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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 laesa 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, I, 1) says, “majestatis autem crimen illudest, quod adversus populum Romanum, vel adversus securitatem ejus committitur”; cf. Inst. 4, 18, 3, “lex Julia majestatis, quae 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 “laesa 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
isis States (e.g., the Transvaal, the law of which has been
d brought into painful importance by recent events) appear to 1m- recognise a somewhat similar distinction.*
tute With the distinction between perduellion and lese-majesty
* All may be compared that drawn by modern English law We between treason and treason-felony.
ious The crimen laesae majestatis resolves itself into: (1)
offences against the imperial person or dignity; (2) rvile offences against the external security of the State; (3) offences against justice and the public peace. The
the various offences falling under these heads will now be inder considered. as of (1) Offences against the imperial person or dignity.—In |3:33 D. 48, 4, 6, we read that “qui statuas aut imagines Imperatoris jam consecratas conflaverint, aliudve quid simile ay be admiserint, lege Julia majestatis tenentur.” This act law appears to have been punished as a kind of constructive aSO[l- insult to the Emperor. We may compare Stat. 5 Eliz., c. II, me of punishing as high treason “clipping, washing, rounding, or statis filing, for wicked gain’s sake, any of the money of this müß, realm,” and a case cited by Lord Mackenzie, of , 18. a man being executed at Edinburgh for suspending a }rém portrait of King James VI, from the gallows. But a man }ré! was not liable “qui statuas Imperatoris reprobatas and conflaverit” (D. 48, 4, 4, 1). In D. 48, 4, 5, certain acts rect are declared not to be treasonable; the exceptions, on f0m account of their trivial character, present a very ominous ), in appearance, and throw a gloomy light on the state of the Law of Treason under the later Empire; cleaning the aré $83 * Readers of the Heart of Midlothian will, perhaps, recall the distinction drawn by the learned Bartoline Saddletree when engaged in 00, laying down the law : “Perduellion is the warst and maist virulent kind Of of treason, being an open convocating of the king’s lieges against his of authority, and muckle warse than lese-majesty, or the concealment of a 3ril treasonable purpose.”
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. 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 ambush, 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 examicis hostes populi Romani
* 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.
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 reseript 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 memoriae 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,” (b) 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. 1, p. 606). Under a constitution of Marcus Aurelius criminal proceedings migh 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.).