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
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
of that Priviledge of being present himself or having Counsel and other Friends present at the Grand Jury will appear hereafter by the subdolous and injurious handling of matters there Thirdly Concerning the Jurisdiction of the Court. 3. The Offences supposed to be committed by me are things done not of my own head but as a Member of the Long Parliament or in pursuance of their Authority The matters done by me in the one respect or the other if they be deemed Offences are punishable only in Parliament and I ought not to be questioned for them in any inferiour Court As Cook shews in the 4th part of his Institutes chap. 1. concerning the high Court of Parliament For the Parliament is not confined in their Actings by the Law which inferiour Courts are tied up to but in divers cases are priviledged to act extraordinarily and unaccountably to any but themselves or succeeding Parliaments Moreover That Parliament was extraordinarily commissioned qualified and authorized by express Act of Parliament beyond all preceding Parliaments for the Causes and Ends declared in the Preamble of the Act for their Establishment accorded and passed by the joynt Consent of King Lords and Commons whereby they became unsubjected to Adjournment Prorogation or Dissolution but by their own respective voluntary Consents to be by them expressed and passed for that purpose with the Royal Assent which occasioned his late Majesty in his Answer to the nineteen Propositions to say That the Power hereby legally placed in both Houses was more than sufficient to prevent and restrain the Power of Tyranny And further The bringing of this Case under the Jurisdiction of this Court or of any other but a Parliament may prove of very dangerous consequence in point of Precedent and most disagreeing to all Rules of Justice For First By the same reason that I am questioned in this Court not only every Member of Parliament but the very Houses themselves with all their Debates Votes and Orders may not only be questioned but referred to a Petty Jury and so come to be judged and sentenc'd by a Court inferiour to themselves which Judges in all times have disclaimed and acknowledged to be out of their power according to the known Rule Par in pares non habet imperium multo minus in eos qui majus imperium habent Secondly In such case the Parties accused will be debarred of Evidence or Witness for their Justification and Defence For no Members c. present at Debates in Parliament who are the onely eye and ear-witnesses of what is said and done there ought to discover the Counsels of the House Fourthly Concerning the Indictment 1. I have not been permitted to have a copy or sight of the Indictment nor so much as to hear it read in Latine which is the original Record of the Court and ought to be the foundation of their whole proceeding with me I often desired these things of the Court yea or at least to have but the Transcripts of some particular clauses in the Indictment to enable me to shew the deficiencies thereof in Law all which others in such cases have often obtained but nothing would be granted herein This then was my hard lot and usage I was put after two years close Imprisonment to answer for my Life to a long Indictment read in English which whether it were rightly translated how should I know that might not hear the Original Record in Latine Counsel also learned in the Law were denied me though pressed for by me again and again before I pleaded And had they been granted what could they have said as to defects of Law in the Indictment unless they might have a Copy of it What can any Counsel say to any petty business concerning any part of a man's Estate that 's in controversie unless they may have a leisurely view and perusal of the Writings thereabouts much more sure will it appear requisit to the reason of all mankind when a man 's whole Estate Life and all are at stake 'T is true before I pleaded this Court promised I should have Counsel assigned me after pleading God forfend else said the Lord Chief Justice but 't is as true I never could yet see that promise made good All things tending to a fair Tryal were promised me in general before pleading but every material particular for the just defence of my Life hath been denied me ever since And my Tryal for Life was hudled up the next day of my appearing before you The Jury as was told me must not eat or drink till they had done their work so the more than forty Jewry-men that resolved to kill Paul Act. 23. 21. But why such haste and precipitancy for a man's Life that 's more than Meat or Estate when you can let Civil Causes about mens Estates depend many years and if an erroneous Judgment be passed in such matters 't is reversible But if innocent Blood be spilt it cannot be gathered up again as the wise woman of Tekoah said 2 Sam. 14. 2. But secondly then As to defects in the Indictment which I was in some measure enabled to observe from that broken hearing thereof that was afforded me here in the Court I say there are many and those very considerable and by the Law of England I ought not to have been urged to plead or make answer to such an illegal and defective Indictment 1. There is no sufficient Overt Act therein alledged of the Prisoner's imagining the King's Death or that he had any the least intention that way 2. The Levying of a War is alledged in Southwark and cannot therefore be tryed by a Jury of Middlesex Dyer fol. 234. and the 3d part of Cook 's Institutes fol. 34. 3. There is uncertainty and obscurity in the main thing alledged against me in the Indictment to wit That I together with a multitude of persons to the number of a thousand unknown to the Jury c. whereas no Criminal Act can be tryed that is not certain Certa res debet esse quae deducitur in Judicium 4. The Treason laid to my charge is alledged to have been committed with a multitude of other false Traitors which were pardoned by the Act of Indempnity such supposed crimes therefore of theirs cannot be remembred or alledged without a manifest breach of the Act of Indempnity and Oblivion The Indictment is or ought to be founded on some clause or branch of 25. Ed. 3. chap. 2. But no such Overt Act is alledged in the Indictment or proved by Witnesses as doth discover that I had any intention to kill depose or hold out the King from the possession and exercise of his Regal Power Whereas I am accused of compassing or imagining the Death of the King this must be understood of his natural or personal not politick capacity for in this latter sence the Law sayes the King cannot die First then to compass only the Deposition of the King is not within the words
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 Charge comes to be exhibited And as this is the Case of the Person before his appearance at this Bar with respect to the foresaid unequal proceedings towards him and the great disadvantages put upon him and all these as it were in a continued series of Design so the matters and things themselves with which it now appears he is charged in the Indictment make his Case still very extraordinary and unusual involving him in difficulties that are insuperable unless God's own immediate Power do shew it self in working his deliverance The things done are for many years past in a time of Differences between King and Parliament and Wars ensuing thereupon Many extraordinary Changes and Revolutions in the State and Government were necessitated in the course of God's Providence for wise and holy ends of his above the reach of humane wisdom The Authority by which they are done is prejudged The Orders Votes and Resolutions of Parliament are made useless and forbidden to be produced Hereby all manner of defence is taken away from the Prisoner and that which was done according to Law as the Laws of those times were is endeavoured to be made unlawful and so the persons acting according to such Laws are brought to punishment The Judges as hath been shewed are forestalled in their Judgements by the declared sence of Parliaments given ex post facto The Jurors are put upon difficulties never known before for twelve Commoners to judge the Actions of all the Commons of England in whom they are included as to whose Judgment is the right the one or the others and whether their Representatives be trusty The Party indicted is under an incapacity to bring Witnesses as well from the nature of the place wherein the things were done within the Walls of the House as from the shortness of time having heard nothing of his Charge and being kept a close Prisoner to the last day His Solicitors and persons imployed in his Law-businesses were also restrained from him It is also most evident that the matters for which he is questioned being the Product of so many years Agitations of Parliamantary Counsels and Arms cannot be of a single concern nor be reputed as the actions of a private man done of his own head nor therefore come within any of the six Classes of Treason contained in 25. Ed. 3. It is a Case most unusual and never happening before in this Kingdom yet it is alledged in the Indictment to be a levying War within that Statute and so comes to have the name of High Treason put upon it thereby if possible to deprive him of the use and benefit of Counsel as also of competent time to prepare for his Defence and all fitting and requisit means for the clearing of his Innocency Unto this unless some remedy be afforded by the justice candor and favour of this Court it may be better for the Prisoner for ought he yet knows to be immediately destroyed by special Command if nothing else will satisfie without any form of Law as one to whom Quarter after at least two years cool blood is thought fit to be denied in relation to the late Wars This may seem better than under a colour and form of Justice to pretend to give him the benefit of the Law and the King's Courts whose part it is to set free the Innocent upon an Equal and Indifferent Tryal had before them if their Cause will bear it but it is very visible beforehand that all possible means of Defence are taken and withheld from him and Laws are made ex post facto to fore-judge the merit of the Cause the Party being unheard And when he hath said all this that as a rational man does occur to him and is fit for him to represent in all humility to the Court he craves leave further to adde That he stands at this Bar not only as a man and a man clothed with the Priviledges of the most Sovereign Court but as a Christian that hath Faith and reliance in God through whose gracious and wise appointment he is brought into these circumstances and unto this place at this time whose Will he desires to be found resigned up into as well in what He now calls him to suffer as in what He hath called him formerly to act for the good of his Country and of the People of God in it Upon this bottom he blesses the Name of his God he is fearless and knows the issue will be good what ever it prove God's strength may appear in the Prisoner's weakness and the more all things carry the face of certain ruine and destruction unto all that is near and dear to him in this world the more will divine deliverance and salvation appear to the making good of that Scripture That he that is content to lose his life in God's Cause and Way shall save it and he that instead thereof goes about to save his life upon undue terms shall lose it Far be it therefore from me to have knowingly maliciously or wittingly offended the Law rightly understood and asserted much less to have done any thing that is malum per se or that is morally evil This is that I allow not as I am a Man and what I desire with stedfastness to resist as I am a Christian If I can judge any thing of my own Case The true reason of the present difficulties and straits I am in is because I have desired to walk by a just and righteous Rule in all my Actions and not to serve the lusts and passions of men but had rather die than wittingly and deliberately sin against God and transgress his holy Laws or prefer my own private Interest before the Good of the whole Community I relate unto in the Kingdom where the lot of my residence is cast Here follow the chief Observables as to matter of new Argument on the day of his Tryal being Friday June 6. 1662. ON this day the Sheriff returned forty eight Freeholders of the Country of Middlesex After thirty two were challenged by the Prisoner he had a Jury of Twelve men sworn to wit Sir William Roberts junior Sir Christopher Abdy John Stone Henry Carter John Leech Daniel Cole Daniel Browne Thomas Chelsam Thomas Pitts Thomas Vpman Andrew Bent and William Smith The Attorney-General's Speech to the Jury The Indictment is for traiterously imagining and intending c. the Death of the King This very imagination and compassing c. is Treason Yet forasmuch as the intentions of the heart are secret the Law cannot take notice of them till they are declared by Overt Act. Therefore we shall give in Evidence That for the accomplishing of these Intentions the Prisoner sate with others in several Councils or rather Confederacies incroached the Government levied Forces appointed Officers and at last levied open and actual War in the head of a Regiment If any of these crimes be proved it is sufficient to make him guilty within this Indictment
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
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