fome open, or overt, act (1). And yet the tyrant Dionyfius is recorded to have executed a fubject, barely for dreaming that he had killed him; which was held for fufficient proof, that he had thought thereof in his waking hours. But fuch is not the temper of the English law; and therefore in this, and the three next fpecies of treafon, it is neceffary that there appear an open or overt act of a more full and explicit nature, to convict the traitor upon. The ftatute expressly requires, that the accufed "be thereof upon fufficient 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 treafon in imagining his death. To confpire to imprison the king by force, and move towards it by affembling company, is an overt act of compaffing the king's death "; for all force, ufed to the perfon of the king, in it's confequence may tend to his death, and is a strong prefumption of fomething worfe intended than the prefent force, by fuch as have fo far thrown 3 Inft. 12. I Hal P. C. 109.

Plutarch. in vit.

(1) In the cafe of the regicides, the indictment charged, that they did traiterously compafs and imagine the death of the king. And the taking off his head was laid, among others, as an overt act of compaffing. And the perfon who was fuppofed to have given the ftroke was convicted on the fame indictment.

For the compaffing is confidered as the treafon, the overt acts as the means made ufe of to effectuate the intentions of the heart.

And in every indi&ment for this fpecies of treafon, and indeed for levying war, or adhering to the king's enemies, an overt act muft be alleged and proved. For the overt act is the charge, to which the prifoner muft apply his defence. But it is not neceffary, that the whole of the evidence intended to be given should be fet forth; the common law never required this exactness, nor doth the ftatute of King William require it. It is fufficient, that the charge be reduced, to a reasonable certainty, fo that the defendant may be apprized of the nature of it, and prepared to give an aufwer to it. Fofl. 194.

G 4

off

off their bounden duty to their fovereign; it being an old observation, that there is generally but a fhort interval between the prisons and the graves of princes. There is no question alfo, but that taking any measures to render fuch treasonable purposes effectual, as affembling and confulting on the means to kill the king, is a fuficient overt act of high-treafon (2).

W 1 Hawk. P. C. 38. 1 Hal. P. C. 119.

(2) This fubject is fo ably explained by Mr. J. Fofter in his first difcourfe on high treafon, that I think it may be useful to annex here two of his fections.

In the cafe of the King the flatute of treafons hath, with great propriety, retained the rule voluntas pro fado. The principle upon which this is founded is too obvious to need much enlargement. The king is confidered as the head of the body-poli-tic, and the members of that body are confidered as united and kept together by a political union with him and with each other. His life cannot, in the ordinary courfe of things, be taken away by treasonable practices without involving a whole nation in blood and confufion; confequently every ftroke levelled at his perfon is, in the ordinary courfe of things, levelled at the public tranquillity. The law, therefore, tendereth the fafety of the king with an anxious concern; and, if I may use the expression, with a concern bordering upon jealoufy. It confidereth the wicked imaginations of the heart in the fame 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 confpirators meet and confult how to kill the king, though they do not then fall upon any scheme for that purpose, this is an overt act of compaffing his death; and fo are all means made ufe of, be it advice, perfuafion, or command, to incite or encourage others to commit the fact, or join in the attempt; and every perfon who but affenteth to any overtures for that purpofe will be involved in the fame guilt.

The care the law hath taken for the perfonal fafety of the King is not confined to actions or attempts of the more flagi. tious kind, to affaffination or poifon, or other attempts directly and immediately aiming at his life. It is extended to every thing

wilfully

How far mere words, fpoken by an individual, and not relative to any treasonable act or defign then in agitation, shall amount to treason, has been formerly matter of doubt. We have two inftances in the reign of Edward the fourth, of perfons executed for treasonable words: the one a citizen [80] of London, who faid he would make his fon heir of the crown, being the fign of the houfe in which he lived; the other a gentleman, whofe favourite buck the king killed in hunting, whereupon he wished it, horns and all, in the king's belly (3). These were esteemed hard cases: and the chief justice Markham rather chofe to leave his place than assent to the latter judgment. But now it seems clearly to be agreed, that, by the common law and the ftatute of Edward III. words fpoken amount only to a high mifdemefnor, and no treafon. 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 connexion with other words, and things; they may fignify differently even according to the tone of voice, with which they are dex I Hal. P. C. 115.

wilfully and deliberately done or attempted, whereby his life may be endangered. And, therefore, the entering into measures for depofing or imprisoning him, or to get his perfon into the power of the confpirators, thefe offences are overt acts of treafon within this breach of the ftatute. For experience has fhewn that between the prisons and the graves of princes the distance is very fmall. Fot. 194.

This was the fpecies of treafon with which the state prifoners were charged, who were tried in 1794. And the question, as ftated by the court for the jury to try, was, Whether their measures had been entered into with an intent to fubvert the monarchy and to depofe the king? See Hardy's trial.

(3) There was even a refinement and degree of fubtlety in the cruelty of that cafe, for he wished it, horns and all, in the belly of him who counfelled 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 with against the king himself. Hal. P. C. 115.

livered;

livered; and fometimes filence itfelf is more expreffive than any difcourfe. As therefore there can be nothing more equivocal and ambiguous than words, it would indeed be unreafonable to make them amount to high treafon. And accordingly in 4 Car. I. on a reference to all the judges, concerning fome very atrocious words fpoken by one Pyne, they certified to the king, "that though the words were as wicked "as might be, yet they were no treafon: for, unless it be "by fome particular ftatute, no words will be treason (4).” If the words be fet down in writing, it argues more deliberate intention; and it has been held that writing is an oyert act of treafon; for fcribere eft agere. But even in this cafe the bare words are not the treafon, but the deliberate act of writing them. And fuch writing, though unpub-. lifhed, has in fome arbitrary reigns convicted it's author of treafon particularly in the cafes of one Peachum, a clergyman, for treasonable paffages in a fermon never preached ; and of Algernon Sydney, for fome papers found in his clofet; which, had they been plainly relative to any prévious formed defign of dethroning or murdering the king, might doubtless have been properly read in evidence as overt [81] acts of that treafon, which was fpecially laid in the indictment. But being merely fpeculative, without any intention (fo far as appeared) of making any public use of them, the convicting the authors of treafon upon fuch an insufficient foundation has been univerfally difapproved. Peachum was therefore pardoned: and though Sydney indeed was executed,

(4) This fubject is fully and ably difcuffed by Mr. J. Fofter, who maintains that words alone cannot amount to an overt act of treafon; but if they are attended or followed by a confultation, meeting, or any act, then they will be evidence, or a confeffion, of the intent of fuch confultation, meeting, or act; and he concludes, that loafe words not relative to facts, are at the worft no more than bare indications of the malignity of the heart." Foft, 202. et feq.

yet

yet it was to the general difcontent of the nation; and his attainder was afterwards reverfed by parliament. There was then no manner of doubt, but that the publication of fuch a treasonable writing was a fufficient overt act of treafon at the common law ; though of late even that has been questioned.

2. THE fecond species of treason is, "if a man do vio"late the king's companion, or the king's eldest daughter "unmarried, or the wife of the king's eldeft fon and heir." By the king's companion is meant his wife; and by violation is understood carnal knowlege, as well without force, as with it: and this is high treason in both parties, if both be confenting; as fome 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 fufpicion of bastardy, whereby the fucceffion to the crown might be rendered dubious and therefore, when this reafon ceases, the law ceases with it; for to violate a queen or princess dowager is held to be no treafon (5): in like manner as, by the feodal law, it was a felony and attended with a forfeiture of the fief, if the vafal vitiated the wife or daughter of his lord ; but not fo, if he only vitiated his widow.

C

3. THE third fpecies of treafon is, "if a man do levy war against our lord the king in his realm." And this

C

I Hal. P.C. 118. 1 Hawk P.C. 38.
3 Inft. 9.

d Feud. 1. x. t. 5.
e Ibid. t. 21.

(5) But the inftances specified in the ftatute do not prove much confiftency in the application of this reafon; for there is no protection given to the wives of the younger fons of the king, though their iffue muft inherit the crown before the issue of the king's eldest daughter, and her chastity is only inviolable before marriage, whilft her children would be clearly illegitimate.

Before the 25 Ed. III. it was held to be high treafon not only to violate the wife and daughters of the king, but also the nurfes of his children, les norices de lour enfantz. Britt. c. 8.

may