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so in all cases of treason; cf. C. 9, 8, 6, “ from the moment of conceiving the criminal intention, he is, by virtue of the criminal conception, worthy of punishment."
Dr. Moyle is of opinion that the same principle applied to all crimes, and cites in support of his view the wellknown rescript of Hadrian, “in maleficiis voluntas spectatur, non exitus” (Digest, ad legem Corneliam, 48, 8, 14).
It was treasonable to procure another to take an oath against the Commonwealth (D. 48, 4, 4, pr. C. 9, 8, 5, pr.), or to release from prison a person who had pleaded guilty to a criminal charge (D. 48, 4, 4, pr.); again, a person was guilty of treason who “ sciens falsum conscripsit vel recitavit in tabulis publicis ” (D. 48, 4, 2).
Punishment.—The penalty for treason was death and memoriæ damnatio (Inst. 4, 18, 3). The latter (which may be compared to, and may possibly have suggested the attainder of English law) was retrospective in its operation and involved (a) forfeiture of all the property of the traitor from the moment his mind first conceived the criminal design, and consequent avoidance of all intermediate sales and alienations,* (6) avoidance of intermediate emancipations and other civil acts-even payments made to the criminal by a debtor were void ; (c) “rescission of the criminal's will, and donationes inter virum et uxorem”; (d) certain disabilities imposed upon his children (v. C.9, 8, 5, 6, and 8, and Moyle, Inst. Just. I, p. 606). Under a constitution of Marcus Aurelius criminal proceedings might be instituted even after the death of the traitor, his memory branded with infamy, and his property confiscated to the fiscus (C. 9, 8, 6, ib. 7, pr. ib. 8 pr.).
* So in English law attainder worked a forfeiture of all the lands of the traitor “which he had at the time of the offence committed, or at any time afterwards. ... This forfeiture relates backwards to the time of the treason committed; so as to avoid all intermediate sales and incumbrances, but not those before the fact " (Blackstone, Comm. IV.).'
Reference may also be made to the infamous constitution of Arcadius and Honorius (C. 9, 8, 5, I); "as to the children of the traitor, to whom with imperial clemency we specially concede their lives (for they ought by rights to perish by the same punishment as their father, in whom we have reason to dread the likeness of their father's, i.e., of an ancestral crime), they are to be debarred from succeeding to their mother, their grandfather, or any other relation, or from taking under the will of a stranger; they are to be for ever beggars and paupers, the infamy of their father is ever to accompany them, they are to be incapable of attaining to any office or of taking any oath ; in short, their condition is to be such, that, living in a state of squalid poverty, life may be a punishment to them, and death a consolation.”
The daughters of the criminal, however, were allowed to take one fourth of what would otherwise have come to them under the will or intestacy of their mother (C. 9, 8, 5, 3). The widow of the criminal was allowed her dos and her usufruct in the donatio propter nuptias; the remainder was forfeited to the exchequer, after deducting a fourth of their share in favour of the daughters (C. 9, 8, 5, 5).*
It appears from a passage in Ulpian (cited in D. 48, 4, 11) that it was only where the treason was of the more malignant species known as “perduellio," that proceedings could be commenced or carried on after the death of the traitor; “ plane non quisquis legis Juliæ majestatis reus est, in eadem conditione est, sed qui perduellionis reus est, hostili animo adversus rempublicam vel principem animatus; ceterum si quis ex alia causa legis Juliæ majestatis reus sit, morte crimine liberatur.”
* In English Law the wife's jointure was not forfeited for the treason of her husband; but her dower was, by virtue of Stat. 5 and 6, Edw. VI., C. II. The dower and jointure of English law correspond to the donatio propter nuptias of Ronian law, rather than to the dos.
No distinction was recognised between principals and accessories (C. 9, 8, 5, 6); herein the Roman and the English law agree.
Adjective Law.-Although the discussion of criminal procedure under the Empire is scarcely within the scope of the present article, some exceptions to the ordinary rules governing criminal prosecutions may here be noticed. In the first place, infamous persons (such e.g., as those convicted in a judicium publicum, gladiators, actors, and pimps) could appear to accuse for treason (D. 48, 4, 7, pr.), though ordinarily debarred from prosecuting (D. 48, 2, 4). Also soldiers, “nam qui pro pace excubant, magis magisque ad hanc accusationem admittend sunt” (D. 48, 4, 7, 1). The slave or freedman of the traitor might appear to prosecute, or might be put to torture with the view of extorting evidence (D. 48, 4, 7, 2 ; C.9, 8, 6–7, 148, 1). Women were good accusers and witnesses, Papinian reminding us that it was a woman named Fulvia who disclosed the conspiracy of Catiline (D. 48, 4, 8). Even the accuser might be tortured, “si aliis manifestis indiciis accusationem suam non potuerit comprobare” (C. 9, 8, 3), and no plea of office or rank exempted a person, whether defendant or witness, from this mode of examination; in the case of treason alone-so runs the rescript of Valentinian, Valens, and Gratian-the condition of all is the same (C. 9, 8, 4). The constitution of Arcadius and Honorius (C. 9, 8, 5, 7) promises liberal rewards to all who, “fired with the desire of true glory," reveal a treasonable conspiracy; accomplices, if they turned “ King's evidence " received a free pardon. Even the severe penalties inflicted upon persons preferring calumnious accusations could do little to counteract the effects of an enactment, holding out so strong an inducement to perjury and extortion.
T. W. MARSHALL.
The Jameson Case. The Court in this case dealt with one or two points of interest from a purely legal point of view. In the first place, there was the question as to the effect of sect. 3 of the Foreign Enlistment Act, 1870, that “this Act shall come into “ operation in the United Kingdom immediately on the “passing thereof, and shall be proclaimed in every British “ possession by the Governor thereof as soon as may be
after he receives notice of this Act, and shall come into “ operation in that British possession on the day of such “ proclamation, and the time at which this Act comes into " operation in any place is, as respects such place, in this “ Act referred to as the commencement of this Act.” The Act was duly proclaimed in Cape Colony immediately after its being passed, but no specific proclamation had ever been made in British Bechuanaland or in Barralongland where Mafeking and Pitsani Pitlogo were respectively situated. It was therefore contended that these places from which the two branches of the expedition started were not subject to the Act. The Court held, however, that the Act had been indirectly “proclaimed” in the territories in question at the time of their annexation, by virtue of proclamations which had in fact been made, expressly extending to them the Law of Cape Colony. Lord Russell in his summing up said :-—" Our view is that the “ Act may be put into operation by any means by which “ constitutionally the Law itself may be made the Law of “ the place where the Law might be applied by proclama
Another plea raised by the defence was that Pitsani Pitlogo was not a “ British Possession” at all. The evidence shewed that it was in the Barralong country, which had become a British “Protectorate" under a Treaty made in 1884 with the chief Montsioa. There was no express cession of territory, but it had ever since been administered under British authority, and Cape Law had by proclamation been applied to it. The Court directed the jury that the territory was under British dominion and the jury found this as a fact. Lord Russell made some interesting remarks upon the nature of “Protectorates,” and pointed out that “the question is whether, by “ whatever name it is called, the Crown exercised and “ assumed by its representatives sovereign dominion and " authority.”*
* Times' L.R. XII., p. 588.
As regards the application of the Act to the expedition, Lord Russell deemed that “in point of Law, it is not the “less an expedition against the dominions of a friendly “ State even if it was not aimed at overthrowing the “Republic or was prompted by philanthropic or humane “motives or aimed at obtaining some reform of Law.”+
Contraband of War. A question of indirect interest to students of International Law arose in the case of Nobel's Explosives Co. v. Jenkins and Co., 1896, 2 Q.B. 326. The plaintiffs consigned dynamite in the defendants' ship under a bill of lading by which it was to be delivered “at Yokohama or so near “thereunto as she may safely get.” The bill contained the usual exception of “restraint of princes.” On arrival at Hong Kong, owing to the outbreak of the war between China and Japan, the master landed the goods. In an
* Times' L.R. XII., p. 590.
+ Times' L.R. XII., p. 593. [The point suggested at p: 264 of Vol. 21 of this Magazine was not i aised. -Ed.],