240 Superior Courts; Exchequer of Pleas.-The Editor's Letter Box. chester, and had not yet returned, but was expected soon to return. Ball submitted that the first objection which was available against this application, was that the defendant was too late in making it. After obtaining time to plead, he submitting to accept short notice of trial at the sittings after Hilary Term, the defendant ought not, and could not, successfully make this application. The rule of Court allowed the application to be made in general at any time before issue joined; but this was not an ordinary case. The Court would not under such circumstances, allow the defendant to succeed. A that as the plaintiff was now actually in England, although absent from this country at the commencement of the action, and most usually resident in France, the Court would not be inclined to allow the rule to be made absolute. gas belonging to the company represented by the plaintiff. The defendants in the action thought that the town was not sufficiently lighted, and, therefore, without authority, turned on an additional supply of gas. A plea of justification, founded on this opinion, was pleaded in each of the actions. To this there was a demurrer. It came on for argument, and was decided in favour of the plaintiff. After that he took the three actions down for trial. One was tried, and a verdict found in favour of the plaintiff for 40s. It appears that the judge who tried this canse, was of opinion, that to bring three actions for such conduct on the part of the defendants was rather a vexa-second objection might be taken, which was tious proceeding, and that now, as a verdict had been obtained in one, the other actions should be withdrawn. This suggestion was complied with, but no arrangement was made by the counsel or the attorneys, as to the costs of the demurrers. It was taken, rather, that the costs of the demurrers were intended to be waived. The application now is, to enter up judgment, so as to give the plaintiff the costs of those demurrers. Now the parties having withdrawn a juror, it is the same as if no trial at all had taken place. Either the plaintiff or the defendant may go down to trial again. If the defendant should succeed at the trial, on the issues in fact, raised on this record, he would have the costs of those issues to set off against the costs of the demurrer. 1, therefore, cannot grant a rule for the purpose suggested, without the consent of the defendant. It appears that he refuses to consent, and, therefore, I cannot grant the rule at all. Rule refused.-Burdon v. Flower, M. T. 1839. Q. B. P. C. Grchequer of Pleas. SECURITY FOR COSTS.-LACHES.-FO REIGNER.ENGLISHMAN. It is no objection to an application for security for costs on the ground of a plaintiff being abroad, that the defendant has obtained time to plead on the usuul terms. It is an objection to such un application that the plaintiff is resident in this country at the time of the application being made, although he is usually resident abroad. Hoggins obtained a rule nisi for security for costs to be given by the plaintiff, on the ground of his being resident abroad. Hoggins, in support of the rule, contended that as the general rule of Court was that this application might be made at any time before issue was joined, and as no issue was joined in the present case, the application was in due time. As to the second objection, that the plaintiff was at the time of the application being made in this country, that was no answer, as he was usually residing in France, although occasionally visiting this country. Under these circumstances, the present rule ought to be made absolute. Parke, B. was of opinion, that the general rule was, that the application must be made before issue joined in "ordinary cases." These words must be considered as applicable to instances where knowledge of the plaintiff being out of the country had not reached the defendant in sufficient time to make such an application in due time according to the general rule. The fact of obtaining time to plead on the usual terms, was no objection to the plaintiff was in this country at present, the the present rule. As, however, it appeared that application could not be supported. The rule must therefore be discharged. Rule discharged.-Dowling v. Harman and another, H. T. 1840. Excheq. THE EDITOR'S LETTER BOX. plan adopted enables them to receive it with the cover, containing all the advertisements, stitched up like a pamphlet, and preserving it from injury till bound in a volume for future reference. We are glad to find that the transmission of the Legal Observer by the post is deemed conBall shewed cause against the rule. It ap-venient to several Country subscribers. The peared by the affidavit, that the action was commenced on the 12th December 1839, and an appearance only entered. The plaintiff declared on the 4th January; on the 8th of that month a judge's order was obtained at the instance of the defendant, for seven day's time to plead; defendant submitting to the usual terms of taking short notice of trial for the sittings after Hilary Term. It appeared by the affidavit of the plaintifl's attorney, that his client was an Englishnan, and was very generally in France, but was at present in England, although he was out of England when the ac- We shall advert to the question of the Sertion was begun. His client was now at Man-jeants in our next number. J. F., of Nottingham, will please to apply to the publisher regarding the works he mentions. Our usual weekly Lists of Bills in Parlia ment relating to the Law, with notes, will be resumed in the next number. The Dublin Law School shall receive early attention. The Legal Observer. MONTHLY RECORD FOR JANUARY, 1840. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. REMARKABLE TRIALS. CASE OF JOHN FROST, FOR TREASON. January 1840. THE trial of John Frost came on at Monmouth, on the 31st December. Sir John Campbell (the Attorney General), Mr. Serjeant Wilde (the Solicitor General,) Mr. Serjeant Ludlow, Mr, Serjeant Tulfourd, Mr. Wightman, and Mr. Talbot, appeared as counsel for the Crown; and Sir Frederick Pollock and Mr. Kelly, for the prisoner. Mr. Thomas and Mr. Rickards, were counsel for other prisoners. The first day was occupied in challenging and swearing in the jury. On the 1st January the case was opened for the Crown, and the point of law taken, as mentioned p. 194, ante, on the ground of the non-delivery of the list of witnesses at the same time that the copy of the indictment was delivered under 7 Anne, c. 21.a On the 2d, 3d, and 4th January the examination of the witnesses for the prosecution proceeded; and on the 6th and 7th, Sir F. Pollock and Mr. Kelly addressed the jury in defence. The Solicitor General's reply occupied part of the 7th and the greater part of the 8th, and a The point of law, it is expected, will be argued before all the Judges on Saturday the 1st Feb., being the day after Term. VOL. XIX. NO. 571. on the latter day the Lord Chief Justice Tindal summed up the case to the jury. The length of this and the other trials render it impossible to do more in these pages than state the summing up to the jury by the Lord Chief Justice at the close of the first trial. Gentlemen of the jury, this important case having been closed on the part of the prosecution, and on the part of the prisoners, the counsel for the prosecution having stated the case for the Crown, and called the evidence which you have heard, and having afterwards commented upon that evidence, and the counsel for the prisoner having also stated the case for the defence, and having called such witnesses as he thought proper, our duty now com mences. That duty is to endeavour to explain the law by which the case must be determined with reference to the facts which have been placed before you to recapitulate the evidence, so that your minds may be refreshed after so long a period of investigation, and to offer such comments upon it as, whilst they are not to govern, may assist you in arriving at the deci vince to dismiss from your minds all excitement sion to which you will come. It is your pro- ́ and all previous impressions which may have been made upon them on this subject. You are to consider the evidence calmly, dispassionately, and conscientiously, in order that you may arrive at such a conclusion as truth and the justice of the case demand. Gentlehaving broken faith and his allegiance to his men, the charge against the prisoner is, that Sovereign, he levied war against her in these realms. The indictment itself contains several specific counts, stating in a different manner the grounds of the accusation against him. But I think that I should rather embarrass than enlighten you if I were to take up the accurate distinctions which in these are set forth. For, first or last, it must come to this question, whether the circumstances given in S evidence have proved that the offence of levy- dethrone or imprison him, or to oblige him to ing war against the Sovereign has been com- alter his measures of government, or to remove mitted. The first part of the indictment has evil counsellors from about him,-these risings been framed upon the ancient statute of Ed-all amount to levying war within the statute, ward III., which contains the clause of levying whether attended with the pomp and circumwar against the King. The two other counts stance of open war or not. And every conspiare framed upon more modern statutes, which racy to levy war for these purposes, though improved the former, and which have made not treason within the clause of levying war, is certain overt acts specific grounds of treason; yet an overt act within the other clause of and taking them substantially, the charge is compassing the King's death." For it cannot "levying war" against the Sovereign in these exist without danger to the King's person. Sir realms. I shall state the law of the subject Michael Forster thus distinguishes between perto which your minds may be applied. When sons armed for local and private purposes, and the facts pass in review before you, the ancient those armed for general and open purposes afstatute of Edward I. declares what high treason fecting the state. He lays it down that insurrecis. It is "If a man do levy war against our tions, in order to throw down all enclosures, to Lord the King in his realm, or be adherent to alter the established law, or change religion, to the King's enemies in his realm, giving to them enhance the price of all labour, or to open all aid and comfort in the realm or elsewhere." prisons-all risings, in order to effect these inThat is one ground why a party committing novations, of a public and general armed force, such an offence is guilty of treason. And the are in the constructions of law, within the clause statute goes on to mention "and it is to be of levying war; for though they are not levelled understood that in the cases above rehearsed at the person of the king, they are against his that ought to be adjudged treason which ex-royal majesty; and, besides, they have a direct tends to our Lord the King and his royal tendency to dissolve all the bands of society, Majesty," meaning thereby the levying of war and to destroy all property and government for the purpose not only of assaulting the too, by numbers and an armed force. Insurroyal person, but against the royal authority rections, likewise, for redressing of national and the established law of the land. This is grievances, or for the expulsion of foreigners the state of the law, but if you look to the in general, or, indeed, of any single nation, words " levying war against our Lord the living here under the protection of the king; King," it will be seen that it is confined to or for the reformation of real or imaginary evils ancient instances of war levied against the So- of a public nature, in which the insurgents have vereign by rivals for the throne; for instance, no special interest-rising to effect these ends such long wars as those which were the result by force and numbers, are by construction of of the quarrels between the houses of York law within the clause of levying war, for they and Lancaster, which were treated by the suc- are levelled at the king's crown and royal digcessful party as acts of treason against the nity." I shall trouble you no further with any lawful Sovereign. This is the levying of war statements, except to refer to one passage, against the King in its widest sense; and there written by Sir Matthew Hale, another highly are instances more recent, not within our own venerated authority, to point out the same recollection, but which are within our reach by distinction; and I beg especially your attention means of tradition and report, the wars of the to it, because when taken with reference to Pretender's family, who came into these realins some of the circumstances, it may bear in favour and levied war aginst the successive Sovereigns of the prisoner at the bar. Sir Matthew Hale of the Brunswick family. These fill up the says, that "if men levy war to break prisons, description given in the statute of Edward of to deliver one or more particular persons out levying war against the King in his realm. of prisons wherein they are lawfully imprisoned, And if the statutes were confined to levying unless such are imprisoned for treason, this, war in that sense, unless armies had been upon advice of the judges upon a special verraised and generals placed at their head, and dict found at the Old Bailey, was ruled not to unless they entered into a conflict to deprive be high treason, but only a great riot (1668); the Sovereign of her throne, this case would but if it were to break prisons or deliver pernot come within the statute. Thus the statutes sons generally out of prison, this is treason." have been expounded by the Judges in all ages, So I think the rule of law may be explained in until they were extended so that other exigen- a few words. There must be an insurrection; eies than levying war against the King's per- there must be an armed force acompanying it; son-exigencies which might be attended with and there must be an object of a general and the greatest evil, if they were not repressed, public nature; and if all these occur in one inmight be provided for, although not amounting stance it is sufficient to constitute the levying of to actual war. There cannot be a better exposi war under the statute; and the question for tion given of this than that laid down by one of you to determine will be, whether-when the the most learned and eminent persons who has facts are more fresh within your knowledgetouched upon the subject, and whose authority whether the acts reported to have been done by is considered amongst the highest and the best the prisoner amount to the levying of war in Sir Michael Forster. He states that "every the sense I have explained; or whether they insurrection which in judgment of law is in-amount to no more than a grievous misdetended against the person of the King, be it to meanor. For although they may have been attended with great danger to the country, and it is deficient in the main ingredient of treason, to the public peace, still they may not amount "the levying of war against the Queen in her to the offence of high treason, but only to a realm," and is only an aggravated misdegrievous misdemeanor. I have observed that meanour, and under this indictinent the prithe learned Attorney General, in his statement soner will be entitled to an acquittal. You will of the case, said that he would be able to pro- weigh the evidence, and will say upon which duce evidence to shew that the prisoner had side the scale of Justice ought to prepondebrought down to Newport a large multitude of rate. I had intended, at one time, to select the persons armed and arrayed unlawfully; and that evidence, and to place it in positions relating to it was their object to get possession of the town, the different parts of the case, for there are porbreak down the bridge, and to stop the mails, tions of it with regard to which there is no disand that this was to be a signal to Birmingham, pute. But on reflection, I thought it would be Lancashire, and the rest of England, and that more safe, in a case of such deep importance the charter was thus to be made the law of the to the prisoner and to the community generally, land. His learned friend afterwards summed rather to follow the evidence in the course in up the case, and stated the outline of that upon which it was given in Court, and to offer my which they would proceed, and very properly comments on it from time to time as I might omitted one part of it-that which referred to the think them useful to you. I shall now, theregeneral purpose. The plan of the prisoner he fore, take up the evidence, and having recapistated to be, to get armed bands assembled to tulated it, I shall bring your minds again to the take Newport-to exercise power and control exact question which you will have to deter there, supersede the magistrates, and thereby mine on this momentous occasion. The first excite a general rebellion throughout the king-witness called for the prosecution was Samuel dom There is no doubt that the proposition, be Simmonds. The learned Judge proceeded to it the one or be it the other, if it be made out read his note of the evidence of the witness, satisfactorily, amounts to the crime of treason. who stated that during the progress of the men Therefore you are to see from the evidence down to Newport, on the 4th November, he whether the acts and the intentions in the mind heard Frost say to them, "Let us go and show of the prisoner carried him to that extent. On ourselves to the town." This, the learned the part of the prisoner, his learned counsel Judge observed, was the first observation stated has said, with great propriety, that he is not by the witness to have been made by the pribound to state the object with which any acts soner. The jury, he said, would find from the were done by the prisoner at the bar. He says other evidence, with reference to what was that the offence charged against him must be then passing, what those expressions referred proved by those who have made the charge, to. They meant nothing if they were merely and that he stands there to receive the evidence to go to the town and show themselves-in against him, and not to give evidence as to fact, they merely amounted to this: that a what his objects were. It is true the case inust demonstration should be made in the town, and depend-not upon proof brought by the pri- no more. The jury must, however, take the soner contradicting the evidence for the crown construction of the words, as well from the —but upon the evidence for the crown. But it words themselves as from the circumstances is not unreasonable, for it has occasionally surrounding them, and thus see what their real happened both in civil and criminal cases-if meaning is, and unless they could conclude appearances involve the prisoner in suspicion, from the evidence that the meaning was of it is not unusual to state circumstances which deeper import than it literally meant, they may tend to reconcile those appearances with must give to the words their natural meaning, the prisoner's innocence. Therefore the learned which did not amount to a criminal design counsel goes on to state that the prisoner was upon the town. The learned Judge, on reinnocent, so far as the charge of treason, and ferring to the evidence of Richard Waters, a that all he intended was, neither to take the special constable, observed that the evidence town nor to attack the military-for this he of the witness that he had seen Mr. Frost instates was an accident-but to make a demon- stantaneously before the firing commenced, stration to the magistrates of Newport and of showed that the prisoner had not left the mob the county of the strength of the Chartists, for at the time when the firing took place, or, at the purpose and with the intention of inducing least, that he was there about that time, or these inagistrates either to liberate Mr. Vincent very nearly at the time when the firing comand three others (who had been convicted of a menced. This witness stated that 100 volleys political offence, and who were in Monmouth were fired. Whether he was speaking from Gaol), or to mitigate the mode of treatment the excitement of the moment, or meant single pursued towards them. If, then, the outline shots by the word "volleys," as he probably of the case stated by the officers of the crown did, this was rather a larger mob than was be true, there is no doubt that the prisoner is stated by the other witnesses, not, however, so guilty of high treason. On the other hand, if material as to affect the witness's testimony. you think that the offence, upon the proof, In a subsequent part of his examination the amounts to no more than the description witness said that he had heard there was a which the counsel for the prisoner has stated room in the Westgate appropriated to the cusit to be, then, although it may amount to a tody of prisoners. That was not material so grievous misdemeanor, involving the safety far as it bore upon the allegations made on the and the lives of many persons in Newport, yet part of the prisoner-that the attack upon the Westgate was unconnected with the soldiers- custody during the night. It had been argued that the party never saw them until after the by the counsel for the prisoner that the statefiring, nor knew that they were there, and that ment of this witness-that one part of the mob the object was merely to rescue the prisoners went one road to Commercial-street and another whom they knew to have been committed by part went by a different direction, was inconthe magistrates during the night. If there sistent with the statement of other witnesses; were no other evidence against the prisoner but this did not appear to him very important, except the conflict between the soldiers and for a mistake might have been made withthe mob led by the prisoner, certainly, it would out an intention of bringing before the jury be important for you to see how far they had a anythiug which the witness knew to be false. knowledge that the soldiers were there, and He here might have dropped off, and taken a their object would be perfectly distinct from different part; and again some of the people of setting loose the whole of the prisoners and the town, who were looking on, might have taking possession of the town. It appeared retired, and the main body gone on as described. that the object sought was to rescue some pri. It was for the jury to decide whether the obsersoners from confinement. But, gentlemen, vations which had been made on this point you must consider not only what took place at broke in upon the credit of Rees, on what was the Westgate, but also the arming a number of partly a collected point, as it appeared that persons, and bringing them down to the town, both roads went to the Westgate. Thomas which is proved to have been done for some Devon Oliver, in his evidence, said that the purpose or other. What that purpose may mob, when they came to the Westgate said, have been it is for you to judge. This witness "Surrender yourselves prisoners.” That was also said that he heard firing almost instan- met by other evidence produced on the part of taneously after he saw Mr. Frost, and this was the prisoner at the bar, and it had been very promaterial, as it tended to show that the prisoner perly conceded that the words might have been, had not left the mob when that took place, or as described by that other witness, "Surrender at least that he was with them at or about, or up your prisoners." That was so far importvery nearly at the time, when the firing took ant, as it would tend to show that the first place. Then came the evidence of Thomas challenge made at the Westgate before that Latch, which called for no particular com- conflict with the soldiers, was a demand that ment; and it was followed by the testimony of the persons who had been kept prisoners during Thomas Rees and James Coles, the two boys the night should be delivered up to them. It who spoke to what took place at the machine, was for the jury to consider whether the evia short distance from Newport. Upon this dence, so far as he had yet presented it to them, part of the evidence it was right he should call showed a determination to get possession of a the attention of the jury to the particular ex- few prisoners, rather than a determined attack pressions used by these witnesses. Rees stated upon her Majesty's troops. This witness said that Coles had said about a dozen soldiers had that he put his arin against the door, in a struggone down to the Westgate, and the only vari-gle to avoid a gun levelled at him, and that the ance between them was that Coles said he had been told so. This discrepancy was not very material. Rees said that Jack the Fifer was near Frost with a pistol in one hand and a spike in the other. It was so far material, as regarded the question whether the party were aware the soldiers were at the Westgate-whether the boy gave a true account of what occurred when the inquiry was made. Then the witness said that Jack the Fifer desired Coles to go and say "Bye and bye we'll have the Westgate to ourselves." It was for the jury to consider whether this reference was to the state and condition of the Westgate as being partly in possession of the soldiers, or whether they had heard in the interval that some Chartist prisoners had been taken in the course of the night, which might have been communicated to them, or whether the expression "Go and say, bye and bye we shall have the Westgate to ourselves," might have been used not with any treasonable design, but for the purpose of rescuing one or two prisoners. The jury must read the evidence, and see whether it was consistent with the inference that the mob and the prisoner at the bar knew that the soldiers were at the Westgate, and took a determination to attack them, or with the more innocent, though guilty, yet not treasonable intention, of rescuing certain prisoners who had been placed in The gun went off close to his head. It did not |