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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 king, queen, heir." Under this description it is held that a queen regnant

death of

or heir.

(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, and therefore no [77] treason can be committed against him. 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, a 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 crownlaw carries the point of possession so far that he holds that

1. Compassing, &c..

j 1 Hal., P. C., 101.

3 Inst., 7; 1 Hal., P. C., 106.

realm, or without, shall compass or intend
death, destruction, or any bodily harm
tending thereto, maiming or wounding,
imprisonment or restraint of his majes-
ty, or to depose him from the style, hon-
or, or kingly name of the imperial crown
of these realms, or to levy war against
him within this realm, in order by force
or constraint to compel him to change
his measures or counsels, or in order to
put any constraint upon, or intimidate
both or either house of Parliament, or

13 Inst., 7; 1 Hal., P. C., 104. m 1 Hawk., P. C., 36.

to move or stir any foreigner with force to invade this realm, or any of his maj esty's dominions; and such compassing or intentions shall express by publishing any printing or writing, or by any other overt act, being convicted thereof on the oaths of two witnesses upon trial, or otherwise, by due course of law, such person shall be adjudged a traitor, and suffer death as in cases of high treason.[CHITTY.]*

Treason against the United States consists in levying war against them, or in adhering to their enemies, giving them aid and comfort. No conviction can take place unless on the testimony of two witnesses to the same overt act, or on confession in open court. By the Constitution of the United States, the power to declare the punishment of treason was conferred upon Congress, and the punishment they have ordained is death; but an attainder of treason does not work corruption of blood or forfeiture except during the life of the convict.—(Const. U. S., art. 2, § 3.) In New York, treason is defined by statute to be, 1. Levying war against the state, within the state; 2. A combination by two or more persons by force to usurp the government of the state, or to overturn the same, evidenced by a forcible attempt made within the state to accomplish the purpose; and, 3. Adhering to the enemies of the state, while the state is separately engaged in war with a foreign enemy, giving to such enemies aid and comfort.-(2 R. S., 656, § 2.) It is only in one of those methods that the crime of treason can be committed against the State of New York.

In the indictment for treason one or more overt acts must be alleged; and without such allegation, evidence of an overt act can not be given. The accused can not be convicted but by the testimony of two witnesses to the same overt act, or by the proof of two overt acts, each witness proving one act.-(2 R. S., 735, § 15, 16.)

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 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 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 [ 78 ] command any opposition to a king de jure, but excuses the obedience paid to a king de facto. When, therefore, a usurper is in possession, the subject is excused and justified in obeying and giving him assistance; otherwise, under a 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 prima 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 favor, 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.

compassing

Let us next see what is a compassing or imagining the death What a of the king, &c. These are synonymous terms; the word or imagining compass signifying the purpose or design of the mind or will,p death.

n 1 Hal., P. C., 104. • Vol. i., page 212.

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

strated by some evident fact, was equal-
ly penal as homicide itself. (3 Inst., 5.)
[CHRISTIAN.]

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 [79] a hart, the arrow glanced against a tree, and killed the king upon the spot. But as this compassing or imagination is an act of the mind, it can not possibly fall under any judicial cognizance, unless it be demonstrated by some open or overt act.' And yet the tyrant Dionysius is recordeds to have executed a subject barely for dreaming that he had killed him, which was held for a 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 next three 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 toward it by assembling company, is an overt act of compassing the king's death;u for all force, used to the person of the king, in its 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 obser- ' vation 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.w*

оптенчик

4 1 Hal., P. C., 107.

r 3 Inst., 6.

• Plutarch. in Vit.
t 3 Inst., 12.

(3) In the case of the regicides, the indictment charged that they did traitorously compass and imagine the death of the king. And the taking off his head was laid, among others, as an overt act of compassing. And the person who was supposed to have given the stroke was convicted on the same indictment. For the compassing is considered as the treason, the overt acts as the means made use of to effectuate the intentions of the heart. And in every indictment for this species of treason, and, indeed, for levying war, or adhering to the king's enemies, an overt act must be alleged and proved. For the overt act is the charge, to which the prisoner must apply his de

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words are

How far mere words spoken by an individual, and not rela- How far tive to any treasonable act or design then in agitation, shall treasonable. 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 Lon- [80] don, 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 favorite 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 misdemeanor, 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 al ways 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,

* 1 Hal., P. C., 115.

tained the rule voluntas pro facto. The "The care the law hath taken for the
principle upon which this is founded is personal safety of the king is not con-
too obvious to need much enlargement. fined to actions or attempts of the more
The king is considered as the head of flagitious kind, to assassination or poison,
the body politic, and the members of or other attempts directly and immedi
that body are considered as united and ately aiming at his life. It is extended
kept together by a political union with to every thing willfully and deliberately
him and with each other. His life can done or attempted, whereby his life may
not, in the ordinary course of things, be be endangered. And, therefore, the en-
taken away by treasonable practices tering into measures for deposing or im-
without involving a whole nation in prisoning him, or to get his person into
blood and confusion; consequently, ev- the power of the conspirators, these of-
ery stroke leveled at his person is, in fenses are overt acts of treason within
the ordinary course of things, leveled this branch of the statute. For experi-
at the public tranquillity. The law, ence has shown that between the pris-
therefore, tendereth the safety of the ons and the graves of princes the dis-
king with an anxious concern; and, if I tance is very small." Fost., 194.
may use the expression, with a concern This was the species of treason with
bordering upon jealousy. It considereth which the state prisoners were charged
the wicked imaginations of the heart, in who were tried in 1794. And the ques-
the same degree of guilt as if carried tion, as stated by the court for the jury
into actual execution, from the moment to try, was, whether their measures had
measures appear to have been taken to been entered into with an intent to sub-
render them effectual. And, therefore, vert the monarchy and to depose the
if conspirators meet and consult how to king. See Hardy's trial.-[CHRISTIAN.]
kill the king, though they do not then
fall upon any scheme for that purpose, (5) There was even a refinement and
this is an overt act of compassing his degree of subtlety in the cruelty of that
death; and so are all means made use case, for he wished it, horns and all, in
of, be it advice, persuasion, or command, the belly of him who counseled the
to incite or encourage others to commit king to kill it; and as the king killed it
the fact, or join in the attempt; and ev- of his own accord, or was his own coun
ery person who but assenteth to any selor, it was held to be a treasonable
overtures for that purpose will be in- wish against the king himself. 1 Hal.,
volved in the same guilt.
P. C., 115.-[CHRISTIAN.]

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 case of one Peachum, a clergyman, for treasonable passages in a sermon never preached ; and of Algernon Sidney, for some papers found in his closet, which, had they been plainly relative to any previously formed design of dethroning or murdering the king, might doubtless have been properly [81] read in evidence as overt acts of that treason which was specially laid in the indictment. 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 Sidney, indeed, was executed, yet it was to the general discontent of the nation, and his attainder was afterward reversed by Parliament. There was 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. Violating king's companion, or eldest daughter

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 unmarried, companion is meant his wife, and by violation is understood

or wife of heir

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

y Cro. Car., 125.
Ibid.
a Foster, 198.

(6) This subject is fully and ably discussed by Mr. J. Foster, who maintains that words alone can not 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

b 1 Hal., P. C., 118; 1 Hawk., P. C.,

38.

of such consultation, meeting, or act; and he concludes that "loose words, not relative to facts, are at the worst no more than bare indications of the malignity of the heart." Fost., 202, et seq.[CHRISTIAN.]

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