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cannot be abridged of any rights by the act of a precedent one), the Legislature was extremely liberal in declaring new treasons in the unfortunate reign of King Richard II:” but mark, gentlemen, what was the consequence,-"and yet so little effect have over-violent laws to prevent any crime, thạt within two years afterwards that very Prince was both deposed and murdered; and, in the first year of his Suocessor's reign, an Act was passed, reciting, that no man knew how to behave himself, to do, speak, or say, for doubt of such pains of Treason; and, therefore, it was accorded, that in no time to come any Treason be judged otherwise than was ordained by the Statute of Edward III. But afterwards, during the reign of Edward VI, and Queen Mary, and particularly in the bloody reign of Henry VIII, the spirit of inventing new and strange treasons was revived." And he here gives instances of it, and, amongst others, he states, that assembling riotously to the number of twelve, and not dispersing upon proclamation, was one amongst the new-fangled treasons of that reign, which were totally abrogated in the reign of Queen Mary, the immediate successor 'of Edward VI. Gentlemen, these few observations of Mr. Justice Blackstone will induce you to feel how important a thing it is for the interests of the present generation of Englishmen, and all their posterity, that this blessed Statute of Edward III, should not be extended one particle beyond the limits to which the wisdom of the Legislature has thought fit to extend it.
And now, Gentlemen, permit me to call your attention to the act itself. You will recollect, that it is now nearly five hundred years since Edward III. died, the act was passed in the 25th year of his reign, and in the year 1950. It is intituled “ A declaration what offences shall be adjudged treason," and it recites “ that whereas divers opinions have been before this time, in what case treason shall be said, and in what not, and that the King at the request of the Lords and the Commons, have made a declaration in manner hereinafter following, that is to say, “When a man doth compass or imagine the death of our Lord the King,"
that is not imputed on the present trial,“ or if a man do levy war against our Lord the King in his realm, that shall be high treason.” Well, Gentlemen, such is the law of England at this day, such is the law to which the whole of this enquiry is to be referred, and the substantial question now before you for consideration is, whether the outrages of the 9th of June amounted to a levying of war against the King, or to offences of less malignity; whether they did or not, my Lord Chief Justice Hale, to whose authority I have taken leave already to refer,states broadly, that it is a question of fact, under all the circumstances for the consideration of the Jury, that I conceive to be at present the law of England, and I conceive that if the learned Judges tell you that this Statute of Edward III, is the law, that then arises your duty to say, whether the facts given in evidence amount to a levying of war against the King ?
Gentlemen, it is also necessary that I should take the liberty of reininding you a little of the history of the proceedings of the Government in cases of high treason in a few instances since the passing of that act. One of the new treasons that were created in order to extend the law, was the.statute I have already mentioned, which was passed in the third and fourth years of the reign of Edward VI. that was in the year 1549, and as long as two centuries after the passing of the statute of Edward III. and is one of those that Mr. Justice Blackstone has designated under the terin,
new fangled treasons. The words of the act are these, “That if any person or persons to the number of twelve or more assembling together shall intend to go about to practice or put in use with force of arms, unlawfully and of their own authority, to alter or change the laws, established by: Parliament, for religion or any other laws or statutes of this realm,” is that to be treason in the creation of these new fangled treasons ? No, Gentlemen, not yet; but, “ being commanded by the Sheriff or other persons to depart to their houses, if they thall continue together for an hour," then, and not till then, shall the King's subjects be deemed traitors. So that two hundred years after the passing of the statute of Edward III. a new Act of Parliament was made to
extend the law of treason to cases of tumultuous assemblies by force and arms, endeavouring to alter the laws, but not till the persons so assembled, armed, and preparing to overturn the laws of the country should set the caution of the magistracy and the proclamation in the King's name at defiance for a full hour, then, and not till then, was this dreadfulcrime of treason deemed by the law of Edward VI. to be fully consummated. But, Gentlemen, after the short reign of Edward VI. and in the reign of his successor Queen Mary, that statute was deemed too severe, and it was repealed, a new law was made, which enacted pretty nearly in the same words as those of the former statute which I have just now read to you, “that if any persons to the number of twelve or above, being assembled together shall intend, go about to practice, or put in use, with force of arms, unlawfully and of their own authority, to change any laws made for religion or for authority of Parliament or any other laws of the realm, the same number of twelve and above, being commanded by the Sheriff or a Justice of the Peace, to go quietly home, and remaining obstinate for an hour” (shall that be high treason? no !) it shall be felony, so that here you find in the reign of Queen Mary, that which has been truly called a bloody reign, even in that reign the assembling of multitudes of people under arms to change the laws, was only the crime of felony. And that statute at the commencement of the reign of Queen Elizabeth, which immediately followed, was re-enacted to continue for the life of that monarch, and accordingly during the whole of the long reign of Queen Elizabeth which brings us down to the year 1603, the law of England upon these subjects was this, that if a multitude of people assembled together by force of arms, intending to alter the laws of the land, and remained so assembled an hour after proclamation, it should be felony.
That law, however, then expired, but the statute of Edward III. was still in full life and vigour, and the doctrine of constructive treason and constructive levying of war supplied the place of a Riot Act during the whole of the seventeenth century, and until the accession of the
House of Brunswick in the year 1714, when the Riot Act now in force was passed; and we have heard much, I must say in this place, that tends to bring into life and activity a doctrine which I had thought from that period for ever exploded.
Sir Matthew Hale traces the origin of that doctrine in his learned Treatise on the Law of Treason, to the reign of Henry VIII, the most ferocious and bloody tyrant that ever disgraced the throne of England ; but that gentleman was two hundred years after the passing of the statute of King Edward—then it was for the first time discovered by some ingenious lawyer that a riot, such as that described in the statutes of King Edward VI. and Queen Mary, though not an actual was yet a constructive war. against the King, and that juries had nothing to do with the question whether it was war or not, but were only to consider whether the facts were committed, and then the Court would tell them whether thougłı it was not an actual it was a constructive war. Perhaps I did not clearly understand the Attorney General, and no wonder when he was obliged to call in aid that exploded doctrine, that his perspicuous mind fell into some degree of confusion and obscurity ; but if I understood the end and effect of what my learned Friend said, and particularly in the conclusion of his address, it was little more in effect than this,-if you are satisfied the Prisoner is the man who was called the Captain in these transactions, it is impossible you can acquit him: so that he left little more for your consideration than the simple question of the identity of the Prisoner at the bar.
This, Gentlemen, makes it necessary for me to call your attention to the distinction between questions of law and fact-Suppose then you had to try the question, whether I have a right to address you in this place; that is a question of law which the statute of King William would determine in my favour. But if the question put to you were this, does the person standing before you now stand upon his head or his feet? that is a pure question of fact, which I believe you could very well decide without the
assistance of the King's Attorney General, and you would not be a little surprised if in that case he should get up and say,--Gentlemen of the Jury, upon this question I beg leave to remind you that it has been always held if a man stand upon his feet and lean a few degrees to the right or the left it is a constructive standing upon the head, and therefore you have only to consider whether he is inclined to the right or the left, for that has always been held in construction of law to be a standing upon the head. Gentlemen, you would be staggered very much before you could be overcome by such doctrine as that after the oaths you have taken, and would feel it your duty to exercise your own judgment and understandings, as I trust you will in the present case, which Sir Matthew Hale teaches us is a question of fact for the Jury. I therefore ' again repeat, that the substantial question for your consideration is, whether, according to your own judgments, experience, and knowledge of human affairs, combined with the particular transactions under consideration, these unfortunate persons did or did not in plain fact levy war against the King ?
Now, permit me to enqure, what is a levying of war? Indeed the Attorney General has said, if this be not levying of war, tell me what is ? I answer the challenge, and I will tell my learned Friend what is a levying of war.-It is a singular coincidence, that in the year 1745 a rebel, army, in the name of a foreign Prince, the Pretender to the Throne of these Realms, marched into this town, and here their enterprize terminated. Their march was intercepted, and they retreated in confusion: and here we are DOW,
for the first time since that event, after the lapse of more than seventy years, trying the question, whether war has again been levied against the King. I should not have said trying for the first time: but there has been no conviction-there has been no civil war found by a Jury to have been waged within the realm since that remarkable period of our history, of which you have no doubt all read, and of which you may have heard by tradition from your ancestors, who were present in this town when the stagdard of rebellion was erected within it.