*BOOK II.

PLEADING AND EVIDENCE IN PARTICULAR CASES.

PART II.

OFFENCES OF A PUBLIC NATURE.

CHAPTER I.

Offences against the King, and his government.

SECT. 1. High Treason.

2. Coining.

3. Sedition and Blasphemy.

4. Administering Unlawful Oaths

5. Inciting to Mutiny.

6. Embezzling the King's Stores.

SECT. 1.

HIGH TREASON.

Indictment for Compassing the King's Death.

Middlesex, to wit: The jurors for our lord the King, upon their oath present, that J. S., late of the parish of B., in the county of M., labourer, a subject of our said lord the King then and there being, 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 al[265] legiance, *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 third day of May, in the third year of the reign of our sovereign lord George the Fourth, and on divers other days as well before as after, with force and arms, at the parish aforesaid, in the county aforesaid, 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, then and

there 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 third day of May in the year aforesaid, and on divers other days as well before as after, with force and arms, at the parish aforesaid in the county aforesaid, 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 intențion aforesaid, he the said J. S., as such false traitor as aforesaid, afterwards, to wit, [&c. &c. 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 the like case offending, contrary to the duty of the allegiance of him the said J. S., against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity.

It may be satisfactory, in this place, to enumerate the several acts which have been decided, or which have been deemed by writers upon the subject, to be sufficient overt acts of compassing the death of the King.

Every thing 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. 8. So, [266] going armed for the purpose of killing the King; R. v. Somerville et al. 1 And. 104; providing arms, ammunition, poison, or the like, for the purpose of killing the King; 1 Hale, 108. 3 Inst. 12; conspirators meeting and consulting of the means of killing the King, Fost. 195. R. v. Vane, Kel. 15. R. v. Tong. et al. Kel. 17, and see Kel. 21, or of deposing him, or of usurping the powers of government, R. v. Hardy et al. 1 East, P. C. 60, or resolving to do it; R. v. Rookwood, 4 St. Tr. 661. R. v. Charnock, Id. 562, 2 Salk. 631; acting as counsel against the King, in order to take away his life: R. v. Coke, Kel. 12, and see R. v. Harrison, 2 St. Tr. 314: all these 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 : thus, levying war directly against the King, Fost. 195. 210, 211. 1 Hale, 122, 123. 151. Kel. 21. 3 Inst. 12, (but not a mere constructive levying of war, such as pulling down all inclosures, or the like, 1 Hale, 123. See post); 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. Friend, 4 St. Tr. 599. R. v. Darrel, 10 Mod. 321. R. v. Layer, 4 St. Tr. 229, 332. R. v. Campion et al. Sav. 3. R. v. Lord Russel, 3 St. Tr. 705, and see Id. 683. 701. 731. R. v. Sidney, 3 St. Tr. 807. R. v. Cook. 4 St. Tr. 737-776; (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, 4 St. Tr. 410-455. R. v. Stone, 6 T. R. 527; inciting foreigners to invade the realm: Fest. 196. 1 Hale, 120. 3 Inst. 14. R. v. Story, Dy. 298 R. v. Parkyns, 4 St. Tr. 627; all. these are sufficient overt acts of compassing the King's death.

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 Inst. 14. Fost. 198. 1 Hawk. c. 17. s. 31: as, for instance, writings inciting persons to kill the King, R. v. Twyn, Kel. 22, or the like. See the several 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, 4 St. Tr. 562. 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 shewn to be an overt act of treason, by its connexion with words spoken by the party at the time. 1 Hale, 115, and see R. v. Parkyns, 4 St. Tr. 627. [267] 657. R. v. Crohagan, *Cro. Car, 332. R. v. Lee, 7 St. Tr. 43.

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. 200-205. R. v. Theving et al. 3 St. Tr. 79–90.

Where words or writings however are laid as overt acts, it is sufficient to set forth the substance of them; R. v. Francia, 6 St. Tr. 58. 73. R. v. Lord Preston, 4 St. Tr. 411. R. v. Watson, 2 Stark. 137; 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 be prepared to answer it. Fost. 194.

Any number of overt acts may be laid; Kel. 8; but if any one sufficient overt act be proved, it will maintain the count. 1 Hale, 122. 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 proved, be a sufficient overt act of the principal treason laid in the indictment, is matter of law, to be determined by the court. It is also express

ly enacted that no evidence shall be admitted of any overt act not laid in the indictment: 7 & 8 W. 3. c 3. s. 8: that is to say, no overt act amounting to a distinct independent charge, although it be an overt act of the species of treason charged, shall be admitted in evidence, unless it be expressly laid in the indictment; but if an overt act not laid, amount to direct proof of any other overt act which is laid, it may be given in evidence to prove such overt act. R. v. Rookwood, 4 St. Tr. 661. 697. R. v. Deacon, Fost. 9. R. v. Lowick, 4 St. Tr. 718. 722. 731. R. v. Layer, 8 Mod. 82. 89. 6 St. Tr. 229. 282. 284. R. v. Wedderbourn, Fost. 22. Ante, p. 68.

Although writings cannot be laid as an overt act, unless published, yet if they tend to prove any overt act laid, they shall be admitted in evidence for that purpose, although never published. R. v. Lord Preston, 4 St. Tr. 410. 440. R. v. Layer, 6 St. Tr. 272–280. R. v. Hensey, 1 Bur. 642. 644. And in Colonel Sidney's case, if the papers found in his

closet, had been plainly referable to the other treasonable practices charged in the indictment, they might indisputably have been read in evidence against him, although not published. Fost. 198. Also, it is no objection that the writings or any other articles, were not found until after the apprehension of the defendant. R. v. Watson, 2 Stark. 137.

Where words of incitement have reference to an act, af

ter *giving evidence of the words, you may give evidence of [268] the act, in order fully to explain them. R. v. Lord G. Gordon, Doug. 590. 593.

Where a conspiracy is laid as an overt act, the acts of any of the conspirators in furtherance of the common design, may be given in evidence against all. R. v. Hardy, 1 East, P. C. 98. R. v. Stone, 6 T. R. 527, and see Kel. 19, 20. and ante, p. 68. In such a case, the first thing to be proved is the conspiracy; secondly, evidence must be given to connect the defendant with it; and lastly, if intended to give in evidence against the defendant the acts of any other person, you must shew that such person was also a member of the same conspiracy, and that the act done was in furtherance of the common design. See R. v. Sidney, 3 St. Tr. 798, &c. R. v. Lord Lovat, 9 St. Tr. 670, &c.

The time at which the overt acts are alleged to have been committed, need not be proved as laid; it is sufficient if they be proved to have been committed at any time within three years before the finding of the indictment. R. v. Charnock, 1 Salk. 288. R. v. Lord Balmerino, 9 St. Tr. 587 -605. R. v. Townley, Fost. 7, 8.

As to the place where the overt act is alleged to have been committed an overt act must be proved to have been committed in the proper county. See R. v. Lord Preston, 4 St. Tr. 410-455. But if any one overt act be proved against the defendant in the proper county, acts of treason tending to prove such overt act laid, though done in a foreign county, may be given in evidence ; and this was done in nearly all the trials of the rebels in the year 1746. Fost 9.22.

Where several overt acts are laid, proof of any one of them will maintain the count, provided the overt act so proved is a sufficient overt act of the species of treason charged in the indictment. 1 Hale, 122. Fost.

194.

Form of a Count for levying War.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said 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 said third day of May, in the third year of the reign afore-, said, with force and arms, at the parish aforesaid in the county aforesaid, together with divers other false traitors to the jurors aforesaid unknown, armed and arrayed in a warlike manner, that is to say, with *guns, muskets, blunderbusses, pistols, swords, bayonets, pikes, [269] and other weapons, being then and there unlawfully, maliciously, and traitorously assembled and gathered together against our said lord the King, most wickedly, maliciously, and traitorously did levy and make war against our said lord the King within this realm, and did then and there maliciously and traitorously attempt and endeavour by force and

arms to subvert and destroy the constitution and government of this realm as by law established, and deprive and depose our said lord the King of and from the style, honour, and kingly name of the imperial crown of this realm in contempt of our said lord the King and his laws, to the evil example of all others in the like case offending, contrary to the duty of the allegiance of him the said J. S., against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity.

In this count, it is not necessary to set out the particular acts of the defend-· ant; it is sufficient to allege generally that he assembled with a multitude, armed and arrayed in a warlike manner, and levied war. Fost. 220.

Evidence.

In order to maintain this count, it is necessary to prove that which in law amounts to a levying of war, directly or constructively, against the King in his realm; and to prove that the defendant was either actually engaged in it, or present aiding and abetting.

In order to constitute a levying of war, the number of persons assembled is not material; three or four will constitute it, as fully as a thousand. 3 Inst. 9. Nor is it necessary that they should be more guerrino arraiati, armed with military weapons, with colours flying, &c., although it is usually so stated in the indictment. Fost. 208. and see R. v. Dammaree & Purchase, Fost. 208. Nor is actual fighting necessary to constitute a levying of war; Fost. 218. 1 Hale, 144; for, as the court held in Vaughan's case, (5 Str. Tr. 17-39. 2 Salk. 634,) enlisting and marching are sufficient, without coming to battle. After an action has taken place, it is termed bellum percussum; before it, bellum levatum.

War levied against the King, is of two kinds, direct and constructive : direct, when the war is levied directly against the King or his forces, with intent to do some injury to his person, to imprison him, or the like; 1 Hale, 131, 132; such, for instance, as open rebellion, for the purpose of deposing, or imprisoning the King, or of getting him into the power of the rebels, or of forcing him to put away his ministers, or the like; 1

Hale, 152. Fost. 210. and see R. v. The Earls of Essex and [270] Southampton, Moor, 620. 1 St. Tr. 197; holding or defending *any of the King's castles, forts, or ships, against the King or his forces, or delivering them up to rebels through treachery: 3 Inst. 10. Fost. 219. 1 Hale, 325, 326: constructive where it is levied for the purpose of effecting innovations of a public and general nature by an arıned force; Fost. 211; as, for the purpose of attempting by force to obtain the repeal of a statute, to alter the religion established by law, or to obtain the redress of any other public grievance, real or pretended; 1 Hawk. c. 17. s. 25. 1 Hale, 153. Fost. 211. 3 Inst. 9, 10. R. v. Lord G. Gordon, Doug. 590; or an insurrection for the purpose of throwing down all inclosures, pulling down all bawdy houses, opening all prisons, &c., expelling all strangers, enhancing the price of wages generally, or the like. Fost. 211, 1 Hale, 132, R. v. Bradshaw et al., Poph. 122. R. v. Messenger et al., Kel. 70–79. Therefore, where a mob assemble for the purpose of destroying all the protestant dissenting meeting houses, and actually pulled down two, it was holden to be treason. R. v. Dammaree, 8 St. Tr. 218. R. v. Purchase, Id. 267. But an insurrection for the purpose of throwing down the inclosures of a particular manor, park, common, &c., or upon a mere quarrel between private persons, Fost. 210. 1 Hale, 131. 133. 149, or to deliver one or more particular persons out