conftructions, offences into the crime and punishment of treason, which never were fufpected to be fuch. 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 affaulted and detained one of the king's fubjects till he paid him 90/e: a crime, it must be owned, well, deferving of punishment; but which feems to be of a complexion very different from that of treafon. Killing the king's father, or brother, or even his messenger, has also fallen under the fame denomination. The latter of which is almost as tyrannical a doctrine as that of the imperial conftitution 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 arife in England from this multitude of constructive treasons, the ftatute 25 Edw. III. c. 2. was made; which defines what offences only for the future fhould be held to be treason: in like manner as the lex Julia majeftatis among the Romans, promulged by Auguftus Caefar, comprehended all the antient laws, that had before been enacted to punish tranfgreffors against the state 1. This ftatute muft 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. I. 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 invefted with royal power and entitled to the allegiance of her subjects: but the husband of such a e 1 Hal. P. C. 80. f Britt. c. 22. 1 Hawk. P. Ć. 34. Qui de nece virorum illuftrium, qui confiliis et confiftorio noftro interfunt, fenatorum etiam (nam et ipfi pars corporis noftri funt) vel cujuflibet poftremo, qui militat nobifcum, cogitaverit: (eadem enim feveritate voluntatem fceleris, qua effectum, puniri jura voluerunt) h Gravin. Orig. 1. §. 34. queen queen is not comprized within these words, and therefore no treafon can be committed against him. The king here intended is the king in poffeffion, without any respect to his title: for it is held, that a king de facto and not de jure, or in other words an ufurper that hath got poffeffion 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 ufurpers 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 poffeffion of the throne, as was the cafe 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 poffeffion fo far, that he holds ", that a king out of poffeffion is fo 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 refift him. A doctrine which he grounds upon the statute 11 Hen. VII. c. I. which is declaratory of the common law, and pronounces all fubjects excused from any penalty or forfeiture, which do affift and obey a king de facto. But, in truth, this seems to be confounding all notions of right and wrong; and the confequence would be, that when Cromwell had murdered the elder Charles, and ufurped the power (though not the name) of king, the people were bound in duty to hinder the fon's restoration: and were the king of Poland or Morocco to invade this kingdom, and by any means to get poffeffion of the crown (a term, by the way, of very loose and indistinct fignification) the subject would be bound by his allegiance to fight for his natural prince to-day, and by the fame duty of allegiance to fight against him to-morrow. The true diftinction feems to be, that the ftatute of Henry the feventh does by no means command any oppofition to a king de jure; but excuses the obedience paid to a king de facto. When therefore a ufurper is in poffeffion, the fubject is excufed and justified in obeying and giving him affiftance: otherwise, under a ufurpation, no man could be fafe; if the lawful prince had a right to hang him for obedience to the powers in being, as the ufurper would certainly do for disobedience. Nay farther, as the mass of people are imperfect judges of title, of which in all cafes poffeffion is prima facie evidence, the law compels no man to yield obedience to that prince, whose right is by want of poffeffion rendered uncertain and disputable, till providence shall think fit to interpofe in his favour, and decide the ambiguous claim: and therefore, till he is entitled to fuch allegiance by poffeffion, no treason can be committed against him. Lastly, a king who has refigned his crown, fuch refignation being admitted and ratified in parliament, is according to fir Matthew Hale no longer the object of treafon". And the same reason holds, in case a king abdicates the government; or, by actions fubverfive of the conftitution, virtually renounces the authority which he claims by that very constitution: fince, as was formerly observed, when the fact of abdication is once established, and determined by the proper judges, the confequence neceffarily follows, that the throne is thereby vacant, and he is no longer king. LET us next fee, what is a compaffing or imagining the death of the king, &c. These are fynonymous terms; the word compafs fignifying the purpose or design of the mind or will, and not, as in common fpeech, the carrying fuch design to effect. And therefore an accidental ftroke, which may mortally wound the fovereign, per infortunium, without any traiterous intent, is no treafon as was the cafe of fir Walter Tyrrel, who, by the 66 command of king William Rufus, shooting at a hart, the arrow glanced against a tree, and killed the king upon the spot'. But, as this compaffing or imagination is an act of the mind, it cannot poffibly fall under any judicial cognizance, unless it be demonstrated by fome open, or overt, act. And yet the tyrant Dionyfius is recorded' to have executed a subject, barely for dreaming that he had killed him; which was held for a fufficient proof, that he had thought thereof in his waking hours. But fuch 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 expreffly requires, that the accused "be thereof upon fufficient 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 confpire to imprison the king by force, and move towards it by affembling company, is an overt act of compaffing' the king's death"; for all force, used to the person of the king, in it's confequence 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 fovereign: 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 fuch treasonable purposes effectual, as affembling and confulting on the means to kill the king, is a sufficient overt act of high treafon ". How far mere words, fpoken by an individual, and not relative to any treafonable act or design then in agitation, fhall amount to treafon, has been formerly matter of doubt. We have two instances, in the reign of Edward the fourth, of per fons executed for treasonable words: the one a citizen of London, who faid he would make his fon 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. These were efteemed hard cafes: and the chief justice Markham rather chose to leave his place than affent 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 misdemefnor, 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 fignify differently even according to the tone of voice, with which they are delivered; and sometimes filence itself is more expreffive than any discourse. difcourfe. 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 fome very atrocious words fpoken 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 fome par"ticular ftatute, no words will be treafon "." If the words be fet down in writing, it argues more deliberate intention ; and it has been held that writing is an overt act of treason; for fcribere eft agere. But even in this cafe the bare words are not the treafon, but the deliberate act of writing them. And fuch writing, though unpublished, has in some arbitrary reigns convicted it's author of treafon: particularly in the cafes of one Peacham a clergyman, for treasonable paffages in a fermon never preached'; and of Algernon Sidney, for fome papers found in his closet which, had they been plainly relative to any previous formed defign of dethroning or murdering the king, might doubtless have been properly read in evidence as overt 1 Hal. P. C. 115. y Cro. Car. 125. z Ibid. acts |