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. Hence treason is of two kinds, high and petty.
High Treason, or Treason Paramount (which is equivalent to the crimen lex majestatis of the Romans, as Glanvil denominates it also in our English law), is an offence committed against the security of the king or kingdom, whether by imagination, word, or deed. In order to prevent the inconveniences which arose in England from a 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; and this statute 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, or 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 intitled 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 may mortally wound the sovereign, per infortuniam, 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 imagination is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open or overt act. The statute expressly requires, that the accused "be thereupon sufficient proof attained 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. It seems clearly to be agreed, 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.
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.
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 of 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 fifth 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 minters 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 of the statutes 5 Eliz. c. 18. and 1 W. and M. c. 21.
The new treasons, created since the statute 1 M. c. 1. and not comprehended under the description of statute 25 Edw. III., may be comprised under three heads. The first species relates to Papists; the second to falsifying the coin or other royal signatures, as falsely forging the sign manual, privy signet, or privy seal, which shall be deemed high treason (1 M. flat. ii. c. 6.) The third new species of high treason is such as was created for the security of the Protestant succession in the house of Hanover. For this purpose, after the act of settlement was made, it was enacted by statute 13 and 14 W. II. c. 3, that the pretended prince of Wales, assuming the title of King James III., should be attainted of high treason; and it was made high-treason for any of the king's subjects to hold correspondence with him or any person employed by him, or to remit money for his use. And by 17 Geo. II. c. 39, it is enacted, that if any of the sons of the pretender shall land or attempt to land in this kingdom, or be found in the kingdom or any of its dominions, he shall be adjudged attainted of high-treason; and... corresponding with them or remitting money to their use is made high treason. By 1 Ann. Stat. 2. c. 17, the offence of hindering the next in succession from succeeding to the crown is high treason; and by 6 Ann. c. 7, if any person shall maliciously, advisedly, and directly, by writing or printing, maintain, that any other person hath any right to the crown of this realm, otherwise than according to the act of settlement, or that the kings of this realm with the authority of parliament are not able to make laws to bind the crown and its descent; such person shall be guilty of high treason.
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 pledge 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 lex 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.
Petty or 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. A servant who kills his master whom he has left, upon a grudge conceived against him during his service, is guilty of petty treason: for the traitorous intention was hatchet 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 matrimoni subsists; and if she kills such divorced husband, she is a traitress. And a clergyman is understood 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 petty 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 sound guilty of manslaughter or murder: and in such case it should seem that two witnesses are not necessary, as in cases 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 deprived the benefit of clergy by statute 12 Henry VII. c. 7, which has since been extended to their abettors, and counsellors, by statutes 23 Henry VIII. c. 1, and 4 & 5 P. and M. c. 4.