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ing 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 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 such treasonable purposes effectual, as assembling and consulting on the means to kill the king, is a sufficient overt act of high treason.(w)*
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 words: the one a citizen of London,
[*80 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 misdemeanour, 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 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 indeed be unreasonable to make them amount to high treason. And accordingly, in 4 Car. I., on a refer
() 1 Hal. P. C. 109.
(*) 1 Hal. P. C. 115.
* This subject is so ably explained by Mr. Justice Foster in his first discourse on high treason that it may be useful to annex here two of his sections :-"In the case of the king the statute of treasons hath, with great propriety, retained the rule voluntas pro facto. The principle upon which this is founded is too obvious to need much enlargement. The king is considered as the head of the body-politic, and the members of that body are considered as united and kept together by a political union with him and with each other. His life cannot, in the ordinary course of things, be taken away by treasonable practices without involving a whole nation in blood and confusion; consequently every stroke levelled at his person is, in the ordinary course of things, levelled at the public tranquillity. The law, therefore, tendereth the safety of the king with an anxious concern, and, if I may use the expression, with a concern bordering upon jealousy. It considereth the wicked imaginations of the heart in the same degree of guilt as if carried into actual execution from the moment measures appear to have been taken to render them effectual; and therefore, if conspirators meet and consult how to kill the king. though they do not then fall upon any scheme for that purpose, this is an overt act of compassing his death: and so are all means made use of, be it advice, persuasion, or command, to incite or encourage others to commit the fact or join in the attempt; and every person who but assenteth to any overtures for that purpose will be involved in the same guilt.
“The care the law hath taken for the personal safety of the king is not confined to actions or attempts of the more flagitious kind, to assassination or poison, or other attempts directly and immediately aiming at his life. It is extended to every thing wilfully and deliberately done or attempted whereby his life may be endangered; and therefore the entering into measures 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 shown 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.—Chitty.
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 tres sonab'e wish against the king himself. 1 Hal. P. C. 115.-CHRISTIAN.
ence 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,(2) 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 *81]
in evidence as overt *acts of that treason which was specially laid in the
indictment.(a) But being merely speculative, without any intention (s0 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 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;6) 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 vassal 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 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 counsellors, or other grievances, whether real or pretended. (f)' For the *82]
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
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 ef the intent 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.
6 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 Edw. 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.—ChristiaN.
? 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. Doug. 570.Coristian.
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 arowed design to pull down all enclosures, 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 enclosure, amounts at most to a riot, this being no general defiance of public government. So, if two subjects quarrel, and levy war against each other, (in that spirit of private war which prevailed all over Europeh) 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 Gloster, in 20 Edw. I., who raised cach 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 misdemeanour.(:) A bare conspiracy to levy war does not amount to this species of treason; 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
[*83 understood the subjects of foreign powers with 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, (in) 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 fellowsubjects in actual rebellion at home) amount to high treason under the description of levying war against the king (n) 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 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)
8 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 themselyes, 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 inter cepted, containing advice not to invade this country, if sent with the intention of assisting their councils in their conduct and in the prosecution of the war, was high treason. 6T. R. 527.-CHRISTIAN.
* " Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be con5. “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
victed of treason unless on the testimony of two witnesses to the same overt act or on confession in open court.” Const. U. S. art. iii. s. 3, pl. 1.
If any person or persons owing allegiance to the United States of America shall lery war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be convicted on confession in open court, or on the testimony of two witnesses to the same overt act of treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death. Act April 20, 1700, s. 1, 1 Story's Laws, 83.
However flagitious may be the crime of conspiring to subvert by force the government of the country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. If war be actually levied,—that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, -all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war.
E.c parte Bollman, 4 Cranch, 126. United States vs. Burr, ibid. 469. People vs. Lynch, 1 Johns. 553.
Levying war is direct where the war is levied directly against the government with intent to overthrow it; constructive, where it is levied for the purpose of producing changes of a public and general nature by an armed force. Foster, 211. If a body of men conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States by force, they are only guilty of a high misdemeanour; but if they proceed to carry such an intention into execution by force, they are then guilty of treason by levying war. United States vs. Mitchell, 2 Dall. 348. To march in arms with a force marshalled and arrayed, committing acts of violence and devastation, in order to compel the resignation of a public officer and thereby render ineffective an act of Congress, is high treason, (Ibid. United States vs. Vigols, 2 Dall. 246 ;) but an insurrection to accomplish some private or particular purpose, as to deliver one or more particular persons out of prison, to compel à particular officer to resign, to resist or evade the revenue-laws by smuggling goods, is not treason. United States vs. Hanway, 2 Wall. Jr. 144.
The same principle is to be applied in construing the phrase adhering to the enemies of the United States as is adopted in the interpretation of the phrase levying war. Both were taken from the same English statute; and the rule laid down by Marshall, C. J., in Burr's case, that the common-law definitions were to be considered as authoritative, bears equally on either. Under the English statute, every assistance yielded by a citizen to the enemies of the government under which he lives, unless given from a well-grounded apprehension of immediate death in case of a refusal, is high treason within this branch of the statute. Therefore if citizens of the United States join public enemies in acts of hostility against this country, or even against its allies, or deliver up its castles, forts, or ships of war to its enemies through treachery or in combination with them, or join the enemy's forces, although no acts of hostility be committed by them, or raise troops for the enemy, or supply them with money, arms, or intelligence, although such money, intelligence, &c. be intercepted and never reach them, and delivering up prisoners and deserters to the enemy, are cases of adhering to the enemies of the United States, giving them aid and comfort. Wharton's Amer. Crim. Law, 886. United States vs. Hodges, 2 Dall. 87. Resp. vs. McCarty, ibid. 87.
Where an indictment for treason in adhering to the enemy charged the defendant with going from the British squadron to the State of Delaware, with intent to procure provisions for the squadron, it was held that this did not amount to treason, as this conduct rested in intention, which is not punishable by our laws. It would be otherwise if a person had carried provisions towards the enemy, with intent to supply him, though that intention should be defeated. If the intention of the defendant had been to procure provisions for the enemy, by uniting with him in hostilities against the citizens of the United States, his progressing towards the shore would have been an overt act of adhering to the enemy, though no other act was committed. The United States vs. Pryor, 3 Wash. C. C. Rep. 234.
But when the supreme authority is not able to afford the citizen protection, he may enter into an agreement of neutrality with a public enemy. Miller vs. Resolution, 2 Dall
. 10. In civil wars every man chooses his party; but generally that side which prevails arrogates the right of treating those who are vanquished as rebels. The voice of the majority must be conclusive as to the adoption of a new system; but all the writers agree 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 knavisb artifice of a lawyer much exceeded this of the divine. One of the clerks in chancery glued 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 patent, on the blank skin wrote a fresh patent of a different
[*84 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 counterfeit 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 merchandise and make payment withal.” As to the first branch, counterfeiting the king's money; this is treason, 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 treason. But gold and silver money only are held to be within the statute.(r) With regard likewise 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 (8) 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 assize, and all other justices assigned 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 exchequer, as such, are not within the protection of this act :(t) 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. and M. c. 21.11 (0)3 Inst. 16. (") 1 Hawk. P. C. 42.
() Ibid. 43.
( 1 Hal. P. C. 231. that the minority have, individually, an unrestrainable right to remove with their pro perty into another country; that a reasonable time for that purpose ought to be allowed; and, in short, that none are subjects of the adopted government who have not freely assented to it. Resp. vs. Chapman, 1 Dall. 58. See McIlvain vs. Coxe's Lessee, 2 Cranch. 279. 4 ibid. 209. Inglis vs. The Trustees of the Sailor's nug Harbour, 3 Peters, 99.SuaRSWOOD.
10 The moneys 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, 8. 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 incomplete, 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. 233 ;) 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 construction has been in general lenient, according to the maxim expressum facit cessare tacitum. 1 East, P. C. 96. A party who agrees before the fact to receive and vend counterfeit coin is a principal traitor. Hale, 214. CHITTY. * By the statute 7 Anne, c. 21, it is ade high treason to slay any of the lords of ses. VOL. II.-25