"If any person or persons, &c. shall compass, imagine, invent, devise, or intend death or destruction, &c. &c. or to deprive or depose him, &c. or to levy war against his Majesty, in order, by force or constraint, to compel him to change his measures or counsels, or in order to put any force or constraint upon, or to intimidate or overawe both Houses, or either House of Parliament and such compassings, imaginations, inventions, devices or intentions, or any of them shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed." Even under the first head of the statute of Edward III. it might have been maintained to be treason to conspire for the attainment of universal suffrage and annual Parliaments by force; and the oath and secret meeting might have been given in evidence as overt acts. But it is unnecessary to enter upon the question, whether the acts libelled as having been done, might have justified a charge of treason. It is enough for the present purpose to say, that if the force which the parties bound themselves by this oath to use, for obtaining annual parliaments and universal suffrage, had been actually employed for those purposes (which are not only of a public nature, but utterly subversive of the whole frame of the constitution) this would clearly have been that species of treason which consists in levying war against the king. It was said, that the concluding part of the indictment does not correspond with what goes before, as the charge of intending is omitted, and that of purporting only relied upon. It is true, that the prosecutor relies completely on the charge of purporting, because the purport and open meaning of the oath is so clear; but the proper answer to this critical objection is, that it is quite unnecessary and unusual to repeat in this part of an indictment the whole expressions previously used, as it always bears such a reference to what goes before, as to point the attention to the preceding description as that which is here spoken of. Thus, "Times and places foresaid the said oath or engage ment," &c. This is the usual style, and it is not customary to repeat all the preceding epithets and qualifications which are included and held repeated by the reference to what goes before. I am sensible that there are many things which I have omitted, but I will not detain your lordships longer. Mr. Solicitor General.-In concluding the debate on the part of the crown, I must be pardoned for observing in behalf of the prosecutor, that nothing is or can be more remote from his intention, than to introduce into the law of the land any of those constructive treasons to which reference was made by my learned friend at the commencement of his speech for the panel. Nothing can be more remote from the intention of the public prosecutor in Scotland at any period. And if such a profligate design existed, it would meet with a sure and signal defeat from the inde.. pendence of the bar, and from the vigour and integrity of the court. The present prosecution does not involve any charge of constructive treason. It is founded upon a statute of recent introduction; a statute quite plain and explicit; a statute which, very unfortunately for the country, the late corruption of the public mind and of the moral habits of some part of the population has rendered necessary for the protection of the state. In answering the argument maintained for the panel, I must take leave to recal to your lordships' notice two of the species of treason, which were not introduced, but well defined, by the statute of Edward III. These two species of treason are,--first, Compassing the death of the king; secondly, Levying war against the king. Your lordships are all aware, that by declaring and defining the first species of treason, the legislature bestowed upon a mental actupon the imagining, or compassing in the mind, the death of the king-the character of a completed crime, punishable by a high sanction; and it provided, that in the case of this highest offence against the state, mere intention (which in other cases is not cognizable by the criminal tribunals to that effect) should hold the same rank in the scale of guilt and of punishment with a completed act. It rendered the compassing or imagining, the mere conception or design of destroying the king, punishable with the pains of treason. There is a remarkable distinction, therefore, between this class of crimes and all others. It may be said generally, almost without exception, that the mere compassing of any other act, the mere compassing of murder, for instance, the criminally imagining such a deed is not a cognizable crime, at least is not cognizable as the crime of murder. But in this department of the law the case is different. The imagination of the king's death is the statutory crime, and nothing more is required than an overt act, by which this imagining is inferred or proved. As to the next species of treason, that of levying war against the king, I do not mean to give an opinion upon the question, whether the mere imagining of it, as proved by the administering or taking an oath, or by any thing short of the total or partial execution of the act of levying war, would be held to fall under the statute. I am not here called upon to offer any opinion on such a question. But you will see by and by the reason why I have called your attention to the circumstances which have now been stated. On the supposition, that by the former and existing law it was doubtful whether in the general case the mere intention, or imagining, or compassing to commit any treason, when not reduced into action, is in itself treason, the statute of the 52d of the king was introduced, the object of which was, to bring the well as its application to the previous law, and its necessity in the circumstances and character of the country, on which I have insisted, to be correct, I solicit your attention to the first, and, in my mind, by far the most important objection that has been made, as to the mode in which the libel is laid. That objection consists of two points in law, as I understand it. In the first place, that the oath taken does not, upon a fair construction of it, amount to the offence stated in the major proposition; or, in other words, to the statutory offence. And then, supposing it did, it is alleged, secondly, that in the indictment there is a want of specification of circumstances, and detail of the manner in which the intended treason was to be committed. intention of committing treason, when so far matured as to be rendered obligatory by an oath, into the class of crimes punishable with death. By the previous law, it might perhaps be doubtful whether such criminal intention could in certain cases infer a capital punishment. But when the intention is approximated to execution by an oath, and is manifested by such an overt act, when it is accompanied by an oath to commit and conceal it, the legislature has enacted that it shall be punished as a capital crime. That the act described so distinctly in the statute is a high offence, an offence from which the greatest danger to the public may be apprehended, and by which the deepest depravity of heart in the perpetrator is proved, no man will venture to dispute. I can see no reason why the highest sanction should not be affixed to the commission of it. I submit that all this is as clear as the sun, and that neither the legislature nor the public prosecutor can be charged with any design of introducing constructive treason, by demanding the infliction of a capital punishment on such a crime. Taking that view of the objects and purposes of the statute, and considering it with reference to the principles and system of the law of treason, and with reference to the general, principles of criminal jurisprudence, your lordships will be pleased to attend to the terms which are used. "That every person who shall, in any manner or form whatsoever, administer or cause to be administered, or be aiding or assisting at the administering of any oath or engagement, purporting or intending to bind the person taking the same to commit any treason, or murder, or any felony punishable by law with death, shall, on conviction thereof, by due course of law, be adjudged guilty of felony, and suffer death as a felon, without benefit of clergy." It is plain, in looking to the terms of the statute, that it did not contemplate an act which has been done, but one which is to be done; which exists only in intention, but which, at the same time, exists in a matured intention; an intention passing from the heart of one man to the heart of another, and attended by the obligation of an oath for the concealment and accomplishment of the imagined crime. And sure I am, that it is impossible for any one taking this view of it not to be of opinion, that the act defined is not merely a statutory crime, but must be felt and confessed to be a crime by the common sense and universal feelings of civilized man. At all times and in all places it is a crime, and in no place or country is it more criminal than in Scotland, where there exists, in many districts of it at least, a religious feeling amounting almost to fanaticism; and where a union of political and religious passions must create in the vulgar mind a darker, and more atrocious cha racter. Holding, as I do, with a confidence not in ferior to that which has been expressed on the other side, the interpretation of the statute, as VOL. XXXIII. I call your attention, in the first place, to the terms of the oath, for I have no hesitation in saying, that if this oath do not of itself, and in fair and honest construction, amount to the crime laid in the major proposition, there is no case before you. For I have no intention (I disclaim it, and no one can with truth impute it) to press a severe or harsh construction of the oath. The terms of this oath have been often read to you, and, however disagreeable it may be to repeat that which you have so often heard, the importance of the case must be my apology for again reading its words and subjecting it to a critical examination. I may here state, that in construing the oath there can be little room for difference of opinion as to the principle on which you ought to proceed. I am willing to admit, that the panel at the bar is not to be ensnared by any subtle, recondite, and remote interpretation of the oath, by any interpretation different from that which an ordinary man would put upon it, on reading it from beginning to end. But I maintain with equal confidence, that the panel cannot escape from the law, and the public safety is not to be endangered, by a construction in his favour, which is recondite or subtle-by an interpretation of the oath, which it plainly could not bear in his own mind, and which plainly he knew it did not bear in the minds of those to whom it was administered. Between these two extremes, it is your peculiar province to strike out the middle course, and to adopt that just and rational interpretation which will not only command the acquiescence, but the approbation of the public prosecutor. What does the oath say? "In the awful presence of God, I, A B, do voluntarily swear that I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every description, who are considered worthy of confidence." I concur with my learned friend in saying, that this part of the oath, if taken by itself, is perfectly innocent. The oath goes on, "And that I wili persevere in my endeavours to obtain for all the people in Great Britain and Ireland, not disquulified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation, and annual parlia N ments; and that I will support the same to the utmost of my power, either by moral or physical strength, as the case may require: And I do further swear, that neither hopes, fears, rewards, or punishments, shall induce me to inform on, or give evidence against, any member or members, collectively or individually, for any act or expression done or made, in or out, in this or similar societies, under the punishment of death, to be inflicted on me by any member or members of such societies. So help me God, and keep me stedfast." Two questions have been raised on this part of the oath. The counsel for the panel has maintained two propositions. First, That the words "support the same" mean, that the oath-taker was to support annual parliaments and universal suffrage, after these mighty improvements were established by regular and constitutional means. And, second, That even if the words support the same mean, to support the endeavours to obtain these objects, yet the physical strength to be used was capable of being used in a manner not illegal. same. On the first point, your lordships have to consider what is here understood by the word What is the antecedent to this pronoun? I submit, there are only two ways of giving a sound construction of this word. It must either apply to the whole of the previous branch of the sentence, or to a part of it. If the first is adopted, and if it be held to embrace the whole of the previous part of the sentence, and if the antecedent be considered as thus extensive, then the construction put upon it by the other side will be destroyed; for if the word "same" embraces all the previous part of the sentence, it includes both the use of physical force in obtaining annual parliaments and universal suffrage, and its employment in maintaining these objects after they are accomplished. This is a mode of construction so perfectly fair, that the panels cannot object to it. pointed out, not only by the juxtaposition of the words, but by the general sense of the whole passage and of the whole, oath; and it is im possible to put any other interpretation upon it, without sacrificing the public safety, and public law to a forced and subtle construction. I do not dwell longer on this point, because truly it lies in a nut-shell, and if by merely stating it, I do not shew that I am in the right, I despair of doing so by any length of argument. Now, your lordships have to consider, whether, supposing it were established that the obligation in the oath is to support endeavours to obtain annual parliaments and universal suffrage by physical strength, the act which was thus meditated, does, if accomplished, amount to treason. That such purpose would, if accomplished, have constituted treason, is proved by the concurrent testimony of all lawyers ancient and modern. The essence of treason consists in the application of force to the accomplishment of an alteration in any general law. How did my learned friend get out of this dilemma? He maintained that physical strength for the accomplishment of any change in the laws of this kingdom, might by possibility be exercised without committing treason; and this he illustrated by supposing the case of the Speaker of the House of Commons being forced by threats and violence to consent to a bill for the abolition of the House of Lords, or of any of the branches of the constitution, which bill having passed the House of Lords, had its fate dependent on the Speaker's casting vote. That whimsical case can scarcely be called a case in illustration; but if it were necessary for me to enter into that supposed case, I would say without hesitation, that here was treason, not merely under the act of the 36th of the king, but under what I may call the previous common law of the land. Many decisions might be referred to, to establish this. But I have no occasion to enter upon such an inapplicable question. But this is not the construction which a perusal of the oath naturally dictates. It is clear The other instances of the possible exertions that by it the obligation to accomplish the of physical force in the accomplishment of the wished-for changes by physical strength was purposes contemplated by the panel and his contemplated, and that this was the sole pur- associates are utterly absurd. It is said, that pose of the oath. I maintain, that taking the physical force may be exerted in the carrying whole of the oath together, comprehending the of messages, in the erection of hustings, in the obligation to concealment, it is impossible to keeping off the crowds, and in various other consider it without concluding, not by a remote ways which are all innocent, and which are all and distant construction, but by direct rational conducive to the attainment of the objects in necessary inference, that the parties had in view. I contend, that in these illustrations their minds a criminal accomplishment of their the counsel for the panel forget or overlook the designs, and the moment criminal intention is distinction between the terms moral and granted to me, it follows that there can be no physical, as employed to characterize human criminal accomplishment of this design, but action. When a man delivers an oration, he is such as would be treason. The reasonable, understood in common language to exercise his the fair construction, that which obviously moral power or strength. But my learned must have have been in the mind of the giver friends must admit, that some physical force or and taker of the oath, is, that the word same strength is also at the same time exerted. To had no other application than that which I make the pen with which the political orator is have stated, viz. to bind to the use of phy-to write, to carry the bench from which the sical strength for the attainment of the object.political orator is to declaim, to keep off the This is the correct, grammatical construction, crowd with which the political orator would Parliament: neither does the constitution justify any private or particular resistance for private or particular grievances; though in cases of national oppression the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the king and his people."* otherwise be incommoded, are all actions subservient to the moral powers which are to be exerted. It is impossible to deny this without confounding the distinction between the terms moral and physical. No moral power can be exercised by man without physical exertion, but when the distinction to which I have adverted is recollected, the illustrations which have been offered are either in themselves absurd, or are against the argument of the panel, and must be classed with moral, and not physical exertions. The obligation in the oath is, to employ moral and physical strength, as the case may require that is, such moral strength, as the case may require, and such physical strength, as the case may require.-It is thus clear, that the terms of the oath do not bear a limitation to that innocent sort of force by the criminal example of which the learned counsel illustrated his argument. According to the clear terms of the oath, such physical strength was to be employed as the case might require, for the accomplishment of the purposes which have been mentioned. What, I ask, are we to understand what is the legal inference from the construction I have given? It is, that physical strength, as the exigency might require, was to be used for the accomplishment of a change in the constitution. It is unnecessary to advert to the extreme absurdity of endeavouring to distinguish between the meaning of the words strength and force. They are certainly synonymous terms; and for the present purpose, at least, no distinction can be stated between them, either in popular or technical use. It is impossible to accomplish the alteration or subversion of any part of the constitution by physical force, without, in legal acceptation, levying war for that purpose, or compassing the king's death, or being guilty of some other treason. The application of numerical physical strength is nothing else but the levying of war. But if war be levied within the kingdom for any general purpose, for the purpose of subverting any of the branches of the constitution,that war is understood to be levied against the king, who, being the executive, is bound to protect the other branches of the Legislature. This is the import of all the authorities, to some of which I may now direct the attention of the Court. The first authority to which I refer is that of Blackstone, who states the law in a brief and popular form. "The third species of treason is, If a man do levy war against our lord the king in his realm.' And this may be done by taking arms, not only to dethrone the king, but under pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances, whether real or pretended. For, the law does not, neither can it, permit any private man, or set of men, to interfere forcibly in matters of such high importance; especially as it has established a sufficient power, for these purposes, in the high court of The next authority to which I refer is that of Foster, a book which is daily cited by English Judges, as an undoubted authority. I quote from page 211.-"Insurrections in order to throw down all enclosures, 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 effect 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; for though they are not levelled at the person of the king, they are against his royal majesty; and besides, they have a direct tendency to dissolve all the bonds of society, and to destroy all property, and all government too, by numbers and an armed force. 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." The only other authority to which I shall refer, is that of a Judge, than whom none was ever more highly or more deservedly honoured during a long and splendid career. I quote from the summing-up of lord Mansfield on lord George Gordon's trial.—“There are two kinds of levying war:-One against the person of the king; to imprison, to dethrone, or to kill him; or to make him change measures or remove counsellors :-The other, which is said to be levied against the majesty of the king, or, in other words, against him in his regal capacity; as when a multitude rise and assemble to attain by force and violence any object of a general public nature; that is levying war against the majesty of the king; and most reasonably so held, because it tends to dissolve all the bonds of society, to destroy property, and to overturn government; and by force of arms to restrain the king from reigning according to law. "Insurrections, by force and violence, to raise the price of wages, to open all prisons, to destroy meeting-houses, nay, to destroy all brothels, to resist the execution of militia laws, to throw down all inclosures, to alter the established law, or change religion, to redress grievances real or pretended, have all been held levying war. Many other instances might be put. Lord Chief Justice Ilolt, in 4 Comm. 81. sir John Friend's case, says, "if persons do, assemble themselves, and act with force in opposition to some law which they think inconvenient, and hope thereby to get it repealed, this is a levying war, and treason." In the present case, it don't rest upon an implication that they hoped by opposition to a law to get it repealed, but the prosecution proceeds upon the direct ground, that the object was, by force and violence, to compel the Legislature to repeal a law; and therefore, without any doubt, I tell you the joint opinion of us all, that, if this multitude assembled with intent, by acts of force and violence, to compel the Legislature to repeal a law, it is high treason. the only obvious construction of it, is that which I have stated to your lordships. It was contended further, however, that,, supposing a treasonable purpose to have existed, it is still necessary that it should be proved by and appear in the oath, and in the oath alone, in order to have the case brought under the statute. If I rightly understood this plea, two things were maintained, which I own appeared to me to be inconsistent: It was first maintained, that there is a want of specification in the indictment as to the mode in which the treason contemplated by the oath was to be effected; next, it was maintained, that in this indictment, charging the panels "Though the form of an indictment for with administering unlawful oaths, we are not this species of treason mentions drums, trum- entitled to go into any proof of acts of treason pets, arms, swords, fifes, and guns, yet none of said to have been committed by them, for that these circumstances are essential. The question would be to make the proof of one crime the always is, Whether the intent is by force and vio- proof of the commission of another. These lence to obtain an object of a general and public I consider to be inconsistent objections. nature by any instruments, or by dint of their numbers? Whoever incites, advises, encourages, or is any way aiding to such a multitude so assembled with such intent, though he does not personally appear among them, or with his own hands commit any violence whatsoever, yet he is equally a principal with those who act, and guilty of high treason."* Many other authorities to the same effect might be accumulated. I need not quote Hume, who gives a very luminous abstract of all the English authorities on the subject, and gives a summary which, in perspicuity and precision, is not surpassed by the boasted oracles of English law. I say, therefore, on these authorities, it is utterly impossible to imagine that any change in the constitution can be accomplished by physical strength, without necessarily implying -not constructively, but necessarily implying --that it is done by force and violence. Levying war is nothing more than the application of an act which is treason. The form or mode of this act may probably be that of levying war, to overcome or prevent resistance. It does not consist in having drums, or uniformity of dress, or the other usual appendages of warlike pomp. It does not consist in any particular kind of offensive arms, but in the application of a powerful and numerous force; and it is impossible that strength for the accomplishment of any change in the constitution can be applied in any way, so as not to include the crime of treason, either of levying war, or of compassing the king's death, or of treason, under the Stat. 36 G. III. That which is accomplished by force can only be done sub specie belli, in so far as those terms have any intelligible meaning, and the same quality must characterize that which is intended or resolved to be done. I submit, therefore, that the construction given by the learned gentleman to the oath is erroneous, and that the only sound, the only legal, and 21 How. St. Tr. 644. Whether the treasonable purpose should appear in the oath itself, to bring the case within the statute, it is unnecessary to argue, because in the present case we do not desire to go beyond the contents of the oath. But in passing, I must deny that this plea for the panel is sound, or at all warranted by the terms of the statute. With respect to the other objections, I must observe that from the nature of the crime which the statute has defined, you neither can require, nor can you expect, in charging it, a specification of overt acts of treason. According to the previous argument of the panel, the prosecutor is not entitled to prove any acts of treason, if such had been actually committed, and herein lies the monstrous inconsistency of his present argument. In my view of the case, the specification which the panel thus alternately opposes and demands, is morally impossible. The charge here is not for the accomplishment and completion of the crime of treason; the charge is for the conception, the imagination of treason, sanctioned by an oath, and so far by an overt act consisting in the administration of an oath. When a crime has not been actually committed it is impossible to state the circumstances of mode, time, and detail of execution. When a crime has been committed, it is of course an essential mode of that criminal act, that it was accompanied by time, place, and circumstances; and when a panel is brought to the Bar on a charge of having committed a crime, the prosecutor can have no knowledge regarding it without knowing some of the prominent circumstances of its execution, But you must all be aware, that this rule cannot apply to what merely exists in intention. Of intention here, your lordships have evidence by the oath, and the oath is such as the statute has made it a crime, either to administer or to take. The crime charged is the administering an oath of a certain kind, and the mode of this act is admitted to be sufficiently detailed. It |