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and consequently the doctrines of Coke, Hale, and Forster, 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 transmitted, 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 wide I may think it of rational application.-For as there is a CONSTRUCTIVE COMPASSING, so also there is a CONSTRUCTIVE DEPOSING; and I cannot, 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.

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 traitorous intention against his NATURAL LIFE; and that nothing short of your firm belief of that detestable 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 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.

In this process I shall begin with Lord Hale, who opens this important subject by stating the reason of passing the statute 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 offences 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 an usual charge of treason anciently, though a very uncertain charge; so that no man

could tell what it was, or what defence 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 25th of Edward the Third, whereby it came to pass that almost every offence 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 offence 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 REMEDIAL law, to put an end to them; and lord Coke, considering it in the same light, says, in his third Institute, page 2d, "The parliament which passed 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 worded as to give birth to new constructions and uncertainties, instead of destroying the old ones. It would but ill have entitled itself to the denomination of a blessed statute, if it had not in 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. It will be found, that, in selecting the expression of COMPASSING THE DEATH, it employed a term of the most fixed and appropriate signification in the language of English law, which not only no judge or counsel, but which no attorney, or attorney's clerk, could misunderstand; because in former ages, before the statute, compassing the death of ANY MAN had been a felony, and what had amounted to such compassing, had been settled in a thousand instances. To establish this, and to show also, by no reasoning of mine, that the term "compassing the death" was intended by the statute, when applied to the King, as high treason, to have the same signification as it had obtained in the law when applied to the subject as a felony, I shall refer to Mr. Justice Forster, and even to a passage cited by the Attorney General himself, which speaks so unequivocally and unanswerably for itself, as to mock all commentary."The ancient writers," says Forster, "in treating of felonious homicide, considered the felonious INTENTION manifested by plain facts, in the same light, in point of guilt, as homicide itself. The rule was, voluntas reputatur pro facto; and while this rule prevailed, the nature of the offence was expressed by the term COMPASSING THE DEATH. This rule has been long laid aside as too rigorous in the case of common persons; but in the case of the KING, QUEEN, and PRINCE, the statute of treasons has, with great propriety, RETAINED it in its full extent and vigor; and in describing the offence, has likewise RETAINED the ancient mode of expression, when a man doth compass or imagine the death of our lord the king, &c. and thereof be upon sufficient proof, provablement, attainted of open deed, by people of his condition: the words of the statute descriptive of the offence, must, THEREFORE, be strictly pursued in every indictment for this species of treason. IT MUST charge that the defendant did traitorously compass and imagine the king's death; and then go and charge the several acts made use of by the prisoner to effectuate his traitorous purpose; for the compassing the king's death is the treason, and the overt acts are charged as the means made use of to effectuate the intentions and imaginations of the heart; and therefore, in the case of the Regicides, the indictment charged that they did traitorously 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 anomaly of the offence, which exists wholly in the INTENTION, and not in the overt act, required the preservation of the form of the indictment. It is surely impossible to read this commentary of Forster, without seeing the true purpose of the statute. The common law had anciently considered, even in the case of a fellow-subject, the malignant intention to destroy, as equivalent to the act itself; but that noble spirit of humanity which pervades the whole system of our jurisprudence, had, before the time of King Edward the Third, eat out and destroyed this rule, too rigorous in its general application; but, as Forster truly observes in the passage I have read - " This rule, too rigorous in the case of the subject, the statute of treasons RETAINED in the case of the King, and retained also the very

expression used by the law when compassing the death of a subject was felony."

The statute, therefore, being expressly made to remove doubts, and accurately to define treason, adopted the ancient expression of the common law, as applicable to felonious homicide, meaning that the life of the sovereign should remain an exception, and that, voluntas pro facto, the wicked intention for the deed itself (as it regarded his sacred life) should continue for the rule: and, therefore, says Forster, the statute meaning to RETAIN the law which was before general, RETAINED also the expression. It appears to me, therefore, incontrovertible, not only by the words of the statute itself, but upon the authority of Forster, which I shall follow up by that of Lord Coke and Hale, contradicted by no syllable in their works, as I shall de monstrate, that the statute, as it regarded the security of the King's LIFE, did not mean to enact a new security never known to the common law in other cases, but meant to suffer a common law rule which formerly existed universally, which was precisely known, but which was too severe in common cases, to remain as an exception in favor of the King's security. I do therefore positively maintain, not as an advocate merely, but IN MY OWN PERSON, that, within the letter and meaning of the statute, nothing can be a compassing the death of the King that would not, in ancient times, have been a felony in the case of a subject; for otherwise Forster and Coke, as will be seen, are very incorrect, when they say the statute RETAINED the old law, and the appropriate word to express it; 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 Forster himself, expressly says, Discourse 1st, of High Treason, p. 207, "All the words descriptive of the offence, viz. If a man doth compass or imagine, and thereof be attainted of open deed,' are plainly borrowed from the common law, and therefore must bear the SAME construction they didat common law." -Is this distinct?-I will read it to you again: "All the words descriptive of the offence, viz. If a man doth compass or imagine, and thereof be attainted of open deed,' are plainly borrowed from the common law, and therefore must bear the SAME construction they did at common law."

Gentlemen, Mr. Justice Forster is by no means singular in this doctrine.- Lord Coke, the oracle of the law, and the best oracle 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 Forster.-For, in his commentary on this statute, in his third 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 cannot do, but by first carrying you to look into what was the compassing of the death of A SUBJECT at 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 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 appli cable to crimes against THE STATE. Here again I desire to appeal to the highest authorities for this source of constructive treasons: for although the statute of Edward the Third had expressly directed that nothing should be declared to be treason but cases within its enacting letter, yet Lord Hale says, in his Pleas of the Crown, page 83, that "things were so carried by parties and factions, in the succeeding reign of Richard the Second, that this statute was but little observed, but as this or that party got the better. So the crime of high treason was in a manner arbitrarily imposed and adjudged, to the disadvantage of the party that was to be judged; which, by various

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