TREASON (proditio), in its very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, faith the Mirror of Justice: for treason is indeed a general appellation, made use of by the law, to denote not only offences against the king and government; but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation; and the inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such superior or lord. This is looked upon as proceeding from the same principle of treachery in private life, as would have urged him who harbours it to have conspired in public against his liege lord and sovereign: and therefore for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary; these, being breaches of the lower allegiance, of private and domestic faith, are denominated petit treasons. But when disloyalty so rears its crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta proditio; being equivalent to the crimen lesae majestatis of the Romans, as Glanvil denominates it also in our English law.
High-Treason. As this is the highest civil crime, which (considered as a member of the community) any man can possibly commit, it ought therefore to be the most precisely ascertained. For if the crime of high-treason be indeterminate, this alone (says the president Montesquieu) is sufficient to make any government degenerate into arbitrary power. And yet, by the ancient common law, there was a great latitude left in the breast of the judges, to determine what was treason, or not so: whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treasons; that is, to raise, by forced and arbitrary constructions, offences into the crime and punishment of treason, which never were suspected to be such. But to prevent the inconveniences which began to arise in England from this multitude of constructive treasons, the statute 25 Edw. III. c. 2. was made; which defines what offences only for the future should be held to be treason: in like manner as the lex Julia majestatis among the Romans, promulgated by Au-
gustus Cæsar, comprehended all the ancient laws that had before been enacted to punish transgressors against the state. This statute must therefore be our guide, in order to examine into the several species of high-treason. And we shall find that it comprehends all kinds of high-treason under seven distinct branches.
"1. When a man doth compass or imagine the death of our lord the king, of our lady his queen, or of their eldest son and heir." Under this description it is held that a queen-regnant (such as queen Elizabeth and queen Anne) is within the words of the act, being invested with royal power and entitled to the allegiance of her subject: but the husband of such a queen is not comprised within these words; and therefore no treason can be committed against him.
Let us next see what is a compassing or imagining the death of the king, &c. These are synonymous terms: the word compass signifying the purpose or design of the mind or will; and not, as in common speech, the carrying such design to effect. And therefore an accidental stroke, which may mortally wound the sovereign, per infortunium, without any traitorous intent, is no treason: as was the case of Sir Walter Tyrrel, who, by the command of king William Rufus, shooting at a hart, the arrow glanced against a tree, and killed the king upon the spot. But as this compassing or imagining is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open or overt act. And yet the tyrant Dionysius is recorded to have executed a subject barely for dreaming that he had killed him; which was held for a sufficient proof, that he had thought thereof in his waking hours. But such is not the temper of the English law; and therefore in this, and the three next species of treason, it is necessary that there appear an open or overt act of a more full and explicit nature, to convict the traitor upon. The statute expressly requires, that the accused "be thereof upon sufficient 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 treason in imagining his death. To conspire to imprison the king by force, and move towards it by assembling company, is an overt act of compassing the king's death; for all force, used to the person of the king, in its consequence may tend to his death, and is a strong presumption of something worse intended than the present force, by such as have so far thrown off their bounden duty to their sovereign: it being an old observation, that there is generally but a short interval between the prisons and the graves of princes.
How far mere words spoken by an individual, and not relative to any treasonable act or design then in agitation, shall amount to treason, has been formerly matter of doubt. We have two instances in the reign of Edward IV. of persons executed for treasonable words: the one a citizen of London, who said he would make his son heir of the crown, being the sign of the house in which he lived; the other a gentleman, whose favourite buck the king killed in hunting, whereupon he wished it, horns and all, in the king's belly. These were esteemed hard cases: and the chief justice Markham rather chose to leave his place than assent to the latter judgment. But now it seems clearly to be agreed, that
Treason. that by the common law and the statute of Edw. III. words spoken amount only to a high misdemeanor, and no treason. For they may be spoken in heat, without any intention; or be mistaken, perverted, or misremembered by the hearers; their meaning depends always on their connection with other words and things; they may signify differently even according to the tone of voice with which they are delivered; and sometimes silence itself is more expressive than any discourse. As therefore there can be nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high-treason. And accordingly, in 4 Car. I. on a reference to all the judges, concerning some very atrocious words spoken by one Pyne, they certified to the king, "that though the words were as wicked as might be, yet they were no treason: for unless it be by some particular statute, no words will be treason." If the words be set down in writing, it argues more deliberate intention; and it has been held, that writing is an overt act of treason; for 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 Peacham a clergyman, for treasonable passages in a sermon never preached; 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; but being merely speculative, without any intention (so far as appeared) of making any public use of them, the convicting the authors of treason upon such an insufficient foundation has been universally disapproved. Peacham 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 of late even that has been questioned.
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 VIII. 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 prince's dowager is held to be no treason: in like manner as, by the feudal law, it was a felony, and attended with a forfeiture of the life, 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 pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances
whether real or pretended. 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.
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 high-treason. This must likewise be proved by some overt act; as by giving them intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like.
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 to 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 a manner framed a dispensation for non-residence. But the knavish artifice of a lawyer much exceeded this the divine. One of the clerks in chancery glued together two pieces of parchment; on the uppermost of which he wrote a patent, to which he regularly obtained the great seal, the 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.
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 merchandise 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 mints alter the standard or alloy established by law, it is treason. But gold and silver money only are held to be within this 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.
7. The last species of treason ascertained by 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 of 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 within the protection of this act: but the lord keeper or commissioners of the great seal now seem to be within it, by virtue
Treason. virtue of the statutes 5 Eliz. c. 18. and 1 W. and M. c. 21.
Temporary statutes of late times enacted, have made some other offences treasonable, as relating to Papists and the Protestant succession.
The punishment of high-treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually (by connivance, at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.
The king may, and often doth, discharge all the punishment except beheading, especially where any of noble blood are attainted. For beheading being part of the judgment, that may be executed, though all the rest be omitted by the king's command. But where beheading is no part of the judgment, as in murder or other felonies, it hath been said that the king cannot change the judgment, although at the request of the party, from one species of death to another.
In the case of coining, which is a treason of a different complexion from the rest, the punishment is milder for male offenders; being only to be drawn and hanged by the neck till dead. But in treasons of every kind the punishment of women is the same, and different from that of men. For as the natural modesty of the sex forbids the exposing and publicly mangling their bodies, their sentence (which is to the full as terrible to sense as the other) is to be drawn to the gallows, and there to be burned alive.
For the consequences of this judgment, see ATTAINDER, FORFEITURE, and CORRUPTION of Blood.
Petit Treason, according to the statute 25 Edward III. c. 2. may happen three ways: by a servant killing his master, a wife her husband, or an ecclesiastical person (either secular or regular) his superior, to whom he owes faith and obedience. See TREASON. A servant who kills his master whom he has left, upon a grudge conceived against him during his service, is guilty of petit treason: for the traitorous intention was hatched while the relation subsisted between them, and this is only an execution of that intention. So if a wife be divorced a mensa et thoro, still the vinculum matrimonii subsists; and if she kills such divorced husband, she is a traitress. And a clergyman is underbound to owe canonical obedience to the bishop who ordained him, to him in whose diocese he is beneficed, and also to the metropolitan of such suffragan or diocesan bishop; and therefore to kill any of these is petit treason. As to the rest, whatever has been said with respect to wilful MURDER, is also applicable to the crime of petit treason, which is no other than murder in its most odious degree; except that the trial shall be as in cases of high-treason, before the improvements therein made by the statutes of William III. But a person indicted of petit treason may be acquitted thereof, and found guilty of manslaughter or murder: and in such case it should seem that two witnesses are not necessary, as in case of
petit treason they are. Which crime is also distinguished from murder in its punishment.
The punishment of petit treason in a man, is to be drawn and hanged, and in a woman to be drawn and burned: the idea of which latter punishment seems to have been handed down to us from the laws of the ancient Druids, which condemned a woman to be burned for murdering her husband; and it is now the usual punishment for all sorts of treasons committed by those of the female sex. Persons guilty of petit treason were first debarred the benefit of clergy by statute 12 Henry VII. c. 7. which has since been extended to their aiders, abettors, and counsellors, by statutes 23 Henry VIII. c. 1. and 4 & 5 P. and M. c. 4.