OBSERVATIONS

ON THE

Statute of Treafons.

I

AM fenfible it becomes me to be very circumfpcct, when I advance any thing

that is fingular in a part of learning, in which I have been fo little converfant: I fhall only therefore propose my opinions, with the grounds for them, leaving their probability to be decided by others, whose profeffion has qualified them to be proper judges.

1. THE first article of this ftatute is about compaffing or imagining the King's death; and upon that, my Lord COKE afferts a little oddly, in my humble opinion, that a person not compos mentis, and an infant, are neither of them to be comprehended within this ftatute, because they cannot be fuppofed capable of any defign: And he fays farther, That

I 3

That although by the ftatute of 33 HEN. 8. a man falling mad after the fact, was to be try'd and attainted notwithstanding; and, if after the condemnation, was yet to be executed; it was too cruel and inhumane a law to be long unrepeal'd.

I cannot but think this opinion of his a little extraordinary, because of the great facility there may be either of an infant's being put upon committing a mischief of this kind; or of any person's counterfeiting madness for that very purpose: We know too, of how unlimited an age an infant in law is, provided he be under twenty one years. So that methinks, where fo general and publick a mischief is to be prevented, no loop-hole for escaping ought to be admitted.

A man's falling mad after fuch a fact, is fo ill an excufe from punishment, that (befides the great temptation of counterfeiting it) fuch a disorder of the brain may be very well supposed an usual consequence of so black a crime; efpecially when the criminal hears that dreadful fentence which our law pronounces against it,

AND if my Lord COKE's opinion in this cafe should prevail, I believe few would ever die for treafon; fince a man must be

really

really mad, not to affect it in such a case of neceffity. Neither do I fee why there fhould be fo great a tenderness as is fufficient to ballance the punishing so black a mischief; for to one truly distracted, death is not so great an evil, as his suffering may be a good to others by way of terrour and example.

2. 'Tis no wonder the meer design against a King's life is treafon by this statute; fince, at the time of making it, the design only of murdering any body was felony, and punifh'd with death. This was the only difference; That, in case of a subject, the ill defign was to appear by fome act of violence, as wounding, &c. but in this cafe, any act whatsoever that proves fuch a defign, is fufficient. My Lord COKE is of epinion, That no Words are enough for being accounted an overt-act, unless set down in writing by the criminal; in which I think he leaves it yet too general; because writing is almost as fubject to mifconftruction, as speaking though I confess his instance is a good one, of Cardinal POOL's exhor tation to the Emperor for his invading England in HENRY the Eighth's time: which must be allow'd to be a paramount overt

act of treafon, though he fhould have written but one letter about it.

3. I am a little unfatisfy'd alfo with another explanation of this act by my Lord COKE, where he fays that defigning to depose, imprison, or take into one's power the King, is within this ftatute; and yet will not allow a defign of levying war to be fo. For the only reafon which he gives himself, why those first designs are within the ftatute, is the great danger a King muft needs be in, when fo depofed or imprifoned; for the bare words of the ftatute do not reach it: Now, fure, the fame inference, if a good one, holds as well in this latter cafe; fince a war levy'd against a King, may as well endanger his perfon, as cither a depofition, or an imprisonment. But the truth is, a meer defign of depofition, imprisonment, or levying war, are not within the bare words of this law; but yet the Judges in all times have fo over-rul'd it otherwife, that whofoever is mifchievous enough to be found guilty of fuch ill defigns, will, to his coft, find the Judges as mischievous in firetching the law against him; though all the while they pretend to be of his Council.