311 



TREASON. 



TREASURE-TROVE. 



342 



tinued, and sanctioned by the approbation of the judges in several 

 subsequent prosecutions for high treason. (' Sixth Report of Com- 

 missioners on Criminal Law/ p. 16.) 



The second kind of treason declared in the Statute of Treasons is 

 the violation of females of the royal family, and was obviously 

 intended to preserve the purity of the succession to the throne. With 

 a view to thi object, the law has been held to apply to a criminal 

 connection by consent as well as to a forcible violation. It is worthy 

 of remark, as one of the numerous circumstances showing the 

 inapplicability of this ancient law to modern times, that a queen 

 regnant, whether married or single, is not within this clause of the 

 statute. 



The third species of treason above mentioned is "levying war 

 against the king in his realm." It amounts to treason under this 

 clause of the statute to take arms against the king, not only with the 

 object of destroying him, but where it is intended by open violence 

 to reform religion or the laws, or to remove evil councillors, or other 

 grievances, whether real or pretended. (Hawkins's ' Pleas of the 

 Crown,' b. i., c. xvii., a. 25.) The plain words of this clause of the 

 statute have been still more extravagantly extended by legal construc- 

 tion than those of the clause relating to compassing the king's death. 

 Thus riotous assemblies, where the object has been to destroy all 

 property of any particular class, such as to pull down all meeting- 

 houses, or to destroy all inclosures, have been held to be treason in all 

 who join them, by reason of the generality of the design. This 

 doctrine has, however, been much questioned in recent times ; and to 

 the extent formerly contended for, would probably not be counte- 

 nanced by the judges at the present day. (Luders, ' On Constructive 

 Treasons ;" Sixth Report of Commissioners on Criminal Law.') Indeed 

 the necessity for constructive extensions of the words of this clause, 

 which might have been plausibly argued from the omission in the 

 Statute of Treasons to notice conspiracies or preparations to levy war 

 against the king, has been entirely removed by the above-mentioned 

 statute of the 36 Geo. III., c. 7. 



The fourth kind of treason mentioned in the Statute of Treasons is 

 adherence to the king's enemies. The enemies here mentioned are 

 foreign powers and states with whom the king of England is at war, 

 and who owe him no allegiance ; and, therefore, an adherence to 

 British subjects in a state of rebellion against the king will not con- 

 stitute treason under this clause, although it may amount to treason 

 in the article of levying war. This kind of treason must, like com- 

 passing the king's death, or levying war against him, be evidenced by 

 some overt act, such as treacherously surrendering a fortified place, or 

 supplying arms, or giving information to an enemy. 



The fifth treason mentioned in the statute is counterfeiting the 

 king's seals ; and this offence would now be punishable as forgery only. 

 The clause in the Statute of Treasons, which declares the offence of 

 counterfeiting the king's coin to be high treason, has been repealed by 

 the stat. 2 Will. IV., c. 34 ; and the crime itself has been by the same 

 enactment divided into distinct classes, as felonies and misdemeanors, 

 with a graduated scale of punishments. 



The last species of treason above referred to is the offence of slaying 

 the chancellor or the judges, which still continues to be high treason. 

 This part of the law is, however, obviously imperfect, as it does not 

 comprehend the barons of the exchequer, who at the present day are 

 the king's superior justices as fully as the judges of the other courts of 

 Westminster Hall ; whereas it includes the justices in eyre, whose 

 office has long since been abolished. 



Besides the several treasons above enumerated, a large class of 

 offences has been created by various statutes passed from time to time 

 in the reigns of Elizabeth and James I., with the avowed object of 

 protecting the Protestant religion from the designs of Roman Catholics. 

 But as many of these statutes have not been the subject of prosecution 

 for nearly three centuries, and many others have never been enforced 

 at all, they may perhaps be considered as virtually obsolete, and do 

 not require to be particularly noticed in this article. (' Sixth Report 

 of Commissioners on Criminal Law,' p. 35.) 



With a view to diminish the peculiar disadvantage under which a 

 person charged with treason was supposed to labour in having to 

 defend himself against a prosecution in which so powerful an adversary 

 as the crown was interested, several privileges as to process, evidence, 

 and trial have been given by statute to persons so accused. It is 

 declared by the stat. 7 Will. III., c. iii., s. 2, that no person whatsoever 

 shall be indicted, tried, or attainted of high treason or of misprision of 

 treason, but upon the oaths of two lawful witnesses, unless the party 

 indicted shall willingly, without violence, in open court confess the 

 same. And by the third section of the same statute, it is declared 

 that if two or more distinct treasons of divers heads or kinds shall be 

 alleged in one indictment, one witness produced to prove one of the 

 treasons, and another witness to another of the treasons, shall not be 

 deemed to be two witnesses to the same treason within the meaning of 

 the statute. The name statute of the 7 Will. III., c. 3, also enacted 

 that no person should be tried for any treason (except an attempt to 

 Marinate the king) unless the indictment be found within three years 

 after the offence committed. Moreover, the prisoner is to be furnished 

 with a copy of the indictment five days, and a copy of the panel of 

 jurors two days, before the trial. He is to have the same compulsory 

 process to enforce the attendance of his witnesses as was at the time of 



the statute exclusively applicable to the prosecutor's witnesses ; and he 

 is to have full defence by counsel selected by himself ami expressly 

 assigned to him by the court. The stat. 7 Anne, c. 21, materially 

 extended these privileges by directing that all persons indicted for high 

 treason, or misprision thereof, shall have not only a copy of the indict- 

 ment, but also a list of all the witnesses to be produced, and of the 

 jurors impanelled, with their professions ami places of abode re- 

 spectively, delivered to him ten clays before the trial, and in the 

 presence of two witnesses, the better to prepare him to make his 

 challenges and defence. 



It may perhaps be doubted whether these indulgences are founded 

 upon any true principles of criminal jurisprudence. If justice requires 

 them, they should be generally applied to all crimes ; and at all events 

 there seems to be no sufficient reason for giving a different measure 

 of advantage to persons accused of high treason from that afforded to 

 persons accused of many other offences. So obvious indeed was the 

 inconsistency of giving greater privileges and advantages to a person 

 charged with an attempt to kill the king than were permitted in the 

 case of a similar attempt upon the life of a private person, that upon 

 occasion of an attack upon George III., in the year 1SOU, an act of 

 parliament was passed to remove it. The statute 39 & 40 Geo. III., c. 

 93, enacts that in all cases of high treason, in compassing or imagining 

 the death of the king, and misprision of such treason, where the overt 

 act alleged shall be the assassination or killing of the king, or any 

 direct attempt against his life, or against his person, whereby his lii'o 

 may be endangered, or his person surfer bodily harm, the offender may 

 be indicted, arraigned, tried, and attainted, in the same manner, aud 

 according to the same course and order of trial in every respect, and 

 upon the like evidence, as if such person stood charged with murder ; 

 and none of the provisions contained in the above-mentioned acts of 

 7 Will. III., c. 3, and 7 Anne, c. 21, shall extend to any indictment for 

 this species of treason. A clause in a subsequent statute (U Geo. IV., 

 c. 50, s. 21) provides that the list of the jury shall in all indictments 

 for treason, or misprision of treason, in other courts than the King's 

 Bench, be delivered at the same time with the copy of the indictment, 

 and ten days before the arraignment ; and in the court of King's Bench 

 it may be delivered aftei- the arraignment, but ten days before the 

 trial. This statute does not extend to the case of attempts upon the 

 life of the king mentioned in the stat. 39 & 40 Geo. III., c. 93. By 

 the stat. 6 & 6 Viet., c. 51, the provisions of the stat. 39 & 40 Geo. III., 

 c. 93, are extended to " all cases of high treason in compassing or 

 imagining the death or destruction of the queen, or in compassing or 

 imagining any bodily harm tending to the death or destruction, maim- 

 ing, or wounding of the queen, and of misprision of such treason, 

 when the overt act alleged shall be any attempt to injure in any 

 manner whatsoever the person of the queen ; " and such cases ara 

 expressly excepted from the operation of the above-mentioned statutes 

 of 7 Will. III., c. 3; 7 Anne, c. 21 ; and 6 Geo. IV., c. 50, s. 21. 



The judgment in high treason is that the offender shall be drawn on 

 a hurdle to the place of execution, and there be hanged by the neck 

 until he is dead ; that afterwards his head shall be severed from his 

 body ; and his body, being divided into four quarters, shall be at the 

 disposal of the crown. This punishment was substituted by the 

 statute 54 Geo. III., c. 148 for the ancient and barbarous sentence 

 which required that the person convicted should be hanged, but taken 

 down alive, and then that his bowels should be taken out and burnt 

 before his face. By the 2nd section of stat. 54 Geo. III., c. 14S, 

 authority is given to the crown by warrant under the sign manual, 

 countersigned by a secretary of state, to alter this sentence, an 1 to 

 direct that, instead of the ignominious part of it, the party shall be 

 beheaded whilst alive. 



TREASURE-TROVE, in legal Latin called thesaurus ini-entu-t, is a 

 branch of the revenue of the crown by the law of England. Where 

 coin, plate, or precious metals are found hidden in the earth or any 

 private place, and the owner or person who deposited them is un- 

 known, the property becomes vested in the king by virtue of his 

 prerogative. But if the owner is known, or is ascertained after the 

 treasure is found, the property belongs to him, and not to the king. 

 The civil law gave treasure found in general to the finder; but if 

 found accidentally in another man's land, half wa given to the finder, 

 and half to the owner of the land. And so if it was found iu the land 

 of the emperor, it was to be equally divided between him and the 

 finder. (' Inst.,' lib. ii.,tit. i., 39; 'Cod.,' lib. x., tit. 15.) Grotius 

 says that the title of the prince to treasure-trove had in modern times 

 been so generally established in Europe as to have become " jus com- 

 mune et quasi gentium " (' De Jure Belli et Pacis,' lib. ii., c. viii., 7). 

 The law of England adopts the definition of treasure-trove from the 

 civilians as " vetus depositio pecunix cujus dominus ignoratur ' (Pau- 

 lus, lib. xxxi., 1) ; and to entitle the crown to the property, it must 

 appear to have been hidden or deposited by some one who at the time 

 had the intention of reclaiming it. Whenever, therefore, the intention 

 to abandon appears from the circumstances as for instance, where the 

 property has been found in the sea, or inja pond or river, or even 

 openly placed upon the surface of the earth it belongs to the finder. 

 In England, the concealment of treasure-trove from the king was 

 formerly a capital offence ; at the present day it is a misdemeanor 

 only. Ancient coins or other valuable articles found, are now declared 

 to be so far the property of the finders that they may have the value 



