such offences may, according to the writers upon the law of nations, be a just ground of a national war; since it is not in the power of the foreign prince to cause justice to be done to his subjects by the very individual delinquent, but he must require it of the whole community. And as during the continuance of any safe-conduct, either express or implied, the foreigner is under the protection of the king and the law, and, more especially, as it is one of the articles of magna charta that foreign merchants should be entitled to safe-conduct and security throughout the kingdom, there is no question that any violation of either the person or property of such foreigner may be punished by indictment in the name of the king, whose honour is more particularly engaged in supporting his own safe-conduct.

Rights of Embassadors.

II. As to the rights of embassadors, which are also established by the law of nations, and are therefore matter of universal concern, they have formerly been treated of at large. It may here be sufficient to remark that the common law of England recognizes them in their full extent by immediately stopping all legal process, sued out through the ignorance or rashness of individuals, which may intrench upon the immunities of a foreign minister or any of his train. And, the more effectually to enforce the law of nations in this respect, when violated through wantonness or insolence, it is declared, by the statute 7 Anne, c. 12, that all process whereby the person of any embassador, or of his domestic or domestic servant, may be arrested, or his goods distrained or seized, shall be utterly null and void; and that all persons prosecuting, soliciting, or executing such process, being convicted, by confession or the oath of one witness, before the lord chancellor and the chief justices, or any two of them, shall be deemed violators of the laws of nations and disturbers of the public repose, and shall suffer such penalties and corporal punishment as the said judges, or any two of them, shall think fit. Thus, in case of extraordinary outrage, for which the law hath provided no special penalty, the legislature hath intrusted to these three principal judges of the kingdom an unlimited power of proportioning the punishment to the crime.

Piracy.

III. Lastly, the crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society; a pirate being, according to Sir Edward Coke, hostis humani generis.

By the ancient common law, piracy, if committed by a subject, was held to be a species of high treason, being contrary to

his natural allegiance, and by an alien to be felony only; but now since the statute of treason, 25 Edw. III., c. 2, it is held to be only felony in a subject.

The offence of piracy, by common law, consists in committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there.

Chapter VI.

OF HIGH TREASON.

74-94.

Allegiance and the Breach of the Duty.

In a former part of these commentaries 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. 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 and 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. Praemunire; 4. Other misprisions and contempts. Of which crimes the first and principal is that of treason. Treason.

Treason, proditio, in its very name imports a betraying, treachery, by breach of faith. It therefore happens only between allies, saith the Mirror: 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. 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. But when disloyalty so rears its crest as to attack even majesty itself, it is called by way of eminent distinction, high treason.

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. 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 were suspected to be such. 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. 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.

Branches of High Treason.

I. "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."

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."

3. The third species of treason is, "if a man do levy war against our lord the king, in his realm." And this may be done by taking arms, not only to dethrone the king but under pretence to reform religion or the laws, or to remove evil counsellors, or other grievances whether real or pretended. To resist the king's forces by defending a castle against them, is a levying of war; and so is an insurrection with an avowed design to pull down all enclosures, all brothels, and the like: the universality of the design making it a rebellion against the state, an usurpation of the powers of government, and an insolent invasion of the king's authority. But a tumult, with a view to pull down a particular house, or lay open a particular enclosure, amounts at most to a riot, this being no general defiance of public government. So, if two subjects quarrel, and levy war against each other (in that spirit of private war which prevailed all over Europe in the early feodal times), it is only a great riot and contempt, and no treason. A bare conspiracy to levy war does not amount to this species of treason; but (if particularly pointed at the person of the king, or his government) it falls within the first, of compassing or imagining the king's death.

4. "If a man be adherent to the king's enemies in his realm; giving to them aid and comfort in the realm or elsewhere," he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence, 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 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, 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 apprehension of injury to his life or person, this fear of compulsion will excuse his even joining with either rebels or enemies in the kingdom, provided he leaves them whenever he hath a safe opportunity.

5. "If a man counterfeit the king's great or privy seal," this is also high treason.

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 merchandise and make payment withal.'

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."

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 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 disposal.

The king may and often doth, discharge all the punishment, except beheading, especially where any of the noble blood are attainted. For beheading being a 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. But of this we shall say more hereafter.

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 until dead. But in treason 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.

Chapter VII.

OF FELONIES INJURIOUS TO THE KING'S PREROGATIVE.

94-104.

Felony, in the general acceptation of our English law, comprises every species of crime which occasioned at common law the forfeiture of lands and 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 anciently punished with death in all lay or unlearned offenders, though now, by the statutelaw, that punishment is for the first offence universally remitted. All treasons, 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 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, 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,