[232] 13 Eliz. c. 1; 13 Car. 2, c. 1; 36 G. 3, c. 7.
[233] Hale, 123; Foster, 213.
[234] Lord George Gordon's case, State Trials, xxi. 649.
[235] Hardy's case. Id. xxiv. 208. The language of Chief Justice Eyre is sufficiently remarkable.
[236] Foster, 198. He seems to concur in Hale's opinion, that words which being spoken will not amount to an overt act to make good an indictment for compassing the king's death, yet if reduced into writing, and published, will make such an overt act, "if the matters contained in them import such a compassing." Hale's Pleas of Crown, 118. But this is indefinitely expressed, the words marked as a quotation looking like a truism, and contrary to the first part of the sentence; and the case of Williams, under James I., which Hales cites in corroboration of this, will hardly be approved by any constitutional lawyer.
[237] Hale, 134. It is observable that Hale himself, as chief baron, differed from the other judges in this case.
[238] This is the well known case of Damaree and Purchase. State Trials, xv. 520; Foster, 213. A rabble had attended Sacheverell from Westminster to his lodgings in the Temple. Some among them proposed to pull down the meeting-houses; a cry was raised, and several of these were destroyed. It appeared to be their intention to pull down all within their reach. Upon this overt act of levying war the prisoners were convicted; some of the judges differing as to one of them, but merely on the application of the evidence to his case. Notwithstanding this solemn decision, and the approbation with which Sir Michael Foster has stamped it, some difficulty would arise in distinguishing this case, as reported, from many indictments under the riot act for mere felony; and especially from those of the Birmingham rioters in 1791, where the similarity of motives, though the mischief in the latter instance was far more extensive, would naturally have suggested the same species of prosecution as was adopted against Damaree and Purchase. It may be remarked that neither of these men was executed; which, notwithstanding the sarcastic observation of Foster, might possibly be owing to an opinion, which every one but a lawyer must have entertained, that their offence did not amount to treason.
[239] 7 W. 3, c. 3, § 4; Foster, 257.
[240] Foster, 234.
[241] "Would you have trials secured?" says the author of the "Jacobite Principles Vindicated" (Somers Tracts, 10, 526). "It is the interest of all parties care should be taken about them, or all parties will suffer in their turns. Plunket, and Sidney, and Ashton were doubtless all murdered though they were never so guilty of the crimes wherewith they were charged; the one tried twice, the other found guilty upon one evidence, and the last upon nothing but presumptive proof." Even the prostitute lawyer, Sir Bartholomew Shower, had the assurance to complain of uncertainty in the law of treason. Id. 572. And Roger North, in his Examen, p. 411, labours hard to show that the evidence in Ashton's case was slighter than in Sidney's.