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.

Reasons for an Arrest of Judgment: writ by the Prisoner, but refused to be heard by the Court.

I. I Have been denied so much as to hear the Indictment read in La∣tine, as it is the Original Record of the Court; yea, so much as a Copy of it in English hath been denied me, during the whole time of my Tryal, by the fight whereof I might be able to assign the defects of Law that may be in it.

Counsel also hath been denied, not only before I pleaded, but after; and all points by me offered in Law, to the Judges of the Court, have been over-ruled, without admitting me Counsel to argue the same, and better inform the Judgment of the Court. I have demanded, that I might put in a Bill of Exceptions, upon the Statute of Westminst. 2d. cap. 31. This likewise is denied me, over-ruled and judged, as out of that Statute. Neither will Counsel be allowed me in this, to shew cause, why it ought to be admitted as of Right. And as no Counsel was allowed, so neither were the Judges Counsel to me, as they said themselves, they would, and ought to be, but rather suffered me to wrong and prejudice my self, some of them saying, Let him go on, the worst will be his own at last. And they neither checked nor re∣strained the King's Counsel, in their high and irritating expressions to the Jury, to find me guilty, One of whom were seen to speak pri∣vately with the Foreman of the Jury, immediately before the Jurors went from the Bar, after he had spoken openly, That the Prisoner was to be made a publick Sacrifice, in reference to the Actions done against his Majesty that now is.

All this is very far from that Indifferency in Tryal, and from that Equality which the Law requires, and they are bound by their Oath to afford me; besides the undue proceedings in the business of the Petty Jury. A List of forty eight persons was presented to me, who being to me unknown, and no time allowed me to gain any knowledge Page  56 of them, though I was permitted to challenge and refuse three Juries, without shewing cause, yet could not that refusal be upon such rational grounds as the Law supposes, which doubtless intends substantial re∣lief to the Prisoner, in allowing him the liberty of such refusal: where∣as, through my ignorance of the persons, I might refuse the best, and chuse the worst, as to my safety. And then, whereas the Law further allows me the refusal of any other beyond the thirty five, on just and exceptionable cause shewen; what just exception was I capable to alledge in a sudden hurry, against persons to me altogether unknown, unless it would be taken for a just one, that they were unknown to me?

All these things, being so contrary to the Right which the Judges stand obliged to do to every one, as they are for that purpose entrusted by God and the King, is just cause for an Arrest of Judgment; and a good Reason why they should yet at length allow me a Copy of the Indictment, and assign Counsel to argue for the Prisoner, against the de∣fects in Law that may be found therein. Without this, Law is denied me, which is my Birthright and Inheritance; the best Birthright the Subject hath, sayes Cook on Mag. Charta, for thereby (sayes he) his Goods, Lands, Wife, Children, his Body, Life, Honour and Estima∣tion are protected from injury. The Life, Birthright or Inheritance we have from our parents, may soon be gone, if this Fence thereof be broken down. How great a wrong then it is for the Court to with∣hold it from me, is manifest. Are they not therefore in effect, charge∣able with my Blood, by such unequal Proceedings as I have had in my Tryal?

II. My second Reason for an Arrest of Judgment, is drawn from the Issue that is joyned in my Case, which seems to depend chiefly upon matter of Law, and that in such tender and high points, as are only determinable in the high Court of Parliament.

For it is become the question, Whether I am guilty, or not guilty, according as these Propositions following, are truly or erroneously re∣solved?

1. Whether the Parliament, that began Novemb. 3. 1640, were dissolved by the King's Death? and whether this Court may judge things done in Parliament?

2. Whether the Powers regnant, and de facto, that successively were in being, from Jan. 30. 1648, to Decemb. 20, 1659, were such Powers de facto, as are the King, or Seigneur le Roy, within the pur∣view of the Stat. 25. Ed. 3. having the exercise of Regal Power in all the particulars of it, though not the name?

Page  57 3. Whether during that time fore-mentioned, his Majesty that now is, were properly King de facto? or whether he were not out of pos∣session, and without all exercise of his Regal Authority within the Realm?

4. Whether the Case now in question, be a Treason literally within the words of the Statute, 25. Ed. 3. or at most, any other, than an interpretative and new Treason, not declared before the very time of my Tryal; and that only by the Judgment of the Court, or opinion of my Judges, eleven years after some of the things charged on me, are alledged to have been committed?

As to the first of these; The Act for Continuance of the Long Par∣liament, 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 Par∣liament 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 wrong∣fully taken away. And in case what the Judges assert herein, were Law, 'tis Law not known or declared till many years after the Fact committed. At this rate, who is secure of Estate or Life?

As to the second and third Queries or Propositions; It does appear out of the third part of Cook's Institutes, fol. 7. and the Statute, 11. Hen. 7. cap. 1. That Actings for the King in Fact, are not to be questioned by the King in Right. If it be said, That there was no King in this case; it may be replied, That they who had the Power and Exercise of the Royal Jurisdiction, as to Peace and War, Coynage of Money, power of Life and Death, &c. which are the highest En∣signs 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, un∣der what name or title soever? If upon this Nicety, Judgment be Page  58 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 So∣vereign 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 Sta∣tute; 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 Trea∣son 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. Judg∣ment 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 Page  59 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 Parlia∣ment, were agreed, that admitting I were attainted, yet Execution, as to my Life, should be remitted. And if so, there is no cause to preci∣pitate 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 King∣dom: which withal, is of so vast a consequence to people of all sorts and conditions within this Realm, as nothing more. And being so, (as I doubt not with your Lordships patience I shall make it appear) It is the known Law, witnessed by Bracton and antient approved Law-Books; That in such Cases, the Judges in the inferiour Courts ought not to proceed, but bring it before the high Court of Parliament.

To prove therefore the newness of this Case, (besides what I have already alledged in my Defence, before the Verdict) give me leave to adde that, which yet further shews the newness and extraordinariness thereof. And I beseech your Lordships to let me go on without in∣terruption, in my endeavouring to make it out as clearly, as God shall enable me, and as briefly also, not to spend too much of your time.

In general, I do affirm of this Case; That it is so comprehensive, as to take in the very Interests of Heaven and Earth: First, Of God the Universal Soveraign and King of Kings; Secondly, That of earth∣ly Soveraigns, who are God's Vicegerents; as also the Interests of all Mankind, that stand in the relation of Subjects to the one or both those sorts of Soveraigns.

Page  60 This is general. More particularly; within the bowels of this Case is that Cause of God, that hath stated it self in the late Differnces and Wars, that have happened and arisen within these three Nations, and have been of more than twenty years continuance: which for the greater certainty and solemnity, hath been recorded in the form of a National Covenant, in which the generality of the three Nations have been either implicitly involved, or expresly concern'd, by the signing of their Names.

The principal things contained in that Covenant, were the known and commonly received Duties, which either as Men or as Christi∣ans, we owed and stood obliged to perform either to God, the highest and universal King in Church and State, or to our natural Lord and Sovereign, the Kings of this Realm, in subordination to God and his Laws.

Again, It contains as well the Duties which we owe to every par∣ticular and individual person, in their several stations and callings, as to the King in general, and our Representative Body in Parliament assem∣bled. These Duties we are thereby obliged to yeeld and perform, in consistency with, and in a just subordination and manifest agreeableness to, the Laws of God, as is therein expressed: And this also, in no dis∣agreement to the Laws of the Land, as they then were.

By this solemn Covenant and Agreement of the three Nations, giving up themselves in subjection to God and to his Laws, in the first place, as the Allegiance they owe to their highest Soveraign, (as the Creator, Redeemer, Owner and Ruler of all Mankind) they have so far interested the Son of God in the the Supream Rule and Government of these Nations, that nothing therein ought to be brought into pra∣ctice, contrary to his revealed Will in the holy Scriptures, and his known and most righteous Laws.

This Duty which we owe to God, the universal King, Nature and Christianity do so clearly teach and assert, that it needs no more than to be named. For this subjection and allegiance to God and his Laws, by a Right so indisputable, all are accountable before the Judgment-seat of Christ.

It is true indeed, men may de facto become open Rebels to God and to his Laws, and prove such as forfeit his Protection, and engage him to proceed against them as his professed Enemies. But (with your Lordships favour) give me leave to say, that that which you have made a Rule for your proceedings in my Case, will indeed hold, and that very strongly, in this; that is to say, in the sence wherein Christ Page  61 the Son of God is King de jure, not only in general, over the whole World, but in particular, in relation to these three Kingdoms. He ought not to be kept out of his Throne, nor his visible Government, (that consists in the Authority of his Word and Laws) suppressed and trampled under foot, under any pretence whatsoever.

And in the asserting and adhering unto the Right of this highest Soveraign, (as stated in the Covenant, before mentioned) The Lords and Commons joyntly, before the year 1648, and the Commons alone afterwards, to the very times charged in the Indictment, did manage the War and late Differences within these Kingdoms. And what∣ever defections did happen by Apostates, Hypocrites, and Time-serving worldlings, there was a party amongst them, that continued firm, sin∣cere and chast unto the last, and loved it better than their very lives; of which number I am not ashamed to profess my self to be; not so much admiring the form and words of the Covenant, as the righteous and holy ends therein expressed, and the true sense and meaning there∣of, which I have reason to know.

Nor will I deny, but that, as to the manner of the prosecution of the Covenant to other ends than it self warrants, and with a rigid op∣pressive spirit, (to bring all dissenting minds and tender Consciences under one Uniformity of Church-discipline and government) it was utterly against my Judgment. For I alwayes esteemed it more agree∣able to the Word of God, that the Ends and Work declared in the Covenant, should be promoted in a spirit of love and forbearance to differing Judgments and Consciences, that thereby we might be appro∣ving our selves in doing that to others, which we desire they would do to us; and so, (though upon different principles) be found joynt and faithful advancers of the Reformation contained in the Covenant, both publick and personal.

This happy Union and Conjunction of all Interests in the respective duties of all relations, agreed and consented to by the common suffrage of the three Nations (as well in their publick Parliamentary capacity, as private stations) appeared to me a Rule and measure approved of, and commanded by Parliament, for my action and deportment, though it met with great opposition, in a tedious, sad and long War; and this, under the name and pretext of Royal Authority. Yet, as this Case appeared to me in my conscience, under all its circumstances of Times, of Persons, and of Revolutions inevitably happening, by the hand of God and the course of his wise Providences, I held it safest and best to keep my station in Parliament to the last, under the guidance Page  62 and protection of their Authority, and in pursuance of the Ends before declared, in my just Defence.

This general and publick Case of the Kingdoms, is so well known by the Declarations and Actions that have passed on both sides, that I need but name it, since this matter was not done in a corner, but fre∣quently contended for in the high places of the Field, and written even with characters of Blood. And out of the bowels of these Publick Differences and Disputes, doth my particular Case arise, for which I am called into question. But admitting it come to my lot to stand single, in the witness I am to give to this Glorious Cause, and to be left alone, (as in a sort I am) yet being upheld with the Authority before asserted, and keeping my self in union and conjunction therewith, I am not afraid to bear my Witness to it in this great Presence, nor to seal it with my Blood, if called thereunto. And I am so far satisfied in my conscience and understanding, that it neither is nor can be Trea∣son, either against the Law of Nature, or the Law of the Land, either malum per se, or malum prohibitum; that on the contrary, it is the duty I owed to God the universal King, and to his Majesty that now is, and to the Church and People of God in these Nations, and to the innocent Blood of all that have been slain in this Quarrel. Nothing it seems will now serve, unless by the Condemnation passed upon my person, they be rendred to posterity Murderers and Rebels, and that upon Record in a Court of Justice in Westminster-hall. And this would inevitably have followed, if I had voluntarily given up this Cause, without asserting their and my Innocency, by which I should have pulled that Blood upon my own head, which now I am sure must lie at the door of others, and in particular, of those that knowingly and precipitately shall embrew their hands in my innocent Blood, un∣der 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, be∣sides 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, Page  63 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 per∣son, 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 Parlia∣ment, if they be sitting, as the fundamental Constitutions of the Govern∣ment 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 emi∣nent 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 for∣reign 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 mul∣tiplicity 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.

Page  64 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.