dinary 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 III. Piracy upon the high seas, is an offense against the universal law of society; a pirate being, 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-defense, 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 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. 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 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."

The offense 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." But, by statute, some other offenses are made piracy also; as by statute 11 & 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 color of a commission from m1 Hawk., P. C., 98. Ibid., 100.

3 Inst., 113. 1 Ibid.

bonâ fide such servant. Tidd, Prac., 8th ed., 193; 4 Burr., 2016, 7. It does not matter whether the servant is a native of the country where the embassador resides, or a foreigner; and real servants, though not residing with the embassador, are within the act. 2 Stra., 797; 3 Wils., 35; 1 B. & C., 563; 2 D. & R., 840, S. C. But if the servant do not reside in the embassador's house, and have goods in his own house more than are necessary for his convenience as such servant, they are not within the

VOL. IV.-E

n

any foreign power, this, though it would only be an act of war in an alien, shall be construed piracy in a subject. And further, any commander, or other sea-faring 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 defense of his ship, or confining him, or making or endeavoring to make a revolt on board, shall, for each of these offenses, be adjudged a pirate, felon, and robber, and shall suffer death, whether he be principal, or merely accessory 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 overboard, shall be deemed piracy; and such accessories to piracy as are described by the statute of King William are declared to be principal pirates, and all pirates convicted by virtue of this act are made felons without benefit of clergy. By the same statutes, also (to encourage the defense of merchant vessels against pirates), the commanders or seamen wounded, and the widows of such seamen as are slain in any [73] 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 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 discharge 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. 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,

(7) 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 afterward 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.-[CHITTY.]

or shall assist an enemy on that element, is liable to be tried and convicted as a pirate."

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 offenses against that universal law committed by private persons. We shall proceed in the next chapter to consider offenses 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.

See 1 Kent's Comm., 183 to 200, where will be found references to the laws of the Congress of the United States, and to the decisions of the Supreme Court of the United States, on the subject of Piracy; and an interesting inquiry, whether the African Slave Trade be an offense against the law of nations. The learned chancellor reviews various decisions of the courts in England and in this country, and clearly shows that it is not an offense against that law; but he holds that ships engaged in that trade, belonging to countries which have prohibited it, are liable to capture and condemnation. The punishment denounced by the act of Congress of March 3, 1819, on those engaged in that trade, is death; while, by the English statutes, the punishment is transportation for life, or for a period not less than fifteen years, or imprisonment not exceeding three years.

74

THIRDLY.
Lajuries

CHAPTER VI.

OF HIGH TREASON.

THE third general division of crimes consists of such as more against the especially affect the supreme executive power, or the king and power of the his government, which amount either to a total renunciation of king and his that allegiance, or, at the least, to a criminal neglect of that duty government. which is due from every subject to his sovereign. In a former

state, or the

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 honor, 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 offense, 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.

Treason, proditio, in its very name (which is borrowed from the French) imports a betraying, treachery, or 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 offenses 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 harbors 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 LL. Elfredi., c. 4; Ethelst., c. 4; Canuti., c. 54, 61.

a Book i., ch. 10.

b C. 1, § 7.

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, alta proditio; being equivalent to the crimen læse majestatis of the Romans, as Glanvild 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 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, offenses into the crime and punishment of treason which never were suspected to be such. Thus [76] 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 £90 ;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. 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. 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 offenses only for the future shall 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. 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.

JL. 1, c. 2.

e Sp. L., b. 12, c. 7.

1 Hal., P. C., 80.

Britt., c. 22; 1 Hawk., P. C., 34. 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: (eadem
enim severitate voluntatem sceleris, qua
effectum, puniri jura voluerunt) ipse qui-
dem, utpote majestatis reus, gladio feria-
tur, bonis ejus omnibus fisco nostro ad-
dictis. (Cod., 9, 8, 5.)

Gravin., Orig., 1, § 34,

(2) The provisions of this act are con- c. 6. This latter statute renders the law firmed by the 36 Geo. III., c. 7, which of high treason more clear and definite. is made perpetual by the 57 Geo. III., It provides that if any one within the *The offense of petit treason is abolished in New York.-(2 R. S., 547, § 8.)