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*Thus careful was the legislature, in the reign of Edward the Third, *85)
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
“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. Ho 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; *which seems to be founded on better reason than the *86]
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 in. venting 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 (W) 1 Hal. P. C. 269.
(*) Stat. 1 Hen. IV. c. 10.
sion, 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.
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 *number of twelve and not dispersing upon proclamation : all which new-fangled treasons were totally
[*87 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 Engiand, shall come over hither from beyond the seas, unless driven by stress of weather(10) 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 *temporal sovereign upon taking orders; that being inconsistent with his new engagements of canonical obedience
[*88 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 (*) Sir T. Raym. 377.
(*) Latch, 1. 1. 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.
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 goveru ment and constitution of this realm, he shall incur the punishment of a high misde mcanour,--that is, fine, imprisonment, and pillory; and for a second offence he is sub
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 trraason 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, (2) 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 *891
out of any disaffection for 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,(a) Bracton,(6) 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 men. tion 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 ex. tensions 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 stroke" 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 whereof, 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 (*) C. 9, 24. 2 Cod. Theod. de falsa moneta, l. 9.
(0) L. 3, c. 3, & 1, 2. (a) Pott. Antiq. b. i. c. 28.
(9) L. 1, c. 22.
1 Hal. P. C. 224.
(*) L. 14, c. 7.
ject 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.Caristian.
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.
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 contidite In Mary the popularity which had so justly been gained by her brother.-Chitty.
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’ehil- [*90 lings: 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, 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 *months after the commission of the offence;16 except those
[*91 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.(9)". And, lastly, by statute 15 & 16 Geo. II. c. 28, (*) Ff. 48, 4, 6.
B) Stat. 7 Anne, c. 25.
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.
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 con'victed 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.
if ar.y person colours or alters any shilling or sixpence, either lawful or coun terfeit, to make them respectively resemble a guinea or half-guinea, or any hafpenny 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 domirions 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 *92]
same by any *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 *93]
of being dragged on the ground or pavement.(0) 2. That he *be hanged
by the neck, and then cut down alive. 3. That his er trails be taken out and burnod while he is yet alive. 4. That his head be cut off. 5. That his
( 1 Hal. P. C. 382. (*) 33 Ass. pl. 7.
(6) State Tr. ix. 680.
13 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.