foreign pirates or robbers, who may happen to invade our coasts, without any a hostilities between their nation and our own, and without any commission from any prince or state at enmity with the crown of Great Britain, the giving them any assistance is also clearly treason; either in the light of adhering to the public enemies of the king and kingdom, (m) or else in that of levying war against his majesty. And, most indisputably, the same acts of adhe ence or aid, which (when applied to foreign enemies) will constitute treason under this branch of the statute, will (when afforded to our own fellow subjects in actual rebellion at home) amount to high treason under the description of levying war against the king. (n) But to relieve a rebel, fled out of the kingdom, is no treason for the statute is taken strictly, and a rebel is not an enemy: an enemy being always the subject of some foreign prince, and one who owes no allegiance to the crown of England. (0) And if a person be under circumstances of actual force and constraint, through a well grounded apprehension of injury to his life or person, this fear or compulsion will excuse his even joining with either rebels or enemies in the kingdom, provided he leaves them whenever he hath a safe opportunity. (p) 5. "If a man counterfeit the king's great or privy seal," this is also high treason. But if a man takes wax bearing the impression of the great seal off from one patent, and fixes it to another, this is held to be only an abuse of the seal, and not a counterfeiting of it: as was the case of a certain chaplain, who in such manner framed a dispensation for non-residence. But the knavish artifice of a lawyer much exceeded this of the divine. One of the clerks in chancery glued together two pieces of parchment, on the uppermost of which he wrote a patent, to which he regularly obtained the great seal, the label going [*84] through both the skins. He then dissolved the cement; and taking off the written patent, on the blank skin wrote a fresh patent, of a different import from the former, and published it as true. This was held no counterfeiting of the great seal, but only a great misprision; and Sir Edward Coke (q) mentions it with some indignation, that the party was living at that day. (m) Foster, 219. (n) Ibid. 216. (0) 1 Hawk. P. C. 38. (p) Foster, 216. (g) 3 inst. 16. was tried at the bar of the court of king's bench, in Hilary term, 1796. In the same case it was held, that sending a paper to the enemy, though it was afterwards intercepted, containing advice not to invade this country, if sent with the intention of assisting their councils in their conduct and in the prosecution of the war, was high treason. 6 T. R. 527.] Treason against the United States is very carefully defined and limited by the constitution, and it can consist "only in levying war against them, or in adhering to their enemies, giving them aid and comfort." Const. of United States, art. 3, § 3. And by the same section, "No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." See, also, act of April 30, 1790 (1 Stat. at Large 112), prescribing the penalty of death for this offence. The question, what is treason under the constitution, was considered in Ex parte Bollman, 4 Cranch, 75, and it was there held that a conspiracy to subvert the government by force is not treason, but that war must be actually levied. See also U. S. v. Hanway, 1 Wal. Jr. 139; Respublica e. Carlisle, 1 Dall. 35. In Fries' Case (Whart. State Trials, 634), Judge Chase, of the United States supreme court, charged the jury, among other things, as follows: "It is the opinion of the court that any insurrection or rising of any body of people, within the United States, to attain or effect by force or violence any object of a great public nature, or of public and general (or national) concern, is a levying of war against the United States within the contemplation and construction of the constitution. "On this general position the court are of opinion that any such insurrection or rising to resist, or to prevent by force or violence, the execution of any statute of the United States, for levying or collecting taxes, duties, imposts or excises; or for calling forth the militia to execute the laws of the Union, or for any other object of a general nature or national concern, under any pretence, as that the statute was unjust, burthensome, oppressive or unconstitutional, is a levying war against the United States within the contemplation and construction of the constitution. The reason for this opinion is, that an insurrection to resist or prevent by force the execution of any statute of the United States has a direct tendency to dissolve all the bands of society, to destroy all order and all laws, and also all security for the lives, liberties and property of the citizens of the United States. "The court are of opinion that military weapons (as guns and swords, mentioned in the indictment) are not necessary to make sneh insurrection or rising amount to a levying war, 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. (r) (10) 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. (s) 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 assize, 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: (t) 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. and M. c. 21. *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 [*85 ] (r) 1 Hawk. P. C. 42. (s) Ibid. 43. (t) 1 Hal. P. C. 231. because members may supply the want of weapons, and other instruments may effect the intended mischief. The legal guilt of levying war may be incurred without the use of military weapons or military array. "The court are of the opinion that the assembling of bodies of men, armed and arrayed in a warlike manner, for purposes only of a private nature, is not treason, although the judges or other peace officers should be insulted or resisted, or even great outrages committed to the persons or property of our citizens. "The true criterion whether acts committed are treason or a less offence (as a riot) is the quo animo, or the intention, with which the people did assemble. When the intention is universal or general, as to effect some object of a general public nature, it will be treason, and cannot be considered, construed, or reduced to a riot. The commission of any number of felonies, riots, or other misdemeanors, cannot alter their nature, so as to make them amount to treason; and on the other hand, if the intention and acts combined amount to a treason, they cannot be sunk down to a felony or riot. The intention with which any acts (as felonies, the destruction of property or the like) are done, will show to what class of crimes the case belongs." See also U. S. v. Hanway, 2 Wal. Jr. 144; U. S. v. Mitchell, 2 Dall. 348; U. S. v. Vigols, id. 246; U. S. v. Hoxie, 1 Paine, 265. And as to what is adhering to the enemies of the United States, see U. S. v. Hodges, 2 Dall. 87; U. S. v. Pyron, 3 Wash. C. C. 234, And see 2 Bish. Cr. L. §§ 1032 to 1038 (where the doctrine of Judge Chase, above stated, is somewhat questioned), Whart. Cr. L. 2718, et seq. Attainder of treason against the United States works corruption of blood, or forfeiture only during the life of the person attainted. Const.. art. 3, § 3. Treason may also be committed against the several states. The crime is generally defined and limited in the state constitutions in the same manner as in the constitution of the United States, and the punishment prescribed is the same. (10) [The moneys charged to be counterfeited 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 different 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.] This offence is now a felony only. Statute 24 and 25 Vic. c. 99. 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 accorded, that if any other case 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 showed and declared before the king and his parliament, whether it ought to be judged treason, or other felony." Sir Matthew Hale (u) 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 treason's, 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 treasons. In consequence of this power, not, indeed, originally granted by the statute of Edward III, but constitutionally inherent in every subsequent parliament (which cannot be abridged of any rights by the acts 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 ambassador was made so; *which seems to be founded upon better reason than [*86] 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, (v) 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 afterward, 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 license, 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 by any overt act) the king to have been lawfully married to Ann of Cleves; derogating from the king's Boyal style and title; impugning his su[*8% ] premacy; 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. (11) 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. 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 de fend the pope's jurisdiction in this realm, is, for the first time, a heavy misde meanor: 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 on 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 [*88] 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, or any other prince or state." 66 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 of 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, (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 practiced rather for the sake of private and unlawful lucre, than out of any disaffection to the sovereign. And therefore, both this and its kindred species of treason, that of counterfeiting the seals of the crown or other [*89] (y) C. 9, 24. 2 Cod. Theod. de falsa moneta, l. 9. (11) [The statute 1 Mar. c. 1, was only a confirmation, so far, of a much more important statate, viz.: 1 Edw. VI, c. 12. See the statute 36 Geo. III, c. 7, rendered perpetual by 57 Geo. III, <. 6, confirming the statute of 25 Edw. III.] 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 læsæ 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 specics 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 endeavor to subvert the government, though not quite equal in its punish ment. In consequence of the principle thus adopted, the statute 1 Mar. c. 1, having at one stroke (12) 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, 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 and 2 P. and 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. *Clip[*90] ping 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 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; (13) or shall convey the same out of the king's mint; he, together with his counsellors, procurers, aiders, and abettors, shall be guilty of (a) L. 14, c. 7. (b) L. 3. c. 3. §§ 1 and 2. (c) L. 1, c. 22. (12) [This was done far more effectually six years before by 1 Edw. VI, c. 12. The object of the above statute, by this needless repetition, seems only an endeavor to continue to Mary the popularity which had so justly been gained by her brother.] (13) The law on this subject is now to be found in statute 24 and 25 Vic. c. 99. which makes the offence felony only. |