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Henry Vane, The Tryal of Sir Henry Vane - Joyce Lee Malcom, The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, vol. 2 
The Struggle for Sovereignty: Seventeenth-Century English Political Tracts, 2 vols, ed. Joyce Lee Malcolm (Indianapolis: Liberty Fund, 1999). Vol. 2.
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Henry Vane, The Tryal of Sir Henry Vane
Sir Henry Vane, 1613-1662
Sir Henry Vane, Kt.
The Kings Bench,Westminster, June the 2d. and 6th. 1662.
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.
Printed in the Year, 1662.
With the exception of the regicides, Sir Henry Vane was one of only two parliamentarians specifically excluded by the Convention Parliament from pardon after the Restoration.
Vane began his political career when he served briefly as governor of the Massachusetts Bay colony. Back in England he became joint treasurer of the navy and was actually employed in the expenditure of ship money. He sat for Hull in the Commons of the Short and Long Parliaments where he joined those working to abolish episcopacy. He was a vigorous, lifelong proponent of religious toleration. It was he who discovered the council notes of his father that sealed the fate of the Earl of Strafford.
During the civil war, Vane was one of the leaders of Parliament and a close ally of Oliver Cromwell. He believed the people were the source of all just power, but after the king’s surrender he hoped for some accommodation with him. Vane was so offended by Pride’s Purge that he abandoned the Commons until after Charles’s trial and execution. Nor would he sit on the new Council of State until the stipulation that he take an oath approving the king’s execution and the abolition of monarchy was dropped. He was very active in Commonwealth affairs but left government again in 1653 upon Cromwell’s eviction of the Rump. He regarded this as a betrayal of the cause. In 1656 he made his feelings public in a tract, “Healing Question propounded and resolved,” which blamed the imposition of the protectorate for the divisions that had arisen among the supporters of the Rump. He openly called for a convention to devise a new constitution, one that would provide for liberty and the common good of all adherents of the old cause. Not surprisingly, Vane was summoned before the Council. He was ordered to give a bond that he would do nothing against the government. His refusal earned him several months of imprisonment.
In 1659 Vane returned to government to sit in Richard Cromwell’s parliament and in the restored Long Parliament that followed, apparently hoping to curb the power of protectors on the one hand, and to prevent the return of monarchy on the other. But his reputation was destroyed when he continued at his post as commissioner of the admiralty after 13 October when General John Lambert turned out the Long Parliament and then attempted to reconcile the army and the Parliament. Once the Long Parliament was restored by Monck, its members expelled Vane to general rejoicing. After the Restoration the Convention Parliament excluded him from pardon as a “person of mischievous activity.” Most of Vane’s former colleagues chose to flee or made their peace with the Crown. Vane remained to face a charge of high treason, prepared to die an unrepentant martyr to the “good old cause.”
To his surprise Vane was charged with crimes against Charles II, not Charles I. He was no lawyer but defended himself ably, despite the prohibition against his consulting with anyone or summoning any witnesses—typical liabilities under which those charged with treason labored. Even then he might have been pardoned, but his tenacious adherence to the sovereignty of people and Parliament and his plea that, along with the great majority of Englishmen, he had merely obeyed the “de facto” government, precluded any hope of clemency. His execution was set for the anniversary of the battle of Naseby. Vane’s speech on the scaffold was purposely drowned out by the beat of drums. Fortunately the account of his trial and his scaffold speech were published, albeit anonymously. His scaffold speech alone appeared in two other editions. Vane’s comportment at the end and adherence to his principles earned him much respect. Pepys reckoned the king had lost more than he had gained by the execution.
The Tryal of Sir Henry Vane Knight, at the Kings Bench, Westminster, June the 2d. and 6th. 1662.
Thou shalt not be detained with any flourishing Preface. ’Tis true; whether we consider the Person or Cause, so much might pertinently be said, as (were the Pen of some ready Writer imployed therein) a large Preamble might seem to need but a very short Apology, if any at all. Yet, by that time we have well weighed what this Sufferer hath said for himself, and left behind him in writing, it will appear, that there needed not any tongue of the Learned, to form up an Introduction thereunto, but meerly the hand of a faithful Transcriber of his own Observations, in defence of himself and his Cause. Rest assured of this, thou hast them here fully and clearly represented.
The necessity of this course for thy information, as to the truth of his Case, be pleased to consider on these following accounts. He was much overruled, diverted, interrupted, and cut short in his Plea (as to a free and full delivery of his mind upon the whole matter at the Bar) by the Judges of the King’s-Bench, and by the King’s Counsel. He was also denied the benefit of any Counsel to speak on his behalf.1
And what he did speak at the Bar and on the Scaffold, was so disgustful to some, that the Books of those that took Notes of what passed all along in both places, were carefully called in and suppressed. It is therefore altogether unpossible to give thee a full Narrative of all he said, or was said to him, either in Westminster-Hall, or on Tower-Hill.
The Defendant foreseeing this, did most carefully set down in writing, the substance of what he intended to enlarge upon, the three dayes of his appearance at the King’s-Bench Bar, and the day of his Execution. Monday June 2. 1662, was the day of his Arraignment. Friday June 6. was the day of his Trial, and the Jurors’ Verdict. Wednesday June 11. was the day of his Sentence. Saturday June 14. was the day of his Execution on Tower-Hill, where limitations were put upon him, and the interruptions of him by many hard speeches and disturbing carriages of some that compassed him about upon the Scaffold, as also by the sounding of Trumpets in his face to prevent his being heard, had many eye and ear witnesses.
Upon these considerations, I doubt not, it will appear indispensably necessary, to have given this faithful Transcript of such Papers of his, as do contain the most substantial and pleadable grounds of his publick actings, any time this twenty years and more, as the only means left of giving any tolerable account of the whole matter, to thy satisfaction. Yet such Information as could be picked up from those that did preserve any Notes, taken in Court or at the Scaffold, are here also recorded for thy use, and that, faithfully, word for word.
Chancellor Fortescue2doth right worthily commend the Laws of England, as the best now extant and in force, in any Nation of the world, affording (if duely administered) just outward liberty to the People, and securing the meanest from any oppressive and injurious practices of Superiours against them. They give also that just Prerogative to Princes, that is convenient or truly useful and advantagious for them to have; that is to say, such as doth not enterfere with the People’s just Rights, the intire and most wary preservation of which, as it is the Covenant-duty of the Prince, so is it his best security and greatest honour. ’Tis safer and better for him to be loved and rightly feared by free Subjects, than to be feared and hated by injured slaves.
The main fundamental Liberties of the free People of England, are summed up and comprehended in the 29th Chapter of Magna Charta. These words;
No freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free-customs, or be outlawed or exiled, or any otherwise destroyed. Nor will we pass upon him, or condemn him, but by lawful Judgement of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man, either Justice or Right.
Lord Chief Justice Cook observes here nine famous branches of the Law of England, couched in this short Chapter, and discourses upon them to good purpose.3He saith also, that from this Chapter, as out of a root, many fruitful branches of the Law of England have sprung.
As for the very leading injury to other wrongings of the Subject, (to wit, the restraint or imprisonment of his person) so curious and tender is the Law in this point, that (sayes Cook) no man is to be attached, arrested, taken, or restrained of his liberty, by petition or suggestion to the King or to his Council, unless it be by Indictment or Presentment of good and lawful men (of the neighbourhood) where such deeds be done.
This great Charter of England’s Liberties, made 9 Hen. 3. and set in the front of all succeeding Statute-Laws or Acts of Parliament, (as the Standard, Touch-stone or Jury for them to be tried by) hath been ratified by about two and thirty Parliaments, and the Petition of Right, 3. Caroli.
The two most famous Ratifications hereof, entituled, Confirmationes Chartarum, & Articuli super Chartas, were made 25 and 28 of Edw. I.
All this stir about the great Charter, some conceive very needless, seeing that therein are contained those fundamental Laws or Liberties of the Nation, which are so undeniably consonant to the Law of Nature, or Light of Reason, that Parliaments themselves ought not to abrogate, but preserve them. Even Parliaments may seem to be bounded in their Legislative Power and Jurisdiction, by divine Equity and Reason, which is an eternal and therefore unalterable Law. Hence is it, that an Act of Parliament that is evidently against common Right or Reason, is null andvoid in itself, without more ado. Suppose a Parliament by their Act should constitute a man Judge in his own cause, give him a meer Arbitrary power; such Act would be in itself void.
This is declared to be the ground of that exemplary Justice done upon Empson and Dudley,4 (as acting contrary to the People’s Liberties in Magna Charta) whose Case is very memorable in this point. For, though they gratified Henry 7th in what they did, and had an Act of Parliament for their Warrant, made the 11th of his Reign, yet met they with their due reward from the hands of Justice, that Act being against Equity and common Reason, and so, no justifiable ground or apology for those infinit Abuses and Oppressions of the People, they were found guilty of.
The Statute, under colour whereof they acted, ran to this effect. Be it enacted, that the Justices of the Assizes, and Justices of the Peace upon Information for the King, before them to be made, have full power and authority by their discretion, to hear and determine all offences and contempts. Having this ground, they proceeded against the People, upon meer Information, in the execution of Penal Laws, without any Indictment or Presentment by good and lawful men, but only by their own Promoters or Informers, contrary to the 29th of Magna Charta, which requires, That no free-man be proceeded against, but by lawful Judgement of his Peers, or by the Law of the Land.
Secondly, This Act allowed them to hear and determine arbitrarily, by their own discretion, which is not according to the Law and Custom of England. And Cook sayes, ’Tis the worst (and most aggravated) oppression of all, that is done under the colour of Law, or disguise of Justice.
Such a Statute or Act of Parliament, is, not only against the light of Reason, but against the express letter of unrepealed Statute-Law; 42. Edw. 3. 1. It is assented and accorded, That the great Charter, and the Charter of Forest be holden and kept in all points, and if any Statute be made to the contrary, that shall be holden for none.
This also is consonant to the first chapter of the great Charter itselfe, made 9. Hen. 3. We have granted to all the free men of our Realm, these Liberties underwritten, to have and to hold to them and their heirs, of Us and our Heirs, forever.
But what if this great Charter itself had never been made? had England been to seek for righteous Laws and just Liberties? nothing lesse. The same Liberties and Laws were ratified before that, in the great Charter made the seventeenth year of King John, and mentioned (among others) by Matthew Paris.
And to what yet amounted the matter of all these Grants, but what the Kings themselves were bound before to observe, by the Coronation Oaths, as the antient fundamental Laws or Customs of this Land? This we may find in Mr. Lambard’s Translation of the Saxon Laws,5from the time of King Ina, who began anno 712; to Hen. 1. who began 1100. Amongst the Saxons, King Alfred is reputed the most famous and learned Compiler of our Laws, which were still handed along from one King to another, as the unalterable Customs of the Kingdom. In the 17th chapter of Edward the Confessor’s Laws, The mention of the duty of a King (which, if not performed, nec nomen Regis in eo constabit)6is remarkable. And Mr. Lambard tells us, that even William the Conqueror, did ratifie and observe the same Laws that his kinsman Edward the Confessor did, as obliged by his Coronation Oath.
So then, neither the great Charter in King John’s time, nor that of 9. Hen. 3. were properly a new Body of Law, but a Declaration of the antient fundamental Laws, Rights and Liberties of this Nation, in Brittish, Saxon, Danish and Norman times, before. This, Cook in his Proemto the second part of his Institutes, observes; where he notes also, that this Charter is not called great, for quantity of words, (a sheet of Paper will contain it) but for the great importance and weight of its matter.
Through the advice of Hubert de Burgo Chief Justice of England, Edward the first, in the eleventh year of his Reign, did, in a Council held at Oxford, unjustly cancel this great Charter, and that of Forest: Hubert therefore was justly sentenced according to Law, by his Peers, in open Parliament. Then, 25 Ed. 1. The Statute, called, Confirmationes Chartarum was made, in the first chapter whereof, the Magna Charta is peculiarly called the Common Law. 25. Ed. 1. cap. 2. Any Judgment given contrary to the said Charter, is to be undone and holden for naught. And cap. 4. Any that by word, deed, or counsel, go contrary to the said Charter, are to be excommunicated by the Bishops; and the Arch-Bishops of Canterbury and York are bound to compel the other Bishops to denounce sentence accordingly, in case of their remisness or neglect.
The next famous sticklers to Hubert de Burgo, for Arbitrary Domination, were the two Spencers, father and son,7by whose rash and evil counsel (sayes Cook) Edward the second was seduced to break the Great Charter, and they were banished for their pains.
By these passages we may observe, how the People would still be strugling (in and by their Representatives) for their Legal Rights and Just Liberties; to obviate the Encroachers whereof, they procured several new Ratifications of their old Laws, which were indeed in themselves unrepealable, even by Parliaments, if they will act as men, and not contradict the Law of their own Reason, and of the common Reason of all mankind.
By 25 Ed. I. cap 1. Justices, Sheriffs, Mayors, and other Ministers, thathave the Laws of the Land to guide them, are required to allow the said Charter to be pleaded in all its points, and in all causes that shall come before them in Judgment.
This is a clause (sayes Cook) worthy to be written in letters of gold; That the Laws are to be the Judges’ guides, (and therefore not the Judges, the guides of the Laws, by their arbitrary glosses) which never yet misguided any that certainly knew and truly followed them. In consonancy herewith, the Spaniard sayes, Of all the three learned Professions, The Lawyer is the only lettered man, his business and duty being to follow the plain literal construction of the Law, as his guide, in giving Judgment. Pretence of mystery here, carries in the bowels of it, intents, or at least a deep suspition of arbitrary domination. The mind of the Law is not subject to be clouded, disturbed or perverted by passion or interest. ’Tis far otherwise with Judges; therefore ’tis fitter and safer the Law should guide them, than they the Law. Cook on the last mentioned Statute affirms, That this great Charter, and the Charter of Forest, are properly the Common Law of this Land, or the Law that is common to all the People thereof.
2 Ed. 3. cap. 8. Exact care is taken, that no Commands by the Great or Little Seal, shall come to disturb or delay Common Right. Or, if such Commands come, the Justices are not thereby to leave to do Right, in any point. So 14 Ed. 3. 14. 11 Ric. 2. 10. The Judges’ Oath, 18 Ed. 3. 7. runs thus:
If any force come to disturb the execution of the Common Law, ye shall cause their bodies to be arrested and put into Prison. Ye shall deny no man Right by the King’s Letters, nor counsel the King anything that may turn to his dammage or disherison.8
The late King in his Declaration at Newmarket, 1641, acknowledged the Law to be the Rule of his Power. And his Majesty that now is, in hisSpeech to both Houses, the 19th of May last, said excellently, The good old Rules of Law are our best security.
The Common Law then, or Liberties of England, comprized in the Magna Charta and the Charter of Forest, are rendered as secure, as authentick words can set them, from all Judgments or Precedents to the contrary in any Courts, all corrupting advice or evil counsel of any Judges, all Letters or Countermands from the King’s Person, under the Great or Privy Seals; yea, and from any Acts of Parliament itself, that are contrary thereunto. As to the Judges, no question, they well know the story of the 44 corrupt Judges, executed by King Alfred, as also of Tresillian, Belknap, and many others since.
By 11 Hen. 7. cap. 1. They that serve the King in his Wars, according to their duty of Allegiance, for defence of the King and the Land, are indempnified; If against the Land, and so not according to their Allegiance, the last clause of that chapter seems to exclude them from the benefit of this Act.
6. Hen. 8. 16. Knights and Burgesses of Parliament are required not to depart from the Parliament, till it be fully finished, ended or prorogued.
28 Ed. 3. cap. 3. No man is to be imprisoned, disherited, or put to death, without being heard what he can say for himself.
4 Ed. 3. 14. and 36 Ed. 3. 10. A Parliament is to be holden every year, or oftener if need be.
1 Ric. 3. cap. 2. The subjects of this Realm are not to be charged with any new imposition, called a Benevolence.
37 Ed. 3. c. 18. All those that make suggestions against any man to the King, are to be sent with their suggestions before the Chancellor, Treasurer, and his grand Council, and there to find surety that they will pursue their suggestions; and are to incur the same pain, the party by them accused should have had, if attained, in case the suggestion be found evil, or false.
21 Jacobi, cap. 3. All Monopolies and Dispensations, with Penal Laws, are made void, as contrary to the great Charters.
These quotations of several Statutes, as Ratifications and Restorers of the Laws of the Land, are prefixed to the following Discourses and Pleas of this Sufferer, as certain, steady, unmovable Landmarks, to which he oft relates. The rouling Seas have other Laws, peculiar to themselves, as Cook observes (on that expression, Law of the Land) in his Comment on the 29th Chapter of Magna Charta. Offences done upon the High Sea, the Admiral takes conusance of, and proceeds by the Marine Law.
But have those steady Land-marks, though exactly observed and never so pertinently quoted and urged by this Sufferer, failed him, as to the securing of his Life? ’Tis because we have had Land-floods of late; Tumults of the People, that are compared to the raging Seas, Psal. 65. 7.
The first Paper of this deceased Sufferer, towards the defence of his Cause and Life, preparatory to the Trial, (as the foundation of all that follows) before he could know how the Indictment was laid, (and which also a glance back to any crime of Treason since the beginning of the late War, that the Attorney General reckoned him chargeable with, shews to be very requisit) take as followeth.
Memorandums touching my Defence.
The Offence objected against me, is levying War, within the Statute 25 Ed. 3.9 and by consequence, a most high and great failure in the duty which the Subject, according to the Laws of England, stands obliged to perform, in relation to the Imperial Crown and Soveraign Power of England.
The crime, if it prove any, must needs be very great, considering the circumstances with which it hath been accompanied: For it relates to, and takes in a series of publick action, of above twenty years continuance. It took its rise and had its root in the Being, Authority, Judgment, Resolutions, Votes and Orders of a Parliament, and that, a Parliament not only authorized and commissionated in the ordinary and customary way, by his Majestie’s Writ of Summons, and the People’s Election and Deputation, subject to Adjournment, Discontinuance, and Dissolution, at the King’s will; but which by express Act of Parliament, was constituted in its continuance and exercise of its Power, free from that subjection, and made therein wholly to depend upon their own will, to be declared in an Act of Parliament, to be passed for that purpose, when they should see cause. To speak plainly and clearly in this matter; That which is endeavoured to be made a Crime and an Offence of such an high nature in my person, is no other than the necessary and unavoidable Actings of the Representative Body of the Kingdom, for the preservation of the good People thereof, in their allegiance and duty to God and his Law, as also from the imminent dangers and destruction threatened them, from God’s and their own Enemies.
This made both Houses in their Remonstrance (May 26. 1642.) protest; If the Malignant spirits about the King, should ever force or necessitate them to defend their Religion, the Kingdom, the Priviledges of Parliament, and the Rights and Liberties of the Subjects, with their Swords; The Blood and Destruction that should ensue therupon, must be wholly cast upon their account, God and their own consciences telling them, that they were clear; and would not doubt, but that God and the whole world would clear them therein.
In his Majestie’s Answer to the Declaration of the two Houses, (May 19. 1642.) he acknowledgeth his going into the House of Commons to demand the five Members, was an errour: And that was it, which gave the Parliament the first cause to put themselves in a posture of defence, by their own Power and Authority, in commanding the Trained-Bands of the City of London, to guard and secure them from Violence, in the discharge of their Trust and Duty, as the two Houses of Parliament, appointed by Act, to continue, as above-mentioned.10
The next cause was, his Majestie’s raising Forces at York, (under pretence of a Guard) expressed in the humble Petition of the Lords and Commons (May 23. 1642.) wherein they beseech his Majesty to disband all such Forces, and desist from any further designs of that nature, otherwise they should hold themselves bound in duty towards God, and the Trust reposed in them by the People, and the Fundamental Laws and Constitutions of this Kingdom, to employ their care and utmost power, to secure the Parliament, and preserve the peace and quiet of the Kingdom.
May 20. 1642, The two Houses of Parliament gave their Judgment, in these Votes.
First, That it appears that the King (seduced by wicked Counsel) intends to make War against the Parliament, who in all their Consultations and Actions have proposed no other end to themselves, but the Care of his Kingdoms, and the performance of all Duty and Loyalty to his Person.
Secondly, That whensoever the King maketh War upon the Parliament, it is a breach of Trust reposed in him by his People, contrary to his Oath, and tending to the dissolution of this Government.
Thirdly, That whosoever shall serve or assist him in such Wars, are Traitors by the fundamental 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 Majestie’s 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 Traitors 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 Majestie’s 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 only Rule, by which the People can be justly 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 Votes, without or against his Consent, to enjoin anything that is forbidden by the Law, or to forbid anything that is enjoined by the Law.
The King does assert in his Answer to the House’s 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 Majestie’s Towns are no more his care than hisKingdom, 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. entituled, The Statute of Provisors of Benefices.
Hereupon, The said Commons prayed our said Lord the King, (since 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 denied, 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, saving 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 Hotham11 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 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 itself speaks, beside the authority of Bookcases. 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 Majestie’s 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 Subject’s 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 Member of Parliament from Punishment, or from all manner of Process and Trial, yet it doth priviledge them in the way and method of their Trial 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 Trial 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 avow, 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 Subject’s 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 Majestie’s good Subjects will yeeld obedience to his Majestie’s 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 Judgment of Parliament for their guide. They alledge the true meaning and ground of that Statute, 11. Hen. 7. cap. 1.12 printed at large in his Majestie’s Message, May 4; This Statute provides, that none that shall attend upon the King and do him true service, shall be attainted, or forfeit anything.
What was the scope of this Statute?
Answer. 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 Majestie’s 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 King’s 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,13 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 Kingdom, the Consent whereof cannot be discerned 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 (whatever 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 to have dissolved all the bands of service and confidence between his Majesty and his Parliament, of whom the Law sayes, a dishonourable thing ought not to be imagined.
This Conclusion then is a clear Result from what hath been argued; That in all Cases of such difficulty and unusualness, happening by the over-ruling Providence of God, as render it impossible for the Subject to know his duty, by any known Law or certain Rule extant, his relying then, upon the Judgment and Reason of the whole Realm, declared by their Representative Body in Parliament, then sitting, and adhering thereto, and pursuing thereof, (though the same afterwards be by succeeding Parliaments, judged erroneous, factious and unjust) is most agreeable to right Reason and good Conscience; and in so doing, all persons are to be free and secure from all Account and Penalties, not only upon the ground and equity of that Statute, 11 Hen. 7. but according to all Rules of Justice, natural or moral.
* * *
The Valley of Jehoshaphat, considered and opened, by comparing 2. Chron. 20. with Joel 3.
It was the saying of Austine; Nothing falls under our senses, or happens in this visible World, but is either commanded or permitted from the invisible and unintelligible Court and Pallace of the highest Emperor and universal King, who is the chief over all the kings of the earth. For although he hath both commanded and permitted a subordinate external Government over Men, administered by man, for the upholding of Justice in human Societies, and for the peace, welfare, and safety of men that are made in God’s Image; yet, he hath not so entirely put the Rule of the whole earth out of his own hands, but that in cases of eminent in justice and oppression (committed in Provinces, States and Kingdomes, contrary to his Lawes, to their own, and the very end of Magistracy, which is the conservation of the People’s just Rights and Liberties) He that is higher than the highest amongst men, doth regard, and will shew by some extraordinary interposition of his, that there are higher than they.
Such a seasonable and signal appearance of God, for the Succor and Relief of his People, in their greatest Straits and Exigencies, (when they have no might, visible Power, or armed Force, to undertake the great company and multitude that comes against them, nor know what to do, save only to have their eyes towards him) is called in Scripture, The day of the Lord’s Judgment. Then the Battel and cause of the Quarrel, will appear to be not so much theirs, as the Lord’s: and the frame of their heart will be humble before the Lord, believing in the Lord, and believing his Prophets, for their good success and establishment.
This Dispensation is very lively described under the Type, and by the Name of The Valley of Jehoshaphat, as to the Season and Place wherein God will give forth a signal appearance of himself in Judgement, on the behalf of his People, for a final decision of the Controversie between them and their enemies. It Litterally and Typically fell out thus, as is at large recorded, 2 Chron. 20.
By way of allusion to this, and upon occasion of the like, yea, and far greater Extreamities, which God’s People in the last dayes, are to be brought into, is that Prophesie, Joel 3. for a like, yea, a far greater and more signal appearance of God for their Deliverance and Rescue, in order to a final Decision of the Controversie, between his People and the Inhabitants of the earth, by his own Judgement. This is there called, The Valley of Jehoshaphat, in which the Lord will sit to Judge all his enemies round about. In this Battel and great Decision of his People’s Controversie, he will cause his Mighty Ones to come down from Heaven, to put in their sickle as reapers in this Vintage and Harvest, when the wickedness is great. Unto this, Revel. 14. 14, 20. refers, which doth plainly evidence, that this grand Decision is to fall out in the very last of times, and probably, is that, which will make way to the Rising of the Witnesses, and will be accompanied with that Earthquake, in which shall be slain, of men seven thousand, and the tenth part of the City will thereupon fall, Rev. 11.
It is expressed, Joel 3. That in this day of the Lord, wherein he will near, in the Valley of Decision, the Heavens and the Earth shall shake, by the Lord’s own roaring out of Sion; and he himself will be the Harbour, Hope and Strength of his People. The Sun and Moon of earthly Churches and Thrones of Judicature, that contest with them, shall be darkened, and the Stars, (even the choicest and most illuminated gifted Pastors & Leaders, in the earthly Jerusalem Churches, with their most refined Forms of Worship, resisting the power of true spiritual Godliness) shall withdraw their shining. Even their holy flesh will pass off from them and consume away upon their spiritual lewdness, and confident opposing the Faith of God’s Elect, Jer. 11. 17. Their very Eyes will consume away in their holes, with which they say, we see; and for which, Christ tells the Pharisees, in like case, that therefore their sin remaineth. (John 9. 41). Or, there remaineth no more benefit from Christ’s Sacrifice, for their sin; and therefore only a fearful looking for of the fiery and devouring indignation, Heb. 10. 26, 27.
Here’s that, the great confidence and boast of many professing Churches and eminent Pastors in the earthly Jerusalem Fabrick, or House on the sand, will come to, Ezek. 13. and Mat. 7. Their very Eyes, their high enlightenings and excellent spiritual Gifts, their supernatural or infused human Learning, that’s admitted only as an adorning and accomplishment of the natural man, (unaccompanied with that Fire-Baptisme, that’s performed by the unspeakable gift of the Spirit itself, for the transforming of the natural man into spiritual) even these Eyes becoming evil, (Mat. 6.23.) and this light, opposing and preferring itself to the more excellent discerning and marvellous light in spiritual Believers, are turned by the just Judgement of God, into the greatest and most fatal blindness and darkness of all. Their tongues also, though the tongues of men and angels, for excellency and dexterity of expressing what they see, with the formentioned eyes, will consume away in their mouth, (Zech. 14.12.) and leave them exposed to become, and accordingly be dealt with, as meer sounding brass and tinckling Cymbals, (1 Cor. 12.31. and 13. 1.) giving no certain sound, and right warning to the Battels of the Lord, the good fight of Faith.
This comes to pass through their confidence in those attainments, which may be, and oft are turned into an Idol of jealousie, and spiritual whoredom, Ezek. 16. 1, 15.
All these considerations of Church and State, put together, afford great ground of enquiry, as to the Condition of the times in which we live, how far the face which they bear, (and which God hath put upon them, in the course of his Providences, for some years now past) doth speak or signifie the near approach of any such extraordinary and signal appearance or day of God’s Judgement, for the Decision of his own or his People’s quarrel and controversie with the prophane Heathen that are round about them, waiting for an advantage, utterly and universally to remove and root them out from off the face of the whole earth?
That which hath been acted upon the Theater of these Nations, amongst us, in the true state of our Controversie, seems to be reducible to this following Querie;
Whether the Representative Body of the Kingdom of England, in Parliament assembled, and in their Supream Power and Trust made indissolvable, unless by their own Consent and free Vote, and this by particular and express Statute, have not had a just and righteous Cause? A Quarrel more God’s, than their own?
1. It may appear they had; First, from the Ground of their undertaking the War; Was it not in their own and the Kingdom’s just and necessary defence, and for the maintaining of the publick Rights and Liberties of both?
2. Secondly, Was it not undertaken upon mutual Appeals of both Parties to God, desiring him to judge between them, to give the Decision and Issue by the Law of War, (when no other Law could be heard) as the definitive Sentence in this Controversie, from the Court of Heaven?
3. Thirdly, Pursuant to such Decision, did they not recover and repossess the Kingdom’s original and primitive freedom? Did they not endeavour to conserve and secure it, as due to them by the Law of God and of Nature? For man was made in God’s Image, and all Adam’s Posterity are properly one Universal Kingdom on earth, under the Rule and Government of the Son of God, both as Creator and Redeemer.
By virtue of this original and primitive Freedom so recovered, they were at their own choice, whether to remain in, and retain this their true freedom (unresigned and unsubjected to the Will of any Man) under the Rule of the Son of God and his Lawes, or else to set up a King or any other Form of Government over them, after the manner of other Nations. In this latter case, it is acknowledged, that when a Commonwealth or People, do choose their first King, upon condition to obey him and his Successors, Ruling justly; they ought to remain subject to him, according to the Law, and tenor of the Fundamental Compact with him, on whom they have transferred their Authority. No Jurisdiction remaineth in them (after that free and voluntary Act of theirs) either to Judge the Realm, or determine who is the true Successor, otherwise than is by them reserved and stipulated, by their Fundamental Laws and Constitutions of Government.
And though the righteousness of this Cause (contained in the forementioned particulars) be such, as carries in it its own evidence; yet, as (as things have fallen out) it is come to be oppressed and buried in the grave of Malefactors; in the room of which, a contrary Judgement and Way, is visibly owned, upheld, and intended to be prosecuted to the utmost, for its own fast-rooting and establishment; and this, by the common Consent and Association of Multitudes. What then remaines for the recovery and restitution of that good old Cause and Way, but such a seasonable and signal appearance of God, (as aforesaid) in the Valley of Jehoshaphat? What but the taking things immediately into his own hands, for administration of Judgement, and giving the last and final decision? Especially, since what was foretold by Daniel, is remarkably accomplished amongst us, to wit, that the visible Power of God’s People should be broken and scattered, so as that they should have no might remaining in and with them, to go against the Multitudes, that design and resolve their Ruine.
There is not any remedy left to them, wherein they may expect success, but from such a signal day of the Lord’s immediate appearance in Judgement on their behalf. For their sakes therefore, O Lord, return thou on high, (Psal. 7.7.) take thy Throne of Judicature over men, from which thou hast seemed to have departed, and execute that righteous Judgement, which thou hast seemed for a season to have suspended, upon wise and holy ends best known to thy self.
In such a dark and gloomy day, those that truely fear the Lord, are directed and required by him, not to fear or be dismayed, because he will be with them. They are encouraged in the way of Faith only, to expect this deliverance; even to stand still, as having no need to fight in this Battel, but only to see the Salvation of the Lord, through believing.
Antient Foundations, when once become destructive to those very ends for which they were first ordained, and prove hinderances, to the good and enjoyment of human Societies, to the true Worship of God, and the Safety of the People, are for their sakes, and upon the same Reasons to be altered, for which they were first laid. In the way of God’s Justice they may be shaken and removed, in order to accomplish the Counsels of his Will, upon such a State, Nation, or Kingdom, in order to his introducing a righteous Government, of his own framing.
This may have been the cause of our Wanderings as it were in a Wilderness, and of God’s bringing us back again into Egypt, after our near approach to the Land of Rest; that we have no better known, and had no more care to prosecute, what he principally intended in and by all our Changes and Removes, in the course of his Providence. Yea we have added this also, to the rest of our sins, that we have improved the Gifts and Deliverances that God bestowed upon us, another way, and to another end than was by him intended, as well as Providentially intimated, by that holy Decree of his, in the Decision, declared at the Trial in his Martial Court, with points of Swords.
Here the great Controversie that had been depending many Ages between Rulers and the Ruled, (as to the Claimes of the one in point of Prerogative; and of the other in their Spiritual and Temporal Freedoms) was after many heats & colds, many skirmishings and battels, at last decided by the Sword. This is a way of Trial allowed by the known common Law of England, and the Law in force throughout all Nations. By this, the Verdict is given forth from a Court of such a Nature, as from whence there is no further appeal; Especially since after the Trial past, quiet possession was given to the Conquerors, and continued some years. Upon this, Reason and Gratitude to God, obliged us to such a prosecution as might answer the true end of Government; and in especial after that manner, as might be most to God’s well-pleasing.
The Powerful Being which by success of Armes, as given to the People’s Representative Body in Parliament, did communicate to it essentiallity, according to the nature of that Being, for which it was ordained. For that Being, with Power of continuing together at their own pleasure, were as the Soul and Body, unseperated, and they might have performed things necessary at present, for the safety and preservation of the Body they represented. They might have been a good help to settle righteous Government, in a constitution most acceptable to God, and beneficial to the Governed, on the Foundation of God’s Institution, and the People’s Ordination, in consent together, laid by the Power of God and the People’s own Swords, in the hands of their faithful Trustees.
It would imply a high contempt of God and his Dispensations, so signal amongst us, to communicate the benefit of them to his opposers. The right of choosing and being chosen into places of Trust in the Government, was returned by the Law of the Sword (which is paramount to all human Laws) into its primitive exercise, which is warranted by the Law of God and of Nature. By that Law the most famous Monarchies of the World in all Ages were first constituted and setled; and by it God decided our Cause, looking for an event and fruit answerable to the benefit by him given; even such a Government, as God would have given us the Pattern of (had we sought it, as was our duty) whereby Justice and Mercy should have been daily administered according to his will, to the bringing on the new Heavens and new Earth, wherein Righteousness might dwell.
The Vessel of this Commonwealth now weather-beaten and torn, seems to be more in danger, than that wherein Jonah would have fled to Tarus: For though we have cast forth a great part of our goods to secure it, this has done us but small good. That Ship had but one Delinquint aboard, which occasioned the Storm; and his being thrown into the Sea, brought immediate safety. They had also many skilful Seamen to guide it, but all our Pilots are cast over-board, and none left in appearance, but guilty Passengers. Nay, admit with Jonah, both the Commonwealth and Cause be brought into most desperate Exigents and Extreamities, from whence there is no more appearing redemption for them, than such as they have, that go down quick into the grave and belly of the Whale; yet they may be preserved, even by that which naturally of itself is irrecoverably destructive to them, and be employed again in service by him against whom they have been so ungratefully rebellious after former great deliverances. So infinite are God’s Mercies, yea, so exceeding Merciful are the severest of his Judgements and Dispensations towards his People.
Thus may both People and Army be deprived of their Power, and another party let in to plague and root out from amongst us, such as are more wicked than themselves, and so make room for a more righteous Generation, which will begin all things anew.
By the course of things acted amongst us, God’s sentence on our behalf is made void, and that seems given away forever, which was recovered by the Sword. Our troubles are only prorogued. No Faith or Contract is thought meet to be kept with Rebels and Hereticks, when by acquired Power it may be broken. ’Twas the great folly and self-flattery of some, to think it would be otherwise. It is most certainly true, that no Time or Prescription, is a just Bar to God’s and the People’s Right.
To murmure against God’s Verdict, and resist his Doom, so solemnly given and executed amongst us, in the sight and concurring acknowledgement of the Nations round about, is to become adversaries to God, and to betray our Countrey. If God then do think fit to permit such a dispensation to pass upon us, it is for the punishement of our sins, and for a plague to those that are the Actors therein; to bring more swift exemplary vengeance upon them. Such as have discharged a good Conscience in what may most offend the higher Powers, are not to fear, though they be admitted to the exercise of their Rule, with an unrestrained Power, and revengeful mind.
Though from that Mountain, the Storm that comes, will be very terrible, yet some are safest in Storms, as experience shews. Yea best therein by God’s Mercies, when their greatest enemies think most irrecoverably to undo them.
Our late Condition held much resemblance with that of the Jewes, and we deserve as well to be rejected as they were. If Christ were in the flesh amongst us, as he was with them, we are as likely to prefer theeves and murtherers before him, and crucifie him.
The present necessity in a righteous Cause is to be submitted to, and we are not to be discouraged by the danger, which to some seems threatened us, from former or present Laws. For no man that acts for common safety, when the Sword hath absolute power, and shall also command it, can justly be questioned afterwards for acting contrary to some former Laws, which could be binding no longer than whilst the Civil Sword had Soveraignty.
What People under Heaven have had more Experiments of God’s timely assistance in all their Extreamities, than Englishmen, as well with respect to times past, as within our remembrance? Are the like Mercies recorded of any Nation? In their times of greatest Confusion they were preserved. They were a living active Body without a Head: A Bush burning in the Flames of a Civil War, yet not consumed: A People when without a Government, not embued with one another’s Blood. A wonder to all Neighbours round about, and many signal Changes brought about without Blood, which indubitably evidences that God is in the Bush: and would gather us together as Chickens under a Hen, to be brooded by him, if we were not most stubbornly hardened.
Our sins have been the cause, that our Counsels, our Forces, our Wit, our Conquests, and our-Selves have been destructive to ourselves, to each other, and to a happy advancement towards our long expected and desired Settlement. Until these sins of ours be repented truly and throughly, all the Wisdom and Power upon Earth shall not avail us, but every day, every attempt, will encrease our Troubles, until there be a final extirpation of all that hinders God’s Work; When this once is, nothing shall harm us, God being a sure refuge against all evils, if we reconcile ourselves to him by Faith and Repentance. Then, even those things that are most mischievous in their own natures, shall be made our advantage and security.
The People’s Cause whom God after trial hath declared free, is a righteous one, though not so prudently and righteously managed as it might and ought to have been. God’s doom therefore is justly executed upon us, with what intent and jugglings soever it was prosecuted by men.
Man’s corruption makes him more firmly to adhere to that which is good: in which case, it is not many times, Virtue so much as Necessity that keeps men Constant; having no other means of safety and subsistance for the most part.
The goodness of any Cause is not meerly to be judged by the Events, whether visibly prosperous or unprosperous, but by the righteousness of its Principles: nor is our Faith and Patience to fail under the many fears, doubts, wants, troubles, and Power of Adversaries, in the passage to the recovery of our long lost Freedom. For it is the same Cause with that of the Israelites of old, of which we ought not to be ashamed or distrustful.
How hath it fared with the Cause of Christ generally, for more now than 1600 years, being made the common object of scorn and persecution, not from the base and foolish only, but from the noblest and wisest persons in the World’s esteem? Yet, though our Sufferings and the time of our warfare seems long, it is very short, considering the perpetuity of the Kingdom which at last we shall obtain, & wherein we shall individually reign with the chief Soveraign thereof. For whereas all the Kingdoms of the World have not yet lasted 6000 years, this is everlasting and without end. They that overcome by not loving their lives unto the death, (Rev. 12.11.) shall be Pillars in the House of this everlasting Kingdom, never to be removed. They shall be Kings and Priests to God, sitting with him upon his Throne, subjecting the Nations, and reigning with him for ever and ever. This is a Kingdom that consists with the Divinity of Christ, and humanity of men. Such a reign of Christ upon earth, as will not be without Laws agreeable to human Nature, nor without Magistrates appointed as Officers under him; in which Election, God and the People shall have a joint concurrence. God’s Throne in men’s Consciences must then be resigned, and his People permitted to enjoy the Liberties, due to them by the Laws of Grace and Nature. Into this, God’s own immediate hand can now only lead us, by his own coming to Judgement in the Valley of Jehoshaphat.
[1. ]The defendant in a treason trial of this period was typically not permitted counsel, although Vane should have been allowed to make a full plea on his own behalf.
[2. ]Sir John Fortescue, lord chief justice of the King’s Bench in the fifteenth century, was known in the seventeenth century for his treatise De Laudibus Legum Angliae, first printed in 1537.
[3. ]This is a reference to Sir Edward Coke’s Second Institute, “Commentary on Magna Carta,” which was published in 1642 by order of the House of Commons.
[4. ]Sir Richard Empson and Edmund Dudley, financial advisors to Henry VII, were bitterly hated for the manner in which they carried out a system of extortions intended to enrich the Crown. Both were executed in 1510 on a charge of constructive treason for having urged friends to arm themselves during Henry VII’s last illness.
[5. ]William Lambarde’s work Archaionomia, first printed in 1568, was a collection and paraphrase of the Anglo-Saxon laws. A second edition of this work was published by Whelock in Cambridge, 1644.
[6. ]The name of the King agreeth not unto him.
[7. ]Hugh Despenser, a royal official, and his son Hugh the younger, the favorite of Edward II, held great power, even over the king. After Edward was captured in a general uprising of English magnates, Despenser the younger was executed and Edward forced to abdicate in favor of his heir Edward III.
[8. ]To disinherit or deprive of his rightful position.
[9. ]The statute of 25 Edward III. cap. 2 (1352) contained the stipulation that to “levy war against our lord the king in his realm” is treason. Pollock and Maitland find that Edward III was the first English king since the Conquest “who could afford to make such a declaration.” See Frederick Pollock and Frederic Maitland, The History of English Law, 2d ed. (Cambridge, 1968), 2:505.
[10. ]The king’s answer is reprinted in volume 1, 145-77.
[11. ]In the summer of 1642 Hotham was sent by Parliament to Hull where the major English arsenal outside London was located, and there refused entrance to the King and his retinue.
[12. ]11 Henry VII, cap. 1 (1495), An Act that no person going with the King to the wars shall be attaint of treason, known as the De facto Act. This act ensured that no one could be accused of treason for obeying the king at the time in question. See Geoffrey Elton, The Tudor Constitution, 2d ed. (Cambridge, 1982), 2.
[13. ]Perkin Warbeck was a notorious pretender to the throne in the late fifteenth century. He claimed he was Richard, Duke of York, son of Edward IV. He was banished by Henry VII but welcomed by James IV of Scotland. Warbeck proclaimed himself Richard IV in 1496 and was captured as he led an uprising to seize the crown.