with regard to reason: if the Court did not consider the acts of treason charged against Vane, how could it take advantage of the letter of the law? Thirdly, with regard to morality: it is evident that this accusation of a man for one crime, and condemning him for another, has Mr. Hume's implicit approbation (k).

The indictment charged Sir Harry Vane with compassing and imagining the death of Charles the Second, and conspiring to subvert the ancient and kingly government of the realm. The overt acts stated were, that the prisoner, in concert with other traitors, assembled and consulted to destroy the King and government, and to exclude the King from the exercise of his royal authority; and that he took upon himself the himself the government of the forces of the nation by sea and land, and appointed officers to hold command in an army raised against the King; and for the purpose of effecting his design did actually, in the county of Middlesex, levy war against the King. "We shall prove," said Sir Geoffry Palmer, the Attorney General, "that the prisoner sat with others in several councils, encroached the government, levied forces, appointed officers, and, at last, levied open and actual war at the head of a regiment ;" and he added, "we shall confine our charge to the reign of his present Majesty."

The prosecuting counsel first produced a warrant under the hand and seal of the prisoner, on the 30th of January, 1649, directed to the officers of the navy, and commanding them to issue stores for the service of the government. This was proved to be in the handwriting of Vane by Thomas Lewis

(k) In the same spirit Hume remarks on the legal murder of the Marquis of Argyle, 1667, "As he was universally known to have been the chief instrument of past disorders and civil wars, the irregularity of his sentence, and several iniquitous circumstances in the mode of conducting his trial, seem on that account to admit of some apology!!!" Monk disclosed Argyle's private correspondence. This would lower the character of most villains, but it is no disgrace to Monk.

and Thomas Turner, "neither affirming that they saw him write it, but knowing his hand believed it to be so.

The journals of the House of Commons were produced, and the entries read. Among them, the instructions on which the Council of State was to act: "That you, or any four or more, are to suppress all and every person and persons pretending title to the kingly government of this nation, from or by the late King Charles Stuart, or his son." This, said the Attorney General, was to destroy, in the first part, the King's person, and in the second, his government. Another entry proved, that Vane was chosen a member of the Council of State, and acted on these instructions. William Dobbins and Matthew Lock say, that they several times saw Sir Harry Vane sit in a committee of the Council in the years 1651, 1652. Other acts and writings of the prisoner, in the exercise of his function, were then established by proof. Two witnesses, of the names of Marsh and Pucy, proved that he proposed a new model of government, Whitelocke being in the chair. Pucy said, that if Vane did not propose, he argued in support of it. One of the principles laid down was, "that it is destructive to the people's liberty (to which, by God's blessing, they are restored), to admit any earthly King or single person to the legislative or executive power in this nation." Wallis proved that Vane had commanded a company of soldiers at Southwark, and Cook, that he had delivered five pounds to Captain Guin to be distributed among them. This closed the evidence for the prosecution; "on which Sir Harry Vane was required to make his defence, and go through his defence at once, and not to reply on the Queen's counsel, who were to have the last word with the jury."

The prisoner made, as it would have been easy for a person of less abilities than he possessed to do, an unanswerable defence. He had on his side (7) the law of the land, as pro

(1) Lord Coke, in his third Institute, expressly declares, that " a King who hath right and is out of possession, is not within the Statute of

mulgated in the famous statute of 11 Hen. 7, made after the soil of England had been soaked through with the blood of her noblest families, on the scaffold and in the field, which, whether declaratory of the common law, as some writers suppose, or not, was declaratory of common sense, and was express and positive to the effect, that he who obeyed the King de facto for the time being, should in no wise be convicted or attainted of high treason. He had on his side the petition of the Lords and Commons that his life might be spared, and he had on his side the direct promise of the King; yet were all these securities nothing. "Though we know not what to say to him," said one of the bloodhounds of the Crown, "we know what to do with him." "I would gladly know," said Vane, "that person in England, of estate, fortune, and age, that hath not counselled, aided, or abetted, either by his person and estate, or submitted to the laws and government of the powers that then were; and if so, then by your judgments upon me you condemn, by necessary consequence, and in effigies, the whole kingdom." Lord Clarendon, unjust and tyrannical as he was, never alludes to Vane's trial or execution (m).

Treasons." This was quoted by Vane, Pluis d'Assise, Bagot, Year Book, p. 2; Bagot's case, 9 Edw. 4, Year Book: "Every one who grants a charter of pardon must be roy de faits." This case is the more remarkable as it was before the act Hen. 7. "It is fit there should be a King to maintain law." Hallam, vol. 2, p. 24; Phillipps's State Trials, vol. 1, p. 280. Bl. Com. vol. 4, p. 77. "When an usurper is in possession, the subject is excused and justified in obeying and giving him assistance, otherwise, under an usurpation, no man could be safe if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience; nay, farther, as the mass of the people are imperfect judges of title (of which in all cases possession is primâ facie evidence), the law commands no man to yield obedience to that prince whose right is by want of possession rendered uncertain and disputable, till Providence shall think fit to interpose in his favour, and decide the ambiguous claim. Therefore, till he is entitled to such allegiance by possession, no treason can be committed against him."

(m) This note from "the Merry Monarch" to Clarendon explains the death of Vane:-"The relation that hath been made to me of Sir H. Vane's carriage yesterday in the Hall, is the occasion of this letter, which, if I am

It is certainly a portentous proof of the callous indifference to common probity and honour, which distinguished the leading practitioners in our Courts of justice in that age, that Maynard should have been one of the counsel in the prosecution of Vane. With still more shocking depravity we shall find Pollexfen, the great whig lawyer, acting as counsel for the prosecution in the trial of Lady Alicia Lisle, and thus making himself an accomplice in that which is not only as foul a murder, but an act of inhumanity as bestial as any that is recorded in ancient or modern history. Were it not indeed for the names of Vaughan, Hale, and Holt, during this portion of our history, we might imagine that the awful satire of Dante had been realized, and that after the souls had quitted the bodies of the men most prominent in our Courts of justice, demons had assumed their shapes and were acting in their stead. On the caprice and pedantry which has always characterized the acts, writings, and decisions of our principal lawyers, there was now grafted a meanness and delight in human suffering which the monks of the middle ages would have found it difficult to surpass; and yet from these times precedents are daily quoted as authorities in our legal arguments. Among the points established in Sir Harry Vane's trial, one was, that a bill of exceptions could not be tendered in a criminal case. By the Statute of Westminster the second, 13 Edw. 1, c. 31, the party who excepted to the direction given by the judge to the jury, as misstating the law, was empowered to tender him a bill of exceptions, in which the error objected to by the counsel was specified, and require him to put his seal to it. If he refused so to do, the party

rightly informed, was so insolent as to justify all he had done, acknowledging no supreme power in England but a parliament, and many things to that purpose. You have had a true account of all; and if he has given new occasion to be hanged, certainly he is too dangerous a man to let live, if we can honestly put him out of the way. Think of this, and give me some account of it to-morrow, till when I have no more to say to you. To the Chancellor. C. R."

might issue a compulsory writ against him, commanding him to seal it if the alleged fact was truly set forth. If the judge returned that the fact was untruly set forth, an action would lie against him for a false return.

This bill of exceptions (n) is in the nature of an appeal; and after judgment given in the Court below, was decided by the next immediately superior Court.

"Sir Henry offered in his own defence the bill of exceptions, which he brought with him ready drawn, and offered it

(n) Lord Coke justifies the enactment by a quotation from Judges, chap. 19, v. 30. Dowman's case, Reports, vol. 5, p. 23; Part 9, p. 13 b., fol. ed. In the second Institute he says, that before the statute of Westminster the second, at common law a man might have a writ of error for an error apparent on the face of the record. "Now the mischief was," that if the judge overruled improperly an objection, this error of the judge did not appear on the record or written account of the proceedings. So, as it never was entered of record, this the party could not assign for error, because it neither appeared on the record, nor was it an error in fact, but in law, and so the party grieved was without remedy, for whose relief this statute was made." Coke's Institutes, vol. 2, p. 426.

away

in

Hawkins, vol. 4, p. 457, Pleas of the Crown, says, citing Sir H. Vane's case, "It has been adjudged that no bill of exceptions is grantable on an indictment for treason or felony, having never been thought to extend to any such case, it being plain that it could not but cause an infinite delay of justice." In a note, he extends the rule to all criminal cases. I will admit the necessity. But if all power of objecting to the misdirection of a judge, which the litigant possesses in civil cases, is taken criminal cases from an imperious necessity, is not the importance of having men legally educated for judges in criminal cases increased tenfold? And how can the English law be defended, which entrusts the administration of criminal law, in by far the greater number of cases, throughout England (towns excepted), to men who may never have opened a law book in their lives, to whom no one would trust the decision of the simplest question of property? If a single prisoner be tried by such a judge has he not a right to complain? Such is the regard the law of England shews for the liberty and character of the poor. These are sad scenes,