3 Inst. 7.

See Disc. IV.

Sect. 12. Benefit of clergy in trea

son.

25 E. III.

Stat. 3. c. 4.

2 Hale 332.

was considered by Parliament, even after his resignation and deposition, as a King against whom high treason might be committed. This he groundeth on the attainders of those who were concerned in the murder of him. But those attainders seem to me to have been grounded singly on a principle of law, which then prevailed, that compassing the death of the father of the King was high treason: and Lord Chief-Justice Coke accounteth for those attainders upon this principle, and upon no other. I have in another discourse entered largely into this question, and those touched upon in the 8th and 10th sections; and therefore I say no more of them in this place.

SECT. 12. I will conclude this introduction with a few words, touching clergy in the case of treason.

The statute de clero provideth, that clerks, convict for treasons or felonies touching other persons than the King himself or his royal Majesty, shall have the privilege of holy church. In consequence of this statute mere felonies of all kinds became intitled to clergy; and petit treason likewise became so intitled, till ousted by statute. It was treason of a more private nature, and not in consideration of law committed against the person of the King or his royal Majesty.

As the benefit of clergy in the case of felony is not confined to such offences as were felony at the time of making this statute, but in favour of life, or rather of, what the ignorance and superstition of former times called, the privilege of holy church, is extended to all new-created felonies, unless taken away by the statute creating such felony, or by some other; so, on the other hand, by parity of reason and in justice to the Crown and the publick, all new-created treasons, which in judgment of law are levelled at the person of the King or his royal Majesty, are excluded, without special words for that purpose, as coming within the exception of this statute.

Hale, it is true, saith, that in all cases of high treason, whether declared so by the statute of treasons or newly enacted since, the privilege of clergy is taken away. The rule is general, but, I apprehend, the learned author must be understood

with

with some limitation. All sorts of high treason, touching the person of the King or his royal Majesty, come within the exception in the statute de clero, and consequently are ousted without special words: but when offences of a more private nature, which, for the most part, terminate in an injury done to particulars, have, by reason of their odiousness and for publick example, been made high treason, or when that hath been attempted, of which the instances have been very rare, it hath been deemed expedient to take away clergy by express words for that purpose; for such new-created treasons, of a private nature, could not, with any sort of propriety, be said to touch the person of the King or his royal Majesty.

I will give a few instances of each kind of statute-treasons, which will serve to explain and establish the distinction I am aiming at.

The new-created treasons concerning the coin and seals are treasons of the same kind with those declared so by the statute of treasons, and come under the same rule. They are all treasons against the royal Majesty of the King.

The treasons created by statutes made for abolishing the papal and establishing the regal supremacy, for avoiding doubts touching the succession of the Crown and for establishing such succession, for the punishment of seditious and defamatory libels tending to create doubts and suspicions touching the King's title or government or the royal issue ;-these treasons and others of the like nature, of which instances more than enough may be met with in the Statute-book, having a direct tendency in the judgment of the legislature to disturb the peace and tranquility of the kingdom, and to endanger the stability of the government, come within the exception of the statute de clero, as being treasons touching the person of the King or his royal Majesty; and accordingly such of them as still exist are ousted of clergy without any express provision for that purpose.

But with regard to the lower species of treasons hinted at above as terminating in injuries done to particulars, the law hath been taken to be otherwise.

The

C. 9.

Cotton's Abr. 684.

8 H. VI. c. 6. See Rastal's Statutes.

1 Hale 571.

2 Hale 346.

The 22d of H. VIII. made wilful poisoning high treason, and enacted that the offenders should be boiled to death. This act by express words took away clergy.

In the 8th of Edw. IV. a petition was tendered to the King in Parliament by both houses, which, in those days, was the ordinary method of tendering bills for the royal assent, that sacrilege should be deemed high treason and the offenders burnt to death. Here likewise provision was made by express words, that clergy should be taken away, and the appeal for restitution saved. To this extraordinary petition the King returned an answer, becoming the royal Majesty of the Crown.

LE ROY S'AVISERA.

The use I make of these precedents is to shew, that in the case of these inferior treasons, terminating in injuries done to particulars, it was thought expedient to take away clergy by express words for that purpose, these treasons not being considered as done against the person of the King or his royal Majesty.

The 8th of Hen. VI. may seem to be an exception to the rule I am advancing; for it made the wilful burning of houses, under some special circumstances therein mentioned bordering upon acts of open hostility, high treason, without any express ouster of clergy.

But Hale informeth us, that some gentlemen of the profession in his time considered the offence of mere arson, unattended with circumstances of special aggravation, as an act of publick hostility, and therefore ousted at common law and not helped by the statute de clero; and that Noy declared this to be his opinion in the court of King's Bench about the 8th of Charles I. He adds, " And this seemed to be assented to by the court."

The learned judge doth not himself assent to it. But it is plain, that the legislature, in framing the act of the 8th of Hen. VI, considered the offence of burning houses and destroying goods, under the circumstances of deep aggravation therein mentioned, as an offence of a treasonable kind antecedently to that act: and therefore probably they might not think it necessary to oust clergy by express words for that purpose.

The

The preamble recited, that the houses and goods of divers persons had been then lately feloniously and traiterously burnt and destroyed. The statute then enacted, that such burning of houses should be adjudged high treason; and that this ordinance should extend to all such burnings since the first day of the King's reign, as well as to all future burnings.

A retrospect of more than seven years, in a case so penal, would have been thought a most extraordinary measure, if the offence had not, in the judgment of that Parliament, partaken of the nature of high treason antecedently to the statute: nor could former offences of the like kind, upon any other supposition, be with propriety said to have been traiterously committed.

СНАР. І.

CHAP. I.

Of High Treason in Compassing the King's

THE

Death.

death of an

HE antient writers, in treating of felonious homicide, Compassing the considered the felonious intention manifested by plain other facts, not by bare words of any kind, in the same light in 3 Inst. 5. point of guilt, as homicide itself. The rule was voluntas reputatur pro facto: and while this rule prevailed, the nature of Ibid. the offence was expressed by the term compassing the death.

This rule hath 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 hath, with great propriety, retained it in its full extent and rigour: and in describing the offence hath likewise retained the antient mode of expression. "When a man doth compass or imagine the death of our Lord 25 E. III. st. 5. the King, or of our Lady his Queen, or their eldest son and heir, and thereof be upon sufficient proof [provablement] attainted of open deed by people of his condition."

c. 2.

Form of indictments.

SECT. 1. The words of the statute descriptive of the offence Sect. 1. must be strictly pursued in every indictment for this species of treason. It must charge, that the defendant did traiterously (1 Hale 108.

2 Hale 187.)

CHAP I

Kel. 8.

V. c. 2. s 13.

1 Hale 122. 4 St. Tri. Lowick,

4 St. Tri. Layer.

Sect. 2.

law.

compass and imagine, etc., and then go on and charge the several overt acts as the means employed by the defendant for executing his traiterous purposes. For the compassing is considered as the treason, the overt acts 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 traiterously compass and imagine the death of the King; and the taking off his head was laid, among others, as an overt act of compassing; and the person who was supposed to have given the stroke was convicted on the same indict

ment.

From what hath been said it followeth, that in every indictment for this species of treason, and indeed for levying war, or adhering to the King's enemies, an overt act must be alledged and proved. For the overt act is the charge, to which the prisoner must apply his defence. But it is not necessary, that the whole detail of the evidence intended to be given should be set forth; the common-law never required this exactness, nor doth the statute of King William, which will be considered in its proper place, require it. It is sufficient, that the charge be reduced to a reasonable certainty, so that the defendant may be apprized of the nature of it, and prepared to give an answer to it.

And if divers overt acts are laid and but one proved, it will be sufficient, and the verdict must be for the Crown: and therefore, where divers overt acts are laid, and the indictment in point of form happeneth to be faulty with regard to some of them, the court will not quash it for those defects; because that would deprive the Crown of the opportunity of proving the overt acts which are well laid.

SECT. 2. I have said, that in the case of the King the statute Propriety of the of treasons hath, with great propriety, retained the rule, voluntas pro facto. The principle upon which this is founded is too obvious to need much enlargement. The King is considered as the head of the body-politick, and the members of that body are considered as united and kept together by a political

union