CHAPTER VI. OF OFFENCES AGAINST THE GOVERNMENT. THE order of our distribution will next lead us to take into consideration, such crimes and misdemeanors as affect men not in their capacity of individuals, and in respect of their persons or property, but in their capacity of members of the commonwealth; and in respect of those rights which are common to all the subjects of the realm. These may be divided into seven species; viz., offences against the sovereign or civil government; against religion; against the law of nations; against public justice; against the public peace; against the public trade; and against the public health, police or economy. Under the first of these heads we shall advert, in the first place, to the crime of treason. I. [Treason, proditio, in its very name, (which is borrowed from the French,) imports a betraying, treachery, or breach of faith (a);] and the crime of which we here speak, is treachery against the sovereign or liege lord (b): and as it 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 treason be indeterminate, this alone, (says the president Montesquieu,) is sufficient to make any government degenerate into arbitrary power (c). And yet, by the antient 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 were suspected to be such. Thus the accroaching or attempting to exercise royal power-a very uncertain charge-was, in the twenty-first year of Edward the third, held to be treason in a knight of Hertfordshire, who forcibly assaulted and detained one of the king's subjects till he paid him 901.; a crime, it must be owned, well deserving of punishment, but which seems to be of a complexion very different from that of treason (d). Killing the king's father or brother, or even his messenger, has also fallen under the same denomination (e): 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 (f). But, however, "mans." 4 Bl. Com. 75. Since (c) Sp. L. b. xii. c. 7. (e) Britt. c. 22; Hawk. P. C. b. 1, c. 17, s. 1. (f) "Qui de nece virorum illus. trium, qui consiliis et consistorio nostro [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 Cæsar, comprehended all the antient laws that had before been enacted to punish transgressors against the State (g).] We shall find that, under this statute of Edw. III., the crime of treason consists of five distinct branches (h). 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 (i),—such as Queen Elizabeth and Queen Anne,] and our present gracious sovereign Queen Victoria,-[is within the words of the Act, being invested with royal power, and entitled to the allegiance of her subjects (k); but the husband of such a queen is not comprised within these words, and therefore no treason can be committed against him (7). 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,- intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujuslibet postremo, qui militat nobiscum, cogitaverit (eâdem enim severitate voluntatem sceleris, quâ effectum, puniri jura voluerint); ipse quidem, utpote majestatis reus, gladio feriatur, bonis ejus omnibus fisco nostro addictis."Cod. 9, 8, 5. (g) Gravin. Orig. 1, s. 34. (h) Blackstone (vol. iv. p. 83) notices two additional species of treason under the statute of Edward the third, viz. 1, "counterfeiting the "king's great or privy seal;" and 2, "counterfeiting the king's money, "and bringing false money into the payment withal." But as to the first of these, though the crime remained a treason under 11 Geo. 4 & 1 Will. 4, c. 66, it is now by 24 & 25 Vict. c. 98, reduced to an ordinary felony (vide sup. p. 226); and the second ranks now, merely as the offence of coining; as to which, vide post, c. VI. (i) 1 Hale, P. C. 101. (k) See R. v. Oxford, 9 Car. & P. 525. (7) 3 Inst. 7; 1 Hale, P. C. 106. [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 the sixth were punished under Edward the fourth, 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 treasons may be committed (m). And a very sensible writer on the Crown law carries the point of possession so far, that he holds 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 (n): 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 a 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 that were any foreign prince 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 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 justi (m) 3 Inst. 7; 1 Hale, P. C. 104. (n) Hawk. P. C. b. 1, c. 17, s. 16. [fied 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, further, as the mass of people are imperfect judges of title, (of which, in all cases, possession is primâ 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 M. Hale,) no longer the object of treason (0). And the same reason holds in case the 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, 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 (p). 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 (q); 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. was the case of Sir Walter Tyrrel; who, by the command of King William Rufus, shooting at a hart, the arrow glanced against a tree and killed the king upon (0) 1 Hale, P. C. 104. (p) Vide sup. vol. 11. p. 455. (q) By the antient law the compassing or intending the death of As the |