Page images

commenced within three months after the commission of the offence: except those for making or mending 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'. And, lastly, by statute 15 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 halfpenny 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.

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 comprized 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 Ann. 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 overt act, such offence shall be high treason. [ 92 ] And by statute 6 Ann. c. 7. if any person shall maliciously, advisedly, and directly, by writing or printing, maintain and

f Stat. 7 Ann, c. 25.



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 misdemesnor, punishable with forfeiture of goods and chattels, even in the most flourishing aera 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 Deis.

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 it's 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 ", 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. 2. That he be

hanged by the neck, and then cut down alive. 3. That his [ 93 ] 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 disposalk. 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'. 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 ".

* State Tr. IX. 680.
+ 33 Ass. pl. 7.
i i Hal. P. C. 382.

* This punishment for treason, sir Edward Coke tells us, is warranted by divers examples in Scripture ; for

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 deado. 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. (17)

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 altogether, as well in treason as in other offences.

Joab was drawn, Bigthan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.)

1 i Hal. P.C. 351.
m 3 Inst. 52.

See ch. 32.
o i Hal. P. C.351.
P 2 Hal. P.C. 399.

(17) By the 30 G. 3. c. 48. this punishment of burning women for high or petit treason is abolished, and hanging by the neck is substituted; and by the 54G. 3. c. 146., in all cases of high treason where the punishment would have been that first described in the text, the sentence now to be awarded is drawing on a hurdle, hanging by the neck till dead, beheading and quartering. But after judgment his majesty may, by warrant, under the sign manual, countersigned by a principal secretary of state, direct that the traitor shall not be drawn nor hanged, but be beheaded alive, and may in such warrant direct how the body, head, and quarters, shall be disposed of. By the French law high treason, when it consists in an attempt or conspiracy against the life or person of the King, is punished as parricide, with the addition of the forfeiture of the party's goods. See post, 203, n. Code penal, 1. iii. t. 1. s. 86.




A S, according to the method I have adopted, we are next to

consider such felonies as are more immediately injurious to the king's prerogative, it will not be amiss here, at our first entrance upon this crime, to inquire briefly into the nature and meaning of felony ; before we proceed upon any of the particular branches into which it is divided.

FELONY, in the general acceptation of our English law, comprizes every species of crime, which occasioned at common law the forfeiture of lands or goods. This most frequently happens in those crimes, for which a capital punishment either is or was liable to be inflicted: for those felonies which are called clergyable, or to which the benefit of clergy extends, were antiently punished with death, in all lay, or unlearned offenders ; though now by the statute-law that punishment is for the first offence universally remitted. Treason itself, says sir Edward Coke", was antiently comprized under the name of felony: and in confirmation of this we may observe that

the statute of treasons, 25 Edw.III. c. 2., speaking of some [ 95 ] dubious crimes, directs a reference to parliament, that it may

be there adjudged, “ whether they be treason, or other felony." All treasons therefore, strictly speaking, are felonies; though all felonies are not treason. And to this also we may add, that not only all offences, now capital, are in some degree or other felony; but that this is likewise the case with some other offences, which are not punished with death; as suicide, where the party is already dead; homicide by chance-medley,

[ocr errors]

or in self-defence; and petit larceny or pilfering; all which are (strictly speaking) felonies, as they subject the committers of them to forfeitures. So that upon the whole the only adequate definition of felony seems to be that which is before laid down; viz. an offence which occasions a total forfeiture of either lands, or goods, or both, at the common law; and to which capital or other punishment may be superadded, according to the degree of guilt.

To explain this matter a little farther : the word felony or felonia, is of undoubted feodal original, being frequently to be met with in the books of feuds, &c.; but the derivation of it has much puzzled the juridical lexicographers, Prateus, Calvinus, and the rest : some deriving it from the Greek praos, an impostor or deceiver; others from the Latin fallo, fefelli, to countenance which they would have it called fallonia. Sir Edward Coke, as his manner is, has given us a still stranger etymologyb; that it is crimen animo felleo perpetratum, with a bitter or gallish inclination. But all of them agree in the description, that it is such a crime as occasions a forfeiture of all the offender's lands or goods. And this gives great probability to sir Henry Spelman's Teutonic or German derivation of ito: in which language indeed, as the word is clearly of feodal original, we ought rather to look for it's signification, than among the Greeks and Romans. Fe-lon then, according to him, is derived from two northern words ; fee, which signifies (we well know) the fief, feud, or beneficiary estate : and lon, which signifies price or value. Felony is therefore the same as pretium feudi, the consideration for which a man [ 96 ] gives up his fief; as we say in common speech, such an act is as much as your life, or estate, is worth. In this sense it will clearly signify the feodal forfeiture, or act by which an estate is forfeited, or escheats to the lord.

To confirm this we may observe, that it is in this sense, of forfeiture to the lord, that the feodal writers constantly use it. For all those acts, whether of a criminal nature or not, which at this day are generally forfeitures of copyhold estates", are styled felonia in the feodal law : “ scilicet, per quas feudum

ó i Inst. 391.

c Glossar, lit. Felon.

See Vol. II. pag. 284.

« PreviousContinue »