Blackstone's Commentaries on the Laws of England
Book the Fourth - Chapter the Sixth : Of High Treason
CHAPTER THE SIXTH.
OF HIGH TREASON.
THE third general divifion of crimes confifts of fuch, as more efpecially affect the fupreme executive power, or the king and his government ; which amount either to a total renunciation of that allegiance, or at the leaft to a criminal neglect of that duty, which is due from every fubject to his fovereign. In a former part of thefe commentaries
a we had occafion to mention the nature of allegiance, as the tie or ligamen which binds every fubject to be true and faithful to his fovereign liege lord the king, in return for that protection which is afforded him ; and truth and faith to bear of life and limb, and earthly honour ; and not to know or hear of any ill intended him, without defending him therefrom. And this allegiane, we may remember, was diftinguifhed int two forts or fpecies : the one natural and perpetual, which is inherent only in natives of the king's dominiouns ; the other local and temporary, which is incident to aliens alfo. Every offence therefore more immediately affecting the royal perfon, his crown, or dignity, is in fome degree a breach of this duty of allegiance, whether natural and innate, or local and acquired by refidence : and thefe may be diftinguifhed into four kinds ; 1. Treafon. 2. Felonies injurious to the king's prerogative. 3. Praemunire. 4. Other mifprifions and contempts. Of which crimes the firft and principal is that of treafon.
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a Book.I ch.10.
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TREASON,
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CH. 6.
TREASON, proditio, in it's very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, faith the mirror
b : for treafon is indeed a general appellation, made ufe of by the law, to denote not only offences againft the king and government, but alfo that accumulation of guilt which arifes whenever a fuperior repofes a confidence in a fubject or inferior, between whom and himfelf there fubfifts a natural, a civil, or even a fpiritual relation ; and inferior fo abufes that confidence, fo fortgets the obligations of duty, fubjection, and allegiance, as to deftroy the life of any fuch his fuperior or lord. This is looked upon as proceeding from the fame principle of treachery in private life, as would have urged him who harbours it to have confpired in public againft his liege lord and fovereign : and therefore for a wife to kill her lord or hufband, a fervant his lord or mafter, and an ecclefiaftic his lord or ordinary ; thefe being breaches of the lower allegiance, of private and domeftic faith, are denominated petit treafons. But when difloylty fo rears it's creft, as to attack even majefty itfelf, it is called by way of eminent diftinction high treafon, alta proditio ; being equivalent to the crimen laefae majeftatis of the Romans, as Glanvil
c denominates it alfo in our Englifh law.
As this is the higheft civil crime, which (confidered as a member of the community) any man can poffibly commit, it ought therefore to be the moft precifely afcertained. For if the crime of high treafon be indeterminate, this alone (fays the prefident Montefquieu) is fufficient to make any government degenerate into arbitrary power
d. And yet, by the antient common law, there was a great latitude left in the breaft of the judges, to determine what was treafon, or not fo : whereby the creatures of tyrannical princes had opportunity to create abundance of conftructive treafons ; that is, to raife, by forced and arbitrary
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b c.1.§.7.
c l.1.c.2.
d Sp.L.b.12.c.7.
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K 2
con-
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conftructions, offences into the crime and punifhment of treafon, which never were fufpected to be fuch. Thus the accroaching, or attempting to exercife, royal power (a very uncertain charge) was in the 21 Edw. III. held to be treafon in a knight of Hertfordfhire who forcibly affaulted and detained one of the king's fubjects till he paid him 90
l.e: a crime, it muft be owned, well deferving of punifhment; but which feems to be of a complexion very different from that of treafon. Killing the king's father, or brother, or even his meffenger, has alfo fallen under the fame denomination
f. The latter of which is almoft as tyrannical a doctrine as that of the imperial conftitution of Arcadius and Honorius, which determines that any attempts or defigns againft the minifters of the prince fhall be treafon
g. But however, to prevent the inconveniences which began to arife in England from this multitude of conftructive treafons, the ftatute 25 Edw. III. c. 2. was made; which defines what offences only for the future fhould be held to be trefon: in like manner as the lex Tulia majeftatis among the Romans, promulged by Auguftus Caefar, comprehended all the antient laws, that had before been enacted to punifh tranfgreffors againft the ftate
h. This ftatute muft therefore be our text and guide, in order to examine into the feveral fpecies of high treafon. And we fhall find that it comprehends all kinds of high treafon under feven diftinct branches.
1. “WHEN a man doth compafs or imagine the death of our “lord the king, of our lady his queen, or of their eldeft fon “and heir.” Under this defcription it is held that a queen regnant (fuch as queen Elizabeth and queen Anne) is within the words of the act, being invefted with royal power and entitled to the allegiance of her fubjects
i: but the hufband of fuch a
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e 1 Hal. P. C. 80.
f Britt. c. 22. 1 Hawk. P. C. 34.
g Qui de nece virorum illuftrium, qui confiliis et confiftorio noftro interfunt, fenatorum etiam (nam et ipfi pars corporis noftri funt) vel cujuflibet poftremo, qui militat nobifcum, cogitaverit: (eadem enim feveritate voluntatem fceleris, qua effectum, puniri jura voluerunt) ipfe qquidem, utpote majeftatis reus, gladiio feriatur, bonis ejus omnibus fifeo noftro addictis. (Cod. 9. 8. 5.)
h Gravin. Orig. 1. §. 34.
I 1 Hal. P. C. 101.
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queen
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Ch. 6.
queen is not comprized within thefe words, and therefore no treafon can be committed againft him
k. The king here intended is the king in poffeffion, without any refpect to his title: for it is held, that a king de facto and not de jure, or in other words an ufurper that hath got poffeffion of the throne, is a king within the meaning of the ftatute; as there is a temporary allegiance due to him, for his adminiftration of the government, and temporary protection of the public: and therefore treafons committed againft Henry VI were punifhed under Edward IV, though all the line of Lancafter had been previoufly declared ufurpers by act of parliament. But the moft rightful heir of the crown, or king de jure and not de facto, who hath never had plenary poffeffion of the throne, as was the cafe of the houfe of York during the three reigns of the line of Lancafter, is not a king within this ftatute, againft whom treafons may be committed
l. And a very fenfible writer on the crown-law carries the point of poffeffion fo far, that he holds
m, that a king out of poffeffion is fo far from having any right to our allegiance, by any other title which he may fet up againft the king in being, that we are bound by the duty of our allegiance to refift him. A doctrine which he grounds upon the ftatute 11 Hen. VII. c. 1. which is declaratory of the common law, and pronounces all fubjects excufed from any penalty or forfeiture, which do affift and obey a king de facto. But, in truth, this feems to be confounding all notions of right and wrong; and the confequence would be, that when Cromwell had murdered the elder Charles, and ufurped the power (though not the name) of king, the people were bound in duty to hinder the fon's reftoration: and were the king of Poland or Morocco to invade this kingdom, and by any means to get poffeffion of the crown (a term, by the way, of very loofe and indiftinct fignification) the fubject would be bound the his allegiance to fight for his natural prince to-day, and by the fame duty of allegiance to fight againft him to-morrow. The true diftinction feems to be,
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k 3 Inft. 7. 1 Hal. P. C. 106.
l 3 Inft. 7. 1 Hal. P. C. 104.
l 1 Hawk. P. C. 36.
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that
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that the ftatute of Henry the feventh does by no means command any oppofition to a king de jure; but excufes the obedience paid to a king de facto. When therefore a ufurper is in poffeffion, the fubject is excufed and juftified in obeying and giving him affiftance: otherwife, under a ufurpation, no man could be fafe; if the lawful prince had a right to hang him for obedience to the powers in being, as the ufurper would certainly do for difobedience. Nay farther, as the mafs of people are imperfect judges of title, of which in all cafes poffeffion is prima facie evidence, the law compels no man to yield obedience to that prince, whofe right is by want of poffeffion rendered uncertain and difputable, till providence fhall think fit to interpofe in his favour, and decide the ambiguous claim: and therefore, till he is entitled to fuch allegiance by poffeffion, no treafon can be committed againft him. Laftly, a king who has refigned his crown, fuch refignation being admitted and ratified in parliament, is according to fir Matthew Hale no longer the object of treafon
n. And the fame reafon holds, in cafe a king abdicates the government; or, by actions fubverfive of the conftitution, virtually renounces the authority which he claims by that very conftitution: fince, as was formerly obferved
o, when the fact of abdication is once eftablifhed, and determined by the proper judges, the confequence neceffarily follows, that the throne is thereby vacant, and he is no longer king.
LET us next fee, what is a compaffing or imagining the death of the king, &c. Thefe are fynonymous terms; the word compafs fignifying the purpofe or defign of the mind or will
p, and not, as in common fpeech, the carrying fuch defign to effect
q. And therefore an accidental ftroke, which may mortally would the fovereign, per infortunium, without any traitorous intent, is no treafon: as was the cafe of fir Walter Tyrrel, who, by the
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n 1 Hal. P. C. 104.
o Vol. 1. pag. 212.
p By the antient law compaffing or intending the death of any man, demonftrated by fome evident fact, was equally penal as homicide itfelf. (3 Inft. 5.)
q 1 Hal. P. C. 107.
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command
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command of king William Rufus, fhooting at a hart, the arrow glanced againft a tree, and killed the king upon the fpot
t. But, as this compaffing or imagination is an act of the mind, it cannot poffibly fall under any judicial cognizance, unlefs it be demonftrated by fome open, or overt, act. And yet the tyrant Dionyfius is recorded
s to have executed a fubject, barely for dreaming that he had killed him; which was held for a fufficient proof, that he had thought thereof in his waking hours. But fuch is not the temper of the Englifh law; and therefore in this, and the three next fpecies of treafon, it is neceffary that there appear an open or overt act of a more full and explicit nature, to convict the traitor upon. The ftatute expreffly requires, that the accufed “be thereof upon fufficient proof attainted of fome “open act by men of his own condition.” Thus, to provide weapons or ammunition for the purpofe of killing the king, is held to be a palpable overt act of treafon in imagining his death
t. To confpire to imprifon the king by force, and move towards it by affembling company, is an overt act of compaffing the king's death
u; for all force, ufed to the perfon of the king, in it's confequence may tend to his death, and is a ftrong prefumption of fomething worfe intended than the prefent force, by fuch as have fo far thrown off their bounden duty to their fovereign: it being an old obfervation, that there is generally but a fhort interval between the prifons and the graves of princes. There is no queftion alfo, but that taking any meafures to render fuch treafonable purpofes effectual, as affembling and confulting on the means to kill the king, is a fufficient overt act of high treafon
w.
HOW far mere words, fpoken by an individual, and not relative to any treafonable act or defign then in agitation, fhall amount to treafon, has been formerly matter of doubt. We have two inftances, in the reign of Edward the fourth, of per-
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r 3 Inft. 6.
s Plutarch. in vit.
t 3 Inft. 12.
u 1 Hal. P. C. 109.
w 1 Hawk. P. C. 38. 1 Hal. P. C. 119.
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fons
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fons executed for treafonable words: the one a citizen of London, who faid he would make his fon heir of the crown, being the fign of the houfe in which he lived; the other a gentleman, whofe favourite buck the king killed in hunting, whereupon he wifhed it, horns and all, in the king's belly. Thefe were efteemed hard cafes: and the chief juftice Markham rather chofe to leave his place than affent to the latter judgment
x. But now it feems clearly to be agreed, that, by the common law and the ftatute of Edward III, words fpoken amount only to a high mifdemefnor, and no treafon. For they may be fpoken in heat, without any intention, or be miftaken, perverted, or mif-remembered by the hearers; their meaning depends always on their connexion with other words, and things; they may fignify differently even according to the tone of voice, with which they are delivered; and fometimes filence itfelf is more expreffive than any difcourfe. As therefore there can be nothing more equivocal and ambiguous than words, it would indeed by unreafonable to make them amount to high treafon. And accordingly in 4 Car. I. on a reference to all the judges, concerning fome very atrocious words fpoken by one Pyne, they certified to the king, “that though the words were as wicked as might “be, yet they were no treafon: for, unlefs it be by fome particular ftatute, no words will be treafon
y.” If the words be fet down in writing, it argues more deliberate intention; and it has been held that writing is an overt act of treafon; for fcribere eft agree. But even in this cafe the bare words are not the treafon, but the deliberate act of writing them. And fuch writing, though unpublifhed, has in fome arbitrary reigns convicted it's author of treafon: particularly in the cafes of one Peacham a clergyman, for treafonable paffages in a fermon never preached
z; and of Algernon Sidney, for fome papers found in his clofet: which, had they been plainly relative to any previous formed defign of dethroning or murdering the king, might doubtlefs have been properly read in evidence as overt
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x 1 Hal. P. C. 115.
y Cro. Car. 125.
z Ibid.
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acts
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acts of that treafon, which was fpecially laid in the indictment
a. But, being merely fpeculative, without any intention (fo far as appeared) of making any public ufe of them, the convicting the authors of treafon upon fuch an infufficient foundation has been univerfally difapproved. Peacham was therefore pardoned: and, though Sidney indeed was executed, yet it was to the general difcontent of the nation; and his attainder was afterwards reverfed by parliament. There was then no manner of doubt, but that the publication of fuch a treafonable writing was a fufficient overt act of treafon at the common law
b; though of late even that has been queftioned.
2. THE fecond fpecies of treafon is, “if a man do violate “the king's companion, or the king's eldeft daughter unmarried, “or the wife of the king's eldeft fon and heir.” By the king's companion is meant his wife; and by violation is underftood carnal knowlege, as well without force, as with it: and this is high treafon in both parties, if both be confenting; as fome of the wives of Henry the eighth by fatal experience evinced. The plain intention of this law is to guard the blood royal from any fufpicion of baftardy, whereby the fucceffion to the crown might be rendered dubious: and therefore, when this reafon ceafes, the law ceafes with it; for to violate a queen or princefs dowager is held to be no treafon
c: in like manner as, by the feodal law, it was a felony and attended with a forfeiture of the fief, if the vafal vitiated the wife or daughter of his lord
d; but no fo if he only vitiated his widow
e.
3. THE third fpecies of treafon is, “if a man do levy war “againft our lord the king in his realm.” And this may be done by taking arms, not only to dethrone the king, but under pretence to reform religion, or the laws or to remove evil counfellors, or other grievances whether real or pretended
f. For the
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a Fofter. 198.
b 1 Hal. P. C. 118. 1 Hawk. P. C. 38.
c 3 Inft. 9.
d Feud. l. 1. t. 5.
e Ibid. t. 21.
f 1 Hawk. P. C. 37.
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law does not, neither can it, permit any private man, or fet of men, to interfere forcibly in matters of fuch high importance; efpecially as it has eftablifhed a fufficient power, for thefe purpofes, in the high court of parliament: neither does the conftitution juftify any private or particular refiftance for private or particular grievances; though in cafes of national oppreffion the nation has very juftifiably rifen as one man, to vindicate the original contract fubfifting between the king and his people. To refift the king's forces by defending a caftle againft them, is a levying of war: and fo is an infurrection with an avowed defign to pull down all inclofures, all brothels, and the like; the univerfality of the defign making it a rebellion againft the ftate, an ufurpation of the powers of government, and an infolent invafion of the king's authority
g. But a tumult with a view to pull down a particular houfe, or lay open a particular enclofure, amounts at moft to a riot; this being no general defiance of public government. So, if two fubjects quarrel and levy war againft each other, it is only a great riot and contempt, and no treafon. Thus it happened between the earls of Hereford and Glocefter in 20 Edw. I. who raifed each a little army, and committed outrages upon each others lands, burning houfes, attended with the lofs of many lives: yet this was held to be no high treafon, but only a great mifdemefnor
h. A bare confpiracy to levy war does not amount to this fpecies of treafon; but (if particularly pointed at the perfon of the king or his government) it falls within the firft, of compaffing or imagining the king's death
i.
4. “IF a man be adherent to the king's enemies in his “realm, giving to them aid and comfort in the realm, or elfewhere,” he is alfo declared guilty of high treafon. This muft likewife be proved by fome overt act, as by giving them intelligence, by fending them provifions, by felling them arms, by treacheroufly furrendering a fortrefs, or the like
k. By enemies
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g 1 Hal. P. C. 132.
h Ibid. 136.
I 3 Inft. 9. Fofter. 211. 213.
k 3 Inft. 10.
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are
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are here underftood the fubjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coafts, without any open hoftilities between their nation and our own, and without any commiffion from any prince or ftate at enmity with the crown of Great Britain, the giving the many affiftance is alfo clearly treafon; either in the light of adhering to the public enemies of the king and kingdom
l, or elfe in that of levying war againft his majefty. And, moft indifputably, the fame acts of adherence or aid, which (when applied to foreign enemies) will conftitute treafon under this branch of the ftatute, will (when afforded to our own fellow-fubjects in actual rebellion at home) amount to high treafon under the defcription of levying war againft the king
m. But to relieve a rebel, fled out of the kingdom, is no treafon: for the ftatute is taken ftrictly, and a rebel is not an enemy; an enemy being always the fubject of fome foreign prince, and one who owes no allegiance to the crown of England
n. And if a perfon be under circumftances of actual force and conftraint, through a well-grounded apprehenfion of injury to his life or perfon, this fear or compulfion will excufe his even joining with either rebels or enemfes in the kingdom, provided he leaves them whenever he hath a fafe opportunity
o.
5. “IF a man counterfeit the king's great or privy feal,” this is alfo high treafon. But if a man takes wax bearing the impreffion of the great feal off from one patent, and fixes it to another, this is held to be only an abufe of the feal, and not a counterfeiting of it; as was the cafe of a certain chaplain, who in fuch manner framed a difpenfation for non-refidence. But the knavifh artifice of a lawyer much exceeded this of the divine. One of the clerks in chancery glewed together two pieces of parchment; on the uppermoft of which he wrote a patent, to which he regularly obtained the great feal, the label going through both the fkins. He then diffolved the cement; and
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l Fofter. 219.
m Ibid. 216.
n 1 Hawk. P. C. 38.
o Fofter. 216.
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taking
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taking off the written patent, on the blank fkin wrote a frefh patent, of a different import from the former, and publifhed it as true. This was held no counterfeiting of the great feal, but only a great mifprifion; and fir Edward Coke
p mentions it with fome indignation, that the party was living at that day.
6. THE fixth fpecies of treafon under this ftatute, is “if a “man counterfeit the king's money; and if a man bring falfe “money into the realm counterfeit to the money of England, “knowing the money to be falfe.” As to the firft branch, counterfeiting the king's money; this is treafon, whether the falfe money be uttered in payment or not. Alfo if the king's own minters alter the ftandard or alloy eftablifhed by law, it is treafon. But gold and filver money only are held to be within this ftatute
q. With regard likewife to the fecond branch, importing foreign counterfeit money, in order to utter it here; it is held that uttering it, without importing it, is not within the treafon
r. But of this we fhall prefently fay more.
7. THE laft fpecies of treafon, afcertained by this ftatute, is “if a man flay the chancellor, treafurer, or the king's juftices “of the one bench or the other, juftices in eyre, or juftices of “affize, and all other juftices affigned to hear and determine, “being in their places doing their offices.” Thefe high magiftrates, as they reprefent the king's majefty during the execution of their officers, are therefore for the time equally regarded by the law. But this ftatute extends only to the actual killing of them, and not to wounding, or a bare attempt to kill them. It extends alfo only to the officers therein fpecified; and therefore the barons of the exchequer, as fuch, are not within the protection of this act
s.
THUS careful was the legiflature, in the reign of Edward the third, to fpecify and reduce to a certainty the vague notions of
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p 3 Inft. 16.
q 1 Hawk. P. C. 42.
r Ibid. 43.
s 1 Hal. P. C. 231.
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treafon,
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treafon, that had formerly prevailed in our courts. But the act does not ftop here, but goes on. “Becaufe other like cafes of “treafon may happen in time to come, which cannot be thought “of nor declared at prefent, it is accorded, that if any other “cafe fuppofed to be treafon, which is not above fpecified, doth “happen before any judge; the judge fhall tarry without going “to judgment of the treafon, till the caufe be fhewed and declared before the king and his parliament, whether it ought “to be judged treafon, or other felony. Sir Matthew Hale
t is very high in his encomiums on the great wifdom and care of the parliament, in thus keeping judges within the proper bounds and limits of this act, by not fuffering them to run out (upon their own opinions) into conftructive treafons, though in cafes that feem to them to have a like parity of reafon; but referving them to the decifion of parliament. This is a great fecurity to the public, the judges, and even this facred act itfelf; and leaves a weighty memnto to judges to be careful, and not overhafty in letting in treafons by conftruction or interpretation, efpecially in new cafes that have not been refolved and fettled. 2. He obferves, that as the authoritative decifion of thefe cafus omiffi is referved to the king and parliament, the moft regular way to do it is by a new declarative act: and therefore the opinion of any one or of both houfes, though of very refpectable weight, is not that folemn declaration referred to by this act, as the only criterion for judging of future treafons.
IN confequence of this power, not indeed originally granted by the ftatute of Edward III, but conftitutionally inherent in every fubfequent parliament, (which cannot be abridged of any rights by the act of a precedent one) the legiflature was extremely liberal in declaring new treafons in the unfortunate reign of king Richard the fecond: as, particularly, the killing of an embaffador was made fo; which feems to be founded upon better reafon than the multitude of other points, that were then ftrained up to this high offence: the moft arbitrary and abfurd of all
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1 Hal. P. C. 259.
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which
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which was by the ftatute 21 Ric. II. c. 3. which made the bare purpofe and intent of killing or depofing the king, without any overt act to demonftrate it, high treafon. And yet fo little effect have over-violent laws to prevent any crime, that within two years afterwards this very prince was both depofed and murdered. And, in the firft year of his fucceffor's reign, an act was paffed
u, reciting “that no man knew how he ought to behave himfelf, “to do, fpeak, or fay, for doubt of fuch pains of treafon: and “therefore it was accorded that in no time to come any treafon be “judged, otherwife than was ordained by theft of king “Edward the third.” This at once fwept away the whole load of extravagant treafons introduced in the time of Richard the fecond.
BUT afterwards, between the reign of Henry the fourth and queen Mary, and particularly in the bloody reign of Henry the eighth, the fpirit of inventing new and ftrange treafons was revived; among which we may reckon the offences of clipping money; breaking prifon or refcue, when the prifoner is committed for treafon; burning houfes to extort money; ftealing cattle by Welchmen; counterfeiting foreign coin; willful poifoning; execrations againft the king; calling him opprobrious names by public writing; counterfeiting the fign manual or fignet; refufing to adjure the pope; deflowering, or marrying without the royal licence, any of the kings children, fifters, aunts, nephews, or nieces; bare folicitation of the chaftity of the queen or princefs, or advances made by themfelves; marrying with the king, by a woman not a virgin, without previoufly difcovering to him fuch her unchafte life; judging or believing (manifefted by any overt act) the king to have been lawfully married to Anne of Cleve; derogating from the king's royal ftile and title; impugning his fupremacy; and affembling riotoufly to the number of twelve, and not difperfing upon proclamation: all which new-fangled treafons were totally abrogated by the ftatute 1 Mar. c. 1. which once more reduced all
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u Stat. 1 Hen. IV. c. 10.
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treafons
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treafons to the ftandard of the ftatute 25 Edw. III. Since which time, though the legiflature has been more cautious in creating new offences of this kind, yet the number is very confiderably encreafed, as we fhall find upon a fhort review.
THESE new treafons, created fince the ftatute 1 Mar. c. 1. and not comprehended under the defcription ftatute 25 Edw. III, I fhall comprise under three heads. 1. Such as relate to papifts. 2. Such as relate to falfifying the coin or other royal fignatures. 3. Such as are created for the fecurity of the proteftant fucceffion in the houfe of Hanover.
1. THE firft fpecies, relating to papifts, was confidered in the preceding chapter, among the penalties incurred by that branch of non-conformifts to the national church; wherein we have only to remember that by ftatute 5 Eliz. c. 1. to defend the pope's jurifdiction in this realm is, for the firft time, a heavy mifdemefnor; and, if the offence be repeated, it is high treafon. Alfo by ftatute 27 Eliz. c. 2. if any popifh prieft, born in the dominions of the crown of England, fhall come over hither from beyond the feas; or fhall tarry her three days without conforming to the church; he is guilty of high treafon. And by ftatute 3 Jac. I. c. 4. if any natural born fubject be withdrawn from his allegiance, and reconciled to the pope or fee of Rome, or any other prince or ftate, both he and all fuch as procure fuch reconciliation fhall incur the guilt of high treafon. Thefe were mentioned under the divifion before referred to, as fpiritual offences, and I now repeat them as temporal ones alfo: the reafon of diftinguifhing thefe overt acts of popery from all others, by fetting the mark of high treafon upon them, being certainly on a civil, and not on a religious, account. For every popifh prieft of courfe renounces his allegiance to his temporal fovereign upon taking orders; that being inconfiftent with his new engagements of canonical obedience to the pope: and the fame may be faid of an obftinate defence of his authority here, or a formal reconciliation to the fee of Rome, which the fta-
tute
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tute conftrues to be a withdrawing from one's natural allegiance; and therefore, befides being reconciled “to the pope,” it alfo adds “or any other prince or ftate.
2. WITH regard to treafons relative to the coin or other royal fignatures, we may recollect that the only two offences refpecting the coinage, which are made treafon by the ftatute 25 Edw. III. are the actual counterfeiting the gold and filver coin of this kingdom; or the importing fuch counterfeit money with intent to utter it, knowing it to be falfe. But thefe not being found fufficient to reftrain the evil practices of coiners and falfe moneyers, other ftatutes have been fince made for that purpofe. The crime itfelf is made a fpecies of high treafon; as being a breach of allegiance, by infringing the king's prerogative, and affuming one of the attributes of the fovereign, to whom alone it belongs to fet the value and determinations of coin made at home, or to fix the currency of foreign money: and befides, as all money which bears the ftamp of the kingdom is fent into the world upon the public faith, as containing metal of a particular weight and ftandard, whoever falfifies, this is an offender againft the ftate, by contributing to render that public faith fufpected. And upon the fame reafons, by a law of the emperor Conftantine
w, falfe coiners were declared guilty of high treafon, and were condemned to be burned alive: as, by the laws of Athens
x, all counterfeiters, debafers, and diminifhers of the current coin were fubjected to capital punifhment. However, it muft be owned, that this method of reafoning is a little overftrained: counterfeiting or debafing the coin being ufually practiced, rather for the fake of private and unlawful lacre, than out of any difaffection to the fovereign. And therefore both this and it's kindred fpecies of treafon, that of counterfeiting the feals of the crown or other royal fignatures, feem better denominated by the later civilians a branch of the crimen falfi or forgery (in which they are followed by Glanvil
y, Bracton
z, and Fleta
a) than by
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w C. 9. 24. 2. Cod. Theod. de falfa moneta, l. 9.
x Pott. Ant. l. 1. c. 26.
y l. 14. c. 7.
z l. 3. c. 3. §. 1 & 2.
a l. 1. c. 22.
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Conftantine and our Edward the third, a fpecies of the crimen laefae majeftatis or high treafon. For this confounds the diftinction and proportion of offences; and, by affixing the fame ideas of guild upon the man who coins a leaden groat and him who affaffinates his fovereign, takes off from that horror which ought to attend the very mention of the crime of high treafon, an makes it more familiar to the fubject. Before the ftatute 25 Edw. III. the offence of counterfeiting the coin was held to be only a fpecies of petit treafon
b: but fubfequent acts in their new extenfions of the offence have followed the example of that, and have made it equally high treafon as an endeavour to fubvert the government, though not quite equal in it's punifhment.
IN confequence of the principle thus adopted, the ftatute 1 Mar. c. 1. having at one blow repealed all intermediate treafons created fince the 25 Edw. III. it was thought expedient by ftatute 1 Mar. ft. 2. c. 6. to revive two fpecies thereof; viz. 1. That if any perfon falfely forge or counterfeit any fuch kind of coin of gold or filver, as is not the proper coin of this realm, but fhall be current within this realm by confent of the crown; or, 2. fhall falfely forge or counterfeit the fign manual, privy fignet, or privy feal; fuch offences fhall be deemed high treafon. And by ftatute 1 & 2 P. & M. c. 11. if any perfons do bring into this realm fuch falfe or counterfeit foreign money, being current here, knowing the fame to be falfe, an fhall utter the fame in payment, they fhall be deemed offenders in high treafon. The money referred to in thefe ftatutes muft be fuch as is abfolutely current here, in all payments, by the king's proclamation; of which there is none at prefent, Portugal money being only taken by confent, as approaching the neareft to our ftandard, and falling in well enough with our divifions of money into pounds and fhillings: therefore to counterfeit it is no high treafon, but another inferior offence. Clipping or defacing the genuine coin was not hitherto included in thefe ftatutes: though an offence equally pernicious to trade, and an equal infult upon
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b 1 Hal. P. C. 224.
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the prerogative, as well as perfonal affront to the fovereign; whofe very image ought to be had in reverence by all loyal fubject. And therefore, among the Romans
c, defacing or even melting down the emperor's ftatues was made treafon by the Julian law; together with other offences of the like fort, according to that vague appendix, “alivdue quid fimile fi admiferint.” And now, in England, by ftatute 5 Eliz. c. 11. clipping, wafhing, rounding, or filing, for wicked gain's fake, any of the money of this realm, or other money fuffered to be current here, fhall be adjudged high treafon; and by ftatute 18 Eliz. c. 1. the fame offence is defcribed in other more general words; viz. impairing, diminifhing, falfifying, fcaling, and lightening; and made liable to the fame penalties. By ftatute 8 & 9 W. III. c. 26. made perpetual by 7 Ann. c. 25. whoever fhall knowingly make or mend, or affift in fo doing, or fhall buy or fell, or have in his poffeffion, any inftruments proper only for the coinage of money; or fhall convey fuch inftruments out of the king's mint; fhall be guilty of high treafon: which is by much the fevereft branch of the coinage law. The ftatute goes on farther, and enacts, that to mark any coin on the edges with letters, or otherwife, in imitation of thofe ufed in the mint; or to colour, gild, or cafe over any coin refembling the current coin, or even round blanks of bafe metal; fhall be conftrued high treafon. And, laftly, by ftatute 15 & 16 Geo. II. c. 28. if any perfon colours or alters any filver current coin of this kingdom, to make it refemble a filver one; this is alfo high treafon: but the offender fhall be pardoned, in cafe he difcovers and convicts two other offenders of the fame kind.
3. THE other new fpecies of high treafon is fuch as is created for the fecurity of the proteftant fucceffion, over and above fuch treafons againft the king and government as were comprized under the ftatute 25 Edw. III. For this purpofe, after the act of fettlement was made, for transferring the crown to
.{FS}
g Ff. 48. 4. 6.
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the
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the illuftrious houfe of Hanover, it was enacted by ftatute 13 & 14 W. III. c. 3. that the pretended prince of Wales, who was then thirteen years of age, and had affumed the title of king James III, fhould be attainted of high treafon; and it was made high treafon for any of the king's fubjects by letters, meffages, or otherwife, to hold correfpondence with him, or any perfon employed by him, or to remit any money for his ufe, knowing the fame to be for his fervice. And by ftatute 17 Geo. II. c. 39. it is enacted, that if any of the fons of the pretender fhall 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 fhall be judged attainted of high treafon, and fuffer the pains thereof. And to correfpond with them, or remit money for their ufe, is made high treafon in the fame manner as it was to correfpond with the father. By the ftatute 1 Ann. ft. 2.c. 17. if any perfon fhall endeavour to deprive or hinder any perfon, being the next in fucceffion to the crown according to the limitations of the act of fettlement, from fucceeding to the crown, and fhall malicioufly and directly attempt the fame by any overt act, fuch offence fhall be high treafon. And by ftatute 6 Ann. c. 7. if any perfon fhall malicioufly, advifedly, and directly, by writing or printing, maintain and affirm, that any other perfon hath any right or title to the crown of this realm, otherwife 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 ftatutes, to bind the crown and the defcent thereof; fuch perfon fhall be guilty of high treafon. This offence (or indeed maintaining this doctrine in any wife, that the king and parliament cannot limit the crown) was once before made high treafon, by ftatute 13 Eliz. c. 1. during the life of that princefs. And after her deceafe it continued a high mifdemefnor, punifhable with forfeiture of goods and chattels, even in the moft flourighing aera of indefeafible hereditary right and jure divino fucceffion. But it was again raifed into high treafon, by the ftatute of Anne before-mentioned, at the time of a projected invafion in favour of the then pretender; and
M 2
upon
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upon this ftatute one Matthews, a printer, was convicted and executed in 1719, for printing a treafonable pamphlet intitled uox populi uox Dei
d.
THUS much for the crime of treafon, or laefae majeftatis, in all it's branches; which confifts, we may obferve, originally, in groffly counteracting that allegiance, which is due from the fubject by either birth or refidence: though, in fome inftances, the zeal of our legiflators to ftop the progrefs of fome 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 pafs on from defining the crime to defcribing it's punifhment.
THE punifhment of high treafon in general is very folemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though ufually a fledge or hurdle is allowed, to preferve the offender from the extreme torment of being dragged on
the ground or pavement
e. 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 difpofal f.
THE king may, and often doth, difcharge all the punifhment, except beheading, efpecially where any of noble blood are attainted. For, beheading being part of the judgment, that may be executed, though all the reft be omitted by the king's command g. 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 requeft of the party,
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d State Tr. IX. 680.
e 1 Hal. P. C. 382.
f This punifhment for treafon fir Edward Coke tells us, is warranted by divers examples in fcripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and fo of the reft. (3 Inft. 211.)
g 1 Hal. P. C. 351.
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from one fpecies of death to another h. But of this we fhall fay more hereafter.
IN the cafe of coining, which is a treafon of a different complexion from the reft, the punifhment is milder for male offenders; being only to be drawn, and hanged by the neck till dead i. But in treafons of every kind the punifhment of women is the fame, and different form that of men. For, as the natural modefty of the fex forbids the expofing and publicly mangling their bodies, their fentence (which is to the full as terrible to fenfe as the other) is to be drawn to the gallows, and there to be burned alive k.
THE confequence of this judgment, (attainder, forfeiture, and corruption of blood) muft be referred to the latter end of this book, when we fhall treat of them all together, as well in treafon as in other offences.
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h 3 Inft. 52.
I 1 Hal. P. C. 351.
k 1 Hal. P. C. 399.
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