they concerted the day and the manner of their rising to set Christ on his throne, as they called it. But withal they meant to manage the government in his name; and were so formal, that they had prepared standards and colours with their devices on them, and furnished themselves with very good arms. But when the day had about members for the city of London, as a precedent for the rest of the kingdom to follow, whereupon they nominated the four ⚫ members after chosen, and then sitting in parliament, but three of these being then present stood up and cleared themselves of this aspersion. Their next care was to frame a Petition to the parliament for a preaching ministry, and liberty of conscience. Then they were to divide and subdivide themselves into ❝ several councils and committees, for the better carrying on their business by themselves or their agents and accomplices all over the kingdom. In these meetings Harrington was said to be often in the chair: that they had taken an oath of secrecy, and concerted measures for levying men and money.' The Chancellor added, that though he had certain information of the times and places of their meetings, and particularly these of Harrington and Wildman, they were nevertheless so fixed in their nefarious design, that none of those they had taken would confess any thing, not so much as that they had seen or spoken to one another at these times or places: which obstinacy he thought must needs proceed from a faithfulness to their oath. The EXAMINATION of JAMES HARRINGTON, taken in the Tower of London, by the Earl of Lauderdale, sir George Carteret, and sir Edward Walker. Lord Lauderdale. Sir, I have heretofore accounted it an honour to be your kinsman, but am now sorry to see you upon this occasion; very sorry, I assure you. Harrington. My lord, seeing this is an occasion, I am glad to see you upon this occasion -When he had said this, the Commissioners sat down, and Mr. Harrington standing before them, the Earl began in the following manner. - L. Sir, the king thinks it strange that you, who have so eminently appeared in prin eiples contrary to his majesty's government, and the laws of this nation, should ever since he came over live so quiet and unmolested, and yet should be so ungrateful. Were you disturbed? Were you so much as affronted, came, there was but a small appearance, not exceeding twenty. However they resolved to venture out into the streets and cry out, No king but Christ. Some of them seemed persuaded that Christ would come down and head them. They scoured the streets before them, and made a great progress. Some were afraid that you should enter into such desperate practices? H. My lord, when I know why this is said I shall know what to say. L. Well then, without any longer preamble, will you answer me ingenuously, and as you are a gentleman, to what I have to propose. H. My lord, I value the asseveration, ‘as I am a gentleman,' as high as any man; but think it an asseveration too low upon this occasion; wherefore, with your leave, I shall make use of some greater asseveration. L. For that do as you see good: Do you know Mr. Wildman? H. My lord, I have some acquaintance with him. L. When did you see him? H. My lord, he and I have not been in one house together these two years. Will you say so? L. H. Yes, my lord. L. Where did you see him last? H. About a year ago I met him in a street that goes to Drury Lane. L. Did you go into no house? Sir George Carteret. That's strange ! L. Come, this will do you no good: Had not you, in March last, nieetings with him io Bow-street, in Covent Garden? where there were about twenty more of you, where you made a speech about half an hour long, that they should lay by distinguishing names, and betake themselves together into one work, which was to dissolve this parliament and bring in a new one, or the old one again. Was not this meeting adjourned from thence to the Mill-bank? Were not you there also? be true, I have no refuge, but to the mercy of H. My lord, you may think, if these things God, and of the king. L. True. and all were amazed at this piece of extravagance. They killed a great many, but were at last mastered by numbers; and were all either killed or taken and executed. Upon this some troops of guards were raised. And there was a great talk of a design, as soon as the army L. When did you see him? H. My lord, I seldom used to visit him; but when he was in town, he used to see me at my house every evening, as duly almost as the day went over his head. L. Were you not with him at some public meetings? H. My lord, the publickest meeting I have been with him at, was at dinner at his own lodging, where I met sir Bernard Gascoigne, and, I think col. Legge. Sir Edward Walker. They were good safe company. L. What time was it? was disbanded, to raise a force that should be so chosen, and modelled, that the king might depend upon it; and that it should be so considerable, that there might be no reason to apprehend new tumults any more. The earl of Southampton looked on a while: And when he L. Why, if it be as you say, they deserve punishment enough; but otherwise, look, it will come severely upon you. H. My lord, I accepted of that condition before. L. Come, Mr. Vice-Chamberlain, it is late. H. My lord, now if I might I could answer the preamble. L. Come, say: so he sat down again. H. My lord, in the preamble you charge me with being eminent in principles contrary to the king's government, and the laws of this nation. Some, my lord, have aggravated this, saying, that I being a private man, have H. In venison time, I am sure, for we had been so mad as to meddle with politics: what a good venison pasty. L. Do you know one Portman? had a private man to do with government?" My lord, there is not any public man, nor any H. No, my lord, I never heard of his name magistrate, that has written in the politics before. Sir G. Carteret. This is strange! L. Come, deal ingenuously; you had better confess the things? H. My lord, you do not look upon me; (for I saw he did not firmly) I pray look upon me. Do you not know an innocent face from a guilty one? Come, you do, my lord; every one does. My Lords, you are great men; you come from the king; you are the messengers of death. L. Is that a small matter? (at which his lordship gave a shrug.) H. If I be a malefactor, I am no old malefactor: why am not I pale? why do not I tremble? why does not my tongue falter? why have you not taken me tripping? My lord, these are unavoidable symptoms of guilt. Do you find any such thing in me? L. No, (which he spoke with a kind amazement,) and then added, I have said all that I think I have to say. H. My lord, but I have not. worth a button. All they that have been excellent in this way, have been private men, as private men, my lord, as myself. There is Plato, there is Aristotle, there is Livy, there is Machiavel. My lord, I can sum up Aristotle's Politics in a very few words: he says, There is the barbarous monarchy, (such a one where the people have no votes in making the laws;) he says, There is the heroic monarchy, (such a one where the people have their votes in making the laws;) and then he says, There is Democracy; and affirms, that a man cannot be said to have liberty, but in a Democracy only. Lord Lauderdale, who had hitherto been very attentive, at this shewed some impatience. H. I say, Aristotle says so, I have not said so much. And under what prince was it? Was it not under Alexander, the greatest prince then in the world? I beseech you, my lord, did of Alexander hang up Aristotle? Did he molest him? Livy, for a commonwealth, is one of the fullest authors; did not he write under Augustus Cæsar? Did Cæsar hang up Livy? Did he molest him? Machiavel, what a commonwealthsman was he? but he wrote under the Medici, when there were princes in Florence; did they hang up Machiavel, or did they molest him? I have done no otherwise than as the greatest politicians: the king will do no otherwise than as the greatest princes. But, my lord, these authors had not that to say for themselves that I have, I did not write under a prince; I wrote under a Usurper, Oliver. He having started up into the throne, his officers (as pretending to be for a Commonwealth) kept a murmuring, at which he told them, that he knew not what they meant, nor themselves; but let any of them shew him what they meant by a Commonwealth, (or that there was any such thing) they should see that he sought not himself: the Lord knew he sought not himself, but to make good the H. This plainly is a practice, a wicked practice, a practice for innocent blood; and as weak a one as it is wicked. Ah, my lord, if you had taken half the pains to examine the guilty, that you have done to examine the innocent, you had found it; it could not have escaped you. Now, my lord, consider if this be a practice, what kind of persons you are that are thus far made instrumental in the hands of wicked men. Nay, whither will wickedness go? Is not the king's authority (which should be sacred) made instrumental? My lord, for your own sake, the king's sake, for the Lord's sake, let such villainies be found out and punished.-At this, lord Lauderdale appearing to be somewhat out of countenance, rose up, and fumbling with his hand upon the table, said: saw how this design seemed to be entertained and magnified, he entered into a very free expostulation with the earl of Clarendon about it. He said, they had felt the effects of a military government, though sober and religious, in Cromwell's army: He believed vicious and dissolute troops would be much worse: The king wonld grow fond of them: And they would quickly become insolent and ungovernable: And then such men as he was must be only in struments to serve their ends. He said, he would not look on, and see the ruin of bis country begun, and be silent; a white staff should not bribe him. The earl of Clarendon was persuaded he was in the right, and promised he would divert the king from any other force than what might be decent to make a shew with, and what might serve to disperse unruly multitudes. The earl of Southampton said, if it went no farther he could bear it; but it would not be easy to fix such a number, as would please Cause. Upon this some sober men came to our princes and not give jealousy. The earl of me, and told me, if any man in England could Clarendon persuaded the king, that it was neshew what a Commonwealth was, it was my-cessary for him to carry himself with great self. Upon this persuasion I wrote; and after caution, till the old army should be disbanded: I had written, Oliver never answered his offi- For, if an ill humour got among them, they cers as he had done before, therefore I wrote knew both their courage and their principles, not against the king's government. And for which the present times had for a while a little the law, if the law could have punished me, suppressed: Yet upon any just jealousy there Oliver had done it; therefore my writing was might be great cause to fear new and more vionot obnoxious to the law. After Oliver, the lent disorders. By these means the king was Parliament said they were a Commonwealth; so wrought on, that there was no great occaI said they were not, and proved it: insomuch sion given for jealousy. The army was to be that the Parliament accounted me a Cavalier, disbanded, but in such a manner, with so much and one that had no other design in my writ-respect, and so exact an account of arrears ing, than to bring in the king; and now the king, first of any man, takes me a Roundhead. L. These things are out of doors; if you be no plotter, the king does not reflect upon your writings. and such gratuities, that it looked rather to be the dismissing them to the next opportunity, and a reserving them till there should be occasion for their service, than a breaking of them. They were certainly the bravest, the best disciplined, and the soberest army that had been Upon this the Commissioners rose up, and known in these latter ages: Every soldier was went out; but when lord Lauderdale was at able to do the functions of an officer. The court the head of the stairs, I said to him, My lord, was at great quiet, when they got rid of such there is one thing more, you tax me with in- a burden, as lay on them from the fear of such gratitude to the king, who had suffered me to a body of men. The guards, and the new live undisturbed: truly, my lord, had I been troops that were raised, were made up of such taken right by the king, it had (by this exam- of the army as Monk recommended, and answerple already given) been no more than my due.ed for. And with that his great interest at But I know well enough I have been mistaken court came to a stand. He was little considerby the king; the king therefore taking me for ed afterwards."*-See, too, 1 Macpherson, 17, no friend, and yet using me not as an enemy, 18,19. is such a thing as I have mentioned to all I have conversed with, as a high character of ingenuity and honour in the king's nature. L. I am glad you have had a sense of it; and so he went down. H. My lord, it is my duty to wait on you no farther. * Ralph, vol. 1, p. 53, gives a curious extract from a work published in 1681, by captain Yarranton (with his name in the title page) to demonstrate, that the whole accusation against the Presbyterians for being engaged in this alledged Plot of 1661, was a forgery. knt. at the King's-Bench, for A. D. 1662. [Written by 210. The Trial of Sir HENRY VANE, [The points of law determined in this Case are vernment of the forces of this nation by sea and land, and appointed colonels, captains, and officers; and the sooner to effect his wicked design, did actually in the county of Middlesex raise war. And upon his trial, he justified that what he did was by the authority of parliament, and that the king was then out of possession of the kingdom; and the parliament was then the only power regnant; and therefore, no treason could be committed against the king: and he objected, that a levying war in Surrey could not be given in evidence to a jury in Middlesex; and he desired to offer a Bill of Exception, because these things were over-ruled by the Court; and in this case these points were resolved of by the Court. "3. It was resolved that the very consultation and advising together of the means to destroy the king and his government, was an overt act to prove the compassing of the king's death. so require; (2) and that for the same service, what fortune ever fall by chance in the same 1. That by the death of king Charles the 1st, that long parliament was actually deter mined; notwithstanding the acts of parlia-battle against the mind and will of the prince ment that it should not be dissolved but by consent of both Houses. For every parliament is called to consult with the person of the king who calleth it; and therefore upon his death it is determined; for they can no longer consult with him, for which end they were called. And a case was cited to be resolved, that where, in the 13 of queen Eliz. an act of parliament was made, that a Commission of Sewers should continue for ten years, unless the same be determined or repealed by any new commission, or by supersedeas, king James granted such a commission and died within that time; adjudged, that the commission was determined; for all commissions are determined by the death of the king who grants them, and this point of the actual determination of that parliament by the death of king Charles the 1st, was before that time, resolved by all the judges of England, as my lord Bridgeman told me. But note, there were no special words to continue the parliament upon the king's death. "2. It was resolved, that the king Charles the 2nd, was de facto kept out of the exercise of the kingly office by traitors and rebels; yet he was king both de facto et de jure. And all the acts which were done to the keeping him out were high treason.* Mr. East observes," the latter part of this Resolution furnishes the true ground of the judgment. Sir H. Vane was actively instrumental in preventing; the king from assuming his authority. But it is a misapplication of terms to say that that prince was king de facto before the period of the Restoration." To be sure, if Charles the 2nd was king de facto during the different usurpations which intervened between his father's death and his own Restoration-while he was a wanderer, a beggar and an outcast-it seems idle to talk of any distinction between a king de facto and a king de jure. Still, however, the case is not absolutely clear, and the obscurity has not been diminished by a practice of not attending to the precise force of the terms of the stat. 11 H. 7. c. 1. which is as follows: "The king our sovereign lord, calling to his ' remembrance the duty of allegiance of his subjects of this his realm, and that they by reason of the same are bound to serve their < prince and sovereign lord for the time being, in his wars, for the defence of him, and the land, against every rebellion, power, and 'might, reared against him, and with him to enter and abide in service in battle, if case (as in this land some time passed hath been seen,) that it is not reasonable, but against all laws, reason, and good conscience, that the said subjects going with their sovereign lord in wars, attending upon him in his person, or being in other places by his commandment, within this land, or without, any thing should 'lose or forfeit, for doing their true duty and 'service of allegiance. (3) It he therefore or dained, enacted, and established by the King our sovereign lord, by the advice and assent of the Lords spiritual and temporal, and the Commons, in this present parliament assembled, and by authority of the same, that from henceforth no manner of person or persons, whatsoever he or they be, that attend upon the king and sovereign lord of this land for the time being, in his person, and do him true and faithful service of allegiance in the same, or be in other places by his commandment in his wars, within this land, or without, that for the said deed and true duty of allegiance, he or they be in no wise convict or attaint of High Treason, ne of other offences for that cause, by act of parliament, or otherwise by any process of law, whereby he,or any of them, shall lose or forfeit life, lands, tenements, rents, possessions, hereditaments, goods, chattels, or any other things; but to be for that deed and service utterly discharged of any • vexation, trouble, or loss. (4) And if any act or acts, or other process of the law hereafter thereupon for the same happen to be made, contrary to this ordinance, that then that act or acts, or other processes of the law, whatsoever they shall be, stand, and be utterly void. (5) Provided alway, that no person or persons shall take any benefit or advantage by this act, which shall hereafter decline from his or their said allegiance.' "Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. 7. c. 1. which directs, that no person for assisting a king de facto shall be attainted of Treason by act of parliament or otherwise, is held to be good only as to common prosecutions for High Treason; but will not restrain or clog any parliamentary attainder. Because the legislature, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hands of suc 4. It was resolved that in this case, the treason laid in the Indictment being the compassing of the king's death, which was in the "From hence," says Hawkins, Pl. Crown, B. i. c. 17. s. 14. "it clearly follows, that one out of possession is so far from having any right to our allegiance, by virtue of any other title which he may set up against the king in being, that we are bound by the duty of our allegiance to resist him." Blackstone (4 Com. 77.) after shewing the illegitimacy and absurdity of this inference, says, "The true distinction seems to be, that the statute of Henry 7th does by no means command any opposition to a king de jure; but excuses the obedience paid to a king de facto." Now, to apply the statute to the case of Charles the 2nd, none of the acts which were done in the interval between the death of his father and his own restoration, and which were alledged to be acts of treason against him, were done in attendance upon, or allegiance to any king for the time being, &c. It seems, therefore, to be very clear, that none of the ceeding legislatures. When you repeal the law itself,' says he, you at the same time repeal the prohibitory clanse, which guards against such repeal. Blackst. Comm. Introduction, vol. i. p. 90. county of Middlesex, and the levying war being laid only as one of the overt acts to prove the compassing of the king's death, doers of those acts derived a title to impunity from the enacting words of the statute. It is asserted, that the enactment of this statute is declaratory of the common law, and the preamble of the statute seems to prove this: (for as to the authorities from Edward 4's time they are not in point ;* nor, indeed, would any Of these the chief is the Case of sir Ralph Grey, 4 Ed. 4, cited in 1 Hale's Hist. Pl.Cr. 61, 103. from the Year-Book. This Case is thus related by Stow in his Annals, p. 417, (and an Abridgement of it is given in Selden's Titles of Honour)." The 15th of May 1464,king Henry's power being at Hexham, the lord Montacute with a power came thither, and inclosed them round about. There were taken and slain many lords that were with king Henry, but he himself was fled four days before into Laucashire, where he and others lived in caves, full hardly, unknown more than a year. On Trinity Sunday, king Edward made the lord Monta-A cute earl of Northumberland, and warden of the Marches. The earls of Warwick and Northumerland took Bambrough Castle; and sir Ralph Grey being taken in Bambrough, for that he had sworn to be true to king Henry, was condemned, ¦ and had judgment given upon him by the earl of Worcester,High Constable of England, as follow. eth Sir Ralph Grey, for thy treason, the king 'had ordained that thou shouldest have had thy spurs taken off by the hard heels, by the hand ' of the master cook, who is here ready to do as was promised thee, at the time that he put on thy spurs, and said to thee as is ac'customed: That an thou be not true to thy sovereign lord, he shall smite off thy spurs with his knife, hard by the heels, and so shewed him the master cook, ready to do his office with his apron and his knife. Moreover sir Ralph Grey, the king had ordained here thou may'est see the kings of Arms and Heralds, and thine own proper coat of arms, which they should tear off thy body, and so shouldest thou 'as well be disgraded of thy worship nobles and arms as of thy order of knighthood. Also here is another coat of thine arms reversed, the which thou shouldest have worn on thy body, going to thy death-wards, for that belongeth to thee after the law: notwithstanding, the disgrading of knighthood, and of thine arms and nobles, the king pardoneth that, for thy noble grandfather, who suffered trouble for the king's most noble predecessors. Now sir Ralph Grey this shall be thy penance : thou 'shalt go on thy feet unto the town's end, and 'there thou shalt be laid down and drawn to a 'scaffold made for thee, and thou shalt have 'thy head smitten off, thy body to be 'burnt in the fires, thy head, where the * Cum lex abrogatur, illud ipsum abroga-king's pleasure shall be.' This judgment tur, quo non eam abrogari oporteat,' 1. 3. was pronounced at Doncaster, against the said Ralph Grey, for rebelling and keeping The citation of authorities to establish this doctrine might appear to be somewhat like the quotation of Seneca or Epictetus to prove the certainty of death, or the instability of fortune; for the maxim Leges posteriores priores con'trarias abrogant' is, as Blackstone himself has observed, a general principle of universal law. Some allusions to this doctrine were made in the Parliamentary Debates, which took place in 1792, upon a bill respecting the redemption of the National Debt (stat. 32 Geo. 3. c. 55.) It may however be here noticed, that there is not in this statute any attempt to derogate from the power of future parliaments; although some of the arguments employed in those Debates, seem to have supposed that the bill contained matter of that sort. The cases which appear to give room for the most weighty arguments in support of a legal derogation from the power of future parliaments are these two: 1. That of the union of independent legisla tures upon certain fundamental and essential conditions. 2. That of an oath prescribed, by act of parliament, to be taken by one or more of the branches of all future parliaments, to preserve and maintain, without alteration, any of the established laws. As to the former of these cases, see Mr. Justice Blackstone's Note, concerning the fundamental and essential conditions of the Union between England and Scotland, (Introd. to the Commentaries, p. 98.) and Bishop Warburton's Alliance between Church and State, as referred to in that Note. ep. 23. |