remote to be an attempt, and what, on the other hand, are close enough to the offence to be an attempt; it being in many case very difficult,-some say, impossible, to distinctly define the dividing line between mere preparation for an offence and an actual attempt to commit it (1). As an illustration the case is given of a man who, with intent to commit murder, walks to the place where he purposes to commit it. This act of walking to the place is not considered an act sufficient to constitute an attempt to murder (2). But if besides walking to the place, the man were, on arriving there to meet and fire a pistol shot at his intended victim, and fail to kill him, either by missing his aim altogether, or through the shot, though taking effect, not being fatal, he would undoubtedly be guilty of an attempt to murder. The mere act of buying a box of matches with the intention of using them to set a corn stack on fire is too remote to constitute an attempt to set the fire. (3). But where the prisoner had knelt down before a corn stack, and had lighted a match with the intention of setting the stack on fire; and then he blew out the light on observing that he was watched; it was held that this was an attempt to burn the stack. The accused had called at the prosecutor's house, and, on first being refused work and on afterwards being refused a shilling which he asked for, he became, violent and threatened to burn up the premises. He was then watched by the prosecutor and his servant and seen to go to a neighboring stack where he knelt down and struck a lucifer match, but discovering that he was watched he blew out the lighted match and went away. (4). In another case A was charged with attempting to set fire to a dwelling-house, and B with inciting and hiring him to commit the offence. Under B's directions, A had arranged and placed pieces of blanket saturated with coal oil against the doors and sides of the house, had lighted a match, which he held in his fingers till it was burning well, and had then put the light down close to the saturated blanket with the intention of setting the house on fire; but just before the flame touched the blanket the light went out, and he threw the match away without making any further attempt. Held that the attempt was complete. (5) If a man were to load a gun and declare his intention to shoot his neighhor with it, this would merely be a preparation of necessary means to commit the offence; in order to render him guilty of an attempt to shoot there would have to be, beyond such preparation, some act or movement on the man's part, in the nature of an endeavor to use the weapon upon the person of his intended victim. There have been some decisions which have gone a long way towards treating preparation to commit a crime as an attempt to commit it. For instance, the procuring of dies for coining bad money has been treated as an attempt to coin bad money. (6) It was formerly considered that an act done with intent to commit an offence was not an attempt unless done under circumstances rendering it possible to accomplish the object in view; (7) and so where in an English case A put his hand into B's pocked with intent to steal what was in it, and the pocket happened to be empty, it was held that A could not be convicted of an attempt to steal. (8) But this decision has recently been overruled by the English Court of Crown Cases Reserved, presided over by Lord Chief Justice Coleridge, who, in delivering judgment, said, in reference to the pickpocket case," This is a decision with which we are not satisfied. Reg. v. Dodd proceeded upon the 46 (1) Steph. Hist. Cr. L. 224. 226. (2) Remarks of Jervis C. J. in Reg. v Roberts, 33 Eng. L. & Eq. 553; 25 L. J.M. C. 17. (3) Remarks of Chief Baron Pollock in R. v. Taylor 1. F. and F. 512. (4) R. v. Taylor, 1 F. & F. 511. ―― (5) Reg. (6) Reg. v. Goodman, 22 U. C. C. P. 338. post, which makes it a substantive offence, v. Roberts, Dears. 539: 2 Steph. Hist. Cr. L. 224. [See article 466, imprisonment for life,-to purchase or have possession of coining instruments.] indictable and punishable with (7) Steph. Dig. Cr. L. 3 Ed. 37, 38; R. v. McCann, 28 Q. B. (Ont.) 514. (8) Reg. Collins, L. & C. 471; 33 L. J. M. C. 177; Harris Cr. L. 4 Ed. 17. V. 1 "same view, that a person could not be convicted of an attempt to commit an "offence which he could not actually commit. We are of opinion that Reg. v. "Dodd is no longer law. It was decided on the authority of Reg. v. Collins " [the pickpocket case], “and that case in our opinion is no longer law.” (1). It will be seen that article 64 of our Code, (which is similar to section 74 of the English Draft) coincides with the above holding of the English Court of Crown Cases Reserved, and plainly declares that an intent to commit an offence combined with an act done or omitted for the purpose of accomplishing the object in view will constitute an attempt, whether, under the circumstances, it was possible to commit the intended offence ar not. TITLE II. OFFENCES AGAINST PUBLIC ORDER, INTERNAL AND EXTERNAL. PART IV. TREASON AND OTHER OFFENCES AGAINST THE 65. Treason.-Treason is (a.) the act of killing Her Majesty, or doing her any bodily harm tending to death or destruction, maim or wounding, and the act of imprisoning or restraining her; or (b.) the forming and manifesting by an overt act an intention to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding, or to imprison or to restrain her, or (c.) the act of killing the eldest son and heir apparent of Her Majesty, or the Queen consort of any King of the United Kingdom of Great Britain and Ireland; or (d.) the forming and manifesting, by an overt act, an intention to kill the eldest son and heir apparent of Her Majesty, or the Queen consort of any King of the United Kingdom of Great Britain and Ireland; or (e) conspiring with any person to kill Her Majesty, or to do her any bodily harm tending to death or destruction, maim or wounding or conspiring with any person to imprison or restrain her; or (f) levying war against Her Majesty either (i.) with intent to depose Her Majesty from the style, honour and royal name of the Imperial Crown of the United Kingdom of Great Britain and Ireland or of any other of Her Majesty's dominions or countries; (1) Reg. v. Brown, 24 Q. B. D. 357, 359; 16 Cox C. C. 715. (ii) in order, by force or constraint, to compel Her Majesty to change her measures or counsels, or in order to intimidate or overawe both Houses or either House of Parliament of the United Kingdom or of Canada; or (g.) conspiring to levy war against Her Majesty with any such intent or for any such purpose as aforesaid; (1) or (h.) instigating any foreigner with force to invade the said United Kingdom or Canada or any other of the dominions of Her Majesty; or (i) assisting any public enemy at war with Her Majesty in such war by any means whatsoever r; or (j.) violating, whether with her consent or not, a Queen consort, or the wife of the eldest son and heir apparent, for the time being, of the King or Queen regnant. 2. Every one who commits treason is guilty of an indictable offence and liable to suffer death. The duty of allegiance is based upon the relation which subsists between him who owes it and the crown, and upon the privileges derived by the former from that relation. Allegiance is either natural or local. Natural allegiance is that which a natural born subject owes at all times and in all places to the Crown as head of that society of which he is a member. Local allegiance is founded upon the protection which a foreigner enjoys for his person, his family and effects during his residence here; and if such foreigner while so resident here commit an offence which in the case of a natural born subject would be treason, he is dealt with as a traitor; and this is so, whether his sovereign be at peace with us or not. (2) The ingredients set forth in the above article as constituting the crime of treason are, in effect, the same as those which constitute high treason according to section 75 of the English Draft Code, as revised by the Royal Commissioners; whose remarks thereon are as follows: "Our definition of High Treason exactly follows the existing law with one or two exceptions which we felt warranted in making. The existing law depends "upon the old statute of 25 Edward 3, St. 5, C. 2, and on the judicial construction put upon that act. It is well explained in the opinion delivered by the "late Mr. Justice Willes in Mulcahy v. R., (L. R. 3 H. of L. 318). It has been thought better to make the act of killing or wounding the Sovereign in itself "an act of treason, instead of adopting the artifical construction by which "cutting off the head of Charles the First was not treason in itself but was an "overt act evidencing the compassing of his death, which was treason within the statute of Edward 3. And we have also thought it right to make conspiring to levy war against the Sovereign in itself treason, instead of evidence of "compassing the Sovereign's death. It would in the present day be absurd to "re-enact the provisions which make it high treason to kill the Lord Chancellor "or a Judge of the Superior Courts in the discharge of his duties. The ordinary "law as to murder affords sufficient protection." 46 44 The principal heads of treason as contained in the statute of Edward 3 are (a) imagining or compassing the king's death, (b) levying war against the king, and (c) adhering to the king's enemies; (3) there being no express provision for any act of violence, towards the king's person, which did not display an intention to kill him, and nothing about attempts to imprison or depose the king, conspiracies or attempts to levy war, or disturbances however violent which did not (1) See article 68, post. 46, for special provisions against levying war within Canada. (2) Broom's Com. L. 5 Ed. 877, 878. (3) 2 Steph. Hist. Cr. L. 243, 249. reach the point of levying war; although there was a proviso (afterwards repealed by 1 Hen. IV. C. 10), that Parliament in its judicial capacity might upon the conviction of any person for any political offence hold that it amounted to high treason, though not specified in the act (1). After the statute of Edward 3 many acts were passed, from time to time, (and especially during the period between the beginning of the Reformation and the end of the Tudor line), for the purpose of adding new treasons; but nearly all these acts were either temporary or have in one way or another long since expired; and they exercised little or no permanent influence on the law of treason, as contained in the old statute, with the wide constructions placed upon its provisions by learned judges and commentators, whose interpretations have received, in later legislation, (36 Geo. 3, c. 6, and 11 and 12 Vic. c. 12), full statutory recognition and authority (2). The statute of Edward 3, taken literally, was too narrow to afford complete protection to the king's person, power and authority; but the judges, in their decisions, and various writers, in their comments upon the subject, held "that "6 to imagine the king's death means to intend anything whatever which under "any circumstances may possibly have a tendency, however remote, to expose the king to personal danger or to the forcible deprivation of any part of the "authority incidental to his office (3)." 66 The mere intention of compassing the king's death seems to have constituted the substantive offence or corpus delicti in this particular kind of treason; thus shewing an apparent exception to the general doctrine that a person's bare intention is not punishable. But, although an overt act was not essential to the abstract crime, it was always held essential to the offender's conviction. The compassing or imagining, (that is, the mind's operation in willing or intending), the death was considered as the treason, and the overt acts were looked upon as the means employed for executing the offender's traitorous purpose. In other words, it was the intention itself that was looked upon as the crime; but in order to warrant a conviction, it was necessary to make proof of the manifestation of the intention by some overt act tending towards the accomplishment of the criminal object. And so it was held that, where conspirators met and consulted together how to kill the king, it was an overt act of compassing his death, even although they did not then resolve upon any scheme for that purpose. And all means made use of, either by persuasion or command, to incite or encourage others to commit the fact or join in the attempt to commit it were held to be overt acts of compassing the king's death; and any person who but assented to any overtures for that purpose was involved in the same guilt. (4) Mere words of themselves were not regarded as an overt act of treason; for in Pine's case it was held that his having spoken of Charles I as unwise, and as not fit to be king, was not treason, although very wicked; and that unless it were by some particular statute no words alone, would be treason. (5) But words were sometimes relied on to shew the meaning of an act. As, where C, being abroad, said: "I will kill the king of England if I can come at him," and the indictment, after setting forth these words, charged that C went into England for the purpose indicated by the words, it was held that C might, on proof of these facts, be convicted of treason; for the traitorous intention evinced by the words uttered converted an action innocent in itself into an overt act of treason. The deliberate act of writing treasonable words was also considered an overt act, if the writing were published; for scribere est agere. (6). But even in that case it was not the bare words themselves that were considered the (1) 2 Steph. Hist. Cr. L. 250, 253. (2) 2 Steph. Hist. Cr. L. 255, 262, 279. (3) 2 Steph. Hist. Cr. L. 263, 268. (4) Broom's Com. Law, 5 Ed. 880, 881. (5) 2 Steph. Hist. Cr. L. 308. (6) 3 Inst. 14, 1 Hale P. C. 112: 4 Bl. Com. 80; Broom's Com. L. 883. treason; and the preponderance of authority favored the rule that writings not published did not constitute an act of treason. (1) 44 The wide construction placed upon the language of the Statute of Treasons is shewn by the words of Coke, who, in referring to the cases of Lord Cobham and the Earl of Essex, says: "He that declareth by overt act to depose the king "does a sufficient overt act to prove that he compasseth and imagineth the "death of the king. And so it is to imprison the king or to take the king into his power and to manifest the same by some overt act. And if a subject "conspire with a foreign prince to invade the realm by open hostility, and "prepare for the same by some overt act, this is a sufficient overt act for the "death of the king." (2) Hale coincides with Coke and adds that," to levy war "against the king directly is an overt act of compassing the king's death, and "that a conspiracy to levy such a war is an overt act to prove it." (3) Foster following in the same strain, says: "The care the law hath taken for the per"sonal safety of the king is extended to everything not fully and deliberately "done or attempted whereby his life may be endangered; and therefore the "entering into measures for deposing or imprisoning him or to get his person "into the power of conspirators, are overt acts of treason within this branch of "the statute; for experience hath shewn that between the prisons and the "graves of princes the distance is very small. Offences which are not so "personal as those already mentioned have been with great propriety brought "within the same rule, as having a tendency, though not so immediate, to the "same fatal end; and therefore the entering into measures in concert with foreigners and others in order to an invasion of the kingdom, or going into a foreign country, or even purposing to go thither to that end, and taking any steps in order thereto, are overt acts of compassing the king's death." (4) Foster adds that a “treasonable correspondence with the enemy" is an act of compassing the king's death; and in support of this he refers to Lord Preston's case, 5 in which it was held that taking a boat at Surrey Stairs in Middlesex to ge on board a ship in Kent, for the purpose of conveying to Louis XIV a number of papers informing him of the naval and military condition of England and to so help him to invade England and depose William and Mary, was an overt act of treason by compassing and imagining the death of William and Mary. (6) A wide construction was also put upon the expression “adhering to the king's enemies"; its meaning being held to include any assistance given to aliens in open hostility against the king,-as, by surrendering to them a castle of the king's for reward, or selling them arms, etc., or cruising in a ship with enemies to the intent to destroy the king's subjects. (7) With regard to " levying war" Sir James F. Stephen says: "The difference "between the commonest unlawful assembly and a civil war is one of degree, ‹ and no definite line can be drawn at which riot ends and war begins. There " has been a double current of authority on this point from the date of the 25 46 64 Edw. 3 to our own days. On the one hand the statute declares, and the commentators have been careful to insist on the declaration, that in order to be treason the war levied must be against the king. No amount of violence, however great, and with whatever circumstances of a warlike kind it may be attended, will make an attack by one subject on another high treason. On the 66 • other hand any amount of violence, however insignificant, directed against the «king will be high treason, and as soon as violence has any political object "it is impossible to say that it is not directed against the king, in the sense of #4 being armed opposition to the lawful exercise of his power." (8) 44 (1) Algernon Sidney's case, 9 How. St. Tr. 818; Broom's Com. L. 883. (2) 3 Inst. 6, 12, 14; 2 Steph. Hist. Cr. L. 266. (5) Fost. 197. (6) 12 State Trials, 646; 2 Steph. Hist. Cr. 267; Broom's Com. Law 882. (8) 2 Steph. Hist. Cr. L. 268. For a full and interesting account of the law of treason see Stephen's History of the Crim. Law of England, 2nd vol. pp. 241-297. |