Article 3, Section 3, Clauses 1 and 2

[Volume 4, Page 410]

Document 7

Sir Michael Foster, Discourse on High Treason 183--90, 193--98, 200--201, 205--11, 213, 216--19, 221--24, 226--46, 249--51



High Treason being an Offence committed against the Duty of Allegiance, it may be proper before I proceed to the several Species of that Offence which will be the Subject of this Discourse, to consider From whom, and To whom Allegiance is due.

Sect. 1. With regard to Natural-born Subjects there can be no Doubt. They owe Allegiance to the Crown at all Times and in all Places. This is what We call Natural Allegiance, in Contradistinction to that which is Local. The Duty of Allegiance, whether Natural or Local, is founded in the Relation the Person standeth in to the Crown, and in the Privileges He deriveth from that Relation. Local Allegiance is founded in the Protection a Foreigner enjoyeth for his Person, his Family or Effects during his Residence here; and it Ceaseth whenever He withdraweth with his Family and Effects. Natural Allegiance is founded in the Relation every Man standeth in to the Crown considered as the Head of that Society whereof He is born a Member; and on the peculiar Privileges He deriveth from that Relation, which are with great Propriety called his Birthright. This Birthright nothing but his own Demerit can deprive Him of; it is Indefeasible and perpetual. And consequently the Duty of Allegiance which ariseth out of it, and is inseperably Connected with it, is in Consideration of Law likewise Unalienable and Perpetual.

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There have been Writers who have carried the Notion of Natural, Perpetual, Unalienable Allegiance much farther than the Subject of this Discourse will lead Me. They say, very truly, that it is due to the Person of the King; and from thence have drawn Consequences, which do not fall within the Compass of the present Inquiry, and shall therefore be passed over. It is undoubtedly due to the Person of the King; but in that respect Natural Allegiance differeth nothing from that we call Local. For Allegiance considered in every Light is alike Due to the Person of the King; and is paid, and in the Nature of Things must constantly be paid, to that Prince who for the time being is in the Actual and Full Possession of the Regal Dignity. The well-known Maxim which the Writers upon our Law have adopted and applied to this Case, Nemo potest exuere Patriam, comprehendeth the whole Doctrine of Natural Allegiance, and expresseth My Sense of it.

Sect. 2. An Alien whose Sovereign is in Amity with the Crown of England, Residing here and Receiving the Protection of the Law oweth a Local Allegiance to the Crown during the time of his Residence. And if, during that Time He committeth an Offence, which in the Case of a Natural-born Subject would amount to Treason, He may be dealt with as a Traitor. For his Person and Personal Estate are as much under the Protection of the Law as the Natural-born Subject's: and if He is injured in either, He hath the same Remedy at Law for such Injury.

Sect. 3. An Alien whose Sovereign is at Enmity with Us living here under the King's Protection, committing Offences amounting to Treason, may likewise be dealt with as a Traitor. For He oweth a Temporary Local Allegiance, founded on that share of Protection He receiveth.

Sect. 4. And if such Alien seeking the Protection of the Crown having a Family and Effects here should during a War with his Native Country go thither and there Adhere to the King's Enemies for purposes of Hostility, He might be dealt with as a Traitor. For He came and settled here under the Protection of the Crown. And though his Person was removed for a time, his Effects and Family continued still under the same Protection. This Rule was laid down by all the Judges assembled at the Queen's Command Jan. 12th 1707.

It is to be observed that the Judges in the Resolution last cited laid a considerable Stress on the Queen's Declaration of War against France and Spain; whereby She took into Her Protection the Persons and Estates of the Subjects of those Crowns residing here and demeaning themselves dutifully, and not Corresponding with the Enemy. King William and Queen Mary did the same in their Declaration of War against France, and so did His present Majesty. These Declarations did in fact put Frenchmen residing Here and demeaning themselves dutifully, even in time of War, upon the foot of Aliens coming hither by Licence or Safe-conduct. They enabled Them to acquire Personal Chattles and to maintain Actions for the Recovery of their Personal Rights in as full a manner as Aliens Amy may.

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Sect. 7. The Case of an Ambassador or His Attendants not being Subjects of Great Britain mentioned by Lord Hale, doing Acts which in a Subject would amount to High Treason, will as His Lordship observeth, be always governed rather by Prudential Considerations or what are generally called Reasons of State, than by any fixed Rules of Law. And as Ambassadors generally Act under Direction and by Orders from their Sovereign, They have seldom been proceeded against further than by Imprisonment, seizing their Papers and sending Them Home in Custody. Which was done in the Case of Count Gyllenberg the Swedish Minister in the late King's Time.

But whatever Proceedings be against Them for State Crimes, They are to be considered at the worst but as Enemies subject to the Law of Nations; never as Traitors subject to our Municipal Laws, and owing Allegiance to the Crown of Great Britain. Unless perhaps in case of Attempts directly and immediately against the Life of the King; in which Case no Orders from their Sovereigns can be presumed, or if in Fact produced, would Justify or Excuse. And therefore I shall not take their Case into Consideration in this place. And for the same Reason I say nothing of the case of Spies taken here in time of War, actual Hostilities being on foot in the Kingdom at that time, nor of Prisoners of War.

But for Murder and other Offences of great Enormity, which are against the light of Nature and the Fundamental Laws of All Society, the Persons mentioned in this Section are certainly liable to answer in the ordinary Course of Justice, as other Persons offending in the like manner are. For though They may not be thought to owe Allegiance to the Sovereign, and so incapable of committing High Treason, yet They are to be considered as Members of Society; and consequently bound by that Eternal Universal Law by which All Civil Societies are united and kept together.

Sect. 8. Protection and Allegiance are reciprocal Obligations, and consequently the Allegiance due to the Crown must, as I said before, be paid to Him who is in the Full and Actual Exercise of the Regal Power, and to none Other. I have no occasion to meddle with the Distinction between Kings de facto and Kings de jure, because the warmest Advocates for that Distinction and for the Principles on which it hath been founded, admit that even a King de facto in the Full and Sole Possession of the Crown, is a King within the Statute of Treasons; it is admitted too, that the Throne being Full, any other Person Out of Possession but claiming Title, is no King within the Act, be His Pretensions what they may.

These Principles I think no Lawyer hath ever yet denied. They are founded in Reason, Equity and good Policy.

Sect. 9. A Prince succeeding to the Crown by Descent, or by a previous Designation of Parliament, is from the Moment His Title accreweth, a King to all Intents and Purposes within the Statute of Treasons; Antecedent to His own Coronation, or to any Oaths or Engagements taken to Him on the part of the Subject. For as on the one hand, the Solemnity of a Coronation doth not Confer, but presupposeth a Right to the Allegiance of the Subject inherent in the Person of the King; so on the other, the Duty of Allegiance doth not flow from any Oaths or Engagements [Volume 4, Page 412] taken on the part of the Subject. For in Both Cases an antecedent Duty is presupposed which is intended to be secured by those Explicit Engagements.

I am however very far from thinking that the Solemnity of a Coronation is to be considered among us meerly as a Royal Ceremony, or as a bare Notification of the Descent of the Crown, as Authors of High Distinction have been pleased to express Themselves. I admit that it is, on the part of the Nation a Publick Solemn Recognition that the Regal Authority, and All the Prerogatives of the Crown are vested in the Person of the King, antecedent to that solemnity. But the Solemnity of a Coronation with us goeth a great deal farther. The Coronation Oath importeth on the part of the King, a Publick Solemn Recognition of the Fundamental Rights of the People; and concludeth with an Engagement under the highest of All Sanctions, that He will Maintain and Defend those Rights; and to the Utmost of His Power make the Laws of the Realm the Rule and Measure of His Conduct.

Sect. 10. The Reader observeth that in the preceding Section I take it for granted that a Title to the Crown may be founded, as well on a Designation by Parliament as on Hereditary Descent. I never entertained a Doubt of this matter, though I am aware that some Lawyers of High Rank have gone upon a contrary Principle. For though the Crown hath, upon Principles of great Wisdom and sound Policy, been in All Ages considered as a Descendable Right, vested in and appropriated to the Royal Line, and hath in Fact continued in that Line ever since the Conquest, yet it is certain that the course of Descent in that Line hath been frequently interrupted by Authority of Parliament.

Sect. 11. Lord Chief Justice Hale after mentioning the Cases of Ed. 2d and R. 2d is pleased to say, that the Former was considered by Parliament even after His Resignation and Deposition, as a King against Whom High Treason may be committed. This He groundeth on the Attainders of Those who were concerned in the Murder of Him. But those Attainders seem to Me to have been grounded Singly on a Principle of Law which then prevailed, that compassing the Death of the Father of the King was High Treason. And Lord Chief Justice Coke accounteth for those Attainders upon this Principle, and upon No other.

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Chap. I. Of High Treason in Compassing the King's Death.

The antient Writers in treating of Felonious Homicide considered the Felonious Intention manifested by plain Facts, not by bare Words of any kind, in the same light in point of Guilt, as Homicide itself. The Rule was Voluntas reputatur pro Facto. And while this Rule prevailed, the Nature of the Offence was expressed by the Term Compassing the Death.

This Rule hath been long laid aside as too Rigorous in the Case of Common Persons. But in the Case of the King, Queen, and Prince, the Statute of Treasons hath with great Propriety retained It in it's full Extent and Rigour: and in describing the Offence hath likewise retained the antient Mode of Expression. "When a Man doth compass or imagine the Death of our Lord the King, or of our Lady his Queen, or their Eldest Son and Heir, and thereof be [provablement] upon sufficient proof Attainted of open Deed by Men of his Condition."

Sect. 1. The Words of the Statute descriptive of the Offence must be strictly pursued in every Indictment for this Species of Treason. It must charge that the Defendant did Traiterously compass and imagine &c. and then go on and charge the several Overt-Acts as the Means employed by the Defendant for executing his Traiterous Purposes. For the Compassing is considered as the Treason, the Overt-Acts as the Means made use of to effectuate the Intentions and Imaginations of the Heart. And therefore in the Case of the Regicides, the Indictment Charged that they did Traiterously Compass and Imagine the Death of the King. And the taking off his Head was laid, among others, as an Overt-Act of Compassing: and the Person who was supposed to have given the Stroke was Convicted on the same Indictment.

From what hath been said it followeth, that in every Indictment for this Species of Treason, and indeed for Levying War, or Adhering to the King's Enemies, an Overt-Act must be Alledged and Proved. For the Overt-Act is the Charge to which the Prisoner must apply his Defence. But it is not Necessary that the whole Detail of the Evidence intended to be given should be set forth: the Common Law never required this Exactness, nor doth the Statute of King William, which will be considered in it's proper Place, require it. It is sufficient that the Charge be reduced to a reasonable Certainty, so that the Defendant may be apprized of the Nature of it, and prepared to give an Answer to it.

And if divers Overt-Acts are laid and but one proved it will be sufficient, and the Verdict must be for the Crown. And therefore, where divers Overt-Acts are laid, and the Indictment in point of Form happeneth to be faulty with regard to some of them, the Court will not Quash it for those Defects. Because that would deprive the Crown of the Opportunity of proving the Overt-Acts that are well laid.

Sect. 2. I said in the last Section, that in the Case of the King, the Statute of Treasons hath with great Propriety retained the Rule, Voluntas pro facto. The Principle upon which this is founded is too obvious to need much Enlargement. The King is considered as the Head of the Body Politick, and the Members of that Body are considered as united and kept together by a Political Union with Him and with each other. His Life cannot, in the ordinary Course of Things, be taken away by Treasonable Practices without involving a whole Nation in Blood and Confusion. Consequently every Stroke levelled at His Person is, in the ordinary Course of Things, levelled at the Publick Tranquility. The Law therefore tendereth the Safety of the King with an anxious, and if I may use the Expression, with a Concern bordering upon Jealousy. It considereth the wicked Imaginations of the Heart in the same Degree of Guilt as if carried into actual Execution, from the Moment [Volume 4, Page 413] Measures appear to have been taken to render them Effectual. And therefore, if Conspirators meet and consult how to Kill the King, though they do not then fall upon any Scheme for that Purpose, this is an Overt-Act of Compassing his Death; and so are all Means made use of, be it Advice, Persuasion or Command, to Incite or Incourage others to commit the Fact, or to join in the Attempt. And every Person who but Assenteth to any Overtures for that Purpose will be involved in the same Guilt.

And if a Person be but once Present at a Consultation for such Purposes and Concealeth it, having had a previous Notice of the Design of the Meeting, this is an Evidence proper to be left to a Jury of such Assent, though the Party say or do Nothing at such Consultation. The Law is the same if he is Present at more than One such Consultation, and doth not Dissent or make a Discovery. But in the Case of Once falling into the Company of Conspirators, if the Party met them Accidentally or upon some indifferent Occasion, bare Concealment without Express Assent will be but Misprision of Treason. The Law was formerly more strict in this Respect; Si ad tempus dissimulaverit vel subticuerit, quasi consentiens & assentiens, erit seductor Domini Regis manifestus.

Sect. 3. The Care the Law hath taken for the Personal Safety of the King is not confined to Actions or Attempts of the more Flagitious Kind, to Assassination or Poison, or other Attempts directly and immediately aiming at His Life. It is extended to every thing Wilfully and Deliberately done or attempted, whereby His Life may be endangered. And therefore the entring into Measures for Deposing or Imprisoning Him, or to get His Person into the Power of the Conspirators, these Offences are Overt-Acts of Treason within this Branch of the Statute. For Experience hath shewn that between the Prison and the Graves of Princes the distance is very small.

Sect. 4. Offences which are not so Personal as those already mentioned, have been with great Propriety brought within the same Rule; as having a Tendency, though not so immediate, to the same fatal End. And therefore the Entering into Measures in concert with Foreigners or others in order to an Invasion of the Kingdom, or going into a Foreign Country, or even Purposing to go thither to that End and taking any Steps in order thereto, these Offences are Overt-Acts of Compassing the King's Death.

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The Offence of Inciting Foreigners to invade the Kingdom is a Treason of Signal Enormity. In the lowest Estimation of things and in all Possible Events, it is an Attempt on the part of the Offender to render his Country the Seat of Blood and Desolation. And yet, unless the Powers so incited happen to be actually at War with Us at the Time of such Incitement, the Offence will not fall within any Branch of the Statute of Treasons, except that of Compassing the King's Death. And therefore since it hath a manifest Tendency to endanger the Person of the King, it hath in strict Conformity to the Statute, and to every Principle of substantial Political Justice, been brought within that Species of Treason of Compassing the King's Death. Ne quid detrimenti Respublica capiat.

Sect. 5. Lord Coke seemeth to have been of Opinion that an Offence falling under one Branch of the Statute cannot be deemed an Overt-Act of a different Species of Treason. I believe Lord Hale did once fall into the same Opinion; for in his Summary speaking of Conspiracy to Levy War, He saith, it is no Overt-Act of Compassing the King's Death, because it relateth to a distinct Treason. But Hale altered His Opinion. And it is every Day's Experience that many Offences falling directly and by Name under other Branches of the Statute, may be brought within this of Compassing the King's Death. Levying War is an Overt-Act of Compassing; and under the Limitations stated in the next Chapter, Conspiring to Levy War likewise is an Overt-Act within this Branch. And so is a Treasonable Correspondence with the Enemy, though it falleth more naturally within the Clause of Adhering to the King's Enemies. . . .

Sect. 6. How far Words or Writings of a Seditious Nature may be considered as Overt-Acts within this Branch of the Statute hath been the Subject of much Debate. In Mr. Sidney's Case it was said, Scribere est agere. This is undoubtedly true under proper Limitations, but it was not applicable to his Case. Writing being a deliberate Act and capable of satisfactory Proof certainly may, under some Circumstances with Publication be an Overt-Act of Treason.

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Sect. 7. As to meer Words supposed to be Treasonable, they differ widely from Writings in Point of real Malignity and proper Evidence. They are often the Effect of meer Heat of Blood, which in some Natures otherwise well disposed, carrieth the Man beyond the Bounds of Decency or Prudence. They are always liable to great Misconstruction from the Ignorance or Inattention of the Hearers, and too often from a Motive truly Criminal. And therefore I choose to adhere to the Rule which hath been laid down on more Occasions than One since the Revolution, that Loose Words not relative to any Act or Design are not Overt-Acts of Treason. But Words of Advice or Persuasion, and all Consultations for the Traiterous Purposes treated of in this Chapter are certainly so. They are uttered in Contemplation of some Traiterous Purpose actually on Foot or Intended, and in Prosecution of it.

Lord Chief Justice Hale was of Opinion that bare Words are not an Overt-Act of Treason, Coke was of the same Opinion. Hale hath treated the Subject pretty much at large, and I shall not repeat his Argument. But I must say that I think his Reasons founded on Temporary Acts or Acts since Repealed, which make Speaking the Words therein set forth Felony or Misdemeanor are Unanswerable. For if those Words, Seditious to the last Degree, had been deemed Overt-Acts within the Statute of Treasons, the Legislature could not with any sort of Consistency have treated them as Felony or Misdemeanor.

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I said at the beginning of this Section that Lord Coke was of Opinion that bare Words are not an Overt-Act of Treason. This Opinion He foundeth singly upon the Statute of Treasons; for He thought that at Common-Law, Words alone might be an Overt-Act of Compassing the King's [Volume 4, Page 414] Death. And Bracton and the other Authors, who wrote before the Statute, are cited in support of this Opinion. Bracton and Britton are cited to the same Purpose by Stanford.

None of the Authors Either of the Learned Judges hath cited do in express Terms maintain this Doctrine, nor can I collect from what they have said that they at all favoured it. The Word Machinatus, used by Bracton and Fleta, in itself importeth nothing like it. And connected as it is with the other Words Ausu temerario Machinatus, it importeth nothing less than something done or attempted against the King's Life.

The Word Compasser made use of by Britton and the Mirror in the Passages cited by Coke proveth Nothing: it can prove Nothing in a Question which turneth singly on the true Sense and full Extent of the Word itself.

The Words Praelocutus fuit Mortem &c. used by Bracton and Fleta in setting forth the Substance of an Appeal of Treason, and the Words Purparler tiel Mort used by Britton for the same Purpose, do in sound come much nearer to the Point. But Sounds will go a very little way towards fixing the meaning of an Author, unless the Sense and Connection of his Words be attended to. Bracton and Fleta give us but the Substance of the Appeal, and that very shortly. Britton is more full, Cy face l' encusor son Appeal en cest Manner, I. que cy est, Appellat P. que illouques est, de ceo, que come il fuist en tiel certain Lieu, en certain tiel Jour, tiel An, la oya mesme cestuy I. purparler tiel Mort ou tiel Treason [parenter cestuy P. & un auter tiel par Nosme, & par tiels Aliances. Et que cestuy P. issint le fist & issint purparla felonisment come Felon, & traiterousment come Traytor, cestuy I. est prist a prover par son Corps.] This Precedent plainly importeth a Meeting of the Conspirators and a Consultation between them for the Traiterous Purposes therein mentioned. The Words, purparler parenter cestuy P. & un auter & par tiels Alliances can mean nothing less. This Passage therefore proveth Nothing with regard to bare Words not relative to Actions; since a Consultation for taking away the King's Life undoubtedly was an Overt-Act at the Common-Law, and is so under the Statute.

The Citations from Bracton and Fleta will be found to prove as little, if the Words Praelocutus fuit Mortem import a Consultation with Others to that Purpose. And that they do so, appeareth highly probable from one of the Pleas which Fleta putteth into the Defendant's Mouth, ad hoc, quod Accusans dicit quòd Praelocutio fuit in praesentiâ talium, respondere poterit, quod nunquam cum praedictis talibus Colloquium habuit. However, since all those Authors, short and obscure as they are, professedly treat of the same Matter, if Bracton and Fleta may be explained by Britton who did not write long after them, these Passages prove nothing to the Point for which they have been cited.

The Precedent Lord Coke fetcheth from the Days of King Edmund will receive the same Answer. For it chargeth that the Conspirators, naming them Et Auters, met and consulted by what Means to Kill or Imprison the King, and engaged to each other to keep their Treason secret; and to furnish each of them to the utmost of his Power the Means for effecting it.

It may be thought I have taken up too much of the Reader's Time in examining this Opinion of Lord Coke, because as I said before, He admitteth that since the Statute, Words alone will not make a Man a Traitor. "There must, saith He, be an Overt-Deed; but Words without an Overt-Deed are to be punished in another Degree as an High Misprision." But if it be admitted that bare Words not relative to Actions did at Common-Law amount to an Overt-Deed, I doubt the Words Open Deed in the Statute on which this Learned Author relieth have not altered the Case; since the single Question is, what doth or doth not amount to an Open Deed. All the Words descriptive of the Offence "If a Man shall Compass and Imagine and thereof be attainted of Open Deed," are plainly borrowed from the Common-Law: and therefore must bear the same Construction they did at Common-Law, unless there be any thing in the Statute which will necessarily lead us to another.

This hath been urged with some Advantage by a Good modern Writer on the Crown Law, the Best we have except Hale, against his Lordship's Construction of the Statute. It is I confess a good Argument ad Hominem, but it cannot be carried farther. However, lest it should I thought it would be time not wholly mispent to shew that the Doctrine his Lordship hath advanced upon the Foot of Common-Law, is not supported by any of the Authorities to which He hath appealed.

I have considered the Question touching Words and Writings supposed to be Treasonable the more largely, not only because of the Diversity of Opinions upon it; but likewise for the great Importance of the Point, and the extreme Danger of multiplying Treasons upon slight Occasions.

I cannot conclude this Chapter without putting the Reader in mind of a fine Passage I borrow from the Baron de Montesquieu, worthy the Attention of all Persons concerned in the framing of Penal Laws or putting them in Execution, "Sylla, saith that excellent Writer, who confounded Tyranny, Anarchy, and Liberty made the Cornelian Laws. He seemed to have contrived Regulations meerly with a View to create Crimes. Thus distinguishing an infinite Number of Actions by the Name of Murder, he found Murderers in all Parts. And by a Practice but too much followed he laid Snares, sowed Thorns, and opened Precipices, wheresoever the Citizens set their Feet."

Chap. II. Of Levying War and Adhering to the King's Enemies.

Lord Chief Justice Hale speaking of such unlawful Assemblies as may amount to a Levying of War within the 25. E. 3, taketh a Difference between those Insurrections which have carried the Appearance of an Army formed under Leaders, and provided with Military Weapons and with Drums, Colours, &c. and those other disorderly Tumultuous Assemblies which have been drawn together and conducted to Purposes manifestly Unlawful, but without any of the ordinary Shew and Apparatus of War before mentioned.

I do not think any great Stress can be laid on that Distinction. It is true that in Case of Levying War, the Indictments generally charge that the Defendants were Armed [Volume 4, Page 415] and Arrayed in a Warlike manner; and where the Case would admit of it, the other Circumstances of Swords, Guns, Drums, Colours, &c. have been added. But I think the Merits of the Case have never turned singly on any of those Circumstances.

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Sect. 1. The true Criterion therefore in all these Cases is, Quo Animo did the Parties Assemble. For if the Assembly be upon Account of some private Quarrel, or to take Revenge of particular Persons, the Statute of Treasons hath already determined that Point in Favour of the Subject. "If, saith the Statute, any Man ride armed openly [So the Word Descouvert ought to have been rendered] or secretly with Men of Arms against any Other to Slay or to Rob him, or to take and keep him 'till he make Fine for his Deliverance, it is not the Mind of the King nor his Council that in such Case it shall be judged Treason; but it shall be judged Felony or Trespass according to the Laws of the Land of old Times used and according as the Case requireth." Then immediately followeth another Clause which reacheth to the End of the Statute; and provideth that, if in such Case or other like the Offence had thentofore been adjudged Treason, whereby the Lands of the Offenders had come to the Crown as Forfeit; the Lords of the Fee should notwithstanding have the Escheat of such Lands, saving to the Crown the Year, Day, and Wast.

I will make a short Observation or two on these Clauses.

1st, The first Clause is evidently declaratory of the Common-Law, it shall be adjudged Felony or Trespass according to the Law of the Land of old Time used. The 2d hath a Retrospect to some late Judgments in which the Common Law had not taken Place; and giveth a speedy and effectual Remedy to Lords of the Fee who had suffered by those Judgments.

2dly, The Words of the first Clause descriptive of the Offence, "if any Man ride Armed openly or secretly with Men of Arms" did in the Language of those Times, mean nothing less than the Assembling Bodies of Men, Friends, Tenants or Dependants, armed and arrayed in a Warlike Manner in order to effect some Purpose or other by dint of Numbers and superior Strength. And yet those Assemblies so armed and arrayed, if drawn together for Purposes of a Private Nature, were not deemed Treasonable.

3dly, Though the Statute mentioneth only the Cases of assembling to Kill, Rob or Imprison, yet these, put as they are by Way of Example only, will not exclude others which may be brought within the same Rule. For the Retrospective Clause provideth that "if in such Case or other like it hath been Adjudged"--what are the other like Cases? all Cases of the like Private Nature are, I apprehend, within the Reason and Equity of the Act. The Case of the Earls of Gloucester and Hereford, and many other Cases cited by Hale, some before the Statute of Treasons, and others after it, those Assemblies though attended many of them with Bloodshed and with the ordinary Apparatus of War, were not held to be Treasonable Assemblies. For they were not in Construction of Law, raised against the King or His Royal Majesty, but for Purposes of a Private Personal nature.

Sect. 2. Upon the same Principle and within the Reason and Equity of the Statute, Risings to maintain a Private Claim of Right, or to destroy particular Inclosures, or to remove Nusances which affected or were thought to affect in point of Interest the Parties Assembled for those Purposes, or to break Prisons in order to Release particular Persons without any other Circumstance of Aggravation, have not been held to amount to Levying War within the Statute.

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Sect. 3. But every Insurrection which in Judgment of Law is intended against the Person of the King be it to Dethrone or Imprison Him, or to oblige Him to alter His Measures of Government, or to remove Evil Councellors from about Him, these Risings all amount to Levying War within the Statute; whether attended with the Pomp and Circumstances of Open War or No. And every Conspiracy to Levy War for these Purposes, though not Treason within the Clause of Levying War, is yet an Overt-Act within the other Clause of Compassing the King's Death. For those Purposes cannot be effected by Numbers and open Force without manifest Danger to His Person.

Sect. 4. Insurrections in order to throw down All Inclosures, to alter the Established Law or change Religion, to inhance the Price of All Labour or to open All Prisons, all Risings in order to effect these Innovations of a Publick and General Concern by an Armed Force, are in Construction of Law High Treason, within the Clause of Levying War. For though they are not levelled at the Person of the King, they are against His Royal Majesty. And besides, they have a direct Tendency to dissolve all the Bonds of Society, and to destroy all Property and all Government too, by Numbers and an Armed Force. Insurrections likewise for redressing National Grievances, or for the Expulsion of Foreigners in General, or indeed of any Single Nation living here under the Protection of the King, or for the Reformation of Real or Imaginary Evils of a Public Nature and in which the Insurgents have no Special Interest, Risings to effect these Ends by Force and Numbers, are by Construction of Law within the Clause of Levying War. For they are levelled at the King's Crown and Royal Dignity.

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Sect. 6. But a bare Conspiracy for effecting a Rising for the Purposes mentioned in the two preceding Sections and in the next, is not an Overt-Act of Compassing the King's Death. Nor will it come under any Species of Treason within the 25. E. 3. unless the Rising be Effected. And in that Case the Conspirators as well as the Actors will All be equally Guilty. For in High Treason of all Kinds, All the Participes Criminis are Principals.

It must be admitted that Conspiracies for these Purposes have been adjudged Treason. But those Judgments were founded on the Temporary Act of 13. Eliz. which made Compassing to Levy War, declared by Printing, Writing, or Advised Speaking, High Treason during the Life of the Queen.

There was an Act in the 13. Car. 2. to the same Purpose on which some Prosecutions were founded; but that Act expired with the Death of the King.

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[Volume 4, Page 416]

Sect. 8. The joining with Rebels in an Act of Rebellion, or with Enemies in Acts of Hostility, will make a Man a Traitor: in the one Case within the Clause of Levying War, in the other within that of Adhering to the King's Enemies. But if this be done for fear of Death, and while the Party is under Actual Force, and He taketh the first Opportunity that offereth to make his Escape, this Fear and Compulsion will excuse Him. It is however incumbent on the Party who maketh Fear and Compulsion his Defence, to shew to the Satisfaction of the Court and Jury that the Compulsion continued during all the Time He staid with the Rebels or Enemies.

I will not say that He is obliged to account for every Day, Week, or Month. That perhaps would be impossible. And therefore if an original Force be proved, and the Prisoner can shew, that He in earnest attempted to escape and was prevented; or that He did get off and was forced back, or that He was narrowly watched, and all Passes guarded; or from other Circumstances, which it is impossible to state with Precision but when proved ought to weigh with a Jury, that an Attempt to escape would have been attended with great Difficulty and Danger; so that upon the whole He may be presumed to have continued among them against his Will, though not constantly under an Actual Force or Fear of Immediate Death, these Circumstances and others of the like Tendency proved to the Satisfaction of the Court and Jury, will be sufficient to excuse Him.

But an Apprehension though ever so well grounded, of having Houses Burnt or Estates Wasted or Cattle Destroyed, or of any other Mischief of the like Kind, will not excuse in the Case of Joining and Marching with Rebels or Enemies.

Furnishing Rebels or Enemies with Money, Arms, Ammunition or other Necessaries will Primâ facie, make a Man a Traitor. But if Enemies or Rebels come with a Superior Force and Exact Contributions, or live upon the Country at free Quarter, Submission in these Cases is not Criminal. For flagrante Bello the jus Belli taketh Place, 'tis the only Law then subsisting. And Submission is a Point of the highest Prudence to prevent a greater Publick Evil.

And the bare sending Money or Provisions (except in the Case just excepted) or sending Intelligence to Rebels or Enemies, which in most Cases is the most Effectual Aid that can be given them, will make a Man a Traitor, though the Money or Intelligence should happen to be intercepted. For the Party in sending did all He could: the Treason was compleat on his Part though it had not the Effect He intended.

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Sect. 9. An Assembly Armed and Arrayed in a Warlike Manner for any Treasonable Purpose is Bellum Levatum, though not Bellum Percussum. Listing and Marching are sufficient Overt-Acts without coming to a Battle or Action. So Cruising on the King's Subjects under a French Commission, France being then at War with Us, was held to be Adhering to the King's Enemies, though no Other Act of Hostility was laid or proved.

Sect. 10. Attacking the King's Forces in Opposition to His Authority upon a March or in Quarters is Levying War against the King. But if upon a sudden Quarrel, from some Affront given or taken, the Neighbourhood should rise and drive the Forces out of their Quarters, That would be a great Misdemeanor, and if Death should ensue it may be Felony in the Assailants: but it will not be Treason, because there was no Intention against the King's Person or Government.

Sect. 11. Holding a Castle or Fort against the King or His Forces, if Actual Force be used in order to keep Possession, is Levying War. But a bare Detainer, as suppose by shutting the Gates against the King or His Forces, without any other Force from within, Lord Hale conceiveth will not amount to Treason. But if this be done in Confederacy with Enemies or Rebels, that Circumstance will make it Treason; in the One Case under the Clause of Adhering to the King's Enemies, in the Other under that of Levying War. So if a Person having the Custody of a Castle or Fort deliver it up to the Rebels or Enemies, by Treachery and in Combination with Them, this is High Treason within the Act; in the former Case 'tis Levying War, in the latter 'tis Adhering to the King's Enemies. But meer Cowardice or Imprudence, though it might subject a Commander in such Case to Death by the Martial Law, will not amount to Treason.

Sect. 12. States in Actual Hostility with Us, though no War be solemnly Declared, are Enemies within the meaning of the Act. And therefore in an Indictment on the Clause of Adhering to the King's Enemies, it is sufficient to Aver that the Prince or State Adhered to is an Enemy, without shewing any War Proclaimed. And the Fact, whether War or No, is triable by the Jury; and Publick Notoriety is sufficient Evidence of the Fact. And if the Subject of a Foreign Prince in Amity with Us, invadeth the Kingdom without Commission from his Sovereign, He is an Enemy. And a Subject of England adhering to Him is a Traitor within this Clause of the Act.

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Chap. III. Touching the Act of the 7. William III. for Regulating Trials in Cases of Treason and Misprision of Treason.

Bishop Burnet informeth Us that this Act passed after a long Struggle, contrary to the Hopes and Expectation of the Persons then at the Head of Affairs. "The Design of it," He saith, "seemed to be to make Men as safe in all Treasonable Practices as possible." This is a grievous Imputation on the Persons who forwarded the Bill in either House of Parliament, and might have been spared. But I believe it was the Language of Many, and the Opinion of Some of the Party with which the Bishop stood connected.

Had the Bill required Two Witnesses to the Same Fact at the Same Time, as his Lordship saith it did, it would indeed have rendered Men very secure in Treasonable Practices: but then it will be difficult to reconcile this to what He saith in a few Lines afterwards. For after setting forth the Substance of some of the Principal Clauses, particularly That relating to Two Witnesses to the Same Fact at the Same Time He addeth, "All these Things were in [Volume 4, Page 417] themselves just and reasonable: and if they had been moved by other Men and at another Time, they would have met with little Opposition."

The Bill did not come to the Royal Assent during the Session it was brought into Parliament. For the Clause which requireth that All the Peers shall be Summoned upon a Trial of a Peer for Treason or Misprision of Treason, a Provision founded in sound Sense and strict Justice, was added by the Lords: and the Bill with that Amendment sent back to the Commons, who disagreed to the Amendment: and so the Bill dropped for that Session.

In a Subsequent Session the Commons sent up their own Bill again, and the Lords added their Clause, which saith the Historian, "was not easily carried; for Those who wished well to the Bill looked on this as a Device to lose it, as no doubt it was, and therefore opposed it: but contrary to the Hopes of the Court the Commons were so desirous of the Bill, that when it came down to Them they Agreed to the Clause. And so the Bill passed and had the Royal Assent."

Some Reflections might be made upon the Spirit of Faction which possessed both Sides, in this Competition of Parties, but I forbear. And proceed to offer a few Observations on the several Parts of the Act.

Sect. 1. My first Enquiry will be, What Treasons are within the Act, and How the Law standeth with regard to Those that are Not. By the general Tenor of the Act it extendeth to such High Treasons only whereby "any Corruption of Blood may or shall be made to the Offender or his Heirs and to the Misprision of such Treasons."

The First and Second Sections are expresly confined to those Treasons, and the Misprision of them: and All the other Clauses, except those relating to the Trial of Peers, and to the Rejection of Evidence of Overt-Acts not laid in the Indictment, use Words of plain Reference to the Treasons mentioned in the First and Second Sections. And the 13th Section expresly excludeth the Treasons of Counterfeiting His Majesty's Coin, the Great Seal, Privy Seal, Signet, and Sign Manual.

The Case of Petty Treason therefore standeth upon the foot it did before this Act, and so do the Treasons that are expresly excluded. And All the Treasons created by Acts Saving the Corruption of Blood stand likewise on the same foot.

The Statutes Saving the Blood are, 5 Eliz. c. 1. S. 10. 11. 12. concerning the Papal Supremacy, 5 Eliz. c. 11.--18 Eliz. c. 1.--8, 9 W. 3. c. 25. and 15, 16 Geo. 2. c. 28. touching the Coin. I do not recollect any more of that kind.

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Sect. 3. A Question may possibly be made Whether the Benefit of this Act is to be extended to All Treasons working Corruption of Blood created by Subsequent Acts, wherein the Benefit of the Act is not saved by Special Provisoe: because the Legislature, which is presumed to do nothing in Vain, hath in some Instances made express Provision for that Purpose. I should not have mentioned this as a Matter of Doubt if Lord Hale had not in a similar Case, I mean touching the Extent of the Statutes of E. 6, entertained a Doubt grounded on the same Presumption. For My part, I think the Benefit of the Act ought to be extended to Prosecutions for All manner of High Treasons, Working Corruption of Blood and not within the Exceptions, though created by Acts subsequent to it. The Words of the Act take in every possible Case, "All and Every Person or Persons that shall be Accused or Indicted for High Treason &c." the Principles and Views upon which the Legislature proceeded, as they are set forth in the Preamble, will govern every future Case under the like Circumstances. And the known Rules of Construction oblige Us to Construe an Act so beneficial, as Liberally as may be; that is, to extend it as far as the Letter, and especially the visible Scope and Intention of it will warrant Us.

Arguments founded on a general Presumption of the Wisdom and Circumspection of the Legislature always will and ought to have their Weight. It hath been said, and many times with great Propriety, that the making Special Provision in certain Cases by Statute implieth that the Law had not before provided for those Cases; For the Parliament doth Nothing in Vain. This is a good general Rule, but it is very well known not to be Universally true. But admitting it was so, yet many valuable Purposes, which Wisdom and a just Concern for the Publick Welfare will suggest, may be answered by an express Provision, not in itself of absolute indispensible Necessity: sometimes for removing Doubts where different Opinions have been entertained; and at other times out of abundant Caution for obviating Doubts that possibly may arise. The Instances of Both kinds are numerous and need not be mentioned in this Place.

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Sect. 5. Before I conclude this Enquiry touching the Extent of the Statute, I will just mention the Offences of Importing Money Counterfeit to the similitude of English Coin, Counterfeiting Foreign Coin Legitimated by Proclamation, and of Importing such Coin. These Treasons work a Corruption of Blood, and as such are brought within the general Purview of the Act; and do not come within the Letter of the Exception, which in the Case of Coin mentions only the Offence of Counterfeiting His Majesty's Coin. Whether this Beneficial Law shall be extended to those Treasons, or whether by the Rule of Congruity they shall stand upon the same foot with the Offence of Counterfeiting the Coin of the Kingdom, as in some Cases All Treasons concerning the Coin do; these Questions will be very fit to be considered whenever the Cases shall happen, which probably will not be very soon.

For Prosecutions for the First of those Offences have been very Rare: and for the Others there can be None, as things stand at present, 'till the Crown shall be advised to Legitimate some Species of Foreign Coin. I know of none now Current among Us that is Legitimated, and most probably none will. For if the Offences of Counterfeiting and Diminishing Foreign Coin and of Importing such Counterfeit and Diminished Coin, which are great Evils, and daily growing, were made more Penal than they are at present, I know of no good End that could be answered by Legitimating any Species of it; on the other Hand I foresee great Inconveniences that would attend it.

As to the Treasons which are not within the Act, I shall [Volume 4, Page 418] be very short in this Place. Petty Treason is intitled to the Benefit of the Acts of the 1st and 5th of E. 6. as far as concerns the Point of Evidence; and by 1. 2. Ph. and M. it is intitled to a Trial according to the due Course and Order of Common-Law. The Treason created by the 1st of Eliz. already mentioned standeth in Both these respects upon the same foot.

The other Treasons not comprehended in the general Words or Excepted, relating to the Coin and the Seals &c. are likewise intitled to a Trial according to the due Course and Order of the Common-Law, and to all the Advantages incident to that Method of Trial, which will be hereafter more particularly mentioned.

I now proceed to the Other parts of the Act.

I shall not consider the several Clauses in the Order they stand, but as far as I can, I will range them under the following Heads. What Privileges the Prisoner is intitled to, and What is incumbent on Him previous to the Trial, and What during the Trial. The Clauses which do not fall under these Heads will be Last considered.

Sect. 6. The Prisoner is to have a Copy of the Whole Indictment, but not of the Witnesses Names, five Days at least before the Trial in order to enable Him to Advise with his Council thereupon, to Plead and make his Defence; His Attorney or Agent or any Person on his behalf requiring the same, and paying reasonable Fees for the Writing thereof, not exceeding 5s for the Copy of any One Indictment. (Sect. 1.)

And if He desireth Council, the Court where He is to be tried or any Judge thereof, shall immediately upon request Assign Him such and so many Council, not exceeding Two, as He shall desire: and such Council shall have free Access to Him at all Seasonable Hours. (Ibid.)

He shall likewise have a Copy of the Pannel of the Jurors who are to try Him duly returned by the Sheriff, and delivered to Him Two Days at least before his Trial. And He shall have the like Process to compel his Witnesses to appear at the Trial for Him, as is usually granted to compel Witnesses to appear against Prisoners in the like Case. (Sect. 7.)

The 7th of the late Queen, whenever it shall fully take Effect, will make some material Alterations in the Law touching Copies of the Indictment and Pannel. And therefore before I conclude some notice shall be taken of it.

At Common-Law no Prisoner in Capital Cases was intitled to a Copy of the Indictment or Pannel, or of Any of the Proceedings against Him. Many Persons, it is true, have upon their Arraignment insisted on a Copy of the Whole Indictment, but it hath been constantly denied. It was denied in the Case of Lord Preston and the Two other Gentlemen indicted with Him, by the unanimous opinion of the Judges present, who declared that it never had been granted, though frequently demanded. And Lord Preston having said that it was granted to Lord Russel, Holt told Him that He and some Other of the Judges present who were of Council for that Lord did not advise Him to demand it. "For, saith He, We knew He could not have it by Law." Lord Preston, not satisfied with this Answer prayed that Counsel might be Assigned Him to argue that Point; which the Court unanimously refused, it being, they said, a Point that would not bear a Debate.

The Statute of the 46. E. 3. which had been formerly insisted upon by Prisoners in the like Case, was much pressed in this. It is not in Print among the Statutes, but an Attested Copy from the Roll was read at the Prisoner's Request, and is printed in the Trial. It plainly relateth to such Records in which the Subject may be Interested, as Matters of Evidence upon Questions of private Right. And it Enacteth, "That all Persons shall for the future have free Access to Them, and may have Exemplifications of Them whether they make For or Against the king." This was the Opinion of the whole Court.

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Though the Act mentioneth only the Copy of the Indictment, yet the Prisoner ought to have a Copy of the Caption delivered to Him with the Indictment: for This in many Cases is as necessary to enable Him to conduct himself in Pleading, as the Other. This is now the constant Practice.

But if the Prisoner pleadeth without a Copy of the Caption, as some of the Assassines did, He is too late to make that Objection, or indeed any other Objection that turneth upon a Defect in the Copy; for by Pleading, He admitteth that He hath had a Copy sufficient for the Purposes intended by the Act.

By the Letter of the Act the Copy is to be delivered five Days before the Trial. But upon the true Construction of it, the Copy after the Bill is Found, for 'till then it is no Indictment, ought to be delivered five Days before the Day of Arraignment, for that is the Prisoner's Time for Pleading. And the five Days must be Exclusive of the Day of Delivery and the Day of Arraignment. So with regard to the Copy of the Pannel, the Two Days must be Exclusive of the Day of Delivery and the Day of Trial. These Points have been long settled, and are now matters of constant Practice.

Though the Words of the Statute are, that the Prisoner shall have a Copy of the Pannel duly returned by the Sheriff, yet if the Copy should happen to be delivered before the Return of the Precept, which upon a bare Commission of Oyer and Terminer is commonly made returnable on the Day intended for the Trial, it will be sufficient. For it satisfieth the Words of the Statute and answereth all the Ends of it.

The Little Tract intituled "The Method of Trial of Commoners in Cases of High Treason" published in the Year 1709 by Order of the House of Lords directeth that the Additions of Dwelling-Places and Professions of the Jurors be inserted in the Copy of the Pannel; but the Act doth not require that Exactness, and the Practice is otherwise.

If the Prisoner would avail Himself of any Defect in the Indictment by Miswriting, Mispelling, False or Improper Latin, He must take his Exceptions, before Evidence given in Open Court, these are the Words of the Act. (Sect. 9.)

But though the Act is thus Worded, the Construction of it hath been, that Exceptions grounded on those Mistakes must be taken before Plea Pleaded. And in the Cases of Captain [Volume 4, Page 419] Vaughan already cited and of one Sullivan at the Old Bayly, October 1715, and of Mr. Layer, the Court refused to hear such Exceptions after Plea. It is true that in Cranburne's Case the Court did permit his Council to take those Exceptions after Plea, and in Rookwood's after the Jury was Sworn. But it ought to be remembered these were Indulgencies to the Prisoners upon a New Act, and before the Practice was settled to the Contrary, as it now is.

I come now to the Privileges the Prisoner is intitled to during the Time of his Trial.

Sect. 7. He is to have the Assistance of his Council throughout his Trial, to Examine his Witnesses, and to Conduct his whole Defence as well in point of Fact as upon Questions of Law. (Sect. 1.)

At Common-Law no Council was allowed upon thfence as well in point of Fact as upon Questions of Law. (Sect. 1.)

At Common-Law no Council was allowed upon the Issue of Guilty or Not Guilty in any Capital Case whatsoever, except upon Questions of Law. And then only in Doubtful, not in Plain Cases. I am far from disputing the Propriety of this Rule while it is confined to Felony and the Lower Class of Treasons concerning the Coin and the Seals. I know many things have been thrown out upon this Subject, and Inconveniences some Real some Imaginary, have been suggested by Popular Writers, who seem to have attended singly to those on One side of the Question. But it is impossible in a State of Imperfection to keep clear of all Inconveniences; though Wisdom will always direct Us to the Course which is subject to the Fewest and the Least. And this is the utmost that Human Wisdom can do.

In State-Prosecutions which are the Objects of this Act, and are carried on by the Weight of the Crown and too often in the Spirit of Party, and are generally conducted by Gentlemen of High Rank at the Bar, it is extremely reasonable to allow the Prisoner the Assistance of Council, to the full Extent of the Act. But this the Common-Law did not allow. Accordingly it was refused to every Person concerned in the Assassination-Plot whose Trials came on after this Act had passed the Royal Assent, but before the Commencement of it. And in Sir William Parkins's Case the very Day before the Act took place, Holt said upon the Occasion, "We must conform to the Law as it is at Present, not to what it will be To-morrow, We are upon our Oaths so to do." Council as to matters of Fact was likewise denied to Lord Winton and to Lord Lovat, being in the Case of an Impeachment which is excepted out of the Act. But all the Prisoners I have mentioned had, through the Benignity of the Times, Council to attend Them in Prison previous to their Trials.

Upon the Trial of Issues that do not turn upon the Question of Guilty or Not Guilty but upon Collateral Facts, Prisoners under a Capital Charge whether for Treason or Felony, always were intitled to the full Assistance of Council. Humphry Stafford in the 1st of Hen. 7. had Council on his Plea of Sanctuary. Roger Johnson whose Case is before Reported had Council on the Error in Fact assigned by Him for Reversing his Outlawry, though in a Case concerning the Coin. And so had John Harvey and every Prisoner in the like Case with Him upon the Issue taken upon the several matters alledged in the Suggestion filed on the Part of the Crown, pursuant to the Act of the 19th of the King.

Sect. 8. I come now to the Head of Evidence which divideth itself into two Branches. What Number of Witnesses doth the Act require, and What Matters may be given in Evidence. And though I have postponed the Consideration of this Part of the Act to this Place, yet whatever will be said with regard to Evidence at the Trial, must be applied to the Evidence which shall be given on the Indictment.

I know a Difference hath been taken in the construction of the Statutes of E. 6. and of Ph. and Ma. between the Indictment and the Trial. But this Distinction is entirely without Foundation even upon the Foot of those Statutes. But the present Act hath not left room for that Distinction. It Enacteth that "no Person shall be Indicted, Tried, or Attainted of any Treason whereby any Corruption of Blood may be made to the Offender or his Heirs or of the Misprision of such Treason, but upon the Oaths of Two lawful Witnesses; either Both to the same Overt-Act, or One of them to One and Another to Another Overt-Act of the same Treason: unless He shall willingly and without violence in Open Court confess the same. Or shall stand Mute, or refuse to Plead, or in Cases of High Treason shall Peremptorily Challenge above the Number of 35 of the Jury." (Sect. 2.)

"Provided that any Person being Indicted as aforesaid for any of the said Treasons or Misprisions, may be Outlawed and thereby Attainted. And in Cases of the High Treasons aforesaid where by the Law, after such Outlawry, the Party Outlawed may come in to be Tried, He shall upon such Trial have the Benefit of this Act." (Sect. 3.)

"And it further Enacteth and Declareth that if Two or More distinct Treasons of divers Heads or Kinds shall be alledged in One Bill of Indictment, One Witness to One of the said Treasons and Another Witness to Another of the said Treasons shall not be deemed Two Witnesses to the same Treason within the meaning of the Act." (Sect. 4.)

It hath been generally agreed, and I think upon just Grounds, (though Lord Coke hath advanced a contrary Doctrine) that at Common-Law One Witness was sufficient in the Case of Treason as well as in every Other Capital Case. The only Difficulty hath been upon the Construction of the Statute of Ph. and Ma. whether that Act hath Repealed the Statutes of E. 6. as far as they make Two Witnesses necessary in All Cases of Treason.

It may possibly be judged needless at this time to enter far into this Inquiry. But since the Statutes of E. 6. plainly extend to Petit Treason and the Act now under Consideration as plainly doth not, it will Not be time altogether mispent to clear up this Point. For Petit Treason standeth in this Respect singly on the foot of the Statutes of Ed. 6.

I do not find upon looking over the State Trials that in Crown-Prosecutions any great regard was paid to the Acts of E. 6. for near a Century after they were passed; or indeed to the common well-known Rules of Legal Evidence. Though the Authors who wrote in those Days do sometimes speak of the Acts as then in force. In the Case of [Volume 4, Page 420] William Thomas, when they were undoubtedly in force, they were rendered quite Nugatory by this very extraordinary Resolution, that One Witness of his own Knowledge, and Another by Hearsay FROM Him, though AT THE Third or Fourth Hand, made Two Witnesses or Accusors within the Acts. And in the Case of Sir Nicholas Throckmorton which came to Trial the same Term, no sort of regard was paid to them. For though the Prisoner strongly insisted on the Benefit of them, particularly of That which requireth the Witnesses to be brought face to face upon the Trial, the Council for the Crown went on in the method formerly practised, reading Examinations and Confessions of Persons supposed to be Accomplices, some Living and Amesneable, others lately Hanged for the same Treason.

In many of the succeeding Trials the Prisoners were told that the Statutes of Edw. the 6th were repealed, particularly That which required Two Witnesses face to face; That this Law had been found dangerous to the Crown; that Witnesses may be prevailed upon to Unsay in Court what they have Said upon their Examinations; that the Confessions of Persons accusing themselves are the strongest of all Evidence against their Accomplices; That their Partners in Guilt are the Gens de lour Condition the Statute of Treasons speaketh of; And that Confessions, though not signed by the Party, are of equal Weight with those that are Signed. This every Man who will do so much Penance as to read over the State Trials during the Reigns of Queen Eliz. and King James, will find to have been the Doctrine and Practice of the Times. And I do not see that the Case of Sir Walter Raleigh, whose Trial having been long since Printed and prefixed to His History hath been more generally Read and Censured than Others, I do not see that That Case, always excepting the extraordinary Behaviour of the King's Attorney, did in point of Hardship differ from Many of the former.

In succeeding Times, when People of all Ranks and Parties had in their Turn been learning Moderation in the School of Adversity, Light began to dawn upon Us. Lord Coke, after his Disgrace at Court had given Him Leisure for Cool Reflection, was of Opinion that the Statutes of Ed. 6th touching Evidence are Not Repealed by 1. 2. Ph. and Ma. that Two Witnesses are Still required in Cases of Treason; not barely upon the Indictment, which He Stateth as an Opinion entertained by Some, but also upon the Trial. This as far as I can collect from the Passages I have cited was the Result of all his Searches into this Matter; though He doth not in every Part of the Passage express Himself with that Light and Precision which the Importance of the Subject required.

In the Case of Mr. Love, Hale who was Council for Him, insisted that Two Witnesses are necessary upon the Trial in Case of Treason, upon the foot of the Statutes of Edw. the 6th not Repealed, He saith, in point of Testimony by the Statute of Ph. and Ma.; And one of the Council on the side of the Prosecution, who upon the whole argued with Candour, admitted that the Statutes of E. 6. are not Repealed by that of Ph. and M. and that Two Witnesses are still necessary; But insisted, that One Witness to One Overt-Act, and Another to Another Overt-Act of the same Species of Treason are Two sufficient Witnesses within the Acts. This Gentleman was the First I have met with who considered the Point in this Light; in which, as I shall shew presently, it hath been considered ever since the Restoration.

Hale in his Summary is clear that the Statutes of Ed. 6. require Two Witnesses to the Petit Jury in the Case of Treason. And this, saith He, standeth notwithstanding the Stat. of the 1. 2. Ph. Ma. But in his History of the Pleas of the Crown He speaketh more doubtfully. He saith in One place, that it hath been held by Many that the Statutes of E. 6. are still in Force notwithstanding 1. 2. Ph. M. In Another, that Two Witnesses are required upon the Indictment, not upon the Trial. In a Third, after having said that it is agreed on all Hands that the Stat. of Ph. and M. taketh away the Necessity of Two Witnesses on the Trial, He proceedeth to consider the Opinion of those who argued that the Trial being the Sole Object of that Statute, it did Not take away the Necessity of Two Witnesses on the Indictment, since the Indictment and Trial are in their Opinion two distinct Things.

He then offereth many strong Reasons founded on great Authority against that Distinction; and sheweth that the Indictment ought to be considered as inseperably incident to the Trial and in truth a Part of it. And concludeth thus, "And thus the Reasons stand on both sides; and though Those seem to be stronger than the Former, yet in a Case of this Moment it is safest to hold That in Practice which hath least Doubt and Danger, especially in Cases of Life." Thus far the Learned Judge appeareth to have been Doubtful at least, to say no more. But in another Passage speaking of Informations in Capital Cases taken by Magistrates upon Oath, and in what Cases and under what Restrictions they may be read in Evidence, He saith, "Though Informations upon Oath taken before a Justice of the Peace may make a good Testimony to be read against the Offender in Case of Felony where the Witness is not able to Travel, yet in Case of Treason where Two Witnesses are required such an Examination is not allowable; for the Statute requireth, that They (if living) be produced upon the Arraignment in the Presence of the Prisoner, to the end He may cross-examine Them." The Statute his Lordship mentioneth can be no other than the 5. 6. E. 6. Some other Passages I might have cited from the History of the Pleas of the Crown, where the Learned Author fluctuateth between two opposite Opinions upon this Point, but these are sufficient.

Keiling Reporteth that at a Conference among the Judges preparatory to the Trial of the Regicides, it was agreed that the Law requireth Two Witnesses in the Case of Treason; but that One Witness to One Overt-Act of Compassing (for Compassing the King's Death was the Treason then under Consideration) and Another Witness to Another Act of Compassing, make Two Witnesses of Compassing. He afterwards speaketh very doubtfully upon this Point; and at length saith, that it seemed to Him that One Witness is sufficient in Treason, and that the 1. 2. Ph. and M. had Repealed the Statutes of E. 6.

At Lord Stafford's Trial the Necessity of Two Witnesses was treated as a Point beyond all Doubt. But his Lordship insisting that there ought to be Two to each Overt-Act, All [Volume 4, Page 421] the Judges present delivered their Opinions seriatim, and declared that One Witness to One Overt-Act, and Another to Another Overt-Act of the same Species of Treason, are Two sufficient Witnesses within the Statutes: otherwise no Government could be safe if Traitors had but Craft equal to their Villany. From that time the Point hath been settled. And in the succeeding Trials of that Reign and the Next, though many irregular Things were done savouring of the Times, this Rule still kept it's ground. And in all the Trials after the Revolution before the Act of the 7th of King William took place, it was strictly observed.

Having given this Short History of the Difficulty which hath been founded on the Statute of Ph. and M. I will take the Liberty of offering My own Thoughts upon it.

I conceive that the Clause upon which the Doubt arose, "That all Trials for any Treason shall be according to the due Order and Course of the Common-Law and not Otherwise," was intended in favour of the Subject, not in the least to his Prejudice. It was founded in the same Principle, and directed to the same Salutary Ends, which the Statute made but the Year before reducing All Treasons to the Standard of the 25. E. 3. had in View. By the One, the Subject was secured in his Journey through Life against the numerous Precipices which the Heat and Distemper of Former times had opened in his Way; the Other restored to Him the Benefit of a Trial by a Jury of the proper County, with all the Advantages for Defence peculiar to that method of Trial, where former Statutes had deprived Him of it. This I apprehend was the Sole Intent of this Clause, which will be better explained by what followeth.

By 32. H. 8. Treasons committed in Wales or where the King's Writ runneth not, were to be Tried in such Shires and by such Commissioners as the King should appoint. By 33d of that King Persons committing Treason, and confessing it and afterwards becoming Lunatick, might be Tried without being brought to answer, by the like Special Commission in any County the King should appoint. And by another Act of the same Year, Persons accused of Treason or Misprision committed in England or Elsewhere, being Examined by Three of the Privy Council and by Them vehemently suspected, might be tried by Special Commission in any County the King should appoint. And by the same Act, the Peremptory Challenge in all Cases of Treason and Misprision was absolutely taken away.

These Acts were derogatory to the due Course and Order of the Common-Law, and in many Instances Grievous to the Subject. The Judges have therefore considered them all as Repealed by this General Clause, so far as concerneth Treasons committed in England or Wales. By this Construction, the Trial by a Jury of the proper County with a Peremptory Challenge of 35, which is with peculiar Propriety called a Trial according to the due Course and Order of the Common-Law, is restored.

But the Acts of the 28th and 35th of that Reign for the Trial of Treasons committed on the High Seas or out of the Realm, though they introduced a Method of Trial New in those Cases and Unknown to the Common-Law, have not been held to be Repealed by this Clause; nor is the 33. H. 8. Repealed as far as it concerneth Treason in Foreign Parts. For these Acts deprive the Subject of no Advantage for Defence to which He was before intitled. On the contrary, instead of a Trial according to the Course and Order of the Civil-Law, they introduced a Trial founded in the Wisdom and Benignity of the Common-Law, with all the Advantages for Defence incident to it; except only in the Point of Locality, which the Nature of the Cases would not admit of.

But the Privilege the Subject is intitled to under the Statutes of E. 6. of having the Charge proved by two Lawful Witnesses and those brought face to face at the Trial, a mighty safe-guard against Oppressive Prosecutions, was Never intended to be taken away by this General Clause. Nor in truth did the Legislature apprehend that it could be extended so far.

For by a Subsequent Clause in the same Statute it is Provided "that in all Cases of High Treason concerning Coin Current within the Realm, or for Counterfeiting the King's or Queen's Signet, Privy Seal, Great Seal, or Sign Manual, such manner of Trial and none other shall be observed and kept as heretofore hath been used by the Common-Law of this Realm, any Law, Statute, or other Thing to the contrary Notwithstanding." It will be extremely difficult to account for this Clause, which is admitted on all hands to have taken away the Necessity of Two Witnesses in the Cases touching the Coin and Seals, if the Former Clause had done the same in all Cases of Treason whatsoever; the Latter Clause was certainly inserted to effect something which the Former had not. But I think the next Act maketh the Matter very clear if any Doubt remaineth on this. It Enacteth, that in the Case of Offences therein enumerated touching the Coin the Offenders "may be Indicted, Tried, Convicted, and Attainted by such like Evidence and in such Manner and Form as hath been used and accustomed within this Realm, at any time before the First Year of our late Sovereign Lord King E. 6." Here the Matter of Evidence, which appeareth to be the only Point then in Contemplation, is plainly expressed and extended by Name to the Indictment as well as the Trial; and the very Time when Two Witnesses first became necessary in Both Cases is pointed out.

If the Legislature did intend by the Former Act to take away the Necessity of Two Witnesses in all Cases of Treason whatsoever, why did it not speak as plainly as it doth in this? And on the other hand, if it was conceived that this was done by the General Words of the Former Act, why is it done in Special Cases in Terms so express by This? The different Penning of Two Clauses in One and the Same Act, and also of Two Acts depending at the same time and probably passed the Royal Assent on the same Day, convinceth Me that the Legislature had in Contemplation two different Objects, distinct in their Nature and Tendency: and accordingly made different Provisions respectively suited to the Nature of Each.

I now return to the Statute of King William.

Though it requireth Two Witnesses to each Treason, yet a Collateral Fact not tending to the Proof of the Overt-Acts, may be proved by One. For this Statute confineth itself to the Proof of the Treason, the Proof of the Overt-Acts. And the Statutes of E. 6, are confined to the Evidence for [Volume 4, Page 422] proving the Prisoner Guilty of the Offences charged on Him, which likewise must be understood of Overt-Acts.

This Difference between the Proof of Overt-Acts and of Collateral Facts, was taken by Lord Holt in the Case of Captain Vaughan, who insisted and called Witnesses to prove that He was a Subject of France born in the Dominions of the French King. The Council for the Crown called Witnesses to prove Him born in Ireland. And his Council insisting that there was but One credible Witness to that Fact, Holt said, "That is no Overt-Act, if there be One Witness to That it is enough; there need not be Two Witnesses to prove Him a Subject, but here are More." His Confession was likewise given in Evidence as to That Fact. But it appearing upon Cross-Examination, to have been made the Night He was taken and when very Drunk, and the Fact of his Birth in Ireland being absolutely denied by Him the next Morning upon his Examination taken before a Magistrate, little Regard seems to have been paid to his Confession.

The Case of a Confession made Willingly and without Violence is excepted in this Act and in Both the Statutes of E. 6. But there is a Difference in the Wording these Statutes which I have thought did merit Consideration so far as to warrant a Different Construction of them. The Words of this Act are, "unless the Party shall Willingly and without Violence in Open Court confess the same." The Words in Open Court the Statutes of E. 6. have omitted. Those Words seem to have been inserted in order to carry the Necessity of Two Witnesses to the Overt-Acts farther than the Statutes of E. 6. were formerly thought to carry it. For the Construction of those Statutes hath been, that a Confession upon an Examination of the Party, taken out of Court and before a Magistrate or Person having Authority to take such Examination, proved upon the Trial by Two Witnesses is Evidence of itself sufficient to Convict, without farther Proof of the Overt-Acts. For, say the Books, such Confession putteth the Case out of the Statute, it satisfieth the Statute: and by Confession is not meant a Confession before the Judge upon the Prisoner's Arraignment, but upon his Examination before a Magistrate: for, saith Coke, the Words, without Violence, mean Willingly without any Torture, and the Judge is never present at any Torture, neither upon the Prisoner's Arraignment was ever any Torture offered.

But in the Year 1716. at a Conference among the Judges, preparatory to the Trial of Francis Francia, at which the Attorney and Solicitor General who were to conduct the Prosecution the next Day lent their Assistance, no Regard seemeth to have been paid to the Authorities I have cited; for it was then agreed that upon the Foot of those Acts of E. 6. by Confession is meant only a Confession upon the Arraignment of the Party, which it was said amounteth to a Conviction.

. . . . .

In truth, with regard to all Collateral Facts not conducing to the Proof of the Overt-Acts, I think We may safely lay it down as a General Rule, that whatever was Evidence at Common-Law is still good Evidence under the Statute; which as I said before is confined to the Proof of the Overt-Acts.

The Reader sees that Opinions have been Various touching the Sufficiency of this Sort of Evidence. But perhaps it may be now too late to controvert the Authority of the Opinion in 1716, warranted as it hath been by later Precedents. All I insist on is that the Rule should never be carried further than that Case warranteth, never further than to a Confession made during the Solemnity of an Examination before a Magistrate, or Person having Authority to take it: when the Party may be presumed to be properly upon his Guard, and apprized of the Danger he standeth in. Which was an Ingredient in the Case of Francia and of Greg cited in the Argument on Francia's Case. And in all those already cited which came in Judgment before the Statute of King William.

For hasty Confessions made to Persons having no Authority to examine, are the Weakest and most Suspicious of All Evidence. Proof may be too easily procured, Words are often Mis-reported, whether through Ignorance, Inattention, or Malice, it mattereth not the Defendant, He is equally affected in either Case; and they are extremely liable to Mis-construction. And withall, this Evidence is not in the Ordinary Course of Things to be Disproved by that Sort of Negative Evidence by which the Proof of plain Facts May be and often is Confronted.

. . . . .

The wording of these Acts touching Confessions, "unless the Party shall willingly and without Violence confess the same," suggesteth a Matter which I will just mention. The Common-Law knew of no such Engine of Power as the Rack or Torture to furnish the Crown with Evidence out of the Prisoner's Mouth against Himself or other People. It was, as Lord Coke informeth Us, first brought into the Tower by a great Minister in the time of H. 6. directly, saith He, against Law, and cannot be justified by any Usage. But in fact it was practised, though I believe Sparingly, and never saith King James, but in Cases of High Treason, for more than a Century afterwards.

This accounteth extremely well for the inserting the Words, Without Violence, in the Statutes of E. 6. I cannot so easily account for them in that of King William.

Sect. 9. This Act in substance followeth the Rule which had already taken place with regard to the Necessity of Two Witnesses to the same Treason, but it goeth further, and lest the Prisoner should be Surprised or Confounded by a Multiplicity and Variety of Facts which He is to Answer upon the spot, it Enacteth "That no Evidence shall be admitted or given of any Overt-Act that is not expresly laid in the Indictment against any Person or Persons whatsoever." (Sect. 8.)

The Sense of this Clause I take to be, that no Overt-Act amounting to a distinct Independent Charge, though falling under the same Head of Treason, shall be given in Evidence, unless it be expresly laid in the Indictment; but still, if it amounteth to a direct Proof of any of the Overt-Acts that are laid, it may be given in Evidence of such Overt-Acts.

. . . . .

The Rule of Rejecting all manner of Evidence in Criminal Prosecutions that is Foreign to the Point in Issue, is [Volume 4, Page 423] founded on sound Sense and common Justice. For no Man is bound at the peril of Life or Liberty, Fortune or Reputation, to answer at Once and Unprepared for every Action of his Life. Few even of the Best of Men would choose to be put to it. And had not those concerned in State Prosecutions out of their Zeal for the Publick Service sometimes stepped over this Rule in the Case of Treasons, it would perhaps have been needless to have made an express Provision against it in that Case. Since the Common-Law grounded on the Principles of Natural Justice hath made the like Provision in every Other.

The Clauses in the Act which do not fall under either of the Heads I have spoken to, come now to be considered.

. . . . .

Sect. 11. By the 5th and 6th Sections of the Act no Prosecution shall be for any of the Treasons or Misprisions within the Act, committed in England, Wales, or Berwick upon Tweed, unless the Bill of Indictment be found within Three Years after the Offence committed; save in Cases of Assassination attempted on the Person of the King by Poison or Other ways.

This Limitation is by the Letter of the Act confined to the Southern Parts of Great Britain, and before the Union it could not be otherwise. But I conceive that by the general Tenor of the 7. An. it is extended to Treasons of the like kind committed in Scotland: it was so understood at the time of the Rebellion of 1715; and therefore after all the Proceedings upon the Special Commissions in England were over, another Special Commission went into Scotland meerly for the finding Bills of Indictment in the proper Counties and Stewarties, in order to prevent the Limitation's taking place.

Sect. 12. I will now consider the Clauses 7. An. which I before hinted at. The Eleventh Section of that Act Provideth that "when any Person is indicted for High Treason or Misprision of Treason, a List of the Witnesses that shall be produced at the Trial for proving the said Indictment, and of the Jury, mentioning the Names, Profession and Places of Abode of the said Witnesses and Jurors, shall be given at the same time that the Copy of the Indictment is delivered to the Party Indicted. And that Copies of all Indictments for the Offences aforesaid with such Lists shall be delivered Ten Days before the Trial, and in the Presence of Two or More credible Witnesses."

This Provision will, as the Case now stands, take place upon the Death of the Pretender. Whether it may not be proper to postpone the effect of it to the Death of his Sons, upon the same Motive that the Clause in this Act touching the Corruption of Blood upon an Attainder for High Treason hath been postponed to that Event; or indeed, whether it should be suffered to take place at All, must be submitted to better Judgments. But some Objections have occurred to Me which I will mention.

No Provision is made with regard to the Treasons not comprehended within the General Purview of the 7th of King William or by Name excepted out of it. The Words of the Act, "Indicted for High Treason or Misprision of Treason" are large enough to take in All manner of High Treasons and Misprision of Treason, and undoubtedly they will be so understood. For this Act will be considered as One of those which merit a Liberal Construction.

When this Clause shall take place no High Treason or Misprision of Treason, not even those concerning the Coin, can possibly be Tried in the Circuit, nor at the Old Bayly without great Delay and double Expence. For the Copy of the Indictment cannot be delivered before it is Found by the Grand Jury, They make the Bill preferred to them an Indictment by Finding it. And Ten clear Days exclusive of the Day of Delivery and the Day of Trial, and of intervening Sundays which is the present Practice founded on the 7th of King William, will carry the Affair much beyond the time allowed for any Assizes or ordinary Gaol Delivery in the Kingdom.

The furnishing the Prisoner with the Names, Professions, and Places of Abode of the Witnesses and Jury so long before the Trial may serve many Bad purposes which are too obvious to be mentioned. One Good purpose and but One it may serve. It giveth the Prisoner an Opportunity of Informing Himself of the Character of the Witnesses and Jury. But this single Advantage will weigh very little in the Scale of Justice or sound Policy, against the Many bad Ends that may be answered by it. However, if it weigheth any thing in the Scale of Justice, the Crown is intitled to the same Opportunity of Sifting the Character of the Prisoner's Witnesses.

Equal Justice is certainly due to the Crown and the Publick. For let it be remembered that the Publick is deeply interested in every Prosecution of this kind that is Well-founded. Or shall we presume that all the Management, all the Practising upon the Hopes or Fears of Witnesses lieth on One side? it is true Power is on the side of the Crown. May it for the sake of the Constitutional Rights of the Subject, always remain where the Wisdom of the Law hath placed it! But in a Government like Ours and in a most Changeable Climate, Power if in Criminal Prosecutions it is but Suspected to Aim at Oppression, generally disarmeth itself. It raiseth and giveth Countenance to a Spirit of Opposition, which falling in with the Pride or Weakness of Some, the false Patriotism of Others, and the Sympathy of All, not to mention Private Attachments and Party Connections, generally turns the Scale to the favourable Side, and frequently against the Justice of the Case.

The Founders' Constitution
Volume 4, Article 3, Section 3, Clauses 1 and 2, Document 7
The University of Chicago Press