Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
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 commentaries1 we had occasion to mention the nature of allegiance, as the tie or ligament 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 honor; and not to know or hear of any ill intended him, without defending him therefrom. And this allegiance, we may remember, was distinguished int two sorts or 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 offense therefore more immediately affecting the royal person, his crown, or dignity, is in some degree a breach of this duty of allegiance, whether natural and 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. Praemunire. 4. Other misprisions and contempts. Of which crimes the first and principal is that of treason.
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, says the mirror:2 for treason is indeed a general appellation, made use of by the law, to denote not only offenses 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 inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such his superior or lord. This is looked upon as proceeding from the same principle of treachery in private life, as would have urged him who harbors 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 laesae majestatis of the Romans, as Glanvil3 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.4 And yet, by the ancient 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, offenses into the 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 90 £:5 a crime, it must be owned, well deserving of punishment; but which seems to be of a complection very different from that of treason. Killing the king’s father, or brother, or even his messenger, has also fallen under the same denomination.6 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.7 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 offenses only for the future should be held to be treason: in like manner as the lex Julia majestatis among the Romans, promulgated by Augustus Caesar, comprehended all the ancient laws, that had before been enacted to punish transgressors against the state.8 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 does 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:9 but the husband of such a queen is not comprised within these words, and therefore no treason can be committed against him.10 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 an usurper that has 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 has 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.11 And a very sensible writer on the crown-law carries the point of possession so far, that he holds,12 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 the his allegiance to fight for his natural prince today, and by the same duty of allegiance to fight against him tomorrow. The true distinction seems to be, that the statute of Henry 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 farther, 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 favor, 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.13 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,14 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, etc. These are synonymous terms; the word compass signifying the purpose or design of the mind or will,15 and not, as in common speech, the carrying such design to effect.16 And therefore an accidental stroke, which may mortally would 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, shooting at a hart, the arrow glanced against a tree, and killed the king upon the spot.17 But, as this compassing or imagination is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open, or overt, act. And yet the tyrant Dionysius is recorded18 to have executed a subject, barely for dreaming that he had killed him; which was held for a 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.19 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;20 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.21
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, of 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 favorite buck the king killed in hunting, whereupon he wished it, horns and all, in the king’s belly. These were esteemed hard cases: and the chief justice Markham rather chose to leave his place than assent to the latter judgment.22 But now it seems clearly to be agreed, that, by the common law and the statute of Edward III, words spoken amount only to a high misdemeanor, 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.”23 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 Peacham a clergyman, for treasonable passages in a sermon never preached;24 and
of Algernon Sidney, 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 acts of that treason, which was specially laid in the indictment.25 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. Peacham was therefore pardoned: and, though Sidney 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;26 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:27 in like manner as, by the feudal law, it was a felony and attended with a forfeiture of the fief, if the vassal vitiated the wife or daughter of his lord;28 but no so if he only vitiated his widow.29
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 pretense to reform religion, or the laws or to remove evil counselors, or other grievances whether real or pretended.30 For the law does not, neither can it, permit any private man, or set of men, to interfere forcibly in matters of such high importance; especially as it has established a sufficient power, for these purposes, in the high court of parliament: neither does the constitution justify any private or particular resistance for private or particular grievances; though in cases of national oppression the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the king and his people. To resist the king’s forces by defending a castle against them, is a levying of war: and so is an insurrection with an avowed design to pull down all 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.31 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, it is only a great riot and contempt, and no treason. Thus it happened between the earls of Hereford and Gloucester in 20 Edw. I. who raised each a little army, and committed outrages upon each others lands, burning houses, attended with the loss of many lives: yet this was held to be no high treason, but only a great misdemeanor.32 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.33
4. “IF a man be adherent to the king’s enemies in his realm, giving to them aid and comfort in the realm, or elsewhere,” he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence, by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like.34 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 the many assistance is also clearly treason; either in the light of adhering to the public enemies of the king and kingdom,35 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.36 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.37 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 has a safe opportunity.38
5. “IF a man counterfeit the king’s great or privy seal,” this is also high treason. But if a man takes 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 then 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 Coke39 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.” 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 ministers alter the standard or alloy established by law, it is treason. But gold and silver money only are held to be within this statute.40 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 treason.41 But of this we shall presently say more.
7. THE last species of treason, ascertained by this statute, is “if a man slay the chancellor, treasurer, or the king’s justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places doing their offices.” These high magistrates, as they represent the king’s majesty during the execution of their officers, are therefore for the time equally regarded by the law. But this statute extends only to the actual killing of them, and not to wounding, or a bare attempt to kill them. It extends also only to the officers therein specified; and therefore the barons of the exchequer, as such, are not within the protection of this act.42
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 case supposed to be treason, which is not above specified, does 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 Hale43 is very high in his encomiums on the great wisdom and care of the parliament, in thus keeping judges within the proper bounds and limits of this act, by not suffering them to run out (upon their own opinions) into constructive treasons, though in cases that seem to them to have a like parity of reason; but reserving them to the decision of parliament. This is a great security to the public, the judges, and even this sacred act itself; and leaves a weighty memento to judges to be careful, and not overhasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved 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 ambassador was made so; which seems to be founded upon better reason than the multitude of other points, that were then strained up to this high offense: the most arbitrary and absurd of all which was by the statute 21 Ric. II. c. 3. which made the bare purpose and intent of killing or deposing the king, without any overt act to demonstrate it, high treason. And yet so little effect have over-violent laws to prevent any crime, that within two years afterwards this very prince was both deposed and murdered. And, in the first year of his successor’s reign, an act was passed,44 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 reign of Henry the fourth and queen Mary, and particularly in the bloody reign of Henry the eighth, the spirit of inventing new and strange treasons was revived; among which we may reckon the offenses of clipping money; breaking prison or rescue, when the prisoner is committed for treason; burning houses to extort money; stealing cattle by Welchmen; counterfeiting foreign coin; willful poisoning; execrations against the king; calling him opprobrious names by public writing; counterfeiting the sign manual or signet; refusing to adjure the pope; deflowering, or marrying without the royal license, any of the king’s children, sisters, aunts, nephews, or nieces; bare solicitation of the chastity of the queen or princess, or advances made by themselves; marrying with the king, by a woman not a virgin, without previously discovering to him such her unchaste life; judging or believing (manifested by any overt act) the king to have been lawfully married to Anne of Cleve; derogating from the king’s royal style and title; impugning his supremacy; and assembling riotously to the number of twelve, and not dispersing upon proclamation: all which new-fangled treasons were totally abrogated by the statute 1 Mar. c. 1. which once more reduced all treasons to the standard of the statute 25 Edw. III. Since which time, though the legislature has been more cautious in creating new offenses of this kind, yet the number is very considerably increased, as we shall find upon a short review.
THESE new treasons, created since the statute 1 Mar. c. 1. and not comprehended under the description 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 the 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 misdemeanor; and, if the offense 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; or shall tarry her three days without conforming to the church; 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 offenses, 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 temporal 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 defense of his authority here, or a formal reconciliation to the see of Rome, which the statute construes to be a withdrawing from one’s natural allegiance; and therefore, besides being reconciled “to the pope,” it also adds “or any other prince or state.”
2. WITH regard to treasons relative to the coin or other royal signatures, we may recollect that the only two offenses 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 determinations 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,45 false coiners were declared guilty of high treason, and were condemned to be burned alive: as, by the laws of Athens,46 all counterfeiters, debasers, and diminishers of the current coin were subjected to capital punishment. However, it must be owned, that this method of reasoning is a little overstrained: counterfeiting or debasing the coin being usually practiced, rather for the sake of private and unlawful lucre, than out of any disaffection to the sovereign. And therefore both this and its kindred species of treason, that of counterfeiting the seals of the crown or other royal signatures, seem better denominated by the later civilians a branch of the crimen falsi or forgery (in which they are followed by Glanvil,47 Bracton,48 and Fleta49) than by Constantine and our Edward the third, a species of the crimen laesae majestatis
or high treason. For this confounds the distinction and proportion of offenses; 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 offense of counterfeiting the coin was held to be only a species of petit treason:50 but subsequent acts in their new extensions of the offense have followed the example of that, and have made it equally high treason as an endeavor 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 blow 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 offenses shall be deemed high treason. And by statute 1 & 2 P. & 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, an shall utter the same in payment, they shall be deemed offenders in high treason. The money referred to in these statutes must be such as is absolutely current here, in all payments, by the king’s proclamation; of which there is none at present, Portugal money being only taken by consent, as approaching the nearest to our standard, and falling in well enough with our divisions of money into pounds and shillings: therefore to counterfeit it is no high treason, but another inferior offense. Clipping or defacing the genuine coin was not hitherto included in these statutes: though an offense 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 subject. And therefore, among the Romans,51 defacing or even melting down the emperor’s statues was made treason by the Julian law; together with other offenses of the like sort, according to that vague appendix, “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. the same offense is 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 Ann. c. 25.
whoever shall knowingly make or mend, or assist in so doing, or shall buy or sell, or have in his possession, any instruments proper only for the coinage of money; or shall convey such instruments out of the king’s mint; shall be guilty of high treason: which is by much the severest branch of the coinage law. The statute goes on farther, and enacts, that to mark any coin on the edges with letters, or otherwise, in imitation of those used in the mint; or to color, gild, or case over any coin resembling the current coin, or even round blanks of base metal; shall be construed high treason. And, lastly, by statute 15 & 16 Geo. II. c. 28. if any person colors or alters any silver current coin of this kingdom, to make it resemble a silver one; this is also high treason: but the offender shall be pardoned, in case he discovers and convicts two other offenders of the same kind.
3. THE other new species of high treason is such as is created for the security of the protestant succession, over and above such treasons against the king and government as were comprised under the statute 25 Edw. III. For this purpose, after the act of settlement was made, for transferring the crown to the illustrious house of Hanover, it was enacted by statute 13 & 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 remit money for their use, is made high treason in the same manner as it was to correspond with the father. By the statute 1 Ann. St. 2.c. 17. if any person shall endeavor to deprive or hinder any person, being the next in succession to the crown according to the limitations of the act of settlement, from succeeding to the crown, and shall maliciously and directly attempt the same by any overt act, such offense shall be high treason. And by statute 6 Ann. c. 7. if any person shall maliciously, advisedly, and directly, by writing or printing, maintain and affirm, that any other person has 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 offense (or indeed maintaining this doctrine in any wise, that the king and parliament cannot limit the crown) was once before made high treason, by statute 13 Eliz. c. 1. during the life of that princess. And after her decease it continued a high misdemeanor, punishable with forfeiture of goods and chattels, even in the most
flourishing 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 favor 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.52
THUS much for the crime of treason, or laesae 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 a fledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement.53 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 disposal.54
THE king may, and often does, 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.55 But where beheading is no part of the judgment, as in murder or other felonies, it has been said that the king cannot change the judgment, although at the request of the party, from one species of death to another.56 But of this we shall say more hereafter.
IN the case of coining, which is a treason of a different complection from the rest, the punishment is milder for male offenders; being only to be drawn, and hanged by the neck till dead.57 But in treasons of every kind the punishment of women is the same, and different form that of men. For, as the natural modesty of the sex forbids the exposing and publicly mangling their bodies, their sentence (which is to the full as terrible to sense as the other) is to be drawn to the gallows, and there to be burned alive.58
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 offenses.
1. Book. I ch. 10.
2. c. 1. § 7.
3. l. 1. c. 2.
4. Sp. L. b. 12. c. 7.
5. 1 Hal. P. C. 80.
6. Britt. c. 22. 1 Hawk. P. C. 34.
7. Qui de nece virorum illustrium, qui consiliis et consistorio nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujuslibet postremo, qui militat nobiscum, cogitaverit: (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. 8. 5.)
8. Gravin. Orig. 1. § 34.
9. 1 Hal. P. C. 101.
10. 3 Inst. 7. 1 Hal. P. C. 106.
11. 3 Inst. 7. 1 Hal. P. C. 104.
12. 1 Hawk. P. C. 36.
13. 1 Hal. P. C. 104.
14. Vol. 1. pag. 212.
15. 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.)
16. 1 Hal. P. C. 107.
17. 3 Inst. 6.
18. Plutarch. in vit.
19. 3 Inst. 12.
20. 1 Hal. P. C. 109.
21. 1 Hawk. P. C. 38. 1 Hal. P. C. 119.
22. 1 Hal. P. C. 115.
23. Cro. Car. 125.
25. Foster. 198.
26. 1 Hal. P. C. 118. 1 Hawk. P. C. 38.
27. 3 Inst. 9.
28. Feud. l. 1. t. 5.
29. Ibid. t. 21.
30. 1 Hawk. P. C. 37.
31. 1 Hal. P. C. 132.
32. Ibid. 136.
33. 3 Inst. 9. Foster. 211. 213.
34. 3 Inst. 10.
35. Foster. 219.
36. Ibid. 216.
37. 1 Hawk. P. C. 38.
38. Foster. 216.
39. 3 Inst. 16.
40. 1 Hawk. P. C. 42.
41. Ibid. 43.
42. 1 Hal. P. C. 231.
43. 1 Hal. P. C. 259.
44. Stat. 1 Hen. IV. c. 10.
45. C. 9. 24. 2. Cod. Theod. de falsa moneta, l. 9.
46. Pott. Ant. l. 1. c. 26.
47. l. 14. c. 7.
48. l. 3. c. 3. § 1 & 2.
49. l. 1. c. 22.
50. 1 Hal. P. C. 224.
51. Ff. 48. 4. 6.
52. State Tr. IX. 680.
53. 1 Hal. P. C. 382.
54. This punishment for treason Sir Edward Coke tells us, is warranted by diverse examples in scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.)
55. 1 Hal. P. C. 351.
56. 3 Inst. 52.
57. 1 Hal. P. C. 351.
58. 1 Hal. P. C. 399.