earlier judgments have perhaps been misunderstood, through failure to appreciate the law as it stood at their date express references to which may, possibly, have been omitted by reporters; e.g. Holt's summing up in Freind, 13 St. Tr. 61, 1696, becomes intelligible if it be remembered that 13 C. 2, 1, was then in force and was interpreted in the light of remarks by Coke and Hale on the principal statute.

Overt act of compassing, &c.] See Accessories, above. For a time it was a favourite legal device to hold any disloyalty as a threat against the life of the sovereign: Darrel, above. Thus in Story, 1571, Dyer C.J., a contemporary, reports (298 a, 300 b): 'A subject of this realm, being beyond sea, practised with the prince or governor [Alva] of the said country [Flanders, then a Spanish dominion] to invade this realm with a great power; and in his practising declared by what means, and how and in what place the invasion might best be; and that if such invasion should be, there were many subjects there who would assist and adhere to him. (But yet there is no such invasion afterwards.) What offences are these practices; and how and where they shall be tried; and if the practising there be for the death or destruction of the prince what offence that is in the subject were the questions. And these offences are holden by the justices to be treason; for an invasion with power cannot be, but of necessity it will trench to the destruction or great peril of the person of the prince... Accordingly Story was arraigned of high treason in the Queen's Bench upon an indictment there taken by a jury to enquire in Middlesex, for the three causes of treason [as reported above] committed and perpetrated at Antwerp, in parts of Brabant'; found guilty and executed.

In the Earls of Essex and Southampton, 1 St. Tr. at 1355, 1600, the judges who advised the House of Lords formally expressed the opinion: That in every rebellion the law intendeth as a consequent the compassing the death and deprivation of the King, as foreseeing that the rebel will never suffer the King to live or reign who might punish or take revenge of his treason and rebellion'; the latter they defined ib. 'That in case where a subject attempteth to put himself into such strength as the King shall not be able to resist him, and to force and compel the King to govern otherwise than according to his own royal authority and direction, it is manifest rebellion.'

Inciting, &c. invasion of foreign force] There seems to be no other case than Story on the point of soliciting a government; but see Mulcahy and Davitt under s. 3 of the Treason Felony A.: moving ' and stirring foreigners; and cf. Casement.

Constructive treason has dwindled away, as 'overt acts' have been recognised either as the crimes to which they more obviously point or indexes of the intent to commit them. Thus, the prose cutions of 1794 (Stephen, cited above) would, on the same facts, not to-day be for treason.

Letters, messages] Posting or sending letters with intelligence intended to be useful to the enemy, is an overt act of 'adhering whether the letters reach them or not: Gregg, 14 St. Tr. 1376, 1708, relied upon in Hensey, 19 St. Tr. 1344, 1372, 1758: per L. Mansfield, where the despatch of such letters was distinctly held to be in law an overt act of (i) 'compassing' and (ii) adhering,' but it is obvious that. in fact, the latter treason may be intended without the former, as

the K. B. said in Darrel, 10 Mod. R. 322, 1716: 'compassing' and 'levying war.'

It seems to follow that a spoken message of the kind in question may be the overt act.

It is no defence that the message is to deter the enemy from invasion, if the intention is to assist the enemy, e.g. to prevent their plans failing: Stone, 25 St. Tr. 1427, 1431; 6 Term R. 529, 530, 1796. So it was held that if an intent to inform and not to mislead the enemy is proved, it is immaterial whether the information' conveyed is correct or not: M., 11 Cr. A. R. 207; 32 T. L. R. 1, 1915.

Proof of overt acts] The limits of this sort of evidence have sometimes been wide. But in Vaughan, at 500, 1696, where 'cruizing on the King's subjects in a vessel called 'The Loyal Clencarty'' was alleged, Holt resisted the attempt of the Crown lawyers to prove hostility in a custom-house barge.' Foster, 246, highly approves this decision, but contrasts it with that in other cases and himself suggests the rule laid down by himself and two other judges in Deacon, ib. 9, and 18 St. Tr. 365, 1746, that no overt act amounting to a distinct independent charge, though falling under the same head of treason, shall be given in evidence, unless it be expressly laid in the indictment; but still, if it amounteth to a direct proof of any of the overt acts which are laid, it may be given in evidence of such overt acts.' Now such evidence would be treated like any other tendered to prove Similar acts, which see.

Layer was indicted on overt acts in Essex (only), and his counsel admitting that evidence of overt acts in another county was admissible, objected that the foundation for this (in modern parlance) should be laid by proof of the alleged acts first, but was overruled: 164, 174, 176.

6

Indictment-British subject] The conclusion of a count against the peace of the Crown is an allegation that defendant is a British subject; it is not necessary to allege it; if the evidence shows that he is not, objection may then be taken: Jameson, 1896, following Sawyer, R. & R. 294 (1815: murder in Lisbon), where the allegation that the deceased was in the peace of the King' was held to import that she was a subject of the King. See above under 1351 statute.

Mens rea] is essential to make an overt act guilty. The provision of arms being alleged as such, the defence was that they were sold in the way of business with no idea of their destination; Cockburn C.J. directed the jury: if defendant, a gunmaker, did no more than make and supply them and merely shut his eyes to their destination [this must mean, from what follows, asked no questions] that is not sufficient to convict him. But . . if he, knowing the object, though himself not caring about it, yet, for the sake of sordid gain lent himself to that object, he would be guilty': Davitt and Wilson, 11 Cox C. C. 676, 1870, under Treason Felony A. 1848.

F. PUNISHMENT.

Hanging] By the combined effect of 54 G. 3, 146, 1, 1814, and 33-4 V. 23, 31, 1870; or

Beheading] by s. 2 of the former Act with s. 31 of the latter.

Women] must be hanged: 30 G. 3, 48, 1790; forfeitures, &c. remained as before.

Forfeiture] By 5-6 E. 6, 11, 6: Outlawry of convicted traitors outside the realm is to be as effectual as if they were within it; estates of inheritance are forfeited; wives lose dower on attainder of husband for treason. But this kind of forfeiture, except that 'consequent upon outlawry,' is abolished by 33-4 V. 23, 1.

TREASON FELONY.

By 11-12 V. 12, 3: 'If any person whatsoever. [A] shall, within the United Kingdom or without, compass, imagine, invent, devise or intend [a] to deprive or depose the Queen, her heirs or successors from the style, honour or royal name of the imperial crown of the United Kingdom or of any other of Her Majesty's dominions and countries or [b1] to levy war against Her Majesty, her heirs or successors within any part of the United Kingdom in order by force or constraint to compel her or them to change her or their measures or counsels or [b2] in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament or [c] to move or stir any foreigner or stranger with force to invade the United Kingdom or any other Her Majesty's dominions or countries under the obeisance of Her Majesty, her heirs, or successors; and [B] 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; every person so offending shall be guilty of felony': maximum punishment, penal servitude for life.

By s. 6, nothing in this A. is to affect the first St. of Treason. By s. 7, if the facts indicted or found amount to treason, a verdict. of felony is good; the same by 5 G. 5, 34, 1 (6), of felonies under the Defence of the Realm Regulations.

By s. 8, every principal in the second degree and every accessory before are punishable as principals, but accessories after are only liable to two years' imp. w. h. 1. (maximum).

Courts-martial] See under Mutiny.

See further under Treason.

Coercion by husband] See p. 1118.

TREASURE TROVE, CONCEALING,

is a common law misdemeanour: 3 Inst. 133; see Wreck. There may be [as in murder] an indictment and conviction before the coroner makes his inquisition, by 50-1 V. 71, 36: 9 Halsbury, 521, citing Toole, Ir. R. 2 Ch. 36; 11 Cox 0. C. 75: 1867, C. C. R. The offence

consists in intentional concealment': ib., citing Thomas and Willett, L. & C. 313, 1863, where the finder believing the treasure to be brass, sold it as such to two persons, one of whom knew it was gold and the other buyer sold it as gold; this and his denying that he had done so was held evidence of his knowingly concealing. I am inclined to think,' said Martin B., that the first person who conceals the treasure is guilty and not those into whose possession it comes subsequently. If, therefore,' here the finder had known that the treasure was gold, I should have doubted whether the prisoners could have been convicted.'

Not, it seems,' triable at Q. S., being an offence against the prerogative of the King': ib.,

8.

TREATING.

See under Bribery.

TREES, &c.-OFFENCES RELATING TO.

Stealing, &c.] By 6-7 G. 5, 50, 8 (2): Whoever 'steals, or with intent to steal, cuts, breaks, roots up, or otherwise destroys or damages the whole or any part of any tree, sapling, or shrub, or underwood, growing (a) in any place whatsoever, the value of the article stolen or the injury done being to the amount of one shilling at the least, after two previous summary convictions of any such offence; or (b) in any park, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house, the value of the article stolen or the injury done exceeding the amount of one pound; or (c) in any place whatsoever, the value of the article stolen or the injury done exceeding the amount of five pounds; (3) Steals, or with intent to steal, destroys or damages any plant, root, fruit or vegetable production growing in any garden, orchard, pleasure ground, nursery ground, hothouse, greenhouse, or conservatory, after a previous summary conviction of any such offence, shall be guilty of felony, and on conviction thereof liable to be punished as in the case of simple larceny.' For the meaning of the words 'adjoining or belonging to,' see Hodges, 1829. A pear tree was held not to be fruit or vegetable production.'

'Cut or otherwise destroy'] in a rpd. s. There was no destruction where there was not absolute and positive ruin' of the plant; though it was very much bruised, there was no evidence whether it died or not from the injury and so none of destruction. Boucher, 5 Jur. 709, 1841.

See also Arson.

Hopbinds] By 24-5 V. 97, 19: 'Whosoever shall unlawfully and maliciously cut or otherwise destroy any hopbinds growing on poles in any plantation of hops shall be guilty of felony': maximum punishment, penal servitude for fourteen years; and, if a male under the age of sixteen years, a whipping.

Ss. 20-3 seem to cover the same ground as s. 8 (2), (3), above, in respect of damage without stealing or intent to steal; s. 23 has 'with intent to destroy,' and corresponds to (3), above.

Where a tenant the night before the expiration of his tenancy cut down trees, and perhaps the jury found that he believed that he had a right to do so, the C. C. A. would not say that if the jury did not negative malice (under s. 20, which says 'maliciously'), there could not be a conviction. Rutter.

See, generally, under Malicious Injury, II.

Value] The actual injury to the trees themselves-without 'consequential' damage-must be to the value mentioned in the s. Where, therefore, there was an indictment for having done damage to trees in a hedge amounting to more than 57., and it appeared that the injury to the trees themselves amounted to 17. only, but that it would be