable with shews to be very requist take as followeth Memorandums touching my Defence THe Offence objected against me is levying War within the Statute 25 Ed. 3. and by consequence a most high and great failer in the duty which the Subject according to the Laws of England stands obliged to perform in relation to the Imperial Crown and Soveraign Power of England The crime if it prove any must needs be very great considering the circumstances with which it hath been accompaned For it relates to and takes in a series of publick action of above twenty years continuance It took its rise and had its root in the Being Authority Judgment Resolutions Votes and Orders of a Parliament and that a Parliament not onely authorized and commissionated in the ordinary and customary way by his Majesties Writ of Summons and the Peoples Election and Deputation subject to Adjournment Discontinuance and Dissolution at the King's will but which by express Act of Parliamenâ— was constituted in its continuance and exercise of its Power free from that subjection and made therein wholly to depend upon their own will to be declared in an Act of Parliament to be passed for that purpose when they should see cause To speak plainly and clearly in this matter That which is endeavoured to be made a Crime and an Offence of such an high nature in my person is no other than the necessary and unavoidable Actings of the Representative Body of the Kingdom for the preservation of the good People thereof in their allegiance and duty to God and his Law as also from the imminent dangers and destruction threatned them from God's and their own Enemies This made both Houses in their Remonstrance May 26. 1642. protest If the Malignant spirits about the King should ever force or necessitate them to defend their Religion the Kingdom the Priviledges of Parliament and the Rights and Liberties of the Subjects with their Swords The Blood and Destruction that should ensue therupon must be wholly cast upon their account God and their own consciences telling them that they were clear and would not doubt but that God and the whole world would clear them therein In his Majesties Answer to the Declaration of the two Houses May 19. 1642. he acknowledgeth his going into the House of Commons to demand the five Members was an errour And that was it which gave the Parliament the first cause to put themselves in a posture of defence by their own Power and Authority in commanding the Trained-Bands of the City of London to guard and secure them from Violence in the discharge of their Trust and Duty as the two Houses of Parliament appointed by Act to continue as above-mentioned The next cause was his Majesties raising Forces at York under pretence of a Guard expressed in the humble Petition of the Lords and Commons May 23. 1642. wherein they beseech his Majesty to disband all such Forces and desist from any further designs of that nature otherwise they should hold themselves bound in duty towards God and the Trust reposed in them by the People and the Fundamental Laws and Constitutions of this Kingdom to employ their care and utmost power to secure the Parliament and preserve the peace and quiet of the Kingdom May 20. 1642 The two Houses of Parliament gave their Judgment in these Votes First That it appears that the King seduced by wicked Counsel intends to make War against the Parliament who in all their Consultations and Actions have proposed no other end to themselves but the Care of his Kingdoms and the performance of all Duty and Loyalty to his Person Secondly That whensoever the King maketh War upon the Parliament it is a breach of Trust reposed in him by his People contrary to his Oath and tending to the dissolution of this Government Thirdly That whosoever shall serve or assist him in such Wars are Traytors by the fundamental
Laws of this Kingdom and have been so adjudged by two Acts of Parliament and ought to suffer as Traitors Die Jovis Octob. 8. 1642. In the Instructions agreed upon by the Lords and Commons about the Militia They declare That the King seduced by wicked Counsel hath raised War against the Parliament and other his good Subjects And by the Judgment and Resolution of both Houses bearing date Aug. 13. 1642 upon occasion of his Majesties Proclamation for suppressing the present Rebellion under the Command of Robert Earl of Essex They do unanimously publish and declare That all they who have advised declared abetted or countenanced or hereafter shall abet and countenance the said Proclamation are Traytors and Enemies to God the King and Kingdom and guilty of the highest degree of Treason that can be committed against the King and Kingdom as that which invites his Majesties Subjects to destroy his Parliament and good People by a Civil War and by that means to bring ruine confusion and perpetual slavery upon the surviving part of a then wretched Kingdom The Law is acknowledged by the King to be the onely Rule by which the People can be iustly governed and that as it is his duty so it shall be his perpetual vigilant care to see to it Therefore he will not suffer either or both Houses by their Voâ—es without or against his Consent to enjoyn any thing that is forbidden by the Law or to forbid any thing that is enjoyned by the Law The King does assert in his Answer to the Houses Petition May 23. 1642. That He is a part of the Parliament which they take upon them to defend and secure and that his Prerogative is a part of and a defence to the Laws of the Land In the Remonstrance of both Houses May 26. 1642. They do assert That if they have made any Precedents this Parliament they have made them for posterity upon the same or better grounds of Reason and Law than those were upon which their Predecessors made any for them and do say That as some Precedents ought not to be Rules for them to follow so none can be limits to bound their Proceedings which may and must vary according to the different condition of times And for the particular with which they were charged of setting forth Declarations to the People who have chosen and entrusted them with all that is dearest to them if there be no example for it in former times They say it is because there never were such Monsters before that attempted to disaffect the People towards a Parliament They further say His Majesties Towns are no more his care than his Kingdom nor his Kingdom than his People who are not so his own that he hath absolute power over them or in them as in his proper Goods and Estate but fiduciary for the Kingdom and in the paramount right of the Kingdom They also acknowledge the Law to be the safeguard and custody of all publick and private Interests They also hold it fit to declare unto the Kingdom whose Honour and Interest is so much concerned in it what is the Priviledge of the great Council of Parliament herein and what is the Obligation that lies upon the Kings of this Realm as to the passing such Bills as are offered to them by both Houses in the name and for the good of the whole Kingdom whereunto they stand engaged both in Conscience and Justice to give their Royal Assent First In Conscience in respect of the Oath that is or ought to be taken by them at their Coronation as well to confirm by their Royal Assent all such good Laws as the People shall chuse whereby to remedy such inconveniencies as the Kingdom may suffer as to keep and protect the Laws already in being The form of the Oath is upon Record and asserted by Books of good authority Unto it relation is had 25 Ed. 3. entitiled The Statute of Provisors of Benefices Hereupon The said Commons prayed our said Lord the King sith the Right of the Crown of England and the Law of the said Realm is such that upon the mischiefs and dammages which happen to this Realm he ought and is bound by his Oath with the accord of his People in Parliament to make Remedy and Law for the removing thereof That it may please him to ordain Remedy This Right thus claimed by the Lords and Commons the King doth not deny in his Answer thereunto Secondly In Justice the Kings are obliged as well as in Conscience in respect of the Trust reposed in them to preserve the Kingdom by the making of new Laws where there shall be need as well as by observing of Laws already made a Kingdom being many times as much exposed to ruine for want of a new Law as by the violation of those that are in being This is a most clear Right not to be denyed but to be as due from his Majesty to his People as his Protection In all Laws framed by both Houses as Petitions of Right they have taken themselves to be so far Judges of the Rights claimed by them That when the King's Answer hath not been in every point fully according to their desire they have still insisted upon their Claim and never given it over till the Answer hath been according to their demand as was done in the late Petition of Right 3. Caroli This shews the two Houses of Parliament are Judge between the King and the People in question of Right as in the Case also of Ship-money and other illegal Taxes and if so why should they not also be Judge in the Cases of the Common Good and Necessity of the Kingdom wherein the Kingdom hath as clear a Right to have the benefit and remedy of the Law as in any other matter saying Pardon and Grants of Favour The Malignant Party are they that not only neglect and despise but labour to undermine the Law under colour of maintaining it They endeavour to destroy the Fountain and Conservators of the Law the Parliament They make other Judges of the Law than what the Law hath appointed They set up other Rules for themselves to walk by than such as are according to Law and dispence with the Subjects obedience to that which the Law calls Authority and to their Determinations and Resolutions to whom the Judgment doth appertain by Law Yea though but private persons they make the Law to be their Rule according to their own understanding only contrary to the Judgment of those that are the competent Judges thereof The King asserts That the Act of Sir John Hotham was levying War against the King by the letter of the Statute 25 Ed. 3. cap. 2. The Houses state the Case and deny it to be within that Statute saying If the letter of that Statute be thought to import this That no War can be levied against the King but what is directed and intended against his Person Or that every levying of Forces for the defence
of the King's Authority and of his Kingdom against the personal Commands of the King opposed thereunto though accompanied with his presence is Treason or levying War against the King Such Interpretation is very far from the sense of that Statute and so much the Statute it self speaks beside the authority of Book-cases For if the clause of levying War had been meant only against the King's Person what need had there been thereof after the other branch in the same Statute of compassing the King's death which would necessarily have implied this And because the former doth imply this it seems not at all to be intended at least not chiefly in the latter branch but the levying War against his Laws and Authority and such a levying War though not against his Person is a levying War against the King whereas the levying of Force against his personal Commands though accompanied with his Presence and not against his Laws and Authority but in the maintenance thereof is no levying of War against the King but for him especially in a time of so many successive plots and designs of Force against the Parliament and Kingdom of probable Invasion from abroad and of so great distance and alienation of his Majesties affections from his Parliament and People and of the particular danger of the Place and Magazine of Hull of which the two Houses sitting are the most proper Judges In proclaiming Sir John Hotham Traitor they say The breach of the Priviledge of Parliament was very clear and the subversion of the Subjects common Right For though the Priviledges of Parliament extend not to these cases mentioned in the Declaration of Treason Felony and breach of the Peace so as to exempt the Members of Parliament from Punishment or from all manner of Process and Tryal yet it doth priviledge them in the way and method of their Tryal and Punishment and that the Parliament should first have the Cause brought before them that they may judge of the Fact and of the grounds of their Accusation and how far forth the manner of their Tryal may or may not concern the Priviledge of Parliament Otherwise under this pretext the Priviledge of Parliament in this matter may be so essentially broken as thereby the very Being of Parliaments may be destroyed Neither doth the sitting of a Parliament suspend all or any Law in maintaining that Law which upholds the Priviledge of Parliament which upholds the Parliament which upholds the Kingdom They further assert That in some sense they acknowledge the King to be the only person against whom Treason can be committed that is as he is King and that Treason which is against the Kingdom is more against the King than that which is against his Person because he is King For Treason is not Treason as it is against him as a man but as a man that is a King and as he hath and stands in that relation to the Kingdom entrusted with the Kingdom and discharging that Trust They also a vow That there can be no competent Judge of this or any the like case but a Parliament and do say that if the wicked Counsel about the King could master this Parliament by force they would hold up the same power to deprive us of all Parliaments which are the ground and pillar of the Subjects Liberty and that which only maketh England a free Monarchy The Orders of the two Houses carry in them Law for their limits and the Safety of the Land for their end This makes them not doubt but all his Majesties good Subjects will yeeld obedience to his Majesties Authority signified therein by both Houses of Parliament for whose encouragement and that they may know their Duty in matters of that nature and upon how sure a ground they go that follow the Judgement of Parliament for their guide They alledge the true meaning and ground of that Statute 11. Hen. 7. cap. 1. printed at large in his Majesties Message May 4 This Statute provides that none that shall attend upon the King and do him true service shall be attainted or forfeit any thing What was the scope of this Statute Answ To provide that men should not suffer as Traitors for serving the King in his Wars according to the duty of their Allegiance But if this had been all it had been a very needless and ridiculous Statute Was it then intended as they seem to make it that print it with his Majesties Message that those should be free from all crime and penalty that should follow the King and serve him in War in any case whatsoever whether it were for or against the Kingdom or the Laws thereof That cannot be for that could not stand with the duty of their Allegiance which in the beginning of this Statute is expressed to be to serve the King for the time being in his Wars for the defence of him and the Land If therefore it be against the Land as it must be if it be against the Parliament the Representative Body of the Kingdom it is a declining from the duty of Allegiance which this Statute supposes may be done though men should follow the Kings Person in the War Otherwise there had been no need of such a Proviso in the end of the Statute that none should take benefit thereby that should decline from their Allegiance That therefore which is the Principal Verb in this is the serving of the King for the time being which cannot be meant of a Perkin Warbeck or any that should call himself King but such a one as whatever his Title might prove either in himself or in his Ancestors should be received and acknowledged for such by the Kingdome the Consent whereof cannot be discern'd but by Parliament the Act whereof is the Act of the whole Kingdom by the personal Suffrage of the Peers and the Delegate Consent of the Commons of England Henry 7th therefore a wise Prince to clear this matter of contest happening between Kings de facto and Kings de jure procured this Statute to be made That none shall be accounted a Traitor for serving in his Wars the King for the time being that is him that is for the present allowed and received by the Parliament in behalf of the Kingdom And as it is truly suggested in the Preamble of the Statute It is not agreeable to reason or conscience that it should be otherwise seeing men should be put upon an impossibility of knowing their duty if the Judgment of the highest Court should not be a Rule to guide them And if the Judgment thereof is to be followed when the question is who is King much more when the question is what is the best service of the King and Kingdom Those therefore that shall guide themselves by the Judgment of Parliament ought what ever happen to be secure and free from all account and penalties upon the ground and equity of this Statute To make the Parliament countenancers of Treason they say is enough
to have dissolv'd all the bands of service and confidence between his Majesty and his Parliament of whom the Law sayes a dishonourable thing ought not to be imagined This Conclusion then is a clear Result from what hath been argued That in all Cases of such difficulty and unusualness happening by the over-ruling Providence of God as render it impossible for the Subject to know his duty by any known Law or certain Rule extant his relying then upon the Judgment and Reason of the whole Realm declared by their Representative Body in Parliament then sitting and adhering thereto and pursuing thereof though the same afterwards be by succeeding Parliaments judged erroneous factious and unjust is most agreeable to right Reason and good Conscience and in so doing all persons are to be free and secure from all Account and Penalties not only upon the ground and equity of that Statute 11 Hen. 7. but according to all Rules of Justice natural or moral The day of Arraignment being Monday June 2. 1662. Reader The best account thou canst yet be furnished with as to this dayes proceedings in Court is as followeth SIR Henry Vane was the last Term indicted of High Treason before the Middlesex Grand Jury and the Bill being found by them he was upon Monday the second of June this Term arraigned to this effect That you as a false Traitor against his most excellent Majesty King Charles the second your supream and natural Lord not having the fear of God before your eyes and withdrawing that your duty and allegiance which a true Subject ought to have and bear to our said Leige and sovereign Lord thirteenth of May in the eleventh year of our said sovereign Lord the King at the Parish of St. Martins in the fields in the Country of Middlesex did compass and imagine the Death of our said sovereign Lord the King and the ancient frame of Government of this Realm totally to subvert and keep out our said sovereign Lord from the exercise of his Regal Government and the same the better to effect the said Sir Henry Vane the said thirteenth day of May in the said eleventh your c. at St. Martins aforesaid together with other false Traitors to the Jurors unknown did traiterously and maliciously assemble and sit together and then and there consulted to bring the King unto destruction and to hold him out from the exercise of his Regal Authority and then and there usurped the Government and appointed Officers to wit Colonels and Captains of a certain Army raised against the King against the Peace of our sovereign Lord the King his Crown and Dignity and contrary to the form of the Statute in that case made and provided And the better to effect this the twentieth of December in the said eleventh year with a multitude to the number of a thousand persons to the Jurors unknown in warlike manner assembled and arrayed with Guns Trumpets Drums c. did levy War against the Peace c. and contrary to the form of a Statute Which being read he prayed to have it read a second time which was granted him He then prayed to have it read in Latine which all the Court denyed and Keeling the King's Serjeant said That though all Pleas and Entries are set down on Record in Latine yet the agitations of Causes in Court ought to be in English The Prisoner moved several Exceptions to the Indictment as that the 25. Ed. 3. is not pursued that he had levied no such force as amounted to a levying of War Also the place in which persons with whom are both uncertain and the particular acts of levying War being not set forth he thought therefore the Indictment was insufficient Also he said here is a long time of Action for which I am charged and I may be concern'd for what I acted as a Member in that sovereign Court of Parliament and if any thing concerns the Jurisdiction of that Court I ought not to be judged here at which the Court and King's Counsel took great offence He said also There hath been an Act of General Pardon since that time whereby all Treasons are put in utter oblivion and though Sir Henry Vane were excepted yet none consent that he was that Sir Henry Vane But the King's Counsel said If he would plead that Plea they would joyn that Issue with him if he pleased which if it should be found against him it would be too late to plead not guilty But the Court said in favour of life a man may plead a double Plea and give in his Exception and plead over to the Felony or Treason not guilty But as to the Exceptions taken to the Indictment they gave little heed to them but pressed him to plead or confess Whereupon he pleaded Not guilty and had four dayes to wit till Friday next for his Tryal From another hand take as followeth The Prisoner did much press for Counsel to be allowed him to advise with about any further Exceptions to the Indictment besides those by him exhibited and to put all into form according to the customary proceedings and language of the Law as also to speak to them at the Bar on his behalf he not being vers'd in the punctilio's of Law-writings and Pleas. He further said That the Indictment which so nearly concern'd his Life being long and his memory short it could not well be imagined that he should upon the bare hearing it read be able in an instant to find out every material Exception against it in form or matter He pleaded a good while on this account but Counsel was finally denied him till he should plead guilty or not guilty unto which being a third time urged he pleaded Not guilty The Court having assured him beforehand that after pleading Counsel should be assigned him which yet never was performed Here followeth a Transcript of the Prisoners own Papers containing certain Memorandums pleadable upon his Arraignment Memorandums for and towards my Defence Upon hearing the Indictment read and before pleading FIrst To lay before the Court the impossibility that he humbly conceives is already in view as to the having any such indifferent and equal Tryal as the Law intends him and doth require and command on the behalf of all the free-People of England The Rise for this Conception he takes from what hath been already done in relation to the Prisoner himself unheard unexamined and yet kept close Prisoner for near two whole years This he shall leave to the Judgment of the Court after he hath made known the particulars thereof unto them as necessary to precede the thing demanded of him in pleading guilty or not guilty Secondly What is the indifferency which the Law requires and appoints throughout as well in matters that go before the Tryal as in the proceedings at the Tryal if it self Before the Tryal and in the first step to it which is the keeping and securing his person Magna Charta is clear and gives this
of Powder Then one Marsh was produced a Witness who proves That Sir Henry Vane proposed the new Model of Government Whitlock being in the Chair in these particulars 1. That the Supream Power delegated by the People to their Trustees ought to be in some Fundamentals not dispensed with 2. That it is destructive to the Peoples Liberties to which by God's blessing they are restored to admit any earthly King or single person to the Legislative or Executive Power over this Nation 3. That the Supream Power delegated is not on trusted to the Peoples Trustees to erect matters of Faith or Worship so as to exercise compulsion therein Tho. Pury proves That he was at the debating of the two last of these Propositions and believes they were proposed to the Chairman Whitlock by Sir Henry Vane but affirms confidently that Sir Hen. Vane gave Reasons to maintain them Tho. Wallis produced proves Sir Henry Vane and Col. Rich in the head of a Company in Winchester Park in Southwark and that the Capt. Leiutenant Linn said to the Souldiers that Sir Henry Vane had given them five pounds to drink that the said Linn sent home a key to his wife to send him four pounds out of his trunk to give the Souldiers John Cook deposeth That he was sent to the Horseshoe-stairs to meet Sir Henry Vane and Col. Rich and that Sir H. Vane delivered five pound to Capt. Linn to reward the Souldiers This was all the Evidence given by the King's Counsel To which Sir Henry Vane was required to make his Defence and to go through with his Case all at once and not to reply again upon the King's Counsel who resolved to have the last word to the Jury Sir HENRY VANE Cook in his Pleas of the Crown fol. 6. saith King is to be understood of a King regnant and in actual possession of the Crown and not of a King when he is onely Rex de jure and out of possession Now an interregnum is confessed by the Indictment All ensigns of Authority and badges of Government were visibly in another name and stile the King 's best friends suing and being sued in another name The Court told him He should first make his Case out in point of Suit and it would be then seasonable to stand upon matter of Law for said they it is a good Rule in facto jus Oritur and enjoyn'd him to call his Witnesses if he had any To which Sir Henry Vane desired Process of Court to summon them and a further time to answer the Charge But it was told him The Jury were to be kept without meat drink fire or candle till their Verdict was delivered in and therefore that could not be granted He then cited the 4th part of Cook 's Institutes concerning the Priviledge of Parliament and that many of these things being transacted there The Court here interrupted him and said If the things charged were done justifie them if not excuse them So he went to give answer to the Fact And as to the first Warrant Jan. 30. 1648 He said that his hand had been oftentimes counterseited and amongst other occasions for two great sums to the value of ten thousand pounds and that he had great reason to believe that this Warrant was forged and produced two Witnesses to prove it Then said Windham Justice It may be your hand may have been forged for receiving of Money but it is not to be conjectured that it should be forged to set Ships to Sea and directed to the Jury to consider of the circumstances Sir H. Vane Neither of the Witnesses ever saw me set my hand to either of these Warrants or Orders nor doth one Witness prove that he ever saw me sit in the Council of State He further said That he absented from the House from Decemb. 3. 1648 till Febr. 7. That he 〈◊〉 â—â—osen a Member of the Council of State without his consent and knowledge and being demanded to take an Oath of Approbation of what had been done to the late King he refused and caused it to be expunged That these Actings in Council if any were were by Authority of Parliament of a Parliament constituted in an extraordinary manner made indissolvable but by Act of Parliament He insisted much on the Preamble of that Act so as that Parliament being co-ordinate with the King for the Government was in the King and the two Houses what-ever he acted by Them or their Authority cannot be Treason within the Statute of 25 Ed. 3. He cited an Ordinance of Parliament in 1642 and said That he hoped these things had been laid asleep by the Act of Oblivion and if they should now rise in Judgment against him he feared they would shake that Security which the People promised themselves under that Act. But if he should be now called in question for those things which were transacted in that Parliament of which he was a Member he shal have the comfort and peace of those Actions to support him in his greatest sufferings He added That if he were excepted then must he be judged for the crime of the whole Nation and that crime must be ravelled into through him That the Case is such as never yet fell out to wit that the Government being entrusted to three Estates they should so fall out among themselves as the People cannot tell which to obey That where these great Changes fall out it is not possible for any man to proceed according to all formalities of Law That there was a Political Power by this Act of 17. Caroli co-ordinate with the King and where these Powers are not in conjunction but enmity to each other no Court inferiour to the Parliament by whose Authority these things were acted ought to be Judges of this Case which certainly never happened before He farther saith he was not the first mover in these actions and that he should be called in question for these matters by a King that was out of possession at the time when these things were acted would be inconvenient to say no more That when the three Estates were disjoyned he thought it the best policy to preserve the Government in its root to wit the Commons by whom it was preserved and at last restored to its former course That as to the Regiment that passed under his name he disown'd it That Reports of Messages are not the fault of the Reporter for his judgment does not always go along with them but he is bound to deliver his Message That he alwayes loved the Government as it is set forth in our ancient Law-Books and that that Parliament so much decried at last restored affairs to the â—â—sture in which they now are As to the Warrants signed by him he said they appear to be signed in the Name and by Order of the Council and his hand that subscribes is not so much active as passive to the Commands of the Council If the Council who commanded the signing were unwarrantable
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 onely 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 'T is 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 Wednesday June 11. being the Sentence-day AFter some little skirmishings with the Prisoner to dash all the humane weapons of Law
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 't is 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
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 'T is 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 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 Esque 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 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 Concerning the Proceedings of the Court 1. THe Judges denied Counsel to the Prisoner on this pretext that they as they were to be would be his Counsel They are the King's Commissary Judges preferred and paid for their work by the King who in this case was through evil and false suggestions rendred the Prisoners chief or only Adversary whose Death he stood accused of imagining and compassing What Counsel or Assistance the Prisoner was like to have from them let the World judge 2. His Jury consisted of persons that had been engaged against him in that very Controversie and Cause for which he was tryed A Forreigner in any Criminal Case amongst us may require six of his Jurors to be of his own Countrymen a French-man six French-men a Dutch-man six Dutch-men c. There was but one here that was suspected only to have something of an English man in him sworn of the Jury and the Lord Chief Justice sharply rebuked the Clerk of the Court alledging that he knew not but he might have brought bread and cheese in his pocket and would keep them all night with other words to like purpose 3. The Prisoner was not suffered to speak a word to the Jury after the King's Counsel had spoken to take off the aggravating glosses they had put upon his pretended crime and the Judges that said they would be the Prisoner's Counsel dismissed the Jury possessed with the last exasperating charge given by those who were both the Accusers and professed Counsel against him 4. The Prisoner on his Sentence-day challenged the Sollicitor before the Court as to the injury done him on the day of his Tryal by his large and bitter Invective which he had not liberty to reply to for the vindicating of his own Innocency and unpejudicing the Juries understanding in the fittest season The Judges that had promised him before pleading they would be his Counsel instead of relieving him herein as in all reason they ought afforded him no other answer but a sharp Rebuke for criminating and scandalizing the Court together with some threatning expressions But what need had he to regard their threatnings that he saw resolved to pass a Sentence of Death upon him say what he would The main thing he charged the Sollicitor with was his saying openly in Court that he must be made a publick Sacrifice shewing no reason why and of whispering to the Foreman of the Jury in the Court before they went to Verdict a thing notoriously against all Law and Reason Amongst other things he had also said What Counsel did the Prisoner think would or durst speak for him in such a manifest Case of Treason unless he could call down the heads of those his fellow-Traitors Bradshaw or Cook from the top of Westminster-Hall or to that effect when as there were able heads in the bottom of Westminster-hall ready to have spoken to his Case if they might have been assigned by the Court But what may not be said when nothing may be replied For a person that is designing his own Interest Honours Advantages and Preferments to have the last word to the Jury against a Prisoner that stands at the Bar in danger of his Life and that a person of so generally acknowledged worth and publick concern and to perform it with impertinent flashes of Wit and declamatory flourishes of Rhetorick sending away the Jury with the fresh and last impressions of all that noise and buzze of his glosses upon the whole matter and having with irritating expressions misrepresented and aggravated the supposed crimes is a thing to be hissed oft the stage of this earth by the common Reason of all mankind What worse circumstances can a Prisoner be in than to stand at a Bar of Justice to be tryed and there hear his professed Accuser and Adversary misrepresenting miscalling and aggravating the actions he is questioned for pressing all upon the Jurors consciences with the greatest edge and flourish of all the Art Wit and Eloquence he is furnished with as Tertullus served Paul and then be deprived of all possible defence against his slanderous and injurious suggestions Paul was not so served he had the last word to his Jury when Tertullus had done Acts 24. But the children of this world are wise in their generation they knew well they had to deal with one that had been experienced for twenty years together to be a person of a very happy and unparallel'd dexterity in taking off the paint and false appearances that others by premeditated Speeches could put upon ill matters with an extemporary breath If it be said he had fair warning beforehand to say all that he had to mind the Jury of and that he was not to speak after the King's Counsel It is answered Though this were hard at best and indeed not at all sutable to the true and lawfull Liberties of English-men yet were it more tolerable in case the King's Counsel had started no new thing against the Prisoner used no provoking and unworthy expressions or made no new and unforeseen glosses upon the matter he stood charged with For then the Prisoner might be presumed to have sufficiently obviated beforehand any thing that would be said by the Counsel had they only recapitulated and so probably might have rendred his Jury somewhat uncapable
such a Body is sounded in the common consent of that Body The Office of chief Ruler or Head over any State Common-wealth or Kingdom hath the Right of due Obedience from the People inseparably annexed to it It is an Office not onely of Divine Institution but for the Safety and Protection of the whole Body or Community and therefore justly and necessarily draws to it and engages their Subjection This Office of the Soveraign according to the Laws and Fundamental Constitutions of the Government of England is ministred by the King in a twofold Capacity as his Will and personal Command is in Conjunction and Agreement with his People in Parliament during the Session thereof or as it is in Conjunction and Agreement with the Law the Parliament not Sitting But his Will and Personal Command single in dis-junction and disagree from the Parliament or the Laws hath not the force of a Law saith Fortescue and gives the Reason of it Because this is a limitted Monarchy where the King's Power as to the exercise of it is onely a Power Politick The Obedience then which from the Subject is due to the King and which they are sworn to perform by the Oath of Allegiance is to him in the ministry of the Royal Office according to the reason and intent of the Fundamental Compact and Constitution and according to his own Oath which is to Govern by Law that is to Exercise his Rule or Royal commanding Power in Conjunction and Agreement with the Parliament when sitting and in Conjunction and Agreement with the Laws of the Land they not sitting To exercise his Power otherwise is and hath been alwayes judged a grievance to the People and a going against that which is the original Right and just Liberty of the Community who are not to be bound to such personal Commands at will and pleasure nor compelled to yield Obedience thereunto The contrary hereunto was the Principle at bottom of the Kings Cause which he endeavoured to uphold and maintain in order to decline and lay aside the Legal Restraints as aforesaid which the Government of England by the Fundamental Constitution is subjected unto as to the exercise and ministery of the Royal Office From the Observation and Experience which the Pople of England had and made many years together by their Representatives in Parliament of a desire in the King to shake off these Legal Restraints in the Exercise of the Regal Power and on their having tried the best wayes and means that occurred to their Understandings to prevent the same and to secure to themselves the enjoyment of their Just Rights and Liberty they at last pitch'd upon the desiring from the King the continuance of the sitting of the Parliament called November 3d 1640 in such sort as is expressed in that Act 17. Car. wherein it is provided That it shall not be Discontinued or Dissolved but by Act of Parliament This was judged by them the greatest Security imaginable for keeping the ministry of the Royal Office within its due Bounds and for quieting the People in the enjoyment of their Rights But experience hath shewed that this yet could not be done without a War the worst and last of Remedies For although their Continuance as the Representative Body of the Kingdom with the Right to exercise the Power and Priviledges inherent in and inseparable from that Supream Court and Chief Senate whereof the King is Head both making but one Person or Politick Body in Law yet they themselves as well as the King were bound by the Fundamental Constitution or Compact upon which the Government was at first built containing the Condition upon which the King accepted of the Royal Office and on which the People granted to him the Tribute of their Obedience and due Allegiance This Condition as the Lawes and Experience declare is that the King shall exercise his Office of Rule over them according to the Laws as hath been shewed and as he and his People shall from time to time agree in Common Council in Parliament for that end assembled In respect hereof the Laws so made are called the Concords or Agreements passed between the King and the Subject in the 3d part of Cooks Institutes These Agreements then are the Standard unto the Kings Rule and the Peoples Obedience signifying the justice of his Commands and the dueness of their Allegiance But the case so happening that this Conjunction and Agreement which ought to be found between the personal Will of the King and Representative Will of the Kingdom failing and these two Wills declaring themselves in Contrariety and Opposition both of them becoming standing Powers Co-ordinate and distinct parts of the Supremacy as the two Channels wherein the Supremacy is placed and appointed to run as to its exercise by the Fundamental Constitution hence sprang the War each asserting and endeavouring to defend and maintain their own part and right which ought not to be kept up in dis-junction and contrariety but in Unity and Agreement each with other These two Parties with their Adherents in this Case may be according to the Law Contrarients one towards another as the Law affords an Example in the Preamble to Cook 's 4th Part of his Institutes not properly Traytors being co-ordinate Powers parts of the Supremacy that are the Heads to each Party and by consequence have a right of making a War as their last Appeal if they cannot otherwise agree Being once entred thus into a state of War and actual Enmity they do as it were become two Nations and cease to be under the Obligations they were in before for during this state of War and Enmity the standing Laws in a sort cease and a new way of Rule each Party Forms to himself and his Adherents as may best consist for each of their Safeties and Preservations Upon this Dis-junction of the two Wills in the Harmony and Agreement whereof the Supremacy is placed these following Queries do naturally arise First To which or Whether of these by Law is the Allegiance required as due Is it to be yeilded to the Personal Will of the King single in disjunction from the Will of the Representative Body of the Kingdom or to the Will of the People in dis-junction from the Will of the King Or is it to the Personal Will of the King in conjunction with the Laws though in opposition and contrariety to the Will of the Kingdoms Representative in Parliament Assembled Or is it to the Will of the Kingdomes Representative in conjunction with the Laws though in opposition to the Personal Will of the King The Second Querie is In whose Judgement in this case are the People by Law to acquiesce as to the declaring with whom the Laws are Whether the Personal Judgement of the King single or the Vote of the Senate that is the Kingdoms Representative Body The Third Querie is With whom will the Laws be found to go in this Case so rare unusual and never happening
before and who is the Proper and Competent Judge Also whether the Laws be not perfectly silent as never supposing such a Case possible to happen by reason that the Power used by the one for Dissolving the other never before suffered the Opposition to rise so high The Fourth Querie is Whether he in this Case that keeps his Station and place of Trust wherein God and the Law did set him with care to demean himself according to the best of his Vnderstanding agreeably to the Law and Customes of Parliament and pursuant to their Votes and Directions so long as they sit and affirm themselves to be a Parliament and uses his best endeavours in the exercise of that publick Trust that no Detriment in the general come unto the Common-wealth by the failer of Justice and the necessary Protection due from Government without any designing or intending the Subversion of the Constitution but onely the securing more fully the Peoples Liberties and just Rights from all future Invasions and Oppressions be not so far from deserving to be judged Criminal in respect of any Law of God or Man that he ought rather to be affirmed One that hath done his Duty even the next best that was left to him or possible for him to do in such a dark stormy season and such difficult Circumstances As to the Right of the Cause it self it ariseth out of the matter of Fact that hath happened and by the Just and Wise Providence of God hath been suffered to state it self in the Contest between the Personal Will and declared Pleasure of the King on the one Hand and the publick Will or Vote of the People in Parliament on the other declaring it self either in Orders or Ordinances of both Houses or in the single Act of the House of Commons asserting it self a Parliament upon the Grounds of the Act 17 Car. providing against its dissolution This will appear with the more evidence and certainty by considering wherein either part had a wrong Cause or did or might do that which was not their Duty taking the measure of their Duty from what as well the King as the Peoples Representative are obliged unto by the Fundamental Constitution of the Government which binds them in each of their Capacities and distinct Exercises of their Trust to intend and pursue the true good and welfare of the whole Body or Community as their End This in effect is to detain the People in Obedience and Subjection to the Law of God and to guide them in the wayes of Righteousness unto God's well-pleasing and to avoid falling out or disagreeing about the Way or Means leading to that End Hence that party which in his or their actings was at the greatest distance from or opposition unto this end and wilfully and unnecessarily disagreed and divided from the other in the Ways and Means that were most likely to attain this End they were assuredly in the Fault and had a Wrong Cause to mannage under what ever Name of Face of Authority it was Headed and Upheld And such a Wrong Cause was capable of being espoused and mannaged under the face of Authority as might be pretended unto by either part For as the King insisting upon his Prerogative and the binding force which his personal Will and Pleasure ought to have though in distinction from and opposition to his Parliament might depart from the end of Government answerable to his Trust and yet urge his Right to be obeyed So the publick Will of the People exercised in and by the Vote of their Representative in Parliament asserting it self to be of a binding force also and to have the place of a Law though in distinction from the King and Laws also as saith the King whatever otherwise by them is pretended might also depart from the true end of Government answerable to their Trust and yet insist upon their Right to be Obeyed and submitted unto and having Power in their hands might unduely go about also to compel Obedience It is not lawful either for King or Parliament to urge Authority and compel Obedience as of Right in any such Cases where according to the Law of Nature the People are at Liberty and ought to have a Freedom from yeelding Obedience as they are and ought to have when ever any would compel them to disobey God or to do things that evidently in the eye of Reason and common sense are to their hurt and destruction Such things Nature forbids the doing of having for that very purpose armed Man with the defensive Weapon of refusing to consent and obey as that Priviledge whereby Man is distinguished from a Beast which when he is deprived of he is made a Beast and brought into a state of perfect Servitude and Bondage Such a state of Servitude and Bondage may by God's just Judgement be inflicted upon man for sin and the abuse of his Liberty when by God restored The Liberty which man was at first created in is that Priviledge and Right which is allowed to him by the Law of Nature of not being compelled under any pretence whatsoever to sin against God or to go against the true good and welfare of his own Being that is to say of his inward or outward man but in both these cases to have and to use his just Liberty to Dissent and refuse to Obey For this every man hath that in himself which by God is made a proper and competent Judge For as to all sin against God and the righteousness of his Law the Light of Conscience that is to say the Work of the Law in and upon the Mind or inward Sense and in conjunction with it doth lighten every one that cometh into the World accusing or excusing if it be but hearkened unto and kept awake And for all such actings as tend to the ruine and destruction of man in his outward and bodily concerns and as he is the Object of Magistratical Power and Jurisdiction every man hath a Judgement of common Sense or a way of discerning and being sensible thereof common to bruit Beasts that take in their Knowledge by the door of their Senses but is much heightned and enobled in man by the personal union it is taken into with his intellectual part and intuitive way of discerning things through the inward reflectings of the mind compared with the Law of God This inferiour Judgement in man when it is conjoyned with and confirmed by the Judgement of his Superiour part is that which we call Rational or the dictates of right Reason that man hath a natural right to adhere unto as the ordinary certain Rule which is given him by God to walk by and against which he ought not to be compelled or be forced to depart from it by the meer Will and Power of another without better Evidence that is a higher a greater or more certain way of discerning This therefore in Scripture is called Man's Judgement or Man's Day in distinction from the Lord's
is not nor cannot be accountable by way of crime or offence against his Ruler and Soveraign but may do with his own what he please but still at his peril if he use not this his Liberty as he should to the end for which it is given him which is by voluntary and entire resignation to become an obedient Subject unto him who is the Supream Law-giver and Rightful King without possibility of change or defection Unto this right and the lawful exercise and possession of it this Nation did arive by the good providence and gift of God in calling and assembling the Parliament November 3d. 1640. and then continuing their Session by an express Act 17. Car. with power not to be dissolved but by their own consent which was not so much the introducing of a new Law as declaratory of what was Law before according to Man's natural Right in which he was created and of which he was possessed by God the soveraign giver of all things But the passing that said Act of Parliament alone was not that which restored the Nation to their original Right and just Natural Liberty but onely put them in the capacity and possibility of it That which wanted to make out to the Nation a clearness in having and obtaining this their right was the obligation they had put upon themselves and their posterities to their present Soveraign and his Authority which in justice and by the Oathes of Allegiance they were solemnly bound to in the sight of God as well as of Man And therefore unless by the abuse of that office of Trust to that degree as on his part to break the fundamental compact and constitution of Government they could not be set free nor restored to their original Right and first Liberty especially if together with such breach of Trust both parties appeal to God and put it upon the issue of Battel and God give the decision and in consequence thereof that original Right be asserted and possession thereof had and held for some years and then not rightfully lost but treacherously betrayed and given up by those in whom no power was rightfully placed to give up the subjection of the Nation again unto any whatsoever Unto which is to be added that how and when the dissolution of the said Parliament according to Law hath been made is yet unascertained and not particularly declared by reason whereof and by what hath been before shewed the state of the Case on the Subjects part is much altered as to the matter of Right and the Usurpation is now on the other hand there being as is well known two sorts of Usurpers either such as having no right of consent at all unto the Rule they exercise over the Subject or such who under pretence of a Right and Title do claim not by consent but by conquest and power or else hold themselves not obliged to the Fundamental compact and constitution of Government but gain unduely from the Subject by advantages taken through deceit and violence that which is not their own by Law For a rational Man to give up his Reason and Will unto the Judgement and Will of another without which no outward coercive Power can be whose Judgement and Will is not perfectly and unchangeably good and right is unwise and unsafe and by the Law of Nature forbidden And therefore all such gift made by rational men must be conditional either implied or explicite to be followers of their Rulers so far as they are followers of that good and right which is contained in the Law of the Supream Law-giver and no further reserving to themselves in case of such defection and declining of the Rulers actings from the Rule their primitive and original Freedom to resort unto that so they may in such case be as they were before they gave away their subjection unto the Will of another and reserving also the power to have this judged by a meet and competent Judge which is the Reason of the King and Kingdom declared by their Representatives in Parliament that is to say the Delegates of the People in the House of Commons assembled and the Commissioners on the Kings behalf by his own Letters Patents in the House of Peers which two concurring do very far bind the King if not wholly And when these cannot agree but break one from another the Commons in Parliament assembled are ex Officio the Keepers of the Liberties of the Nation and righteous Possessors and Defendors of it against all Usurpers and Usurpations whatsoever by the Laws of England The Valley of Jehoshaphat considered and opened by comparing 2. Chron. 20. with Joel 3. IT was the saying of Austine Nothing falls under our senses or happens in this visible World but is either commanded or permitted from the invisible and unintelligible Court and Pallace of the highest Emperor and universal King who is the chief over all the kings of the earth For although he hath both commanded and permitted a subordinate external Government over Men administred by man for the upholding of Justice in humane Societies and for the peace welfare and safety of men that are made in Gods Image yet he hath not so entirely put the Rule of the whole earth out of his own hands but that in cases of eminent injustice and oppression committed in Provinces States and Kingdomes contrary to his Lawes to their own and the very end of Magistracy which is the conservation of the Peoples just Rights and Liberties He that is higher than the highest amongst men doth regard and will shew by some extraordinary interposition of his that there are higher than they Such a seasonable and signal appearance of God for the Succor and Relief of his People in their greatest Straits and Exigencies when they have no might visible Power or armed Force to undertake the great company and multitude that comes against them nor know what to do save onely to have their eyes towards him is called in Scripture The day of the Lord's Judgement Then the Battel and cause of the Quarrel will appear to be not so much theirs as the Lord's and the frame of their heart will be humble before the Lord believing in the Lord and believing his Prophets for their good success and establishment This Dispensation is very lively described under the Type and by the Name of The Valley of Jehoshaphat as to the Season and Place wherein God will give forth a signal appearance of himself in Judgement on the behalf of his People for a final decision of the Controversie between them and their enemies It Litterally and Typically fell out thus as is at large recorded 2 Chron. 20. By way of allusion to this and upon occasion of the like yea and far greater Extreamities which God's People in the last dayes are to be brought into is that Prophesie Joel 3. for a like yea a far greater and more signal appearance of God for their Deliverance and Rescue in order to
a final Decision of the Controversie between his People and the Inhabitants of the earth by his own Judgement This is there called The Valley of Jehoshaphat in which the Lord will sit to Judge all his enemies round about In this Battel and great Decision of his Peoples Controversie he will cause his Mighty Ones to come down from Heaven to put in their sickle as reapers in this Vintage and Harvest when the wickedness is great Unto this Revel 14. 14 20. refers which doth plainly evidence that this grand Decision is to fall out in the very last of times and probably is that which will make way to the Rising of the Witnesses and will be accompanied with that Earthquake in which shall be slain of men seven thousand and the tenth part of the City will thereupon fall Rev. 11. It is expressed Joel 3. That in this day of the Lord wherein he will be near in the Valley of Decision the Heavens and the Earth shall shake by the Lords own roaring out of Sion and he himself will be the Harbour Hope and Strength of his People The Sun and Moon of earthly Churches and Thrones of Judicature that contest with them shall be darkened and the Stars even the choicest and most illuminated gifted Pastors Leaders in the earthly Jerusalem Churches with their most refined Forms of Worship resisting the power of true spiritual Godliness shall withdraw their shining Even their holy flesh will pass off from them and consume away upon their spiritual lewdness and confident opposing the Faith of Gods Elect Jer. 11. 17. Their very Eyes will consume away in their holes with which they say we see and for which Christ tells the Pharisees in like case that therefore ther sin remaineth John 9. 41. Or there remaineth no more benefit from Christ's Sacrifice for their sin and therefore onely a fearful looking for of the fiery and devouring indignation Heb. 10. 26 27. Here 's that the great confidence and boast of many professing Churches and eminent Pastors in the earthly Jerusalem Fabrick or House on the sand will come to Ezek. 13. and Mat. 7. Their very Eyes their high enlightenings and excellent spiritual Gifts their supernatural or infused humane Learning that 's admitted only as an adorning and accomplishment of the natural man unaccompanied with that Fire-Baptisme that 's performed by the unspeakable gift of the Spirit it self for the transforming of the natural man into spiritual even these Eyes becoming evil Mat. 6. 23. and this light opposing and preferring it self to the more excellent discerning and marvellous light in spiritual Believers are turned by the just Judgement of God into the greatest and most fatal blindness and darkness of all Their tongues also though the tongues of men and angels for excellency and dexterity of expressing what they see with the forementioned eyes will consume away in their mouth Zech. 14. 12. and leave them exposed to become and accordingly be dealt with as meer sounding brass and tinckling Cymbals 1 Cor. 12. 31. and 13. 1. giving no certain sound and right warning to the Battels of the Lord the good sight of Faith This comes to pass through their confidence in those attainments which may be and oft are turned into an Idol of jealousie and spiritual whoredom Ezek. 16. 1 15. All these considerations of Church and State put together afford great ground of enquiry as to the Condition of the times in which we live how far the face which they bear and which God hath put upon them in the course of his Providences for some years now past doth speak or signifie the near approach of any such extraordinary and signal appearance or day of Gods Judgement for the Decision of his own or his Peoples quarrel and controversie with the prophane Heathen that are round about them waiting for an advantage utterly and universally to remove and root them out from off the face of the whole earth That which hath been acted upon the Theater of these Nations amongst us in the true state of our Controversie seems to be reducible to this following Querie Whether the Representative Body of the Kingdom of England in Parliament assembled and in their Supream Power and Trust made indissolvable unless by their own Consent and free Vote and this by particular and express Statute have not had a just and righteous Cause A Quarrel more God's than their own 1. It may appear they had First from the Ground of their undertaking the War Was it not in their own and the Kingdoms just and necessary defence and for the maintaining of the publick Rights and Liberties of both 2. Secondly Was it not undertaken upon mutual Appeals of both Parties to God desiring him to judge between them to give the Decision and Issue by the Law of War when no other Law could be heard as the definitive Sentence in this Controversie from the Court of Heaven 3. Thirdly Pursuant to such Decision did they not recover and repossess the Kingdoms original and primitive freedom Did they not endeavour to conserve and secure it as due to them by the Law of God and of Nature For man was made in God's Image and all Adams Posterity are properly one Universal Kingdom on earth under the Rule and Government of the Son of God both as Creator and Redeemer By virtue of this original and primitive Freedom so recovered they were at their own choice whether to remain in and retain this their true freedom unresigned and unsubjected to the Will of any Man under the Rule of the Son of God and his Lawes or else to set up a King or any other Form of Government over them after the manner of other Nations In this latter case it is acknowledged that when a Common-wealth or People do choose their first King upon condition to obey him and his Successors Ruling justly they ought to remain subject to him according to the Law and tenor of the Fundamental Compact with him on whom they have transferred their Authority No Jurisdiction remaineth in them after that free and voluntary Act of theirs either to Judge the Realm or determine who is the true Successor otherwise than is by them reserved and stipulated by their Fundamental Laws and Constitutions of Government And though the righteousness of this Cause contained in the forementioned particulars be such as carries in it its own evidence yet as as things have fallen out it is come to be oppressed and buried in the grave of Malefactors in the room of which a contrary Judgement and Way is visibly owned upheld and intended to be prosecuted to the utmost for its own fast-rooting and establishment and this by the common Consent and Association of Multitudes What then remaines for the recovery and restitution of that good old Cause and Way but such a seasonable and signal appearance of God as aforesaid in the Valley of Jehoshaphat What but the taking things immediately into his own hands for administration
THE TRYAL OF Sir Henry Vane Kt. AT The KINGS BENCH Westminster June the 2d and 6th 1662. Together With what he intended to have Spoken the Day of his Sentence June 11. for Arrest of Judgment had he not been interrupted and over-ruled by the Court and his Bill of Exceptions With other Occasional SPEECHES c. Also his SPEECH and PRAYER c. on the Scaffold Printed in the Year 1662. The TRYAL of Sir Henry Vane Knight at the Kings Bench Westminster June the 2d and 6th 1662. READER THou shalt not be detained with any flourishing Preface 'T is true whether we consider the Person or Cause so much might pertinently be said as were the Pen of some ready Writer imployed therein a large Preamble might seem to need but a very short Apolâ—gy if any at all Yet by that time we have well weighed what this Sufferer hath said for himself and left behind him in writing it will appear that there needed not any tongue of the Learned to form up an Introduction thereunto but meerly the hand of a faithful Transcriber of his own Observations in defence of himself and his Cause Rest assured of this thou hast them here fully and clearly represented The necessity of this course for thy information as to the truth of his Case be pleased to consider on these following accounts He was much over-ruled diverted interrupted and cut short in his Plea as to a free and full delivery of his mind upon the whole matter at the Bar by the Judges of the Kings-Bench and by the Kings Counsel He was also denyed the benefit of any Counsel to speak on his behalf And what he did speak at the Bar and on the Scaffold was so disgustful to some that the Books of those that took Notes of what passed all along in both places were carefully called in and suppressed It is therefore altogether unpossible to give thee a full Narrative of all he said or was said to him either in Westminster-Hall or on Tower-Hill The Defendant foreseeing this did most carefully set down in writing the substance of what he intended to enlarge upon the three dayes of his appearance at the Kings-Bench Bar and the day of his Execution Monday June 2. 1662 was the day of his Arraignment Friday June 6. was the day of his Tryal and the Jurors Verdict Wednesday June 11. was the day of his Sentence Saturday June 14. was the day of his Execution on Tower-Hill where limitations were put upon him and the interruptions of him by many hard speeches and disturbing carriages of some that compassed him about upon the Scaffold as also by the sounding of Trumpets in his face to prevent his being heard had many eye and ear witnesses Vpon these considerations I doubt not it will appear undispensably necessary to have given this faithful Transcript of such Papers of his as do contain the most substantial and pleadable grounds of his publick actings any time this twenty years and more as the only means left of giving any tolerable account of the whole matter to thy satisfaction Yet such Information as could be picked up from those that did preserve any Notes taken in Court or at the Scaffold are here also recorded for thy use and that faithfully word for word Chancellor Fortescue doth right worthily commend the Laws of England as the best now extant and in force in any Nation of the world affording if duely administred just outward liberty to the People and securing the meanest from any oppressive and injurious practices of Superiours against them They give also that just Prerogative to Princes that is convenient or truly useful and advantagious for them to have that is to say such as doth not enterfere with the Peoples just Rights the intire and most wary preservation of which as it is the Covenant-duty of the Prince so is it his best security and greatest honour 'T is safer and better for him to be loved and rightly feared by free Subjects than to be feared and hated by injured slaves The main fundamental Liberties of the free People of England are summed up and comprehended in the 29th Chapter of Magna Charta These be the words No freeman shall be taken or imprisoned or be disseized of his Freehold or Liberties or free-customs or be out-lawed or exiled or any otherwise destroyed Nor will we pass upon him or condemn him but by lawful Judgement of his Peers or by the Law of the Land We will sell to no man we will not deny or defer to any man either Justice or Right Lord Chief Justice Cook observes here nine famous branches of the Law of England couched in this short Chapter and discourses upon them to good purpose He saith also that from this Chapter as out of a root many fruitful branches of the Law of England have sprung As for the very leading injury to other wrongings of the Subject to wit the restraint or imprisonment of his person so curious and tender is the Law in this point that sayes Cook no man is to be attached arrested taken or restrained of his liberty by petition or suggestion to the King or to his Council unless it be by Indictment or Presentment of good and lawful men of the neighbourhood where such deeds be done This great Charter of Englands Liberties made 9 Hen. 3. and set in the front of all succeeding Statute-Laws or Acts of Parliament as the Standard Touch-stone or Jury for them to be tryed by hath been ratified by about two and thirty Parliaments and the Petition of Right 3. Caroli The two most famous Ratifications hereof entituled Confirmationes Chartarum Articuli super Chartas were made 25 and 28 of Edw. 1. All this stir about the great Charter some conceive very needless seeing that therein are contained those fundamental Laws or Liberties of the Nation which are so undeniably consonant to the Law of Nature or Light of Reason that Parliaments themselves ought not to abrogate but preserve them Even Parliaments may seem to be bounded in their Legislative Power and Jurisdiction by divine Equity and Reason which is an eternal and therefore unalterable Law Hence is it that an Act of Parliament that is evidently against common Right or Reason is null and void in it self without more ado Suppose a Parliament by their Act should constitute a man Judge in his own cause give him a meer Arbitrary power such Act would be in it self void This is declared to be the ground of that exemplary Justice done upon Empson and Dudley as acting contrary to the Peoples Liberties in Magna Charta whose Case is very memorable in this point For though they gratified Hen. 7th in what they did and had an Act of Parliament for their Warrant made the 11th of his Reign yet met they with their due reward from the hands of Justice that Act being against Equity and common Reason and so no justifiable ground or apology for those infinit Abuses and
And the open levying of War and appearing in the head of a Regiment is not only a Treason of it self but an evidence of all those other Treasons he stands charged with in the Indictment These things happening before the Act of Oblivion you will take notice of that Act and that the Prisoner being excepted by name from the benefit of that Pardon though he be chargeable for any crime of Treason since the beginning of the late War yet we shall confine the Facts for which we charge him to the Reign of his now Majesty After the House had voted the late King's Concessions in the Isle of Wight to be a good ground for Peace many of the Members were kept out by force others turned out the Peers laid aside and at last the King murdered The first thing then that we shall lay to the charge of the Prisoner is That that very day wherein that horried Act was committed we find his hand and seal to a Warrant to the Officers of the Navie to issue out Stores for a Summers Guard of the Narrow Seas This was the first day of the Reign of his now Majesty and so he enumerated all the Particulars which he intended to charge him with and proved them as followeth 1. The Warrant of the 30th of Jan. 48 was proved to be the hand of Sir Henry Vane by Thomas Lewis and Thomas Turner as they believe neither of them affirming that they saw him write it but knowing his hand believed it to be so 2. Ralph Darnel an Under-Clerk of the House of Commons proved the Journal Book of the House and said though he will not take upon him to say when Sir Henry Vane was there and when he was absent yet he said positively that at what time soever he is set down in the Journal to have acted or reported any thing he was there In which Book Febr. 7. 1648. fol. 653 was the Order to set up a Council of State Fol. 684. 13th Feb. were the Instructions presented to the House upon which the Council of State was to act 1. The first was That you or any four or more are to suppress all and every person and persons pretending Title to the Kingly Government of this Nation from or by the late King Charles Steward his son or any claiming from or by them or either of them or any other Single Person whatsoever This the Attorney said was in the first part of that Instruction to destroy the King's Person and in the second part the Kingly Government 2. That you c. are appointed to direct the Forces of this Commonwealth for the preventing and suppressing of Tumults and Insurrections at home or Invasions from abroad and for these ends to raise Forces c. 3. That Febr. 14. 1648. fol. 695 Sir Henry Vane was chosen a Member of the Council of State and acted upon these Instructions which they proved thus To wit First That Sir Henry Vane as fol. 893 23d of March 1648 Reported from the Council of State an Estimate of the number of Ships for the Summers Guard of the Narrow Seas Secondly March 30. 1649 Sir Henry Vane reports from the Council of State That ten thousand pounds parcel of the twenty thousand pounds assessed upon South Wales for their Delinquency be allowed towards the setting out of this Fleet for the service of the Parliament which was Ordered accordingly and to be paid to Sir Henry Vane as Treasurer of the Navie Thirdly That Sir Hen. Vane usually sate in Council but this Deponent being never admitted to go in after the Council was sate proves that he often saw him go in at the fore-door and back-door and often continue there all the time the Council was sitting William Dobbins and Matthew Lock say That they several times saw Sir Henry Vane sit in a Committee of the Council in the years 1651 and 1652 which consisted only of Members of the Council and particularly at the Committee for Scotish and Irish Affairs where Sir Henry Vane was often in the Chair and produced several â—â—ders of that Committee Fourthly Febr. 12. 1649 A new Council of State was chosen of which Sir Henry Vane was one fol. 720. Feb. 13. 1649 All the Instructions of the former year were read and assented to Feb. 22. 1649. fol. 760 Sir Henry Vane reported the form of an Oath of Secresie to be administred to every of the Members of the Council which was to keep all things which should be transacted in Council secret and to be true and faithful to their Instructions which the Attorney said since their first Instruction was to suppress all persons pretending Title from the King was in effect an Oath of Abjuration Fifthly Anno 1652 Sir Henry Vane was President of the Council of State and several Warrants were produced to wit May 20. 1652 and 22d of May 52 to deliver to Major Wigan two hundred Firelocks and ten Drums The other for the delivery of five hundred Foot-Arms for Recruit of Col. Ingoldsbyes Regiment and these were subscribed by Order of the Council H. Vane President April 2. 1653. A Warrant of that date was produced by the Commissioners of the Navy of which he was one for furnishing out the Hampshire Frigat with Provisions and Ammunition for the use of the State From this time to 1659 they charge him with nothing and then the Journal-Book was produced and attested by Ralph Darnel wherein May 7. 1659 an Order was made for appointing a Committee of Safety whereof Sir Henry Vane was one That they or any four or more of them should take care of the Safety of this Commonwealth and they to sit for eight dayes and no longer fol. 36. Die Ven. May 13. 1659 Sir Henry Vane reported That they had conferred with all the Foreign Ambassadors That the Common-wealth is in Amity with all Foreign Princes but Spain Resolved That Ch. Fleetwood J. Lambert J. Disbrough Jam. Berry Arthur Haslerigg Edmund Ludlow and Sir Henry Vane be Commissioners to nominate Commission-Officers for the Army of this Commonwealth By vertue hereof they proceeded June 17. 1659 to nominate Commission-Officers appointed Robert Mosse a Colonel presenting a List of his Commission-Officiers and John Mason to be Governour of Jersey Die Ven. May 31. fol. 158. Sir Henry Vane reports concerning affairs between the two Northern Kings in the Zound wherein the affairs of this Commonwealth are concerned Die Ven. Sept. 2. 1659. At the Committee of State at White-hall An Order was produced for the redelivery of the City-horses to their respective owners Signed H. Vane President A Warrant was produced under the hand of Sir Henry Vane proved by Thomas Lewis and one Falconer for so many Hangers to Col. Tompson as he shall require for his Regiment Three several Letters to deliver 1200 Arms for the use of my Regiment to wit To Sam. Linn my Capt. Leiutenant 30 Arms for my Company To Maj. Tho. Shurman Major of my Regiment four or five barrels
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 pâ—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
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 onely 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 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
Judgement and the Lord's Day And this is that in every individual man which in the collective Body of the People and meeting of Head and Members in Parliament is called The Supream Authority and is the publick reason and will of the whole Kingdon the going against which is in Nature as well as by the Law of Nations an offence of the highest rank amongst men For it must be presumed that there is more of the Wisdom and Will of God in that publick Suffrage of the whole Nation than of any private Person or lesser collective Body whatsoever not better quallified and principled For Man is made in God's Image or in a likeness in Judgement and Will unto God himself according to the measure that in his nature he is proportioned and made capable to be the receiver and bearer thereof Therefore it is that the resisting and opposing either of that Judgement of Will which is in it self Supream and the Law to all others or which bears so much proportion and likeness to the Supream Will as is possible for a Society and community of Men agreeing together for that end to contrive and set up for an administration thereof unto them is against the duty of any member of that Society as well as it is against the duty of the Body of the whole Society to oppose its Judgement and Will to that of the Supream Law-giver their highest Soveraign God himself The highest Judgement and Will set up by God for Angels and Men in their particular beings to hold proportion with and bear conformity unto in the capacity of Ruled in relation to their chief Ruler sinnes forth in the person of Christ the engrafted Word And when by the Agreement or common Consent of a Nation or State there is such a Constitution and Form of Administration pitched upon as in a standing and ordinary way may derive and conveigh the nearest and greatest likeness in humane Laws or Acts of such a Constitution unto the Judgement and Will of the Supream Legislator as the Rule and declared Duty for every one in that Society to observe It is thereby that Government or Supream Power comes to receive Being in a Nation or State and is brought into exercise according to God's Ordinance and Divine Institution So then it is not so much the Form of the Administration as the thing Administred wherein the good or evil of Government doth consist that is to say a greater likeness or unlikeness unto Judgement and Will of the highest Being in all the Acts or Laws flowing from the Fundamental Constitution of the Government Hence it is that common Consent lawfully and rightfully given by the Body of a Nation and intrusted with Delegates of their own free choice to be exercised by them as their Representatives as well for the Welfare and good of the Body that trusts them as to the Honour and Well-pleasing of God the Supream Legislator is the Principle and Means warranted by the Law of Nature and Nations to give Constitution and Admission to the exercise of Government and Supream Authority over them and amongst them Agreeable hereunto we are to suppose that our Ancestors in this Kingdom did proceed when they constituted the Government thereof in that form of Administration which hath been derived to us in the course and channel of our Customes and Laws amongst which the Law and Customes in and of the Parliaments are to be accounted as chief For Hereby First The Directive or Legislative Power having the Right to State and Give the Rule for the Governors Duty and the Subjects Obedience is continued in our Laws which as well the King as People are under the Observation of witness the Coronation Oath and the Oath of Allegiance Secondly The Coercive or Executive Power is placed in one Person under the Name and Style of a King to be put forth not by his own single personal Command but by the signification of his Will and Pleasure as the Will of the whole State in and by his Courts of Justice and stated publick Counsels and Judicatures agreed on for that purpose between him and his People in their Parliamentary Assemblies The Will of the whole State thus signified the Law it self prefers before the personal Will of the King in distinction from the Law and makes the one binding the other not So that the publick Will of the State signified and declared by the publick Suffrage and Vote of the People or Kingdom in Parliament Assembled is a Legal and Warrantable ground for the Subjects Obedience in the things commanded by it for the good and welfare of the whole Body according to the best Understanding of such their Representative Body by it put forth during the time of its sitting The Body with whom the Delegated Vote and publick Suffrage of the whole Nation is Intrusted being once Assembled with Power not to be Dissolved but by their own consent in that capacity the highest Vote and Trust that can be is exercised and this by Authority of Parliament unto ex Officio or by way of Office are the Keepers of the Liberties of England or of the People by the said Authority for which they are accountable if they do not faithfully discharge that their duty This Office of keeping the Liberty which by the Law of God and Nature is due to the Community or whole Body of the People is by way of Trust committed by themselves to their own Delegates and in effect amounts unto this 1. That they may of right keep out and refuse any to exercise Rule and Command over them except God himself who is the Supream and Universal King and Governour or such as shall agree in their Actings to bear his Image which is to be Just and shew for the Warrant of their Exercise of Soveraignty both a likeness in Judgement and Will unto him who is Wisdom and Righteousness it self and the Approbation and common Consent of the whole Body rationally reposing that Trust in them from what is with visible and apparent Characters manifest to them of an aptness and sufficiency in them to give forth such publick Acts of Government that may bear the Stamp of God's Impression upon them in the Judgements they do and execute especially being therein helped with a National Counsel of the Peoples own choosing from time to time 2. They may of right keep hold and restrain him or them with whom the Coercive or Executive Power is intrusted unto a punctual performance of Duty according to the Fundamental Constitution the Oath of the Ruler and the Laws of the Land And if they shall refuse to be so held and restrained by the humble Desires Advice and common Consent in Parliament and the Peoples Delegates be invaded and attempted upon by force to deter them from the faithful discharge of this their Duty they may in asserting their Right and in a way of their own just Defence raise Armes put the issue upon Battel and Appeal unto