Page:The Green Bag (1889–1914), Volume 16.pdf/67

 Rh

20

this period that the vicious doctrine of con structive treason was successfully attacked. During this period the press, relieved of its fetters, made great strides in development. Its freedom was restrained, however, by doc trines inherited from the Star Chamber, and by oppressive stamp taxes. Toward the close of the period, when the people, deprived of representation in a corrupt Parliament, turned to the press as a means of combating the arbitrary designs of George III., the issue between individual liberty and arbitrary power was squarely raised. In the contest which ensued, the courage of John Wiikrs, the brilliant advocacy of Erskine, and the statesmanship of Fox and Camden in the cause of freedom were victorious. But the progress thus made was soon arrested by the revolutionary excesses on the continent ' of Europe, which marks the beginning of a third period. During this period the government in alarm adopted every possible method of repression. This reaction was a severe blow to popular rights. Public opinion was begin ning to supply through new channels the de fects of narrow representation. Public meet ings and popular organization for correspon dence and concerted action were supplement ing the influence of the press. But all these peaceable avenues of public opinion were now closed. The inevitable effect was to foster secret conspiracy and to invite open violence. At three crises in English affairs, in 1792, in 1816, and finally in the Chartist agitation near the middle of the century, we are furnished with instructive lessons in the futility and impolicy of attempting to suppress open dis cussion of public grievances. FROM 1500 TO 1688. By way of introduction to the treason trials of the first period, it may be well to refer briefly at the history of the- law with respect to treason. In early times the king, like the ordinary freeman, came within the schedule of tariffs by which the value of human life

was measured. But as the king's person, like the king's peace, developed in importance with the growth of the royal power, offenses against the king's person were at length pun ished by death. This was the starting point of the law of treason. The forfeitures result ing from cases of treason furnished an induce ment to extend the law, and in 1348 it was applied in Sir John Gerbage's case to an act of highway robbery. The vague and undefined state of the law finally led to the enactment in 1352 of the Statute of Treasons of Edward III., which continued for cen turies to be the fundamental statement of the English law of treason. But the limited scope of this act soon became apparent. While it sufficiently protected the personal security of the king, no provision was made for political conspiracy, short of open war, to depose the king, or for violence which did not amount to levying war. These omissions were sup plied in various ways. Bills of attainder were used at an early date. The Tudor kings re sorted to additional legislation; under Henry VIII. alone nine acts creating new treasons were adopted. But the favorite resort was to judicial construction, in accordance with which "imagining the king's death" was held include an intention of anything whatever which, under any circumstances, might pos sibly have a tendency, however remote, to expose the king to personal danger, or to the forcible deprivation of any part of the author ity incidental to his station. Hence words spoken or written were, in certain cases, held to be overt acts. The term, "levying war,", was given a similarly sweeping construction. The levying might, of course, be directly against the king's person; or it might be constructive, against his government. The true criterion as to whether an unlawful as semblage amounts to levying war undoubt edly is, with what purpose or intent did the parties assemble? For, to constitute treason, the object must be to effect by force some thing of public and general concern; acts of