you

who attend upon this important enquiry, yet that you are to dismiss altogether what they may say, or what their predecessors may have laid down respecting the Law of Treason, and that you alone are to take into consideration the language and the meaning of the Statutes which have been enacted upon that subject, and that you, and alone, are to determine, not merely whether the acts have been committed which are charged against the Prisonernot whether he has committed those acts, with this or that intention, but whether or not, supposing him to have committed those acts, and to have harboured the intention imputed to him, those acts thus proved constitute, in point of law, a levying of war within the meaning of the Statute of Edward III. Such is the proposition of my learned Friend a proposition which I must confess alarmed me, because if it be true, either a great change has already taken place in the administration of justice, or it is to commence by the determination you are to arrive this case.

at upon

Gentlemen, the learned Judges who preside upon this occasion are acting, like yourselves, under the most solemn obligation which can influence the conduct of men; they are bound by the oaths which they have taken to state to you what the law is as it respects the charge which is exhibited against this Prisoner. You, Gentlemen, are, and I hope ever will continue to be, as long as the administration of justice exists in this country, the sole and legitimate judges of the facts which are proved, but with respect to the law to be applied to those facts, you are to receive it from the Judges who preside on this Trial. They are to state to you, and they alone, what the law deems a levying of war within the meaning of this Act of Parliament; but whether the acts proved against the Prisoner at the bar, and the intention with which he acted, bring him within that law so pronounced, it is your province to determine; but you are not, nor can an English Jury, from their education, their habits, or their course of life, be competent judges of what is the law upon the subject? it is impossible they should be so.

My friend, Mr. Denman, however, in the outset of his address to you, stated that he trusted before you came into this Court you had made yourselves masters of the Law of Treason, because, as he chose to insist, you were the only judges on that subject.—It is on this account that, important as this case is, (and God knows it is of the greatest moment) it has I think become infinitely more so from this new doctrine so laid down and insisted upon.

Gentlemen, in this country neither the Judges nor the Jury are to judge arbitrarily or capriciously upon any point; the judges are not to lay down that which is not warranted by the true interpretation of the law, sanctioned and confirmed by their predecessors; nor are you, though judges of the fact, to judge arbitrarily upon it, but to decide as reasonable men, and according to the fair result of the evidence.

Keeping, therefore, distinct the provinces of the Judge and the Jury, I shall yenture, though certainly not with the boldness of my learned Friend Mr. Denman, but humbly and submissively to state to you my conception of the law; but, concurring with my learned Friend the Attorney General in what he said to you in his address, and which I am sure you cannot have forgotten, that although he should state to you what his conception of the law was, yet that you were not to take the law from him, or from any advocate; but that when you came to determine upon the guilt or innocence of the Prisoner, you should receive the law from the proper tribunal for expounding it, the learned Judges, and according to the law so pronounced decide. I am sure that will be your course, and although I shall venture to state to you what I conceive to be the law from the Statute, and the exposition it has received from time to time from the Judges, yet I desire you not to form your decision from that which I state, but reserve yourselves upon that part of the subject, till you hear the opinions of the learned Judges when they come to sum up this case.

Gentlemen, I will venture to state, and that shortly, what I imagine to be the law as it relates to the charge

against the Prisoner at the bar. The charge is that he, with a great number of others, traitorously and maliciously did levy and make war against our Lord the King within this realm, and that being assembled with arms in' a hostile manner, they did the acts which have been given in evidence. You have heard a very long and laboured discussion by both my learned Friends on the language of the Act of Parliament on which this charge is founded, and, if I at all understand them, their proposition is this, that unless war be levied directly against the person of the King, it is not High Treason; my learned Friend, Mr. Denman, commented at great length upon the words levy war against the King;" and though he was constrained to admit that a different construction had prevailed from that which he contended for, and that such construction had received the sanction of the Judges at various times, and that different cases had been decided upon it, yet feeling, as he did, that if those cases were law, how impossible it was for him to distinguish the case of the unfortunate man at the bar; from the principles of those decisions, he is, in order to get rid of them, obliged at once, confidently and boldly to pronounce, that altho' persons have been tried and have suffered the sentence of the law upon those decisions, yet that those decisions are contrary to law; that they are a disgrace to our books, and that the Judges and Juries by whom those cases were determined, committed a great error, and have been guilty of improperly sacrificing their fellow subjects.

My Friend, the Attorney General, stated to you the law as he found it laid down and expounded by one of the greatest ornaments of the Bench, Sir Michael Foster; the treatise of that learned Judge is also found fault with upon this occasion, and is rather flippantly treated (I mean no offence by the expression) as a discourse of a man in his closet, not intended to have a practical operation; and yet when it pleases my learned Friends to have recourse to the same authority, when it happens to be in their favour, then we have it relied upon; as where Mr. Justice. Foster condemns the law as supposed to be laid down in

Benstead's case; so that when it suits their purpose, Mr. Justice Foster is merely a speculative writer, who is to have no influence upon the decisions of Judges, but when they find that he has ventured to attack the law of a case unfavourable to them, then he is called in aid, and they venture to rely upon his authority themselves.

Gentlemen, Mr. Justice Foster's Treatise has always been considered as one of the ablest upon this subject, and therefore I shall venture again hereafter, though at the hazard of the censure of my learned Friends, to state from his book what he considers to be levying war against the King; but before I do so, I shall advert to a case brought forward by my learned Friend Mr. Denman. I mean the case of Damaree and Purchase-where the very same arguments were used for the Prisoners which have been used to-day. It was there urged, that Damaree and Purchase, though concerned with the mob in pulling down the Meeting houses, were not guilty of High Treason, that they were only guilty of a great riot, because their outrage was not directed against the person of Her then Majesty, the time of that case too is important, because it took place shortly after a period, justly eulogized by my learned Friends, when our Constitution received, to a certain extent, its settlement, I mean the Revolution of 1688-it was argued in that case, that levying war against the King could not be by an assembly met to pull down Meeting-houses, and that the words of the statute could not extend to such a case, but were restricted to a war against the person of the King. It was answered by the Court," that if the levying war against the King were there meant only of a war against the King's person, it would have been idle to mention it in that Act, because they had before made the compassing his death to be Treason; and he that levies war does more than compass and imagine the King's death." And it has been in all times uniformly held, that where persons assemble in a hostile and warlike manner, with a view to resist or alter the Government of the Country, or with any other public object inconsistent with the peace and security of the realm, it is a levying war against the King.

Gentlemen, great stress has been laid by my learned Friends upon the authority of Lord Hale upon this subject, and much discussion has taken place (improperly, I think, addressed to you, but with great propriety to be submitted to the learned Judges) upon that authority. But my learned Friends know perfectly well, that Sir Matthew Hale, in the construction of the statute, assents to the proposition which I have laid down to you, that there may be a levying of war against the person of the King, and that there may be also a levying of war within this statute, though not directed against the King's person, if it has for its object the effecting by force a public purpose, and therefore Lord Hale, whose authority is so much relied upon, is equally with the other Judges of opinion that a levying war for a public object is High Treason within this statute of Edward III.

Gentlemen, I said just now that I would state to you once more what Mr. Justice Foster has said upon this subject, and I shall now state it-he says " Insurrections in order to throw down all inclosures, to alter the established law or change religion, to enhance the price of all labor, 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 government too, by numbers and an armed force-insurrections likewise for redressing national griev ances or for the expulsion of foreigners in general, or indeed of any 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."

Another learned writer, who has been greatly panegyrized by my learned Friend, Mr. Cross, and from whose