Offences more immediately against THE KING are either capital or not capital. The capital offences of this nature are either HIGH TREASON or FELONIES. mon law. But also before the passing of that act many other matters had been ruled to be treasons, which had not been before well defined. Amongst these was "accroaching royal power," which was an offence evidently so ill-defined, that whatever the ruling power of the day chose to consider an accroachment of royal power, might bring a man within the guilt and penalties of treason. But the compassing the death of the King or his heir-the violating his wife, or his heir's wife-the forgery of his seal-seem always to have been considered such acts of treachery, that, by the feudal constitutions, if a tenant had offended against his lord in these respects, it was a forfeiture of his feud, being a treacherous breach of that fealty which the tenant owed his lord in return for the protection which the lord, by the same feudal constitu tions, was bound to afford his tenant. So with respect to the king and his subjects—the same acts were an aggravated degree of treachery and breach of that allegiance which the latter owed to the former. Hale in his History, b. i. c. 12. gives several cases which had been ruled to be treasons before the passing of the statute, and particularly the one which probably produced the petition of the Commons upon which the statute was founded. The record of the case is, Trinity, 21 Ed. 3. Rot. 23. John Gerbage, Knight, was indicted "quod ipse “simul cum aliis in campo villa de Royston in altá " regiâ strati," rode armed with his sword drawn in his hand, " modo guerino," and assaulted and took William de Bottisford, and detained him till he paid £90. for his ransom, and " Usurpando sibi infra regnum regis Regiam potestatem ipso domino "Rege in partibus exteris existente contra sui ligean"tiam et regis et coronæ suæ prejudicium et seditionem "manifestam." He prayed his clergy, but was ousted of it, because "privilegium cleriale in hujus“modi casu seditionis, secundum legem et consuetu"dinem, regni hactenus obtentas et usitatas, non est allo"candum." But he, refusing to plead upon the denial of clergy, was not convicted as in case of treason, but was put to penance, "ad penitentiam suam.' Two of his companions being convicted by verdict, had judgment," quod distrahantur et suspendantur." This judgment it seemed troubled the Commons in parliament, who thought that the accroaching of royal power was somewhat too general a charge of treason before the ordinary courts of justice, though it had been used in charges of treason in parliament, and, therefore, in the parliament following, held Crastino Hilarii, 21 Ed. 3. n. 15. there is a petition in parliament in these words—" Item, prie "les Commen que come ascuns des justices on place de"vant eux ou de novel ont adjudges pur treason, ac"croachment de royal poer, pry le dit Commen que le I point soit desclare en ceo parlement, en quele case ils "accrochent royal poer, par quei les seigneurs perdent "lour profit de la forfeiture de lour tenents et les ar"reynes benefice de Saint Eglise." It is remarkable in this petition, that the Commons seem sensibly And alive to the loss of the profits of the forfeiture of their tenants by thus enlarging treasons; as in the case of a conviction for treason the crown took the forfeited estate and not the lord, as in cases of felony. And, perhaps, it might be more this feeling of self-interest that made them anxious to restrain the law of treason within proper limits, than any enlarged views of political security against the incroachment of power upon private and personal freedom. However, it appears that the statute itself points at a case such as the one above cited, for after enacting what shall thereafter be considered treason, it goes on to add, "And if, par case, any man of this realm ride armed, covertly or 'secretly, with men of arms against any other to Islay him or rob him, or take him, or retain him "until he hath made fine or ransom to have his "deliverance, it is not the mind of the King or his "council, that in such case it shall be judged trea " son, but shall be judged felony or trespass, ac"cording to the laws of the land of old times used, "and according as the case requireth." But to whatever motives in the Commons the petition may be ascribed, it has produced a statute which is and ought to be revered by the English people, as most clearly defining what shall and what shall not be considered high treason. The enactments are distinct and intelligible, and Sir M. Hale observes, upon a review of them and former eases,-1. How necessary it was that there should be some fixed and settled boundary for this great crime of treason; and of what great importance the statute of Ed. 3. was for that end. 2. How dangerous it is to depart from the letter of that statute, and to multiply and enhance crimes into treason by ambiguous and general words, as "accroaching royal power," ," "subverting of fundamental laws,” and the like. S. How dangerous it is, by construction and analogy, to make treasons where the letter of the law has not done it. For such a method admits of no limits or bounds, but runs as far as the wit and invention of accusers and the odiousness and detestation of persons accused will carry men.' This doctrine is worthy of the great and good man who delivered it, but that it has been observed by all succeeding judges cannot be said with truth. For it may be justly doubted whether some of the constructions subsequently put upon the statute are fairly warranted by its text. Thus it has been ruled and is now settled, that any attempt to restrain the royal person, or to conspire to levy war against him, are overt acts of compassing his death. Does it not look like making a constructive treason where the letter of the law has not done it? So again, the constructive levying of war. And although the statute requires every treason to be manifested by "open deed, and the parties provably attainted "by persons of their own condition," yet we see that there has been a strong inclination at some periods to make mere words an" open deed," or, in other words, to create constructive overt acts of constructive * Sce Mirror, c. 1. s. 7. And FIRST, of HIGH TREASON. 30 Ass. 19. Sect 1. Before the 25 Edw. 3. c. 2. there was great diversity of opinions concerning high treason; and many offences were 3 Inst. 7. taken to be included in it, besides those expressed in the said B. Trea. 14. statute; as the killing of the king's father, brother, or even his 22 Ass. 49. messenger; producing the pope's bull of excommunication, and Staunf. 2. pleading it in disability; refusing to accuse a man in the king's Prin. P. L. 126 courts, and summoning him to appear, and defend himself before to 150. a foreign prince; and other such like acts tending to diminish 87. the royal dignity of the crown. 1 Hale, 76 to Plow. 86. 3 Inst. 12. 21. 18 Elia. c. 1 Sect. 2. But all TREASONS were settled by the statute of 25 Edw. 3. c. 2. which, by 1 Mary, sess. 1. c. 1. was reinforced, and again made the only standard of treason. All statutes, therefore, between the statute of 25 Edw. 3. and the statute 1 Mary, sess. 1. c. 1. which made any offence high treason or petit treason, or misprision of treason, are abrogated; so that no offence is, at this day, to be esteemed high treason, unless it be either declared to be such by the above statute of King Edward the Third, or 36 Geo. 3. c. 7. made such by some statute since the first of Queen Mary. I shall therefore consider, FIRST, such offences as are high treason within the said statute of 25 Edw. 3. or other statutes grounded thereon, and explaining the same.-SECONDLY, such as are made high treason by subsequent statutes. 57 Geo. 3. c. 6. By the statute of Edward the Third there are four kinds of 1 Hale, 87. HIGH TREASON; 1. That which immediately concerns the king, his wife, or children. 2. That which concerns his office in the administration of justice. 3. That which concerns his seal. 4. That which concerns his coin. Sum. 17. constructive treasons. Such, at some periods of our history, has been the servility of judges to royal authority. Indeed we need go no farther than the next reign of Richard II. after passing the statute, to see how far a bench could disgrace itself. After a commission had been extorted from that weak prince, by parliament, by which certain nobles were empowered to administer public affairs and to redress grievances arising from his mal-administration, unwilling to submit to the restraints imposed upon him, in the 11th year of his reign he called together divers of his judges, the two chief justices, and some other men of the law, and propounded to them certain questions, amongst others, "Qualem panum merentur, qui compulerunt sive arc"tarunt Regem, ad consentiendum confectioni dictorum "statuti, ordinationis et commissionis? Ad quam ques** tionem unanimiter responderunt, quod sunt ut prodi“tores merito puniendi. Item, qualiter sunt illi pu"niendi qui impediverunt regem, quo minus poterat And "exercere quæ ad regalia et prærogativam suam perti"nuerunt? Unanimiter etiam responderunt quod sunt "ut proditores etiam puniendi."-(State Trials, vol. i. p. 107. 110. N. Ed. p. 8. 13, 14. O. E.) But this doctrine was their own ruin; for Gloucester and the factious nobles being predominant, the judges were all themselves declared guilty of high treason for these opinions, and sentenced to be hanged, drawn, and quartered. Tresillian, the chief justice, was executed, the rest had their sentences mitigated into banishment to Ireland. The sentence against them was clearly illegal, but they had taught their opponents the way to let loose from the rigid rule of law. And when judges, who are the expositors of law, or, as they have been called, "Lex loquens," with a statute before them, whose enactments are so distinct as the statute of treasons, could so far forget their duty to their country as to give such opi nions as above stated, it is not matter of regret that the evil recoiled upon their own heads. 1 H. 4. c. 10. Kely. 20. 8 Co. 28. Dyer, 98. 298. 128.352. 19. 24. 27. 32. Co. Pla. 360. And these three last are called Interpretative Treasons. HIGH TREASON concerning the king, his wife, and children, is thus declared: Sect. 3. By the said statute of 25 Edw. 3. stat. 5. c. 2. "Whereas divers opinions have been before this time, in what 3 Inst. 1. 6. 113. " case treason shall be said, and in what not, the king, at the request of the lords and of the commons, hath made a declaration "in the manner as hereafter followeth; that is to say, when a B. Trea. 1, 2, 3. " man doth compass or imagine the death of our lord the king, 7.9. 11. 13. 16. «or of our lady the queen, or of their eldest son and heir; or 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; or if a man do levy war against our lord the king in his "realm, or be adherent to the king's enemies in his realm, giving "them aid and comfort in the realm or elsewhere, and therefore be provably attainted of open deed by the people of their condition." For the explication of which I shall consider, 3 Co. 2. 10. 4 Co. 57. 7 Co. 33. 13 Co. 54. Savil, 4. Keilw. 181. &c. Bac. Max. 56. (a) B. Trea. 32. 3 Inst. 5. 11. 100. 5 St. Tr. 23. 66 FIRST, The branch relating to the king and his relations. SECONDLY, That concerning the levying of war, and adhering to the king's enemies, &c. THIRDLY, That concerning an overt act. I. As to the branch relating to the king and his relations, I shall consider the following particulars: 1. Who may be guilty? 2. What is the import of the words, "compass or imagine the king's "death?" 3. Who is a king within the act? 4. What is the extent of the clause concerning the king's relations? Sect. 4. As to the FIRST POINT, viz. Who may be guilty? I shall take it for granted at this day, that all subjects of the age of discretion, and of sane memory, whether they be ecclesiastical or temporal, men or women, are included within those general words, "When a man doth compass, &c." Sect. 5. Also it seems clear, that the subjects of a foreign prince coming into England, and living under the protection of our king, may, in respect of that local ligeance which they owe to him, be guilty of high treason (a), and indicted (2), that they contra dominum regem (the words naturalem dominum suum being omitted) did compass, &c. contra ligeantia sua debitum (b). And it is said, that even an ambassador committing a treason against Dyer, 145. the king's life, may be condemned and executed here; and that for other treasons he shall be sent home. And it hath been holden, that there is no need of the words contra ligeantiæ suæ debitum in an indictment for a treason which is made such by statute, and is not a treason in its own nature; and that there is 6 St. Tr. 87. Hob. 271. Skin. 360. 425. Fos. 186, 187. (2) On the 12th June, 1707, a rule to the following effect was laid down by all the judges: "If "an alien, seeking protection in England, and "having a family and effects here, should, during no " a war with his native country, go thither, and "there adhere to the king's enemies for purposes of hostility, he may be dealt with as a traitor."Foster's C. L. 185. " no necessity for the words contra ligeum supremum dominum 3 Lev. 396. suum in any indictment of treason. 4 Mod. 162. 395. 7 Co. 6. 12 Mod. 51. 95. 1 Hale, 59. Con. Dalis. 32. Sect. 6. But it seemeth that aliens, who in a hostile manner B. Trea. 1. 32. invade the kingdom, whether their king were at war or peace 3 Inst. 11. with ours, and whether they come by themselves or in company 7 Co. Rep. 6. with English traitors, cannot be punished as traitors, but shall be 5 Bac. Ab. 112. dealt with by martial law. Sect. 7. It hath been resolved (c), That one born a natural subject is bound to such an inseparable allegiance to our king, that howsoever he may endeavour to renounce it, and transfer his subjection from his natural to a foreign prince, yet if he practise what in any other subject would amount to high treason, he shall suffer as a traitor. Sect. 8. As to THE SECOND POINT, viz. the import of the words "compass or imagine the king's death;" since the said statute these words have been so strictly followed, that where a king has been actually murdered, yet not the killing him, but the compassing his death has in the indictment been laid as the treason, and the killing as an overt act thereof. away 5 St. Tr. 23. (c) Dr. Storey's case, Dy. 300. Co. Lit. 129. and see Macdonald's case, 1 Hale, 68, 96. Foster C. L. 59, Kely. 8. 1 119-167. Fost. 193. 196. Burr. 646. 1 St. Tr. 199. 206. Sect. 9. And such compassing the king's death may be mani- (a) Dyer, 298, fested not only by overt acts of a direct conspiracy to take his life, but also by such as shew such a design as cannot be executed without the apparent peril thereof; as by (a) writing letters to a foreign prince, inciting him to invade the realm; or assembling men together in order to (b) imprison or (c) depose the king, or to (d) compel him by force to yield to certain demands, or to levy war against his (e) person. 2 Vern. 315. 3 Inst. 14. 4 St. Tr. 406. Hale, 120. (b) 3 Inst. 6. 1 12.38. (e) Kely. 20, 21, 22. Qu. B. Trea. 24. (d) 11 Mod. 322. Moor, 621. (e) Kely. 14, 15. 17. 20, 21. 3 Inst. 6. 12. 38. Kely. 20, 21, 22. Yet this was made a query in B. Trea. 24. 11 Mod. 322. Moor, 621. Kely, 14, 15. 20, 21. Sect. 10. But it is possible that it may not be proved by an act 3 Inst. 6. which directly causes the king's death, as the glancing of an 1 Hale, 107.. arrow did that of William Rufus, proving fatal merely through an unfortunate accident, and being accompanied with no unlawful circumstance. 9 Ed. 4. 1. 1 Hale, 101. &c. Sect. 11. As to THE THIRD POINT, viz. Who is a king within 3 Inst: 7. this act? it seems agreed, that every king for the time being, in actual possession of the crown, is a king within the meaning of this statute. For there is a necessity that the realm should have Fost. 188. 400. a king, by whom and in whose name the laws shall be admini- 4 Comm. 77. stered; and the king in possession being the only person who either doth or can administer those laws, must be the only person who has a right to that obedience which is due to him who administers those laws; and since by virtue thereof he secures to us the safety of our lives, liberties, and properties, and all other advantages of government, he may justly claim returns of duty, allegiance, and subjection. Sect. 12. And this plainly appears even by the prevailing opi- 1 Hale, 61. 102. nions Stow. Ann. 418. 9 Ed. 4. 1. B. Treas. 10. 32. 3 Inst. 7. Dalt. 223. Fos. 398. 186. nions in the time of king Edward the Fourth, in whose reign the distinction between a king de jure and de facto seems first to have begun; and yet it was then laid down as a principle, and taken for granted in the arguments of Bagot's Case, that a treason against Henry the Sixth while he was king, in compassing his death, was punishable after Edward the Fourth came to the crown; from which it follows, that allegiance was allowed to have been due to Henry the Sixth while he was king, because every indictment of treason must lay the offence contra ligeantia debitum. 9 Ed. 4.1, 2. C. of Par. 22. 4 Inst. 43. 1 Bl. Com. 90. 4 Bl. Com. 78. Foster, 399. Cus. de Nor Sect. 13. It was also settled, That all judicial acts done by Henry the Sixth while he was king, and also all pardons of felony and charters of denization granted by him, were valid; but that a pardon made by Edward the Fourth before he was actually king, was void even after he came to the crown. 1. 9 Ed. 4. 1, 2. 11. 9 Ed. 4. 2. Sect. 14. And by the 11 Hen. 7. c. 1. it is declared, "That all subjects are bound by their allegiance to serve their prince and sovereign lord for the time being, in his wars, for the defence of him and his land against every rebellion, power, and might reared against him, &c. and that it is against all laws, reason and good conscience, that they should lose or forfeit any thing for so doing;" and it is enacted, "That from thenceforth no person or "persons that attend on the king for the time being, and do him "true and faithful allegiance in his wars, within the realm or "without, shall for the said deed and true duty of allegiance be "convict of any offence." Sect. 15. From hence it clearly follows, First, That every king for the time being has a right to the people's allegiance, because Fleta, b. 3. c.16. they are bound thereby to defend him in his wars against every power whatsoever. mand. 13. s. 22. 4 Comm. 77. Foster, 188. Foster, 402. Kely. 14. Kely. 14, 15. 1 Keb. 315. Foster, 403. 4 Comm. 77. 3 Inst. 7. Sect. 16. Secondly, That one out of possession is so far from having any right to our allegiance by virtue of 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. Sect. 17. It is true indeed, that after the restoration of king Charles the Second, it was resolved, that all those who acted against, and kept him out of possession, in obedience to the powers then in being, were traitors. Sect. 18. But it ought to be considered, that it was first resolved by the same judges, that king Charles the Second was king de facto as well as de jure from his father's death; and it is apparent, that no other person was in possession of any sovereign power known to our laws. Sect. 19. However, it is a general uncontested rule, that upon 1 Hale, 61. 102. the death of a king in actual possession of the crown, his heir is a king within the act before his coronation; for without a king Fos. 188, 189. to |