Imágenes de páginas

his defence, the Court will not oblige the pannel to answer without his getting a full and particular statement of the charge against him.

I come next to the argument maintained on the import of the oath. It is asserted, that an oath in certain terms was administered by the pannel. I do not profess to understand the precise meaning of this supposed oath. It is rather loosely and indefinitely expressed. To understand it precisely is, however, not absolutely necessary to the consideration of the question before the Court. Whether this be a lawful oath, is not the question. The oath may be extremely wicked, and perhaps there is no one who now hears me who does not think that there was a bad intention in it. But that is not the question before your Lordships. The question is, Whether that oath amounts to an obligation to commit high treason? Where a man is indicted for the crime of murder, the question is not, Whether he has been guilty in other respects? whether he has committed a robbery or any other crime?—and he has only to answer to the indictment for murder. The question here is, Whether the oath did purport and intend an obligation to commit high treason? For the oath is not said to be an obligation to commit murder or other felony. It is alleged to be an obligation to commit treason, and to that allegation the question is confined.

The averment of the public prosecutor upon this point is expressed thus in the indictment," 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."

Mr Cranstoun, in his excellent speech, completely demonstrated the futility of this averment, both in its form and in its substance; but it appears to me that an argument much less complete and powerful would have been quite sufficient in such a case. For can it be possible to sustain an indictment alleging, with so little specification, an obligation to commit treason? Who does not know that there are a great variety of treasons distinguished from each other by difference of species, in the same manner and to the same effect as other crimes, which are known each by its species, and so distinguished from other crimes which do not belong to that species? Yet the indictment contains nothing to mark the species of treason which was to be committed. It appears from his words, that the prosecutor wishes to charge the prisoner with a delinquency that has a relation to some

treason, but that is all. His meaning goes no farther; and such is not a legal meaning when expressed in an indictment, as the substance of a charge to be tried. Indeed, it is so indefinite, that I do not understand what it really imports. Clearly it does not sufficiently describe any known treason. It seems to point at a treason to be committed by levying war. But is there any word about levying war in the indictment? Not one syllable; and yet it is acknowledged by every authority, from Coke downwards, that where a man is tried for levying war against the King, the levying of war must be specially set forth in the charge; and however brief and general our neighbours may be in drawing their indictments, (and they are more so than we) this specification is required, that the parties have conspired and actually engaged in levying war. (Mr Clerk here referred to Lord Coke and Sir Mathew Hale, with some observations relative to a charge of levying war.)

All this shows, that if in the present case the treason was to be committed by levying war, that species of treason should have been set forth. But in this indictment, though the oath is set forth, and certain words are used, intended as an averment of its criminal tendency, the averment is in terms so vague and general, that it cannot be gathered from them what the prosecutor means as to the species of treason which the prisoner had in view.

Thus the meaning of the oath, whatever it may be, is not sufficiently charged in an indictment proceeding upon the statute 52. of the King. And though an exposition of its actual meaning may be attended with difficulty, (perhaps no certainty can be had in expounding it), it is easy to shew, that it cannot be regarded as a treasonable obligation, however objectionable in other respects your Lordships may think it. In considering this obligation, I shall lay aside for a moment two circumstances that are immaterial to the question, Whether it is an obligation to commit treason?— one is, that it is an oath another, that it binds to secrecy ; for these circumstances, though they are of an aggravating nature, do not make the obligation more or less treasonable. As an engagement may be treasonable, without being in the form of an oath, so an engagement may be confirmed with an oath without being treasonable or criminal at all. In one remarkable transaction of this kind, an oath when proposed was rejected by the most determined of the conspira


No, not an oath.

what other bond.

Than secret Romans, that have spoke the word,
And will not palter.-

The nature of a conspiracy is the same with or without an oath, though an oath may be an aggravation of its wickedness. In the question, whether the engagement was to commit the crime of treason, I may therefore lay out of consideration the circumstance that it was in the form of an oath. Again, an oath of secrecy may be wicked, even although the intention of the persons who take it is innocent in other respects; and it will not make an engagement or obligation treasonable or otherwise, that the parties to it were sworn to secrecy. The question as to the true nature of the obligation, as being treasonable or not treasonable, evidently cannot depend upon the secrecy to which the parties were sworn. The form of an oath, and an oath too of secrecy, may and will greatly aggravate the offence that is committed by entering into any conspiracy, whatever its illegal object may be. But neither the oath itself, nor the obligation of secrecy, will make that treason which is not treason, nor change an obligation to commit any illegal act or crime, in itself not treason, into an obligation to commit the crime of high treason.

Keeping these important considerations in view,-that an engagement may be very criminal without being treasonable, that the intervention of an oath does not make it treasonable, and that even an oath of secrecy cannot have the effect to change a crime, how wicked and dangerous soever, into high treason, if the crime is not in itself high treason, but a crime of another character and description, I shall offer some remarks upon the terms of this oath. And here I must repeat, that the oath may admit of no certain or precise construction. It may be understood in twenty different senses by twenty different persons. Perhaps no two men would agree with each other as to its precise meaning. But my present task is not to show the precise meaning of the oath, but a different and an easier task, namely, to shew that it does not import an obligation to commit high treason. For this purpose I shall offer a very few remarks upon it.

Nothing can be known of the nature of this engagement, but from the words of it. The party binds himself by an oath, and the first part of his obligation is expressed in these words: "That I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every

description, who are considered worthy of confidence; 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 twentyone, with free and equal representation, and annual Parliaments." The purposes here expressed are, I presume, innocent of treason, though it would not be easy to tell the precise meaning of the words, and it is evident that they have no precise meaning. On the contrary, they are so extremely vague and indefinite, that every person taking such an oath seems to be at full liberty to put his own meaning upon it, without being at all exposed to the reproach of refusing to fulfil his obligation. Universal suffrage and annual Parliaments are very naturally supposed to have been the objects in view; but still there is nothing in the engagement itself, nor in the manner of expressing it, that is treasonable or even illegal in any respect. If the obligation had stopped with the words to which I have just referred, a prosecution for administering a treasonable oath would have been utterly absurd. But the obligation proceeds with other words, which are supposed in the indictment to be treasonable," and that I will support the same to the utmost of my power, either by moral or physical strength, as the case may require." These words are the foundation of this indictment, and the material, if not the only question, as to the relevancy, depends upon their meaning, or rather upon the question, whether they admit of no other meaning or construction but one, the meaning alleged by the prosecutor, who argues, that they purport and intend to bind the party taking the oath to commit the crime of high treason. It is to be considered, whether the words have that treasonable meaning, or if that is not their meaning, it is evidently of no consequence what they mean.

The words of the oath now under consideration binds the party to support the same; and there has been some argument as to the meaning of supporting the same, as the words occur in this part of the oath. It was said for the prisoner, that when taken along with the previous words of the oath, the meaning of the whole is, that the party should persevere in his endeavours, and in particular his endeavours to obtain annual Parliaments and universal suffrage, and also to support the same, namely, the annual Parliaments and universal suffrage, when obtained and recognized by law. According to this construction, the oath intended any thing but treason. It was to support a legal establishment when

it should be obtained, and not even to support an attempt, though legal, to obtain a change of the existing laws. And this view of the oath seems to be perfectly well founded. On the one hand, there is an incongruity in saying, that the party will support his own endeavours; and, on the other, the expression," support the same," is a relative that can only apply to the last antecedent, unless it appears from the grammatical construction, or from the meaning of the context, that the relative necessarily applies to former antecedents. But that is not the case here. There is a disjunction, not only in the sense, but in the grammatical construction, of the subject of annual Parliaments and universal suffrage, from the previous part of the oath. The more natural construction of the obligation to support the same is obtained, therefore, by referring it to a support of the wished-for changes when recognized by law. And there is another consideration, which leads to the same determination of the question. There are many rules for the interpretation of words; but the great rule of interpretation in the case of a criminal charge is, that in case of doubt, that construction which is most favourable to the accused must be adopted. And if the prisoner is entitled to the benefit of the rule I have just mentioned, I cannot see much difference between the interpretation offered on his part, and that which has been contended for by the prosecutor. For, whether the phrase, "support the same," shall be referred back merely to the proposed changes, when obtained, or to the endeavours to produce them, still it must be held, that the support to be given is intended as a legal, and not as an illegal support, and rather as a support of the law itself, to be appealed to in every stage of his endeavours by the person taking the oath, than as a support of illegal attempts to overturn it.

But the argument of the prosecutor is, that the clauses now under consideration do not merely bind the person taking the oath to support his endeavours at innovation, but to support the same to the utmost of his power, either by moral or physical strength, as the case may require. The prosecutor seems to think, that these words complete the treasonable obligation, and leave no doubt whatever as to the meaning, either of the party who administered, or of the party who took the oath. That there should be no doubt as to the meaning of these words, appears to be not a little extraordinary, when it is considered, that if they have any meaning at all, it is a meaning as vague, indefinite, and uncertain, as can be imagined. Yet the prosecutor thinks,

« AnteriorContinuar »