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dence of their propriety. Another maxim, of equal force, was to preserve ancient laws in their primitive siniplicity, till experience had proved them inadequate to their intended purposes. The statute of Edward III. concerning treason, had not been proved, but merely asserted, to be unequal to the punishment of the outrages referred to in the two bills. in the opinion of one of the greatest , luminaries of the law in this country, the lord.chief-justice Hale, that important statute had been enacted, as a remedy against former oppression, and to secure the subject against illegal prosecution. To compass, or even to imagine, the death of the king; was, by that statute, declared high treason: could words be found of stronger import, or of plainer meaning ? To levy war against the king, or to grant comfort and protection to his enemies was, by that statute, made equally criminal; but it did not make the compassing to levy war against him high treason, because the legislators of that day did not consider a conspiracy to levy such a war as more than a misdemeanor, which, like many others, might not deserve material notice, while no clear and overt act could be adduced to prove it, and without which act no treasonable intentions could lawfully be presumed. Mr. Erskine argued, from the decision of lord-chief-justice Holt, that overt acts alone, properly established, oughť 10 be admitted as proofs of guilt in trials for high treason. The bill in contemplation would, he explicitly affirmed, extend the crime of high treason to such a multitude of trivial cases, that every petty misdemeanor might be brought within its construction. Mr. Erskine was replied to by the attorney-general, after which,

Mr. Fox said, it did not appear to him from what he had heard, that there was any thing very auspicious to the freedom of the people of this country to be expected from the progress of the bill before the House. The honourable and learned gentleman had begun his speech with finding fault with his learned friend (Mr. Erskine) for having blended the two bills in argument on the present occasion. Though his honourable and learned friend had spoken at considerable length, and with an effect which he trusted would not easily be forgotten, and though the two bills, in their component parts, might be traced to the same principle, and considered as the result of a connected attempt on the liberties of the country, he called upon the I louse to recollect that his honourable and learned friend had spoken most distinctly to the bill then before the House, and also on the system which ministers had lately adopted for the purpose of subverting the liberties of the people of England. In this his honourable and learned friend was perfectly right, because the charge he made was just. He spoke of one in consequence of the connection which it evidently had with the other; they were both branches of the same system, which ministers had adopted against the liberties of the people; and he must say again,

that, from the manner in which the honourable and learned gentleman had taken up the subject, it did not give him the most favourable opinion of the manner in which this business was intended to be conducted by its advocates; by the specimen he had witnessed, he was not led to expect any great candour.

The business then before the House undoubtedly was, the nature of the present bill; he hoped, however, he was not mistaken when he expected that parliament would consider that the preamble of a bill and its enactments were two separate and distinct things. If that were true with respect to a bill that originated in that House, did it not more emphatically apply to a bill that originated in the other House of parliament? And if the bill then under consideration not only came from another House of parliament, but came also from persons who were suspected of not being attached to the best principles of our constitution, upon that view only, if there had been no other, he was desirous that the bill should be rejected; because he could not help thinking that the House would do well to consider the state of the country, to watch with anxious care and constitutional jealousy, every thing that tended to abridge the rights of the subject, and then consider the state of public affairs, and adopt some measure for its safety, if, upon mature deliberation, some measure should be found to be necessary.

To him, Mr. Fox said, there had appeared to be one way of considering a bill which could not fairly be objected to; that was to attend to the preamble of it. He had flattered himself that he knew something of the bill from some recollection of its contents : however, the speech of the honourable and learned gentleman had staggered him; certainly the speech he had heard bore no resemblance to the ideas he had entertained of the bill. From one part of that speech a person who was a perfect stranger to the bill, would have thought the bill was a declaratory law on the crime of treason, and on the meaning of the statutes which defined it. He would have expected to have heard read as an introduction to the bill, words to this effect: 65 Whereas doubts have arisen respecting the law as it now stands with regard to the crime of treason; be it declared, &c.” Instead of this, he only found that reference was had to, and loose, very loose, comments made on what had recently happened, and on facts which had lately been brought forward in a court of justice. The honourable and learned gentleman, had done no more than this, and then appeared to insinuate, to render the bill a little less disgusting, that it was intended to be only temporary. He would ask, if the bill was to be temporary,

VOL. VI.

where was the propriety in making it of a declaratory nature ? A declaration must be either true or false: truth was eternal : if, therefore, the bill depended upon the truth of its declaration, it should not be a bill passed for a temporary purpose, but ought to be made a permanent law. This, however, was not the case with respect to the present bill; it was made use of as an argument for the moment, to take it in that light by way of justification of its enactments; but the bill itself was only an experiment to try how the people would bear it. If any part of the learned gentlemen's speech was attempted to be opposed to the reasoning of his honourable and learned friend, by way of answer or refutation, it was that which related to the construction that had been put from time to time by judges on the statute of the 25th of Edward III. Was the bill a measure to set that question at rest, as the honourable and learned gentleman had stated it? Was such a declaration necessary? If the honourable and learned

gentleman thought so, would it not bc necessary to bring in a bill to make that declaration explicit? Upon the necessity of making that declaration he might agree with the honourable and learned gentleman. 66 That the declaration of the honourable and learned gentleman and mine upon that law would be different, I have, said Mr. Fox, as little doubt as that we differ upon this; but the bill surely cannot be considered in the light of a declaration, because it is temporary, and says nothing upon treason as to the levying of war." With regard to the act of Edward III. he must make a distinction between an attack upon the natural life and political power of the king. He could easily conceive that any person, who should be guilty of an attack on the natural life of the king, that was to say, who had, by overt-act, proved that he compassed or imagined his death, should be subject to the highest penalty of the law; and yet that an attempt at the destruction of the political power of the king should only be deemed guilty of a misdemeanor. He knew it was a popular argument; he had conversed with many who urged it, and said, “ Why, is it not absurd to say you will guard the natural life of the king, which, in a constitutional point of view, cannot be more important than the political power of the king, more than you will guard that political power ?” In his opinion, that argument was wholly fallacious; because the laws of a state were not to be governed by the ideas of guilt, and in proportion to our feelings as to the mischief which might possibly ensue, but in proportion to the difficulty or facility with which the object might be attacked. It was in this last view that the wisdom of our ancestors had framed the law of Edward III. They had said, that he who should,

a

by overt-act, prove that he compassed or imagined the natural death of the king, should be guilty of high treason. Why? Not because the natural life of the king could be more constitutionally important than the political power of the kingly office, but, as his honourable and learned friend (Mr. Erskine) had well observed, because the death of the king could be accomplished by one man who was wicked enough to determine on it; and this he could do in an instant with pistol or a dagger, or in any other way; and therefore the legislature had done wisely to declare, that he who should compass or imagine the death of the king should be guilty of high treason. To such an act there ought to be the highest possible penalty annexed.

Mr. Fox said, he was ready to admit that the king's person was not so well guarded as he could wish, but it was as strongly guarded as it was possible to guard it by law. Guards of another description, indeed, he might have, but nothing of that sort was proposed by the present bill; and he trusted they never would be proposed by any parliament, because it would be highly unconstitutional. With regard to the political power of the king, he must observe, that although, constitutionally speaking, that was a still dearer and more precious object to them, yet there was no necessity of guarding it in the same manner; because, the destruction of the political power of the king could not be effectually attacked by one man, nor could it be accomplished, like the other, in one moment. Levying war for the destruction of government could not be the act of a single man, it must be the act of multitudes; it must, indeed, be a sequence of acts, upon which a government might wait with safety until something was done, instead of declaring that the compassing or imagining constituted the guilt, as the law declared in the other case. The difference was, in the one case the king might be assassinated by a single individual in a moment; whereas the constitution could not be assassinated but by a series of acts committed by a multitude of persons; that was the reason why our ancestors had made an attack upon the life of the king, a different offence from that of an attempt to subvert the monarchy. The distinction had been well marked by a common expression -" the constitution may be des stroyed, but it cannot be assassinated.”

Mr. Fox having thus observed on the wisdom of our an+ cestors with respect to the statute of Edward 111. wished to say a few words with regard to the construction which had been put upon it. He might be asked, whether he approved of the construction which had been put by the judges upon that statute? He admitted the ingeriority of Lis judg

1

ment to that of those learned persons; he must, however,
form it from the best lights he was able, and having done so,
he had no difficulty in saying, that he did not agree with
them according to the statement of the honourable and learned
gentleman that night. If he were asked, whether he thought
the judicial determination of the judges from time to time
made part of the law of the land ? he would answer, he was
not competent to determine that question. This he would
nevertheless say, that an act of parliament was a part of the
law of the land, as interesting as the judicial determination
of the judges, and often more intelligible to the mass of
mankind; and it was and ought to be, of higher authority.
If, therefore, there was a doubt as to the real meaning of the
act of Edward III. he had no objection to a parliamentary
declaration of the law in that respect; what that declaration
should be, he would be ready to argue hereafter. For the
sake of the argument, he would allow, that all the judgments
which had been given by the judges were correct; and then
he would maintain, that gentlemen on the other side had not
proved, that this bill was not a material alteration of the law
of the land; but that he would not enter into at that moment,
but merely observe, that his honourable and learned friend's
arguments upon that, as well as other points, had not at all
been answered. Whether the point was to be given up, he
did not know; but as it stood at present, it made conspiracy
to levy war a substantive treason. [The Attorney General
explained, that it only put under this description a conspiracy
to levy a direct war, and not to levy an indirect war.] Then,
continued Mr. Fox, the point is gained; if, in some instances,
it made a conspiracy to levy war a substantive treason, and
in others not, it was evident that a material innovation had
been made. With respect to the construction of the law of
Edward III. he had always thought, from what he had read
from Hale, from Foster, and other authorities, and he had
read their works with attention, that the point was ar,
particularly the case of a special verdict. He conceived that
when there were charges of levying direct war, stated as high
treason, for deposing the king, they were always stated in
that

way, that they were overt acts, to prove the intention of
compassing and imagining the death of the king; and, upon
that, the question came to this: whether such acts proved
the compassing or imagining? If that levying of war be of
itself treason without the compassing or imagining, then a
verdict that the defendant did so conspire and levy war, with-
out saying one word of the compassing or imagining, would
be a complete verdict, aņd whatever the opinion of the jury

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