[70] under safe-conduct; and especially by attaching his person, or spoiling him or robbing him of his goods; the lord chancellor, with any of the justices of either the king's bench or common pleas, may cause full restitution and amends to be made to the party injured.

It is to be observed, that the suspending and repealing acts of 14 & 20 Hen. VI, and also the reviving act of 29 Hen. VI. were only temporary, so that it should seem that after the expiration of them all, the statute 2 Hen. V. continued in full force; but yet it is considered as extinct by the statute 14 Edw. IV. c. 4. which revives and confirms all statutes and ordinances, made before the accession of the house of York, against breakers of amities, truccs, leagues, and safe-conducts, with an express exception to the statute of 2 Hen. V. But (however that may be) I apprehend it was finally repealed by the general statutes of Edw. VI. and queen Mary, for abolishing new created treasons; though sir Matthew Hale seems to question it as to treasons committed on the sea (g). But certainly the statute of 31 Hen. VI. remains in full force to this day.

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 (h). 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 Ann. c. 12. that all process whereby the person of any embassadors (5), or of his domestic or domestic servant, may be arrested, or his goods distrained or seized, shall be utterly null and void (6); and that all persons prosecuting, soliciting, or

executing such process, being convicted by confession or the oath [*71] 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 (i) (7). Thus, in cases of extraordinary outrage, for which the law hath provided no special penalty, the legislature hath intrusted 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 seas, is an offence against the universal law of society; a pirate be

(g) 1 Hal. P. C. 267.

(h) See Book I. page 253.

(5) "Or other public minister of a foreign prince or state."

(6) A consul is not a public minister with in the act. Ante, 3 book, 289. The party, to entitle him to the protection of the act, must be a servant, or employed in the ambassador's house, 3 D. & R. 25; and a servant within the meaning of the act must be actually and bona fide such servant. Tidd Prac. 8 ed. 193. 4 Burr. 2016, 7. It does not matter whether the servant is a native of the county where the ambassador resides, or a foreigner; and real servants, though not residing with the ambassador, are within the act. 2 Stra. 797. 3 Wils. 35. 1 B. &. C. 563. 2 D. & R. 840.

(i) See the occasion of making this statute, Book I. page 255.

S. C. But if the servant do not reside in the ambassador's house, and have goods in his own house, more than are necessary for his conve nience as such servant, they are not within the protection of the act. 1 B. & C. 554. 2 D. & R. 833. S. C. The servant's name must be registered in the secretary of state's office, and transmitted to the sheriff's office, to sup port a proceeding against the sheriff for such arrest. 1 Wils. 20. and sect. 5. of the statute. Tidd Prac. 8 ed. 194. See further on this subject, ante, 1 book, 257. n. (13).

(7) See post, 269. and see 3 Chitty's Cr. L. 1090 to 1093.

ing, according to sir Edward Coke (k), hostis humani generis. As therefore he has renounced all the benefits of society and government, and has reduced himself afresh to the savage state of nature, by declaring war against all mankind, all mankind must declare war against him: so that every community hath a right, by the rule of self-defence, to inflict that punishment upon him, which every individual would in a state of nature have been otherwise entitled to do, for any invasion of his person or personal property.

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 (1). Formerly it was only cognizable by the admiralty courts, which proceed by the rules of the civil law (m). But it being inconsistent with the liberties of the nation, that any man's life should be taken away, unless by the judg ment of his peers, or the common law of the land, the statute 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 (8).

*The offence of piracy, by common law, consists in commit- [*72 ] ting those acts of robbery and depredation upon the high seas,

which, if committed upon land, would have amounted to felony there (n). But, by statute, some other offences are made piracy also: as by statute 11 and 12 W. III. c. 7. if any natural born subject commits any act of hostility upon the high seas, against others of his majesty's subjects, under colour of a commission 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 seafaring person, betraying his trust, and running away with any ship, boat, ordnance, ammunition, or goods; or yielding them up voluntarily to a pirate; or conspiring to do these acts; or any person assaulting the commander of a vessel to hinder him from fighting in defence of his ship, or confining him, or making or endeavouring to make a revolt on board; shall, for each of these offences, be adjudged a pirate, felon, and robber, and shall suffer death, whether he be principal, or merely accessary by setting forth such pirates, or abetting them before the fact, or receiving or concealing them or their goods after it. And the statute 4 Geo. I. c. 11. expressly excludes the principals from the benefit of clergy. By the statute 8 Geo. I. c. 24. the trading with known pirates, or furnishing them with stores or ammunition, or fitting out any vessel for that purpose, or in any wise consulting, combining, confederating, or corresponding with them or the forcibly boarding any merchant vessel, though without seizing or carrying her off, and destroying or throwing any of the goods over-board, shall be deemed piracy and such accessaries to piracy as are described by the statute of king William, are declared to be principal pirates, and all parties convicted by virtue of this act are made felons without benefit of clergy. By the same statutes also (to encourage the defence of merchant vessels against pirates), the commanders or seamen wounded, and the widows of such seamen as are slain,

(k) 3 Inst. 113. (1) Ibid.

VOL. II.

(m) 1 Hawk. P. C. 98.
(n) Ibid. 100.

(8) Post, 269.
56

[73] in any 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 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 crime branches itself into a much larger extent, than either of those of which we have already treated.

CHAPTER VI.

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 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 (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 bear 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, as enlarged by the statutes mentioned in the text, it appears that for mariners to seize the captain, put him on shore against his will, and afterwards employ the ship for their use, is piracy. 2 East P. C. 796. And embezzling a ship's anchor and cable is piracy, though the master of the vessel concur in it, and though the object is to defraud the underwriters, not the insurers. Russ. & R. C. C. 123. Where the master of a vessel insured the ship and cargo, landed the goods, and on the destruction of the former, protested both as lost, with intent to defraud the owners and insurers, this was holden to be a mere breach of trust and no felony, because there was no determination of the special authority with which the defendant was intrusted. 2 East P. C. 776.

The rules as to larceny will here apply. See post, Chap. XVII.

(10) See 2 Haw. P. C. p. 305, 461-5, 480, 1. See also 5 G. 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. and R. 679. 2 B. and C. 448, on the same subject.

The 9 Geo. IV. c. 31, repeals so much of the 22 and 23 Car. II. c. 11, "as relates to any mariner laying violent hands on his commander as therein mentioned." See also 9 Geo. IV. c. 84.

(1) As to this offence in general, see 1 East P. C. 37. to 140. Com. Dig. Justices, K. 2 Chitty's Crim. L. 60 to 67.

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 or 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, proditio, in its very name (which is borrowed from the [75] French) imports a betraying, treachery, or breach of 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 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 (2). But when disloyalty so rears its crest, as to attack even majesty itself, it is called by way of eminent distinction high treason, alta 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. (f): 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 (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 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 (j): 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 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

(h) Qui de nece virorum illustrium, qui consiliis et consistorio nostro intersunt, senatorum etiam (nam et ipsi pars corporis nostri sunt) vel cujus libet postremo, qui militat nobiscum, cogitaverit: (eadem enim severitate voluntatem sceleris, qua effectum, puniri jura voluerint) ipse quidem, utpote majesta

(3) The provisions of this act are confirm ed by the 36 Geo. III. c. 7. which is made perpetual by the 57 Geo. III. c. 6. This latter statute renders the law of high treason more clear and definite. It provides, that if any one within the realm, or without, shall compass or intend death, destruction, or any bodily harm tending thereto, maiming or wounding, imprisonment or restraint of his majesty, or to depose him from the style, honour, or kingly name of the imperial crown of these realms, or to levy war against him within this realm, in order by force or constraint to compel him to change his measures or counsels, or in order to put any constraint upon, or intimidate both or either house of parliament, or to move or stir any foreigner with force to invade this realm, or any of his majesty's dominions; and such compassing or intentions shall express by publishing any printing or writing, or by any other overt act, being convicted thereof on the oaths of two witnesses upon trial, or otherwise, by due course of law, such person shall be adjudged a traitor, and suffer death as

tis reus, gladio feriatur, bonis ejus omnibus fisco nostro addictis. (Cod. 9. 3. 5.)

(i) Gravin. Orig. 1, § 34.
(j) 1 Hal. P. C. 101.

(k) 3 Inst. 7. 1 Hal. P. C. 106.

in cases of high treason.

(4) Treason may be either against the U. S. or against the state: the first is, levying war against the U. S. or adhering to their enemies, giving them aid and comfort. (Const. art. 3. sect. 3, 1.) The last is, levying war against the people of this state within the state: or a combination by force to usurp the government of the state, or overturn it, evidenced by a forcible attempt made within the state: or adhering to the enemies of this state and giving them aid and comfort, when the state is engaged in war with a foreign enemy, in cases prescribed in the Constitution of the U. S. (2 R. S. 656.) An overt act must be done to constitute the offence, (2 R. S. 692.) and two witnesses must prove the same overt act; or one must prove one overt act, and another witness another overt act of the same treason. No evidence can be given of any overt acts except such as are laid expressly in the indictment: and no conviction can be had unless one or more such acts are so alleged. (2 R. S. 735, § 15, 16.)