That, Gentlemen, was a levying of war; there was a foreign Prince set up in opposition to the King: the avowed object of the war was the deposition of the King: thousands of disciplined soldiers were embattled and embodied, with every means and impliment of regular war, even usurping the collection of the public revenue, making a progress from Scotland here to Derby-that was actual levying of war against the King, and the persons taken in that rebellion were brought to trial under this Statute of Edward III. and were, as you may well suppose, condemned for their treason..

Now, having stated what is a levying of war, permit me to state what is not levying of war. It is not levying war to strike any of the King's subjects, although if you bring the offender to Trial, the Indictment will charge that he did the act "against the Peace of our Lord the King, his Crown, and dignity," that language would not make it treason. A common riot is not treason; but it is said that by construction all riots that have a public object are treason that an attempt by force and violence to alter the law is treason. Gentlemen, doctrine of this sort is infinitely more dangerous than Acts of Parliament, however far they may extend the law of treason. A man knows not when he is safe, if a few lines of doctrine, written by a lawyer, however learned, in his closet, shall have all the force and effect of an Act sanctioned by the King, Lords, and Commons in Parliament assembled.

A Riot, made a capital Felony by the existing Riot Act, which I will by and by read to you, is not treason. Then let us consider whether all the provisions of that Act, passed on the Accession of his present Majesty's family, in the year 1714, (the Statute of 1 George I.) are not intended for the case now before you. That Statute which I have already taken leave to remind you, was passed after an intermission in the Statute Law, from the year 1608, during which constructive levying of war was so much in vogue, was obviously modelled upon the Statute of riots which subsisted during the whole of the reign of Queen Elizabeth. The Legislature, meaning I conceive to put an end to

those constructive treasons at once, made this Statute, which should clearly define the distinction between an actual and a constructive levying of war; that is, between Treason and Riot. This Act is intituled "An Act for the preventing riots and tumults, and for the more speedy. trials of the rioters." It recites that "Whereas of late many rebellious riots and tumults have been in divers parts of this kingdom, to the disturbance of the public. peace, and the endangering of His Majesty's person and Government, and the same are yet continued and fomented by persons disaffected to His Majesty, presuming so to do for that the punishments provided by the laws now in being are not adequate to such heinous offences." Not adequate? why, according to the doctrine of constructive war, the law was perfectly adequate, for it was high treason already," and by such rioters His Majesty and his Administration have been most maliciously and falsely traduced, with an intent to raise divisions, and to alienate the affections of his people from His Majesty." Why, Gentlemen, if the Parliament were sitting at this day, looking back upon the transactions which you have heard given in evidence, could anything be said or conceived more appropriate to them.

This matter is so important, that, with your leave, I will read it once more: "An Act for preventing tumults and riotous assemblies, and for the more speedy and effectual punishment of the rioters. Whereas of late. many rebellious riots and tumults have been in various parts of this kingdom, to the disturbance of the public peace, and the endangering of His Majesty's person and Government, and the same are yet continued and fomented by persons disaffected to His Majesty, presuming so to do for that the punishment provided by the laws now in being are not adequate to such heinous offences, and by such rioters His Majesty and his Administration have been most maliciously and falsely traduced, with intent to raise divisions, and to alienate the affections of his people." What is enacted?-That these crimes should be high treason?-No, that if any persons, to the number of

twelve, or more, being unlawfully, riotously, and tumultuously assembled together, to the disturbance of the public peace, and being required by any one or more Justice, or the Sheriff of the County, or the Mayor of any City, by proclamation to be made in the King's name, in the form prescribed by that Act, directing them to disperse themselves, and peaceably to depart to their habitations, or to their lawful business, shall, to the number of twelve, or more, after such proclamation made, unlawfully, riotously, and tumultuously remain, or continue together, by the space of one hour after such command and proclamation, that then such continuing together shall be adjudged felony, without benefit of clergy. So then you see that if persons riotously assemble, they are not deemed guilty of the crime of felony; their lives are not forfeited to the offended laws of their country, unless they have a solemn warning from the Magistracy of the dangerous consequences of the act they are committing.-This, Gentlemen, is what I conceive to be the law of England, as applicable to the matter under your consideration.

Gentlemen, I have stated that since the rebellion in 1745, no conviction by a jury has, to my knowledge, taken place for this offence, and I may therefore say that no civil war has been levied in this kingdom since that time. This I do know, that there have been two unsuccessful attempts to revive the doctrine of constructive war within the last eighty years: one was the case which has been alluded to this morning of the riots in the year 1780, at the head of which was Lord George Gordon, whose name you have heard of to-day; upon that occasion, many of you may be old enough to remember, that the outrages of the multitude assembled in the metropolis were so extensive, and continued for so many days, that the Government of the country seemed absolutely suspended and subdued, and it was not, I think, till the expiration of nearly a fortnight that the law could take its ordinary course; thousands and tens of thousands of people armed, some in one way some in another, in the presence of the Sovereign, surrounded both Houses of Parliament, and committed every species of

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outrage against the persons and the property of His Majesty's subjects; the leader of that day, a man of violent and frantic disposition, was brought before a jury of the County of Middlesex, as this wretched man is brought before you: he was a person of high rank, the son of a noble Duke; he had command of considerable property; was of no inconsiderable talents, with all his wildness; he was brought before a jury on a charge of Treason, in levying war against the King, and that jury decided, after a long and attentive trial, that he was not guilty. There being no military force, no avowed purpose of deposing the King, nor intent even imputed, however atrocious and desperate the acts of that misguided multitude were, it was held they did not amount to a levying war against the King. The Attorney General, I observe, looks with a considerable degree of surprize at this statement. I hope I have not mis-stated any thing. I ought not, perhaps, to say that it was held not to be a levying of war, but it was not held to be a levying of war, and no other person concerned was tried for that offence. The Attorney General of that day found it would not do; that this doctrine of constructive Treason, to use the phrase of the country, would not work, and so he gave it up, and the rest of the offenders were tried for riots, or for other offences committed during those disturbances. That was the first case after the riot act of 1714, and after an interval of more than sixty years.

The second case I have alluded to occurred a few

months ago, when you all well know there was a prosecution exactly similar to the present against some of the persons concerned in those dreadful riots of the last winter in London. A jury was selected with all possible care for that trial, the Court sat for eight days hearing all the facts and circumstances detailed, and I believe that jury were told something about this constructive Treason, but the question considered there was this, whether, however atrocious, however wicked and disgraceful the acts that were done by those parties were, they had made war against the King? The Jury were of opinion they had

not nor intended it as imputed by the indictment, and the party accused was acquitted. These, Gentlemen, are the only instances since the year 1714, in which any very public attempt has been made to convict persons. 1 do not, and I beg I may be distinctly understood as not intending to insinuate the least particle of blame against any person concerned in that prosecution, either the one way or the other, but all the observation that I mean to derive from that trial is, that it was not a case of levying of war against the Statute of King Edward III.; that is the only observation or remark that I think it necessary to make, or shall make upon that trial.

Now, Gentlemen, I have, I hope, cleared the way to a distinct understanding of the rules of law on which your verdict is to be founded. Yet the Attorney General, in his address to you, not indeed through any weakness of his own, I too well know his great powers, where he has fit materials to work upon, but from the obvious weakness of his case, my learned friend could not put the question to you manfully, whether these parties had levied war against the King, but launched his cause with a piece of doctrine out of a discourse, which he stated to you to be, the law of England, we will now consider, Gentlemen, whether the facts, in this case, do amount to a riot within the meaning of the riot act, or amount to High Treason and a levying of war against the King, for in order to bring the case within the statute of Edward III. it must be a levying of war, and it must be against the King, or it is not a levying of war within that statute.

Gentlemen, having thus stated to you the law, as I humbly conceive it, I must now take leave to call your attention to the charges in this indictment against the five and thirty persons who are here for trial. But first permit me to remind you, that the Attorney General has fairly stated, that if you find in the progress of these outrages, any distinct insulated crime of any nature, has been committed, you ought not to suffer your judgment to be prejudiced by such crime. But still, Gentlemen, we all