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God, and keep me stedfast.” And it is said by physical force the subversion of the estab-
Ilere the prosecutor recites the oath, and
mission of the crime charged-still bis mere I trust I shall afterwards show, though it is assertion on this subject will not be sufficient; not at present the time to make inquiry into and if the Court shall be satisfied, on comthis, that however atrocious the crimes here paring the alleged truth with the alleged falseaffirmed to have been committed by the pri- hood, that there is not an absolute contrasoner may be, as they are in themselves totally diction between them; in other words, that irrelevant to infer the crime with which he is what the prisoner has sworn may be reconreally charged, so at the same time it is in- ciled with what the prosecutor says he ought competent, according to the law of Scotland, to have sworn, you will not hold the indictto bring any proof of those crimes. This I ment to be relevant, nor send the charge to a shall postpone for after-consideration, pro-jury to be tried. That being the case, if your ceeding, in the mean time, to consider the lordships, on reading this oath, be of opinion, oath which was administered, which is said to that it does not purport what the public propurport an obligation on the taker to commit secutor says it purports, then I say this is an treason.
irrelevant libel. The oath is in these words :-" In awful It is true that, besides the word “
purportpresence of God, I, A B, do voluntarily swear, ing," there is another word used here, « inThat I will persevere in my endeavouring to tending.” What is the signification of the form a brotherhood of affection amongst Britons word intending I shall afterwards consider, and of every description, who are considered ii is of material importance to this case; but worthy of confidence; and that I will per- let us see, in the first place, what is the signisevere in my endeavours to obtain for all the fication of the term purport. This term, as people in Great Britain and Ireland, not dis- every body knows, is applied to denote the qualified by crimes or insanity, the elective meaning of words as gathered from the words franchise, at the age of twenty-one, with free themselves—the meaning as expressed in conand equal representation, and annual parlia. tradistinction to the meaning which may be ments; and that I will support the same to conjectured from extrinsic facts or circumthe utmost of my power, either by moral or stances. Look then at the words of the oath, physical strength, as the case may require : and see if it purports what the prosecutor says And I do further swear, that neither hopes, it does. No man who reads it can say so. fears, rewards, or punishments, shall induce The words of the oath are, “ I will persevere me to inform on, or give evidence against, any in my endeavouring to form a brotherhood of member or members, collectively or indivi- affection amongst Britons of every description, dually, for any act or expression done or made, who are considered worthy of confidence.” in or out, in this or similar societies, under Nobody will pretend to say that there is an the punishment of death, to be inflicted on me obligation to commit treason here. There is by any member or members of such societies. an obligation to form a brotherhood of affecSo help me God, and keep me sted fast." tion. All the subjects of this country are Then it is said, “ Which oath or obligation brothers; and it is becoming that they should did thus purport or intend to bind the persons dwell together in unity. This cannot purport taking the same to commit treason, by effecting any thing to be done that is improper. The
oath then goes on, “ That I will persevere in The oath in the indictment then goes on to my endeavours to obtain for all the people of say, “that I will support the same to the utmost Great Britain and Ireland, not disqualified by of my power, either by moral or physical crimes or insanity, the elective franchise, at strength, as the case may require.” Support the age of twenty-one, with free and equal re what? Here is an ainbiguity in the oath; and presentation, and annual parliaments.” There an ambiguity which shews how hazardous it is are few persons at present, who are qualified, to admit constructive treasons reared upon either from their natural parts or information, words uttered by persons not critically acto judge of subjects of this kind, who will be quainted with the imperfect instrument of of opinion that either annual parliaments or language. Interpret this passage any way you universal suffrage would be of advantage to the chuse, it will not amount to any thing criminal. inhabitants of this country, or would conduce Even supposing that it binds the party taking to any thing else than anarchy in the first in the oath to obtain the objects which are specified stance, and despotism in the end. But in it by moral or physical force, what is the result? although this be true, it is well known to it is, that lawful objects are to be obtained by your lordships, that it is the privilege of every lawful measures. No person can be blamed subject in this country, to form his own opinion for exerting his utmost efforts under that on subjects of a political nature; and having limitation. Or take the only other construcformed his opinion, he may make use of law- tion which can be put upon this clause of the ful means to have such changes produced in oath, and suppose the party to swear, that he the constitution or government of the country will support annual parliaments and universal as he may think expedient. The legislature suffrage to the utmost of his power, when these has at different times altered the duration of objects shall have been obtained; that he will use parliament and the mode of suffrage; and if his best endeavours to continue and perpetuate any person believes that annual parliaments these imaginary blessings, when they shall once and universal suffrage would be of benefit to have been procured for the country: Is this the country, it is no crime to use lawful en an unlawful obligation ? It certainly is not. deavours to obtain these objects, which can If lawful objects are obtained in a lawful only be obtained lawfully by an act of the manner, then, it is the duty of good subjects British parliament itself; and you know, that to support and continue them. So that whatpetitions for such objects are daily presented ever construction you put upon this clause of to parliament, and daily received.
the oath, whether you suppose it to refer to It is said in the oath, “ I will persevere” in enterprises for obtaining what does not already these endeavours. If the endeavours are law- exist, or for supporting improvements after ful, the persevering in them is no crime at all. they shall be established by law, it is in either It is not said in the oath, or in any part of the case perfectly innocent.-With regard to the indictment, that the prisoner was engaged in terms “moral and physical strength,” I may unlawful projects for these purposes. It is remark, a man may support what is lawful said, indeed, in the indictment, that the per- either by the one or the other, and yet be free sons who administered the oath were engaged from blame. The individuals attempting to in a treasonable conspiracy; but there is no procure annual parliaments and universal sufspecification of circumstances to evince the frage, might employ their moral strength for prisoner's accession to this conspiracy, nor is that purpose by using arguments; or their the offence of conspiracy any part of the sub-physical strength, for instance, by being desstantive charge made against him in the in- patched with letters and messages, or going dictment. That being the case, the oath or about to solicit members of parliament for their obligation to endeavour to obtain annual par- support. A person may erect hustings, and liaments and universal suffrage, is an obliga- may keep off the rabble-he may employ bis tion in itself perfectly innocent. Your lord physical force in twenty different ways without ships will not say that these endeavours are doing any thing that is unlawful. unlawful, nor will you impute improper mo The oath concludes, “And I do further tives to the party in prosecuting them, for you swear, that neither hopes, fears, rewards, or are not authorized to make such an intend punishments, shall induce me to inform on, or ment. When a person promises to use every give evidence against, any member or memendeavour to accomplish an object, the gene bers, collectively or individually, for any act rality of this expression will never extend it or expression done or made, in or out, in this to unlawful endeavours-it must be construed or similar societies, under the punishment of with the common and necessary limitation, death, to be inflicted on me by any member or that he will use every endeavour which he may members of such societies. So help me lawfully use. If this principle of construction God, and keep me stedfast.” I admit at once, were not adopted, the oath of abjuration itself it is improper for any person to undertake an might be converted into an obligation to obligation not to give evidence. But that is commit treason. “I do faithfully promise, to not an obligation to commit treason : it is only
the utmost of my power, to support, maintain, to commit a misdemeanor with which we have . and defend the succession of the Crown," pur- here no concern. . ports, that I will support, maintain, and de Not one of those clauses of the oath can fend it by lawful means--but not by unlawful support the major proposition in the indictment. means, not by felony, murder, or treason,
Read the oath from beginning to end, and say, fore, has extracted a meaning from the text
would not purport an obligation to commit
In order to make an indictment for either of The prosecutor has given you a gloss or these two kinds of treason relevant, it is not comment on the oath, and you will judge if it enough to say that the party intended to effect, be correct. The civilians have a nickname, I or has effected by force, the subversion of the forget what it is, for a gloss which extracts a government, for that is not necessarily com*meaning from the text exactly the reverse of passing the death of the king, or levying war what it paturally bears. This gloss is precisely against him. Though some of the acts perof that nature.
formed in subverting the government might be In the oath there are the words, “I will overt acts of treason, they are not necessarily support the same to the utmost of my power, so. either by moral or physical strength.” In the In order to establish the first kind of treason, prosecutor's comment the word force is substi- two things are necessary. You must have a tuted for strength. That may be thought im- wicked imagination in the mind, namely, the material, and to have proceeded from inatten- compassing of the king's death; and you must tion, but it is not so. It has been introduced have overt acts, which the law considers as in order to insinuate something different from proof sufficient to establish that imagination. "what the oath purports. Strength in common | But it is not laid here that the oath bound those language applies to bodily exertion. Force who took it to compass or imagine the death applies to an assemblage of armed persons. of the king. I cannot illustrate my argument Although you can speak of an armed force, as it applies to the case before you, better than you cannot speak of an armed strength; a cireum- by appealing to an extreme case, with which you stance which shows that the meaning of the words are all wellacquainted- the trials of the regicides is not the same. The prosecutor by this clause in the 17th century. You will recollect how the means to insinuate, that the parties were to en- indictments were there laid “ for compassing deavour by an armed force to obtain theirobjects; and imagining the death of the king;" and the . a purpose which cannot be inferred from the overt act of that treason was cutting off the words of the oath at all. It is further said, head of the king. It would not have been that the oath was to bind to the “ subversion relevant to have merely charged the act of of the established government, laws, and con- putting the king to death, as the crime of stitution of this kingdom," but there is nothing treason, the crime consisted in the imagination from the beginning to the end of the oath of the heart; the death of the king was the about effecting any thing. The parties bound evidence that that imagination existed. In the themselves to use endeavours to obtain same manner, the subversion of the laws and annual parliaments and universal suffrage ; constitution of the kingdom is not treason, and these, if obtained in a lawful manner, are though it is probable in effecting that subver. not a subversion of the government, laws, and sion overt acis may be committed, which afford "Constitution of the kingdom.' The gloss, there evidence of treason.
The other species of treason which I men-, version accomplished by force ; yet no lawyer tioned, was levying war against the king. To will maintain that this is a case of high treaconstitute that crime, the use of physical force son , that it is a case of compassing the king's in the subversion of the laws or constitution of death, or of levying war against him, or of the kingdom is not sufficient. One of two conspiring to levy war. things is necessary; either, on the one hand, the I repeat, then, that although this oath did persons using that force must be assembled in purport what the public prosecutor says it the guise of war, as it is expressed in the does, but which most certainly it does not, Norman jargon of the law, arriati modo guerrino; still it would not support the charge in the they must proceed sub specie belli, armed with major proposition. If the prisoner was acwarlike engines, with colours displayed, and cused of having subverted the constitution by to the sound of trumpets and drums: or, on force, could that charge go to trial as a charge of the other hand, there must be so great a mul high treason? assuredly it could not; and for the titude assembled, that their numbers may com same reason a charge of having administered pensate for the want of the pride, pomp, and an oath purporting to bind the taker to subcircumstance of war. Certain persons assembling vert the constitution by force, is not a charge together and prosecuting an illegal object by of having administered an oath binding him to force, does not necessarily constitute a levying of commit treason. war against the king,-unless it have the charac I have now considered the oath as “purportteristics I have mentioned, it is not treason. ing" to bind. That word, as I have endeaI am unwilling to detain you in a case of this voured to explain it, and I trust I hare kind by quoting authorities on the subject. I soundly explained it, implies nothing more could quote a great many, but I shall content than the meaning of the oath as it may be myself with referring you to Hale and Foster, gathered from the words set forth. But ihen in their chapters on this subject.
the public prosecutor says that this oath purThere is a third treason, that of conspiring ported, or intended; and the question comes to to levy war in order to accomplish certain ob be, Does the use of the word intend make any jects, as to put the king under restraint, to in difference? I apprehend it does not; for the timidate parliament, or force the parliament to intendment of a writing or speech in the orenact certain laws. This treason was intro- dinary case is just the same thing as its pur. duced by the 36th of the king, c. 7. *
port. You will observe the Act of Parliament * I ask, then, whether this oath, granting that does not say, if the person administering the it purports what the prosecutor affirms it pur- oath intends to bind to the commission of ports, imposes an obligation to commit any treason, that his intention shall infer the crime. one of these three distinct species of treason? This is not the meaning of the statute; for it I have already stated the reasons, by which requires, that there shall be an outh or engageyour lordships must be convinced that it does ment “intending” to bind, &c. It is the not bind the taker to compass or imagine the intendment of the oath, not of the person, death of the king. Just as little does it bind which the statute mentions; and, therefore, him to levy war against the king, or to con- though it were perfectly clear that the prisoner spire to levy war against him.
administered this oath, and that it was his I have said that force may be used, nay, intention to bind the party taking it to comsuccessfully used, to subvert the constitution, mit treason, yet that is not enough, if the oath and yet no war be levied against the king itself do not bind to that effect. Now, that I shall give an iostance of this, which appears cannot be inferred from the words of the oath ; to me decisive on the merits of the present for if you interpret them fairly, they mean question. Suppose that the House of Lords nothing but what is, or at least may be, per (which of course they never will do) should fectly innocent. pass a bill to abolish the House of Commons, But then, perhaps, we shall be told that the or their own House, as a branch of the Legisla- public prosecutor will prove, by facts and cirturé (and if such' bill passed into a law, it cumstances, that the intendment of the oath is would effect the complete subversion of the different from the purport; and it occurred to constitution): Suppose, in the next place, me, that he has some such idea, from the cirthat this bill, when carried to the House of cumstance that he has drawn the narrative of Commons, should divide the House equally, his minor proposition in the way in which he and of consequence its fate should depend on has. I have various objections to this view of the casting vote of the Speaker. In those the subject, to which I must call your particircumstances, if twenty or thirty individuals, cular attention. not armed modo guerrino, but with sticks in In the first place you will observe, that in their hands, should go down and compel the the libel itself the prosecutor gives up the Speaker by threats or violence to vote for this charge of intending, and relies on that of purbíll,—the bill having afterwards received the porting altogether; for in the close of the libel royal assent, would operate as the subversion (where, though the same detail is not necessary, of the constitution, and it would be a sub- yet the crime must be set forth with the same
critical accuracy) he says, "At least, times and Made perpetual by Stat. 57 Geo. 3rd places foresaid, the said oath or engagement, e. 6.
or an oath or engagement to the same purport, VOL. XXXIII.
was wickedly, maliciously, and traitorously was nevertheless intended by the parties to administered, or caused to be administered," impose that obligation, yet the facts and &c. lle dues not say it was an oath to the circumstances here resorted to are of a kind same intent; and therefore, unless he esta- which precludes the prosecutor from making blishes that an oath of this purport was admi- use of them for thai purpose. If the narranistered, he does nothing at all. But this is tive of this indictment were to be proved, it not the objection on which I chiefly rely. would infer that the prisoner had committed
It is an established principle in the law of treason; but will your lordships permit the Scotland, that the minor proposition shall be lord advocate to prove that a man has been laid specifically, and that every material cir- guilty of treason in order to convict him of cumstance shall there be stated which is to be a felony. I submit that this is manifestly inmade the subject of proof against the pri- competent. It is a general rule in criminal soner. The prosecutor is not at liberty to law, and is so laid down by Mr. Burnet in his make out the intendment of this oath from work upon that subject (p. 611). His 18th facts and circumstances to which he only canon upon evidence is in these words: alludes in a vague manner; the libel is defec- “One crime cannot be proved by evidence as tive unless these facts and circumstances are to another. If A be charged with three acts distinctly specified. Would it be sufficient in of theft, a proof of two of them cannot be an indictment under this statute to say, that offered in evidence of his guilt as to the the prisoner, at the times and places mentioned, third.”. Your lordships will see at once the administered the oath of allegiance, but under principle upon wbich this rule is founded, and cover of that oath he intended to bind the indeed it is afterwards stated by the learned party to commit certain crimes? No. It author whom I have just quoted. He says, would be necessary for the prosecutor to set
“it is to avoid the risk of a jury being intiuforth what were the facts and circumstances enced by the proof of one crime in judging of which established the criminal quality. In a the proof of another.” It would be most dantrial for a calumnious or seditious libel, would gerous to the subjects of this country were it it be enough to specify that the prisoner re- held, that because a man had perpetrated one peated the first stanza of Chevy Chase, without crime of which he was not accused, the jury specifying how it happened that words having might conclude that he had perpetrated anoa natural, obvious, and innocent meaning, ther of which he was accused. This may were in reality directed to a totally different perhaps be a moral, but it is no legal ground and criminal object? The prosecutor must of inference. If I know that my servant has set forth the facts and circumstances from stolen an article from me on one day, and if which he draws his inference, otherwise the another is missed the day following, I may indictment is not laid with that minuteness very naturally conclude that he who stole the which the law requires. But your lordships first stole the second also. But if the servant will observe, that no fact is here specified was tried for the second theft alone, your from which such an inference can be deduced. lordships assuredly would not allow the proIt is stated in the narrative, that the prisoner secutor to go into evidence of the first. It “haring wickedly, maliciously, and traitor- could answer no purpose, but the improper ously conspired and agreed with other evil purpose of creating a prejudice in the mind disposed persons to break and disturb the of the jury. It is therefore a salutary and public peace, to change, subvert, and over-expedient 'rule, and a rule which I trust will ihrow the government, and to excite, move, always be received, that one crime cannot be and raise insurrection and rebellion, and espe-proved in order to establish another. As the cially to hold and attend secret meetings, for prisoner therefore is charged with having adthe purpose of obtaining annual Parliaments ministered an unlawful oath, and as for that and universal suffrage, did then and there crime and for no other a conviction is dewickedly, maliciously, and traitorously admi- manded, the prosecutor cannot be allowed to nister, or cause to be administered, or did prove in support of that charge, that he comaid and assist in the administering, to a great mitted another crime, namely that of treason. number of persons, an oath or engagement, Nothing could be more unfair or more conor an obligation in the form of an oath,” &c. trary to the principles of criminal law. In the first place I say, that supposing the Inaccurate opinions have sometimes been prisoner committed all these crimes, it is no received on this subject. I have used the arnecessary inference from that hypothesis that gument myself, that every thing is evidence he intended to administer an unlawful oath. which tends to produce belief in the minds of They do not create the smallest presumption the jury. That is not the law of Scotland or to that effect; for a man may be engaged in of any civilized country. The law judges treason himself, and yet have no intention to what should be allowed to produce belief in impose an oath binding his associate to commit the jury, and, for the reasons which have just treason.
been assigned, it will not allow evidence of But there is another view of the case. Sup one crime to be used as evidence of another. posing it competent from facts and circum- Though the prisoner was convicted of being a stances to prove that an oath which does not traitor, the highest crime which can be compurport any obligation of the nature libelled, mitted in any staie, that circumstance could