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support of the government established by law and by the constitution of the country under which we all of us have lived, and under which, I hope, for many years, and, I was going to say for ever, as far as it relates to posterity, this country will continue to live.
Gentlemen, my duty upon this occasion consists in this,-in stating to you, with as much accuracy as I am able, the law, as it affects the particular case in question, and the facts by which, I conceive, I shall make out the guilt of the prisoner. I have no other duty to perform than that,--and God forbid that I, or any man standing in my situation, should be called upon to perform any other, I have no object but that of presenting to your minds and understandings, intelligibly and fairly, the law and the fact upon both of which combined you are hereafter to found your verdict. One great comfort I have, Gentlemen, in addressing you before the learned Judges who preside upon this occasion, is, that if unintentionally (for unintentionally I am sure it will be) I should happen to mistake the law, any mistakes, or any mistatements of mine, will be corrected by the learned Judges who are presiding upon this bench; for recollect always, that it is not from the Counsel for the Crown, nor is it from the Counsel for the prisoner, that Juries are to take the law; it is from that constitutional tribunal, the Judges of the land; it is from them that they are to receive directions in point of larv, and not from those who are standing in the situation of advocates.
Gentlemen, if in that which I have to state to you it should happen that I am mistaken in any of those facts I shall so state, I am sure the mistatement will be unintentional; but, thank God! there I shall be corrected by the testimony of the witnesses whom I shall call ; for you are to take the facts as deposed to you by the oaths of witnesses, and not from the statement of Counsel. Gentlemen, in commenting upon such facts as I shall state, I shall make, though not many, such observations as occur to my mind, in the progress of what I have to say, upon the inferences which I draw from any facts which may be
positively proved; it will be for you, when you come to consider the whole circumstances of this case, to exercise your judgment; and upon them also to attend to any observations upon those facts which may come from the learned Judges, who will address you in the summing up of this case.
Gentlemen, I feel great comfort in addressing such a tribunal as this; because, though I have not the honor of knowing any one of you, being a perfect stranger in this county, yet, when I see twelve English freeholders assembled in the box of a court of justice to exercise such a function as that you are about to perform, I confess I always feel the most perfect confidence that they will exercise that function with integrity, with impartiality, unbiassed and uninfluenced by any motives of any sort, recollecting always(if it were possible that twelve men, placed in your situation could want any super-inducing motive, except the motive of integrity, to influence your conduct)-recollecting always, that you are acting under the sacred and solemn obligation of an oath, by which you have attested your Maker, that your verdict shall be given according to the evidence.
Gentlemen, it is necessary that I should state to you what I conceive to be the law upon the subject, which I will do very shortly, as applicable to this Indictment and this Charge. The Indictment has, upon the face of it, three charges, all of them amounting to High Treason. The first charge is, that the prisoner, together with other persons, some of whom are named in the Indictment, and others stated to have been unknown to the grand jury, levyed war against His Majesty; and, in that levying war, did certain acts that are stated upon the face of that count of the Indictment: arming themselves, and marching through the country in hostile array, is there described. That count of the Indictment is founded upon a statute passed in the reign of King Edward III. which for many years was the only statute upon which High Treason was founded in this country. I state that to you now, because the other two charges are founded upon a subsequerit
statute, which, though it does not, in my mind, nor ever has made much difference in the law of Treason in the result, puts certain acts and certain conspiracies upon the footing of substantive Treason, which, previous to the passing of that last act, were rather evidences, or overt acts, of other species of Treason.
Gentlemen, the first count, as I have stated to you, charges the prisoner, together with the others, with the crime of High Treason, in levying war against His Majesty. The second count, which is founded upon a statute which was passed in the thirty-sixth year of the present King, charges the prisoner with compassing and imagining to depose the King. Now I will explain to you, in a moment, the meaning of the word compass in the eye of the law; and, when it makes that charge of compassing, and imagining to depose, the king, it also does that which it is necessary in the law of Treason to do-it states the overt, or open acts, which were done by the prisoner, as evidencing that intention which he had in his mind; and, as the means to effect his compassing and imagination, it charges him with consulting to devise plans and means; that is, consulting with others to devise plans and means to effect his purpose ; with assembling, meeting, conspiring, consulting and agreeing among themselves, to stir up, raise, 'make, and levy insurrection, rebellion and war, against the King, and to subvert and destroy the constitution and government; with providing arms and ammunition, in order to effect that purpose; with parading through villages : that is, passing with others through villages, and seizing arms, in order to effect that purpose; and then it charges, as the last open act, the act of levying war, in order to effect the compassing and imagination he had of deposing the King,
The third charge upon the face of this Indictment imputes to him the crime of conspiring to levy war against the King, in order to compel him to change his measures ; and then it states certain open acts, which, in the language of the law are called overt acts, which are the same as those stated in the second count of the Indictment.
Now, Gentlemen, with respect to the first count of this
Indictment, I have told you it is founded upon a statute of the 25 Edward III. which statute describes several
species of Treason ; with respect to the others, which do not relate to the levying war, I shall not make any observation at all upon them save one, which is upon the first branch of that statute, for the purpose of explaining what is the meaning of the word compassing, as introduced and applicable to the second count. The statute of King Edward III. is this :-“ When a man doth compass or imagine the death of our Lord the King, or our Lady the Queen," then going on to other Treasons, “or if a man do levy war against our Lord,” meaning the King,“ in his realm, then he shall be guilty of High Treason,” Now, Gentlemen, the term compass as used there, as well as the term compass as used in the other statutes, has not that meaning which in common and ordinary language is applied to the word compass, which, generally speaking, means to effect, if a man says, I have compassed my purpose; he means, I have done that which I intended: but the word compassing is merely another word in the language of the law for imagining, that is intending to do so and so. To compass the death of the King, when the term is used in any count founded upon that statute, is not to effect the purpose of putting the King to death,but to intend to do it by certain means, some of which are afterwards manifested by overt. acts. Gentlemen, the first count however of the Indictment is not charged upon that branch of the statute, but it is upon that of levying war against the King.
Gentlemen, one question, if that can be any question at all, or rather which sought not to state to you as a question, bat as the rule of law upon the subject, one question will be, What is levying war against the King ?-Levying war against the King is in any number of persons combining themselves together by hostile open force, and in hostile array, with arms or without arms (though I need not state that in this case) for the purpose of effecting any general object of overturning or destroying the government or constitution of the country. That I have no hesitation in stating to be an act of levying war: but also the law goes
much further than that, because though men may not have the absolute and determined object, which I undertake to make out in this individual case they had ; though men may not have the actual and determined object of destroying the constitution and government of the country, yet if they assemble themselves together, and endeavour and intend by force and arms to effect a general purpose, and not some particular object, in which they are particularly and specifically and specially themselves concerned, that is, and always has been, holden to be a levying of war within the statute. Gentlemen, I will only trouble you with a very short passage in one of the most learned writers upon this subject. A learned Judge of this country, who had the benefit not only of the writings of those who had gone before him, but the benefit of his own great knowledge and experience upon the law, I mean Mr. Justice Foster, who was a man as friendly to the liberties of his country, as friendly to all the legal and legitimate rights of his fellow subjects as any man with whose life or presence this country or the bench ever was honoured. Gentlemen, Mr. Justice Foster states this, that insurrections for general purposes; even insurrections by force of arms to throw down all inclosures, insurrections by force of arms to open all prisons, and all risings in order to effect those 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, says he, “Though they may not be levelled at the person of the King, they are against His Royal Majesty, and they have a direct tendency to dissolve all the bonds of society, to destroy the property and government too, by numbers and an armed force.” “Insurrection likewise for redressing national grievances, or for the expulsion of foreigners in general, or for the reformation of real or imaginary evils of a public nature, and in which the insurgents had no special interest, risings to effect these ends by force and numbers, are by construction of law within the law of levying .war; for they are against the King's crown, and royal dignity.” Gentlemen, I will venture to say, there is