should be taken away unless by the judgment of his peers, or of the common law of the land, the statute 28 Hen. VIII, c. 15, established a new jurisdiction for this purpose, which proceeds according to the course of the common law, and of which we shall say more hereafter. *The offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas, which, if committed [*72] upon land, would have amounted to felony there. (n) But, by statute some other offences are made piracy also; as, by statute 11 and 12 Wm. III, c. 7, ifany natural born subject commits any act of hostility upon the high seas against others of his majesty's subjects, under colour of a commission from any foreign power; this, though it would only be an act of war in an alien, shall be construed piracy in a subject. And, farther, any commander, or other seafaring person, betraying his trust, and running away with any ship, boat, ordnance, ammunition or goods; or yielding them up voluntarily to a pirate, or conspiring to do these acts; or any person assaulting the commander of a vessel to hinder him from fighting in defence of his ship, or confining him, or making, or endeavoring to make a revolt 'on board; shall, for each of these offences, be adjudged a pirate, felon and robber, and shall suffer death, whether he be principal, or merely accessory, by setting forth such pirates, or abetting them before the fact, or receiving or concealing them or their goods after it. And the statute 4 Geo. I, c. 11, expressly excludes the principals from the benefit of clergy. By the statute 8 Geo. I, c. 24, the trading with known pirates, or furnishing them with stores or ammunition, or fitting out any vessel for that purpose, or in any wise consulting, combining, confederating, or corresponding with them: or the forcibly boarding any merchant vessel, though without seizing or carrying her off, and destroying or throwing any of the goods overboard, shall be deemed piracy: and such accessories to piracy as are described by the statute of King William are declared to be principal pirates, and all parties convicted by virtue of this act are made felons without benefit of clergy. By the same statutes also (to encourage the defence of merchant vessels against pirates), the commanders or seamen wounded, and the widows of such seamen as are slain, in any piratical engagement, shall be entitled to a bounty, to *be divided among them, not exceeding one-fiftieth [*73] part of the value of the cargo on board: and such wounded seamen shall be entitled to the pension of Greenwich hospital: which no other seamen are, except only such as have served in a ship of war. And if the commander shall behave cowardly, by not defending the ship, if she carries guns or arms, or shall discharge the mariners from fighting, so that the ship falls into the hands of pirates, such commander shall forfeit all his wages, and suffer six months' imprisonment. Lastly, by statute 18 Geo. II, c. 30, any natural born subject or denizen, who in time of war shall commit hostilities at sea against any of his fellow-subjects, or shall assist an enemy on that element, is liable to be tried and convicted as a pirate. (4) These are the principal cases, in which the statute law of England interposes to aid and enforce the law of nations, as a part of the common law: by inflicting an adequate punishment upon offences against that universal law, com (n) 1 Hawk. P. C. 100. The laws of congress (4) Piracy is punished in the United States in the federal courts. prescribe what acts shall be punishable as piracy; and the act of April 30, 1790, 1 Stat. at large, 113; that of May 15, 1820; 3 id., 300; that of August 8, 1846, 9 id., 73; and that of March 3, 1847, id., 175, are referred to for particulars. The act of 1820 makes the slave trade piracy. The act of March 3, 1819, which was only temporary, provided for the punishment of offenses which were piracy by the laws of nations: as to which see U. S. v. Smith, 5 Wheat., 153; and U. S. v. Furlong, id., 184; The Marianna Flora, 11 id.. 1. And as to piracy under the act of 1790, see U. S. v. Palmer, 3 Wheat., 610; U. S. v. Klintock, 5 id., 144; U. S. v. Furlong, id., 184. The slave trade is made piracy by English statutes. See statute 6 and 7 Vic., c. 98. mitted by private persons. We shall proceed in the next chapter to consider offences which more immediately affect the sovereign executive power of our own particular state, or the king and government; which species of crimes branches itself into a much larger extent than either of those which we have already treated. CHAPTER VI. 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 Commentaries (a) we had occasion to mention the nature of allegiance, as the tie or ligamen 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 honour; and not to know or hear of any ill intended him, without defending him therefrom. And this allegiance, we may remember, was distinguished into two 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 offence, therefore, more immediately affecting the royal person, his crown, or dignity, is in some degree a breach of this duty of allegiance, whether natural or 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. Præmunire. 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 [*75] French) imports a betraying, treachery, or breach of faith. It there fore happens only between allies, saith the Mirror: (b) for treason is indeed a general appellation made use of by the law, to denote not only offences 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 the inferior so abuses that confidence, so forgets the obligations of duty, subjection and allegiance, as to destroy the life of any such superior or lord. (c) This is looked upon as proceeding from the same principle of treachery, in private life, as would have urged him who harbours 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. (1) 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 læsa majestatis of the Romans, as Glanvil (d) 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. (e) And yet, by the ancient common law, (a) Book I, ch. 10. (b) C. 1, § 7. (c.) LL. Aelfredi. c. 4. Aethelst. c. 4. Canuti, c. 54, 61. (d) L. 1, c. 2. (e) Sp. L. b. 12, c. 7. (1) This offense is not recognized in the United States, and is now abolished in England. 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 force and arbitrary constructions, offences into the crime and punishment of treason which never were suspected to be such. Thus the accroaching [*76] 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 90l.: (f) a crime, it must be owned, well deserving of punishment; but which seems to be of a complexion very different from that of treason. Killing the king's father, or brother, or even his messenger, has also fallen under the same denomination. (g) 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. (h) 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 offences only for the future should be held to be treason: in like manner as the lex Julia majestatis among the Romans, promulged by Augustus Cæsar, comprehended all the ancient laws, that had before been enacted to punish transgressors against the state. (i) 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 doth 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: (j) but the husband of such a queen is not comprised within these words, *and therefore no treason can be committed against him. (k) The king here intended is the king in possession, [*77] 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 hath 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 hath 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. (1) And a very sensible writer on the crown-law carries the point of possession so far, that he holds, (m) 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 (f) 1 Hal. P. C. 80. (9) Britt. c. 22. 1 Hawk. P. C. 34. (h) Qui de nece virorum illustrium, qui consiliis et consistoria nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujus libet 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.) (i) Gravin. Orig. 1, § 34. () 1 Hal, P. C. 101. 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 by his allegiance to fight for his natural prince to-day, and by the same duty of allegiance to fight against him to-morrow. The true distinction seems to be, that the statute of Henry *the Seventh does by no means command any opposition to a king de [*78] jure; but excuses the obedience paid to a king de facto. When, therefore, an usurper is in possession, the subject is excused and justified in obeying and giving him assistance: otherwise, under an 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 favour, 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. (2) 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, (o) 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, &c. These are synonymous terms; the word compass signifying the purpose or design of the mind or will (p) and not, as in common speech, the carrying such design to effect. (2) And therefore an accidental stroke, which may mortally wound the sovereign, per infortuniam, 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, [*79] and killed the king upon the spot. (r) But, as this compassing or imagining is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open, or overt act. (2) And yet the tyrant Dionysius is recorded (s) to have executed a subject, barely for dreaming that he had killed him; which was held of 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. (t) 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; (u) 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 (n) 1 Hal. P. C. 104. (0) Book I, page 212. (p) 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.) (g) 1 Hal. P. C. 107. (r) 3 Inst. 6. (8) Plutarch in vit. (t) 3 Inst. 12. (u) 1 Hal. P. C. 109. (2) See Foster C. L., 194. The most thorough examination and discussion of the law of high treason is to be found in the report of Hardy's Case, 24 State Trials, 199, in which Mr. Erskine made one of his finest displays of matchless ability as an advocate. See also Burr's Trial. 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. (w) 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, [ *80] 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 (a) But now it seems clearly to be agreed, that by the common law and the statute of Edward III, words spoken amount to only 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." (y) 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 Peachum, a clergyman, for treasonable passages in a sermon never preached; (z) and of Algernon Sydney, 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 [*81] of that treason, which was specially laid in the indictment. (a) 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. Peachum was therefore pardoned: and though Sydney 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; (b) 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 (w) 1 Hawk. P. C. 88. 1 Hal. P. C. 119. (0)1 Hal. P. C. 118. 1 Hawk. P. C. 38. VOL. II-41 (s) Ibid. (a) Foster, 196, 321 |