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the illustrious house of Hanover, it was enacted by statute 13 & 14 W. 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 fons 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 fame, he shall be judged attainted of high treason, and suffer the pains thereof. And to correspond with them, or 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. ft. 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 fettlement, from fucceeding to the crown, and shall malicioufly and directly attempt the fame by any overt act, fuch offence shall be high treason. And by statute 6 Ann. c. 7. if any perfon 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 fettlement; 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 defcent thereof; such person shall be guilty of high treason. This offence (or indeed maintaining this doctrine in any wife, 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 misdemesnor, punishable with forfeiture of goods and chattels, even in the most flourishing aera 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

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upon this statute one Matthews, a printer, was convicted and executed in 1719, for printing a treasonable pamphlet intitled vox populi vox Deid.

THUS much for the crime of treason, or laefae majeftatis, in all it's branches; which confifts, 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 occafioned them a little to depart from this it's primitive idea. But of this enough has been hinted already: it is now time to pass on from defining the crime to describing it's punishment.

THE punishment of high treason in general is very folemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually a sledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and 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 difposalf.

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. But where beheading is no part of the judgment, as in murder or other felonies, it hath been faid that the king cannot change the judgment, although at the request of the party,

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amples in fcripture; for Joab was drawn,
Bithan was hanged, Judas was embowelled,
and so of the rest. (3 Inft. 211.)
81 Hal. P. C. 351.

This punishment for treason sir Edward Coke tells us, is warranted by divers ex

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from one species of death to another. But of this we shall say more hereafter.

In the cafe 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. But in treasons of every kind the punishment of women is the same, and different from that of men. For, as the natural modesty of the sex forbids the exposing and publicly mangling their bodies, their sentence (which is to the full as terrible to sense as the other) is to be drawn to the gallows, and there to be burned alive k.

THE consequences 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.

3 Inft. 52.
1 Hal. P. C. 351.

* 2 Hal. P. C. 399.

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CHAPTER THE SEVENΤΗ.

OF FELONIES, INJURIOUS TO THE KING's PREROGATIVE.

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S, according to the method I have adopted, we are next to confider 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 enquire 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, comprizes every species of crime, which occafioned 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 antiently 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 fir Edward Coke, was antiently comprized under the name of felony: and in confirmation of this we may observe, that the statute of treafons, 25 Edw. III. c. 2. speaking of some dubious crimes, directs a

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reference ►1 Inft. 391.

reference to parliament; that it may be there adjudged, "whe"ther they be treason, or other felony." All treasons therefore, strictly speaking, are felonies; though all felonies are not treason. And to this also we may add, that all offences, now capital, are in some degree or other felony: and this is likewise the cafe with some other offences, which are not punished with death; as suicide, where the party is already dead; homicide by chancemedly, or in felf-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 occafions a total forfeiture of either lands, or goods, or both, at the common law; and tỏ which capital or other punishment may be fuperadded, according to the degree of guilt.

To explain this matter a little farther : the word felony, or felonia, is of undoubted feodal original, being frequently to be met with in the books of feuds, &c; but the derivation of it has much puzzled the juridical lexicographers, Prateus, Calvinus, and the rest: some deriving it from the Greek, Φηλος, an impostor or deceiver; others from the Latin, fallo, fefelli, to countenance which they would have it called fallonia. Sir Edward Coke, as his manner is, has given us a still stranger etymology; that it is crimen animo felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the description, that it is such a crime as works a forfeiture of all the offender's lands, or goods. And this gives great probability to fir Henry Spelman's Teutonic or German derivation of it: in which language indeed, as the word is clearly of feodal original, we ought rather to look for it's fignification, 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 lon, which signifies price or value. Felony is therefore the same as pretium feudi, the confi

• Gloffar. tit. Felon.

deration

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