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Note. It has been determined, except for an hour or two at dinner, that if two persons play at cards and one of them win a balance of from Monday evening to Tuesday 17 guineas, this is won at one sitting evening, without any interruption, within the statute: 1 Russ. 408.

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(See also title Bail”.) Habeas Corpus ad testificandum.

44 Geo. 3, c. 102. Any judge Whereas it is expedient, for the more effectual adminisof ihe 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 of habeas 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 pri

courts 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 be examin. 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 In Wales, into, or determined in any of the said courts. justices of II. And be it further enacted, that every justice of great

session in Wales, and in the county palatine of Chester, sions shall

shall have the like authority within the limits of his juris. authority.

diction. Note.—This act, as well as the attend : R. v. Roddam, Cowp. 672, 43 Geo. 3, c. 140, (relating to courts but see the note, 1 Stark. Ev. 113. martial, commissioners of bankrupt, If the witness be at a great distance, and commissioners for auditing the the affidavit should shew specially public accounts,) was passed in the materiality, Tidd, Pr.3 ed. 850. order to remove doubts as to whe- 4 ed. 724, where see more on this ther persons in custody could be subject; and see R. v. Barbage, 3 brought up as witnesses by writ of Burr. 1440, where the writ was habeas corpus, to give evidence before refused. When the attendance of any other courts, except those at a material witness cannot be proWestminster. The application for cured, the usual course is either to this writ ought to be made to the move to put off the trial, or to excourt or a judge, upon affidavit of amine him upon interrogatories, the party applying, stating that he which must be done by consenti is a material witness and willing to 1 Stark. Ev. 114.

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5. TRIAL, JUDGMENT, &c. p. 238.


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 accorded, that if any other case, supposed treason, which is be decided 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, deliver them

out of the king's hands without delay. Note. - This excellent act, so pression," thereof be attainted of justly celebrated in after ages for open deed,” virtually enjoins the the security it afforded to the lives charge of an overt act, Fost. 220 ; and estates of good subjects, seems for, as compassing is only an act of to have been occasioned by the cor- the mind, some overt act is necesruption of the judges, who, in order sary, as evidence of it: 1 H. P. C. to defraud the nobility and gentry 108. And any act manifesting the of the escheats of lands forfeited to criminal intention, and tending tothem as lords of the fee by their wards the accomplishmeut of the vassals, in certain cases of felony criminal object, is, in the language and misdemeanor, and to vest the of the law, an overt act: per Lord same in the crowu, multiplied trea- Tenterden, 33 How. St. Tri. 685. sons at their pleasure, and it was The indictment must therefore for this reason that they were, in charge, in the strict words of the the latter part of this statute, ex- statute, that the defendant did trai. pressly restrained from adjudging by torously compass and imagine, &c., parity of reason, inference, or simi. and then charge the several overt Jitude of case, any other facts to be acts as the means and evidence by treason, but were to suspend judg- which the traitorous intention was ment till the case should be laid manifested : 1 E, P. C. 58. The before the parliament: Carte, Hist. overt act is therefore the charge to Eng., vol. 2, p. 480. See also Reeve, which the prisoner must apply his Hist. Eng. Law, vol. 2, p. 250), and defence. And by stat. 7 & 8 W.3,c. Barrington on the Statutes, 211. 9, s. 3, see post, p. 241, no evidence

In considering the first mentioned shall be admitted of any overt act and principal act of high treason, not laid in the indictment. But it namely, the compassing and imagining is not necessary, either at common the king's death, it may be remarked law or under the statute, that the that the statute, by using the ex- whole detail of the evidence intended to be given should be set spoken would not amount to an overt forth. If divers overt acts are laid,' act, may become so by being reand but one proved, it will be suf- duced into writing and published : ficient. So also, where divers overt 1 H. P. C. 118. Some one overt act aets are laid, and the indictment must be proved to have taken place faulty in point of form with regard in the county wherein the bill of to some of them, the court will not indictment is preferred. If this be quash it for those defects, Fost. 194. done, the proof of other overt acts Unnecessary matter laid in the in- in other counties is to be received dictment need not be proved, but as competent to sustain the indictmay be rejected as surplusage: ment : Thistlewood's case, 33 How. 1 É, P. C. 124. And the time and St. Tri. 686. place laid in an overt act charged 2. As to the treasons against the other in the indictment, need not be more branches of the royal famaly, see strictly proved in this than in any 1 E. P. C. 64, 65; and 4 Black. other case ; provided a time be Com. Coleridge's Ed. laid within three years before the 3. In proceeding to the clause of finding of the bill, and a place be levying war, it is intended chiefly laid within the county: 1 E. P. C. to consider the doctrine of a con125; and see Thistlewood's case. The structive levying of war. It is clear, ancient rule voluntas reputatur pro thatthe term “levy war” was used by facto has been retained in the case the framers of this act, with referof compassing the king's death, ence only to a direct, open, and though in most other crimes it has organized rebellion against the king. been entirely lost sight of: Fost. It is reasonable to infer, says a 193. The law, therefore, considers learned writer, that the war foran intent to commit this treason in bidden to be within the realm, was the same degree of guilt as the trea- the same kind of war as might have son itself, from the moment mea- been levied without the realm ; and sures appear to have been taken to that the enemies not to be adhered render that intent effectual. And, to, were such enemies as were catherefore, if conspirators meet and pable of levying such war, and of consult how to kill the king, though being assisted out of the realm, as they do not then determine upon well as within it: Luder's Law any scheme for that purpose, this is Tructs, 13. In truth, the simplicity, an overt act of compassing his no less than the turbulence, of the death; and so are all means made times in which this act was made, use of, be it advice, persuasion, or precludes the supposition that a command, to incite others to com- constructive levying of war was ever mit the fact, or to join in the at- contemplated. Add to this, the act tempt: id.'195. The cases usually itself, for the salutary reasons given cited as overt acts of compassing the by the historian above cited, proking's death, may almost all be vides that all pew questions of referred to this principle: see them treason shall be determined, not by collected in Archb. 266.

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the judges, but by the king and gard to words, it appears that they parliament. Strange, however, as may or may not be overt acts of it may appear, a constructive levythis species of treason, according to ing of war has been raised upon this circumstances; but loose words, not statute, by the help of decisions relative to any act or design, are founded upon temporary enactnot overt acts of treason: Fost. 200. ments, and of mere dicta resulting Words, however, which if merely from the prejudices of ancient times: see the dicta, 3 Inst. 9 & 10, where, C. J., in that case, was decided ac also, the case of servants rising to cording to precedents only, and, the enhance their wages is mentioned, precedents being in themselves but which is founded only on 13 faulty, that decision must fail. See, Eliz. c. 1, a temporary act. See, upon the whole of this subject, also, Burton's case, Poph. 122, wheré Luder's Tracts.. the decision was founded on the Notwithstanding, however, the same statute of Eliz. Upou these weakness of these cases, they seem two cases, Lord Hale says, “ These to be the sole basis of the doctrine resolutions being made and settled, of constructive levying of war; we must acquiesce in them ; but, in which doctrine has been sanctioned my opinion, if new cases happen, by the highest modern authorities, for the future, that have not an ex- and is laid down by Mr. Justice press resolution in point, nor are Foster in the following words. expressly within the words of 25 Ed. “ Insurrections in order to throw 3, though they may seem to have a down all inclosures, to alter the parity of reason, it is the safest established law, or change religion, way, and most agreeable to the to enhance the price of all labour, great act of 25 Ed. 3, first to con- or to open all prisons-all risings, sult the parliament and have their in order to affect these innovations declaration, and to be very wary of a public and general concern by an in multiplying constructive and in- armed force, are, in construction of terpretative treasons, for we know law, high treason, within the clause not where it will end :" 1 H. P. C. of levying war. Insurrections, like132. The next case in order of wise, for redressing national grietime seems to be Benstead's case, re- vances, or for the expulsion of fo. ported in Cro. Car. 583; but from reigners in general, or indeed of the terms in which Mr. Justice any single nation living here under Foster speaks of it, it may be con- the protection of the king, or for sidered of no authority: see Foster, the reformation of real or imaginary 211. In Messenger's case, 6 How. evils of a public nature, and in which St. Tri. 879, a special verdict was the insurgents have no special interest ; found that A., B., and C., with di- risings to effect these ends by force vers other persons, &c., assembled and numbers, are, by construction themselves in a warlike manner to of law, within the clause of levying pull down bawdy-houses, and that war; for they are levelled at the they marched with a flag upon a king's crown and royal dignity : staff and weapons, and pulled down Fos. 211. In addition to this, it certain houses, &c. This was ruled has been decided that an endeato be levying of war within the sta- vouring to force the repeal of an tute of Ed. 3. The soundness of act of parliament, by means of an the decision may be doubted on armed multitude, is a levying war two grounds :-1. It depended on within the statute: R. v. Lord G.. the foregoing cases. 2. It was

Gordon, Doug. 590. made contrary to the express opi. An overt act ought properly to be nion of Lord Hale: 1 H.P.C. 134; Jaid in an indictment for levying Kel. 70. But the case which seems war and adhering to the king's eneto be the foundation of all modern mies as well as in an indictment for decisions is that of Demeree and compassing the king's death. The Purchase: Fos. 203, 1 E. P. C. 74. reason may be found in the words of It is clear, however, says Mr. Lu- the statute, cited at the beginning of ders, that he judgment of Parker, this note. Hale justly doubts whether

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