HIGH TREASON. There is a well-known epigram of Sir John Harrington, often quoted for its supposed wit and truth, though it• pos sesses little of either of these qualities, which goes as follows: Treason never prospers. What's the reason? When it doth prosper. none dare call it treason.
To be sure, when an attack on established order has met with success the victors do not prosecute themselves for treasonable conspir acy. A new polity has come into being, the life of a nation has taken a new point of de parture and a new direction, and the former legal sanctions have come to an end. In as suming that an accomplished revolution is nothing more than successful treason, the epi grammatist betrays a shallow way of thinking and an utter lack of appreciation of the fact that the mutability of human institutions is the condition of progress. Indeed, it may be, in the case of an insurrection which has attained the dimension of civil war, that the participants on either side will regard those on the other as enemy combatants, entitled to treatment as such, when made prisoners of war, in accord with the law of nations, and not as common criminals, to be hanged when caught. In the American War of Independence, as well as in the war between the States, the opponents tac itly treated each other as belligerents. The statute of 11 Henry VII, chap. 1 (1494) dis tinctly provides that obedience to a king de facto, but not de jure, shall not expose the ad herents of the former to penalty for high trea son when the rightful sovereign is re-estab lished in power. On the contrary, however, all systems of law make it treasonable to commit any overt act (Fr. attentat) the purpose of which is to destroy or change the existing government; to arm citizens, or incite them to arms, for war against the public authorities; to attack the armed forces of the state, or public property, buildings, fortresses, arsenals, ships, etc., or take possession of the same for use against the state. These and other similar acts, which are specified in the French law of Lese Majeste, are comprised in the English term "levying war,D which neither the laws of Great Britain nor the United States more closely define. In strict law, therefore, all those who had taken part in an insurrection that failed would be punishable criminally as traitors, irrespective of the nobility or ignobility of their cause.
Glanville in a brief note on the crime indi cates that compassing the death of the sover eign, insurrection or concerting with the ex ternal foes of the realm were impeachable (Mfamatur) whether or not a prosecutor ap peared to make the accusation. Bracton de scribes the crime under the title Laese Majes kttis and his description bears a recognizable likeness to the Roman law of Majestas. In hi; enumeration of the acts constituting treason, Bracton leads off with "The manifestation by action of a will to procure the death of the king; to foment rebellion against him; or to adhere to his external enemies"' The resem blance in matter, and in the order of statement, to the Statute of Treason is remarkable; and that this is not accidental is suggested by the fact that the words of the statute, *compassing or imagining the death of our lord the king,* might pass for a tranalation from Bracton. The Statute of Treason (25 Edward III, A.D. 1352) is not only the foundation of the Eng lish law on the subject, but contains the major part of it. Disregarding certain provisions for the safety of the king's family and the heir to the throne, the statute declares treason to be (1) forming and displaying by any overt act an intention to kill the king; (2) levying war against the king; (3) adhering to the king's enemies. As Lord Justice Stephen remarked, it makes no provision for acts of violence against the king's person unless they display an intention to take his life. Nothing is said of attempts to imprison or depose him, or to interfere with his unquestioned prerogatives; nor about disturbances of the peace, however violent, which fail to reach the point of actual levying of war. It fails even to mention at tempts or conspiracies to levy war. In enact ing the measure Parliament seems to have been less concerned for the security of the state than for the security of persons and its purpose seems to have been to make a definition of treason that would exclude perjuries in office, waste of the king's revenue or counterfeiting or clipping his coin, and similar offenses, which had been so accounted. The crown was secure enough. The Scots were troublesome on the border, but domestic tranquillity seemed as sured; the Constitution had been settled and the political institutions of the kingdom had taken practically the form which they have ever since maintained.