assist an enemy on that element, is liable to be tried and convicted as a pirate (5). 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, 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 government; which species of crimes branches itself into a much larger extent, than either of those of which we have already treated. (5) See 2 Hawk. P. C. p. 305, 461-5, 480, § 1. See also 5 Geo. IV. c. 17, by which dealing in slaves on the high seas, &c. is made piracy, and punishable with death. See also 5 Geo. IV. c. 113, § 9, and Forbes v. Cochrane, 3 D. & R. 679; 2 B. & C. 448, on the same subject. See also 9 G. IV. c. 84, "An act to continue an act (5 Geo. IV. c. 17.) for amending and consolidating the laws relating to the abolition of the slave trade." The 9 Geo. IV. c. 31, repeals so much of the 22 & 23 Car. II. c. 11, "as relates to any mariner laying violent hands on his commander as therein mentioned." Piratically stealing a ship's anchor and cable, is a capital offence by the marine laws, triable under the 28 Hen. VIII. c. 15, as the 39 Geo. III. c. 37, does not extend to that case, and the stealing is equally an offence, though the master of the vessel concur in it, and though the object is to defraud the underwriters, not the owners; Rex v. Curling, R. & R. C. C. 123. 74 CHAPTER VI. OF HIGH TREASON. as Offences against the government, the king and his consist either in of allegiance, or duty; may be committed either by sub and are 1. Trea or son. 2. Felo nies injurious to 3. Præmunire. and contempts. THE third general division of crimes consists of such more especially affect the supreme executive power, or king and his government; which amount either to a total re- a renunciation nunciation of that allegiance, or at the least to a criminal a neglect of neglect of that duty, which is due from every subject to his sovereign. In a former part of these commentaries (a) we jects or aliens; had occasion to mention the nature of allegiance, as the tie ligamen which binds every subject to be true and faithful to the prerogative. his sovereign liege lord the king, in return for that protection 4. Misprisions 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 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. Præmunire. 4. Other misprisions and contempts. Of which crimes the first and principal is that of treason. [*75 ] breach of faith. *Treason, proditio, in its very name, which is borrowed from the French, imports a betraying, treachery, or breach of Treason is faith. It therefore 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 (b) C. 1, § 7. VOL. IV. (a) Book I. ch. 10. H Constructive treasons were 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, alla proditio; being equivalent to the crimen læsæ 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 (2). For was first defined if the crime of high treason be indeterminate, this alone, says the president Montesquieu, is sufficient to make any govern25 Edw, III. c. 2. ment 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 [*76] raise, by forced and arbitrary constructions, offences into *the crime and punishment of treason, which never 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. (f): a crime, it must be owned, well deserving of punishment: but which seems to be of a complexion very tolerated by the common law. Treason, pro perly speaking, and divided into seven distinct branches, by (c) LL. Elfredi. c. 4; Ethelst. (e) Sp. L. b. 12, c. 7. (1) All now abolished by 9 Geo. IV. the peculiar privileges and indulgences allowed by law to prisoners under trial for this charge. See post 351. 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 (3). queen or imagining king, the queen consort, or their eldest son and cludes a queen 1. “When a man doth compass or imagine the death of 1. Compassing our lord the king, of our lady his queen, or of their eldest the death of the son and heir." Under this description it is held that a regnant, such as queen Elizabeth and queen Anne, is within heir. This inthe words of the Act, being invested with royal power and regnant, but not entitled to the allegiance of her subjects (1): but the husband may be against of such a queen is not comprised within these words, therefore no treason can be committed against him (k). king here intended is the king in possession, without any re (g) Britt. c. 22; 1 Hawk. P. C. 34. (h) Qui de nece virorum illustrium, qui consiliis et consistorio nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujuslibet postremo, qui militat nobiscum, cogitaverit : (eádem enim severitate voluntatem sceleris, quâ effectum, puniri jura voluerint) ipse quidem, utpote majestatis reus, gladio feriatur, bonis ejus omnibus fisco nostro addictis. (Cod. 9, 8, 5. )—"Whoever plots the death of any of those illustrious men who share in our coun her consort. It the king in pos and session, whether de jure, or de The facto; but can sels and constitution, or of any of our (i) Gravin. Orig. 1, § 34. (k) 3 Inst. 7; 1 Hal. P. C. 106. [*77 ] (3) The 25 Edw. III. c. 2, was con- was made perpetual by 57 Geo. III. tinued by 36 Geo. III. c. 7, which C. 6, see post, 92. 77 not be against or abdicated. the king when spect to his title: for it is held, that a king de facto and not he has resigned 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 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 tomorrow. The true distinction seems to be, that the statute [*78] of Henry *the seventh does by no means command any opposition to a king de jure; but excuses the obedience paid to a king de facto. When therefore a usurper is in possession, the subject is excused and justified in obeying and giving him assistance: otherwise, under a 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 (1) 3 Inst. 7; 1 Hal. P. C. 104. (m) 1 Hawk. P. C. 36. |