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the instigation of the devil, tbe 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 cornmon 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, ibat now is, with drums; and Whitelock in his short ac- this artificial guilt the base of a new scale of count of the case (Memor. p. 33), dwells ex- crimes in succession, is cruelty in extrava. pressly on this, as the cause of the judgment. gance. Here we have the rule of construc
" In Messenger's Case the multitude were tion extended beyond former precedents and led by persons called Captains, and had co- its own principles, in this very manner, lours. (Kel. 71, 72.) The captain brandished Having construed the forcible opposition to a naked sword, and another flourished the co- a law into the guilt of levying war against loars. Hale io stating the point of this case the king, by former examples, this decision in few words, describes it as an assembly more now proceeds to construe certain acts of the guerrino for their purpose. Hale P.C. p. 153. rabble, into a forcible opposition to the law;
“ The phrase modo guerrino arraiali (ar- of which, as a statute, they perhaps knew 110raiez a fier de guerre, in the French of ancient thing but the name. By which degrees of times) is a material' description in all the old construction, the guilt is supposed to be very indictments. If it be asserted that this means logically connected with the statute of treasons, do more than the force and arms in a case of the moral connection being quite laid aside trespass, I answer that the assertion is not sup- This is monstrous; for by the same scheme of ported by any authority. Sir M. Hale (p. 150), inferences as logically drawn, and conclusions considers it as a description of the overt act by equally true, we may prove the man who robs which the crime is to be proved. In p. 131, he on the bighway, to have compassed the death writes, “ The assembling of many rioters in of the king. But the subject is too serious for great numbers to do unlawful acts, if it be not ridicule, and I leave it here. This example modo guerrino or in specie belli, as if they have shews how careful we should be to adhere to no military arms, nor march or continue to- the plain rules of reason, and how directly one gether in the posture of war, may make a great deviation from them leads to others, till error in riot
, yet doth not always amount to a levying confirmed by error, and truth is confoupded in of war." His observations from p. 149 to 154 their iatricate mazes. are intended to inforce the same doctrine. “ It “ I cannot help observing here, (it is ad homust be such an assembly as carries with it minem only) that the learned author seems to speciem belli; as if they ride or march' vexillis sbew a partiality for the case of Dammaree, cxplicatis; or if they be formed into compa. and an earnest zeal to support it. He betrays nies; or if they be furnished with military this by the manner in which he relates the Weapons, as swords, guns, bills, halberds and pardon granted him. “ Her majesty's new pikes; and are so circumstanced, that it may advisers did not choose to have the dawn of be reasonably concluded they are in a posture their administration stained with the blood of of war.” In the same page he gives the reason one of Dr. Sacheverell's ablest advocates." " because they thereby shew that they mean “ This opinion in one of his solid understandto make their attempts by a military force.” ing and known regard for the constitution, is Such is the argument of the five judges against only to be accounted for by recurring to the five, in the Weavers' Case, in Hale P. C. p. particulars of his life and political sentiments. 145, 6, according to which the Attorney Ge- He was old enough at the time of the trial, to neral proceeded in the prosecution. “The evi- bave imbibed strong, party prejudices, wbich dence should be that they are assembled in he is known to have held, and which coincided posture of war, armnis offensivis et defensivis. with the conviction of the prisoner. Perhaps Sir M. Foster himself, in p. 211, seems ratber in the eagerness of youth and party zeal, he. inconsistent with his own doctrine ; for he there adopted the doctrine then advanced as a rule of defines the offence by this sentence; “ all faith, or test of principles, which was confirm.ed Tisings in order to effect these innovations of a by habit and length of time beyond the cure of public and general concern by an armed force.” reflection; and he might honestly think him
“ But the latter part of the above quotation self bound to defend it. Such examples are to from sir M, Foster suggests reflections more be found even among men of liberal sinds. serious than these.-" The insurrection was to “ I cannot take leave of this case without be considered as a Declaration against the To. observing furtber, that whoever considers crileration act.”
tically the judgment delivered by chief justice “ The bare notion of a constructive or im. Parker, before quoted in p. 19, upon the speplied guilt, i.e. a method of moulding by rules cial verdict, will find in it strong marks of an of art, the natural actions of men into artificial implicit dependence on former opinions, withforms, whereby to fit them to the standard out examination. Even the particular manner measure of punishment, is in itself disgusting of printing it deserves to be noticed. I mention to the mind: but to go further and raise this as an inferior consideration, and perhaps . construction upon construction, by making personal to the writer ; yet not fit to be altoge..
at the parish of St. Clement Danes aforesaid, in | raise and levy: and your said treasons, comthe county of Middlesex aforesaid, falsely, un- passings, imaginations and intentions to fulfil lawfully, devilishly, and traitorously, did com- and bring to effect, you the said Daniel Dampass, imagine, and intend open war, insurrec- maree afterwards, that is to say, tbe said first tion, and rebellion, against our said lady the day of March, in the ninth year aforesaid, in queen, within this kingdom of Great Britain, to the said parish of St. Clement Danes, in the ther passed by : For every such observation It is the same as declaring, “ Our jndges shall tends more or less to weaken the authority of proceed no more upon these loose charges; the case.
here is the law laid down for them, and such only “ I have now stated all the leading cases. are the articles of high treason.” And then For I think it unnecessary to mention those specifies a peculiar case, which shall not be which have happened since that of Dammaree; deemed an act of a treasonable kind, thougtı because if that case is to be maiutained, I know apparently an invasion of the prerogative of the of none in modern times which may not be fairly deduced from it. On the other hand, as “ If the minds of men had not been, by long they derive their whole strength from the same habits of contracted reasoning, source, they must fail in like manner, if that fails. The case of Jord George Gordon carries
“ Held in the magic chain of words and forms
“ And definitions void,"the construction farther indeed, but very logicall and vfully according to its principles. this view of the law could not have failed to The chief justice at tbat trial declared it to be impress them with a sense of the injustice of the unanimous opinion of the court, “ That an such artificial constructions, as we find in the attempt by the multitude then assembled, by foregoing cases. Sir E. Coke could not have intimidation and violence, without warlike considered the petition and statute together
, array, to force the repeal of a statute, was a when he wrote that passage quoted in pp. 20, levying war against the king, and bigb treason." and 21, concluding the actions he describes to
“ Having thus stated the authorities on be treason, because the offenders take upon which the cases depend, and considered the them royal authority, &c." qualities of each separately, I shall examine those points in which they all agree.
He then observes upon this phrase, as I have “There seem to be two general principles already stated in vol. 11, p. 623. current through them all, (besides that of par- After which he states, that the accusations taking of the long lost principles of Tudor which he had noticed " are not exactly similar and Stuart governments before-mentioned) to those, on which the foregoing constructive from which they derive their whole strength treasons are founded. To come therefore at and efficacy. One is ancient, the other mo- their true origin and principles, let us examine dern.
their qualities. The first case put by sir E. “ J. The first is, that the offence is an inva- Coke is, • To expulse strangers.' (s Jost. 9.) sion of the king's prerogative, or in the words That our kings did actually exercise this power, of the books, an assuming of royal power, by is well known. Witness the different banishtaking the laws and reformation into the sub- ments of the Jews by royal proclamation. Ed. ject's hands.
ward the second in the ninth year of his reigo, “ II. The second, that this crime consists issued a writ for banishing all Flemings out of in, or is manifested by the generality of design. the kingdom, because his treaty with the king
“ The first will be found bad in its origin, of France had bound him to do so; those only inconsistent in its theory, and uncertain in its being excepted, who were married and settle! objects.
here. (3 Rym. Fæd. 539.) Edward the third “ The second is equally uncertain, as pré- | likewise banished the Flemings in A. D. 1359, scribing a rule of conduct, and futile in the rea- upon some offence they had given him. (3 soning used for its support.
Tyrrell, 620.) The Cominons in 1376 re“1. On the first of ihese general positions, quested him to banish the Italian brokers. (? I offer,
Par). Ro. 332, n. 58.) An insurrection there. “ First, the statute itself, as a full and direct fore to expel strangers, might with reason in refutation of the argument. The parliament those days, or when such examples were pracroll enables us to connect the petition in the tised or remembered, be deemed an assumption 21st year of Edw. 3, with the statute. That of royal power. But is the power of the crown petition prays to have the charge of assuming now so gifted, or so considered, either by him royal power defined. The preamble there pre. who wears it, or his people ? fixed to the enacting of the statute, proceeds “. To alter religion or the laws,' is another upon the Commons' petition, and then the of the instances put; although no case, or deenactment does expressly define the law with cision, or opinion of judges is referred to for reference to their petition. It stands thus in its foundation. That was a power exercised by the origioal. “Quant a la Petition tochante Henry the 8th. And although he generally
Treison, nostre Seignur le Roi ad fait declarer made use of parliament to serve his ends, the les articles de ycelle en manere qe ensuit: nation was neither able nor inclined, to distinC'est assaver, Es cas &c." %, Parl. Ro. 239.] guish between the powers he exercised by act
county of Middlesex aforesaid, by force and armed and arrayed in a warlike manner, that arms, against our said sovereign lady the queen, is to say, with colours flying, swords, clubs, your sovereign and undoubted liege lady, with and other weapons, as well offensive as de á great multitude of men, to the jurors un- fensive, unlawfully and traitorously being asknown, to the number of five hundred persons, sembled and gathered together, public war of parliament, and those be claimed by prero- “ If this supposed case arose out of the act of gative. The general temper of the people was Edward the sixth, there is an end of it now : become servile and submissive. They saw For upon the repeal of that statute in the next and felt that, whatever might be the form as- reign, any resolutions of judges that may have sumed, the real hand that directed every act of been founded upon it expired; accordivg to state was the king's. The articles against the doctrine of sir Edward Coke, 3 Inst. 8, Wolsey may be again referred to, as they fur- and 24, and Hal. P. C. 308, upon the effect of nish a striking example of this. They are in the act 1 Mariæ. Mr. St. Joho in his speech the form of a complaint to the king of the car against Jord Strafford, refers to the case of sir dinal's excesses, and made by the council. At N. Throckmorton, in queen Mary's time, as the conclusion of them, the Lords beg the king one of levying war for alteration of religion. to set such order and direction upon the said (5 Rush. Coll. 684.) But he quotes no aulord cardinal, as may be to the terrible exam- thority; and the printed trials of him and sir ple of others, &c. They seem to have no idea Thomas Wyat contain nothing of it. As the of any other course than the king's pleasure. case rests on conjecture, so does my comment. (Petyt, Jus Parl. 222.) Lord Herbert in his his. But is it not disgraceful to our laws, that a potory of this reign has a remark, very fit to be sition gravely laid down by judges of former mentioned in this place. He says, it was not times, and so received by judges of modern bard for the king to deviate from the rules of times, as an established rule of criminal law, law; the practice thereof having been so long should rest upon conjecture for its authority ? interrupted in the civil wars of York and Lan. An objector can only state it hypothetically, caster, which left many openings for the regal and answer it for the sake of argument. It authority to enter at. (Hist. p. 4.)
may have had no better origin, than a writer's " Yet there is something in the above de- statement of the law of treason, in the reign scription of this treason, so correspondent to of Edward the sixth, when such was the law, that of stat. 3, 4, Edw. 6, c. 5, against unlaw- implicitly copied by succeeding writers, withtul assemblies, that the case in question (if it out attention to the change made by his sucever bappened) seems likely to have been
I am sorry that there may be found founded upon that statute. By this act it is such cases of negligence in our books, which made bigh treason, for twelve or more persons have led to errors as dangerous as this. "to intend go about practice or put in ure,
" The article to remove counsellors,' with force of arms, unlawfully and of their altered in the second stage of its progress, and own authority, to murder, kill, slay, take with no better authority, to evil counsellors, I or imprison any of the king's most honourable believe to have been compounded in the same privy council; or unlawfully to alter or change manner as the last, and therefore to be liable to any laws made or established for religion by the same censure. If it arose out of the earl authority of parliament, or any other laws or of Essex's case, for it is uncertain whence it
statutes of this realm, or any of them, if came, and this was one of the charges against sach persons do not retire on being duly re him, it belongs to the first clause of the staquired; or continue together an hour, &c._-ortute, of compassing the death. (3 Co. Inst. 12.) attempt any of the above purposes. Yet ac- The words respecting the privy council in stat. cording to the law of constructive treason, the 3, 4, Edw. 6, may have had an effect in Bencase was already provided for by the act of sted's case, notwithstanding its repeal. So Edward the 3d.
vague and arbitrary were the opinions of that " Before the Reformation, an attempt to alter time. religion would not have been thought a tempo- "To pull down inclosures,' is apother of ral offence; but would have been left to, or the examples. Edward the sixth issued a proclaimed by, the spiritual courts. Oldcastle, clamation against inclosures, commanding those lord Cobham's case, in the reign of Henry the who had inclosed the commons, to lay them 5th, was one of treason and heresy mixed toge- out again by a particular day, under a penalty. ther; but the Lollards were considered as of. (Grafton Chron. p. 1301.) Henry the eighih fenders against the Church, and prosecuted as had done the same in 1521. (Hollinsh. p. such. Or if they assembled in great numbers, 1500,
1st edit.) Many similar proclamations martial law was executed upon them; which were issued in both these reigns. It matters Was the course generally followed against riot. not for the present purpose, whether they were oins assemblies, till the end of Elizabeth's reign. lawful or not. [Ifihe reader wishes to consider James the ist, in a proclamation that will be this subject of proclamations more particularly, quoted hereafter, declares his unwillingness to it will be worth his while to read the Commons' proceed by martial law against certain rioters; Address to James the first, in Petyt's
. and bis stile shews tbat this course was not ovi p. 326, &c.] They required and inforced obe.
dience from the subjects; whose babits and
of use then,
against our said lady the queen, at the parish Cl. of Arr. How say you, Daniel Dammaaforesaid, in the county aforesaid, the day ree, are you Guilty of the High Treason, for and year aforesaid, traitorously did prepare, which you have been indicted, and are now begin, and levy, against the peace of our said arraigned, or Not Guilty ? sovereign lady the queen, that now is, her Dammaree. My lord, I was so much in licrown and dignity, and against the form of the quor, that I do not know wbat I did. statute in that case made and provided.
Serj. Richardson. You must now plead opinions are formed upon what they see in “ If so, (with submission to so great a common practice, without enquiring into the name) it seems unreasonable to accuse a man right or source of authority.
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 ex. Edward the sixth for inclosures was an arbi- pression are in the style of Lucan's exordiam. trary measure of the duke's against the advice
“Bellaof the council. The 11th of the articles
-plus quam civilia" (2 Burnet Ref. Coll.of Rec. No. 46,) objected and more suitable to a poem than the seat of to him is on this account, whereby be caused judgment. If the offence were greater than insurrections; not because the act itself was the accusation, it was not a subject for that thought illegal, nor is it so charged against him. trial. It might deserve greater punishment,
“ Another of the examples is, * To set a but the law committed to him had dot or* price npon victuals.' This was one of the an- dained it. cient prerogatives, in constant exercise; re- " The reasoning of sir M. Foster excludes peatedly restrained by acts of parliament, whose what seems to be the sensible argument upon number sir E. Coke reckons above forty, which this point ; namely, that the real guilt was sup: were never regarded by the purveyors. The posed to consist in the proceeding by an armed 39th of the articles against Cardinal Wolsey insurrection, to the criminal purpose. For he will suficiently explain this subject, viz.- declares the purpose and intention (as the law • According to the ancient custom used within discovers them) to make the treason ; and that an ' your verge, your clerk of the market during armed insurrection, without more, makes an • his office, did present unto your officers of inferior crime. Nay, relies so much on the • your most honourable houshold, the prices of supposed intention, as to put martial force out - all manner of victuals, within the precinct of of the que on, provided there be sufficient • the verge. And it was commanded by your force. To me, this mode of reasoning seems * said officers, to set up the said prices both on the the reverse of that which guided the judges of
gates of your bonourable houshold, and also former times. I believe they considered the within the market-place, &c.' The charge ariped insurrection, to have made the real here against the Cardinal is, that he ordered danger and offence to royalty ; however they the king's prices to be pulled down, and his might impute it to the designs of the rioters, own to be set up. By which presumption clothed as they were by them in technical and usurpation, be made himself equal to phrases, in order to avoid clashing with the the king's real majesty. (Petyt Jus Parl. words and plain sense of the statute of treason. p. 220.)
“ But as observed before, the exception in “ King Edward the sixth, in his Journal, this statute, of the case of going out with (2 Burnet Ref. App. pp. 40, 55,) mentions a armed men, does directly retute this whole proclamation that he issued for regulating the reasoning, about taking the law and reformaprice of meat, &c. as matter of course; and tion into the subject's bands. For he that raised adds, that the city of London was threatened a body of armed men, to obtain satisfaction for with the loss of its franchise, if the prices were injuries, and carried on the petty warfare which not lowered. King James the first in the be- then prevailed, certainly came within the exact ginning of his reign issued a similar one, for the meaning of that phrase, which has been so imclerk of the market to proclaim and putin force properly described as a criterion of the treason. within the verge. (See it in his Procl. p. 11.) He assumed royal power, and took the laws
“But what can be said to the examples into his own hands, to obtain justice for himself, given, of certain acts which the crown never “ If we consider the feeble state of a royal did or could perform, when they are stiled acts residence, except in particular castles, before of royal power ? namely, “To open prisons, military guards were established, we cannot • and pull down bawdy-houses and meeting- wonder at the suspicious care with which any
houses.' Lord Chief Justice Parker, in giving appearance of iusurrection would be watched. judgment in the case of Dammaree, seems This may serve a little to excuse the seaware of this absurdity; and strives to obviate verity of ihe old opinions, and to account for it by saying, “It is taking on them royal au: the ready charge of bigh treason upop public thority-nay more ; for the queen cannot pull violence: Especially if those w bo might bave them down, till the law be altered. Therefore cause to fear any popular resentment, might he has here taken on bim not only the royal be found in the king's retinue. Even so late authority, but a power that no person in Eng- as the time of queen Elizabeth, the earl of - land has.'
Essex's design to obtain possession of ber Kel. 15.)
either Guilty, or Not Guilty. If you plead Cl. of Arr. Are you Guilty, or Not Guilty ! Not Guilty, you will be put upon your trial, Damm. Not Guilly. and be heard fully in your defence, by yourself, Cl. of Arr. Culprit, how wilt thou be tried ? or counsel.
Damm. By God and the country. palace, was formed upon the expectation of subjects did not know where to find bim. (See being opposed by only a dozen halberdiers, or some such small number. (Lord Bacon's “ I must enlarge upon the discussiou of this Works, 880. vol. 3, p. 192.)
point, because it will receive direct and ample “ Secondly, this doctrine is ioconsistent. illustration from that bighest example which
“ According to Coke and Hale, a conspiracy our history furnishes, the civil war of the 17th to levy war is not an overt act of compassing century. It is remarkable, that in those de. the king's death. But Foster says they are clarations of the king and parliament, by which mistaken. (Page 211, note.) Therefore take both parties endeavoured to make their causes it, according to the latter, to constitute such good, the king contends for the plain doctrine overt act. But observe: This war is not that of treason, by levying war against bis person, of the statute of treasons, against the king in and the parliament is driven to equivocation, his realm, but the king of constructive treason, in maintaining the constructive doctrine. in the cases. As for example, if it be an in- “ The king's answer of May 4, 1642, to the surrection which in judgment of law is intended parliament's declaration, shortly states the case against the person of the king, as to imprison of sir J. Hotham's armed opposition to him at or dethrone him ; a conspiracy to levy war for Hull, (See 4 Rushw. Coll. p. 573.) as high these purposes, is such overt act. (Foster, sect. treason according to stat. 25 Edw. 3, by le3.) But according to the learned judge's sixth vying war against his person. (1h. pp. 568, 9.) section, a conspiracy to levy war against the The remonstrance of Lords and Commons of king's royal majesty, is not an overt act of com- May 26th, contains the following article of passing the king's death. His citation of Hale answer to the above, which they call the main in the margin of the page is not an authority point of all. (Ib. pp. 584, 5.) • Sir John for this point. It stands here therefore as the . Hotham is said to have shut the gates against anthor's own doctrine; and his two sections bis majesty, and to have made resistance with can be rendered consistent, only by making armed men in defiance of his majesty: Wherethe king on the throne, a different being from as it was indeed in obedience to his majesty the king in bis realm, of the statute; or by re- • and his authority, and for his service, and the establishing the hypocritical quibble of the service of the kingdom, for which use only civil wars, and separating his person from his • all that interest is, that the king hath in the majesty and authority. So dangerous is the town; and it is no farther his to dispose of departure from plain sense. The statute means than he useth it for that end. And sir Jordi o describe one kind of direct war; but the Hotham being commanded to keep the 1. cases have made several, metaphysical and and magazine, for bis majesty and singi argumentative wars. There is the war in "dom, and not to deliver them un
jut by bis fact, and the war in law; the war of military majesty's authority signified both Houses of preparation, and the war of logical conclusion. Parliament, all that is to be understood by ." There is an answer in kind that may be those expressions, of xnying, and opposing given to this construction, which is direct and his majesty's entmnce, and telling him in conclusive. It must be admitted, that the king plain terms he woould not come in, was only whose death is forbidden to be compassed, is this; that ne humbly desired his majesty to the same king as be against whom war ought forbear sis entrance till he might acquaint not to be levied. But the king in law, i.e. ihe the parliament, and that bis authority might royal authority, never dies. It therefore under come signified to bim by both Houses of Parthis statute, war may be raised against the liament, according to the trust reposed in him. royal authority, it must be admitted, that the · And certainly if the letter of the statute of 25 death of the same royal authority may be com- • Edw. 3, c. 2, be thought to import this, that passed, i. e. the death of him who dieth not, no war can be levied against the king but and whum treason itself cannot kill. Sir · what is directed and intended against bis perHenry Vane's defence contains some just ob- son; or that every levying of forces, for the servations on this point. Nor ought it to be • defence of the king's authority aud his kingdeemed an overstraining of this mode of con- dom, against the personal coinmands of the struction, to contend as Vane does, and as ser. king opposed thereunto, though accompanied jeant Glynn did in Cromwell's time, that the • with bis presence, is levying war against the word 'king of the statute of Edw. 3, extended • king, it is very far from the sense of that to a protector in possession of the supreme • statute. Aud so much the statute itself speaks power. Like lord' Peter and Jack, in their • (besides the authority of book cases, precebateful basty zeal to run from each other, these dents of divers traitors condemned upon that two absurdities immediately meet or cross.
In interpretation thereof) For if the clause of this strain was the resolution, that Charles the levying war had been meant only against the 2d was king de facto as well as de jure, whilst king's person, what need bad there been . wanderer abroad, and when his constructive thereof after the other branch of treason in