Sivut kuvina

or princess dowager is held to be no treason, in like manner as by the feodal law it was a felony, and attended with a forfeiture of the fief, if the vassal vitiated the wife or daughter of his lord ; but not so if he only vitiated his widow.e

c 3 Inst., 9.

d Feud., l. 1, t. 5.
Ibid., t. 21.


war against


3. The third species of treason is, "if a man do levy war 3. Levying against our lord the king in his realm." And this may be done the king. by taking arms, not only to dethrone the king, but under pre- [82] tense to reform religion, or the laws, or to remove evil counselors, or other grievances, whether real or pretended. the law does not, neither can it, permit any private man, or set of men, to interfere forcibly in matters of such high importance, especially as it has established a sufficient power for these purposes in the high court of Parliament; neither does the constitution justify any private or particular resistance for private or particular grievances, though in cases of national oppression the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the king and his people. To resist the king's forces by defending a castle against them, is a levying of war; and so is an insurrection with an avowed design to pull down all inclosures, all brothels, and the like; the universality of the design making it a rebellion against the state, a usurpation of the powers of government, and an insolent invasion of the king's authority. But a tumult, with a view to pull down a particular house, or lay open a particular inclosure, amounts at most to a riot, this being no general defiance of public government. So, if two subjects quarrel and levy war against each other (in that spirit of private war which prevailed all over Europeh in the early feodal times), it is only a great riot and contempt, and no treason. Thus it happened between the Earls of Hereford and Gloucester, in 20 Edw. I., who raised each a little army, and com

(7) But the instances specified in the statute do not prove much consistency in the application of this reason; for there is no protection given to the wives of the younger sons of the king, though their issue must inherit the crown be fore the issue of the king's eldest daughter, and her chastity is only inviolable before marriage, while her children would be clearly illegitimate.

Before the 25 Edw. III. it was held to be high treason not only to violate the wife and daughters of the king, but also the nurses of his children, les norices pe lour enfantz. Britt., c. 8.-[CHRIST IAN.]

f 1 Hawk., P. C., 37.

1 Hal., P. C., 132.

h Robertson, Ch. V., i., 45, 286.

was the unanimous opinion of the court
that an attempt, by intimidation and vi-
olence, to force the repeal of a law, was
a levying war against the king, and high
treason. Doug., 570.-[CHRISTIAN.]

(9) "There must be an insurrection, it must be accompanied with force, and it must be for an object of a general nature." Therefore, if an armed body enter a town with a leader, their object being neither to take the town nor attack the military, but merely to make a demonstration of strength to procure the liberation of certain political prisoners, this, though an aggravated misdemeanor, is not high treason. Reg. v. Frost, 9 Carr. & P., 129.

(8) Lord Mansfield declared, upon the trial of Lord George Gordon, that it'

mitted outrages upon each other's lands, burning houses, attended with the loss of many lives; yet this was held to be no high treason, but only a great misdemeanor. A bare conspiracy to levy war does not amount to this species of treason; but (if particularly pointed at the person of the king or his government) it falls within the first, of compassing or imagining the king's death.k

4. "If a man be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere," he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence," by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like. By enemies [83] are here understood the subjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coasts, without any open 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, or else in that of levying war against his majesty. And, most indisputably, the same acts of adherence 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." 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. 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

4. Adhering to the king's enemies.

5. Counterfeiting the

5. "If a man counterfeit the king's great or privy seal," this king's seal. is also high treason. But if a man takes wax bearing the im

1 Hal., P. C., 136.

3 Inst., 9; Foster, 211, 213.

13 Inst., 10.

m Foster, 219.

(10) Sending intelligence to the enemy of the destinations and designs of this kingdom, in order to assist them in their operations against us, or in defense of themselves, is high treason, although such correspondence should be intercepted. Dr. Hensey's case, 1 Burr., 650. The same doctrine was held by Lord Kenyon and the court in the case of William Stone, who was tried at the

a Foster, 216.

1 Hawk., P. C., 38. P Foster, 216.

bar of the Court of King's Bench in Hilary Term, 1796. In that case it was held that sending a paper to the enemy, though it was afterward 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.-[CHRIST IAN.]

pression 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 through both the skins. He then dissolved the cement, and [ 84 ] 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 Coken mentions it with some indignation that the party was living at that day."

6. Counterfeiting the

6. The sixth species of treason under this statute is, "if a man counterfeits the king's money, and if a man bring false king's monmoney into the realm counterfeit to the money of England, ey. 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.r1 With regard, likewise, to the second branch, importing foreign counterfeit money, in order to utter it here; it is held that ut

r 1 Hawk., P. C., 42.

a 3 Inst., 16.

(11) In this species of treason is now with intent to evade the law, is yet comprehended the forging or counter- within it; and so is the counterfeiting a feiting, or uttering, knowing the same different metal, if in appearance it be to be forged or counterfeited, the great made to resemble the true coin. Hawk., seal of the United Kingdom, her maj- b. 1, c. 17, s. 81; 1 Russ., 80; 1 Hale, esty's privy seal, any privy signet of 178, 184, 211, 215; 1 East, P. C., 163. her majesty, her majesty's royal sign- Round blanks, without any impression, manual, any of her majesty's seals ap- are sufficient, if they resemble the coin pointed by the articles of union to be in circulation. 1 Leach, 285; and see kept, used, and continued in Scotland, 1 East, P. C., 164. But where the imthe great seal of Ireland, or the privy pression of money was stamped on an seal of Ireland. 1 Will. IV., c. 66, s. 2. irregular piece of metal not rounded, As to the punishment, see 1 Vict., c. 84, without finishing it, so as not to be in a s. 2; post, 93, n. state to pass current, the offense 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.-[CHITTY.]

(12) 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 Now, however, by the express proviare to judge upon the evidence before sion of the stat. 2 Will. IV., c. 34, s. 3, them; the rule being, that the resem- the offense of counterfeiting is to be blance need not be perfect, but such as deemed complete, although the coin may in circulation ordinarily impose made or counterfeited shall not be in a upon the world. Thus a counterfeiting fit state to be uttered, or the counterwith some little variation in the inscrip- feiting thereof shall not be finished or tion, effigies, or arms done probably perfected.

7. Slaying king's chancellor or justices.


ces of the
Statute of


tering it, without importing it, is not within the statute.
of this we shall presently say more."


7. The last species of treason ascertained by this 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 to wounding, or a bare attempt to kill them. It extends, also, only to the officers therein specified; and, therefore, the barons of the 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. & 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 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 can not be thought of nor declared at present, it is 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 showed and declared before the king and his Parliament, whether it ought to be judged treason, or other felony." Sir Matthew Hale" 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 overhasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved

1 Hawk., P. C., 43.

1 Hal., P. C., 231.

" 1 Hal., P. C., 259.

(13) Post, 89-99. By the stat. 2 also enacted that the crimes of high Will. IV., c. 34, so much of the statute treason and misprision of treason shall of Edw. III. as relates to this species be exactly the same in England and of treason is repealed, and the crime is Scotland; and that no acts in Scotland, reduced to felony. The provisions of except those above specified, shall be the statute are stated, post, p. 100, n. 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. [CHRISTIAN.]

(14) 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

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


sous de

In consequence of this power, not, indeed, originally granted New treaby the statute of Edward III., but constitutionally inherent in clared since every subsequent Parliament (which can not be abridged of the statute. 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 founded upon better reason than the multitude of other points that were [86]then strained up to this high offense; 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 afterward this very prince was both deposed and murdered. And in the first year of his successor's reign an act was passed, 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 offenses 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; willful 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 Anne of Cleve; derogating from the king's royal style and title; and impugning his supremacy; and assembling riotously to the number of twelve, and not dispersing

▾ Stat. 1 Hen. IV., c. 10.

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