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1 ARTICLE 55.

WHAT AMOUNTS TO IMAGINING THE QUEEN'S DEATH.

2 Every one is deemed to have formed an intention to put the Queen to death who forms and displays by any overt act an intention,

(a.) to depose the Queen from the exercise of her royal authority in any part of her dominions; or

(b.) to levy war against the Queen either in the first or in the second of the senses assigned to that expression in Article 56; or

(c.) to instigate any foreigner with force to invade this realm or any other of the Queen's dominions; or

(d.) who conspires to levy war against the Queen in the first or second, but not in the third, of the senses assigned to that expression in Article 56.

3 ARTICLE 56.

HIGH TREASON BY LEVYING WAR.

Every one commits high treason who levies war against the Queen in any of her dominions.

1 S. D. Art. 52.

2 [Foster's Discourse of H. T. ch. i, ss. 1-5, pp. 193-7; ch. ii, ss. 3, 4, 6, pp. 211-13; Draft Code, s. 75.]

3S. D. Art. 53.

4 [25 Edw. 3, st. 5, c. 2; Foster's Discourse on H. T. ch. ii, as to (a) see Foster, pp. 208 and 209; as to (b.) see s. 3; and see 36 Geo. 3, c. 7, s. 1, which, whilst in force, was a statutory recognition of Foster's doctrine: as to (c.) s. 4; as to the proviso, see 25 Edw. 3, st. 5, c. 2, and Foster, pp. 209-10; see also Note V., and Draft Code, s. 75. In R. v. Gallagher and others, 15 Cox, 291, it was held by Coleridge, C.J., Brett, M.R., and Grove, J., that war might be levied by a few persons using, for treasonable purposes, explosives calculated to do great damage. I held the same at Liverpool in the summer of 1883, in R. v. Deasy, 15 Cox, 334]. It has, however, been doubted whether it is treason to levy war against the Queen in one of her colonies or dependencies (1 Hale, c. xiv, 130-154. Finlason's Martial Law 2, note (b.) 190 note (b.); but see also pp. 12, 13.) The statute of Edward which was declaratory of the common law (Arch. P. & E. 20th Ed. 830) would, I think be held to be in force in Canada if the question were ever distinctly raised. See Art. 2 and R. S. C. c. 146, s. 9. It may, I think, be taken to be settled by the case of Louis Riel (L. R. 10 App. Cas. 675), who was tried, convicted and executed for levying war against the Queen at Duck Lake and other places in the North-West Territories of Canada and within

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The expression "to levy war means

(a.) attacking in the manner usual in war the Queen herself or her military forces, acting as such by her orders, in the execution of their duty;

(b.) attempting by an insurrection of whatever nature by force or constraint to compel the Queen to change her measures or counsels, or to intimidate or overawe both Houses or either House of Parliament;

(c.) attempting by an insurrection of whatever kind to effect any general public object.

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But the expression "to levy war against the Queen does not include any insurrection against any private person for the purpose of inflicting upon him any private wrong, even if such insurrection is conducted in a warlike manner.]

ARTICLE 57.

LEVYING WAR BY SUBJECTS OF A STATE AT PEACE WITH HER MAJESTY-SUBJECTS ASSISTING.

1

Every subject or citizen of any foreign state or country at peace with Her Majesty, who

the realm, that a person may, in Canada, be guilty of treason by levying war against the Queen. The words in italics were, no doubt, inserted in the information from abundant caution, and not because they were thought necessary to its validity. It is clear of course that Canada is not part of the realm (Williams v. Nunn, 1 Taunt. 270; 1 Hale. c. xiv, 155; Opinion of the Attorney and Solicitor General; Forsyth's Con. Law (1757) 2,3); but it does not follow that no English statute that by its terms is limited to the realm will apply to a colony. That would obviously be the case with respect to statutes passed after England commenced to establish colonies or plantations, for the limitation would show the intention of Parliament that the statute should not apply to such colonies or plantations. But in respect of statutes passed before the era of colonies it is submitted that the true rule is that the statute applies if it is of a general character and applicable and necessary to the condition and circumstances of the people of the colony, although in the form in which it was enacted it was limited to the realm. Especially would this, I think, be the case, where the statute was, as was the statute of Edward, declaratory of the common law. (See O'Brien v. R. 3 Cox, 360.) Then, too, it is to be observed that the Parliament of Canada has, in legislating upon the subject of treason, dealt with this statute as if it were in force in Canada. (R. S. C. c. 146, s. 9).

1 R. S. C. c. 146, ss. 6. 7, 8. The offender may be tried before a Superior Court of competent jurisdiction, or by a Militia General Court Martial. The latter court, but not the former, has a discretion as to the punishment to be awarded. An offender is within the

(a.) is or continues in arms against Her Majesty within Canada; or

(b.) commits any act of hostility therein; or

(c.) enters Canada with intent to levy war against Her Majesty, or to commit any felony therein for which any person would, in Canada, be liable to suffer death; and

Every subject of Her Majesty within Canada who

(a.) levies war against Her Majesty in company with any of the subjects or citizens of any foreign state or country at peace with Her Majesty; or

(b.) enters Canada in company with any such subjects or citizens with intent to levy war against Her Majesty or to commit any such felony therein; or

(c.) with intent to aid and assist, joins himself to any person who has entered Canada with intent to levy war against Her Majesty, or to commit any such felony therein,

Is guilty of felony and liable to suffer death.

1 ARTICLE 58.

HIGH TREASON BY ADHERING TO THE QUEEN'S ENEMIES.

2

[Every one commits high treason who, either in the realm or without it, actively assists a public enemy at war with the Queen. Rebels may be public enemies within the meaning of this Article.

statute if he is present and acting with those who are armed, even though he is not armed; R. v. Slavin, 17 U. C. C. P. 205. See also R. v. McMahon, 26 U. C. Q. B. 195: R. v. Lynch, 26 U. C. Q. B. 208; R. v. School, 26 U. C. Q. B. 212; R. v. Magrath, 26 U. C. Q. B. 385. 1 S. D. Art. 54.

2 [25 Edw. 3, st. 5, c. 2, as explained by Hale, 1 P. C. 159-70. An officer betraying his post is a traitor at common law, though such offences are usually dealt with under martial law; see 1 Hale, 168. I suppose a deserter in the field who joins the enemy commits high treason as well as a military offence. Draft Code, s. 75.] R. S. C. c. 146, s. 2; 2 & 3 Anne, c. 20, s. 34; 44 & 45 Vict. c. 58, s. 4 (3) (4).

ARTICLE 59.

ADHERENCE TO A DE FACTO KING NOT TREASON.

2 [No person who attends upon the king and sovereign lord of this land for the time being, in his person, and does him true and faithful service of allegiance in the same, or is in other places by his commandment in his wars within this land or without, is for any such act guilty of treason (even if the king de facto should not be king de jure).

4

3 ARTICLE 60.

KILLING THE KING'S WIFE OR SON.

Every one commits high treason who forms and displays by any overt act an intention,

(a.) to kill the wife of a king regnant; or,

(b.) to kill that son of a king or queen regnant who is for the time being heir-apparent to the king or queen.

5 ARTICLE 61.

WHEN WORDS ARE TREASON.

"The speaking of words expressive of the intentions above mentioned is not an overt act within the meaning of Articles 54, 55 and 60.

The writing of such words is such an overt act.

The speaking or writing of words accompanied by or explanatory of conduct connected with the execution of such intention is such an act.

The speaking of words of advice, consultation, or com

IS. D. Art. 55.

2 [11 Hen. 7, c. 1: and see 6th Rep. C. L. C. p. 23].

3 S. D. Art. 56.

[25 Edw. 3, st. 5, c. 2, as explained in 1 Hale, P. C. 124-129. Draft Code, s. 75].

5 S. D. Art. 57.

[Foster, 200-20].

[mand, or otherwise connected with the execution of such intention, is such an act.

1 ARTICLE 62.

VIOLATING THE KING'S WIFE, ETC.

2 Every one commits high treason who violates (whether by her own consent or not)

the wife of a king regnant; or

that daughter of the king or queen regnant who at the time is his or her eldest daughter, if she never has been married, and (perhaps) if she is a widow, and (probably) if her father or mother is alive; or

the wife of that son of a king or queen regnant who for the time being is the heir-apparent of such king or queen.

3 ARTICLE 63.

PUNISHMENT FOR TREASON.

Every one who is convicted of high treason must be sentenced to be hanged by the neck until he is dead.

1 S. D. Art. 58.

2 [25 Edw. 3, st. 5, c. 2, as explained by Hale, Draft Code, s. 75.] As a matter of historical interest only it may be observed that every one commits high treason who slays the Chancellor of England, or the treasurer, or the king's justices of the one bench or the other, justices in eyre or justice of assize being in their places doing their offices; and that by 13 Eliz. c. 2, and other statutes of the same and succeeding reigns a number of acts, such as putting in ure a Popish Bull, were made high treason. Seel Hawk. c. 2, s. 95 et seq: S. D. Art. 59 and note; 2 Hist. Cr. Law, 251 et seq.

3 S. D. Art. 60, which has the following exception and note:-[But Her Majesty may (if the offender is a man) direct by a warrant signed by one of her principal Secretaries of State, that instead thereof such offender's head shall be severed from his body whilst alive. For common law judgment see Chitty, Crim. Law, 365-6. It was modified by 30 Geo.3, c. 48, as to women (who before that Act were liable to be burnt alive for treason) as to men by 54 Geo. 3, c. 146, and 33 & 34 Vict. c. 23, s. 31. The odd exception made in the parenthesis arises thus: the Act 30 Geo. 3, c. 48, applies only to women, and the 54 Geo. 3, c. 146, only to men. The proviso as to beheading occurs in the second only. The Act of 1870 repeals parts of the Acts of 1790 and 1814. It would seem, however, that the power exists at common law. See Foster 269-70 The Act (31 & 32 Vict. c. 24) for executing sentence of death within gaols does not apply to cases of treason. Indeed ss. 2 and 16 together appear to exclude its operation in such cases. An execution for treason would, therefore, it would seem, have to be public. Sir E. Coke's Scriptural reasons for the punishment of treason may be seen in 3 Inst. 211. Cf. Draft Code, s. 75]. See R. S. C. c. 181, s. 10 which is general and not limited to cases of murder.

R. S. C. c. 181, s. 5.

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