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a pirate, and by the statute 7 Will. 4 & 1 Vict. c. 88, s. 2, whosoever with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault with intent to murder any person being on board of or belonging to it, or shall stab, cut, or wound any such person or unlawfully do any act by which his life may be endangered, shall be guilty of felony, and shall be sentenced to suffer death, which sentence however may be recorded (r).

* It seems always to have been considered, that if any of the crew [ * 80 ]

or passengers of a vessel were taken for the purpose of being sold as slaves, this was piracy at common law (s). And by the statute 5 Geo. 4, c. 113, it is expressly enacted (s. 9), that any subject of the sovereign or any person residing or being in any of the dominions of the crown, or on the high seas (which is further extended, by the 6 & 7 Vict. c. 98, s. 1, to British subjects wheresoever residing and being, and whether within the dominions of the British crown or of any foreign country,) who shall convey or remove any person as a slave, shall be guilty of piracy, felony, and robbery (t). By sect. 10, the dealing for, purchasing or bartering persons as slaves, or fitting out or navigating any ship for this purpose, or in any way being connected with the traffic in slaves, is likewise made felonious; and by sect. 11, the embarking on board of any vessel as a petty officer or seaman, knowing that such vessel is to be employed in the traffic in slaves, is constituted a misdemeanor (u). Treaties have also been entered into, under the authority of parliament, with many foreign nations and states, for extending similar enactments to the ships and subjects of those countries (x).

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 punishment upon offences against that law, committed by private persons. We shall proceed in the next two chapters to consider offences which more immediately affect the sovereign and the government.

(r) 4 Geo. 4, c. 48, s. 1. The ordinary pun. (c) As to the punishment for the above ishment of piracy under the statute law is offence, see 1 Vict. c. 91, s. 1; 16 & 17 Vict. c. penal servitude for life or any term not less 99, s. 4; 20 & 21 Vict. c. 3, s. 2; 27 & 28 Vict. than five years, or imprisonment with or without hard labour for not more than two (u) See also the 3 & 4 Will. 4, c. 73, and 6 years, 7 Will. 4 & 1 Vict. c. 88, ss. 3, 4; 16 & & 7 Vict. c. 98. 17 Vict. c. 99, s. 4; 20 & 21 Vict. c. 3, s. 2; 27 (2) See the stat. 1 & 2 Vict. c. 102, continued & 28 Vict. c. 47.

by several subsequent acts. (8) Molloy, 63, s. 16.

c. 47.

* CHAPTER VII.

[ * 81 ]

OFFENCES AGAINST THE SOVEREIGN.

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

We have already (a) 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, 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 against his sovereign, 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, or natural born subjects of the crown; the other local and temporary, which is incident to aliens. Every offence more immediately affecting the royal person, the regal 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 such offences may be referred to two classes; 1st. Treason, and other offences, misprisions and contempts against the sovereign; and, 2ndly. Offences against the government. I. Treason, in its very name (which is borrowed from the French) imports a

betraying, treachery, or breach of faith. * It therefore I. High Treason.

[ * 82] happens only between allies, saith the Mirror (6): treason indeed was formerly made use of by the law as a general appellation, to denote not only an offence against the sovereign, 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 allogiance; as to destroy the life of any such superior or lord (c). This was 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, were formerly denominated petit treasons. (644) But when disloyalty so reared its crest, as to attack even majesty itself, it was called by way of eminent distinction high treason, alta proditio ; being equivalent to the crimen læsae 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 (a) Vol. I., chap. 10.

(c) Leg. Aelfredi. C. 4; Aethelst. c. 4; (6) C. 1, s. 7.

Canuti, c. 58.

(d) L. 1, c. 2.

(644) The offense of petit treason is not recognized in the United States, and it ceased to be known in England in 1828.

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alone (says Montesquieu) is sufficient to make a 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 [*83]

* arbitrary construction, offences to the degree of treason which never

had been suspected to be such. Thus the accroaching, or attempting to exercise, royal power (a very uncertain charge) was in the 21 Edw. 3 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 father, or brother, or even the messenger, of the sovereign, has also fallen under the same denomination (g), the doctrine applied in the latter case being almost as tyrannical as that of the imperial constitution of Arcadius and Honorius, which determined that any attempts or designs against the ministers of the prince should be treason (1). To prevent, however, the inconveniences which began to arise in England from this multitude of constructive treasons, the statute 25 Edw. 3, st. 5, 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 ancient laws, that had before been enacted to punish transgressors against the state (i). (645) This statute must therefore be our text and guide, in order to examine into the sev(e) Sp. L. b. 12, c. 7.

cogitaverit : (eddem enim severitate volunta(f) 1 Hale, P. C. 83.

tem sceleris, quâ effectum, puniri jura volue(g) Britt. c. 22; 1 Hawk. P. C. 34.

runt) ipse quidem, utpote majestatis reus, gladio (h) Qui de nece virorum illustrium, qui con- feriatur, bonis ejus omnibus fisco nostro adsiliis et consistorio nostro intersunt, senatorum dictis. (Cod. 9, 8, 5.) etiam (nam et ipsi pars corporis nostri sunt), (1) Gravin. Orig. 1, s. 34. vel cujuslibet postremo, qui militat nobiscum,

(645) In this country treason is either against the United States or a particular State. " Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” U. S. Const., art. 3, $ 3, cl. 1.

In most of the States of the Union treason against the State is defined in substantially the same language; and the same amount of evidence is made necessary to a conviction. See 3 Greenl. Ev., $ 237, and note See, as to New York, People v. Lynch, 11 Johns. 549.

Congress has power to declare the punishment of treason, “ but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted." U.S. Const., art. 3, § 3. Accordingly it is provided by statute that “if any person or persons owing allegiance to the United States of America shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court, or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death.” Act of Congress, April 30, 1790, ch. 9, § 1; 1 U. S. Stat. at Large, p. 112. The same statute contains a provision making misprision of treason punishable. See id., $ 2.

As it regards the punishment of treason it is further provided that “every person who shall hereafter commit the crime of treason against the United States, and shall be adjudged guilty thereof, shall suffer death, and all his slaves, if any, shall be declared and made free; or, at the discretion of the court, he shall be imprisoned for not less than five years, and fined not less than ten thousand dollars, and all his slaves, if any, shall be declared and

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eral species of high treason. And we shall proceed to expound seriatim the several clauses of it, so far as they relate to and define existing treasons.

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made free; said fine shall be levied and collected on any or all of the property, real and personal, including slaves, of which the said person so convicted was the owner at the time of committing the said crime, any sale or conveyance to the contrary notwithstanding." Act of Congress, July 17, 1862, § 1; 12 U. S. Stat. at Large, chap. 195, p. 589. The second section of the same act provides for the punishment of persons aiding rebellion against the government, and section third provides that “every person guilty of either of the offenses described in the act shall be forever incapable and disqualified to hold any office under the United States."

As to the punishment for enlisting persons to serve against the United States, and for seditious conspiracy, etc., see Act of Congress, July 31, 1861 ; 12 U. S. Stat, at Large, chap. 33, p. 284.

Correspondence with rebels by citizens abroad is punishable by Act of Congress, Febru. ary 25, 1863; 12 U. S. Stat. at Large, chap. 60, p. 696.

As to conspiracies, see Act of March 2, 1867.

Under the act of congress of 1790, a person to be guilty of treason must owe allegiance to the United States. And allegiance is of two kinds; that due from citizens, and that due from aliens resident within the United States. Every sojourner who enjoys our protection is bound in good faith toward our government; and although an alien he may be guilty of treason by co-operation either with rebels or foreign enemies. The allegiance of aliens is local, and terminates when they leave our country. That of citizens is not so limited. 23 Law Rep. 705. And see U. S. v. Wiltberger, 5 Wheat. 76, 97; U. 8. v. Villato, 2 Dall. 370; 2 Bish. Crim. Law, $ 1235; Carlisle v. United States, 8 Alb. Law J. 63.

The meaning of the term “ levying war," as used in the constitution of the United States, has been thus expounded: “ The settled interpretation is, that the words · levying war include not only the act of making war, for the purpose of entirely overturning the government, but also any combination forcibly to oppose the execution of any public law of the United States, if accompanied or followed by an act of forcible opposition to such law, in pursuance of such combination. The following elements, therefore, constitute this offense : 1st. A combination or conspiracy by which different individuals are united in one common purpose. 2d. This purpose being to prevent the execution of some public law of the United States by force. 3d. The actual use of force by such combination to prevent the execution of such law. It is not enough that the purpose of the combination is to oppose the execution of a law in some particular case, and in that only." CURTIS, J., 4 Law Rep. 413, 414. And see United States v. Vigol, 2 Dall. 346; United States v. Mitchell, id. 348 ; United States v. Burr, 4 Cranch, 481 ; Ex parte Bollman, id. 75, 126; Charge of SPRAGUE, J., 23 Law Rep. 705; Charge of SMALLEY, J., id. 597. In the case of the United States v. llanway, 2 Wall. Jr. 144, it was virtually held that to make the armed resistance to a public law treason, the intention must be to overthrow the government of the United States. And see United States v. Horie, 1 Paine's C. C. 265.

As to what amounts “ to adhering to and giving aid and comfort to our enemies,” it is somewhat difficult in all cases to define ; but certain it is that furnishing them with arms or munitions of war, vessels, or other means of transportation, or any materials which will aid the traitors in carrying out their traitorous purposes, with a knowledge that they are intended for such purposes, or inciting or encouraging others to engage in or aid the traitors in any way, does come within the provisions of the act. And it is immaterial whether such acts are induced by sympathy with the rebellion, hostility to the government, or a desire for gain. Charge of SMALLEY, J., 23 Law Rep. 597, 601. And see United States v. Pryor, 3 Wash. C. C. 234.

if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy are to be considered as traitors. Ex parte Bollman, 4 Cranch, 75, 126. See United States v. Greathouse, 2 Abb. N. 8. 364.

In treason there are no accessories. They who in felony would be such are in treason principal offenders. See ante, 35, note 19. And see United States v. Hanway, 2 Wall. Jr. 189, 195; Anonymous, Dalison, 16.

VOL. II. - 49

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heir.

1. “When a man doth compass or imagine the death of our lord the king, 1. Compassing, [*84]

of our lady his queen, or of their * eldest son and heir.” &c., death of

Under this description it is held that a queen regent king, queen, or

(such as Queen Elizabeth, Queen Anne, and her present most gracious Majesty Queen Victoria) is within the words of the act, being invested with royal power, and entitled to the allegiance of her subjects (k); but the husband of such a queen is not comprised within these words, and therefore no treason can be committed against him (). 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 who has 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 accordingly 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 jour and not de facto, who has never had plenary possession of the throne, as was the case of the house of York during the tlfree reigns of the line of Lancaster, is not a king within this statute against whom treasons may be committed (m). And a very sensible writer on the crown-law lays such stress on the point of possession as to hold (n), 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. 7, c. 1, which is declaratory of the common law, and pronounces all subjects excused from any penalty or forfeiture, who 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 [ * 85]

* Cromwell had put to death the elder Charles, and assumed the

power (though not the name) of king, the people were bound in duty to hinder the son's restoration: and were some foreign potentate to invade this kingdom, and by any means get possession of the crown (a term, by the way, 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 allegiance to fight against him to-morrow. The true distinction seems to be, that the statute of Henry VII. does by no means command any opposition to a king de jure; but excuses the obedience paid to a king de facto. When therefore an usurper is in possession, the subject is excused and justified in obeying and giving him assistance: otherwise, under an 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 accord

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(k) 1 Hale, P. C. 101.
(1) 3 Inst. 7; 1 Hale, P. C. 106.

(m) 3 Inst. 7, 1 Hale, P. C. 104.
(n) 1 Hawk. P. C. 36.

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