CHAPTER THE SIXTH. [75] OF HIGH TREASON. THE third general division of crimes consists of such as more especially affect the supreme executive power, or the king and his government; which amount either to a total renunciation of that allegiance, or at the least to a criminal neglect of that duty, which is due from every subject to his sovereign. In a former part of these commentaries we had occasion to mention the nature of allegiance, as the tie or ligamen which binds every subject to be true and faithful to his sovereign liege lord the king, in return for that protection which is afforded him; and truth and faith to bear of life and limb, and earthly honour; and not to know or hear of any ill 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 and 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 it's very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, saith the Mirror: 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. (1) 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. 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 Glanvild 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. 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 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 LL. Aelfredi. c.4. Aethelst. c. 4. Canuti. c. 54. 61. e d l.1. c. 2. Sp. L. b. 12. c. 7. (1) The expressions in the laws referred to are, vitæ regis insidiari, insidias domino facere, regi vel domino insidiari. So that not merely to destroy the life, but to attempt so to do, was treason, and that as it should seem equally in petit as in high treason. See Wilkins, pp. 55. 57. 142. [ 76 ] 1 till he paid him 901.: a crime, it must be owned, well deserv- 1. “WHEN a man doth compass or imagine the death of our lord the king, of our lady his queen, or of their eldest 66 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: but the husband of such a queen is not comprised within these words, [77] and therefore no treason can be committed against him. The king here intended is the king in possession, without f 1 Hal. P. C. 80. 8 Britt.c.22. 1 Hawk. P. C.c. 17. s. 1. h Qui de nece virorum illustrium, qui consiliis et consistorio nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujuslibet postremo, qui militat nobiscum, cogitaverit: (eadem enim severitate voluntatem sceleris, qua effectum, puniri jura voluerint) ipse quidem, utpote majestatis reus, gladio feriatur, bonis ejus omnibus fisco nostro addictis. (Cod. 9. 8. 5.) Gravin. Orig. 1. § 34. j 1 Hal. P. C. 101. * 3 Inst.7. 1 Hal. P. C. 106. (2) It was this judgment which seems to have led to the statute of treasons; a petition, in consequence of it, was presented in the same year by the Commons, praying for a declaration in Parliament, what is the accroachment of royal power; and though this was then evasively answered, yet the Commons ultimately succeeded. Reeves's History of the English Law, vol. ii. p. 450. 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 protec→ tion 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 posses-< sion 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.' And a very sensible writer on the crown law carries the point of possession so far, that he holdsTM, 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 groinds upon the statute 11 Hen. VII. c. 1. which is declaratory of the common law, and pronounces all subjects excused from any penalty of 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 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 to a king de jure; [ 78 ] 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 13 Inst. 7. 1 Hal. P. C. 104. VOL. IV. G m 1 Hawk. P. C. c. 17. s. 16. 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 primâ facie evi, dence, 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 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". 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, 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", and not, as in common speech, the carrying such design to effect. 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 hart, the arrow glanced against a tree, and killed the [79]king upon the spot. But, as this compassing or imagining is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open, or overt, act. (2) And yet the tyrant Dionysius is recorded to have n 1 Hal. P. C. 104. • Vol. I. pag. 212. r P By the antient law compassing or intending the death of any man, demon strated by some evident fact, was equally rg Inst. 6. • Plutarch. in vit. (2) Still it is this act of the mind, which is the substantive treason, and must be charged to be so in the indictment; the overt acts are the means by which the act of the mind becomes capable of proof, and is proved. See ante, p. 35. Foster, 194. With regard to Tyrrel, I hardly know whether |