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if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere; and, therefore, be probably attainted of open deed, by the people of their condition. And if a man counterfeit the king's great or privy seal, or his money, and if a man bring false money into the realm, counterfeit to the money of England, knowing the money to be false, and and 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."

Lord Hale calls the statute of the 1 Mar. sess. 1. c. i., another excellent law, and which he says at one blow laid flat all the numerous treason at any time enacted since Edward III. "No act, deed, or offence, being by act of parliament made treason, by words or writing, ciphering, deeds, or otherwise whatsover, shall be adjudged to be treason, but only such as be declared by the said statute of the 25 Ed. III.”

It is the opinion of lord Coke, that bare words are not a sufficient overt act, or open deed, whereby to convict a person of treason, but that they are only misprision of treason. Lord Hale also says, that words, unless expressed in writing, are not regularly an overt act. But Mr Hawkins argues the contrary, and amongst other reasons for his opinion, he observes, that to charge a man with speaking treason, is unquestionably actionable, which could not be, if no words could amount to treason: also that in case of felony, he who by command or persuasion, induces another to commit felony, is an accessory in felony, so he who does the same in treason, is a principal traitor, (there being no accessories in treason, but all being principals,) and yet such person does not act, but by words. And, accordingly, it has been the constant practice since the Revolution of 1688, when a person by treasonable discourses has manifested a design to murder or depose the king, to convict him on such evidence.

To counterfeit the king's coin is high treason.


Before the passing of the Roman Catholic relief bill, in 1829, there were many offences regarding the usurped jurisdiction of the pope, made treaBy 5 Eliz. any person maintaining the authority of the see of Rome in this realm, incurred a præmunire for the first offence, and for the second the pains and penalties of high treason. Any person practising to absolve or withdraw subjects from their allegiance, as also the parties themselves so absolved or withdrawn, were all declared to be guilty of high treason. By the 13 Eliz. any person procuring or publishing a bull, or instrument from Rome, was guilty of high treason, and any one concealing the same was guilty of misprision of treason.

By 3 James I., persons perverting others, or being perverted to popery, were guilty of high treason. All Jesuits and popish priests coming into

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the realm, unless they conformed, were guilty of high treason. These laws and many others are now repealed, and a papist incurs no penalty in the exercise of his religion.

In high treason there are no accessories, all are principals; and, therefore, whatever act or consent will make a man accessory to a felony before the fact, will make him a principal in a case of high treason.

By the 31 Char. II. persons committed for high treason shall be indicted the next term, or next assize, otherwise they shall be held to bail, unless it appear to the court upon oath, that the witnesses for the king could not be produced in that time; in such case, they shall be indicted the second term or assize, or else discharged. But, by the 7 W. and M., no person shall be prosecuted for high treason, but within three years after the of fence was committed, except in the case of designing to assassinate the king's person.

Persons impeached of high treason by the house of Commons, whereby corruptions of blood shall be made, shall be admitted to make their full defence by two counsel, who shall be assigned for that purpose, in like manner as upon indictments and other prosecutions. They shall be allowed to make their defence by witnesses on oath. And they shall not be attainted but on the oath of two witnesses, either both of them to the same overt act, or one of them to one, and the other of them to another overt act of the same treason; unless they shall confess, or stand mute, or refuse to plead, or peremptorily challenge above 35 of the jury.

The horrible judgment for high treason (except in cases relating to coin,) is, that the traitor shall be carried back to the place from whence he came, and from thence be drawn to the place of execution, and be there hanged by the neck, and cut down alive, his entrails taken out, and burnt before his face, his head cut off, his body divided into four quarters, and his head and quarters disposed of at the king's pleasure. A woman convicted of treason is drawn and burnt.

In the judgment of high treason, the forfeiture of lands and goods to the king is implied, likewise the loss of dower, and the corruption of blood.

Any connexion with the exiled royal family during their lifetime was high treason, but after the extinction of that royal but unfortunate line, no attainder for treason disinherited or prejudiced any heir or other person, other than the offender during his life.

Treason can only be committed against the king; there can be none against the parliament, for the oath of allegiance is to the king alone, as the only supreme governor; he has no partners in the supremacy. If a man offends against either or both houses of parliament, he is not guilty of treason, but of a breach of privilege, and punished accordingly by imprisonment.

PETIT TREASON.-This is also defined by the famous statute of 25 Ed.

III., before quoted. "Moreover, there is another manner of treason, 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."

As before named, high treason can only be committed against the king, petit treason is therefore incurred against a subject. But no person can be convicted but on the oath of two credible witnesses, or on confession. (1. Ed. VI.) The judgment for petit treason is, that he shall be drawn to the place of execution, and there hanged by the neck till he be dead; the judgment against a woman is, that she shall be drawn to the place of execution and there burnt. The consequences of attainder, are forfeiture of lands, (to the lord of the fee,) and of goods, loss of dower, and corruption of blood. Although there cannot be accessories in high treason, yet in petit treason there may be accessaries both before and after the fact.

MISPRISION OF TREASON.-The word misprision is derived from the French word mespris, which properly signifies neglect or contempt; and therefore, misprision of treason, in legal understanding, signifies, when one knows of any treason, though neither a party in it, nor consenting to it, yet conceals it, and does not reveal it in convenient time. Every man, therefore, that knows of a treason, ought with all speed to reveal it to the king, his privy council, or other magistrate. But it appears that misprision of petit treason is not subject to the judgment of misprision of high treason, but is only punishable by fine and imprisonment, as in the case of misprision of felony.

The judgment of misprision of treason is, to be imprisoned during life, to forfeit all his goods for ever, and the profits of his lands during life. *


THE most luminous statement of the law with regard to riots, was given by lord chief justice Sir Nicholas Tindal, in a charge to the grand jury at Bristol, on 2d January, 1832, at the opening of the commission for the trial of the rioters in that city, and which is here annexed; as having been delivered solemnly from the judgment-seat, it must be considered as the law of the land.

GENTLEMEN OF THE GRAND JURY,-We are assembled on the present occasion, by virtue of the special commission of his majesty, for the purpose of inquiring into, hearing, and determining certain charges of no ordinary stamp and character, founded upon acts of tumultuous outrage,

* Burns' Justice, vol. i.

violence, and rapine, which have recently taken place in this city. I am unable from any information which has been placed before me, to assign the cause, or to trace the exact origin of these enormities you are now called upon to investigate. It appears, however, that a few hours before they were committed, a tumultuary assemblage of the people gathered itself together, with an object, and for a purpose, which no honest man, or well-wisher of the laws of his country can sufficiently reprobate,-I mean the open and avowed purpose of treating with insult and indignity, if not personal violence, a gentleman placed in a high judicial station, bearing the authority of his sovereign, in the administration of the criminal law within this city, and during part of the very time, engaged in the actual exercise of his judicial functions. It is to be collected from the depositions which I have seen, that the outrages which will form the immediate subject of your inquiry, commenced at about the time of dusk on Saturday evening, the 29th of October last, and continued with short intermission, until four o'clock on the Monday morning, when, after the riot act had been read, and the persons assembled, notwithstanding the proclamation, had refused for more than an hour to disperse themselves, the further progress of the riot was arrested, and the tumult entirely suppressed by the vigour of the military called in to the aid of the civil magistrate. It has been well said, that the use of the law consists, first, in preserving men's persons from death and violence; next, in securing to them the free enjoyment of their property; and although every simple act of violence, and each individual breach of the law, tends to counteract and destroy this its primary use and object, yet do general risings and tumultuary meetings of the people, in a more especial and particular manner produce this effect; not only removing all security both for the person and property of man, but, for the time, putting down the law itself, and daring to usurp its place. The law of England hath accordingly, in proportion to the danger which it attaches to riotous and disorderly meetings of the people, made ample provision for preventing such offences, and for the prompt and effectual suppression of them whenever they arise; and I think it may not be unsuitable to the present occasion, if I proceed to call your attention, with some degree of detail, to the various provisions of the law for carrying that purpose into effect. In the first place, by the common law, every private person may lawfully endeavour, of his own authority, and without any warrant or sanction of the magistrate, to suppress a riot by every means in his power. He may disperse, or assist in dispersing, those who are assembled; he may stay those who are engaged in it from executing their purpose; he may stop and prevent others whom he shall see coming up, from joining the rest; and not only has he the authority, but it is his bounden duty as a good subject of the king, to perform this to the utmost of his ability. If the riot be general and dangerous, he may arm himself against the evil

doers to keep the peace.

Such was the opinion of all the judges in the time of Queen Elizabeth, in a case called "The Case of Arms," (Popham's Rep. 121)—although the judges add, "that it would be more discreet for every one in such a case to attend and be assistant to the justices, sheriffs, or other ministers of the king in doing this." It would undoubtedly be more advisable so to do, for the presence and authority of the magistrate would restrain the proceeding to such extremities until the danger was sufficiently immediate, or until some felony was either committed, or could not be prevented without recourse to arms, and at all events the assistance given by men who act in subordination and concert with the civil magistrate, will be more effectual to attain the object proposed, than any efforts, however well intended, of separate and disunited individuals. But if the occasion demands immediate action, and no opportunity is given for procuring the advice or sanction of the magistrate, it is the duty of every subject to act for himself, and upon his own responsibility, in suppressing a riotous and tumultuous assembly; and he may be assured that whatever is honestly done by him in the execution of that object, will be supported and justified by the common law; and whilst I am stating the obligation imposed by the law on every subject of the realm, I wish to observe that the law acknowledges no distinction in this respect between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation, and invested with the same authority to preserve the peace of the king, as any other subject. If the one is bound to attend the call of the civil magistrate, so also is the other; if the one may interfere for that purpose, when the occasion demands it, without the requisition of the magistrate, so may the other too; if the one may employ arms for that purpose, when arms are necessary, the soldier may do the same. Undoubtedly the same exercise of discretion which requires the private subject to act in subordination to, and in aid of, the magistrate, rather than upon his own authority, before recourse is had to arms, ought to operate in a still stronger degree with a military force. But when the danger is pressing and immediate, where a felony has actually been committed, or cannot otherwise be prevented, and from the circumstances of the case, no opportunity is offered of obtaining a requisition from the proper authorities, the military subjects of the king, like his civil subjects, not only may, but are bound to do their utmost, of their own authority, to prevent the perpetration of outrage, to put down riot and tumult, and to preserve the lives and property of the people. Still further, by the common law, not only is each private subject bound to exert himself to the utmost, but every sheriff, constable, and other peace-officer is called upon to do all that in them les for the suppression of riot, and each has authority to command all other subjects of the king to assist them in that undertaking. By an early statute which is still in force, (the 13th Henry IV. c. 7.) "Any two justices,

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