CHAPTER X.

CONCERNING THE OFFENCE OF HIGH TREASON, THE PERSON AGAINST WHOM COMMITTED, AND THE REASON OF THE GREATNESS OF THE OFFENCE; AND TOUCHING ALLIGEANCE.

HAVING premised these general observations relating to all crimes, that are capital, and their punishments, I shall now descend to consider of capital crimes particularly, and therein first of high treason.

And yet, before I descend to the particulars thereof, I shall premise also some things in general touching alligeance, since the specification of this offence consists principally in this aggravation, that it is contra ligeantiæ suæ debitum.

The offence of high treason is an offence, that more immediately is against the person or government of the king; [59] and the greatness of the offence, and the severity of the punishment is upon these two reasons,

1. Because the safety, peace, and tranquillity of the kingdom is highly concerned in the safety and preservation of the person, dignity, and government of the king; and therefore the laws of the kingdom have given all possible security to the king's person and government under the severest penalties.

2. Because as the subject hath his protection from the king and his laws, so on the other side the subject is bound by his alligeance to be true and faithful to the king; and hence all indictments of high treason run proditoriè, as a breach of the trust, that is owing to the king; contra ligeantiæ suæ debitum, against that faith and alligeance he owes to the king, and contra pacem domini regis, coronam, & dignitatem ejus.

And hence it is, that if an alien enemy come into this kingdom hostilely to invade it, if he be taken, he shall be dealt with as an enemy, but not as a traitor, because he violates no trust nor alligeance: resolved in the lord Herise's case. Co. P. C. cap. 1 p. 11. 7 Co. Rep. 6. a. Perkin Warbeck's case.

But if an alien, the subject of a foreign prince in amity with the king, live here, and enjoy the benefit of the king's protection, and commit a treason, he shall be judged and executed, as a traitor; for he owes a local allegiance. 7 Co. Rep. 6. the case of Stephano Ferrara (a) a Portuguese; and the indictment shall not run contra naturalem dominum, but contra dominum suum, and conclude contra ligeantiæ suæ debitum; and such an alien was compellable to take the oath of alligeance in the leet. 2 Co. Instit. p. 121.(b)

If a merchant, subject of a foreign prince in hostility with our king, come hither, after the war begun, without the king's license, or safe-conduct, such a person may be dealt with as an enemy, viz. taken, and ransomed. Mag. Chart. cap. 30.(c)

(a) And Emanuel Lewis Tinoco. Hill. 36 Elix. Dyer. 145. (b) Mirroir de justice, cap. 5. § 1. n. 6.

(c) Co. Instit. 58.

By that statute merchants of a hostile country found in [60] this realm at the beginning of the war shall be attached without harm to their body or goods, till it be known, how the English merchants are used in the hostile country; and if the English merchants be well used there, theirs shall be likewise used here; so that in this case such merchants, though alien enemies, have the benefit of the king's protection, and so owe a local alligeance, which, if they violate, they may be dealt with as traitors, not as enemies, for they have the advantage of the king's protection, as well as his other subjects; yea, it seems also, that if the subject of a foreign prince lives here as a private man, and then war is proclaimed betwixt our king and that foreign prince, and yet that alien continues here in England without returning to his natural sovereign, but under the cover and protection of the king of England commits a treason, he shall be judged and executed as a traitor; for by continuing here he continues the owning of his former local alligeance.[1]

Yet for greater security in the times of hostility between this and foreign kingdoms, especially that of France, there went out precepts under the great seal to arrest all those of that hostile kingdom, until they gave security, quod se bene gerent erga regem, & quod sua bona non transferent sine licentia regis, & quod literas aut nuncios non millent ad partes externas, nec aliquid contra pacem attemptabunt. Rot. Vascon. 18 E. II. M. 24, 23 & 21. Dorso. And sometimes those aliens were constrained actually to swear fealty to the crown of England in the times of hostility, and thereby to superadd an actual alligeance to that local alligeance, which they had being under the king's protection as subjects, though in truth they were the natural subjects of the hostile prince. Pat. 14. H. 6. part. 2. m. 34 § 35. and

[1] If an alien residing and receiving protection in England should, after the commencement of a war between the English king and the alien's sovereign, go over to his native country, but leave his family and effects in England, and adhere to her enemies (the alien's countrymen) in acts or purposes of hostility, he may be dealt with as a trai tor. This rule was laid down by all the judges assembled at queen Anne's command, January 12th, 1707. And they laid in that resolution a considerable stress on the queen's declaration of war, in which she expressly took under her protection the persons and estates of the subjects of France and Spain (with whom she was at war) residing in England, and demeaning themselves dutifully, and not corresponding with the enemy; for by that declaration these aliens were put under a kind of safe-conduct, and enabled to acquire chattels and to maintain actions for the recovery of their personal rights in as full a manner as alien friends may. Fost. Disc. 1, sect. 4. See also Rex v. De la Motte, 21 Howell's St. Tr. 687; 1 East. P. C. 53; Salk. 46; Lutw. 34; Lord Raym. 282.

Alien enemies, resident in the country, may sue and be sued as in time of peace; for protection to their persons and property is due, and implied from the permission to them to remain, without being ordered out of the country by the President of the United States. The lawful residence docs, pro hac vice, relieve the alien from the character of an enemy, and entitles his person and property to protection. 2 Kent's Com. 63; Daubigny v. Darellon, 2 Anst 462; Clark v. Marcy, 10 Johns. Rep. 69; Russel v. Skipwith, 6 Binn. Rep. 241. But it is apprehended that such a person, the moment he quits the country, even though he leaves his family and effects behind, becomes an enemy, and consequently incapable of committing treason against the United States, unless perhaps himself, his family, and his effects, were taken expressly under the protection of the United Stutes, as in the case above stated from Foster.

if they refused, were either imprisoned, or expelled the kingdom.[2] Vide infra cap. 15.

And upon the same account it is, that though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to practise treason against his person; and therefore, although the true prince regain the sovereignty, yet such attempts against the usurper in compassing his death have been punished as treason, unless they were attempts made in the right of the rightful prince, or in aid or assistance of him, [61] because of the breach of ligeance, that was temporarily due

to him, that was king de facto; and thus it was done 4 E. 4. 9 E. 4. 1,(d) though H. 6. was declared an usurper by act of parliament 1 E. 4. and therefore king Edward IV. punished Ralph Grey with degradation, as well as death, not only for his rebellion against himself, but also pur cause de son perjury & doubleness, qu'il avoit fait al roy H. 6. 4 E. 4. 20.

And because high treason is said to be contra ligeantiæ debitum, it will not be amiss to premise something touching alligeance and its kinds, referring myself to 7 Co. Rep. Calvin's case, in relation to what is here omitted touching it.

Alligeance therefore due to the king is of two kinds: 1. Original, virtual, and implied. 2. Exprest, and declared by oaths or promises.[3]

The virtual or implied alligeance is that, which the subject owes to his sovereign antecedently to any express promise, oath, or engagement: this is that, which the Custumer de Normandie mentions cap. 13. Aliance & la loyaulte de tous ses homes de toute la contree, par quoy ils sont tenus a lui donner conseil & ayde de leurs propres corps contre toutes personnes qui peuvent viver & mouryr & soy garder de lui nuyre en toutes choses ne de soustenir in aulcune chose la partie de ceulx qui parlent contre luy.

And from the breach of this original ligeance ariseth, the crime of treason, though the person committing it never promised or swore faith or alligeance to his prince: for as the king by the very descent of the crown is fully invested with the right of sovereignty before his coronation, (which is only a magnificent solemnity[4] attending that, which is before settled in the prince by the descent of the crown,) so the subject is bound to his king by an intrinsic alligeance before the superinduction of those express bonds of oath, homage, and fealty, which were instituted for the better securing thereof.

And this alligeance is either natural from all that are subjects born within the king's alligeance; or local, which [62]

(d) It was not done in this case, but only it is said by the counsel, that it may be done.

[2] In the United States, an alien enemy is not permitted to make the declaration required by law, preparatory to the naturalization of aliens. Ex parte Newman. 2 Gullis. C. C. R. 11.

[3] Bl. Com. 366. 1 East, P. C. 49. 2 Kent's com. 39. [4] See Fost. 189.

obligeth all that are resident within the king's dominions, and partake of the benefit of the king's protection, although strangers bora.

The breach of this primitive or virtual alligeance is that, which is called high treason; what shall be said of breach of this alligeance, so as to make a person guilty of treason, shall be shown hereafter.

The express or explicit alligeance consists in certain promises, oaths, or professions attesting and witnessing that alligeance, and instituted for the farther security thereof: and they are of two kinds; first, those, which were anciently instituted by the Common law, namely the oath of fidelity and alligeance, and the profession of lige homage and such, as are instituted by act of parliament, namely the oath of supremacy instituted by the statute of 1 Eliz.,(e) and the oath of obedience instituted by the statutes of 3 Jacobi. (f) Something I shall say of all these.

:

The oath of fidelity or fealty is of two kinds: 1 That which is due by tenure, whether of the king, or of mesne lords, which is ratione feodi vel vassalagii, and hath a special relation to the lands so held, and is set down by Littleton, § 19. "Hear ye, my lord, I shall be faithful and loyal, and faith to you shall bear for the tenements, which I claim to hold of you, and I shall lawfully do to you the customs and services, which I ought to do at the terms assigned. So help me God"

Touching this feudal fealty, or fealty by reason of tenure, I have not much to do in this place. The other kind of fealty is that oath, which is called fidelitas ligea, or alligeance, and performed only to a sovereign prince, and therefore regularly ought to be performed by all men above the age of twelve years, whether they hold any lands

or not. The tenor of this oath according to Fleta, Lib. III. [63] cap. 16,(g) runs thus: "Hoc auditis, circumstantes, quod fidem regi portabo de vita, & membris, & terreno honore, & arma contra ipsum non portabo: sic me Deus, &c."

According to Briton, who wrote about 5 E. 1 cap. 29. (which is also mentioned in Calvin's case, 7 Co. Rep. 6.) the common form of the oath of alligeance taken in leets runs thus: "Ceo oyes vous N. bailife, que jeo A. de ceo jour en avaunt serray feal, & leal a nostre seigniour E. roy d'Angleterre, & a ses heires, & foy & lealte lui porteray de vie, & de membre, & de terrien honour, & que jeo lour mal, ne lour damage, ne saveray, ne orray, que jeo ne le defendray a mon (e) Cap. 1.

(ƒ) Cap. 4. [Vide 7 Jac. I. cap. 2. &. 6. 13 Car. II. St. 2. cap. 1. 13. & 14 Car. II. cap. 3 & 4.25 Car. II. cap. 2. 30. Car. II. St. 2. cap. 1.] But these oaths are abrogated by 1 W. & M. Sess. 1. cap. 1 & S. and new ones appointed in their room; see 1 W. & M. Sess. cap. 2. § 3. and 3 W. & M. cap. 2. 13 W. 3. cap. 6. 1 Annæ, cap. 22. 4. Annæ, cup. 8. 6 Anna, cap. 7. 14. 23. 1 Geo. I. cap. 13, &c.[5]

2.

(g) Sect. 22.

[5] See also the oath of abjuration, 6 Geo. 3. c. 53. The Declaration against Transubstantiation, 10 Geo. 4. c. 7. Affirmations of Quakers and Moravians, 9 Geo. 4. c. 32. 3. & 4 W. 4. c. 49. 1 & 2 Vict. cc. 5. 15. 77. Affirmations of Separatists, 3 & 4. W. 4. c. 82.

poyer: si moy eyde Dieu & les Seyntz." This is the form of the ancient oath of alligeance, or fidelity to the king, and as it is used at this day; and he that is minded to see the antiquity of it, may read thereof 7 Co. Rep. 7. Calvin's case, Spelman's Gloss. Titulo Fidelitas, which carry it up as high as king Arthur; more particularly it was established by the laws of the Confessor,(h) and by the laws of king William I. quod vide in Spicilegiis Seldeni ad Edmerum lege 52,(i) "Statuimus, ut omnes liberi homines fœdere & sacramento affirment, quod intra & extra universum regnum Angliæ Willielmo regi domino suo fideles esse volunt, terras & honores illius omni fidelitate ubique servare cum co & contra inimicos & alienigenas defendere."(k)

And herein the prudence of the Common law is observable; the ancient oath of alligeance, 1, was short, and plain, not entangled with long and intricate clauses or declarations, but the sense of it is obvious to the most common understanding; and yet, 2. it is comprehensive of the whole duty of the subject to his prince, and therefore hath obtained for above six hundred years in this kingdom; and if any difficulties should occur in the sense' or extent thereof, length of time and long experience and practice hath suf- [64] ficiently expounded it.

I shall subjoin some observables concerning this oath, which indeed explain that implied and virtual alligeance, whereof before.

i. By whom this oath is to be taken : It is to be taken by all persons above the age of twelve years, whether denizens or aliens, 2 Co. Instit. p. 121, except women, earls, prelates, barons, and men of religion, according to Britton, cap. 12. which exception is not to be absolutely and universally understood; for all persons above the age of twelve years are bound to take this oath of alligeance, except women, as shall be shown, but not in the same manner or place, as others; but because regularly this oath was to be taken in the leet, or at least in the sheriff's turn, which is in nature of a leet, where earls, barons, prelates, and men of religion were not bound to do their suit, therefore by the statute of Marlbr. cap. 10, is this exception added: but yet at other times and in other places men of religion and noblemen were to take it: as shall be shown.

It differs from the oath of fealty performed to the king by tenure, for that includes somewhat more, and somewhat less; and according to Britton cap. 68.(7) runs thus when performed to the king: "Ceo oyes vous bone gents qe jeo J. S. foy a nostre seignior le roy Edward porterai de ceo jour en auaunt de vie & de membre, de cors & de chateux, & de terrene honor, & les services qe a lui appendent de

(h) 1.35. but these laws are evidently spurious, and seem to be the composition of some lawyer after the reign of William II. Vide Hickesii Dissert. Epist. p. 95. and even in the best MS. copies of these laws the legendary account of king Arthur is omitted. (i) Vide Leg. Anglo-Sax. Edit. Wilkins. p. 228. Edit. Lambard, p. 170.

(k) Vide assisas Henrici regis factas apud Clarendon & renovatus apud Northampton, Hoveden, p. 314. Edit. Savil.

(4) § 479.