And besides, it maketh the prosecution against the delinquent, more precipitant, violent and undue, than the quiet and equal proceeding of the law and justice would permit: Or else, by some underhand agreement, stops or binders the due course of justice, and discourageth both judge, juror and witness to do their duty.

Srdly, The Judges are not to give so much as their opinion before hand, concerning the offence, whether it prove that offence in that case.

Coke in the chapter of Petty-Treason, fol. 29, expressly saith; And to the end the trial may be the more indifferent, seeing the safety of the prisoner consists in the indifferency of the court, the judges ought not to deliver their opinions before hand, of any criminal case that may come before them judicially.' And he there cites Humphrey Stafford's case, that archtraitor, in which Hussey, Chief Justice, besought Hen. 7, not to demand of them their opinions before hand. And in the 4th of his Institutes in the chapter of the high court of parliament, fol. 37, he fully shews the evil of asking the judges opinions before hand.

But instead of this, The judges being assistant in the Lords' House, when all acts of parliament pass and whose advice is taken in them (as appears by what is declared in the said acts) prejudged by their opinions and the opinions of the parliament before hand, the merit of the cause that now appears to be put upon the issue in my trial. Hereby the Judges are rendered ex parte, and the indifferency the law requires, impossible to be afforded.

Nor is this all; but by the rules declared in the Act of Indemnity, all are disenabled to plead, or make use of the ordinances, orders and votes of both, or either Houses of parliament, that may have occasion thereof: and then by excepting the prisoner and his fellows out of the said act, and all benefit thereby, a door is left open to arraign, bring to trial and sentence the whole cause from the beginning to the ending, in the person of the prisoner, and at the same time, deprive him of all means and possibility of justification and defence.

4thly. It is observable how early hard measure appeared in the way wherein the prisoner became excepted out of the Act of Indemnity, when the Commons his proper judges, declared him in their thoughts, not fit to be endangered in the point of life; yet under the judgment of the Lords, (that ought not to judge commoners, unbrought before them by the Commons, much less, in opposite judgment to the Commons) the Commons were necessitated to yield, lest otherwise the Act of Indemnity to the whole nation should stop upon this dispute and essential difference between the two houses; a competition, easily over-ruled; although (as it proves by the sequel) that Act of Indemnity is like to become felo de se, or a destroyer of itself, if your lordships shall conceive yourselves at liberty, (notwithstanding that act) not only to bring anew into memory

VOL, VI.

upon the stage, the state of all the passed dif ferences, from first to last, but to try and judge the merit of them in my person, and therein call in question the validity of that whole act, and make void the benefit intended by it, in case the war undertaken and managed by both of either of the houses of parliament be judged unlawful, and within the statute of 25 Edw. 3. For this adjudges all the people of England morally guilty of the evil of a sin and offence against the law of nature, which once done, whatever promised indemnity be granted forthe present, the evil of the action remains upon record; not only to the infamy of the whole people of England, but their future danger, upon pretence they have forfeited the very indemnity granted.

5thly. The length of time taken to search out matter against the prisoner, and the undue practices and courses to find out witnesses, do further evidence how unlike the prisoner is to have an equal and indifferent trial: He doubts not, this will appear in his two years close imprisonment, (six months whereof was banishment) during which time, he was never so much as once examined, or had any question put to him, whereby he might conjecture wherefore he was committed to prison, any further than was expressed in the warrants of commitments.

Now these were so general, that nothing certain or particular could be gathered out of them. But upon the received opinion, that he was excepted out of the act of indemnity, and in the sense of both houses a great delinquent, his estate was attempted to be inventoried, his rentals demanded, his rents were actually seized in the tenants hands, and they forbidden to pay them, His very courts were prohibited by officers of great personages, claiming the grant of the estate, and threatening his officers from doing their duty. By these kind of undue proceedings the prisoner had not wherewithal to maintain himself in prison; and his debts to the value of above 10,000l. were undischarged, either principal or interest. The hopes of private lucre and profit hereby, was such in the tenants and other persons, sought out for far and near, to be witnesses, that it is no wonder at last something by way 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 itself 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

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course of God's providence, for wise and holy ends of his above the reach of human 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 punish

ment.

The Judges (as hath been shewed) are forestalled in their judgments, by the declared sense 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 other's; 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 lawbusiness, 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 parliamentary councils 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 requisite 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 satisfy) within 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 trial 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 forejudge 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 add; That he stands at this bar not only as a man, and a man cloathed with the privileges 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, whatever it prove. God's strength may appear in the prisoner's weakness; and the inore all things carry the face of certain ruin 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.'

6

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. Friday, June 6, 1662.

On this day, the Sheriff returned forty-eight freeholders of the county of Middlesex. After thirty-two were challenged by the prisoner, he had a jury of twelve men sworn; to wit, sir William Roberts, jun. sir Christopher Abdy, John Stone, Henry Carter, John Leech, Daniel Cole, Daniel Browne, Thomas Chelsam, Thomas Pitts, Thomas Upman, Andrew Bent, and William Smith.

Attorney General. (Sir Geoffry Palmer.) The Indictment is, For traitorously imagining and intending, &c. the death of the king." This very imagination and compassing, &c. is treason. Yet torasmuch as the intentions of the heart are secret, the law cannot take notice of them, till they are declared by OvertAct. Therefore we shall give in evidence, That for accomplishing of these intentions, the prisoner sat with others in several Councils, or rather confederacies, incroached the govern ment, 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 itself, 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 he chargeable for any crime of treason since the beginning of the late war, yet we shali confine the facts of 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 horrid act was committed, we find his hand and seal to a Warrant to the officers of the navy to issue out stores for a Summer's 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. 1649 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, 1649, fol. 653, was the Order to set up a Council of State.

Fol. 684, Feb. 13. where the Iustructions 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 go'vernment of this nation, from or by the late 'king; Charles Stuart, 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 Feb. 14, 1649. fol. 695. Sir Henry Vane was chosen a member of the Council

See 3 Cobb. Parl Hist, 1288, + Ibid, 1290.

of State, and acted upon these Instructions: which they proved thus; to wit, 1. That Sir Henry Vane, as fol. 893, 23rd of March 1649, reported from the Council of State, an Esti-, mate of the Number of Ships for the Summer's Guard of the Narrow Seas. 2. March 30, 1649, Sir Henry Vane reports from the Council of State, That 10,000l. Parcel of the 20,000%. 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 Navy. 3. That Sir Henry Vane usually sat in Council; but this deponent being never admitted to go in after the Council was sat, 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 orders of that Committee.

Fourthly, Feb. 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 Secrecy to be administered 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 Instructions was, to suppress all persons pretending title from the king) was in effect an oath of abjuration.

Fifthly, Anno 1651, sir Henry Vane was President of the Council of State, and several Warrants were produced, to wit, May 20, 1652, and May 22, 1652, to deliver to Major Wigan 200 Firelocks and ten Drums. The other, for the delivery of 500 Foot-Arms, for Recruit of Colonel Ingoldsby's 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 frigate 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 or more of them, should take care of the Safety of this Commonwealth, and they to sit for eight days and no longer :' fol. 36.

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May 13, 1659. Sir Henry Vane reported, That they had conferred with all the Foreign

:

Ambassadors that the Commonwealth is in amity with all foreign princes, but Spain.

Resolved, That Ch. Fleetwood, J. Lambert, J. Desborough, James Berry, Arthur Haslerig, Edmond Ludlow, and sir Henry Vane, be Commissioners to nominate commission-officers for the of this Commonwealth. By virtue army hereof, they proceeded, June 17, 1659, to nominate commission-officers, appointed Robert Mosse a colonel, presenting a list of his commission officers; and John Mason to be governor of Jersey.

May 31, fol. 158. Sir Henry Vane reports concerning Affairs between the two northern kings in the Sound, wherein the Affairs of this Commonwealth are concerned.

Sept. 2, 1659. At the Committee of State at Whitehall an Order was produced for the re-delivery 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. Thompson, as he shall require for his regiment.

Three several Letters, to deliver 1,200 Arms for the use of my regiment; to wit, to Sam. Linn, my captain-lieutenant, 30 arms for my company to major Thomas Shurman, major of my regiment, 4 or 5 barrels of powder.

Then one Marsh was produced a witness, who proves, That sir Henry Vane proposed the new Model of Government, Whitlocke being in the chair, in these particulars :

"1. That the Supreme Power, delegated by the people to their trustees, ought to be, in some fundamentals, not dispensed with.

"2. That it is destructive to the people's liberties (to which by God's ble-sing they are restored) to admit any earthly king or single person, to the legislative or executive power ever this nation.

"3. That the Supreme Power delegated, is not entrusted to the peoples trustees, to erect matters of faith or worship, so as to exercise compulsion therein."

Thomas Pury proves, That he was at the debating of the two last of these Propositions, and believes they were proposed to the chairman Whitlocke by sir Henry Vane; but affirms confidently, that sir Henry 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 captain lieut. Linn said to the soldiers, 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 soldiers.

John Cook deposeth, That he was sent to the Horseshoe-Stairs to meet sir Henry Vane and col. Rich, and that sir Henry Vane delivered five pounds to capt. Linn to reward the soldiers, 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. Coke, in his Pleas of the Crown, fol. 6, saith, King is to be understood of a King regnant, and in actual possession of a crown, and not of a king when he is only rer de jure, and out of possession. Now an all ensigns of authority, and badges of govern interregnum is confessed by the Indictment : the king's best friends suing, and being sued, ment, were visibly in another name and stile;

in another name.

The Court told him, he should first make his case out in point of fact, and it would be then seasonable to stand upon matter of law; for (say they) it is a good rule, in facto jus oritur, and enjoined him to call his witnesses, if he had any.

To which sir Henry Vane desired process of court to summon thein, 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 fourth part of Coke's Institutes concerning the privilege of parliament, aud that many of these things being transacted. there

The Court here interrupted him, and said, If the things charged were done, justify them; if not, disprove them. So he went to give an

swer to the fact.

And as to the first Warrant, Jan. 30, 1648-9,

he said, That his hand had been oftentimes counterfeited, and amongst other occasions, for that he had great reason to believe, that this two great sums, to the value of 10,000l. and warrant was forged, and produced two witnesses to prove it.

Then said Justice Windham: 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 Henry 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 from the House from December 3, 1648, till of State. He further said, That he absented February 7. That he was chosen 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 a 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) whatever hø

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 shall 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 in trusted 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 in enmity to each other, no Court inferior 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 a time when these things were acted, would be inconvenient, to say no more; that when the three estates were disjoined, 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 disowned 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 always 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 posture in which they now are.

As to the Warrants signed by him, he said, they appear to be signed in the name, and by the Order of the Council; and his hand that subscribes, is not so much as active or passive to the commands of the council. If the Council, who commanded the signing were unwarrantable, the parliament who appointed the council must be much more unwarrantable.

And here he offered these points to be considered and prayed earnestly to have counsel assigned him to speak to them.*

1. Whether the collective body of the parliament can be impeached of High Treason?

See a Note to the Case of Don Pantaleon Sa, ante. vol. 5, p. 456, and a Note to the Case of Twyn, Brewster, Doon and Brooks A. D. 1063. post.

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 autho rity, can be called in question in an inferior 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 prayed 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 Henry 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 Henry Vane replied, Then what I acted in the Council of State, and Committee of Safety, constituted by the parliament to endure for eight days, 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 November 3, 1659, which was sent in pursuance of an Order of the Committee of Safety, by sir Henry Vane, as Treasurer of the Navy. 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 Henry Vane produced William Angel, Brisco, Middleton, &c. officers of that regiment which went under his name who having recourse unto him for orders about October 1659, he bad them desist, and declared his dissatisfaction in their proceedings: and this, after their several importunities to have orders from him. And thus he closed his Defence.

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Solicitor Finch. As to pretence of the Power of Parliament, it is to be known, that it was not the eighth part of the House of Com. mons; such as were let in to do all that hath been complained, and 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;The king's writ for a parliament is ad tractandum nobiscum; which is intended as well of