[What does not amount to War against the King.]

REGINA v. JOHN FROST AND OTHERS.

MONMOUTHSHIRE SPECIAL COMMISSION.

1839.

4 STATE TRIALS (N.S.) 85.

[Indictment for high treason by levying war against the Queen. The evidence showed that Frost, in command of a body of some 5000 persons, many of whom were armed, had entered Newport; and had fired upon, and broken into, the Westgate Inn, which was occupied by a detachment of soldiers. A conflict took place, in which several of the rioters were killed.]

TINDAL, C.J., in the course of his summing up, said: ...The learned Attorney General stated the case on the part of the Crown against the prisoner to be this-that the prisoner at the bar had brought down to the town of Newport a very large multitude of persons, arıned and arrayed in a warlike manner; and that the plan was to get possession of the town of Newport, to break down the bridge, and stop the mail, so that, the mail not arriving at Birmingham for some time, it would be a signal for a general rising in Birmingham and Lancashire....

On the part of the prisoner, the learned counsel who appear for him state, and I think are justified in so stating, that they are not bound to shew what was the object or purpose or intent of the acts that were undoubtedly done by the prisoner at the bar. His counsel say the offence charged against him must be proved by those who make the charge; that he stands only to hear the evidence that is given against him, and therefore he is not bound to shew at all, or in any way whatever, what his real object or design was. Undoubtedly the proof of the case against the prisoner must depend for its support, not upon the absence or want of any explanation on the part of the prisoner himself, but upon the positive affirmative evidence of his guilt that is given by the Crown. It is not, however, an unreasonable thing, and it daily occurs in investigations, both civil and criminal, that if there is a certain appearance made out against a party, if he is involved by the evidence in a state of considerable suspicion, he is called upon for his own sake, and his own safety, to state and to bring forward the circumstances, whatever they may be, which might reconcile such suspicious appearances with perfect innocence. And therefore the learned counsel of the prisoner, although he entered his protest against his being necessarily required to make such a statement, proceeds to say, that the case of the prisoner at the bar was one that was

perfectly innocent, that is, perfectly innocent so far as regards the crime of high treason. He stated that it was never intended by the prisoner either to take the town, or to attack the military, which latter act was purely accidental; that all that was intended was, to make a demonstration to the magistracy of Newport and the county, of the strength of those persons who were called Chartists, for the single purpose and design of inducing the magistrates either to procure the liberation of one Vincent and three other persons, who had been convicted of some political offences and were then confined in Monmouth gaol, or, at all events, to procure a mitigation in their mode of treatment whilst under imprisonment.

Gentlemen, if that outline which is made by the officers of the Crown is filled up by evidence, there is no doubt whatever that the guilt of the party accused amounts to high treason; and on the other hand, if falling short of that offence, it amounts to no more than the description which has been given of it by the counsel for the prisoner, although it would be a most grievous offence as a misdemeanor, involving the security of the property, and perhaps of the lives, of many persons in the town of Newport. Yet it would be deficient in the main ingredient of the offence of levying war against the Queen within her realm; it would want the compassing and designing to put down the authority and government of the Queen; it would amount to no more than a very aggravated misdemeanor; and upon that supposition and state of facts the prisoner would be entitled to an acquittal upon the present indictment....

Verdict, Guilty.

[Adhering to the King's enemies.]

REX v. VAUGHAN.

OLD BAILEY SESSIONS. 1696.

2 SALKELD 634.

The defendant was indicted for treason in adhering to the King's enemies cum plurimis subditis Gallicis inimicis Domini Regis; and that they did navigate a certain vessel, called The Clancarty, with a design to destroy the King's ships.

At the trial, it was held by HOLT, C.J., and the other justices that an indictment for adhering to the King's enemies generally, without

shewing particular acts or instances, is not good. For the words of the Statute are, "And thereof be proveably attainted by some overt deed."...

And if it be not a good indictment without special acts, the question is whether [when it does set out special acts] only those that are alleged ought to be proved, and no others.

Per HOLT, C.J. A distinct overt act cannot be given in evidence unless it relate to that which is alleged, or conduce to the proof of it. But if it conduce to prove an overt act alleged, 'tis good evidence. If consulting to kill the King be alleged, any acting or doing in pursuance of that consultation may be proved; for it proves their agreement and consent, and is a further manifestation of the act alleged in the indictment.

It was also objected :-(1) That the seamen must appear in evidence to be Frenchmen born, for if they were Dutch, they are not subditi Gallici; (2) That though he was said to adhere to the King's enemies, it was not said to be against the King; (3) That this was not a sufficient act of adhering, without fighting or some act of hostility.

PER CURIAM. (1) If the [Dutch] States be in alliance with us, and the French at war with us, and certain Dutchmen turn rebels to the States and fight under command of the French King, they are inimici to us and Gallici subditi. For their French subjection makes them French subjects, in respect of all other nations but their own. And if such cruise be at sea, and an Englishman assist them, he is a traitor; but not a pirate, for none are pirates that act under the command of a sovereign prince. (2) Adhering to the King's enemies must of necessity be against the King. Therefore, if an Englishman assist the French, being at war with us, and fight against the King of Spain. who is an ally of the King of England, this is treason, as adhering to the King's enemies against the King; for the King's enemies are thereby strengthened and encouraged. So it is within the express words of 25 Edw. III. "adhering to the King's enemies." And it is sufficient to allege the treason in the words of the Statute. (3) Cruising is a sufficient overt act of adhering, comforting, and aiding; as, if Englishmen enlist themselves and march, this is sufficient without coming to battle; and there may be a "levying war without actual fighting.

[What may amount to an overt act.]

OLD BAILEY.

1691.

LORD PRESTON'S CASE.

12 HOWELL'S STATE TRIALS 646.

[Sir Richard Grahame (Viscount Preston, of Scotland) was indicted, along with others, for compassing the death of William and Mary, King and Queen of England. One overt act laid was the hiring a ship for the conveyance of treasonable papers to the French Government (then at war with England). Another was the hiring a boat and boatman in order to proceed to that ship.]

In answer to an objection raised by Lord Preston,

ATKYNS, C.B. said :-Here are instructions given to the French King how to invade England, and carry on the war against us. These instructions are contained in several papers, and these papers in a packet are carried to the smack, which smack was hired to go to France. You are found taking water at Surrey-stairs, which is in the county of Middlesex, in order to go to the smack. You did go to the smack; the papers were taken in your company; and were seen, lying by your seals; and the witnesses swear they believe some of them to be your hand. You took care to desire to have them disposed of. Now how far the jury will believe this matter of fact (that is thus testified) is left to them. This seems to be the proof; and if the jury do believe it, here is plain evidence of an overt act in the county of Middlesex.

[See also REGINA v. Davitt, infra, p. 380.]

[Words spoken.]

HUGH PYNE Esq.; HIS CASE.

A CONSULTATION A.D. 1628.

CROKE CAR. 117.

One William Collier, attending the said Mr Pyne at his house in the country, was demanded of him, whether he had seen the King at Hinton, or no? whereunto Collier answered, that he had seen the King there. Mr Pyne thereto replied, "Then hast thou seen as unwise a King as ever was, and so governed as never King was; for he is

carried as a man would carry a child with an apple: therefore I, and divers more, did refuse to do our duties unto him....And Mr Pyne said aloud, "Before God, he is no more fit to be king than Hickwright.” This Hickwright was an old simple fellow, who was then Mr Pyne's shepherd.

These words being thus proved by William Collier and George Morley, all the Judges were commanded to assemble themselves; to consider and resolve what offence the speaking of those words were. Whereupon Sir NICHOLAS HIDE, Chief Justice of the King's Bench, Sir THOMAS RICHARDSON, Chief Justice of the Common Bench, Sir JOHN WALTER, Chief Baron of the Exchequer, Sir WILLIAM JONES, one of the Justices of the King's Bench, Sir HENRY YELVERTON, one of the Justices of the Common Bench, Sir THOMAS TREVOR, and GEORGE VERNON, Barons of the Exchequer, none other of the Judges being then in town, met at Serjeants' Inn in Fleet Street, where they debated the case amongst themselves, in the presence of Sir ROBERT HEATH, the King's Attorney General: and divers precedents were then produced. E.g. ... Edward Peacham' was indicted of treason, for divers treasonable passages in a sermon, which was never preached, or intended to be preached, but only set down in writings, and found in his study: he was tried and found guilty, but not executed. Note, that many of the Judges were of opinion that it was not treason....

Upon consideration of all which precedents, and of the statutes of treason, it was resolved by all the Judges before named, and so certified to his Majesty, that the speaking of the words before mentioned, though they were as wicked as might be, was not treason. For they resolved, that unless it were by some particular statute, no words will be treason; for there is no treason at this day, but by the Statute of 25 Edw. III.; for imagining the death of the King, &c. And the indictment must be framed upon one of the points in that Statute; and the words spoken here can be but evidence to discover the corrupt heart of him that spake them: but of themselves they are not treason, neither can any indictment be framed upon them.

To charge the King with a personal vice, as to say of him that he is the greatest whoremonger or drunkard in the kingdom, is no treason, as YELVERTON said it was held by the Judges, upon debate of Peacham's

case.

1 EDITOR'S NOTE. For Peacham's case, A.D. 1615, see 2 State Trials 869, Foster 199, and Hallam's Const. Hist. I. 342.