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safe conduct. These are breaches of public faith, without the preservation of which, there can be no intercourse or commerce between one nation and another; and such offences may be a just ground of war, since it is not in the power of the foreign prince to enforce justice upon the individual delinquent, but he must require it of the whole community.
Foreign Merchants. During the continuance of any safe conduct, express or implied, the foreigner is under the protection of the law, and as, by magna carta, foreign merchants shall be entitled to safe conduct and security throughout the kingdom, any violation of either the person or the property of such merchant, may be punished by indictment in the king's name. If any subject offend on the sea or in port, under the king's control, against any stranger in amity, league or truce, or under safe conduct, by attacking his person or robbing him of his goods, the chancellor or the justices of king's bench or common pleas may cause full restitution to be made to the party injured.
II. Rights of Ambassadors. These have been treated of heretofore. The law of England recognizes their privileges, by immediately stopping all legal process sued out against ambassadors or members of their suite. All process of seizure of person or goods, whether of an ambassador or of his domestic servant shall be null and void, and parties prosecuting, soliciting and executing such process shall be punished.
III. Piracy. Defined. This crime of robbery and depredation upon the high seas is an offence against the universal law of society; a pirate, according to Sir Edward Coke, being hostis humani generis. Having renounced the benefits of society and government, he has reduced himself to a savage state of nature, by declaring war against all mankind, who naturally retaliate, by declaring war against him in self defence.
Jurisdiction of Courts. By ancient common law, piracy, if committed by a subject, was a species of treason; if by an alien, felony only. Since the time of Edward IIJ. it is felony also in a subject. Formerly it was only cognizable by the admiralty courts, which proceed by the rules of the civil law. Under Henry III. the common law courts were awarded jurisdiction.
Additional Piratical Offences. The offence of piracy by common law, consists in committing those acts upon the high seas, which if committed on land, would have amounted to felony there. By statute, some other offences are made piracy also, as where a subject commits an act of hostility at sea against another of his majesty's subjects, under color of a commission from a foreign power. Further, any commander or sailor, betraying his trust and running away with a ship or goods, or voluntarily yielding them to a pirate or conspiring to do so, or creating or attempting to create a mutiny, shall be adjudged a pirate, felon and robber, and shall suffer death. By statute of George I. he is expressly excluded from the benefit of clergy.
Accessories. Trading with known pirates, or furnishing them with stores and ammunition, or fitting a vessel for piratical purposes, or in any way consulting, confederating or corresponding with them, or the forcible boarding of a merchant vessel and destroying any of her goods, shall be deemed piracy, and such accessories shall be treated as principals, and are made felons, if captured, without benefit of clergy. If the commander of the vessel attacked behave cowardly, he shall be punished by imprisonment. Any natural born subject or denizen, who in time of war shall commit hostilities at sea against a fellow subject, or shall assist an enemy, shall be tried and convicted as a pirate.
CHAPTER VI.-HIGH TREASON.
Allegiance. Treason amounts to a total renunciatien of allegiance to the king, or at least to a criminal neglect of that duty, which is due from a subject to his sovereign. Allegiance is the tie or ligamen which binds every subject, to be true and faithful to his liege lord and king, in return for protection afforded him, and truth and faith to bear of life and limb and earthly honor, and not to know or hear any ill intended him, without defending him therefrom. Allegiance is of two species, the one natural and perpetual, which is inherent in natives only; the other local and temporal, which is incident to aliens also.
Offences Against the King. Offences more immediately affecting the king, his crown or his dignity, are in some degree a
breach of this duty of allegiance, whether natural or innate, or local, and acquired by residence. They are of four kinds :
Defined. Treason, proditio, imports a betrayal, treachery, or breach of faith. It therefore happens only between allies. It is a general appellation to denote, not only offences against the king and government, but also the guilt of an inferior, who abuses the confidence reposed in him by a superior, between whom and himself there subsists a natural, civil or even spiritual relation, and so far forgets the obligations of duty, subjection and allegiance, as to destroy the life of such superior or lord. Formerly for a wife to kill her husband, and a servant his master, were denominated petit treasons.
Against the Crown. When disloyalty attacks the crown itself, it is denominated high treason, which is the highest crime that it is possible to commit. If the crime be indeterminate, says Montesquieu, this alone suffices to make any government degenerate into arbitrary power. By the ancient common law, great latitude was left to the judges to decide what was treason, whereby the creatures of tyrannical princes could create constructive treasons, by raising offences to the grade of treason; which never were deemed such. To remedy this, the statute of Edward III was enacted, defining what offences were treasons, which is our guide in examining the several species of high treason, comprehended under seven distinct branches.?
1. Compassing the Death of the King, Queen or Eldest Son, A queen regnant is included in such crime of high treason, but not her husband. Only the eldest son and heir is specified. It must be a king de facto and not de jure, even if he be an usurper, because temporary allegiance, at least, is due to him. Hence treasons against Henry VI were punished under Edward IV, though all the line of Lancaster had been declared usurpers, by act of parliament.
1 Abolished. 2 Confirmed by act of George III, which clearly defines treason.
King de facto Only. A writer on crown law carries the point of possession so far, that he holds, that a king out of possession has no claim to our allegiance, no matter what title he may set up, and we should resist him. A statute of Henry VII excuses all subjects from any penalty or forfeiture, who assist and obey a king de facto. This principle would be confounding all ideas of right and wrong; and the true distinction seems to be, that the statute of Henry VII does by no means command any opposition to a king de jure, but excuses and justifies obedience to a king de facto.
Accidental Act. Compassing or imagining the death of a king are synonymous terms; the word compass signifying the design, and not as in common parlance, the carrying such design into effect. Therefore an accidental stroke with no traitorous intent, which mortally wounds the sovereign, is no treason; as was the case, when Sir Walter Tyrrel, while shooting, by the king's command, at a hart in the forest, killed William Rufus himself.
Must be an Overt Act. The act of the mind cannot possibly come under judicial cognizance, unless there be an overt act. Yet the tyrant Dionysius executed a subject, barely for dreaming that he had killed the king, which was held of sufficient proof, that he had thought of it in his waking hours. The English statute requires, that the accused be convicted, upon sufficient proof of the act.
Examples. Thus to provide weapons or ammunition for killing the king, is an overt act of treason in imagining his death. So also to conspire to imprison the king by force, and to assemble conspirators for that purpose, and taking any measures to render such treasonable purposes effectual, in causing the king's death, is an overt act of high treason.
Treasonable Words. How far mere words, spoken by an individual, and relating to a treasonable act or design then in agitation, shall amount to treason, was formerly a matter of doubt. By common law and by statute of Edward III, words spoken amount only to a high misdemeanor, and not to treason. They may be spoken in heat, without forethought or intent, or their meaning be misunderstood or distorted. The context often determines their meaning, as well as does the tone of voice in which they are uttered. Nothing therefore is more equivocal and ambiguous than words.
Written Words. If the words be written, it evinces more deliberate intent, and has been held to be an overt act of treason; for to write is to act, scribere est agere. 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, as in the case of Peachum, for treasonable passages in a sermon, never preached, and of Algernon Sydney, who was executed for the authorship of certain papers found in his closet. Of late years, even the publications of certain treasonable writings have been doubted to be sufficiently overt acts of treason.
2. Carnal Knowledge of Certain Royal Females. These are the queen consort, the eldest unmarried daughter of the king, and the wife of the king's eldest son and heir. As to the king's companion, the queen consort, it may be high treason in both parties, as the fatal experience of some of the wives of Henry VIII evinced. The plain intent 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. To violate a queen regnant or princess dowager is held to be no treason. By the feudal law, it was a felony, attended with a forfeiture of the fief, if a vassal violated the wife or daughter of his lord, but not so if he only violated his widow.
3. Levying Domestic War against the King. 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 grievances or evil counsellors. Private individuals must not interfere forcibly in matters of such high import, as such power exists only in parliament. The constitution does not justify any private resistance for private grievances, though in cases of national oppression, the nation has justifiably risen as one man to vindicate the original contract between the king and the people.
Examples. 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; the universality of the object making it a rebellion against the state, and an usurpation of the power of government. So if two subjects quarrel and levy war against each other, as they did in feudal times, it was only a great riot and contempt, and no treason. A bare conspiracy to levy war does not amount to treason, unless especially pointed at the person of the king or his government.