and every society, the members whereof shall take, subscribe, or assent to any test or declaration not required by law, or not authorized in manner hereinafter mentioned; and every society, the names of the members of which, or any of them, shall be kept secret from the society at large, or which shall have any committee or select body so chosen or appointed, that the members constituting the same shall not be known by the society at large to be members of such committee or select body, or which shall have any president, secretary, treasurer, or other officer so chosen or appointed, that the election or appointment shall not be known to the society at large, or of which the names of all the members and of all presidents, treasurers, secretaries, or other office-bearers, shall not be entered in a book kept for that purpose, and open to the inspection of all the members; and every society which shall be composed of different divisions or branches, or of different parts, acting in any manner separate or distinct from each other, or of which any part shall have any separate or distinct president, treasurer, secretary, or other officer, elected or appointed by or for such part, or to act as an officer for any such part, shall be deemed and taken to be unlawful combinations and confederacies.” These enactments are so extremely broad that they strike at all societies having branches or corresponding divisions; and, therefore, by 59th Geo. III. c. 19. § 27, it is declared that this enactment is not to extend to the meetings of Quakers, or to any meeting or society for purposes of a religious or charitable nature only, and in which no other matter shall be discussed.

It is farther enacted, 'That every person who shall, directly or indirectly, maintain correspondence or intercourse with any such society, or with any division, branch, committee, or other select body, president, &c., or other officer or member thereof as such, or who shall, by contribution of money or otherwise, aid, abet, or support such society, or any members or officers thereof, shall be deemed guilty of an unlawful combination and confederacy. The act is declared not to extend to declarations approved by two Justices of the Peace, and registered with the Clerk of the Peace, nor to Lodges of Freemasons existing at the passing of the act, "provided that there be a certificate of two of the members, upon oath, that such society or

1 39th Geo. III. c. 79, § 2.

1

lodge had been usually held under such denomination, and in conformity to the rules of such societies, the certificate, duly attested, being, within two months after the passing of the act, deposited with the Clerk of the Peace, with whom also the name and denomination of the society or lodge, and the usual time and place of meeting, and the names and descriptions of the members, are to be registered yearly." The Clerk of the Peace is required to enrol such certificate, and regularly to lay the same once every year before the general session of the Justices; and the Justices may, on complaint upon oath that the continuance of the meetings of any such lodge or society is likely to be injurious to the public peace and good order, direct them to be discontinued; and any such meeting held notwithstanding such order and discontinuance, and before the same shall by the like authority be revoked, shall be deemed an unlawful combination and confederacy under the act.2 Proceedings may be instituted either before the Justices, or by indictment before the Justiciary or Circuit Courts. The offenders are liable to be convicted by the oath of one or more credible witnesses, and a fine of £20, or imprisonment for three months, may be awarded; and, if the proceeding is by indictment, the offender may be imprisoned two months, or transported seven years. In the case of the Procurator-fiscal of Wigtonshire v. the Mason Lodge of Newton-Stewart, June 2. 1825, the Court were clear that this act struck at an Orange Lodge established in that place, although, in consequence of an informality in the original application before the Justices, they dismissed the complaint.1

3

Some farther enactments regarding societies taking unlawful oaths, or electing committees or delegates, are contained in 57th Geo. III. c. 25, which imposes the same penalties as are contained in the 39th Geo. III. c. 79. This act also extends to Scotland. And, by 60th Geo. III., and 1st Geo. IV. c. 1, meetings for the purpose of military exercise, without legal authority, are prohibited; and persons attending such meetings for the purpose of training others, or aiding therein, are liable to be transported seven years, or imprisoned two years. Prosecutions must be commenced within six months, and the persons so assembled may be dispersed, detained, and held to bail.

5

1 39th Geo. III. c. 79, § 3.--2 Ibid. § 7.—3 Ibid. § 8.—1 Unreported.— 57th Geo. III. c. 57, § 37.—6 Ibid. § 2, 7.

CHAPTER XXXIII.

OF HIGH TREASON.

THE old law of Scotland regarding high treason, now abolished by the Articles of Union, was more complicated and extensive in its application, and in many respects more severe in its tendency, than that of England, which is now substituted in its stead. All commentary, however, on its provisions is now rendered superfluous by the express declaration of the Treaty of Union, and the statute of Anne.1 The first of these declares, "That the laws which concern public right, policy and civil government, may be made the same throughout the United Kingdom." And, in pursuance of this, it is provided by the 7th Anne, c. 21, "That such crimes and offences as are high treason, or misprision of high treason, within England, shall be construed, adjudged, and taken to be high treason and misprision of high treason within Scotland; and that from henceforth no crimes or offences shall be high treason or misprision of high treason within Scotland, but those that are high treason and misprision of high treason in England." In considering the doctrine of treason, therefore, the English law is now exclusively the object of consideration, with those cases upon it which have subsequently arisen in this country.

1. It is high treason "where a man doth compass the death of our lord the king, or of our lady the queen, or of their eldest son and heir."2

The great basis of the English treason law is the well known statute 25th Edward III. c. 2, passed for the great purpose of settling the nature and limit of this offence, and correcting the

1 Art. 18th Union.-2 25th Edward III. c. 2.

undue latitude which had arisen in extending it in the courts of the common law.1

Under the words "compassing or imagining the death of the king, queen, or heir-apparent," it is held, 'that not merely the actual perpetrating, but the conceiving or designing the death of these persons, provided it be evinced by sufficient and {unequivocal actions. "The law," says Foster, "tendereth the safety of the king with an anxious, and, if I may use the expression, 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 that measures appear to have been taken to render them effectual.2

But it is justly settled in their law, that this hidden design, to come within the treason law, must be manifested by overt acts, which must be made out by proper evidence. No stronger proof of this can be given than that which occurred in the case of the regicides who were tried for the death of Charles I. At a meeting of the Judges preparatory to this trial, it was agreed, "that the actual murder of the king should be precisely laid in the indictments, with the special circumstances as it was done, and should be made use of as one of the overt acts to

prove the compassing of his death.” These overt acts are regarded not only as the evidence, and the only admissible evidence, of the intent, but also as the means devised to carry it into execution.4

To remove all doubts as to the degree of violence which shall be held necessary to establish a purpose against the life of the king, it is declared by 36th Geo. III. c. 7, made perpetual by 57th Geo. III. c. 6, a statute first passed on occasion of an outrage offered on the king's person, "that it is treason to compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint, of the body of our sovereign lord the king."

It is settled, that any overt acts tending directly to the king's death, as lying in wait in order to attempt it; providing arms or preparing poison in order to effect it; sending letters tending to induce its perpetration; assembling and consulting as to the means of carrying it into execution, though no specific place

1 Hale, i. 80; Hawkins, i. c. 17, No. 1.-2 Foster, 193, 195; Blackstone, iv. c. 6.3 State Trials, ii. 303.-4 Foster, 203, 204.

be adopted for that purpose; even the mere presence at the consultation, though without taking any active part in the deliberation, if by a person who knew previously of the intention, and took no subsequent measures to divulge it to the proper authorities; offering money or any other consideration to any one to kill the king, though the money be not taken, or the consideration be declined; or in any other way instigating or encouraging any one to a course of action tending plainly to take away the life of the king, queen, or heir-apparent, are clear overt acts of treason.'

Farther, it is equally settled, that all acts and measures which in their consequences naturally tend to endanger the king's life, and cannot be carried into effect without manifest peril to it, fall under the same rule. On this principle, it is held an overt act under the statute to march with an array, however small, against the king; to fortify a house or castle to resist his forces; to enlist men to depose him; or by bond of association, gathering of company, writing of letters, or otherwise to take measures to imprison him, or forcibly gain possession of his person; experience having shewn, as Foster observes, that between the prisons and the graves of princes the distance is but small. The same rule is held to apply to the mere conspiracy or consultation to levy war, or the holding of deliberations and the taking of measures towards insurrection, if the object be such as law construes to be against the person or government of the king, as to compel him to alter his measures, or dismiss his ministers or counsellors, or submit to general measures for the reformation of the state, or in general to constrain him in any acts in which he has a right to exercise his own discretion by the prerogative of the crown:5 for such purposes, it is evident, cannot be enforced by numbers and open force, without manifest danger to his person; and it is held a kind of natural and necessary consequence, that he that attempts to conquer and subdue the king cannot intend less than to take away his life.

6

These principles have been applied in a great variety of cases, both in England and Scotland. Thus, in the case of Christo

1 Blackstone, iv. 79; Foster, 195; Hale. i. 109, 119, 122; Hawkins, i. 38.— 2 Hume, i. 514.—3 Hale, i. 142, 138, 139.4 Hawkins, i. 38; Foster, 195; Hale, i. 109, 110.- Foster, 211; Hale, i. 148, 122, 123; Hawkins, i. 35; State Trials, i. 209.6 Hale, i. 148.