fz. PEACE, fenfe) multifarious, differing in their features, characters, and WHAT IT IS Confequences, and not correctly admitting any one definition, are however all of them either general or public in their object, or private only. PUBLIC how it falls § 3. III. THE first clafs of breaches of the peace, or those TREASON. having a public object in view, may be introduced by the crime of high treason, the greatest of all civil crimes. It is derived from the French trahifon, deceit. Neither treafon, nor mifprision of treason, are within the letter of the commission of the peace. These crimes are not competent to be tried be under the fore the feffions; but they fall under the cognizance of this jurifdiction magiftracy as offences against the peace of the king and of the of justices. realm. And any one juftice of peace, either from his own knowledge, or the complaint of others, must take measures for the apprehenfion of perfons fufpected of such crimes; take the declaration of the delinquent, or of others who can give evidence against him; put the fame in writing, commit the delinquent for trial, and bind over others to give eviDuty of dence against him. And generally, where a perfon is justices committed for treafon, it is advifable, Dr. Burn obferves, when any perfon is for the juftices of the peace to send an account of all the particulars immediately to the fecretary of state. It will not be neceffary, therefore, to enter more fully into this offence, than merely to state, in general, thofe circumstances which are neceffary, according to the English lawyers, to constitute it. committed for treafon. TREASON was, by the old law of Scotland, either proper or ftatutory. The first included thofe facts which were treasonable by the common law; fuch as contriving the death of the fovereign, or laying him under restraint in his perfon, or in the exercise of the government; raifing a a 2 Hawk. p. 39. Hall, p. 1. 168. b Burn's Justice, tit. Treason. x Hale's Hift. p. 372. fray in the hoft without a cause; levying war against him, $3. PUBLIC or inciting others to invade him; the affaulting of caftles TREASON. where he refided; the endeavouring to alter the fucceffion; impugning the authority of the estates of parliament; the making of treaties, either with fubjects or with foreign ftates, or maintaining any forts without the king's confent; and the refetting or concealing of traitors. The fecond included all crimes which, though not of their own nature carrying in them any of the distinguishing characters of proper treason, yet were punishable by statute with the pains of treafon, viz. theft by landed men; murder under truft; wilfully fetting Statutory fire to coalheughs, or to houses, or corns; and affaffina- the old tion. treasons, by Scottish law. THE punishment of treafon, whether proper or ftatutory, was death, and the forfeiture to the crown of the traitor's eftate, both real and perfonal; and the extinction of all the heritable dignities, honours, or privileges, that the king had conferred on him. The year immediately enfuing the Union of the two kingdoms, anno 1707, the British parliament judging it reasonable that the whole united kingdom fhould be governed by the fame law in the matter of treason, as their obligations to loyalty were the fame, declared, by 7 Anne, c. 21, that the laws of high treason that then ob- English tained in England, fhould alfo take place in Scotland, not treafon laws only with respect to the facts which conftituted that crime, Scotland. but in relation to the forms of trial, the corruption of blood, and all the other penalties and forfeitures consequent on it . The facts, which by the former law of Scotland inferred ftatutory treafon, are by this British act declared to be fimply capital crimesh. 21449, C. 24; 1455, c. 54. 1584, c.130; 1661, c. 5; 1662, c. 2. b 1587, c. 50. c Ibid, c. 51. 1592, c. 146. Vol. I. e 1528, c. 8. f 1681, c. 15. 8 Ersk. b. iv, tit. 4, § 20, p. 758. Y extended to $3. PUBLIC tute found ed. THE English treafon laws are founded upon the 25 EdTREASON. ward III, c. 2, which lord Hale calls a facred act, and lord Coke an excellent act; and the king, who made it, a bleffed English treon law king; and the parliament a blessed parliament; as more preon what fta- cifely than before defcribing and fixing this crime; a matter of so much importance, that if the crime of high treason be indeterminate, this alone (fays the president Montesquieu ') is fufficient to make any government degenerate into arbitrary power. This statute, then, like the lex Julia majeftatus of the Romans, contains the whole code of treafon laws, with the exception of a few explanations and additions by fubsequent enactments. This ftatute comprehends all kinds of high treason, under seven distinct branches. Danger from the law being indeterminate. Ist, Compaffing the king's death. How to be proved. FIRST, when a man does compass, or imagine, the death of our lord the king, of our lady his queen, or of their eld eft fon and heir. This defcription includes a queen-regnant, but not her husband ". The king in poffeffion, whether the rightful heir of the crown or not, is here intended c. THE terms, compaffing or imagining, are fynonymous; the word compass, fignifying the purpose or design of the mind or will, and not, as in common speech, the carrying fuch defign into effect. It is not treason, therefore, to wound the king mortally by an accidental stroke, without any traitorous intent. BUT the "compassing, or imagining," being an act of the mind, must be demonstrated by an open or ouvert act. Thus to provide weapons or ammunition for the purpose of killing L'Efprit des Loix, liv. xii, c. 7. C'eft affez que le crime de lefe majefté foit vague, pour que le gouvernment degenere en defpotifme. b 3 Inft. 7. 1 Hale, P. C. 106. Blackstone, b, iv, c. 6. c Ibid. d Coke 3. Inft 5. ibid. 1 Hale, P. C. 107. Blackstone, $.3. PUBLICE the king; to confpire to imprison the king by force, and move towards it by an affembled company ; affembling, TREASON. and confulting on the means, to kill the king; thefe, and all fuch measures taken to render treasonable purposes effec- what? tual, are fufficient ouvert acts of high treafon ". Ouvert acts WORDS how wicked foever, unless it be by fome particu Words, lar ftatute, do not amount to an ouvert act of treason, but to a high misdemeanour only. But if they are attended, or followed, by a confultation, meeting, or any act, they will be evidence, or a confeffion, of the intent of fuch confultation, meeting, or act; but "loose words, not relative to facts, " are no more than bare indications of the malignity of the "heart" EVEN words fet down in writing, though that argues more Writings. deliberate intention, yet if they are merely fpeculative, without connection with any plan of treason, are no fufficient ouvert acts of treason; a doctrine which was recognized by the court of justiciary at a period of no remarkable judicial purity, and has the beft poffible foundation in the parliamentary reverfal and general difcontent which followed the condemnation of Algernon Sidney. $3. PUBLIC TREASON. &c. SECOND." If a man do violate the king's companion, or the king's eldest daughter, unmarried, or the wife of "the king's eldeft fon and heir." By the king's companion 2d, Violat is meant his wife; and by violation is meant carnal know. ing the king's wife, ledge, as well without force as with it; and this is high treafon in both parties, if both be confenting. The "plain in"tention of this law," fays judge Blackstone, " is to guard "the blood royal from any fufpicion of baftardy, whereby "the fucceffion to the crown might be rendered dubious: "and therefore when this reafon ceafes, the law ceases "with it; for to violate a queen, or princess-dowager, is "held to be no treafon a." But Dr. Chriftia remarks, "that the inftances fpecified in the ftatute do not prove "much confiftency in the application of this reason; for "there is no protection given to the wives of the younger "fons of the king, though their iffue muft inherit the "crown before the iffue of the king's eldest daughter; and "her chastity is only inviolable before marriage, whilst her "children would be clearly illegitimate b." be 34, Levying THE third fpecies of treafon, is, if a man do levy war war against, &c. against our lord the king in his realm. This may done by taking up 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; to attempt, by intimidation and violence, to force the repeal of a law; to refift the king's forces by defending a castle against them; to make an infurrection, with an avowed design to pull down all inclosures, all brothels, and the like. These are inftances, each of them, of levying war against the king. But a tumult to pull down a particulas house, or lay open a particular inclosure, amounts at moft a Com. b. iv, c. 6, p. 81. b Blackstone, edit. 1800. с mob, commonly called Shawfield's mob, and Porteous' mob, though Upon this principle the great meal they had great affinity to treason, |