It may seem strange that in a treatise concerning necromancy we should
have occasion to speak of the English law of high treason. But on
reflection perhaps it may appear not altogether alien to the subject.
This crime is ordinarily considered by our lawyers as limited and
defined by the statute of 25 Edward III. As Blackstone has observed,
"By the ancient common law there was a great latitude left in the
breast of the judges, to determine what was treason, or not so:
whereby the creatures of tyrannical power had opportunity to create
abundance of constructive treasons; that is, to raise, by forced and
arbitrary constructions, offences into the crime and punishment of
treason, which were never suspected to be such. To prevent these
inconveniences, the statute of 25 Edward III was made." [176] This
statute divides treason into seven distinct branches; and the first
and chief of these is, "when a man doth compass or imagine the death
of our lord the king."
Now the first circumstance that strikes us in this affair is, why the
crime was not expressed in more perspicuous and appropriate language?
Why, for example, was it not said, that the first and chief branch of
treason was to "kill the king?" Or, if that limitation was not held to
be sufficiently ample, could it not have been added, it is treason to
"attempt, intend, or contrive to kill the king?" We are apt to make
much too large an allowance for what is considered as the vague and
obsolete language of our ancestors. Logic was the element in which the
scholars of what are called the dark ages were especially at home. It
was at that period that the description of human geniuses, called the
Schoolmen, principally flourished. The writers who preceded the
Christian era, possessed in an extraordinary degree the gift of
imagination and invention. But they had little to boast on the score
of arrangement, and discovered little skill in the strictness of an
accurate deduction. Meanwhile the Schoolmen had a surprising subtlety
in weaving the web of an argument, and arriving by a close deduction,
through a multitude of steps, to a sound and irresistible conclusion.
Our lawyers to a certain degree formed themselves on the discipline of
the Schoolmen. Nothing can be more forcibly contrasted, than the mode
of pleading among the ancients, and that which has characterised the
processes of the moderns. The pleadings of the ancients were praxises
of the art of oratorical persuasion; the pleadings of the moderns
sometimes, though rarely, deviate into oratory, but principally
consist in dextrous subtleties upon words, or a nice series of
deductions, the whole contexture of which is endeavoured to be woven
into one indissoluble substance. Several striking examples have been
preserved of the mode of pleading in the reign of Edward II, in which
the exceptions taken for the defendant, and the replies supporting the
mode of proceeding on behalf of the plaintiff, in no respect fall
short of the most admired shifts, quirks and subtleties of the great
lawyers of later times. [177]
It would be certainly wrong therefore to consider the legal phrase, to
"compass or imagine the death of the king," as meaning the same thing
as to "kill, or intend to kill" him. At all events we may take it for
granted, that to "compass" does not mean to accomplish; but rather to
"take in hand, to go about to effect." There is therefore no form of
words here forbidding to "kill the king." The phrase, to "imagine,"
does not appear less startling. What is, to a proverb, more lawless
than imagination?
Evil into the mind of God or man
May come and go, so unapproved, and leave
No spot or blame behind.
What can be more tyrannical, than an inquisition into the sports and
freaks of fancy? What more unsusceptible of detection or evidence? How
many imperceptible shades of distinction between the guilt and
innocence that characterise them!--Meanwhile the force and propriety
of these terms will strikingly appear, if we refer them to the popular
ideas of witchcraft. Witches were understood to have the power of
destroying life, without the necessity of approaching the person whose
life was to be destroyed, or producing any consciousness in him of the
crime about to be perpetrated. One method was by exposing an image of
wax to the action of fire; while, in proportion as the image wasted
away, the life of the individual who was the object contrived against,
was undermined and destroyed. Another was by incantations and spells.
Either of these might fitly be called the "compassing or imagining the
death." Imagination is, beside this, the peculiar province of
witchcraft. And in these pretended hags the faculty is no longer
desultory and erratic. Conscious of their power, they are supposed to
have subjected it to system and discipline. They apply its secret and
trackless energy with an intentness and a vigour, which ordinary
mortals may in vain attempt to emulate in an application of the force
of inert matter, or of the different physical powers by means of which
such stupendous effects have often been produced.--How universal and
familiar then must we consider the ideas of witchcraft to have been
before language which properly describes the secret practices of such
persons, and is not appropriate to any other, could have been found to
insinuate itself into the structure of the most solemn act of our
legislature, that act which beyond all others was intended to narrow
or shut out the subtle and dangerous inroads of arbitrary power!