witness, before the lord chancellor and the chief juftices, or any two of them, fhall be deemed violaters 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 cafes of extraordinary outrage, for which the law hath provided no special penalty, the legislature hath intrufted to the three principal judges of the kingdom an unlimited power of proportioning the punishment to the crime.

III. LASTLY, the crime of piracy, or robbery and depredation upon the high feas, is an offence against the univerfal law of fociety; a pirate being, according to fir Edward Coke *, hoftis humani generis. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the favage state of nature, by declaring war against all mankind, all mankind must declare war against him: fo that every community hath a right, by the rule of felf-defence, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, for any invafion of his person or personal property.

By the antient common law, piracy, if committed by a subject, was held to be a species of treason, being contrary to his natural allegiance; and by an alien to be felony only: but now, fince the statute of treasons, 25 Edw. III. c. 2. it is held to be only felony in a subject'. Formerly it was only cognizable by the admiralty courts, which proceed by the rules of the civil law". But, it being inconsistent with the liberties of the nation, that any man's life should be taken away, unless by the judgment of his peers, or the common law of the land, the ftatute 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.

72

THE offence of piracy, by common law, confifts in committing those acts of robbery and depredation upon the high feas, which, if committed upon land, would have amounted to felony there. But, by statute, fome other. offences are made piracy alfo: as, by ftatute 11 & 12 W. III. c. 7. if any natural born fubject commits any act of hoftility upon the high feas, against others of his majesty's fubjects, under colour of a commiffion 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 feafaring perfon, betraying his truft, and running away with any fhip, boat, ordnance, ammunition, or goods; or yielding them up voluntarily to a pirate; or confpiring to do these acts; or any person confining the commander of a veffel, to hinder him from fighting in defence of his ship, or to cause a revolt on board; fhall, for each of thefe offences, be adjudged a pirate, felon, and robber, and shall suffer death, whether he be principal or acceffory. By the ftatute 8 Geo. I. c. 24. the trading with known pirates, or furnishing them with stores or ammunition, or fitting out any veffel for that purpose, or in any wife confulting, combining, confederating, or correfponding with them; or the forcibly boarding any merchant veffel, though without seifing or carrying her off, and destroying or throwing any of the goods overboard; fhall be deemed piracy and all acceffories to piracy, are declared to be principal pirates, and felons without benefit of clergy. By the fame ftatutes alfo, (to encourage the defence of merchant veffels against pirates) the commanders or feamen wounded, and the widows of such seamen as are flain, in any piratical engagement, shall be entitled to a bounty, to be divided them, not exceeding one fiftieth among one fiftieth part of the value of the cargo on board: and fuch wounded seamen shall be entitled to the penfion of Greenwich hofpital; which no other feamen 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 the carries guns or arms, or fhall discharge the mariners from fighting, fo that the fhip falls into the hands of pirates, such commander shall forfeit all his wages, and fuffer six months imprisonment.

THESE are the principal cafes, in which the ftatute law of England interpofes, to aid and enforce the law of nations, as a part of the common law; by inflicting an adequate punishment upon offences against that univerfal law, committed by private perfons. We fhall proceed in the next chapter to confider offences, which more immediately affect the fovereign 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 thofe of which we have already treated.

CHAPTER

THE SIXTH.

OF HIGH TREASON.

TH

a

HE third general divifion of crimes confifts of fuch, as more especially affect the fupreme 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 we had occafion 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 forts or fpecies: 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 alfo. Every offence therefore more immediately affecting the royal perfon, his crown, or dignity, is in fome degree a breach of this duty of allegiance, whether natural and innate, or local and acquired by refidence: and these may be distinguished into four kinds; 1. Treason. 2. Felonies injurious

to the king's prerogative. 3. Praemunire. 4. Other mifprifions and contempts. Of which crimes the first and principal is that of treason

a Book I. ch. 10.

TREASON,

N

TREASON, proditio, in it's very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, faith 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 arifes whenever a superior reposes a confidence in a subject or inferior, between whom and himself there fubfifts 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 fuch his fuperior or lord. This is looked upon as proceeding from the fame principle of treachery in private life, as would have urged him who harbours it to have conspired in public against his liege lord and fovereign and therefore for a wife to kill her lord or husband, a fervant his lord or master, and an ecclefiaftic his lord or ordinary; these, being breaches of the lower allegiance, of private and domestic faith, are denominated petit treasons. But when difloyalty fo rears it's creft, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta proditio; being equivalent to the crimen laefae majeftatis of the Romans, as Glanvil denominates it also in our English law.

As this is the highest civil crime, which (confidered as a member of the community) any, man can poffibly commit, it ought therefore to be the most precisely ascertained. For if the crime of high treason be indeterminate, this alone (fays the prefident Montesquieu) is fufficient to make any government degenerate into arbitrary power. And yet, by the antient common law, there was a great latitude left in the breast of the judges, to determine what was treason, or not fo: whereby the creatures of tyrannical princes had opportunity to create abundance of constructive treafons; that is, to raise, by forced and arbitrary