CHAP. the king's companion or the king's eldest daughter unmarried, or XV. the wife of the king's eldest son and heir; or if a man do levy William. war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be proveably attainted of open deed by people of their condition. And if a man counterfeit the king's great or privy seal, or his money; and if a man bring false money into this realm, counterfeit to the money of England, as the money called Lusheburgh, or other like to the said money of England, knowing the money to be false, to merchandize or make payment in deceipt of our said lord the king and of his people. And if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assise, and all other justices assigned to hear and determine, being in their place doing their offices. And it is to be understood, that in the cases above rehearsed, it ought to be judged treason which extends to our lord the king and his royal majesty. And of such treason the forfeiture of the escheats pertaineth to our lord the king, as well of the lands and tenements holden of others as of himself*." It seems impossible not to observe, that the want of distinct arrangement natural to so unphilosophical an age, and which renders many of our old statutes very confused, is eminently displayed in this strange conjunction of offences; where to counterfeit the king's seal, which might be for the sake of private fraud, and even his coin, which must be so, is ranged along with all that really endangers the established government, with conspiracy and insurrection. But this is an objection of little magnitude, compared with one that arises out of an omission in enumerating the modes whereby treason could be committed. In most other offences, the intention, however manifest, the contrivance, however deliberate, the attempt, however casually * Rot. Parl. ii. 239. 3 Inst. 1. XV. rendered abortive, form so many degrees of malignity, or at least CHAP. of mischief, which the jurisprudence of most countries, and none more than England, has been accustomed to distinguish from the William. perpetrated action by awarding an inferior punishment, or even none at all. Nor is this distinction merely founded on a difference in the moral indignation with which we are impelled to regard an inchoate and a consummate crime, but is warranted by a principle of reason, since the penalties attached to the completed offence spread their terror over all the machinations preparatory to it; and he who fails in his stroke has had the murderer's fate as much before his eyes as the more dexterous assassin. But those who conspire against the constituted government connect in their sanguine hope the assurance of impunity with the execution of their crime, and would justly deride the mockery of an accusation which could only be preferred against them when their banners were unfurled, and their force arrayed. It is as reasonable, therefore, as it is conformable to the usages of every country, to place conspiracies against the sovereign power upon the footing of actual rebellion, and to crush those by the penalties of treason, who, were the law to wait for their opportunity, might silence or pervert the law itself. Yet in this famous statute we find it only declared treasonable to compass or imagine the king's death, while no project of rebellion appears to fall within the letter of its enactments, unless it ripen into a substantive act of levying war. I am less inclined to attribute this material omission to the laxity which I have already remarked to be usual in our older laws, than to apprehensions entertained by the barons, that if a mere design to levy war should be rendered treasonable, they might be exposed to much false testimony and arbitrary construction. But strained constructions of this very statute, if such were their aim, they did not prevent. I do not now advert to the more extravagant convictions under this statute in some violent reigns; but it gradually became an established doctrine with William. CHAP. lawyers, that a conspiracy to levy war against the king's person, XV. though not in itself a distinct treason, may be given in evidence as an overt act of compassing his death. Great as the authorities may be on which this depends, and reasonable as it surely is that such offences should be brought within the pale of high treason, yet I must confess, that this doctrine has ever appeared to me utterly irreconcilable with any fair interpretation of the statute. It has indeed, by some, been chiefly confined to cases where the attempt meditated is directly against the king's person, for the purpose of deposing him, or of compelling him, while under actual duress, to a change of measures; and this was construed into a compassing of his death, since any such violence must endanger his life, and because, as has been said, the prisons and graves of princes are not very distant *. But it seems not very reasonable to found a capital conviction on such a sententious remark; nor is it by any means true that a design against a king's life is necessarily to be inferred from the attempt to get possession of his person. So far, indeed, is this from being a general rule, that in a multitude of instances, especially during the minority or imbecility of a king, the purposes of conspirators would be wholly defeated by the death of the sovereign whose name they designed to employ. But there is still less pretext for applying the same construction * 3 Inst. 12. 1 Hale's Pleas of Crown,120. Foster, 195. Coke lays it down positively, p. 14, that a conspiracy to levy war is not high treason, as an overt act of compassing the king's death. "For this were to confound the several classes or membra dividentia." Hale objects, that Coke himself cites the case of lords Essex and Southampton, which seems to contradict that opinion. But it may be answered, in the first place, that a conspiracy to levy war was made high treason during the life of Elizabeth; and secondly, that Coke's words as to that case are, that they "intended to go to the court where the queen was, and to have taken her into their power, and to have removed divers of her council, and for that end did assemble a multitude of people: this being raised to the end aforesaid, was a sufficient overt act of compassing the death of the queen." The earliest case is that of Storie, who was convicted of compassing the queen's death on evidence of exciting a foreign power to invade the kingdom. But he was very obnoxious, and the precedent is not good. Hale, 122. It is also held, that an actual levying war may be laid as an overt act of compassing the king's death, which indeed follows a fortiori from the former proposition; provided it be not a constructive rebellion, but one really directed against the royal authority. Hale, 123. XV. William. to schemes of insurrection, when the royal person is not directly CHAP. the object of attack, and where no circumstance indicates any hostile intention towards his safety. This ample extension of so penal a statute was first given, if I am not mistaken, by the judges in 1663, on occasion of a meeting by some persons at Farley Wood in Yorkshire *, in order to concert measures for a rising. But it was afterwards confirmed in Harding's case, immediately after the revolution, and has been repeatedly laid down from the bench in subsequent proceedings for treason, as well as in treatises of very great authority †. It has therefore all the weight of established precedent; yet I question whether another instance can be found in our jurisprudence of giving so large a construction, not only to a penal, but to any other statute. Nor does it speak in favour of this construction, that temporary laws have been enacted on various occasions to render a conspiracy to levy war treasonable, for which purpose, according to this current doctrine, the statute of Edward III. needed no supplemental provision. Such acts were passed under Elizabeth, Charles II., and George III., each of them limited to the existing reign §. But it is very seldom that, in an hereditary monarchy, the reigning prince ought to be secured by any peculiar provisions; and though * Hale, 121. + Foster's Discourse on High Treason, 196. State Trials, xii. 646. 790. 818; xiii. 62, (sir John Friend's case) et alibi. This important question having arisen on lord Russell's trial, gave rise to a controversy between two eminent lawyers, sir Bartholomew Shower and sir Robert Atkins; the former maintaining, the latter denying, that a conspiracy to depose the king and to seize his guards was an overt act of compassing his death. State Trials, ix. 719. 818. See also Phillipps's State Trials, ii. 39. 78; a work to which I might have referred in other places, and which shows the well known judgment and impartiality of the author. In the whole series of authorities, however, on this subject, it will be found that the probable danger to the king's safety from rebellion was the ground-work upon which this constructive treason rested; nor did either Hale or Foster, Pemberton or Holt, ever dream that any other death was intended by the statute than that of nature. It was reserved for a modern crown lawyer to resolve this language into a metaphysical personification, and to argue that the king's person being interwoven with the state, and its sole representative, any conspiracy against the constitution must of its own nature be a conspiracy against his life. State Trials, xxiv. 1183. § 13 Eliz. c. 1.; 13 Car. 2. c. 1.; 36 G. 3. c. 7. XV. William. CHAP. the remarkable circumstances of Elizabeth's situation exposed her government to unusual perils, there seems an air of adulation or absurdity in the two latter instances. Finally, the act of 57 G. III. c. 6. has confirmed, if not extended, what stood on rather a precarious basis, and rendered perpetual that of 36 G. III. c. 7, which enacts, "that if any person or persons whatsoever, during the life of the king, and until the end of the next session of parliament after a demise of the crown, shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the person of the same our sovereign lord the king, his heirs and successors, or to deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm, or of any other of his majesty's dominions or countries, or to levy war against his majesty, his heirs and successors, within this realm, in order, by force or constraint, to compel him or them to change his or their measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe, both houses, or either house of parliament, or to move or stir any foreigner or stranger with force to invade this realm, or any other his majesty's dominions or countries under the obeisance of his majesty, his heirs and successors; and such compassings, imaginations, inventions, devices, and intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed; being legally convicted thereof upon the oaths of two lawful and credible witnesses, shall be adjudged a traitor, and suffer as in cases of high treason." This from henceforth will become our standard of constitutional law, instead of the statute of Edward III., the latterly received interpretations of which it sanctions and embodies. But it is to be noted as the doctrine of our most approved authorities, that a conspiracy for many purposes which, if carried into effect, would incur the guilt of treason, will not of itself amount to it. |