legislature has been more cautious in creating new offences of this kind, yet the number is very considerably increased, as we shall find upon a short review.13

These new treasons, created since the statute 1 Mar. c. 1. and not com. prehended under the description of statute 25 Edw. III. I shall comprise under three heads. 1. Such as relate to papists. 2. Such as relate to falsifying the coin or other royal signatures. 3. Such as are created for the security of the protestant succession in the house of Hanover.

1. The first species, relating to papists, was considered in a preceding chapter, among the penalties incurred by that branch of non-conformists to the national church; wherein we have only to remember, that by statute 5 Eliz. c. 1. to defend the pope's jurisdiction in this realm is, for the first time, a heavy misdemesnor; and, if the offence be repeated, it is high treason. Also by statute 27 Eliz. c. 2. if any popish priest, born in the dominions of the crown of England, shall come over hither from beyond the seas, unless driven by stress of weather, (w) and departing in a reasonable time; (x) or shall tarry here three days without conforming to the church, and taking the oaths; he is guilty of high treason. And by statute 3 Jac. I. c. 4. if any natural-born subject be withdrawn from his allegiance, and reconciled to the pope or see of Rome, or any other prince or state, both he and all such as procure such reconciliation shall incur the guilt of high treason. These were mentioned under the division before referred to, as spiritual offences, and I now repeat them as temporal ones also; the reason of distinguishing these overt acts of popery from all others, by setting the mark of high treason upon them, being certainly on a civil, and not on a religious, account. For every popish priest of course renounces his allegiance to his temporal sovereign upon taking orders; that being inconsistent with his new engagements of canonical obedience to the pope ;

and the same may be said of an obstinate defence of his authority [88] here, or a formal reconciliation to the see of Rome, which the statute construes to be a withdrawing from one's natural allegiance; and therefore, besides being reconciled" to the pope," it also adds, " or any other prince or state."

99 14

(13) The 1 Mar. c. 1. was only a confirmation so far of a much more important statute, viz. 1 Ed. VI. c. 12. See the statute 36 Geo. III. c. 7. (rendered perpetual by 57 Geo. Il c. 6.) confirming the statute of 25 Edw. III.

(14) In consequence of insults and outrages, which had been publicly offered to the person of the king, and of the great multitude of seditions publications aiming at the overthrow of the go. vernment of this country, and also of the frequent seditious meetings and assemblies held at that time to destroy the security and tranquillity of the public, two acts of parliament were passed in the 56th year of his present Majesty's reign, one (c. 7.) intitled "An act for the safety and preser vation of his Majesty's person and government against treasonable and seditious practices and attempts;" and the other (c. 8) "An act for the more effectually preventing seditious meetings and assemblies."

By the first it was enacted; that if any person should compass, imagine, or intend, death, de struction, or any bodily harm to the person of the king, or to depose him, or to levy war, in order by force to compel him to change his measures or counsels, or to overawe either house of parlia ment, or to excite an invasion of any of his majesty's dominions, and shall express and declare such intentions by printing, writing, or any overt act, he shall suffer death as a traitor.

And if any one by writing, printing, preaching, or other speaking, shall use any words or sentences to excite the people to hatred and contempt of the king, or of the government and constitution of this realm, he shall incur the punishment of a high misdemeanor; that is, fine, imprisonment, and pillory: and for a second offence, he is subject to a similar punishment, or transportation for seven years, at the discretion of the court.

But a prosecution for a misdemeanor under this act must be brought within six months. And this statute shall not affect any prosecution for the same crimes by the common lawy unless a prou secution be previously commenced under the statute.-Mr. Christian's note.

2. With regard to treasons relative to the coin or other royal signatures, we may recollect that the only two offences respecting the coinage, which are made treason by the statute 25 Edw. III., are the actual counterfeiting the gold and silver coin of this kingdom; or the importing such counter feit money with intent to utter it, knowing it to be false. But these not being found sufficient to restrain the evil practices of coiners and false mo. neyers, other statutes have been since made for that purpose. The crime itself is made a species of high treason; as being a breach of allegiance, by infringing the king's prerogative, and assuming one of the attributes of the sovereign to whom alone it belongs to set the value and denomination of coin made at home, or to fix the currency of foreign money and be. sides, as all money which bears the stamp of the kingdom is sent into the world upon the public faith, as containing metal of a particular weight and standard, whoever falsifies this is an offender against the state, by contri buting to render that public faith suspected. And upon the same reasons, by a law of the emperor Constantine, (y) false coiners were declared guil ty of high treason, and were condemned to be burnt alive: as, by the laws of Athens (z) all counterfeiters, debasers, and diminishers of the current coin were subjected to capital punishment. However, it must be owned; that this method of reasoning is a little overstrained: counterfeiting or debasing the coin being usually practised, rather for the sake of private and unlawful lucre, than out of any disaffection for the sovereign. And there. fore both this and its kindred species of treason, that of counterfeiting the seals of the crown or other royal signatures, seem better denominated by the later civilians a branch of the crimen falsi or forgery (in which they are followed by Glanvil, (a) Bracton, (b) and Fleta), (c) than [89] by Constantine and our Edward the Third, a species of the crimen laesae majestatis or high treason. For this confounds the distinction and proportion of offences; and, by affixing the same ideas of guilt upon the man who coins a leaden groat and him who assassinates his sovereign, takes off from that horror which ought to attend the very mention of the crime of high treason, and makes it more familiar to the subject. Before the statute 25 Edw. III. the offence of counterfeiting the coin was held to be only a species of petit treason; (d) but subsequent acts in their new extension of the offence have followed the exemple of that statute, and have made it equally high treason with an endeavour to subvert the government, though not quite equal in its punishment.

In consequence of the principle thus adopted, the statute 1 Mar. c. 1. having at one stroke repealed all intermediate treasons created since the 25 Edw. III. it was thought expedient by statute 1 Mar. st. 2. c. 6. to revive two species thereof, viz. 1. That if any person falsely forge or counterfeit any such kind of coin of gold or silver, as is not the proper coin of this realm, but shall be current within this realm by consent of the crown; or, 2. shall falsely forge or counterfeit the sign manual, privy sig. net, or privy seal; such offences shall be deemed high treason. And by statute 1 & 2 P. & M. c. 11. if any persons do bring into this realm such false or counterfeit foreign money, being current here, knowing the same to be false, with intent to utter the same in payment, they shall be deemed y C. 9. 24. 2 Cod. Theod. de falsa moneta, l. 9. a l. 14. c. 7. b l. 3. c. 3. § 1 & 2

c l. 1. c. 22.

z Pott. Ant. b. 1. c. 26. di Hal P. C. 224.

The contagion of French revolutionary principles in 1795, gave occasion for the passing of these acts. The last of them was passed for three years only; and of the former, ss. 1. 5, 6. are made perpetual by 57 Geo. III. c. 6.; the rest is expired.

offenders in high treason. The money referred to in these statutes must be such as is absolutely current here, in all payments, by the king's proclamation; of which there is none at present, Portugal money being only taken by consent, as approaching the nearest to our standard: and falling in well enough with our divisions of money into pounds and shillings: therefore to counterfeit it is not high treason, but another inferior offence.15 Clipping or defacing the genuine coin was not hitherto included in these

statutes: though an offence equally pernicious to trade, and an [90] equal insult upon the prerogative, as well as personal affront to the sovereign whose very image ought to be had in reverence by all loyal subjects. And therefore among the Romans, (e) defacing or even melting down the emperor's statues was made treason by the Julian law; together with other offences of the like sort, according to that vague conclusion, "aliudve quid simile si admiserint.” And now in England, by statutes 5 Eliz. c. 11. clipping, washing, rounding, or filing, for wicked gain's sake, any of the money of this realm, or other money suffered to be current here, shall be adjudged high treason; and by statute 18 Eliz. e. 1. (because "the same law, being penal, ought to be taken and expounded strictly according to the words thereof, and the like offences, not by any equity to receive the like punishment or pains"), the same species of offences is therefore described in other more general words; viz. impairing, diminishing, falsifying, scaling, and lightening; and made liable to the same penalties. By statute 8 & 9 W. III. c. 26. made perpetual by 7 Ann. c. 25. whoever, without proper authority, shall knowingly make or mend, or assist in so doing, or shall buy, sell, conceal, hide, or knowingly have in his possession, any implements of coinage specified in the act, or other tools or instruments proper only for the coinage of money; or shall convey the same out of the king's mint; he, together with his counsel. lors, procurers, aiders, and abettors, shall be guilty of high treason, which is by much the severest branch of the coinage law. The statute goes on farther, and enacts that to mark any coin on the edges with letters, or otherwise in imitation of those used in the mint; or to colour, gild, or case over any coin resembling the current coin, or even round blanks of base metal; shall be construed high treason. But all prosecutions on this act are to be commenced within three months after the commission of the offence: "except those for making or amending any coining tool or instrument, or for marking money round the edges; which are directed to be commenced within six months after the offence committed. (ƒ) And,

16

(15) See post, 98, 99, as to the offences relative to coin not amounting to high treason.

18

(16) As to what tools or instruments are within the act, see Fost. 430. 1 East. P. C. 170. 171. 1 Leach, 189 A mould for coining is within the act. 1 East P. C. 170. So is a press for coinage. Fost. 430. By the 8 & 9 Wm. III. c. 26. s. 5. the tools, &c. may be seized to produce in ovidence.

(17) And it is incumbent on the prosecutor to shew the prosecution was commenced within that time. Proof by parol that the prisoner was apprehended for treason respecting the coin within the three months, will not be sufficient, if the indictment is after the three months, and the warrant to apprehend or commit are produced. Russ. & R. C. C. 369.

(18) If a person is apprehended in the act of coining, or is proved to have made a considerable progress in making counterfeit pieces resembling the gold or silver coin of this realm, yet if they are so imperfect as that no one would take them, he cannot be convicted upon the charge of coining under this statute. Leach, 71. 126. But he may be convicted, if he has made blank pieces without any impression to the similitude of silver coin worn smooth by time. Welch's case, Ibid. 293. Or if any one shall put pieces of mixed metal into acqua fortis, which attracts the baser metal and leaves the silver upon the surface, or, as the vulgar say, draws out the silver, this is held to be colouring under this statute. Lavey's case, Ibid. 140.

In a case at Durham, where a man had been committed more than three months before his

lastly, by statute 15 & 16 Geo. III. c. 28. if any person colours or alters any shilling or sixpence, either lawful or counterfeit, to make them respectively resemble a guinea or half-guinea; or any halfpenny or [91] farthing to make them respectively resemble a shilling or sixpence;

this is also high treason: but the offender shall be pardoned, in case (being out of prison) he discovers and convicts two other offenders of the same kind.

3. The other new species of high treason is such as is created for the se. curity of the protestant succession over and above such treasons against the king and government as were comprised under the statute 25 Edw. III. For this purpose, after the act of settlement was made, for transferring the crown to the illustrious house of Hanover, it was enacted by statute 13 & 14 W. III. c. 3. that the pretended prince of Wales, who was then thirteen years of age, and had assumed the title of king James III., should be attainted of high treason; and it was made high treason for any of the king's subjects, by letters, messages, or otherwise, to hold correspondence with him, or any person employed by him, or to remit any money for his use, knowing the same to be for his service. And by statute 17 Geo. II. c. 39 it is enacted, that if any of the sons of the pretender shall land or attempt to land in this kingdom, or be found in Great Britain, or Ireland, or any of the dominions belonging to the same, he shall be judged attainted of high treason, and suffer the pains thereof. And to correspond with them, or to remit money for their use, is made high treason in the same manner as it was to correspond with the father. By the statute 1 Ann. st. 2. c. 17. if any person shall endeavour to deprive or hinder any person, being the next in suc、 cession to the crown according to the limitations of the act of settlement, from succeeding to the crown, and shall maliciously and directly attempt the same by any overt act, such offence shall be high treason. And by statute 6 Ann. c. 7. if any person shall maliciously, advisedly, and directly, by writ ing or printing, maintain and affirm, that any other person hath any right or title to the crown of this realm, otherwise than according to the act of settlement; or that the kings of this realm with the authority of parliament are not able to make laws and statutes, to bind the crown and the descent thereof: such person shall be guilty of high treason. This [92] offence (or indeed maintaining this doctrine in any wise, that the king and parliament cannot limit the crown) was once before made high treason by statute 13 Eliz. c. 1. during the life of that princess. And after her decease it continued a high misdemesnor punishable with forfeiture of goods and chattels, even in the most flourishing æra of indefeasible heredi, tary right and jure divino succession. But it was again raised into high treason, by the statute of Anne before mentioned, at the time of a projected invasion in favour of the then pretender; and upon this statute one Matthews, a printer, was convicted and executed in 1719, for printing a treasonable pamphlet, entitle "vox populi vox Dei.” (g)

Thus much for the crime of treason, or laesae majestatis, in all its branches; which consists, we may observe, originally, in grossly counteracting that allegiance which is due from the subject by either birth or residence; though, in some instances, the zeal of our legislators to stop the progress of

g State Tr. IX. 680.

trial, for an offence under this statute, and upon conviction his case was reserved for the opinion of the judges, they determined that the commitment was the commencement of the prosecution, otherwise the crime might be committed with impunity balf the year in the four northern coim ties. Mr. Christian's note. See further, ante. 84.

VOL. II.

56

some highly pernicious practices has occasioned them a little to depart from this its primitive idea. But of this enough has been hinted already : it is now time to pass on from defining the crime to describing its punish

ment.

The punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to he gallows, and not be carried or walk : though usually (by connivance, (h) at length ripened by humanity into law) a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. (i) 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quar. ters be at the king's disposal. (k)

The king may, and often doth, discharge all the punishment, except beheading, especially where any of noble blood are attainted. For [93] beheading being part of the judgment, that may be executed, though

all the rest be omitted by the king's command. (7) But where beheading is no part of the judgment, as in murder or other felonies, it hath been said that the king cannot change the judgment, although at the request of the party, from one species of death to another. (m) But of this we shall say more hereafter. (n)

In the case of coining, which is a treason of a different complexion from the rest, the punishment is milder for male offenders: being only to be drawn and hanged by the neck till dead. (o) But in treasons of every kind the punishment of women is the same, and different from that of men. For, as the decency due to the sex forbids the exposing and publicly mangling their bodies, their sentence (which is to the full as terrible to sensation as the other) is to be drawn to the gallows, and there to be burned alive. (p) 19 The consequence of this judgment, (attainder, forfeiture, and corruption of blood) must be referred to the latter end of this book, when we shall treat of them all together, as well in treason as in other offences.

This punishment for treason, sir Edward Coke tells us, is warranted by divers examples in Scripture; for Joab was drawn, Bigthan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.) 11 Hal. P. C. 351. n See ch. 32. o 1 Hal. P. C, 351.

m 3 Inst. 52.

p 2 Hal. P. C. 399.

(19) But now by the statute 30 Geo. III. c. 48 women convicted, in all cases, of treason, shall receive judgment to be drawn to the place of execution, and there to be hanged by the neck till dead. Before this humane statute, women from the remotest times were sentenced to be burned alive for every species of treason: Et si nule femme de ascune treson soit attainte, soit ars. Britt. c. 8.

And now by 54 Geo. III. c 146 the judgment against a man for high treason is, in effect, that he shall be drawn on a hurdle to the place of execution, and be there hanged by the neck until he be dead, and that afterwards his head shall be severed from his body, and his body, divided into four quarters, shall be disposed of as the king shall think fit; with power to the king, by special warrant, in part to alter the punishment. A month's time has been allowed between sentence and execution. 1 Burr. 650, 1. But the last execution for this offence followed (and properly so, for the purpose of example) more closely upon conviction. Thistlewood and his fel low conspirators, were condemned and executed within a few days after their trial.

Christian

1