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acts of that treafon, which was specially laid in the indictment'. But, being merely fpeculative, without any intention (fo far as appeared) of making any public use of them, the convicting the authors of treafon upon fuch an infufficient foundation has been univerfally disapproved. Peacham was therefore pardoned: and, though Sidney indeed was executed, yet it was to the ge-. neral discontent of the nation; and his attainder was afterwards reversed by parliament. There was then no manner of doubt, but that the publication of such a treasonable writing was a fufficient overt act of treafon at the common law; though of late even that has been queftioned.

2. THE second species of treafon 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 fon and heir." By the king's companion is meant his wife; and by violation is understood carnal knowlege, as well without force, as with it: and this is high treason in both parties, if both be confenting; 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 fufpicion of bastardy, whereby the fucceffion to the crown might be rendered dubious: and therefore, when this reafon ceases, the law ceases with it; for to violate a queen or princess dowager is held to be no treason: 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; but not so if he only vitiated his widow.

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3. THE third fpecies of treafon is, "if a man do levy, war against 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 the laws, or to remove evil counfellors, or other grievances whether real or pretended. For the

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law does not, neither can it, permit any private man, or fet 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 cafes of national oppreffion the nation has very juftifiably risen as one man, to vindicate the original contract fubfifting between the king and his people. To refift the king's forces by defending a castle against them, is a levying of war: and fo is an infurrection with an avowed defign to pull down all inclosures, all brothels, and the like; the univerfality of the defign making it a rebellion against the state, an ufurpation of the powers of government, and an infolent invasion of the king's authority". But a tumult with a view to pull down a particular house, or lay open a particular enclosure, amounts at most to a riot; this being no general defiance of public government. So, if two fubjects quarrel and levy war against each other, it is only a great riot and contempt, and no treason. Thus it happened between the earls of Hereford and Glocefter in 20 Edw. I. who raised each a little army, and committed outrages upon each others lands, burning houses, attended with the lofs of many lives: yet this was held to be no high treason, but only a great misdemefnor. A bare conspiracy to levy war does not amount to this fpecies of treafon; but (if particularly pointed at the person of the king or his government) it falls within the first, of compaffing or imagining the king's death i.

4. "IF a man be adherent to the king's enemies in his "realm, giving to them aid and comfort in the realm, or else"where," he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence, by fending them provisions, by felling them arms, by treacherously surrendering a fortrefs, or the like. By enemies

1 Hal. P. C. 132. h Ibid. 136.

i 3 Inft. 9. Fofter. 211. 213.

3 Inst. 10.


are here understood the fubjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coafts, without any open hostilities between their nation and our own, and without any commiffion from any prince or state at enmity with the crown of Great Britain, the giving them any affiftance is also clearly treason either in the light of adhering to the public enemies of the king. and kingdom', or else in that of levying war against his majesty. And, most indisputably, the fame acts of adherence or aid, which (when applied to foreign enemies) will constitute treason under this branch of the ftatute, will (when afforded to our own fellow-subjects in actual rebellion at home) amount to high treafon under the description of levying war against the king". But to relieve a rebel, fled 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 fubject of fome foreign prince, and one who owes no allegiance to the crown of England". And if a perfon be under circumstances of actual force and constraint, through a well-grounded apprehenfion of injury to his life or perfon, this fear or compulfion will excuse his even joining with either rebels or enemfes in the kingdom, provided he leaves them whenever he hath a fafe opportunity°.

5. "IF a man counterfeit the king's great or privy seal," this is also high treason. But if a man takes wax bearing the impreffion of the great feal 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-refidence. 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 fkins. He then diffolved the cement; and

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taking off the written 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 feal, but only a great misprision; and fir Edward Coke' mentions it with some indignation, that the party was living at that day.


6. THE fixth fpecies of treafon under this ftatute, is "if a "man counterfeit the king's money; and if a man bring false 66 money into the realm counterfeit to the money of England, knowing the money to be falfe." As to the first branch, counterfeiting the king's money; this is treafon, whether the false money be uttered in payment or not. Also if the king's own minters alter the standard or alloy established by law, it is treafon. But gold and filver money only are held to be within this ftatute. With regard likewife to the second 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". But of this we shall presently say more.


7. THE laft fpecies of treafon, afcertained by this statute, is "if a man flay the chancellor, treasurer, or the king's justices "of the one bench or the other, juftices in eyre, or justices of “affize, and all other juftices affigned to hear and determine, being in their places doing their offices." These high magistrates, as they represent the king's majefty 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 to wounding, or a bare attempt to kill them. It extends alfo only to the officers therein specified; and therefore the barons of the exchequer, as fuch, are not within the protection of this act".

THUS careful was the legiflature, in the reign of Edward the third, to fpecify and reduce to a certainty the vague notions of

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treason, that had formerly prevailed in our courts. But the act does not stop here, but goes on. "Because other like cafes of "treafon may happen in time to come, which cannot be thought "of nor declared at present, it is accorded, that if any other "cafe supposed to be treason, which is not above specified, doth happen before any judge; the judge fhall tarry without going "to judgment of the treafon, till the caufe be fhewed and de"clared before the king and his parliament, whether it ought "to be judged treason, or other felony." Sir Matthew Hale is very high in his encomiums on the great wisdom and care of the parliament, in thus keeping judges within the proper bounds and limits of this act, by not fuffering them to run out (upon their own opinions) into constructive treasons, though in cases that seem to them to have a like parity of reafon; but referving them to the decifion of parliament. This is a great fecurity to the public, the judges, and even this facred act itself; and leaves a weighty memento to judges to be careful, and not overhasty in letting in treafons by conftruction or interpretation, especially in new cafes that have not been refolved and fettled. 2. He observes, that as the authoritative decifion of these cafus omiffi 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 of both houses, though of very respectable weight, is not that folemn declaration referred to by this act, as the only criterion for judging of future treasons.

IN confequence of this power, not indeed originally granted by the statute of Edward III, but conftitutionally 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 fecond: as, particularly, the killing of an embassador was made fo; which feems to be founded upon better reason than the multitude of other points, that were then strained up to this high offence: the moft arbitrary and abfurd of all

1 Hal. P. C. 259.


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