[224] Lords' Journals.
[225] Parl. Hist. 754.
[226] 6 W. & M. c. 2.
[227] Rot. Parl. ii. 239; 3 Inst. 1.
[228] 3 Inst. 12; 1 Hale's Pleas of the Crown, 120; Foster, 195. Coke lays it down positively (p. 14) that a conspiracy to levy war is not high treason, as an overt act of compassing the king's death. "For this were to confound the several classes or membra dividentia." Hale objects that Coke himself cites the case of Lords Essex and Southampton, which seems to contradict that opinion. But it may be answered, in the first place, that a conspiracy to levy war was made high treason during the life of Elizabeth; and secondly, that Coke's words as to that case are, that they "intended to go to the court where the queen was, and to have taken her into their power, and to have removed divers of her council, and for that end did assemble a multitude of people: this being raised to the end aforesaid, was a sufficient overt act of compassing the death of the queen." The earliest case is that of Storie, who was convicted of compassing the queen's death on evidence of exciting a foreign power to invade the kingdom. But he was very obnoxious; and the precedent is not good. Hale, 122.
It is also held that an actual levying war may be laid as an overt act of compassing the king's death, which indeed follows à fortiori from the former proposition; provided it be not a constructive rebellion, but one really directed against the royal authority. Hale, 123.
[229] Hale, 121.
[230] Foster's Discourse on High Treason, 196; State Trials, xii. 646, 790, 818; xiii. 62 (Sir John Friend's case) et alibi. This important question having arisen on Lord Russell's trial, gave rise to a controversy between two eminent lawyers, Sir Bartholomew Shower and Sir Robert Atkins; the former maintaining, the latter denying, that a conspiracy to depose the king and to seize his guards was an overt act of compassing his death. State Trials, ix. 719, 818.
See also Phillipps's State Trials, ii. 39, 78; a work to which I might have referred in other places, and which shows the well known judgment and impartiality of the author.
[231] In the whole series of authorities, however, on this subject, it will be found that the probable danger to the king's safety from rebellion was the ground-work upon which this constructive treason rested; nor did either Hale or Foster, Pemberton or Holt, ever dream that any other death was intended by the statute than that of nature. It was reserved for a modern Crown lawyer to resolve this language into a metaphysical personification, and to argue that the king's person being interwoven with the state, and its sole representative, any conspiracy against the constitution must of its own nature be a conspiracy against his life. State Trials, xxiv. 1183.