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. *Clipping or defacing the genuine coin was not hitherto included in these statutes; though an offence equally pernicious [*90] 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 statutes was made treason by the Julian law; together with other offences of the like sort, according to that vague conclusion, "alliudve quid simile, si admiserint" (or if they committed any thing of the same kind). 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 to be 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 and 9 Wm. 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;1 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, guild, 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 [*91] offence, except those for making or mending 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. (f) And, lastly, by statute 15 and 16 Geo. II, 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 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.2 (e) Ff. 48, 4, 6. (f) Stat. 7 Ann. c. 25. 1 This offense is now reduced to felony in England. The counterfeiting, etc., of copper coin, the making, mending, etc., of tools or implements for the purpose, and having the same in custody with 3. The other new species of high treason is such as is created for the security 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 and 14 Wm. 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 endeavor to deprive or hinder any person, being the next in succession 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 [*92] act, such offence shall be high treason. And by statute 6 Ann. c. 7, if any person shall maliciously, advisedly, and directly, by writing 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 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 misdemeanor, punishable with forfeiture of goods and chattels, even in the most flourishing æra of indefeasible hereditary right and jure divino (by divine right) 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, entitled, "Vox populi vox Dei" (The voice of the people is the voice of God). (g) (g) State Tr. ix. 680. out lawful excuse, etc., were made punishable as felonies under statute 2 Wm. IV, c. 34. The uttering or putting in circulation of counterfeit copper coin was not before indictable at all: Rex v. Curwan, 1 East P. C. 182; and the making, etc., of tools, etc., for counterfeit ing the copper coin was a common-law misdemeanor only. Offenses against the currency are punishable in the federal courts of the United States, under various acts of congress, as statutory offenses. But they may also be punished by the states; the same act constituting an offense against each sovereignty. Fox v. Ohio, 5 How. 410; U. S. v. Marigold, 9 How. 560; Moore v. People, 14 How. 13. Thus much for the crime of treason, or læse 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 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 punishment. The punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the 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. (2) 2. That he *be hanged by the neck, and then cut down alive. 3. That his entrails be taken [*93] 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 quarters be at the king's disposal. (k)1 The king may, and often doth, discharge all the punishment, except beheading, especially where any of noble blood are attainted. For beheading, being part of the judgment, that may be executed, though all the rest be omitted by the king's command. (1) 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. (0) 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) 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 altogether, as well in treason as in other offences. (h) 33 Ass. pl. 7. (i) 1 Hal. P. C. 382. (k) This punishment for treason, Sir Edward Coke tells us, is warranted by divers examples in Scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.) (7) 1 Hal. P. C. 351. (0) 1 Hal. P. C. 351. (m) 3 Inst. 52. 1The punishment for treason was changed to hanging in case of women (81) (n) See ch. 32. 1281 by stat. 30 Geo. III, c. 48, and in case of men by stat. 54 Geo. III, c. 146. : [*94] *CHAPTER VII. OF FELONIES INJURIOUS TO THE KING'S PREROGATIVE. As, according to the method I have adopted, we are next to consider such felonies as are more immediately injurious to the king's prerogative, it will not be amiss here, at our first entrance upon this crime, to inquire briefly into the nature and meaning of felony: before we proceed upon any of the particular branches into which it is divided. Felony, in the general acceptation of our English law, comprises every species of crime, which occasioned at common law the forfeiture of lands or goods. This most frequently happens in those crimes, for which a capital punishment either is or was liable to be inflicted: for those felonies which are called clergyable, or to which the benefit of clergy extends, were anciently punished with death, in all lay, or unlearned offenders; though now by the statute-law that punishment is for the first offence universally remitted. Treason itself, says Sir Edward Coke, (a) was anciently comprised under the name felony: and in confirmation of this we may observe that the statute of treasons, 25 Edw. III, c. 2, speaking of some dubious crimes, directs a reference to parliament; *that [*95] it may there be adjudged, "whether they be treason, or other felony." All treasons, therefore, strictly speaking, are felonies; though all felonies are not treasons. And to this also we may add, that not only all offences, now capital, are in some degree or other felony; but that this is likewise the case with some other offences, which are not punished with death; as suicide, where the party is already dead; homicide by chance medley, or in self-defence; and petit larceny or pilfering: all which are (strictly speaking) felonies, as they subject the committers of them to forfeitures. So that upon the whole the only adequate definition of felony seems to be that which is before laid down; viz., an offence which occasions a total forfeiture of either lands, or goods, or both, at the common law; and to which capital or other punishment may be superadded, according to the degree of guilt. Derivation of term.- To explain this matter a little farther: the word felony or felonia is of undoubted feudal origin, being frequently to be met with in the books of feuds, &c.; but the deriva (a) 3 Inst. 15. 1 In some of the United States by statute the term "felony" is made to embrace all offenses for which a specified punishment may be imposed; e. g., imprisonment in the state penitentiary. People v. Van Steenburgh, 1 Park. C. R. 39. In the absence of such statutory definition, those offenses are felonies which were so at the common law. Ward v. People, 3 Hill, 395; Drennan v. People, 10 Mich. 169; though in Ohio, where all offenses are statutory, it has been said that "the term felony has no distinct and well-defined meaning applicable to our system of crimi nal jurisprudence. In England it has a well-known and extensive signification, and comprises every species of crime which, at common law, worked a forfeiture of goods and lands. But under our criminal code the word felonious, though occasionally used, expresses a signification no less vague and indefinite than the word criminal." Matthews v. State, 4 Ohio St. 539. tion of it has much puzzled the juridicial lexicographers, Præteus, Calvinus and the rest: some deriving it from the Greek los, an imposter or deceiver; others from the Latin fallo, fefelli (to deceive), to countenance which they would have it called fallonia. Sir Edward Coke, as his manner is, has given us a still stranger etymology; (b) that it is crimen anima felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the description, that it is such a crime as occasions a forfeiture of all the offender's lands or goods. And this gives great probability to Sir Henry Spelman's Teutonic or German derivation of it: (e) in which language indeed, as the word is of clearly feudal original, we ought rather to look for its signification, than among the Greeks and Romans. Fe-lon then, according to him, is derived from two northern words: fee, which signifies (we well know) the fief, feud, or beneficiary estate; and lau, which signifies price or value. Felony is therefore the same as pretium feudi, the *consideration for which a man gives up [*96] his fief; as we say in common speech, such an act is as much as your life or estate is worth. In this sense it will clearly signify the feudal forfeiture, or act by which an estate is forfeited, or escheats to the lord. To confirm this we may observe, that it is, in this sense, of forfeiture to the lord, that the feudal writers constantly use it. For all those acts, whether of a criminal nature or not, which at this day are generally forfeitures of copyhold estates, (d) are styled felonia in the feudal law: "scilicet per quas feudum amittitur" (that is, by which the fee is lost). (e) As "si domino deservire noluerit; (f) si per annum et diem cessaverit in patenda investitura: (g) si dominum ejuraverit, i. e., negaverit se a domino feudum habere; (h) si a domino, in jus eum vocante, ter citatus non comparuerit” (1) (if he be unwilling to serve his lord; if for a year and a day he has failed to demand for possession; if he deny his master upon oath, i. e. deny that he holds his feud of his lord, or if being thrice called in court he does not appear); all these, with many others, are still causes of forfeiture in our copyhold estates, and were denominated felonies by the feudal constitutions. So likewise injuries of a more substantial or criminal nature were denominated felonies, that is, forfeitures: as assaulting or beating the lord; (k) vitiating his wife or daughter, "si dominum cucurbitaverit, i. e., cum uxore ejus concubuerit" (if he dishonour his lord, that is, lie with his wife); (4) all these are esteemed felonies, and the latter is expressly so denominated, "si fecerit felonium, dominum forte cucurbitando" (if he commit felony, as by dishonouring his lord). (m) And as these contempts, or smaller offences, were felonies or acts of forfeiture, of course greater crimes, as murder and robbery, fell under the same denomination. On the other hand, the lord might be guilty of felony, or forfeit his seigniory to the vassal, by the same acts as the vassal would have forfeited his feud to the lord. "Si dominus commiserit feloniam, per quam vassalus amitterit feudum si eam commiserit in dominum, feudi proprietatem etiam dominus perdere debet." (If the lord commit a felony which if committed by the vassal would cause (b) 1 Inst. 391. (c) Glossar. tit. Felon. (d) See book II, page 284. (e) Feud. 1. 2, t. 16, in calc. |