on.

had formerly prevailed in our courts. But the act does not stop here, but goes "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 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 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, ot 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 royal style and title; impugning his supremacy; and assembling riotously to the *number of twelve, and not

[*87] 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 misdemeanor: 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."

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

(wo) Sir T. Raym. 377.
(z) Pott. Ant. b. 1, c. 26.

[*89]

(11) [The statute 1 Mar. c. 1, was only a confirmation, so far, of a much more important statnte, 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.
(d) 1 Hal. P. C. 224.

(b) L. 3. c. 3. §§ 1 and 2.
(e) Ff. 48, 4, 6.

(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.

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

offence, except those for making or mending any coining tool or instru- [*91] ment, or for marking money round the edges; which are directed to be commenced within six months after the offence committed. (f) (14) 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. (15)

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 endeavour 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 act, such offence shall be high treason. And by statute 6 Ann. [*92] 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

(f) Stat. 7 Ann. c. 25

(14) [If a person is apprehended in the act of coining, or is proved to have made 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 aquafortis, 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 coloring under this statute. Lavey's case, id. 140.]

(15) The counterfeiting, &c., of copper coin, the making, mending, &c., of tools or implements for the purpose, and having the same in custody without lawful excuse, &c., 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, &c., of tools, &c., for counterfeiting the copper coin was a common-law misdemeanor only. The present statute on the subject is 24 and 25 Vic. c. 99. Offenses against the currency are punishable in the federal courts of the United States, under various acts of congress, as statutory offences. But they may also be punished by the states; the same act constituting an offence against each sovereignty. Fox v. Ohio, 5 How. 410; U. S. v. Marri goid, 9 How. 56C Moore v. People, 14 How. 13.

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 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.” (g)

Thus much for the crime of treason, or læsæ 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 hur dle 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 [*93] 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 quarters be at the king's disposal. (k) (16)

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. (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. (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 all together, as well in treason as in other offences.

(h) 33 Ass. pl. 7.

(i) 1 Hal. P. C. 382.

(g) State Tr. ix. 680. 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.

(m) 3 Inst. 52.

(n) See ch. 32.

.

(0) 1 Hal. P. C. 351,

(p) 2 Hal. P. C. 399.

(16) [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.

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.]