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; though of late even that has been questioned. (4)

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 high 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 (5): and,

1 Hal. P. C.118. 1 Hawk. P. C. c. 17.

(4) The queen in this first species of treason, means the queen consort, and extends to a wife de facto, but only during coverture: there is no doubt that a queen divorced a vinculo matrimonii is not within the statute; whether a divorce a mensa et toro only would exclude seems doubtful; the term in the statute is madame sa compaigne. Under the words "eldest son and heir,” is included, whoever shall be the eldest son and heir apparent to a king or queen regnant at the time of the treason done. What will be an overt act of compassing the death of either of these persons, must be determined, not precisely on the same principles which have been laid down respecting the king or queen regnant; the attempt must be upon their persons, not merely against their state and dignity. Lord Hale defines it thus, where a man without due process of law expressly compasseth the wounding or death of them. H.P.C. 128. 1 East. P. C. c. 2. s.10.

(5) Mr. Christian points out the insufficiency of this reason; the children of the second, and every other son would succeed to the crown before those of the eldest daughter, and yet their wives are not protected; her chastity too is only guarded while she remains unmarried, and while any child she might bear could not inherit. Dr. Lingard supplies a conjecture, which at least is ingenious, and free from the same objections. The king, as feudal lord, might demand an aid from his tenants at the marriage of his eldest daughter, and at the marriage of her only; of course he was the less likely to marry her, if she was deflowered; and this may have been the cause of inserting her name specially. Hist. of Engl. iv. 155.

therefore, when this reason ceases, the law ceases with it; for to violate a queen or princess-dowager is held to be no treason 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; but not so, if he only vitiated his widow.

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 [82] pretence to reform religion, or the laws, or to remove evil

counsellors, or other grievances whether real or pretended.f 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. But a tumult, with a view to pull down a particular house, or lay open a particular inclosure, 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 all over Europe in the early feodal times,) it is only a great riot and contempt, and no treason. Thus it happened between the earls of Hereford and Gloucester in 20 Edw. I. 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 high treason, but only a great misdemesnor. 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, of compassing or imagining the king's death. (6)

4. "IF a man be adherent to the king's enemies in his "realm, giving to them aid and comfort in the realm, or else"where," he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence (7), by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like.' By enemies are here understood the subjects of foreign [83] 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 any 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. And, most indisputably,

* 3 Inst. 9. Foster.211. 213.

1 3 Inst. 10.

m Foster, 219.

(6) By the 36 G. 3. c. 7. (enacted only for the late king's life, but as to this purpose, made perpetual by the 57 G. 3. c. 6.) it is provided that if any one within the realm, or without, shall compass or intend death, destruction, or any bodily harm tending thereto, maiming, or wounding, imprisonment, or restraint of H. M., or to depose him from the style, honour, or kingly name of the imperial crown of these realms, or o levy war against him within this realm, in order by force or constraint, to compel him to change his measures or counsels, or in order to put any constraint upon, or intimidate both, or either house of parliament, or to move or stir any foreigner with force to invade this realm, or any of his majesty's dominions, and such compassing or intentions shall express by publishing any printing or writing, or by any other overt act; being convicted thereof upon the oaths of two witnesses upon trial, or otherwise, by due course of law, such person shall be adjudged a traitor, and suffer death, and forfeit as in cases of high treason. Perhaps all the offences enumerated in this statute, were already chargeable as overt acts of compassing the death of the king; but this makes them substantive treasons; and thereby (to use the words of Abbott C. J.), "the law is rendered more clear and plain, both to those who are bound to obey it, and to those who may be engaged in the administration of it." Charge to the grand jury on the special commission, March 27, 1820.

Mr. J. Foster

(7) The intelligence need not actually reach the enemy observes, that the bare sending money or provisions, or sending intelligence to rebels or enemies, which in most cases is the most effectual aid that can be given them, will make a man a traitor, though the money or intelligence should happen to be intercepted. P. 217.

the same acts of adherence or aid, which (when applied to foreign enemies) will constitute treason under this branch of the statute, will (when afforded to our own fellow-subjects in actual rebellion at home) amount to high treason under the description of levying war against the king." 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." 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.° (8)

5. "IF a man counterfeit the king's great or privy seal," this is also high treason. But if a man takes wax bearing the impression of the great seal off from one patent, and fixes it on another, this is held to be only an abuse of the seal, and not a counterfeiting of it: as was the case of a certain chaplain, who in such manner framed a dispensation for non-residence. But the knavish artifice of a lawyer much exceeded this of the divine. One of the clerks in chancery glewed together two pieces of parchment; on the uppermost of which he wrote a patent, to which he regularly obtained the great seal, the [84] label going through both the skins. He then dissolved the cement; and taking off the written patent, on the blank skin wrote a fresh patent, of a different import from the former, and published it as true. This was held no counterfeiting of the great seal, but only a great misprision; and sir Edward Coke mentions it with some indignation, that the party was living at that day. (9)

(8) But an apprehension, though ever so well grounded, of having houses burnt, or estates wasted, or cattle destroyed, or of any other mischief of the like kind, will not excuse in the case of joining and marching with rebels or enemies. Foster, 217.

(9) Even after the making, and delivery of a new seal, and the breaking of the old one, it is high treason to counterfeit the latter, and apply it to an instrument of no date, or of a date when it was in use. 1 Hale, H.P.C.177 To constitute the offence, however, in any case, there must be an actual application of the counterfeit, so as to produce an impression in testi

mony

6. THE sixth species of treason under this statute, is "if a "man counterfeit the king's money; and if a man bring false "money into the realm counterfeit to the money of England, "knowing the money to be false, to merchandize and make payment withal." As to the first branch, counterfeiting the king's money; this is treason, whether the false money be uttered in payment or not. Also if the king's own minters alter the standard or alloy established by law, it is treason. But gold and silver money only are held to be within the statute. With regard likewise to the second branch, importing foreign counterfeit money, in order to utter it here; it is held that uttering it, without importing it, is not within the statute. But of this we shall presently say more. (10)

4 1 Hawk. P. C. c. 17. s. 57.

Ibid. c. 17. s. 83. 1 Hal. P. C.231.

mony of some writing; the mere making a seal similar to the original, though with intent so to apply it, is only a compassing to counterfeit, and punishable as a misdemeanour. Ibid. 183.

(10) Other important questions arise upon this clause of the statute, which it may be convenient to notice shortly in this place. 1st. What is the extent of the term, "king's money?" Before the union with Ireland, this point was much discussed in respect of gold and silver money coined and issued in that kingdom; and the better opinion seems to have been upon principle, and the comparison of this with later statutes, that such money was king's money, and the counterfeiting of it high treason. The arguments upon which this conclusion is founded, will apply equally to the case of money coined by the king's authority in any other part of his dominions, and not restrained in its circulation to that part. There is certainly this difficulty attending this conclusion, that a person may have no knowledge that the money he so counterfeits is the king's money, and therefore may incur the penalties of high treason unwittingly; at the present day, indeed, there is no hardship in this, for later statutes have made the counterfeiting even of foreign coin, whether current or not, in this realm, highly penal, and the man who does an act, which he knows to be illegal, cannot complain, if it involves him in consequences more serious than he anticipated. But as these statutes cannot be taken into the account in a question on an older statute, the only answer which the difficulty seems to admit of, is that legally the subject is bound to know the king's coin; and that the same ignorance might in fact subsist, either as to very ancient, or very recent coins, issued in England itself, and yet there can be no doubt that the act itself of counterfeiting them would be high-treason.

2d. What is the meaning of the term, "money of England ?" And it is said, that by this, is to be understood all such money as is coined and issued by the authority of the crown of England, in any part of the dominions of England; for the law would be inconsistent, unless the second clause made it treason to import the same counterfeit money, which the first had made it treason to counterfeit. It is obvious, however, that this

argument