"Forfeiture is two-fold, of real and personal estate; by attainder in high treason a man forfeits to the king all his lands and tenements of inheritance, whether fee simple, or fee tail; and all his rights of entry on lands and tenements, which he had at the time of the offence committed, or at any time afterwards to be for ever vested in the crown. The forfeiture relates back to the time of the treason being committed, so as to avoid all intermediate sales and incumberances; even the dower of the wife is forfeited. The natural justice of forfeiture, or confiscation of property, for treason, is founded in this consideration, that he, who has thus violated the fundamental principles of government, and broken his part of the original contract between king and people, hath abandoned his connections with society; hath no longer any right to those advantages, which before belonged to him purely as a member of the community, among which social advantages the right of transferring or transmitting property to others, is one of the chief. Such forfeitures, moreover, whereby his posterity must suffer, as well as himself, will help to restrain a man, not only by the sense of his duty and dread of personal punishment, but also by his passions and natural affections; and will influence every dependant and relation he has to keep him from offending." 4 Black. 374. 375.
It is remarkable, however, that this offence, notwithstanding it is of a crimson colour, and the deepest dye, and its just punishment is not confined to the person of the offender, but beggars all his family, is sometimes committed by persons, who are not conscious of guilt. Sometimes they are ignorant of the law, and do not foresee the evils they bring upon society; at others, they are induced to think that their cause is founded in the eternal principles of justice and truth, that they are only making an appeal to heaven, and may justly expect its decree in their favour. Doubtless many of the rebels, in the year 1745, were buoyed up with such sentiments, nevertheless they were cut down like grass before the scythe of the mower; the gibbet and scaffold received those that the sword, wearied with destroying, had spared; and what loyalist shed one pitying tear over their graves? They were incorrigible rebels, and deserved their fate. The community is in less danger, when the disaffected attempt to excite a rebellion against the person of the prince, than when government itself is the object, because in the former case the questions are few, simple, and their solutions obvious, the fatal consequences more apparent, and the loyal people more alert to suppress it in embryo; whereas, in the latter, a hundred rights of the people, inconsistent with government, and as many grievances, destitute of foundation, the mere creatures of distempered brains, are pourtrayed in the liveliest colours, and serve as bugbears to affright from their duty, or as decoys to allure the ignorant, the credulous and the unwary, to their destruction. Their suspicions are drowned in the perpetual roar for liberty and country; and even the professions of allegiance to the person of the king, are improved as means to subvert his government.
In mentioning high treason in the course of these papers, I may not always have expressed myself with the precision of a lawyer; they have a language peculiar to themselves. I have examined their books, and beg leave to lay before you some further extracts, which deserve your attention. To levy war against the king, was high treason by the common law, 3 inst. 9. This is also declared to be high treason by the stat. of 25 Edw. 3. c. 2. and by the law of this province, 8 W. 3. c. 5. Assembling in warlike array, against a statute, is levying war against the king, 1 Hale 133. So to destroy any trade generally, 146. Riding with banners displayed, or forming into companies; or being furnished with military officers; or armed with military weapons, as swords, guns, &c. any of these circumstances carries the speciem belli, and will support an indictment for high treason in levying war, 150. An insurrection to raise the price of servants' wages was held to be an overt-act of this species of treason, because this was done in defiance of the statute of labourers; it was done in defiance of the king's authority, 5 Bac. 117 cites 3 inst. 10. Every assembling of a number of men, in a warlike manner, with a design to redress any public grievance, is likewise an overt-act of this species of treason, because this being an attempt to do that by private authority, which only ought to be done by the king's authority, is an invasion of the prerogative, 5 Bac. 117 cites 3 inst. 9. Ha. p. c. 14. Kel. 71. Sid. 358. 1. Hawk. 37. Every assembling of a number of men in a warlike manner, with an intention to reform the government, or the law, is an overt-act of this species of treason, 5 Bac. 117. cites 3 inst. 9. 10. Poph. 122. Kel. 76. 7. 1 Hawk. 37. Levying war may be by taking arms, not only to dethrone the king, but under pretence to reform religion, or the laws, or to remove evil councellors, or other grievances, whether real or pretended, 4 Black. 81. Foster 211. If any levy war to expulse strangers; to deliver men out of prison; to remove councellors, or against any statute; or to any other end, pretending reformation of their own heads, without warrant, this is levying war against the king, because they take upon them royal authority, which is against the king, 3 inst. 9. If three, four, or more, rise to pull down an inclosure, this is a riot; but if they had risen of purpose to alter religion, established within the realm, or laws, or to go from town to town generally, and cast down inclosures, this is a levying of war (though there be no great number of conspirators) within the purview of this statute; because the pretence is public and general, and not private in particular, 3 inst. 9. Foster 211. If any, with strength and weapons, invasive and defensive, do hold and defend a castle or fort, against the king and his power, this is levying of war against the king, 3 inst. 10. Foster 219. 1 Hale 149. 296.
It was resolved by all the judges of England in the reign of Henry the 8th, that an insurrection against the statute of labourers, for the enhancing of salaries and wages, was a levying of war against the king, because it was generally against the king's law, and the offenders took upon them the reformation thereof, which subjects by gathering of power, ought not to do, 3 inst. 10. All risings in order to effect innovations of a public and general concern, by an armed force, are, in construction of law, high treason within the clause of levying war. For though they are not levelled at the person of the king, they are against his royal majesty. And besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property, and all government too, by numbers and an armed force, Foster 211. In Benstead's case, Cro. car. 593. At a conference of all the justices and barons, it was resolved, that going to Lambeth house, in warlike manner, to surprize the archbishop, who was a privy counsellor (it being with drums and a multitude) to the number of three hundred persons, was treason; upon which Foster, page 212, observes, that if it did appear by the libel, which he says was previously posted up at the exchange, exhorting the apprentices to rise and sack the bishop's house, upon the Monday following, or by the cry of the rabble, at Lambeth house, that the attempt was made on account of measures the king had taken, or was then taking at the instigation, as they imagined, of the archbishop, and that the rabble had deliberately and upon a public invitation, attempted by numbers and open force, to take a severe revenge upon the privy counsellor for the measures the sovereign had taken or was pursuing, the grounds and reasons of the resolutions would be sufficiently explained, without taking that little circumstance of the drum into the case. And he delivers as his opinion, page 208, that no great stress can be laid on that distinction taken by Ld. C. J. Hale, between an insurrection with, and one without the appearance of an army formed under leaders, and provided with military weapons, and with drums, colours, &c. and says, the want of these circumstances weighed nothing with the court in the cases of Damaree and Purchase, but that it was supplied by the number of the insurgents. That they were provided with axes, crows, and such like tools, furor arma ministrat; and adds, page 208, the true criterion in all these cases, is, quo animo, did the parties assemble, whether on account of some private quarrel, or, page 211, to effect innovations of a public and general concern, by an armed force. Upon the case of Damaree and Purchase, reported 8 stat. in. 218. to 285. Judge Foster observes, page 215, that "since the meeting houses of protestant dissenters are, by the toleration act taken under protection of the law, the insurrection in the present case, being to pull down all dissenting protestant meeting-houses, was to be considered as a public declaration of the rabble against that act, and an attempt to render it ineffectual by numbers and open force."
If there be a conspiracy to levy war, and afterwards war is levied, the conspiracy is, in every one of the conspirators, an overt act of this species of treason, for there can be no accessary in high treason, 5 Bac. 115. cites 3 inst. 9. 10. 138 Hales P. C. 14. Kel. 19. 1 Hawk. 38. A compassing or conspiracy to levy war is no treason, for there must be a levying of war in facto. But if many conspire to levy war, and some of them do levy the same according to the conspiracy, this is high treason in all, for in treason all are principals, and war is levied, 3 inst. 9. Foster 213.
The painful task of applying the above rules of law to the several transactions that we have been eye witnesses to, will never be mine. Let me however intreat you, to make the application in your own minds; and those of you that have continued hitherto faithful among the faithless, Abdiel like, to persevere in your integrity; and those of you that have been already ensnared by the accursed wiles of designing men, to cast yourselves immediately upon that mercy, so conspicuous through the British constitution, and which is the brightest jewel in the imperial diadem.
MASSACHUSETTENSIS.