Levy War been wholly left unpunishable But the Law has provided a punishment commensurate to the Offence Which though it does not extend to Life yet is sufficient to deter Men from the Commission of it Yet if a Conspiracy to Levy War is to be punish'd in as high a degree as a War when Levy'd this would be to punish Thoughts as highly as Deeds which if it be just yet is summum jus Mr. Solicitor Finch twitter'd out two or three imperfect Precedents viz. that of my Lord Cobham Dr. Story and Plunket These as they are not altogether to the purpose so they are so very Modern that no great regard is to be had to them And they rather prove the Ignorance or Boldness of those Judges than that a Conspiracy to Levy War is an Overt Act of Compassing the Kings Death Because the Statute of 25 Ed. 3. has provided that if any such like Treasons come before the Justice they must tarry without going to Judgment till the Cause be shew'd before the King and his Parliament And therefore for those Judges to take upon them to judge upon that which was doubtful and not litterally nor expresly a Treason was to assume the Part which the King and Parliament had reserved to themselves And therefore upon what has been said this Conclusion will follow that no Man can before the Judges be Convicted of Treason unless the Fact be expresly and litterally Treason within some Statute and he be thereof provably Attainted by some Overt Deed and consequently a Conspiracy to Levy War is not an Overt Act of Compassing the Kings Death but a Trespass or High Misdemeanour And therefore the judgment against my Lord. Russel was manifestly unjust and so of Course it ought to be Revers'd If a Conspiracy to Levy War were Treason of it self or an Overt Act of imagining the Kings Death yet my Lord Russel was not Guilty of High Treason within the Statute of 25 Ed. 3d. because the Overt Act Assign'd against him was His being of a Council of Six to manage an Insurrection and in order to it to seize the Guards For had he Actually seiz'd the Guards yet it could not be Treason within the Statute 25 Ed. 3d. First Because the Guards are not settled by Act of Parliament and consequently they are no Legal Force For the Law has pronounc'd that all standing Force other then the Militia is in terrorem populi Illegal and a Grievance And the Reason of it is clear because the Law does never Protect or Countenance any thing that is or may be burthensome or that is useless And it is so Evident that in the Pensionary Parliament this Vote pass'd in the House of Commons nemine contradicente That all standing Force other than the Militia is Illegal and a Grievance And though they have the King's Commission as may be Objected yet his Commission cannot make that Lawful that is Illegal no more than he can tolerate a Riot or pardon a common Nuisance For if several Persons were Try'd for a Riot and it manifestly appear upon the evidence to be such would their producing the Kings Commission keep them out of the Compass of the Law or should those who did Assemble together to suppress them be Guilty of Levying of War because those other persons had the King's Commission Therefore if my Lord Russel had Assembled a Force sufficient to seize the Guards the most that could have been made of it was to bring it within the Statute of the 1st Qu. Mary 12. which makes it but Felony And this being duly compared with the Precedents urg'd by Mr. Attorney and Mr. Solicitor will retort them strongly upon themselves Secondly It could not be Treason within the Statute 25 Ed. 3d. because at the time of making that Statute there was no such thing as the Guards For the first thing of that sort was the Band of Pensioners which Hen. 7th set up in imitation of what he had seen and learn'd in France For in Ed. the 3d 's Time tho' he was the Third that without interruption had succeeded to the Crown yet Succession had not then obtain'd so sacred a Reputation as not to stand in need of the People to uphold them in the Throne And therefore Kings were then too Wise to do any thing that would be so apparent a Distrusting of the People as to call in Guards to their Aid And besides the constant Wars either with France or Scotland made them stand continually in need of the Peoples Supplies And therefore they would be sure cautiously to avoid all things that might give the Nation occasion of Ossence And nothing could be more distasteful to the People than to be nosed by a standing Force which the Law had adjudged to be Illegal and a Grievance And therefore as there was no such things as Guards at the making of that Statute 25 Edw. 3d. So that Statute cannot be supposed to take notice of them Thirdly If the Guards were Established by Act of Farliament yet if they were so Established since the 25 of Ed. 3d. my Lord Russel was not within that Statute because it provided for nothing but what was lawfully in being at the time when it was made So that if it were an Offence to seize the Guards my Lord Russel ought to have been Indicted upon that Statute which did so make it an Offence For if a Prisoner is Indicted upon a wrong Statute and the Evidence proves nothing of that Statute on which he is Indicted but comes very home and point blank to the Statute on which he ought to have been Indicted he may plead specially to it and the Court must direct the Jury to bring him in Not Guilty Fourthly My Lord Russel was not within the Statute 25 Edw. 3d. Because the Indictment concluded falsly and more falsly than any Indictment that I ever saw or heard of For it says And the Guards for the Preservation of the Person of our said Lord the King to seize and destroy against the duty of his Allegiance against the Peace and also against the Form of the Statutes This Conclusion contains in it four Parts and none of them is true First that the Guards are for Preservation of the Kings Person It will be an easier matter to find a World in the Moon than that the Law has made the Guards a lawful Force or any Statute that has Established any Force particularly for the Guard of the King's Person And tho' the Law had establish'd any such Force yet it was not done by the 25 Ed. 3. and therefore in this the Indictment concluded falsly The Second thing is this That to seize and destroy the Guards was against the Duty of his Allegiance To speak fully to the Nature of Allegiance would require a long Discourse But a few words will lay this upon it's back It cannot be deny'd that Nature and the Law did nothing in vain And if so can it be imagined that the Law would establish such a thing as the Guards which had made so much a better Provision for the Preservation of the King's Person even the Duty and Interest of every one of his Subjects In the next place Subjection and Protection are Convertible Terms and therefore if the Subjects do not receive Protection by the Guards it is not against their Allegiance to seize and destroy them whereas to seize the Militia is against their Allegiance because they receive Protection by them Besides no man becomes an Offender till the Law has been promulged so as that no man can reasonably be suppos'd to be ignorant of it Now then though the King by his Commission might make the Guards such a lawful Force yet non constat that they are so Commission'd by him For it has not been publish'd in that due manner and form as that the Nation can regularly take notice of it And besides there is no Record entred or remaining of it in any Court or any other Place whereby the People may come to a certain knowledge of it Which is also a forceable Argument against the Legality of such a Commission So that though in other Cases Ignorantia Juris is not allow'd yet in this Case it is a very good Plea That it was not against my Lod Russel's Allegiance to seize the Guards though the King's Commission did make them a lawful Force The Third thing is That it was against the Peace which is an untrue Conclusion For it is not against the Peace to seize any Force that is not countenanced by Law. And a Needle may sooner be found in a Cart-Load of Hay than any Statute that has Establish'd the Guards And if the King's Commission can make a Force a lawful Force then it 's hard to say whether the Rebellion in Ireland did not act upon sufficient Autjority since no clear Answer has yet been made to the Commission under the Broad Seal which the Rebels produced to justifie their Proceedings In the next place every Treason is against the Peace But to conclude because it is againsit the Peace therefore it is Treason is neither Law nor Reason For every Offence is against the Peace but every Offence is not Treason Furthermore the King 's Lawful Commission is not to be opposed in any Case and the Indictment upon it will run that it is against the King's Crown and Dignity and against the Peace Therefore to conclude that it is Treason is a non sequitur For it is not Treason in many Cases to Seize and Destroy those that Act by the King 's Lawful Commission The Fourth thing is that it was against the Form of the Statutes The Statutes thus mention'd must be those Statutes or at least must comprehend some Statute that settles the Guards for the Preservation of the King's Person For the Seizing of the Guards is the Overt Act assign'd of Compassing the King's Death Now if there be no such Statute then is this Part of the Conclusion of the Indictment also false And consequently the Judgment against my Lord Russel ought to be revers'd FINIS
of War are Distinct Species of Treason Fourthly Whether every Law is not to be construed most strictly to restrain the Mischief against which it was Enacted Fifthly What is the true meaning and signification of being Provably Attainted by Overt Deed 1. As to the first It seems to be out of doubt that at this day there can be no such thing as an Indictment at Common Law for High Treason though for other things there may Because there is no Precedent of it since the Statute 25 Ed. 3. For nothing is more common than for every Prisoner that is Arraigned for High Treason to Demand upon what Statute he is Indicted And the Court or King's Counsel do tell him the particular Statute Besides every Impeachment before the Lords in Parliament is grounded upon some Statute And if so à fortiori no inferiour Court can Try a Prisoner upon an Indictment for High Treason grounded upon the Common Law. For the Law which greatly delights in Certainty especially in case of Life will not allow of an Indictment at Common Law Because no Issue can be joyn'd upon it by reason of the Uncertainty As to the 2d viz. To what End or Intent the Statute 25 Ed. 3d. was made I thus anser Edward the 3d. was a Victorious Captain and potent Prince whereby he became very Renown'd But that which made his Name the Greater and his Fame the more lasting was those good and wholsome Laws which were Enacted in his time by which he restored and beautified the Government that had been defaced and almost destroyed by the Illegal proceedings during his Father's Irregular Reign And of all the Oppressions under which the Nation Groan'd there was none that lay heavier upon the People than the Extravagant Licence which the Judges took in the Interpretation of Treason And this appears by the particular and universal Joy expressed by the whole Land at the making of the said Statue For tho' he call'd Parliaments very frequently and none of them prov'd abortive of good Laws yet that Parliament which was held in the 25th year did more than any of the rest And of all the beneficial Laws that were then Enacted the 2d Statute whereby Treason was reduc'd to certainty gave the People the greatest cause to lift up their Heart and Voice in Thankfulness to God and the King because the Jaws of that devouring Monster were broken which had torn in pieces so many Families and threatned Destruction to the rest So that this Statute was made to restrain and limit the Judges from calling any thing Treason that might be so by Inference or Implication and only to judge upon that which is Litterally so within that Statute For it is there provided That if any such like Treasons shall come before any of the Justices that they must stay without going to Judgement till the Cause be declared before the King and his Parliament And all Subsequent Statutes of Treason are all as so many Confirmations of this Statute For they had been needless if the Judges could have called any thing Treason but what is Litterally such within that Statute And the Statute it self had been made to no purpose if it had not strictly restrained the Judges And my Lord Chancellor Nottingham was of Opinion that even the Lords in Parliament could not proceed upon an Indictment for High Treason unless the Fact therein alledg'd were first Declared by some Statute to be Treason 3. As to the third thing It never was nor ever will be deny'd that Compassing the Death of the King and Levying of War are two distinct Species of Treason unless all Treasons are of the same Kind But if there are several sorts of Treasons then it will follow that these are also Distinct Because in every Statute of Treason which mentions Conspiring the death of the King and Levying of War they are named Distinctly Besides they are different in the manner of Proof For that which is necessary to prove the one does in no sort prove the other And furthermore the one may be Effected and the other never so much as intended or Design'd As for Example the King may be Murder'd and no War Levied nor Intended And moreover in the one Case it is Treason as well to Intend as to Execute it without tacking it to any other thing But it is not so in the other For it is in it self and abstractly from every thing else Treason as well to Compass the King's Death as to Kill him But an Intention to Levy War and doing all things in order to it is not Treason unless the War be Levyed Except by Implication or Inference And I am perswaded that the want of observing that these are distinct Species of Treason has been the occasion of that Mistake of calling a Conspiracy to Leavy War an Overt Act of Conspiring the King's Death 4. As to the fourth No doubt every Statute is to be construed most strictly to restrain the Mischiefs against which it was Enacted For the uninterrupted Course of all Judgments and Resolutions have been accordingly and nothing can more directly thwart Common Sense than to make it otherwise And therefore if the Statute be absolute the more forcibly it is construed to restrain that Mischief the more truely is the Intent of that Statute pursued For how shall any Evil be suppressed if the Remedy must be applyed but by halves The Law then would be rather a Mockery than a Means to redress the Evil if it shall not be taken most strongly against it Either it is or it is not a Restraint of the Grievance complained of If it is not why was it made If it is why must it not be understood in that Sense whereby the Mischief or Evil may be more Effectually supprest and prevented 5. As to the fifth The Answer will be best understood by considering first the signification of the two words a part viz. Provably and Overt Provably signifies to prove or make good by Evidence Argument Reason or Testimony Overt has all these significations Open Clear Plain Apparent Manifest Notorious Evident Publick Known Vndoubted Certain Perspicuous These then being the significations of those Words what can follow more naturally than that To be Provably Attainted by Overt Deed is that the Fact must not only be Direct Apparent and Notorious to the Point but it must also be proved Clearly Evidently Plainly and Perspicuously void of all Doubt or Obscurity And those two words being taken together do the better expound each other and seem to be choice words and words of Art cull'd out by the Penners of that Statute as the most expressive to exclude all Implications or Inference that might be made in Case of Treason These things being premis'd which are as easily proved as alledg'd there will remain very little besides Shifts and Evasions to prove that a Conspiracy to Leavy War is an Overt Act of Compassing the King's Death The things that are chiefly and commonly urg'd to
maintain that Opinion are these two First It would be of dangerous Consequence if a Conspiracy to Leavy War may not be interpreted an Overt Act of Compassing the King's Death Because there is no means left to prevent it and the mischief attending it when the War is Levyed Secondly If a War be Levyed the Death of the King must needs be intended and will certainly ensue if the Rebels prevail In answer to these it may be replyed That the one of them is but a bare Objection and the other no substantial Argument because it begs the Question which is surely a feeble way of Arguing But I will give a more particular Answer to them And it will be more proper to begin with the second because in speaking to it the other will in a great measure receive an Answer Now as to the Second It may be observ'd that the Death of the King is made so certain and necessary a consequence of Levying of War that by reason of that certainty a Conspiracy to Leavy War is an Overt Act of Compassing the King's Death If therefore the Certainty will not hold but that many Cases may be put and instances produced wherein the King's Death is not intended nor did ensue upon the prevailing of the Party then is the whole weight and strength of the Argument of no effect The Hugonots in France have heretofore assembled in Arms And tho' they repeated it several times yet on which of those Occasions does it appear either by the Cause of their coming together in that manner or by the Effect of it that it was levell'd at the King's Life No the Cause of their Rising in Arms was for the Asserting of their Religion and just Rights For as soon as their reasonable Demands were satisfied they laid down their Arms more willingly than they took them up neither did they attempt any thing against the King's Life when he was in their power but after they were answer'd in those things to which they had Right both by the Laws of Nature and the Government immediately they return'd home in peace and upon all other occasions proved the most firm and Loyallest Subjects of all other in that King's Dominions and so this present King of France must testifie for them if he will do them right If the Protestants in France should at this time rise in Arms upon so just a provocation as now they have it would be senseless to suppose that they Levyed the War with a principal Design to Murder the King and not for the Defence of themselves and just Rights which are so inhumanely and against all Law and Justice at this time Invaded and Ravish'd from them Story is full of like Cases and Instances to this But to speak more particularly to England What was the Barons Wars The Answer to which must be That they took up Arms to Assert their Rights and Liberties which the King contrary to his Oath withheld from them and tho' it lasted near forty years yet the King's Death was never intended nor his Life in any danger For as soon as their just Demands were answered they put up their Swords and every man return'd home and prayed for the Life of the King. And out of English Story what one instance can be produced where the Cause of War was Declared to be against the King's Life or if the party prevail'd the King was put to Death by their general Consent and Approbation For tho' it be true that there are some Instances where they have been Murder'd after the War yet it is also as true that it was by private Assassination and not by the Consent and Privity of those who Levyed the War. For all those who were concern'd in the Murther were afterwards Condemn'd and Executed for it as Traytors As in the Case of Edw. 2. and Ric. 2. As for that of Charles the First which is so much press'd and urg'd tho' the Cause of War had been expresly against his Life yet as one Swallow does not make a Summer so neither does one Precedent prove the Point But besides in that Case of Charles the First To infer from thence that the King's Death is principally intended by Levying of War is altogether as weak an Argument as to say because a thing falls out by Accident therefore that very thing was the principal Design and Aim of the whole Action For in that War those who first took up Arms did it to oppose the King 's Arbitrary Practices and though he was afterwards put to Death yet it was altogether against their consent or desire and most of the Army was against it and would have prevented it but that they were at that time so broken into Factions and Parties that they durst not trust one another For after that Tragedy was acted those who first took up Arms immediately upon it laid them down and were afterwards the chief Instruments of the late King's Restoration But if the King's Death be the Principal thing intended by Levying of War to what purpose is the War Levyed Cannot the King be taken off more easily by Poison or a private Assassination To the effecting of which Opportunity cannot be wanting and so with more certainty the End is Obtain'd and a less hazard run in the Execution than could be done by a War except those who Levy the War to kill the King are not content with the Murther of him unless they cut the Throats of all those that would defend him Indeed to do it by an open War rather than by Poison or a private Assassination is the more generous way for they give him fair warning to look to himself like a Noble Enemy that scorns to kill his Adversary basely 'T is indeed to go round about for the nearest way Therefore a War when Levyed must be for some other Intent than to take away the King's Life Since English-men if they enjoy their Properties no Prince is so Great and Happy in the Heads Hearts Hands and Purses of his Subjects as an English King. But yet allowing that upon every War levied the Death of the King would certainly ensue if the Rebels prevail yet this Question does naturally arise viz. Where is that Statute which does in express terms say That a Conspiracy to Levy War is Treason For if it be not so expresly and literally within some Statute then it is a Constructive Treason and consequently no such Treason as upon which the Judges may proceed if the Statute of the 25th Ed. 3d. was made to any purpose For that Statute restrains all Constructive Treason or none But if the Judges may in any one Case make a Constructive Treason they may do it in all And so we are left in the same uncertainty about Treason as we were before that Stat. 25th Ed. 3d. was made If the Judges might judge upon Constructive Treason yet it seems to be a far-fetch Construction to make a Conspiracy to Levy War an Overt Act of Compassing