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[But, however, to prevent the inconveniences which began to arise in England from this multitude of constructive treasons, the statute 25 Edw. III. c. 2, was made, which defines what offences only, for the future, should be held to be treason; in like manner as the lex Julia majestatis among the Romans, promulged by Augustus Cæsar, comprehended all the antient laws that had before been enacted to punish transgressors against the State (g). We shall find that, under this statute of Edw. III., the crime of treason consists of five distinct branches (h).
1. When a man doth compass or imagine the death “ of our lord the king, of our lady his queen, or of their “ eldest son and heir.” Under this description it is held that a queen regnant is within the words of the Act, being invested with royal power, and as much entitled to the allegiance of her subjects as if she had been a king (i); but the husband of such a queen is not comprised within these words, and therefore no treason can be committed against him (k). The king here intended is the king in possession, without any respect to his title; for it is held that a king de facto, and not de jure,-or, in other words, an usurper that hath got possession of the throne, -is a king within the meaning of the statute; as there is a temporary allegiance due to him for his administration of the government and temporary protection of the public. And therefore treasons committed against Henry the sixth were punished under Edward the fourth, though all the
(9) Gravin. Orig. 1, s. 34. first of these, though the crime re
(1) Blackstone (vol. iv. p. 83) mained a treason under 11 Geo. 4 & notices two additional species of 1 Will. 4, c. 66, it is now, by 24 & treason under the statute of Edward 25 Vict. c. 98, reduced to an ordithe third, viz., 1, "counterfeiting the nary felony (vide sup. pp. 143, 144); “ king's great or privy seal;” and 2, and the second ranks now, merely as “ counterfeiting the king's money, the offence of coining; as to which, " and bringing false money into the vide post, p. 189. “ realm, counterfeit to the money of (i) 1 Hale, P. C. 101 ; see R. v. “ England, knowing the same to be Oxford, 9 Car. & P. 525. “ false, to merchandize and make (k) 3 Inst. 7; 1 Hale, P. C. 106. "payment withal.” But as to the
[line of Lancaster had been previously declared usurpers by act of parliament. But the most rightful heir of the crown, (or king de jure, and not de facto,) who hath never had plenary possession of the throne,-as was the case of the house of York, during the three reigns of the line of Lancaster,- is not a king, within this statute, against whom treasons may be committed (1). And a very sensible writer on the Crown law carries the point of possession so far, that he holds that a king out of possession, is so far from having any right to our allegiance by 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 (m): a doctrine which he grounds upon the statute 11 Hen. VII. c. 1; which is declaratory of the common law, and pronounces all subjects excused from any penalty or forfeiture, which do assist and obey a king de facto. But in truth this seems to be confounding all notions of right and wrong: and the consequence would be, that when Cromwell had murdered the elder Charles, and usurped the power, though not the name of king, the people were bound in duty to hinder the son's restoration; and that were any foreign prince to invade this kingdom, and by any means to get possession of the Crown—a term, by the way, of very loose and indistinct signification - the subject would be bound by his allegiance to fight for his natural prince to-day, and by the same duty of allegiance to fight against him to-morrow. The true distinction seems to be, that the statute of Henry the seventh does by no means command any opposition to a king de jure, but excuses the obedience paid to a king de facto. When therefore an usurper is in possession, the subject is excused and justified in obeying and giving him assistance; otherwise, under an usurpation, no man could be safe, if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for
(1) 3 Inst. 7; 1 Hale, P. C. 104.
(m) Hawk. P. C. b. 1, c. 17, s. 16.
[disobedience. Nay, further, as the mass of people are imperfect judges of title, (of which, in all cases, possession is primâ 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 M. Hale,) no longer the object of treason(n). And the same reason holds in case the 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, 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 (o).
Let us next see what is a compassing or imagining the death of the king, &c. These are synonymous terms; the word compass signifying the purpose or design of the mind or will (p); and not, as in common speech, the carrying such design into effect (9); 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
(n) i Hale, P. C. 104.
(P) By the antient law the compassing or intending the death of any man, if demonstrated by some
evident fact, was equally penal as
(9) 1 Hale, P. C. 107.
[open or overt act. And yet the tyrant Dionysius is recorded 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(s).
But such is not the temper of the English law; and therefore it is necessary that there shall appear an open or overt act of a more full and explicit nature, to convict the traitor upon (t). 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 (u).
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 (x). 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 treason (y).
How far mere words spoken by an individual, and not relative to any treasonable act or design then in agitation, shall amount to treason, was formerly matter of doubt. And we have two instances in the reign of Edward the fourth, of persons executed for treasonable words,-the one a citizen of London, who said he would make his son
(8) Plutarch in rit. Dionysii.
(t) By 7 Will. 3, c. 3, s. 8, it is provided, “ that no evidence shall “ be admitted or given of any overt “act that is not expressly laid in
“ the indictment, against any per-
[heir of the crown, such 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 (z). But these were even then esteemed hard cases : Chief Justice Markham ehoosing rather to leave his place, than assent to the latter judgment (a). And now it seems clearly to be agreed, that, by the common law and the statute of Edward the third, words spoken, however atrocious in their nature, amount only to a high misdemeanor. 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 treason; and accordingly in the fourth year of Charles the first, 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 there was no treason: for, unless it be
by some particular statute, no words will be trea“son”(6). If indeed, the words be set down in writing, it argues more deliberate intention; and it has been held that writing is, in itself, an overt act of treason, for
(z) 1 Hale, P. C. 115; 4 Bl. Com. p. 80. The cases here referred to by Blackstone, are those of William Walker and of Sir Thomas Burdet. But it is said in Stow's Chron. p. 415, that the charge against Walker was for words spoken against the title of the king when he was proclaimed ; and it appears from Cro. Car. p. 121, that the charge against
Burdet was of having conspired to kill the king and prince by casting their nativity, foretelling their speedy death, and scattering papers containing the prophecy amongst the people.-Sce Foss's Judges of England, vol. iv. pp. 414-416.
(a) Hale, ubi sup.
(6) Pyne's case, Cro. Car. 117; Williams's case, ibid. 126.