2

English Sources
of the Law of
Treason

ARTICLE III, Section 3 of the United States Constitution provides:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The 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.

Accurate definition of the intent and act elements and the policies underlying their definition provides the central and most difficult problems in the law of treason. Treason is the betrayal of allegiance owed a political sovereign either because of citizenship or because of acceptance of the protection of laws. Obviously the intention is at the heart of such a crime. Is an act a distinct element of the offense, in addition to the showing of the intent to betray? Must the act be of some peculiar character, or must it be such as to furnish some evidence, or evidence beyond a reasonable doubt, of the existence of the treasonable intention? The crime is the most serious against the safety of the state; but, by the same token, the stigma it carries, and the vagueness of its reach have made it a notorious instrument of arbitrary power and political faction. This contrast poses the further question, whether in a doubtful case policy calls upon the court to extend the scope of the offense for the protection of the state, or to restrict it for the protection of the individual.

The treason clause of the United States Constitution was written, debated, and adopted by men whose ideas regarding the policy and historical implications of the law of treason were derived from English law. The very terms of Article III, Section 3 are in large part derived from the statute of 25 Edward III (1350), among whose seven categories of high treason the most important were to "compass or imagine the death of our lord the King," to "levy war against our lord the King in his realm," or to adhere to his enemies, giving them aid and comfort. The omission of any provision analogous to that against compassing the king's death, and the constitutional limitation of "treason" to the other two of the three principal branches of the Statute of Edward III, form the heart of the restrictive policy evidenced in the definition in Section 3 of Article III. Clearly, it is relevant to an understanding of the terms of that section to examine the English doctrine with which the Americans of 1787 were familiar. First importance in this undertaking should be given to the analysis of the accounts of "treason" in the great English law treatises prior to the adoption of the United States Constitution. This is both because only in the treatises do we find any careful effort to analyze the policy and the elements of the crime, and because the Americans obtained their knowledge of the English law and experience primarily from the treatises. Granting always the fundamental importance of the Statute of Edward III, other English legislative materials contribute little to explicit analysis of the crime. The case materials deserve only third rank in value; the impressive volumes of the State Trials contain a maximum of pleadings, tedious testimony and records of executions, and a minimum of helpful examination of the policy and elements of the offense. Moreover, one famous case after another proves, on close inspection, to be so interwoven with the peculiar political and religious motives and pressures of its time as to be of little value beyond furnishing cumulative evidence of the readiness with which the crime has been abused as an instrument of faction. Finally, there is little satisfactory evidence that Americans had access to, or extensive knowledge of the records of the English trials, as distinguished from their familiarity with the basic statute and the treatises.

This study, therefore, examines the accounts given in the basic English treatises of the elements of the crime of treason, and the policy which should guide application of the law in doubtful cases. The discussion is supplemented by brief consideration of 19th and 20th century texts.

(a) Early English Treatises1

Significantly, there is no word of any policy restrictive of the scope of "treason" in the brief definitions and discussions of the early books (Glanvill, Bracton, Britton, Staundford). The crime is simply set forth in positive terms, looking to the interest in the security of the king and his authority. Staundford notes that the Statute of Edward III asserted the need for resolving the uncertainties of the common law regarding the extent of the offense, but he does not feel impelled to add any special words of praise for the endeavor.2 Appropriately, the new emphasis on safeguarding the liberty of the subject first appears in Coke. His discussion is not wholly consistent in this respect,3 and in one instance especially, he avows a principle of liberal construction in favor of the king:

This compassing, intent, or imagination, though secret, is to be tryed by the peers, and to be discovered by circumstances precedent, concomitant, and subsequent, with all endeavour evermore for the safety of the King.4

This is said, however, with reference to the most vague and precautionary head of the Statute, which is pointedly omitted in the restrictive terms of the Constitution of the United States. Apart from this, the general terms of Coke's analysis are all such as to stress that the distinguishing mark of the Statute of Edward III is its limitation of the scope of the crime.

And albeit nothing can concern the King, his crown and dignity, more then Crimen laesae Majestatis, High Treason: Yet at the request of his Lords and Commons, the blessed King by authority of Parliament made the Declaration, as is above-said: and therefore, and for other excellent laws made at this Parliament, this was called Benedictum Parliamentum, as it well deserved. For except it be Magna Charta, no other Act of Parliament hath had more honour given unto it by the King, Lords spirituall and temporall and the Commons of the Realm for the time being in full Parliament, then this Act concerning Treason hath had, For by the Statute of 1 H. 4 cap. 10. reciting that where at a Parliament holden 21 R. 2 divers pains of treason were ordained by Statute, in as much as there was no man did know how to behave himself to doe, speak, or say, for doubt of such pains: It is enacted by the King, the Lords and Commons, that in no time to come any treason be judged otherwise, then it was ordained by this Statute of 25 E. 3.... [After reciting other acts to the same effect:] And all this was done in severall ages, that the faire Lillies and Roses of the Crown might flourish, and not be stained by severe and sanguinary Statutes.... 5

At the outset of his discussion, he emphasizes the importance of the clause referring the declaration of new treasons to Parliament, and subsequently he points out that this means, broadly, that the judges "shall not judge à simili, or by equity, argument, or inference of any treason," and that the statutory injunction that nothing be taken to be treason thereunder which is not "specifically" so declared, is

A happy sanctuary or place of refuge for Judges to flye unto, that no mans blood and ruine of his family do lie upon their consciences against law. And if that the construction by arguments a simili or a minori ad majus had been left to Judges, the mischiefe before this statute would have remained, viz. diversity of opinions, what ought to be adjudged treason, which this statute hath taken away by expresse words.6

He cautions, though, that "the clause ... of restraint of like cases, &c. extends onely to offences, and not to tryals, judgements, or executions"7 But this seems to refer to matters of procedure and sentence, and, in view of the general emphasis of the treatise, does not mean that the scope of the offense might in effect be extended by new definitions of the evidence which would suffice to make out a charge under one of the classic headings.8 Coke applies the doctrine of strict construction to limit the offense of adherence to enemies:

A. is out of the Realm at the time of a Rebellion within England, and one of the Rebels flie out of the Realm, whom A. knowing his treason doth aide or succour, this is no treason in A. by this branch of 25 E. 3. because the traytor is no enemy, as hereafter shall be said; and this statute is taken strictly.9

Again, since the words of the statute punished him who should bring counterfeit money "en cest roialme," it was not an offense within this clause if the counterfeit was brought from Ireland, which for some purposes is a part of the realm — "... so wary are Judges to expound this statute concerning Treason, and that in most benigne sense."10

There is nothing in Coke's discussion more explicit than the passages quoted above, to indicate that his praise of the restrictive policy evidenced by the Statute of Edward III was given with particular thought to prevention of oppressive resort to "treason" prosecutions in domestic political controversy, as distinguished from charges of dealing with external enemies. But, it will be noted that his reference to strict construction in the case of the crime of adhering to enemies points towards keeping that clause of the Act out of the sphere of home politics. And the fact is, that the "divers pains of treason ... ordained by Statute," which are cited as oppressive and threatening in their vague scope, all focussed on the struggle for power immediately between essentially English factions. This seems true even of legislation directed against the assertion of papal power. This matter is more explicitly treated in Hale, and will be noted further at that point.

The earliest books are thoroughly ambiguous as to the kind of overt act, if any, required to make out a case under the various headings of "treason." Glanvill recognizes the existence of the "crimen quod in legibus dicitur crimen laesae maiestatis, ut de nece vel seditione personae domini regis vel regni vel exercitus," and this he later described as existing "cum quis itaque de morte regis vel de seditione regni vel exercitus infamatur"11 but these definitions — though interesting for the hint of Roman influence ("laesae maiestatis") — shed no light on the types of conduct which would fit these general descriptions At only one point, in describing the steps in procedure, does he approach specifications

Ad ultimum autem accusatore proponente se vidisse vel aho modo in curia probato certissime se scivisse, ipsum accusatum machinatum fuisse vel aliquid fecisse in mortem regis vel seditionem regni vel exercitus, vel consensisse vel consilium dedisse vel auctontatem praestitisse.

At length, however, when the accuser has charged that he saw, or that, by another way proved in court, he knew for a certainty that the accused had plotted or had done something toward the death of the king [against the life of the king] or insurrection in the kingdom or in the army or had consented or given counsel or conferred authority therefor 12

This seems to put simple conspiracy or plotting of the named ends on a par with their execution, so far as the offense goes. If conspiracy is put aside, however, Glanvill seems to refer to overt acts ("vel aliquid fecisse") not as inherently reflecting evil intent, but simply as an independent element of the crime, and this seems reinforced by the fact that, as he puts it, the relevance of the "something" which was done was that it put a train of events in motion, looking toward one of the specified purposes or results ("in mortem regis vel seditionem regni vel exercitus" the use of the accusative with "in"). Thus when action is referred to as an element in the completed offense — whatever the significance of the act in a charge of conspiracy to commit the offense — Glanvill does not indicate that the action is significant as evidence of intent but as evidence of the fact of beginning execution of the intent. It is also interesting to note that at this early reference, there is the idea that contact or conference with dangerous persons presents per se a social danger.

These implications — including the suggestion of Roman ideas of the basic policy of protecting the head of the state — are reinforced in the terse definition of Bracton

Habet enim crimen laesae maiestatis sub se multas species, quarum una est ut si quis ausu temerano machinatus sit in mortem regis, vel aliquid egent vel agi procuravent ad seditionem domini regis vel exercitus sui, vel procurantibus auxihum et consilium praebuerit vel consensum, licet id. quod in voluntate habuent non perduxerit ad effectum.

For the crime of lèse majeste includes many types, one of which is, if anyone out of rash daring [by a deed of rash daring?] should plot the death of the king, or do something or cause something to be done towards the betrayal of our lord the king or his army or gives aid and counsel to those procuring these things or gives consent thereto, though he does not carry through to accomplishment what he had in intention 13

Whether or not "ausu temerano" means that an overt act was necessary in Bracton's view for the offense of compassing the king's death — Coke thought not14 — Bracton seems clearly to require overt acts for the offense denominated "seditionem domini regis vel exercitus sui," and the something which must be shown to have been done ("aliquid egent vel agi procuraverit") is treated as important not as evidence of intent, but because it puts in train a course of action leading to the forbidden result (the use of "ago" with "ad" seems significant, i. e.). The importance of the fact of action taken towards the prohibited purpose seems implied in the contrast of "machinatus sit in mortem regis" and "aliquid egerit ... ad seditionem...," and by the final contrast of the intention and the incomplete course of action.

Bntton and Fleta are of no assistance in defining the scope of the offense, though the former's definition is interesting for the sweeping principle of punishing "betrayal" which he announces and for his concentration on plotting the king's death.15 Staundford notes that at common law "cestuy qui succorda as enemyes le roy" was guilty of treason; this is probably the offense of adherence ("succurro"?) and implies an overt act as an independent element of the crime.16. His most interesting discussion concerns the offense of compassing the king's death, as set out in the Statute of Edward III, of which he comments,

Cest compassement, ou imagination, sauns reducer ceo al effect, est grand treason, come apiert. M. 19. H. 6. f. 47. & P. 13 H. 8. fo. 13. Mes intant que compassement & imagination sont secrete, & ne poient etre conus sinon per un overt fait, est requisit daver ascun chose fait, a signifier le dit compassement ou imagination. Per que ie query, si le dit compassement ou imagination uttere per parolx soit sufficient signification de ceo ou nemye ... Bracton. Semble que cy ... Britton in semblable manner.... 17

He notes that the Statute of Edward III adopts the same terms used by the early treatises regarding the offense of compassing the king's death, and so indicates his belief that the statute is to be interpreted according to the scope of the previous authorities. Coke disagreed, emphasizing the overall and explicit requirement of an overt act under that statute, though he felt that a writing might be an overt act.18 Staundford does not mention the overt act requirement of the Statute of Edward III, and in view of his broad language it is questionable whether he did not overlook it in connection with his analysis of the offense of compassing the king's death. In any event, he introduces us to an ambiguous terminology which bedevils discussion henceforth. When he says that an "overt fait" is necessary, because compassing is secret and cannot be known without such, he seems to regard the act as relevant simply as evidence of the treasonable intent; but he sums up by saying that "ascun chose fait" is necessary "a signifier" ("declare" or "show") the compassing. The overt act might "declare" the compassing, however, either in the sense of evidencing a treasonable intent, or of translating the intent into the world of action by some thing done towards its execution. There seems to be no further help in Staundford to resolve this difficulty, and his discussion is of limited usefulness in any case, because it deals only with the crime of imagining the death of the king.

Coke uses this ambiguous wording, in repeated statements that the offenses of compassing the king's death and adhering to his enemies include the element of "declaring the same by some overt deed."19 There are important passages in which he seems to regard the overt act as relevant, because and insofar as it helps prove treasonable intent. Thus, speaking of the Statute of Edward III, he states,

The composition and connexion of the words are to be observed, viz. [thereof be attainted by overt deed]. This relateth to the severall and distinct treasons before expressed, (and specially to the compassing and imagination of the death of the King, &c. for that it is secret in the heart) and therefore one of them cannot be an overt act for another. As for example: a conspiracy is had to levie warre, this (as hath been said, and so resolved) is not treason by this Act untill it be levied, therefore it is no overt act or manifest proofe of the compassing of the death of the King within this Act; for the words be (de ceo &c.) that is, of the compassing of the death. For this were to confound the severall Clauses.... 20

Thus he puts special emphasis on the overt act requirement as applied to that one of the offenses embraced by the statute the gist of which most clearly is the intent. Previously, in constructing an analytical table of the crimes defined by the act, he included in the offenses of compassing the king's death and adhering to his enemies the element of "declaring the same by some overt deed," as has been noted; but he omits this reference regarding the levying of war.21 Clearly he views an overt act as an element of the last named crime, but it would seem that he felt that the conduct which would amount to levying war so plainly, of its intrinsic character, "declared" the treasonable intent, that no special emphasis was called for in his analysis. Note also, in the passage quoted above, that if a conspiracy to levy war were treated as a sufficient overt act to establish the offense of compassing the king's death, in Coke's view its relevance would be as an "overt act or manifest proofe of the compassing."

Further, he explains his view that words will not generally make an overt act, in terms which might seem to indicate that the relevance of the overt act is to prove clearly the existence of treasonable intent:

... the wisdome of the makers of this law would not make words only to be Treason, seeing such variety amongst the witnesses are about the same, as few of them agree together. But if the same be set downe in writing by the Delinquent himselfe, this is a sufficient overt act within this statute....

In the Preamble of the statute of 1. Mar. concerning the repeale of certaine Treasons, &c. It is agreed by the whole Parliament, that lawes justly made for the preservation of the Common-wealth without extreame punishment, are more often obeyed and kept, then lawes and statutes made with great and extreame punishments; and in speciall, such lawes and statutes so made: whereby not only the ignorant and rude unlearned people, but also learned and expert people minding honesty, are oftentimes trapped and snared, yea, many times for words only, without other fact or deed done or perpetrated: therefore this Act of 25 E. 3. doth provide, that there must be an overt deed. But words without an overt deed are to be punished in another degree, as an high misprision.22

However, a close examination of these famous passages suggests that, in the first, Coke is merely saying that —

regardless whether offered to prove intent or overt act — mere spoken words are inherently too unreliable in witnesses' memories to be a just basis for establishing so high a crime. And in the approving recital of the Statute of 1 Mary, it is important to note that the objection is particularly to a case where the spoken words are the sole evidence, to prove all elements of the crime. Rather than reading this to mean that the overt act must always be such as itself evidences treasonable intent, it would seem more natural to construe the criticism as being simply that in many cases the spoken words, being offered as sole proof of the intent, were not adequate for that purpose, quite apart from their adequacy as an overt act. If spoken words are not generally a sufficient overt act, it will then be, as Coke later suggests was the general common law doctrine, simply because they generally do not represent a sufficient advance beyond the stage of thought into that of execution.23 Though the interpretation of Coke's words here set out seems a reasonable one, his marginal note to the quotation from the preamble of the Statute of 1 Mary throws the matter back into doubt, for there he warns, "Nota, this Act of 25 E. 3 saith, per overt fait, per apertum factum, and not per apertum dictum, by word or confession." Coke here created an ambiguity which continues to fog analyses of the law of treason, as may be seen, for example, in Hale.

Throughout his discussion, Coke gives examples of overt acts which, without exception, seem acts which themselves are some evidence of treasonable intent. It is not clear whether he would hold that a meeting of conspirators to plot the king's death was a sufficient overt act for that broadest of offenses.24

On the other hand, there is evidence that Coke thought of the overt act as a separate element of the offense, whose function was not to furnish more objective evidence of the treasonable intent, but to establish that the business had moved from the realm of thought into the realm of action. He does not clearly link this with a general policy of the criminal law, that men are not prosecuted for wicked thoughts alone, but the belief that, after the Statute of Edward III at least, treason was in this respect no different from other crimes seems implicit in his treatment. Thus he begins by contrasting the common law crime of compassing the king's death with the general common law offense of compassing the death of an ordinary subject. He cites the maxim "Voluntas reputabatur pro facto," endorsed by Bracton, but points out that even under this principle, to be guilty, the defendant "must declare the same [i e , his "voluntas"] by some open deed tending to the execution of his intent, or which might be cause of death" and that the crime was made out,

So as it was not a bare compassing or plotting of the death of a man, either by word, or writing, but such an overt deed as is aforesaid, to manifest the same So as if a man had compassed the death of another, and had uttered the same by words or writing, yet he should not have died for it, for there wanted an overt deed tending to the execution of his compassing 25

The examples he gives are of aggravated attempts falling short of success, but his emphasis is not that the deeds evidence the intent, but — a more objective stress — that they "tend to the execution of his intent". He then points out that the requirement of an overt act, under the Statute of Edward III, applies to all of the offenses defined therein, including compassing the king's death, and, as he has asserted that the Statute "is for the most part Declaratory of the ancient Law," it is a fair inference that he would interpret the overt act requirement now inserted in the offense of compassing the king's death in the same manner which he had interpreted that element in the general common law offense of plotting the death of a subject. The objective tendency of the act to forward a course of conduct seems the aspect which is stressed when he explains that the words "Per overt fait"

doth also strengthen the former exposition of the word [provablement] that it must be probably, by an open act, which must be manifestly proved. As if divers do conspire the death of the King, and the manner how, and thereupon provide weapons, powder, poison, assay harnesse, send letters, &c. or the like, for execution of the conspiracy. Also preparation by some overt act, to depose the King, or take the King by force, and strong hand, and to imprison him, until he hath yeelded to certain demands, this is a sufficient overt act to prove the compassing, and imagination of the death of the King for this upon the matter is to make the King a subject, and to dispoyl him of his kingly office of royall government 26

This seems also true of the statement that if a subject conspire with a foraine Prince beyond the seas to invade the Realme by open hostility, and prepare for the same by some overt act, this is a sufficient overt act for the death of the King, for by this Act of Parliament in that Case there must be an overt act 27

And the emphasis upon the objective tendency of the act to further a plan of conduct appears in his explanation of the significance of the statute of 3 Henry VII, which made it a felony to plot the king's death.

By this Act it expressly appeareth by the judgement of the whole Parliament, that besides the confederacy, compassing, conspiracy, or imagination, there must be some other overt act or deed tending thereunto, to make it treason within the statute of 25 E 3 And therefore the bare confederacy, compassing, conspiracy, or imaginations by words only, is made felony by this Act. But if the Conspirators do provide any weapon, or other thing, to accomplish their devilish intent, this and the like is an overt act to make it treason 28

So also when Coke pronounces that "a compassing or conspiracy to levy war is no Treason, for there must be a levying of war in facto,"29 he seems sharply to distinguish the overt act from the showing of intent, since his statement clearly assumes that a treasonable intent appears, and yet the offense of levying war is not made out, for lack of the overt act. And he points up the sharp distinction between intent and act as separate elements of the crime, by citing the words of a proper indictment:

For first it is alledged according to this act, Quod proditoriè compassavit, & imaginatus jult mortem & destructionem dni regis, & ipsum dom. regem interficere, &c. In the second part of the indictment is alledged the overt act, & ad illam nephandam, & proditoriam compassationem, imaginationem, & propositum suum perficiend & perimplend, and then certainly to set down the overt fact for preparation to take, and imprison the King, or any other sufficient overt act, which of necessity must be set down in the Indictment.30

Thus Lord Coke may be cited, with some conviction, to both purposes: that the significance of the overt act is that it confirms the evidence of evil intent, or that it is relevant wholly apart from evidence of intent, in order to show that the defendant's guilt had moved from the realm of thought alone into that of action. Coke's attention was apparently not directed to the problem of defining the precise function of the overt act element, and hence his words must be taken in either case with caution. However, on the whole, in view of his over-riding emphasis on the distinct quality of the overt act element under the Statute of Edward III, it seems that he does not mean to insist that it be an act which in itself is evidence of the treasonable intent.

(b) Treatises Published in the 18th Century

Hale comments frequently on the uncertain scope of "treason" at common law and during certain periods of legislative activity, notably under Richard II, and on the resultant uncertainty and insecurity of the individual. Thus, after stating the statute of 1 Henry IV, which restored the terms of the Statute of Edward III as the guide in defining the offense, he warns,

Now altho the crime of high treason is the greatest crime against faith, duty, and human society, and brings with it the greatest and most fatal dangers to the government, peace, and happiness of a kingdom, or state, and therefore is deservedly branded with the highest ignominy, and subjected to the greatest penalties, that the law can inflict; yet by these instances, and more of this kind, that might be given, it appears, 1. How necessary it was, that there should be some fixed and settled boundary for this great crime of treason, and of what great importance the statute of 25 E. 3 was, in order to that end. 2. How dangerous it is to depart from the letter of that statute, and to multiply and inhanse crimes into treason by ambiguous and general words, as accroaching of royal power, subverting of fundamental laws, and the like; and 3. How dangerous it is by construction and analogy to make treasons, where the letter of the law has not done it: for such a method admits of no limits or bounds, but runs as far as the wit and invention of accusers, and the odiousness and detestation of persons accused will carry men.31

He is clearcut, in pointing out that the policy and the terms of the Statute of Edward III limit the power of judges, praising

The great wisdom and care of the parliament to keep judges within the bounds and express limits of this act, and not to suffer them to run out upon their own opinions into constructive treasons, tho in cases, that seem to have a parity of reason (like cases of treason) but reserves them to the decision of parliament: this is a great security, as well as direction, to judges, and a great safeguard even to this sacred act itself.32

Despite these general assertions of the strength of the restrictive policy embodied in the basic Statute, Hale has little to say in specific explanation of the historic bases of that policy. His only detailed comment, however, seems to rest the policy on the abuse of "treason" in domestic factionalism:

And we need no greater instance of this multiplication of constructive treasons, than the troublesome reign of king Richard II. which, tho it were after the limitation of treasons by the statute of 25 E. 3. yet things were so carried by factions and parties in this king's reign, that this statute was little observed; but as this, or the other party prevailed, so the crimes of high treason were in a manner arbitrarily imposed and adjudged to the disadvantage of that party, that was intended to be suppressed; so that de facto that king's reign gives us as various instances of these arbitrary determinations of treasons, and the great inconveniences that arose thereby, as if indeed the statute of 25 E. 3. had not been made or in force. And tho most of those judgments and declarations were made in parliament; sometimes by the king, lords, and commons; sometimes by the lords, and afterwards affirmed and enacted, as laws; sometimes by a plenipotentiary power committed by acts of parliament to particular lords and others, yet the inconvenience, that grew thereby, and the great uncertainty that happened from the same, was exceedingly pernicious to the king and his kingdom.33

In expounding the meaning of the overt act element in the crime,34 Hale frequently uses the sort of ambiguous terminology which we have seen take its start in Staundford and Coke. Thus when he says that the overt act is necessary to "prove," or "manifest," or "declare" the compassing of the king's death or the adhering to his enemies, this might imply that the act is relevant because it helps prove the intent, and that therefore only such an act as is some evidence of the intent will satisfy this requirement of the offense.35 Like Coke, he does not, however, use even these doubtful terms regarding the levying of war.

Explaining the scope of the offense of compassing the king's death, he further notes:

Tho the conspiracy be not immediately and directly and expressly the death of the king, but the conspiracy is of something that in all probability must induce it, and the overt-act is of such a thing as must induce it; this is an overt-act to prove the compassing of the king's death....

But this states what kind of an overt act will surely satisfy the requirements of proof, and does not necessarily exclude acts less forthright than those which "must induce" the king's death.

We have seen that Coke rejected spoken words as an overt act of treason in terms which might seem to imply that this was because they were inherently insufficient evidence of the treasonable intent, thereby mingling the two basic elements of the crime. Hale, more plainly restating Coke, objects to the use of spoken words for their intrinsic unreliability as proof of any element of such offense:

Regularly words, unless they were committed to writing, are not an overt-act within this statute. Co. P. C. p. 14; and the reason given is, because they are easily subject to be mistaken, or misapplied, or misrepeated, or misunderstood by the hearers.37

But, he likewise, is not clearcut in his analysis, since for the further support of his position, he cites Pyne's Case, which both on its facts and opinion seems to turn on the finding that the spoken words, offered as the sole evidence in the case, were insufficient to make out the intent, without a ruling on their sufficiency as an overt act.38

In two respects, however, Hale's analysis of the offense of compassing the king's death seems to make clear that the overt act need not be such as is evidence of a treasonable intent, and that it may even be "indifferent" in character. Thus, after developing the thesis that spoken words are not alone enough to make out an overt act of treason, he lays down these qualifications:

(1.) That words may expound an overt-act to make good an indictment of treason of compassing the king's death, which overt-act possibly of itself may be indifferent and unapplicable to such an intent; and therefore in the indictment of treason may be joined with such an overt-act, to make the same applicable and expositive of such a compassing, as may plainly appear by many of the precedents there cited [in Pyne's case, Cro. Car. 125, q. v.].

(2.) That some words, that are expressly menacing the death or destruction of the king, are a sufficient overt-act to prove that compassing of his death, M. 9 Car. B. R. Crohagan's case in Croke [Cro. Car. 332], who being an Irish priest, 7 Car. 1 at Lisbon in Portugal used these words, "I will kill the king (innuendo dominum Carolum regem Angliae) if I may come unto him," and in Aug. 9 Caroli he came into England for the same purpose. This was proved upon his trial by two witnesses, and for that his traitorous intent and the imagination of his heart was declared by these words, it was held high treason by the course of the common law, and within the express words of the statute of 25 E. 3. and accordingly he was convicted, and had judgment of high treason; yet it is observable, that there was somewhat of an overt-act joined with it, namely, his coming into England, whereby it seems to be within the former consideration, namely, tho the coming into England was an act indifferent in itself, as to the point of treason; yet it being laid in the indictment, that he came to that purpose, and that in a great measure expounded to be so by his minatory words, the words coupled with the act of coming over make his coming over to be probably for that purpose, and accordingly applicable to that end.39

This passage might be interpreted to mean that the "indifferent" overt acts would not suffice, standing alone, without being coupled with obviously harmful words, here also regarded as in the nature of overt acts. But it seems a fairer reading, that the words are not treated as an essential part of the overt act in these cases, but only as evidence linking the overt act to the intention. Further, it is a fair inference from the foregoing quotation, and especially from the first explanation offered of Crohagan's Case, that what was really in Hale's mind in his general assertion of the insufficiency of spoken words as an overt act was a judgment that in many cases where the words were the only evidence in the case, they were insufficient qua evidence of intent, rather than qua evidence of overt act.

Secondly, Hale declares that the mere meeting of persons, with the intent of plotting the king's death, is a sufficient overt act to make out the crime of compassing that end:

If there be an assembling together to consider how they may kill the king, this assembling is an overt-act to make good an indictment of compassing the king's death. This was Arden's case [1 Anderson 104], 26 Eliz. and accordingly it was ruled Decem. 14 Caroli at Newgate in the case of Tonge and other confederates [Kelyng, 17]....

Vide Anderson's Reports Placito 154, which was the case of Arden and Somerville and others, who conspired the death of queen Elizabeth, resolved by all the justices, that a meeting together of these accomplices to consult touching the manner of effecting it was an overt-act to prove it, as well as Somerville's buying of a dagger actually to have executed it.40

The fact that both of the foregoing propositions are laid down with reference to the overt act in compassing the king's death naturally raises the question whether they are peculiar to that branch of the Statute of Edward III. The second ruling, that a mere meeting with intent to plan the effectuation of a treasonable intent is a sufficient overt act, is, at any rate according to Hale, inapplicable to the crime of levying war against the king, for — agreeing with Coke — he declares that "a bare conspiracy of consultations of persons to levy a war, and to provide weapons for that purpose; this, tho it may in some cases amount to an overt-act of compassing the king's death, yet it is not a levying of war within this clause of this statute."41 Hale gives no more explanation of this than does Coke, and seems to rest the dogma simply on the statutory terms themselves: "the act saith levy guerre."42 The crime of "adhering to the king's enemies ... giving them aid or comfort" seems stated no less bluntly; but neither Coke nor Hale raises the question whether a meeting of conspirators to plan such giving of aid or comfort would be an overt act of adherence.43 One might argue that the first offense (compassing the king's death) is defined in a term referring to thought, and the other two in terms referring to action, and that this indicates that the danger involved in the first was regarded as greater, or the offense more heinous, so that the overt act requirement is properly satisfied, in the case of the first offense, by conduct less close to accomplishment of the treasonable intention than in the cases of the other two branches of the crime. At least as applied to modern conditions, however, this seems to place too much weight on the words alone, and the proposition that the offenses of levying war and adhering to enemies present less serious perils to the security of the community than that of compassing the king's death is dubious enough in the circumstances of the present-day state to cast the burden of proof on him who urges it. The Statute of Edward III has always been treated, as it was treated in the adoption of its words in American law, as declaring broad policy for an indefinite future, and one should, therefore, be slow to narrow it to the peculiar political circumstances of medieval or Renaissance England. Moreover, so far as the logical pertinence of Hale's analysis is concerned, a proper understanding of the significance of the overt act in any of the branches of treason makes his argument applicable to all. It is fallacious to hold that any act has a character in and of itself. What it means depends on many other facts, of memory, present perception, and logical prediction, in the mind of the observer. There is, therefore, no reason to believe that in the case of levying war or adhering to enemies, a person might not be proved to have committed acts highly dangerous to the security of the community, but which, in the absence of extrinsic evidence linking them to the actor's general purpose, would seem "innocent on their face." There is, in other words, nothing peculiar to the offense of compassing the king's death which would bring it about that only there might one be presented with acts "indifferent" except when appraised in the light of accompanying words or other evidence of intent. Whether Lord Chief Justice Hale would agree to this analysis must be admitted to be conjectural, for he does not spell out his thought more directly than is indicated in the passages quoted. However, in discussing the action taken in Rot. Parl. 21 R. 2 n. 18, Hale seems to indicate quite clearly that he did not believe that there was any fundamental difference in the significance of the overt act element in the offenses of compassing the king's death and levying war against him. The Parliament had there declared:

Chescun qe compasse, et purpose la mort le roy, ou de lui deposer, ou de susrendre son homage liege, ou celuy, qe levy le people, et chivache encountre le roy a faire guerre deins son realme, et de ceo soit dument attaint, et adjugge en parlement, soit adjuggez come traytor de haut treason encountre la corone.

Hale declares of this act that

these four points of treason seem to be included within the statute of 25 E. 3 as to the matter of them ... ; but with these differences, viz.... 3. But that, wherein the principal inconvenience of this act lay, was this, that whereas the statute of 25 E. 3. required an overt-act to be laid in the indictment, and proved in evidence, this act hath no such provision, which left a great latitude, and uncertainty in point of treason, and without any open evidence, that could fall under human cognizance, subjected men to the great punishment of treason for their very thoughts, which without an overt-act to manifest them are not triable but by God alone.44

Kelyng and Hawkins give little which further illuminates the definition of the offense.45 Kelyng does add great emphasis to the doctrine that a meeting of conspirators is a sufficient overt act in compassing the king's death, by the resolutions of the judges which he reports concerning knowing attendance upon a meeting of conspirators. Thus in the consideration of the case of Tong and others, he notes:

It was resolved by all the Judges, that the meeting together of Persons, and consulting to destroy the King, was of itself an Overt Act to prove the compassing the King's Death.

It was resolved that where a Person knowing the Design does meet with them, and hear them discourse of their traiterous Designs, and say or act nothing; This is High-Treason in that Party, for it is more than a bare Concealment, which is Misprision, because it sheweth his liking, and approving of their Design; but if a Person not knowing of their Design before, come into their Company, and hear their Discourses, and say nothing, and never meet with them again at their Consultations, that Concealment is only Misprision of High-Treason. But if he after meet with them again, and hear their Consultations and then conceal it, this is High-Treason. For it sheweth a liking, and an approving of their Design [citing Sir Everard Digby's Case, 1 St. Tr. 234].46

So, also, he reports that in considering the case of the conspiracy to levy war in the North Riding of Yorkshire,

It was agreed that the bare knowledge of Treason, and the concealment of it was not High-Treason, but Misprision of Treason. But in Case any thing be proved upon Evidence, that the Party liked or approved of it, then it is High Treason; or if the Party knew of the Design, and after such Knowledge, met with the Conspirators at their Consultation; or if he went knowingly to their Consultations several Times, this is Evidence of his Approbation of the Design, and is High Treason.47

These passages are not without ambiguity, as to whether the emphasis is on the evidence as evidence of intent, or as adequate evidence, also, of an overt act; but since Kelyng notes the general, basic ruling, that a conspiratorial meeting is a sufficient overt act, it seems that the intent is to find the more borderline case to involve a sufficient overt act as well. Though the broad doctrine reported by Kelyng might be thought of dubious authority, since it originates in the period of reprisals following the Restoration, it has been accepted without such criticism by modern English authority.48

Foster gives us the most illuminating discussion of the 18th century writers on the nature of the overt act element in treason. His analysis rests on the familiar declaration that wise policy calls for careful definition of the scope of the offense, in the interest of individual security.49 Thus he makes it clear that an overt act is an essential element of the crime under each branch of the Statute of Edward III.50 But, despite his fundamentally cautious approach to the definition of the offense, he does not permit it to be wrongly narrowed by a muzzy analysis of the relation of its elements to each other. He insists that the overt act is required, not merely as cumulative evidence of the intent, but for the distinct purpose of demonstrating that the defendant had moved from the realm of thought into that of execution.

The words of the statute descriptive of the offence must be strictly pursued in every indictment for this species of treason. It must charge, that the defendant did traitorously compass and imagine &c, and then go on and charge the several overt acts as the means employed by the defendant for executing his traitorous purposes. For the compassing is considered as the treason, the overt acts as the means made use of to effectuate the intentions and imaginations of the heart: and therefore in the case of the regicides the indictment charged, that they did traitorously compass and imagine the death of the King; and the taking of his head was laid, among others, as an overt act of compassing; and the person who was supposed to have given the stroke was convicted on the same indictment.

From what hath been said it followeth, that in every indictment for this species of treason, and indeed for levying war, or adhering to the King's enemies, an overt act must be alleged and proved. For the overt act is the charge, to which the prisoner must apply his defense.51

Foster particularly deserves our gratitude for introducing the first clarity into the discussion of words and writings as overt acts. He points out that, considered as evidence of intent, mere spoken words are generally unreliable evidence, because of the likelihood that they "are often the effect of mere heat of blood"; and that, considered as evidence of anything, they are unreliable because they "are always liable to great misconstruction from the ignorance or inattention of the hearers, and too often from a motive truly criminal."52 So much is familiar. Foster pushes beyond prior analyses when he clearly points out that the objection to basing treason on unpublished writings (Peacham's and Sidney's cases), is that there the written words are being made to do double duty as evidence both of intent and overt act, and that they will generally not, of themselves, bear such weight. But, if other satisfactory evidence of intent is present, the writing, though "unpublished," suffices as an overt act:

In Mr. Sidney's case it was said, Scribere est agere. This is undoubtedly true under proper limitations, but it was not applicable to his case. Writing being a deliberate act and capable of satisfactory proof certainly may, under some circumstances with publication, be an overt act of treason: and I freely admit, that had the papers found in Mr. Sidney's closet been plainly relative to the other treasonable practices charged in the indictment, they might have been read in evidence against him, though not published.

The papers found in Lord Preston's custody, those found where Mr. Layer had lodged them, the intercepted letters of Doctor Hensey, were all read in evidence as overt acts of the treason respectively charged on them; and William Gregg's intercepted letter might, in like manner, have been read in evidence, if he had put himself upon his trial. For those papers and letters were written in prosecution of certain determinate purposes, which were all treasonable and then in contemplation of the offenders, and were plainly connected with them. But papers not capable of such connection, while they remain in the hands of the author unpublished, as Mr. Sidney's did, will not make a man a traitor. Lord Hale ... mentioneth two circumstances as concurring to make words reduced into writing overt acts of compassing the King's death, that they be published, and that they import such compassing.

True it is, that in Peacham's case a Ms sermon, in which were some treasonable passages, found in his study, never, for aught appearing, preached or published or intended to be so, was thought to bring him within this branch of the statute, and accordingly he was found guilty, but not executed For whatever rule the court of King's Bench, where he was tried, might lay down, "many of the judges, saith Croke, were of opinion, that it was not treason" This case therefore weigheth very little, and no great regard hath been paid to it ever since 53

The reference in the second paragraph of this quotation, to Hale, introduces the familiar confusion, as to whether the overt act must evidence the intent, but in the context of Foster's analysis, it seems a fair inference that he here uses Hale's words — whether rightly or wrongly — to mean that the overt act must be adequately related, by evidence, to the evidence of the plan or design into which the act fits This same lingering confusion in terminology appears when Foster, referring now to mere spoken words, says, after detailing the reasons already noted as to their general unreliability as evidence,

And therefore I choose to adhere to the rule which hath been laid down on more occasions than one since the revolution, that loose words, not relative to any act or design, are not overt acts of treason But words of advice or persuasion, and all consultations for the traiterous purposes treated of in this chapter are certainly so They are uttered in contemplation of some traiterous purpose actually on foot or intended, and in prosecution of it. 54

If the thesis here advanced as to Foster's basic line of analysis is correct, he should more properly say that in the case put, the "loose words" are not adequate evidence of intention, rather than that they are not sufficient overt acts, for in the same passage, it will be seen that he reiterates that mere spoken words are a sufficient overt act when linked to other satisfactory evidence of a treasonable design into whose execution they fit That this is a reasonable interpretation of Foster is supported by his comments on Crohagan's Case, in which he plainly insists that one must not confuse the appraisal of the adequacy of words as evidence of intent with their sufficiency as an overt act words connected with facts, or expressive of the intention of the speaker, may, under some circumstances, bring him within the statute of treasons Crohagan being beyond sea said, 'I will kill the King of England, if I can come at him," and the indictment, after setting forth the words, charged, that he came into England for that purpose.

In this case the words, though laid in the indictment as one of the overt acts, could not be so properly deemed an overt act of treason, as an evidence against the man out of his own mouth, QUO ANIMO he came into England. The traiterous intention, proved by his words, converted an action, innocent in itself, into an overt act of treason.

Foster criticizes Kelyng for stating this case as involving words alone as an overt act. "It is true, the words were laid as an overt act, but they were not the only overt act laid, for the indictment farther charged, that the man came into England for the purpose of killing the King" And he continues his criticism of Kelyng in terms which clearly establish his distinction between the evidence of intent and of an overt act

The author in the same page endeavoureth to put writings and words upon one and the same foot, "Words, saith he, set down in writing are an overt act to prove the compassing the King's death, and words spoken are the same thing, if they be proved, and words are the natural way for a man whereby to express the imagination of the heart."

His Lordship reasoneth in this passage as if he considered the overt acts, required by the statute, merely as matters of evidence, tending to discover the imaginations of the heart. Overt acts undoubtedly do discover the man's intentions; but, I conceive, they are not to be considered merely as evidence, but as the means made use of to effectuate the purposes of the heart. With regard to homicide, while the rule voluntas pro facto prevailed, the overt acts of compassing were so considered. In the cases cited by Coke there were plain flagitious attempts upon the lives of the parties marked out for destruction: and though in the case of the King overt acts of less malignity, and having a more remote tendency to his destruction, are with great propriety, deemed treasonable; yet still they are considered as means to effectuate, not barely as evidence of the treasonable purpose. Upon this principle words of advice or encouragement, and, above all, consultations for destroying the King, very properly come under the notion of means made use of for that purpose. But loose words not relative to facts are, at the worst, no more than bare indications of the malignity of the heart.55

It follows that Foster has no difficulty in contemplating that actions harmless on their face may yet be sufficient overt acts to make out the offense, when linked to adequate evidence of the treasonable design into which they fit. This appears from his reference in the quotation above to Crohagan's coming into England as "an action, innocent in itself," but converted into treason by the evidence of intention. It appears also in his repeated statement that the mere fact of a meeting of several persons, when coupled with evidence that their intention in meeting was to plan the king's death, is a sufficient overt act; and in his approval of the doctrine that attendance at a meeting with knowledge of its treasonable purpose, or return to a meeting after knowledge is gained of its treasonable purpose, is treason and not merely misprision of treason.56

Foster's discussion raises the same question noted in connection with Hale, whether, since his analysis refers almost entirely to problems under that branch of the Statute of Edward III dealing with compassing the king's death, it extends as well to the crimes of levying war or adhering to enemies. There is material in Foster's discussion of the first offense which may reasonably be construed to mean that he viewed it as of specially broad scope, perhaps validating as overt acts conduct more remote from the intended object than in the other crimes:

The antient writers, in treating of felonious homicide, considered the felonious intention manifested by plain facts, not by bare words of any kind, in the same light in point of guilt, as homicide itself. The rule was voluntas reputatur pro facto: and while this rule prevailed, the nature of the offence was expressed by the term compassing the death.

This rule hath been long laid aside as too rigorous in the case of common persons. But in the case of the King, Queen, and Prince, the statute of treasons hath, with great propriety, retained it in its full extent and rigour: and in describing the offence hath likewise retained the antient mode of expression....

The principle upon which this is founded is too obvious to need much enlargement. The King is considered as the head of the body-politick, and the members of that body are considered as united and kept together by a political union with him and with each other. His life cannot, in the ordinary course of things, be taken away by treasonable practices without involving a whole nation in blood and confusion; consequently every stroke levelled at his person is, in the ordinary course of things, levelled at the publick tranquility. The law therefore tendereth the safety of the King with an anxious concern, and, if I may use the expression, with a concern bordering upon jealousy. It considereth the wicked imaginations of the heart in the same degree of guilt as if carried into actual execution, from the moment measures appear to have been taken to render them effectual: and therefore, if conspirators meet and consult how to kill the King, though they do not fall upon any scheme for that purpose, this is an overt act of compassing his death, and so are all means made use of, be it advice, persuasion or command, to incite or incourage others to commit the fact, or to join in the attempt, and every person who but assenteth to any overtures for that purpose will be involved in the same guilt 57

It is in this connection that he first mentions Lord Preston's Case

Offences which are not so personal, as those already mentioned, have been with great propriety brought within the same rule, as having a tendency, though not so immediate, to the same fatal end, and therefore the entering into measures in concert with foreigners and others in order to an invasion of the kingdom, or going into a foreign country, or even purposing to go thither to that end and taking any steps in order thereto, — these offences are overt acts of compassing the King's death 58

However, his approval of the scope of the ruling there is given in terms of implying that he is fully ready to see the same liberality applied to traffic with an external enemy, whenever it can be brought under another branch of the statute

The offence of inciting foreigners to invade the kingdom is a treason of signal enormity In the lowest estimation of things and in all possible events, it is an attempt, on the part of the offender, to render his country the seat of blood and desolation, and yet, unless the powers so incited happen to be actually at war with us at the time of such incitement, the offence will not fall within any branch of the statute of treasons, except that of compassing the Kings death and therefore, since it hath a manifest tendency to endanger the person of the King, it hath, in strict conformity to the statute, and to every principle of substantial political justice, been brought within that species of treason of compassing the King's death, ne quid detnmenti respublica capiat 59

In the light of this comment, it is impossible to think that Foster would hold that the same action held a sufficient overt act of compassing the king's death, in Lord Preston's Case, was not equally good to make out the offense of adherence to the king's enemies, given the other requisite circumstances. This is made clear by his adducing the indictment in that case, with approval, as an example of the fact that, contrary to Coke's mechanical logic, an offense falling under one branch of the statute may be deemed an overt act of a different type of treason in Lord Preston's case, before cited, he and the other gentlemen were indicted upon both branches of the statute, compassing the death, and adhering, and the composing, procuring, and secreting the treasonable papers, their taking boat to go on board the smack, and carrying the papers with them in order to be made use of in France for the treasonable purposes charged in the indictment, — these facts were all laid as overt acts of both species of treason 60

That Foster would not require a stricter showing of an overt act in the crimes of levying war or adherence to enemies than in that of compassing the king's death, is further indicated by his strong approval of the doctrine that the former offenses, as much as the last, are made out, where it is attempted to send supplies or information to rebels or enemies, though the money or intelligence should happen to be intercepted for the party in sending did all he could, the treason was complete on his part, though it had not the effect he intended [citing cases]

The cases cited did not in truth turn singly upon rule here laid down, though I think the rule may very well be supported

For Gregg was indicted for compassing the death of the Queen, and also for adhering to her enemies; and Hensey's indictment was in the same form, and so was Lord Preston's ... ; and the writing and sending the letters of intelligence, which, in the cases of Gregg and Hensey, were stopped at the post-office, was laid as an overt act of both the species of treason: so that admitting for argument's sake, which is by no means admitted, that it was not an overt act of adhering, since the letters never came to the enemy's hands and consequently no aid or comfort was actually given, yet the bare writing and sending them to the post-office, in order to be delivered to the enemy, was undoubtedly an overt act of the other species of treason. In Gregg's case the judges did resolve, that it was an overt act of both the species of treason charged on him; and in Hensey's the court adopted that opinion cited it with approbation.61

As was suggested in the discussion of the same point in Hale, it would seem a difficult argument to maintain, that, at least in the case of trafficking with enemies in time of war, the safety of the state demanded less broad definition of the overt act in the case of adherence to enemies than in that of compassing the king's death. There is nothing in Foster's chapter on levying war or adhering to enemies which suggests a policy of more closely limiting the scope of those offenses, except for his evident caution regarding the broad extension of the concept of constructive levying of war as a means to proceed against purely domestic disturbances.

However, the specific issue, whether a meeting with intention to plan treason, is a sufficient overt act of levying war or adhering to enemies, is not clearly resolved in Foster. He does not discuss the doctrine of previous writers, that a conspiracy to levy war is not a sufficient overt act to establish that particular offense, though he does declare it to be a sufficient overt act in compassing the king's death. However, developing a brief reference in Hale, Foster states a rule regarding the trial of accessories in treason which may imply that a meeting is not an adequate overt act to establish the crimes of levying war or adhering to enemies. Though in treason all are principals, as concerns the degree of guilt and of punishment, he argues that, except where the charge is compassing the king's death, one accused of advising or encouraging the commission of another of the treasons should be tried only after the principal actor:

For instance, A. adviseth B. to counterfeit the King's coin or seals, or indeed to commit any of the offences declared treason by the 25 Edw. III, and furnisheth him with means for that purpose: (that species of treason which in judgement of law falleth within the clause of compassing the death of the King, Queen, or Prince always excepted:) if B., in consequence of this advice and encouragement, doth the fact, A. is a principal in the treason; for such advice and assistance in the case of felony would have made him an accessary before the fact; and in high treason there are no accessaries, all are principals. But if B. forbeareth to commit the fact, to which he is incited, A. cannot be a traitor merely on account of this advice and encouragement, though his behavior hath been highly criminal; for bare advice or incitement, how wicked soever, unless in the cases already excepted, will not bring a man within the statute, where no treason hath been commited in consequence of it....

... with regard to every instance of incitement, approbation, or previous abetment in that species of treason which falleth under the branch of the statute touching the compassing of the death of the King, Queen, or Prince, every such treason is in it's own nature, independently of all other circumstances or events, a complete overt-act of compassing; though the fact, originally in the contemplation of the parties, should never be affected, nor so much as attempted....

Blackstone is disappointing in his analysis of the nature of the overt act in treason, and gives us nothing but summary restatements of the authorities which we have already examined. In view of the influence of his work in America, however, it is worth while to notice the points which he particularly makes. The desirability of a policy restrictive of the scope of the offense is briefly stated in familiar terms, with the addition of a quotation from Montesquieu, which subsequently also turns up in James Wilson's law lectures in Philadelphia in 1790.63 An overt act must be shown under each branch of the Statute of Edward III.64 There is no satisfactory analysis of the distinction between the evidence of intent and that of the overt act, the statement of the problem being put with an ambiguity which we have seen begin with Staundford:

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. 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....65

Likewise ambiguous is his explanation that "words spoken amount only to a high misdemeanor, and no treason," in which he mingles criticism of their unreliability as evidence in general, and as evidence of intent in particular, with the usual distinction that "scribere est agere."66 There is, at any rate, nothing in Blackstone clear enough to cast material doubt on the analysis which we have seen in Foster. And Blackstone goes so far toward recognizing the distinction between the overt act and the evidence of intent, as to approve the rulings that a mere meeting is a sufficient overt act, where there is evidence of the intent therein to plot the king's death; and that the mere fact of attendance at a meeting known to be treasonable, or the fact of return to a meeting once such knowledge has been gained, make out treason.67

(c) Treatises Published in the 19th and 20th Centuries68

For all practical purposes, detailed analytical treatment of the law of treason has not interested writers of standard texts since the 18th century; and we have only meager evaluations of the issues of policy involved even from the historians. This is a natural reflection of a period of great political stability, and the Victorian confidence in an ordered world, in which civilization was identified with western Parliamentary government, speaks with naive assurance in Sir James Fitzjames Stephen's apology for the extremes of 16th and 17th century "treasons":

All these acts were either temporary, or have in one way or another long since expired, and they exercised little or no permanent influence on our law. I have referred to them so fully partly on account of their historical interest, partly because they illustrate in a striking manner the nature of one class of political offences. Convulsions and revolutions have occurred in the history of every nation. Each party in turn, and in particular every successful party, is from the nature of the case obliged to treat the prosecution by their antagonists of the political views and objects which they have at heart, and even in some cases the open avowal of those views, as crimes of the highest nature. It seems to me that such legislation can be fairly criticized only by considering two things, namely, first, the substantial merits of the quarrel, and secondly, the efficiency and approach to necessity of the means employed for the attainment of the end proposed. The Reformation and the great political revolutions which have followed it were the stormy periods in human history, and the legislation by which different parties have done their best to maintain their respective views in their own dominions, are like orders given by a military commander in time of war. To criticise them upon the false supposition that they were intended to last for an indefinite time, and to apply to the normal state of society, is to misunderstand them pedantically.69

The 19th century historians introduce a desirable realism into the discussion of the policy bases of the Statute of Edward III, when they point out that the Parliament's wish to limit the definition of "treason" seems to have stemmed rather from the urge to limit the occasions on which land would forfeit directly and finally to the King, than from any notion of preserving political liberties.70 But, while noting the politically liberal tradition which became attached to the Statute of Edward III, the typical 19th century discussion does not find it necessary to spend upon this theme the eloquence of great conviction. The alert vigilance of the Philadelphia convention of 1787 seems to have little counterpart in this succeeding period. The historians do, however, focus on the field of domestic politics as the area in which the restrictive policy of the Statute of Edward III has its modern importance.71 But they place equal stress on the importance of protecting the existence of the state, and in this view find the terms of the Statute of Edward III to be "worded too narrowly, if it is to be construed literally."72

The post-18th century writers add nothing to clarify the analysis of the overt act element of the crime. There is recognition that the overt act is a separate element in the offense; indeed, this is so plainly established, in net, by the earlier treatises that it could scarcely be subjected to open question at this date.73 But the familiar ambiguous language, describing the function of the overt act as being to "prove," "manifest," "declare" the treason, is scattered through all of these works; and some of them contain references which would suggest that, at least in borderline cases, the overt act must be some evidence of treasonable intent.74 It is also, however, a fair summary of the evidence to say that this latter theory never emerges beyond the stage of innuendo or implication, in the post-18th century writings. And there is recognition that, at least under the charge of compassing the king's death, conduct indifferent on its face, notably mere meetings, may be a sufficient overt act, when linked to proper evidence of treasonable intent. The only references to ambiguous or indifferent conduct as overt acts come under this head of compassing the king's death, and though the writers do not attempt to spin any very explicit theory of the special breadth of this charge, it is quite clear that they all regard it as the broadest category of treason. Holdsworth comes closest to open disapproval, on policy grounds, of the idea that "harmless" conduct may suffice for the overt act element, and he implies emphasis on the fact that the broadest cases have been under the charge of compassing the king's death. This seems the undertone of his comments on Crohagan's Case:

... the court seems to have laid some stress upon the facts that the words were accompanied by the overt act of coming to England, and that he had used scornful words when arrested; and this is the manner in which the case was explained and justified by later lawyers. It followed that words could give a treasonable colour to an otherwise innocent overt act. It is, therefore, not suprising that, in 1660, the judges showed a tendency to minimize the importance of the difference between written and spoken words.... 75

This underlying unfriendly note appears also in his comments on Lord Preston's Case:

But, except in these two cases [spoken or unpublished written words not linked to a treasonable design], the seventeenth-century decisions, extending the constructive interpretation of this clause, were adopted, and even carried further, after the Revolution. And, here again, the extension was probably inevitable. If a conspiracy to levy war, and the publication of a writing advocating the deposition of the king, or merely arguing that it is lawful to depose him, are overt acts which can be given in evidence to prove the compassing of his death, it will be difficult to draw the line at these acts. It will be difficult to rule out any acts done in preparation for any other act, which, if accomplished, will be an overt act. That no attempt was made to draw the line is clear from the case of Lord Preston.

Quoting Foster's summary, that "Every step taken for those purposes was an overt act," he further comments:

The last sentence contains the gist of the matter. It comes to this — every act, however remotely connected with an overt act of compassing the king's death, is itself an overt act. As the future Lord Eldon contended, when, as attorney-general, he was prosecuting Hardy in 1794, any act which showed that the person doing it intended "to put the king in circumstances in which, according to the ordinary experience of mankind, his life would be in danger," might be given in evidence as an overt act of compassing his death. It followed that this clause of the statute could be made to cover the ground covered both by the clause against levying war against the king, and by the clause against adhering to his enemies.76

These remarks should be compared with the same author's emphasis on the basically broader character of the statutory terms regarding the offense of compassing the king's death:

Even in the mediaeval period, the judges had seen that the fact that the gist of the offence was an intention to kill the king, could be used to extend its scope; for they had held that the mere speaking of words might be an overt act which evidenced such an intention. They had seen as clearly as their successors that such an intention can be proved only by overt acts, "for the thought of man is not triable"; and that the statute could be extended by inferring an intention to kill from overt acts which were only remotely connected, if they were connected at all, with a formed intention to kill the king....

... the fact that it was the intention to kill the king, and not his murder, which was made treason, was the main reason why this clause could be so extensively construed....77

To fill out the picture, it may be worth noting that, referring to the crime of adherence to the king's enemies, Holdsworth points out that this clause "has not been extended by construction in the same way as the first two clauses."78 He makes no argument, however, to show that there are policy considerations supporting this divergence in the history of the various branches of the Statute of Edward III. Archbold does indicate a difference in scope between the crime of adherence to enemies and that of compassing the king's death, when he asserts that a conspiracy to adhere is not treason under that branch of the statute any more than is a conspiracy to levy war under the levying provision. But he cites no direct authority for his assertion.79 The specially broad scope of the crime of compassing is stressed to some extent in East's development of Foster's argument that under that heading it is not necessary to postpone the trial of an aider and abetter until the conviction of the principal actors, since advising the king's death is itself the main offense.80 It is only from such unsatisfactory scraps that one can weave any theory of these writers on the nature of the overt act element, however.

(d) Writers on the Constitution81

It is probably significant of a felt connection with fundamental policies in the conduct of politics that most of the post-18th century writers on the English constitution bring the law of treason into their discussions. The majority of these commentators are laymen, and in all of these works the treatment of the elements of the crime merely derives from authorities already examined, and casts little additional light thereon. But, it is worth noting, as evidence of a prevailing climate of opinion, that these books firmly entrench the notion of the Statute of Edward III as a desirable delimitation of a dangerously vague field,82 and that with striking uniformity they emphasize the danger of abuse of broad categories of "treason" in the arena of domestic politics.83 As a concrete expression of this general attitude, there appears a general, if ill-defined, condemnation of "constructive" treasons; and it is especially interesting to see that Lord Preston's Case, in its rulings on the sufficiency of the overt acts, is cited as the extreme point of extension of construction — representing "the fictitious interpretation of the crime of compassing."84 Hallam alone, however, expressly insists on linking the overt act to the showing of intent.85

Although the texts are by no means wholly consistent, some reasonably definite conclusions appear from this survey. Beginning with Coke — in the days of the mounting clash of Crown and Parliament — the English jurists stress the wisdom of restricting the scope of "treason" in doubtful cases. This policy perhaps seems to require less emphatic assertion from writers living in the confidently stable period at the close of the 19th and the opening of the 20th centuries; but it is, nevertheless, an impressive element of continuity in the general treatment of the subject up to the present time. Intent and act are, on the whole, seen as distinct elements of the crime. Frequent ambiguous references imply that the act must, however, be of such a character as to "manifest" the treason: how often this is meant to require that the act be some evidence, or complete evidence, of the treasonable intent, is not clear. The most satisfactorily explicit analyses regard the act element as fulfilling the same function in this as in other crimes: to set ultimate boundaries to the abuse of criminal prosecutions, by insuring that men be not charged or convicted for their thoughts alone, but only on the basis of an evil intent which by some act has been translated into the world of deeds.

At the current Term, in Cramer v. United States, the Supreme Court of the United States for the first time reviewed a conviction of treason.86 In a lengthy survey of the historic roots of the treason clause of the Constitution, the Court follows the current of prior authority in finding basic relevance in the English authority stemming from the Statute of Edward III.87 The Cramer opinion disclaims ability to make "an independent judgment as to the inward meaning of terms used in a six-century-old-statute, written in a form of Norman French that had become obsolete long before our Revolution," and finds the practical meaning of English doctrine in the decisions and in the commentators.88 Dismissing the few English cases on adherence to the enemy as too entangled with accusations of compassing the king's death to be of certain relevance to American policy, the majority opinion in effect treats the commentaries as the principal source of the law's rationale.89 From these sources it recognizes the deep historic roots of the general policy restrictive of the scope of the crime. Nevertheless, it concludes that because English law has retained that branch of the offense punishing the compassing the death of the king, even post-17th century English doctrine must be deemed not sufficiently limited to be regarded as similar to the law of the United States Constitution.90 But, as was seen especially in Foster's acute analysis, the English authorities have apparently felt that the policy underlying the crime of adherence to the enemy in some respects calls for as broad an interpretation of the intent and act elements of "treason" as that taken under the head of compassing.91 Thus, if the majority means to hold, as apparently it does, that a completed benefit must be shown to have been conferred on the enemy, it does so only by failing to come to grips with the policy indicated by the historic material. Likewise, by ruling that the testimony of two witnesses to a "commonplace" overt act is insufficient, the majority, though disclaiming to do so, seems in practice to insist that the overt act be such as evidences treasonable intent. The opinion rightly does not seek to support such a result by any analogy from English doctrine, and notes the ambiguity inherent in statements that the act must "manifest" the treason. But it does not seem to give fair weight to the persuasive effect of the English material in pointing to the contrary result, that the act need be only such as clearly shows a translation of thought into action. The dissenting Justices found this analogous material convincing.92

The English commentaries undertake to implement the general restrictive policy adopted toward the crime of treason particularly by trying to set defined limits to the scope of treasonable intent, and by insisting on the showing of an overt act as a protection against persecution for thought or belief, or peaceful political activity. But after due attention is given to this dominant current of the English treatises, it must be recognized that they still treat the crime as an important weapon for defense of the security of the state. Respect for the wisdom which they distilled from periods of great tension in England might well recommend caution in going beyond historic evidence to extend the traditional policy restrictive of the scope of the offense.


NOTES

1 The following are the treatises referred to in sections (a) and (b), (in chronological order).

Glanvill, De Legibus et Consuetudinibus Regni Angliae (c. 1187-1189) (1) edited by George E Woodbine (New Haven, 1932), (2) translation by John Beames (Washington, 1900).

Bracton, De Legibus et Consuetudinibus Angliae (c. 1250-1258) (1) edited by George E Woodbine (4 vol. New Haven, 1932 ff. ), (2) translation by Sir Travers Twiss (6 vol. London, 1879).

Fleta (c. 1290) (London, 1647).

Bntton (c. 1290), (Nichols, ed. 2 vol. Oxford, 1865).

Fortescue, De Laudibus Legum Angliae (c. 1470) (Chrimes, ed. Cambridge 1942).

Staundford, Les Plees del Corone (1560) (London, 1607).

Coke, Institutes of the Laws of England, Third Part (5th ed. London, 1671).

Hale, History of the Pleas of the Crown (2 vol. Emlyn, ed. London, 1736-1739) (All citations herein are to vol. 1.).

Kelyng A Report of Divers Cases in Pleas of the Crown, Adjudged and Determined in the Reign of the late King Charles II, etc Collected by Sir John Kelyng, Knt (London, 1708) (3d ed. , London, 1873).

Hawkins, A Treatise of the Pleas of the Crown or A System of the Principal Matters relating to that subject, digested under proper heads (1716) (7th ed. 4 vol. London, 1795).

Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746 in the County of Surry, and of other Crown Cases (1762) (3d ed. London, 1792).

Blackstone, Commentaries on the Laws of England (4 vol. Oxford, 1769) (All citations herein are to volume 4). 2. Staundford, Lib. 1, Cap 2, 1-0.

3 Note his emphasis on the declaratory aspect of the Statute, and his unquestioning acceptance of the doctrine that in treason all are principals Coke, 1 (n), 9, 16, 138.

4 Id , 6 This comment is the more striking, because it is made after Coke had emphasized the provision retaining in Parliament the authority to declare new treasons.

5 Id., 2-3 Note that James Wilson, as defense counsel in the Pennsylvania treason trials of 1778, referred to this designation of the "benedictum Parliamentum" 7 Pennsylvania Archives (Hazard, ed. Philadelphia, 1853) 51 Compare Coke's praise and emphasis on the restrictive character of the Statute of 1 Mar. , id, 23.

6 Id , 21, 22.

7 Id., 15 Compare 21. "And note this branch extendeth (as hath been said) to the Offence, viz. treason, and not to tryall, judgement, or execution."

8 Thus the remark quoted in the text is made in connection with his pointing out that standing mute or giving a confession may yet be a basis for conviction under the Statute And compare his emphasis that conviction must be "upon direct and manifest proof, not upon conjecturall presumptions, or inferences, or straines of wit" in view of the Statute's requirement that defendant be "provablement" attained Id 12, 21.

9 Id., 11.

10 Id., 18, cf. 4.

11 Lib. 1, cap. 2 (Woodbine, 42, Beames, 2), Lib. 14, cap. 1 (Woodbine, 174, Beames, 278).

12 Ibid. (Woodbine, 174-175, Beames, 281 ) (Present author's translation.).

13 F. 118b (2 Woodbine 334, 2 Twiss 259) "Seditio" is often used in this period interchangeably with "seductio" Though, in its context, the word may be more ambiguous in Glanvill, in Bracton it seems a fair inference that it does not mean "sedition" in the phrase "seditionem domini regis," and that hence it does not mean this regarding the army Compare 2 Pollock and Maitland, History of English Law (2d ed. Cambridge, 1923) 503, n. 2. "We believe that in these passages [Glanvill and Bracton] the best rendering for seditio is, not sedition, but betrayal." Translation in text is by the present author.

Professor George E. Woodbine has given his opinion regarding Bracton's use of "consilium" in this passage in a letter of August 20, 1944, as follows "In the passage from Bracton (f. 118b)... , I would not regard 'comfort' an adequate translation of consilium 'Counsel,' in its usual sense, is apparently what Bracton had in mind. To Bracton auxilium et consilium would be a matter of fact and (unlike our technical 'aid and comfort') nontechnical expression He clearly had in mind the case of the man who stays in the background and gives advice to the one actively engaged in the plotting I take it that the giving of this advice is with obvious treacherous intent If the plotter to whom the advice is given is regarded as the 'enemy,' consilium should certainly be construed to cover the fact of contact with the enemy."

14 Coke, 6 Foster, 205, would take it not adverbially, regarding the quality of the intent, but as referring to an overt act.

15 See Bntton, Liv. 1, Chapitre IX (1 Nichols, 40). "Tresun est en chescun damage qe hom fet a escient ou procure de fere a cely a qi horn se fet ami. Graunt tresoun est a compasser nostre mort, ou de nous deshenter de noster reaume, ou de fauser noster seal, ou de countrefere nostre monee ou de retoundre...." Cf. id., Liv. 1, Chapitre XXIII (1 Nichols, 99). "Et cum il vendrunt en jugement, si face le encusour soen apel pur nous en ceste forme par acun serjaunt Johan, qi ci est, apele Peres, qi iloeqes est, de ceo qe, com il fu en certeyn leu a tel certeyn jour a tel an, la oy mesmes cestui John purparler tele mort, ou tiel treysoun par entre cestui Peres et un autre, tel par noun, et par tieles alliaunces...." Nichols translates this as, "And when they appear for trial, let the accuser make his appeal for us by some serjeant in this manner 'John who is here appeals Peter who is there of this, that being in such a place on such a day and year, the same John there heard such a death or such a treason contrived between the same Peter and another, such an one by name, and by such confederacies," and that John is now ready to prove by his body in any manner the Court shall award that this is the truth See Fleta, Lib. 1, Cap. 21 Cf. The Mirrour of Justices (Robinson, ed. Washington, 1903) 39, 91, see 2 Pollock and Maitland, op. cit. supra, note 13, p. 478, n. 1.

16 Staundford, Lib. 1, Cap 2, 1-S.

17 Id., 2-H Fortescue has no discussion of the definition of the crime.

18 Coke, 14.

19 Id., 3, 4, 6, 8.

20 Id., 14.

21 Id., 3.

22 Id., 14.

23 Coke, 5 The marginal note on the same page comments, "Sed haec voluntas non mtellecta fuit de voluntate nudis verbis, aut scnptis propalata, sed mundo manifestata fuit per apertum factum, Id est, cum quis dederat operam, quantum in ipso fuit, ad occidenda, & sic de similibus." This seems to involve the ambiguity already noted in the use of the word "declare."

24 Coke does not indicate that of his own knowledge he knew of Arden's case (1583-4), referred to by Hale (vol. 1, p. 119), the case was apparently first reported after his death, in 1 Anderson 104 (1664) See note 39, infra In the passages cited in notes 25, 26 and 27, infra, it will be noted that his references to persons "conspiring" all include mention of some further overt act But his assertion that a conspiracy to levy war could not be an overt act of compassing the king's death (note 20, supra) seems to rest on a mechanical view of the separateness of the statutory definitions, and not on the view that the "conspiring" was not otherwise a sufficient overt act Quaere, whether the sending of letters (referred to in the passage quoted at note 25, infra), might not involve ambiguous conduct.

25 Coke, 5.

26 Id., 12 Note, however, the ambiguous use of the word "prove," in the last sentence of the quotation.

27 Id., 14.

28 Id., 38.

29 Id., 9.

30 Id., 12.

31 1 Hale 86 Note that Hale's language is such that it might be interpreted to caution merely against expanding the scope of treason by adding new substantive definitions, and not to embrace the same result when reached by more "liberal" construction of the familiar definitions or of the evidence requisite to satisfy them But this interpretation seems too narrow, especially in view of the last sentence of the quotation See also, id., 82, 132, 151, 157, 293.

32 Id., 259.

33 Id., 83 Compare his strong criticism of the ruling of the judges, Rot Parl 11 R 2 , that the king could be said to be treasonably "compelled" when pressure was put on him only by the familiar political means of withholding supplies, or by persuasion or strong petition Id., 109-110, cf. 267.

34 See id., 121. "the overt-act is an essential part of the indictment."

35 See e.g., passage quoted at note 43, infra, also, 91, 92 , 107, 108, 110, 149. 151, 167.

36 Id., 109.

37 Id., 111-112 The notes added by Hale's first editor, Emlyn, are much more clear on this point, and interesting as reflecting an early 18th century understanding of the nature of the requisite overt act In note (k), p. 111, thus Emlyn comments that even if certain passages cited by Staundford from Bracton and Britton could be deemed to declare spoken words sufficient overt acts at common law, yet it does not follow, that they would be so by the statute of 25 E 3 which expressly requires the proof of an overt-act, and consequently disallows the evidence of bare words, for words and acts are contra-distinguished from each other See Co. P. C. 14 in margine. The preamble of 1 Mariae, cap. 1, sess. 1 makes it matter of complaint, that many had for words only suffered shameful death. And in note (1), p. 112, Emlyn adds to Hale's explanation of the unreliable quality of testimony regarding spoken words, the comment, "This is one but not the only reason, for another reason was, because men in a passion or heat might say many things, which they never designed to do, the law therefore required, that in a case of so nice a nature, where the very intention was so highly penal, the reality of that intention should be made evident by the doing some act in prosecution thereof." This comment finds evidence of spoken words alone to be insufficient for either of the two purposes the evidence is made to bear there is deemed insufficient evidence of intent, but also there is not thought to be a sufficient step in execution Cf. note (y), p. 116, note (b), p. 117.

38 Cro Car 125 The sole evidence in this case was the speaking of words reflecting upon the ductability and intelligence of the king The report states ' Upon consideration of the precedents of the statutes of treason it was resolved by the seven judges there named, and so certified to his majesty, that the speaking of the words there mentioned, tho they were as wicked as might be, were not treason, for they resolved that, unless it were by some particular statute, no words will be treason, for there is no treason at this day but by the statute of 25 E 3 for imagining the death of the king, &c. and the indictment must be framed upon one of the points in that statute, and the words spoken there can be but evidence to discover the corrupt heart of him that spake them, but of themselves they are not treason, neither can any indictment be framed upon them.'

39 Id., 115-116.

40 Id., 119, 122.

41 Id., 131, cf. 135, 144, 148.

42 Id., 130 Compare Coke, 10, where he explains that though 13 Eliz. cap. 1 declared a conspiracy to levy war to be treason. "It was resolved by all the Justices, that it was no treason within the statute of 25 E 3 as hath been said The words in this law are [levie guerre ] An actuall Rebellion or Insurrection is a levying of war within this Act, and by the name of levying war is to be expressed in the indictment." So also, regarding adherence, Coke merely says that "this is here explained, viz. in giving aid and comfort to the Kings enemies within the Realme or without ' Ibid. The same reliance on the statutory terms as self-evident in scope appears in his terse declaration that under the words "si home counterface le grand Scale" "A Compassing, intent, or going about to counterfeit the great seale is no treason, but there must be an actuall counterfeiting." Id., 15 Cf. Hale, 181.

43 Both seem to think the statutory terms concerning adherence to be so plain as to call for little discussion, and their analyses furnish little help in this connection It has been noted that in his analytical table of the elements of the different branches of treason under Statute Edward III, Coke stated that both the crimes of compassing the king's death and adhering to his enemies involved the element of "declaring the same by some overt act", but that he defined the other major offense simply as "Levying war against the King" Coke 3-4. Hale adopts this analysis at one point (p. 91) But cf. id. 149-150 This verbal distinction is obviously a very slender support for arguing that a basic difference was intended in the elements of these offenses, however But, Coke, 14, states that "If a subject conspire with a foraine Prince beyond the seas to invade the Realme by open hostility, and prepare for the same by some overt act, this is a sufficient overt act for the death of the King, for by this Act of Parliament in that Case there must be an overt act." This may imply that conspiracy to adhere to enemies is not per se a sufficient overt act for that charge, or even for a charge of compassing As regards adherence, however, it is not clear whether Coke is referring to a foreign prince then at peace with England, in which case, of course, there would as yet be no "enemy" to whom to adhere.

44 Hale, 85, cf. 111. This act and its repeal by Hen. IV, ch. 10, are relied on by Judge Hand in U.S. v. Robinson, 259 Fed. 685, 689 (S.D. N.Y. 1919), for his argument that the overt act must evidence intent.

45 Kelyng is a narrative of several treason cases under Charles II Hawkins foregoes discussion of the political policies involved in the issue of strict or liberal construction of the crime, limiting himself largely to digest-style paragraphs on the statutes and decisions The overt act is a distinct element under each branch of "treason." 1 Hawkins 92 Words may serve to explain an act in itself indifferent, id. , 94, and the meeting of conspirators is a sufficient overt act to make out a compassing the king's death, id. 92, Kelyng, *15, 17, 20 Both are as ambiguous as previous writers on the question of whether words are not generally a sufficient overt act See Hawkins, 93, 94, 96, cf. Kelyng, *13 But Hawkins' comment on Peacham's Case, where a writing was the sole evidence, seems to point out that such evidence must be viewed, respectively, in its function of showing intent, and of establishing an overt act, for he finds the evidence in that case inadequate on these distinct grounds "it has been holden, that written words in a sermon or other writing may amount to overt acts of compassing the king's death, though the same neither actually were, nor ever were intended to be, preached or published But this opinion seems to be over-severe, for though it be true that scribere est agere, yet surely it cannot with any propriety be said, that to write in such a private manner est apertè agere, and it seems rigorous to make that amount to a malicious design against the king, which perhaps was only done by way of amusement or diversion." Hawkins, 93.

46 Kelyng, *17.

47 Id.,*21.

48 See 4 Stephen's Commentaries on the Laws of England (18th ed. London, 1925) 157, 8 Holdsworth, History of English Law (2d ed. London, 1937) 323.

49 Foster, 207, 237 There is an intimation that he views the restrictive policy as based on the desire to limit abuse of "treason" in purely domestic factionalism, in his comment that the statute of 1 Ph. & M., in "reducing all treasons to the standard of the 25 E III,' brought it about that thereby "the subject was secured in his journey through life against the numerous precipices which the heat and distemper of former times had opened in his way." Id., 237 Compare the breadth which he was eager to give offenses of trafficking with an external enemy, notes 58 and 60, infra.

50 Id., 220.

51 Id., 194, compare the third paragraph quoted at note 57.

52 Id., 200.

53 Id., 198-199.

54 Id., 200.

55 Id., 202, 203.

56 Id., 195, 206, see also matter quoted at note 51, supra, and note 57, infra.

57 Id., 193, 194-195.

58 Id., 196.

59 Id., 196-197.

60 Id., 197-198.

61 Id., 217-218.

62 Id., 210, 342, 346 Coke does not discuss this question 1 Hale 613, may imply this point, though Emlyn's pointed reference to the ruling in Somerville's case, 1 Anderson 109, on the distinction regarding a charge of compassing the king's death, indicates that Hale's editor believed that the learned author had overlooked the matter 4 Blackstone 35-36 makes the point that the aider in compassing the king's death has ipso facto committed the principal crime Concerning Foster's underlying caution regarding the scope of constructive levying of war, see Foster, 210.

63 Blackstone, 75, 83, 85, 86. At p. 86 is the reference to "newfangled" treasons, which seems probably behind Madison's similar reference in The Federalist.

64 Id., 79.

65 Ibid.

66 Id., 79, 80.

67 Id., 79, 120.

68 This section is based on the works hereafter listed. Only those books examined which contained some significant reference to the subject are noted.

Archbold's Pleading, Evidence & Practice in Criminal Cases (31st ed. Butler and Garsia, editors London, 1943).

Crabb, History of English Law (1st Am Ed Burlington, 1831). Chitty, Practical Treatise on the Criminal Law (3 vol. 2d ed. London, 1826) (4th Am ed. Springfield, 1841).

East, Treatise of the Pleas of the Crown (2 vol. London, 1803) (Philadelphia, 1806).

Holdsworth, History of English Law (2d ed. 12 vol. London, 1937).

Jenks, Short History of English Law (5th ed. London, 1938).

Luders, Considerations on the Law of High Treason in the Article of Levying War (Bath, 1808).

Plucknett, Concise History of the Common Law (3d ed. London, 1940).

Pollock and Maitland, History of English Law (2 vol. Cambridge, 1895).

Reeves, History of the English Law from the Time of the Saxons to the End of the Reign of Philip and Mary (4 vol. London, 1814-1829).

Stephen, History of the Criminal Law of England (3 vol. London, 1883).

Stephen's Commentaries on the Laws of England (4 vol. 18th ed. London, 1925).

69 2 Stephen 262-263, cf. id. 251 It may be significant that Stephen. begins his discussion with a strong assertion of the importance of defending the basic organization of the community Id., 241-242, cf. 4 Holdsworth 493.

70 Luders, 10 2 Stephen 247, 2 Pollock and Maitland 508, 2 Holdsworth 449.

71 3 Reeves, 207, 208, 217, 234-235, 4 id. 273, 281, 197, 2 Stephen 247 ("Probably the great importance of the Act of Edward as a protection to what we should now call political agitation and discussion, was hardly recognized till a much later time."), 2 Pollock and Maitland 508, 3 Holdsworth 287, 290, 291, 8 id. 309, but cf. id. 310.

72 2 Stephen 263, 4 Holdsworth 496, 498, 8 id. 310.

73 3 Reeves 408, 5 id. 104, 1 East 58, 4 Stephen's Commentaries 150, Archbold 1067, 1073, 1077.

74 See 1 East 69, 119, 4 Stephen's Commentaries 150, 8 Holdsworth 309, 311, 315, cf. id. 317. From the fact that this ambiguous terminology is almost invariably used in analysis of the offense of compassing the king's death, one might infer that the writers regard the overt acts involved in the other branches of treason to be so clearly evidence of treasonable intent as not to require such comment But cf. A Treatise upon the Law and Proceedings in Cases of High Treason, &c. , By a Barrister at Law (London, 1793 printed as an appendix to Kelyng's Crown Cases — reprint, Lond (1873) 106. "If the treason consists not in the intention, but in the act, as levying war, then it must be laid to have been done traiterously," citing Cranburn's Case, 2 Salk 633.

75 8 Holdsworth 316.

76 Id. 317-318. Compare 2 Stephen 267, which mentions Lord Preston's Case with the comment that "After the Revolution of 1688 the fictitious interpretation of the offence of compassing the king's death was earned much further than it had been under the Stuarts." He states that in the passage from Foster, quoted at note 57, supra, that author "proceeds to carry the law laid down in [Lord Preston's Case]... a step further," underlining the last clause of Foster's paragraph, and continues, "Foster follows Coke and Hale in holding that "levying war" is an overt act of compassing, and that conspiring to levy war in one sense of the expression is so too Indeed, he goes so far as to say that "a treasonable correspondence with the enemy" is an act of compassing the king's death, and he refers in support of this to Lord Preston's case, and also to the case of one Harding, in which it was held on a special verdict that enlisting men in England and sending them abroad to join the French forces in an attempt to dethrone King William III was an imagining of his death." Neither Stephen nor Holdsworth takes note of the fact that the overt acts laid in Lord Preston's case were under a charge of adhering to the King's enemies as well as of compassing his death See notes 58 and 59, supra.

77 8 Holdsworth 309, 311.

78 Id., 307. Compare 2 Stephen 282. "Instances of this offence have been very rare in our history England, owing to its insular position, has not for centuries been the scene of war carried on with a foreign enemy Hence the offence of 'adhering to the king's enemies' — an exceedingly vague expression — has been committed only by a few spies who have in the time of war been detected in giving information to foreign enemies. No questions of legal or constitutional interest have arisen on this branch of the act of Edward III to my knowledge."

79 Archbold 1076. His further comments suggest that he draws this conclusion from rulings on the effect of a conspiracy to levy war, for he declares that a conspiracy to adhere to enemies may probably be laid as an overt act of compassing the king's death, and that "if the prosecution can prove such a conspiracy [to adhere], and connect the prisoner with it by evidence, and can prove an act done by any one of the conspirators in furtherance of the common design, it may be given in evidence against the prisoner, if it tends to prove any of the overt acts laid in the indictment, for the act of one, in such a case, is the act of all R v. Stone, 25 St. Tr. 1115, 6 T. R 527."

"A conspiracy to aid or comfort the king's enemies is not within the act," according to A Treatise upon the Law and Proceedings in Cases of High Treason, op. cit. supra, note 74, p. *41 This work cites 3 Inst. 9, and 6 Ba. Abr. 5th ed. 516, the latter in turn relying on Coke, Hale, Pleas of the Crown 13, 14 (the one volume work preceding the History), and 1 Hawkins P. C. c. 17, sec. 27 for the same proposition Coke, Hale, and Hawkins, however, discuss only conspiracy to levy war, in the passages relied on, and in no others do they appear to support the doctrine for which they are here cited 3 Holdsworth 288 points out a probable historical explanation for the omission of conspiracy to levy war as a branch of treason under the Statute of Edward III. "As is well known, there is no mention in the statute of a conspiracy to levy war, and, as Maitland points out, [2 Pollock and Maitland 503, 504, but this reference actually discusses only the reason for the late recognition of the crime of levying war against the king], this is probably due to the fact that such a conspiracy was hardly regarded as an offence if the war was properly declared." That is, the feudal bond was in law a reciprocal one, of rights and duties, so that the vassal had a right in some cases to war upon a lord who had broken the bond Thus, the omission of conspiracy in the statutory definition would not in its origin reflect any policy relevant to present use of the Statute Cf. 2 Hallam, Constitutional History of England (London, 1827) 501.

2 Chitty 69, 73 gives as a sufficient count for adhering to enemies the following allegations, which might be deemed broad enough to include a meeting with an enemy agent as a sufficient overt act of adherence.

And further, &c. He the said William Stone, as such false traitor as aforesaid, during the said war, to wit, on, &c. and on divers other days as well before as after that day, at, &c. aforesaid, well knowing the said William Jackson traitorously to have come to and landed in this kingdom, for the traitorous purpose of procuring and obtaining intelligence and information whether the subjects of our said lord the king were or were not well affected to our said lord the king and his government, and were or were not likely to join with and assist the forces of the said persons exercising the powers of government in France, and being enemies of our said lord the king as aforesaid, in case an hostile invasion of this kingdom should be made by them for the prosecution to be sent such intelligence and information to the said persons exercising the powers of government in France, and being enemies of our said lord the king, as aforesaid, for the aid, assistance, direction, and instruction of the said enemies of our said lord the king, in their conduct and prosecution of the said war against our said lord the king, did, with force and arms, maliciously and traitorously receive and treat with the said William Jackson, in the prosecution, performance, and execution of his traitorous purpose aforesaid, and did then and there maliciously and traitorously aid, comfort, abet, and assist the said William Jackson in, about, and concerning the prosecution, performance and execution of his the said William Jackson's traitorous purpose aforesaid.

80 East 100, cf. id., 58 However, the argument that compassing was always a peculiarly broad offense due to ideas no longer prevailing, regarding the special protection of the King's person, is somewhat rebutted by the emphasis which is put on concern for the King, not as a person, but as a symbol of the ordered community See Foster, note 57, supra. This also appears in the distinction taken by Hale and East between the scope of the crime as applied to the king and to his queen or heir apparent 1 East 65 thus says, of the crime of compassing the death of the queen or of the eldest son and heir. "As to what shall be said to be an overt act of compassing their death, it must be such as shews an unlawful intent against their persons, and not merely against their state and dignity Therefore much of what has been already said concerning overt acts of compassing the death of the king, which are specifically appropriate to him and his sovereign power and royal dignity, does not apply to the queen or prince. Thus a compassing to imprison or otherwise punish them by due course of law is not within the statute, but a compassing to wound them is." See 1 Hale 127-128.

81 This paragraph is based on examination of the following works, among others Only those containing some substantial discussion of the subject are noted.

Anson, The Law and Custom of the Constitution (3d ed. 3 vol. Oxford, 1907). Chalmers and Asquith, Outlines of Constitutional Law (5th ed. London, 1936).

Hallam, The Constitutional History of England (2 vol. London, 1827) Joliffe, Constitutional History of Medieval England from the English Settlement to 1485 (London, 1937).

Keir, Constitutional History of Modern Britain 1485-1937 (2d ed. London, 1943).

May, Constitutional History of England (3 vol. London, 1912). Morris, Constitutional History of England to 1216 (N.Y., 1930). Smith, History of the English Parliament (2 vol. London, 1892). Stubbs, Constitutional History of England (3 vol. 6th. ed. Oxford, 1897). Tanner, Tudor Constitutional Documents A. D. 1485-1603 (Cambridge, 1930). Taswell-Langmead, English Constitutional History (9th. ed. London, 1929). Thomson, A Constitutional History of England (4 vol. London, 1938).

82 2 Anson 243, 2 Hallam 499, Jolliffe, 446-447, 1 Smith 211, Taswell-Langmead, 242, n.

83 Joliffe, 446, Keir, 107, 213, 2 May 45, 55, 72 (though cf. id, 43), 2 Smith 340, 3 Stubbs 290, 537, Tanner, 379, Taswell-Langmead, 348.

84 Tanner, 377, note 2, cf. 4 Thomson 284.

85 See 2 Hallam 516.

In the vast mass of circumstantial testimony which our modern trials for high treason display, it is sometimes difficult to discern, whether this great principle of our law, requiring two witness to overt acts, has been adhered to, for certainly it is not adhered to, unless such witnesses depose to acts of the prisoner, from which an inference of his guilt is immediately deducible.

Cf.1 id. 177, n. In the light of the quoted comment, and as evidence of the inherent ambiguity of those statements which assert that the act must "manifest" treason, it is interesting to note that elsewhere Hallam says, "The crime of compassing and imagining the king's death must be manifested by some overt act, that is, there must be something done in execution of a traitorous purpose." 2 id. 505. In this latter statement, clearly the meaning is that the act must "manifest" the intent in the sense of translating thought into deed.

86 325 U.S. 1 (1945) On two occasions, the defendant, a naturalized American citizen, was observed by two FBI agents to meet in a public restaurant and engage in long and earnest conversation with an enemy agent The two witnesses could testify only to the fact of the meeting, the defendant's admissions to a third party, to the FBI agents after his arrest, and while on the witness stand furnished the only evidence that he knew he was dealing with an enemy agent, and that he intended to aid the latter by taking the latter's funds into safekeeping to be held for his convenience The Court, in a 5-4 decision, apparently ruled that aid must be shown to have been "actually" given the enemy, and that insofar as any conduct of defendant was relied on to show that the overt act was an act giving aid, this must be shown by two witnesses.

87 Id., 16-18.

88 Id., 18.

89 The dissenting opinion also gives first place to the analysis of the treatises Id., 68-72.

90 Id., 18, 19, and note 25, cf. 21.

91 The dissent emphasizes Foster's interpretation Id., 71 The majority (Id., 18, note 25) refers to Coke and Blackstone as "chief" among the commentators If this is meant as an evaluation of their analyses of the offense, it seems unduly favorable Coke's account of the crime is often ambiguous and is quite disorganized in presentation Blackstone's treatment is relatively short, and contributes nothing new in thought and little in penetration Hale and Foster seem to deserve by far the highest praise for depth and clarity of analysis If the Cramer opinion means that Coke and Blackstone were the "chief" commentators in the eyes of American lawyers and draftsmen of the 18th century, this is more difficult to weigh. There is no doubt of their great influence, though the Cramer opinion cites no evidence that they dominated American analysis of the crime. However, evidence is not lacking that other commentators were also well known to learned Americans. In his notes to Chancellor Wythe, November 1, 1778, regarding his proposed "bill for proportioning Crimes and Punishments, in cases heretofore Capital," Thomas Jefferson cites Hale and Foster, as well as Coke in his discussion of treason. 1 Writings of Thomas Jefferson (Library ed. Washington, 1903) 216, 218, 220-221. And in his argument as defense counsel in the Pennsylvania treason trials of 1778, James Wilson bases his brief on Hale and Hawkms, as well as on Blackstone See "Notes of C. J. McKean in case of Ab'm Carlisle, 1778," 7 Pennsylvania Archives (Hazard ed. Philadelphia, 1853) 44-52, cf., Respublica v. Carlisle, 1 Dallas 34, 36 (Pa. Oyer and Terminer, 1778).

92 Id., 18, note 25 (majority opinion), 73, 74 (dissent).


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