CATO Letters Vol 1 No 12 Of Treason: All Treasons not to be found in Statutes

Sir John TrenchardNo. 12, Saturday, January 14, 1721: Of Treason: All Treasons not to be found in Statutes. The Right of the Legislature to declare Treasons. By John Trenchard

Sir,

Treason, properly so called, in Latin, Crimen laesae majestatis [The crime of treason], is in all countries the same: It is an endeavour to subvert, or to do some notable mischief to the publick; of which every man is a part, and with which he has joined himself for mutual defence, under what form soever the administration is exercised. I own, that lesser crimes aresometimes called by the same name, and subjected to the same punishment.

An attempt to destroy the chief magistrate of a commonwealth, or the general of an army in the field, or the governor of a town during a siege, are certainly treasons everywhere; because in such attempts, when they succeed, are often involved the ruin of states. They also are doubtless guilty of high treason, who, being entrusted with the wealth, security, and happiness of kingdoms, do yet knowingly pervert that trust, to the undoing of that people whom they are obliged, by undeserved rewards, as well as by all the ties of religion, justice, honour, and gratitude, to defend and protect.

’Tis the same, if any number of men, though in a lesser trust, or in no trust at all, should deliberately and knowingly destroy thousands of their fellow-subjects, and overturn the trade and publick credit of the nation, to enrich themselves and their accomplices.

These, and crimes of the like nature, are treasons from the nature of things themselves, antecedent to all laws that call them so; and will be treasons, though laws gained by subordination should call them otherwise: And every state has a right to treat those who commit them, as traitors and parricides. In truth, there are as many of these kinds of treasons, as there are different methods of conspiring against kingdoms; and the criminals, though ever so great, deserve death and confiscation; that is, they ought to be destroyed by the people whom they would destroy.

The great principal of self-preservation, which is the first and fundamental law of nature, calls for this procedure; the security of commonwealths depends upon it; the very being of government makes it necessary; and whatever is necessary to the publick safety, is just.

The fate of millions, and the being of states, must not stand and fall by the distinctions of monks, coined in colleges, or by the chicane of petty-foggers; who would bring everything within the narrow verge of their own knowledge, under their own jurisdiction and cognizance; and would determine all things by the rules of inferior judicatures, the gibberish of private practisers, and the sayings of old women, or of those who are like old women; whose brains are addled by being long jumbled and always turned round within the scanty circle of private courts, not daring to venture at a bold and free thought out of them, however self-evident; like some carriers’ horses, that are used to a track, and know not how to travel in an open road.

But questions of this kind belong ad aliud examen [the other test], and ought to be brought before an higher tribunal: The legislature are the only proper and safe judges: What is done against all, should be judged by all. Nor are their resolutions to be confined by any other rule than Quid est utile, quid honestum [What is useful and what is morally right], general justice, and the general good. Religion, virtue, common sense, and the publick peace and felicity, are the only counsel to be admitted either for the publick or the prisoners.

The conspirators against mankind ought to know, that no subterfuges, or tergiversations; no knavish subtilties, or pedantic quirks of lawyers; no evasions, skulkings behind known statutes; no combinations, or pretended commissions, shall be able to screen or protect them from publick justice. They ought to know, that there is a power in being that can follow them through all the dark labyrinths and doubling meanders; a power that can crush them to pieces, though they change into all the shapes of Proteus, to avoid the fury of Hercules: a power, confined by no limitation, but that of publick justice and the publick good; a power, that does not follow precedents, but makes them; a power, which has this for its principle, that extraordinary crimes ought not to be tried by ordinary rules, and that unprecedented villanies ought to have unprecedented punishments.

But though in all governments, this great power must exist somewhere, yet it can rarely be delegated with prudence to inferior magistrates; who, out of ambition, revenge, or faction, or for bribes and preferments, or out of fear and flattery, or in concert with the ill measures or selfish intrigues of statesmen, may pervert so dangerous a trust to the destruction of those whom it was intended to preserve.

This particularly has been the case of England: We know by what means judges were often made, and from what conduct they expected farther preferment, and from whom they looked for protection: For this reason they were, and ought to be, confined in their jurisdiction relating to treason, and the manner of trying it.

Undoubtedly every intention manifested by act to destroy the constitution and government, was treason by the common law of England. But why do I say of England, since it is, and ever was, treason in every country throughout the world? This treason equally extends to those, who would subvert either house of Parliament, or the rights and privileges of the people, as to those who attempt to destroy the person of the King, or dethrone him. And indeed, what can be more absurd, than to suppose it to be the highest crime to attempt to destroy one man, for no other reason but that he is King; and yet not to suppose it the highest crime to destroy that people for whose benefit alone he was made King, and for whose sake indeed there ever was such a thing in the world?

But though this proposition was self-evident, and must ever be assented to as soon as mentioned, yet, by the flattery of priests and servile lawyers, the salus populi [public safety], or security of the state, soon came to signify only the unbounded power and sovereignty of the prince; and it became treason to hinder one, constituted, and grandly maintained out of the people’s labour and wealth, for the publick safety, from destroying the publick safety. Our ancestors found, by lamentable experience, that unworthy men, preferred by corrupt ministers for unworthy ends, made treasons free only of the court; that the least attempt to oppose unlimited and unlawful authority, was often called treason; and that the highest treasons of all, which were those against the commonwealth, might be committed with impunity, applause, and rewards.

It was therefore high time to apply an adequate remedy to an enormous mischief, which struck at the whole state, and at the fortunes and lives of every subject in England. The statute therefore of the 25th of Edward III was enacted, which enumerates the several species or kinds of treasons, which shall continue to be esteemed treasons, and be adjudged so by the King’s justices; and are chiefly those which relate to the King’s person, his family, and dignity: These the Parliament thought they might safely trust to the examination of the King’s judges, under such limitations and regulations as the act presents.

But it is plain, from the same act, that they did not intend to confine all treasons to those recited there, because it is declared in the following words, viz.

If any other case supposed treason, not before specified, shall happen before any justices, they shall stay judgment, till the cause be shewed before the Parliament, whether it ought to be judged treason or not.

So that here is a plain declaration of the legislature (if any man can possibly think such a declaration wanting) that other crimes were treason, and ought to be punished as treason (though not by the King’s judges), besides those recited in the act; which were, as has been said, designed only to extend to treasons which were committed against our Lord the King, and his Royal Majesty, as the act expressly says. And ’tis evident, from the whole tenor of it, that it was intended purely to restrain the unlimited and exorbitant jurisdiction assumed by the King’s courts, in declaring treasons, and sacrificing by that means, whom they pleased to unlawful power.

But as to the highest and most heinous treasons of all, such as were treasons against the legislature, and against the whole body of the people, for whose safety alone there were any treasons against the King at all, seeing that their safety was, in a great measure, included in his; the Parliament reserved the judgment of every such treason to themselves: They did not alter what was treason, but the judges of it. They knew that treasons against the constitution could seldom be committed but by ministers and favourites of princes, protected by power, and sheltered by authority; and that therefore it would be absurd to trust the punishment of such potent knaves, and criminal favourites, to judges made by themselves; judges, who would neither have inclination, figure, or character, to reach crimes countenanced, and perhaps authorized, by a Richard II or Edward II.

Such crimes, therefore, were the proper objects of the awful power of a legislature; who will always be supported by the people whom they represent, when they exert themselves for the interest of that people. A power, so supported, can make the loftiest traitor quake. It can fetch corrupt ministers out of their dark recesses, and make their heads a victim to publick vengeance. Every wise and good king will lend a willing ear to their dutiful remonstrances; he will hearken to the importunate cries of his people, and readily deliver up the authors of their misery.

One great part of their care, therefore, has ever been, to call those to an account, who have abused the favour of their royal master, and endeavoured to make him little and contemptible to his people; weakening, by such means, his authority, and hazarding his person. This the people, whom they represented, thought they had a right to expect and demand from them; and this justice they have often done to their King and country.

An excellent Discourse concerning Treasons and Bills of Attainder was published soon after his Majesty’s accession to the throne, and shewed unanswerably, that our Parliaments, in almost every reign since the Conquest, claimed and exercised this right, upon extraordinary occasions; and none ever, till lately, opposed it, but the criminals who were to suffer by it, and their party: Some gentlemen now living can give the best account, why that book, and the cries of every honest man, had not their desired effect. I hope that no man will be deluded again by any practising the same arts, and for the same reasons too.

The length of this letter will not allow me to draw from all these reasonings upon treason such applications as I promised in my last, and intended in this. I shall therefore defer these applications to another, and perhaps more proper, occasion. In the mean while, I observe with pleasure the noble spirit shewn by our legislature, to punish, with an exemplary severity, the murderers of our credit, and the publick enemies of our liberty and prosperity. This revives every drooping heart, and kindles joy in every face, in spite of all our miseries. And this brings terror, trembling, and paleness upon the guilty; to see death and destruction pursuing them close, and besetting them hard on every side. They are in the circumstances and the agonies of the guilty Cain, who justly feared that every man whom he met would kill him, though there was no law then in being against murder.

T. I am, &c.

 

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