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of Mary,

ute.

men, were trapped and snared, *

so as the

But, gentlemen, the most important part of misch es before Edward the Third, of the uncer. Lord Coke's .commentary on this statate is you tainty of what was treason and what not, became behind, which I shall presently read to you, and so frequent and dangerous, as that the safest and to which I implore your most earnest attention. zurest remedy was, by this excellent act of Mary, I will show you by it, that the unfortunate man, to abrogate and repeal all but [except] only such whose innocence I arn defending, is arraigned as are specified and expressed in this statute of before you of high treason, upon evidence not Edward the Third. By which law the safety of only wholly repugnant to this particular statute, both the King and of the subject, and the preser- but such as never yet was heard of in England vation of the common weal, were wisely and suf- upon any capital trial; evidence which, even with ficiently provided for, and in such certainty that all the attention you have given to it, I defy any nihil relictum est arbilrio jridicis."

one of you, at this moment, to say of what it conThe whole evil, indeed, to be remedied and sists; evidence, which (since it must be called intent and avoided, by the act of Queen Mary, was by that name) I tremble for my boldness in preOlete oorweee the arbitrium judicis, or judicial con- suming to stand up for the life of a man, when I

struction beyond the letter of the stat- am conscious that I am incapable of understanding

The statute (of Edward III.) itself was from it, even what acts are imputed to him ; evi. perfect, and was restored in its full vigor; and dence, which has consumed four days in the readto suppose, therefore, that when an act was ex. ing; not in reading the acts of the prisoner, but pressly made, because judges had built treasons the unconnected writings of men unknown to one by constructions beyond the law, they were to another, upon a hundred different subjects; evide left, consistently with their duty, to go on dence, the very listening to which has deprived building again, is to impute a folly to the Leg- me of the sleep which nature requires ; which islature which never yet was imputed to the has filled my mind with unremitting distress and framers of this admirable statute. But this ab- agitation, and which, from its discordant, uncon. surd idea is expressly excluded, not merely by nected nature, has suffered me to reap no advantthe statute, according to its plain interpretation, age from the indulgence, which I began with but according to the direct authority of Lord thanking you for; but which, on the contrary, has Coke himself, in his commentary upon it. For almost set my brain on fire, with the vain endeavhe goes on to say, “Two things are to be ob- or of collecting my thoughts upon a subject never served : first, that the word expressed, in the designed for any rational course of thinking.' statute of Mary, excludes all implications or in- Let us, therefore, see how the unexampled ferences whatsoever ; sccondly, that no former condition I am placed in falls in with Remarko of attainder, judgment, precedent, resolution, or Lord Coke upon this subject, whose au. Lord Coko opinion of judges, or justices, of high treason, thority is appealed to by the Crown itself; and o:her than such as are specified and expressed let us go home and burn our books if they are to in the statute of Edward the Third, are to be blazon forth the law by eulogium, and accurates foriewed or drawn into example. For the words ly to define its protector, which yet the subject be plain and direct; that from henceforth no act, is to be totally cut off from, when, even under the deed, or offense shall be taken, had, deemed, or sanction of these very authors, he stands upon his adjudged to be high treason, but only such as are trial for his existence. Lord Coke says, in the declared and expressed in the said act of the 25th same Commentary, page 12, that the statute had of Edward the Third, any act of Parliament or not only accurately defined the charge, but the statute after 25th of Edward the Third, or any nature of the proof on which alone a man shall other declaration or matter, to the contrary not be attainted of any of the branches of high trea. withstanding."

son. “It is to be observed," says he, “that the Gentlemen, if the letter of the statute of Mary, word in the act of Edward the Third is provaShcwn by its when coupled with Lord Coke's com- blement ; that is, upon direct and manifest proof,

mentary, required further illustration, not upon conjectural presumptions, or inferences, it would amply receive it from the PREAMBLE, or strains of wit, but upon good and sufficient which ought to be engraved on the heart of ev- proof. And herein the adverb provably hath a ery man who loves the King, or who is called to great force, and signifieth a direct plain proof, any share in his councils; for, as Lord Coke ob- which word the Lords and Commons in Parliaserves in the same commentary : It truly recites ment did use, for that the offense of treason was that “the state of a King standeih and consisteth more assured by the love and savor of the 13 We have here one of those sallies of feeling subjects toward their Sovereign, than in the dread which sometimes occur in the midst of Erskine's arand fear of laws, made with rigorous and extreme guments. An immense mass of evidence in the punishment; and that laws, justly made for the shape of correspondence had been brought forward preservation of the common weal, withont ex- by the Crown, for the purpose of showing, among treme punisament or penalty, are more often and other things, the treasonable designs of another so for the most part better kept and obeyed, than the London Corresponding Society," of which Har

ciety, called the “Constitutional Society," and that laws and statutes made with extreme punish-dy was the secretary, was closely connected with it,

and advocated the same principles. No wonder that 1: Nothing was left to the art itrary decision of the Erskine spoke with impatience of such a mode uf ja lg.

aiming at the lives of men.

preamble.

ment."

Z z

so heinous, and was so hea rily and severely pun- | and precise evidence, and deciding upon no inisheu, as none other the like, and therefore the tention that does not result with equal clearness offender must be provably attainted, which words from the fact. This is the universal demand of are as forcible as upon direct and manifest proof. justice in every case, criminal or civil. How Note, the word is not probably, for then commune much more, then, in this, when the judgment is argumentum might have served, but the word is every moment in danger of being swept away 'provably be attainted.'

into the fathomless abyss of a thousand volumes; Nothing can be so curiously and tautologously where there is no anchorage for the understandlabored as this commentary, of even that great ing; where no reach of thought can look round prerogative lawyer Lord Coke, upon this single in order to compare their points, nor any memo word in the statute. And it manifestly shows ry be capacious enough to retain even the im that, so far from its being the spirit and princi- perfect relation that can be collected from them! ple of the law of England, to loosen the construc- Gentlemen, my mind is the more deeply affecttion of this statute, and to adopt rules of con- ed with this consideration by a very lllustration from struction and proof, unusual in trials for other recent example in that monstrous mentor Warren crimes, on the contrary, the Legislature did not phenomenon which, under the name Hastinga even leave it to the judges to apply the ordinary of a trial, has driven us out of Westminster Hall rules of legal proof to trials under it, but admon- for a large portion of my professional life. No ished them to do justice in that respect in the very man is less disposed than I am to speak lightly body of the statute.

of great state prosecutions, which bind to their Lord Hale treads in the same path with Lord duty those who have no other superiors, nor any Coke, and concludes this part of the subject by other control; last of all am I capable of even the following most remarkable passage (vol. i., glancing a censure against those who have led shap. xi., 86):

to or conducted the impeachment, because I re“Now, although the crime of high treason is spect and love many of them, and know them to Remarks of the greatest crime against faith, duty, be among the best and wisest men in the nation. Lord Hale. and human society, and brings with it I know them, indeed, so well, as to be persuaded the greatest and most fatal dangers to the gove that, could they have foreseen the vast field it ernment, peace, and happiness of a kingdom or was to open, and the length of time it was to state ; and, therefore, is deservedly branded with occupy, they never would have engaged in it.13 the highest ignominy, and subjected to the great- For I defy any man, not illuminated by the Di. est penalties that the laws can inflict; it appears, vine Spirit, to say, with the precision and cerfirst, how necessary it was that there should be tainty of an English judge deciding upon evi. some known, fixed, settled boundary for this great dence before him, that Mr. Hastings is guilty or crime of treason, and of what great importance not guilty !—for who knows what is before him, the statute of 25th of Edward the Third was, in or what is not? Many have carried what they order to that end. Second, how dangerous it is to knew to their graves, and the living have lived depart from the letter of that statute, and to mul- long enough to forget it. Indeed, I pray God tiply and enhance crimes into treason by ambigu- that such another proceeding may never exist in ous and general words, such as accroaching royal England; because I consider it as a dishonor to power, subverting fundamental laws, and the like. the Constitution, and that it brings, by its exam. And tàird, how dangerous it is by construction ple, insecurity into the administration of justice. and analogy, to make treasons where the letter Every man in civilized society has a right to of the law has not done it. For such a method hold bis life, liberty, property, and reputation, admits of no limits or bounds, but runs as far and under plain laws that can be well understood as wide as the wit and invention of accusers, and and is entitled to have some limited specific part the detestation of persons accused, will carry of his conduct compared and examined by their men."

standard. But he ought not for seven years, no, Surely, the admonition of this supereminent nor for seven days, to stand as a criminal before

judge ought to sink deep into the heart the highest human tribunal, until judgment is Application or

of every judge, and of every juryman, bewildered and confounded, to come at last, per

who is called to administer justice un- haps, to defend himself, broken down with fa der this statute ; above all, in the times and un- tigue and dispirited with anxiety, which, indeed, der the peculiar circumstances which assemble is my own condition at this moment, who am ns in this place. Honorable men, seeling, as they only stating the case of another. What, then, ought, for the safety of government, and the tran- must be the condition of the unfortunate person quillity of the country, and naturally indignant whom you are trying ? against those who are supposed to have brought The next great question is, how the admoni. hem into peril, ought, for that very cause, to tions of these great writers are to be reconciled proceed with more abundant caution, lest they should be surprised by their resentments or their

13 It was the good fortune of Mr. Erskine w reme fears. They ought to advance, in the judgments when he presided as Chancellor on the trial of Lord

dy, in his own person, the evil thas complained of they form, by slow and trembling steps; they Melville. He insisted that the House of Lords ought even to fall back and look at every thing should sit daily, like every other criminal tribunal, again, lest a false light should deceive them, ad- till the verdict was delivered; and thus completed mitting no fact but upon the foundation of clear the case in fourteen days.

thegi to the present case.

otetements rec. unciled with

the phrase.

with what is undoubtedly to be found in other by the prisoner to effect his traitorsus purpose The foregoing parts of their works. 4 I think, then, and as this rule was too frequently departed

I do not go too far, when I say that from, the statute of the seventh of King Will o telefon me it ought to be the inclination of every iamló enacted, for the benefit of the prisoner, albeidere said. person's mind who is considering the that no evidence should ever be given of any meaning of any writer (particularly if he be a overt act not charged in the indictment.:6 The person of superior learning and intelligence), to charge, therefore, of the overt acts in the indictreconcile as much as possiblo all he says upon ment, is the notice (enacted by statute to be any subject, and not to adopt such a construction given to the prisoner for his protection) of the as necessarily raises up one part in direct oppo- means by which the Crown is to submit to the sition to another. The law itself, indeed, adopts jury the existence of the traitorous purpose, this sound rule of judgment in the examination which is the crime alleged against him, and in of every matter which is laid before it for a pursuance of which traitorous purpose the overt sound construction; and the judges, therefore, acts must also be charged to have been commitare bound by duty, as well as reason, to adopt it. ted. Whatever, therefore, is relevant These reasona

It appears to me, then, that the only ambigui- or competent evidence to be received over act coin The key to this ty which arises, or can possibly arise, in support of the traitorous intention, stitutes the palaces the wey in the examination of the great au- is a legal overt act; and what acts the crime. plurase overt act. thorities, and in the comparison of are competent to that purpose is (as in all other them with themselves, or with one another, is cases) matter of law for the judges. But whethfrom not rightly understanding the meaning of er, after the overt acts are received upon the the term overt act as applied to this species record as competent, and are established by of treason. The moment you get right upon the proof upon the trial, they be sufficient or insultrue meaning and signification of this expression, ficient, in the particular instance, to convince the the curtain is drawn up, and all is light and cer- jury of the traitorous compassing or intention, tainty.

is a mere matter of fact, which, from its very Gentlemen, an orert act of the high treason nature, can be reduced to no other standard than Meaning of charged upon this record, I take, with that which each man's own conscience and un.

great submission to the court, to be derstanding erects in his mind as the arbiter of plainly and simply this : The high treason his judgment. This doctrine is by no means charged is the compassing or imagining (in other new, nor peculiar to high treason. It pervades words, the intending or designing) the death of the whole law, and may be well il. Thus it belonge the King—I mean his natural death—which be- lustrated in a memorable case lately become line ing a hidden operation of the mind, an “overt decided upon writ of error in the evidence. act” is any thing which legally proves the ex- House of Lords, and which must be in the memistence of such traitorous design and intention. ory of all the judges now present who took a I say, then, that the design against the King's part in its decision. There the question was, natural life is the high treason under the first whether, upon the establishment of a number of branch of the statute; and whatever is evidence facts by legal evidence, the defendant had knowlchat may be legally laid before a jury to judge edge of a fact, the knowing of which would of the traitorous intention, is a legal overt act; | leave him without defense. To draw that ques. because an overt act is nothing but legal evidence tion from the jury to the judges, I demurred to embodied upon the record.

the evidence, saying, that though each part of it The charge of compassing being a charge of was legally admitted, it was for the law, by the Reasons for intention, which, without a manifesta- mouth of the judges, to pronounce whether this

tion by conduct, no human tribunal fact of knowledge could legally be inferred from

could try, the statute requires, by its it. But the Lords, with the assent of all the very letter (but without which letter reason judges, decided, to my perfect satisfaction, that must have presumed), that the intention to cut such a demurrer to the evidence was irregular off the sovereign should be manifested by an and invalid ; that the province of the jury over open act. And as a prisoner charged with an the effect of evidence ought not to be so trang intention could have no notice how to defend ferred to the judges, and converted into matter himself without the charge of actions from of law; that what was relevant evidence to corne whence the intention was to be imputed to him, before a jury was the province of the court, bui it was always the practice, according to the that the conclusion to be drawn from admissible sound principles of English law, to state upon evidence was the unalienable province of the the face of the indictment the overt act, which country. the Crown charges, as the means made use of To apply that reasoning to the case before us

The matter to be inquired of here is the fact of 14 Mr. Erskine here comes to the second great di. the prisoner's intention, as, in the case I have just vision of his legal argument. It is really an answer to the argument of the Attorney General, though in 157 and 8 William III., c. iii., s. 8. another form. His object is to show how the au- 16 That is, any overt act amounting to a distinct, thorities adduced by the Crown could be reconciled independent charge. But if an overt act, not charged with his preceding statement of the law. This he in the indictment, amount to a direct proof of any coes with an ingenuity and force which can not fail other overt act which is charged, it may be given in to interest the reader.

evidence to prove such overt act.

specifying tbe overt act.

acts charged

of the King

Lord Hur

cited, it was the fact of the defendant's knowledge. , fore high prerogative judges, and ..nder cirer m So the jury are

The charge of a conspiracy to depose stances when, in any country but England, iheis bere te le code the King is, therefore, laid before you trial would have been a mockery, or their execu

to establish that intention. Its com- tion have been awarded without even the forms the natural le petency to be laid before you for that of trial; yet in England, that sacred liberty wbicb

purpose is not disputed. I am only has forever adorned the Constitution, refused to contending (with all reason and authority on my sacrifice to zeal or enthusiasm either the subside) that it is to be submitted to your conscien- stance or the forms of justice. Hear vienf.. ces and understandings, whether, even if you be- what the Chief Baron pronounced upon lieved the overt act, you believe also that it pro- that occasion : “These persons are to be pro ceeded from a traitorous machination against the ceeded with according to the laws of the land, life of the King. I am only contending that these and I shall speak nothing to you but what are two beliefs must coincide to establish a verdict of the words of the law. By the statute of Edward guilty. I am not contending that, under (cer- the Third, it is made high treason to compass tain) circumstances, a conspiracy to depose the and imagine the death of the King : in no case King, and to annihilate his regal capacity, may else imagination or compassing, without an actnot be strong and satisfactory evidence of the in- ual effect, is punishable by law.” He then tention to destroy his life-I only contend that in speaks of the sacred life of the King, and, speak. this, as in every other instance, it is for you to ing of the treason, says, “ The treason consists collect or not to collect this treason against the in the wicked imagination which is not apparent; King's life, according to the result of your con- but when this poison swells out of the heart, and scientious belief and judgment, from the acts of breaks forth into action, in that case it is high che prisoner laid before you, and that the estab- treason. Then, what is an overt act of an im.. lishment of the overt act, even if it were estab- agination, or compassing of the King's death! lished, does not establish the treason against the Truly it is any thing which shows what the im King's life by a consequence of law. On the con- agination of the heart is.” trary, I affirm that the overt act, though punish- Indeed, gentlemen, the proposition is so clear able in another shape as an independent crime, that one gets confounded in the argu. Further es i is a dead letter upon this record, unless you be- ment from the very simplicity of it. Pengertian lieve, exercising your exclusive jurisdiction over But still I stand in a situation which I principle. the facts laid before you, that it was committed am determined, at all events, to fulfill to the ut in accomplishment of the treason against The most; and I shall, therefore, not leave the matter NATURAL LIFE OF THE King.

upon these authorities, but will bring it down to Gentlemen, this particular crime of compass- our own times, repeating my challenge to have peculiar nature ing the King's death is so complete an one single authority produced in contradiction

anomaly, being wholly seated in uncon- Lord Coke, in his 3d Institute, pages 11 and 12, summated intention, that the law can not depart says, “ The indictment must charge that the pris. from describing it according to its real essence, oner traitorously compassed and imagined the even when it is followed by his death. A man death and destruction of the King." He says, can not be indicted for killing the King, as was too, “There must be a compassing or imagina settled in the case of the Regicides of Charles I., tion; for an act without compassing, intert, or after long consultation among all the judges. It imagination, is not within the Act, as appeareth was held that the very words of the statute must by the express letter thereof: Et actus non facit be pursued; and that, although the King was reum nisi mens sit rea." Nothing in language actually murdered, the prisoners who destroyed can more clearly illustrate my proposition. The him could not be charged with the act itself, as indictment, like every other indictment, must nigh treason, but with the compassing' of his charge distinctly and specifically the crime. death—the very act of the executioner in behead. That charge must, therefore, be in the very ing him being only laid as the “overt act" upon the words of the statute which creates the crime record. There, though the overt act was so con- the crime created by the statute, not being the nected with, as to be even inseparable from the perpetration of any act, but being, in the rigortraitorous intention, yet they were not confound- ous severity of the law, the very contemplation, ed because of the effect of the precedent in dis- intention, and contrivance of a purpose directed similar cases. And although the Regicides came to an act. That contemplation, purpose, and con. to be tried immediately on the restoration of the trivance must be found to exist, without which, King, in the dayspring of his authority, and be says Lord Coke, there can be no compassing; and

as the intention of the mind can not be investi. 17 This was the great point on which Erskine gated without the investigation of conduct, the rested his hopes of success. If he could fasten this overt act is required by the statute, and must be responsibility on the jury, and make them act under laid in the indictment and proved. It follows It, he felt that his cause was safe. But the danger from this deduction, that upon the clear princi. was, that, adopting the Attorney General's princi. ples, they might consider the writing of letters," ples of the English law, every act may be laid as &c., mentioned by Lord Hale, as tending ultimately

an overt act of compassing the King's death, to subvert the monarchy, and thus be led to a ver. which may be reasonably considered to be rele. dict of guilty. Hence the intense earnestness with vant and competent to manifest that intention which he goes on to argue this point.

For were it otherwise, it would ba shutting ou.

of this crime.

from the view of the jury certain conduct of the saing his purpose with that foreknow.edge, the prisoner, which might

, according to circumstan- intention to produce the consequence may be ces, serve to manifest the criminal intention of fairly imputed. But then all this is matter of his n.ind. Hence, as more than one overt act fact for the jury from the evidence, not matter of may be laid, and even overt acts of different law for the court, further than it is the privilege kinds, though not in themselves substantively and duty of the judge to direct the attention of treasɔn, the judges (in the case of the Regicides] the jury to the evidence, and to state the law as appear to have been justified in law, when they it may result from the different views the jury ruled them to be overt acts of compassing the may entertain of the facts. And if such acts death of the King. For, they are such acts as could not be laid as overt acts, they could not be before the statute of King William (which re- offered in evidence; and if they could not be of quired that the indictment should charge all overt fered in evidence, the mind of the prisoner, which acts) would have been held to be relevant proof- it was the object of the trial to lay open as a clue of which relevancy of proof the judges are to judge to his intention, would be shut up and concealed as matter of law-and, therefore, being relevant from the jury, whenever the death of the Soverproof, must also be relevant matter of charge, eign was sought by circuitous but obvious means, because nothing can be relevantly charged which instead of by a direct and murderous machinamay not also be relevantly admitted to proof. tion. But when they are thus submitted, as These observations explain, to the meanest ca- matter of charge and evidence, to prove the pacity, in what sense Lord Coke must be under traitorous purpose which is the crime, the secustood, when he says, on the very same page, that rity of the King and of the subject is equally pro“A preparation to depose the King, and 10 take vided for. All the matter woich has a relevar.. the King by force and strong hand, until he has cy to the crime is chargeable and provable, not yielded to certain demands, is a sufficient overt substantively to raise from their establishment a act to prove the compassing of the King's death." | legal inference, but to raise a presumption in fact, He does not say, as a proposition of law, that he capable of being weighed by the jury, with all who prepares to seize the King, compasseth his the circumstances of the transaction, as offered death; but that a preparation to seize him is a to the Crown and the prisoner. And it is the sufficient overt act to prove the compassing; and province of the jury finally to say—not what was he directly gives the reason, " Because of the the possible or the probable consequence of the strong tendency it has to that end.” This latter overt act laid in the indictment, but whether it sentence destroys all ambiguity.18 I perfectly has brought them to a safe and conscientions agree with Lord Coke, and I think every judge judgment of the guilt of the prisoner, i. e., of his would so decide, upon the general principles of guilt in compassing the death of the King, which law and evidence, without any resort to his au. is the treason charged in the indictment. Lord thority for it; and for this plain and obvious rea- Hale is if possible, more direct and explicit upon son : The judges who are by law to decide upon the subject. He says, page 107, “The the relevancy or competency of the proof, in ev- words .compass' or 'imagine' are of a ery matter, criminal and civil, have immemori- great latitude ; they refer to the purpose or deally sanctioned the indispensable necessity of sign of the mind or will, though the purpose or charging the traitorous intention as the crime, design takes not effect. But compassing or im. before it was required by the statute of King agining singly of itself, is an internal act, and, William. As the crime is in its nature invisible without something to manifest it, could not pos. and inscrutable, until manifested by such conduct sibly fall under any judicial cognizance but of as in the eye of reason is indicative of the inten- God alone; and therefore this statute requires tion, which constitutes the crime ; no overt act such an overl act as may render the compassing is, therefore, held to be sufficient to give jurisdic- or imagining capable of a trial and sentence by tion, even to a jury to draw the inference in fact human judicatures.” Now, can any man possi of the traitorous purpose, but such acts from bly derive from such a writing (proceeding, too, whence it may be reasonably inferred. And, from an author of the character of Lord Hale), therefore, as the restraint and imprisonment of a that an overt act of compassing might, in nis prince has a greater tendency to his destruction judgment, be an act committed inadvertently than in the case of a private man, such conspir- without the intention ? Can any man gather acies are admitted to be laid as overt acts, upon from it, that a man, by falling into bad company, this principle—that is a man does an act from can be drawn in to be guilty of this species of whence either an inevitable or a mainly probable treason by rash conduct, while the love of bis consequence may be expected to follow, much Sovereign was glowing in his bosom ? Can inore if he persists deliberately in a course of there be any particular acts which can entitle a conduct, leading certainly or probably to any judge or counsel to pronounce, as a matter of given consequence, it is reasonable to believe law, what another man intends ? or that what a that he foresaw such consequence, and by pur- man intends is not a matter of fact? Is here 18 Mr. Erskine had quoted from Lord Coke on a

any man that will meet the matter fairly, and adpreceding page in support of bis views respecting vance and support that naked proposition! At high treason (r. 718), and he here gives his prom. all events, it is certainly not a proposition to be ised reconciliation of Coke's statements which had dealt with publicly, because the man whose mind appea -ed contradictory

is capable even of conceiving it should be treas.

Lord Hale

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