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(a.) Compassing or imagining the death of the king, 25 Edw. 3. queen, or eldest son and heir.-Here the "king" is to be understood to mean the king de facto, though he be not the king de jure. On the other hand, the person rightfully entitled to the crown, if not in possession, is not within the statute. The " queen" referred to is the queen consort, the queen regnant being included in the term "king." But against the husband of the queen regnant treason cannot be committed.

It is the designing that constitutes the offence. But this design must be evidenced by some overt act, so that if there be wanting either the design, as in the case of killing the king by accident, or the overt act, as when the design has been formed, but laid aside before being put into execution, there is no treason.

What will constitute an overt act? Anything wil- Overt act. fully done or attempted by which the sovereign's life may be endangered; for example, conspirators meeting to consult on the means of killing the sovereign (a), or of usurping the powers of government (b); writings, if published, importing a compassing of the sovereign's death, and even words advising what would be an overt act will suffice as evidence of the design; but not so loose words which have no reference to any designed act (c).

(b.) Violating the king's wife, the king's eldest daughter 25 Edw. 3. unmarried, or the wife of the king's eldest son and heir. -By "violating" of course carnal knowledge is to be understood. The act is not divested of its treasonable character by the fact that the woman consents. In such a case both parties are guilty of treason. It has been said that the reason for making the violation of

(a) R. v. Vane, Kel. 15.

(b) R. v. Hardy, 1 East, P. C. 60.
(c) v. R. v. Gordon, Doug. 593.

D

25 Edw. 3. What consti

war.

these particular persons treason, was to guard the bloodroyal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious (d). But obviously this explanation is not supported by all the instances chosen.

(c.) Levying War against the Sovereign.-To constitute tutes a levying a levying there must be an insurrection, there must be force accompanying that insurrection, and it must be for an object of a general nature (e). But there need not be actual fighting: nor is the number of persons taking part in the movement material.

Levying, direct

or construc

tive.

25 Edw. 3.

It is

The levying is either direct or constructive. direct "when the war is levied directly against the Queen or her forces, with intent to do some injury to her person, to imprison her, or the like" (ƒ); for example, a rebellion to depose her, delivering up the sovereign's castle to the enemy. Constructive treason is of a very different character, the end of the movement being rather the purification of the government than its overthrow. It is committed for the purpose of effecting innovations of a public and general nature by an armed force. Thus it is treason to attempt by force to alter the religion of the state, or to obtain the repeal of its laws. So it is treason to throw down all enclosures, open all prisons; but not if the attempt be to break down a particular enclosure, or deliver a particular person from prison, because in these latter cases the design is particular and not general (g).

(d.) Adhering to the Sovereign's enemies.As in the three former cases, this offence must be evidenced by some overt act, for example, to raise troops for the enemy, or to send them money, arms, or intelligence.

(d) 3 Inst. 9.

(e) R. v. Frost, 9 C. & P. 129.
(f) 1 Hale, P. C. 131, 132.
(g) R. v. Dammaree, 8 St. Tr. 218.

By the "sovereign's enemies" are meant the subjects. of foreign powers with which he is at war. It appears, therefore, that a British subject, though in open rebellion, can never be deemed an enemy of the sovereign, so as to make assistance rendered to him treason within this branch of the statute (h).

(e.) Slaying the Chancellor, &c.-It will be observed 25 Edw. 3. that the statute applies only to the actual killing, not a mere attempt: to those judges only when actually acting in that capacity, and not at other times, and not to barons of the exchequer.

treason.

Counterfeiting the great or privy seal is no longer Acts no longer treason, but simple felony (i). It will be treated of under the title "Forgery" (j). So, also, coining offences are not now treason (k).

Thus was the common law of treason declared by the statute of Edward III. This statute, with certain qualifications, is still in force; in certain cases new statutes specially declaring that their provisions shall not affect anything contained in the statute (7).

additions to

treasonable

Subsequently, from time to time, parliament made Subsequent other offences treason-notably several in the reign of the number of Henry VIII., in the matter of religion. It also took acts. upon itself the authority to declare certain acts, after they had been committed, to be treason (thus trespassing into the province of the judge (m)); as, for example, stealing cattle by Welshmen. All these new treasons, however, were abrogated in the reign of Edward VI. and Mary.

Then, again, the statute of

Edward III. was restored to its place as the standard of

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Procedure in prosecutions for treason.

Limitation as to time.

Copy of indictment, &c.

treason; but additions to the number of treasonable offences have since been made by the legislature. The following still remain :-

i. Endeavouring (to be evidenced by some overt act) to prevent the person entitled under the Act of Settlement from succeeding to the crown (n).

ii. Maliciously, advisedly, and directly, by writing or printing, maintaining that any other person has any right or title to the crown, otherwise than according to the Act of Settlement, or that the sovereign with the authority of parliament may not make laws and statutes to bind the crown and descent thereof (0).

iii. Compassing, imagining, inventing, devising, or intending death or destruction, or any harm tending to death or destruction, maim or wounding, imprisonment, or restraint of the person of the sovereign (p).

There are some points in connection with the procedure in prosecutions for treason, which may be noticed here more conveniently than in the second part.

In the first place, no prosecution for treason can take place after three years from the commission of the offence, if it be committed within the realm, unless the treason consist of a designed assassination of the sovereign (9).

The prisoner indicted for treason (or misprision of treason) is entitled to have delivered to him, ten days before the trial, a copy of the indictment, and a list of the witnesses to be called, and of the petty jurors, to

(n) 1 Anne, st. 2, c. 17, 8. 3.

(0) 6 Anne, c. 7.

(p) 36 Geo. 3, c. 7, s. I, confirmed by 57 Geo. 3, c. 6, s. 1. The former statute also denominated certain other acts treason; but all these offences, with the exception of those against the person of the sovereign noticed above, were converted into felonies by 11 & 12 Vict. c. 12, s. 1. v. Treason-Felony, p. 55.

(q) 7 & 8 Wm. 3, c. 3.

enable him the better to make his defence (r). But the provision does not apply to cases of treason in compassing and imagining the death of the sovereign (or misprision of such treason) where the overt act is an act against the life or person of the sovereign. In such cases the prisoner is indicted, arraigned, and tried in the same manner and upon like evidence as if he stood charged with murder, though, if he is found guilty, the consequences are those of treason (s).

One overt act is sufficient to prove the treason, but Overt act. any number may be mentioned in the indictment.

Το

this overt act, or else to it and another of the same treason, there must be two witnesses, unless the accused confesses willingly (t).

defence.

The prisoner may make his defence by counsel, not Prisoner's more than two, to be named by him, and assigned by the court or judge. He has the exceptional privilege of addressing the jury, notwithstanding that his counsel have delivered their speeches (u).

for treason.

Formerly the punishment for treason was of a most Punishment barbarous character. Males were drawn on a hurdle to the place of execution, and hanged, and cut down while. alive; afterwards they were disembowelled, the head was severed from the body, the body quartered, and the quarters placed at the disposal of the sovereign. By a wholesome statute, this proceeding was deprived of its more outrageous features, it being provided that beheading might be substituted by the sovereign, or the capital sentence might be altogether remitted (x). By the same Act the punishment of females, formerly burning alive, was changed to hanging. Now, by the

(r) 7 Anne, c. 21, s. II; 6 Geo. 4, c. 50, s. 62.

(8) 39 & 40 Geo. 3, c. 93; 5 & 6 Vict. c. 51, s. I.

(t 7 & 8 Wm. 3, c. 3, ss. 2, 4; except in cases tried, as above, as for murder.

(u) R. v. Collins, 5 C. & P. 305.

(x) 54 Geo. 3, c. 146.

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