ing to sir Matthew Hale no longer the object of treason (o). And the same reason holds, in case a king abdicates the government: or, by actions subversive of the constitution, virtually renounces the authority which he claims by that very constitution: since, as was formerly observed (p), when the fact of abdication is once established, and determined by the proper judges, the consequence necessarily follows, that the throne is thereby vacant, and he is no longer king. * Let us next see, what is a "compassing" or "imagining" the death of the sovereign, &c. These are synonymous terms; the word What is a compassing or imagining death. [*86] "compass" signifying the purpose or design of the mind or will (g), and not, as in common speech, the carrying such design into effect (r). And therefore an accidental stroke, which may mortally wound the sovereign, per infortunium, without any traitorous intent, is no treason: as was the case of sir Walter Tyrrel, by the command of king William Rufus, shooting at a hart, whose arrow glanced against a tree, and killed the king upon the spot (s). But, as this compassing or imagination is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open, or overt act (t). And yet the tyrant Dionysius is recorded (u) to have executed a subject, barely for dreaming that he had killed him; which was held for a sufficient proof, that he had thought thereof in his waking hours. Such however is not the temper of the English law; and therefore in this, and the three next species of treason, it is necessary that there appear an open or overt act of a more full and explicit nature to convict the traitor upon. The statute expressly requires, that the accused "be thereof upon sufficient proof attainted of some open act by men of his own *condition (x)." Thus, to provide weapons or ammunition for the [*87] purpose of killing the king, has been held to be a palpable overt act of treason in imagining his death (y). To conspire to imprison the king by force, and move towards it by assembling company, is an overt act of compassing the king's death (z); for all force, used to the person of the sovereign, in its consequence may tend to his death, and is a strong presumption of something worse intended than the present force, by such as have so far thrown off their bounden duty to their sovereign; it being an old observation, that there is generally but a short interval between the prisons and the graves of princes. There is no question also, but that taking any measures to render such treasonable purposes effectual, as assembling and consulting on the means to kill the sovereign, is a sufficient overt act of high treason (a). (0) 1 Hale, P. C. 104. (q) According to our ancient law," compassing" or intending the death of any man, demonstrated by some evident fact, was equally penal as homicide itself: 3 Inst. 5. (r) 1 Hale, P. C. 107. (8) 3 Inst. 6. (t) In the proceedings against the regicides (5 St. Tr. 947), the indictment charged, that they did traitorously compass and imagine the death of the king, the taking off his head was laid as an overt act of compassing, and the person who was supposed to have given the stroke was convicted on the indictment. For the compassing is considered as the treason, the overt acts as the means made use of * How far mere words, spoken by an individual, and not relative to [* 88] any treasonable act or design then in agitation, shall amount to treaWhether words son, has been formerly matter of doubt. Instances are reare treasonable. ported (b) of persons who have been executed for treasonable words. But now it seems clearly to be agreed, that by the common law and the statute of Edw. 3 words spoken amount per se only to a high misdemeanor, and no treason. For they may be spoken in heat, without any intention, or be mistaken, perverted, or misremembered by the hearers; their meaning depends always on their connection with other words, and things; they may signify differently even according to the tone of voice with which they are delivered; and sometimes silence itself is more expressive than any discourse. As therefore there can be nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high treason. And accordingly in 4 Car. 1, on a reference to the judges, concerning some words spoken by one Pine, they certified to the king, "that though the words were as wicked as might be, yet they were no treason: for unless it be by some particular statute, no words will be treason (c)." If the words be set down in writing, it * argues [* 89] more deliberate intention: and, according to the maxim scribere est agere, such writing, though unpublished, has in some arbitrary reigns convicted its author of treason: particularly in the cases of one Peacham, a clergyman, for treasonable passages in a sermon never preached (d); and of Algernon Sidney, for some papers found in his closet; which, had they been plainly relative to any previous formed design of dethroning or murdering the king, might doubtless, though unpublished, have been properly read in evidence to explain overt acts of treason, laid in the indictment (e). But being merely much enlargement. The king is considered as the head of the body-politic, and the members of that body are considered as united and kept together by a political union with him and with each other. His life cannot, in the ordinary course of things, be taken away by treasonable practices, without involving a whole nation in blood and confusion; consequently every stroke levelled at his person is, in the ordinary course of things, levelled at the public tranquillity. The law therefore tendereth the safety of the king with an anxious concern; and, if I may use the expression, with a concern bordering upon jealousy. It considereth the wicked imaginations of the heart, in the same degree of guilt as if carried into actual execution, from the moment measures appear to have been taken to render them effectual. And, therefore, if conspirators meet and consult how to kill the king, though they do not then fall upon any scheme for that purpose, this is an overt act of compassing his death; and so are all means made use of, be it advice, persuasion, or command, to incite or encourage others to commit the fact, or join in the attempt; and every person who but assenteth to any overture for that purpose will be involved in the same guilt. "The care the law hath taken for the personal safety of the king is not confined to actions or attempts of the more flagitious kind, to assassination or poison, or other attempts directly and immediately aiming at his life. It is extended to every thing wilfully and deliberately done or attempted, whereby his life may be endangered. And, therefore, the entering into measures for deposing or imprisoning him, or to get his person into the power of the conspirators,these offences are overt acts of treason within this branch of the statute." Fost. 194. This was the species of treason with which the state-prisoners were charged in 1794. And the question, as stated by the court for the jury to try, was, whether their measures had been entered into with an intent to subvert the monarchy and to depose the king? See R. v. Hardy, 24 St. Tr. 199, 1379-80. (b) See, for example, Houghton's Case, Cro. Car. 125; Challercomb's Case, Id. ibid., 1 Hale, P. C. 115. (c) Pine's Case, Cro. Car. 117, 126. This subject is ably discussed by Mr. J. Foster, who maintains that words alone cannot amount to an overt act of treason: but if they are attended or followed by a consultation meeting, or any act, then they will be evidence, or a confession, of the intent of such consultation, meeting or act; and he concludes, that "loose words, not relative to facts, are at the worst no more than bare indications of the malignity of the heart." Fost. 202, et seq.-Words spoken may how ever be laid in an indictment for treason to explain an overt act charged therein, (d) Cro. Car. 125; 2 St. Tr. 869. (e) Foster, 198. speculative, without any intention (so far as appeared) of making public use of them, the convicting the authors of treason upon such an insufficient foundation has been universally disapproved. Peacham, indeed, was pardoned; and though Sidney was executed, yet it was to the general discontent of the nation; and his attainder was afterwards reversed by parliament. There was then no manner of doubt, but that the publication of such a treasonable writing was a sufficient overt act of treason at the common law (ƒ); and such is the recognised doctrine at this day. 2. Violating king's com 2. The second species of treason is, "if a man do violate the king's companion, or the king's eldest daughter, unmarried, or the wife of the king's eldest son and heir." By the king's companion is meant his wife; and by violation is understood carnal knowledge, as well eldest daughter without force, as with it: and this is high treason in both parties, if both be consenting; as some of the wives of Henry the Eighth by fatal experience evinced. panion, or unmarried, or wife of heir. 3. The third species of treason is, "if a man do levy * war against [* 90] our lord the king in his realm." And this may be done by taking 3. Levying war against the crown. arms, not only to dethrone the king, but under pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances whether real or pretended (g). For the law does not, neither can it, permit any private man, or set of men, to interfere forcibly in matters of such high importance; especially as it has established a sufficient power, for these purposes, in the high court of parliament: neither does the constitution justify any private or particular resistance for private or particular grievances; though in cases of national oppression the nation has very justifiably risen as one man, to vindicate the original contract, subsisting between the sovereign and the people. To resist the royal forces by defending a castle against them, is a levying of war: and so is an insurrection with an avowed design to pull down all inclosures, all brothels, and the like; the universality of the design making it a rebellion against the state, an usurpation of the powers of government, and an insolent invasion of the authority of the crown (h). But a tumult, with a view to pull down a particular house, or lay open a particular inclosure, amounts at most to a riot; this being no general defiance of public government (i). So, if two subjects quarrel *and levy war against each other (in that spirit of private war, which prevailed over Europe (k) in the early feudal times), it is only a great (f) 1 Hale, P. C. 118; 1 Hawk. P. C. 38. (g) 1 Hawk. P. C. 37. Lord Mansfield declared, upon the trial of Lord George Gordon, that it was the unanimous opinion of the court, that an attempt, by intimidation and violence, to force the repeal of a law, was a levying war against the king, and high treason. R. v. Gordon, Doug. 590. (h) 1 Hale, P. C. 132. In Reg. v. O'Brien, 1 Townsend, St. Tr. 469, 526, the case was thus presented to the jury:-Was the object of this insurrectionary movement a general object, or was it a limited particular personal object to protect the accused? To reduce the offence below the crime of treason, the personal or particular object must be exclusive; because, if in addition to protecting the person from arrest there was the other and gen [*91] eral purpose, the moment the general object is established that becomes high treason, whether such general object were a change in the government, a repeal of the Act of Union or the separation of Ireland from Great Britain. (i) "There must be an insurrection, it must be accompanied with force, and it must be for an object of a general nature." Therefore if an armed body enter a town with a leader, their object being neither to take the town nor to attack the military, but merely to make a demonstration of strength to procure the liberation of certain political prisoners, this, though an aggravated misdemeanor, is not high treason. Reg. v. Frost, 9 C. & P. 129; 1 Townsend, St. Tr. 1, 95. (k) Robertson Charles V. i. 45, 286. riot and contempt, and no treason. Thus it happened between the Earls of Hereford and Gloucester in 20 Edw. 1 who raised each a little army, and committed outrages upon each other's lands, burning houses, attended with the loss of many lives: yet this was held to be no treason, but only a great misdemeanor (1). A bare conspiracy to levy war does not amount to this species of treason: but (if particularly pointed at the person of the sovereign or at the government) it falls within the first, of compassing or imagining the king's death (m). 4. Adhering to 4. "If a man be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere," he is also declared guilty of high treason. This must likewise be proved by some overt act, as by king's enemies. giving them intelligence (n), sending them provisions, by selling them arms, by treacherously surrendering a fortress or the like (0). By enemies are here understood the subjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coasts, without any open hostilities between their nation and our [* 92] own, and without any commission from any prince or state at enmity with the crown of Great Britain, the giving them any assistance is also clearly treason; either in the light of adhering to the public enemies of the crown and kingdom (p), or else in that of levying war against her majesty. And, most indisputably, the same acts of adherence or aid, which (when applied to foreign enemies) will constitute treason under this branch of the statute, will (when afforded to our own fellow-subjects in actual rebellion at home) amount to high treason under the description of levying war against the crown (q). But to relieve a rebel, fled out of the kingdom, is no treason: for the statute is taken strictly, and a rebel is not an enemy: an enemy being always the subject of some foreign prince, and one who owes no allegiance to the crown of England (r). And if a person be under circumstances of actual force and constraint, through a well-grounded apprehension of injury to his life or person, this fear or compulsion will excuse his even joining with either rebels or enemies in the kingdom, provided he leaves them whenever he has a safe opportunity (s). (646) (7) 1 Hale, P. C. 136. (m) 3 Inst. 9; Foster, 211, 213. (n) Sending intelligence to the enemy of the destinations and designs of this kingdom, in order to assist them in their operations against us, or in defence of themselves, is high treason, although such correspondence should be intercepted; Hensey's Case, 1 Burr. 650, 19 St. Tr. 1341. In R. v. Stone, 25 St. Tr. 1155; 6 T. R. 527, it was held, that sending a paper to the enemy, though it was (646) See ante, 29, note 620. And see United States v. Hodges, 2 Wheel. Cr. Cas. 477; United States v. Vigol, 2 Dall. 347. It is held by the court of claims that serving in a home guard (Miller's Case, 4 Ct. of Cl. 288; Ayer's Case, id. 429); or serving in a fire patrol liable to be called into military service (Quinby's Case, id. 417); or paying duties on goods running the blockade (id.); or subscribing to the confederation (Padelford's Case, 4 Ct. of Cl. 316), when done under compulsion, or in the extreme urgency of the times, do not amount to "giving aid and comfort to the rebellion." But it is otherwise with investing in the stock of companies engaged in blockade running. Bates' Case, 4 Ct. of Cl. 569. And it is no defense to an indictment for attempting With reference to the three last species of high treason must here be cited the statute 7 & 8 Will. 3, c. 3, which enacts (sect. 2) that no person shall be convicted of high treason or misprision of treason (t), "but by and upon the oaths and testimony of two lawful witnesses, either both of them to the same overt act, or one of them to one and the other of them to another overt act of the same treason," unless the party indicted and arraigned shall confess the same; this statute, however, does not extend to "cases of high treason in compassing or imagining the death of the king, and of misprision of such treason, where the overt act or overt acts of such treason which shall be *alleged in the indictment for such offence shall be assassination or [* 93] killing of the king, or any direct attempt against his life, or any direct attempt against his person whereby his life may be endangered or his person may suffer bodily harm;" but the individual indicted for any such offence as just specified shall be tried "in every respect and upon the like evidence" as if he stood charged with murder (u). Thus careful was the legislature, in the reign of Edw. III., to specify and reduce to a certainty the vague notions of treason, which had formerly prevailed in our courts. But the act does not stop here, it goes on thus:"Because other like cases of treason may happen in time to come, which cannot be thought of nor declared at present, it is accorded, that if any other cause supposed to be treason, which is not above specified, doth happen before any judge; the judge shall tarry without going to judgment of the treason, till the cause be shewed and declared before the king and his parliament, whether it ought to be judged treason, or other felony." Sir Matthew Hale (v) is very high in his encomiums on the great wisdom and care of the parliament, in thus keeping judges within the proper bounds and limits of this act, by not suffering them to run out (upon their own opinions) into constructive treasons, though in cases that seem to them to have a like parity of reason, but reserving them to the decision of parliament. This is a great security to the public, the judges, and even this sacred act itself; and leaves a weighty memento to judges to be careful and not over hasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved and settled. 2. He observes, that as the authoritative decision of these casus omissi is reserved to the king and parliament, the most regular way to do it is by* a new declarative act; and therefore the opinion of [* 94] any one or of both houses, though of very respectable weight, is not that solemn declaration referred to by this act, as the only criterion for judging of future treasons. In consequence of this power, not indeed originally granted by the statute of Edw. III., but constitutionally inherent in every subsequent parliament (which cannot be abridged of any rights by the act of a prececlared since the dent one), the legislature was extremely liberal in declaring new treasons in the unfortunate reign of king Richard II.; as, par New treasons de statute. (t) As to which vide post, p. 97. (u) See 39 & 40 Geo. 3, c. 94, extended by 5 & 6 Vict. c. 51, s. 1. In treason, except where directed against the person of the sovereign, the period of limitation is three years: 7 & 8 Will. 3, c. 3, ss. 5, 6. (v) 1 Hale, P. C. 259. forcibly to seize provisions outside of the enemy's line for the enemy's use, that the defendant promised to do so when a prisoner under compulsion. United States v. Pryor, 3 Wash. C. C. 237; 2 Whart. Crim. Law, § 2733. |