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.
Vane, Henry, Sir, 1612?-1662, defendant., England and Wales. Court of King's Bench.

Some farther Remarques of this last dayes Proceedings of the Court with him, besides what is already mentioned, (received from one that was present, and did hear and see all, being what he could best remember) take as followeth.

After the customary formalities of the Court,

The Clerk demanded of Sir Henry Vane, what he had to say, why Sentence of Death should not be passed upon him?

Sir Henry Vane first alledged, that he had not yet heard the In∣dictment read in Latine. The debate upon this, took up some time. At length some of the King's Counsel desired that the Prisoner might be satisfied in that point. Sir Henry desired that Counsel then might also be assigned him, to make Exceptions thereto, if they found cause, otherwise he valued not the hearing of it read in Latine: This was over-ruled by the Court; he soon therefore desisted from any further urging it.

The next thing Sir Henry offered in his own defence, was the Bill of Exceptions, which he brought with him ready drawn, and offered it to the Judges, desiring them according to the Statute of Westminst. 2. 31. made 13. Ed. 1. to sign it. This he urged so home, that the Statute was consulted and read in open Court, running in favour of the Prisoner, to this effect, That if any man find himself aggrieved by the proceedings against him before any Justices, let him write his Ex∣ception, and desire the Justices to set their seals to it.

This Act was made (sayes Cook) that the party wronged might have a Founda∣tion for a legal Process against the Justices, by a Writ of Error, ha∣ving his Exception entred upon Record in the Court where the in∣jury is done, which through the Justices over-ruling it, they could not before procure; so the party grieved was without remedy, for Page  53 whose relief this Statute was made: The Justices refusing to set to their seals, the party grieved may have a Writ grounded on this Statute, commanding them to set their seals to his Exception. This Exception extends not only to all Pleas, dilatory and peremptory &c. but to all Challenges of any Jurors, and any material Evidence, given to any Jury, which by the Court is over-ruled:
As in this Prisoners Case, the Testimony about falsifying of his hand to writings, &c. was, by what was offered to the Jury by Justice Windham.

Further, sayes Cook on this Statute,

If the Justice (or Justices) die, their Executors or Administrators may be proceeded against, for the injury done. And if the Judge (or Judges) deny to seal the Exception, the party wronged, may in the Writ of Error take Issue thereupon, if he can prove by Witnesses, the Judge or Judges denied to seal it.

Notwithstanding all this, the Judges over-ruled this Plea also, by such interpretation as themselves put upon that Statute, to wit, that it was not allowable in Criminal Cases for Life. This makes the Law less careful for the preservation of a man's Life, than any particulars of his Estate, in controversies about which, this Statute is affirmed by them to hold; whereas Life is the greater, and innocent Blood when spilt is irreversible, as to the matter, it cannot be gathered up again; the Estate is the lesser, and if an erroneous Judgment pass about it, 'tis reversible upon Traverse, Writ of Error, or otherwise.

The Reason they alledged for their pretended Opinion, was this; That if it be held in Criminal Cases for Life, every Felon in Newgate might plead the same, and so there would be no Goal-delivery.

Sir Henry answered, his Case was not the Case of common Felons, alledging the Grant of his Majesty to the Petition of both Houses for his Life, in case he should be attainted; There is no need therefore sure (said he) of fearing the consequence of spinning out the time a little with a person in his circumstances. Besides (he said) he had been a Prisoner two years, and never call'd on to give any account of himself and his actions, (so is it not with Felons) which with other conside∣rations, may sufficiently evince, that there is no need of such hasting his Death. He told them withal, that he desired not this, for his own sake only, but for theirs, and for posterity, that they might on a more leisurely and unprejudiced hearing of what may be said on all hands, prevent the bringing of innocent Blood upon themselves and the Land.

But being in this also over-ruled by the Court, (say what he could) He only desired, he might understand whether they would all give it Page  54 as their Common Judgment they would stand to, That what he de∣sired was not his due by the Law? By this means they were all put upon it, one by one, to declare themselves in that point, unanimously denying him the benefit of that Act. To the by-standers their chief Reason seemed to be, that it had not been practised this hundred or two of years.

The third thing Sir Henry desired, was, That the Petition of both Houses, with his Majesties Answer thereunto, might be read in the Court, which, after some dispute, was concluded to be a thing they were not bound to take notice of, not being an Act of Parliament. Yet what is any Act of Parliament, but a Bill presented with the Petition of both Houses to his Majesty, with his Royal Assent thereto, upon Publick Record? At length they condescended to reade it, and that was all.

The fourth and last thing Sir Henry offered to the consideration of of the Bench, was this; That in regard there were questions touching matter of Law, in his Case, which must receive their determination in Parliament, he desired he might have Counsel assigned him, to argue them before their Lordships. Some of these points he instanced in, to wit,

1. Whether a Parliament were accountable to any inferiour Court?

2. Whether the King, being out of possession, and the Power Re∣gent in others—

Here they stopt him, not suffering him to proceed, nor admitting that the King was ever out of possession. To which Sir Henry replied, The words of his Indictment ran thus, that he endeavoured to keep out his Majesty; and how could he keep him out of the Realm, if he were not out?

But when he saw they would over-rule him in all, and were bent upon his Condemnation, he put up his Papers, appealing to the Righ∣teous Judgment of God, who (he told them) must judge them as well as him, often expressing his satisfaction to die upon this Testimony; which Keeling, one of the King's Counsel, insultingly answered, So you may, Sir, in good time, by the grace of God. The same person had often before shewed a very snappish property towards the Prison∣er; and Sir Henry sometimes answered him according to his folly: For when he would have had the Book out of the Prisoner's hand, wherein was the Statute of Westminster 2d. 31.

Sir Henry told him, he had a very officious Memory, and when he was of Counsel for him, he would find him Books. (Whereby was veri∣fied Page  55 what was said to be spoken by him, at first, in answer to one of his Brethren, on the Arraignment day, Though we know not what to say to him, we know what to do with him)

After Sentence given, Chief Justice Forster endeavoured to take off the King from any Obligation by that Grant to the Petition of both Houses, saying, That God, though full of mercy, yet intended his mercy only to the penitent.