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JOHN HODGES. 173

acquitted ; because he was not the enemy of the king, mor the
friend of any man who was his enemy.

Take the case of a man who, in time of war, is charged with
the defense of an important fortress or castle, which he sur-
renders to an incompetent force. What more effectual means
eonld he have adopted to aid the enemy than the delivery of
this fastness? The books all tell you that if he was bribed to
this desertion of his duty, if he did it with a view to benefit
the enemy, he is guilty of treason. But if pusillanimity was
the cause, or if it arose from a false calculation of his own
means, or the force of the enemy, he is not a traitor. You
may banish him with ignominy from the ranks which he has
disgraced, or try him by martial law as a coward or & fool;
but he bas committed no treason.

Suppose a powerful force to invade the country, to which
all resistance ig hopeless; they levy contributions; they do not
proclaim that they will hang me if I neglect to comply with
this order; but they threaten plunder and desolation, I know
they have the power to execute that threat—and I comply ac-
eordingly. Now, the paying of money, or the furnishing of
provisions, is an assistanee—it is ‘‘giving aid and comfort,’”
much more effectually than the delivery of a few prisoners, or
a deserter. Yet no man will call this treason; because there
is no evidence of hostility to the interests of the country. ‘The
authorities say it is not treason.

In Stone’s case (1 East Cro. L. 79). the indictment charged
ag an overt act of adherence to the enemy, that the prisoner
conspired, with others, to collect intelligence within England
and Ireland, of the disposition of the king’s subjects, in case
of an invasion of either country, and to communicate such in-
telligence to the enemy. The tendency of parts of the cor-
Tespondence, which was given in evidence, was to advise the
enemy against an invasion of England, by representing the
improbability of its being attended with any suceess, from the .
general disposition of the people.

Now it was scarcely possible that such a correspondence
eould have been opened and maintained with other than eor-

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