Her Majesty's dominions

Under our Law (Section 55) the crime can be committed by actually killing the King or the heir presumptive to the throne, or by depriving them of their liberty, or by endangering their life by bodily harm.

It is commonly held by text writers that the "intentional element" of this crime consists in the wilfulness of the act against the person of the sovereign or the heir apparent, and more precisely in the deliberate attack upon his person or his liberty. It is, therefore, not necessary that the offender should have acted for a political object. The law gives a special protection to the Head, of the State having regard, as we have said, to the effects which an attempt against him may have upon the public peace, and these effects do not change, at any rate substantially, by reason of the diversity of the object aimed at by the agent7 .

Now although mention is made of the King only, there is no doubt that a Queen Regnant such as Queen Elizabeth or Queen Victoria, being invested with Royal Power and entitled to the allegiance of her subjects, would be within that description. Indeed, this is expressly declared in the Interpretation Act, 1889, s. 30. But the husband of such a Queen would not8. And the King here intended is the King in possession without any respect to his title. In England it is held that a king "de facto" and not “de jure”, or, in other words, a usurper that has got possession of the throne is a king within the meaning of the Statute as there is a temporary allegiance due to him, for his administration of the Government, and temporary protection of the public. The most rightful heir of the Crown, or king “de jure” and not “de facto”, who has never had possession, is not a king within the Statute9 .

2. Subverting, or attempting, to subvert the Government of these Islands or of any other part of Her Majesty's dominions

Natives of Malta are natural born subjects of the British Crown, and they may be guilty of acts which violate their duty of allegiance to the general Government of which they

7 Confer Maino, op. cit., pg. 43, art. 117, para 676; Tuozzi "Corso Completo di Diritto Penale, Vol. IlI, pg. 67 8 Blackstone, op. Cit. 77 9 ibid.

are a part. A Maltese subject might aid and abet a treason without being directly guilty of subverting or attempting to subvert the local Government10 . That is why crimes under Section 56 arise also where the act of subversion is directed against the Government of Her Majesty established in any other of the possessions of the British Crown.

Under the English Statute already quoted it is Treason to “levy war against the King in his realm”.

The meaning of the word “war” here is not limited to the true "war” of International Law11, but will include any forcible disturbance that is produced by a considerable number of persons and is directed at some purpose which is not of a private but of a “general” character, e.g. to release the prisoners in all the goals. It is not intended that the offenders should, be in military array or be armed with military weapons. It is quite sufficient that there be assembled a large body of men who intend to debar the Government from the free exercise of its lawful powers and are ready to resist anyone, according as this object is of local, or a public and general character.

Another species of Treason under the English Law consists in “adhering to the King’s enemies in his realm, by giving to them aid and comfort in the realm or elsewhere.” “Enemies” here is to be taken in the strict sense which International Law puts upon the word; and accordingly includes none but true public belligerents12 .

Under our Code, the crime which we are now considering consists, as we have said, in subverting or attempting to subvert the Government of the King in these Islands or in any other of His Majesty's dominions by committing any of the acts hereunder mentioned. The word “subvert” implies the destruction or change of the Government. The acts whereby the crime may be committed are:

a) Taking up arms against the Government for the purpose of subverting it b) Bearing arms in the service of any foreign Power against the Government c) Aiding His Majesty's enemies in any other manner whatever against the

Government

10 Jameson Report pg. 94 11 Opoenheim's International 5th Edition, P. II, 2, 1 12 Kenny, op. cit., pp. 311-312

d) Usurping or unlawfully assuming any of the executive powers of the Government for the purpose of subverting it e) Taking up arms for the purpose of compelling the Government to change its measures or counsels or of obstructing the exercise of its lawful authority.

The expression "bearing arms" in (b) above may give rise to a doubt whether a person who joins the armed forces of a foreign Power at war with His Majesty, but in a noncombatant capacity, will be guilty of the crime as having "borne arms" in the service of that Power, against the Government. Under the old German Code, where the expression used was "serving with enemy forces”, it was held that, not only service with the enemy as a combatant but also service in any other capacity as, for instance, doctor R. chaplain, would constitute the crime. Under the Italian Code of 1889 where the same expression is used as in our Code, ("portar le armi") it was doubted whether the mere enlistment, or even service in other than a fighting capacity would fall within that expression. In Rex vs. B. P.13, where the accused had joined an enemy regiment but performed duties only as an 'artist' (such as depicting and illustrating war incidents) and had taken no part in military operations, the Court gave the accused the benefit of the doubt and considered that, as he was in a non-combatant section, he had not "borne arms".

The point, however, is not one of great practical importance. In fact, in the judgment afore quoted, although the act of the accused '"as not considered as amounting to “bearing arms”, nevertheless his enlistment in the army of the enemy followed by service in that army, even though not as a combatant, was considered as undoubtedly constituting an “aiding of His Majesty's enemies” within (c) above. In R v Casement14 , it was held that ‘'any act done by a British subject who strengthens or tends to strengthen the enemies of the King in the conduct of a war against the King constitutes giving aid and comfort to the King's enemies” .

With regard to (c) above we may repeat here what we have already said in regard to the corresponding expression in the English Statute, that the word “enemies” is in this context used in the strict sense of true belligerents15. Hence to give aid or assist mere

13 19th November 1942 14 1917 1 K. B. 98 15 V. Falzon, “Annotazioni alle Leggi Criminali”, pg. 42

rebels against the King does not constitute an offence under that sub-paragraph: though it may be sufficient to constitute the offence under sub-paragraphs (a) or (d) or (e).

It was held in England that the act of purporting to become naturalised in an enemy state in time of war constitutes, in itself, an act of treason, by giving aid or comfort to the King's enemies16 . This doctrine was followed by our Court in R v, E. F. et. 17 .

It has likewise been held that aid given to an enemy agent against an ally of His Majesty is sufficient to constitute the crime. (V. Archbold, p. 1030 quoted in "Rex vs. B. P already referred to).

How in respect of the crime we are discussing the law (Section 56) subjects to the same punishment the completed as the attempted crime. But we think we may usefully quote here with Maino the following passage from a famous speech by Areri:

"Il legislatore in vista appunto del pericolo che lo stato incontra nei vari attentati, parifica il tentativo al reato consumato, ma richiede pur sempre gli estremi del tentativo. Senza la serietà "del pericolo, vero attentato non vi ha [...] La legge mette bene il tentativo nelle, linea del delitto consumato in quest'ordine di crimini, appunto per la ragione che sempre in queste cause, udimmo ripetere, desunta da quanto in Senato disse Catone contro Catilina: 'Haec nisi provideris ne accident, ubi eveniant, frustra judicia implores'. Ma se parifica il tentativo al reato consumato, richiede però serrore che vi siano i caratteri veri del tentativo.

It is, however, provided that where the crime is not carried into effect in consequence of the voluntary desistance of the offender not to complete the crime, then the punishment must be diminished by one or two degrees.

Though, as we have said, to constitute the crime under Section 56 there must be at least an attempt as defined in Section 42, yet, as we shall see, in the supreme interest of preventing at the earliest stage possible, acts directed against the state, even preparatory acts, indeed even mere conspiracy to commit the crime, are made substantive, though minor, offences by the law.

16 R v Lynch (1903) 1 K.B. 444 17 5th October 1946