Odger's English Common Law

THE STATUTE OF TREASONS, 1351. 145
as in common speech, the carrying such design to effect." 1
It will be seen
at once that this is an exception to the doctrine laid down by Lord Mans-
field in R. v. Scofield, 2—that a bare intent, however criminal, is not punishable
by our law. A substantive offence is here constituted by the mere
secret intention of attempting to kill the King. Yet an " overt act," 3
though not essential to the crime in the abstract, is essential to the proof
of it. The prisoner cannot be convicted unless he " be thereof proveably
attainted of open deed ; " so that the distinction is in practice immaterial.
Nevertheless an indictment under this section invariably charges that the
prisoner did " traitorously compass and imagine " the death of the
Sovereign, and then goes on to allege overt acts as the means employed by
the prisoner for executing his traitorous purpose. The compassing the
death is considered as the treason, the overt acts as the means employed
to effect the intention of the traitor.
The Act, it will be observed, only protects the King in his personal
capacity, save when an army is in the field against him. Hence the judges
of the seventeenth and eighteenth centuries by a series of violent inter-
pretations of the original words of the section endeavoured to afford the
Monarchy and Government a wider protection—interpretations which were
totally at variance with the plain and obvious meaning of the statute. Thus,
imprisoning the King was held to be a compassing of his death, and so
were the acts of inciting foreigners to invade the kingdom and of levying
war against the King even in a distant colony. One of these constructive
treasons, namely, compassing and imagining any bodily harm tending to kill,
maim, imprison, wound or restrain the Kiug, was made treason beyond all
doubt by the Act of 1795,* and this is still treason. The other two of these
constructive treasons by a subsequent statute were made treason-felonies, 5
and are usually indicted as such. Both these statutes, however, left untouched
theAct of Edward III., and it is therefore in some cases still open to
the Crown to proceed against an offender either for treason or for treason-
felony. 6 In such cases he would no doubt as a rule be indicted only on the
lesser charge ;
he can be convicted of this, although the facts amount in law
to treason, and if he is either convicted or acquitted on a charge of treason-
felony, he cannot afterwards be prosecuted for treason on the same facts.'
2. Violating the King's consort, their eldest daughter unmarried, or the
wife of their eldest son and heir, is treasonable, even though it takes place
by consent ; indeed it would seem that, if the consenting party be the
King's consort, she is herself a principal traitor. 8
3. Levying war against the King in his realm is another form of treason.
To bring the case within this clause it is not necessary that the offenders
be armed, or even that they be in military array. The word "war" has
i 4 Bla. Com., p. 78.
8 (1784), Cald. S. C, at p. 403.
3 This term is explained post, p. 147.
1 36 Geo. III. c. 7.
6 11 Vict. c. 12 ; see post, p. 150.
» lb. ss. 6, 7.
1 B. v. Ahlert, [1915] 1 K. B. 616, 625.
8 Anne Boleyn and Catherine Howard were condemned as principal traitors and
executed as such.
B.C.L.
10