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all the Judges in the case cited, were supposed to have been given; so that it is not easily conceivable, that if there had been any error in point of fact, it would not have been noticed. But, having mentioned this case, it is proper to take notice of a passage in Mr. Justice Foster's Second Discourse on Crown Law, page 326. It is as follows:
"While the case of the King against Swan, reported before, "was depending, and before the second bill was preferred, a "question was made, whether Swan could be convicted on the "indictment for murder, if it should come out in evidence that "he was servant to the deceased at the time the fact was con"trived or committed? and, consequently, that this offence was "petit treason.
"There is a case cited, (6 State Tri. 224.) in the printed "trial of Cooke and Woodburne, which, (if such case there ever "was) hath, as far as the authority of it goeth, determined that question. At the summer assizes at Dorchester, 1712, a wo"man was indicted before Mr. Justice Eyre, for the murder of "another woman; upon evidence it appeared, that the person "murdered was her mistress, which made the crime petit "treason. The Judge directed this matter to be specially "found; and, upon conference with all the Judges, it was "holden, she ought to be acquitted upon this indictment, "as she accordingly was, and was afterwards indicted for petit 66 treason, and convicted and executed. This case is not to "be found in any report printed or MS. that I have met with, or heard of; nor have I, upon strict enquiry, met with any "footsteps of such case, among the minutes of proceedings on "the crown side, in the county where the case is supposed to "have arisen, though the minutes, from 1708 to 1722, have "been carefully searched. For these reasons, and what is sug"gested in the marginal note, I conclude that no such case ever "existed. Lord Chief Justice Hale is very full and express on "the other side of the question: That a person who is guilty of "petit treason may be indicted of murder, for it is a species of "murder; and a pardon of murder pardoneth petit treason."
I quote this passage for the purpose of shewing, that the learned Judge's only difficulty was, that petit treason was a species of murder; but he never questioned that, generally speaking, any minor offence should merge in the greater one
Then he goes on to say, "But though I am satisfied, "that the law considereth petit treason and murder as one offence, differing only in circumstance and degree; yet, "whether it may be advisable to proceed, upon an indictment for "murder, against a person plainly appearing to be guilty of petit.
"treason, is a matter that deserveth great consideration, and probably determined the Attorney General to prefer a fresh "bill for petit treason in Swan's case; for, though the offences are, to most purposes, considered as substantially the same, yet, as there is some difference between them with regard to "the judgment that is to be pronounced upon a conviction, and "a very material one with regard to the trial, a person indicted for "petit treason being entitled to a peremptory challenge of 35, I "think, if the Prosecutor be apprised of the true state of the "case, as he may be, if he useth due diligence, he ought to "adapt the indictment to the truth of the fact.
"But if, through a mistake on the part of the prosecutor, or through the ignorance or inattention of the officer, a bill be "preferred as for murder, and it shall come out in evidence, "that the prisoner stood in that sort of relation to the deceased "which rendereth the offence petit treason, I do not think it by "any means advisable, to direct the jury to give a verdict of acquittal; for a person charged with a crime of so heinous a "nature ought not to have the chance given him, by the Court, "of availing himself of a plea of auter foits acquit. In such a 66 case, I should make no sort of difficulty of discharging the jury "of that indictment, and ordering a fresh indictment for petit "treason. In this method the prisoner will have advantage of "his peremptory challenges, and the public justice will not "suffer. And, on the other hand, in case of an indictment "for petit treason, if it be proved, that the defendant killed "the deceased with such circumstances of malice as amount to "murder, but the relation of servant, &c. is not proved, I have "no sort of doubt that, on such an indictment, the defendant may be found guilty of murder, and acquitted of the treason, "for murder is included in every charge of petit treason, fe"lonice proditorie, &c. ex malitia præcogitata MURDRAVIT."
Upon this it may be observed, first, that although Judge Foster considers murder and petit treason offences of the same nature, so much so, that on an indictment for petit treason, a verdict may be found for murder, yet the greater advantages afforded by law to the prisoner on the trial-the peremptory challenge of 35 of the jury-the requiring two witnesses-and other circumstances entitle a prisoner to be indicted for petit treason, if his offence actually amount to that description; and if it do amount to that description, and so comes out in evidence, but through mistake, or ignorance, or inattention of the prosecutor, the indictment is preferred as for murder, the prisoner is entitled to have that indictment dismissed. Secondly, If petit treason were to be considered as a distinct and higher species of offence, it is clear, in Judge
Foster's opinion, there would be no doubt whatever but the prisoner, under such circumstances, must be acquitted.
But there are abundant authorities to shew that this has ever been the doctrine of the law of England. Thus, in the Year-Book, 3. Henry VII. 10. where there was a question about an accessary in the harbouring one guilty of treason, (Your Lordships know, that in felony there may be accessaries by the law of England, but in treason they are all principals,) Chief Justice Hussey says, "There can be no accessary in treason; the receiving a traitor cannot be only a fe"lony, but is treason, et in casu ibidem."
Thus, Saccombe's case, 33. Henry VIII. is thus reported by Lord Chief Justice Dyer. (Dyer's Rep. 50. a.). " A "woman had poisoned her husband, which offence is made trea"son about the 31st Henry VIII. (22d Henry VIII.); and "by the general pardon granted by Farliament in 32d Henry " VIII. this offence was pardoned. pardoned. Now the son had brought "an appeal against the wife; the question was, whether this ap"peal lies, and some thought that because the offence is made "treason, it mergeth each lesser crime as the crime of murder, "which was before at common law, and so the offence is not pu "nishable as murder, but as treason, and so no appeal lies. "But some were of a contrary opinion, &c. But the opinion "of the Judges was, that the appeal was not maintainable." And the Reporter refers to the case 3d Henry VII. above stated.
And in Coke's Report in the cases of pardons, 29th Elizabeth, (6. Coke's Reports, 13. b.) it is laid down, "If murder "or petit treason be made high treason; thereby the murder or petit treason is extinct, for high treason doth drown every "less offence."
And Judge Foster, whose opinion that murder is not merged in petit treason I have already noticed, referring to Saccombe's case, which I have just read to your Lordships from the report of my Lord Chief Justice Dyer, and denying its authority to prove that murder is merged in petit treason, expressly founds on it as an authority to shew that all inferior felonies are merged and extinguished in the offence of high treason; and that when an offence amounts to high treason, a trial for felony is barred.
I read from the same dissertation I have already quoted. Foster's Crown Law, p. 325.
"There is a case in Dyer," says the learned Judge, "which "has been thought to favour the opinion, that the crime of "murder is merged in petit treason; and that a pardon of "treason discharged it, notwithstanding the exception of mur
"der; but that case proveth nothing like it. A wife, about "the 31st Henry VIII. poisoned her husband. Then came a "general pardon, by which treason was pardoned, but with an "exception of wilful murder. The heir brought an appeal of "murder against the wife, and it was adjudged that the appeal "did not lie. This case does not prove that murder is merged "in petit treason, but that both murder and petit treason were "merged and extinguished in the offence of high treason; for "at that time, by virtue of the 22d Henry VIII. all wilful poisoning was high treason, and being so, the appeal, not being saved by the act, was barred whether the treason had "been pardoned or not."
I mention these cases to shew, that the doctrine of the law of England is, that the minor offence merges in the higher offence. I need not trouble your Lordships with further authorities upon this subject. I think what I have stated is sufficient to prove the general proposition, that, by the common law of England, all felonies merge in the offence of high treason; and that an act, amounting in its circumstance to an act of high treason, cannot, by the law of England, be tried as a felony.
But I would now beg to call your attention to this, which I think very material in the present case; that the argument is stronger in Scotland, under the act of Queen Anne, than in England under the common law. You know, that by the act of Queen Anne, which was passed after the Union, and under powers reserved in the Act of Union, 7th Anne, c. 21. the whole law of England, upon the subject of treason, has been imported into Scotland. The mode of trial has been imported-and on this subject there are two clauses to be adverted to. One is permissive to the Queen, and her heirs, who may direct a commission of oyer and terminer, to try treason in Scotland. The other is imperative, and requires your Lordships in this Court to inquire of all treasons, in the same manner as the Court of King's Bench. The third section enacts, That the Justice Court of Scotland shall have full power and au"thority; and are hereby required to inquire by the oaths "of twelve good and lawful men of the county, shire or stew
artry where the respective courts shall sit, of all high treasons "and misprisions of high treason committed within the said "county, &c.; and thereupon to proceed, hear, and determine" (that is, they are required to proceed, hear, and determine)
the said offences whereof any person shall be indicted before "them, in such manner as the Court of Queen's Bench, or the "Justices of Oyer and Terminer in England, may do by the "laws of England."
So that here is a positive statute requiring this Court to proceed, and determine, according to the forms of the King's Bench in England. And, it will be conceded, that unless there are words in this act of the 52d of the King, sufficient to repeal the former enactment, it is not competent to this Court to inquire into cases of treason, in any other way than the courts of England would inquire. The words are imperative. The first clause might be interpreted, as if a trial might take place according to the ancient forms; but as to the second clause, there can be no doubt that it demands a contrary interpretation.
It were a waste of time to say a word further upon the subject, to prove to your Lordships that the rule of the common law of England as to trials for treason, and the regulations of the statute as to such trials in Scotland, are as I have stated. And it would be a still greater waste of time to attempt to show, after this statute of Queen Anne, that if any treason appear upon the evidence, you cannot proceed otherwise than according to the forms of the law of England, in cases of trea
We come, therefore, to this simple question. Does this act of the 52d of his Majesty, on which the indictment is laid, amount to an abrogation of that rule of the common law of which I have spoken, or to a repeal of this act of Queen Anne? But it is a rule, that acts of Parliament shall be interpreted according to the rules of the common law; and my Lord Coke says, that, in particular cases, the words of an act shall be restricted in order to bring them within the rule of the common law. There is no necessity for that here, where there are two acts of parliament, and no words in the second repealing the first. If the words of the second can admit a construction leaving the former free to operate, it is necessary so to construe it. It is necessary for the crown counsel to shew, either that there are words in the 52d of the King, that repeal the act of Queen Anne, or that that act of the 52d of the King cannot receive effect without such virtual repealthat the evil which the act was made to control and remedy, could not be controlled and remedied, unless you were to interpret the act as repealing so much of the act of Queen Anne.
If I can shew, there is nothing in this act of the 52d of the King, in its fullest and most ample interpretation-in the purposes it embraces, or in contemplation could embrace-nothing that in the least interferes with the act of Queen Anne, or the regular mode of your inquiry in any case of treasonthen you are bound to give to this act of the 52d of his Majesty, no other interpretation than is consistent with the