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Note.-It has been determined, that if two persons play at cards from Monday evening to Tuesday evening, without any interruption,

of habeas

be examined as witnesses.

except for an hour or two at dinner, and one of them win a balance of 17 guineas, this is won at one sitting within the statute: 1 Russ. 408.

HABEAS CORPUS.
(See also title" Bail".)
Habeas Corpus ad testificandum.
44 Geo. 3, c. 102.

Any judge Whereas it is expedient, for the more effectual adminisof the supe- tration of justice in those parts of the united kingdom of rior courts of Great Britain and Ireland, called England and Ireland, England or Ireland may that further provisions should be made for the issuing of award writs writs of habeas corpus ad testificandum, in certain cases: be it therefore enacted, &c., that, from and after the passing corpus for of this act, it shall be lawful for any judge of his majesty's bringing prisoners becourts of King's Bench or Common Pleas of England and fore courts Ireland, respectively, or any baron of his majesty's court of record to of Exchequer, of the degree of the coif in England, or any baron of his majesty's Court of Exchequer in Ireland, or any justice of oyer and terminer, or gaol delivery, being such judge or baron as aforesaid, at his discretion, to award a writ or writs of habeas corpus, for bringing any prisoner or prisoners detained in any gaol or prison before any of the said courts, or any sitting of nisi prius, or before any other court of record in the said parts of the said united kingdom, to be there examined as a witness or witnesses, and to testify the truth before such courts, or any grand, petit, or other jury, in any cause or causes, matter or matters, civil or criminal, whatsoever, which now are, or hereafter shall be depending, or to be inquired into, or determined in any of the said courts.

In Wales, justices of great sessions shall have like authority.

IÍ. And be it further enacted, that every justice of great session in Wales, and in the county palatine of Chester, shall have the like authority within the limits of his jurisdiction.

Note. This act, as well as the 43 Geo. 3, c. 140, (relating to courts martial, commissioners of bankrupt, and commissioners for auditing the public accounts,) was passed in order to remove doubts as to whether persons in custody could be brought up as witnesses by writ of habeas corpus, to give evidence before any other courts, except those at Westminster. The application for this writ ought to be made to the court or a judge, upon affidavit of the party applying, stating that he is a material witness and willing to

attend: R. v. Roddam, Cowp. 672, but see the note, 1 Stark. Ev. 113. If the witness be at a great distance, the affidavit should shew specially the materiality, Tidd, Pr. 3 ed. 850. 4 ed. 724, where see more on this subject; and see R. v. Barbage, 3 Burr. 1440, where the writ was refused. When the attendance of a material witness cannot be procured, the usual course is either to move to put off the trial, or to examine him upon interrogatories, which must be done by consent: 1 Stark. Ev. 114.

HIGH TREASON.

1. TREASON IN GENERAL, p. 225.

2. seducing OTHERS FROM THEIR ALLEGIANCE, p. 234.

3. OFFENCES BY PAPISTS, p. 235.

4. TREASON AGAINST THE PROTESTANT SUCCESSION, p. 237. 5. TRIAL, JUDGMENT, &c. p. 238.

1. TREASON IN GENERAL.

25 Ed. 3, st. 5, c. 2.

"Item, Whereas divers opinions have been before this time, in what case treason shall be said, and in what not;" the king, at the request of the lords and of the commons, hath made a declaration in the manner as hereafter fol

loweth ; that is to say, when a man doth compass or imagine the death of our lord the king, or of our lady his queen, or of their eldest son and heir; or, if a man do violate the king's companion, or the king's eldest daughter, unmarried, or the wife of the king's eldest son and heir; or if a man do levy war against our lord the king, in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort, in the realm, or elsewhere, and thereof be probably attainted of open deed by the people of their condition; and if a man counterfeit the king's great or privy seal, or his money; and if a man bring false money into this realm, counterfeit to the money of England, as the money called Lushburg, or other, like to the said money of England, knowing the money to be false, to merchandize or make payment in deceit of our said lord the king, and of his people; and if a man slea the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places doing their offices. And it is to be The king understood, that in the cases above rehearsed, that ought shall have to be judged treason which extends to our lord the king, feiture of all and his royal majesty: and of such treason, the forfeiture the offenof the escheats pertaineth to our sovereign lord, as well of der's lands, the lands and tenements holden of other, as of himself in high trea[the part here omitted relates to petit treason, and is repealed.] And because that many other like New ques cases of treason may happen in time to come, which a man tions of cannot think nor declare at this present time; it is ac- treasons corded, that if any other case, supposed treason, which is not above specified, doth happen before any justices, the in parliajustices shall tarry without any going to judgment of the ment. treason till the cause be shewed, and declared before the king and his parliament, whether it ought to be judged treason or other felony. And if per case any man of this

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realm ride armed covertly or secretly with men of arms against any other, to slay him, or rob him, or take him, or retain him, till he hath made fine or ransom for to have his deliverance, it is not the mind of the king nor his council, that in such case it shall be judged treason, but shall be judged felony or trespass, according to the laws of the land of old time used, and according as the case requireth. And if, in such case, or other like, before this time any justices have judged treason, and for this cause, the lands and tenements have comen into the king's hands as forfeit, the chief lords of the fee shall have the escheats of the tenements holden of them, whether that the same tenements be in the king's hands, or in others, by gift or in other manner, saving always to our lord the king the year, and the waste, and the forfeitures of chattels, which pertain to him in the cases above named; and that the writs of scire facias be granted in such case against the land-tenants without other original, and without allowing any protection in the said suit; and that of the lands which be in the king's hands, writs be granted to the sheriff of the counties where the lands be, to deliver them out of the king's hands without delay.

Note. This excellent act, so justly celebrated in after ages for the security it afforded to the lives and estates of good subjects, seems to have been occasioned by the corruption of the judges, who, in order to defraud the nobility and gentry of the escheats of lands forfeited to them as lords of the fee by their vassals, in certain cases of felony and misdemeanor, and to vest the same in the crowu, multiplied treasons at their pleasure, and it was for this reason that they were, in the latter part of this statute, expressly restrained from adjudging by parity of reason, inference, or similitude of case, any other facts to be treason, but were to suspend judgment till the case should be laid before the parliament: Carte, Hist. Eng., vol. 2, p. 480. See also Reeve, Hist. Eng. Law, vol. 2, p. 250, and Barrington on the Statutes, 211.

In considering the first-mentioned and principal act of high treason, namely, the compassing and imagining the king's death, it may be remarked that the statute, by using the ex

pression," thereof be attainted of open deed," virtually enjoins the charge of an overt act, Fost. 220; for, as compassing is only an act of the mind, some overt act is necessary, as evidence of it: 1 H. P. C. 108. And any act manifesting the criminal intention, and tending towards the accomplishmeut of the criminal object, is, in the language of the law, an overt act: per Lord Tenterden, 33 How. St. Tri. 685. The indictment must therefore charge, in the strict words of the statute, that the defendant did traitorously compass and imagine, &c., and then charge the several overt acts as the means and evidence by which the traitorous intention was manifested: 1 E. P. C. 58. The overt act is therefore the charge to which the prisoner must apply his defence. And by stat. 7 & 8 W.3, c. 9, s. 3, see post, p. 241, no evidence shall be admitted of any overt act not laid in the indictment. But it is not necessary, either at common law or under the statute, that the whole detail of the evidence in

tended to be given should be set forth. If divers overt acts are laid, and but one proved, it will be sufficient. So also, where divers overt acts are laid, and the indictment faulty in point of form with regard to some of them, the court will not quash it for those defects, Fost. 194. Unnecessary matter laid in the indictment need not be proved, but may be rejected as surplusage: 1 E. P. C. 124. And the time and place laid in an overt act charged in the indictment, need not be more strictly proved in this than in any other case; provided a time be laid within three years before the finding of the bill, and a place be laid within the county: 1 E. P. C. 125; and see Thistlewood's case. The ancient rule voluntas reputatur pro facto has been retained in the case of compassing the king's death, though in most other crimes it has been entirely lost sight of: Fost. 193. The law, therefore, considers an intent to commit this treason in the same degree of guilt as the treason itself, from the moment measures appear to have been taken to render that intent effectual. And, therefore, if conspirators meet and consult how to kill the king, though they do not then determine upon any scheme for that purpose, this is an overt act of compassing his death; and so are all means made use of, be it advice, persuasion, or command, to incite others to commit the fact, or to join in the attempt: id. 195. The cases usually cited as overt acts of compassing the king's death, may almost all be referred to this principle: see them collected in Archb. 266. With regard to words, it appears that they may or may not be overt acts of this species of treason, according to circumstances; but loose words, not relative to any act or design, are not overt acts of treason: Fost. 200. Words, however, which if merely

spoken would not amount to an overt act, may become so by being reduced into writing and published: 1 H. P. C. 118. Some one overt act must be proved to have taken place in the county wherein the bill of indictment is preferred. If this be done, the proof of other overt acts in other counties is to be received as competent to sustain the indictment: Thistlewood's case, 33 How. St. Tri, 686.

2. As to the treasons against the other branches of the royal famaly, see 1 E. P. C. 64, 65; and 4 Black. Com. Coleridge's Ed.

3. In proceeding to the clause of levying war, it is intended chiefly to consider the doctrine of a constructive levying of war. It is clear, that the term "levy war" was used by the framers of this act, with reference only to a direct, open, and organized rebellion against the king. It is reasonable to infer, says a learned writer, that the war forbidden to be within the realm, was the same kind of war as might have been levied without the realm; and that the enemies not to be adhered to, were such enemies as were capable of levying such war, and of being assisted out of the realm, as well as within it: Luder's Law Tracts, 13. In truth, the simplicity, no less than the turbulence, of the times in which this act was made, precludes the supposition that a constructive levying of war was ever contemplated. Add to this, the act itself, for the salutary reasons given by the historian above cited, provides that all new questions of treason shall be determined, not by the judges, but by the king and parliament. Strange, however, as it may appear, a constructive levying of war has been raised upon this statute, by the help of decisions founded upon temporary enactments, and of mere dicta resulting from the prejudices of ancient times:

see the dicta, 3 Inst. 9 & 10, where, also, the case of servants rising to enhance their wages is mentioned, but which is founded only on 13 Eliz. c. 1, a temporary act. See, also, Burton's case, Poph. 122, where the decision was founded on the same statute of Eliz. Upon these two cases, Lord Hale says, "These resolutions being made and settled, we must acquiesce in them; but, in my opinion, if new cases happen, for the future, that have not an express resolution in point, nor are expressly within the words of 25 Ed.. 3, though they may seem to have a parity of reason, it is the safest way, and most agreeable to the great act of 25 Ed. 3, first to consult the parliament and have their declaration, and to be very wary in multiplying constructive and interpretative treasons, for we know not where it will end :" 1 H. P. C. 132. The next case in order of time seems to be Benstead's case, reported in Cro. Car. 583; but from the terms in which Mr. Justice Foster speaks of it, it may be considered of no authority: see Foster, 211. In Messenger's case, 6 How. St. Tri. 879, a special verdict was found that A., B., and C., with divers other persons, &c., assembled themselves in a warlike manner to pull down bawdy-houses, and that they marched with a flag upon a staff and weapons, and pulled down certain houses, &c. This was ruled to be levying of war within the statute of Ed. 3. The soundness of the decision may be doubted on two grounds:-1. It depended on the foregoing cases. 2. It was made contrary to the express opinion of Lord Hale: 1 H. P. C. 134; Kel. 70. But the case which seems to be the foundation of all modern decisions is that of Demeree and Purchase: Fos. 203, 1 E. P. C. 74. It is clear, however, says Mr. Luders, that he judgment of Parker,

C. J., in that case, was decided ac cording to precedents only, and, the precedents being in themselves faulty, that decision must fail. See, upon the whole of this subject, Luder's Tracts.

Notwithstanding, however, the weakness of these cases, they seem to be the sole basis of the doctrine of constructive levying of war; which doctrine has been sanctioned by the highest modern authorities, and is laid down by Mr. Justice Foster in the following words. "Insurrections in order to throw down all inclosures, to alter the established law, or change religion, to enhance the price of all labour, or to open all prisons-all risings, in order to affect 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. Insurrections, likewise, for redressing national grievances, or for the expulsion of foreigners in general, or indeed of any single nation living here under the protection of the king, 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: Fos. 211. In addition to this, it has been decided that an endeavouring to force the repeal of an act of parliament, by means of an armed multitude, is a levying war within the statute: R. v. Lord G. Gordon, Doug. 590.

An overt act ought properly to be laid in an indictment for levying war and adhering to the king's enemies as well as in an indictment for compassing the king's death. The reason may be found in the words of the statute, cited at the beginning of this note. Hale justly doubts whether

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