332 THE ROYAL SOCIETY OF CANADA 
=" The Imperial Act of (1870) 33 and 34 Vic., c. 23 s. 1 wholly abolished forfeiture 
in case of treason, Parliament having relieved the jury of the enquiry by 7 and 8 
Geo. IV, c. 28. Canada got rid of the enquiry by (1869) 32 and 33 Vic., c. 29, s. 53, 
and abolished forfeiture by (1892) 55 and 56 Vic., c. 29, s. 965. The following 
cases in our Courts are worth looking at; Eastwood v. McKenzie, 5 U.C.O.S., 708; 
Doe d. Gillespie v. Nixon, 5 U.C.R., 132; Doe d. Sheldon v. Ramsay, 9 U.C.R., 105. 
(16) The motion for arrest of judgment was properly disposed of. 
(1) It was argued that the words of the statute 25 Edward III, c. 2, confined 
its operation to England, as the offence was to be committed “inthe Realm.” No 
doubt Canada is not “in the Realm’’ (Williams v Nunn, 1 Taunt, 270; Platt’s Case 
(1777), 1 Leach Cr. Ca. at p. 168), and the Attorney General admitted this. But 
the statute is simply declaratory of the Common Law of England, and the Quebec Act 
(1774) 14 Geo. III, c. 83, s. 11 enacted that the Criminal law of England should 
continue to be administered in the Province of Quebec. Moreover the first clause 
of the Act is not limited, and the clause referring to ‘‘aid and comfort” has the words 
‘fn the Realm or elsewhere.” 
The Attorney General’s argument was chiefly on the ground that the statute 
was in affirmance of the Common Law, but the judgment of Osgoode, C. J., proceeded 
on the latter ground. The Chief Justice cites a number of cases. “Cardinal 
Pole’s case was a compassing in Italy; Dr. Storey’s case in the Low Countries; 
Crohogan’s in Portugal and Ebenezer Platt’s case in America.” [See (1571) 1 St. Tr. 
1087, 3 Dyer 298 A, 300 B; (1633) Cro. Car. 322; (1777) 1 Leach Cr. Ca. 157.] 
It was held in the Court of King’s Bench in Upper Canada in 1807 that an action 
qui tam. for scandalum magnatum did not lie for words respecting a Judge of our 
Court of King’s Bench; but the Statute of Gloucester (1378) 2 Ric. II, St. 1, c. 5 was 
not considered an affirmance of the common law, notwithstanding the argument of 
Serjt. Maynard in 2 Mod. at p. 152. ‘‘Scandalum Magnatum in Upper Canada.” 
Journal of Am. Inst. Crim. Law and Criminology for May, 1913, Vol. 4, pp. 12-19. 
(2) The second was equally baseless. While in some cases where the accused 
was certainly an alien, the allegation was made that he was a subject, as in R. v. 
De la Motte, 21 St. Tr. 678, 814, it is not to be found in R. v. Ayliffe, Tre- 
maine’s Pleas of the Crown, p. 2; R. v. Horsely, ibid p. 4, R. v. Hayes, ibid, p. 5, 2 St. 
Tr. 844; R. v. Lord Delamere, 6 St. Tr. App., p. 55; R. v. Hampden, St. Tr. App. p. 51; 
R. v. Lord Preston (1st Count), 4 St. Tr. p. 410; 12 St. Tr. 645; R. v. Rosewell, 
3 St. Tr. p. 947; R. v. Cranbourne et al, 6 St. Tr. App. p. 55; R. v. Charnock, 4 St. 
Tr. 1377. Holt, C. J., in Cranbourne’s case says that in the case of an alien from 
whom only local allegiance is due, ‘‘contra naturalem Dominum suum”’ should not 
be used (4 St. Tr. at p. 700), and this is approved in Foster’s Crown Law, p. 187. 
But, leaving the technicality, it is perfectly plain that while an alien enemy 
cannot be guilty of High Treason (of this class at least), Calvin’s case, 7 Co. Rep. 
1, 6 b. cf 4 St. Tr. 1182, Forsyth Cas. Const. Law. 200, unless he accepts British 
protection during the war, an alien friend can. R. v. De la Motte, 21 St. Tr. 687. 
814, and see the recent case of DeJager v. Attorney General Natal (1907), A.C. 326, 
also 3 Co. Inst., 4; 1 Hale Pl. Crown 94; Foster Crim. Law 185. During the time an 
alien friend is within the realm he owes local allegiance, and High Treason may be 
“contra legeantiae suae debitum,”’ as in the case of a subject, “contra Dominum 
suum.” 
(17) The punishment for High Treason was, until comparatively recent years, 
gruesome enough. The sentence continued in the prescribed form for centuries: 
(1) that you are to be drawn to the place of execution 
(2) where you must be hanged by the neck but not till you are dead, for you 
must be cut down alive 
