on the Crown side, in the county where the case is supposed to have arisen, though the minutes, from 1708 to 1722, have been carefully searched. For these reasons, and what is suggested in the marginal note, I conclude that no such case ever existed. Lord Chief Justice Hale is very full and express on the other side of the question: that a person who is guilty of petit treason may be indicted of murder, for it is a species of murder; and a pardon of murder pardoneth petit treason."

I quote this passage for the purpose of shewing, that the learned Judge's only difficulty was, that petit treason was a species of murder; but he never questioned that, generally speaking, any minor offence should merge in the greater one of treason.

Then he goes on to say, "But though I am satisfied, that the law considereth petit treason and murder as one offence, differing only in circumstance and degree; yet, whether it may be advisable to proceed, upon an indictment for murder, against a person plainly appear ing to be guilty of petit treason, is a matter that deserveth great consideration, and probably determined the attorney-general to prefer a fresh bill for petit treason in Swan's case; for, though the offences are, to most purposes, considered as substantially the same, yet, as there is some difference between them with regard to the judgment that is to be pronounced upon a conviction, and a very material one with regard to the trial, a person indicted for petit treason being entitled to a peremptory challenge of 35, I think, if the prosecutor be apprised of the true state of the case, as he may be if he useth due diligence, he ought to adapt the indictment to the truth of the fact.

proved, I have no sort of doubt that, on such an indictment, the defendant may be found guilty of murder, and acquitted of the treason, for murder is included in every charge of petit treason, felonicè proditorie et ex malitiá pracogitata MURDRAVIT."

Upon this it may be observed, First, that although Judge Foster considers murder and petit treason offences of the same nature, so much so, that on an indictment for petit treason, a verdict may be found for murder, yet the greater advantages afforded by law to the prisoner on the trial-the peremptory challenge of 35 of the jury—the requiring two witnesses-and other circumstances-entitle a prisoner to be indicted for petit treason, if his offence actually amount to that description; and if it do amount to that description, and so comes out in evidence, but through mistake, or ignorance, or inattention of the prosecutor, the indictment is preferred as for murder, the prisoner is entitled to have that indictment dismissed. Secondly, If petit treason were to be considered as a distinct and higher species of offence, it is clear, in Judge Foster's opinion, there would be no doubt whatever but the prisoner, under such circumstances, must be acquitted.

But there are abundant authorities to shew that this has ever been the doctrine of the law of England. Thus, in the Year-Book, 3. Henry 7th 10. where there was a question about an accessary in the harbouring one guilty of treason (your lordships know, that in felony there may be accessaries by the law of England, but in treason they are all principals), Chief Justice Hussey says, "There can be no accessary in treason; the receiving a traitor cannot be only a felony, but is treason et in casu ibidem."

Thus, Saccombe's case, 33. Henry 8th is thus reported by Lord Chief Justice Dyer.* A woman had poisoned her husband, which offence is made treason about the 31st Henry 8th (22d Henry 8th.); and by the general pardon granted by parliament in 32nd Henry 8th this offence was pardoned. Now the son had brought an appeal against the wife; the question was, whether this appeal lies, and some thought that because the offence is made treason, it mergeth each lesser crime as the crime of murder, which was before at common law, and so the offence is not punishable as murder, but as treason, and so no appeal lies. But some were of a contrary opinion, &c. But the opinion of the judges was, that the appeal was not maintainable." And the reporter refers to the case 3 H. 7. above stated..

18 How. St. Tr. 1193.

+ See the case of Penelope Edwards, coràm Lawrence, J. 5 Chetw. Burn, 487, ed. of 1820; 1 Russ. 695..

And in Coke's report in the cases of pardons, 29th Elizabeth † it is laid down, "If murder or petit treason be made high treason, thereby the murder or petit treason is extinct, for high treason doth drown every less offence."

* Dy. 50, a. +6 Rep. 13, b.

And Judge Foster, whose opinion that murder is not merged in petit treason I have already noticed, referring to Saccombe's case, which I have just read to your lordships from the report of my Lord Chief Justice Dyer, and denying its authority to prove that murder is merged in petit treason, expressly founds on it as an authority to shew that all inferior felonies are merged and extinguished in the offence of high treason; and that when an offence amounts to high treason, a trial for felony is barred.

I read from the same dissertation I have already quoted.

"There is a case in Dyer," says the learned judge," which has been thought to favour the opinion, that the crime of murder is merged in petit treason; and that a pardon of treason discharged it, notwithstanding the exception of murder; but that case proveth nothing like it. A wife, about the 31st Henry 8th poisoned her husband. Then came a general pardon, by which treason was pardoned, but with an exception of wilful murder. The heir brought an appeal of murder against the wife, and it was adjudged that the appeal did not lie. This case doth not prove that murder is merged in petit treason, but that both murder and petit treason were merged and extinguished in the offence of high treason; for at that time, by virtue of the 22nd Henry 8th, all wilful poisoning was high treason, and being so, the appeal, not being saved by the act, was barred whether the treason had been pardoned or not."

I mention these cases to shew, that the doctrine of the law of England is, that the minor offence merges in the higher offence. I need not trouble your lordships with further authorities upon this subject. I think what I have stated is sufficient to prove the general proposition, that, by the common law of Engfand, all felonies merge in the offence of high treason; and that an act, amounting in its circumstances to high treason, cannot, by the law of England, be tried as a felony.

But I would now beg to call your attention to this, which I think very material in the present case; that the argument is stronger in Scotland, under the act of queen Anne, than in England under the common law. You know, that by the act of queen Anne † which was passed after the Union, and under powers reserved in the act of Union, the whole law of England, upon the subject of treason, has been imported into Scotland. The mode of trial has been imported-and on this subject there are two clauses to be adverted to. One is permissive to the queen, and her heirs, who may direct a commission of oyer and terminer, to try treason in Scotland. The other is imperative, and requires your lordships in this Court to inquire of all treasons in the same manner as the Court of King's-bench. The

Fost. Cr. Law 325. † 7 Anne, c. 21.

third section enacts, That the "Justice Court of Scotland shall have full power and authority: and are hereby required to inquire by the oaths of twelve good and lawful men of the county, shire, or stewartry, where the respective courts shall sit, of all high treasons and misprisions of high treason committed within the said county, &c.; and thereupon to proceed, hear, and determine" (that is, they are required to proceed, hear, and determine) "the said offences whereof any person shall be indicted before them, in such manner as the Court of Queen'sbench, or the justices of oyer and terminer in England, may do by the laws of England."

So that here is a positive statute requiring this Court to proceed, and determine, according to the forms of the King's-bench in England. And, it will be conceded, that unless there are words in this act of the 52nd of the king, sufficient to repeal the former enactment, it is not competent to this Court to inquire into cases of treason, in any other way than the courts of England would inquire. The, words are imperative. The first clause might be interpreted, as if a trial might take place according to the ancient forms; but as to the second clause, there can be no doubt that it demands a contrary interpretation.

It were a waste of time to say a word further upon the subject, to prove to your lordships that the rule of the common law of England as to trials for treason, and the regulations of the statute as to such trials in Scotland, are as I have stated. And it would be a still greater waste of time to attempt to show, after this statute of queen Anne, that if any treason appear upon the evidence, you cannot proceed otherwise than according to the forms of the law of England, in cases of treason.

We come, therefore, to this simple question. Does this act of the 52nd of his majesty, on which the indictment is laid, amount to an abrogation of that rule of the common law of which I have spoken, or to a repeal of this act of queen Anne? But, it is a rule that acts of par liament shall be interpreted according to the rules of the common law; and my lord Coke says, that, in particular cases, the words of an act shall be restricted in order to bring them within the rule of the common law. There is no necessity for that here, where there are two acts of parliament, and no words in the second repealing the first. If the words of the second can admit a construction leaving the former free to operate, it is necessary so to construe it. It is necessary for the Crown counsel to show, either that there are words in the 52nd of the king, that repeal the act of queen Anne, or that that act of the 52nd of the king cannot receive effect without such virtual repeal-that the evil which the act was made to control and remedy, could not be controlled and remedied, unless you were to interpret the act as repealing so much of the act of queen Anne.

If I can show, there is nothing in this act of the 52nd of the king, in its fullest and most

the reason of the common law giveth great light; and the judges, as much as may be, follow the rule thereof."

I would desire of your lordships to apply to the 52nd of the king this rule, and to interpret it, as far as may be, agreeably to the rule of the common law, on the one side; and to the statute of Anne, on the other side: and see if they may subsist together."

It so happens, that this is not the first occasion (there having been many instances) in which acts have been passed, enacting into felonies, circumstances that appear very much like overt acts of treason; and lord Coke, in his exposition of the law of treason, has these words referred to by Hale: "that the passing an act, making an offence felony, is held to be a judgment of parliament that it was not treason."

so far as it relates to the question, whether high treason falls within it, we must again have recourse to the law of England; because along with the introduction of the general law of treason into Scotland, we must hold, that the legislature introduced the whole law of England, as applicable where treason is in question. The question, therefore, Whether, in sound construction, this act applies to a case of treason? is a question of interpretation not merely by the law of Scotland, but by the law of England; and you will see at once, that, if there were a difference in the mode of interpretation by the laws of the two countries, the rules of interpretation in the English law, and not those in the law of Scotland, must be followed. There is no difference in the mode of interpretation by the two laws. But, I know that, in the law of England, it is most distinctly laid down, that subsequent acts of parliament are to be so expounded, that they may not contradict former acts, which they do not contain express words to repeal. Thus, in Roll's Reports, an old book in Norman French, the phraseology of which is abundantly quaint, it is laid down as a general rule, "Leges posteriores priores contrarias abrogant." But, it is said, "This cannot be by ambiguous, and general words." And, it is added, "When two general statutes are made, and one contradicts the other," (it is meant to say, apparently contradicts), "both, if they can be, shall be so expounded that the one may not contradict the other. And a subsequent act, which can be reconciled with the former, shall not be a repeal of it." And in Comyns's Digest, under the word parliament, R. 9. the learned author, treating of what shall be a repeal of a statute, says, "A subsequent act which may be reconciled with a former shall not be a repeal of it." And he refers to a passage in lord Coke's Reports, which I shall presently read. And he says, "Every statute ought to be expounded, not according to the letter, but according to the intent," referring to Roll and Plowden. And below, "The preamble is a good means for collecting the intent." "So the ground and cause of the making of a statute explains the intent." And, "So a statute ought to be construed according to the reason and rule of the common law," referring again to Plowden. And, "So a case, out of the mischief intended to be remedied by a statute, shall be construed to be out of the purview, though it be within the words of the statute," and he quotes lord Coke's 2nd Instit. p. 386. And lord Coke, 2nd Instit. p. 301, speaking of the statute of Gloster, by which an action of waste is given "against him that holdeth by law of England,” (by courtesy) "or otherwise for term of life." says, "Albeit, the assignee of the tenant by the courtesy is within the letter of this law, yet no action of waste shall be brought against the assignee, for in construction of statutes,

Vol. 2, p. 410. ↑ Vol. 5, 318, ed. of 1822. VOL. XXXIII.

I would call your lordships' attention to an act of parliament, which so far as I know, has never been repealed, 3 Hen. 7th. ch. 14, which recites, "Forasmuch as by quarrels made to such as have been in great authority, office, and of council with kings of this realm, hath ensued the destruction of the kings and the undoing of this realm; so as it hath appeared evidently, when compassing of the death of such as were of the king's true subjects was had, the destruction of the prince was imagined thereby; and for the most part, it hath grown, and been occasioned by envy and malice of the king's own household servants, as now, of late, such a thing was likely to have ensued; and, forasmuch as, by the law of this land, if actual deeds be not had, there is no remedy for such false compassings, imaginations, and confederacies, had against any lord, or any of the king's council, or any of the king's great officers in his household, as steward, treasurer, and comptroller, and so great inconveniences might ensue, if such ungodly demeaning should not be straitly punished before that actual deed were done." Then it enacts, "That if any servant, admitted to be the king's servant, sworn, and his name put into the chequer-roll of his household, &c. make any confederacies, compassings, conspiracies, or imaginations with any person or persons, to destroy or murder the king, or any lord of this realm, or other person sworn to the king's council, &c. that the said offence be judged felony; and the misdoers to have judgment and execution, as felons attainted ought to have by the common law." Any servant of the king, entering into a conspiracy to destroy or murder the king, or any lord of this realm, shall be judged guilty of felony, and the benefit of clergy even is not excluded.

So here is an act of parliament, declaring, that any of the king's household, who shall conspire to murder him, may be punished with transportation. What is the observation of my lord Coke upon this statute? He says, "to destroy or murder the king. By this act, it expressly appeareth, by the judgment of the whole parliament, that besides the confederacy, Y