the being more guerrino armati, &c. especially in the case of interpretative or constructive levying of war, be a sufficient overt act, to make a levying of war within the statute: 1 H. P. C. 151. And in Purchase's case, (a case of constructive levying) it was objected that there ought to have been an overt act laid of the treason; nevertheless, it was resolved by all the judges that the indictment was good, and that, levying war being an overt act of itself, no other overt act need be alleged. They agreed, however, that it ought to appear sufficiently on the indictment that a war was levied, and that the defendants appeared in a warlike manner, and that an indictment generally, that A. levied war, is not good: 1 E. P. C. 117. Now, it is submitted that there is a manifest inconsistency in this judgment; for, unless some other overt act be alleged, beside that of levying war more guerrino, &c. how can the indictment be free from the objection of being too general? But, admitting that this allegation is sufficient to constitute an overt act, in the case of a direct levying of war, how can it be said to be sufficient, in the case of a constructive levying? For in the latter case it is not necessary to prove that the assembly were armed or arrayed in a military manner: Fost. 208. How, then, can an averment of that which need not be proved, be deemed a sufficient overt act of this species of treason? A direct levying of war, though a substantive treason within this branch of the statute, may be laid as an overt act of compassing the king's death: Fost. 197. So, also,. may a conspiracy for that purpose, id. 211. But a constructive levying of war cannot be laid as such overt act; and, if a direct levying be laid, and only a constructive levying be proved, the prosecution must fail: 1 H.P. C.. 123. A fortiori, a conspiracy to levy such a war cannot be so laid: Fost. 43. The joining with rebels in acts of rebellion or with enemies in acts of hostility, will make a man a traitor; in the one case within clause of levying war, in the other within that of adhering to the king's enemies. But there are circumstances, as the fear of death, &c., which will be a sufficient excuse: Fost. 216. But, in the case of a constructive levying of war, persons who join the rabble, but who do no act of violence, are not traitors, but mere rioters: Messenger's case, Kel. 70. Where the parties are actually armed and arrayed in a military manner, listing and marching are sufficient overt acts, without coming to a battle: Fost. 218. It is said, that to constitute a levying of war, the number of persons assembled is not material: 3 Inst. 9. On the other hand, Lord Hale says, "it is very difficult to determine what that number must be that must make treason, and less than which must be only riot: 1 H.P.C. 151. It is scarcely necessaly to mention, that there must be an actual levying of war, either direct or constructive, to bring a case within the clause of levying war. 4. As to the clause of adhering to the king's enemies, it is necessary to aver in the indictment, that the persons adhered to were the king's enemies, as well as that the defendant adhered to them; but it is not necessary to allege expressly that such adherence was against the king, that being apparent; nor is it more necessary under this, than under the former clause, that the parties should come to an action; but the special manner of adhering must he set forth: 1 E. P. C.78. States in actual hostility with us, though no war be solemnly declared, are enemies within the meaning of the act, and therefore it is sufficient to aver in the indict ment, that the prince or state adhered to is an enemy, without shewing any war proclaimed; and the fact whether war or not, is triable by the jury, and public notoriety is sufficient evidence of the fact: Fost. 219. The various acts of adherence are collected in Archbold, 271, and need not be here repeated: but it may be observed, generally, that every species of aid or comfort, in the words of the sta a king standeth more assuredly of his subjects, than in fear of laws. 1 Mary, sess. 1, c. 1. The state of I. Forasmuch as the state of every king, ruler, and governor of any realm, dominion, or commonalty, standeth and consisteth more assured by the love and favour of the subject toward the sovereign ruler and governor, than in the dread and fear of laws made with rigorous pains and extreme punishment, for not obeying of their sovereign ruler and governor: And laws also justly made for the preservation of the commonweal, without extreme punishment or great penalty, are more often for the most part obeyed and kept, than laws and statutes made with great and extreme punishments, and in special such laws and statutes so made, whereby not only the ignorant and rude unlearned people, but also learned and expert people, minding honesty, are often and many times trapped and snared, yea, many times for words only, without other fact or deed done or perpetrated: No act or offence shall be treason, petty trea II. The queen's most excellent majesty, calling to remembrance that many, as well honourable and noble persons, as other of good reputation within this her grace's realm of England, have of late (for words only, without other opinion, fact, or deed) suffered shameful death, not accustomed to nobles; her highness, therefore, of her accustomed clemency and mercy, minding to avoid and put away the occasion and cause of like chances hereafter to ensue, trusting her loving subjects will, for her clemency to them shewed, love, serve, and obey her grace the more heartily and faithfully, than for dread or fear of pains of body, is contented and pleased that the severity of such like extreme, dangerous, and painful laws, shall be abolished, annulled, and made frustrate and void. III. Be it therefore ordained and enacted, &c., that from henceforth none act, deed, or offence, being by act of parliament or statute made treason, petty treason, or misprision son, or mis- of treason, by words, writing, ciphering, deeds, or otherprision, but wise whatsoever, shall be taken, had, deemed, or adjudged declared by to be high treason, petty treason, or misprision of treason, the stat. of but only such as be declared and expressed to be treason, 25 Ed. 3, petty treason, or misprision of treason, in or by the act of such as be st. 5, c. 2. parliament or statute made in the 25th year of the reign of the most noble king of famous memory, King Edward the Third, touching or concerning treason, or the declarations of treasons, and none other; nor that any pains of death, penalty, or forfeiture in anywise ensue, or be, to any offender or offenders, for the doing or committing any treason, petty treason, or misprision of treason, other than such as be in the said estatute made in the said 25th year of the reign of the said King Edward the Third, ordained and provided; any act or acts of parliament, statute or statutes, had or made at any time heretofore or after the said 25th year of the reign of the said late King Edward the Third, or any other declaration or matter, to the contrary in anywise notwithstanding. 36 Geo. 3, c. 7. (made perpetual by the 57 Geo. 1, c.6.) We, your majesty's most dutiful and loyal subjects, the lords spiritual and temporal, and commons, of Great Britain, in this present parliament assembled, duly considering the daring outrages offered to your majesty's most sacred person, in your passage to and from your parliament at the opening of this present session, and also the continued attempts of wicked and evil-disposed persons to disturb the tranquillity of this your majesty's kingdom, particularly by the multitude of seditious pamphlets and speeches daily printed, published, and dispersed, with unremitted industry, and with a transcendant boldness, in contempt of your majesty's royal person and dignity, and tending to the overthrow of the laws, government, and happy constitution of these realms, have judged that it is become necessary to provide a further remedy against all such treasonable and seditious practices and attempts: we therefore, calling to mind the good and wholesome provisions which have at different times been made by the wisdom of parliament, for the averting such dangers, and more especially for the security and preservation of the persons of the sovereigns restraint,&c. of these realms, do most humbly beseech your majesty that Persons it may be enacted, and be it enacted, &c., that if any per- who shall son or persons whatsoever, after the day of the passing of compass, this act, during the natural life of our most gracious sove devise, &c. reign lord the king, (whom Almighty God preserve and the death, bless with a long and prosperous reign,) and until the end of his maof the next session of parliament after a demise of the jesty, or his crown, shall, within the realm or without, compass, ima- heirs, or to gine, invent, devise, or intend death or destruction, or depose them, or to any bodily harm tending to death or destruction, maiming levy war to or wounding, imprisonment or restraint, of the person of compel a the same our sovereign lord the king, his heirs and succes- change of sors, or to deprive or depose him or them from the style, measures, honour, or kingly name of the imperial crown of this realm, deemed or of any other of his majesty's dominions or countries; or traitors. to levy war against his majesty, his heirs and successors, Persons ac- to benefit of, within this realm, in order, by force or constraint, to comper 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, or intentions, or any 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, upon trial, or otherwise convicted or attainted by due course of law, then every such person and persons, so as aforesaid offending, shall be deemed, declared, and adjudged to be a traitor and traitors, and shall suffer pains of death, and also lose and forfeit, as in cases of high treason. V. Provided always, and be it further enacted, that all and every person or persons that shall at any time be accused, or indicted, or prosecuted for any offence made or declared to be treason by this act, shall be entitled to the benefit of the act of parliament made in the seventh year of his late Majesty King William the Third, intituled, “An 7Anne,c.21. Act for regulating of Trials in Cases of Treason and Misprision of Treason;" and also to the provisions made by another act of parliament passed in the seventh year of her late Majesty Queen Anne, intituled, "An Act for improving the Union of the two Kingdoms." (See post, page 240, &c.) Aet not to secution at common VI. Provided also, and be it enacted, that nothing in prevent pro- this act contained shall extend, or be construed to extend, to prevent or affect any prosecution by information or indictment at the common law, for any offence within the provisions of this act, unless the party shall have been first prosecuted under this act. law. (See the note to the next statute.) 57 Geo. 3, c. 6. [Recites the 36 Geo. 3, c. 7, and proceeds thus]: and whereas it is necessary and expedient that such of the provisions of the said act as would expire at the end of the next session of parliament, after the demise of the crown, Provisions should be further continued and made perpetual; be it of recited act made perpetual. Persons accused of high treason entitled to the benefit therefore enacted, &c., that all and every the herein-before recited provisions which relate to the heirs and successors of his majesty, the sovereigns of these realms, shall be, and the same are hereby, made perpetual. IV. Provided, and be it further enacted, that all and every person and persons that shall at any time be accused, or indicted, or prosecuted for any offence made or declared to be high treason by this act, shall be entitled to the benefit. of the act made in the seventh year of his late Majesty of 7 Will. 3, King William the Third, intituled," An Act for regulating 3. and 7 Anne,c.21, of Trials in Cases of Treason and Misprision of Treason;" except in and also to the provisions made by another act, passed in cases herein the seventh year of her late Majesty Queen Anne, intituled, mentioned. "An Act for improving the Union of the Two Kingdoms;" save and except in cases of high treason, in compassing or imagining the death of any heir or successor of his majesty, and of misprision of such treason, where the overt act or overt acts of such treason which shall be alleged in the indictment for such offence, shall be assassination or killing of any heir or successor of his majesty, or any direct attempt against the life of any heir or successor of his majesty, successor, of such heir or successor, harm. to which persons V. Provided also, and be it enacted, that nothing in this Not to affect act contained shall extend, or be construed to extend, to prosecution, prevent or affect any prosecution, by information or indictment, to which any person or persons would have been, or would be would be liable, if this act had not been enacted, for any liable if this offence within the provisions of this act, unless the party passed. shall have been first prosecuted under this act. act had not extended to VI. Provided, also, and be it enacted, that the statute 54 Geo. 3, of the fifty-fourth year of his majesty's reign, intituled " An c. 146, as to Act to alter the Punishment in'certain Cases of High Treason," judgments shall have the same effect as to sentences and judgments to this act. be pronounced and awarded under this act, as if this act had been made and passed before the said act of the fiftyfourth year of his majesty's reign. Note. The words of the fourth section of this act, which are here omitted, relate to the Prince Regent, and are no longer in force. Insurrections and risings, for the purpose of effecting by force and numbers, howeverill arranged, provided, and organized, any innovation of a public nature, or redress, of supposed public grievances, in which the parties had no special or particular interest or concern, have been deemed instances of actual levying of war; and, consequently, to compass or imagine such an insurrection, in order, by force and numbers, to compel his majesty to alter his measures or counsels, will be to compass or imagine the levying of war against his majesty for that purpose, within the just meaning of the modern statute: per Lord Tenterden, in Thistlewood's case, 33 How. St. Tri. 683. It may be remarked, that the words of Lord Tenterden are given with considerable caution, and by no means warrant the conclusion, that every compassing of a constructive levying of war, is a treason within the modern statute. On the contrary, it seems clear, that the levying war must be with the views and for the purposes mentioned in the act, and no other. The |