Page:Encyclopædia Britannica, Ninth Edition, v. 23.djvu/549

Rh TREASON 529 trary to the Acts of Settlement and Union is pnemunire by 6 Anne c. 41. To do so by writing or printing is, as has been said, treason. The latest Act constituting a praemunire is the Royal Marriage Act, 12 Geo. III. c. 11, which subjects to the penalties of premunire any one guilty of a breach of the provisions of the Act. A peer charged with pnemunire is not entitled to trial by his peers, but is to be tried by a jury. The most famous historical instance of a prosecution on the Statute of Praemunire was that of Wolsey in 1529. Other offences cognate to treason are publishing scandalous stories about the king (the leasing-making of Scotch law), mal administration and sale of public offices, coining, offences against the Foreign Enlistment Act, and the crimes specially provided against by 33 Hen. VIII. c. 12 and 5 and 6 Viet. c. 51. The former Act punished malicious striking in the king s palace by perpetual imprisonment, fine, and loss of the right hand. The minute provisions for the mutilation of the offender are very curious, but not of immediate interest, as that part of the Act which inflicted mutilation was repealed by 9 Geo. IV. c. 31. By 5 and 6 Viet. c. 51 it is a high misdemeanour, punishable by penal servitude for seven years, to wilfully discharge, point, aim, or present at the person of the queen any gun or other arms, loaded or not, or to strike at or attempt to throw anything upon the queen s person, or to produce any firearms or other arms, or any explosive or dangerous matter, near her person, with intent to injure or alarm her or to commit a breach of the peace. For other offences which are more or less nearly connected with treason refer ence may be made to the articles LIBEL, OATHS, PETITION, RIOT, and SEDITION. 1 Scotland. Treason included treason proper, or crimes against the crown or the state, such as rebellion, and crimes which, though not technically treasonable, were by legislation punished as treason. Examples of the latter were the remaining in England against the king s will, 1430, c. 19 ; wilful fire-raising, 1526, c. 10; kidnapping, 1567,c. 27 ; theft, reset, and stouthrief by banded men, 1587, c. 34. There were also many acts dealing with offences in the nature of resistance to authority, such as unlawful convocations, and with treasons of a merely transitory nature, such as attempting to restore the Ruthvens (1600), taking or owning the Covenants (1685), or corresponding with James VII. (1698). Acts of forfeiture were sometimes directed against individuals, as 1645, c. 23, against the marquis of Huntly. Scottish procedure was as a rule less favour able to the accused than English. In one matter, however, the opposite was the case. Advocates compellable to act on behalf of the accused were allowed him by 1587, c. 57, more than a century before the concession of a similar indulgence in England. At one time trial in absence and even after death was allowed, as in Roman law. In the case of Robert Leslie, in 1540, a summons after death was held by the estates to be competent, and the bones of the deceased were exhumed and presented at the bar of the court. 2 The Act 1542, c. 13, confined this revolting procedure to certain treasons of the more heinous kind. By 7 Anne c. 21 trial in absence the last instance of which had occurred in 1698 was abolished. The same Act assimilated the law and practice of treason to that of England in other respects by enacting that no crime should be treason or misprision in Scotland but such as was treason or misprision in England. The Act further provided that the trial was to be by a jury of twelve, not fifteen as in other crimes, before the court of justiciary, or a commission of oyer and terminer containing at least three lords of justiciary. To slay a lord of justiciary or lord of session, or to counterfeit the great seal, was made treason. The Act also contained provisions as to forfeiture, 3 qualification of jurors, and procedure. Outlawry for treason was regulated by 22 Geo. II. c. 48. The punishment still remains the same as it was in England before the Felony Act, 1870, and attainder and forfeiture are still the effects of condemnation for treason, the Act of 1870 not extending to Scotland. One or two other statutory provisions may be briefly noticed. The trial of a peer of Great Britain for treason committed in Scotland is to be )y a commission from the crown, on indictment found by a jury of twelve (6 Anne c. 23, 6 Geo. IV. c. 66). Bail in treason -felony is only to be allowed by consent of the public prosecutor or warrant of the high or circuit court (11 Viet. c. 12). The term lese-majesty was sometimes used for what was treason proper, e.g. in 1524, c. 4, making it lese-majesty to transport the king out of the realm, sometimes as a synonym of leasing-making. This crime (also called 1 Authorities. The text-writers on criminal law, such as Hale and Hawkins ; Bacon, Law Tracts, Cases of Treason; Coke, 3 Jnst.. 1-39; Sir R. Holbourne, Reading on the Statute of Treasons; Luders, Law Tracts; Foster, Discourse of Treason ; Stephen, Comm., vol. iv. bk. vi. ch. vi. The Statute of Treasons is noticed by Hallam, Const. Hist., vol. iii. p. 203; Stubbs, Const. Hist., vol. iii. p. 513. The most valuable modern authorities are Stephen, Hist, of the Criminal Law, vol. ii. ch. xxiii., and Willis Bund, Selection of Cases from the State Trials. 2 In the one instance in England that of Cromwell. Ireton, and Bradshaw where the bodies of alleged traitors were exhumed after death they were not brought to the bar of a court as in Scotland. 3 The provisions in the Act as to forfeiture&quot; (now repealed) were, according to Blackstone, Comm., vol. iv. p. 3S4, the result of a compromise between the House of Lords, in favour of its continuance, and the House of Commons, supported by the Scottish nation, straggling to secure a total immunity from this disability. verbal sedition) consisted in the engendering discord between king and people by slander of the king. 4 The earliest Act against leasing-making eo nomine was in 1524. The reign of James VI. was pre-eminently prolific in legislation against this crime. It is now of no practical interest, as prosecutions for leasing-making have long fallen into desuetude. At one time, however, the powers of the various Acts were put into force with great severity, especially in the trial of the earl of Argyll in 1681. The punishment for leasing-making, once capital, is now, by 6 Geo. IV. c. 47, fine or imprisonment, or both. The offence of praemunire was introduced into Scotland at a comparatively late period. By 6 Anne c. 23 it is prsemunire for the peers of Scotland assembled to elect represen tatives to treat of any other matter. 5 Ireland. Numerous Acts, beginning with 18 Hen. VI. c. 2, were passed by the Irish parliament in many cases mere echoes of previous English legislation. As in England and Scotland, there was a tendency to include under treason crimes of quite another character. Murder was made treason by 10 Hen. VII. c. 21, and arson by 13 Hen. VIII. c. 1. Apparently the law must sometimes have been strained against accused persons, for 3 and 4 Ph. and M. c. 11 enacted that trials for treason were to be according to the common law. Treasons of a temporary nature were often the subject of legislation. An example is 11 Eliz. c. 6, making it treason to assume the name and authority of O Neill. The provisions of the English Act of William III. as to witnesses, &c., were not extended to Ireland until 1821 by 1 and 2 Geo. IV. c. 24. Many Acts of indemnity were passed both by the parliaments of Ireland and of the United Kingdom. Among the more important were an Irish Act of 1799 (39 Geo. III. c. 3), indemnifying those who had been active in suppressing the treasonable rising of the previous year, and one of the parliament of the United Kingdom (41 Geo. III. c. 104), indemnifying those who had taken part in the suppression of rebellion subsequent to 1799. The law is now practically the same as that of England, unless where exceptional political circum stances have led to exceptional legislation. Thus a series of enact ments called the &quot; Whiteboy Acts&quot; (passed by the Irish and the United Kingdom parliaments between 1775 and 1830) was intended to give additional facilities to the executive for the suppression of tumultuous risings. Many Irish Acts dealt with unlicensed posses sion and manufacture of arms. A similar policy was continued after the Union, and appears in the Peace Preservation Act, 1881, continued in 1887 for five years. Some Acts, such as 3 and 4 &quot;Will. IV. c. 4, went as far as to make offenders in a proclaimed district triable by court-martial. By the Prevention of Crime Act, 1882, now expired, the lord-lieutenant was empowered to issue special commissions for the trial without jury of treason and treason-felony. The power was never exercised. The Criminal Law and Procedure (Ireland) Act, 1887, deals with resistance to authority and offences of a treasonable nature, especially &quot; dangerous associations,&quot; though treason is not mentioned by name. British Colonies and Dependencies. The law in the main agrees with that of the mother country, but it is quite competent for a colony to deal with treason by its own legislation Avhich need not necessarily be in accordance with English law, and is sometimes ex pressed in more definite terms. Thus the Indian penal code makes it punishable with transportation for life to wage war against the Government of any Asiatic power in alliance or at peace with the queen, or to attempt to excite feelings of disaffection to the Govern ment. Numerous temporary Acts were passed about the time of the mutiny, one of the most characteristic being an Act of 1858 making rebellious villages liable to confiscation. By the Cape of Good Hope statutes it is treason to deliver arms or gunpowder to the queen s enemies. Many colonies adopt the English legislation as to procedure, and some, as New South Wales, &c., enact the Treason Felony Act. A striking feature of colonial legislation on this subject is the great number of Acts of indemnity passed after different rebellions. Instances of such Acts occur in the legislation of Canada, Ceylon, the Cape of Good Hope, New Zealand, St Vin cent, and Jamaica. The most important in the history of law is the Jamaica Act of 1866, indemnifying Mr Eyre for any acts com mitted during the suppression of the rising in the previous year. It was finally held by the Exchequer Chamber in 1870 that this Act protected Mr Eyre from being sued successfully in England on a cause of action arising out of his acts during the outbreak (&quot;Phil lips v. Eyre,&quot; Law Reports, 6 Queen s Bench, 1). United States. The law is based upon that of England. By Art. 3 s. 3 of the constitution treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall bo convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason; but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted.&quot; By Art. 2 s. 4 4 It is called by Hallam &quot; the old mystery of iniquity in Scots law.&quot; 5 For the existing Scots law of treason see Macdonald, Criminal Late, p. 220, For leasing-making see Hume, Comm., vol. i. p. 345. XXIIL 67