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
the King's Death For this is not to be Provably attainted by Overt Deed. First because the Conspiring the Death of the King and Levying of War are two distinct Species of Treason and therefore it would be very unnatural and too much forc'd to joyn these rogether and as it were to make them one and the same thing that are so different and divers not only in the Manner and Matter of Proof but also in themselves For then Secondly A Conspiracy to commit any other Treason may also be called an Overt Act of imagining the King's Death which was never yet pretended Thirdly A Conspiring of any one Treason may then be an Overt Act of any other Treason Fourthly Any other Criminal Act may then as well be call'd an Overt Act of Conspiring the King's Death Fifthly This is to make a Conspiracy to Levy War Treason in it self For there is very little difference between calling a thing Treason in it self and to make it an Overt Act of some Treason within the Statute Sixthly Because a Conspiracy to Levy War was not Treason at Common Law. Seventhly The Statutes of 23d of Eliz. and the 1st and 3d. Jac. 4th which make it High Treason to Reconcile any to the Church or See of Rome or to be so Reconciled were Enacted to no purpose if a Conspiracy to Levy War is an Overt Act of the Compassing the King's Death For what can tend more plainly and directly to Levy War than to perswade the People to renounce their Allegiance to the King and to Promise Faith and Obedience to some other Power So that these and all other Statutes concerning Treason which have been made since the Statute 25th Ed. 3d. are as so many Confirmations of it and consequently prove that the Judges can call nothing Treason but what is Litterally such within that or some other Statute Eightly My Lord Cook says that Conspiracy to Levy is not Treason unless the War be Levy'd in facto And questionless his Opinion is very good Law Because in many Cases it is not Treason to Levy War à fortiori a Conspiracy cannot For look into the Statute Queen Mary 12. and there you will find several things provided against which are plainly and directly a Levying of War and yet they are declared to be but Felony But it may be Objected that by Stat. 3. and 4. Ed. 6. the Offences mention'd in 1 Queen Mary were made Treason It is very true Yet it does not alter the Case but rather prove the Point For First they being made Treason by Statute proves that it was not so in it self Secondly because in the two next succeeding Reigns it is declared to be but Felony For the Statute of Queen Mary is confirm'd by 1 Eliz. 16. And thereupon the Argument is the stronger because those two Queens were of different Religions Thirdly because when a thing is declared an Offence by Act of Parliament and is afterwards made a less Offence by Statute it proves that it was not so great in it self but that the necessary Circumstances of Time and Affairs requir'd it should then be such But the Case is yet Stronger because in some Cases it may be but a Trespass to Levy War as it was in the Case of my Lord Northumberland 5 Hen. 4th He did actually raise Forces and such as were taken to be a Levying of War For which he was question'd before the Lords and tryed for High Treason But tho' the Lords did find the Fact yet they adjudg'd it but a Trespass because the Powers raised were not against the King but against some Subjects This Precedent seems to carry great weight in it First because it is a Judgment given in the highest Court of Judicature Secondly because it was given so soon after the making of the Statute of 25 Ed. 3d. who must be suppos'd to understand the intent and meaning of that Statute full as well as succeeding Ages The Case of those who Aided Sir John Old-Castle might be also urg'd who were Acquitted because in their Defence it did appear that by reason of Fear and to save themselves they were constrain'd to what they did Which is Ground for another Argument if there were occasion because it proves that the Maxim in Law Actus non sit reus nisi Mens sit rea holds in Case of Treason as well as in all other Cases But I think there 's no need of it For if War may be Levy'd which is neither Treason nor Felony it must be a very unnatural Construstion of a Conspiracy to Levy War to make it an Overt Act of Compassing the King's Death Thus the Second thing Objected has received a full answer and likewise the First in a great Measure Yet I will add a few words that no doubt may remain If the consequence on all hands be duly considered the danger will be found to lie on the other hand Yet be it as great as can be pretended it must be remembred that the Law has settled the Point and so it must stand till by the same Authority it be altered For the Rule in Law is not to be forgot Nemo Legibus Sapientior It is pretended that out of a tender regard which the Law and all Subjects ought to have for the King's Life a Conspiracy to Levy War is taken to be an Overt Act of Compassing the King's Death To this it may be answered by way of question how comes it about that this Age should have a greater Care of the King's Life than our Fore-fathers had Can it be imagin'd that they did not understand the nature of the Government as well as we do Nor did know of what consequence to the Publick the Preservation of the King's Life is Can it be thought that they did not impartially weigh and consider the consequence on all hands Yet however let the defects be never so many seeing it is settled by Law it cannot be alter'd but by the same Power For if it may then let the consequences be seriously debated of leaving it in the Breast of the Judges to rectifie the mistakes or defects be the fictitious or real For then when a Turn is to be serv'd the Law will be sure to be Defective and so in effect they shall Legem dare Treason will then be reduced to a certainty that is if the Judges please otherwise not There will be then no need of Parliaments For the Judges shall both declare and make Law. What will all our Laws signifie though made and penn'd with all the Wisdom and Caution that a Parliament is capable of if the Judges are not tied up and bound by those Laws It renders Parliaments useless and sets the Judges above that great Council They can undo what the other has done The Parliament chains up some unruly evil and the Judges let it loose again But besides where is this dangerous consequence as is Objected Indeed there had been some weight in the Objection had a Conspiracy 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