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executing such process, being convicted, by confession or the oath of one witness, before the lord chancellor and the chief justices, or any two of *71] 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) Thus, in cases of extraordinary outrage, for which the law hath provided no special penalty, the legis lature 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 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-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 antient 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 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 offence of piracy, by common law, consists in committing those
*72] 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 & 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, further, 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
(i) See the occasion of making this statute, book i. page
(*) 3 Inst. 113.
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. 8th ed, 193. 4 Burr. 2016, 2017. It does not matter whether the servant is a native of the country 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, 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 convenience 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 support a proceeding against the sheriff for such arrest. 1 Wils. 20, and sect. 5 of the statute. Tidd, Prac. 8th ed. 194.-CHITTY.
On the subject of piracy under the Constitution of the United States and acts of Congress, see 1 Kent's Com. 183. Wharton's Amer. Crim. Law, 911. Acts of Congress, April 30, 1790, c. 9, s. 8, 1 Story's Laws, 84. Act March 3, 1819, c. 76, s. 5, 3 Story, 1739. Act 15 May, 1820, c. 113, s. 3, 3 Story, 1798. United States vs. Smith, 5 Wheaton, 153. United States vs. Palmer, 3 Wheaton, 610. United States vs. Kepler, 1 Baldw. 15. United States ws. Klintock, 5 Wheat. 144. United States vs. Pirates, ibid. 184. United States vs. Holmes, .bid. 412.-SHARSWOOD.
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 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, 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 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, 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 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.
5 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.-CHITTY.
See 2 Hawk. P. C. pp. 305, 461-465, 480, s. 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, s. 9, and Forbes vs. Cochrane, 3 D. & R. 679, 2 B. & C. 448, on the same subject.
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." See also 9 Geo. JV. c. 84.-CHITTY.
OF HIGH TREASON.
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 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. Præmunire; 4. Other misprisions and contempts: of which crimes the first and principal is that of treason:
*75] *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:(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. 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 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. 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 antient 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 *76] 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 different from that of treason. Killing the king's father, or brother, or
Book i. ch. 10.
C. 1, 27.
(•) LL. Ælfredi, c. 4. Ethelst. c. 4. Canuti, c. 54, 61.
(d) L. 1, c. 2.
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 pre vent 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 antient 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.
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 husband of such a queen is not comprised within these words, *and therefore no treason can be committed against [*77 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, a 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,
(Britt. c. 22. 1 Hawk. P. C. 34.
(A) 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 majestatis reus, gladio feriatur, bonís ejus omnibus fisco nostro addictis. Cod. 9, 3, 5.
(1) Gravin. Orig. 1, 34.
(5) 1 Hal. P. C. 101.
(*) 3 Inst. 7. 1 Hal. P. C. 106.
The provisions of this act are confirmed 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 in cases of high treason.-CHITTY.
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 alle giance to fight against him to-morrow. The true distinction seems to be that *78] the statute 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 do for disobedience. Nay, Further, as the mass of people are imperfect judges of title, of which in all cases possession is prima facie evidence, the law compels no man to yield obedience to that prince whose right is by want of possession rendered uncertain and disputable, till Providence shall think fit to interpose in his favour and decide the ambiguous claim: and, therefore, till he is entitled to such allegiance by possession, no treason can be committed against him. Lastly, a king who has resigned his crown, such resignation being admitted and ratified in parliament, is, according to Sir Matthew Hale, no longer the object of treason.(n) And the same reason holds in case a king abdicates the government, or, by actions subversive of the constitution, virtually renounces the authority which he claims by that very constitution; since, as was formerly observed, (o) when the fact of abdication is once established and determined by the proper judges, the consequence necessarily follows that the throne is thereby vacant, and he is no longer king.
Let us next see what is a compassing or imagining the death of the king, &c. These are synonymous terms, the word compass signifying the purpose or design of the mind or will, (p) and not, as in common speech, the carrying such design to effect.(9) And therefore an accidental stroke, which may mortally wound the sovereign, per infortunium, without any traitorous intent, is no treason: as was the case of Sir Walter Tyrrel, who, by the command of king William Rufus, *79] *shooting at a hart, the arrow glanced against a tree, and killed the king on the spot.(r) But, as this compassing or imagining is an act of the mind, it cannot possibly fall under any judicial cognizance, unless it be demonstrated by some open or overt act. And yet the tyrant Dionysius is recorded(s) to have executed a subject barely for dreaming that he had killed him, which was held of sufficient proof that he had thought thereof in his waking hours. But such is not the temper of the English law; and therefore in this and the three next species of treason it is necessary that there appear an open or overt act of a more full and explicit nature, to convict the traitor upon. The statute expressly requires that the accused "be thereof upon sufficient proof attainted of some open act by men of his own condition." Thus, to provide weapons or ammunition for the purpose of killing the king, is held to be a palpable overt act of treason in imagining his death. (t) To conspire to imprison the king by force, and move towards it by assembling company, is an overt act of compass
(*) 1 Hal. P. C. 104.
() Book i. p. 212.
(P) By the ancient law, compassing or intending the death of any man, demonstrated by some evident fact, was equally penal as homicide itself. 3 Inst. 5.
(9) 1 Hal. P. C. 107.
(*) 3 Inst. 6.
In the case of the regicides, the indictment charged that they did traitorously compass and imagine the death of the king. And the taking off his head was laid, among others, as an overt act of compassing. And the person who was supposed to have given the stroke was convicted on the same indictment. For the compassing is considered as the treason, the overt acts as the means made use of to effectuate the intentions of the heart. And in every indictment for this species of treason, and indeed for levying war, or adhering to the king's enemies, an overt act must be alleged and proved. For the overt act is the charge, to which the prisoner must apply his defence. But it is not necessary that the whole of the evidence intended to be given should be set forth: the common law never required this exactness, nor doth the statute of king William require it. It is sufficient that the charge be reduced to a reasonable certainty, so that the defendant may be apprized of the nature of it and prepared to give an answer to it. Fost. 194.-CHRISTIAN.