Imágenes de páginas

is recollected, the illustrations which have been offered are either in themselves absurd, or are against the argument of the pannel, and must be classed with moral, and not physical exertions.

The obligation in the oath is, to employ moral and physical strength, as the case may require that is, such moral strength, as the case may require, and such physical strength, as the case may require.-It is thus clear, that the terms of the oath do not bear a limitation to that innocent sort of force by the criminal example of which the learned Counsel illustrated his argument. According to the clear terms of the oath, such physical strength was to be employed as the case might require, for the accomplishment of the purposes which have been mentioned. What, I ask, are we to understand-what is the legal inference from the construction I have given? It is,' that physical strength, as the exigency might require, was to be used for the accomplishment of a change in the constitution.

It is unnecessary to advert to the extreme absurdity of endeavouring to distinguish between the meaning of the words strength and force. They are certainly synonymous terms; and for the present purpose, at least, no distinction can be stated between them, either in popular or technical use. It is impossible to accomplish the alteration or subversion of any part of the constitution by physical force, without, in legal acceptation, levying war for that purpose, or compassing the King's death, or being guilty of some other treason. The application of numerical physical strength is nothing else but the levying of war. But if war be levied within the kingdom for any general purpose,-for the purpose of subverting any of the branches of the constitution, that war is understood to be levied against the King, who, being the executive, is bound to protect the other branches of the Legislature. This is the import of all the authorities, to some of which I may now direct the attention of the Court.

The first authority to which I refer is that of Blackstone, who states the law in a brief and popular form. I quote from the 4th vol. p. 81.-" The third species of treason is, If a man do levy war against our lord the King.' And this may be done by taking arms, not only to dethrone the King, but under pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances, whether real or pretended. For the law does not, neither can it, permit any private man, or set of men, to interfere forcibly in matters of such high importance; especially as it has established a sufficient power, for these purposes, in the

high court of Parliament: neither does the constitution justify any private or particular resistance for private or particular grievances; though in cases of national oppression the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the King and his people."

The next authority to which I refer is that of Foster, a book which I observe is daily cited by English Judges, as an undoubted authority. I quote from page 211.—“ Insurrections in order to throw down all enclosures, to alter the established law, or change religion, to enhance the price of all labour, 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 grievances, or for the expulsion of foreigners in general, or indeed of any single nation, being 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 clauses of levying war; for they are levelled at the King's crown and royal dignity."


The only other authority to which I am to refer, is that of a Judge, than whom none was ever more highly or more deservedly honoured during a long and splendid career. quote from the opinion of Lord Mansfield on Lord George Gordon's trial, as given in Howell's State Trials, vol. xxi. p. 643 and 644.-"There are two kinds of levying war :— One against the person of the King; to imprison, to dethrone, or to kill him; or to make him change measures or remove counsellors:-The other, which is said to be levied against the majesty of the King, or, in other words, against him in his regal capacity; as when a multitude rise and assemble to attain by force and violence any object of a general public nature; that is, levying war against the majesty of the King; and most reasonably so held, because it tends to dissolve all the bonds of society, to destroy property, and to overturn government; and by force of arms to restrain the King from reigning according to law.

"Insurrections, by force and violence, to raise the price of wages, to open all prisons, to destroy meeting-houses, nay, to destroy all brothels, to resist the execution of militia laws, or change religion, to redress grievances real or pretended, have all been held levying war. Many other instances might be put. Lord Chief Justice Holt, in Sir John Friend's case, says, "if persons do assemble themselves, and act with force in opposition to some law which they think inconvenient, and hope thereby to get it repealed, this is levying war, and treason." In the present case, it don't rest upon an implication that they hoped by opposition to a law to get it repealed, but the prosecution proceeds upon the direct ground, that the object was, by force and violence, to compel the Legislature to repeal a law; and therefore, without any doubt, I tell you the joint opinion of us all, that, if this multitude assembled with intent, by acts of force and violence, to compel the Legislature to repeal a law, it is high treason.


"Though the form of an indictment for this species of treason mentions drums, trumpets, arms, swords, fifes, and guns, yet none of these circumstances are essential. question always is, Whether the intent is by force and violence to obtain an object of a general and public nature by any instruments, or by dint of their numbers ? Whoever incites, advises, encourages, or is any way aiding to such a multitude so assembled with such intent, though he does not personally appear among them, or with his own hands commit any violence whatsoever, yet he is equally a principal with those who act, and guilty of high treason." Many other authorities to the same effect might be accumulated. I need not quote Hume, who gives a very luminous abstract of all the English authorities on the subject, and gives a summary which, in perspicuity and precision, is not surpassed by the boasted oracles of English law.

I say, therefore, on these authorities, it is utterly impossible to imagine that any change in the constitution can be accomplished by physical strength, without necessarily implying-not constructively, but necessarily implying-that it is done by force and violence. Levying war is nothing more than the application of an act which is treason. The form or mode of this act, may probably be that of levying war, to overcome or prevent resistance. It does not consist in having drums, or uniformity of dress, or the other usual appendages of warlike pomp. It does not consist in any particular kind of offensive arms, but in the application of a powerful and numerous force; and it is impossible that

strength for the accomplishment of any change in the constitution can be applied in any way, so as not to include the crime of treason, either of levying war, or of compassing the King's death, or of treason, under the statute 36. of the King. That which is accomplished by force can only be done sub specie belli, in so far as those terms have any intelligible meaning, and the same quality must characterize that which is intended or resolved to be done. I submit, therefore, that the construction given by the learned gentleman to the oath is erroneous, and that the only sound, and the only legal, and the only obvious construction of it, is that which I have stated to your Lordships.

It was stated farther, however, that, supposing a treasonable purpose to have existed, it is still necessary that it should be proved by and appear in the oath, and in the oath alone, in order to have the case brought under the If I rightly understood this plea, two things were maintained, which I own appeared to me to be inconsistent: It was first maintained, that there is a want of specification in the indictment as to the mode in which the treason contemplated by the oath was to be effected; next, it was maintained, that in this indictment, charging the pannels with administering unlawful oaths, we are not entitled to go into any proof of acts of treason said to have been committed by them, for that would be to make the proof of one crime the proof of the commission of another. These I consider to be inconsistent objections.

Whether the treasonable purpose should appear in the oath itself, to bring the case within the statute, it is unnecessary to argue, because in the present case we do not desire to go beyond the contents of the oath. But in passing, I must deny that this plea for the pannel is sound, or at all warranted by the terms of the statute.

With respect to the other objections, I must observe that from the nature of the crime which the statute has defined, you neither can require, nor can you expect, in charging it, a specification of overt acts of treason. According to the previous argument of the pannel, the prosecutor is not entitled to prove any acts of treason, if such had been actually committed, and herein lies the monstrous inconsistency of his present argument. According to my view of the case, the specification which the pannel thus alternately opposes and demands, is morally impossible.

The charge here is not for the accomplishment and completion of the crime of treason;-the charge is for the conception, the imagination of treason, sanctioned by an oath,

and so far by an overt act consisting in the administration of an oath. When a crime has not been actually committed, it is impossible to state the circumstances of mode, time, and detail of execution. When a crime has been committed, it is of course an essential mode of that criminal act, that it was accompanied by time, place, and circumstances; and when a pannel is brought to the Bar on a charge of having committed a crime, the prosecutor can have no knowledge regarding it without knowing some of the prominent circumstances of its execution. But you must all be aware, that this rule cannot apply to what merely exists in intention. Of intention here, your Lordships have evidence by the oath, and the oath is such as the statute has made it, a crime, either to administer or to take. The crime charged is the administering an oath of a certain kind, and the mode of this act is admitted to be sufficiently detailed. It is possible that when the oath was administered, not one circumstance was finally resolved upon as to the detail of the execution of the treason;-it is quite possible that no one circumstance may have been fixed on as to the mode in which it was to have been carried into effect; and no resolutions adopted as to the course of proceedings to be followed for the accomplishment of the atrocious purposes of the parties. Different plans may have existed in the minds of different conspirators;-there may have been numerous disputes on the subject:-and therefore, from the very nature of the statutory crime, it is impossible that any such detail as the opposite party require could be given; and it is enough to say that the statute has not required it. The nature of the treason which the oath bound the parties to commit is as much specified as it is possible for the public prosecutor, or for any human being, to specify. He has said, that the treason contemplated was that which consisted in compelling an alteration in the established laws by force and violence. That this would be treason, who can doubt? Whether, in the actual accomplishment of it, the criminals would have levied war against the King, in the sense in which the law uses these terms, or whether they would have compassed or imagined the death of the King, or whether both these legal crimes would have been perpetrated in the actual consummation of their purpose, who can pretend to say? To demand, that the public should divine and specify the mode in which the treason was actually to be perpetrated, is absurd and impossible, because the modes are various. To demand, that he should specify all the modes in which the intended treason ought

« AnteriorContinuar »