Upon a late trial for High Treason, the same doctrine' was successfully contended for by my learned Friends, Mr. Wetherell and Mr. Serjeant Copley. I do not know that it was either admitted or denied by either of my learned Friends, the Attorney or Solicitor-General; but Lord Ellenborough, when he came to put the question to the Jury adopted it in the most explicit terms, for in summing up the evidence, when he adverts to the distinction between rebellious riots, and Treason, his Lordship says," "It will be for you, Gentlemen, when you attend to the evidence which I shall presently state to you, to say whether it is of the one description or the other." Therefore it was for the Jury to pronounce upon the fact-it is and must be for the Jury in every case. Thus the law handed down from the earliest times has been confirmed in the latest, and the law is recognized by the authority of the present Chief Justice of England, that you, the Gentlemen of the Jury, are the proper tribunal for deciding whether Treason has been committed by levying t

war.

If I appear to have labored this point at more length than is necessary (for I hardly expect the doctrine will be denied to me) I trust you will forgive me. I think it a matter of the utmost importance in itself, and I think it a matter of the utmost importance in its consequences.

Now, Gentlemen, I know that what was said upon that occasion will be repeated here, that there have been constructive levyings of war recognized by the Courts on several occasions. It is no doubt true that there have: there are three or four cases to be found in the books in which the Court have talked of constructive levying of war, and in which convictions have taken place. Gentlemen, the first of these cases occurred 200 years from the passing of that very statute, which, if preserved and held sacred as it ought to have been, would have prevented the necessity of entering into this discussion. In the reign of Henry VIII., in that most infamous and bloody reign, at the distance of two compleat centuries from the time when that statute was passed, the first case of the kind occurred. It was then determined that a rising

to enhance the wages of labour was a levying of war against the King in his realm.

Gentlemen, I am sure you hear me with astonishment. I am quite sure that after the statute I have read to you, and the comments I have quoted, you can hardly believe that in any reign it should be decided that a rising to enhance the wages of labour should be called a levying of war against the King in his realm, within that statute by which it was not only not so determined, but by which the very negative was established. However, the fact cannot be denied, it was so determined in that reign, in which several other equally extraordinary precedents might be found on the subject of state prosecutions; and in which the only rule one can believe to have been uniformly prevalent, was to adopt the construction most favorable to the power of the crown and most agreeable to its inclinations. I will not enumerate the dreadful means by which crown prosecutions were then carried on, but will only remind you in what reign it was that that construction of the law originated which directly violates the great law of Treason, and has been deservedly condemned by some of the most distinguished lawyers who ever presided in English Courts of Justice.

From that period to the time of Charles the first, another most unhappy and most tyrannical reign, it does not appear that a single decision of that kind was ever pronounced, or that any Judge ever sought to interfere. with the province of a Jury in determining whether war · had or had not been levied against the King in his realm. Now, Gentlemen, that case in the reign of Charles the first, I take the liberty of saying is not law: and I say so (though I believe it was decided by all the Judges) upon the authority of that very distinguished writer to whom, and to whom alone, the Attorney General referred in opening the case to you,-the case is called "Benstead's case." I now quote from Mr. Justice Foster, "It was adjudged in the 16th Charles I. a season of great agitation, that going to Lambeth-house, in a warlike manner to surprise the Archbishop, who was a Privy Councellor, it

being with drums and a multitude, to the number of three hundred, was Treason;" so that to compass and imagine the death of an Archbishop was adjudged to be HighTreason by intendment and construction of law, on a statute which excluded all intendments and all construction, providing that the Parliament should be consulted on any Treason attempted to be thereafter introduced. Mr.: Justice Foster says," This is a very imperfect account of an insurrection which hath found a place in the best histories of that time. The tumult happened on Monday the 11th of May 1640, about midnight. On the Thursday following the special commission, under which the Judges sat, was opened and proceeded upon, and Benstead, a ring-leader in the tumult, was convicted, and within a very few days afterwards executed." So that you see, Gen-; tlemen, it was a very hasty proceeding; it was a proceed- : ing in a time of great agitation-a proceeding in the time. of a most arbitrary monarch, and in the time of those Judges who pronounced that that arbitrary monarch had a right to take his subjects' money out of their pockets without the consent of Parliament, and against the ex-: law of the land. Then Mr. Justice Foster goes on: to state, as the facts of that case are stated in the report, it is not to be supported as law," he expressly condemns it, and declares that as the case is stated, and without supposing other circumstances which do not appear to have been proved, and which if proved would have been considerations for the Jury and not for the, Court, even upon the principles laid down by him, the case cannot be law. Another case occurred, Gentlemen, in the reign of Charles II, and I do not think that was a very happy era from which to take precedents. I see my learned Friend smile-he says, perhaps, I am dealing. rather harshly with all times, but if you will bear in mind that two-thirds of the State Prosecutions in the time of Charles II. led to decisions, which were afterwards set aside as corrupt and unjust, you will think I am justified in saying that that time is not a very pure one from which precedents on these subjects are to be drawn. In

press

the reign of that monarch a case was decided to which I beg leave to draw your attention,-there was a special verdict found at the Old Bailey that A. B. and C. with divers persons, to the number of a hundred, assembled themselves in a warlike manner to pull down bawdyhouses, and that they marched with a flag upon a staff. and weapons, and pulled down certain houses in prosecution of their conspiracy; this, by all the Judges assembled except one, was ruled to be levying of war, and so High Treason within this statute, and accordingly they were executed.

Now, Gentlemen, in that case it seems that a special verdict was found. But according to the doctrine for which I have been strenuously contending, and do now. most strenuously contend, I cannot understand how a special verdict could be found at all, because if it be a question of fact and intention for the Jury to say what is a levying of war against the King, I am at a loss to. understand how it should be sent to the Judges to decide, upon a special verdict, whether the facts and circumstances and the intention taken together did amount to that offence. It appears to me with submission, but with great firmness I state it as a conclusion from indisputable premises to which my learned friend and myself have been inevitably led, that the Judges could have no right to decide upon that special verdict, because it is the province of the Jury to pronounce on the effect of those circumstances which admit of no previous definition; it was for the Jury to have given their decision, and the Judges were certainly in my opinion without jurisdiction when they pronounced an opinion upon that special finding. Gentlemen, the Judges were not unanimous; one dissented from the majority, and that was Sir Matthew Hale himself. I am sure I cannot use any terms to designate a wise, an enlightened, and an upright Magistrate, which are not applicable to Sir Matthew Hale: there never was a man upon the bench, perhaps I might say in the world, more religious, more conscientious, more humane, more perfectly versed in the law of the

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land, and more determined to discharge his duty in administering and in recording it. Now Sir Matthew Hale differed in opinion, and he thought this was an unruly assembly, he thought it was a riot, he thought it should have been put down by a Magistrate, he thought the parties ought to be severely punished who thus inso lently took the law into their hands; but he thought it was not High Treason. Let me suppose then that the case had been as it ought to have been, submitted to a Jury as matter of fact, and not to the Judges, who can decide only on a question of law; and let me further suppose that Sir Matthew Hale had been the foreman of that Jury, you will see that the verdict which would then have been correctly given by the proper jurisdiction, would have established a law directly the reverse of that which was pronounced by the eleven Judges; for they put themselves into the situation of a Jury, and returned a verdict on the facts, when it was their duty only to lay the law before the Jury, without any constructions or interpretations of their own.

Gentlemen, there is one case more, it occurred in the reign of Queen Anne, and was cited by my learned friend the Solicitor General in the late trials. I allude to the King against Damaree and Purchase, the one a waterman and the other a porter. Damarce went about the streets of London with a multitude crying out Sacheverel for ever! down with the meeting-houses! and doing very considerable mischief: they were joined by the other prisoner Purchase, who came up extremely drunk, and ignorant, for all that appeared, of the intentions of the other rioters, though he certainly joined in the mischief they were doing. The first question submitted was, whe ther Damaree had committed High Treason in going about knowingly and deliberately to pull down these meeting-houses, and inciting the mob to commit the like outrages by his cries and his example. There is one view of the case in which I am not disposed to question the correctness of this result; for all these acts were done in hos- A tility to the Government, and in pursuance of a scheme

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