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king or his government) it falls within the first, of compassing or imagining the king's death." (6)
4. “ If a man be adherent to the king's enemies in his “ realm, giving to them aid and comfort in the realm, or else" where,” he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence (7), by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like.' By enemies are here understood the subjects of foreign [ 83 ] 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", or else in that of levying war against his majesty. And, most indisputably, * 3 Inst. 9. Foster. 211. 213.
3 Inst. 10.
m Foster, 219. (6) By the 36 G. 3. c. 7. (enacted only for the late king's life, but as to this purpose, made perpetual by the 57 G. 3. c. 6.) it is provided 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 H. M., or to depose him from the style, honour, or kingly name of the imperial crown of these realms, or o 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 upon the oaths of two witnesses upon trial, or otherwise, by due course of law, such person shall be adjudged a traitor, and suffer death, and forfeit as in cases of high treason. Perhaps all the offences enumerated in this statute, were already chargeable as overt acts of compassing the death of the king; but this makes them substantive treasons; and thereby (to use the words of Abbott C. J.), “ the law is rendered more clear and plain, both to those who are bound to obey it, and to those who may be engaged in the administration of it.” Charge to the grand jury on the special commission, March 27, 1820.
(7) The intelligence need not actually reach the enemy Mr. J. Foster observes, that the bare sending money or provisions, or sending intelligence to rebels or enemies, which in most cases is the most effectual aid that can be given them, will make a man a traitor, though the money or intelligence should happen to be intercepted. P. 217.
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." 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. And if a person be under circumstances of actual force and constraint, through a well-grounded upprehension 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.° (8)
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 on 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 glewed together two pieces of parchment; on the uppermost of which he wrote
a patent, to which he regularly obtained the great seal, the ( 84 ) label going through both the skins. He then dissolved the
cement; and taking off the written patent, on the blank skin
p Foster, 216.
9 3 Inst. 16. (8) But an apprehension, though ever so well grounded, of having houses burnt, or estates wasted, or cattle destroyed, or of any other mischief of the like kind, will not excuse in the case of joining and marching with rebels or enemies. Foster, 217.
(9) Even after the making, and delivery of a new seal, and the breaking of the old one, it is high treason to counterfeit the latter, and apply it to an instrument of no date, or of a date when it was in use. 1 Hale, H.P.C.177 To constitute the offence, however, in any case, there must be an actual application of the counterfeit, so as to produce an impression in testi
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 merchandize 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.9 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.' But of this we shall presently say more. (10)
91 Hawk. P. C. c. 17. s. 57. r Ibid. c. 17. s. 83. i Hal. P.C.231. mony of some writing; the mere making a seal similar to the original, though with intent so to apply it, is only a compassing to counterfeit, and punishable as a misdemeanour. Ibid. 183.
(10) Other important questions arise upon this clause of the statute, which it may be convenient to notice shortly in this place. Ist. What is the extent of the term,“ king's money?” Before the union with Ireland, this point was much discussed in respect of gold and silver money coined and issued in that kingdom; and the better opinion seems to have been upon principle, and the comparison of this with later statutes, that such money was king's money, and the counterfeiting of it high treason. The arguments upon which this conclusion is founded, will apply equally to the case of money coined by the king's authority in any other part of his dominions, and not restrained in its circulation to that part. There is certainly this difficulty attending this conclusion, that a person may have no knowledge that the money he so counterfeits is the king's money, and therefore may incur the penalties of high treason unwittingly; at the present day, indeed, there is no hardship in this, for later statutes have made the counterfeiting even of foreigr coin, whether current or not, in this realm, highly penal, and the man who does an act, which he knows to be illegal, cannot complain, if it involves him in consequences more serious than he anticipated. But as these statutes cannot be taken into the account in a question on an older statute, the only answer which the difficulty seems to admit of, is that legally the subject is bound to know the king's coin; and that the same ignorance might in fact subsist, either as to very ancient, or very recent coins, issued in England itself, and yet there can be no doubt that the act itself of counterfeiting them would be high-treason.
2d. What is the meaning of the term, “ money of England ?” And it is said, that by this, is to be understood all such money as is coined and issued by the authority of the crown of England, in any part of the dominions of England; for the law would be inconsistent, unless the second clause made it treason to import the same counterfeit money, which the first had made it treason to counterfeit. It is obvious, however, that this
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 the exchequer, as such, are not within the protection of this acts: 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 i W. & M. c. 21. (11)
& 1 Hal. P.C. 231. argument admits of a different application, and the restricted term, “money of England,” may as well be used to restrain the general term, " king's money," as this latter to enlarge the former.
3d. From what place must the importation be? And as to this, it was determined very early, that an importation from Ireland, then an independent member of the crown, was not within the statute, but that the clause was levelled against importation, where the counterfeiting itself was not punishable, that is, where it took place in the dominions of another sovereign. And it is now understood, that the same rule extends to exclude all the plantations and dominions of England, where the same laws are in force, by which the counterfeiter himself is punishable.
4th. A fourth question arises not only upon this, but all the statutes on the same subject ; namely, what degree of resemblance to the true coin in the counterfeit piece, is necessary to constitute the offence of counterfeiting? This is a question of fact, but the principle seems to be that there must be resemblance enough to give the coin circulation, and impose upon the world generally, but that the resemblance need not be perfect. Thus, where the counterfeit impressions were exact, but in one case, the coin was not round, and in another there was an awkward roughness upon the edges, so that the coins would be taken by nobody, it was held that the offences were not complete. And on the other hand, where the counterfeit shilling was “quite smooth, without the smallest vestige of either head or tail,” but at the same time was very like those shillings, the impression on which had been worn away by time, and might have been readily taken by ordinary persons for such, the offence was held to be sufficiently committed. Varley's case. Wooldridge's case, Leach, 76. 308. Wilson's case, Leach, 285. East's P.C. c.iv. ss. 4,5,6.
(11) Although it is part of the commission of justices of the peace, to hear and determine certain felonies, they are not within the statute, which applies to such justices only as have a commission of oyer and terminer, as
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 op 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, doth happen before any judge; the judge “ shall tarry without going to judgment of the treason, till the “ cause be shewed and declared before the king and his parlia“ment, whether it ought to be judged treason or other “ felony.” Sir Matthew Hale' 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
t1 Hal. P. C. 259.
the principal designation of their office. i Hale, H.P.C.231. With respect to the exclusion of the barons of the exchequer, there is some disagreement among the text writers. Lord Hale, in the passage referred to, takes no particular notice of the case, but merely says that the statute extends to no other officers than those named. For the operation of the statutes of Elizabeth, and William and Mary, see Vol. III. p. 47, 48. n. (10).