well's assassination is most opprobrious, but it would have 56 PART I: JUSTICE appeared otherwise when the republics of Greece and Rome set the fashion.
Having thus taken notice of this difference between monarchical and republican governments, we shall next con sider the crimes reckoned treason. There are three kinds of treason or attacks upon the essence of government. First, perduellio, or an attempt to subvert the established government by force or rebellion. Secondly, proditio, or the joining of the enemy, delivering up to him forts, hos tages, &c., or the refusing to deliver up garrisons, &c., to the government when they demand them. This is called high treason. Thirdly, laesa tnaiestas, or an insult on the authority of the magistrate, which is not so heinous a crime as the two former. These were the kinds of treason among the Romans. Under the emperors these were blended, and a breach of the smallest, even in so trifling a manner as throwing a stone at the emperors statue, was punished with death1. Under Honorius, a conspiracy against any of the emperor's ministers was high treason '-'.
The crimes accounted treason by the English law 3 are the following. First, killing the king, wishing his death 4, or providing arms against him, with every attempt of this kind are punished capitally. The gunpowder plot was never executed, yet the conspirators were put to death. Had they intended only the death of some other person, they would not have been executed. Secondly, corrupting the king's wife or oldest daughter5, because these are 1 According to Marcianus (in to throw a stone at the emperor's Digest, lib. xlviii. tit. iv. 5), ' non statue on purpose, contrahit crimen maiestatis qui 2 Cod. lib. ix. tit. viii. 5.
statuas Caesaris vetustate corrup- 3 I.e. by 25 Ed. III. st. 5. cap. 2.
tas reficit, nee qui, lapide iactato 4 Compassing or imagining the incerto, fortuito statuam attigerit, death of the king or queen, or of crimen maiestatis commisit; et their eldest son.
ita Severus et Antoninus lulio 5 Eldest daughter unmarried, Cassiano rescripserunt.' It is or the wife of the king's eldest natural to infer that it was treason son.
PUBLIC JURISPRUDENCE 57 affronts to the king, and may introduce a spurious offspring to the crown. If it be a younger daughter, the crime is not so great. Thirdly, levying a force against the king, aiding his enemies, &c. Fourthly, attempting the life of the chancellor or [judge of] assize when sitting in court; at another time it is only felony. Edward I, however, made the mere wounding of them not treason1. Fifthly, counterfeiting the king's great or privy seal, which is accounted an usurpation of the government, because by them the acts of government are carried on. Sixthly, counterfeiting of the king's coin, though this should not properly be treason, because it is no attempt on the essence of government. This crime is no more than forgery, and is usually punished as such'-. These were the branches of treason before the reformation. At this period Henry VIII declared himself head of the Church, assumed the sovereignty in ecclesiastical affairs as a part of his pre rogative, and established for this purpose the court of high commission to judge of ecclesiastics, which was abolished by Mary and restored by Elizabeth. As there was some danger then from the Popish party, the Catholic religion was considered as influencing the being of government, and therefore it was declared high treason to bring in any bull of the Pope, agnns dci, or whatever might support his authority3, to support popish seminaries4, or conceal 1 Under 25 Ed. Ill, 51.5. cap. 2, bowelled and quartered. Haw- it was high treason to take, not kins, Pleas of the Crown, 3rd ed. merely to attempt, the life of a 1762, bk. ii. ch. xlviii. § 4. judge on the bench. Adam Smith 3 Under 13 Eliz. cap. 2, it was may have had authority for be- high treason to introduce a bull, lieving that before that statute an but to bring in or receive an attempt was high treason, in agnusdei only subjected offenders which case 'taking' should be to the pains of praemunire. Haw- read for ' attempting ' and ' Ed- kins, P. C. bk. i. ch. xvii. § 75; ch. ward III' for ' Edward I, how- xix. § 24.
ever.' * It was treason under 27 Eliz.
2 Men convicted were drawn cap. 2, for a lay person to remain and hanged, but not disem- at a foreign popish seminary in 58 PART I: JUSTICE popish priests l. This law, however proper then, should now be repealed, as there is no more occasion for it; no notice would now be taken of entertaining a popish priest.
During the civil war and usurpation of Cromwell it became a question how far it is lawful to resist the power of government. The court party believed the king to be absolute, and the popular doctrine was that the king is only a steward, and may be turned out at the pleasure of the people. After the restoration the court party got the better, and the other party became odious. At the Revolu tion the Stewart family were set aside for excellent reasons, and the succession established in the present family. By this the court party was turned out, and began to influence the dispositions of the people. It was therefore enacted that whoever should speak against the present succession should be guilty of treason2. This is now altogether unnecessary, because the government is now so well established that there is no reason to take notice of those who write or speak against it.
In Scotland the laws were very confused with regard to treason. Prejudicing the people against the king, or the king against the people, were made high treason. But by the Union they are made the same writh those of England3. These are the laws of Britain with respect to treason, and they subject the person who breaks them to the highest penalties. He is half hanged, and then his entrails are taken out, he forfeits his estate, his wife's dowry4, £c., defiance of a proclamation; but son, P. C. bk. i. ch. xvii. § 81.
only praemunire to send money 2 ' Speak ' should be; write or to such seminaries. Hawkins, print.' Mere speaking was only P. C. bk. i. ch. xvii. § 80; ch. xix. praemunire (4 Ann. cap. 8; and 6 § 26. Ann. cap. 7). Both offences are 1 Concealment of popish priests dealt with in Hawkins' chapter was only punishable by fine and on high treason, § 85.
imprisonment under 27 Eliz. cap. s 7 Ann. cap. 21, § 3.
2; but the offence is dealt with in 4 A mistake for ' his wife her Hawkins' chapter on high trea- dower.'
PUBLIC JURISPRUDENCE 59 and corrupts his blood, so that his children cannot succeed.
Besides these there are other offences against the crown which do not subject to the pains of high treason, but to those of felony1. First, the making of coin below the standard 2 and the exportation of coin 3. From the notion that opulence consists in money, the parliament resolved that every one might have bullion coined without any expense of mintage4. Thus coined money was never below the value of bullion, and therefore there was a temptation to melt it down. This occasioned the act declaring this practice felony5. Secondly, any attempt to increase the coin, as by the philosopher's stone, was made felony6. Thirdly, destroying the king's armour is also felony7. Fourthly, any attempt against the king's officers is also felony 8, and in general whatever is felony against another person is felony against the king. If his pocket were picked it would be felony against him, as it is against any private gentleman, but the former offences are committed against him as king. There are some other small offences which may be done to the king which do not amount to felony, but incur what is called a praemunire. This is necessary to explain. In the reigns of King John and Henry III, 1 Hawkins, P. C. bk. i. ch. xviii. sembling Spanish ingots. This 2 7 Ann. cap. 25. practice was forbidden under a 3 An erroneous inference from penalty of ^500, by 6 & 7 Will, an incorrect statement in Haw- III. cap. 17, which is probably kins, P. C. bk. i. ch. xviii § 2. the act referred to. It does not Though still prohibited, exporta- declare the practice felony, tion had not been felony since but it is included in Hawkins' I573- See Hale, History of Hie chapter on ' Felonies against JVi'ds of the Crown, 1736, \ol. i. pp. the King,' P. C. bk. i. ch. xviii.
tation of foreign bullion was per- 7 31 Eliz. cap. 4.
mitted. English coin was then 8 3 Hen. VII. cap. 14, and 9 melted down into ingots re- Ann. cap. 16.
63 PART I: JUSTICE England was entirely under the dominion of the Pope. His legate brought over bulls, and raised contributions as he pleased, and long before the Reformation it was necessary to defend the king's liberty against the Pope. The king sometimes appointed one to a benefice, and the Pope another, and the Pope's candidate was often preferred. A law was therefore made forbidding any bull to be brought from Rome, or any appeal to be carried thither, and sub jecting every person who refused to ordain the king's presentee, to the penalties of praemunire regem, i. e. to fortify the king against the Pope x; the penalty was forfeiture of goods and outlawry. After Henry VIII was declared head of the Church by the Pope, it was made a praemunire to attack the king's prerogative with regard to ecclesiastical matters 2.
Beside these there are other offences called misprisions of treason, and are either positive or negative. Positive 3 misprision of treason is the not revealing an attempt against the king's person, his oldest daughter, or the 1 'Touching the etymology of (Praemonere) according to our this word (Pracmitnire) thus proverb: He that is well warned, affirmeth Sir Tho. Smith, "that is half armed. And of this I it is so-called of Praemuniting gather reason from the form of and fortifying and strengthening a writ, which is thus conceived in the Crown by the former statutes, the Old Nat. Br. fol. 143. Praeagainst the usurpation of foreign munire facias praedictum praeand unnatural power: " which positum, et I. R. procuratorem, opinion may receive some ground &c., quod tune sint coram nobis, from the statute an. 25 Ed. Ill, &c. For these words can be Stat. 6. c. i; or to grow from the referred to none but parties verb praemonere, that is to fore- charged with the offence.' Minwarn, as it were a forewarning to shaeus, The Guide into Tongues, any, lest he fall by such attempt 1626, p. 572. Coke, Inst. pt. iii.
into a Praemunire, being barba- ch. 53 says he that ispraemonitus rously turned for praemonere, is praemunitus.'
which corruption is taken from 2 Hawkins, P. C. bk. i. ch. xix.
the rude interpreters of the civil § 23; cf. ch. xvii. § 72.
and canon laws, who indeed do 3 A mistake for ' negative.'
use the effect (Praemunire) many Hawkins, P. C. bk. i ch. xx. §§ times for the efficient cause 1-6.
PUBLIC JURISPRUDENCE 6l heir of the kingdom. In like manner it is felony if you do not reveal any notice you receive of conspiracies and rebellions. Negative J misprision is the counterfeiting of foreign coin current in the kingdom, such as Portuguese gold, but it is not felony to counterfeit French or Dutch money, because they are not current here 2.
In the last place there are offences against the king called contempts, which are fourfold 3. First, contempt of the king's court or palaces. A riot committed in any of these is a great indignity offered to the sovereign. Riots in courts of justice are also severely punished, because there persons are often provoked, and if the law were not strict they would disturb the court4. Secondly, con tempt of the king's prerogative, such as disobeying the king when lawfully called, going out of the kingdom, when in office, without his leave, refusing to come after a summons under the privy seal, accepting a pension from a foreign prince without the king's permission 5, even in a man of letters Thirdly, contempt of the king's person and government (of which many are guilt)7), as by saying he is indolent or cowardly, that he has broken the corona tion oath, or to speak disrespectfully of his ministers c. These are never regarded at present, because the govern ment is so well established that writing and speaking cannot affect it. Fourthly, contempt of the king's title, by denying it, or preferring the Pretender's to it, by drinking the Pretender's health, or refusing the oath of allegiance and abjuration7; all these subject to imprison- 1 A mistake for 'positive.' to forge foreign coin which was Hawkins, P. C. bk. i. ch. xx. not current. Hawkins, P. C. bk.i. § 7. ch. xvii. $ 59; ch. xx. § 7.
2 This is altogether erroneous. 3 Hawkins,./3. C. bk. i. ch. xxi. Under i Mar. sess. 2. cap. 6, it ad init.
was high treason to forge any 4 Ibid. bk. i. ch. xxi. §§ 1-15.
foreign coin current by consent 5 Ibid. bk. i. ch. xxii.
of the crown; and under 14 Eliz. 6 Ibid. bk. i. ch. xx ii.
cap. 3, it was misprision of treason ~ Ibid. bk. i. ch. xxiv.
62 PART I! JUSTICE ment or fining, but not to the penalties of treason, felony, praemunire, nor outlawry.
Having considered the offences of the subject against the sovereign, we shall next treat of the crimes which the sovereign may commit against the subject. But first it is proper to consider who are subjects of a state.
The laws of different countries vary much with regard to those to whom the right of citizenship belongs. In most of the Swiss republics nothing gives the right of citizen ship, but to be born of a citizen. In Rome a family might be peregrina for four or five generations. At Athens no man was a citizen unless both father and mother were Athenians. It is to be observed that the Athenians were particularly sparing in giving the right of citizenship, because it entitled them to very great privileges. Even kings were denied that honour; all they did when they wanted to bestow a favour on a neighbouring king was to free him from taxes on imports. This they did to Arnyntas, father of Philip, king of Macedon. As aliens^ paid higher duties than natives, it was no small privilege to have these removed. After the defeat of the Persians their forces amounted to 25,000 men: their country was well cultivated: many cities in Asia paid them tribute. In consequence of this the people we're entitled to attendance on the court of justice, to have their children educated at the public expense, to have certain distributions of money among them, with many other emoluments. If the number of citizens increased, these privileges would not be so valuable, and therefore they were very jealous of it. As whoever comes into a parish in England must give a bond not to be burdensome to it l, so [in] all little 1 Either ' sufficient security ' (13 was last legally settled (8 & 9 W. & 14 Car. II. cap. 12) or a cer- III. cap. 30), W. of N. bk. i. ch. x. tificate from the parish where he vol. i. pp. 146, 147.
PUBLIC JURISPRUDENCE 63 republics where the number of freemen are small and election in the hands of a few, citizenship is of great im portance, but in a large city such as Rome it was a very small compliment, and accordingly they made whole provinces citizens at once. In Britain one born within the kingdom is under the protection of the laws, can purchase lands, and if of the established religion, can be elected to any office. In great states1 the place of birth makes a citizen, and in small ones the being born of parents who are citizens. In like manner the incapacity of being a citizen is different in different countries. By the old laws of Rome, and of every barbarous nation, the goods of every person who came within their territories were confiscated, and he himself became a slave to the first person who happened upon him. By a law of Pomponius, if he came from a nation at peace with Rome, he was treated as the law prescribed-. In barbarous countries they have but one word to signify a stranger and an enemy. At Rome every stranger was hostis*, as they considered all nations as their enemies, and the person who came from them as a spy. The Litchfield man of war was shipwrecked on the Emperor of Morocco's dominions, and because we had no league with him, the whole crew were made slaves. Our sovereign so far complied with 1 MS. reads ' estates.' tius nor Cocceius mention Poma ' Si cum gente aliqua neque ponius or give the reference to amicitiam, neque hospitium, ne- the Digest. Montesquieu (Esprit que foedus amicitiae causa factum deslois, liv. xxi. chap. 14) however, habemus, hi hostes quidem non in quoting the passage, attributes sunt; quod autem ex nostro ad it to Pomponius, and gives the eos pervenit, illorum fit, et liber reference as ' Leg. 5, § 2, if. de homo noster ab iis captus servus capitivis^ which may account for fit et eorum. Idemque est, si ab the phrase ' a law of Pompoillis ad nos aliquid perveniat.' nius.'
Pomponius in Digest, lib. xlix. 3 ' Ipsa vox hostis veteri Latio tit. xv. 5. The words are quoted nihil nisi externum significabat.'
in Grotius, De hire belli et pacts, lib. Grotius, De iure belli et pacts, lib. ii.
ii. cap. xv. § 5, but neither Gro- cap. xv. § 15.
64 PART I: JUSTICE the custom of the place as to ransom them1. When they2 found the advantage of exporting their own goods, and importing those of others, they would naturally allow those who trafficked with them to be in a state of safety, both with respect to his person and goods, and would allow him an action if injured in either. This is the state of aliens in most of the countries of Europe at present. In Britain an alien cannot purchase nor inherit land property, nor maintain a real action. He cannot make a will because it is the greatest extension of property, and is founded on piety and affection to the dead, which an alien can have but few opportunities of deserving. By a particular statute an alien merchant, but not a tradesman, may have a lease of a house. This arises from a whim sical principle that it would discourage our own tradesmen to allow foreigners to settle among them 3. This is the state of aliens in most countries.
In Britain the manner of obtaining citizenship is twofold. First, by letters of denization, which is a part of the king's prerogative. Secondly, by a bill of naturalization, which is an act of parliament. By the former an alien is capaci tated to purchase lands and to transmit them to posterity if subjects of Great Britain, but he cannot inherit, because 1 The Litchfield was wrecked man) from holding a lease of a on 29 Nov. 1758, and the crew house. The 'whimsical principle' were ransomed for 225,000 hard is enunciated in the preamble, dollars in April 1760. See Gen- which denounces the 'infinite tleniaris Magazine, 1760, pp. 200, number of strangers and aliens of 391; and 1761, pp. 359 63. foreign countries and nations 2 I.e. the nations mentioned a which daily do increase and few lines higher up. multiply within his grace's realm 3 The judges decided that a and dominions in excessive num- merchant might hold a lease of bers, to the great detriment, a house. Coke, Little/on, 2b. The hindrance, loss and impoverish- 'particularstatute'is32Hen.VIII. ment of his grace's natural true c. 16, which prohibits a ' trades- lieges and subjects of this his man' (i.e., as usual in Adam realm, and to the great decay of Smith, an artificer or handicrafts- the same.'
PUBLIC JURISPRUDENCE 65 as the king is heir of aliens he may transfer his own right, but cannot take away the right of the person who ought to succeed. A denizen alien may inherit an estate bequeathed to him, but to be capable of inheriting in all respects, an act of naturalization is necessary, by which he has a right to all the privileges of a freeborn subject. When king William came to the throne, naturalized aliens were made peers. As many Dutch families came over with him, it was natural to suppose that he would favour them with every privilege. The English, offended at this partiality, made an act declaring that there should be no act of parliament for the future by which they should be allowed such emoluments l. As in most countries they are [not] allowed the right of transmitting lands, it was [un] necessary that they should have an action for it. Neither in England nor in Germany are aliens allowed to make a will 2. In Saxony there was made a very equitable law that aliens from countries where they were allowed no privileges, should be allowed 1 The act, which has been in either house of parliament, already somewhat obscurely re- unless such clause or words ferred to on p. 13 above, is be first inserted or contained i Geo. I. cap. 4. which provides therein.' The provision was that ' no person shall hereafter be often repealed by special act naturalised unless in the bill (see Margrave's Coke upon Lit- exhibited for that purpose there tleton, 1788, p. 129 a, note). be a clause or particular words 2 A mistake as regards alien inserted to declare that such per- friends in England (see Black- son shall not thereby be enabled slone,CotntHentaries,vol. i. p. 372). to be of the privy council, or a Matthew Bacon in his New member of either house of parlia- Abridgement of the Law, 1736, ment, or to take any office or which Adam Smith possibly place of trust either civil or mili- followed in this account of aliens, tary, or to have any grant of says nothing about the matter, lands, tenements, or heredita- s. v. 'aliens.' As to Germany, ments from the crown to himself Vattel, Droit des gens, 1758, liv. ii. or to any other person in trust ch. viii. § 112, does not clearly for him; and that no bill of natural- decide the point, isation shall hereafter be received 66 PART I I JUSTICE 66 PART I I JUSTICE none among them1. In Rome it was the right of citizens only to make a will.
It is to be observed with respect to aliens, that they are aliens amis, or aliens ennemie2. If a number of the latter should make war upon the king, or injure him, they cannot be prosecuted for high treason, because he is not their lawful sovereign, and they owe no allegiance to him. If the laws of nations do not protect them, they must be dealt with by martial law. Aliens, however, who live in the country, are protected by the laws, and as they thus own allegiance to the king, they may be prosecuted for treason, and punished accordingly. Whatever makes a freeborn subject guilty of treason makes an alien ami guilty of it. An alien ennemie, that is one who comes from a country at war with us, if he give information to his natural sovereign, is also guilty of treason.
H 1 6. Of the Rights of Subjects] Having thus considered who are properly the subjects of a state, we come now to treat of the crimes of the sovereign against the subject, or the limitations of his power.
On this branch of public law it is impossible to speak with any degree of precision. The duties of one sub ject to another are sufficiently ascertained by the laws of every country and the courts of justice, but there are no judges to determine when sovereigns do wrong. To suppose a sovereign subject to judgement, supposes another sovereign. In England it can be exactly as- 1 ' Le droit d'aubaine est 6tabli preserved here and ten lines en Saxe; mais le souverain juste lower down, as it apparently et dquitable n'en fait usage que represents a careful though centre les nations qui y assuje- unsuccessful attempt to reprotissent les Saxons.' Vattel, Droit duce law-French. Elsewhere in des gens, liv. ii. ch. viii. § 112. the MS., 'enemy' is spelt in the 8 The spelling of the MS. is ordinary way.
PUBLIC JURISPRUDENCE 67 certained when the king encroaches on the privileges of the people, or they on that of the king, but none can say how far the supreme power of king and parliament may go. In like manner where the absolute power of sovereignty is lodged in a single person, none can tell what he may not do, with accuracy. God is the only judge of sovereigns, and we cannot say how he will determine. All decisions on this subject have been made by the prevailing party, and never coolly by a court of justice, and can give us no light into the subject. Our best notions of it will arise from considering the several powers of government and their progress.
In the beginning of society all the powers of govern ment are exercised precariously. The majority may make war, but cannot force the minority to it, though this power was the first that was exerted absolutely. The judicial power was much longer executed precariously than the federative. In every country the judges once only inter posed as mediators, and sometimes the panel had his choice to refer his cause to the judge or to God, by combat, hot water, and, nay, if the sentence of the judge did not please the panel, he might challenge the judge to fight him in the court1. In time, however, it became absolute. The legislative power was absolute whenever it was introduced, but it did not exist in the beginnings of society, it arose from the growth of judicial power. When the judicial power became absolute, the very sight of a judge was terrible, as life, liberty, and property depended on him. Tacitus tells us that Quintilius Varus, having conquered a part of the Germans, wanted to civilize them by erecting courts of justice, but this so irritated them that they massacred him and his whole army2. To a rude 1 Montesquieu, Esprit des lots, to be taken from Florus, Epitome liv. xxviii. ch. xxvii. rerum Romanarum, lib. iv. cap.