order he receives is plainly illegal, as to assassinate or murder a man, or resist a civil magistrate, is he bound to obey that order? No. The terms of his oath extend to all orders, but you will apply the maxim, id tantum facere possumus quod de jure facere possumus. In swearing to obey all orders, the oath intends lawful orders alone. You will recollect, there was a trial before the Court of Justiciary, in a case where a soldier had, by orders from his officer, resisted a magistrate. I speak of the case of Ferguson, in 1764. He was condemned by the Court, and it would not have availed him to plead, that the oath administered to him when enlisted, bound him to obey every order, whether lawful or unlawful.

I formerly mentioned to your lordships how the oath of abjuration imposed by government required to be construed. It binds the parties to exert all their endeavours to support the king's government and the protestant religion. What endeavours? why lawful endeavours surely, not by committing murder or felony. Construe this oath as you construe those oaths; let the general terms receive the same qualifications in both, and it is impossible to extract a treasonable obligation.

I have said perhaps too much on this point. Let me conclude with a few observations on the last clause: "I farther 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."

Nobody can doubt that it was a misdemeanor to impose, or to undertake this obligation; but this is not the question at present. Your lordships have to judge, whether this is necessarily an obligation to commit treason. This society was composed chiefly of individuals in the lowest stations of life, ignorant and uninformed persons, who, in the course of their discussions, might have fallen into improper or seditious expressions. It was natural that the members of the society should impose an obligation not to reveal what was said, lest any of their number should be convicted of libel or sedition. But an obligation to conceal such imprudent expressions, or even not to disclose improper acts committed in the presence of a person, is not an obligation imposed on that person to be guilty of libel, or sedition, or any similar crime, far less is it an obligation upon him to be guilty of treason. It may be a misdemeanor, but it is not that crime which your lordships are now called upon, by the major proposition of this indictment, to try; and if that be the case, it is clear that the libel is not relevantly laid.

Take the oath in all its parts-apply to it the ordinary rules of interpretation-take the words with the greatest rigour, or the greatest latitude, and you will never extract that sense

which it is necessary to extract from them, before you can have a relevant charge under the statute.

The prosecutor is not satisfied with reciting the oath in his minor proposition, he gives a commentary upon it, and it remains to be considered, whether the commentary is a fair expression of the import of the oath; and, supposing that it is, whether the oath so construed amounts to a treasonable obligation. After reciting the oath, the libel proceeds thus: "Which oath did bind, or did purport or intend to bind, the persons taking the same to commit treason by effecting, by physical force, the subversion of the established government, laws, and constitution of this kingdom, and especially by obtaining annual parliaments and universal suffrage by unlawful and violent means," Is that a fair gloss upon the words of the oath? Do they signify what the prosecutor says? Or are they radically and essentially of a different signification? There is not one word in the oath of an obligation to effect any thing, or to subvert any thing, if by subversion you mean ought else than a lawful endeavour to alter an existing law. The oath binds the taker, "to persevere in his endeavours to obtain for all the people in Great Britain and Ireland, not disqualified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation, and annual parliaments." Nothing is said here of the government, laws, and constitution of the kingdom; or of any laws, except those which relate to the duration of parliament, and the elective franchise. It binds the taker to subvert nothing by physical strength, not even the laws against universal suffrage and annual parliaments, and far less the established government, laws, and constitution in general. It contains no obligation to obtain annual parliaments and universal suffrage, or any thing else, by unlawful and violent means.

It binds the taker to support one of three things,—or, if you will, all the three,-by moral and physical strength; but this obligation must be qualified, as every such obligation is qualified, in ordinary speech; otherwise all human affairs would be thrown into confusion, and language would become the instrument of deception and error. If it be so qualified, the obligation is confessedly innocent.

It is not a gloss to substitute words of one import for words of a totally different import, and to change the meaning of a sentence by the interpolation of whole clauses which they do not contain. The subjects of this country would be in a dreadful situation indeed, if they were exposed to a capital conviction for the use of words; in construing which words the prosecutor might substitute and interpolate as he thought fit, until he found a meaning which suited his purpose, though totally different from the meaning which the words, as he himself recited them, naturally and properly bore.

The case of treason is perfectly analogous. It is true, there are not so many treasons as felonies, but there are, in the law, at least ten different treasons, and the prisoner is left altogether in the dark to which of these the lord advocate alludes,

I am afraid I fatigue your lordships, in going over grounds which were stated, if not much commented on, before. But I now come to another ground, to which I must particularly call your attention, being sensible, that the first time I had the honour of bringing it before you, it was imperfectly argued. After having given it more mature consideration, and weighed the authorities touching it, there is no one objection to this indictment on which the counsel on this side of the bar rest with more security and confidence. It is this, that, esto the words of this oath import what the public prosecutor says they import, it will not make a relevant charge; for granting that the oath binds the taker to do all that the prosecutor alleges, I maintain it is not an obligation to commit treason.

Before entering on this objection, I suppose it will be conceded to me, without any argument, that, in an indictment under this statute, the prosecutor is bound to specify the treason to which he refers,-that he is bound to state it precisely, formally, and technically. If this were not the case, there is not a more ensnaring or detestable law in the criminal code, because almost any oath might be twisted into an unlawful obligation, and the prisoner would come to the bar ignorant of what he was accused, and unprepared to defend himself.

To illustrate this, suppose an indictment laid for administering an oath, binding the taker to commit felony; and, in that case, I beg leave to ask, whether the prosecutor would be required to specify the felony he had in view. There is a vast variety of felonies, some of them existing at common law, and others introduced by statute. Many of these are complicated, obscure, and undefined, depending on the construction of revenue laws, commercial regulations, and the mysteries of trades and professions; now, if the panel was not made aware of the felony alluded to in the indictment, it would often be impossible for him to conjecture in what the crime consisted which was laid to his charge. Thus, suppose a prisoner was indicted for administering an oath binding the taker to commit felony, because it bound him to carry away a certain quantity of corn from the place where it was deposited, and give it to a shipmaster. Here the felony in view might be theft; or it might be fraudulent bankruptcy; or it might be taking corn from a storehouse, where it was deposited for exportation, contrary to the statute; or it might be holding correspondence with a person who had resided in France, contrary to the non-intercouse statutes. It will not be contended, that the prosecutor might conceal into which of those felonies he meant to construe the oath, and, consequently, deprive the prisoner of all means of defending himself.

11 Geo: II, c. 22.

t 33 Geo: III, c. 27; 34 Geo: III, c. 9.

The statute bears, "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," &c. The legislature here puts the term disjunctively. It does not say treason in general, but any treason; clearly intending, therefore, that the prosecutor should specify the particular treason which he asserts the oath bound the taker to commit. Hence I infer, that nothing but a technical description of the treason referred to, will suffice to make a libel under the statute relevant. It is a maxim in criminalibus non licet vagari, and there never was a case in which the maxim was more applicable than the present.

Let us consider the treasons actually existing in the law, and try to discover to which of them it is that the prosecutor alludes in the minor proposition of this indictment. I believe you will find the attempt altogether fruitless.

The first, mentioned by Foster, Blackstone, and other writers, is compassing the king's death. It is not laid, that this oath bound to compass the king's death, nor even to commit any of the common and usual overt acts which are considered as evidence of compassing the king's death-for example, to murder the king, or to put him in durance. I shall have occasion, by and by, to direct your attention to the case, that an overt act had been charged, that you may consider whether that would have rendered the indictment relevant. At present I am asking, whether the prosecutor asserts that the oath bound the taker to commit that species of treason ?-Unquestionably he does not.

The second treason is, to violate the queen, or the king's eldest daughter. It will not be pretended that this treason was in view.

The third is to levy war against the king in his realm. The prosecutor does not assert that that obligation was imposed, as will be evident from the following considerations. To constitute this treason two things are necessary: 1st, That war shall be levied: 2nd, That it shall be levied against the king; or, what is held equivalent, that it shall be levied for a public purpose, as destroying all enclosures and so forth.

Was this an oath to levy war? The old writers held, that war could not be levied, unless the persons engaged to levy it were arrayed modo guerrino; unless they were assembled with "all the pomp and circumstance of war." The law is so laid down by sir Matthew Hale. I am aware, there has been a relaxation in the law since that period; and

definition of the crime substituted in their room; and, unless a person is accused of a treason so defined, the accusation is good for nothing. The prosecutor must specify overt acts, but it will not do to specify them alone; he must further say what the particular treason is which he means to prove by them. In like manner, in this case, the prosecutor must say not merely that the oath libelled on bound the taker to commit an overt act of treason, but what the particular treason was which it bound him to commit. If it is not a relevant charge of treason to assert that a man conspired to subvert the constitution by physical force, neither can it be a relevant charge under this statute that he administered an oath binding the taker to subvert the constitution by physical force. The person who administered the oath cannot be dealt with more harshly than the traitor himself. If constructive treasons are abolished as to the one, they must be abolished as to the other also. The law must be consistent with itself.

I need scarcely refer your lordships to historical illustration in support of what I have said on the law of treason. You will remember that, during the feeble and abject government of Richard 2nd, certain questions were put to the judges, upon which they delivered answers. One of them was this. A statute had been made which had been supposed to be a subversion of the fundamental law of the kingdom, and an encroachment on the royal power; and a question was put, by command of the king, "what punishment they deserved that compelled the king to the making of that statute? Whereunto the judges gave answer, that they should suffer as traitors." There were other eight answers that do not bear on the present question. Nobody will deny, that to compel the king to consent to a statute, may be an overt act of treason. To put him under constraint, is a common overt act of treason. But the judges, without regard to the distinction which I have adverted to, and confounding what may or may not be an act of treason according to circumstances; in other words, what may or may not be evidence of treason, with the crime itself, they pronounced that the persons who compelled the king to make an improper statute were guilty of treason. Now I will read what sir Matthew Hale (vol. i, p. 84.) says, with regard to the answer 'so given by those judges: "The king called to gether the two chief justices, and divers others of the judges, and propounded divers questions touching the proceeding in that parliament, and the obtaining of that commission; and they gave many liberal answers, and among the rest, Qualem pœnam merentur, qui compulerunt sive arctarunt regem ad consentiendum confectioni dictorum statuti, ordinationis, et commissionis? Ad quam questionem unanimitèr responderunt, quòd sunt, ut proditores, meritò puniendi. Item qualitèr sunt illi puniendi, qui impediverunt regem, quo minus poterat exercere quæ ad regalia et prærogati

vam suam pertinuerunt? Unanimitèr etiam responderunt, quod sunt, ut proditores, etiam puniendi,' with divers other questions, and answers to the like purpose." That is the very answer I read from the State Trials. You see what he says, "This extravagant as well as extrajudicial declaration of treason, by these judges, gave presently an universal offence to the kingdom; for presently it bred a great insecurity to all persons: and in the next parliament crastino purificationis 11th R. 2nd, there were divers appeals of treasons, by certain lords appellors, wherein many were convict of high treason, under general words of accroaching royal power, subverting the realm, &c.: and among the rest, those very judges that thus liberally and arbitrarily expounded treason in answer to the king's questions, were, for that very cause, adjudged guilty of high treason, and had judgment to be hanged, drawn, and quartered, though the execution was spared ; and they, having led the way, by an arbitrary construction of treason not within the statute, they fell under the same fate by the like arbitrary construction of the crime of treason." And he adds again,

"Now, although the crime of high treason is the greatest crime against faith, duty, and human society, and brings with it the greatest and most fatal dangers to the government, peace, and happiness of a kingdom or state, and therefore is deservedly branded with the highest ignominy, and subjected to the greatest penalties that the law can inflict; yet, by these instances, and more of this kind that might be given, it appears, 1. How necessary it was, that there should be some fixed and settled boundary for this great crine of treason, and of what great importance the statute of 25th E. 3rd was, in order to that end. 2. How dangerous it is to depart from the letter of that statute, and to multiply and enhance crimes into treason by ambiguous and general words, as accroaching of royal power, subverting of fundamental laws, and the like; and 3. How dangerous it is, by construction and analogy, to make treasons, where the letter of the law has not done it; for such a method admits of no limits or bounds, but runs as far as the wit and invention of accusers, and the odiousness and detestation of persons accused will carry men."

The venerable author here declares, that all accusations of this kind, such as encroaching on the royal power, or subverting the fundamental laws of the realm, are too vague as charges of treason'; and that the answer which those judges gave is worthy of the highest reprobation, and was given in opposition to the statute of Edward 3rd. He never speaks upon the subject, throughout the whole course of his work, without animadverting, in terms equally severe, on the conduct of those judges. At page 266, he says, that “although the statutes of Richard are repealed as to the new treasons which they introduced, yet still they are of force and efficacy to the damning of those extravagant opinions and declarations." Now I