the King and his Parliament, whether it ought to be judg'd Treafon or other Feແ lony.")

FIRST then it is agreed by all Lawyers, that one of the best ways of finding out the meaning of an obfcure Law, is examining well the Preamble to it, which in this is very fhort, as well as the Act it self, and runs in these words, (" Whereas divers opinions "have been before this time, in what case "Treafon fhall be faid, and in what not ; "the King, at the request of the Lords and " of the Commons, hath made a declara"tion in the manner as hereafter follow

eth.") By which it appears plainly, that a wife Parliament, and a good King as wife also as themselves, intended to put an end to all uncertainty in matters of Treafon; than which nothing can be more dangerous to a People's quiet, and confequently to a King's. This uncertainty was partly for want of a Statute-law; the Common-law being made up of Precedents only, fome good, and fome ill; and partly from the different tempers, or occafions of Princes, with which the Judges are always too apt to comply.

BUT it had been directly contrary to fo good a defign, if they had made this clause

in the sense that most understand it, which is this; That if a poor man (juft cautious enough to avoid all the Treasons in this Act, and yet perhaps not fo prudent as he should be) falls into fome unufual fault, he fhall bear the heaviest of punishments by virtue of a Law which he could never understand, because the crime muft be declared after his fact is committed..

SECONDLY, What appears in nature more oppofite to a law of indulgence and fecurity (as this certainly is, notwithstanding its being penal) than to put all our lives and fortunes into the arbitrary power either of the Lords, or Lords and Commons together.

I allow that, if the King's confent be added to that of both Houses, all thofe three Estates in conjunction ought to be arbitrary: And no body has a right to complain of the legislative power, in which himself has a fhare.

BUT, tho' that interpretation of the claufe is the most confiftent with this Preamble of fafety to the subjects, who can be in no danger of injuftice from the legislative power, tho' never so arbitrary: Yet 'tis wholly inconsistent with reason, that a Parliament in EDWARD the Third's reign fhould intend to

advise

advise all future Parliaments; by declaring that fome like cafes may happen in their time, and deferve their paffing a new Law about it. For advice it can only be, fince it would have been equally unneceffary and abfurd, for one Parliament to have pretended to give authority to another.

WHAT then fhould be the meaning of this clause, about which our little world has made fuch a bustle?

IN my humble opinion, no more than this.

A wife King and Parliament forefaw, that a limitation of Treafons was fo great an indulgence, as poffibly to be made ill use of by fome who did not deserve it; and yet, to their eternal honour, they preferr'd a general cafe and quiet, even to that and all other confiderations. But to keep bufy people the more in awe, who would escape by the favour of this Act from any condemnation of Treason, they hung out a flaming fword over their heads in this claufe; which in truth is only minatory, and nothing else. That fo the Judges being commanded to tarry, and not to give any fentence in enormous cafes (which after this Law, could not be fo fevere as perhaps fome cafes might deferve)

I

deferve) ill perfons might be the more apprehenfive of a Parliament's heavier and more arbitrary punishment, whenever they did any unusual crime to provoke it. For that method would have been against the rules of justice, in trying a criminal twice for the fame offence, unless they had by this claufe oblig'd the Judges to tarry, and fufpend the cause 'till the fitting of a Parliament.

BY which laft words it may be observ'd also that frequency of Parliaments was a thing of course in those times, as much almost as the four Terms are now for affairs of a more private nature.

BUT fince I understand this claufe to be only Minatory, in order to deter and not to punish offenders; it will be objected that if this opinion were right, there had been no occafion for all that caution, which I my felf had just now obferv'd in the Bill against my Lord of STRAFFord.

I must therefore take notice of an error fo very general, that I am almost afraid to encounter it with my fingle opinion.

'TIS commonly believ'd that by this claufe in the Act of the 25th of EDWARD III, the Judges are empower'd to hold and declare in their courts to be Treason, whatfo

ever crimes fhall be at any time judg'd Treafon in Parliament. As for example, JOHN KERBY a mercer and JOHN ALGORE agrocer of the city of London, in the time of RICHARD II, had kill'd JOHN IMPERIAL, à publick Minifter from the State of Genoa; and the Parliament happening to be fitting, pass'd an A& 3 RICHARD II. that they should be attainted of High Treafon in the King's Benchs and they were executed accordingly. was faid, that all Judges after this were oblig'd to hold for Treason the killing any foreign Minister in the fame manner, notwithstanding it is none of thofe crimes recited in the Act of 25 EDWARD III. And the only reason they gave for this opinion is the claufe aforementioned, which therefore I will repeat again; ("And because that many other "like cafes of Treafon may happen in time to

It

come, which a man cannot think nor de"clare at this prefent time; it is accorded, "That if any other cafe, fupposed Treason, "which is not above specified, doth happen "before any Juftices, the Juftices fhall tarry "without any going to judgment of the Trea

fon, 'till the cause be shew'd and declar'd be"fore the King and his Parliament whether it ought to be judg'dTreafon or otherFelony.')

VOL. II.

L

Now