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 favour, 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 (n). 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 (o), 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. imagining are terms, and must Let us next see, what is a compassing or imagining the Compassing and death of the king, &c. These are synonymous terms; the synonymous word compass signifying the purpose or design of the mind be expressed by or will (p), and not, as in common speech, the carrying such an overt act. design to effect (g). 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 a hart, the arrow glanced against a tree, and killed the king upon the spot (r). But, as this compassing or imagining is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open, or overt, act (4) (5). And yet the (n) 1 Hal, P. C. 104. (0) Vol. I. page 212. (p) By the ancient law compassing or intending the death of any man, demonstrated by some evident fact, was equally penal as homicide itself; (3 (g) 1 Hal. P. C. 107. [*79 ] (4) 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 per- For the compassing is considered as tyrant Dionysius is recorded (s) to have executed a subject, barely for dreaming that he had killed him; which was held for 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 three next 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 (t). To conspire to imprison the king by force, and move towards 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 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) (s) Plutarch. in vit. (t) 3 Inst. 12. (u) 1 Hal. P. C. 109. (w) 1 Hawk. P. C. 38; 1 Hal. P. C. 119. the treason, the overt acts as the means made use of to effectuate the intention 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 defence. But it is not necessary, that the whole of the evidence intended to be given should be set forth; the common law never required this exactness, nor doth the statute of king William require it. It is sufficient, that the charge be reduced to a reasonable certainty, so that the defendant may be apprized of the nature of it, and prepared to give an answer to it; Fost. 194.-CH. (5) To sustain an indictment for high treason, it seems absolutely necessary that an overt act should be alleged and proved, and by the oath of two witnesses; 7 W. III. c. 3. (6) This subject is so ably explained by Mr. Justice Foster in his first discourse on high treason, that I think 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 Mere words do treason, whe written;-whe cation of written quære. How far mere words, spoken by an individual, and not re- not amount to lative to any treasonable act or design then in agitation, shall an overt act of amount to treason, has been formerly matter of doubt. We ther spoken or have two instances in the reign of Edward the fourth, *of ther the publi persons executed for treasonable words: the one a citizen of words does, London, 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 (7). These were esteemed hard cases: and the Chief Justice Markham rather chose to leave his place than assent [*80 ] 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 shewn 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 -CH. (7) 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 treasonable wish against the king himself. 1 Hal. P. C. 115.-CH. [*81 ] to the latter judgment (x). But it now seems clearly to be agreed, that, by the common law and the statute of Edward III. words spoken amount only to a high misdemesnor, 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 always on their connexion 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 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) (8)." 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 (z); 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 in evidence as overt *acts of that treason, which was specially laid in the indictment (a). 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 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 (b); though of late even that has been questioned (9). king's compa daughter, or the son. Force is not necessary. Mutual consent son by both par of this law is to succession to 2. The second species of treason is, "if a man do violate 2: Violating the the king's companion, or the king's eldest daughter unmar- nion, his eldest ried, or the wife of the king's eldest son and heir." By the wife of his eldest king's companion is meant his wife; and by violation is understood carnal knowledge, as well without force, as with it: constitutes treaand this is high treason in both parties, if both be consent- ties. The object ing; as some of the wives of Henry the eighth by fatal ex- secure the true perience evinced. The plain intention of this law is to the crown. 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) (10): 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). (b) 1 Hal. P. C. 118. 1 Hawk P. C. 38. (c) 3 Inst. 9. (d) Feud. 1. 1, t, 5. (9) It appears that letters found in the possession of a person indicted for high treason, where they are proved to be in the prisoner's handwriting, may be read as evidence to substantiate an overt act of rebellion. 6 St. Tr. 63; Hawk. b. 2, c. 46, § 55; 1 Chit. C. L. 584. Intercepted letters to communicate treasonable intelligence to an enemy, may be read in evidence as overt acts of the treason respectively charged upon them. 6 St. Tr. 279; 4 Burn, 650; Hawk. b. 2. c. 46, § 56. (10) But the instances specified in the statute do not prove much con sistency in the application of this rea- Before the 25 Edw. III. it was held |