[§ 14. Of the Rights of Sovereigns.]

We shall now consider what duty is owing to the sovereign, and what is the proper punishment of disobedience. Every attempt to overturn this power is in every nation considered as the greatest crime, and is called high treason. It is to be observed that there is a great difference between treason in monarchies and treason in republics. In the one it is an attempt on the king’s person, and in the other on the liberties of the people, from whence we may see how the maxim of assassination came to be established in republics, and not in monarchies. It is the interest of monarchies that the person in authority be defended, whatever his title or conduct be, and that no person be allowed to enquire into them. The laws of monarchy are therefore unfavourable to the assassination of tyrants. In a republic the definition of a tyrant is quite clear. He is one who deprives the people of their liberty, levies armies and taxes, and puts the citizens to death as he pleases. This man cannot be brought to a court of justice, and therefore assassination is reckoned just and equitable. The present republican governments in Europe, indeed, do not encourage this maxim, because monarchies now set the fashion, and [other] government[s] copy their pattern. According to our present notions Oliver Cromwell’s assassination is most opprobrious, but it would have Edition: current; Page: [56] 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 consider 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, hostages, &c., or the refusing to deliver up garrisons, &c., to the government when they demand them. This is called high treason. Thirdly, laesa maiestas, 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 emperor’s statue, was punished with death1. Under Honorius, a conspiracy against any of the emperor’s ministers was high treason2.

The crimes accounted treason by the English law3 are the following. First, killing the king, wishing his death4, 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 Edition: current; Page: [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 such2. 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 prerogative, 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, agnus dei, or whatever might support his authority3, to support popish seminaries4, or conceal Edition: current; Page: [58] popish priests1. 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 Revolution 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 with 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., Edition: current; Page: [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 standard2 and the exportation of coin3. 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 felony8, 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, Edition: current; Page: [60] 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 subjecting every person who refused to ordain the king’s presentee, to the penalties of praemunire regem, i.e. to fortify the king against the Pope1; 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 matters2.

Beside these there are other offences called misprisions of treason, and are either positive or negative. Positive3 misprision of treason is the not revealing an attempt against the king’s person, his oldest daughter, or the Edition: current; Page: [61] heir of the kingdom. In like manner it is felony if you do not reveal any notice you receive of conspiracies and rebellions. Negative1 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 here2.

In the last place there are offences against the king called contempts, which are fourfold3. 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, contempt 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 permission5, even in a man of letters. Thirdly, contempt of the king’s person and government (of which many are guilty), as by saying he is indolent or cowardly, that he has broken the coronation oath, or to speak disrespectfully of his ministers6. These are never regarded at present, because the government 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 imprisonment Edition: current; Page: [62] 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.