A levying of war amounting to treason appears to consist of two elements,(1) the intent existing in the mind of the offender either forcibly, to overthrow the government or to compel it through fear to yield something to which it would not otherwise assent; and (2) some overt act in the nature of war or of preparation for or threatening it (1).

It may perhaps be safe to say that when open force and violence, however extensive or serious, is not such as directly or indirectly attacks the sovereign or the government or their power and authority, or is not such as tends in some way to forcibly overthrow, coerce, or intimidate them or either of them, it will not be treason; and, although exceptional cases may arise in which the line of division between a riot and treason by levying war may not be distinct, it should not, as a general rule, be a difficult matter,-under the law as expressed in the present Title,-to distinguish between circumstances amounting to levying war, under articles 65 and 68, and the riotous offences dealt with,-according to their differences of extent and gravity,-under articles 80, 83, 84, 85 and 86.

Every prosecution for treason, (except treason by killing Her Majesty, or where the overt act alleged is an attempt to injure the person of Her Majesty), must be commenced within three years from the time of the commission of the offence; and no person is to be prosecuted under the provisions of article 65 or of article 69 for any overt act of treason expressed in or declared by open and advised speaking, unless information of such overt act and of the words by which the same was expressed or declared is given upon oath to a justice within six days after the words are spoken and a warrant for the offender's apprehension issued within ten days after such information is given (2).

One witness is not sufficient unless corroborated. (Article 684). See also special provisions, as to trial, in Art, 658.

66. Treasonable conspiracy.-In every case in which it is treason to conspire with any person for any purpose, the act of so conspiring, and every overt act of any such conspiracy, is an overt act of treason.

67. Accessories after the fact to treason.-Every one is guilty of an indictable offence and liable to two years' imprisonment who

(a.) becomes an accessory after the fact to treason; or

(b.) knowing that any person is about to commit treason does not with all reasonable despatch, give information thereof to a justice of the peace, or use other reasonable endeavours to prevent the commission of the same.

By sec. 78 of the English Draft Code, the punishment of an accessory after the fact to high treason is penal servitude for life (3).

68. Levying war.(4)-Every subject or citizen of any foreign state or country at peace with Her Majesty, who

(a.) is or continues in arms against Her Majesty within Canada; or (b.) commits any act of hostility therein; or

(c.) enters Canada with intent to levy war against Her Majesty, or to commit any indictable offence therein for which any person would, in Canada, be liable to suffer death; and

Every subject of Her Majesty within Canada who

(1) 2 Bish. New Cr. L. Com. s. 1229.

(2) See article, 551, post.

(3) As to punishments of accessories after the fact in cases not otherwise expressly provided for, see articles 531 and 532 post.

(4) See comments under article 65, ante p. 45.

(d.) levies war against Her Majesty in company with any of the subjects or citizens of any foreign state or country at peace with Her Majesty; or

(e.) enters Canada in company with any such subjects or citizens with intent to levy war against Her Majesty, or to commit any such offence therein; or

(f.) with intent to aid and assist, joins himself to any person who has entered Canada with intent to levy war against Her Majesty, or to commit any such offence therein-is guilty of an indictable offence and liable to suffer death. R.S.C., c. 146, ss. 6 and 7.

Persons offending against the provisions of this article may be tried and punished either by any Superior Court of criminal jurisdiction or by a Militia Court Martial. (1)

69. Treasonable offences. (2)—Every one is guilty of an indictable offence and liable to imprisonment for life who forms any of the intentions hereinafter mentioned, and manifests any such intention by conspiring with any person to carry it into effect, or by any other overt act, or by publishing any printing or writing; that is to say

(a.) an intention to depose Her Majesty from the style, honour and royal name of the Imperial Crown of the United Kingdom of Great Britain and Ireland, or of any other of Her Majesty's dominions or countries;

(b) an intention to levy war against Her Majesty within any part of the United Kingdom, or of Canada, in order by force or constraint to compel her to change her 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 of the United Kingdom or of Canada;

(c.) an intention to move or stir any foreigner or stranger with force to invade the said United Kingdom, or Canada, or any other of Her Majesty's dominions or countries under the authority of Her Majesty. R.S.C., c. 146, s. 3.

70. Conspiracy to intimidate a legislature.-Every one is guilty of an indictable offence and liable to fourteen years' imprisonment who confederates, combines or conspires with any person to do any act of violence in order to intimidate, or to put any force or constraint upon, any Legislative Council, Legislative Assembly or House of Assembly. R.C.S., c. 146, s. 4.

71. Assaults on the Queen.—Every one is guilty of an indictable offence and liable to seven years' imprisonment, and to be whipped once, twice or thrice as the court directs, who

(1) See articles 538 and 540, post, and secs. 6 and 7 R.S.C. c. 146, (unrepealed), in appendix, post.

(2) See article 551 sub-sec. 2, post, which requires that, in prosecutions under articles 65 and 69 for any overt act of treason expressed in or declared by open and advised speaking, information of the words used shall be given on oath to a justice within six days after the words are spoken, and that a warrant for the offender's apprehension shall be issued within ten days after such information is given.

(a.) wilfully produces, or has near Her Majesty, any arm or destructive or dangerous thing with intent to use the same to injure the person of, or to alarm Her Majesty; or

(b.) wilfully and with intent to alarm or to injure Her Majesty, or to break the public peace:

(i.) points, aims or presents at or near Her Majesty any firearm, loaded or not, or any other kind of arm;

(ii) discharge at or near Her Majesty any loaded arm;

(iii) discharges any explosive material near Her Majesty ;

(iv.) strikes, or strikes at Her Majesty in any manner whatever; (v.) throws anything at or upon Her Majesty; or

(c.) attempts to do any of the things specified in paragraph (b) of this section.

72. Inciting to mutiny.-Every one is guilty of an indictable offence and liable to imprisonment for life who, for any traitorous on mutinous purpose, endeavours to seduce any person serving in Her Majesty's forces by sea or land from his duty and allegiance to Her Majesty, or to incite or stir up any such person to commit any traitorous or mutinous practice.

73. Enticing soldiers or sailors to desert.-Every one is guilty_of an indictable offence who, not being an enlisted soldier in Her Majesty's service, or a seaman in Her Majesty's naval service—

(a.) by words or with money, or by any other means whatsoever, directly or indirectly persuades or procures, or goes about or endeavours to persuade, prevail on or procure, any such seaman or soldier to desert from or leave Her Majesty's military or naval service; or

(b.) conceals, receives or assists any deserter from Her Majesty's military or naval service, knowing him to be such deserter.

2. The offender may be prosecuted by indictment, or summarily before two justices of the peace. In the former case he is liable to fine and imprisonment in the discretion of the court, and in the latter to a penalty not exceeding two hundred dollars, and not less than eighty dollars and costs, and in default of payment to imprisonment for any term not exceeding six months. R.S.C., c. 169, ss 1 and 4.

This article provides that an offender may be prosecuted either by indictment or summarily, and it specifies the penalty to be incurred on a summary conviction; but in the case of a conviction upon indictment, although it enacts that the offender shall be liable to fine and imprisonment in the discretion of the court, it does not specify the amount of the fine nor the length of the imprisonment. Article 951, however, provides that a person convicted of an indictable offence for which no punishment is specially provided shall be liable to five years imprisonment (1).

Section 9, R. S. C. chap. 169, (unrepealed), provides that one moiety of the amount of any penalty recovered under this article shall go to the prosecutor and the other moiety to the crown (2).

Any one reasonably suspected of being a deserter from Her Majesty's service

(1) See post.

(2) See appendix, post.

may be arrested and brought before a justice of the peace and held till claimed by the military or naval authorities (1).

74. Resisting execution of warrant for arrest of deserters.-Every one who resists the execution of any warrant authorising the breaking open of any building to search for any deserter from Her Majesty's military or naval service is guilty of an offence and liable, on summary conviction before two justices of the peace, to a penalty of eighty dollars. R.S.C., c. 169, s. 7.

No one is entitled to break open any building to search for a deserter without having obtained a warrant for that purpose from a justice of the peace (2).

75. Enticing militiamen or mounted police to desert.-Every one is guilty of an offence and liable, on summary conviction, to six months' imprisonment, with or without hard labour, who

(a.) persuades any man who has been enlisted to serve in any corps of militia, or who is a member of or has engaged to serve in the North-West mounted police force, to desert, or attempts to procure or persuade any such man to desert; or

(b.) knowing that any such man is about to desert, aids or assists him in deserting; or

(c.) knowing any such man is a deserter, conceals such man or aid or assists in his rescue. R.S.C., c. 41, s. 109; 52 V., c. 25, s. 4.

76. Obtaining and communicating official information.-In the two following sections, unless the context otherwise requires

(a.) Any reference to a place belonging to Her Majesty includes a place belonging to any department of the Government of the United Kingdom, or of the Government of Canada, or of any province, whether the place is or is not actually vested in Her Majesty;

(b.) Expressions referring to communications include any communication, whether in whole or in part, and whether the document, sketch, plan, model or information itself or the substance or effect thereof only be communicated;

(c.) The expression "document" includes part of a document; (d.) The expression" model " includes design, pattern and specimen; (e.) The expression "sketch" includes any photograph or other mode of expression of any place or thing,

(f.) The expression "office under Her Majesty," includes any office or employment in or under any department of the Government of the United Kingdom, or of the Government of Canada or of any province. 53 V., c. 10, s. 5.

77. Every one is guilty of an indictable offence and liable to imprisonment for one year, or to a fine not exceeding one hundred dollars, or to both imprisonment and fine, who

(a.) for the purpose of wrongfully obtaining information—

(1) See article, 561, post. (2) See article 561, post.

(i.) enters or is in any part of a place in Canada belonging to Her Majesty, being a fortress, arsenal, factory, dockyard, camp, ship, office or other like place, in which part he is not entitled to be; or

(ii.) when lawfully or unlawfully in any such place as aforesaid either obtains any document, sketch, plan, model or knowledge of anything which he is not entitled to obtain, or takes without lawful authority any sketch or plan; or

(iii) when outside any fortress, arsenal, factory, dockyard or camp in Canada, belonging to Her Majesty, takes, or attempts to take, without authority given by or on behalf of Her Majesty, any sketch or plan of that fortress, arsenal, factory, dockyard or camp; or

(b.) knowingly having possession of or control over any snch document, sketch, plan, model, or knowledge as has been obtained or taken by means of any act which constitutes an offence against this and the following section, at any time wilfully and without lawful authority communicates or attempts to communicate the same to any person to whom the same ought not, in the interest of the state, to be communicated at the time; or

(c.) after having been entrusted in confidence by some officer under Her Majesty with any document, sketch, plan, model or information rela to any such place as aforesaid, or to the naval or military affairs of Her Majesty, wilfully, and in breach of such confidence, communicates the same when, in the interests of the state it ought not to be communicated; or

(d.) having possession of any document relating to any fortress, arsenal, factory, dockyard, camp, ship, office or other like place belonging to Her Majesty, or to the naval or military affairs of Her Majesty, in whatever manner the same has been obtained or taken, at any time wilfully communicates the same to any person to whom he knows the same ought not, in the interests of the state, to be communicated at the time :

2. Every one who commits any such offence intending to communicate to a foreign state any information, document, sketch, plan, model or knowledge obtained or taken by him, or entrusted to him as aforesaid, or communicates the same to any agent of a foreign state, is guilty of an indictable offence and liable to imprisonment for life. 53 V., c. 10, s. 1.

78. Every one who, by means of his holding or having held an office under Her Majesty, has lawfully or unlawfully, either obtained possession of or control over any document, sketch, plan or model, or acquired any information, and at any time corruptly, or contrary to his official duty, communicates or attempts to communicate such document, sketch, plan, model or information to any person to whom the same ought not, in the interests of the state, or otherwise in the public interest, to be communicated at that time, is guilty of an indictable offence and liable

(a.) if the communication was made, or attempted to be made, to a foreign state, to imprisonment for life; and