Front Page Titles (by Subject) CHAPTER VI.: OF HIGH TREASON. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER VI.: OF HIGH TREASON. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF HIGH TREASON.
The third general division of crimes consists of such as more especially affect the supreme executive power, or the king and his government; which amount either to a total renunciation of that allegiance, or at the least to a criminal neglect of that duty which is due from every subject to his sovereign. In a former part of these commentaries(a) we had occasion to mention the nature of allegiance as the tie or ligamen which binds every subject to be true and faithful to his sovereign 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 allegiance, we may remember, was distinguished into two species: the one natural and perpetual, which is inherent only in natives of the king’s dominions; the other local and temporary, which is incident to aliens also. Every offence, therefore, more immediately affecting the royal person, his crown or dignity, is in some degree a breach of this duty of allegiance, whether natural, or innate, or local, and acquired by residence; and these may be distinguished into four kinds: 1. Treason; 2. Felonies injurious to the king’s prerogative; 3. Præmunire; 4. Other misprisions and contempts: of which crimes the first and principal is that of treason.
**75]Treason, proditio, in its very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, saith the Mirror:(b) for treason is indeed a general appellation, made use of by the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual, relation, and the inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such superior or lord.(c) This is looked upon as proceeding from the same principle of treachery in private life as would have urged him who harbours it to have conspired in public against his liege lord and sovereign, and, therefore, for a wife to kill her lord or husband, a servant his lord or master, and an ecclesiastic his lord or ordinary, these, being breaches of the lower allegiance of private and domestic faith, are denominated petit treasons. But when disloyalty so rears its crest as to attack even majesty itself, it is called, by way of eminent distinction, high treason, alta proditio; being equivalent to the crimen læsæ majestatis of the Romans, as Glanvil(d) denominates it also in our English law.
As this is the highest civil crime which (considered as a member of the community) any man can possibly commit, it ought therefore to be the most precisely ascertained. For, if the crime of high treason be indeterminate, this alone (says the president Montesquieu) is sufficient to make any government degenerate into arbitrary power.(e) And yet, by the antient common law, there was a great latitude left in the breast of the judges to determine what was treason, or not so: whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treasons; that is, to raise, by forced and arbitrary constructions, offences into the **76]crime and punishment of treason which never were suspected to be such. Thus, the accroaching, or attempting to exercise, royal power (a very uncertain charge) was, in the 21 Edw. III., held to be treason in a knight of Hertfordshire, who forcibly assaulted and detained one of the king’s subjects till he paid him 90l.:(f) a crime, it must be owned, well deserving of punishment; but which seems to be of a complexion very different from that of treason. Killing the king’s father, or brother, or even his messenger, has also fallen under the same denomination.(g) The latter of which is almost as tyrannical a doctrine as that of the imperial constitution of Arcadius and Honorius, which determines that any attempts or designs against the ministers of the prince shall be treason.(h) But, however, to prevent the inconveniences which began to arise in England from this multitude of constructive treasons, the statute 25 Edw. III. c. 2 was made; which defines what offences only for the future should be held to be treason: in like manner as the lex Julia majestatis among the Romans, promulged by Augustus Cæsar, comprehended all the antient laws that had before been enacted to punish transgressors against the state.(i)1 This statute must therefore be our text and guide, in order to examine into the several species of high treason. And we shall find that it comprehends all kinds of high treason under seven distinct branches.
1. “When a man doth compass or imagine the death of our lord the king, of our lady his queen, or of their eldest son and heir.” Under this description it is held that a queen regnant (such as queen Elizabeth and queen Anne) is within the words of the act, being invested with royal power and entitled to the allegiance of her subjects;(j) but the husband of such a queen is not comprised within these words, *[*77and therefore no treason can be committed against him.(k) The king here intended is the king in possession, without any respect to his title; for it is held that a king de facto and not de jure, or, in other words, a usurper that hath got possession of the throne, is a king within the meaning of the statute; as there is a temporary allegiance due to him, for his administration of the government and temporary protection of the public; and, therefore, treasons committed against Henry VI. were punished under Edward IV., though all the line of Lancaster had been previously declared usurpers by act of parliament. But the most rightful heir of the crown, or king de jure and not de facto, who hath never had plenary possession of the throne, as was the case of the house of York during the three reigns of the line of Lancaster, is not a king within this statute against whom treasons may be committed.(l) And a very sensible writer on the crown-law carries the point of possession so far that he holds(m) that a king out of possession is so far from having any right to our allegiance, by any other title which he may set up against the king in being, that we are bound by the duty of our allegiance to resist him. A doctrine which he grounds upon the statute 11 Hen. VII. c. 1, which is declaratory of the common law, and pronounces all subjects excused from any penalty or forfeiture which do assist and obey a king de facto. But, in truth, this seems to be confounding all notions of right and wrong; and the consequence would be that when Cromwell had murdered the elder Charles, and usurped the power (though not the name) of king, the people were bound in duty to hinder the son’s restoration: and were the king of Poland or Morocco to invade this kingdom, and by any means to get possession of the crown, (a term, by the way, of very loose and indistinct signification,) the subject would be bound by his allegiance to fight for his natural prince to-day, and by the same duty of allegiance to fight against him to-morrow. The true distinction seems to be that the statute of Henry **78]the Seventh does by no means command any opposition to a king de jure; but excuses the obedience paid to a king de facto. When, therefore, a usurper is in possession the subject is excused and justified in obeying and giving him assistance: otherwise, under a usurpation, no man could be safe, if the lawful prince had a right to hang him for obedience to the powers in being, as the usurper would certainly do for disobedience. Nay, further, as the mass of people are imperfect judges of title, of which in all cases possession is prima facie evidence, the law compels no man to yield obedience to that prince whose right is by want of possession rendered uncertain and disputable, till Providence shall think fit to interpose in his favour and decide the ambiguous claim: and, therefore, till he is entitled to such allegiance by possession, no treason can be committed against him. Lastly, a king who has resigned his crown, such resignation being admitted and ratified in parliament, is, according to Sir Matthew Hale, no longer the object of treason.(n) And the same reason holds in case a king abdicates the government, or, by actions subversive of the constitution, virtually renounces the authority which he claims by that very constitution; since, as was formerly observed,(o) when the fact of abdication is once established and determined by the proper judges, the consequence necessarily follows that the throne is thereby vacant, and he is no longer king.
Let us next see what is a compassing or imagining the death of the king, &c. These are synonymous terms, the word compass signifying the purpose or design of the mind or will,(p) and not, as in common speech, the carrying such design to effect.(q) And therefore an accidental stroke, which may mortally wound the sovereign, per infortunium, without any traitorous intent, is no treason: as was the case of Sir Walter Tyrrel, who, by the command of king William Rufus, **79]shooting at a hart, the arrow glanced against a tree, and killed the king on the spot.(r) But, as this compassing or imagining is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open or overt act.2 And yet the tyrant Dionysius is recorded(s) to have executed a subject barely for dreaming that he had killed him, which was held of sufficient proof that he had thought thereof in his waking hours. But such is not the temper of the English law; and therefore in this and the three next species of treason it is necessary that there appear an open or overt act of a more full and explicit nature, to convict the traitor upon. The statute expressly requires that the accused “be thereof upon sufficient proof attainted of some open act by men of his own condition.” Thus, to provide weapons or ammunition for the purpose of killing the king, is held to be a palpable overt act of treason in imagining his death.(t) To conspire to imprison the king by force, and move towards it by assembling company, is an overt act of compassing the king’s death;(u) for all force used to the person of the king in its consequence may tend to his death, and is a strong presumption of something worse intended than the present force, by such as have so far thrown off their bounden duty to their sovereign; it being an old observation, that there is generally but a short interval between the prisons and the graves of princes. There is no question, also, but that taking any measures to render such treasonable purposes effectual, as assembling and consulting on the means to kill the king, is a sufficient overt act of high treason.(w)3
How far mere words, spoken by an individual, and not relative to any treasonable act or design then in agitation, shall amount to treason, has been formerly matter of doubt. We have two instances in the reign of Edward the Fourth *[*80of persons executed for treasonable words: the one a citizen of London, who said he would make his son heir of the crown, being the sign of the house in which he lived; the other a gentleman, whose favourite buck the king killed in hunting, whereupon he wished it, horns and all, in the king’s belly.4 These were esteemed hard cases; and the chief justice Markham rather chose to leave his place than assent to the latter judgment.(x) But now it seems clearly to be agreed that, by the common law and the statute of Edward III., words spoken amount to only a high misdemeanour, and no treason. For they may be spoken in heat, without any intention, or be mistaken, perverted, or mis-remembered by the hearers; their meaning depends always on their connection with other words and things; they may signify differently, even according to the tone of voice with which they are delivered; and sometimes silence itself is more expressive than any discourse. As, therefore, there can be nothing more equivocal and ambiguous than words, it would indeed be unreasonable to make them amount to high treason. And accordingly, in 4 Car. I., on a reference to all the judges concerning some very atrocious words spoken by one Pyne, they certified to the king “that though the words were as wicked as might be, yet they were no treason; for, unless it be by some particular statute, no words will be treason.”(y)5 If the words be set down in writing, it argues more deliberate intention: and it has been held that writing is an overt act of treason; for scribere est agere. But even in this case the bare words are not the treason, but the deliberate act of writing them. And such writing, though unpublished, has, in some arbitrary reigns, convicted its author of treason; particularly in the cases of one Peachum, a clergyman, for treasonable passages in a sermon never preached,(z) and of Algernon Sydney, for some papers found in his closet, which, had they been plainly relative to any previous formed design of dethroning or murdering the king, might doubtless have been properly read in evidence as overt **81]acts of that treason which was specially laid in the indictment.(a) But being merely speculative, without any intention (so far as appeared) of making any public use of them, the convicting the authors of treason upon such an insufficient foundation has been universally disapproved. Peachum was therefore pardoned; and though Sydney, indeed, was executed, yet it was to the general discontent of the nation, and his attainder was afterwards reversed by parliament. There was then no manner of doubt but that the publication of such a treasonable writing was a sufficient overt act of treason at the common law;(b) though of late even that has been questioned.
2. The second species of treason is, “if a man do violate the king’s companion, or the king’s eldest daughter unmarried, or the wife of the king’s eldest son and heir.” By the king’s companion is meant his wife; and by violation is understood carnal knowledge, as well without force as with it: and this is high treason in both parties, if both be consenting, as some 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 suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and, therefore, when this reason ceases the law ceases with it; for to violate a queen or princess dowager is held to be no treason,(c)6 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,(d) but not so if he only vitiated his widow.(e)
3. The third species of treason is, “if a man do levy war against 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 counsellors, or other grievances, whether real or pretended.(f)7 For the law does not, neither can it, permit **82]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 enclosures, all brothels, and the like: the universality of the design making it a rebellion against the state, an usurpation of the powers of government, and an insolent invasion of the king’s authority.(g) But a tumult, with a view to pull down a particular house, or lay open a particular enclosure, 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 Europe(h) 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 Gloster, in 20 Edw. I., who raised each a little army, and committed 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 misdemeanour.(i) 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,8 by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the *[*83like.(l) By enemies 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,(m) 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.(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.(o) 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)9
5. “If a man counterfeits the king’s great or privy seal,” this is also high treason. But if a man take 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 through both the skins. He *[*84then 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.
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. 21.11
**85]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 cannot 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(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 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; **86]which seems to be founded on better reason than 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 afterwards, between the reigns 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, with out 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 Cleves; derogating from the king’s royal style and title; impugning his supremacy; and assembling riotously to the *[*87number of twelve and not dispersing upon proclamation: all which new-fangled treasons were totally abrogated by the statute 1 Mar. c. I, 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.12
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 defend the pope’s jurisdiction in this realm is, for the first time, a heavy misdemeanour; 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 upon them, being certainly on a civil and not on a religious account. For every popish priest of course renounces his allegiance to his *[*88temporal sovereign upon taking orders; that being inconsistent with 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.”13
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 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 burned 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 practised rather for the sake of private and unlawful lucre than out of any disaffection for the sovereign. And **89]therefore both this and its kindred species of treason, that of counterfeiting the seals of the crown or other 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 species 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 endeavour to subvert the government, though not quite equal in its punishment.
In consequence of the principle thus adopted, the statute 1 Mar. c. 1 having at one stroke14 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 thereof, 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 & 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 *[*90consent, 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. Clipping 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 statute 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 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 & 9 W. III. c. 26, made perpetual by 7 Anne, 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,15 or shall convey the same out of the king’s mint; he, together with his counsellors, procurers, aiders, and abettors, shall be guilty of high treason, which is by much the severest branch of the coinage-law. The statute goes on further, 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, gild, 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 *[*91months after the commission of the offence;16 except those for making or amending any coining tool or instrument, or for marking money round the edges; which are directed to be commenced within six months after the offence committed.(f)17 And, lastly, by statute 15 & 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 half-penny 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.18
3. The other 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 & 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 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 Anne, 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 **92]overt act, such offence shall be high treason. And by statute 6 Anne, 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 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 misdemeanour, punishable with forfeiture of goods and chattels, even in the most flourishing era 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 hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement.(i) 2. That he **93]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 disposal.(k)
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.(l) 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.(o) 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)19
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.
[(a) ] Book i. ch. 10.
[(b) ] C. 1, 7.
[(c) ]LL Ælfredi, c. 4. Æthelst, c. 4. Canuti, c. 54, 61.
[(d) ]L. 1, c. 2.
[(e) ] Sp. L. b. xii. c. 7.
[(f) ] 1 Hal. P. C. 80.
[(g) ] Britt. c. 22. 1 Hawk. P. C. 34.
[(h) ]Qui de nece virorum illustrium, qui consilus et consistorio nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujus libet postremo, qui militat nobiscum, cogitarerit: (eadem enim severitate voluntatem sceleris, qua effectum, puniri jura voluerint) ipse quidem, utpote majestatis reus, gladio feriatur, bonis ejus omnibus fisco nostro addictis. Cod. 9, 3, 5.
[(i) ] Gravin. Orig. 1, 34.
[1 ] The provisions of this act are confirmed by the 36 Geo. III. c. 7, which is made perpetual by the 57 Geo. III. c. 6. This latter statute renders the law of high treason more clear and definite. It provides that if any one within the realm, or without, shall compass or intend death, destruction, or any bodily harm tending thereto, maiming or wounding, imprisonment or restraint, of his majesty, or to depose him from the style, honour, or kingly name of the imperial crown of these realms, or to levy war against him within this realm, in order by force or constraint to compel him to change his measures or counsels, or in order to put any constraint upon or intimidate both or either house of parliament, or to move or stir any foreigner with force to invade this realm, or any of his majesty’s dominions, and such compassing or intentions shall express by publishing any printing or writing, or by any other overt act, being convicted thereof on the oaths of two witnesses upon trial, or otherwise, by due course of law, such person shall be adjudged a traitor, and suffer death as in cases of high treason.—Chitty.
[(j) ] 1 Hal. P. C. 101.
[(k) ] 3 Inst. 7. 1 Hal. P. C. 106.
[(l) ] 3 Inst. 7. 1 Hal. P. C. 104.
[(m) ] 1 Hawk. P. C. 36.
[(n) ] 1 Hal. P. C. 104.
[(o) ] Book i. p. 212.
[(p) ] By the ancient law, compassing or intending the death of any man, demonstrated by some evident fact, was equally penal as homicide itself. 3 Inst. 5.
[(q) ] 1 Hal. P. C. 107.
[(r) ] 3 Inst. 6.
[2 ] In the case of the regicides, the indictment charged that they did traitorously compass and imagine the death of the king. And the taking off his head was laid, among others, as an overt act of compassing. And the person who was supposed to have given the stroke was convicted on the same indictment. For the compassing is considered as the treason, the overt acts as the means made use of to effectuate the intentions of the heart. And in every indictment for this species of treason, and indeed for levying war, or adhering to the king’s enemies, an overt act must be alleged and proved. For the overt act is the charge, to which the prisoner must apply his defence. But it is not necessary that the whole of the evidence intended to be given should be set forth: the common law never required this exactness, nor doth the statute of king William require it. It is sufficient that the charge be reduced to a reasonable certainty, so that the defendant may be apprized of the nature of it and prepared to give an answer to it. Fost. 194.—Christian.
[(s) ] Plutarch, in vit.
[(t) ] 3 Inst. 12.
[(u) ] 1 Hal. P. C. 109.
[(w) ] 1 Hawk. P. C. 38. 1 Hal. P. C. 119.
[3 ] This subject is so ably explained by Mr. Justice Foster in his first discourse on high treason that it may be useful to annex here two of his sections:—“In the case of the king the statute of treasons hath, with great propriety, retained the rule voluntas pro facto. The principle upon which this is founded is too obvious to need much enlargement. The king is considered as the head of the body-politic, and the members of that body are considered as united and kept together by a political union with him and with each other. His life cannot, in the ordinary course of things, be taken away by treasonable practices without involving a whole nation in blood and confusion; consequently every stroke levelled at his person is, in the ordinary course of things, levelled at the public tranquillity. The law, therefore, tendereth the safety of the king with an anxious concern, and, if I may use the expression, with a concern bordering upon jealousy. It considereth the wicked imaginations of the heart in the same degree of guilt as if carried into actual execution from the moment measures appear to have been taken to render them effectual; and therefore, if conspirators meet and consult how to kill the king, though they do not then fall upon any scheme for that purpose, this is an overt act of compassing his death: and so are all means made use of, be it advice, persuasion, or command, to incite or encourage others to commit the fact or join in the attempt: and every person who but assenteth to any overtures for that purpose will be involved in the same guilt.
“The care the law hath taken for the personal safety of the king is not confined to actions or attempts of the more flagitious kind, to assassination or poison, or other attempts directly and immediately aiming at his life. It is extended to every thing wilfully and deliberately done or attempted whereby his life may be endangered; and therefore the entering into measures for deposing or imprisoning him, or to get his person into the power of the conspirators, these offences are overt acts of treason within this branch of the statute; for experience has shown that between the prisons and the graves of princes the distance is very small.” Fost. 194.
This was the species of treason with which the state-prisoners were charged who were tried in 1794; and the question, as stated by the court for the jury to try, was, Whether their measures had been entered into with an intent to subvert the monarchy and to depose the king? See Hardy’s Trial.—Chitty.
[4 ] There was even a refinement and degree of subtlety in the cruelty of that case, for he wished it, horns and all, in the belly of him who counselled the king to kill it; and, as the king killed it of his own accord, or was his own counsellor, it was held to be a treasonable wish against the king himself. 1 Hal. P. C. 115.—Christian.
[(x) ] 1 Hal. P. C. 115.
[(y) ] Cro. Car. 125.
[5 ] This subject is fully and ably discussed by Mr. J. Foster, who maintains that words alone cannot amount to an overt act of treason; but if they are attended or followed by a consultation, meeting, or any act, then they will be evidence or a confession of the intent of such consultation, meeting, or act; and he concludes that “loose words, not relative to facts, are at the worst no more than bare indications of the malignity of the heart.” Fost. 202, et seq.—Christian.
[(z) ] Ibid.
[(a) ] Foster, 198.
[(b) ] 1 Hal. P. C. 118. 1 Hawk. P. C. 38.
[(c) ] 3 Inst. 9.
[6 ] 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 before the issue of the king’s eldest daughter; and her chastity is only inviolable before marriage, whilst 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 de lour enfantz. Britt. c. 8.—Christian.
[(d) ]Feud. l. 1, t. 5.
[(e) ] Ibid. t. 21.
[(f) ] 1 Hawk. P. C. 37.
[7 ] Lord Mansfield declared, upon the trial of lord George Gordon, that it was the unanimous opinion of the court that an attempt, by intimidation and violence, to force the repeal of a law was a levying was against the king, and high treason. Doug. 570.—Christian.
[(g) ] 1 Hal. P. C. 132.
[(h) ] Robertson, Ch. V. i. 45, 286.
[(i) ] 1 Hal. P. C. 136.
[(k) ] 3 Inst. 9. Foster, 211, 213.
[8 ] 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 defence of themselyes, 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 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 afterwards inter cepted, 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.—Christian.
[(l) ] 3 Inst. 10.
[(m) ] Foster, 219.
[(n) ] Ibid. 216.
[(o) ] 1 Hawk. P. C. 38.
[(p) ] Foster, 216.
[9 ] “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. 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.” Const. U. S. art. iii. s. 3, pl. 1.
If any person or persons owing allegiance to the United States of America shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be convicted on confession in open court, or on the testimony of two witnesses to the same overt act of treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death. Act April 20, 1790, s. 1, 1 Story’s Laws, 83.
However flagitious may be the crime of conspiring to subvert by force the government of the country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. If war be actually levied,—that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose,—all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war. Ex parte Bollman, 4 Cranch, 126. United States vs. Burr, ibid. 469. People vs. Lynch, 1 Johns. 553.
Levying war is direct where the war is levied directly against the government with intent to overthrow it; constructive, where it is levied for the purpose of producing changes of a public and general nature by an armed force. Foster, 211. If a body of men conspire and meditate an insurrection to resist or oppose the execution of any statute of the United States by force, they are only guilty of a high misdemeanour; but if they proceed to carry such an intention into execution by force, they are then guilty of treason by levying war. United States vs. Mitchell, 2 Dall. 348. To march in arms with a force marshalled and arrayed, committing acts of violence and devastation, in order to compel the resignation of a public officer and thereby render ineffective an act of Congress, is high treason, (Ibid. United States vs. Vigols, 2 Dall. 246;) but an insurrection to accomplish some private or particular purpose, as to deliver one or more particular persons out of prison, to compel a particular officer to resign, to resist or evade the revenue-laws by smuggling goods, is not treason. United States vs. Hanway, 2 Wall. Jr. 144.
The same principle is to be applied in construing the phrase adhering to the enemies of the United States as is adopted in the interpretation of the phrase levying war. Both were taken from the same English statute; and the rule laid down by Marshall, C. J., in Burr’s case, that the common-law definitions were to be considered as authoritative, bears equally on either. Under the English statute, every assistance yielded by a citizen to the enemies of the government under which he lives, unless given from a well-grounded apprehension of immediate death in case of a refusal, is high treason within this branch of the statute. Therefore if citizens of the United States join public enemies in acts of hostility against this country, or even against its allies, or deliver up its castles, forts, or ships of war to its enemies through treachery or in combination with them, or join the enemy’s forces, although no acts of hostility be committed by them, or raise troops for the enemy, or supply them with money, arms, or intelligence, although such money, intelligence, &c. be intercepted and never reach them, and delivering up prisoners and deserters to the enemy, are cases of adhering to the enemies of the United States, giving them aid and comfort. Wharton’s Amer. Crim. Law, 886. United States vs. Hodges, 2 Dall. 87. Resp. vs. McCarty, ibid. 87.
Where an indictment for treason in adhering to the enemy charged the defendant with going from the British squadron to the State of Delaware, with intent to procure provisions for the squadron, it was held that this did not amount to treason, as this conduct rested in intention, which is not punishable by our laws. It would be otherwise if a person had carried provisions towards the enemy, with intent to supply him, though that intention should be defeated. If the intention of the defendant had been to procure provisions for the enemy, by uniting with him in hostilities against the citizens of the United States, his progressing towards the shore would have been an overt act of adhering to the enemy, though no other act was committed. The United States vs. Pryor, 3 Wash. C. C. Rep. 234.
But when the supreme authority is not able to afford the citizen protection, he may enter into an agreement of neutrality with a public enemy. Miller vs. Resolution, 2 Dall. 10. In civil wars every man chooses his party; but generally that side which prevails arrogates the right of treating those who are vanquished as rebels. The voice of the majority must be conclusive as to the adoption of a new system; but all the writers agree that the minority have, individually, an unrestrainable right to remove with their property into another country; that a reasonable time for that purpose ought to be allowed; and, in short, that none are subjects of the adopted government who have not freely assented to it. Resp. vs. Chapman, 1 Dall. 58. See McIlvain vs. Coxe’s Lessee, 2 Cranch 279. 4 ibid. 209. Inglis vs. The Trustees of the Sailor’s Snug Harbour, 3 Peters, 99.—Sharswood.
[(q) ] 3 Inst. 16.
[(r) ] 1 Hawk. P. C. 42.
[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.
In treason, as we have before seen, all concerned are in general principals, (1 Hale. 233;) but it has been doubted whether receivers of coiners are guilty of more than misprision of treason, (1 East, P. C. 94, &c.;) and on this doubt a convict was pardoned. (Dyer, 296, a.;) but it seems they are traitors, (1 East, P. C. 95,) except where accessories before; and principals in the second degree are expressly included in the terms of the act which creates the treason, when the construction has been in general lenient, according to the maxim expressum facit cessare tacitum. 1 East, P. C. 96. A party who agrees before the fact to receive and vend counterfeit coin is a principal traitor. 1 Hale, 214.—Chitty.
[(s) ] Ibid. 43.
[(t) ] 1 Hal. P. C. 231.
[11 ] By the statute 7 Anne, 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 Anne, c. 21 has also enacted that the crimes of high treason and misprision of treason shall be exactly the same in England and Scotland; and that no acts in Scotland, except those above specified, shall be 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.
[(u) ] 1 Hal. P. C. 259.
[(v) ] Stat. 1 Hen. IV. c. 10.
[12 ] The 1 Mar. c. 1 was only a confirmation so far of a much more important statute,—viz., 1 Edw. VI. c. 12.—Christian.
See the statute 36 Geo. III. c. 7, (rendered perpetual by 57 Geo. III. c. 6,) confirming the statute of 25 Edw. III.—Chitty.
[(w) ] Sir T. Raym. 377.
[(x) ] Latch. 1.
[13 ] In consequence of insults and outrages which had been publicly offered to the person of the king, and of the great multitude of seditious publications aiming at the overthrow of the government of this country, and also of the frequent seditious meetings and assemblies held at that time to destroy the security and tranquillity of the public, two acts of parliament were passed in the 36th year of his present majesty’s reign,—one (c. 7) entitled “An act for the safety and preservation of his majesty’s person and government against treasonable and seditious practices and attempts;” and the other (c. 8) “An act the more effectually preventing seditious meetings and assemblies.”
By the first it was enacted that if any person should compass, imagine, or intend death, destruction, or any bodily harm to the person of the king, or to depose him, or to levy war, in order by force to compel him to change his measures or counsels, or to over awe either house of parliament, or to excite an invasion of any of his majesty’s dominions, and shall express and declare such intentions by printing, writing, or any overt act, he shall suffer death as a traitor.
And if any one, by writing, printing, preaching, or other speaking, shall use any words or sentences to excite the people to hatred and contempt of the king, or of the government and constitution of this realm, he shall incur the punishment of a high misdemeanour,—that is, fine, imprisonment, and pillory; and for a second offence he is subject to a similar punishment, or transportation for seven years, at the discretion of the court.
But a prosecution for a misdemeanour under this act must be brought within six months. And this statute shall not affect any prosecution for the same crimes by the common law, unless a prosecution be previously commenced under the statute.—Christian.
The contagion of French revolutionary principles in 1795 gave occasion for the passing of these acts. The last of them was passed for three years only; and of the former ss. 1, 5, 6 are made perpetual by 57 Geo. III. c. 6: the rest is expired.—Chitty.
[(y) ] C. 9, 24. 2 Cod. Theod. de falsa moneta, l. 9.
[(z) ] Pott. Antiq. b. i. c. 26.
[(a) ]L. 14, c. 7.
[(b) ]L. 3, c. 3, 1, 2.
[(c) ]L. 1, c. 22.
[(d) ] 1 Hal. P. C. 224.
[14 ] 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 endeavour to continue to Mary the popularity which had so justly been gained by her brother.—Chitty.
[(e) ]Ff. 48, 4, 6.
[15 ] As to what tools or instruments are within the act, see Fost. 430. 1 East, P. C. 170, 171. 1 Leach. 189. A mould for coining is within the act. 1 East, P. C. 170. So is a press for coinage. Fost. 430. By the 8 & 9 W. III. c. 26, s. 5, the tools, &c. may be seized to produce in evidence.—Chitty.
[16 ] And it is incumbent on the prosecutor to show the prosecution was commenced within that time. Proof by parol that the prisoner was apprehended for treason respecting the coin within the three months will not be sufficient, if the indictment is after the three months, and the warrant to apprehend or commit is produced. Russ. & R. C. C. 369.—Chitty.
[(f) ] Stat. 7 Anne, c. 25.
[17 ] 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 aqua-fortis,—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 colouring under this statute. Lavey’s case, ibid. 140.
In a case at Durham, where a man had been committed more than three months before his trial, for an offence under this statute, and upon conviction his case was reserved for the opinion of the judges, they determined that the commitment was the commencement of the prosecution, otherwise this crime might be committed with impunity half the year in the four northern counties. See further, ante, 84.—Christian.
[18 ] But all these statutes have been repealed, the offence to which they relate being now reduced to a felony, by stat. 2 W. IV. c. 34.—Stewart.
[(g) ] State Tr. ix. 680.
[(h) ] 33 Ass. pl. 7.
[(i) ] 1 Hal. P. C. 382.
[(k) ] 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.
[(l) ] 1 Hal. P. C. 351.
[(m) ] 3 Inst. 52.
[(n) ] See ch. 32.
[(o) ] 1 Hal. P. C. 351.
[(p) ] 2 Hal. P. C. 399.
[19 ] 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:—Et si nule femme de ascune treson soit attainte, soit ars. Britt. c. 8.—Christian.
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, 651;) but the last executions for this offence followed (and properly so, for the purpose of example) more closely upon conviction. Thistlewood and his fellow-conspirators were condemned and executed within a few days after their trial.—Chitty.