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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. (2) Killing the king's father, or brother, or even his messenger, has also fallen under the same denomination. 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". 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 antient laws that had before been enacted to punish transgressors against the state. 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.

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': 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.

Britt.c.22. 1 Hawk. P. C.c. 17. s. 1. 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.)

k

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 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 treasons may be committed.' 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. 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 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 primú 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

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.

By the antient law compassing or intending the death of any man, demon

strated by some evident fact, was equally
penal as homicide itself. (3 Inst. 5.)
1 Hal. P.C.107.

T 3 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

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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. 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"; for all force, used to the person of the king, in it's 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."

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 words: the one a citizen of [80] 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

t 3 Inst. 12.

" 1 Hal. P.C.109.

w 1 Hawk. P. C. c. 17. s. 9. 1 Hal.
P.C.119.

whether it is worth observing, that it is extremely doubtful if he was the author of William's death. There was no evidence against him; and long after he had ceased to have any thing to hope or fear from the discovery, he swore that he never saw the king on the day of his death, or entered that part of the forest in which he fell. There are several circumstances which make it probable that William did not perish by an accidental wound, and certainly if Tyrrel was a traitor, he did not reap the fruits of his treason. See Lingard's and Turner's Histories.

X

gentleman, whose favourite buck the king killed in hunting, whereupon he wished it, horns and all, in the king's belly. These were esteemed hard cases: and the chief justice Markham rather chose to leave his place than assent to the latter judgment. But now it seems clearly to be agreed, that by the common law and the statute of Edward III. words spoken amount only to a high misdemesnor, 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 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. 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." (3) If the words be set down in writing, it 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 it's author of treason: particularly in the cases of one Peachum, a clergyman, for treasonable passages in a sermon never preached; and of Algernon Sydney, 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 have been properly read in evidence as overt [81] acts of that treason, which was specially laid in the indictment." But being merely speculative, without any intention (so far as

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(3) This must be understood of such words as are described in the be ginning of the paragraph, loose words, "not relative to any treasonable act or design then in agitation." For words of advice, or persuasion, and all consultations for the traitorous purposes before mentioned are certainly overt acts of treason. Fost. 200.

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