holden of others, as of himself: and moreover there is another manner of treason, that is to say, when a servant slayeth his master, or a wife her husband, or when a man secular, or religious, slayeth his prelate, to whom he oweth faith and obedience; and of such treason the escheats ought to pertain to every lord of his own fee: and because that many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time, it is accorded, that if any other case supposed treason, which is not above specified, doth happen before any justices, the justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the king and his parliament, whether it ought to be judged treason, or other(b) felony: and if par case any man of this realm ride armed [2] covertly, or secretly with men of arms against any other to slay him, or rob him, or take him, or retain him, till he hath made fine or ransom for to have his deliverance, it is not the mind of the king, nor his council, that in such case it shall be judged treason, but shall be judged felony, or trespass according to the laws of the land of old time used, and according as the case requireth. And if in such case, or other like, before this time any justices have judged treason, and for this cause the lands and tenements have come into the king's hands as forfeit, the chief lords of the fee shall have the escheats of the tenements holden of them, whether that the same tenements be in the king's hands, or in others by gift, or in other manner; saving always to our lord the

king the year and the wast, and the forfeitures of chattels, 91 which pertain to him in the cases above-named; and that

writs of scire facias be granted in such case against the land-tenants without other original, and without allowing any protection in the said suit; and that of the lands, which be in the king's hands, writs be granted to the sheriffs of the counties, where the lands be, to deliver them out of the king's hands without delay."[3]

The several high treasons hereby declared are these:

1. The compassing of the death of the king, queen, or prince, and declaring the same by an overt-act.

2. The violation or carnal knowledge of the king's consort, the king's eldest daughter unmarried, or the prince's wife.

3. The levying of war against the king.

4. The adhering to the king's enemies within the land or without, and declaring the same by some overt-act.

5. The counterfeiting of the great seal or privy seal.

6. The counterfeiting of the king's coin, or bringing counterfeit coin into this realm.

(b) The old translation seems here to be preferable, viz. else; for aut' being abbreviated may be either autre or autrement.

[2] Luders, 141.

[3] Mr. Luders' translation of this statute is somewhat different from the one here given. Tract 1. p. 4.

7. The killing of the chancellor, treasurer, justices of the one bench or the other, justices in eyre, justices of assise, justices of oyer and terminer in their places doing their offices.[4]

[4] By Art. 3. Sect. 3. of the Constitution of the United States, treason against the United States shall consist only in levying war against them; or adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witness to the same overt act, or confession in open court. Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.

In furtherance of this constitutional provision, an Act of Congress was passed April 30th, 1790, for the punishment of certain crimes against the United States, by which it is enacted, "That if any person or persons, owing allegiance to the United States of America shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States, or elsewhere, and shall be thereof convicted, on confession in open Court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death."

The other parts of the Act of Congress with the decisions of the federal Courts, declaring what acts amount to the two species of treason defined by the Constitution and laws of the United States, and the cases that have come within the cognizance of the courts of the different States, will be given in their proper places. It may, however, be here observed, that under the old confederation there was no judicial power organized or clothed with authority for the trial and punishment of treason against the United States. It became necessary therefore to provide for it under the judicial powers of the several States. But since the framing of the Constitution, the jurisdiction is exclusively in the United States Courts, 11 Johns. 553. Many of the States have provisions in their Constitutions respecting this crime; thus: "Treason against the State shall consist only in levying war against it; or in adhering to its enemies, giving them aid and comfort. No person shall be convicted of treason, unless on ths testimony of two witnesses, or on confession in open court," is to be found in the Constitutions of Maine, Connecticut, New Jersey, Kentucky, Indiana, Louisiana, Mississippi, Alabama, Missouri, Michigan, and Arkansas. And most of them have enacted laws, some of which contain treasons unknown to the Constitution of the United States.

It has been doubted by several learned gentlemen whether, since the making of the Constitution of the United States, treason can in any case be committed against a State. Mr. Livingston, in his System of Penal Laws, p. 148, says that, " from the nature of the federal union, a levy of war against one member of the Union is a levy of war against the whole; therefore it is concluded that treason against the State, being treason against the United States, it is to be punished under their laws and in their courts." See also p. 380. A writer in the American Law Magazine, vol. 4, p. 318, argues in the same manner; and Mr. Justice Story says, that a State cannot take cognizance, or punish the offence, (treason against the United States,) whatever it may do in relation to the offence of trea son committed exclusively against itself, if, indeed, any case can, under the Constitution, exist, which is not at the same time treason against the United States. Const. 3 vol. p. 173; but in his charge to the Grand Jury, (June 15, 1842,) he speaks thus, "Treason may be, and often is, aimed altogether against the sovereignty of a particular State. Thus, for example, if the object of an assembly of persons, met with force to overturn the government or constitution of a State; or to prevent the due exercise of its sovereign powers, or to resist the execution of any one or more of its general laws; but without any intention whatsoever to intermeddle with the relations of that State with the national government, or to displace the national laws or sovereignty therein, every overt act done with force towards the execution of such a treasonable purpose, is treason against the State, and against the State only." 1 Story's Rep. 616. That this offence may be committed against a State, seems to be recognized by the second section of article four of the Constitution of the United States, which provides that, "a person charged in any State with treason, &c., who shall flee from justice and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime;" it was assumed in the case of The People v. Lynch, 11 Johns. 549, where the court said, "that it might be by an open and armed opposition to the laws of the State, or a combination and forcible attempt to

overturn or usurp the government. And, indeed, the State in its political capacity, may, under certain special circumstances pointed out by the Constitution of the United States, be engaged in war with a foreign enemy;" and it was directly decided, after argument, in Dorr's case. Pamph. p. 123. See also 4 Tucker's Bl. Com. Apdx. 21. Serg. on Const. 382. Rawle on Const. 305.

CHAPTER XIII.

TOUCHING HIGH TREASON IN COMPASSING THE DEATH OF THE KING, QUEEN, OR PRINCE.

THE first article of high treason declared by the statute of 25 E. 3. is this, and in these words:

"When a man doth compass or imagine the death of our lord the king, or of our lady the queen, or of their eldest son [92] and heir."

Upon this division there will be these considerations. I. What shall be said a man that compasseth.

II. What shall be said the king, queen, or their eldest son. III. What shall be said a compassing or imagining of any of their deaths.

IV. What shall be evidence, or an overt-act to prove such imagining.

V. The form of an indictment of compassing the death of the king, queen, or prince.

I. What shall be said a man compassing, &c.

The general learning of this point in relation to natural, accidental, or civil incapacities hath been at large handled in the former chapters; but there is something peculiar to the case of high treason, which is considerable in this division.

If an alien amy comes into England, and here compass the death of the king, queen, or prince, this is a man compassing within this law; for, tho he be the natural subject of another prince, yet during his residence here he owes a local alligeance to the king of England, and tho the indictment shall not style him naturalis subditus, nor style the king naturalem dominum, yet it shall run proditoriè & contra ligeantiæ suæ debitum. Co. P. C. p. 5. 7 Rep. Calvin's case. (d) Dyer. 144.

If an alien amy subject of another prince comes into this kingdom and here settles his abode, and afterwards war is proclaimed between the two kings, and yet the alien continues here and takes the benefit of the king's laws and protection, and yet compasses the death of the king, this is a man compassing within this law; for, tho he be the natural subject of another prince, he shall be dealt with as an English subject in this case, unless he first openly remove himself from the king's protection by passing to the other prince, or by a pub

(a) fol. 6, 17.

lic renunciation of the king of England's protection, which hath some analogy with that, which they call diffidatio, or defiance.

And the same law I take to be, if the subject of a forein prince in war with ours come into England and here trade [93] and inhabit either as a merchant, dweller, or sojourner, if such a person compass the death of the king, he may be dealt with as a traitor, because he comes not hither as an enemy, or by way of hostility, but partakes of the king's protection: with this agrees the case of Stephano Farrara de Gama, and Emanuel Lewes Tinoco, Portugueze born, and then subjects to the king of Spain, between whom and the queen of England there was then open war, who were indicted and attaint of high treason for conspiring with Dr. Lopez to poison the queen.(b) 37 Eliz. Calvin's case. 7 Co. Rep. p. 6.

And, though they came hither with the queen's protection, it alters not the case, for every foreigner living publicly and trading here is under the king's protection: and this appears by the statute of Magna Charta, cap. 30. "Et si sint de terrâ contra nos guerrinâ, & tales inveniantur in terrâ nostra in principio guerræ, attachientur sine damno corporum suorum vel rerum, donec sciatur a nobis vel a capitali justiciario nostro, quomodo mercatores terræ nostræ tractentur, qui tunc inveniantur in terrâ illâ contra nos guerriâ; & si nostri salvi sint ibi, alii salvi sint in terrâ nostrâ.”

The statute speaks indeed of mercatores, but under that name all foreigners living or trading here are comprised.

And therefore in ancient times before the subjects of forein princes in hostility residing here were dealt with as enemies, a proclamation issued for their avoidance out of the kingdom; and in default of their avoidance within the time limited by such proclamation they lost the benefit of the king's protection.

And after such proclamation, yet upon caution given sometimes by mainprise de se bene gerendo, sometimes by oaths of fidelity to the king, they had sometines special, and oftentimes general protections, not withstanding such hostility. Rot. Vuscon. 18 E. 2. 21, 24. Pat. 14 H. 6. part. 2. m. 34, 35.

The statute of the Staple, (c) cap. 17. hath made provision for merchants strangers, in case war shall happen between their prince and the king of England, viz. that they shall have convenient

warning by forty days by proclamation to avoid the realm; [94] and if they cannot do it by that time by reason of some accident, they shall have forty days more, and in the mean time liberty to sell their merchandizes: during these eighty days they have the king's protection, and if they do any treasonable act above-mentioned, they shall be indicted of treason, notwithstanding the hostility between their sovereign and the king of England; but it seems, that if he remain here in a way of trade after proclamation so made, and the time of his demurrage allowed by this act, he may be dealt with as an alien enemy; but yet if he after that time continues in his way (b) Vide Camdeni Eliz. sub anno 1594. (c) 27 E. 3.

of trade or living as before, and shall then conspire the king's death, &c. the king may deal with him as an alien enemy by the law of nations, or as a traitor by the law of the land; because de facto he continues as a subject, and under the benefit de facto of the king's protection.

Therefore the general words in Co. P. C. p. 5. wherein he supposeth an alien enemy cannot be guilty of treason, but must be dealt with by martial law, are to be taken with that allay, that is given in Calvin's case, fol. 6. b. in these words: "But if an alien enemy come to invade this realm, and be taken in war, he cannot be indicted of treason, for the indictment cannot conclude contra ligeantiæ suæ debitum:" the like may be said of such as are sent over merely as spies by a foreign prince in hostility; but an alien enemy living here in the condition of an inhabitant or trader may be guilty of treason as well as an alien amy, for he doth it praditoriè and treacherously, and against the obligation that lies upon him, as well as any others, to be true to the prince, the benefit of whose laws and protection he holds, so long as he is under the same. [1]

But yet this is observable upon the statute of Magna Charta, cap. 30. and what hath been before said, 1. That if an alien enemy comes into England after the war begun, and lives here under the king's protection as a subjcet, yet if he practise treason against the king during such his abode here, he may be indicted of high treason contra ligeantiæ suæ debitum. 2. Yet such an alien, coming in after the war

begun without the king's licence or safe-conduct, cannot 95] claim the privilege allowed by the statute of Magna Charta,

cap. 30. to those that were here before the beginning of the war. 2 Co. Inst. 58. 3. That by the law of England debts and goods found in this realm belonging to alien enemies belong to the king, and may be seized by him. 19 E. 4. 6. 7 E. 4. 13. and therefore in debt brought by an alien enemy it is a good plea in bar primâ facie, that the person is an alien born in G. in partibus transmarinis sub obedientia Phillippi regis Hispaniæ hostis & inimici domini regis; so that, though to some purposes he is under the king's protection, so as to be guilty of treason, if he conspire against the king's life, yet his goods are not by law privileged from confiscation; and the reason is, because he might secure his goods by purchase of letters patents of denization, and he shall not take away the king's rights by his neglect therein.

But then, what if in truth our merchants have liberty of reclaiming their goods and recovering their debts in the hostile country? May the merchant plaintiff reply with this clause of the statute of Magna Charta, that "Nostri mercatores salvi sunt ibi, &c. ?"

I answer, he cannot, for it is reserved to another kind of trial; for the words are "donec sciatur a nobis vel a capitali justiciario nostro, quomodo mercatores nostri ibi tractentur." The king must be ascertained of the truth of the fact, in whose cognizance it best lies;

[1] See De la Motte's case, 21 St. Tr. (by Howell), 687.