traitors by him that hath right, and is King flood) can truly affirm, That in the whole de jure, in cafe they do obey the Kings de feries of my actions, that which I have had facto; and fo all the people of England are in my eye hath been to preferve the antient neceffarily involved in treafons, either against well-conftituted government of England on the powers de facto, or de jure, and may by its own bafis and primitive righteous founthe fame reafon be queftioned for it, as well dations, most learnedly stated by Fortescue as the prifoner, if the act of indemnity and in his book made in praife of the English the King's pardon did not free them from laws. And I did account it the most likely it. The fecurity then, and fafety of all the means for the effecting of this, to preferve people of England is by this means made to it, at least in its root, whatever changes and depend upon a pardon, (which might have alterations it might be expofed unto in its been granted or denied) and not upon the branches, through the bluftrous and ftormy fure foundations of common law: an opi- times that have paffed over us. nion fure which (duly weighed and confidered) is very strange, to fay no more. This is no new doctrine in a kingdom. acquainted with political power, as, Fortef For I would gladly know that perfon in cue fhews ours is, defcribing it to be in ef England of eftate and fortune, and of age, fect the common affent of the realm, the that hath not counselled, aided, or abetted, will of the people or whole body of the either by his person or estate, and fubmitted kingdom, reprefented in Parliament. Nay, to the laws and government of the powers though this reprefentation (as hath fallen that then were and if fo, then by your out) be reftrained for a feafon to the Comjudgments upon me, you condemn (in effi- mons Houfe, in their fingle acting, into gies, and by neceffary confequence) the which (as we have feen) when by the inwhole kingdom. ordinate fire of the times, two of the three eftates have for a feafon been melted down; they did but retire into their root, and were not hereby in their right destroyed, but rather preferved, though as to their exercite laid for a while afleep, till the feafon came of their revival and refloration. And if that be the law, and be now known to be fo, it is worth confideration, whether if it had been generally known and underftood before, it might not have hindered his Majefty's restoration. Befides, although, until this judgment be paffed upon me, the people have apprehend- And whatever were the intents and deed themselves as free from queftion, and out figns of others, (who are to give an account of danger, by reafon of the Act of Indem- of their own actions) it is fufficient for me nity and General Pardon; yet when it fhall that at a time critical and decifive (though appear to them that fuch their fafety is not to my own hazard and ill ufage) I did degrounded on the common law, nor upon clare my refufal of the oath of abjuration, the law of nature, but that against both which was intended to be taken by all the these in their actions they are found faulty, Members of Parliament, in reference to and tainted with a moral guilt, and that as kingly government, and the line of his now principals alfo, fince in treafon there are Majeity in particular. This I not only fono acceffaries) what terrifying reflections fitively refufed to take, but was an occafion muft this needs ftir up in the mind of every of the fecond thoughts which the Parliaman, that will be apt to believe his turn ment re-affumed thereof, till, in a manner, will come next, at least once in two years; they came wholly at laft to decline it: a as hath befallen me in my perfon, who (how-proof undeniable of the remoteness of any ever I have been misjudged and mifunder-intentions or defigns of mine, as to the enVOL. II. No. 55. deavouring 7 E deavouring any alteration or change in the government; and was that which gave fuch jealoy to many in the Houle, that they were willing to take the firft occafion to fhew their diflike of me, and to difcharge me from fitting among them. writers) I conceived it my duty, as the ftate of things did then appear to me, (notwithftanding the faid alteration made) to keep my ftation in the Parliament, and to perform my allegiance therein to King and kingdom, under the powers then regnant, (upon my principles before declared) yield. ing obedience to their authority and commands. And having received truft in reference to the fafety and preservation of the kingdom, in thofe times of imminent dan But to return to what I have before affirmed, as to my being no leading or firft actor in any change; it is very apparent by my deportment at the time when that great violation of privileges happened to the Parliament, fo as by force of arms feveral Mem-ger, (both within and without) I did conbers thereof were debarred coming into the Houfe, and keeping their feats there. This made me forbear to come to the Parliament for the space of ten weeks, (to wit, from the 3d of December 1648, till towaads the middle of February following) or to meddle in any public tranfactions; and during that time the matter most obvious to exception, in way of alteration of the government, did happen. I can therefore truly fay, that as I had neither confent nor vote at first in the refolutions of the Houfes, concerning the non-addreffes to his late Majefty, fo neither had I in the least any confent in, or approbation to his death: but on the contrary, when required by the Parliament to take an oath, to give my approbation ex poft facto to what was done, I utterly refufed, and would not accept of fitting in the Council of State upon thofe terms, but occafioned a new oath to be drawn, wherein that was omitted. Hereupon many of the Council of State fat, that would take the other. In like manner the refolutions and votes for changing the government into a Com. monwealth or Free State were paffed, fome weeks before my return to Parliament: yet afterwards (fo far as I judged the fame confonant to the principles and grounds, declared in the laws of England, for upholding that political power which hath given the rife and introduction in this nation to monarchy itself, by the account of antient fcientiously hold myfelf obliged to be true and faithful therein. This I did upon a public account, not daring to quit my ftation in Parliament by virtue of my first writ: nor was it for any private or gainful ends to profit myself, or enrich my relations. This may appear as well by the great debt I have contracted, as by the deftitute condition my many children are in, as to any provifion made for them. And I do publickly challenge all perfons whatso ever, that can give information of any bribes or covert ways used by me, during the whole time of my public acting. There fore I hope it will be evident to the confciences of the Jury, that what I have done, hath been upon principles of integrity, honour, juftice, reafon, and confcience, and not, as is fuggefted in the indictment, by inftigation of the devil, or want of the fear of God. the liber A fecond great change that happened upon the conftitution of the Parliament, and in them of the very kingdom itself, and the laws thereof, (to the plucking up ties of it by the very roots, and the introducing of an arbitrary regal power, under the name of Protector, by force and the law of the fword) was the ufurpation of Cromwell; which I oppofed from the beginning to the end, to that degree of fuffering, and with that conftancy, that well near had coft me not only the lofs of my eftate, but of my very life, if he might have had his will, which a higher than he hindered: yet I did remain a prifoner, under great hardship, four months in an island, by his orders. Hereby, that which I have afferted is most undeniably evident, as to the true grounds and ends of my actions all along, that were against ufurpation on the one hand, or fuch extraordinary actings on the other, as I doubted the laws might not warrant or indemnify, unless I were enforced thereunto by an over-ruling and inevitable neceffity. The third confiderable change was the total disappointing and removing of the faid ufurpation, and the returning again of the Members of Parliament to the exercife of their primitive and original truft, for the good and fafety of the kingdom, fo far as the state of the times would then permit them; being fo much, as they were, under the power of an army, that for fo long a time had influenced the government. To. wards the recovery therefore of things again into their own channel, and upon the legal root of the people's liberties, to wit, their common consent in Parliament, given by their own deputies and trustees, I held it my duty to be again acting in public affairs in the capacity of a Member of the faid Parliament, then re-entered upon the actual exercise of their former power, or at least ftruggling for it. In this feafon I had the opportunity of declaring my true intentions as to the government, upon occafion of refufing the oath of Abjuration before-mentioned. foner at mine own houfe, fome time before there was any visible power in the nation that thought it feasonable to own the King's intereft. And I hope my fitting ftill will not be imputed as a failure of duty, in the condition of a prifoner, and thofe circumftances I then was in. This I can fay, that from the time I faw his Majefty's declarations from Breda, declaring his intentions and refolutions as to his return, to take upon him the actual exercife of his legal office in England, and to indemnify all thofe that had been actors in the late differences and wars, (as in the faid declaration doth appear) I refolved not to avoid any public queftion, (if called thereto) as relying on mine own innocency and his Majefty's declared favour, as before faid. And for the future, I determined to demean myfelf with that inoffenfiveness and agreeablenefs to my duty, as to give no juft matter of new provocation to his Majesty in his government. All this, for my part, hath been punctually obferved, whatever my fufferings have been. Nor am I willing, in the leaft to harbour any difcouraging thoughts in my mind as to his Majefty's generofity and favour towards me, who have been faithful to the truft I was engaged in without any malicious intentions against his Majefty, his crown or dignity, as before hath been fhewed; and I am defirous for the future to walk peaceably and blamelessly. Whatever therefore my perfonal fufferings have been fince his Majefty's reftoration, I rather impute them to the fale reports and calumnies of mine enemies and misjudgers of my actions, than reckon them as any thing that hath proceeded from his Majefty's proper inclination, whose favour and clemency I have had just reason, with all humility, to acknowledge. And whereas I am charged with keeping out his Majefty, that now is from exercifing his regal power and royal authority in this his kingdom; through the ill-will borne me by that part of the Parliament then fitting, I was discharged from being a Member thereof about Jan. 9, 1659, and by many of them was charged, or at least First, with regard to his Majefty's fpeech, ftrongly fufpected to be a Royalift. Yea, made the 27th of July, 1660, in the Houfe I was not only discharged from my atten- of Peers, wherein his Majefty expressly dedance in Parliament, but confined as a pri-clared it to be no intention of his that a perfon perfon under my circumstances fhould be mittee of the Militia in Southwark, whereof excepted out of the Act of Indemnity, ei- I was a Member, that which was called my ther for life or estate. own company of foot (from the respect And fecondly, however it was the Par- which they and their officers pretended to liament's pleasure (myfelf unheard, though me) were defirous to be in a pofture fit for then in the Tower, and ready to have been me to fee them; and as I paffed by, I took brought before them) to except me out of the opportunity, at their defire, to fhew the common indemnity, and fubject me to myself to them, and only (as taking notice queftion for my actions, yet they themselves of their refpect) in fome few words, exprefof their own accord (admitting the paffibi- fing the reafon I had to receive it in good lity that in fuch questioning of me I might part, I told them I would no longer detain be attainted) made it their humble defire them from their other occafions. After I to his Majesty, that in fuch cafe execution, was gone from them, I appointed my Cap-. as to my life, might be remitted. Unto tain-Lieutenant to give them from me fomethis his Majefty readily gave his grant and thing to drink, as might be fitting on fuch affent. And I do firmly believe, if the an occafion, which, to my best remembrance, Houfes had pleased to give me the oppor- was five pounds; and he laid it out of his tunity and leave of being heard, they would own money. never have denied me the indemnity granted to the rest of the nation. More than this (as I remember) was not done by me; fo much as to the feeing any That which remains of further charge yet more the companies of that regiment ga to me is the business of a regiment, an em-thered together, or giving orders to them: ployment which, I can in truth affirm, mine which I publickly and avowedly declined, own inclinations, nature, and breeding, lit- perfuading the officers to lay down their tle fitted me for, and which was intended charges in mine own example, fo foon as I only as honourary and titular, with relation difcerned the intentions of the fitting down to volunteers, who, by their application to of the Committee of Safety,and the exorbi the Council of State in a time of great com- tant power committed to them to exercife, motions, did propound their own officers, and the way of proceedings by the and (without any feeking of mine, or my interefting themselves in the civil governconfidering any farther of it, than as the ment of the nation, which I utterly disliked. ufe of my name) did (among others) no- And although I forebore not to keep my ninate me for a Colonel, which the Coun- ftation, in reference to the Council of State, cil of State approved, granting commiffions while they fat, or as a Commiffioner of the to myfelf, and all other officers relating Admiralty, during the time by them apthereunto; and the Parliament confirmed pointed to act by parliamentary authority, my faid commiffion, upon report thereof and fo had occafion to be daily converfant made to them. This will appear by feveral witneffes I have to produce in this matter, that will be able to affirm how little I took upon me, or at all, to give any orders, or make ufe of fuch my commiffion, any otherwife than in name only. army, in with the Members of the Committee of Safety, (whereof my felf, with others that would not accept, were named ;) yet I perfectly kept myfelf difinterefted from all thofe actings of the army, as to any confent or approbation of mine, however, in many things, by way of difcourfe, I did not de'Tis true, indeed, that at a certain time, cline converfe with them) holding it my when I was fummoned to appear at the com-duty to penetrate as far as I could into their true true intentions and actions; but refolving their authority, ought not to be queftioned within myself to hold true to my parliamen- in any other court: for every offence comtary trust in all things wherein the Parlia- mitted in any court, must be punished in ment appeared to me to act for the fafety the fame, or in fome higher, and not any and good of the kingdom. However, I was inferior court. Now the court of Parliament filinterpreted, and judged by them as one hath no fuperior court, as is faid in Coke's that rather favoured fome of the army, and Jurifdiction of Courts. And the reafon there their power. given that Judges ought not to give any Upon the whole matter, there is not any opinion in a matter of Parliament, is, becaufe precedent that ever both or either of the it is not to be decided by the common laws, Houses of Parliament did commit treafon: but fecundum legem & confuetudinem Parlia for tho' privilege of Parliament does not fo menti. This the Judges in divers Parliahold in treason, but that particular Mem- ments have confeffed. And that reafon is bers may be punished for it, yet it is un- not to be waved which the Lord Coke gives, precedented, that both or either Houses of that a man can make no defence; for what Parliament, as a collective body, ever did is faid and acted there, is done in council, or could commit treason. and none ought to reveal the fecrets of the Houfe: every Member hath ajudicial voice, and can be no witnefs. June the 11th. After the customary formalities of the court, The clerk demanded of Sir Henry Vane what he had to fay why fentence of death fhould not be paffed upon him. All the Acts done in Parliaments have been reverfed indeed, and repealed, as what was done 11 Ric. 2. was repealed 21 Ric. 2. and what was done 21 Ric. 2. was repealed 1 Hen. 4, 3. as appears by the printed ftatutes: yet I do not find that both or either Houfe of Parliament were declared traitors for what they did in those Parliaments; or that any which acted under them fuffered Sir Henry Vane firft alledged, that he had for the fame in any inferior courts. And not yet heard the indictment read in Latin. furely the reafon is obvious: for they had a The debate upon this took up fome time: co-ordinancy in the fupreme or legislative at length fome of the King's Counfel depower for the making, altering, and repeal-fired that the prifoner might be fatisfied ing laws. And if fo, par in parem non ha- in that point. Sir Henry defired that counbet imperium. And by authorities out of fel then might also be affigned him, to make Bracton, Fleta, and others, it may appear exceptions thereto, if they found cause; what fuperiors the King himfelf hath, (who otherwife he valued not the hearing of it yet hath no Peer in his kingdom, nifi Curi- read in Latin. This was over-ruled by the am Baronum) God, Law, and Parliament. court: he foon therefore defifted from any And if either or both Houfes cannot com- further urging it. mit treafon, then thofe that act by their authority cannot for, plus peccat Author quam actor, the author offends more than the actor. If thofe that command do not, nor can commit treafon, how can those that act by their authority be guilty of it? Further, I must crave leave to affert, by reafon of what I fee opened upon the evidence,that what is done in Parliament, or by VOL. II. No. 56. 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, defiring them, according to the ftatute of Weftm. 2. 31. made 13 Edw. 1. to fign it. This he urged fo home, that the ftatute was confulted and read in open court, running in favour of the prisoner to this effect: That if any 7 F man |