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required than an overt act, by which this imagining is inferred or proved.
As to the next species of treason, that of levying war against the King, I do not mean to give an opinion upon the question, whether the mere imagining of it, as proved by an oath, or by any thing short of the total or partial execution of the act of levying war, would be held to fall under the statute. I am not here called upon to offer any opinion on such a question. But you will see by and by the reason why I have called your attention to the circumstances which have now been stated.
On the supposition, that by the former and existing law it was doubtful whether in the general case the mere intention, or imagining, or compassing to commit any treason, when not reduced into action, is in itself treason, the statute of the 52d of the King was introduced, the object of which was, to bring the intention of committing treason, when so far matured as to be rendered obligatory by an oath, into the class of crimes punishable with death. By the previous law, it might perhaps be doubtful whether such criminal intention could in certain cases infer a capital punishment. But when the intention is approximated to execution by an oath, and is attended and proved by such an overt act, when it is accompanied by an oath to commit and conceal it, the Legislature has enacted, that it shall be punished as a capital crime. That the act described so distinctly in the statute is a great offence, an offence from which the greatest danger to the public may be apprehended, and by which the deepest depravity of heart in the perpetrator is proved, no man will venture to dispute. I can see no reason why the highest sanction should not be affixed to the commission of it. I submit that all this is as clear as the sun, and that neither the Legislature nor the public prosecutor can be charged with any design of introducing constructive treason, by demanding the infliction of a capital punishment on such a crime.
Taking that view of the objects and purposes of the statute, and considering it with reference to the principles and system of the law of treason, and with reference to the general principles of criminal jurisprudence, your Lordships will be pleased to attend to the terms which are used. every person who shall, in any manner of way whatsoever, administer, or cause to be administered, or be aiding and assisting at the administering of any oath or engagement, purporting or intending to bind the parties taking the same to commit any treason or murder, or any felony punishable by
law with death, shall, on conviction thereof by due course of law, be adjudged guilty of felony, and suffer death as a felon, without benefit of clergy." It is plain, in looking to the terms of the statute, that it did not contemplate an act which is done, but one which is to be done; which exists only in intention, but which, at the same time, exists in a matured intention; an intention passing from the heart of one man to the heart of another, and attended by the obligation of an oath for the concealment and accomplishment of the imagined crime. And sure I am, that it is impossible for any one taking this view of it not to be of opinion, that the act defined is not merely a statutory crime, but an act which must be felt and confessed to be a crime by the common sense and universal feelings of civilized man. At all times and in all places it is a crime, and in no place or country is it more criminal than in Scotland, where there exists, in many districts of it at least, a religious feeling amounting almost to fanaticism; and where a union of political and religious passions must create in the vulgar mind a deeper, darker, and a more atrocious character.
Holding, as I do, with a confidence not inferior to that which has been expressed on the other side, the interpretation of the statute, as well as its application to the previous law, and its necessity in the circumstances and character of the country, on which I have insisted, to be correct, I solicit your attention to the first, and, in my mind, by far the most important objection that has been made, as to the mode in which the libel is laid. That objection consists of two points in law, as I understand it. In the first place, that the oath taken does not, upon a fair construction of it, amount to the offence stated in the major proposition; or, in other words, to the statutory offence. And then, supposing it did, it is alleged, secondly, that in the indictment there is a want of specification of circumstances and detail of the manner in which the intended treason was to be committed.
I call your attention, in the first place, to the terms of the oath, for I have no hesitation in saying, that if this oath do not of itself, and in fair and honest construction, amount to the crime laid in the major proposition, there is no case before you. For I have no intention, (I disclaim it, and no one can with truth impute it,) to press a severe or harsh construction of the oath. The terms of this oath have been often read to you, and, however disagreeable it may be to repeat that which you have so often heard, the importance of the case must be my apology for again reading its words, and subjecting it to a critical examination.
I may here state, that in construing the oath there can be little room for difference of opinion as to the principle on which you ought to proceed. I am willing to admit, that the pannel at the Bar is not to be ensnared by any subtle, recondite, and remote interpretation of the oath, by any interpretation different from that which an ordinary man would put upon it, on reading it from beginning to end. But I maintain with equal confidence, that the pannel cannot escape from the law, and the public safety is not to be endangered, by a construction in his favour, which is recondite or subtle-by an interpretation of the oath, which it plainly could not bear in his own mind, and which plainly he knew it did not bear in the mind of those to whom it was administered. Between these two extremes, it is your peculiar province to strike out the middle course, and to adopt that just and rational interpretation which will not only command the acquiescence, but the approbation of the public prosecutor.
What does the oath say?" In the awful presence of God, I, A B, do voluntarily swear, that I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every description, who are considered worthy of confidence." I concur with my learned friend in saying, that this part of the oath, if taken by itself, is perfectly innocent. The oath goes on, " And that I will persevere in my endeavours to obtain for all the people in Great Britain and Ireland, not disqualified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation, and annual Parliaments; and that I will support the same to the utmost of my power, either by moral or physical strength, as the case may require: And I do further swear, that neither hopes, fears, rewards, or punishments, shall induce me to inform on, or give evidence against, any member or members, collectively or individually, for any act or expression done or made, in or out, in this or similar societies, under the punishment of death, to be inflicted on me by any member or members of such societies. So help me God, and keep me stedfast." Two questions have been stirred on this part of the oath. The Counsel for the pannel has maintained two propositions. First, That the words " support the same" mean, that the oath-taker was to support annual Parliaments and universal suffrage, after these mighty improvements were established by regular and constitutional means. And, second, That even if the words support the same mean, to support the endeavours to obtain these objects, yet the physical
strength to be used was capable of being used in a manner not illegal.
On the first point, your Lordships have to consider what is here understood by the word same. What is the antecedent to this pronoun? I submit, there are only two ways of giving a sound construction of this word. It must either apply to the whole of the previous branch of the sentence, or to a part of it. If the first is adopted, and if it be held to embrace the whole of the previous part of the sentence, and if the antecedent be considered as thus extensive, then the construction put upon it on the other side will be destroyed; for if the word "same" embraces all the previous part of the sentence, it includes both the use of physical force in obtaining annual Parliaments and universal suffrage, and its employment in maintaining these objects after they are accomplished. This is a mode of construction so perfectly fair, that the pannels cannot object to it.
But this is not the construction which a perusal of the oath naturally dictates. It is clear that by it the obligation to accomplish the wished-for changes by physical strength was contemplated, and that this was the sole purpose of the oath. I maintain, that taking the whole of the oath together comprehending the obligation to concealment, it is impossible to consider it without concluding, not by a remote and distant construction, but by direct, rational, necessary inference, that the parties had in their minds a criminal accomplishment of their designs, and the moment criminal intention is granted to me, it follows that there can be no criminal accomplishment of this design, but such as would be treason. The reasonable, the fair construction, that which obviously must have been in the mind of the giver and taker of the oath, is, that the word same had no other application than that which I have stated, viz. to bind to the use of physical strength for the attainment of the object. This is the correct, grammatical construction, pointed out, not only by the juxtaposition of the words, but by the general sense of the whole passage and of the whole oath; and it is impossible to put any other interpretation upon it, without sacrificing the public safety, and public law to a construction, which, I say, is forced and subtle. I do not dwell longer on this point, because truly it lies in a nut-shell, and if, by merely stating it, I do not shew that I am in the right, I despair of doing so by any length of argument.
Now, your Lordships have to consider, whether, supposing it were established that the obligation in the oath is to support endeavours to obtain annual Parliaments and universal
suffrage by physical strength, the act which was thus meditated, does, if accomplished, amount to treason. That such purpose would, if accomplished, have constituted treason, is proved by the concurrent testimony of all lawyers ancient and modern. The essence of treason consists in the application of force to accomplishment of an alteration in any general law. How did my learned friend get out of this dilemma? He maintained that physical strength for the accomplishment of any change in the laws of this kingdom, might by possibility be exercised without committing treason; and this he illustrated by supposing the case of the Speaker of the House of Commons being forced by threats and violence to consent to a bill for the abolition of the House of Lords, or of any of the branches of the constitution, which bill having passed the House of Lords, had its fate dependent on the Speaker's casting vote. That whimsical case can scarcely be called a case in illustration; but if it were necessary for me to enter into that supposed case, I would say without hesitation, that here was treason, not merely under the Act of the 36th of the King, but under what I may call the previous common law of the land. Many decisions might be referred to, to establish this. But I have no occasion to enter upon such an inapplicable question. The other instances of the possible exertions of physical force in the accomplishments of the purposes contemplated by the pannel and his associates are utterly absurd. It is said, that physical force may be exerted in the carrying of messages, in the erection of hustings, in the keeping off the crowds, and in various other ways which are all innocent, and which are all conducive to the attainment of the objects in view. I contend, that in these illustrations the Counsel for the pannel forget or overlook the distinction between the terms moral and physical, as employed to characterize human action. When a man delivers an oration, he is understood in common language to exercise his moral power or strength. But my learned friends must admit, that some physical force or strength is also at the same time exerted. To make the pen with which the political orator is to write, to carry the bench from which the political orator is to declaim, to keep off the crowd with which the political orator would otherwise be incommoded, are all actions subservient to the moral powers which are to be exerted. It is impossible to deny this without confounding the distinctions between terms moral and physical. No moral power can be exercised by man without physical exertion, but when the distinction to which I have adverted