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VI.-THE LAW OF TREASON UNDER THE
M HE conception of Treason formed by the Roman
lawyers, as it appears in the titles of the Digest and the Code, has exercised considerable influence, not only upon the jurisprudence of those modern European countries that have risen upon the ruins of the Roman Empire, but upon the law of England as well. It is the object of the present article to discuss the nature of the crime of Treason under the law of the later Roman Empire, to examine the extent of its influence upon modern law, especially the law of England, and to indicate some of the principal points of difference and resemblance.
The law of Treason (crimen læsæ majestatis) was put upon a final statutory basis by the lex Julia (temp. Julius Cæsar), it having, according to Dr. Moyle, previously rested “partly on usage, partly on the Twelve Tables, and a lex Cornelia.” The penalty under the lex Julia was aquæ et ignis interdictio (v. Cicero, Philipp. 1, 9“...... legibus Cæsaris, quæ jubent ei, qui de vi, itemque ei, qui majestatis damnatus sit, aqua et igni interdici”); though we are informed (Moyle, Just. Inst. 1, p. 606) that the older penalty of death was restored in the reign of Tiberius.
The lex Julia majestatis may be compared with the famous Statute of Treasons (25 Edw. III., c. 2). It fills the same place in Roman criminal jurisprudence as is occupied in English law by the last-named statute, and, like the Statute of Treasons, forms a sort of stock upon which a collection of imperial constitutions and decisions of lawyers-sometimes concealing their origin under the pretended authority of the statute-was grafted at a later period.
The conception of treason formed by the Roman jurists was considerably more comprehensive than that of English law. It embraced not only the more important heads of Treason, falling within the Statute of Edward III., but many others; in fact, to obtain an idea of the law under the later Roman Empire, we should read into our own Statute of Treasons the various species of constructive and statutory treason, devised by servile judges and lawyers, or enacted by equally servile Parliaments.
It is proposed in the present article to examine first the substantive Law of Treason, adverting afterwards—under the head of adjective law-to those exceptional rules of procedure which characterised prosecutions for læsa majestas.
Substantive Law.-Two preliminary observations may be made: First, both the Roman and the English law content themselves rather with an enumeration of treasonable acts, than with an adequate definition of the crime of treason itself; Ulpian (in D. 48, 4, 1, 1) says, “majestatis autem crimen illud est, quod adversus populum Romanum, vel adversus securitatem ejus committitur"; cf. Inst. 4, 18, 3,"lex Julia majestatis, quæ in eos, qui contra Imperatorem vel rempublicam aliquid moliti sunt, suum vigorem extendit.” These definitions, however, are so vague and inadequate as scarcely to deserve the name, and a correct idea of the nature of the crime can only be obtained from the titles of the Corpus Juris (Dig. 48, 4; Cod. 9, 8), in which it is discussed in fuller detail.
Secondly, while all varieties and degrees of treason are included under the generic term “majestas" or "læsa majestas,” treason of the more heinous complexion, consisting of some direct attempt upon the Emperor or the Commonwealth, was distinguished by the name of “perduellio ” (D. 48, 4, 11). The laws of several modern
States (e.g., the Transvaal, the law of which has been brought into painful importance by recent events) appear to recognise a somewhat similar distinction.*
With the distinction between perduellion and lese-majesty may be compared that drawn by modern English law between treason and treason-felony. · The crimen læsæ majestatis resolves itself into: (1) offences against the imperial person or dignity; (2) offences against the external security of the State ; (3) offences against justice and the public peace. The various offences falling under these heads will now be considered.
(1) Offences against the imperial person or dignity.-In D. 48, 4,6, we read that “ qui statuas aut imagines Imperatoris jam consecratas conflaverint, aliudve quid simile admiserint, lege Julia majestatis tenentur.” This act appears to have been punished as a kind of constructive insult to the Emperor. We may compare Stat. 5 Eliz., c. II, punishing as high treason “clipping, washing, rounding, or filing, for wicked gain's sake, any of the money of this realm," and a case cited by Lord Mackenzie, of a man being executed at Edinburgh for suspending a portrait of King James VI. from the gallows. But a man was not liable “qui statuas Imperatoris reprobatas conflaverit” (D. 43, 4, 4, 1). In D. 48, 4, 5, certain acts are declared not to be treasonable; the exceptions, on account of their trivial character, present a very ominous appearance, and throw a gloomy light on the state of the Law of Treason under the later Empire ; cleaning the statues of the Emperor, when they had become old and dirty, was expressly declared not to amount to treason ; moreover, a person did not commit treason by selling the as yet unconsecrated busts of the Emperor, or by throwing a stone and accidentally hitting his statue.
* Readers of the Heart of Midlothian will, perhaps, recall the distinction drawn by the learned Bartoline Saddletree when engaged in laying down the law : “ Perduellion is the warst and maist virulent kind of treason, being an open convocating of the king's lieges against his authority, and muckle warse than lese-majesty, or the concealment of a treasonable purpose.”
Mere hasty and unconsidered words were not to be construed as treasonable (D. 48, 4, 7, 3). A famous rescript of Theodosius, Arcadius, and Honorius (C. 9, 7), may be quoted in this connection; “if anyone, incapable of modesty and a stranger to shame, has thought fit to level wicked and wanton abuse against our name, and, turbulent with drunkenness, has been a traducer of our age, it is not our desire that he should be punished or suffer any harsh or severe treatment, since, if his conduct is to be attributed to levity, it only merits contempt; if to madness, it is worthy of pity ; if to malice, it should be pardoned.” In English law abusive words "amount only to a high misdemeanour, and no treason,” though made treasonable by an Act of Henry VIII., repealed in the reign of Mary.
(2) Offences against external security.—The following offences (inter alia) amounted to treason :-Conspiring to take up arms against the Commonwealth, corresponding or holding any communication with, or giving any counsel to the enemies of the Commonwealth (D. 48, 4, 1, 1); deserting the Roman army, or going over to the enemy's army (D. 48, 4, 2); improperly surrendering a camp to the enemy, or levying war without the Emperor's authority (D. 48, 4, 3). Various other kinds of hostile or traitorous conduct are enumerated, such as leading the army of the Roman people into an ambushı, or betraying it to the enemy, preventing the Roman arms from gaining a victory (cujus dolo malo factum dicetur, quo minus hostes in potestatem populi Romani veniant), supplying the enemy with provisions, arms, &c., exciting friendly States against the Commonwealth* (utve ex amicis hostes populi Romani fiant, cujusve dolo malo factum erit, quo rex exteræ nationis populo Romano minus obtemperet) (D. 48, 4, 4. pr).
Conspiring to kill hostages, without the authority of the Emperor, amounted to treason (D. 48, 4, 1, 1), either because it provoked retaliation on the part of the enemy, or because it was regarded as a usurpation of the royal prerogative.
(3) Offences against justice and the public peace.—The following offences amounted to treason : Entering into a conspiracy “quo armati homines cum telis lapidibusve in urbe sint, conveniantve adversus rempublicam, locave occupentur vel templa, quove cotus conventusve fiat, hominesve ad seditionem convocentur” (D. 48, 4, 1, 1); conspiring to murder a magistrate; (ibid.) so under the statute of Edward III. it is treason “if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places doing their offices.” By Stat. 7 Anne, C. 21, it is also high treason to kill any of the lords of session or lords of justiciary in Scotland, sitting in judgment. Reference may also be made to a constitution of Arcadius and Honorius, making it treason to plan the murder of members of the imperial council (consistorium), or of other high officers of State (C. 9, 8, 5, pr.).
It will be observed that in the constitution referred to the mental act of compassing and imagining is expressly put upon the same footing as the consummated crime ; "eadem enim severitate voluntatem sceleris, qua effectum puniri jura volnerunt”; indeed, this appears to have been
* Compare the provisions of the Treason-Felony Act 11 & 12 Vict., C. 12, making it felony to stir any foreigner with force to invade this realm, or any of the Queen's Dominions.