the oath, and not to the person; as if there were any sense in personifying an oath, and giving it the powers of the unstanding and the will.

Much eloquence and ingenuity have been displayed in perverting the plain sense and meaning of the words of the oath, and endeavouring to construe out of them a sense and meaning which they are not calculated to convey, and which never entered into the imaginations of those who used them. The literal construction of the oath was not for a moment insisted on, but a general declamation was delivered upon the indulgence that ought to be shown to persons accused of crimes, in a favourable interpretation of every question of law, and of every matter of fact, which is brought into discussion in a criminal trial. The prosecutor did not object to any rule of interpretation, within the utmost bounds of reason, that might be followed in the construction of this oath; but he thought it his duty to protest against the whole doctrine, as applicable to a question of relevancy, when the very first act of the mind of the judge, and of every person engaged in the discussion, is to assume the truth of the whole facts as charged. In this stage of the process, every thing is presumed to be done wickedly and maliciously, as libelled. And the question is, if all these things are as stated by the prosecutor, ought they to be followed by punishment? So clear is this rule, that things in themselves of the most innocent description, if libelled to be done wickedly and maliciously, or for the accomplishment of some illegal purpose, are daily found relevant to infer the pains of law. It was therefore maintained, that, in construing this oath, the purpose for which it was intended, and the whole circumstances under which it was administered, were to be taken into view; not that the prosecutor conceived it necessary for the case, to search for matter of relevancy beyond the words of the oath itself, but because he thought himself entitled and called upon to maintain the plain rule of law, as applicable to every question of the kind.

The words of the oath are already too familiar to the Court, and are in your lordships' hands in the indictment; so that it is unnecessary to quote them in this place. Independent altogether of the considerations above mentioned, it is submitted, that it is impossible to construe out of the oath, standing by itself, the reservation of illegality contended for by the panel. It is an unambiguous obligation to use all moral and physical strength, or force, that may be necessary for the end in view; and all attempts to prove the contrary must appear hopeless to

every unbiassed mind. Forced constructions, fanciful illustrations, and vague analogies, will not avail against the plain meaning of the words, as they would be understood in the ordinary affairs of life. It was justly observed, that grammatical niceties were not to be employed in interpreting the meaning of persons in the lower orders of society; but it was afterwards said, that “to support endeavours" to obtain any thing is a solecism; because, to support endeavours is nothing else than to endeavour. Now, this is to apply one of the strictest rules of grammatical construction to the words of "these ignorant people," as in the very next sentence they were called; and to apply it to the effect of drawing the conclusion, that, because they did not express themselves according to the correct rules of chaste composition, their words cannot bear the meaning which they are expressly intended to convey. It was argued, that the words "the same" may be the relative to several antecedents; and that the panel is entitled to have his choice, and to select that antecedent which is best calculated to convert the whole oath into nonsense. The prosecutor would feel ashamed, in any case, to enter into a serious discussion of such "unseemly niceties," so little congenial to the liberal spirit of our criminal law. In the present, nothing can be more trifling or more useless, where it is so plain that there is but one antecedent, viz. the " endeavours to obtain," to which, by every rule of common sense and sound construction, this relative can apply.

The next piece of violence that was done to the plain meaning of the oath, was the attempt to make out that the words "physical strength" are to be understood individually, and not collectively; an a distinction was attempted to be made between" force" and "strength." This argument is now in a great measure abolished by the introduction of both the words into the new indictment: as, according to the best information that has been obtained, they were not only used synonymously, but promiscuously. But the truth is, that the observation never had in itself either force or strength; for "physical strength" is unhappily one of the most familiar ideas and most common expressions among the lower orders of politicians, in speaking of the force and power of -numbers, when brought into open resistance to the ruling powers; and such common use of the expression is the fairest rule by which it can be interpreted in the place where it stands. This " physical force" is nothing else than the power to be employed in subduing the obstacle or contrary force by which universal suffrage is to be prevented; that is to

say, the open violence by which this public purpose is to be accomplished, and the government overturned. It is vain to say that physical strength may be exerted lawfully, and to give strange examples of its legal exercise. The question is not what may be the meaning of any insulated words in the oath, but what is their meaning where they stand. Now, it is plain, upon the face of the oath, that the whole powers of body and mind of the conspirators were intended to be called forth, not only without limitation, but with a distinctly announced generality, that was to admit of no exceptions whatever. It was indeed attempted, on the part of the panel, to construe out of the oath a reservation of illegality, than which nothing could be more contrary to the plain sense and meaning of the words.

The prosecutor apprehends that the whole of this argument upon the meaning of the oath received a decisive answer in the proposal to insert into it such unambiguous words as would expressly convey the meaning which it is attempted to draw from the words as they stand. The result of this experiment plainly is, to make the oath contradict itself, and appear palpably absurd; whereas, if the argument on the other side of the bar had been well founded, it should have reconciled any apparent contradiction, and made the whole consistent, distinct, and intelligible.

It would be an easy matter to illustrate the fair meaning of the oath at length, and to expose the gross fallacy and futility of every attempt to put any other construction upon it than what it expressly bears; but the prosecutor cannot doubt but such a task would appear as useless to your lordships as it does to himself. His wish is to have that meaning put upon the words which every man of common sense would put upon them in the daily intercourse of life; and he has no doubt that it is by this test alone that your lordships will try them. Indeed, he has been clearly of opinion from the beginning, that all argument upon the meaning of the oath, upon either side of the bar, is totally useless, and will produce no effect upon the mind of any unprejudiced man of common sense, who can read the words before him.

If this be the sound view of the case as to the construction of the oath, standing by itself, what must your lordships think of it, when considered with reference to all the circumstances of guilt under which it is charged to have been administered in this indictment? It seems unnecessary to do more, than shortly to advert to these circumstances. They were all mentioned in the debate; and no answer was attempted to be made to their relevancy in

the interpretation of the oath. The most remarkable, perhaps, of the whole is the administration of the oath at secret meetings, which is no more consistent with innocent intention, than the clause of secrecy at the conclusion of the oath, which was expressly admitted to be of itself a punishable offence. Secrecy is thus admitted to be an index of a guilty purpose; and it is of little moment whether it is admitted or not, as its existence under such circumstance is irreconcileable with innocence. It will always be remembered also, that the secrecy in this case was of no ordinary description, as it was a standing rule of the society to inflict the punishment of death upon those who revealed their secrets ;-an amiable feature of the whole transaction, and which affords a pleasant commentary on the panegyric that was pronounced, at the first debate, on the "brotherhood of "affection," in which it was said to be so becoming that all the subjects of this country should dwell together in unity!" Indeed, it may be observed, by the way, that it is impossible to find a better commentary upon the whole oath than this conclusion affords, or a better answer to the pure motives that were attempted, with so much ingenuity, to be extracted from the beginning of it :—

-Ut turpiter atrum

Desinat in piscem mulier formosa superne.

The extensive nature of this "brotherhood" was totally forgotten in the argument as to the individual application of the term "physical strength;" or rather, this argument, like all the rest upon the meaning of the oath, was founded on a separate consideration of each member and clause, independent of all the others. Still less was it thought necessary to take the slightest notice of the important fact stated in the libel, that the oath was actually administered to several hundred persons, whose joint endeavours were of course to be used for the promotion of the common end. It will also be remembered, in the construction of the oath, that it is libelled to have been administered to several persons, who, conscious of their guilt in the premises, have absconded and fled from justice.

The truth of all these facts must be taken for granted in the question of relevancy; and must, therefore, be taken into view in this stage of the process in judging of the meaning of the oath. It will also be kept in view, that the oath is alleged to have been "wickedly and maliciously administered," and did " purport or intend to bind the persons taking the same to commit treason, by obtaining annual parliaments and universal suffrage

by physical strength or force;" and it is submitted, that if the words of the oath are at all susceptible of the meaning put upon them by the prosecutor, and may bear that meaning, your lordships are bound to give him credit for the truth of that construction which he puts upon them. It is quite a mistake to say, that he must show, in this question of relevancy, that the words must of necessity bear the criminal meaning. If, indeed, the criminal meaning be plainly a forced construction, and one which they cannot reasonably bear, your lordships might hesitate as to sending them to a jury, unless it were alleged that they have a hidden or different meaning from what they express. But if the meaning be neither forced nor unnatural, or if it be at all a reasonable, or even possible construction, the prosecutor is entitled to the verdict of a jury on the charge, and to demand the assumption of the truth of every allegation he makes in the preliminary stages of the process.

[That the oath binds to commit treason.]— But it is said, admitting the argument to have failed, that the oath is entirely innocent, it by no means follows, however dangerous or mischievous it may be supposed to be, that it binds the persons taking the same to commit treason. It is said, that it does not necessarily purport any such engagement; and the same line of argument is had recourse to here, that was previously adopted, in order to persuade your lordships that the oath is totally innocent. It is unnecessary to recur to what has been said above. If the panel has failed, as the prosecutor cannot doubt he has, to persuade your lordships to construe out of this oath a reservation of illegality; and if the prosecutor be right in believing, that every man of common sense, who has these words placed before him on any ordinary occasion, will at once say that they are nothing else than an obligation to accomplish the ends in view by every means in the power of the parties without reservation or qualification whatsoever, and especially by the whole moral or physical force in their power, or at least as much of it as might be necessary,—then the simple question remains,- Supposing these means to have been brought into action, and particularly supposing their physical force to have been brought into action for accomplishing the particular purposes in view, would this have amounted to the crime of treason? Now, upon this point, it is submitted to be clear, that the accomplishing, or attempting to accomplish, any public purpose by force, especially by the force of numbers, such as the alteration of any law, or any branch of the constitution, more particularly when the

alteration is of such a nature as infers the destruction of the whole frame and texture of the government, is, by all the authorities, high treason. But upon this it seems unnecessary to enter; and, indeed, the prosecutor is unwilling, and feels it altogether unnecessary, to detain your lordships with any remarks of his upon a subject upon which there are so many great authorities, all agreeing with each other.

In quoting these authorities at length, he is only following the example set before him by the English Judges on similar occasions. "I am peculiarly happy," says lord Loughborough, in the address to the grand jury in the case of lord George Gordon, "that I am enabled to state the law on the subject, not from any reasonings or deductions of my own, which are liable to error, and in which a change or inaccuracy of expression might be productive of much mischief; but from the first authority, from which my mouth only will be employed in pronouncing the law. I shall state it to you in the words of that great, able, and learned judge, Mr. Justice Foster, that true friend to the liberties of his country.'

"

The following are the passages at length, and in the order in which they stand in the original, which lord Loughborough quotes; and, it will be observed, that Mr. Justice Foster begins the chapter with a dissent from some of the expressions of lord Hale, which were so much dwelt upon at one period of the debate, and the present application of which has called forth so many panegyrics upon this author in the course of these discussions. Your lordships were even told, that, except Coke, lord Hale is the only author allowed to be cited as an authority in an English Court," a position too extravagant to require a commentary. But it is a singular circumstance, that the English judges, on such occasions, do not appear to refer at all to this "great father of the law of treasons," as he was termed in the debate; and that the authority to which they do refer commences with a dissent from his opinions. Not that the prosecutor is ignorant of the great name and venerable authority of that excellent person, but he wishes to point out to your lordships, that his opponents have been somewhat too extravagant in their admiration of his authority, as applicable to the present case; and that it is usual to look to more recent expositions of the law, composed in better times.

"Lord Chief-Justice Hale,t speaking of such unlawful assemblies as may amount to a levying of war within the 25

* 21 How. St. Tr. 490.

+ Foster's Crown Law, p. 208.

Elizabeth, c. 3, taketh a difference between those insurrections which have carried the appearance of an army, formed under leaders, and provided with military weapons, and with drums, colours, &c. and those other disorderly tumultuous assemblies, which have been drawn together, and conducted to purposes manifestly unlawful, but without any of the ordinary shew and apparatus of war before mentioned.

"I do not think any great stress can be laid on that distinction. It is true that, in case of levying of war, the indictments generally charge, that the defendants were armed and arrayed in a warlike manner; and, where the case would admit of it the other circumstances of swords, guns, drums, colours, &c. have been added. But, I think, the merits of the case have never turned singly on any of these circumstances.

"In the cases of Damaree and Purchase which are the last printed cases that have come in judgment on the point of constructive levying war, there was nothing given in evidence of the usual pageantry of war;-no military weapons -no banners or drums-nor any regular consultation previous to the rising. And yet the want of those circumstances weighed nothing with the Court, though the prisoner's counsel insisted much on that matter. The number of the insurgents supplied the want of military weapons; and they were provided with axes, crows, and other tools of the like nature, proper for the mischief they intended to effect:

"Furor arma ministrat."

"Sect. 1.-The true criterion, therefore, in all these cases, is quo animo did the parties assemble? For, if the assembly be upon account of some private quarrel, or to take revenge of particular persons, the statute of treasons hath already determined that point in favour of the subject."

"Sect. 3.-But in every insurrection which, in judgment of law, is intended against the person of the king, be it to dethrone or imprison him-or to oblige him to alter his measures of government-or to remove evil counsellors from about him-these risings all amount to levying war within the statute; whether attended with the pomp and circumstances of open war or no. And every conspiracy to levy war for these purposes, though not treason within the clause of levying war, is yet an overt act within the other elause of compassing the king's death. For these purposes cannot be effected by numbers and open force without manifest danger to his person.

* Foster's Crown Law; p. 210.

"Sect. 4.-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 governmen too, by numbers, and an armed force. Insurrections likewise for redressing national grievances, or for the expulsion of foreigners in general, or indeed ary 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."

* "Upon the trial of Damaree, the cases referred to before, in sections 4th and 5th were cited at the bar; and all the judges present were of opinion, that the prisoner was guilty of the high treason charged upon him in the indictment. For here was a rising with an avowed intention to demolish all meeting-houses in general; and this intent they carried into execution as far as they were able. If the meeting. houses of the Protestant dissenters had been erected and supported in defiance of all law, a rising to destroy such houses in general, would have fallen under the rules laid down in Keiling, with regard to the demolishing all bawdy-houses. But, since the meeting-houses of Protestant dissenters are, by the Toleration act, taken under the protection of the law, the insurrection, in the present case, was to be considered as a public declaration by the rabble against that act, and an attempt to render it ineffectual by numbers and open force.

"Accordingly Damaree was found guilty, and had judgment of death, as in cases of high treason."

In the same case of lord George Gordon, lord Mansfield expresses himself thus, in addressing the jury. "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 royal capacity, as when a multitude rise and assemble to attain by force and violence any object of a general

* Foster's Crown Laws, p. 215.

public nature, that is, levying war against the majesty of the king; and mosl 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 enclosures; to alter the established law; to change religion; to redress grievances real or pretended; have all been held levying war. Many other instances might be put. Lord Chief Justice Holt, in 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 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.

Though the form of an indictment for this species of treason mentions drums, trumpets, arms, swords, fifes, and guns, yet none of these circumstances are essential. The question always is, whether the intent is, by force and violence, to attain an object of a general and public nature by any instruments, or by dint of their numbers."

In like manner, Serjeant Hawkins + thus expresses himself: "Those also who make an insurrection, in order to redress a public grievance, whether it be a real or pretended one, and of their own authority attempt with force to redress it, are said to levy war against the king, although they have no direct design against his person, inasmuch as they insolently invade his prerogative, by attempting to do that by private authority, which he by public justice ought to do, which manifestly tends to a downright rebellion; as where great numbers by force attempt to remove certain persons from the king; or to lay violent hands on a privy councillor; or to revenge themselves against a magistrate for executing his office; or to bring down the price of victuals; or to reform the law or religion; or to pull down all bawdy-houses, or to remove all

21 How. St. Tr. 644.

↑ Hawkins's Pleas of the Crown, p. 37.

inclosures in general, &c. But where a number of men rise to remove a grievance to their private interest, as to pull down a particular enclosure, intrenching upon their common, &c. they are only rioters,"

Mr. Hume most ably and accurately sums up the doctrine of all the great authorities in the following terms :-" In the construction of law, the levying of war against the king is not understood in those insurrections only which have immediate relation to the person of his majesty, as if the object be to dethrone or imprison him, or to drive him out of the realm, or to cause him alter his measures or to remove evil counsellors from his presence. It equally embraces all those risings, which, though not aimed directly at the person of the king, are however against his royal majesty, that is, against his crown or royal dignity, against his prerogative, authority, or office. Under this description, according to all authorities, falls an insurrection for any of these objects-to reform the established law, religion, or political constitution of the land; or to obtain redress for national grievances, whether real or imaginary. For though they be real, the law and government of the realm, as long as they subsist, cannot know any thing of this course of correcting them, nor make account of it as any other than rebellion against the king, who, as the head of the state, is bound to prevent all such forcible interference of private persons with his own functions, or those of the legislative power."

It is impossible to add any thing to these authorities, which combine the names of some of the greatest men that ever adorned the English bench, speaking on cases actually before them, with those of the best commentators on the law, who were more deliberately composing for posterity. The application of these authorities to the present case is obvious; and there can be no doubt that if the public purpose in view had been carried into effect, or attempted to be carried into effect, by force, it would have been high treason.

[Objection to want of description of treason.-The next objection that was stated was, that the prosecutor has not specified the manner in which the treason was to have been committed, which it is libelled that the panel administered an oath, purporting or intending to bind the persons taking the same to commit. Upon this, and indeed other parts of the case, wherever it suited the argument, it was broadly assumed, on the other side of the bar, that this is a charge of treason. Now, the exposure of this obvious fallacy is the

* Hume, vol. ii. p. 427.