confession or the oath 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. 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 being, according to sir Edward Coke", 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 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'. (2) Formerly it was only cogSee the occasion of making this statute, Vol. I. pag.255.

* 3 Inst. 113.

1

Ibid.

(2) Neither the author, nor Lord Coke, in the passages referred to, are to be understood as classing piracy among felonies, strictly so called. It was, and still is, a felony (if that term can be so used) at the civil law, but the common law took no cognisance of it, as being an offence committed out of its jurisdiction. The statute of H. 8. has not altered the nature of the offence, but only given a mode of trial by the common law. This distinction is important in many respects; for not being expressly made a felony by the statute, none of the incidents of felony beyond those named in the statute belong to it, and a general pardon of all felonies would not extend to it. The punishment, too, of accessories was left by that statute just as it found it: if they had committed their offence at sea, they were still only triable by the civil law; if on land, by no law at all, not by the civil, for that had no jurisdiction at land, nor at common law, for the principal offence not being made a felony, there could be no accessories

to

[ 71 ]

[72]

nizable by the admiralty courts, which proceed by the rules of the civil lawTM. 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. (3)

THE offence of piracy, by common law, consists in committing 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 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. (4) 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 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

to it. This was remedied by the 11 & 12 W. 3. c. 7. s.10. and 8 G. 1. c. 24. as mentioned in the text below. See East's P.C. c. xvii. s. 3.

(3) See post, p. 269.

(4) The reason for passing the statute of 11 & 12 W. 3. c. 7. was to clear a point doubted by many civilians immediately after the revolution, whether James II. did not still retain in himself the right of war, so as to protect those who captured English vessels under his commission from the penalties of piracy.

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 [ 78 ] 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, 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 crimes branches itself into a much larger extent than either of those of which we have already treated.

[75]

CHAPTER THE SIXTH.

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 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 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. Praemunire. 4. Other misprisions and contempts. Of which crimes, the first and principal is that of

treason.

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, saith the Mirror: for treason is indeed a general appellation, made use of by the law, to denote not only offences against the

any

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 such superior or lord. (1) 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 laesae 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 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. 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 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 LL. Aelfredi. c.4. Aethelst. c. 4. Canuti. c. 54. 61.

e

d l. 1. c. 2.

Sp. L. b. 12. c. 7.

(1) The expressions in the laws referred to are, vitæ regis insidiari, insidias domino facere, regi vel domino insidiari. So that not merely to destroy the life, but to attempt so to do, was treason, and that as it should seem equally in petit as in high treason. See Wilkins, pp. 35. 57. 142.

[76]