The omissions of the statute soon made themselves apparent in the tempestuous reign of Richard II. Acting in its judicial capacity, and overriding the jurisdiction of the courts, the House of Lords, in 1388, impeached the archbishop of York, the Lord Chief Justice, the lord mayor and others for treason, in hav ing led the king to misgovern the country. The traitors were convicted and some of them executed. Ten years later the accusers were in turn impeached by the king's party. The Duke of Gloucester, uncle of the king, who had been the prime mover in the former prosecu tion, was assassinated, the Earl of Arundel was executed and the Earl of Warwick, who had been sentenced to be hanged, drawn and quar tered, was remanded to imprisonment for life. A statute of Richard II, passed two years be fore his deposition, is described in the repeal ing act (1 Henry IV, chap. 10) as having left matters in such doubt that °there was no man which did know how he ought to behave him self, to do, speak or The War of the Roses, contrary to what might have been ex pected in that era of depositions and usurpa tions, passed without changes in the letter of the law. This is not to say, however, that every turn of political fortunes did not bring its score of attainders and executions. In the time of Henry VIII a great variety of new treasons were defined and the heads of many good men, including Thomas More, author of fell under the ax. It had become mis prision of treason to assert the papal authority, and high treason to refuse to take the oath of abjurgation; to will or wish or desire, or by any craft to imagine, any bodily harm to the king or queen or heir to the throne or to de prive either of them of their titles or regal powers; to utter slanders or libels pronouncing the sovereign a heretic, tyrant, infidel or usurper; to question the legality of some of his marriages or to assert the legality of others. These °war which were repealed immediately on Henry's death, had been in tended to fortify him in his opposition to the Pope, and to assure the royal succession in his heirs by making it dangerous to question their legitimacy. One of the first acts of Queen Mary's reign was to restore the statute of Ed ward HI in its integrity by a general repeal of all treason laws subsequently enacted. Since then no permanent additions were made to the statute until the reign of Victoria. A curious law passed in Mary's reign declared it treason able to °pray that God would shorten the life of the queen.* This was re-enacted in the time of Elizabeth and made applicable to her. A statute of Elizabeth making it treason for a priest to grant absolution for disloyalty to the Crown was continued in the reign of James I. By the statute 13 Charles II, chap. 1, it was declared high treason to display, by writing, preaching or malicious speaking,* any intention to depose the king or to do him bodily harm tending to his death, wounding or imprison ment. All of these laws and one or two others not mentioned have expired by limitation or become obsolete.
The meaning of the words of the Statute of Treason had been greatly extended meanwhile by judicial interpretation. In the case of the Earl of Essex the judges advised that it was rebellion when a subject attempts to put him self in such strength that the sovereign will be unable to resist and govern .according to his own royal authority and direction; also, that in every rebellion the death of the sovereign must be presumed in law to be the consequence of success, for the rebel will never suffer that king to live and reign, who might punish or take revenge of his treason or Con spiracy to levy war, which might manifest it self in words spoken or printed, though not treasonable according to the letter of the law, was considered an °overt act) for °compassing or imagining) the death of the sovereign, and, therefore, evidence to prove high treason. Like effect has been given to concerting with for eigners or others to invade the kingdom, or to go, or even purpose going abroad, with that end in view. Nor would armed violence have to be carried into England to prove an intent to compass the death of the sovereign; the statute was held to refer not to the natural life of the king but to his political existence. A conspiracy to invade Canada and an insur rection in Ireland were both regarded evidence of an imagining of the king's death. In draw
ing the line between tumultuous petitioning and levying war the courts have not been con sistent. The most authoritative is Lord Mans field's pronouncement (Ail 1780) with respect to the Gordon riots: If this multitude assem bled with the intent, by acts of violence, to compel the legislature to repeal a law, it is high But Lord Gordon was ac Quitted. The trials of Hardy, Horne Tooke and others in 1794 involved interpretations of the meaning of the words the king's The charge was a conspiracy to depose the king and put him to death, and the overt acts alleged were: Consultations to procure a convention to be assembled with intent to sub vert the government; the circulation of books and pamphlets recommending the choice of delegates; consultations concerning the call of the convention; and the provision of arms for treasonable purposes. The purpose of the agitators was to obtain universal suffrage, an nual parliaments, and the alleged design to depose the king and set up a republic was not proven. The prosecution failed.
The Constitution of the United States de clares that °treason shall consist only in levy ing war against the United States or adhering to their enemies, giving them aid and com fort.° In making this very close definition the founders of the republic were, no doubt fected by the judicial interpolation of 'Icon structive treason° into the words of the Eng lish statute, by the numerous prosecutions and convictions in England for ((petty) treason, and the frequency with which the law against the subversion of the state had been invoked as the means of suppressing political agitation and of punishing men merely for their opinion. Therefore, nothing less than a purpose to over throw the government by armed force, when manifested by an overt act of violence, was to be regarded as levying of war constituting treason. Prior to the Civil War period there were only two important prosecutions for this crime in the United States, and the leaders of the Whisky Rebellion of 1794, though con victed of treason, were afterward pardoned by the President; while Aaron Burr, who had been charged with the design to conquer the southwestern territory of the United States in connection with his hair-brained enterprise against Mexico, was acquitted. The differ ence between tumultuous assemblies, riots and insurrection is held in this country to be a difference in character, not merely in degree. Disturbances of great violence, extending over large areas, including several States, though practically subverting the public authority for a time and requiring the intervention of Fed eral troops, have not been regarded as levying of war, a purpose to overthrow the government not being shown. But the seizure of an arsenal by John Brown was deemed sufficient proof of such a purpose. The provision which defines treason as adherence to the enemies of the country, or giving them aid and comfort, al lows American legislators greater latitude. This provision becomes active only in times of war; but it is precisely at such times that the safety of the state requires a sharpening of the terms of the law as well as of the methods of its enforcement. The formation of secret societies and conspiracies, the utterance of slanders or libels against the government, opposition to its policies or military measures by agitation, as well as by physical obstruction, or anything that tends to hinder or embarrass the govern ment in the conduct of war, may, in such times, take the aspect and color of treason; and all the things referred to might be so declared, because of the aid and comfort they would possibly give the enemy. A public speech, a published writing, a confidential correspond ence, a secret conference would, either of them, be a sufficient overt act. As for intention, the law presumes every person to intend that which follows as a natural consequence of his action.
In practice, however, American war measures against the giving of moral aid or comfort to the enemies of the nation have been in the form of sedition laws. Actual consorting or conspiracy with the enemy would, of course, constitute high treason. The Articles of War, which are part of the statutory law of the United States, declare corresponding with the enemy; relieving the enemy with money, vic tuals or ammunition; or harboring or protect ing an enemy, to be capital crimes. See MILI