Page images

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, I, I), 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 coetus conventusve fiat, hominesve ad seditionem convocentur” (D. 48, 4, I, I); 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

, and

ct of

wwing ng to ig or el to rting irmy

the brity




ory in

my inst

* 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 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. 1, 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 r.ot those before the fact ” (Blackstone, Comm. IV.).



[ocr errors]

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

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, 1–8, 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-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.








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



[ocr errors]

Another plea raised by the defence was that Pitsani Pitlogo was not a 6. British Possession

at all. The


* Times' L.R. XII., p. 588.

« PreviousContinue »