for there are no such persons by the law of England; for neither the common law, nor acts of parliament, do know or acknowledge any jurors for the Lord Protector. 7. If any alteration be made in the indictment by the judges, then desire, that the evidence to the grand inquest may be given at the bar in open court. 8. If one of the grand inquest stands outlawed, it makes void the indictment; and if we know any such, we may challenge them, and demand the indictment to be vacated by virtue of a statute, 11 Hen. 4, cap. 9, and if the judges bid us prove thein to be outlawed, we may demand time, and we will bring it under seal. 9. We may desire a copy of the indictment, though the judges positively deny it, and urge my lord Coke for authority. 10. If we can find any incertainty in the indictment either in time or place, let us alledge it against the sufficiency of the said indictment. 11. If the indictment express not particularly some open deed we did in levying war, except against it as insufficient, and still insist upon the assignment of counsel to argue the whole, because it is a scruple in law worthy of great debate. 12. If the judges deny us counsel, tell them, others usually have had it, and particularly Mr. Norbury was counsel for col. Lilburne, and the now judges Nicholas and serjeant Maynard were counsel for capt. Rolph, when he was accused for treason against the king. 13. If the judges require it, give the exceptions in writing, but expunge what makes against us, if seen, and still obtain counsel, and urge Humphrey Stafford's cause in the 1st of Hen. 7, for precedent. 14. If after arguing the case by counsel, or before, the judge overrule the plea, then insist upon the same plea to the jury, and put it upon their consciences, that God hath made them our judges to judge between us and the judges; and that, if we be found guilty by the jury, our blood will lie upon the jury, and the judges be acquitted; but if the jury find us not guilty, the jurors are innocent, if we die. 15. If the jury seems fearful to clear us absolutely, tell them the judges have overruled them; that it is safest for the jury to find a special verdict, which leaves the point in law to all the judges, whether or no it is treason, whereby also the jurors will leave all the dan ger that can follow, and all the bloodshed on the judges. 16. Tell the jury, that they are now to judge, whether or no we have committed treason; and if they judge that to be treason, which is no treason, our blood will be upon them; and there can be no treason, nor ever was in England, but such as is made so by the common law, or act of parliament. 17. Let every prisoner allow of one juror, whom another person hath challenged, and challenge him, whom another prisoner hath VOL. V, allowed, whereby every one of us shall have almost a whole distinct jury for himself, which juries possibly will differ in their opinions, at least it will puzzle the prosecutors to get so many several juries; therefore let every prisoner have pen and ink ready to note the names of the several jurors for several persons, who for one, and who for another. 18. They cannot indict and try us all in one day, as it is in Kelloway, fol. 159, 6, which the Lord Chief Justice Rolle declared to be law in the case of the Portugal ambassador's brother. 19. If they indict us for felony, we may say it is no felony, except it be done with a felonious intent; and the country knows, we did not intend to steal, but only to borrow the horses, which is usual now a-days, and as the soldiers did now at London and elsewhere, who came against them; and the sheriff of the county was present, when divers horses were seized, and did himself seize some, which were none of ours. 20. Also ask the prosecutor upon the trial, whether he can take his oath, that we took the horses with a felonious intent; and if he will not swear it, then ask the jury, whether they can take it upon their oaths we stole the horses, where the prosecutor himself will not swear it. 21. Ask the prosecutor, whether he came voluntarily to prosecute against us; and if he did not, but was forced, then desire the jury to judge, whether, they that are come hither from London purposely, have not an intention to take away our lives. 22. If they indict us as traitors by any act of the long parliament, it will be for treason against the king, or against the commonwealth, and keepers of the liberty; we have done nothing against either of them, and let them prove it. 23. If they ground the indictment on any act or ordinance since the long parliament was dissolved, which was April 20, 1653, deny it to be an act; for the two last parliaments made no acts at all concerning treason, and there can be no treason by an ordinance. Therefore leave it upon the conscience of the jury, whether there be any laws to guide them in their verdict, besides common law and acts of parliament. 24. Tell the jury, that if the king had formerly with his council made a proclamation, order, or ordinance, declaring something to be treason, which neither the common law nor any act of parliament had so declared, that no jury hereupon durst have found any man guilty. 25. Alledge the case of Chief Just. Tresilian, sir Robert Belknappy, and other judges in 11 Rich. 2, who gave their opinions, that other facts were treason than what had been declared by authority of parliament, and did it to please the then present governor, were attainted of treason for their opinions, and by the parliament following 11 Rich. were made 3 E and place, else they are but single testimonics to two facts of the same nature. 30. Insist upon it to make them prove the act or ordinance is a true copy of the parliament roll, and examine them upon oath, whether they examined it by that roll; (for it is possible they may have forgot to do it,) alledg examples for their treason. And in the 21 | Rich. 2, the judges giving the like opinion, had no other excuse to avoid the attainder of treason in parliament the 1 Hen. 4, than that they durst say no otherwise for fear of death; but it was hereupon enacted; that no justice or other person whatever shall from thenceforth be admitted to say, that they durst not for fearing that we are not to be tried by every priof death speak the truth; so that no force nor fear can excuse any person, if he shall now declare fact to be treason, which cannot he warranted by authority of parliament. Therefore leave it upon the conscience of the jury, whether they do believe we are indicted for any breach of any common law, or act of parliament; and if for neither, whether they can in conscience take our blood upon their heads. any vate or printed paper, and demand it may not be read or given in evidence, until it be proved. 31. If they offer to prove by any intercepted letters, whereof they have copics, that we levied war, then deny those copies, and demand the originals; and if the originals could (which cannot) be produced, they can never prove them to be any of our hands, if we put them to it. 32. If the Commissioners that try us be scr 26. If the judge pretend, that we alledge jeant Glynne or recorder Steele, or any other, not matter of law sufficient for assignment of who are not the ordinary judges at Westminster, Counsel, then urge, that the ordinance, where- tell the jury, that these are not the sworn upon the indictment is grounded, is not pur-judges of the law, but practitioners and pleadsued: that at the time of the indictment there were not two lawful accusers or witnesses to the grand jury, which ought to be by the law. Or a prisoner inay alledge, he is not rightly named in the indictment, or hath not his right title or addition, or the fact is not set down with sufficient certainty, and by some or all these we may get counsel assigned. 27. If the indictment be for levying war, alledge, that there is no such open deed set down as is sufficient in law, and in such case, desire counsel to argue it, and endeavour to make our bearing of arms only a riot or unlawful assembly, and not a levying of war; for every bearing of arms in a warlike manner is not by the law a levying of war, as was adjudged in the earl of Northumberland's case, 5 Hon. 4. 28. If we could say we met together upon some private revenge against the sheriff, or some private man, and not for the destruction or reformation of any law of the land, or to oppose any lawful authority, then unless two witnesses shall swear that we did declare some other end, the case must be resolved in law, whether it be a levying war; yet this point must not be insisted on, until the grand point in law be overruled by the court, viz. that the indictment is sufficient in law, notwithstanding it is not grounded upon the common law, or any act of parliament; for we ought to lose ground by inches. 29. If they proceed upon the indictment to give evidence against us, insisting upon it, that the matter of fact be proved by two sufficient lawful witnesses; then let their witnesses depose openly in court face to face, for the law exacts two lawful witnesses in case of treason by statute 1 Edw. 6, and 5 Edw. 6, cap. 11, and 1 and 2 Ph. and Mar. cap. 11. Let the witnesses be strictly examined, and put to swear punctually to the fact, &c. charged in the indictment as the open deed, declaring and levying of war; and that both witnesses swear to the same fact, and at the same time ers, servants to the Lord Protector, and are made judges only for this purpose, to take our lives contrary to law, because the sworn judges refused it. If baron Thorpe comes, he is a sworn judge. 33. If the judges say, tha he Lord Pro tector is invested with the same power, that the late governors, whether king or parliament, were invested with, tell the jury boldly, that the laws of England connot be altered but by act of parliament, and therefore there was an act of parliament to change the government from the king, to the keepers of the liberties, anno 1649; but there is no act of parliament since to change the keepers of the liberty into a Lord Protector, so that there can be no treason to bear arms against the Lord Pro tector. 34. Tell the jury, that it is now our case, and they know not how soon it may be their own, for many were zealous for the present government, as the jury now can be, who have already felt, and others like to feel, the effect of their new ordinances: how safe and honourable it is for them to stick to the law, rather than take our blood upon them; and instance in John Lilburne's several juries; and if not to acquit us, yet to acquit themselves, by finding a special verdict, which leaves us to law, and lays the guilt of our blood upon the judges; and especially, how dangerous it is for the jury to prove, by shedding our blood, that the Lord Protector hath a legislative power, and that his ordinances are laws, when the late representative of the whole people in parliament refused to acknowledge them. 36. If indicted for treason upon the 25 Edw. 3, for levying war against the king, demand the statute to be read, beg the jury to observe when it is read, and then remember how all kingly government and authority was abolished by the act 1649, of the long parlia ment; and the Protector himself in several speeches declared, he was not, nor would be king. If they bid us shew the speeches, where of the petty jury. Richard Rives of Rimpton, in the county of Southampton, gent. Found guilty by verdict of the petty jury. Francis Jones, late of Beddington in the county of Surry, gent. Found guilty by verdict of the petty jury. Thomas Fitz-James, late of Hanley in the county of Dorset, gent. Found guilty by verdict of the petty jury. George Duke, late of Stuckton in Hampshire, gent. Found guilty by verdict of the petty jury. Edward Davy, late of London, gent. Found guilty by verdict of the petty jury. Thomas Poulton, late of Pewsey in Wiltshire, innholder. Found guilty by verdict of the petty jury. shire, gent. Confessed the fact on his arraignment. Thomas Helliard, of Upton in the county of Southampton, yeoman. Found guilty by verdict of the petty jury. Robert Harris, late of Blanford in the county of Dorset, cordwainer. Found guilty by verdict of the petty jury. John Biby, of Coinpton Chamberlain in the county of Wilts, gent. Found guilty by verdict of the petty jury. John Cooke, of Potterne in Wilts. It appeared upon the evidence, that he was one of those, that took the judges. Found guilty by verdict of the petty jury. verdict of the petty jury. John Haynes, trumpeter. Found guilty by of Somerset, gent. Acquitted by verdict of the William Strode, of Wincanton in the county petty jury. On the third Indictment. Henry Collyer, late of Staple Langford in the county of Wilts, gent. Confessed the fact upon his arraignment. William Wake, late of Blanford, in Dorsetshire, gent. Confessed the fact upon his arraignment. Christopher Haviland, late of Longton in the county of Dorset, labourer. Confessed the fact upon his arraignment. Hans Stiver, late of New Sarum, in the county of Wilts, gent. Found guilty by verdict of the petty jury. James Horsington, alias Huish, late of New Sarum, gent. Found guilty by verdict of the petty jury. John Giles, alias Hobbs, late of New Sarum, Yeoman. Found guilty by verdict of the petty jury. Found guilty by verdict of the petty jury. Abraham Wilson, late of the same, cutler. Joseph Collier, late of Steeple Langford, Francis Bennet, late of Killington in Somer-gent. Confessed the fact upon his arraignsetshire, gent. Acquitted by the petty jury. On the second Indictment. Edward Willis, late of New Sarum in the county of Wilts, innholder. Found guilty by verdict of the petty jury. Nicholas Mussel, late of Steeple Langford in the said county, yeoman. Found guilty by verdict of the petty jury. William Jenkins, of Fordingbridge in Hamp ment. Richard Browne. Found guilty by verdict of the petty jury. Nicholas Bradgate, late of Blanford Forum, yeoman. Acquitted by the petty jury. Marcellus Rivers, late of Benstead in the county of Southampton, gent. The grand jury did not find the bill against him. 26 prisoners condemned, 199. Proceedings of the Lord Protector and his Council against Sir HENRY VANE, knt. for the Publication of a Book, intitled, "A Healing Question, propounded and resolved upon occasion of the late public and seasonable Call to Humiliation, in order to Love and Union amongst the honest Party:" 8 CHARLES II. A. D. 1656.* The Copy of the SUMMONS for Henry Vane, To Sir Henry Vane knight. to this Summons. Belleaw, Aug. 4, 1656. Sir; Lest my silence might be mis-interpreted upon the last paper, I have received, subscribed (as I suppose) with your hand, appointing my attendance at Whitehall the 12th instant: I have held myself obliged to return you this account, that ny purpose is (God willing) to set forward from this place to my house in the Strand, the beginning of the next | week, which is as soon as I can expect to have a coach to meet me half way, this very hot season for travel, and my own being in no condition to perform so long a journey upon so short a warning given to Your humble servant, HEN. VANE To Henry Lawrence, esq. President of the Council at Whitehall. * From a pamphlet, intitled, "THE PROCEEDS OF THE PROTECTOR (so CALLED) AND HIS COUNCIL, Sir Henry Vane's letter to Mr. Jessop, Clerk to the Council at Whitehall, presently after his coming to London. Charing Cross house, Aug. 20, 1656. Sir; It being declared by parliament (as is very well known) that it is against the laws and liberties of England, that any of the people thereto should be commanded by the king (when there was one, to attend him at his pleasure) but such as are bound thereunto by special service (which others therefore are not) it will I hope be permitted me without offence, to claim the same privilege and liberty in these times, and in the case of the summons sent me, wherein I find no cause for my appearance expressed but mere will and pleasure: Yet in vindication of the innocent, and peaceable department I live in according to the laws; I have not refused to be upon the place at my house here in the Strand ever since Thursday night last, as I made known unto you by this bearer the next morning. And as ever since I have been, so I am still ready to appear when I shall be sent for, until the pressingness of my occasions, in reference to my family concerns, which at this time by reason of my father's Vane, knt, and his imprisonment in the Isle of Wight. Occasion being taken (as thou wilt find) from his writing and publishing a distending to the composure and uniting all honest course entitled, " An Healing Question," &c. men's hearts and spirits, who from the first beginning of all the war all along have been en "Against sir Henry Vane, knt. a late eminent Member of the Council of State of the Com-gaged in the cause of true freedom, against opmonwealth of England: as touching his im- pression and tyranny, unto which he was inprisonment in the Isle of Wight. Together vited by the Declaration for a Solemn Fast, set with his Testimony delivered in writing to the forth by those in power, the 13th day of March, said Protector, by way of a peculiar address to 1655, exciting the good people of England and himself, and faithful advice of an old friend Wales to wait upon the Lord for light and conand acquaintance. Faithfully transcribed and viction, professing in the sight of God and attested out of the original copies, and pub-man, a most willing mind readily to receive, lished by a real well-wisher to Sion's Prosperity and England's Liberty.” "He that being often reproved, hardeneth when convincingly offered by any. "This being in short the true state of the case, and falling providentially into my hands, out of duty to my country, and respect to that worthy patriot (who at this day so eminently suffers for the cause of God, and true freedom, and that from the hands of those he hath deserved better measure) I have exposed the whole to public view, that thereby thou mayest be informed of the truth, and the nation may The following Address was prefixed to the know what is become of so considerable & his neck, shall suddenly be destroyed, and that without remedy." Prov. xxix. 1. "For if I build again the things that I have destroyed, I make myself a transgressor." Gal. ii. 18. account: "Reader; Thou hast here a true narrative of the whole proceedings against sir Henry member, who may deservedly be a pattern for all true Englishmen to imitate, in this apos tatizing and back-sliding age.” debts are very great and heavy upon me, shall | ber 1642,) to set the government free from all require my attendance upon them in other places of the nation. All which I held myself obliged to make known unto you in the relation you staud in, especially not having heard from you yesterday, as I suppose I might, I am your servant, HEN. VANE. For Mr. Jessop, Clerk to the Council at Whitehall. The first Order of the Council concerning Sir Thursday Aug. 21, 1656. At the Council at Sir Henry Vane having this day appeared before the Council, and they having taken consideration of a seditious book by him written and published, intituled A Healing Question propounded and resolved, &c.' the same tending to the disturbance of the present government, and the peace of the Commonwealth. Ordered that if sir Henry Vane shall not give good security in five thousand pound bond by Thursday next to do nothing to the prejudice of the present government, and the peace of the Commonweath, he shall stand committed, and that orders be drawn up accordingly. W. JESSOP Clerk of the Council. restraint of laws concerning our persons and estates, and to render the monarchy absolute, did think he could have no better means to effect it, than to cast into obloquy and disgrace, all those that desired to preserve the laws and liberties of the nation, and to maintain religion in the power of it, under the names of Puritans, factious and seditious persons, as well knowing that the light of their principles and practices, were like to stand most in the way of bringing to pass such an evil design. And truly it is with no small grief, at this time to be lamented, that the evil, and wretched principles of the misgoverument, which the king then aimed to work out his design by, but could not effect, should now revive, and spring up so evidently in the hands of men professing godliness, to the great profaning and reproach of God's name, and arrived at maturity in practice, which former times abhorred to think of, and the designers themselves with all their policy and power could never reach. This appearing but with too much evidence in my conscience, when the present governors held themselves obliged to call the people of these three nations unto a day of public humi liation, and to invite to the giving in of light and conviction, with a free and open profession Sir Henry Vane's Letter to Mr. Jessop upon chief motive that induced me to prepare my of a ready subjection of mind thereunto, was a the receipt of this Order of the Council. witness, as I did, which being asked for from Sir; It is a great quiet to my mind, and me by one of the Council, I delivered in writing, satisfaction to my conscience in the sight of and it continued in their hands about a month's God and man; to perceive at the first entrance space, without any prohibition to print, and into my sufferings, that the Witness owned by then was put to the press in the ordinary way me, under the title of A Healing Question' of all other books, and had the usual warrant (when I was at Whitehall 21 present) which for the coming forth, and nothing laid to its asserts the principles, spirit, and justice of the charge ever since, till, for what reason of state cause we have professed and fought for in our I know not, it is now thought meet to be called late wars, is now thought fit by those that are in seditious, and occasion is taken thereby to power to have the name given to it of seditious, threaten me with bonds, unto which I say the especially considering that the healing nature, will of the Lord be done; through whose supand great tendency, that clearly shineth forth porting grace I am made not careful in this throughout that discourse, to the uniting the inatter, and therefore have been willing, withwhole party of honest men in the true public out any circumlocution or advantage I might interest warranted by the laws of the land, and have taken, to own with all readiness that wit in array of safety against common danger, dothness for which the Lord hath given me a heart with its own evidence wipe off the blemish of that reproach, with the same breath that it is cast on. Nay I can truly say, I am very well content to take this as a mark of honour from those that sent it, and as the recompence of former services, as knowing a better reward is laid up for me in his hands, through the wisdom of whose providence, this may be the means prepared to keep me unspotted, and undefiled from the evils of these backsliding times, unto the day of Christ's appearance, which shall be my joy, when my enemies shall be ashamed. Nor can I but observe in this proceeding with me, how exactly those that have made this Order do in this (as in many other things at this day) tread in the steps of the late king, whose design being (as is exprest in the Remonstrance of the State of the Kingdom 15 Decem most freely to suffer whatsoever he shall call me unto, in the faithful discharge of a good conscience therein. And this being said, as is needful in my own vindication, my Answer to the Paper, that ordereth me to stand committed, unless I will give security by bond, &c. and so by my own voluntary act, do that which may blemish and render suspect my innocency, and the justice and good of the cause I suffer for; is this, That my purpose is, God willing, tò give no such bond, but rather expose myself to the commitment mentioned; although I must ingeniously profess, I neither know, nor acknowledge the authority, which those that have made the Order, do exercise over me in this case: Nor do I conceive their Votes and Orders have a binding force by the laws of the nation. This is my Answer to the Paper I received from you, which I desire may be accordingly present |