First, Whether any Court, the Parliament exceted, can Try a man upon an Indictment for High Freon, that is grounded upon Common Law? Secondly, To what end and intent the Statute 25 B43 Chap. 2. was enacted?

Thirdly, Whether Confpiring the Death of the Ko and Levying of War are diftinct Species of

Trean?

Fourthly, Whether every Law is not to be confrued mot firictly to restrain the mischief against which it was enacted?

Fifthly, What is the true meaning and fignifica tion of being provably attainted by Overt Deed?

As to the first, it feems to be out of doubt, that at this day, there is no fuch thing as an Indictment at Common Law for High Treafon, tho for other things there is, because there is no Precedent of it fince the Statute 25. Edw. 3. for every Prifoner that is Arraigned for Treafon, does commonly demand of the Court, upon what Statute he is Indicted, and it is always aufwered, upon fuch a Statute, and the particular Statute is named; Befides, every Inpeachment before the Lords in Farliament is grounded upon fohe Statute, and if fo,a Fortiori no inferiour Court can try the P'rifoner upon an Indictment for High Treason, grounded upon Common Law: For the Law which delights in Certainty, especially in Cafe of Life, will not allow of an Indictment at Gommon Law, because no Iflue can be joyned upon by reafon of the uncertainty.

As to the Second, To what end and intent the Statute 25 Edm.3.was made. Edw. 3.

was a great

Prince

Prince and Victorious Captain, which gained him a very great Renown, but that which made his Name the greater; and his Fame the more lafting, was thofe good and beneficial Laws which were enacted in his time, by which he restored and beautifyed this Government, which had been defaced, and almoft deflroyed by the illegal Proceedings during his Father's irregular Reign; and of all the Oppreffions, under which the Nation groaned at that time, there was none that lay heavier upon them than that extravas gant Licenfe which the Judges took to Inter pret, and call any thing Treafon: And this appears by the particular Joy which the whole Land expreffed at the making of the aforefaid Statute. For tho' he call'd Parliaments very frequently, and none of them prov'd abortive, for every one of them produced good Laws, yet that Parliament which was held in his 25th Year, did more than all the reft, and of all the Beneficial Laws which were then enacted, the Second Statute, where by Treafon was reduced to a certainty, gave the People greatest caufe to lift up their Hearts and Voice in Thankfulnels to God and the King, becaufe the Jaws of that devouring Beaft were broken, which had torn in pie ces fo many Families, and threatned destructi on to the reft. So that this Statute was made to restrain all Treafons, that may be made by inference or implication, and to limit the Judges lo ftriatly, that they may not call any thing Treafon, but what is literally fuch with

in the Statute; for it is there provided, That if any fuch like Treafons fhall come before any of the Justices, that they mift ftay, without going to Judgement, till the Caufe be declared before the King and his Parliament. And all fubfequent Statutes of Treafon, are as fo many Confirmations of this Law, for they had been needlefs, it the Judges could have called any thing Treafon, but what is literally within that Statute, and that Statute had been made to no purpofe, if it had not fo ftri&tly refrain. ed the Judges. And my Lord Chancellor No tinghan was of Opinion, That even the Lords in Parliament could not proceed upon an Indictment of High Treafon, unless the Fact alledged in it were firft declared by fome Statute to be Treafon."

As to the third thing. It never was, nor ever will be denyed, that Compaffing the Death of the King, and Levying of War, are. two diftin&t Species of Treafon, unless all Treafons are of the fame kind, but if there are feveral forts of Treafons, then it will follow, that thefe are alfo diftina. Becaufe in every Statute of Treafon which mentions Confpiring the Death of the King, and Levying of War, they are named diftinctly befides, they are different in the manner of Proof, for that which is neceffary to prove the one, does in no fort prove the other; and furthermore, the one may be effected and the other never fo much as intended or defigned; as that the King may be Murdered and no War levyed, nor intended: And morcover in the

one Cafe, it is Treafon as well to intend, as to execute it, without relation to, or being joyned with any thing elfe; but it is not fo in the other; for it is Treafon abfolutely in it felf, as well to compafs the Kings Death, as to Kill him; But an Intention to Levy War, and the doing of all things in order to it, is not Treafon, unless the War be levyed, except by Mifplicatiou or Inference; and thus much may ferve to prove that they are diftinct Species of Treafon.

As to the Fourth, No doubt, that every Statute is to be conftrued moft strictly to reftrain the Mifchief againft which it was enacted For the Uninterrupted courfe of all Judgments and Refolutions, have been accordingly, and nothing can more directly thwart common Sence, than to make it otherwife; and therefore if the State be abfolute, the more forcibly that it is construed to reftrain the Mischief, the more truly is the intent of the Statute purfued; for how fhall any evil be fuppreft if the remedy must be applyed but by halves: For the Law would then be rather a Mockery than a means to redress the Mischief; if it shall not be taken moft ftrongs ly against it; either it is, or it is not a reftraint of the Evil; if it is not, why was it made; If it is, It must be understood in that Sence, by which the Mischief or Evil, may be effectually prevented and fuppreffed.

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As to the Fifth, The Anfwer will be best understood, by Confidering firft the Significations of these two words apart, Viz. Provably, and Overt.

Provably, Significs To prove or make good, by Evidence, Argument, Reafon or Tefti

mony.

Overt, has all these Significations, open, clear, plain, apparent, manifeft, notorious, evident, known, undoubted, certain, perfpicu

ous.

This then being the Significations of those Words; what then can follow more Naturally, than that to be provably attainted by Overt Deed, is that the Fact must not only be direct, apparent, and notorious to the point, but it muft alfo be proved clearly, evidently, plainly, and perfpicuoufly void of all doubt or obfcurity; and those two Words being taken together, do the better Expound each other, and feem to be choice Words culled out by the penners of that Statute, as the most expreffive against all Implications and Inferences, which might be made in Cafe of Treafon.

Thefe things being premifed, which are as easily proved as alledged, there will remain very little for them to maintain their Opinion, who fay, That a Confpiracy to Levy War, is an Quert A&t of compassing the Death of the King.

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