6. The sixth species of treason under this statute, is "if a man counterfeit the king's money: and if a man bring false money into the realm counterfeit to the money of England, knowing the money to be false, to merchandise and make payment withal." As to the first branch, counterfeiting the king's money; this is treason, whether the false money be uttered in payment or not. Also if the king's own minters alter the standard or alloy established by law, it is treason. But gold and silver money only are held to be within the statute (q) (12). With regard likewise to the second branch, importing foreign counterfeit money, in order to utter it here; it is held that uttering it, without importing it, is not within the statute (r). But of this we shall presently say more.

7. The last species of treason ascertained by the statute, is, “if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assise, and all other justices assigned to hear and determine, being in their places doing their offices." These high magistrates, as they represent the king's majesty during the execution of their offices, are therefore for the time equally regarded by the law. But this statute extends only to the actual killing of them, and not wounding, or a bare attempt to kill them. It extends also only to the officers therein specified; and therefore the barons of exchequer, as such, are not within the protection of this act (s): but the lord keeper or commissioners of the great seal now seem to be within it, by virtue of the statutes 5 Eliz. c. 18. and 1 W. & M. c. 21. (13).

[*85]

*Thus careful was the legislature, in the reign of Edward the Third, to specify and reduce to a certainty the vague notions of treason, that had formerly prevailed in our courts. But the act does not stop here, but goes on. "Because other like cases of treason may happen in time to come, which cannot be thought of nor declared at present, it is

(g) 1 Hawk. P. C. 42 (r) Ibid. 43.

(12) The monies charged to be counterfeit ed must resemble the true and lawful coin, but this resemblance is a mere matter of fact, of which the jury are to judge upon the evidence before them; the rule being, that the resemblance need not be perfect, but such as may in circulation ordinarily impose upon the world. Thus a counterfeiting with some little variation in the inscription, effigies, or arms, done probably with intent to evade the law, is yet within it; and so is the counterfeiting a differer metal, if in appearance it be made to resemble the true coin. Hawk. b. 1. c. 17. s. 81. 1 Russ. 80. 1 Hale, 178, 184, 211, 215. 1 East P. C. 163. Round blanks, without any impression, are sufficient, if they resemble the coin in circulation. 1 Leach, 285; and see 1 East P. C. 164. But where the impression of money was stamped on an irregular piece of metal not rounded, without finishing it, so as not to be in a state to pass current, the offence was holden to be incomplete, although the prisoner had actually attempted to pass it in that condition. 2 Bla. Rep. 632; and see 1 Leach, 135.

In treason, as we have before seen, all concerned are in general principals, 1 Hale, 233; but it has been doubted whether receivers of oiners are guilty of more than misprision of

(s) 1 Hal. P. C. 231.

treason, 1 East. P. C. 94, &c.; and on this doubt a convict was pardoned, Dyer, 296. a; but it seems they are traitors, 1 East P. C. 95. except where accessaries before, and principals in the second degree are expressly included in the terms of the act which creates the treason, when the construction has been in general lenient, according to the maxim ex pressum facit cessare tacitum. 1 East P. C. 96. A party who agrees before the fact to re ceive and vend counterfeit coin, is a principal traitor. 1 Hale, 214.

(13) By the statute 7 Ann. c. 21. it is made high treason to slay any of the lords of session, or lords of justiciary, sitting in judgment; or to counterfeit the king's seals appointed by the act of union. The statute 7 Ann. c. 21. has also enacted that the crimes of high treason and misprision of treason shall be exactly the same in England and Scotland; and that no acts in Scotland, except those above specified, shall be construed high treason in Scotland, which are not high treason in England. And all persons prosecuted in Scotland for high treason, or misprision of treason, shall be tried by a jury, and in the same manner as if they had been prosecuted for the same crime in England.

accorded, that if any other cause supposed to be treason, which is not above specified, doth happen before any judge; the judge shall tarry without going to judgment of the treason, till the cause be shewed and declared before the king and his parliament, whether it ought to be judged treason, or other felony." Sir Matthew Hale (t) is very high in his encomiums on the great wisdom and care of the parliament, in thus keeping judges within the proper bounds and limits of this act, by not suffering them to run out (upon their own opinions) into constructive treasons, though in cases that seem to them to have a like parity of reason, but reserving them to the decision of parliament. This is a great security to the public, the judges, and even this sacred act itself; and leaves a weighty memento to judges to be careful and not over-hasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved and settled. 2. He observes, that as the authoritative decision of these casus omissi is reserved to the king and parliament, the most regular way to do it is by a new declarative act; and therefore the opinion of any one or of both houses, though of very respectable weight, is not that solemn declaration referred to by this act, as the only criterion for judging of future trea

sons.

In consequence of this power, not indeed originally granted by the statute of Edward III., but constitutionally inherent in every subsequent par liament (which cannot be abridged of any rights by the act of a precedent one), the legislature was extremely liberal in declaring new treasons in the unfortunate reign of king Richard the Second; as, particularly the killing of an embassador was made so; *which seems to be [*86] founded upon better reason than the multitude of other points, that were then strained up to this high offence: the most arbitrary and absurd of all which was by the statute 21 Ric. II. c. 3. which made the bare purpose and intent of killing or deposing the king, without any overt act to demonstrate it, high treason. And yet so little effect have over-violent laws to prevent any crime, that within two years afterwards this very prince was both deposed and murdered. And in the first year of his successor's reign, an act was passed (u), reciting, "that no man knew how he ought to behave himself, to do, speak, or say, for doubt of such pains of treason; and therefore it was accorded, that in no time to come any treason be judged otherwise than was ordained by the statute of king Edward the Third." This at once swept away the whole load of extravagant treasons introduced in the time of Richard the Second.

But afterwards, between the reign of Henry the Fourth and queen Mary, and particularly in the bloody reign of Henry the Eighth, the spirit of inventing new and strange treasons was revived; among which we may reckon the offences of clipping money; breaking prison or rescue, when the prisoner is committed for treason; burning houses to extort money; stealing cattle by Welshmen; counterfeiting foreign coin; wilful poisoning; execrations against the king, calling him opprobrious names by public writing; counterfeiting the sign manual or signet; refusing to abjure the pope; deflowering or marrying, without the royal licence, any of the king's children, sisters, aunts, nephews, or nieces; bare solicitation of the chastity of the queen or princess, or advances made by themselves; marrying with the king, by a woman not a virgin, without previously discovering to him such her unchaste life; judging or believing (manifested

(t) 1 Hal. P. C. 259.

(u) Stat. 1 Hen. IV. c. 10.

by any overt act) the king to have been lawfully married to Ann of Cleve, derogating from the king's royal style and title; impugning his [*87] supremacy; and assembling riotously to the number of twelve, and not dispersing upon proclamation: all which new-fangled treasons were totally abrogated by the statute 1 Mar. c. 1. which once more reduced all treasons to the standard of the statute 25 Edw. III. Since which time, though the 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 (14).

These new treasons, created since the statute 1 Mar. c. 1. and not comprehended 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.

son.

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 misdemeanor: and, if the offence be repeated, it is high treaAlso 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; 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

the

not on a religious, account. For every popish priest of course re[*88] nounces 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 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, other prince or state (15)."

66

or any
(w) Sir T. Raym. 377.

(14) 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. III. c. 6.) confirming the statute of 25 Edw. III.

(15) In consequence of insults and outra ges, which had been publicly offered to the person of the king, and of the great multitude of seditious publications aiming at the overthrow of the government 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 36th year of his present Majesty's reign, one (c. 7.) intitled

(x) Latch. 1.

"An act for the safety and preservation 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 meet ings and assemblies."

By the first it was enacted, that if any per son should compass, imagine, or intend, death, destruction, 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 parliament, or to excite an invasion of any of his majesty's dominions, and shal express and declare such intentions by print

2. With regard to treasons relative to the coin (16) 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 counterfeit 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 moneyers, 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 besides, 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 contributing to render that public faith suspected. And upon the same reasons, by a law of the emperor Constantine (y), false coiners were declared guilty of high treason, and were condemned to be burnt alive as, by the laws of Athens (2) 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 therefore 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 by Constantine and our Edward the Third, a species of the crimen laesae majestatis or high treason. 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 extensions of the offence have followed the example of that statute, and have made it equally high treason with an endeavour to subvert the government, though not quite equal in its punishment.

(y) C. 9. 24. 2 Cod. Theod. de falsa monela, l. 9. (z) Pott. Ant. b. 1, c. 26.

(a) l. 14, c. 7.

ing, 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 prosecu.

(b) l. 3, c. 3, § 1 & 2.

(c) l. 1, c. 22.

(d) 1 Hal. P. C. 224.

[*98]

For

tion for the same crimes by the common law, unless à prosecution be previously commenced under the statute.

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.

(16) Counterfeiting the current gold or silver coin current in the U. S. is punishable by fine not exceeding 5000 dollars, and imprisonment not exceeding 10 years. Story's laws; 2005, § 20.

In consequence of the principle thus adopted, the statute 1 Mar. c. 1. having at one stroke (17) 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 signet, 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 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. [90] Clipping or defacing the genuine coin was not hitherto included in these statutes; though an offence equally pernicious to trade, and an 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. c. 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 (18); or shall convey the same out of the king's mint; he, together with his counsellors, 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

(e) Ff. 48. 4. 6.

(17) This was done far more effectually six years before by 1 Ed. VI. c. 12. The object of the above statute, by this needless repetition, seems only an endeavour to continue to Mary the popularity which had so justly been gained by her brother.

(18) 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 evidence.

(1) See Hov. n. (1) at end of the Vol. B. IV.