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 53; 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 53.

ARTICLE 53.

HIGH TREASON BY LEVYING WAR.

1Every one commits high treason who levies war against the Queen in any of her dominions.

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.

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.

125 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.

1

ARTICLE 54.

HIGH TREASON BY ADHERING TO THE QUEEN'S ENEMIES.

1 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.

ARTICLE 55.

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].

ARTICLE 56.

KILLING THE KING'S WIFE OR SON.

3 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.

4

ARTICLE 57.

WHEN WORDS ARE TREASON.

The speaking of words expressive of the intentions above mentioned is not an overt act within the meaning of Articles 51, 52, and 56.

125 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.

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

325 Edw. 3, st. 15, c. 2, as explained in 1 Hale, P. C. 124-129. Draft Code, s. 75.

4 Foster, 200-20.

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 intentions is such an act.

The speaking of words of advice, consultation, or command, or otherwise connected with the execution of such intentions, is such an act.

1

ARTICLE 58.

VIOLATING THE KING'S WIFE, ETC.

1 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.

ARTICLE 59.

KILLING THE CHANCELLOR, ETC.

2 Every one commits high treason who slays the chancellor,

125 Edw. 3. st. 5, c. 2, as explained by Hale. Draft Code, s. 75.

It may be permissible to suggest (as mere matter of curiosity) a doubt whether this would now apply to all the judges of the Supreme Court or only to those who are not members of the Chancery Division (25 Edw. 3, st. 5, c. 2). It is enacted by 13 Eliz. c. 2, that every one commits high treason who uses, or puts in use, in any place within this realm, or in any of the Queen's dominions, any bull, writing, instrument of absolution or reconciliation obtained from the Bishop of Rome to those who will be contented to forsake the due obedience to the Queen and to yield and subject themselves to the authority of the Bishop of Rome, or who willingly receives absolution or reconciliation under any such instrument. This enactment is printed in the Revised Statutes, but by 9 & 10 Vict. c. 59, it is repealed so far only as the same imposes the penalties of punishments therein mentioned. Whether the effect of this is to make the using of such bulls a treason which cannot be punished, I do not know, nor does it much matter. As the 9 & 10 Vict. c. 59, further provides that the repeal of the penalty is not to make the forbidden acts lawful, it is impossible to be quite sure that doing them would not be a statutory misdemeanor. As to which see 6th Rep. C. L. C. pp. 35-41. I know not why 13 Eliz. c. 2, was not repealed simply.

or the treasurer, or the king's justices of the one bench or the other, justices in eyre or justice of assize, and all other justices assigned to hear and determine being in their places doing their offices.

1

ARTICLE 60.

PUNISHMENT FOR TREASON.

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

ARTICLE 61.

ALL PRINCIPALS IN TREASON.

2 Every person who in the case of felony would be an accessory before or after the fact is in the case of high treason a principal traitor, but a person who knowingly comforts or receives a traitor so far partakes of the nature of an accessory that he cannot be tried till the principal is convicted.

4

ARTICLE 62.

TREASONABLE FELONIES.

Every one is guilty of felony, and is liable upon conviction

1 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 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.

2 Foster, 343, and see 341-6.

1 Hale, P. C. 238; Foster, 345-6; and see 2 Hist. Cr. Law.

11 Vict. c. 12, preamble and s. 3 (redrawn); Draft Code, s. 79

thereof to penal servitude for life as a maximum punishment, who 1forms any of the intentions hereinafter mentioned, and expresses such intention either by any overt act or by publishing any printing or writing; 2 that is to say,

(a.) An intention to depose the Queen, her heirs or successors, from the style, honour, and royal name of the Imperial Crown of the United Kingdom or of any other of her Majesty's dominions or countries; or

(b.) An intention to levy war against her Majesty, her heirs or successors, within any part of the United Kingdom in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both houses or either house of Parliament; or

(c.) An intention to move or stir any foreigner with force to invade the United Kingdom or any other her Majesty's dominions or countries under the obeisance of her Majesty, her heirs and successors.

3 A conspiracy to effect any of the said intentions is an overt act within the meaning of this Article.

ARTICLE 63.

INCITING TO MUTINY.

Every one commits felony, and is liable upon conviction thereof to penal servitude for life as a maximum punishment, the maximum alternative term of imprisonment being three years, who maliciously and advisedly endeavours

(a.) to seduce any person serving in her Majesty's forces by sea or land from his duty and allegiance to her Majesty; or (b.) to incite or stir up any such person to commit any

1 "Shall . . . compass, imagine, invent, devise, or intend."

2 The words "or by open advised speaking" occur in the Act, but by s. 4 it is provided that no person shall be prosecuted for offences so expressed unless the warrant for the offender's apprehension in issued "within two years next after the passing of the Act," i.e. before April, 22, 1850. The words, I suppose, are therefore spent, although they are printed in the Revised Statutes.

Mulcahy v. R., L. R. 3 H. L. 306.

437 Geo. 3, c. 70, s. 1. As to the punishment, see 7 Will. 4 & 1 Vict. c. 91, s. 52, s. 2, 3 (S); Draft Code, s. 82.