the enemies of this kingdom, and to excite and create unwarrantable and injurious jealousies and suspicions of the conduct, integrity, and honour of his said excellency, and to expose him to contempt, unlawfully, &c. during the time of the said war between our said present, &c. and the French king, to wit, on, &c. in the twenty-first year, &c. with force and arms, at, &c. in, &c. did publish and cause and procure to be published of and concerning his said excellency J. S. being such public minister as last aforesaid, a certain other false, &c. libel, according to the tenor following, that is to say, [set forth libel] to the great injury, scandal, and disgrace of his said excellency J. S. in violation of the law of nations, and of the protection and security which public ministers of foreign princes and states ought and are entitled to enjoy in this kingdom, in contempt of our said present sovereign lord the king and his laws, to the evil and pernicious example of all others in the like case offending, and against the peace of our said lord the king, his crown, and dignity, whereupon, &c. [usual conclusion of an information by the attorney general as ante, 6.] open the from the vers goods. [Commencement as ante, 6.] That A. B. late of, &c. C. D. Information late of, &c. together with several other riotous and ill-disposed for a riot and breaking persons to the said attorney general of our said lord the now king as yet unknown, on, &c. at, &c. with force and arms, &c. house of the unlawfully, riotously, and routously assembled, collected, and ambassador conjoined to disturb the peace of our said lord the now king, duke of Saand being then and there so assembled and collected, with voy, and takforce and arms, &c. riotously, routously, and unlawfully broke ing from down the doors of the dwelling house of the most noble thence diL. J. T. count of P. in Piedmont, in parts beyond the sea, (d) then being the envoy extraordinary sent to our said lord [*59] Charles the Second, by the grace of God, &c. from his royal highness the Duke of Savoy, and through the said door so broken open with force and arms, &c. unlawfully, riotously, and routously broke and entered the said dwelling house and the chattels and household goods of the said L. J. T. count of P. so being such envoy extraordinary as aforesaid, then and there found with force and arms, &c. riotously, routously, and unlawfully took and carried away, and the said L. J. T. count of P. being such envoy extraordinary as aforesaid, for a long space of time, to wit, from, &c. aforesaid, until, &c. with force and arms, &c. unlawfully, riotously, and routously kept out from the possession of his aforesaid dwelling house and other wrongs to him did, to the evil example, &c. and against the peace, &c. (Conclusion as ante, 6.) (d) Trem. P. C. 186. 2 Show. 149. CHAPTER V. INDICTMENTS, &c. FOR OFFENCES AGAINST THE [*60] Preliminary Observations on the offence of High Treason, Indictment, Defence, Evidence, Judgment, and Punishment. (a) I.* AS TO THE OFFENCE OF HIGH TREASON, see 1 East, P. C. 37 to 138. 4 Bla. Com. 74 to 93. Com. Dig. Justices, K. It is principally defined and regulated by the stat. 25 Ed. III. st. 5. c. 2. and 36 Geo. III. c. 7. The 25th Edw. III. st. 5. c. 2. declares it to be high treason "when a man doth compass or imagine the death of our lord the king, or of our lady his queen, or of their eldest son and heir, or if a man do violate the king's companion, or the king's eldest daughter unmarried, or the wife of the king's eldest son and heir, or if a man do levy war against our lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be proveably (i. e. upon sufficient proof) attainted of open deed by the people of their condition. And if a man counterfeit the king's great or privy seal, or his money, and if a man bring false money into this realm, counterfeit to the money of England, as the money called Lushburgh or other like to the said money of [*61] England, knowing the money to be false to merchandize,* or make payment in deceit of our lord the king, and his people, and if a man slay the chancellor, treasurer, or the king's justices of the one bench, or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, (a) As the points upon these sub- notes preceding the forms of Indictjects are voluminous, it has been con sidered preferable to state them as ment. being in their places during their offices." The statute 36 Geo. III. c. 7. enacts that "If any person after the passing of this act, during the natural life of the king, and until the end of the next session of parliament, after a demise of the crown shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm leading to death or destruction, maim, or wounding, imprisonment or restraint of the person of the king, his heirs or successors, or to deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm, or of any other of his majesty's dominions or countries, or to levy war against his majesty, his heirs or successors within this realm, in order by force or constraint to compel him or them to change his or their measures or counsels or in order to put any force or constraint upon or to intimidate or overawe both or either houses of parliament, or to move or stir any foreigner or stranger with force to invade this realm, or any other his majesty's dominions or countries under the obeisance of his majesty, his heirs and successors, and such compassings, imaginations, inventions, devices, or intentions, or any of them shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed, being legally convicted thereof, by the oaths of two lawful and credible witnesses upon trial or otherwise convicted or attainted by due course of law, then every such offender shall be deemed, declared, and ad judged to be a traitor. The following is the analysis of the distinct heads of offence. 1 East, P. C. 57. 1. The compassing or imagining of the death of the king. 2. Compassing or imagining the death of the queen or the eldest son and heir of the king and queen. 3. Violating the king's wife or eldest daughter unmarried, or the wife of his eldest son and heir. 4. Levying war against the king in his realm. 5. Adhering to the king's enemies. 6. Counterfeiting the king's seals. 7. Killing his officers. 8. Concerning the coin. 9. Concerning papists and the king's supremacy. 10. Concerning the succession to the crown. 11.* Seducing, or attempting to seduce others from their al- [*62] legiance. 12. Desertion from the king's forces. These several heads of offence are fully commented upon in 1 East, P. C. 58 to 93. Com. Dig. Justices, K. And the following precedents of indictments will be found arranged nearly in the same order. The treason must be established by proof of some overt act or apertum factum, which must be laid in the indictment. 3 Inst. 5. 2 East, R. 11. 6 East, R. 426. Crim. Law. VOL. II. H The acts to establish that the defendant did "compass or imagine the death of the king" as high treason prohibited by 25 Ed. III. st. 5. c. 2. are 1st. Actual killing, 1 East, P. C. 58. 2dly. Preparing means of death, 1 East, P. C. 58. 4thly. Deposing or taking possession of king or government, 1 East, P. C. 59. 5thly. Overawing and subverting parliament, 1 East, P. C. 60. 6thly. Levying and consulting to levy war, 1 East, P. C. 62. 7thly. By constructive levying of war, 1 East, P. C. 63. The acts to establish that the defendant did "levy war against the king in his realm,” as high treason prohibited by 25 Edw. III. st. 5. c. 2. are 1st. All insurrections against the person of the king, whether they be to dethrone, imprison, or force him to alter his measures of government, or to remove evil counsellors from about him, 1 East, P. C. 66. 2dly. Holding a fort, &c. against the king, 1 East, P. C. 68. 3dly. Joining with rebels in any act of rebellion, 1 East, P. C. 70. 4thly. Giving assistance or intelligence to rebels, 1 East, P. C. 72. 5thly. Constructive levying war by insurrection to reform supposed national grievance, &c. 1 East, P. C. 72. The acts to establish that the defendant was " adherent to the king's enemies in his realm, giving them aid and comfort in the realm or elsewhere," as high treason prohibited by 25 Edw. III. st. 5. c. 2. are not limited or defined, but are principally 1st. Sending information to enemy of the state of forces, &c. 1 East, P. C. 78. 2dly. Making war on king's allies, 1 East, P. C. 79. The acts to constitute high treason under 36 Geo. III. c. 7. [*63] are* "within the realm, or without compassing, imagining, inventing, devising or intending." 1st."Death or destruction, or any bodily harm tending to death or destruction, maim, or wounding, imprisonment or restraint of the person of the king, his heirs or successors," or 2dly. "To deprive or depose him or them from the style, honour, or kingly name of the imperial crown of this realm or of any other of his majesty's dominions or countries," or 3dly. "To levy war against his majesty, his heirs, or successors, within this realm, in order by force or constraint to compel him or them to change his or their measures or counsels," see 1 East P. C. 63. 66. 67. or 4thly. "To levy such war, in order to put any force or con straint upon, or to intimidate or overawe both, or either houses of parliament," or 5thly. "To move or stir any foreigner or stranger with force to invade this realm, or any other of his majesty's dominions or countries, and in the obeisance of his majesty, his heirs, and successors," 1 East P, C. 63–78. "Such compassings, imaginations, inventions, devises, or intentions, or any of them being expressed, uttered, or declared by publishing any printing or writing, or by any overt act or deed." The VENUE must be laid II. AS TO THE INDICTMENT. in a county in which an overt act of treason can be proved, but after proof of an overt act in one county, evidence may be given of any other overt acts of the same species of treason in other counties, 1 East P. C. 125. 4 East Rep. 171. 1 Burr. 647, ante 1 vol. and it is sufficient to lay the overt act at any place in the county, though it be proved to have been in another place, 1 East P. C. 125. In stating an overt act in sending letters to enemy abroad, it is better to state that the letters were sent from the place where the venue is laid to be delivered, in parts beyond the seas, 1 East P. C. 124. Intercepted letters are received as overt acts of treason in the county in which they were written, 2 Camp. 506. For treason out of the realm, the commission and indictment allege that the offence was committed without the realm. Platt's case, Leach ch. 4. Ed. 157. Every indictment for high treason must lay the offence to have been committed traitorously, 2 Lord Raymond, 870. Comb. 259. 1 East P. C. 115. and should conclude against the duty of the defendant's allegiance. Comb. 259. 1 Lord Raymond 1, 2. Salkeld 630.-1 East P. C. 115. A charge of doing any thing seditiously, does not amount to a charge of treason, 1 East P. C. 115. Where the traitor is a natural born subject, it is usual to lay the offence to have been done against [*64] his "natural" allegiance, but that is not necessary, for in the general word allegiance is comprised every species of it, and the addition of the word "natural" is improper, where the defendant is a foreigner. Yet if that fact appeared upon the face of the indictment, the word "natural" might be rejected as repugnant, and surplusage. 1 East P. C. 115. Holt 686. It is sufficient, however, if the species of treason such as compassing the king's death be laid to be done "traitorously" there is no necessity to charge every separate overt act, relating thereto to be so done. And it is sufficient in stating such several overt acts to couple them together by an "and" without repeating "that the jury further present," &c. or the like, but that form is the proper one in laying distinct species of treason, 1 East, P. C. 116. see Holt, 686, 7. 4 Harg. St. Tr. 702. In every indictment for high treason, upon the Stat. 25 Ed. |