Chapter XV: On the Reign of William III (2)

_Treaty of Ryswick._--The treaty of Ryswick was concluded on at least as fair terms as almost perpetual ill fortune could warrant us to expect. It compelled Louis XIV. to recognise the king's title, and thus both humbled the court of St. Germains, and put an end for several years to its intrigues. It extinguished, or rather the war itself had extinguished, one of the bold hopes of the French court, the scheme of procuring the election of the dauphin to the empire. It gave at least a breathing time to Europe, so long as the feeble lamp of Charles II.'s life should continue to glimmer, during which the fate of his vast succession might possibly be regulated without injury to the liberties of Europe.[203] But to those who looked with the king's eyes on the prospects of the continent, this pacification could appear nothing else than a preliminary armistice of vigilance and preparation. He knew that the Spanish dominions, or at least as large a portion of them as could be grasped by a powerful arm, had been for more than thirty years the object of Louis XIV. The acquisitions of that monarch at Aix-la-Chapelle and Nimeguen had been comparatively trifling, and seem hardly enough to justify the dread that Europe felt of his aggressions. But in contenting himself for the time with a few strong towns, or a moderate district, he constantly kept in view the weakness of the King of Spain's constitution. The queen's renunciation of her right of succession was invalid in the jurisprudence of his court. Sovereigns, according to the public law of France, uncontrollable by the rights of others, were incapable of limiting their own. They might do all things but guarantee the privileges of their subjects or the independence of foreign states. By the Queen of France's death, her claim upon the inheritance of Spain was devolved upon the dauphin; so that ultimately, and virtually in the first instance, the two great monarchies would be consolidated, and a single will would direct a force much more than equal to all the rest of Europe. If we admit that every little oscillation in the balance of power has sometimes been too minutely regarded by English statesmen, it would be absurd to contend, that such a subversion of it as the union of France and Spain under one head did not most seriously threaten both the independence of England and Holland.

_Jealousy of the Commons._--The House of Commons which sat at the conclusion of the treaty of Ryswick, chiefly composed of whigs, and having zealously co-operated in the prosecution of the late war, could not be supposed lukewarm in the cause of liberty, or indifferent to the aggrandisement of France. But the nation's exhausted state seemed to demand an intermission of its burthens, and revived the natural and laudable disposition to frugality which had characterised in all former times an English parliament. The arrears of the war, joined to loans made during its progress, left a debt of about seventeen millions, which excited much inquietude, and evidently could not be discharged but by steady retrenchment and uninterrupted peace. But, besides this, a reluctance to see a standing army established prevailed among the great majority both of whigs and tories. It was unknown to their ancestors--this was enough for one party; it was dangerous to liberty--this alarmed the other. Men of ability and honest intention, but, like most speculative politicians of the sixteenth and seventeenth centuries, rather too fond of seeking analogies in ancient history, influenced the public opinion by their writings, and carried too far the undeniable truth, that a large army at the mere control of an ambitious prince may often overthrow the liberties of a people.[204] It was not sufficiently remembered that the bill of rights, the annual mutiny bill, the necessity of annual votes of supply for the maintenance of a regular army, besides, what was far more than all, the publicity of all acts of government, and the strong spirit of liberty burning in the people, had materially diminished a danger which it would not be safe entirely to contemn.

_Army reduced._--Such, however, was the influence of what may be called the constitutional antipathy of the English in that age to a regular army, that the Commons, in the first session after the peace, voted that all troops raised since 1680 should be disbanded, reducing the forces to about 7000 men, which they were with difficulty prevailed upon to augment to 10,000.[205] They resolved at the same time that, "in a just sense and acknowledgment of what great things his majesty has done for these kingdoms, a sum not exceeding £700,000 be granted to his majesty during his life, for the support of the civil list." So ample a gift from an impoverished nation is the strongest testimony of their affection to the king.[206] But he was justly disappointed by the former vote, which, in the hazardous condition of Europe, prevented this country from wearing a countenance of preparation, more likely to avert than to bring on a second conflict. He permitted himself, however, to carry this resentment too far, and lost sight of that subordination to the law which is the duty of an English sovereign, when he evaded compliance with this resolution of the Commons, and took on himself the unconstitutional responsibility of leaving sealed orders, when he went to Holland, that 16,000 men should be kept up, without the knowledge of his ministers, which they as unconstitutionally obeyed. In the next session a new parliament having been elected, full of men strongly imbued with what the courtiers styled commonwealth principles, or an extreme jealousy of royal power,[207] it was found impossible to resist a diminution of the army to 7000 troops.[208] These too were voted to be natives of the British dominions; and the king incurred the severest mortification of his reign, in the necessity of sending back his regiments of Dutch guards and French refugees. The messages that passed between him and the parliament bear witness how deeply he felt, and how fruitlessly he deprecated, this act of unkindness and ingratitude, so strikingly in contrast with the deference that parliament has generally shown to the honours and prejudices of the Crown in matters of far higher moment.[209] The foreign troops were too numerous, and it would have been politic to conciliate the nationality of the multitude by reducing their number; yet they had claims which a grateful and generous people should not have forgotten: they were, many of them, the chivalry of protestantism, the Huguenot gentlemen who had lost all but their swords in a cause which we deemed our own; they were the men who had terrified James from Whitehall, and brought about a deliverance, which, to speak plainly, we had neither sense nor courage to achieve for ourselves, or which at least we could never have achieved without enduring the convulsive throes of anarchy.

_Irish forfeitures resumed._--There is, if not mere apology for the conduct of the Commons, yet more to censure on the king's side, in another scene of humiliation which he passed through, in the business of the Irish forfeitures. These confiscations of the property of those who had fought on the side of James, though, in a legal sense, at the Crown's disposal, ought undoubtedly to have been applied to the public service. It was the intention of parliament that two-thirds at least of these estates should be sold for that purpose; and William had, in answer to an address (Jan. 1690) promised to make no grant of them till the matter should be considered in the ensuing session. Several bills were brought in to carry the original resolutions into effect, but, probably through the influence of government, they always fell to the ground in one or other house of parliament. Meanwhile the king granted away the whole of these forfeitures, about a million of acres, with a culpable profuseness, to the enriching of his personal favourites, such as the Earl of Portland and the Countess of Orkney.[210] Yet as this had been done in the exercise of a lawful prerogative, it is not easy to justify the act of resumption passed in 1699. The precedents for resumption of grants were obsolete, and from bad times. It was agreed on all hands that the royal domain is not inalienable; if this were a mischief, as could not perhaps be doubted, it was one that the legislature had permitted with open eyes till there was nothing left to be alienated. Acts therefore of this kind shake the general stability of possession, and destroy that confidence in which the practical sense of freedom consists, that the absolute power of the legislature, which in strictness is as arbitrary in England as in Persia, will be exercised in consistency with justice and lenity. They are also accompanied for the most part, as appears to have been the case in this instance of the Irish forfeitures, with partiality and misrepresentation as well as violence, and seldom fail to excite an odium far more than commensurate to the transient popularity which attends them at the outset.[211]

But, even if the resumption of William's Irish grants could be reckoned defensible, there can be no doubt that the mode adopted by the Commons, of tacking, as it was called, the provisions for this purpose to a money bill, so as to render it impossible for the Lords even to modify them without depriving the king of his supply, tended to subvert the constitution and annihilate the rights of a co-equal house of parliament. This most reprehensible device, though not an unnatural consequence of their pretended right to an exclusive concern in money bills, had been employed in a former instance during this reign.[212] They were again successful on this occasion; the Lords receded from their amendments, and passed the bill at the king's desire, who perceived that the fury of the Commons was tending to a terrible convulsion.[213] But the precedent was infinitely dangerous to their legislative power. If the Commons, after some more attempts of the same nature, desisted from so unjust an encroachment, it must be attributed to that which has been the great preservative of the equilibrium in our government, the public voice of a reflecting people, averse to manifest innovation, and soon offended by the intemperance of factions.

_Parliamentary enquiries._--The essential change which the fall of the old dynasty had wrought in our constitution displayed itself in such a vigorous spirit of enquiry and interference of parliament with all the course of government as, if not absolutely new, was more uncontested and more effectual than before the revolution. The Commons indeed under Charles II. had not wholly lost sight of the precedents which the long parliament had established for them; but not without continual resistance from the court, in which their right of examination was by no means admitted. But the tories throughout the reign of William evinced a departure from the ancient principles of their faction in nothing more than in asserting to the fullest extent the powers and privileges of the Commons; and, in the coalition they formed with the malcontent whigs, if the men of liberty adopted the nickname of the men of prerogative, the latter did not less take up the maxims and feelings of the former. The bad success and suspected management of public affairs co-operated with the strong spirit of party to establish this important accession of authority to the House of Commons. In June 1689, a special committee was appointed to enquire into the miscarriages of the war in Ireland, especially as to the delay in relieving Londonderry. A similar committee was appointed in the Lords. The former reported severely against Colonel Lundy, governor of that city; and the house addressed the king, that he might be sent over to be tried for the treasons laid to his charge.[214] I do not think there is any earlier precedent in the Journals for so specific an enquiry into the conduct of a public officer, especially one in military command. It marks therefore very distinctly the change of spirit which I have so frequently mentioned. No courtier has ever since ventured to deny this general right of enquiry, though it is the constant practice to elude it. The right to enquire draws with it the necessary means, the examination of witnesses, records, papers, enforced by the strong arm of parliamentary privilege. In one respect alone these powers have fallen rather short; the Commons do not administer an oath; and having neglected to claim this authority in the irregular times when they could make a privilege by a vote, they would now perhaps find difficulty in obtaining it by consent of the house of peers. They renewed this committee for enquiring into the miscarriages of the war in the next session.[215] They went very fully into the dispute between the board of admiralty and Admiral Russell, after the battle of La Hogue;[216] and the year after investigated the conduct of his successors, Killigrew and Delaval, in the command of the Channel Fleet.[217] They went, in the winter of 1694, into a very long examination of the admirals and the orders issued by the admiralty during the preceding year; and then voted that the sending the fleet to the Mediterranean, and the continuing it there this winter, has been to the honour and interest of his majesty, and his kingdoms.[218] But it is hardly worth while to enumerate later instances of exercising a right which had become indisputable, and, even before it rested on the basis of precedent, could not reasonably be denied to those who might advise, remonstrate, and impeach.

It is not surprising that, after such important acquisitions of power, the natural spirit of encroachment, or the desire to distress a hostile government, should have led to endeavours, which by their success would have drawn the executive administration more directly into the hands of parliament. A proposition was made by some peers, in December 1692, for a committee of both houses to consider of the present state of the nation, and what advice should be given to the king concerning it. This dangerous project was lost by 48 to 36, several tories and dissatisfied whigs uniting in a protest against its rejection.[219] The king had in his speech to parliament requested their advice in the most general terms; and this slight expression, though no more than is contained in the common writ of summons, was tortured into a pretext for so extraordinary a proposal as that of a committee of delegates, or council of state, which might soon have grasped the entire administration. It was at least a remedy so little according to precedent, or the analogy of our constitution, that some very serious cause of dissatisfaction with the conduct of affairs could be its only excuse.

Burnet has spoken with reprobation of another scheme engendered by the same spirit of enquiry and control, that of a council of trade, to be nominated by parliament, with powers for the effectual preservation of the interests of the merchants. If the members of it were intended to be immovable, or if the vacancies were to be filled by consent of parliament, this would indeed have encroached on the prerogative in a far more eminent degree than the famous India bill of 1783, because its operation would have been more extensive and more at home. And, even if they were only named in the first instance, as has been usual in parliamentary commissioners of account or enquiry, it would still be material to ask, what extent of power for the preservation of trade was to be placed in their hands. The precise nature of the scheme is not explained by Burnet. But it appears by the Journals that this council was to receive information from merchants as to the necessity of convoys, and send directions to the board of admiralty, subject to the king's control, to receive complaints and represent the same to the king, and in many other respects to exercise very important and anomalous functions. They were not however to be members of the house. But even with this restriction, it was too hazardous a departure from the general maxims of the constitution.[220]

_Treaties of partition._--The general unpopularity of William's administration, and more particularly the reduction of the forces, afford an ample justification for the two treaties of partition which the tory faction, with scandalous injustice and inconsistency, turned to his reproach. No one could deny that the aggrandisement of France by both of these treaties was of serious consequence. But, according to English interests, the first object was to secure the Spanish Netherlands from becoming provinces of that power; and next to maintain the real independence of Spain and the Indies. Italy was but the last in order; and though the possession of Naples and Sicily, with the ports of Tuscany, as stipulated in the treaty of partition, would have rendered France absolute mistress of that whole country and of the Mediterranean sea, and essentially changed the balance of Europe, it was yet more tolerable than the acquisition of the whole monarchy in the name of a Bourbon prince, which the opening of the succession without previous arrangement was likely to produce. They at least who shrunk from the thought of another war, and studiously depreciated the value of continental alliances, were the last who ought to have exclaimed against a treaty which had been ratified as the sole means of giving us something like security, without the cost of fighting for it. Nothing therefore could be more unreasonable than the clamour of a tory House of Commons in 1701 (for the malcontent whigs were now so consolidated with the tories as in general to bear their name) against the partition treaties; nothing more unfair than the impeachment of the four lords, Portland, Orford, Somers, and Halifax, on that account. But we must at the same time remark, that it is more easy to vindicate the partition treaties themselves, than to reconcile the conduct of the king and of some others with the principles established in our constitution. William had taken these important negotiations wholly into his own hands, not even communicating them to any of his English ministers, except Lord Jersey, until his resolution was finally settled. Lord Somers, as chancellor, had put the great seal to blank powers, as a legal authority to the negotiators; which evidently could not be valid, unless on the dangerous principle that the seal is conclusive against all exception.[221] He had also sealed the ratification of the treaty, though not consulted upon it, and though he seems to have had objections to some of the terms; and in both instances he set up the king's command as a sufficient defence. The exclusion of all those whom, whether called privy or cabinet counsellors, the nation holds responsible for its safety, from this great negotiation, tended to throw back the whole executive government into the single will of the sovereign, and ought to have exasperated the House of Commons far more than the actual treaties of partition, which may probably have been the safest choice in a most perilous condition of Europe. The impeachments however were in most respects so ill substantiated by proof, that they have generally been reckoned a disgraceful instance of party spirit.[222]

_Improvements in constitution under William._--The whigs, such of them at least as continued to hold that name in honour, soon forgave the mistakes and failings of their great deliverer; and indeed a high regard for the memory of William III. may justly be reckoned one of the tests by which genuine whiggism, as opposed both to tory and republican principles, has always been recognised. By the opposite party he was rancorously hated; and their malignant calumnies still sully the stream of history.[223] Let us leave such as prefer Charles I. to William III. in the enjoyment of prejudices which are not likely to be overcome by argument. But it must ever be an honour to the English Crown that it has been worn by so great a man. Compared with him, the statesmen who surrounded his throne, the Sunderlands, Godolphins, and Shrewsburys, even the Somerses and Montagues, sink into insignificance. He was, in truth, too great, not for the times wherein he was called to action, but for the peculiar condition of a king of England after the revolution; and as he was the last sovereign of this country, whose understanding and energy of character have been very distinguished, so was he the last who has encountered the resistance of his parliament, or stood apart and undisguised in the maintenance of his own prerogative. His reign is no doubt one of the most important in our constitutional history, both on account of its general character, which I have slightly sketched, and of those beneficial alterations in our law to which it gave rise. These now call for our attention.

_Bill for triennial parliaments._--The enormous duration of seventeen years, for which Charles II. protracted his second parliament, turned the thoughts of all who desired improvements in the constitution towards some limitation on a prerogative which had not hitherto been thus abused. Not only the continuance of the same House of Commons during such a period destroyed the connection between the people and their representatives, and laid open the latter, without responsibility, to the corruption which was hardly denied to prevail; but the privilege of exemption from civil process made needy and worthless men secure against their creditors, and desirous of a seat in parliament as a complete safeguard to fraud and injustice. The term of three years appeared sufficient to establish a control of the electoral over the representative body, without recurring to the ancient but inconvenient scheme of annual parliaments, which men enamoured of a still more popular form of government than our own were eager to recommend. A bill for this purpose was brought into the House of Lords in December 1689, but lost by the prorogation.[224] It passed both houses early in 1693, the whigs generally supporting, and the tories opposing it; but on this, as on many other great questions of this reign, the two parties were not so regularly arrayed against each other as on points of a more personal nature.[225] To this bill the king refused his assent: an exercise of prerogative which no ordinary circumstances can reconcile either with prudence or with a constitutional administration of government. But the Commons, as it was easy to foresee, did not abandon so important a measure; a similar bill received the royal assent in November 1694.[226] By the triennial bill it was simply provided that every parliament should cease and determine within three years from its meeting. The clause contained in the act of Charles II. against the intermission of parliaments for more than three years is repeated; but it was not thought necessary to revive the somewhat violent and perhaps impracticable provisions by which the act of 1641 had secured their meeting; it being evident that even annual sessions might now be relied upon as indispensable to the machine of government.

This annual assembly of parliament was rendered necessary, in the first place, by the strict appropriation of the revenue according to votes of supply. It was secured next, by passing the mutiny bill, under which the army is held together, and subjected to military discipline, for a short term, seldom or never exceeding twelve months. These are the two effectual securities against military power; that no pay can be issued to the troops without a previous authorisation by the Commons in a committee of supply, and by both houses in an act of appropriation; and that no officer or soldier can be punished for disobedience, nor any court martial held, without the annual re-enactment of the mutiny bill. Thus it is strictly true that, if the king were not to summon parliament every year, his army would cease to have a legal existence; and the refusal of either house to concur in the mutiny bill would at once wrest the sword out of his grasp. By the bill of rights, it is declared unlawful to keep any forces in time of peace without consent of parliament. This consent, by an invariable and wholesome usage, is given only from year to year; and its necessity may be considered perhaps the most powerful of those causes which have transferred so much even of the executive power into the management of the two houses of parliament.

_Law of treason._--The reign of William is also distinguished by the provisions introduced into our law for the security of the subject against iniquitous condemnations on the charge of high treason, and intended to perfect those of earlier times, which had proved insufficient against the partiality of judges. But upon this occasion it will be necessary to take up the history of our constitutional law on this important head from the beginning.

In the earlier ages of our law, the crime of high treason appears to have been of a vague and indefinite nature, determined only by such arbitrary construction as the circumstances of each particular case might suggest. It was held treason to kill the king's father or his uncle; and Mortimer was attainted for accroaching, as it was called, royal power; that is, for keeping the administration in his own hands, though without violence towards the reigning prince. But no people can enjoy a free constitution, unless an adequate security is furnished by their laws against this discretion of judges in a matter so closely connected with the mutual relation between the government and its subjects. A petition was accordingly presented to Edward III. by one of the best parliaments that ever sat, requesting that "whereas the king's justices in different counties adjudge men indicted before them to be traitors for divers matters not known by the Commons to be treasonable, the king would, by his council, and the nobles and learned men (les grands et sages) of the land, declare in parliament what should be held for treason." The answer to this petition is in the words of the existing statute, which, as it is by no means so prolix as it is important, I shall place before the reader's eyes.

_Statute of Edward III._--"Whereas divers opinions have been before this time in what case treason shall be said, and in what not; the king, at the request of the Lords and Commons, hath made a declaration in the manner as hereafter followeth; that is to say, when a man doth compass or imagine the death of our lord the king, of my lady his queen, or of their eldest son and heir: or if a man do violate the king's companion or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir: or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be provably attainted of open deed by people of their condition; and if a man counterfeit the king's great or privy seal, or his money; and if a man bring false money into this realm, counterfeit to the money of England, as the money called Lusheburg, or other like to the said money of England, knowing the money to be false, to merchandise or make payment in deceipt of our said lord the king and of his people; and if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their place doing their offices; and it is to be understood, that in the cases above rehearsed, it ought to be judged treason which extends to our lord the king and his royal majesty. And of such treason the forfeiture of the escheats pertaineth to our lord the king, as well as the lands and tenements holden of others as of himself."[227]

_Its constructive interpretation._--It seems impossible not to observe that the want of distinct arrangement natural to so unphilosophical an age, and which renders many of our old statutes very confused, is eminently displayed in this strange conjunction of offences; where to counterfeit the king's seal, which might be for the sake of private fraud, and even his coin, which must be so, is ranged along with all that really endangers the established government, with conspiracy and insurrection. But this is an objection of little magnitude, compared with one that arises out of an omission in enumerating the modes whereby treason could be committed. In most other offences, the intention, however manifest, the contrivance, however deliberate, the attempt, however casually rendered abortive, form so many degrees of malignity, or at least of mischief, which the jurisprudence of most countries, and none more than England, formerly, has been accustomed to distinguish from the perpetrated action by awarding an inferior punishment, or even none at all. Nor is this distinction merely founded on a difference in the moral indignation with which we are impelled to regard an inchoate and a consummate crime, but is warranted by a principle of reason, since the penalties attached to the completed offence spread their terror over all the machinations preparatory to it; and he who fails in his stroke has had the murderer's fate as much before his eyes as the more dexterous assassin. But those who conspire against the constituted government connect in their sanguine hope the assurance of impunity with the execution of their crime, and would justly deride the mockery of an accusation which could only be preferred against them when their banners were unfurled, and their force arrayed. It is as reasonable, therefore, as it is conformable to the usages of every country, to place conspiracies against the sovereign power upon the footing of actual rebellion, and to crush those by the penalties of treason, who, were the law to wait for their opportunity, might silence or pervert the law itself. Yet in this famous statute we find it only declared treasonable to compass or imagine the king's death; while no project of rebellion appears to fall within the letter of its enactments, unless it ripen into a substantive act of levying war.

We may be, perhaps, less inclined to attribute this material omission to the laxity which has been already remarked to be usual in our older laws, than to apprehensions entertained by the barons that, if a mere design to levy war should be rendered treasonable, they might be exposed to much false testimony and arbitrary construction. But strained constructions of this very statute, if such were their aim, they did not prevent. Without adverting to the more extravagant convictions under this statute in some violent reigns, it gradually became an established doctrine with lawyers, that a conspiracy to levy war against the king's person, though not in itself a distinct treason, may be given in evidence as an overt act of compassing his death. Great as the authorities may be on which this depends, and reasonable as it surely is that such offences should be brought within the pale of high treason, yet it is almost necessary to confess that this doctrine appears utterly irreconcilable with any fair interpretation of the statute. It has indeed, by some, been chiefly confined to cases where the attempt meditated is directly against the king's person, for the purpose of deposing him, or of compelling him, while under actual duress, to a change of measures; and this was construed into a compassing of his death, since any such violence must endanger his life, and because, as has been said, the prisons and graves of princes are not very distant.[228] But it seems not very reasonable to found a capital conviction on such a sententious remark; nor is it by any means true that a design against a king's life is necessarily to be inferred from the attempt to get possession of his person. So far indeed is this from being a general rule, that in a multitude of instances, especially during the minority or imbecility of a king, the purposes of conspirators would be wholly defeated by the death of the sovereign whose name they designed to employ. But there is still less pretext for applying the same construction to schemes of insurrection, when the royal person is not directly the object of attack, and where no circumstance indicates any hostile intention towards his safety. This ample extention of so penal a statute was first given, if I am not mistaken, by the judges in 1663, on occasion of a meeting by some persons at Farley Wood in Yorkshire,[229] in order to concert measures for a rising. But it was afterwards confirmed in Harding's case, immediately after the revolution, and has been repeatedly laid down from the bench in subsequent proceedings for treason, as well as in treatises of very great authority.[230] It has therefore all the weight of established precedent; yet I question whether another instance can be found in our jurisprudence of giving so large a construction, not only to a penal but to any other statute.[231] Nor does it speak in favour of this construction, that temporary laws have been enacted on various occasions to render a conspiracy to levy war treasonable; for which purpose, according to this current doctrine, the statute of Edward III. needed no supplemental provision. Such acts were passed under Elizabeth, Charles II., and George III., each of them limited to the existing reign.[232] But it is very seldom that, in an hereditary monarchy, the reigning prince ought to be secured by any peculiar provisions; and though the remarkable circumstances of Elizabeth's situation exposed her government to unusual perils, there seems an air of adulation or absurdity in the two latter instances. Finally, the act of 57 G. 3, c. 6, has confirmed, if not extended, what stood on rather a precarious basis, and rendered perpetual that of 36 G. 3, c. 7, which enacts, "that, if any person or persons whatsoever, during the life of the king, and until the end of the next session of parliament after a demise of the Crown, shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the person of the same our sovereign lord the king, his heirs and successors, or to deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm, or of any other of his majesty's dominions or countries, or to levy war against his majesty, his heirs and successors, within this realm, in order, by force or constraint, to compel him or them to change his or their measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe, both houses, or either house of parliament, or to move or stir any foreigner or stranger with force to invade this realm, or any other his majesty's dominions or countries under the obeisance of his majesty, his heirs and successors; and such compassings, imaginations, inventions, devices, and intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed; being legally convicted thereof upon the oaths of two lawful and credible witnesses, shall be adjudged a traitor, and suffer as in cases of high treason."

This from henceforth will become our standard of constitutional law, instead of the statute of Edward III., the latterly received interpretations of which it sanctions and embodies. But it is to be noted as the doctrine of our most approved authorities, that a conspiracy for many purposes which, if carried into effect, would incur the guilt of treason, will not of itself amount to it. The constructive interpretation of compassing the king's death appears only applicable to conspiracies, whereof the intent is to depose or to use personal compulsion towards him, or to usurp the administration of his government.[233] But though insurrections in order to throw down all enclosures, to alter the established law or change religion, or in general for the reformation of alleged grievances of a public nature, wherein the insurgents have no special interest, are in themselves treasonable, yet the previous concert and conspiracy for such purpose could, under the statute of Edward III., only pass for a misdemeanour. Hence, while it has been positively laid down, that an attempt by intimidation and violence to force the repeal of a law is high treason,[234] though directed rather against the two houses of parliament than the king's person, the judges did not venture to declare that a mere conspiracy and consultation to raise a force for that purpose would amount to that offence.[235] But the statutes of 36 & 57 Geo. 3 determine the intention to levy war, in order to put any force upon or to intimidate either house of parliament, manifested by any overt act, to be treason, and so far have undoubtedly extended the scope of the law. We may hope that so ample a legislative declaration on the law of treason will put an end to the preposterous interpretations which have found too much countenance on some not very distant occasions. The crime of compassing and imagining the king's death must be manifested by some overt act; that is, there must be something done in execution of a traitorous purpose. For as no hatred towards the person of the sovereign, nor any longings for his death, are the imagination which the law here intends, it seems to follow that loose words or writings, in which such hostile feelings may be embodied, unconnected with any positive design, cannot amount to treason. It is now therefore generally agreed, that no words will constitute that offence, unless as evidence of some overt act of treason; and the same appears clearly to be the case with respect at least to unpublished writings.[236]

The second clause of the statute, or that which declares the levying of war against the king within the realm to be treason, has given rise, in some instances, to constructions hardly less strained than those upon compassing his death. It would indeed be a very narrow interpretation, as little required by the letter as warranted by the reason of this law, to limit the expression of levying war to rebellions, whereof the deposition of the sovereign, or subversion of his government, should be the deliberate object. Force, unlawfully directed against the supreme authority, constitutes this offence; nor could it have been admitted as an excuse for the wild attempt of the Earl of Essex, on this charge of levying war, that his aim was not to injure the queen's person, but to drive his adversaries from her presence. The only questions as to this kind of treason are; first, what shall be understood by force? and secondly, where it shall be construed to be directed against the government? And the solution of both these, upon consistent principles, must so much depend on the circumstances which vary the character of almost every case, that it seems natural to distrust the general maxims that have been delivered by lawyers. Many decisions in cases of treason before the revolution were made by men so servile and corrupt, they violate so grossly all natural right and all reasonable interpretation of law, that it has generally been accounted among the most important benefits of that event to have restored a purer administration of criminal justice. But, though the memory of those who pronounced these decisions is stigmatised, their authority, so far from being abrogated, has influenced later and better men; and it is rather an unfortunate circumstance, that precedents which, from the character of the times when they occurred, would lose at present all respect, having been transfused into text-books, and formed perhaps the sole basis of subsequent decisions, are still in not a few points the invisible foundation of our law. No lawyer, I conceive, prosecuting for high treason in this age, would rely on the case of the Duke of Norfolk under Elizabeth, or that of Williams under James I., or that of Benstead under Charles I.; but he would certainly not fail to dwell on the authorities of Sir Edward Coke and Sir Matthew Hale. Yet these eminent men, and especially the latter, aware that our law is mainly built on adjudged precedent, and not daring to reject that which they would not have themselves asserted, will be found to have rather timidly exercised their judgment in the construction of this statute, yielding a deference to former authority which we have transferred to their own.

These observations are particularly applicable to that class of cases so repugnant to the general understanding of mankind, and, I believe, of most lawyers, wherein trifling insurrections for the purpose of destroying brothels or meeting-houses have been held treasonable under the clause of levying war. Nor does there seem any ground for the defence which has been made for this construction, by taking a distinction, that although a rising to effect a partial end by force is only a riot, yet where a general purpose of the kind is in view it becomes rebellion; and thus, though to pull down the enclosures in a single manor be not treason against the king, yet to destroy all enclosures throughout the kingdom would be an infringement of his sovereign power. For, however solid this distinction may be, yet in the class of cases to which I allude, this general purpose was neither attempted to be made out in evidence, nor rendered probable by the circumstances; nor was the distinction ever taken upon the several trials. A few apprentices rose in London in the reign of Charles II., and destroyed some brothels.[237] A mob of watermen and others, at the time of Sacheverell's impeachment, set on fire several dissenting meeting-houses.[238] Everything like a formal attack on the established government is so much excluded in these instances by the very nature of the offence and the means of the offenders, that it is impossible to withhold our reprobation from the original decision, upon which, with too much respect for unreasonable and unjust authority, the later cases have been established. These indeed still continue to be cited as law; but it is much to be doubted whether a conviction for treason will ever again be obtained, or even sought for, under similar circumstances. One reason indeed for this, were there no weight in any other, might suffice; the punishment of tumultuous risings, attended with violence, has been rendered capital by the riot act of George I. and other statutes; so that, in the present state of the law, it is generally more advantageous for the government to treat such an offence as felony than as treason.

_Statute of William III._--It might for a moment be doubted, upon the statute of Edward VI., whether the two witnesses whom the act requires must not depose to the same overt acts of treason. But, as this would give an undue security to conspirators, so it is not necessarily implied by the expression; nor would it be indeed the most unwarrantable latitude that has been given to this branch of penal law, to maintain that two witnesses to any distinct acts comprised in the same indictment would satisfy the letter of this enactment. But a more wholesome distinction appears to have been taken before the revolution, and is established by the statute of William, that, although different overt acts may be proved by two witnesses, they must relate to the same species of treason, so that one witness to an alleged act of compassing the king's death cannot be conjoined with another deposing to an act of levying war, in order to make up the required number.[239] As for the practice of courts of justice before the restoration, it was so much at variance with all principles, that few prisoners were allowed the benefit of this statute;[240] succeeding judges fortunately deviated more from their predecessors in the method of conducting trials than they have thought themselves at liberty to do in laying down rules of law.

Nothing had brought so much disgrace on the councils of government and on the administration of justice, nothing had more forcibly spoken the necessity of a great change than the prosecutions for treason during the latter years of Charles II., and in truth during the whole course of our legal history. The statutes of Edward III. and Edward VI., almost set aside by sophistical constructions, required the corroboration of some more explicit law; and some peculiar securities were demanded for innocence against that conspiracy of the court with the prosecutor, which is so much to be dreaded in all trials for political crimes. Hence the attainders of Russell, Sidney, Cornish, and Armstrong were reversed by the convention-parliament without opposition; and men attached to liberty and justice, whether of the whig or tory name, were anxious to prevent any future recurrence of those iniquitous proceedings, by which the popular frenzy at one time, the wickedness of the court at another, and in each instance with the co-operation of a servile bench of judges, had sullied the honour of English justice. A better tone of political sentiment had begun indeed to prevail, and the spirit of the people must ever be a more effectual security than the virtue of the judges; yet, even after the revolution, if no unjust or illegal convictions in cases of treason can be imputed to our tribunals, there was still not a little of that rudeness towards the prisoner, and manifestation of a desire to interpret all things to his prejudice, which had been more grossly displayed by the bench under Charles II. The jacobites, against whom the law now directed its terrors, as loudly complained of Treby and Pollexfen, as the whigs had of Scroggs and Jefferies, and weighed the convictions of Ashton and Anderton against those of Russell and Sidney.[241]

Ashton was a gentleman, who, in company with Lord Preston, was seized in endeavouring to go over to France with an invitation from the jacobite party. The contemporary writers on that side, and some historians who incline to it, have represented his conviction as grounded upon insufficient, because only upon presumptive evidence. It is true that in most of our earlier cases of treason, treasonable facts have been directly proved; whereas it was left to the jury in that of Ashton, whether they were satisfied of his acquaintance with the contents of certain papers taken on his person. There does not however seem to be any reason why presumptive inferences are to be rejected in charges of treason, or why they should be drawn with more hesitation than in other grave offences; and if this be admitted, there can be no doubt that the evidence against Ashton was such as is ordinarily reckoned conclusive. It is stronger than that offered for the prosecution against O'Quigley at Maidstone in 1798, a case of the closest resemblance; and yet I am not aware that the verdict in that instance was thought open to censure. No judge however in modern times would question, much less reply upon, the prisoner, as to material points of his defence, as Holt and Pollexfen did in this trial; the practice of a neighbouring kingdom, which, in our more advanced sense of equity and candour, we are agreed to condemn.[242]

It is perhaps less easy to justify the conduct of Chief-Justice Treby in the trial of Anderton for printing a treasonable pamphlet. The testimony came very short of satisfactory proof, according to the established rules of English law, though by no means such as men in general would slight. It chiefly consisted of a comparison between the characters of a printed work found concealed in his lodgings and certain types belonging to his press; a comparison manifestly less admissible than that of handwriting, which is always rejected, and indeed totally inconsistent with the rigour of English proof. Besides the common objections made to a comparison of hands, and which apply more forcibly to printed characters, it is manifest that types cast in the same font must always be exactly similar. But, on the other hand, it seems unreasonable absolutely to exclude, as our courts have done, the comparison of handwriting as inadmissible evidence; a rule which is every day eluded by fresh rules, not much more rational in themselves, which have been invented to get rid of its inconvenience. There seems however much danger in the construction which draws printed libels, unconnected with any conspiracy, within the pale of treason, and especially the treason of compassing the king's death, unless where they directly tended to his assassination. No later authority can, as far as I remember, be adduced for the prosecution of any libel as treasonable, under the statute of Edward III. But the pamphlet for which Anderton was convicted was certainly full of the most audacious jacobitism, and might perhaps fall, by no unfair construction, within the charge of adhering to the king's enemies; since no one could be more so than James, whose design of invading the realm had been frequently avowed by himself.[243]

A bill for regulating trials upon charges of high treason passed the Commons with slight resistance by the Crown lawyers in 1691.[244] The Lords introduced a provision in their own favour, that upon the trial of a peer in the court of the high steward, all such as were entitled to vote should be regularly summoned; it having been the practice to select twenty-three at the discretion of the Crown. Those who wished to hinder the bill availed themselves of the jealousy which the Commons in that age entertained of the upper house of parliament, and persuaded them to disagree with this just and reasonable amendment.[245] It fell to the ground therefore on this occasion; and though more than once revived in subsequent sessions, the same difference between the two houses continued to be insuperable.[246] In the new parliament that met in 1695, Commons had the good sense to recede from an irrational jealousy. Notwithstanding the reluctance of the ministry, for which perhaps the very dangerous position of the king's government furnishes an apology, this excellent statute was enacted as an additional guarantee (in such bad times as might again occur) to those who are prominent in their country's cause, against the great danger of false accusers and iniquitous judges.[247] It provides that all persons indicted for high treason shall have a copy of their indictment delivered to them five days before their trial, a period extended by a subsequent act to ten days, and a copy of the panel of jurors two days before their trial; that they shall be allowed to have their witnesses examined on oath, and to make their defence by counsel. It clears up any doubt that could be pretended on the statute of Edward VI., by requiring two witnesses, either both to the same overt act, or the first to one, the second to another overt act of the same treason (that is, the same kind of treason), unless the party shall voluntarily confess the charge.[248] It limits prosecutions for treason to the term of three years, except in the case of an attempted assassination on the king. It includes the contested provision for the trial of peers by all who have a right to sit and vote in parliament. A later statute, 7 Anne, c. 21, which may be mentioned here as the complement of the former, has added a peculiar privilege to the accused, hardly less material than any of the rest. Ten days before the trial, a list of the witnesses intended to be brought for proving the indictment, with their professions and place of abode, must be delivered to the prisoner, along with the copy of the indictment. The operation of this clause was suspended till after the death of the pretended Prince of Wales.