intended him, without defending him therefrom. And this allegiance, we may remember, was distinguished into two species: the one natural and perpetual, which is inherent only in natives of the king's dominions; the other local and temporary, which is incident to aliens also. Every offence therefore more immediately affecting the royal person, his crown, or dignity, is in some degree a breach of this duty of allegiance whether natural or innate, or local and acquired by residence: and these may be distinguished into four kinds; 1. Treason. 2. Felonies injurious to the king's prerogative. 3. Praemunire. 4. Other misprisions and contempts. Of which crimes, the first and principal is that of treason.

*Treason, proditio, in its very name (which is borrowed from the [75] French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, saith the Mirror (b): for treason is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation: and the inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance; as to destroy the life of any such superior or lord (c). This is looked upon as proceeding from the same principle of treachery in private life, as would have urged him who harbours it to have conspired in public against his liege lord and sovereign, and therefore for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary: these, being breaches of the lower allegiance, of private and domestic faith, are denominated petit treasons (2). But when disloyalty so rears its crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta proditio; being equivalent to the crimen laesae majestatis of the Romans, as Glanvil (d) denominates it also in our English law.

As this is the highest civil crime, which (considered as a member of the community) any man can possibly commit, it ought therefore to be the most precisely ascertained. For if the crime of high treason be indeterminate, this alone (says the president Montesquieu) is sufficient to make any government degenerate into arbitrary power (e). And yet, 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 princes 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 never [*76] were suspected to be such. Thus the accroaching, or attempting to exercise, royal power (a very uncertain charge) was in the 21 Edw. III. held to be treason in a knight of Hertfordshire, who forcibly assaulted and detained one of the king's subjects till he paid him 90l. (f): a crime, it must be owned, well deserving of punishment; but which seems to be of a complexion very different from that of treason. Killing the king's father, or brother, or even his messenger, has also fallen under the same denomination (g). The latter of which is almost as tyrannical a doctrine as that

of the imperial constitution of Arcadius and Honorius, which determines that any attempts or designs against the ministers of the prince shall be treason (h). But, however, to prevent the inconveniences which began to arise in England from this multitude of constructive treasons, the statute 25 Edw. III. c. 2. was made; which defines what offences only for the future should be held to be treason: in like manner as the lex Julia majestatis among the Romans promulged by Augustus Caesar, comprehended all the ancient laws, that had before been enacted to punish transgressors against the state (i) (3). This statute must therefore be our text and guide, in order to examine into the several species of high treason. And we shall find that it comprehends all kinds of high treason under seven distinct branches (4).

1. "When a man doth compass or imagine the death of our lord the king, of our lady his queen, or of their eldest son and heir." Under this description it is held that a queen regnant (such as queen Elizabeth and queen Anne) is within the words of the act, being invested with royal

power, and entitled to the allegiance of her subjects (j): but the [*77] husband of such a queen is not comprised within these words, and

therefore no treason can be committed against him (k). The king here intended is the king in possession, without any respect to his title: for it is held, that a king de facto and not de jure, or, in other words, an usurper that hath got possession of the throne, is a king within the meaning of the statute: as there is a temporary allegiance due to him, for his administration of the government, and temporary protection of the public: and therefore treasons committed against Henry VI. were punished under Edward IV., though all the line of Lancaster had been previously declared usurpers by act of parliament. But the most rightful heir of the crown, or king de jure and not de facto, who hath never had plenary possession of the throne, as was the case of the house of York during the three reigns of the line of Lancaster, is not a king within this statute against whom

(h) Qui de nece virorum illustrium, qui consiliis et consistorio nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sun!) vel cujus libet postremo, qui militat nobiscum, cogitaverit: (eadem enim severitate voluntatem sceleris, qua effectum, puniri jura voluerint) ipse quidem, utpote majesta

(3) The provisions of this act are confirm ed by the 36 Geo. III. c. 7. which is made perpetual by the 57 Geo. III. c. 6. This latter statute renders the law of high treason more clear and definite. It provides, that if any one within the realm, or without, shall compass or intend death, destruction, or any bodily harm tending thereto, maiming or wounding, imprisonment or restraint of his majesty, or to depose him from the style, honour, or kingly name of the imperial crown of these realms, or to levy war against him within this realm, in order by force or constraint to compel him to change his measures or counsels, or in order to put any constraint upon, or intimidate both or either house of parliament, or to move or stir any foreigner with force to invade this realm, or any of his majesty's dominions; and such compassing or intentions shall express by publishing any printing or writing, or by any other overt act, being convicted thereof on the oaths of two witnesses upon trial, or otherwise, by due course of law, such person shall be adjudged a traitor, and suffer death as

tis reus, gladio feriatur, bonis ejus omnibus fisco nostro addictis. (Cod. 9. 3. 5.)

(i) Gravin. Orig. 1, ◊ 34.

(j) 1 Hal. P. C. 101.

(k) 3 Inst. 7. 1 Hal. P. C. 106.

in cases of high treason.

(4) Treason may be either against the U. S. or against the state: the first is, levying war against the U. S. or adhering to their enemies, giving them aid and comfort. (Const. art. 3. sect. 3, 1.) The last is, levying war against the people of this state within the state: or a combination by force to usurp the government of the state, or overturn it, evidenced by a forcible attempt made within the state or adhering to the enemies of this state and giving them aid and comfort, when the state is engaged in war with a foreign enemy, in cases prescribed in the Constitution of the U. S. (2 R. S. 656.) An overt act must be done to constitute the offence, (2 R. S. 692.) and two witnesses must prove the same overt act; or one must prove one overt act, and another witness another overt act of the same treason. No evidence can be given of any overt acts except such as are laid expressly in the indictment: and no conviction can be had unless one or more such acts are so alleged. (2 R. S. 735, § 15, 16.)

treasons may be committed (1). And a very sensible writer on the crownlaw carries the point of possession so far, that he holds (m), that a king out of possession is so far from having any right to our allegiance, by any other title which he may set up against the king in being, that we are bound by the duty of our allegiance to resist him. A doctrine which he grounds upon the statute 11 Hen. VII. c. 1. which is declaratory of the common law, and pronounces all subjects excused from any penalty or forfeiture, which do assist and obey king de facto. But, in truth, this seems to be confounding all notions of right and wrong; and the consequence would be, that when Cromwell had murdered the elder Charles, and usurped the power (though not the name) of king, the people were bound in duty to hinder the son's restoration: and were the king of Poland or Morocco to invade this kingdom, and by any means to get possession of the crown (a term, by the way, of very loose and indistinct signification), the subject would be bound by his allegiance to fight for his natural prince to-day, and by the same duty of allegiance to fight against him to-morrow. The true distinction seems to be, that the statute of Henry the Seventh does by no means command any opposition [*78] to a king de jure; but excuses the obedience paid to a king de facto. When therefore an usurper is in possession, the subject is excused and justified in obeying and giving him assistance: otherwise, under an usurpation, no man could be safe: if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience. Nay, farther, as the mass of people are imperfect judges of title, of which in all cases possession is prima facie evidence, the law compels no man to yield obedience to that prince, whose right is by want of possession rendered uncertain and disputable, till Providence shall think fit to interpose in his favour, and decide the ambiguous claim: and therefore, till he is entitled to such allegiance by possession, no treason can be committed against him. Lastly, a king who has resigned his crown, such resignation being admitted and ratified in parliament, is according to sir Matthew Hale no longer the object of treason (n). 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 (0), 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 king, &c. These are synonymous terms; the word compass signifying the purpose or design of the mind or will (p), and not, as in common speech, the carrying such design to effect (q). 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, who, by the command of king William Rufus, *shooting at a [*79] hart, the arrow glanced against a tree, and killed the king on the spot (r). But, as this compassing or imagining is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrat

ed by some open, or overt act (5). And yet the tyrant Dionysius is recorded (s) to have executed a subject, barely for dreaming that he had killed him; which was held of sufficient proof, that he had thought thereof in his waking hours. But such 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." Thus, to provide weapons or ammunition for the purpose of killing the king, is held to be a palpable overt act of treason in imagining his death (t). 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 (u); for all force, used to the person of the king, 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 king, is a sufficient overt act of high treason (w) (6).

(s) Plutarch, in vit. (t) 3 Inst. 12.

(5) In the case of the regicides, the indictment charged, that they did traitorously compass and imagine the death of the king. And the taking off his head was laid, among others, as an overt act of compassing. And the person who was supposed to have given the stroke was convicted on the same indictment. For the compassing is considered as the treason, the overt acts as the means made use of to effectuate the intentions of the heart. And in every indictment for this species of treason, and indeed for levying war, or adhering to the king's enemies, an overt act must be alleged and proved. For the overt act is the charge, to which the prisoner must apply his defence. But it is not necessary, that the whole of the evidence intended to be given should be set forth; the common law never required this exactness, nor doth the statute of king William require it. It is sufficient, that the charge be reduced to a reasonable certainty, so that the defendant may be apprized of the nature of it, and prepared to give an answer to it. Fost. 194.

(6) This subject is so ably explained by Mr. Justice Foster in his first discourse on high treason, that it may be useful to annex here two of his sections. "In the case of the king the statute of treasons hath, with great propriety, retained the rule voluntas pro facto. The principle upon which this is founded is too obvious to need 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 tre ble practices, without involving a whol tion in blood

(u) 1 Hal. P. C. 109.

(w) 1 Hawk. P. C. 38. 1 Hal. P. C. 119. 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 overtures 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 ac tions 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. For experience has shewn that between the prisons and the graves of princes the dis tance is very small. Fost. 194."

This was the species of treason with which the state-prisoners were charged, who were tried in 1794. And the question, as stated by

How far mere words, spoken by an individual, and not relative to any treasonable act or design then in agitation, shall amount to treason, has been formerly matter of doubt. We have two instances in the reign of Edward the Fourth, *of persons executed for treasonable [*80] words: the one a citizen of London, who said he would make his

son heir of the crown, being the sign of the house in which he lived; the other a gentleman, whose favourite buck the king killed in hunting, whereupon he wished it, horns and all, in the king's belly (7). These were esteemed hard cases and the chief justice Markham rather chose to leave his place than assent to the latter judgment (x). But now it seems clearly to be agreed, that by the common law and the statute of Edward III. words spoken amount to only a high misdemeanor, and no treason. For they may be spoken in heat, without any intention, or be mistaken, perverted, or mis-remembered by the hearers; their meaning depends always on their connexion 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. I. on a reference to all the judges, concerning some very atrocious words spoken by one Pyne, 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 (y) (8)." If the words be set down in writing, in argues more deliberate intention and it has been held that writing is an overt act of treason; for scribere est agere. But even in this case the bare words are not the treason, but the deliberate act of writing them. And such writing, though unpublished, has in some arbitrary reigns convicted its author of treason: particularly in the cases of one Peachum, a clergyman, for treasonable passages in a sermon never preached (2); and of Algernon Sydney, for some papers found in his closet; which, had they been plainly relative to any preivous formed design of dethroning or murdering the king, might doubtless have been properly read in evidence as overt acts of that treason, which was specially laid in [*81] the indictment (a). But being merely speculative, without any intention (so far as appeared) of making any public use of them, the convicting the authors of treason upon such an insufficient foundation has been universally disapproved. Peachum was therefore pardoned: and though Sydney indeed 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

(z) 1 Hal. P. C. 115. (y) Cro. Car. 125.

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 Hardy's trial.

(z) Ibid.

(a) Foster, 198.

(8) This subject is fully and 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 indica of the malignity of the heart."

(7) There was even a refinement and degree of subtlety in the cruelty of that case, for he wished it, horns and all, in the belly of him who counselled the king to kill it; and as the king killed it of his own accord, or was his own counsellor, it was held to be a treasonable wish against the king himself. 1 1 Hal. Fost. 202. P. B. C. 115.