Court of Trial.—Four modes of trying high treason still re main, viz., impeachment, trial of a peer by his peers, trial by court martial, and trial by jury on indictment before the High Court (generally at bar) or a court of assize or a special commission. The offence is not triable at quarter sessions. At common law and under the Act of 1543 a peer, and, by an Act of 1441, a peeress in right of her husband, are triable for treason before the House of Lords, or, when parliament is not sitting, in the court of the lord high steward.
Procedure.—In certain cases of treason the procedure on the trial is the same as upon a charge of murder. Those cases, which are statutory exceptions from the statutory procedure prescribed for the trial of high treason and misprision thereof, are: (a) Assas sination or killing of the king, or any heir or successor of the king, or any direct attempt against his life or any direct attempt against his person whereby his life may be endangered or his per son may suffer bodily harm (1800, 1817); (b) attempts to injure in any manner the person of the king (1842).
In all other cases of treason the procedure is regulated by Acts of 1695, 1708 and 1825. A copy of the indictment must be de livered to the accused ten days at least before his arraignment, with a list of the witnesses for the prosecution (1708) and a list of the petty jury, except in the High Court, where the petty jury list is to be delivered ten days before the trial (1825). The ac cused is entitled to be defended by counsel, and on application to the court may have two counsel assigned to him (1695), a right extended in 1746 to impeachments for treason. Witnesses for the defence have since 1702 been examinable upon oath. The accused may by the Criminal Evidence Act 1898 consent to be called as witness for the defence. It is doubtful whether the wife or hus band of the accused is a compellable witness for the Crown (Archb. Crim. Pleading, 27th ed., 477).
Prosecutions for treason must be begun within three years of the offence, except in cases of attempts to assassinate the king.
The rules as to the indictment are stricter than in the case of felony and misdemeanour, much of the modern statutory power of amendment not extending to indictments for the graver offence.
No evidence may be given of any overt act not expressly stated in the indictment. The accused is entitled to peremptory challenge of 35 of the jurors summoned for the petty jury; but they need not now be freeholders. The accused can be convicted only on his
own confession in open court, or by the oath of two witnesses either both to the same overt act charged, or one to one overt act and the other to another overt act of the same treason. If two or more treasons of different kinds are charged on the same indict ment, one witness to prove one treason and another to prove an other are not sufficient for a lawful conviction. Persons charged with treason are not admitted to bail except by order of a secre tary of State or by the High Court (k.b.d.) or a judge thereof in vacation. Witnesses for the defence are examined on oath and their attendance is secured in the same way as that of witnesses for the Crown (1695).
Finally it must be noted that there can be no accessories before or after the fact to treason. Every person who incites, aids or abets treason is a traitor, and must be indicted as a principal.
Misprision of Treason.—This consists in the concealment or keeping secret of any high treason. This offence was in 1552 de clared to be high treason, but the former law was restored in 1553-54. It is an indictable common law misdemeanour, not tri able at quarter sessions, and the procedure for the trial of mis prision of treason is the same as in the case of high treason. The punishment is imprisonment for life and forfeiture of the offend er's goods and of the profits of his lands during his life. The forfeitures are not abolished by the Forfeitures Act 187o. There is no case of prosecution of this offence recorded during the last century.
The necessity of prosecutions for treason has been greatly les sened by a series of statutes beginning in 1744 which provide for the punishment as felonies of certain acts which might fall within the definition of treason, e.g., piracies (1744), incitement to mutiny (1797), unlawful oaths, including oaths to commit treason (1797, 1812), and aiding the escape of prisoners of war (1812). By the Treason Act 1842 it is a high misdemeanour, punishable by penal servitude for seven years, wilfully to discharge, point, aim or present at the person of the king any gun or other arms, loaded or not, or to strike at or attempt to throw anything upon the king's person, or to produce any firearms or other arms, or any explosive or dangerous matter, near his person, with intent to in jure or alarm him or to commit a breach of the peace. The offence is one of the few for which flogging may be awarded.