language, or which was at that period of more ordinary

Occurrence.

- Now, Gentlemen, observe in what respect this Statute has always been held., Lord Coke most justly observes, "these are cases in which, of all others, the law is most necessary to be known, because it concerneth the safety of His Majesty, the quiet of theCommonwealth, and the life, honour, fame, liberty, blood, wife, and posterity of the party accused, besides the forfeiture of his lands, goods, and all that he hath;" for this reason, indeed, he departs from the practice of his age, and composes his treatise on this branch of the law in English, that it may be comprehended by all the King's subjects, truly adding the remark that "most miserable is that slavery where the law is unknown and undefined." The object of the law in question was to make it so perfectly clear in itself as to exclude all construction; and there is this most remarkable provision, that, if any case arises which is not there defined, the sense of the King and his Parliament shall be taken before it is called a Treason; a provision peculiar to this act, and arising out of that particular aim and object with which alone it was framed. "If it be not (says Lord Coke) within the words of this act, then by force of a clause hereafter it cannot be adjudged Treason, until it be declared Treason by Parliament, which is the remedy in that case which the makers of the law provided:" and afterwards he makes a very remarkable observation, the more so as coming from one who was himself a Judge, and many years presided over the criminal law as Chief Justice of England. "Nothing is left to the construction of the Judge if it be not specified and particularized before by this act; a happy sanctuary or place of refuge for Judges to fly unto, that no mans blood and ruin of his family do lie upon their consciences against law and if that the construction by arguments from the like, or from the less to the greater, had been left to Judges, the mischief before this statute would have remained, namely, diversity of opinions what ought to be adjudged Treason, which this statute hath taken away by express words, and the Statute of 1 Mary doth repeal all Treasons but only

such as be expressed in this act of the 25th Edward III, wherein he says this word expressed is to be observed."..

The doubtfulness of the law before the time of Edward HI. is stated by the same great authority, almost in stronger language: "when we consider," says he “how many Acts of Parliament that have made new Treasons, and other capital offences, are either repealed by general or express words, or expired; how many indictments attainders of Treason, felonies, and other crimes, which are not warrantable by law at this day," he then enters into his reasons for publication-" we have thought good to publish this third part of the Institutes, wherein we follow that old and sure rule-judgment should be given by the laws, and not by precedents;" therefore, if improper precedents have in corrupt tines, or by any means whatever, crept into the practice of the law of this country, here is the text, the bible of that law, to which we may resort, as a lamp to guide our feet into the way of truth.

All Lord Coke's observations upon this statute (though I do not affect to read them all) deserve your serious attention: they speak to the conscience of every man who may be called to pronounce on the guilt of a fellow subject charged with treason in language the most solemn and impressive. The Act requires that the guilt must be proveably made out, that the culprit is to be proveably attainted, 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 word proveably hath a great force, and signifies the direct and plain proof; which word the King, the Lords and Commons in Parliament have used, for that the offence was so heinous, was so heavily and severely punished, as none other the like, and therefore the offender must proveably be attainted, which words were as forcible as upon direct and manifest proof. Note, the word is not probably, for then the common argument might have served, but the word is proveably be attainted."-Such, Gentlemen, are the comments of Lord Coke upon this great and important statute-you see the reason for its

passing in the uncertainty produced by an arbitrary construction you will see that soon after it became the law of the land its principle was still obnoxious to men in power. Sometimes there were temporary laws to suspend its efficacy; and it was evaded at other times by those, whose sacred duty it was to insure the benefit of its provisions.

Gentlemen, in the reign of King Richard the Second, to which I have already alluded, there was a court held at Nottingham by the King: and the opinions of several of the judges were taken on certain points of Treason which were submitted to their decision. I will take the liberty of stating very shortly what is said by Lord Coke on that subject, for I am sure it will expose me to no sinister imputations, as the entire dissimilarity of the times will prevent my being supposed to allude to any case which can by possibility now occur. Indeed I quote but the words of my Lord Coke, who in pointing out the reason why the law of Edward was passed, refers to what was done at that meeting at Nottingham, in coarse and violent language. Such I would not have used myself, but I must either quote it, or forego the benefit of his statement. "By this which hath been said it manifestly appeareth what damnable and damned opinions those were concerning High Treason of Tresilian, Chief Justice of the king's bench, Sir Robert Belknap, Chief Justice of the common bench, Sir John Holt, Sir Roger Fulthorp, and Sir William Burghe, and of John Lockton, one of the king's serjeants, that were given to King Richard II. at Nottingham in the eleventh year of his reign. But more detestable were the opinions of the justices in 21 Richard II, and of Hawkford and Brinckley the king's serjeants (and the rather, because they took no example by the punishment of the former) which affirmed the said opinions to be good and lawful. He does not, however, forget to record that "not only that parliament of 21 Richard II. and the circum-. stances and dependencies thereupon are wholly reversed, revoked, voided, undone, repealed, and annulled for ever, but also the parliament by which these false justices were

attainted is confirmed, for that it was for the great honor and common profit of the realm."

Upon that subject, Gentlemen, I would merely take the liberty of saying further, that that particular attainder, the attainder of those by whom the unjust judgments were pronounced, was twice reversed, but that it was ultimately confirmed, and confirmed upon that principle which guides and directs in the Act of Edward III., namely, that the Act of Parliament is to be judged only by its own plain and distinct terms, and that it is not open to judges to raise constructive Treasons upon it. My Lord Hale says, "this extravagant as well as extrajudicial declaration of Treason by these judges gave presently an universal offence to the kingdom, for presently it bred a great insecurity to all persons, and the next parliament there were divers appeals of Treasons by certain Lords appellors, wherein many were convicted of High Treason under general words of accroaching royal power, subverting the realm, &c. and among the rest those very Judges that had thus liberally and arbitrarily expounded Treason in answer to the King's questions were for that very cause adjudged guilty of High Treason, and had judgment to be hanged, drawn and quartered, though the execution was spared-and they having led the way by an arbitrary construction of Treason not within the statute, they fell under the same fate by the like arbitrary construction of the crime of Treason." Thus, Gentlemen, I repeat it for the sake of impressing the truth on your minds, the arbitrary construction of Treason is for ever dismissed from the law of the land. You will therefore not lose sight of these important principles, and these still more important decisions! and I am sure you will remember, that though times are altered, though it is impossible from the state of society that the same occurrences should take place in the present day, yet that human nature is always the same; and that the state prosecutions, formerly instituted for the purpose of extending the power of the Crown, have produced the glosses and observations upon which the whole doctrine of that which my learned Friend has so repeatedly

called Treason, by construction of law has been attempted to be raised, as stated by Mr. Justice Foster.

says,

"the

The question, then, being upon this statute, whether that which has taken place is a levying of war against the king in his realm; for the trial of that question, I have already said, and now beg to repeat, that I consider you, twelve Gentlemen, the only tribunal. I conceive the question of levying war against the King is a matter of fact exclusively, it is for you, and you alone, to decide; and that for the best possible reason, even independently of the strong principle by which all construction is excluded from the operation of that statute. It must be a fact for the Jury to decide, for it is utterly impossible to define beforehand what a levying of war shall be. My Lord Hale states, "what shall be said a levying of war is a question of fact, and requires many circumstances to give it that denomination, which may be difficult to enumerate or to define." He puts the same proposition in another part of his work, and in Mr. Justice Foster's Treatise, which has been already referred to by the Attorney General, the very same observation is in effect made; for he true criterion in all these cases is, with what intention these parties act," and intention is in all cases for the Jury alone, and impossible to be referred to the Judges. It depends upon the circumstances of every particular case, and upon the view which every particular Jury may happen to take of the facts brought before them, whether there has been a levying of war. Mr. Justice Foster lays down the same law, and I find it repeated in Mr. East's Treatise on the Pleas of the Crown. That Gentleman relies on very high authority in support of his proposition, and refers to a manuscript summary of criminal law to which he had access, originally drawn up by Lord Hale, and afterwards copied out, sanctioned, and adopted by so many of the most learned Magistrates who ever adorned the Bench, that it is impossible for any text writer to compile a work so worthy of respect and attention to, as that in which he states that the question of levying war is a question of fact for the Jury to decide.