indictable offence he may be ordered to pay the costs of the trial.1

Whipping is now only allowed in certain special cases (male garrotters, male incorrigible rogues, male offenders against section 2 of the Criminal Law Amendment Act, 1885, male procurers and men who live upon the proceeds of prostitution,2 &c.). No person can be sentenced to be whipped more than once for the same offence, but juvenile offenders may in some cases be sentenced to receive not more than twelve strokes with a birch-rod. Since 1820 no female.

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can be either whipped or flogged. First offenders are always treated with special leniency. Children between twelve and sixteen years of age may be sent to a reformatory school instead of to prison; children under twelve may be sent to a certified industrial school.

Many other kinds of punishment were known to our ancestors. Transportation existed until 1857, when it was supplanted by penal servitude. Another barbarous form of punishment was the pillory, which, although forbidden in some cases in 1815, was not finally abolished till the year 1830. Again, the use of the ducking-stool was a form of punishment generally inflicted on a common scold, who was wheeled round the town in a chair and then ducked in some pond or other water. The latest recorded instance occurred at Leominster in 1809. Lastly, the stocks was a quaint method of punishment, which although quite obsolete is not yet entirely removed from our statute book. A man was placed in the stocks as recently as 1872.

Any person convicted on indictment may appeal to the Court of Criminal Appeal on any matter of law and, by leave, on any matter of fact and also to obtain reduction of his sentence. "Any person aggrieved by any conviction of a Court of summary jurisdiction who did not plead guilty or admit the truth of the information may appeal from the conviction to a Court of Quarter Sessions 7'6 on any question of law or fact, and also to the King's Bench Division on any question of law. The King also has power to pardon any

1 Costs in Criminal Cases Act, 1908 (8 Edw. VII.; c. 15), s. 6.

2 See 2 & 3 Geo. V. c. 20, ss. 3, 7 (5).

3 Criminal Justice Administration Act, 1914 (4 & 5 Geo. V. c. 58), s. 36 (1).

See the Probation of Offenders Act, 1907 (7 Edw. VII. c. 17); post, Book V.

5 See Andrews' Old-Time Punishments.

6 Criminal Justice Administration Act, 1914, s. 37 (1).

convicted criminal; but even the King cannot pardon an offender

(i.) who has been convicted of a public nuisance which still remains unabated; or

(ii) who has sent a prisoner out of the realm in order to deprive him of the protection of the Habeas Corpus Act.

So far we have dealt with the principles which are applicable to crimes in general. In the remainder of this Book we shall discuss specific crimes in detail and contrast each with those which it most closely resembles.

All crimes, as we have seen, are offences against the State. Even those crimes, which are attacks upon the person or property of an individual, are also injurious to the public at large. There are other crimes which are aimed more directly against the Constitution and tranquillity of the realm, and are therefore more pernicious. For this purpose it has been found convenient to classify crimes into three main groups:

I. Offences against the Sovereign, the Constitution and the Good Order of the Realm, such as treason, sedition, riot, nuisance and conspiracy.

II. Offences against the Person, such as murder, manslaughter, rape and robbery.

III. Offences against Property, such as larceny, forgery, burglary and arson.

This prerogative is in no way affected by the Criminal Appeal Act, 1907 (7 Edw. VII. c. 23). See ss. 6, 19.

231 Car. II. c. 2.

BOOK II.-PART II.

OFFENCES AGAINST THE SOVEREIGN, THE CONSTITUTION AND THE GOOD ORDER OF THE REALM.

CHAPTER I.

TREASON.

TREASON is now a purely statutory offence. It is defined by four statutes :—

25 Edw. III., st. 5, c. 2;

1 Anne, st. 2, c. 21;

6 Anne, c. 41; and

36 Geo. III. c. 7.

These statutes have entirely superseded the common law on the subject. Any act of disloyalty or any attack on the Constitution, which does not fall within the terms of one or other of these four Acts of Parliament as construed by our judges, is not treason,' though, as we shall shortly see, it may be punishable as sedition or riot.

The crime of treason cannot be tried at Quarter Sessions. It is punishable with death, which is generally inflicted by hanging-though the Crown may by sign manual direct that the traitor be beheaded.

No person can be guilty of the crime of treason, unless he owes allegiance to the King. Allegiance to the King is due from every person born within the King's dominions, and also from every person born abroad of parents who are British subjects. It is also due from an alien who has

1 The name High Treason was given to this offence in order to distinguish it from the crime of Petit Treason, which involved a breach of faith due from an inferior to a superior other than the King, e.g., where a servant killed his master, or a wife killed her husband, or an ecclesiastic killed his bishop. The crime of Petit Treason was abolished by 9 Geo. IV. c. 31, s. 2, and 24 & 25 Vict. c. 100, s. 8.

become a naturalized British subject. An alien, who has not become naturalized, owes a local allegiance while he is within the British dominions; and if, during such time, he commits. an offence which in the case of a natural-born subject would amount to treason, he may be punished as a traitor. For his person and property are as much under the protection of the law as those of a natural-born subject, and if he be injured in either he has a remedy in our Courts for such injury.

2

A British subject of full age and not under disability may now, either by obtaining a certificate of naturalization or by making a declaration of alienage, divest himself of his nationality. But he cannot do this in time of war with the view of becoming a subject of the State with which our country is at war; should he subsequently join the military forces of that State he would be guilty of treason. Naturalization under such conditions would afford no defence to an indictment for treason.3

Protection and allegiance are reciprocal obligations; hence allegiance is due to him who is in the full and actual exercise of sovereign power, and to none other; a King de facto, in the full and sole possession of the Crown, is King within the statutes relating to treason, and while he is on the throne, no other person, out of possession but claiming title to the Crown, is King within these Acts whatever his pretensions may be."

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1. The Statute of Treasons, 1351, enunciated the following acts as amounting to 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 attainted of open

1 De Jager v. Att.-Gen. of Natal, [1907] A. C. 326.

British Nationality and Status of Aliens Act, 1914 (4 & 5 Geo. V. c. 17), ss. 13, 14. 3 R. v. Lynch, [1903] 1 K. B. 444; 20 Cox, 468.

4 11 Hen. VII. c. 1.

25 Edw. III. s. 5, c. 2.

deed.1 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, being in their places doing their offices."

2. Any person who shall endeavour to deprive or hinder the person next in succession to the Crown for the time being, according to the limitations of the Act of Settlement, 1701, from succeeding to the imperial Crown of this realm, "and the same malitiously, advisedly and directly shall attempt by any overt act or deed," shall be guilty of treason.

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3. It is also treason maliciously, advisedly and directly to maintain by writing or printing that any person has a right to the Crown except in accordance with the Act of Settlement, or to maintain that an Act of Parliament cannot bind the Crown, and limit the descent thereof. Publication of such writing or printing does not appear to be necessary in order to complete the offence under this statute.

4. By an Act passed in the year 1795, made perpetual by an Act of 1816, "whosoever shall within the realm or without compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint" of the King, his heirs and successors, "and such compassings, imaginations, inventions, devises, 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 upon the oaths of two lawful and credible witnesses," shall be guilty of high treason.

Each clause of the Statute of Treasons requires separate consideration. 1. The first and most heinous act of treason mentioned in it is where a man doth compass or imagine the death of the King." The word compass" signifies the "purpose or design of the mind or will, and not,

66

1 The statute was written in Norman French, and the original language of this clause is " & de ceo pvablement soit atteint de ovt faite p gentz de leur condition." 2 By the above statute some other acts are also declared to be treasonable which have ceased to be so. Thus, it was treason to counterfeit the King's Great Seal or his Privy Seal, or to counterfeit his money. These two offences were reduced to felony by statutes passed in 1832.

3 1 Anne, st. 2, c. 21, s. 3.

4 Succession to the Crown Act, 1707 (6 Anne, c. 41), s. 1.

5 36 Geo. III. c. 7; extended to Ireland by 11 Vict. c. 12, s. 2.

6 57 Geo. III. c. 6.