I am bound to perform my duty in the best manner I can; but, I confess, I feel an uncommon degree of anxiety on the subject, because, having considered it with the utmost attention of which I am capable, I am satisfied, in my own mind, that I cannot fail in establishing the propositions which I have to announce, except from a want of that talent for explanation and exposition which the subject requires.

I have to lay down certain propositions; in supporting which, I hope, that though I shall have occasion to refer to several authorities, I shall not have occasion to quote them at such length as to occupy very much of your time; and I am the more disposed not to encroach upon it, as your attention must be exhausted from what have heard, and as I have the disadvantage of addressing you after so able and luminous a speech as that which Mr. Cranstoun has just delivered.

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I am first to maintain, what I think will be conceded, that, whether this oath do or do not bind to the commission of treason, is a question of English law.

I shall next state to your Lordships, and I think I shall satisfactorily prove to you, that it is a maxim, in the law of England, that an act of high treason cannot be tried as a felony.

I shall then state to your Lordships, that this applies still more strongly to cases tried in Scotland-for, whereas, in England, a case amounting to high treason upon the evidence, cannot be tried as a felony, and no judgment can be given upon such a case, but the person accused is entitled to be acquitted upon such a trial, although the form of trial in cases of felony do not differ so essentially from that in cases of high treason as it does in Scotland-how much more strongly must this apply in Scotland, where the whole form of your procedure in cases of treason is distinguished by a positive statute, from your forms in trials for other crimes. By a positive statute, your Lordships, sitting as you are now doing, cannot try an offence which amounts, according to the statement of the public prosecutor, to high treason, by the machinery which you are now employing-you cannot try it on the indictment of the Lord Advocate. You can try it only on the indictment of a grand jury, and by that course and form of proceeding which would be pursued by the Court of King's Bench in England.

Then, I shall submit, that this is your situation at present, unless it can be shewn that there is any thing in this act of the 52d of the King, which has abrogated that rule of the common law, and repealed that statute; and, I think, I shall satisfy your Lordships, that there is nothing

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in this act of Parliament that does so abrogate the common law, or repeal that statute. There is nothing in this act from which we can infer, that it was the intention of the legislature to do either on the contrary, it is impossible to infer from this act any such intention without the greatest absurdity; and the greatest injustice and wrong would be introduced by so doing.

If I make out these propositions, I shall succeed in shewing to your Lordships, that this is not a relevant indictment; and that it is not a relevant indictment, not only because it does not sufficiently specify and charge any treason, but because the public prosecutor is in this dilemma, that, if it does, he cannot try the offence in this shape. I desire him to take his choice of the two propositions. He cannot maintain both. Either this which the oath bound to do is charged as treason or not-it is either a relevant charge as such, or not. It will not be said it is relevant to charge it as treason without words, which in their ordinary meaning amount to a description of some treason. Then, I say, if they do not amount to a description of a treason, the libel is irrelevant, upon the grounds which my friend Mr. Cranstoun has stated. If, upon the other hand, the prosecutor says, that the specific treason is here sufficiently alleged and set forth, I desire him to say, by what law he can try this offence in this Court, by this mode of proceeding?

Without going over again the argument of my learned friend, which I should only weaken by attempting to resume it, I must, in supporting my own views of the case for the sake of the argument, suppose that he has failed in his proposition. My intention is to direct you to the other branch of the dilemma. If this indictment does imply a charge of treason, although the specific words which we say ought to be in the indictment are not used; then we ask, What sort of treason or overt act of treason do they charge? It is said, that this oath was administered to a great number of persons, to many hundreds or thousands-that it was traitorously administered to them-and bound these many hundreds of persons to commit treason, "by effecting, by physical force, the "subversion of the established government, laws, and consti"tution of this kingdom; and especially by obtaining annual parliaments and universal suffrage, by unlawful and violent "means." If this means any treason whatever, it can only mean the compassing and imagining the King's death; or the treason mentioned in the 36th of the King-levying war, in order to compel his Majesty to change his measures, or to constrain one or both houses of Parliament. Now the com

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passing and imagining to levy this war, is, by the act of the 36th of the King, declared to be a treason. The administering this oath, then, to give the Prosecutor his own way, would be an overt act of such compassing, or of compassing the King's death. If So, it is an overt act of treason, and cannot be tried as a felony. (I would request of you, my Lords, if I fail in any part of the argument which I am maintaining to you, to make myself intelligible, to intimate to me when I do so; for I wish to take up as little time, and to render myself as intelligible as possible.) I say it is a known rule of the law of England, that felony merges in treason-that treason drowns felony. If a person is accused of felony, and, upon the evidence, it comes out to be an overt act of treason, he must be acquitted upon that trial. He cannot, by the law of England, be convicted upon an indictment of felony, where the 'crime amounts to an overt act of treason.

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This is a maxim in the law of England, of so ancient a date, that it is difficult to find it in the more modern authors, in other than general terms, because it is a proposition which nobody has ever ventured to dispute. If we turn to the YearBook 31. Hen. VI. we find that the greater offence drowns the less-And this is a general maxim. For instance, trespass is extinct in felony. Suppose goods are taken, and an action of trespass is brought for them, if, upon the evidence, it appears the crime amounts to felony, the prisoner must be acquitted of the trespass, because the felony drowns the trespass the trespass merges in the felony; and he must be acquitted of the trespass and reindicted for the felony. The Year-Book 31. Hen. VI. 15. quoted in Broke's Abridgment, voce trespass, page 145, says, " It was agreed that in case of a robbery, the person robbed shall not have an action of trespass for the goods, for the trespass is extinct in the felony, et omne ma"jus trahit ad se minus." Where an action of tresspass was brought by a husband for beating his wife, whereby she died; the action was found not to lye, because the crime was a felony. Huggin's case, 4. Jac. I. reported in 2. Roll's Abridgment, page 557. The policy of the law is stated by Mr. Justice Jones in Dawkes v. Coveneigh, Style's Reports, page 247. "If the par"ty robbed may have his election, either to indict the felon, or to have his action of trespass; this would prove very dangerous." And the Chief Justice Roll gives the same reason. Many felonies would thus be smothered. By the law of England, your Lordships know, these are popular actions. Where there are popular actions, persons, from many motives, would indict for the lower offence. But the law says, No. If the evidence shew that a greater sort of offence has been

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committed than that which is charged, the person tried must be acquitted on the indictment for the lesser offence, and he must be re-tried for the greater offence; and the prosecutor shall not have power to choose the lower, so as to dispense with a trial for the higher.

You are aware, my Lords, that treason, by the law of England, is not confined to what we commonly call treason. It consists of two sorts, high and petit treason. Petit treason is the murder of a husband by his wife, or a master by his servant. It has been decided, where, upon an indictment of murder, it came out to be a case of petit treason, that the person must be acquitted on that indictment, because the felony is merged in the petit treason. If this is the case as to petit treason, still more must it be so as to high treason.

I am aware that Mr. Justice Foster (as to whose opinion I shall speak presently,) doubts the authority of the case in which this was said to be determined; and, he says, that, because petit treason and murder are of the same nature, and petit treason is considered in law only as an aggravated species of murder, the murder shall not be merged in the petit treason. But what does he say he would do himself? Does he say he would direct a verdict of guilty of murder on such indictment? He says, that he would not direct an acquittal, for fear the acquittal of the petit treason might be pleaded against a new indictment for murder; but that he would discharge the jury of the indictment altogether, and would direct a re-indictment for the petit treason; for that a prisoner is entit led, when treason is charged against him, to the forms and privileges of a treason trial, his peremptory challenges, two witnesses, &c. &c. And, therefore, says the Judge, I would discharge this indictment, and I would again direct an indictment for the petit treason.

There is not a case in the books, of a verdict having been pronounced for murder when the facts amounted to petit treason. I have not found such a case alluded to; but I find the above opinion of this Judge as to the case of petit treason, which is only an aggravated species of homicide. When other authori ties say, generally, a person charged with the lower crime should be acquitted, that Judge says, he would, in the case of petit treason, discharge the jury. He does not say he would desire him to be acquitted for the reason I have stated; but he says, though the two crimes are the same in substance, petit treason being an aggravated species of murder, he would not put the culprit to his trial where the prosecutor ought to have indicted for petit treason, and the prisoner is entitled to that mode of trial which is appointed for every species of

treason.

All these arguments apply more strongly to high treasori, than to petit treason. It is true, in high treason, the penalty is greater the forfeitures are different. But so they are in petit treason. In the case of a woman, the judgment in petit treason was, that she should be burned to death. But the principle is, that on account of the odiousness of the crime of high treason, the attention of government to put it down is more excited, than with regard to other crimes; and, in proportion as this operates on one side to increase the penalty, the law watches over the prisoner on the other, and gives him peculiar privileges in his trial.-And the judges hold themselves bound not to balance between the two classes of cases-they hold themselves bound to execute the law as it stands; and they think that the law has judged wisely, and that it is a great advantage to the prisoner that he should be tried according to the mode of trial appointed by the law, though it be attended with the disadvantage of greater punishment in the event of his guilt being established.

On this subject, I think, I need do nothing more than shortly cite some authorities to your Lordships. First, I shall cite a case where there was a trial for murder; and the circumstances having amounted to petit treason, petit treason, the prisoner was acquitted, and a trial was ordered for the petit treason. That case is mentioned in the State Trials, vol. 6th, in the case of Cooke and Woodburne. It was a case tried in 1712, and cited by the prisoner Cooke in his defence. It was said to have occurred at the assizes; and on a conference with all the Judges, an acquittal was directed, and the culprit was re-indicted for petit treason, convicted, and executed. I need go no further to shew, that if the facts had amounted on an indictment of murder, or other felony, not to petit treason, but to high treason, an acquittal must have been directed. In a case in Dyer's Reports, page 50, a. a general pardon having been granted, of all treasons and felonies, with the exception of murder, it was found, that petit treason was not within the exception, but within the pardon.

I observe that the counsel for the Crown, in the case of Cooke and Woodburne, three of them very learned persons, admitted that the case cited, as decided in 1712, was good law. They admitted, that the killing a husband or a master could not be tried on an indictment of murder, because a different and dis-' tinct offence. The Chief Justice did not deny, but seemed to admit this as good law. Whether that case had been so decided, was a question of fact; and you will observe that this case of Cooke and Woodburne, in which it was cited, was tried in 1721, between eight and nine years after the opinions of