say,

oath then goes on, That I will persevere in
my endeavours to obtain for all the people of
Great Britain and Ireland, not disqualified by
crimes or insanity, the elective franchise, at
the age of twenty-one, with free and equal re-
presentation, and annual parliaments." *There
are few persons at present, who are qualified,
either from their natural parts or information,
to judge of subjects of this kind, who will be
of opinion that either annual parliaments or
universal suffrage would be of advantage to the
inhabitants of this country, or would conduce
to any thing else than anarchy in the first in-
stance, and despotism in the end.
although this be true, it is well known to
But
your lordships, that it is the privilege of every
subject in this country, to form his own opinion
on subjects of a political nature; and having
formed his opinion, he may make use of law-
ful means to have such changes produced in
the constitution or government of the country
as he may think expedient. The legislature
has at different times altered the duration of
parliament and the mode of suffrage; and if
any person believes that annual parliaments
and universal suffrage would be of benefit to
the country, it is no crime to use lawful en-
deavours to obtain these objects, which can
only be obtained lawfully by an act of the
British parliament itself; and you know, that
petitions for such objects are daily presented
to parliament, and daily received.

A. D. 1817.

The oath in the indictment then goes on to [158 of my power, either by moral or physical strength, as the case may require." Support "that I will support the same to the utmost what? Here is an ambiguity in the oath; and to admit constructive treasons reared upon words uttered by persons not critically acan ambiguity which shews how hazardous it is quainted with the imperfect instrument of language. Interpret this passage any way you chuse, it will not amount to any thing criminal. Even supposing that it binds the party taking the oath to obtain the objects which are specified it is, that lawful objects are to be obtained by in it by moral or physical force, what is the result? lawful measures. No person can be blamed for exerting his utmost efforts under that limitation. Or take the only other construction which can be put upon this clause of the will support annual parliaments and universal suffrage to the utmost of his power, when these oath, and suppose the party to swear, that he objects shall have been obtained; that he will use his best endeavours to continue and perpetuate these imaginary blessings, when they shall once have been procured for the country. Is this an unlawful obligation? It certainly is not. manner, then, it is the duty of good subjects If lawful objects are obtained in a lawful to support and continue them. So that whatever construction you put upon this clause of It is said in the oath," I will persevere" in enterprises for obtaining what does not already these endeavours. If the endeavours are law-exist, or for supporting improvements after the oath, whether you suppose it to refer to ful, the persevering in them is no crime at all. It is not said in the oath, or in any part of the indictment, that the prisoner was engaged in unlawful projects for these purposes. It is said, indeed, in the indictment, that the persons who administered the oath were engaged in a treasonable conspiracy; but there is no specification of circumstances to evince the prisoner's accession to this conspiracy, nor is the offence of conspiracy any part of the substantive charge made against him in the indictment. That being the case, the oath or obligation to endeavour to obtain annual parliaments and universal suffrage, is an obligation in itself perfectly innocent. Your lordships will not say that these endeavours are unlawful, nor will you impute improper motives to the party in prosecuting them, for you are not authorized to make such an intendment. When a person promises to use every endeavour to accomplish an object, the generality of this expression will never extend it to unlawful endeavours-it must be construed with the common and necessary limitation, that he will use every endeavour which he may lawfully use. If this principle of construction were not adopted, the oath of abjuration itself might be converted into an obligation to commit treason. "I do faithfully promise, to the utmost of my power, to support, maintain, and defend the succession of the Crown," purports, that I will support, maintain, and defend it by lawful means-but not by unlawful means, not by felony, murder, or treason,

they shall be established by law, it is in either terms "moral and physical strength," I may case perfectly innocent.—With regard to the remark, a man may support what is lawful either by the one or the other, and yet be free from blame. The individuals attempting to frage, might employ their moral strength for that purpose by using arguments; or their procure annual parliaments and universal sufphysical strength, for instance, by being despatched with letters and messages, or going support. A person may erect hustings, and may keep off the rabble-he may employ bis about to solicit members of parliament for their physical force in twenty different ways without doing any thing that is unlawful.

swear, that neither hopes, fears, rewards, or
punishments, shall induce me to inform on, or
The oath concludes, "And I do further
give evidence against, any member or mem-
bers, collectively or individually, for any act
death, to be inflicted on me by any member or
or expression done or made, in or out, in this
or similar societies, under the punishment of
members of such societies.
God, and keep me stedfast." I admit at once,
it is improper for any person to undertake an
So help me
obligation not to give evidence. But that is
to commit a misdemeanor with which we have
not an obligation to commit treason: it is only
here no concern.

support the major proposition in the indictment.

Not one of those clauses of the oath can

Read the oath from beginning to end, and say, does it impose any obligation to commit treason? Read the words a hundred times over, and still it will be impossible to say that such is its purport. For it may be explained to mean an obligation to endeavour to obtain lawful objects, and cannot fairly be explained to mean any thing else. I am speaking of the purport of the oath, and not of what might be the intention of the parties at the time; and if that oath does not purport treason, there is san end of the present indictment.

The public prosecutor immediately adds, "Which oath or obligation did thus purport or intend to bind the persons taking the same to commit treason, by effecting by physical force the subversion of the established government, laws, and constitution of this kingdom." No doubt the prosecutor makes that averment. But I say the averment is utterly unfounded, and that the oath does not purport the obligation which he says it purports. It is for your lordships to judge whether it does so or not; and if you are of opinion that it does not, then nothing that the prosecutor affirms on the subject can have the smallest influence, as he is not entitled to go to the jury, and leave it to them to determine what is the purport of the oath; for that would be to take the relevancy of the indictment out of your hands into his

own.

The prosecutor has given you a gloss or comment on the oath, and you will judge if it be correct. The civilians have a nickname, I forget what it is, for a gloss which extracts a meaning from the text exactly the reverse of what it naturally bears. This gloss is precisely of that nature.

fore, has extracted a meaning from the text exactly the reverse of what the words bear. The public prosecutor cannot be allowed to do this; and the libel on that account is irrelevant.

But I go further, and I request you to observe what may not at first sight be apparent, but which, on full consideration of the law, will immediately occur to all of you, that even on the supposition that this oath did purport what the public prosecutor says it does, yet it would not purport an obligation to commit treason. For I maintain, that persons bound to effect by physical force the subversion of the established government, laws, and constitution of the kingdom, are not necessarily bound to commit treason. It is well known to your lordships that there are two great species of treason in law. We shall dismiss from our consideration at present a great many treasons, such as debasing the coin, murdering judges, &c. with which the public prosecutor does not and cannot pretend that this oath could have any connexion whatever. There are just two kinds of treason specified in the statute of Edward 3rd, to which it could possibly refer; 1st, compassing the king's death; 2nd, levying war against him. I shall afterwards speak of a third treason, established by a subsequent act, the 36th of the king.

In order to make an indictment for either of these two kinds of treason relevant, it is not enough to say that the party intended to effect, or has effected by force, the subversion of the government, for that is not necessarily compassing the death of the king, or levying war against him. Though some of the acts performed in subverting the government might be overt acts of treason, they are not necessarily so.

In the oath there are the words, "I will support the same to the utmost of my power, either by moral or physical strength." In the In order to establish the first kind of treason, prosecutor's comment the word force is substi- two things are necessary. You must have a tuted for strength. That may be thought im- wicked imagination in the mind, namely, the material, and to have proceeded from inatten- compassing of the king's death; and you must tion, but it is not so. It has been introduced have overt acts, which the law considers as in order to insinuate something different from proof sufficient to establish that imagination. what the oath purports. Strength in common But it is not laid here that the oath bound those language applies to bodily exertion. Force who took it to compass or imagine the death applies to an assemblage of armed persons. of the king. I cannot illustrate my argument Although you can speak of an armed force, as it applies to the case before you, better than you cannot speak of an armed strength; acireum- by appealing to an extreme case, with which you stance which shows that the meaning of the words are all well acquainted-the trials of the regicides is not the same. The prosecutor by this clause in the 17th century. You will recollect how the means to insinuate, that the parties were to en-indictments were there laid "for compassing deavour by an armed force to obtain their objects; - a purpose which cannot be inferred from the words of the oath at all. It is further said, that the oath was to bind to the "subversion of the established government, laws, and constitution of this kingdom," but there is nothing from the beginning to the end of the oath about effecting any thing. The parties bound themselves to use endeavours to obtain annual parliaments and universal suffrage; and these, if obtained in a lawful manner, are not a subversion of the government, laws, and constitution of the kingdom. The gloss, there

and imagining the death of the king ;" and the overt act of that treason was cutting off the head of the king. It would not have been relevant to have merely charged the act of putting the king to death, as the crime of treason-the crime consisted in the imagination of the heart; the death of the king was the evidence that that imagination existed. In the same manner, the subversion of the laws and constitution of the kingdom is not treason, though it is probable in effecting that subversion overt acts may be committed, which afford evidence of treason.

'A. D. 1817.

1162

version accomplished by force; yet no lawyer will maintain that this is a case of high treason, that it is a case of compassing the king's death, or of levying war against him, or of conspiring to levy war.

purport what the public prosecutor says it does, but which most certainly it does not, I repeat, then, that although this oath did still it would not support the charge in the major proposition. If the prisoner was accused of having subverted the constitution by force, could that charge go to trial as a charge of

The other species of treason which I mentioned, was levying war against the king. To constitute that crime, the use of physical force in the subversion of the laws or constitution of the kingdom is not sufficient. One of two things is necessary; either, on the one hand, the persons using that force must be assembled in the guise of war, as it is expressed in the Norman jargon of the law, arriati modo guerrino; they must proceed sub specie belli, armed with warlike engines, with colours displayed, and to the sound of trumpets and drums: or, on the other hand, there must be so great a mul-high treason? assuredly it could not; and for the titude assembled, that their numbers may compensate for the want of the pride, pomp, and circumstance of war. Certain persons assembling together and prosecuting an illegal object by force, does not necessarily constitute a levying of war against the king,-unless it have the characteristics I have mentioned, it is not treason. I am unwilling to detain you in a case of this kind by quoting authorities on the subject. I could quote a great many, but I shall content myself with referring you to Hale and Foster, in their chapters on this subject.

There is a third treason, that of conspiring to levy war in order to accomplish certain ob jects, as to put the king under restraint, to intimidate parliament, or force the parliament to enact certain laws. This treason was introduced by the 36th of the king, c. 7.*

I ask, then, whether this oath, granting that it purports what the prosecutor affirms it purports, imposes an obligation to commit any one of these three distinct species of treason? I have already stated the reasons, by which your lordships must be convinced that it does not bind the taker to compass or imagine the death of the king. Just as little does it bind him to levy war against the king, or to conspire to levy war against him.

I have said that force may be used, nay, successfully used, to subvert the constitution, and yet no war be levied against the king. I shall give an instance of this, which appears to me decisive on the merits of the present question. Suppose that the House of Lords (which of course they never will do) should pass a bill to abolish the House of Commons, or their own House, as a branch of the Legislature (and if such bill passed into a law, it would effect the complete subversion of the constitution): Suppose, in the next place, that this bill, when carried to the House of Commons, should divide the House equally, and of consequence its fate should depend on the casting vote of the Speaker. In those circumstances, if twenty or thirty individuals, not armed modo guerrino, but with sticks in their hands, should go down and compel the Speaker by threats or violence to vote for this bill,-the bill having afterwards received the royal assent, would operate as the subversion of the constitution, and it would be a sub

e. 6.

Made perpetual by Stat. 57 Geo. 3rd VOL. XXXIII.

an oath purporting to bind the taker to subvert the constitution by force, is not a charge same reason a charge of having administered of having administered an oath binding him to commit treason.

ing" to bind. That word, as I have endeavoured to explain it, and I trust I have I have now considered the oath as "purportsoundly explained it, implies nothing more than the meaning of the oath as it may be gathered from the words set forth. But then ported, or intended; and the question comes to be, Does the use of the word intend make any the public prosecutor says that this oath purdifference? I apprehend it does not; for the intendment of a writing or speech in the ordinary case is just the same thing as its purdoes not say, if the person administering the oath intends to bind to the commission of port. You will observe the Act of Parliament treason, that his intention shall infer the crime. This is not the meaning of the statute; for it requires, that there shall be an outh or engagement "intending" to bind, &c. intendment of the oath, not of the person, which the statute mentions; and, therefore, though it were perfectly clear that the prisoner It is the intention to bind the party taking it to comadministered this oath, and that it was his mit treason, yet that is not enough, if the oath itself do not bind to that effect. Now, that cannot be inferred from the words of the oath; for if you interpret them fairly, they mean nothing but what is, or at least may be, per fectly innocent.

public prosecutor will prove, by facts and circumstances, that the intendment of the oath is But then, perhaps, we shall be told that the different from the purport; and it occurred to me, that he has some such idea, from the circumstance that he has drawn the narrative of his minor proposition in the way in which he the subject, to which I must call your partihas. I have various objections to this view of cular attention.

the libel itself the prosecutor gives up the charge of intending, and relies on that of purIn the first place you will observe, that in porting altogether; for in the close of the libel (where, though the same detail is not necessary, yet the crime must be set forth with the same places foresaid, the said oath or engagement, critical accuracy) he says, "At least, times and or an oath or engagement to the same purport, M

was wickedly, maliciously, and traitorously administered, or caused to be administered," &c. He does not say it was an oath to the same intent; and therefore, unless he establishes that an oath of this purport was administered, he does nothing at all. But this is not the objection on which I chiefly rely.

was nevertheless intended by the parties to
impose that obligation, yet the facts and
circumstances here resorted to are of a kind
which precludes the prosecutor from making
use of them for that purpose. If the narra-
tive of this indictment were to be proved, it
would infer that the prisoner had committed
treason; but will your lordships permit the
lord advocate to prove that a man has been
guilty of treason in order to convict him of
a felony. I submit that this is manifestly in-
competent. It is a general rule in criminal
law, and is so laid down by Mr. Burnet in his
work upon that subject (p. 611). His 18th
canon upon evidence is in these words:
"One crime cannot be proved by evidence as
to another. If A be charged with three acts
of theft, a proof of two of them cannot be
offered in evidence of his guilt as to the
third." Your lordships will see at once the
principle upon which this rule is founded, and
indeed it is afterwards stated by the learned
author whom I have just quoted. He says,
"it is to avoid the risk of a jury being influ
enced by the proof of one crime in judging of
the proof of another." It would be most dan-
gerous to the subjects of this country were it
held, that because a man had perpetrated one
crime of which he was not accused, the jury
might conclude that he had perpetrated ano-
ther of which he was accused.
This may
perhaps be a moral, but it is no legal ground
of inference. If I know that my servant has
stolen an article from me on one day, and if
another is missed the day following, I may
very naturally conclude that he who stole the
first stole the second also. But if the servant
was tried for the second theft alone, your
lordships assuredly would not allow the pro-
secutor to go into evidence of the first. It
could answer no purpose, but the improper
purpose of creating a prejudice in the mind
of the jury. It is therefore a salutary and
expedient rule, and a rule which I trust will
always be received, that one crime cannot be
proved in order to establish another. As the
prisoner therefore is charged with having ad-
ministered an unlawful oath, and as for that
crime and for no other a conviction is de-

It is an established principle in the law of Scotland, that the minor proposition shall be laid specifically, and that every material circumstance shall there be stated which is to be made the subject of proof against the prisoner. The prosecutor is not at liberty to make out the intendment of this oath from facts and circumstances to which he only alludes in a vague manner; the libel is defective unless these facts and circumstances are distinctly specified. Would it be sufficient in an indictment under this statute to say, that the prisoner, at the times and places mentioned, administered the oath of allegiance, but under cover of that oath he intended to bind the party to commit certain crimes? No. It would be necessary for the prosecutor to set forth what were the facts and circumstances which established the criminal quality. In a trial for a calumnious or seditious libel, would it be enough to specify that the prisoner repeated the first stanza of Chevy Chase, without specifying how it happened that words having a natural, obvious, and innocent meaning, were in reality directed to a totally different and criminal object? The prosecutor must set forth the facts and circumstances from which he draws his inference, otherwise the indictment is not laid with that minuteness which the law requires. But your lordships will observe, that no fact is here specified from which such an inference can be deduced. It is stated in the narrative, that the prisoner "having wickedly, maliciously, and traitorously conspired and agreed with other evil disposed persons to break and disturb the public peace, to change, subvert, and overthrow the government, and to excite, move, and raise insurrection and rebellion, and especially to hold and attend secret meetings, for the purpose of obtaining annual Parliaments and universal suffrage, did then and there wickedly, maliciously, and traitorously admi-manded, the prosecutor cannot be allowed to nister, or cause to be administered, or did aid and assist in the administering, to a great number of persons, an oath or engagement, or an obligation in the form of an oath," &c. In the first place I say, that supposing the prisoner committed all these crimes, it is no necessary inference from that hypothesis that he intended to administer an unlawful oath. They do not create the smallest presumption to that effect; for a man may be engaged in treason himself, and yet have no intention to impose an oath binding his associate to commit

treason.

But there is another view of the case. Supposing it competent from facts and circumstances to prove that an oath which does not purport any obligation of the nature libelled,

prove in support of that charge, that he committed another crime, namely that of treason. Nothing could be more unfair or more contrary to the principles of criminal law.

Inaccurate opinions have sometimes been received on this subject. I have used the argument myself, that every thing is evidence which tends to produce belief in the minds of the jury. That is not the law of Scotland or of any civilized country. The law judges what should be allowed to produce belief in the jury, and, for the reasons which have just been assigned, it will not allow evidence of one crime to be used as evidence of another. Though the prisoner was convicted of being a traitor, the highest crime which can be committed in any state, that circumstance could