Article 3, Section 3, Clauses 1 and 2

Document 6

Sir Matthew Hale, History of the Pleas of the Crown 1736 (posthumous)

Emlyn 1:83, 86--87, 115--16, 119, 122

And we need no greater instance of this multiplication of constructive treasons, than the troublesome reign of king Richard II. which, tho it were after the limitation of treasons by the statute of 25 E. 3. yet things were so carried by factions and parties in this king's reign, that this statute was little observed; but as this, or the other party prevailed, so the crimes of high treason were in a manner arbitrarily imposed and adjudged to the disadvantage of that party, that was intended to be suppressed; so that de facto that king's reign gives us as various instances of these arbitrary determinations of treasons, and the great inconveniences that arose thereby, as if indeed the statute of 25 E. 3. had not been made or in force. And tho most of those judgments and declarations were made in parliament; sometimes by the king, lords, and commons; sometimes by the lords, and afterwards affirmed and enacted, as laws; sometimes by a plenipotentiary power committed by acts of parliament to particular lords and others, yet the inconvenience, that grew thereby, and the great uncertainty that happened from the same, was exceedingly pernicious to the king and his kingdom.

. . . . .

Now altho the crime of high treason is the greatest crime against faith, duty, and human society, and brings with it the greatest and most fatal dangers to the government, peace, and happiness of a kingdom, or state, and therefore is deservedly branded with the highest ignominy, and subjected to the greatest penalties, that the law can inflict; yet by these instances, and more of this kind, that might be given, it appears, 1. How necessary it was, that there should be some fixed and settled boundary for this great crime of treason, and of what great importance the statute of 25 E. 3 was, in order to that end. 2. How dangerous it is to depart from the letter of that statute, and to multiply and inhanse crimes into treason by ambiguous and general words, as accroaching of royal power, subverting of fundamental laws, and the like; and 3. How dangerous it is by construction and analogy to make treasons, where the letter of the law has not done it: for such a method admits of no limits or bounds, but runs as far as the wit and invention of accusers, and the odiousness and detestation of persons accused will carry men.

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Therefore tho this be regularly true, that words alone make not treason or an overt-act, yet it hath these allays and exceptions.

(1.) That words may expound an overt-act to make good an indictment of treason of compassing the king's death, which overt-act possibly of itself may be indifferent and unapplicable to such an intent; and therefore in the indictment of treason may be joined with such an overt-act, to make the same applicable and expositive of such a compassing, as may plainly appear by many of the precedents there cited [in Pyne's case, Cro. Car. 125].

(2.) That some words, that are expressly menacing the death or destruction of the king, are a sufficient overt-act to prove that compassing of his death, M. 9 Car. B. R. Crohagan's case in Croke [Cro. Car. 332], who being an Irish priest, 7 Car. 1 at Lisbon in Portugal used these words, "I will kill the king (innuendo dominum Carolum regem Angliae) if I may come unto him," and in Aug. 9 Caroli he came into England for the same purpose. This was proved upon his trial by two witnesses, and for that his traitorous intent and the imagination of his heart was declared by these words, it was held high treason by the course of the common law, and within the express words of the statute of 25 E. 3. and accordingly he was convicted, and had judgment of high treason; yet it is observable, that there was somewhat of an overt-act joined with it, namely, his coming into England, whereby it seems to be within the former consideration, namely, tho the coming into England was an act indifferent in itself, as to the point of treason; yet it being laid in the indictment, that he came to that purpose, and that in a great measure expounded to be so by his minatory words, the words coupled with the act of coming over make his coming over to be probably for that purpose, and accordingly applicable to that end.

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If there be an assembling together to consider how they may kill the king, this assembling is an overt-act to make good an indictment of compassing the king's death. This was Arden's case [1 Anderson 104], 26 Eliz. and accordingly it was ruled Decem. 14 Caroli at Newgate in the case of Tonge and other confederates [Kelyng, 17].

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Vide Anderson's Reports Placito 154, which was the case of Arden and Somerville and others, who conspired the death of queen Elizabeth, resolved by all the justices, that a meeting together of these accomplices to consult touching the manner of effecting it was an overt-act to prove it, as well as Somerville's buying of a dagger actually to have executed it.

The Founders' Constitution
Volume 4, Article 3, Section 3, Clauses 1 and 2, Document 6
The University of Chicago Press

Hale, Sir Matthew. Historia Placitorum Coronae. The History of the Pleas of the Crown. Edited by Sollom Emlyn. 2 vols. London, 1736. Reprint. Classical English Law Texts. London: Professional Books, Ltd., 1971.

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