this artificial guilt the base of a new scale of crimes in succession, is cruelty in extravagance. Here we have the rule of construction extended beyond former precedents and its own principles, in this very manner. Having construed the forcible opposition to a law into the guilt of levying war against the king, by former examples, this decision now proceeds to construe certain acts of the rabble, into a forcible opposition to the law; of which, as a statute, they perhaps knew nothing but the name. By which degrees of construction, the guilt is supposed to be very logically connected with the statute of treasons, the moral connection being quite laid aside. This is monstrous; for by the same scheme of inferences as logically drawn, and conclusions equally true, we may prove the man who robs on the highway, to have compassed the death of the king. But the subject is too serious for ridicule, and I leave it here. This example shews how careful we should be to adhere to the plain rules of reason, and how directly one deviation from them leads to others, till error is confirmed by error, and truth is confounded in their intricate mazes. the instigation of the devil, the love, and true right ought to bear, wholly withdrawing, and and due obedience which every true and faith- conspiring, and with all your strength intendful subject of our sovereign lady Aune, by the ing the peace and common tranquillity of this grace of God, of Great Britain, France, and kingdom of Great Britain to disturb; the first Ireland, queen, defender of the faith, &c. to-day of March, in the 9th year of the reign of wards our said lady the queen should, and of our said sovereign lady the queen, that now is, with drums; and Whitelock in his short account of the case (Memor. p. 38), dwells expressly on this, as the cause of the judgment. "In Messenger's Case the multitude were led by persons called Captains, and had colours. (Kel. 71, 72.) The captain brandished a naked sword, and another flourished the colours. Hale in stating the point of this case in few words, describes it as an assembly more guerrino for their purpose. Hale P. C. p. 153. "The phrase modo guerrino arraiati (arraiez a fier de guerre, in the French of ancient times) is a material description in all the old indictments. If it be asserted that this means no more than the force and arms in a case of trespass, I answer that the assertion is not supported by any authority. Sir M. Hale (p. 150), considers it as a description of the overt act by which the crime is to be proved. In p. 131, he writes, "The assembling of many rioters in great numbers to do unlawful acts, if it be not modo guerrino or in specie belli, as if they have no military arms, nor march or continue together in the posture of war, may make a great riot, yet doth not always amount to a levying of war." His observations from p. 149 to 154 are intended to inforce the same doctrine. "It must be such an assembly as carries with it speciem belli; as if they ride or march verillis explicatis; or if they be formed into companies; or if they be furnished with military weapons, as swords, guns, bills, halberds and pikes; and are so circumstanced, that it may be reasonably concluded they are in a posture of war." In the same page he gives the reason "because they thereby shew that they mean to make their attempts by a military force." Such is the argument of the five judges against five, in the Weavers' Case, in Hale P. C. p. 145, 6, according to which the Attorney General proceeded in the prosecution. "The evidence should be that they are assembled in posture of war, armis offensivis et defensivis." Sir M. Foster himself, in p. 211, seems rather inconsistent with his own doctrine; for he there defines the offence by this sentence; "all risings in order to effect these innovations of a public and general concern by an armed force." "But the latter part of the above quotation from sir M. Foster suggests reflections more serious than these." The insurrection was to be considered as a Declaration against the Toleration act." "The bare notion of a constructive or implied guilt, i. e. a method of moulding by rules of art, the natural actions of men into artificial forms, whereby to fit them to the standard measure of punishment, is in itself disgusting to the mind: but to go further and raise construction upon construction, by making "I cannot help observing here, (it is ad hominem only) that the learned author seems to shew a partiality for the case of Dammaree, and an earnest zeal to support it. He betrays this by the manner in which he relates the pardon granted him. "Her majesty's new advisers did not choose to have the dawn of their administration stained with the blood of one of Dr. Sacheverell's ablest advocates." "This opinion in one of his solid understanding and known regard for the constitution, is only to be accounted for by recurring to the particulars of his life and political sentiments. He was old enough at the time of the trial, to have imbibed strong party prejudices, which he is known to have held, and which coincided with the conviction of the prisoner. Perhaps in the eagerness of youth and party zeal, he adopted the doctrine then advanced as a rule of faith, or test of principles, which was confirm.ed by habit and length of time beyond the cure of reflection; and he might honestly think himself bound to defend it. Such examples are to be found even among men of liberal vinds. "I cannot take leave of this case without observing further, that whoever considers critically the judgment delivered by chief justice Parker, before quoted in p. 19, upon the special verdict, will find in it strong marks of an implicit dependence on former opinions, without examination. Even the particular manner of printing it deserves to be noticed. I mention this as an inferior consideration, and perhaps, personal to the writer; yet not fit to be altoge.. at the parish of St. Clement Danes aforesaid, in the county of Middlesex aforesaid, falsely, unlawfully, devilishly, and traitorously, did compass, imagine, and intend open war, insurrection, and rebellion, against our said lady the queen, within this kingdom of Great Britain, to ther passed by: For every such observation tends more or less to weaken the authority of the case. "I have now stated all the leading cases. For I think it unnecessary to mention those which have happened since that of Dammaree; because if that case is to be maintained, I know of none in modern times which may not be fairly deduced from it. On the other hand, as they derive their whole strength from the same source, they must fail in like manner, if that fails. The case of lord George Gordon carries the construction farther indeed, but very logically and lawfully according to its principles. The chief justice at that trial declared it to be the unanimous opinion of the court, "That an attempt by the multitude then assembled, by intimidation and violence, without warlike array, to force the repeal of a statute, was a levying war against the king, and high treason." "Having thus stated the authorities on which the cases depend, and considered the qualities of each separately, I shall examine those points in which they all agree. "There seem to be two general principles current through them all, (besides that of partaking of the long lost principles of Tudor and Stuart governments before-mentioned) from which they derive their whole strength and efficacy. One is ancient, the other modern. "J. The first is, that the offence is an invasion of the king's prerogative, or in the words of the books, an assuming of royal power, by taking the laws and reformation into the subject's hands. "II. The second, that this crime consists in, or is manifested by the generality of design. "The first will be found bad in its origin, inconsistent in its theory, and uncertain in its objects. "The second is equally uncertain, as préscribing a rule of conduct, and futile in the reasoning used for its support. “I. On the first of these general positions, I offer, "First, the statute itself, as a full and direct refutation of the argument. The parliament roll enables us to connect the petition in the 21st year of Edw. 3, with the statute. That petition prays to have the charge of assuming royal power defined. The preamble there pre- | fixed to the enacting of the statute, proceeds upon the Commons' petition, and then the enactment does expressly define the law with reference to their petition. It stands thus in the original."Quant a la Petition tochante Treison, nostre Seignur le Roi ad fait declarer les articles de ycelle en manere qe ensuit: C'est assaver, En cas &c." 2, Parl. Ro. 239.] raise and levy: and your said treasons, compassings, imaginations and intentions to fulfil and bring to effect, you the said Daniel Dammaree afterwards, that is to say, the said first day of March, in the ninth year aforesaid, in the said parish of St. Clement Danes, in the It is the same as declaring, "Our judges shall proceed no more upon these loose charges; here is the law laid down for them, and such only are the articles of high treason." And then specifies a peculiar case, which shall not be deemed an act of a treasonable kind, though apparently an invasion of the prerogative of the crown. “If the minds of men had not been, by long habits of contracted reasoning, "Held in the magic chain of words and forms "And definitions void," this view of the law could not have failed to impress them with a sense of the injustice of such artificial constructions, as we find in the foregoing cases. Sir E. Coke could not have considered the petition and statute together, when he wrote that passage quoted in pp. 20, and 21, concluding the actions he describes to be treason, because the offenders take upon them royal authority, &c." He then observes upon this phrase, as I have already stated in vol. 11, p. 623. After which he states, that the accusations which he had noticed " are not exactly similar to those, on which the foregoing constructive treasons are founded. To come therefore at their true origin and principles, let us examine their qualities. The first case put by sir E. Coke is, To expulse strangers.' (3 Inst. 9.) That our kings did actually exercise this power, is well known. Witness the different banishments of the Jews by royal proclamation. Edward the second in the ninth year of his reign, issued a writ for banishing all Flemings out of the kingdom, because his treaty with the king of France had bound him to do so; those only being excepted, who were married and settled here. (3 Rym. Fœd. 538.) Edward the third likewise banished the Flemings in A. D. 1359, upon some offence they had given him. (3 Tyrrell, 620.) The Commons in 1376 requested him to banish the Italian brokers. (2 Parl. Ro. 332, n. 58.) An insurrection therefore to expel strangers, might with reason in those days, or when such examples were practised or remembered, be deemed an assumption of royal power. But is the power of the crown now so gifted, or so considered, either by him who wears it, or his people? "To alter religion or the laws,' is another of the instances put; although no case, or decision, or opinion of judges is referred to for its foundation. That was a power exercised by Henry the 8th. And although he generally made use of parliament to serve his ends, the nation was neither able nor inclined, to distinguish between the powers he exercised by act county of Middlesex aforesaid, by force and arms, against our said sovereign lady the queen, your sovereign and undoubted liege lady, with a great multitude of men, to the jurors unknown, to the number of five hundred persons, of parliament, and those he claimed by prerogative. The general temper of the people was become servile and submissive. They saw and felt that, whatever might be the form assumed, the real hand that directed every act of state was the king's. The articles against Wolsey may be again referred to, as they furnish a striking example of this. They are in the form of a complaint to the king of the cardinal's excesses, and made by the council. At the conclusion of them, the Lords beg the king to set such order and direction upon the said lord cardinal, as may be to the terrible example of others, &c. They seem to have no idea of any other course than the king's pleasure. (Petyt, Jus Parl. 222.) Lord Herbert in his history of this reign has a remark, very fit to be mentioned in this place. He says, it was not hard for the king to deviate from the rules of law; the practice thereof having been so long interrupted in the civil wars of York and Lancaster, which left many openings for the regal authority to enter at. (Hist. p. 4.) "Yet there is something in the above description of this treason, so correspondent to that of stat. 3, 4, Edw. 6, c. 5, against unlawful assemblies, that the case in question (if it ever happened) seems likely to have been founded upon that statute. By this act it is made high treason, for twelve or more persons 'to intend go about practice or put in ure, with force of arms, unlawfully and of their own authority, to murder, kill, slay, take or imprison any of the king's most honourable 'privy council; or unlawfully to alter or change 'any laws made or established for religion by authority of parliament, or any other laws or 'statutes of this realm, or any of them, if such persons do not retire on being duly required; or continue together an hour, &c.-or attempt any of the above purposes. Yet according to the law of constructive treason, the case was already provided for by the act of Edward the 3d. "Before the Reformation, an attempt to alter religion would not have been thought a temporal offence; but would have been left to, or claimed by, the spiritual courts. Oldcastle, lord Cobham's case, in the reign of Henry the 5th, was one of treason and heresy mixed together; but the Lollards were considered as offenders against the Church, and prosecuted as such. Or if they assembled in great numbers, martial law was executed upon them; which was the course generally followed against riotons assemblies, till the end of Elizabeth's reign. James the 1st, in a proclamation that will be quoted hereafter, declares his unwillingness to proceed by martial law against certain rioters; and bis stile shews that this course was not out of use then. VOL. XV. armed and arrayed in a warlike manner, that is to say, with colours flying, swords, clubs, and other weapons, as well offensive as defensive, unlawfully and traitorously being assembled and gathered together, public war "If this supposed case arose out of the act of Edward the sixth, there is an end of it now: For upon the repeal of that statute in the next reign, any resolutions of judges that may have been founded upon it expired; according to the doctrine of sir Edward Coke, 3 Inst. 8, and 24, and Hal. P. C. 308, upon the effect of the act 1 Mariæ. Mr. St. John in his speech against lord Strafford, refers to the case of sir N. Throckmorton, in queen Mary's time, as one of levying war for alteration of religion. (5 Rush. Coll. 684.) But he quotes no authority; and the printed trials of him and sir Thomas Wyat contain nothing of it. As the case rests on conjecture, so does my comment. But is it not disgraceful to our laws, that a position gravely laid down by judges of former times, and so received by judges of modern times, as an established rule of criminal law, should rest upon conjecture for its authority? An objector can only state it hypothetically, and answer it for the sake of argument. It may have had no better origin, than a writer's statement of the law of treason, in the reign of Edward the sixth, when such was the law, implicitly copied by succeeding writers, without attention to the change made by his successor. I am sorry that there may be found such cases of negligence in our books, which have led to errors as dangerous as this. "The article to remove counsellors,' altered in the second stage of its progress, and with no better authority, to evil counsellors, I believe to have been compounded in the same manner as the last, and therefore to be liable to the same censure. If it arose out of the earl of Essex's case, for it is uncertain whence it came, and this was one of the charges against him, it belongs to the first clause of the statute, of compassing the death. (3 Co. Inst. 12.) The words respecting the privy council in stat. 3, 4, Edw. 6, may have had an effect in Bensted's case, notwithstanding its repeal. So vague and arbitrary were the opinions of that time. "To pull down inclosures,' is another of the examples. Edward the sixth issued a proclamation against inclosures, commanding those who had inclosed the commons, to lay them out again by a particular day, under a penalty. (Grafton Chron. p. 1301.) Henry the eighth had done the same in 1521. (Hollinsh. p. 1500, 1st edit.) Many similar proclamations were issued in both these reigns. It matters not for the present purpose, whether they were lawful or not. [If the reader wishes to consider this subject of proclamations more particularly, it will be worth his while to read the Commons' Address to James the first, in Petyt's Jus Parl. p. 326, &c.] They required and inforced obe dience from the subjects; whose habits and 2 M against our said lady the queen, at the parish aforesaid, in the county aforesaid, the day and year aforesaid, traitorously did prepare, begin, and levy, against the peace of our said Sovereign lady the queen, that now is, her crown and dignity, and against the form of the statute in that case made and provided. opinions are formed upon what they see in common practice, without enquiring into the right or source of authority. Cl. of Arr. How say you, Daniel Dammaree, are you Guilty of the High Treason, for which you have been indicted, and are now arraigned, or Not Guilty? Dammaree. My lord, I was so much in liquor, that I do not know what I did. Serj. Richardson. You must now plead "Bella-plus quam civilia—" and more suitable to a poem than the seat of judgment. If the offence were greater than the accusation, it was not a subject for that trial. It might deserve greater punishment, but the law committed to him had not ordained it. "If so, (with submission to so great a name) it seems unreasonable to accuse a man of assuming to act as king, with the same "It appears from the proceedings against breath that admits the action itself not to belong the duke of Somerset, that the proclamation of to royalty. His lordship's sentiment and exEdward the sixth for inclosures was an arbi-pression are in the style of Lucan's exordium. trary measure of the duke's against the advice of the council. The 11th of the articles (2 Burnet Ref. Coll. of Rec. No. 46,) objected to him is on this account, whereby he caused insurrections; not because the act itself was thought illegal, nor is it so charged against him. "Another of the examples is, To set a ⚫ price upon victuals.' This was one of the ancient prerogatives, in constant exercise; repeatedly restrained by acts of parliament, whose number sir E. Coke reckons above forty, which were never regarded by the purveyors. The 39th of the articles against Cardinal Wolsey will sufficiently explain this subject, viz. According to the ancient custom used within your verge, your clerk of the market during his office, did present unto your officers of your most honourable houshold, the prices of all manner of victuals, within the precinct of the verge. And it was commanded by your ⚫ said officers, to set up the said prices both on the " gates of your honourable houshold, and also within the market-place, &c.' The charge here against the Cardinal is, that he ordered the king's prices to be pulled down, and his own to be set up. By which presumption and usurpation, he made himself equal to the king's real majesty. (Petyt Jus Parl. p. 220.) King Edward the sixth, in his Journal, (2 Burnet Ref. App. pp. 40, 55,) mentions a proclamation that he issued for regulating the price of meat, &c. as a matter of course; and adds, that the city of London was threatened with the loss of its franchise, if the prices were not lowered. King James the first in the beginning of his reign issued a similar one, for the clerk of the market to proclaim and put in force within the verge. (See it in his Procl. p. 11.) "But what can be said to the examples given, of certain acts which the crown never did or could perform, when they are stiled acts of royal power? namely, To open prisons, and pull down bawdy-houses and meetinghouses.' Lord Chief Justice Parker, in giving judgment in the case of Dammaree, seems aware of this absurdity; and strives to obviate it by saying, 'It is taking on them royal authority-nay more; for the queen cannot pull 'them down, till the law be altered. Therefore he has here taken on him not only the royal authority, but a power that no person in Eng'land has.' "The reasoning of sir M. Foster excludes what seems to be the sensible argument upon this point; namely, that the real guilt was supposed to consist in the proceeding by an armed insurrection, to the criminal purpose. For he declares the purpose and intention (as the law discovers them) to make the treason; and that an armed insurrection, without more, makes an inferior crime. Nay, relies so much on the supposed intention, as to put martial force out of the question, provided there be sufficient force. To me, this mode of reasoning seems the reverse of that which guided the judges of former times. I believe they considered the arined insurrection, to have made the real danger and offence to royalty; however they might impute it to the designs of the rioters, clothed as they were by them in technical phrases, in order to avoid clashing with the words and plain sense of the statute of treason. "But as observed before, the exception in this statute, of the case of going out with armed men, does directly refute this whole reasoning, about taking the law and reformation into the subject's hands. For he that raised a body of armed men, to obtain satisfaction for injuries, and carried on the petty warfare which then prevailed, certainly came within the exact meaning of that phrase, which has been so improperly described as a criterion of the treason. He assumed royal power, and took the laws into his own hands, to obtain justice for himself. “If we consider the feeble state of a royal residence, except in particular castles, before military guards were established, we cannot wonder at the suspicious care with which any appearance of insurrection would be watched. This may serve a little to excuse the severity of the old opinions, and to account for the ready charge of high treason upon public violence: Especially if those who might have cause to fear any popular resentment, might be found in the king's retinue. Even so late as the time of queen Elizabeth, the earl of Essex's design to obtain possession of her either Guilty, or Not Guilty. If you plead Not Guilty, you will be put upon your trial, and be heard fully in your defence, by yourself, or counsel. palace, was formed upon the expectation of being opposed by only a dozen halberdiers, or some such small number. (Lord Bacon's Works, 8vo. vol. 3, p. 192.) "Secondly, this doctrine is inconsistent. "According to Coke and Hale, a conspiracy to levy war is not an overt act of compassing the king's death. But Foster says they are mistaken. (Page 211, note.) Therefore take it, according to the latter, to constitute such overt act. But observe: This war is not that of the statute of treasons, against the king in his realm, but the king of constructive treason, in the cases. As for example, if it be an insurrection which in judgment of law is intended against the person of the king, as to imprison or dethrone him; a conspiracy to levy war for these purposes, is such overt act. (Foster, sect. 3.) But according to the learned judge's sixth section, a conspiracy to levy war against the king's royal majesty, is not an overt act of compassing the king's death. His citation of Hale in the margin of the page is not an authority for this point. It stands here therefore as the author's own doctrine; and his two sections can be rendered consistent, only by making the king on the throne, a different being from the king in his realm, of the statute; or by reestablishing the hypocritical quibble of the civil wars, and separating his person from his majesty and authority. So dangerous is the departure from plain sense. The statute means to describe one kind of direct war; but the cases have made several, metaphysical and argumentative wars. There is the war in fact, and the war in law; the war of military preparation, and the war of logical conclusion. "There is an answer in kind that may be given to this construction, which is direct and conclusive. It must be admitted, that the king whose death is forbidden to be compassed, is the same king as he against whom war ought not to be levied. But the king in law, i. e. the royal authority, never dies. If therefore under this statute, war may be raised against the royal authority, it must be admitted, that the death of the same royal authority may be compassed, i. e. the death of him who dieth not, and whom treason itself cannot kill. Henry Vane's defence contains some just observations on this point. Nor ought it to be deemed an overstraining of this mode of construction, to contend as Vane does, and as serjeant Glynn did in Cromwell's time, that the word 'king' of the statute of Edw. 3, extended to a protector in possession of the supreme power. Like lord Peter and Jack, in their hateful basty zeal to run from each other, these two absurdities immediately meet or cross. this strain was the resolution, that Charles the 2d was king de facto as well as de jure, whilst a wanderer abroad, and when his constructive Sir In Cl. of Arr. Are you Guilty, or Not Guilty? Cl. of Arr. Culprit, how wilt thou be tried? subjects did not know where to find him. (See Kel. 15.) "I must enlarge upon the discussion of this point, because it will receive direct and ample illustration from that highest example which our history furnishes, the civil war of the 17th century. It is remarkable, that in those declarations of the king and parliament, by which both parties endeavoured to make their causes good, the king contends for the plain doctrine of treason, by levying war against bis person, and the parliament is driven to equivocation, in maintaining the constructive doctrine. "The king's answer of May 4, 1642, to the parliament's declaration, shortly states the case of sir J. Hotham's armed opposition to him at Hull, (See 4 Rushw. Coll. p. 573.) as high treason according to stat. 25 Edw. 3, by levying war against his person. (lb. pp. 568, 9.) The remonstrance of Lords and Commons of May 26th, contains the following article of answer to the above, which they call the main point of all. (Ib. pp. 584, 5.) • Sir John Hotham is said to have shut the gates against his majesty, and to have made resistance with armed men in defiance of his majesty: Whereas it was indeed in obedience to his majesty and his authority, and for his service, and the 'service of the kingdom, for which use only all that interest is, that the king hath in the town; and it is no farther his to dispose of 'than he useth it for that end. And sir Joh Hotham being commanded to keep the and magazine, for his majesty and King 'dom, and not to deliver them up ut by his majesty's authority signified both Houses of Parliament, all that is to ve understood by 'those expressions, of enying and opposing his majesty's entnce, and telling him in plain terms be nould not come in, was only 'this; that ne humbly desired his majesty to forbear ais entrance till he might acquaint 'the parliament, and that bis authority might come signified to him by both Houses of Parliament, according to the trust reposed in him. And certainly if the letter of the statute of 25 Edw. 3, c. 2, be thought to import this, that no war can be levied against the king but what is directed and intended against bis per'son; or that every levying of forces, for the ' defence of the king's authority aud his king'dom, against the personal commands of the king opposed thereunto, though accompanied 'with his presence, is levying war against the king, it is very far from the sense of that 'statute. And so much the statute itself speaks (besides the authority of book cases, prece'dents of divers traitors condemned upon that 'interpretation thereof) For if the clause of levying war had been meant only against the 'king's person, what need had there been thereof after the other branch of treason in · |