drawn on a hurdle to the place of execution, and be there hanged by the neck until such person be dead, and that afterwards the head shall be severed from the body of such person, and the body, divided into four quarters, shall be disposed of as his majesty and his successors shall think fit. [The italicized parts of this section are repealed as to England and Ireland by 33 & 34 Vict. c. 23, s. 31, post, p. 937. For old form of sentence, see R. v. Walcot, 1 Eng. Rep. 87.]

Sect. 2-Power to alter mode of execution.]—And be it further declared and enacted, that in case his majesty or his successors shall so think fit, his majesty or his successors, after such sentence or judgment shall be pronounced or awarded, may, by warrant under his or their sign manual, countersigned by one of his majesty's principal secretaries of state, declare it to be his or their will and pleasure, and may direct and order that such person as aforesaid shall not be drawn, but shall be taken in such manner as in the said warrant shall be expressed to the place of execution, and that such person shall not be hanged by the neck, but that instead thereof the head shall be there severed from the body of such person whilst alive, and in such warrant may direct and order how and in what manner the body, head, and quarters of such person shall be disposed; and it shall be lawful for the sheriff or other person or persons to whom such warrant shall be addressed, and whom it shall concern, to carry the same into execution accordingly. [The italicized portions of this section are repealed as to England and Ireland by 33 & 34 Vict. c. 23, s. 31, post, p. 937.]

57 G. 3, c. 6 (Treason Act, 1817), s. 1.]—Recites 36 G. 3, c. 7, and enacts that "all and every the herein before recited provisions which relate to the heirs and successors of his majesty the sovereign of these realms shall be and the same are hereby made perpetual." [The portions of this Act referring to the portions of 36 G. 3, c. 7, repealed by 11 & 12 Vict. c. 12, s. 1, are repealed by the latter statute.]

Sect. 4.]-Persons tried under the Act to be entitled to the benefit of 7 & 8 W. 3, c. 3, and 7 Anne, c. 21 (ante, pp. 931-933), "save and except in cases of high treason in compassing or imagining the death of any heir or successor of his majesty, and of misprision of such treason, where the overt act or overt acts of such treason which shall be alleged in the indictment for such offence shall be assassination or killing of any heir or successor of his majesty, or any direct attempt against the life of any heir or successor of his majesty, or any direct attempt against the person of any heir or successor of his majesty whereby the life of such heir or successor may be endangered or the person of such heir or successor may suffer bodily harm." [See 39 & 40 G. 3, c. 93, ante, p. 934.]

Sect. 5.]-Act not to prevent prosecutions to which persons would have been subject if the Act had not passed, unless the party is first prosecuted under the Act. [Cf. 52 & 53 Vict. c. 63, s. 33, ante, p. 170.]

Sect. 6.]-54 G. 3, c. 146 (ante, p. 934), extended to sentences for offences under this Act.

6 G. 4, c. 50 (Juries Act, 1825), s. 21-Jury panel.]-When any person is indicted for high treason or misprision of treason in any court other than the Court of King's Bench, a list of the petit jury, mentioning the names, profession, and place of abode of the jurors, shall be given at the same time that the copy of the indictment is delivered to the party

indicted, which shall be ten days before the arraignment, and in the presence of two or more credible witnesses; and when any person is indicted for high treason or misprision of treason in the Court of King's Bench, a copy of the indictment shall be delivered within the time and in the manner aforesaid; but a list of the petit jury, made out as aforesaid, may be delivered to the party indicted at any time after the arraignment, so that the same be delivered ten days before the day of trial: Provided always, that nothing herein contained shall anyways extend to any indictment for high treason in compassing or imagining the death of the king, or for misprision of such treason, where the overt act or overt acts of such treason alleged in the indictment shall be assassination or killing of the king, or any direct attempt against his life, or any direct attempt against his person, whereby his life may be endangered or his person may suffer bodily harm; [see 39 & 40 G. 3, c. 93 (ante, p. 934); 57 G. 3, c. 6, s. 1 (ante, p. 935); the rest of 6 G. 4, c. 50, s. 21, relates to treason by counterfeiting coin, great seal, privy seal, sign manual, etc., which is abolished. As to challenge of jurors on an indictment for treason, see 7 & 8 W. 3, c. 3. s. 2 (ante, p. 931), and 6 G. 4, c. 50, s. 29 (ante, p. 199].

5 & 6 Vict. c. 51 (Treason Act, 1842, s. 1.]—In all cases of high treason in compassing or imagining any bodily harm tending to the death or destruction, maiming, or wounding of the [King], and in all cases of misprision of any such treason where the overt act or overt acts of such treason alleged in the indictment shall be any attempt to injure in any manner whatsoever the person of the [King], the person or persons charged with such offence shall and may be indicted, arraigned, tried, and attainted in the same manner and according to the same course and order of trial in every respect upon the like evidence as if such persons stood charged with murder [7 & 8 W. 3, c. 3 (ante, p. 931); 7 Anne, c. 21 (ante, p. 933); 6 G. 4, c. 50, s. 21 (ante, p. 935), not to apply]; but upon conviction upon such indictment judgment shall nevertheless be given, and execution be done, as in other cases of high treason, any law, statute, or usage to the contrary notwithstanding.

11 & 12 Vict. c. 12 (Treason Felony Act, 1848), s. 2.]-Such of the said recited provisions [of 36 G. 3, c. 7 (ante, p. 933)] made perpetual by the said Act of the 57 G. 3 [c. 6 (ante, p. 934)] as are not hereby repealed shall extend to and be in force in that part of the United Kingdom called Ireland.

Sects. 3, 5-8, 10.]-Post, pp. 948, 949.

17 & 18 Vict. c. 26.]-After reciting the Treason Act, 1708 (7 Anne, c. 21), s. 14 (ante, p. 933) enacts that "the enactments in the Treason Act, 1708, contained and hereinbefore recited shall apply to Ireland, and that as fully as if the same enactments were here repeated." [As to former law in Ireland, see O'Brien v. R., 7 St. Tr., N. S. 1; 2 H. L. Č. 465.]

33 & 34 Vict. c. 23 (Forfeitures Act, 1870), s. 1.]-From and after the passing of the Act (4th July, 1870) no confession, verdict, inquest, or judgment of or for any treason... shall cause any attainder or corruption of blood or any forfeiture or escheat: provided that nothing in this Act shall affect the law of forfeiture consequent on outlawry. [This section does not appear to affect the mode of trial for treason. See 7 & 8 W. 3, c. 3 (ante, pp. 931, 932).]

Sect. 31.1-From and after the passing of this Act (4th July, 1870) such portions of the Treason Act, 1796 (30 G. 3. c. 48, ante, p. 933), and the Treason Act, 1814 (54 G. 3, c. 146, ante, p. 934), as enact that the judgment required by law to be awarded against persons adjudged guilty of high treason shall include the drawing of the person on a hurdle to the place of execution, and after execution the severing of the head from the hody and the dividing of the body into four quarters shall be and are hereby repealed. [Spent, and rep. S. L. R. 1893. As to effect of repeal, see 52 & 53 Vict. c. 63, s. 38, sub-s. 2.]

Indictment for compassing the King's Death. (25 Edw. 3, st. 5, c. 2, ante, p. 928.)

to wit:-The jurors for our lord the King, upon their oath present, that J. S., being a subject of our said lord the King, [not regarding the duty of his allegiance, nor having the fear of God in his heart, but being moved and seduced by the instigation of the devil,] as a false traitor against our said lord the King, and wholly withdrawing the allegiance, fidelity, and obedience which every true and faithful subject of our said lord the King should and of right ought to bear towards our said lord the King, on the first day of June, in the year of our Lord —, and on divers other days as well before as after, maliciously and traitorously, together with divers other false traitors to the jurors aforesaid unknown, did compass, imagine, devise, and intend to depose our said lord the King from the royal state, title, power, and government of this realm, and from the style, honour, and kingly name of the imperial crown thereof, and to bring and put our said lord the King to death and the said treasonable compassing, imagination, device, and intention maliciously and traitorously did express, utter, declare, and evince, by divers overt acts and deeds hereinafter mentioned, that is to say: IN ORDER TO FULFIL, PERFECT, AND BRING TO EFFECT his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he the said J. S., as such false traitor as aforesaid, afterwards, to wit, on the said first day of August in the year aforesaid, and on divers other days as well before as after, maliciously and traitorously did conspire, consult, consent, and agree with one A. B., C. D., and divers other false traitors to the jurors aforesaid unknown, to raise, levy, and make insurrection, rebellion, and war within this kingdom, against our said lord the King; AND FURTHER TO FULFIL, PERFECT, AND BRING TO EFFECT his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he, the said J. S., as such false traitor as aforesaid, afterwards, to wit, [etc., etc., so proceeding to state other overt acts in the same manner: and then conclude the count thus]; in contempt of our said lord the King and his laws, to the evil example of all others in like case offending, contrary to the duty of the allegiance of him the said J. S.; against the form [as ante, p. 465].

By "overt act" is meant any act manifesting the criminal intention or tending to accomplish the criminal object in respect whereof the indictment is framed. See R. v. Thistlewood, 33 St. Tr. 685. (a) Any number of overt acts may be laid in the same count, but proof of any one sufficient overt act will

(a) Except where otherwise specially stated, the references to the State Trials in the present edition of this work are to Howell's State Trials, and to State Trials (New Series). For table showing references to Hargrave's State Trials, see vol. 34 of Howell,

maintain the count. Kel. (J.) 8; 1 Hale, 122; Fost. 294. It is not necessary that the overt act be laid to have been committed "traitorously," because that is not the offence; but if the treason consists not in the intention but in the act, as in levying war, then it must be laid to have been done traitorously." Eden, P. L. 106: R. v. Cranburne, 2 Salk. 633. As to whether the accused should be described as a subject of the King, see 26 St. Tr. 819; and R. v. Jameson [1896] 2 Q. B. 425. A copy of the indictment must be delivered to the accused ten days before his arraignment, except in cases where the overt act of treason is assassination or a direct attempt on the life or person of the King. 6 G. 4, c. 50, s. 21 (ante, p. 935). As to a copy of the caption, see R. v. Burke, 10 Cox, 519.

The punishment of high treason is death by hanging, unless the King by warrant under the sign manual, countersigned by a secretary of state, substitutes death by decapitation. 30 G. 3, c. 48, s. 1 (ante. p. 933); 54 G. 4, c. 146 (ante, p. 934); 33 & 34 Vict. c. 23, s. 31 (ante, p. 937).

High treason, misprision of treason, offences against the King's title, prerogative, person, or government, or against either house of parliament, are not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126).

Venue.]-As to the venue in cases of compassing the King's death out of the realm, see 35 H. 8, c. 2, s. 1 (ante, p. 929). Most of the cases cited infra, p. 946, from the St. Tr. as containing counts for adhering to the King's enemies, contain also counts for compassing the King's death in this country; in the following cases the offence of "compassing, etc.," is charged as having been committed" in parts beyond the seas," viz., R. v. Hesketh, K. B. Roll, 1592: R. v. Assheton, Id.: R. v. Skinner, id. : R. v. Smith, Baga de Secretis, 1713.

Liability of aliens.]-Alien friends may be convicted of high treason (R. v. De la Motte, 21 St. Tr. 687, 814), but alien enemies cannot (Calvin's case, 7 Co. Rep. 1, 6b; and see 4 St. Tr. 1182; Forsyth, Cas. Const. Law, 200), unless they accept British protection during the war (Fost. 185). A British subject is not exempt from the penalties of treason because he holds a commission in the enemy's forces, Napper Tandy's case, 27 St. Tr. 1191; Macdonald's case, Fost. 59, 183; 18 St. Tr. 857; Townley's case, Fost. 7; 18 St. Tr. 1329; and see post, p. 947.

Overt acts.]-The following acts have been decided or have been deemed by writers upon the subject to be sufficient overt acts of compassing the death of the sovereign within the Treason Act, 1351 (ante, p. 928). The statute is said to be declaratory of the common law (ante, p. 929); but all the law of treason now rests on statute, and the doctrine of constructive treason is discouraged, if not exploded. See 1 Mary, st. 1, c. 1, s. 1 (ante, p. 931); and 3 St. Tr. 368, 1466, 1472; 6 St. Tr. 902, n.; 15 St. Tr. 522; 15 St. Tr. 522, n. ; 24 St. Tr. 877; 32 St. Tr. 431.

Everything wilfully or deliberately done or attempted, whereby the King's life may be endangered, is an overt act of compassing his death. Fost. 195. Killing the King is an overt act of compassing his death, and was so laid in the case of the regicides. Kel. (J.) 8. So, going armed for the purpose of killing the King; R. v. Somervile, 1 Anderson, 104; providing arms, ammunition, poison, or the like, for the purpose of killing the King; 1 Hale, 108; 3 Co. Inst. 12; conspirators meeting and consulting on the means of killing the King; Fost. 195: R. v. Sir H. Vane, Kel. (J.) 15; 6 St. Tr. 119: R. v. Tonge, Kel. (J.) 17; 6 St. Tr. 225; and see Kel. (J.) 81; or of deposing him, or of usurping the powers of government; R. v. Hardy, 1 East, P. C. 60; 24 St. Tr. 199; or resolving to do

it; R. v. Rookwood, 13 St. Tr. 139: R. v. Charnock, 12 St. Tr. 1377; 2 Salk. 631; acting as counsel against the King, in order to take away his life; R. v. Cook, Kel. (J.) 12; 2 St. Tr. 1077; and see R. v. Harrison, 5 St. Tr. 1008; 2 Steph. Hist. Cr. L. 241: all these, and the like, are sufficient overt acts of compassing the King's death.

So, other species of high treason, which are distinct heads of treason in themselves, may be laid as overt acts of compassing the King's death (see 39 & 40 G. 3, c. 93, supra). Thus, the following have been held to be sufficient overt acts of compassing the King's death: levving war directly against the King: Fost. 197, 210, 211; 1 Hale, 122, 123, 151; Kel. (J.) 21; 3 Co. Inst. 12; 13 St. Tr. 110, 113: R. v. Hensey, 19 St. Tr. 1341 (but not a mere constructive levving of war, such as pulling down all inclosures, or the like, 1 Hale, 123; see post, p. 943); or even a conspiracy to levy war directly against the King, for the purpose of dethroning him, or of obliging him to change his measures, or the like; Fost. 197, 211; 1 Hale, 119, 121: R. v. Freind, 13 St. Tr. 1: R. v. Darrel, 10 Mod. 321: R. v. Layer, 16 St. Tr. 93: R. v. Campion. Sav. 3: R. v. Lord Russell, 9 St. Tr. 577: R. v. Sidney, 9 St. Tr. 817: R. v. Cook, 13 St. Tr. 311 (but not a conspiracy to effect a rising for the purpose of throwing down all inclosures, or of any other species of constructive levying of war; Fost. 213; per Holt, C.J., Holt, 682; per Cur., 10 Mod. 322); adhering to the King's enemies: Fost. 196, 197: R. v. Harding, 2 Vent. 315: R. v. Lord Preston, 12 St. Tr. 645: R. v. Stone, 25 St. Tr. 1155; 6 T. R. 527; inciting foreigners to invade the realm: Fost. 196; 1 Hale, 120; 3 Co. Inst. 14: R. v. Dr. Story, 3 Dyer, 298A, 300B; 1 St. Tr. 1087 (where the indictment is incorrectly set out (see K. B. Rolls, 1571): R. v. Parkyns, 13 St. Tr. 63. Writings which import a compassing of the King's death are sufficient overt acts of this species of treason, if published; 1 Hale, 118; 3 Co. Inst. 14; Fost. 198; 1 Hawk. c. 17, s. 31; as, for instance, writings exciting persons to kill the King; R. v. Twyn, Kel. (J.) 22; 6 St. Tr. 513, n.; or the like. See the cases collected in Pyne's case, Cro. Car. 117. So, words of advice or persuasion are sufficient overt acts of this species of treason, if they advise or persuade to an act which would of itself (if committed) be a sufficient overt act. Fost. 195, 200: R. v. Charnock, 12 St. Tr. 1377; 2 Salk. 631. So, words may be laid in the indictment to explain an act; as, for instance, an act seemingly innocent in itself may be shown to be an overt act of treason, by its connection with words spoken by the party at the time. 1 Hale, 115; and see R. v. Parkyns, 13 St. Tr. 63: R. v. Crohagan, Cro. Car. 332: R. v. Lee, 1 St. Tr. 1403. But loose words which have no reference to any act or design, or which are not words of persuasion or advice, cannot be deemed overt acts of treason. Fost. 200207: R. v. Theving, 3 Harg. St. Tr. 79–90.

Where words or writings are laid as overt acts, it is sufficient to set forth the substance of them; R. v. Francia, 15 St. Tr. 897: R. v. Lord Preston, 12 St. Tr. 645: R. v. Watson, 2 Stark. (N. P.) 137; 32 St. Tr. 1; for in no case is it necessary that the whole detail of the evidence should be set forth; it is sufficient that the charge be reduced to a reasonable certainty, so that the defendant may be apprised of its nature, and may be prepared to answer it. Fost. 194.

Evidence.

The evidence must be applied to the proof of the overt acts, and not to the proof of the principal treason for the overt act is the charge to which the prisoner must apply his defence. And whether the overt act