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if she carries guns or arms, or shall discharge the mariners from fighting, so that the fhip falls into the hands of pirates, fuch commander fhall forfeit all his wages, and fuffer fix 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 shall proceed in the next chapter to confider offences, which more immediately affect the fovereign executive power of our own particular ftate, or the king and government; which fpecies of crimes branches itself into a much larger extent, than either of those of which we have already treated.
CHAPTER THE SIXTH.
OF HIGH TREASON.
HE third general divifion of crimes confists of such, 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 lege 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 also. 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. Treafon. 2. Felonies injurious to the king's prerogative. 3. Praemunire. 4. Other misprifions and contempts. Of which crimes the first and principal is that
a Book I. ch. 10.
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 fo abuses that confidence, fo forgets the obligations of duty, fubjection, and allegiance, as to destroy the life of any fuch his fuperior or lord. 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 confpired in public against his liege lord and fovereign and therefore for a wife to kill her lord or husband, a servant 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 disloyalty fo rears it's crest, 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 alfo 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 afcertained. For if the crime of high treason be indeterminate, this alone (says the prefident Montefquieu) 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 treasons; that is, to raise, by forced and arbitrary
constructions, offences into the crime and punishment of treason, which never were fufpected to be fuch. 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 affaulted and detained one of the king's fubjects till he paid him 90/°: a crime, it must be owned, well deferving of punishment; but which feems to be of a complexion very different from that of treason. Killing the king's father, or brother, or even his messenger, has alfo fallen under the fame denomination. The latter of which is almost as tyrannical a doctrine as that of the imperial conftitution of Arcadius and Honorius, which determines that any attempts or designs against the ministers of the prince shall be treafon. But however, to prevent the inconveniences which began to arife in England from this multitude of conftructive treafons, the ftatute 25 Edw. III. c. 2. was made; which defines what offences only for the future should be held to be treafon : in like manner as the lex Julia majeftatis among the Romans, promulged by Augustus Caefar, comprehended all the antient laws, that had before been enacted to punish tranfgreffors against the state h. This ftatute 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 treafon under seven diftinct branches.
1. "WHEN a man doth compafs or imagine the death of our "lord the king, of our lady his queen, or of their eldest son " and heir.” Under this defcription 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 fubjects: but the husband of fuch a
с 1 Hal. P. C. 80.
f Britt. c. 22: 1 Hawk. P. C. 34.
Qui de nece virorum illuftrium, qui confiliis et confiftorio noftro interfunt, fenatorum etiam (nam et ipfi pars corporis noftri funt) vel cujuflibet poftremo, qui militat nobifcum, cogitaverit: (eadem enim feveritate voluntatem
fceleris, qua effectum, puniri jura voluerunt) ipfe quidem, utpote majeftatis reus, gladio feriatur, bonis ejus omnibus fifco noftro addictis. (Cod. 9. 8. 5.)
Gravin. Orig. 1. §. 34. i Hal. P. C. 101.
queen is not comprized within these words, and therefore no treason can be committed against him. The king here intended is the king in poffeffion, without any respect to his title: for it is held, that a king de facto and not de jure, or in other words an ufurper that hath got poffeffion of the throne, is a king within the meaning of the ftatute; 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 ufurpers 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 poffeffion of the throne, as was the cafe 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'. And a very sensible writer on the crown-law carries the point of poffeffion so far, that he holds ", that a king out of poffeffion is so far from having any right to our allegiance, by any other title which he may fet up against the king in being, that we are bound by the duty of our allegiance to refift 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 affist and obey a king de facto. But, in truth, this seems to be confounding all notions of right and wrong; and the confequence would be, that when Cromwell had murdered the elder Charles, and ufurped 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 poffeffion of the crown (a term, by the way, of very loose and indistinct fignification) the subject would be bound by his allegiance to fight for his natural prince to-day, and by the fame duty of allegiance to fight against him to-morrow. The true diftinction feems to be,