[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 And such writing, though unpublished, has in some arbitrary reigns convicted its author of treason: particularly in the cases of one Peachum, a clergyman, for treasonable passages in a sermon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 (c); and of Algernon Sidney, 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 (d). But being merely speculative, without any intention, so far as appeared, of making any public use of them, the convicting the authors upon such an insufficient foundation has been universally disapproved. Peachum was therefore pardoned; and though Sidney 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; though in later times even that has been questioned (e). 66 66 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 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 (c) Williams's case, Cro. Car. 126. (d) Foster, 198. (e) See 1 Hale, P. C. 118; Hawk. P. C. b. 1, c. 17, s. 32. [treason (f). In like manner as, by the feudal law, it was a felony and attended with a forfeiture of the fief, if the vassal vitiated the wife, or daughter of his lord (g); but not so, if he only vitiated his widow (h). 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 (i), or to remove evil councillors, or other grievances, whether real or pretended (k). For the 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 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 avowed design to pull down all inclosures, 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 (1). But a tumult with a view to pull down a particular house, or lay open a particular inclosure, (f) 3 Inst. 9. The instances specified in 25 Edw. 3, c. 2, however, 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 issues of the king's eldest daughter: and her chastity is only inviolable before marriage, whilst her children would be clearly illegitimate. Before the twenty-fifth year of Edward the third, it was (g) Feud. 1. 1, t. 5. (i) Doug. 590. (k) Hawk. P. C. b. 1, c. 17, s. 25. (2) 1 Hale, P. C. 132. [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 over all Europe in the early feudal times, it is only a great riot and contempt, and no treason (m). Thus it happened between the Earls of Hereford and Gloucester, in the twentieth year of Edward the first; who raised each 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 treason, but only a great misdemeanor (n). 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 species, —viz., of compassing or imagining the king's death (0). 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 treason. This must likewise be proved by some overt act, as by giving them intelligence (p); by sending them provisions; by selling them arms; by treacherously surrendering them a fortress, or the like (q). By enemies, are here 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 assistance is also clearly treason; either in the light of adhering to the public enemies of the king and kingdom, or else in that of levying war against his majesty (r). And, most indisputably, the same acts of adherence or aid, which, when applied to foreign enemies, will constitute treason (m) See Robertson, Chas. V., vol. i. 45, 286. (n) 1 Hale, P. C. 136. (0) 3 Inst. 9; Foster, 211, 213. (p) Dr. Hensy's case, 1 Burr. 650; R. v. Stone, 6 T. R. 527. (7) 3 Inst. 10. (r) Foster, 219. [under this branch of the statute, will, when afforded to our own fellow-subjects in actual rebellion at home, amount to the same crime, under the description of levying war against the king (s). 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 (t). 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. 5. The last species of treason under this 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 in 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 to wounding or a bare attempt to kill them. It extends also only to the officers therein specified; and therefore the barons of the Exchequer, as such, are not, it has been said, within the protection of this Act (u); but the lord keeper, or commissioners, of the Great Seal, seem to be within it,-by virtue of the statutes 5 Eliz. c. 18, and 1 Will. & Mary, c. 21 (x). (8) Foster, 216. (t) Hawk. P. C. b. 1, c. 17, s. 28. (u) 1 Hale, P. C. 231. (x) By the statute 7 Anne, c. 21, it is made treason to slay any of the lords of session, or lords of justiciary, sitting in judgment. It is also provided, that the crimes of treason, and misprision of treason, shall be exactly the same in England and Scotland; and that no acts in Scotland, except those above specified, shall be construed as treason in Scotland, which are not treason in England; and that all persons prosecuted in Scotland, for treason, or [Thus careful was the legislature in the reign of Edward the third, to specify and reduce to a certainty the vague notions of treason that had formerly prevailed in our courts. But the Act does not stop here, but goes on as follows: "Because other like cases of treason may happen in time "to come, which cannot be thought of or declared at "present, it is accorded, that if any other case supposed "to be treason, which is not above specified, doth happen "before any judge, the judge shall tarry without going "to judgment of the treason, till the cause be showed and "declared before the king and his parliament, whether "it ought to be judged treason or other felony." Sir M. Hale is very high in his encomiums on the great wisdom and care of the parliament, in thus keeping judges within the proper bounds and limits of this Act, by not suffering them to run out upon their own opinions into constructive treasons, though in cases that seem to them to have a like parity of reason; but reserving them to the decision of parliament (y). This is a great security to the public, the judges, and even this sacred Act itself; and leaves a weighty memento to judges to be careful, and not over-hasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved and settled. Sir M. Hale also observes, that as the authoritative decision of these casus omissi is reserved to the king and parliament, the most regular way to do it is by a new declarative act; and therefore the opinion of any one or of both houses, (though of very respectable weight,) is not that solemn declaration referred to by this Act, as the only criterion for judging of future treasons (z). In consequence of this power,-not indeed originally granted by the statute of Edward the third, but constitutionally inherent in every subsequent parliament, which cannot be abridged of any rights by the act of a precedent misprision thereof, shall be tried in the same manner as if they had been prosecuted for the same crime in England. (y) 1 Hale, P. C. 259. |
