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[*93 in zay piratical engagement, shall be entitled to a bounty, to be
divided among them, not exceeding one-fiftieth part of the value of the cargo on board : and such wounded seamen shall be entitled to the pension of the 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 dischage 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 (9). 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 (10).
These are the principal cases, in which the statute law of England in terposes 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, committed 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 govern. ment; which species of crime branches itself into a much larger extent than either of those of which we have already treated.
OF HIGH TREASON (1).
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 allegiancc, 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 be of life and limb, and earthly honour; and not to know or hear of any ill
(a) Book I. ch. 10.
(9) In the construction of the common law, The rules as to larceny will here apply. See as enlarged by the statutes mentioned in the post, Chap. XVII. text, it appears that for mariners to seize the (10) See ? Haw. P. C. p. 305, 461-5, 480, captain, put him on shore against his will, and gi. See also 5 G. IV. c. 17, by which deal. afterwards employ the ship for their use, is ing in slaves on the high seas, &c. is made piracy: 2 East P. C. 796. And embezzling piracy, and punishable with death. See also a ship's anchor and cable is piracy, though the 5 Geo. IV. c. 113, 99, and Forbes v. Cochrane, master of the vessel concur in it, and though 3 D. and R. 679. 2 B. and C. 448, on the the object is to defraud the underwriters, not same subject. the insurers. Russ. & R. C.C. 123. Where The 9 Geo. IV. c. 31, repeals so much on the master of a vessel insured the ship and the 22 and 23 Car. Il c. 11, “ as relates to any cargo, landed the goods, and on the destruc- mariner laying violent hands on his command. tion of the former, protested both as lost, with er as therein mentioned." See also 9 Geo. intent to defraud the owners and insurers, this IV. c. 84. was noiden to be a mere breach of trust and (1) As to this offence in general, see ) Eas no felony, because there was no determina. P. C. 37. to 140. Com. Dig. Justices, K : tion of the special authority with which the Chitty's Crim. L. 60 to 67. defendant was intrusted. 2 East P. C. 776.
intended him, without defending him therefrom. And this allegiance, WA may reinember, 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 niore iminediately affecting the royal person, his crown, or digni ty, 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 distin guished into four kinds; 1. Treason. 2. Felonies injurious to the king's prerogative. 3. Praenunire. 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 ( 675 ) French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, saith the Mirror (6): for treason is indeed a general appellation, made use of by the law, to denote not only of : fences 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 contidence, 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 (2). But when disloyalty so rears its crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, attu proditio; being equivalent to the crimen laesae 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, 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 forced and arbitrary constructions, offences into the crime and punishment of treason which never [ *76 ) were suspected to be such. Thus the accroaching, 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 901. (S): 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 (5). The latter of which is almost as tyrannical a doctrine as that (0) c. 1, $7 (c) LL. Aelfredi. c. 4. Aethelst. e. 4.
(e) Sp. L. b. 12, c. 7.
(d) 1 1, c. 2.
(2) Petit treason is abolished by 2 R. S. committed by a stranger. See ante p. 16 657, and these offences are the same as if note 15.
of tre imperial constitution of Arcadius and Honorius, which determines that any attempts or designs against the ministers of ihe prince shall bo 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 Caesar, comprehended all the ancient laws, that had before been enacted to punish transgressors against the state (i) (3). 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 (4).
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 (): but the [*77] 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, 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 adıninistration 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
(h) Qui de nece virorum illustrium, qui consiliis tis reus, gladio serialur, bonis ejus omnibus fisco et consistorio nostro intersunt, senatorum etiam nostro addictis. (Cod. 9. 3. 5.) (nam et ipsi pars corporis nostri sunt) vel cujus libet (i) Cravin. Orig. 1, 934. postremo, qui militat nobiscum, cogitaverit : (cadem enim severitate voluntatem sceleris, qua effectum, (k) 3 Inst. 7. I Hal. P. C 106. puniri jura voluerint) ipse quidem, utpole majesta.
() I Hal. P. C. 101.
(3) The provisions of this act are confirm- in cases of high treason. ed by the 36 Geo. III. c. 7. which is made per- (4) Treason may be either against the U. 8. petual by the 57 Geo. III. c. 6. This laiter or against the state : the first is, levying war statute renders the law of high treason more against the U. S. or adhering to their enemies, clear and definite. It provides, that if any one giving them aid and comfort. (Const. art. 3. within the realm, or without, shall compass or sect. 3, 0 1.) The last is, levying war against intend death, destruction, or any bodily harm the people of this state within the state or a tending thereto, maiming or wounding, im- combination by force to usurp the government prisonment or restraint of his majesty, or to of the state, or overturn it, evidenced by a fordepose him from the style, honour, or kingly cible attempt made within the state: or adhername of the imperial crown of these realms, ing to the enemies of this stale and giving or to levy war against him within this realm, them aid and comfort, when the state is enin order by force or constraint to compel him gaged in war with a foreign enemy, in cases to change his measures or counsels, or in or. prescribed in the Constitution of the U. S. der to put any constraint upon, or intimidate (2 R. S. 656.) An overt act must be done to both or either house of parliament, or to move constitute the offence, (? R. S. 692 ) and or stir any foreigner with force to invade this two witnesses must prove the same orert realm, or any of his majesty's dominions; and act; or one must prove one overt act, and such compassing or intentions shall express another wiiness another overt act of the by publishing any printing or writing, or by same treason. No evidence can be given of any other overt aci, being convicted thereof any overt acts except such as are lai I erpress on the oaths of two witnesses upon trial, or ly in the indictment: and no convictiuni can otherwise, ly due course of law, such person be had unless one or more such acts .se sball be adjudged a traitor, and suffer deain as alleged. (2 R. S. 735, 9 15, 16.
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 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 [*78 | to a king de jure ; but excuses the obedience paid to a king de facto. When therefore an usurper is in possession, the subject is ercused and gustified in obeying and giving him assistance: otherwise, under an usurpasion, 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 primâ 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 (n). 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, sfc. 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 (9). And therefore an accidental stroke, which may mortally wound the sovereign, per infortunium, 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, and killed the king on 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 (5). 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 ihought 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."
the death of any man, demonstrated by some eri dent fact, was equally penal as homicide itself (9 Inst. 5.)
(9) 1 Hal. P. C. 107. () By the ancient law compassing or intending
(1) 3 Inst. 7. 1 Hal. P. c. 104.
(T) 3 Inst. 6.
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 (c). To conspire to imprison the king by force, and move towards it by assembling company, is an overt act of compass. ing 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 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) (6).
(3) Plutarch, in vit. (1) 3 Inst. 12.
(u) I Hal. P. C 109.
(5) In the case of the regicides, the indict. and confusion; consequently every stroke lement charged, that they did traitorously com- velled at his person is, in the ordinary course pass and imagine the death of the king. And of things, levelled at the public tranquillity. the taking off his head was laid, among others, The law, therefore, tendereih the safety of the as an overt act of compassing. And the per: king with an anxious concern; and, if I may son who was supposed to have given the stroke use the expression, with a concern bordering was convicted on the same indictment. For upon jealousy. It considereth the wicked the compassing is considered as the treason, imaginations of the henrt, in the sanje degree the overi acts as the means made use of to ef- of guilt as if carried into actual execution, fectuate the intentions of the heart. And in from the moment measures appear to have every indictment for this species of treason, been taken to render them effectual. And, and indeed for levying war, or adhering to the therefore, if conspirators meet and consult king's enemies, an overt act must be alleged how to kill the king, though they do not then and proved. For the overt act is the charge, fall upon any scheme for that purpose, ibis is to which the prisoner must apply his defence. an overt act of compassing his death: and so But it is not necessary, that the whole of the are all means made use of, be it advice, pero evidence intended to be given should be set suasjon, or command, to incite or encourage forth; the common law never required this others to commit the fact, or join in the at. exactness, nor doth the statute of king Wil. tempt; and every person who but assepieth to liam require it. It is sufficient, that the charge any overtures for that purpose will be involved be reduced to a reasonable certainty, so that in the same guilt. the defendant may be apprized of the nature The care the law hath taken for the per of it, and prepared to give an answer to it. sonal safety of the king is not confined to ac. Fost. 194.
tions or attempts of the more flagitious kind, (6) This subject is so ably explained by to assassination or poison, or other attempts M. Justice Foster in his first discourse on directly and immediately aiming at his life, high treason, that it may be useful to annex It is extended to every thing wilfully and de. here two of his sections. “In the case of liberately done or attempted, whereby his life the king the statute of treasons hath, with may be endangered. And, therefore, the en. great propriety, retained the rule voluntas pro tering into measures for deposing or imprifacto. The principle upon which this is found. soning him, or to get his person into the power ed is too obvious to need much enlargeinent of the conspirators, these offences are overt The king is considered as the head of the acts of treason within this branch of the sia body politic, and the members of that body are tute. For experience has shewn that betweon considered as united and kept together by a the prisons and the graves of princes the di politica, union with him and with each other. tance is very small. Fost. 194.” His life cannot, in the ordinary course of This was the species of treason with which things, be taken away by treasonable practi. the state prisoners were charged, who were ces without invo.ving a whole nation in blood tried in 1794. And the question is siated long