intention to de death, or, in other words, the traitorous intentior overt act. them are the crimes before you. The prisoner is not charged with a conspiracy against the King's political government, but against his natural life. He is not accused of having merely taken steps to depose him from his authority, but with having done so with the intention to bring him to death. 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 cœpiracy 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 death, 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 intentioning, 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 the pursuit of a system of conduct, which leads in probable consequences to the death of the King, may legally (if any such be before you) affect the consideration of the traitorous purpose charged by the record; and I am not afraid of trusting you with the evidence. How far any given act, or course of acting, independent of intention, may lead probably or inevitably to any natural or political consequence, is what we have no concern with. These may be curious questions of casuistry or politics; but it is wickedness and folly to declare that consequences unconnected even with intention or consciousness, shall be synonymous in law with the traitorous mind, although the traitorous mind alone is arraigned, as constituting the crime. involved in this case. this intention is a ry, from the Thirdly, that the charge in the indictment, of compassing the King's death, is not The existence of laid as legal inducement or introduc- fact to be in tion, to follow as a legal inference ferred by the ju from the establishment of the overt overt acts, and act, but is laid as an averment of A of law. FACT; and, as such, the very gist of the indictment, to be affirmed or negatived by the verdict of Guilty or Not guilty.3 not a deduction The doctrines of Hale and other great authorities in those posi not controverted It will not (I am persuaded) be suspected by the Attorney General, or by the court, that I am about to support these doctrines by opposing my own judgment to the authoritative writings of the tons. venerable and excellent Lord Hale, whose memory will live in this country, and throughout the enlightened world, as long as the administration of pure justice shall exist. Neither do I wish to oppose any thing which is to be found in the other learned authorities principally relied upon by the Crown, because all my positions are perfectly consistent with a right interpretation of them; and because, even were it otherwise, 1 could not expect successfully to oppose them by any reasonings of my own, which can have no I. Gentlemen, the first question consequently Part First: for consideration, and to which I must, The law of therefore, earnestly implore the attention of the court, is this-WHAT IS THE LAW UPON THIS MOMENTOUS SUBJECT? And recollecting that I am invested with no authority, I shall not presume to offer you any thing of my own. Nothing shall proceed from myself upon this part of the inquiry, but that which is 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 rely for the establishment of doctrines, not less essential to the general liberties of England, than to the particular consideration which constitutes our present duty. (1.) The treason in question di rected against the natural life of the King, &c. First, then, I maintain, that that branch of the statute 25th of Edward the Third, which declares it to be high treason, when a man doth compass or imagine the death of the King, of his lady the Queen, or of his eldest son and heir,” was intended to guard, by a higher sanction than felony, the NATURAL LIVES of the King, Queen, and Prince; and that no act, therefore (either inchoate or consummate), of resistance to, or rebellion against, the King's regal capacity, amounts to high treason of compassing his death, unless where they can be charged upon the indictment, and proved to the satisfaction of the jury at the trial, as overt acts committed by the prisoner, in fulfillment of a traitorous intention to destroy the King's natural life. Secondly, that the compas ng the King's sistent with acknowledged authorities, and with the established principles of the English law. I can do this with the greater security, because my respectable and learned friend, the Attorney General, has not cited cases which have been the disgrace of this country in former times, nor asked you to sanction by your judgment those bloody murders, which are recorded by them as acts of English justice; but, as might be expected of an honorable man, his expositions of the law (though 3 The statement contained in these three proposi. tions, if admitted, overthrew at once the entire argument of the Attorney General as to the question of law. He had blended, as it were, the two kinds of treason mentioned in the preceding note. He insisted that it was enough for him to prove that the prisoner's acts amounted to a "levying of war" against the King's government, and that this, by the intendment of law, was a compassing of his death. Mr. Erskine shows that the jury must take the whole as a question of fact-" Did he aim to destroy the King's natural life." This question he lays on the consciences of the jury. ed by the peculiar the case. ous intention against his NATURAL LIFE; and tha: nothing short of your firm belief of that detesta ble intention, from overt acts which you find him to have committed, can justify his conviction. That I may keep my word with you in building my argument upon nothing of my own, I hope my friend Mr. Gibbs [his associate in the defense] will have the goodness to call me back if he finds me wandering from my engagement, that I may proceed step by step upon the most venerable and acknowledged authorities of the law. Lord Hale. In this process I shall begin with Lord Hale, who opens this important subject by Evidence from stating the reason of passing the stat- authorities: ute of the twenty-fifth of Edward the Third, on which the indictment is founded. Lord Hale says, in his Pleas of the Crown (vol. i., page 82), that "at common law there was a great latitude used in raising offenses to the crime and punishment of treason, by way of interpretation and arbitrary construction, which brought in great uncertainty and confusion. Thus, accroaching (i. e., encroaching on) royal power. was a usual charge of treason anciently, though a very uncertain charge; so that no man could tell what it was, or what defense to make to it." Lord Hale then goes on to state various instances of vexation and cruelty, and concludes with this striking observation: "By these and the like instances that might be given, it appears how arbitrary and uncertain the law of treason was before the statute of twenty-fifth of Edward the Third, whereby it came to pass that almost every offense that was, or seemed to be, a breach of the faith and allegiance due to the King, was by construction, consequence, and interpretation, raised into the offense of high treason." This is the lamentation of the great Hale upon the state of this country previous to the passing of the statute, which, he says, was passed as a reme I think them frequently erroneous) are drawn from the same sources, which I look up to for doctrines so very different. I find, indeed, throughout the whole range of authorities (I mean those which the Attorney General has properly considered as deserving that name and character) very little contradiction. As far as I can discover, much more entanglement has arisen from now and then a tripping in the expression, than from any difference of sentiment among eminent and virtuous judges, who have either examined or sat in judgment upon this momentous subject. Gentlemen, before I pursue the course I have A very wide field prescribed to myself, I desire most of argument open distinctly to be understood, that in circumstances of my own judgment the most successful argument that a conspiracy to depose the King does not necessarily establish the treason charged upon this record, is totally beside any possible judgment that you can have to form upon the evidence before you. The truth is, throughout the whole volumes [of evidence] that have been read, I can trace nothing that even points to the imagination of such a conspiracy; and, consequently, the doctrines of Coke, Hale, and Foster, on the subject of high treason, might equally be detailed in any other trial that has ever been proceeded upon in this place. But, gentlemen, I stand in a fearful and delicate situation. As a supposed attack upon the King's civil authority has been transmuted, by construction, into a murderous conspiracy against his natural person, in the same manner, and by the same arguments, a conspiracy to overturn that civil authority by direct force has again been assimilated, by further construction, to a design to undermine monarchy by changes wrought through public opinion, enlarging gradually into universal will; so that I can admit no false proposition, however aside I may think it from rational application. For as there is a constructive 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 know what either of them is separately, nor how the one may be argued to involve the other. There are, besides, many prisoners whose cases are behind, and whose lives may be involved in your present deliberation; their names have been already stigmatized, and their conduct arraigned in the evidence you have heard, as a part of the conspiracy. It is these considerations which drive me into so large a field of argument, because, by sufficiently ascertaining the law in the outset, they who are yet looking up to it for protection may not be brought into peril. considering it in the same light, says, in his third Institute, page 2, "The Parliament which pass. ed this statute was called (as it well deserved) Parliamentum Benedictum; and the like honor was given to it by the different statutes which from time to time brought back treasons to its standard, all agreeing in magnifying and extolling this blessed act." Now this statute, which has obtained the panegyric of these great men, whom the Chief Justice in his charge looked up to for light and for example, and whom the Attorney General takes also for his guide, would very little have deserved the high eulogium bestowed upon it, if, though avowedly passed to destroy uncertainty in criminal justice, and to beat down the arbitrary constructions of judges, lamented by Hale as disfiguring and dishonoring the law, it had, nevertheless, been so word Gentlemen, I now proceed to establish, that a compassing of the death of the King, within the twenty-fifth of Edward the Third, which is the charge against the prisoner, consists in a traitor• Here Mr. Erskine throws out, in passing, a ref-ed as to give birth to new constructions and unerence to the explanation which he intends to give of the apparent contradiction of the books to his positions as here laid above. Nothing is more remarkable than the dexterity with which he thus prepares the way for what is coming, and makes his speeches • Compacted system of thought. certainties, instead of destroying the old ones. It would but ill have entitled itself to the de nomination of a blessed statute, if it had not, ir. its enacting letter, which professed to remove doubts, and to ascertain the law, made use of expressions the best known and understood; and it will be found, accordingly, that it cautiously did so. words "com passing the phrase shows its meaning in the statute. the anomaly of the offense, which exists wholly in the INTENTION, and not in the overt act, re 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 purthe most fixed and appropriate sig-pose of the statute. The common law had anKing'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 the 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 refer 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 self, which speaks so unequivocally and unan- define treason, adopted the ancient ex- law use of the swerably for itself as to mock all commentary. pression of the common law, as appli"The ancient writers," says Foster, "in treat-cable to felonious homicide, meaning ing of felonious homieide, 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 life), should continue for the rule; and, while this rule prevailed, the nature of the of- therefore, says Foster, the statute, meaning to fense 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, which 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 offensc, must, 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 se of 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 acts made use of by the prisoner to effectuate statute, nothing can be a compassing his traitorous purpose. For the compassing the death of the King that would not, the King's death' is the treason, and the overt in ancient times, have been a felony acts are charged as the means made use of to in the case of a subject. For other 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 King, and the cutting off the head was laid as the overt act, and the person who was supposed to have given the mortal stroke was convicted on the same indictment." This concluding instance, though at first view it may appear ridiculous, is well selected as an illustration. Because, though in that case there could be no possible doubt of the intention, since the act of a deliberate execution involves, in common sense, the intention to destroy life, yet still The will is taken for the deed. Nothing a com passing the which would not toward a fellow subject King's death have been felony for if it went beyond it, it would, on the contrary, have been a new rule unknown to the common law, enacted for the first time, for the preservation of the King's life. Unquestionably, the Legislature might have made such a rule; but we are not inquiring what it might have enacted, but what it has enacted. But I ought to ask pardon for having relapsed into any argument of my own upon this subject, when the authorities are more express to the purpose than any language I can use. For Mr. Justice Foster himself expressly says-Discourse 1st, of High Treason, p. 207, "All the words descriptive of the offense, name. Same views the extension parties, first and last, and left a great unsettled. ness and unquietness in the minds of the people, and was one of the occasions of the unhappiness of that King." "All this mischief was produced by the statute of the 21st of Richard the Second, Act of Rich which enacted, That every man that ard Second compasseth or pursueth the death of the King, or to depose him, or to render up his homage liege, or he that raiseth people, and rideth against the King, to make war within his realm, and of that be duly attainted and adjudged, shall be adjudged a traitor, of high treason against the Crown." This," says Lord Hale, "was a great snare to the subject, insomuch that the statute, 1st of Henry Fourth, which repealed it, recited that no man knew how he ought to behave himself, to do, speak, or say, for doubt of such pains of treason, and, therefore, wholly to remove the prejudice which might come to the King's subjects, the stat ute 1st of Henry the Fourth, chap. 10, was made, which brought back treason to the standard of the 25th of Edward the Third." 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 of the crime of 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; which, by vathe same construction they did at common law."rious vicissitudes and revolutions, mischiefed all Gentlemen, Mr. Justice Foster is by no means singular in his doctrine. Lord Coke, maintained by the oracle of the law, and the best orLord Coke. acle that one can consult, when standing for a prisoner charged with treason, as he was the highest prerogative lawyer that ever existed, maintains the same doctrine. Even he, even Coke, the infamous prosecutor of Raleigh, whose character with posterity, as an Attorney General, my worthy and honorable friend would disdain to hold, to be author of all his valuable works; yet even this very Lord Coke himself holds precisely the same language with Foster. For, in his commentary on this statute, in his 3d Institute, p. 5, when he comes to the words, "Doth compass," he says, "Let us see, first, what the compassing the death of a subject was before the making of this statute, when voluntas reputabatur pro facto." Now what is the plain English of this? The commentator says, "I am going to instruct you, the student, who are to learn from me the law of England,, what is a compassing of the death of the King. But that I can not do but by first carrying you to look into what was the compassing the death of a subject ut the ancient common law; because the statute having made a compassing, as applied to the King, the crime of high treason, which, at common law, was felony in the case of a subject, it is impossible to define the one without looking back to the records which illustrate the other." This is so directly the train of Lord Coke's reasoning, that, in his own singularly precise style of commentating, he immediately lays before his reader a variety of instances from the ancient records and year books, of compassing the subject's death. And what are they? Not acts wholly collateral to attacks upon life, dogmatically laid down by the law from speculations upon probable or possible consequences; but assaults with intent to murder; conspiracies to waylay the person with the same intention; and other murderous machinations. These were [the] only compassings before the statute against the subject's life; and the extension of the expression was never heard of in the law, till introduced by the craft of political judges when it became applicable to crimes against the state. Here, again, I desire to appeal to the highest authorities for this source of constructive treason. Although the statute of Edward the Third had expressly directed that nothing should be declared to be treason but cases within its enact Now if we look to this statute of Richard the Second, which produced such mischiefs, Its extent See page 277 for his abusive treatment of and murdered." Raleigh Gentlemen, this distinction, made by the hu distinction in the statute of Edward 111. ed. of the Crown, and awfully accountable in char acter to an enlightened world. As fast as arbi trary constructions were abolished by one statute, unprincipled judges began to build them up again, till they were beat down by another. To recount their strange treasons would be tiresome and disgusting; but their system of construction, in the teeth of positive law, may be well illustrated by two lines from Pope mane 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 But the stai and rebellion against his civil author- fate with the venerable law which it ute daregard 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. A 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 of justice amid the storms 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 the watch to crush the first overt manifestation of so evil and detestable a purpose. Considering the life of the chief magistrate as infinitely important to the public security, it does not wait for the possible consummation of a crime, which requires neither time, combination, nor force to accomplish, but considers the traitorous purpose as a consummated treason. But the wise and humane policy of our forefathers extended the severity of the rule, voluntas pro fucto, no further than they were thus impelled and justified by the necessity. And, therefore, an intention to levy war and rebellion, not consummated, however manifested by the most overt acts of conspiracy, was not declared to be treason, and upon the plainest principle in the world, namely, that the King's REGAL capacity, guarded by all the force and authority of the state, could not, like his NATURAL existence, be overthrown or endangered in a moment, by the first machinations of the traitorous mind of an individual, or even by the unarmed conspiracy of numbers; and, therefore, this humane and exalted institution, measuring the sanctions of criminal justice by the standard of civil necessity, thought it sufficient to scourge and dissipate unarmed conspirators by a less vindictive proceeding. of the crime "Destroy his fib and sophistry in vain. Statute in Mary. The creature 's at his dirty work again.” This system, both judicial and parliamentary, became, indeed, so intolerable in the interval between the reign of Henry the the time of Fourth, and that of Philip and Mary," that it produced, in the first year of the latter reign, the most remarkable statute that ever passed in England,10 repealing not only all former statutes upon the subject, except that of Edward the Third, but also stigmatizing, upou the records of Parliament, the arbitrary construe tions of judges, and limiting them, in all times, to every letter of the statute. I will read to you Lord Coke's commentary upon the subject. In his third Institute, page 23, he says, "Before the act of the 25th of Edward the Third, so many treasons had been made and declared, and in such sort penned, as not only the ignorant and unlearned people, but also learned and expert of his auditors, but he does it only to gather a strik ing general truth, which, in returning, he applies with new force to the case in hand. At the recommendation of George III., soon after his accession, the judges were made independent of the Crown, by holding their offices for life at a cer tain fixed salary. These new treasons were, however, at length This extension all happily swept away on the accesdone away with Sion of King Henry the Fourth, which by Henry IV. brought the law back to the standard of Edward the Third. And, indeed, in reviewing the history of this highly favored island, it is most beautiful, and, at the same time, highly encouraging to observe by what an extraordinary concurrence of circumstances, under the superintendence 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 Welshmen, 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 them, and democracy, in her turn, rashly trampled on them, yet they have ever come safely round at last. This awful and sublime contemplation should teach us to bear with one another when our opinions do not quite coincide; extracting final harmony from the inevitable differences which ever did, and ever must, exist among men.' This is one of the many instances in which Mr. Erskine digresses for a moment to relieve the minds ing to abjure the Pope, deflowering, or marrying |