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. 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 misdemesnor, and no treason. For they may be spoken in heat, without any intention, or be mistaken, perverted, or misremembered by the hearers: their meaning depends always on their connexion with other words, and things; they may signify differently even ac cording 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)" 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 And such writing, though unpublished, has in some arbitrary reigns convicted its author of treason: particularly in the cases of one Peachum, a clergyman, for treasonable passages in a sermon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 acts of that treason, which was specially [81] laid in 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 x 1 Hal. P. C. 115. y Cro. Car. 125. z Ibid. a Foster, 198. 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 distance 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 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. (5) 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 king himself. 1 Hal. P. C. 115.-Mr. Christian's note. (6) 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 up more than bare indications of the malignity of the heart." Fost. 202. et seq. VOL. II. 55 then no manner of doubt, but that the publication of such a treasonable writing was a sufficient overt act of treason at the common law; (b) though of late even that has been questioned. 2. The second species of treason is, "if a man do violate the king's "companion or the king's eldest daughter unmarried, or the wife of the "king's eldest son and heir." By the king's companion is meant his wife; and by violation is understood carnal knowledge, as well without force, as with it; and this is high treason in both parties, if both be consenting; as some of the wives of Henry the Eighth by fatal experience evinced. The plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it; for to violate a queen or princess-dowager is held to be no treason: (c)' in like manner as, by the feodal law, it was a felony and attended with a forfeiture of the fief, if the vasal vitiated the wife or daughter of his lord; (d) but not so, if he only vitiated his widow. (e) 3. The third species of treason is, "if a man do levy war aginst our "lord the king in his realm." And this may be done by taking arms, not only to dethrone the king, but under pretence to reform religion, or [82] the laws, or to remove evil counsellors, or other grievances whether real or pretended. (f) For the law does not, neither can it, permit any private man, or set of men, to interfere forcibly in matters of such high importance; especially as it has established a sufficient power, for these purposes, in the high court of parliament: neither does the constitution justify any private or particular resistance for private or particular grievances; though in cases of national oppression the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the king and his people. To resist the king's forces by defending a castle against them, is a levying of war: and so is an insurrection with an avowed design to put down all inclosures, all brothels, and the like; the universality of the design making it a rebellion against the state, an usurpation of the powers of government, and an insolent invasion of the king's authority. (g) But a tumult, with a view to pull down a particular house, or lay open a particular inclosure, amounts at most to a riot; this being no general defiance of public government. So, if two subjects quarrel and levy war aginst each other (in that spirit of private war, which prevailed all over Europe (h) in the early feodal times,) it is only a great riot and contempt, and no treason. Thus it happened between the earls of Hereford and Glocester in 20 Edw. I. who raised each a little army, and committed outrages upon each other's lands, burning houses, attended with the loss of many lives: yet this was held to be no high treason, but only a great misdemeanor. (i) A bare conspiracy to levy war does not amount to this species of treason; b1 Hal. P. C. 118, 1 Hawk. P. C. $3. e Ibid t. 21. g 1 Hal. P C. 132. CS Inst 9. d Feud. l. 1. t. 5. (7) But the instances specified in the statute do not prove much consistency in the application of this reason; for there is no protection given to the wives of the younger sons of the king, though their issue must inherit the crown before the issue of the king's eldest daughter, and her chastity is only inviolable before marriage, whilst her children would be clearly illegitimate. Before the 25 Ed. III. it was held to be high treason not only to violate the wife and daughters of the king, but also the nurses of his children, les norices de lour enfantz. Britt, c. 8. (8) Lord Mansfield declared, upon the trial of lord George Gordon, that it was the unanimous opinion of the court, that an attempt, by intimidation and violence, to force the repeal of a law, was a levying war against the king, and high treason. Dong, 670. Christim but (if particularly pointed at the person of the king or his government) it falls within the first, of compassing or imagining the king's death. (k) 4. "If a man be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere," he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like. (1) By enemies are here understood the subjects of foreign powers with [83] whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coasts, without any open hostilities between their nation and our own, and without any commission from any prince or state at enmity with the crown of Great Britain, the giving them any assistance is also clearly treason; either in the light of adhering to the public enemies of the king and kingdom, (m) or else in that of levying war against his majesty. And, most indisputably, the same acts of adherence or aid, which (when applied to foreign enemies) will constitute treason under this branch of the statute, will (when afforded to our own fellow-subjects in actual rebellion at home) amount to high treason under the description of levying war against the king. (n) But to relieve a rebel, filed out of the kingdom, is no treason for the statute is taken strictly, and a rebel is not an enemy: an enemy being always the subject of some foreign prince, and one who owes no allegiance to the crown of England. (0) And if a person be under circumstances of actual force and constraint, through a well-grounded apprehension of injury to his life or person, this fear or compulsion will excuse his even joining with either rebels or enemies in the kingdom, provided he leaves them whenever he hath a safe opportunity. (p) 5. "If a man counterfeits the king's great or privy seal," this is also high treason. But if a man take wax bearing the impression of the great seal off from one patent, and fixes it to another, this is held to be only an abuse of the seal, and not a counterfeiting of it: as was the case of a certain chaplain, who in such manner framed a dispensation for non-residence. But the knavish artifice of a lawyer much exceeded this of the divine. One of the clerks in chancery glewed together two pieces of parchment; on the uppermost of which he wrote a patent, to which he regularly obtained the great seal, the label going through both the skins. He then dissolved the cement; and taking off the written [84] patent, on the blank skin wrote a fresh patent, of a different import from the former, and published it as true. This was held no counterfeiting of the great seal, but only a great misprision; and sir Edward Coke (q) mentions it with some indignation, that the party was living at that day. 6. The sixth species of treason under this statute, is "if a man coun"terfeit the king's money; and if a man bring false money into the realm "counterfeit to the money of England, knowing the money to be false, to m Foster, 219. k S Inst. 9. Foster. 211, 213. o 1 Hawk. P. C. 38. 13 Inst. 10. p Foster, 216, q3 Inst. 16. (9) Sending intelligence to the enemy of the destinations and designs of this kingdom, in order to assist them in their operations against us, or in defence of themselves, is high treason, although such correspondence should be intercepted Dr. Hensey's case, 1 Burr 650. The same doctrine was held by lord Kenyon and the court in the case of William Stone, who was tried at the bar of the court of king's bench in Hilary term 1796 In that case it was held, that sending a paper to the enemy, though it was afterwards intercepted, containing advice not to invade this country, if sent with the intention of assisting their councils in their conduct and in the prosecu tion of the war, was high treason. 6 T. R. 527. Christian merchandise and make payment withal." As to the first branch, counter feiting the king's money; this is treason, whether the false money be uttered in payment or not. Also if the king's own ministers alter the standard or alloy established by law, it is treason. But gold and silver money only are held to be within the statute. (q) 10 With regard likewise to the se-cond branch, importing foreign counterfeit money, in order to utter it here; it is held that uttering it, without importing it, is not within the statute. (r) But of this we shall presently say more." 7. The last species of treason ascertained by the statute, is "if a man "slay the chancellor, treasurer, or the king's justices of the one bench or "the other, justices in eyre, or justices of assise, and all other justices as"signed to hear and determine, being in their places doing their offices." These high magistrates, as they represent the king's majesty during the execution of their offices, are therefore for the time equally regarded by the law. But this statute extends only to the actual killing of them, and not wounding, or a bare attempt to kill them. It extends also only to the officers therein specified; and therefore the barons of the exchequer, as such, are not within the protection of this act : (s) but the lord keeper or commissioners of the great seal now seem to be within it, by virtue of the statutes 5 Eliz. c. 18. and 1 W. & M. c. 21.12 [85] Thus careful was the legislature, in the reign of Edward the Third, to specify and reduce to a certainty the vague notions of treason, that had formerly prevailed in our courts. But the act does not stop here, but goes on. "Because other like cases of treason may happen in time to come, which cannot be thought of nor declared at present, it is accorded, that if any other cause supposed to be treason, which is not above specified, doth happen before any judge; the judge shall tarry without going to judgment of the treason, till the cause be shewed and declared before the king and his parliament, whether it ought to be judged treason, or other q 1 Hawk. P. C. 42. r Ibid. 43. s1 Hai, P. C. 231. (10) The monies charged to be counterfeited must resemble the true and lawful coin, but this resemblance is a mere matter of fact, of which the jury are to judge upon the evidence before them; the rule being, that the resemblance need not be perfect, but such as may in circulation ordinarily impose upon the world. Thus a counterfeiting with some little variation in the inscription, effigies, or arms, done probably with intent to evade the law, is yet within it; and so is the counterfeiting a different metal, if in appearance it be made to resemble the true coin. Hawk. b. 1. c. 17. s. 81. 1 Russ. 80. 1 Hale, 178. 184. 211. 215. 1 East P. C. 163. Round blanks, without any impression, are sufficient, if they resemble the coin in circulation. 1 Leach, 285.; and see 1 East P. C. 164. But where the impression of money was stamped on an irregular piece of metal not rounded, without finishing it, so as not to be in a state to pass current, the offence was holden to be imcomplete, although the prisoner had actually attempted to pass it in that condition. 2 Bla. Rep. 632.; and see 1 Leach, 135. In treason, as we have before seen, all concerned are in general principals, 1 Hale, 238.; but it has been doubted whether receivers of coiners are guilty of more than misprision of treason, 1 East P. C. 94, &c.; and on this doubt a convict was pardoned, Dyer, 296. a; but it seems they are traitors, 1 East P. C. 95. except where accessories before, and principals in the second degree are expressly included in the terms of the act which creates the treason, when the construc. tion has been in general lenient, according to the maxim expressum facit cepone lautum. 1 East P. C. 96. A party who agrees before the fact to receive and vend counterfeit coin, is a principal traitor. 1 Hale, 214. Chitty, (11) Post, 89-99. (12) By the statute 7 Ann. c. 21. it is made high treason to slay any of the lords of session, or lords of justiciary, sitting in judgment; or to counterfeit the king's seals appointed by the act of union. The statute 7 Ann. c. 21. has also enacted that the crimes of high treason and misprision of treason shall be exactly the same in England and Scotland; and that no acts in Scotand, except those above specified, shall be construed high treason in Scotland, which are not high treason in England. And all persons prosecuted in Scotland for high treason, or misprision, of treason, shall be tried by a jury, and in the same manner as if they had been prosecuted for the same crime in England. Christian felony." Sir Matthew Hale (t) is very high in his encomiums on the great wisdom and care of the parliament, in thus keeping pledges within the proper bounds and limits of this act, by not suffering them to run out (upon their own opinions) into constructive treasons, though in cases that seem to them to have a like parity of reason, but reserving them to the decision of parliament. This is a great security to the public, the judges, and even this sacred act itself; and leaves a weighty memento to judges to be careful and not over hasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved and settled. 2. He observes, that as the authoritative decision of these casus omissi is reserved to the king and parliament, the most regular way to do it is by a new declarative act; and therefore the opinion of any one or both houses, though of very respectable weight, is not that solemn declaration referred to by this act, as the only criterion for judging of future treasons. 86] In consequence of this power, not indeed originally granted by the sta tute of Edward III., but constitutionally inherent in every subsequent parliament (which cannot be abridged of any rights by the act of a precedent one), the legislature was extremely liberal in declaring new treasons in the unfortunate reign of king Richard the Second; as, particularly the killing of an embassador was made so; which seems to be founded upon better reason than the multitude of other points, that were then strained up to this high offence: the most arbitrary and absurd of all which was by the statute 21 Ric. II. c. 3. which made the bare purpose and intent of killing or deposing the king, without any overt act to demonstrate it, high treason. And yet so little effect have over-violent laws to prevent any crime, that within two years afterwards this very prince was both deposed and murdered. And, in the first year of his successor's reign, an act was passed, (u) reciting, "that no man knew how he ought to behave himself, to "do, speak, or say, for doubt of such pains of treason; and therefore it was "accorded, that in no time to come any treason be judged otherwise than was ordained by the statute of king Edward the Third." This at once swept away the whole load of extravagant treasons introduced in the time of Richard the Second. But afterwards, between the reign of Henry the Fourth and queen Ma. ry, and particularly in the bloody reign of Henry the Eighth, the spirit of inventing new and strange treasons was revived; among which we may reckon the offences of clipping money; breaking prison or rescue, when the prisoner is committed for treason; burning houses to extort money; stealing cattle by Welshmen; counterfeiting foreign coin; wilful poisoning; execrations against the king, calling him opprobrious names by public writing; counterfeiting the sign manual or signet; refusing to abjure the pope; deflowering or marrying, without the royal licence, any of the king's children, sisters, aunts, nephews, or nieces; bare solicitation of the chastity of the queen or princess, or advances made by themselves; marrying with the king, by a woman not a virgin, without previously discovering to him such her unchaste life; judging or believing (manifested by any overt act) the king to have been lawfully married to Ann of Cleve; derogating from the king's royal style and title; impugning his supremacy; and assembling riotously to the number of twelve, and not dispersing [87] upon proclamation: all which new-fangled treasons were totally abro. gated by the statute 1 Mar. c. 1. which once more reduced all treasons to the standard of the statute 25 Edw. III. Since which time, though the |