In charging the grand jury at the Liverpool Winter Assizes, December 11, 1848, Alderson, B., referred to the provisions of the Treason Felony Act, 1848, 11 & 12 Vict. c. 12, as follows:-I have been informed that it is the intention of Her Majesty's Government not to remain contented with the Bills at present before us, but that they deem it their duty to make a selection as to some of those persons, and to prefer an indictment for a traitorous felony which has been created by the Act which passed about a twelvemonth ago.

The 3rd Section enacts that" If any person after the passing of this Act shall within the United Kingdom or without compass, imagine, invent, devise or intend to deprive or depose our most gracious Lady the Queen, her heirs or successors, from the style, honour, or royal name of the Imperial Crown of the United Kingdom, or of any of Her Majesty's dominions and countries, or 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 in order to put any force or constraint upon, or in order to intimidate or overawe both Houses or either House of Parliament or move or stir any foreigner to invade the United Kingdom, and such compassings, imaginations "--and so on" or any of them shall express, utter, or declare, by publishing any printing or writing or by open and advised speaking, or by any overt act or deed," every person so offending shall be guilty of felony and shall be liable to be transported for life.

Now this has made an alteration in the lawnot a material one in respect to the nature of the offence excepting in one particular, to which I must call your attention. The law is the same as it was before for the purpose of treason, because when one speaks of open and advised speaking--about which, as I understand, much difficulty was made in another place-I apprehend the people who so discussed it did not attend to the distinction between open and advised speaking where the open and advised speaking merely contains a declaration of previous intentions, and where the open and advised speaking consists in the nature of an advice and incitement to others-the latter being a clear overt act of treason according to the law as it stood before, the former, which is probably that which is intended by this Act, being of a totally different nature, merely for the purpose of showing distinctly what was in the person's mind by a species of confession, so to speak, of the intent existing in the mind. But I take it to be perfectly clear that open

(a) See above, p. 599n.

and advised speaking where it assumes the nature of an advice and incitement to others is, and always was, an overt act of high treason, because it is an incitement and an inducement to others to do acts which the party is a party t to doing the moment they are done by the others, and, therefore, I apprehend there was no reasonable ground for the distinction which was sought to be made, unless, indeed, it was that which I refer to, introducing a species of distinct and advised confession into the law which was not there before. If so, there might be some reason for discussing it with propriety.

Now let us see what the principles are which are to govern the attempting to depose the Sovereign from her royal authority, and what is compassing and levying war. I take it I cannot do better than express it thus: Whenever you undertake by means of force and violence to carry into effect any public and general change in the Government, or any general purpose pervading the whole kingdom, as distinguished from a purpose which applies only to a particular district or to a particular object

the one is of the nature of a private purpose and the other is in the nature of a public or general purpose-if it be a general purpose and be enforced by force and violence, and if it assume the nature of arming or drilling or the like, all these, if for a public purpose, become a compassing to levy war; if for a private purpose, they are only in the nature of a conspiracy to perform a riot. That is the distinction between one and the other. Some have talked as if the word were to be "universal," and, therefore, if a man has an object which is general indeed to the whole of the United Kingdom, but with a reservation of some particular place therefrom, which particular place he is minded, being his own county, not to disturb, it has been said that that is not a universal purpose. That is pure nonsense. The matter to be distinguished is between a particular and a general purpose-one which pervades the whole kingdom without being defined, the other which is defined within the limits of space, or time, or object. Therefore it does not require that you should meet with military array. War may be carried on without the force of soldiery or the force of cannon, or meeting in the way in which war is carried on between one uncivilized or civilized nation and another. It means force and violence and a meeting of people together to perform a general purpose by force and violence, bearding, so to speak, the monarchical authority of the Crown, the Crown having alone the power by force to carry measures generally into effect. People who assume to themselves such powers which belong to the Crown there.

fore compass, so to speak—and according to common sense surely it is so-to levy war against the monarchical authority which they defy, and which they use force in order to compel it to comply with their purposes.

I will read to you now a much better authority than my own, what Lord Chief Justice Tindal said when he laid down this as the law. It expresses it much more correctly than I could do. I have, however, first put it into my own language, because that always expresses to oneself more clearly that which is one's own mind than what one reads from the language of others:

"It has been laid down," says Lord Chief Justice Tindal,(a) "by undoubted authority, that if a large number of persons assembled together, whether armed with military weapons or not, endeavour, by dint of numbers or superior strength, to effect any object or matter purely of a private nature, as for example to prosecute some private quarrel, or to take revenge for some private injury, to destroy some particular enclosure, or to remove some particular nuisance, or generally to accomplish some end in which the particular parties assembled together had any private interest, such acts of violence and aggression, however the authors of them may be punishable, as for a high misdemeanor, do not amount to a levying of war within the Statute of Edw. III. But every insurrection which in the judgment of law is intended against the person of the King, whether to dethrone or imprison him, or to oblige him to alter his measures or government, or to remove evil counsellors from about him, all such risings amount to a levying of war within the Statute. So 'insurrections to throw down all enclosures, to alter the established law, or change religion, to enhance the price of all labour, or to open all prisons '(b)-it is no answer to say that they do not mean to open a particular individual prison in a particular individual district, if the object be to open prisons generally all risings in order to effect these innovations of a public and general concern by an armed force are in construction of law High Treason within the clause of levying war, for though not levelled at the person of the King, they are against his Royal Majesty, and besides they have a direct tendency to dissolve all the bonds of society and to destroy all property and all government too, by numbers and an armed force. Insurrections likewise for redressing national grievances or for the reformation of real or imaginary evils of a public nature, and in which the insurgents have no special interest, risings to effect these ends by force and numbers, are by construction of law within the clause of levying war, for they are levelled at the King's crown and royal dignity.'

That is what Lord Chief Justice Tindal said, and that I believe to be very clearly the law of the land. Do not let us be misled by the absurd questions which have been put on this

(a) Charge at the Monmouth Special Commission, 1839, 4 St. Tr. N.S. 92. (b) Fost. C.L. 210.

subject, for all things may be brought to an absurdity by being driven to an extremity. People pulling down all bawdy houses was one of the absurdities; but the principle is right, only the illustration shows rather an absurd case in which to apply the law. But why should we apply it to absurdities when the principle is clear? The principle here is right when properly exercised and according to sound and useful maxims of law.

Now we are to say what is deposing the Queen from her royal dignity. It is not necessary that there should be a general conspiracy to take the crown off the Queen's head. If you were to conspire together to depose her from any portion of her kingdom, that would be clearly a conspiracy, a compassing and deposing of the Queen. If any of you were to propose that she should no longer remain Queen of Ireland but only of England and Scotland, that would be clearly compassing the deposition of the Queen, because it would be compassing her deposition from part of her dominions.

Those are the principles to which your attention will have to be directed. You will inquire, therefore, when the case comes before you, whether the evidence satisfies you that there was a public object in view sought to be carried into effect by force, by the uniting of armed persons in a determined and violent manner, and whether the object was general, pervading the whole kingdom, or particular, pervading only an individual district. If it was to pull down mills at Ashton or mills at Dukinfield, or at Hyde, it would not be a public purpose, it would be a private purpose, a riot, a conspiracy for a riot, but not that which you will have laid before you. But if you find that there was any intention to raise a universal insurrection throughout the kingdom, for the purpose of carrying into effect a public and general object, to propose a change in the law of the country by overawing either the Queen or either of the Houses of Parliament to make thein do contrary to that which in their calm and deliberate judgment they deemed best for the advantage of all, such an attempt, if carried into effect by force, if carried into effect by a large number by violence, by arms, by union, is high treason and a levying of war against the Crown. You will therefore see whether that is made

out.

There is, however, one matter more upon this point to which I must call your attention, because this Act of Parliament has altered in that respect the law of high treason. I dare say many of you, some of you I know, are perfectly aware that an act of treason, according to the Statute of Edw. III., consisted in compassing and imagining alone, and overt acts, according to the Statute of Edw. III., were merely evidence whereby the treason was made manifest. They were no part of the offence itself, but this Statute, 11 & 12 Vict. c. 12, makes it necessary that not only there should be a compassing and imagining, a levying of war, but that there should be some overt act of doing so in order to constitute the offence. Therefore you must be satisfied that some overt act is made out, one of them, I mean, or two of them, if there

are more than one which shall be laid in the indictment. You must be satisfied that the overt act is made out as well as the compassing and imagining, and if the particular overt acts contained in the indictment, or some one of them are not made out you ought not to find the Bill, even though you were satisfied generally of the compassing and imagining and levying of war, because here we have an Act of Parliament which requires two things-the offence is contained at the commencement in the imagining, and in the overt act also.

Now what is an overt act? It is any act of conspiracy, conferring or consulting with or advising, persuading, counselling, commanding, or inciting any person-so that it is absurd to say that words may not be an overt act. If I advise you to go and kill your neighbour, and you go and kill him, my words are an act, they are an act of advice, an act of incitement, and therefore it is idle to say they are mere words; they are not so, they are an overt act and may be properly laid as such. Or, again, an overt act may consist in any course, act, measure, or

means whatever done, taken, used or assented to towards and for the purpose of effecting a traitorous intention. That is a reasonable and good definition of an overt act. Then you must be satisfied that the act laid in the indictment is proved; you must be also satisfied that it is an act done in pursuance of the original compassing to levy the war which is charged. If you are satisfied of both these, you ought to find the bill. If you are not satisfied either that the act is proved, or being proved, you are not satisfied that it was done in pursuance of the original intention of compassing and intending to levy war, it is not an overt act of conspiracy; and if not proved it is no overt act at all. Therefore you will inquire into that case. There may be a case laid before you with a great number of overt acts, and then you will say whether or not the charge of imagining and conspiring to levy war is made out, and whether the particular overt acts, or any of them, for any one will do, are made to your satisfaction, such act being one which in your judgment is an act of compassing and levying war.

THE CENTRAL CRIMINAL COURT. The Central Criminal Court is at present constituted under the provisions of the Central Criminal Court Act, 1834 (4 & 5 Will. 4. c. 36.), which created the Central Criminal Court District, embracing the city of London, itself a county by prescription, Middlesex, and the adjoining parts of Essex, Kent, and Surrey. Before the passing of the Act, London and Middlesex cases were tried at the Sessions House, Old Bailey, under a commission of oyer and terminer for the city of London, and a commission of gaol delivery for the gaol of Newgate. These Commissions were issued at the commencement of each mayoralty, and were directed to the Lord Mayor, the Lord Chancellor, the King's Ministers and Secretaries of State, the Judges of the Courts at Westminster, the Attorney and Solicitor General, the Aldermen, the Recorder, the Common Serjeant, and the Judges of the Sheriffs' Court, any two or more of whom were empowered to act under them. The charter of Hen. 1. granted the citizens of London the right to choose their own justiciar to keep and hear pleas of the Crown, (b) and the charter of Edw. 3. granted that the Mayor should be a justice of gaol delivery for Newgate, and should be named in every commission for

that purpose. Doubts are expressed by the Commissioners on Municipal Corporations(c) whether the Lord Mayor sat in virtue of the

charters or of the annual commissions. The Act

of 1834 contains a clause, s. 23, saving the

(a) See above, pp. 723, 783.

(b) "Sciatis me concessisse civibus meis Londoniarum tenendum Middlesex ad firmam pro c.c.c. libris ad compotum, ipsis et hæredibus suis, de me et hæredibus meis, ita quod ipsi cives ponent vicecomitem qualem voluerint de se ipsis, et justitiarium qualem voluerint de se ipsis, ad custodiendum placita coronæ meæ et eadem placitanda, et nullus alius erit justitiarius super ipsos homines Londoniarum . . . et si quis civium de placitis coronæ implacitatus fuerit, sacramentum quod judicatum fuerit in civitate, per se disrationet homo Londoniarum." As to these words see the essay on the Early Administration of London in "Geoffrey de Mandeville, a Study of the Anarchy," by J. H. Round, M.A., London, 1892; also Stow's "Survey of London," vol. 2, p. 483; Pulling's "Laws, Customs, and Regulations of the City and Port of London," p. 209.

(c) 2nd Report, 1837, p. 77.

rights, privileges, &c., of the Lord Mayor and Corporation.

Middlesex cases were tried at the Old Bailey ancient custom presumed to date from the diviwithin the county of the city of London by sion of Loudon from Middlesex (a) under the commission of general gaol delivery for Newgate, which was "the common gaol for the city of London and the county of Middlesex for the confinement of felons and other offenders, and, also, a prison for the confinement of other persons in the custody of the Sheriffs of London and of the Sheriff of Middlesex."(b) The bills of indictment, however, were found at Clerkenwell by a Middlesex grand jury before the Middlesex Justices, who were commissioners of oyer and terminer as well as in the commission terminer was issued at intervals of some years, of the peace.(c) This commission of oyer and and empowered any four or more of the Justices to act under it. (d) Indictments for serious crimes found before the Middlesex Justices at Clerkenwell, and also those found before the Old Bailey for trial under the commission of Westminster Justices, were transmitted to the the bill for establishing the Central Criminal gaol delivery for Newgate.(e) In introducing Court, Lord Brougham stated that the preliminary appearance of the prisoners and wit

nesses at Clerkenwell had been a source of great delay and inconvenience.(ƒ)

There were eight sessions at the Old Bailey in each year, and 25 Geo. 3. c. 18. provided that they should not be determined by the sittings of the Court of King's Bench. They were generally attended by two or more of the Judges of the Superior Courts before whom capital charges and the more serious offences were tried. Other cases were tried before the Recorder, the Common Serjeant, or one of the judges of the Sheriffs' Court, one alderman at least being always present. The Lord Mayor attended the opening of the sessions, as he still does, and was supposed to be always present, his sword remaining in court, and his seat being unoccupied in his absence. At times the Lord

(a) Popham, 16, Rex v. Gough, Dougl. 796, 2 Hawk. P.C. c. 5. s. 16.

(b) Recital in 52 Geo. 3. ccix. (a local Act for rebuilding Newgate), and see 55 Geo. 3. c. xcviii., and Rex v. Cope, 6 A. & E. 226.

(c) Crown Circuit Companion, ed. 1737, p. 40. (d) See 4 Chitty Cr. L. 142, 145. (e) Crown Circuit Companion, p. 40. (f) 3rd Hansard, vol. 22, pp. 669.