Page images

not a deduction

them are the crimes before you. The prisoner is death, or, in other words, the traitorous intentior not charged with a conspiracy against the King's to destroy his natural existence, is It consists ir the political government, but against his natural life. the treason, and not the overt acts, streytini tatu He is not accused of having merely taken steps to which are inly laid as manisestations tal lise. depose him from his authority, but with having of the traityrous intention; cr, in other words, as done so with the intention to bring him to death. evidence competent to be left to a jury to prove it It is the act with the specific intention, and not that no conspiracy to levy war against the the act alone, which constitutes the charge. The King, nor any caspiracy against his regal charact of conspiring to depose the King may, in- acter or capacity, is a good overt act of comdeed, be evidence, according to circumstances, of passing his deatte, unless some force be exerted, an intention to destroy his natural existence; but or in contemplation, against the King's person ; never, as a proposition of law, can it constitute and that such force, so exerted or in contemplathe intention itself. Where an act is done in tion, is not substantively the treason of compasspursuance of an intention, surely the intention ing, but only competent in point of law to estabmust first exist; a man can not do a thing in ful. lish it, if the jury, by the verdict of guilty, draw fillment of an intention, unless his mind first con- that conclusion of fact from the evidence of the ceives that intention. The doing of an act, or overt act. the pursuit of a system of conduct, which leads Thirdly, that the charge in the indictment, of in probable consequences to the death of the compassing the King's death, is not The existence of King, may legally (if any such be before you) af- laid as legal inducement or introduc- a fact to be in fect the consideration of the traitorous purpose tion, to follow as a legal inference for recome best charged by the record ; and I am not afraid of from the establishment of the overt overt acts, and trusting you with the evidence. How far any act, but is laid as an averment of A of law. given act, or course of acting, independent of in- fact; and, as such, the very gist of the indict. tention, may lead probably or inevitably to any ment, to be affirmed or negatived by the verdict natural or political consequence, is what we have of Guilty or Not guilty." no concern with. These may be curious ques- It will not (I am persuaded) be suspected by tions of casuistry or politics; but it is wickedness the Attorney General, or by the court, The doetrines at and folly to declare that consequences unconnect- that I am about to support these doc. Hale abil other ed even with intention or consciousness, shall be trines by opposing my own judgment bien conserpented synonymous in law with the traitorous mind, al- to the authoritative writings of the tions. though the traitorous mind alone is arraigned, as venerable and excellent Lord Hale, whose memconstituting the crime.

ory will live in this country, and throughout the I. Gentlemen, the first question consequently enlightened world, as long as the administra

for consideration, and to which I must, tion of pure justice shall exist. Neither do I The Law ofere therefore, earnestly implore the at- wish to oppose any thing which is to be found in

tention of the court, is this What the other learned authorities principally relied IS THE LAW UPON THIS MOMENTOUS SUBJECT? upon by the Crown, because all my positions are And recollecting that I am invested with no au- perfectly consistent with a right interpretation thority, I shall not presume to offer you any thing of them; and because, even were it otherwise, 1 of my own. Nothing shall proceed from myself could not expect successfully to oppose them by upon this part of the inquiry, but that which is any reasonings of my own, which can have no merely introductory, and necessary to the under-weight, but as they shall be found at once constanding of the authorities on which I mean to sistent with acknowledged authorities, and with rely for the establishment of doctrines, not less the established principles of the English law. 1 essential to the general liberties of England, than can do this with the greater security, because my to the particular consideration which constitutes respectable and learned friend, the Attorney Genour present duty.

eral, bas not cited cases which have been the dis. First, then, I maintain, that that branch of the grace of this country in former times, nor asked

statute 25th of Edward the Third, you to sanction by your judgment those bloody which declares it to be high treason, murders, which are recorded by them as acts of " when a man doth compass or im- English justice; but, as might be expected of an

agine the death of the King, of his honorable man, his expositions of the law (thougb lady the Queen, or of his eldest son and heir,' was intended to guard, by a higher sanction than 3 The statement contained in these three proposi. selony, the NATURAL LIVES of the King, Queen, tions, if admitted, overthrew at once the entire ar. and Prince; and that no act, therefore (either gument of the Attorney General as to the question inchoate or consummate), of resistance to, or of law. He had blended, as it were, the two kinds rebellion against, the King's regal capacity, of treason mentioned in the preceding note. He amounts to high treason of compassing his death, insisted that it was enough for him to prove that unless where they can be charged upon the in the prisoner's acts amounted to a "levying of war" dictment, and proved to the satisfaction of the against the King's government, and that this, by the jury at the trial, as overt acts committed by the Mr. Erskine shows that the jury must take the rehole

intendment of law, was a compassing of bis death. prisoner, in fulfillment of a traitorous intention to

as a question of fact--"Did he aim to destroy the destroy the King's natural life.

King's natural life." This question he lays on the Secendly, that the compassing the King's consciences of the jury.

Part First:

this case.

11.) The treason m question di rected against the natural life of the King, &c.


the case.

I think them frequently erroneous) are drawn ous intention against his naTURAL LIFE ; and thai from the same sources, which I look up to for doc- nothing short of your firm belief of that detesta trines so very different. I find, indeed, through- ble intention, from overt acts which you find him out the whole range of authorities (I mean those to have committed, can justify his conviction. which the Attorney General has properly con- That I may keep my word with you in building sidered as deserving that name and character) my argument upon nothing of my own, I hope very little contradiction. As far as I can dis- my friend Mr. Gibbs [his associate in the de. cover, much more entanglement has arisen from fense) will have the goodness to call me back now and then a tripping in the expression, than if he finds me wandering from my engagement, from any difference of sentiment among eminent that I may proceed step by step upon the most and viriuous judges, who have either examined venerable and acknowledged authorities of the or sat in judgment upon this momentous subject. law.

Gentlemen, before I pursue the course I have In this process I shall begin with Lord Hale, A very wide field prescribed to myself, I desire most who opens this important subject by Evidence from fargument open distinctly to be understood, that in stating the reason of passing the stat- authorities: circumstances of my own judgment the most suc. ute of the twenty-fifth of Edward the

cessful argument that a conspiracy Third, on which the indictment is founded. Lord to depose the King does not necessarily establish Hale says, in his Pleas of the Crown (vol. 1., page the treason charged upon this record, is totally 82), that " at common law there was a great beside any possible judgment that you can have latitude used in raising oflenses to the crime and to form upon the evidence before you. The punishment of treason, by way of interpretation truth is, throughout the whole volumes (of evi- and arbitrary construction, which brought in dence) that have been read, I can trace nothing great uncertainty and consusion. Thus, acthat even points to the imagination of such a croaching (i. e., encroaching on) royal power, conspiracy; and, consequently, the doctrines of was a usual charge of treason anciently, though Coke, Hale, and Foster, on the subject of high a very uncertain charge; so that no man could treason, might equally be detailed in any other tell what it was, or what defense to make to it." trial that has ever been proceeded upon in this Lord Hale then goes on to state various instanplace. But, gentlemen, I stand in a searsul and ces of vexation and cruelty, and concludes with delicate situation. As a supposed attack upon this striking observation : “ By these and the the King's civil authority has been transmuted, like instances that might be given, it appears by construction, into a murderous conspiracy how arbitrary and uncertain the law of treason against his natural person, in the same manner, was before the statute of twenty-fifth of Edward and by the same arguments, a conspiracy to the Third, whereby it came to pass that almost overturn that civil authority by direct force has every offense that was, or seemed to be, a breach again been assimilated, by further construction, of the faith and allegiance due to the King, was to a design to undermine monarchy by changes by construction, consequence, and interpretation, wrought through public opinion, enlarging grad- raised into the offense of high treason." This is ually into universal will; so that I can admit no the lamentation of the great Hale upon the state false proposition, however aside I may think it of this country previous to the passing of the from rational application. For as there is a con- statute, which, he says, was passed as a remestructive compassing, so also there is construct dial law, to put an end to them. And Lord Coke, ive deposing; and I can not, therefore, possibly considering it in the same light, says, in his third know what either of them is separately, nor how Institute, page 2, “The Parliament which pass. the one may be argued to involve the other. ed this statute was called (as it well deserved)

besides, many prisoners whose cases Parliamentum Benedictum ; and the like honor are behind, and whose lives may be involved in was given to it by the different statutes which your present deliberation; their names have been from time to time brought back treasons to its already stigmatized, and their conduct arraigned standard, all agreeing in magnifying and extollin the evidence you have heard, as a part of the ing this blessed act.” Now this statute, which conspiracy. It is these considerations which has obtained the panegyric of these great men, drive me into so large a field of argument, be- whom the Chief Justice in his charge looked up cause, by susficiently ascertaining the law in the to for light and for example, and whom the Atoutset, they who are yet looking up to it for pro- torney General takes also for his guide, woulu tection may not be brought into peril.

very little have deserved the high eulogium be. Gentlemen, I now proceed to establish, that a stowed upon it, is, though avowedly passed to compassing of the death of the King, within the destroy uncertainty in criminal justice, and to twenty-fifth of Edward the Third, which is the beat down the arbitrary constructions of judges, charge against the prisoner, consists in a traitor- lamented by Hale as disfiguring and dishonor• Here Mr. Erskine throws out, in passing, a ref. ed as to give birth to new constructions and un

ing the law, it had, nevertheless, been so word. erence to the explanation which he intends to give of the apparent contradiction of the books to his po certainties, instead of destroying the old ones. sitions as here laid above. Nothing is more remark. It would but ill have entitled itself to the de. able than the dexterity wit which he thus prepares nomination of a blessed statute, if it had not, it, the way for what is coming, and makes his speeches its enacting letter, which professed to remove o rompacted system of thought.

doubts, and to ascertain ‘he law, made use of

There are,

words "com

passing the

the statule

expressions the best known and understood; and the anomaly of the offense, which exists wholly it will be found, accordingly, that it cautiously in the INTENTION, and not in the overt act, re did so.

quired the preservation of the form of the indict In selecting the expression of COMPASSING ment. It is surely impossible to read this com. Meaning of the THE DEATH, it employed a term of mentary of Foster without seeing the true pur.

the most fixed and appropriate sig- pose of the statute. The common law had an. King's death.” nification in the language of English ciently considered, even in the case of a fellowlaw, which not only no judge or counsel, but subject, the malignant intention to destroy, as which no attorney or attorney's clerk, could equivalent to the act itself. But that noble spirit misunderstand; because, in former ages, before of humanity which pervades tre whole system of the statute compassing the death of any man our jurisprudence, had, before tne time of King had been a felony, and what had amounted to Edward the Third, eat out and destroyed this rule, such compassing, had been settled in a thousand too rigorous in its general application; but, as instances. To establish this, and to show also, Foster truly observes in the passage I have read, by no reasoning of mine, that the term com- “This rule, too rigorous in the case of the subject passing the death” was intended by the statute, the statute of treasons retained in the case of the when applied to the King, as high treason, to King, and retained also the very expression used have the same signification as it had obtained in by the law when compassing the death of a subthe law when applied to the subject as a felony, ject was felony." I shall reser to Mr. Justice Foster, and even to The statute, therefore, being expressly made a passage cited by the Attorney General him to remove doubts, and accurately to the common sell, which speaks so unequivocally and unan- define treason, adopted the ancient ex. lw use of tbe swerably for itself as to mock all commentary. pression of the common law, as appli- its teasing na The ancient writers," says Foster, “in treat- cable to selonious homicide, meaning ing of felonious homicide, considered the feloni- that the life of the Sovereign should remain an ous intention manifested by plain facts, in the exception, and that voluntas pro facto, the wicksame light, in point of guilt, as homicide itself. ed intention for the deed itself (as it regarded his The rule was, voluntas reputatur pro facto ;5 and sacred lise), should continue for the rule ; and, while this rule prevailed, the nature of the of- therefore, says Foster, the statute, meaning to sense was expressed by the term compassing the retain the law which was before general, redeath. This rule has been long laid aside as too tained also the expression. It appears to me, rigorous in the case of common persons. But therefore, incontrovertible, not only by the words in the case of the King, Queen, and Prince, the of the statute itself, but upon the authority of statute of treasons has, with great propriety, Foster, !hich I shall follow up by that of Lord retained it in its full extent and vigor; and, in Coke and Hale (contradicted by no syllable in describing the offense, has likewise retained the their works, as I shall demonstrate), that the stat. ancient mode of expression, when a man doth ute, as it regarded the security of the King's life, compass or imagine the death of our Lord the did not mean to enact a new security never known King,' &c., and thereof be upon sufficient proof, to the common law in other cases; but meant to provablement, attainted of open deed, by people suffer a common law rule, which formerly exist. of his condition: the words of the statute de- ed universally, which was precisely known, but scriptive of the offense, inust, therefore, be strict which was too severe in common cases, to rely pursued in every indictment for this species main as an exception in favor of the King's seof treason. It must charge that the defendant curity. I do, therefore, positively maintain, not did traitorously compass and imagine the King's as advocate merely, but in my own person, that, death; and then go on and charge the several within the letter and meaning of the Nothing a com acts made use of by the prisoner to effectuate statute, nothing can be a compassing peeing the his traitorous purpose. For the compassing the death of the King that would not, what would be the King's death' is the treason, and the overt in ancient times, have been a felony tovaru a felon acts are charged as the means made use of to in the case of a subject. For other subject. effectuate the intentions and imaginations of the wise Foster and Coke, as will be seen, are very heart. And, therefore, in the case of the regi- incorrect when they say the statute retained the cides, the indictment charged that they did trait- old law, and the appropriate word to express it; orously compass and imagine the death of the for if it went beyond it, it would, on the contrary, King, and the cutting off the head was laid as have been a new rule unknown to the common the overt act, and the person who was supposed law, enacted for the first time, for the preservato have given the mortal stroke was convicted tion of the King's lise. Unquestionably, the Leg. on the same indictment."

islature might have made such a rule ; but we are This concluding instance, though at first view not inquiring what it might have enacted, but it may appear ridiculous, is well selected as an what it has enacted. But I ought to ask pardon illustration. Because, though in that case there for having relapsed into any argument of my own could be no possible doubt of the intention, since upon this subject, when the authorities are more the act of a deliberate execution involves, in com- express to the purpose than any language I can mon sense, the intention to destroy life, yet still use. For Mr. Justice Foster himself expressly

says-Discourse 1st, of High Treason, p. 207, 5 The will is taken for the deed.

“All the words descriptive of the offense, name:

the estension of the crime of

Same views

Lord Coke.

ly, 'If a man doth compass or imagine, and there- / ing letter, yet Lord Hale says, in his Pleas of the of be attainted of open deed,' are plainly borrowed Crown, page 83, that “things were Lord Hale on from the common law, and therefore must bear so carried by parties and factions, in the same construction they did at common law." the succeeding reign of Richard the treason. Is this distinct? I will read it to you again : Second, that this statute was but little observed "All the words descriptive of the offense, name- but as this or that party got the better. So the ly, “If a man doth compass or imagine, and there. crime of high treason was in a manner arbitraof be attainted of open deed,' are plainly borrowed rily imposed and adjudged to the disadvantage of from the common law, and therefore must bear the party that was to be judged; whish, by vathe same construction they did at common law." rious vicissitudes and revolutions, mischiefed all Gentlemen, Mr. Justice Foster is by no means parties, first and last, and left a great unsettled

singular in his doctrine. Lord Coke, ness and unquietness in the minds of the people, maintained by the oracle of the law, and the best or- and was one of the occasions of the unhappiness

acle that one can consult, when stand of that King.'' ing for a prisoner charged with treason, as he “ All this mischief was produced by the stat. was the highest prerogative lawyer that ever ex

ute of the 21st of Richard the Second, ace of Rich isted, maintains the same doctrine. Even he, which enacted, That every man that ard Secoud even Coke, the infamous prosecutor of Raleigh, compasseth or pursueth the death of the King, or whose character with posterity, as an Attorney to depose him, or to render up his homage liege, General, my worthy and honorable friend would or be that raiseth people, and rideth against the disdain to hold, to be author of all his valuable King, to make war within his realm, and of that works; yet even this very Lord Coke himself be duly attainted and adjudged, shall be adjudged. holds precisely the same language with Foster. a traitor, of high treason against the Crown." For, in his commentary on this statute, in his “ This,” says Lord Hale, “was a great snare 3d Institute, p. 5, when he comes to the words, to the subject, insomuch that the statute, 1st of “ Doth compass," he says, "Let us see, first, Henry Fourth, which repealed it, recited that nc what the compassing the death of a subject was man knew how he ought to behave himself, to do, before the making of this statnte, when voluntas speak, or say, for doubt of such pains of treason, reputabatur pro facto.” Now what is the plain and, therefore, wholly to remove the prejudice English of this? The commentator says, “ I am which might come to the King's subjects, the stat. going to instruct you, the student, who are to ute 1st of Henry the Fourth, chap. 10, was made, learn from me the law of England, what is a which brought back treason to the standard of compassing of the death of the King. But that the 25th of Edward the Third." I can not do but by first carrying you to look into Now if we look to this statute of Richard the what was the compassing the death of a subject Second, which produced such mischiefs,

Its extent at the ancient common law; because the statute what are they? As far as it re-enacted the having made a compassing, as applied to the treason of compassing the King's death, and levyKing, the crime of high treason, which, at com- ing war, it only re-enacted the statute of Edward mon law, was felony in the case of a subject, it is the Third. But it went beyond it by the loose con. impossible to define the one without looking back struction of compassing to depose the King, and to ine records which illustrate the other.” This raising the people, and riding to make war, or & is so directly the train of Lord Coke's reasoning, compassing to depose him— terms new to the that, in his own singularly precise style of com- common law. The actual levying of force to mentating, he immediately lays before his reader imprison or depose the King, was already and a variety of instances from the ancient records and properly high treason, within the second branch year books, of compassing the subject's death. of the statute. So that this statute of Richard And what are they? Not acts wholly collateral the Second enlarged only the crime of compass to attacks upon life, dogmatically laid down by ing, making it extend to a compassing to impris. the law from speculations upon probable or pos- on or depose, which are the great objects of an sible consequences; but assaults with intent to actual levying of war, and putting a compassing murder ; conspiracies to waylay the person with to levy war on a footing with the actual levying the same intention ; and other murderous machi- it. It seems, therefore, most astonishing that nations. These were [the] only compassings be- any judge could be supposed to have decided, as sore the statute against the subject's life; and an abstract rule of law, that a compassing to im. the extension of the expression was never heard prison or depose the King was high treason, subof in the law, till introduced by the craft of polit- stantively, without a previous compassing of his ical judges when it became applicable to crimes death. For it was made so by this statute, 21st against the state.

of Richard the Second, and reprobated, stigma. Here, again, I desire to appeal to the highest tized, and repealed by the statute 1st of Henry authorities for this source of constructive treason. the Fourth, chap. 10," And so little effect,” says Although the statute of Edward the Third had Mr. Justice Blackstone, “ have over-violent laws expressly directed that nothing should be de- to prevent any crime, that, within two years after clared to be treason but cases within its enact this new law of treason respecting imprisonment

and deposing, this very prince was both deposed . See page 277 for his abusive treatment of and murdered." Ra'oigh

Gentlemen, this distinction, made by the hv

Bat the stat

distinction in the statute of Edward III.

Statate in


manc statute of Edward the Third, between trea- Gentlemen, the act of Henry the Fourth was Reasons for the son against the King's natural life, scarcely made when it shared the same

and rebellion against his civil author- fate wich the venerable law which it ute darepan

ity, and which the act of Richard the restored. Nobody regarded it. It was Second, for a season, broke down, is founded in borne down by factions, and, in those days, there wise and sound policy. successful attack may were no judges, as there are now, to hold firm be made upon the King's person by the maligni- the balance oi justice amid the storm of state ty of an individual, without the combination of Men could not then, as the prisoner can to-day. extended conspiracy, or the exertions of rebell-look up for protection to magistrates independen ious force; the law, therefore, justly stands upon of the Crown,s and awfully accountable in char the watch to crush the first overt manifestation acter to an enlightened world. As fast as arbi of so evil and detestable a purpose. Considering trary constructions were abolished by one statute, the life of the chief magistrate as infinitely im- unprincipled judges began to build them up again, portant to the public security, it does not wait till they were beat down by another. To recount for the possible consummation of a criine, which their strange treasons would be tiresome and disrequires neither time, combination, nor force to gusting ; but their system of construction, in the accomplish, but considers the traitorous purpose teeth of positive law, may be well illustrated by as a consummated treason. But the wise and two lines from Popehumane policy of our forefathers extended the severity of the rule, voluntas pro fucto, no further

"Destroy his fib and sophistry in vain,

The creature 's at his dirty work again." than they were thus impelled and justified by the necessity. And, therefore, an intention to levy

This system, both judicial and parliamentary, war and rebellion, not consummated, however became, indeed, so intolerable in the inmanifested by the most overt acts of conspiracy, terval between the reign of Henry the line temne al was not declared to be treason, and upon the Fourth, and that of Philip and Mary: plainest principle in the world, namely, that the that it produced, in the first year of the latter King's regal capacity, guarded by all the force reign, the most remarkable statuto that ever and authority of the state, could not, like his nat-passed in England,'' repealing not only all for. URAL existence, be overthrown or endangered mer statutes upon the subject, except that of in a moment, by the first machinations of the Edward the Third, but also stigmatizing, upou traitorous mind of an individual, or even by the the records of Parliament, the arbitrary construc unarmed conspiracy of numbers; and, therefore, tions of judges, and limiting them, in all times, this humane and exalted institution, measuring to every letter of the statute. I will read to you the sanctions of criminal justice by the standard Lord Coke's commentary upon the subject. In of civil necessity, thought it sufficient to scourge his third Institute, page 23, he says, “ Before the and dissipate unarmed conspirators by a less vin- act of the 25th of Edward the Third, so many dictive proceeding.

treasons had been made and declared, and in These new treasons were, however, at length such sort penned, as not only the ignorant and This extension all happily swept away on the acces- unlearned people, but also learned and expe. done a way with sion of King Henry the Fourth, which by Henry IV. brought the law back to the standard of his auditors, but he does it only to gather a strik. of Edward the Third. And, indeed, in reviewing general truth, which, in returuing, he applies ing the history of this highly savored island, it is with new force to the case in hand. most beautiful, and, at the same time, highly en- bis accession, the judges were made independent of

8 At the recommendation of George III., soon after couraging to observe by what an extraordinary the Crown, by holding their offices for life at a cer concurrence of circumstances, under the super- tain fixed salary. intendence of a benevolent Providence, the liber- . Among the new treasons created during this inties of our country have been established. Amid terval, particularly in the reign of Henry VIII., may the convulsions arising from the maddest ambi. be reckoned the following: namely, clipping money tion and injustice, and while the state was altern. breaking prison or rescue when the prisoner is com ately departing from its poise on one side, and on mitted for treason, burning houses to extort money the other the great rights of mankind were still stealing of cattle by Welslımen, counterfeiting for

eign coin, willful poisoning, execrations against the insensibly taking root and flourishing. Though King, calling him opprobrious names by public writsometimes monarchy threatened to lay them pros- ing, counterfeiting the sign manual or signet, refus. trate, though aristocracy occasionally undermined ing to abjare the Pope, deflowering, or marrying them, and democracy, in her turn, rashly tram- without the royal license any of the King's children, pled on them, yet they have ever come safely sisters, aunts, nephews, or nieces, bare solicitation round at last. This awful and sublime contem- of the chastity of the queen or princess, or advances plation should teach us to bear with one another made by themselves, marrying with the King by a when our opinions do not quite coincide; extract

woman not a virgin, without previously discovering ing final harmony from the inevitable differen- to bim her previous anchaste life, judging or believ. ces which ever did, and ever must, exist among been lawfully married to Anne of Cleve, derogating

ing (manifested by an overt act) the King to have men."

from the King's royal style and title, impugning his

supremacy, assembli riotously to the number of ? This is one of the many instances in which Mr. twelve, and not dispersing on proclamation. Erskine digresses for a moment to relieve the minds 10 1 Mary, stat. 1, c. i.

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