ted on by the prisoner, and fully resolved; the surprisal of the
guards deliberated on, but not fully resolved; and that an assassination
had never once been mentioned nor imagined by him. So far the matter
of fact seems certain: but still, with regard to law, there remained a
difficulty, and that of an important nature.

The English laws of treason, both in the manner of defining that crime,
and in the proof required, are the mildest and most indulgent, and
consequently the most equitable, that are any where to be found. The two
chief species of treason contained in the statute of Edward III. are the
compassing and intending of the king's death, and the actually levying
of war against him; and by the law of Mary, the crime must be proved by
the concurring testimony of two witnesses, to some overt act, tending to
these purposes. But the lawyers, partly desirous of paying court to the
sovereign, partly convinced of ill consequences which might attend such
narrow limitations, had introduced a greater latitude both in the proof
and definition of the crime. It was not required that the two witnesses
should testify the same precise overt act: it was sufficient that they
both testified some overt act of the same treason; and though this
evasion may seem a subtilty, it had long prevailed in the courts of
judicature, and had at last been solemnly fixed by parliament at the
trial of Lord Stafford. The lawyers had used the same freedom with the
law of Edward III. They had observed that, by that statute, if a man
should enter into a conspiracy for a rebellion, should even fix a
correspondence with foreign powers for that purpose, should provide arms
and money, yet, if he were detected, and no rebellion ensued, he could
not be tried for treason. To prevent this inconvenience, which it
had been better to remedy by a new law, they had commonly laid their
indictment for intending the death of the king and had produced the
intention of rebellion as a proof of that other intention. But though
this form of indictment and trial was very frequent, and many criminals
had received sentence upon it, it was still considered as somewhat
irregular, and was plainly confounding by a sophism two species of
treason, which the statute had accurately distinguished. What made this
refinement still more exceptionable, was, that a law had passed soon
after the restoration, in which the consulting or the intending of a
rebellion was, during Charles's lifet