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clause of these acts, in the following terms : fessed by those unfortunate persons who as“ Provided also, and it is hereby declared, sumed the name of Luddites ; for the purpose that any person who shall be tried and ac- of destroying, in the town of Nottingham and quitted, or convicted of any offence against its vicinity, particular pieces of machinery this act, shall not be liable to be indicted, pro- used in the knitting of stockings. To destroy secuted, or tried again for the same offence or stocking-frames, or any particular pieces of fact, as bigh treason, or misprision of high machinery, in any particular place or distreason; and, that nothing in this act contain trict, is neither levying war under the statute ed shall be construed to extend to prohibit of Edward 3rd, nor under the 36th of the any person guilty of any offence against this king. Suppose they had levied war-suppose act, and who shall not be tried for the same as they had conspired to levy this sort of waran offence against this act, from being tried for it would not be treason. It could only be the same as high treason, or misprision of high tried under this act, which makes it felony. treason, in such manner as if this act had not Suppose a person accused of felony, under been made." I conceive, that it is from loosely this act, for administering oaths, to levy such interpreting this clause, that there was à no sort of war as is treason under the act of tion entertained by some persons, that there Edward 3rd, but the conspiring to levy which is something in it which opposes the construc- is not treason; and, suppose him to be action I have put on the other clauses. You quitted—and suppose war afterwards levied will observe the very same clause, which is by those with whom he had conspired; then, in the statute of the 52nd of the king, is in by the law of England, without the last clause the act of the 37th of the king; which last in this act, he might be tried over again for mentioned act regards the intentions of the treason, though he had been acquitted on the parties, as well as the purport and intend- trial for felony. It was necessary to insert ment of the oath, and which makes the ad- this clause, or else this evil would have arisen. ministering, as well as the taking, of the oath The legislature were aware, when they enonly a transportable felony. The clause is acted, that the administering of an oath to in the one as well as the other act. Let us commit treason should be felony, that it apsee-It is first said, " That any person who proached near to an act constituting high shall be tried and acquitted, or convicted of treason; and they therefore declared that, any offence against this act, shall not be liable though it should happen afterwards to be disto be indicted, prosecuted, or tried again for covered that it amounted to high treason, if the same offence or fact, as high treason, or this did not appear at the time of a trial for misprision of high treason;"-let us see, if the administering as a felony, the administrathere be not a case consistent with our in tor should be entitled to plead the acquittal. terpretation, which renders this enactment That was equitable. necessary.
Suppose a person convicted of the minor Suppose a person to be brought to the bar, offence of taking the oath, and sentenced to under this very charge which is here stated transportation; the act declares he shall not against the prisoner, for administering or taking be again tried for this minor offence, though an oath binding to the commission of high trea- it may have involved him in high treason. It son, but by the levying of a war, other than is a reasonable object to attribute to the legisthat particular sort of war described in the lature, the intention of putting by this law the statute of the 36th of the king. It is laid subjects of this country in safety, and preventdown by all the authorities, that the conspir- | ing them from being oppressed by the officers ing to levy war generally is not an overt act of of the crown. treason. The conspiring the death of the The legislature have in their view, that, in king is a treason, and the actual killing of cases of treason, the counsel of the crown are the king cannot be prosecuted as a murder, employed, and great pains taken to convict but must be prosecuted as an overt act, testi- the accused —that the minds of the jury, ton, fying an intention to put the king to death. are likely to be poisoned with prejudice against Conspiring to levy war is not treason—the them. The legislature, therefore, where there levying of war itself is treason. Then comes is a charge of treason, give different rules and the statute of the 36th of the king, which de- afford different safeguards, from those in comclares the compassing or imagining the levy- mon cases of felony; and, is it reasonable that ing of war for certain purposes, as, to con this act of parliament, made for a particular strain the king, or either or both houses of par purpose, should be held to deprive the subliament, shall be considered an overt act of ject of these safeguards ? -or can it be held treason. The meaning of this oath, then, if that great treasonable offences may be comit be not mere words which mean nothing, mitted, and only punished by transportation ? was to bind a number of persons to levy war, You see how the judges proceed in such a case and this to constrain the king, or either or in England. If a person be indicted for felony both houses of parliament, and this amounts and, either upon the face of the indictment, to an overt act of treason under the statute of or otherwise, it appear to the judges that the the 36th of the king, and cannot be tried as act charged is treason, they would desire the a felony
indictment to be withdrawn, and an indict. Suppose war levied for the purposes, pro- ; ment for treason to be preferred. Suppose
the trial proceeds without any such objection, , minor proposition of the indictment being, and, on the evidence, treason is found to bave that he administered an oath or engagement, been committed, the judge discharges the binding (not purporting to bind) the persons jury of that indictment. Judge Foster says, taking the same to commit treason. Thus, I will not give a chance of acquittal, but i there is a manifest difference between the will discharge the jury, and will give the pri- statutory offence and that which is charged in soner the benefit of the mode of trial appoint- the indictment. ed for cases of treason.
To administer an oath, purporting or intendWhat is the result of an opposite construc- ing to bind the person taking the same, is an tion of the act ? It is this. All actions are act highly criminal, and accordingly, it is by popular in England. Persons accused by any the statute punishable with death. But the one of the people of conspiring to commit allegation against the panel charges bim with treason, musi be brought before a grand jury an act, which is not punishable by the statute, -but, according to the prosecutor's construc- in which no such offence is mentioned. In tion of this act, they may be guilty of treason, all probability no statute will ever be made, and yet be tried in the ordinary way, and as declaring that which is charged against the only guilty of a felony. An accomplice may prisoner in this indictment to be punishable indict them under these acts, and those, who with death, or with any other punishment or ought to be capitally punished for treason, penalty whatever. But, at all events, the promay be transported for seven years as for an secutor has totally failed in this indictment to inferior felony.
describe the statutory offence. Indeed, the I submit upon all these views, the prose- prosecutor's description of the crime supcutor's construction cannot be put upon this posed to have been committed defeats itself, act. Felony merges in treason; and if, in an by containing a plain and direct contradiction indictment for felony, the prosecutor make a in its terms. He alleges that the prisoner charge of treason, or if the facts of the case administered an oath, binding the persons takturn out and appear on the evidence to be ing the same to commit treason. This allega. treason, you cannot proceed in the trial for tion pre-supposes that a person, taking an oath felony; neither by the rule of the common law to commit high treason, is actually bound by of England, nor by the statute of Anne referred such an oath, which is an evident absurdity. to. There are no words in the act 52nd of the An oath may be binding where its obligation king, which go to repeal the the act of Anne, is to do a thing that is legal or innocent ; but or abrogate the common law. The interpre- no obligation or binding engagement can ever tation given by the prosecutor would involve result from an oath to commit high treason, the acts in contradiction and absurdity, and or an oath to commit any other crime. Nobody ascribe views which cannot be ascribed to the can be bound, by the most tremendous oath, legislature. I submit, that, according to my to violate every previous obligation and enconstruction, the act is consistent with the re- gagement he has come under. As the promedy for the evil—with the intention of the secutor describes the offence, therefore, no legislature--with common sense-and with such offence could exist; and the statement of sound construction of law.
it is a contradiction in terms, in so far as it I may have stated some things at too great supposes the party taking the oath to be bound length and some at too little. I was anxious to by his allegiance, without which he could not explain my view of this case; and in so doing commit high treason; and supposes, at the Į have, I fear, trespassed too long on your same time, that he was not bound by his allelordships time and aitention.
giance, but actually bound by the oath which Lord Justice Clerk.—There is no occasion sustained in any criminal charge, or indeed in
he took. Such an absurdity as ihis, can never be for any apology at all.
any legal proceeding; and much less can it Mr. Clerk.-An important objection to the be sustained in a charge upon which the indictment has been noticed by the Court, accused party is to be tried for his life. with respect to which, it has been asked by But, though the absurdity were less evident your lordships, * whether the counsel for the than it is, the objection to the terms of the charge prisoner have a wish to argue it? I beg lea is insurmountable, upon the plain and simple to offer a few observations upon the point. fact that the averment of the prosecutor does not
The objection is, that the allegations in the charge the prisoner with the statutory offence. It indictment do not describe that offence, which would indeed have been very extraordinary, if is prohibited by the act of parliament, and the legislature, in describing an offence of so thai therefore the indictment is irrelevant and high a nature as to be punishable with death, inept. The crime described in the statute, is had fallen into the absurdity which has crept the administering an oath or engagement, into this indictment. The statute does not purporting or intending to bind the person assert, or acknowledge the possibility of taking the same, to commit any treason, &c. administering or taking an oath, of strength But the prisoner is not charged with an offence enough to bind the person taking it to commit so described ; the charge against him in the high treason, or to commit murder, or any
other crime. On the contrary, it is clearly im. * Vide antè
plied, in the very terms of the statute that
such oath is, to all intents and purposes what-sin view were meant to be accomplished by all soever, destitute of binding force. The legal methods, but not by any illegal methods, criminality contemplated in the statute, is that and they say, that your lordships are called upon of violating, by the total perversion and mis. to give this construction and meaning to the application of a solemnity, the obligations oath. Upon the other hand, I submit that there which bind men to each other in society—a is no reservation of illegality within the comviolation of the most dangerous nature, perpe- pass of this oath. The oath is general, and has trated by the most wicked means. To ad- no reservations; it extends to, and includes all minister an oath, purporting or intending to bind methods necessary for the accomplishment of the person taking the same to commit any the ends in view, whether by moral or physical treason or murder, is a wicked and dangerous strength. violation of the most sacred engagements, In construing the meaning of the oath, in a though it cannot alter them. This is the statutory question of relevancy, you will take into view, crime; but as no such crime is charged in the not the mere meaning of the words of the oath. indictment, the objection suggested on the itself, but also all the circumstances under bench is perfectly well founded.
which it is libelled that the oath was adminis
tered and taken. It is libelled, that the oath Mr. Drummond. It is now my duty to sub- was wickedly, maliciously, and traitorously admit to your lordships, some remarks upon the ministered ; and imported an obligation to other side of the question ; and, after the long commit treason. If the oath may mean what discussion which has already taken place, upon the prosecutor says it does, as he libels that almost the same indictment as that now under the act was done wickedly, maliciously, and your view, and after the ample time which you traitorously, I have to submit that the charge have bad for private consideration of the sub- is relevant, and that the prosecutor is not ject now before you, I do not feel myself called bound, in this stage of the process, to shew that upon to enter so much at large into the case, this is of necessity the meaning of the oath. as otherwise I might have done. Indeed, there Ile is entitled to stand upon this ground, chat, were some arguments used upon the other side if the oath may mean what he says it does; and of the bar of which I shall omit all notice, as may bear the meaning with which, in the indictnot appearing to me to have any intimate con- ment, he says it was administered and taken, Dection with the points at issue, or to be likely you are bound, libelled as it is, to give it the to influence the ultimate decision. But there construction which the prosecutor says it bears, are others which are of great importance; and to the effect of sending the charge to a jury. to these I shall at once proceed.
It will ultimately remain for the jury to decide The first and great point that appears to me as to the guilty purpose. for your lordship's consideration, is, the con But this is not the naked case before your struction and meaning of this oath ; for, unless lordships. There are other circumstances the oath has the meaning which we put upon which are not to be lost sight of in construing it, it is unnecessary to say a single word upon this oath. Your lordships, in looking at the any other part of this indictment. By wbat indictment, will see that the oath was adrule of construction then, are we to find out the ministered at secret meetings; a material cirmeaning of the oath ? Are we to take the cumstance in considering the views and intenliteral meaning of the words, or to put a more tions with which it was administered. You will liberal construction upon them? 'I am not remember, that the society or conspiracy which afraid of any of the rules of construction that was in view of the persons who administered and may be adopted on the other side of the bar; took this oath, was one of a very extensive nature, but I suppose it is unnecessary for me to say including a brotherhood of Britons of every any thing as to the literal meaning of the words, description; and that the oath was actually adas this will obviously bear but one interpreta- ministered to several hundred persons. These tion; and this is not the mode my learned are remarkable features of the case, that the friends have had recourse to. Let us then take oath was so extensively administered, and that the plain meaning and sense of the oath, and the object of the association was so unlimited. put upon it that meaning which, in the common It is also set forth in the indictment, that this intercourse of life, is put upon words; and, I oath has been administered to persons who, have no hesitation in saying, that this is the conscious of their guilt in the premises, have rule of construction by which, in my opinion, absconded and fled from justice ; and this is a the oath should be tried. The counsel on the circumstance relevant to pass to an assize, and, other side have employed great ingenuity in likeall the other circumstances libelled, must be attempting to construe the oath, and have taken taken for granted as true by your lordships in a course which no man of common sense, in judging of the relevancy. the ordinary affairs of life, would have hit upon. The taking of any oath of secrecy is, of itself, They have endeavoured to construe out of the a presumption of guilt; and a secret purpose oath, a reservation of illegality, that is, of illegal of any kind is a presumption against the panel. measures, for the prosecution of the objects in I know, that other oaths were alluded to by the view by those bound by the oath. They assert, opposite counsel; and, as an instance of innothat when this oath was taken, this reservation cence with regard to the objects of them, those was understood to be implied, that the objects of Freemasons were cited. But, I submit, that
I am correct in stating the general rule, and remark, that this oath contains no obligation to that these form an exception. Freemasonry commit treason; but, I do not know with what is an old piece of folly, at least; and, it is not view the remark is made, unless it be to mark only notorious that Freemasons have nothing the contrast between the oath which introduced to conceal, but it has been ascertained by ex the Irish rebellion and all its terrible conseperience, that mischievous consequences bave quences, with that more atrocious oath now not, in this country, followed from the oaths under consideration. of secrecy of that institution. But, though The terms of the oath in the indictment are there may be secret oaths of an innocent de now so well known to your lordships, that I scription, the presumption is against them, and need not point out the particular differences particularly against such an oath of secrecy as between the two oaths. the present, under the awful sanction of death; What the prosecutor says is, that this oath for it seems to have been a standing rule of the means to bind the person taking the same to conspiracy to murder all informers.
commit treason; and it is objected, that he The attempts, however, to shew that the oath has not told your lordships, on the face of might be quite innocent, appeared at length to the indictment, what species of treason the be abandoned, and a distinct admission was taker of the oath is bound to commit. Here I made, that the administering or taking of this must request your lordships' attention to what oath is a “misdemeanor;" by which, I sup- appeared to me to be a palpable fallacy in the pose, was meant (for the word has no technical opposite argument. The case was all along meaning here) something criminal at common pleaded by the learned gentleman, as if the law, though not in the highest degree. Now, prosecutor had been charging the panel with if it be criminal, in what can the criminality the crime of treason itself. Now there is no consist but in the treasonable purpose and pre- charge of treason; but a charge of administerparation? There is plainly no other wicked or ing an unlawful oath—an oath binding to unlawful purpose in view.
commit treason, which object of the oath must. The oaths of allegiance, of supremacy, and indeed be libelled, otherwise there is no releothers, were alluded to by Mr. Cranstoun, who vant charge. But the indictment is not to be ingeniously argued, that, according to our construed as if it had been libelled that treason principle of construction, the administration of was actually committed; nor is such a specifithese oaths might be held to imply an obliga- cation of treason to be required as if it had tion to commit treason. But the question here been charged as the offence of which the panel is not what extraordinary constructions the in- is accused, and for which he is brought to trial, genuity of learned men may put upon what and not merely as existing in intention. The may be placed before them. The question is, essence of the relevancy is what the panel did, What would a man of common sense think not what he had in view ; of which, no more upon the subject, did it come before him in can be told than what the oath itself reveals. any ordinary transaction of life? Such fanciful Any thing else is an inference in law, which illustrations are little to the purpose. But I can add nothing to the relevancy. Now, happen to have here a specimen of another although the prosecutor has not drawn an inoath, the striking similarity of which to the ference in law from the facts, he has told your present cannot fail to attract 'particular atten- lordships, not only the acts done, but all that tion. It was the foundation of all that con he knows of the acts which the parties bound spiracy in Ireland, which afterwards ended in themselves to commit. He tells what the facts open rebellion against the government; and are, which, it is the inference in law, if done, your lordships will see how the terms of the would have been treason. But in judging of oath cited in the indictment tally with the the relevancy, you are not merely to judge terms of the oath, or test, as it was called, whether the prosecutor is right in his inference which I am now about to read : “In the awful from the facts; your lordships will go to the presence of God, I, A. B. do voluntarily de- oath, and draw the conclusion in your own clare, that I will persevere in endeavouring to minds. At the same time, I have no hesitaform a brotherhood of affection among Irishmen tion in saying here, that the kind of treason of every religious persuasion; and that I will which the parties bound themselves to commit, persevere in my endeavours to obtain an equal, is plainly that of levying war against the king. full, and adequate representation of all the I shall presently speak more particularly to people of Ireland. I do further declare, that the treason, and will show, that the treason neither hopes, fears, rewards, or punishments, which the oath bound to commit is that now shall ever induce me, directly or indirectly, to alluded to. inform on or give evidence against, any mem Before leaving the oath, I may make some ber or members of this or similar societies, for further remarks upon what, with such ingenuity any act or expression of theirs done or made, and force, was stated by Mr. Cranstoun. Incollectively or individually, in or out of this stead of taking the whole oath into view, he society in pursuance of the spirit of this ob- divided it into four parts, and drew separate ligation."*" I hear one of the opposite counsel conclusions from all those parts—a rule of
construction quite out of the question. It See the trial of Finney for bigh treason, might be as well pleaded to a jury, in a case 5 How, Mod. St. Tr. 1075, in which the above of circumstantial evidence, that they are 10 oath, or test, was given in evidence.
judge of each circumstance by itself. In con- | or force to be employed against the obstacle or struing the oath, Mr. Cranstoun set out with contrary force that might stand in the way of stating, that a brotherhood of affection is an the accomplishment of the objects in view, innocent, and even a laudable object, and whatever they might be; and the united somewhat quaintly added : “That it is a plea- strength of numbers is plainly meant. sant thing for brethren to dwell together in Supposing it were possible to put such a conunity.” This may be very ingenious, but I struction upon the words as that contended for say, with deference, that it is trifling with the on the other side of the bar, let us see the effect case, to make such remarks to your lordships. of it-let us attempt to insert such unambigu
The oath is not to be torn piece-meal. The ous words as would unquestionably give the meaning is to be drawn from a fair considera- oath what they say is the meaning of it: and tion of the whole of it. I might as well take by a fairer test it cannot be tried.Thus : each word or letter of the oath individually, “ But I bind myself to do nothing contrary to and say, that every word or letter taken by it- law, or to attempt anything by force against self is not criminal, as thus break it into parts, any subsisting right;" I ask whether if these and argue upon each without reference to the words were stuck into the middle of this oath, Test. Not that I think his conclusions, even they would not stultify it, and make it quite as he took the clauses, were justified by the contradictory, and palpably absurd. clauses themselves. I cannot admit any such A great deal was said about the
presumpthing—but I protest against this way of con- tion in favour of the innocence of the panel. struing the oath, or construing any thing. This is a common topic of declamation; but,
It was said, founding upon the other argu- I must confess, I never could understand the ment, the reservation of illegality, that we may presumption of the innocence of a panel. I petition for annual parliaments
and universal am aware that the onus probandi lies upon the suffrage - that these objects may be accomplish- prosecutor, and that if he fail to make out his ed by lawful means—and, from this, the con- case, the panel must be assoilzied; but I see clusion was drawn, that there was nothing no room for a presumption of any sort, but illegal done or intended. But the question is, wbat arises from the want of contrary proof; whether the end can justify any means that and I know of no such doctrine in any work may be employed in obtaining it. It is the upon the criminal law of Scotland. The fact violent means which we charge as criminal, and is, that in a question of relevancy, there is these are left totally out of view, in the argu- rather a presumption of guilt; or, to speak ment on the other side of the bar.
more correctly, an assumption of the truth of Then the word “strength " is taken up, and the libel. Every thing is supposed to be a construction is given to it to show, that the wickedly and maliciously done, as libelled ; term in the oath was applicable to an indivi- and the question is, supposing all this proved dual and not to a number of individuals. as charged, does it infer a punishment in law? There the learned gentleman lost sight of the as, otherwise, it is impossible to allow a proof beginning of the oath, where the brotherhood of what is alleged.— I might argue, that the is mentioned. From this, however, and the presumption is against the man who takes whole context of the oath, I apprehend it to such an oath as that libelled, which even my be perfectly clear, that in considering the learned friends admit to be contrary to law, meaning of the word “ strength," we are not and a punishable offence, though not of the to apply it to an individual, but to as many as description set forth in this indictment; and could be brought to join in this society or that, from the very circumstance of the panel conspiracy.
having taken such an oath, the onus lies no On the whole, I must confess that I have longer with the prosecutor to prove his guilty not been able to discover the distinction be purpose, but with the panel to reconcile his tween force and strength in this oath. It conduct to innocence if he can. But, upon would have conveyed the same conclusion to any view of the subject, I should like to know my mind, if the one word had been employed what presumption, or what rule or principle as well as the other. Physical strength has calls for such a construction as that put upon just as plain and obvious a meaning where it the oath. Is it the protection of innocence, or stands, as any words can have. It is not an that “sense of public duty” that was spoken of uncommon expression among the lower orders in the last dehate, or any laudable principle of politicians; and, I am afraid, the idea is under the sun, that makes it necessary to do perfectly familiar to them. Now, notoriety is such violence to language and common sense, as good a rule of construction as could be had to suppress the truth, or to pervert the plain recourse to. It was said, that grammatical pice- sense and fair meaning of any thing? ties are out of place here, and that strict rules of I shall now beg leave to request your lordcriticism would be misapplied in interpreting ships' attention to what the persons administhe language of such a man as the panel at the tering and taking this oath bound themselves bar. I perfectly approve of the remark. I to do; and, I have to submit, that it is plain, wish the oath to be taken in the meaning from all the authorities upon treason, that the which men in the lower ranks of life would accomplishment of universal suffrage, when apply to it. Strength, as it here stands, can carried into effect by the force of numbers, is mean nothing else than the means, the power, treason, hy levying war against the king. It