of Public information, the Infamy of your Actions are sufficiently known, and will be handed down to the last ages of Time, while your Names will stink in the Nostrils of Posterity.
The Statute of Treasons, my Lords, passed in the 25th Year of the Reign of Edward the Third, was an Act of vast importance to the Public Weal; for till then, there was hardly a Word spoke, or a Paper written, but what was deemed Treason; and the Parliament which passed it, was called Benedictum Parliamentum, the blessed Parliament.
The substance of this Statute is branched out by my Lord Cooke, into Six Heads, which we shall here give, with some Observations of our own, to shew your Lordships and the World, that NUMBER III of the CRISIS, is not within the meaning of either of these Heads, and that by your amended Motion, you designed to lay the ground Work of a Prosecution the most Cruel and Infamous, ever carried on in this Country, worse
[print edition page 70]
than those, which without Proof, or the Colour of Guilt, took away the Lives of the Great Lord Russel, and Algernon Sidney.3
The First Head concerning Death; by compassing, or imagining the Death of the King, Queen, or Prince, and declaring the same by some overt Deed. By killing or murdering the Chancellor, Treasurer, Justice of either Bench, Justices in Eyre, Justices of Assize, Justices of Oyer and Terminer, in their Places, during their Offices.
The Second is to Violate, that is, to carnally know the Queen, the King’s eldest Daughter unmarried, the Prince’s Wife.
The Third is, levying War against the King.
[print edition page 71]
The Fourth is, adhering to the King’s Enemies; within the Realm or without, and declaring the same by some Overt Act.
The Fifth is, counterfeiting the Great, the Privy Seal, or the King’s Coin.
The Sixth and Last, by bringing into this Realm, counterfeit Money, to the likeness of the King’s Coin.
First, To compass and imagine, is to contrive, design, or intend the Death of the King; but this must be declared by some Overt-Act, declaring by an OPEN Act, a design to depose or imprison the King, is an Overt-Act, to manifest the compassing his Death. I believe, my Lords, the Author of NUMBER III of the CRISIS, is not under the Predicament of this exposition.
Second, By the word King, is intended, 1. A King before his Coronation, as soon as ever the Crown descends upon him; for the Coronation is but a Ceremony. 2. A King de Facto, and not de Jure, is King within this Act, and Treason against him is Punishable, though the right Heir get the Crown.
Third, Note. It is very Strange, but in the printed Statute Books, it is there said, probably attainted, which is a gross Error; for the Words of the Record are, et de ceo, PROVABLEMENT Soit Attaint; And shall be thereof PROVABLY attaint: And it is amazing to me, that so gross a Mistake should be suffered, since my Lord Cooke has so expressly observed the Difference in these Words following. 3. Instu. Fol. 12. In this Branch, saith he, Four things are to be observed: 1. This Word (Provablement) Provably, that is, upon DIRECT and MANIFEST PROOF, not upon conjectural Presumptions, or Inferences, or strains of Wit, but upon GOOD and SUFFICIENT PROOF: and herein the Adverb (Provablement) Provably, hath great Force, and signifieth a DIRECT and PLAIN PROOF; and therefore the Offender must provably be attained, which Words are as Forcible as upon DIRECT and MANIFEST PROOF. Note, the Word is not Probably, for then commune Argumentum might have served; but the Word is provably be attainted. 2. This Word Attaint, necessarily implieth, that he be proceeded with, and attainted according to the due COURSE of LAW, and proceedings of Law, and not by
[print edition page 72]
ABSOLUTE POWER, or by other Means, as in former Times had been used. And therefore if a Man doth adhere to the Enemies of the King, or be Slain in open War against the King, or otherwise Die before the Attainder of Treason, he forfeiteth nothing, because (as that Act saith) he is not attained: wherein this Act hath altered that, which before this Act, in case of Treason, was taken for Law. And the Statute of 34 Ed. 3. saves nothing to the King but that which was in Esse, and partaining to the King at the making of that Act. And this appeareth by Ajudgment in Parliament, in Ann. 29. H. 6. that Jack Cade being Slain in open Rebellion, could no ways be punished, or Forfeit any thing, and therefore was attainted by that Act of High Treason. 3. Of open Deed, per apertum Factum,4 these Words strengthen the former exposition of (Provablement) an OVERT ACT must be alledged in every Indictment upon this Act, and PROVED. Compassing by bare Words, is not an Overt Act, as apppears by many temporary Statutes against it. But there must be some open Act, which must be manifestly proved. As if divers do conspire the Death of the King, and the Manner how, and thereupon provide Weapons, Powder, Poison, Harness, send Letters, and the like, for the execution of the Conspiracy. If a Subject conspire with a Foreign Prince, to invade the Realm by open hostility, and prepare for the same, by some Overt Act, this is a sufficient Overt Act for the Death of the King. 4thly. A Conspiracy is had to levy War, this is no Treason by this Act, untill it be levied, therefore it is no Overt Act, or manifest Proof of the compassing the Death of the King within this Act; for the Words are (de ceo &c. thereof) that is, of the compassing of the Death. The Wisdom of the Makers of this Law would not make bare Words to be Treason, seeing such Variance commonly among the Witnesses, about the same, as few of them agree together.
In the Preamble of the Statute of 1. Mar. (concerning the Repeal of certain Treasons declared after this Statute of 25. Edw. 3. and before that
[print edition page 73]
Time, and bringing all things to the Measures of this Statute) it was agreed by the whole Parliament, that Laws justly made for the Preservation of the Common Wealth, without extreme Punishment, are more often obeyed and kept, than Laws and Statutes made with great and extreme Punishments. And in special, such Laws and Statutes so made, whereby not only the ignorant, and rude unlearned People, but also learned and expert People, minding Honesty, are often Times trapped and snared, yea many Times for words only, without other Fact or Deed done or perpetrated. Therefore this Act of the 25. Ed. 3. doth provide that there must be an OVERT ACT. 5. As to Treason by levying War against the King, we must Note, that though conspiring or compassing to levy War, without a War, de Facto, be no Treason, yet if many conspire a War, and only some few actually levy it, all are Guilty of the Treason. Raising a Force to burn or throw down a particular Inclosure, is only a Riot, but if it had been to have gone from Town to Town, to throw down all Inclosures, or to change Religion, or the like, it were levying of War, because the intended Mischief is Public. Holding a Fort or Castle against the Kings Forces is levying War. 6. Counterfeiting the Great, or Privy Seal, is Treason; but it must be an actual Counterfeiting thereof, compassing to do it is no Treason: affixing the Great Seal by the Chancellor, without Warrant, is no Treason: fixing a New Great Seal to another Patent, is a great Misprison, but no Treason, being not counterfeiting within this Act: but Aiders and Consenters are within this Act. 7. Treason concerning Coin, is counterfeiting the King’s Coin; and this was Treason at Common Law, and Judgment only as of Petty Treason; but clipping, &c. being made Treason by other Statutes, the Judgment is to be Drawn, Hanged, and Quartered. Money here, extends only to the proper Money of this Realm. 8. As this Statute leaves all other doubtful Matters to be declared Treason in Parliament, but not to be punished as such, till so declared. So in succeeding King’s Reigns, abundance of other Matters were declared Treason, which being found very Grievous and Dangerous, by the Statute 1. Mar. it is inacted that thenceforth no Act, Deed, or Offence, being by Act of Parliament, or Statute, made Treason, Petty Treason, or Misprison of Treason, by Words, Writing, Ciphering, Deeds, or otherwise however, shall be taken, had, deemed, or
[print edition page 74]
adjudged to be High Treason, Petty Treason, or Misprison of Treason, but only such as be declared and expressed to be Treason, Petty Treason, or Misprison of Treason, by this Statute of 25. Ed.3.
Here we rest the Matter, my Lords, convinced the Author of NUMBER III, is not within the meaning of this Statute, nor any exposition of it, and that the Design of your Lordships in adding the Epithet Treasonable, was wicked, base, and infamous, and will be sure to secure to you the Contempt and Detestation of every Honest Man.
To the People of ENGLAND and AMERICA.