¹ Hansard, col. 516.

² This allegation could be interpreted as referring to treason under Roman-Dutch law (although it is believed that as such it would be meaningless without distinguishing between perduellio and laesae majestatis), but it has been understood to refer to treason under English law by, among others, the authors of an article at [1966] Crim.L.R. 5; and the Prime Minister has expressly alleged treason “under our law” (on 25 January 1966: Hansard, col 53).

³ Treason Act 1351, s. 2.

⁴ It is significant that the draftsmen of the U.S. Constitution attached so much importance to the law of treason that they embodied it into the Constitution (Article III, (iii)): no other branch of American criminal law was treated in this manner.

⁵ R. v. Casement [1917] 1 K.B. 98Google Scholar.

⁶ Joyce v. D.P.P. [1946] A.C. 347Google Scholar.

⁷ Although there is a dearth of authority directly on the point, it would seem to be incontestable that the duties imposed upon a British subject and those imposed on the Sovereign by the Coronation Oath are mutual, and that a breach of the Oath will absolve subjects from their allegiance. The statement of the law in the earlier editions of Stephen's Commentaries (e.g., the 17th ed. (1922), IV, 144) reads as follows:

Also, a king who has resigned his crown is, according to Sir M. Hale, no longer the object of treason. And the same rule holds in case where the King abdicates the government, or by actions subversive of the Con-stitution, virtually renounces the authority which he claims by the Constitution; since, when the fact of abdication is once established and determined by the proper judges, the consequence necessarily follows that the throne is thereby vacant, and he is no longer king.

This passage may be compared with the resolution of the House of Commons on 28 January 1689 to the effect that:

King James II, having endeavoured to subvert the constitution of the kingdom by breaking the original contract between King and people, and, by the advice of Jesuits and other wicked persons, having violated the fundamental laws, and having withdrawn himself out of the kingdom, had abdicated the government, and that the throne had thereby become vacant.

Jefferson pleaded the Declaration of Independence on similar lines.

⁸ Half way between Crecy and Poitiers.

⁹ 1 St.Tr. at xxvi. Emlyn also produced the first edition of Hale.

¹⁰ The text, divided into paragraphs for convenience of reference, reads as follows:

1. Item, whereas divers opinions have been before this time in what case treason shall be said, and in what not: the King, at the request of the lords and of the commons, hath made a declaration in the manner as hereafter followeth, that is to say:

(i) 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;

(ii) 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;

(iii) or if a man do levy war against our lord the King in his realm;

(iv) 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 probably [i.e., proveably] attainted of open deed by the people of their condition;

(v) [relates to forgery of the seal: repealed by the Forgery Act 1830]

(vi) and if a man slea the chancellor, treasurer or the King's justices [defining justices];

and it is to be understood, that in the cases above rehearsed, that ought to be judged treason which extends to our lord the King, and his royal majesty. And of such treason the forfeiture of the escheats pertaineth to our sovereign lord, as well of the lands and tenements holden of other, as of himself. [Then follow some provisions relating to petit treason, repealed in 1828.]

2. [And because that many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time: it is accorded, that if any other case, supposed treason, which is not above specified, doth happen before any justices, the justices shall tarry without any going to judgement of the treason, till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony (repealed by the Statute Law Revision Act 1948).]

3. [Lays down that certain forms of robbery, etc., are not to be regarded as treason]

¹¹ See R. v. Casement [1917] 1 K.B. 98Google Scholar.

¹² The term “rebellion” is defined in the legal dictionaries as “levying war” or “taking up arms traitorously” against one's sovereign, and this corresponds with the primary definition in the Shorter Oxford Dictionary. It was in this sense that the term was used repeatedly in the treason trials (see the State Trials, passim, and particularly the cases indexed under “rebellion”). The term is found in the general exception clause in innumerable insurance policies and bears the same meaning (see Drinkwater v. London Assurance Corp. (1767) 2 Wils. 363, where the court was only stating the obvious when it said that there could be no rebellion without a “species belli,” i.e., some kind of warfare). And see also the cases arising out of the Irish Rebellion ( R. v. Allen, R. v. Strickland and Higgins v. Willis [1921] 2 I.R. 241, 317 and 386Google Scholar ) where the view of the court may be summarised in these words: “That it is for the court to decide as a fact whether a particular area is in rebellion, and that the test is whether fighting is in progress at the material time.” The term is used almost invariably as a synonym for levying war within the realm, contrary to subs. 1

(iii) of the Act of 1351. If the law is correctly stated in Black's Dictionary and the Corpus Juris, the American courts attach the same meaning to the term.

An important feature of the law of rebellion is the rule that when a British subject is actively engaged in rebellion he loses the protection of the Queen's peace and may, like an enemy invader in time of war, be killed with impunity; in no other circumstances, not even when awaiting execution after sentence of death, is a citizen deprived of this protection: see 10 Halsbury's Laws (3rd ed.), § 1351, where the older authorities are listed.

¹³ The term “rebel” was regularly used to describe a person engaged in rebellion as defined in note 12, ante.

¹⁴ According to both Archbold, 36th ed., § 3027, and 10 Halsbury's Laws (3rd. ed.), § 1030, enlisting and marching are sufficient to constitute levying war without coming to battle: R. v. Vaughan is the case cited, and it is believed to stand alone.

¹⁵ Poyning's Law 1495; Ireland Act 1949.

¹⁶ Treason Act 1708.

¹⁷ e.g., Russell, Kenny, etc.

¹⁸ See pp. 202–205, post.

¹⁹ See pp. 206–207, post.

²⁰ Although mere words have been regarded as insufficient since Pine's Case (1628) Cro.Car. 117, where the earlier authorities were reviewed.

²¹ State Trials, Vol. 5: Kel. 7.

²² These will be discussed later in this article.

²³ The law relating to overt acts is also important for purposes of venue, since where treason is committed in England it may only be tried in a county in which at least one overt act occurred. For this reason there was a tendency to stretch the law for purely procedural purposes. The best known example is R. v. Lord Preston (1691) 12 St.Tr. 645, who was prosecuted under subs. 1 (.i) and subs. 1 (iv) in Middlesex although the only overt act committed in that county was the hiring of a boat on the Thames for treasonable purposes: commentators fail to consider the significance of this decision, or to mention that there was other abundant evidence of treasonable acts committed elsewhere. (In any case, the decision can scarcely be regarded as a “judicial decision” at all: Lord Preston, who was tried by a jury under the name of Grahme, his peerage having been conferred by James II after his abdication, repeatedly protested that no overt act had been committed in Middlesex, but Holt C.J. rejected his protests out of hand and refused his application for leave to instruct counsel to argue the law.)

²⁴ Most treason cases are reported in the State Trials. Readers who are not familiar with these books should be warned that they consist of verbatim reports of proceedings from arraignment to verdict (or execution): there are no head-notes or any of the other aids to be found in modern reports and it is naturally impossible to ascertain what facts were accepted by the court or the juries. Speeches were often verbose and repetitive, but I have endeavoured in this article to select representative passages from judicial directions and the addresses of prosecuting counsel.

I would like to take this opportunity of thanking the Law Faculty of the University of Leeds for placing at my disposal their set of State Trials and many other books which would not otherwise have been available to me.

²⁵ This case, together with R. v. Charnock and Others and R. v. Layer are only referred to in this article because they are cited in Archbold and Halsbury in a context which suggests a possible relevance to the topic under consideration.

²⁶ Almost certainly the Act to Retain the Queen's Majesty's Subjects in their Due Obedience 1581: this was aimed at the Catholics and was repealed in 1844 (7 & 8 Vict., c. 102). The pleading of the indictment preferred against Campion is wholly defective by modern standards, but appears to allege, in a single multiple count: (i) a charge under subs. (1) (i) of the Act of 1351; (ii) the overthrow of the established religion, contrary to the Act of 1581; and (iii) stirring up strangers to invade the realm, contrary to the Treason Act 1570.

²⁷ 1 St.Tr. 1415.

²⁸ 1 St.Tr. 1340–1342.

²⁹ I do not think this is a misprint for “chop”! To “shop” in Tudor times meant to imprison: O.E.D.

³⁰ 1 St.Tr. 1355.

³¹ [1966] Crim.L.R. 5: the authors of this article, like Stephen, H.C.L. II, 265, cited the opinion of the court on the law, without any reference to the facts of the case and without considering the problems to which it gives rise.

³² R. v. Blount and Others, 1 St.Tr. 1416.

³³ One of the first things done by Popham C.J. was to rule that Essex had no right of challenge, at col. 1335. He presided over the subsequent trial of the commoners and cross-examined Sir Christopher Blount from the bench. The Popham-Coke combination reached its peak in 1603 when they succeeded in obtaining the conviction of Sir Walter Ralegh, 2 St.Tr. 1, apparently in the absence of a single item of credible or admissible evidence, probably under the Acts of 1570 and 1581. They collaborated again in R. v. Winter and Others (the Gunpowder Plot) (1606), 2 St.Tr. 159, but the evidence in that case was much stronger.

It is worth noting that at this period an accused person was not allowed to employ the services of counsel; later in the century counsel could be briefed, with the leave of the court, to argue points of law, and during the 18th century they began to assume their modern functions; criminal procedure underwent a marked improvement as a result.

³⁴ See post, especially R. v. Darrel and note 42.

³⁵ 7 Co.Rep. at 10b.

³⁶ 9 St.Tr. at 636.

³⁷ Sic: he is spelt thus in the State Trials.

³⁸ 9 St.Tr. at 889.

³⁹ Sidney's conviction was annulled by a statute referred to in the State Trials as Wm. & M. No. XXIV; the D.N.B. and Encyclopaedia Britannica are agreed that Russell's conviction was also annulled.

⁴⁰ See note 25, ante.

⁴¹ The records of most of the cases arising out of the first Jacobite Rebellion have been lost; see 18 St.Tr. at 329.

⁴² The distinction for this purpose between levying war directly against the sovereign and constructive levying of war is accepted by all authorities and survives in Archbold, 36th ed., § 3019.

⁴³ See note 25, ante.

⁴⁴ A passage from Blackstone's Commentaries, published in 1765, has already been cited on p. 189, ante; this passage, very slightly abridged, survived in Stephen's Commentaries until it was abandoned in 1928.

⁴⁵ And for the importance which may be attached to these authors in other branches of the law, see Button & Swain v. D.P.P. [1965] 3 W.L.R. 1131Google Scholar.

⁴⁶ East's Pleas of the Crown (1803) Chap. 2, § 7, follows Hale, and Archbold, 36th ed., § 123, says emphatically: “Laying several overt acts in a count for high treason is not duplicity … because the charge consists of the compassing, etc., and the overt acts are merely evidence of it.”

⁴⁷ When General Gage declared that an assembly to consider grievances would amount to treason, Jefferson replied: “We would remind him that [the Treason Act 1351] has expressed and defined all treasonable offences, and that the legislature of Great Britain had declared that no offence shall be construed to be treason, but such as is pointed out by that statute, and that this was done to take out of the hands of tyrannical kings, and of weak and wicked ministers, that deadly weapon, which constructive treason had furnished them with, and which had drawn the blood of the best and honestest men in the kingdom”: 58 Harv.L.R. 250. Stephen, however, without citing authority, said that all American colonists who had taken part in the war would in strict law have been traitors and liable to be treated as such: H.C.L. II 242.

⁴⁸ 26 St.Tr. at 815.

⁴⁹ The Gordon Riots (R. v. Gordon (1781) 21 St.Tr. 485) were not connected with the war.

⁵⁰ Historical references are from Bryant, Years of Endurance, unless otherwise specified.

⁵¹ Agnes Mackenzie, Scotland in Modem Times, Chap. 13.

⁵² Treason Act 1795, preamble.

⁵³ This episode is usually known as the mutiny at Spithead and the Nore, but there was ample evidence to support a prima facie case of levying war within the realm, and eventually Parliament passed two Acts (37 Geo. 3, c. 70 & 71) expressly declaring that the fleet was in rebellion.

⁵⁴ Mason Wade, The French Canadians, Chap. 3; Osgoode C.J.'s charge to the grand jury in R. v. Maclane, 26 St.Tr. at 723.

⁵⁵ Although these words are in inverted commas, no source is cited.

⁵⁶ No one who has ever handled a criminal prosecution can possibly accept this. If the State Trials are a safe guide, this conspiracy was by far the most difficult case which the Law Officers had ever handled. The arrests (of 13 conspirators altogether) were effected in May; the grand jury found a true bill on 6 October, and the prosecution of Hardy commenced on 28 October. So far from there being any sign of panic, every indication is that the case was prepared with the most meticulous care and patience during those anxious summer months.

⁵⁷ Lord Eldon's Anecdote Book, § 96.

⁵⁸ 24 St.Tr. at 241–258. Stephen regarded this speech as “tiresome reading” and ignored most of the points which were made in it: H.C.L. II at 276.

⁵⁹ 24 St.Tr. at 257.

⁶⁰ The court sat until 12.15 a.m. on the first day, and thereafter as follows:

day 2: 8.0 a.m. to midnight.

day 3: 11.0 a.m. to 1.30 a.m.

day 4: 9.0 a.m. to 1.30 a.m.

day 5 (Saturday): noon to 12.20 a.m.

day 6 (Monday): 8.0 a.m. to 12.25 a.m.

day 7: 8.0 a.m. to 11.35 p.m.

On the final day, 5 November, the court sat at 9.0 a.m. and the jury retired at 12.35 p.m. and returned three hours later. The jury spent the first night at the Sessions House; on the second night, they asked permission to go home: this request was refused, but for the rest of the trial they were provided with accommodation at the Hummums in Covent Garden: 24 St.Tr., passim.

In his memoirs, § 173, Sir John Scott has described how every evening on leaving court, he was hissed and hooted by the mob all the way down Ludgate and by Fleet Market; one night they stopped his carriage in Old Bailey and threatened to drag him out and lynch him. Erskine (defending counsel), on the other hand, was treated with “universal plaudits”: one night the mob took his horses away and pulled him home by hand—but he never got his horses back!

⁶¹ 24 St.Tr. at 682. In addition the members of the Society were in regular contact with Paris and were lucky not to have been charged with adhering to the enemy.

⁶² Scotsmen may inquire what qualities were present in the Scottish juries which enabled them to convict Watt and Downie (p. 205, post) so easily and, apparently, on such similar evidence.

⁶³ Anecdote Book, § 96.

⁶⁴ Op. cit.

⁶⁵ The draft of this speech is printed at 25 St.Tr. 7.

⁶⁶ He called both Pitt (at col. 381) and Fox (at col. 370) for the defence.

⁶⁷ 25 St.Tr. at 743.

⁶⁸ The report of R. v. Thelwall was lost: for such information as survives, see 25 St.Tr. 748 and the D.N.B.

⁶⁹ 24 St.Tr. at 1361. Stephen, H.C.L. II 276, says that Eyre C.J. limited his remarks on the law to a few general observations at cols. 1379–1380; he evidently failed to find the detailed review of the law at col. 1361.

⁷⁰ 25 St.Tr. at 725.

⁷¹ Stephen. H.C.L. II 276, agrees that this was how Erskine put the case for the defence: see 24 St.Tr. at 880 and 25 St.Tr. at 264.

⁷² Vol. VII, 593.

⁷³ It is fair to concede that this point was not raised on the motion in arrest of judgment made on behalf of Watt and Downie.

⁷⁴ These cases are usually overlooked by historians and lawyers, but an account may be found in Agnes Mackenzie's Scotland in Modern Times, Chap. 13.

⁷⁵ 23 St.Tr. at 1191.

⁷⁶ 24 St.Tr. at 11.

⁷⁷ Printed at 23 St.Tr. 1389.

⁷⁸ The passage of the Atlantic in those days took anything from five to twelve weeks. I think it fair to assume that the Canadian jury knew of events in England at least as late as February, and probably as late as April, 1797.

⁷⁹ Kenyon C.J. evidently regarded count 1 as a pure formality, and virtually told the jury to ignore it: 25 St.Tr. at 1424.

⁸⁰ 26 St.Tr. at 751.

⁸¹ 26 St.Tr. at 794.

⁸² 26 St.Tr. at 823.

⁸³ The authors of the article in [1966] Crim.L.R. 5 expressly relied on this case, but did not explain why they selected it out of the numerous cases arising out of the Irish Rebellion. They quoted a short passage from Carleton C.J.'s summing-up without reference to the facts of the case or to the rest of what he said.

⁸⁴ 27 St.Tr. at 387.

⁸⁵ As Mr. Law, he had acted as junior counsel for the Crown against Hardy.

⁸⁶ Including the Duke of Wellington: for a concise account of the plot, see Bryant, Age of Elegance, Chap. 11.

⁸⁷ 33 St.Tr. at 717.

⁸⁸ St.Tr. at 919.

⁸⁹ 33 St.Tr. at 1136.

⁹⁰ In 1820, the word “probable” was still used in its stricter sense of ”probabilis,” i.e., provable, or capable of being put to the test: see Salmond on Torts, 14th ed., § 171, n. 53.

⁹¹ Thistlewood does not appear to have contested the case on the facts. Ings' defence, at col. 1108, was that he became embroiled with the gang without appreciating the nature of the plot.

⁹² 3 Cox at 401–402.

⁹³ See notes 31, 47, 58, 69 & 71, ante.

⁹⁴ H.C.L. II 278.

⁹⁵ J. Willard Hurst suggests that some colonial courts had nothing but a few textbooks available in the 18th century: 58 Harv.L.R. at 249. However, Osgoode C.J. seems to have had access to the reports.

For an account of the Canadian Rebellion of 1837 and for the ingenious method devised by the Governors to avoid putting the leading rebels on trial, see Mason Wade, op. tit., Chap. 4 and the Case of the Canadian Prisoners (1839) 5 M. & W. 32. It is not clear how the rebels were charged, but “publick rebellion” had been treasonable (under local legislation) in many colonies since the 17th century.

⁹⁶ History of English Law, VIII, 318.

⁹⁷ Although Russell on Crime was published early in the 19th century, the chapter on treason appears to have originated only in 1950. I am indebted to the Librarian of the Squire Law Library for supplying me with information relating to earlier editions of textbooks.

⁹⁸ The Commentaries, based on Blackstone, were first published in 1841 by H. J. Stephen (1787–1864), who was the uncle of Sir James (1829–1894): D.N.B. (The article on Sir James in the D.N.B. is some indication of his reputation among contemporaries, especially when it is remembered that this obituary appeared only four years after his death, and while his brother, who had edited the earlier volumes of the D.N.B., was still alive.)

⁹⁹ I assume that there is no evidence that the Queen's life was imperilled by U.D.I.

¹ It may be noted that a criminal attempt is another offence which consists of a mens rea without an actus reus: in R. v. Cook (1963) 48 Cr.App.R. 98Google Scholar, Parker C.J. said that it was a matter of law for the judge to decide whether there is any evidence capable of constituting an attempt, and for the jury to say whether they accept it as an attempt. It is submitted that this is an exact parallel.

² My argument in no way depends upon this benign construction of a difficult Act. For a new interpretation of it, see now Mr. Honoré's learned article “Allegiance and the Usurper”, post, p. 214.

³ See p. 194, ante.

⁴ Theories found in some modern textbooks that this Act was passed to “clarify the law” or “to confirm the doctrine of constructive treason” cannot be supported, although certain established and recognised “overt acts” were raised temporarily to the status of substantive treasons: see Dallas C.J.'s charge to the grand jury in R. v. Thistlewood, 33 St.Tr. at 684.

⁵ Thus the phrase relating to compassing to deprive the King of his style, honour or royal name goes back to the Act for the Ratification of the King's Majesty's Stile 1543, and conspiring to levy war in the realm had been made treasonable by the Treason Act 1570 (which was actually in force until the Statute Law Revision Act 1863).

⁶ The Treason Act 1842, creates the “high misdemeanour” of discharging missiles at the sovereign. The Act of 1848, which creates a felony, is strictly speaking outside the scope of this inquiry; the interpretation, both verbal and grammatical, of this Act gives rise to considerable difficulties, and arguments might be advanced to show that U.D.I, fell within its scope. On the other hand, U.D.I. is deemed to be invalid on the ground that it infringes the doctrine of parlia-mentary supremacy, which was crystallised by the Colonial Laws Validity Act 1865: if Parliament had wished to make an infringement of this Act treasonable or felonious, Parliament could have said so; in fact the Act has no penalty clause. The infringement of a statute for which no penalty is provided constitutes a misdemeanour at common law: The Torni [1932] P. 78Google Scholar.

⁷ 24 St.Tr. 251.

⁸ According to Bryant, the King was disgusted at the prosecutions.

* This article is concerned with the factual situation in Rhodesia as it stood in September 1967.