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" the King and his Parliament, whether it
ought to be judg’d Treason or other Felony.")
FIRST then it is agreed by all Lawyers, that one of the best ways of finding out the meaning of an obscure Law, is examining well the Preamble to it, which in this is very short, as well as the Act it self, and runs in these words, (“ Whereas divers opinions “. have been before this time, in what case u Treason shall be said, 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 wise Parliament, and a good King as wise also as themselves, intended to put an end to all uncertainty in matters of Treason ; than which nothing can be more dangerous to a People's quiet, and consequently to a King's. This uncertainty was partly for want of a Statute-law ; the Common-law being made
of Precedents only, some good, and some ill; and partly from the different tempers, or occasions of Princes, with which the Judges are always too apt to comply.
But it had been directly contrary to so good a design, if they had made this clause
in the sense that most understand it, which is this; That if a poor man (just cautious enough to avoid all the Treasons in this Act, and yet perhaps not so prudent as he should be) falls into some unusual fault, he shall 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 opposite to a law of indulgence and security (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 consent be added to that of both Houses, all those 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 share.
But, tho’that interpretation of the clause is the most consistent with this Preamble of safety to the subjects, who can be in no danger of injustice from the legislative power, tho never so arbitrary : Yet 'tis wholly inconsistent with reason, that a Parliament in EDWARD the Third's reign should intend to
advise all future Parliaments ; by declaring that some like cases may happen in their time, and deferve their passing a new Law about it. For advice it can only be, fince it would have been cqually unnecessary' and absurd, for one Parliament to have pretended to give authority to another.
WHAT then should be the meaning of this clause, about which our little world has made such a bustle ?
In my humble opinion, no more than this.
A wise King and Parliament foresaw, that a limitation of Treasons was so great an indulgence, as possibly to be made ill use of by some who did not deserve it; and yet, to their eternal honour, they preferr'd a general ease and quiet, even to that and all other considerations. But to keep busy people the more in awe, who would escape by the favour of this Act from any condemnation of Treason, they hung out a flaming sword over their heads in this clause; which in truth is only minatory, and nothing else. That so the Judges being commanded to tarry, and not to give any sentence in enormous cases (which after this Law, could not be so severe as perhaps some cases might
deserve) ill persons might be the more apprehensive 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 same offence, unless they had by this clause oblig'd the Judges to tarry, and suspend the cause 'till the sitting of a Parliament.
By which last words it may be obsery'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 since I understand this clause 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 self had just now observ'd in the Bill against my Lord of STRAFFORD.
I must therefore take notice of an error so very general, that I am almost afraid to encounter it with my single opinion.
’T is commonly believ'd that by this clause in the Act of the 25th of EDWARD III, the Judges are empower'd to hold and declare in their courts to be Trcason, whatso
ever crimes shall be at any time judg’d Treason in Parliament. As for example, JOHN KEŘBY a mercer and JOHŇALGORE agrocer of the city of London, in the time of RICHARD II, had killd JOHN IMPERIAL, à publick Minister from the State of Genoa; and the Parliament happening to be fitting, pass’d an Act 3 RICHARD II. that they should be attáinted of High Treason in the King's Bench; and they were executed accordingly. It was said, that all Judges after this were oblig'd 'to hold for Treason the killing any foreign Minister in the same manner, notwithstanding it is none of those crimes recited in the Act of 25 EDWARD III. And the only reason they gave for this opinion is the clause aforementioned, which therefore I will repeat again ; (“ And because that many other « like cases of Treason may happen in time to
come, which a man cannot think nor de" clare at this present time; it is accorded, * That if any other case; supposed Treason, “ which is not above specified, doth happen “ before any Justices, the Justices shall tarry “ without any going to judgment of the Trea
fon, 'till the cause be shew'd and declar'd bes-fore the King and his Parliament whether ir
ought to be judg’dTreason or otherFelony.') Vol. II.