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for subverting it, (which might possibly be the case, for Sacheverel was the leader of the high church party, who were endeavouring to pull down the King and place King James in his stead), it would be properly a question of fact, whether that was not a levying of war against the King. But the question so stated is a question of intention, and ought to have been submitted to the Jury. The Judges took it however into their own hands, and decided, that because the riotous assembly professed a general purpose, the destruction of all meeting-houses, it was a levying of war against the King. Such was their judgment as to the first; but as to the second, who came up accidentally in a state of intoxication, this man's case caine before the Judges to declare whether or not he was guilty of High Treason for joining in the acts of violence committed.

Now, Gentlemen, I have said and I repeat that I think it should have gone before a Jury to have made that decision. Gentlemen, if it had, if you had been that Jury, if the proof had been that men went about pulling down meeting-houses, and holding violent and seditious language, and that a drunken porter had joined them without knowing their design, merely entering from a spirit of mischief, or from whatever other motive, into a participation of these momentary outrages, would you, could you upon your oaths have declared that that unfortunate individual had withdrawn his allegiance from the Sovereign that he loved, and thought perhaps he was serving; that not having the fear of God before his eyes he levied war against his King? I ask, whether any one of you would not have rather died in the box than consented to have found him guilty. I ask you, whether you could from any sense of public policy have brought yourselves to say that that poor drunkard who joined in the destruction of brothels, without knowing what the party were aiming at, was guilty of that wilful and most malicious act, which has its rise in a deliberate rejection of the duty and allegiance due to the throne? Three of the learned Judges thought he was not guilty, the other Judges were

of a different opinion; I have stated my reason for thinking it was not a question at all for them, the men however were thus condemned; but it is some consolation to be able to state as the sequel of the history, that they were not executed upon that finding.

Gentlemen, the Judges who pronounced that decision, acted upon the authority of Benstead's case, which I have already considered, and denied to be law for the very satisfactory reasons, given by Mr. Justice Foster; they also founded their opinion upon that case in the reign of King Henry VIII. to which I have alluded. If, therefore, these cases are not capable of being supported in point of law, because they withdraw the trial of the issue from the only Tribunal-the Jury, to which they were legally referable-that of Damaree and Purchase, which I know will be mentioned to day, falls to the ground also, and leaves the law unfettered by their authority. At all events I repeat again that it is a question of fact for you to decide, and I trust, and am sure, you will feel it your bounden duty to exercise that privilege which belongs to your Jurisdiction.

I shall now take the liberty of calling your attention to what is said by that great authority, Sir Matthew Hale, on the subject of levying war." The assembling of rioters in great numbers to do unlawful acts, if they have no military arms, or no appearance of war, yet doth not always amount to a levying of war," and for this he refers to 3d and 4th Edward VI. and 1st Mary, Cap. 12, "to make it treason, it must be a levying of war against the King, otherwise, though it be in a warlike manner, and a leveying of war, it is not treason," and he gives particular instances of this, and adds, by way of example, "If it be only a private and particular design, as to pull down the enclosures of such a particular common, it is no levying of war against the King. But a war levied against the King is of two sorts, expressly and directly," which I contend was the only one the statute intended, as raising war against the King or his General and Forces, or to surprise aud injure the King's person, or to imprison

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him, or to go to his presence to enforce him to remove any of his Ministers or Counsellors and the like," and indeed there can be no question that such acts amount to levying war against the King.

But he proceeds to speak of the second kind of levying war-"interpretatively and constructively, as when a war is levied to throw down enclosures generally, or to enhance Servants' wages, or to alter Religion established by law, and many instances of like nature might be given ; this has been resolved to be a levying of war against the King, and treason within this clause." He then examines the foundation on which these constructions are built, and remarks, that the first resolution he finds is in the reign of Henry VIII. for enhancing Servants' wages, and the next in time was, that of Burton for raising an armed force to pull down enclosures, generally. I pass over the proceedings against Burton, because they were not upon the statute of the 25th Edward III. Then he adds, “these resolutions being made and settled, we must acquiesce in them, but in my opinion, if new cases happened for the future that have not an express resolution in point, nor are expressly within the words of the 25th Edward III. though they may seem to have a parity of reason, it is the safest way, and most agreeable to the wisdom of the great act of 25th Edward III., first to consult the Parliament, and have their declaration, and to be very wary in multiplying constructive and interpretative treasons, for we know not where it will end." Thus the state of insecurity, Lord Coke describes, the uncertainty of every man in the possession of his life, his liberty, and his property, If the plain words of a plain statute are to be extended by construction, we here mentioned also by Sir Matthew Hale, as a reason for carrying it no further. He repeats this very frequently; and in the course of these remarks, I find a paragraph which seems to go to the other point I have laboured, namely, the question whether levying war is or not a question for the Jury, which I omitted before, and will now recite. The Earl of Northumberland, and his son Lord Percy, levied war against the King; Lord Percy was overthrown at Shrewsbury, the Earl of Nor

thumberland was found marching towards that town, and his object was not perfectly clear, "the King demanded the opinion of the Judges, and his counsel touching it, the Lords protest the judgment belongs, in this case, to them, the Lords, by the King's command, took the business into their examination, and, on view of the statute of the 25th Edward III. they adjudged," what they considered to be right on the particular case. It appears, therefore, that the King claimed for the Judges, the right of determining, whether the act of the Earl of Northumberland was Treason or not; but his peers, the people of the Earl's condition, according to the language of the Act, In a word, the Jury, took the matter into their own hands; they considered the case, and they pronounced the verdict ; a clear authority in favor of the other proposition, that the question of levying war was not for the Judges, but the Jury.

Gentlemen, another case also happened in the time of King Charles the second.-A great number of weavers in and about London, discontented at the engine loom, which did that labour which should be done by the hands of men, combined to go from house to house to destroy these engine looms; they assembled to the number of three or four hundred; and in Stratford le Bow amounted to fifteen hundred. They did in a most violent manner break open the houses of many of the King's subjects, in which such engine looms were, or were suspected by them to be; they took away the engines, and making great fires, burnt the same, and not only the looms, but in many places the ribbands made thereby, and several other goods of the persons whose houses they broke open; this they did not in one place only, but in several places and counties this they did after several proclamations made, and command given by the Justices of Peace and the Sheriffs of Middlesex to depart; but instead of obeying they resisted, and affronted the Magistrates and officers. It is true they had no warlike arms but that was supplied by their number, and they had such weapons as such a rabble could get, as staves, clubs, sledges, hammers, and other

instruments to force open doors," of the military called in, many were disposed to join them: the tumult became very general, extending over several counties. This was submitted also to the Judges, not in Court, where it should have gone to the consideration of the Jury, but out of Court, by a proceeding not extremely correct, and which would not take place in these times. The Attorney General privately consulted the Judges what they would determine if such a case should come before them; the Judges were equally divided, five against five, and the Attorney General proceeded and tried them for a riot, and they were punished for that offence.

One of the reasons, Gentlemen, on which Lord Hale founds his opinion upon these particular cases, and argues that these violent and outrageous proceedings, however mischievous and dangerous, still fall short of Treason, is that he considers them specially provided for under a different denomination by that Statute to which allusion has already been made. He says "It is considerable how these resolutions; that is, the resolutions in favour of a constructive levying of war, "stand with the judgment of Parliament, in the 3d and 4th Edward VI, which makes special provisons to make assemblies above twelve to alter the laws and statutes of the kingdom, or the religion established by law, or if above forty assemble for pulling down inclosures, &c. Treason, if they departed not to their homes within an hour after proclamation." Lord Hale therefore very naturally says-The Act of Edward VI. thought it necessary to provide for the making such a riot Treason, under particular circumstances; and it follows, that it was not Treason at all before the Statute, nor even since, if unattended with those circumstances ; for the Act applies to great number of persons assembled, in the language of my learned Friend, for a general purpose; no less than altering the laws, or the estab lished religion; and I defy human ingenuity to put it more strongly as a general and not a particular object: and as the case is declared Treason by that Statute, it seems to Lord Hale extremely doubtful how it could be considered as Treason before.

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