"made some words of a high nature to be but felony. The "statute of 3. Hen. VII. cap. 14. makes conspiring the "King's death to be felony; which it would not have done, "if the bare conspiring, without an overt act, had been trea❝son."

In like manner, this act of the 52d of the King, makes the administering of an oath binding to commit any treason or murder, or any felony punishable by law with death, a felony; which it would not have done, if the administering of that oath had been an overt act of high treason.

act.

And that proposition includes this other one, that if there be circumstances attending the administering which constitute high treason, then it would not be a felony within this If my learned friends will help me out of this dilemma, I shall be obliged to them. It is an implied judgment of Parliament, that the act, which it makes a felony, is not an overt act of treason; and, if an act of Parliament is produced, which makes that a felony, which would otherwise be an overt act of treason, the inference is, that these words of the act are to receive a limited interpretation. I apply this to the act of the 52d of the King, and say, that it can have reference to those instances only which are short of overt acts of high treason. The administering of an oath not amounting to an overt act of high treason, may be a felony within this act, but not otherwise, because Parliament cannot be presumed to have intended to make that felony which was treason; and no overt act of high treason can come within the act as a felony. It cannot be at once a treason and a felony.

My Lord Hale, in treating of the question, how far subsequent statutes are to be taken as interpreting the statute of Edward III., and explaining, by the judgments of the legislature, what facts are, or are not, overt acts under that statute, has this passage: "The statutes 1st and 2d Philip and Mary c. 3., 1st Ed. VI. c. 12., 23d Eliz. c. 2. making se❝veral offences felony, have this wary clause, "The same not "being treason by statute 25th Ed. III," and he says, "En"acting an offence to be a felony, is a great evidence that it "was not treason before, and a judgment of Parliament in

point; for it cannot be thought, that it would make that less "than treason, which was treason by 25th Ed. III." Where Lord Coke wishes to shew, that a particular act cannot be an overt act of treason, he thinks it sufficient to shew, that the legislature has treated it as a felony.

I fear, I have trespassed too long on your Lordships' attention. I would apply what I have stated to the present case, and I need not take up much more of your time. I

would apply this reasoning to the act of Parliament in hand; and, I maintain, that there are but these two modes of construction here-Either the act was meant to apply only to those oaths binding persons to commit treason, the administering or taking of which oaths, does not constitute an overt act of treason,-I say, either this necessary restriction of the words is to be adopted in their construction; or else, there is one other alternative, and it must be held, that the statute of the 52d of the King repealed the acts of Edward III. and Queen Anne. There is no third way of interpreting the act of parliament, and it would be an insult to the understanding of the Court, to argue which you should adopt-whether you should take that construction, which makes the act provide for the emergency for which it was passed, and leaves untouched thre statute of Anne, which was introduced for the safety of the subject-whether you shall adopt that construction which unites, with the remedy for the grievance in the view of the legislature in passing the act, the leaving the valuable provisions of former statutes untouched-or whether you shall take the opposite construction, which would repeal the whole of these laws, and would introduce, into the law regarding treason, a rule which would be oppressive to the subject, and unsafe to the sovereign, by reducing to a transportable felony an overt act of

treason.

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There is a clause in the acts of Parliament, of the 37th and 52d of the King,-the last clause of these acts,-in the following terms: "Provided also, and it is hereby declared, That any person who shall be tried and acquitted, or convicted of any "offence against this act, shall not be liable to be indicted, prosecuted, or tried again for the same offence or fact, as high treason, or misprision of high treason; and, that no"thing in this act contained shall be construed to extend to "prohibit any person guilty of any offence against this act, "and who shall not be tried for the same as an offence against "this act, from being tried for the same as high treason, or "misprision of high treason, in such manner as if this act had "not been made." I conceive, that it is from loosely interpreting this clause, that there was a notion entertained by some persons, that there is something in it which opposes the construction I have put on the other clauses. You will observe the very same clause, which is in the statute of the 52d of the King, is in the act of the 37th of the King; which last mentioned act regards the intentions of the parties, as well as the purport and intendment of the oath, and which makes the administering, as well as the taking of the oath, only a transportable felony. The clause is in the one as well as the other act.

Let us see.--It is first said, "That any person who shall be tried " and acquitted, or convicted of any offence against this act, "shall not be liable to be indicted, prosecuted, or tried again for "the same offence or fact, as high treason, or misprision of high "treason:"-let us see, if there be not a case consistent with our interpretation, which renders this enactment necessary.

Suppose a person to be brought to the bar, under this very charge which is here stated against the prisoner, for administering or taking an oath binding to the commission of high treason, but by the levying of a war, other than that particular sort of war described in the statute of the 36th of the King. It is laid down by all the authorities, that the conspiring to levy war generally is not an overt act of treason. The conspiring the death of the King is a treason-and the actual killing of the King cannot be prosecuted as a murder, but must be prosecuted as an overt act, testifying an intention to put the King to death. Conspiring to levy war is not treason-the levying of war itself is treason. Then comes the statute of the 36th of the King, which declares the compassing or imagining the levying of war for certain purposes, as, to constrain the King, or either, or both houses of Parliament, shall be considered an overt act of treason. The meaning of this oath, then, if it be not mere words which mean nothing, was to bind a number of persons to levy war, and this to constrain the King, or either, or both houses of Parliament, and this amounts to an overt act of treason under the statute of the 36th of the King, and cannot be tried as a felony.

Suppose war levied for the purposes professed by those unfortunate persons who assumed the name of Luddites; for the purpose of destroying, in the town of Nottingham and its vicinity, particular pieces of machinery used in the knitting of stockings. To destroy stocking-frames, or any particular pieces of machinery, in any particular place or district, is neither levying war under the statute of Edward III. nor under the 36th of the King. Suppose they had levied war-suppose they had conspired to levy this sort of war-it would not be treason. It could only be tried under this act, which makes it felony.

Suppose a person accused of felony, under this act for administering oaths, to levy such sort of war as is treason under the act of Edward III. but the conspiring to levy which is not treason; and, suppose him to be acquitted-and suppose war afterwards levied by those with whom he had conspired; then, by the law of England, without the last clause in this act, he might be tried over again for treason, though he had been acquitted on the trial for felony. It was necessary to insert this clause, or else this evil would have arisen. The legislature were

aware, when they enacted, that the administering of an oath to commit treason should be felony, that it approached near to an act constituting high treason; and they therefore declared, that, though it should happen afterwards to be discovered that it amounted to high treason, if this did not appear at the time of a trial for the administering as a felony, the administrator should be entitled to plead the acquittal. That was equitable.

Suppose a person convicted of the minor offence of taking the oath, and sentenced to transportation; the act declares he shall not be again tried for this minor offence, though it may have involved him in high treason. It is a reasonable object to attribute to the legislature, the intention of putting by this law the subjects of this country in safety, and preventing them from being oppressed by the officers of the crown.

The legislature have in their view, that, in cases of treason, the counsel of the crown are employed, and great pains taken to convict the accused-that the minds of the jury, too, are likely to be poisoned with prejudice against them. The legislature, therefore, where there is a charge of treason, give different rules and afford different safeguards, from those in common cases of felony; and, is it reasonable that this act of Parliament, made for a particular purpose, should be held to deprive the subject of these safeguards?-or can it be held that great treasonable offences may be committed, and only punished by transportation? You see how the Judges proceed in such a case in England. If a person be indicted for felony, and, either upon the face of the indictment, or otherwise, it appear to the Judges that the act charged is treason, they would desire the indictment to be withdrawn, and an indictment for treason to be preferred. Suppose the trial proceeds without any such objection, and, on the evidence, treason is found to have been committed, the Judge discharges the jury of that indictment. Judge Foster says, I will not give a chance of acquittal. But I will discharge the jury, and will give the prisoner the benefit of the mode of trial appointed for cases of treason.

What is the result of an opposite construction of the act? It is this. All actions are popular in England. Persons accused by any one of the people of conspiring to commit treason, must be brought before a grand jury-but, according to the prosecutor's construction of this act, they may be guilty of treason, and yet be tried in the ordinary way, and as only guilty of a felony. An accomplice may indict them under these acts, and those, who ought to be capitally punished for

treason, may be transported for seven years as for an inferior felony.

There are

I submit, upon all these views, the prosecutor's construction cannot be put upon this act. Felony merges in treason; and if, in an indictment for felony, the prosecutor make a charge of treason, or if the facts of the case turn out and appear on the evidence to be treason, you cannot proceed in the trial for felony; neither by the rule of the common law of England, nor by the statute of Anne referred to. no words in the act 52d of the King, which go to repeal the act of Anne, or abrogate the common law. The interpretation given by the prosecutor would involve the acts in contradiction and absurdity, and ascribe views which cannot be ascribed to the legislature. I submit, that, according to my construction, the act is consistent with the remedy for the evilwith the intention of the legislature-with common senseand with sound construction of law.

I may have stated some things at too great length, and some at too little. I was anxious to explain my view of this case; and in so doing, I have, I fear, trespassed too long on your Lordships' time and attention.

LORD JUSTICE CLERK.-There is no occasion for any apology at all,

MR. CLERK. An important objection to the indictment has been noticed by the Court, with respect to which, it has been asked by your Lordships, whether the counsel for the prisoner have a wish to argue it? I beg leave to offer a few observations upon the point.

The objection is, that the allegations in the indictment do not describe that offence, which is prohibited by the act of Parliament, and therefore the indictment is irrelevant and inept. The crime described in the statute, is the administering an oath or engagement, purporting or intending to bind the person taking the same, to commit any treason, &c. But the prisoner is not charged with an offence so described; the charge against him in the minor proposition of the indictment being, that he administered an oath or engagement, binding, (not purporting to bind) the persons taking the same to commit treason. Thus there is a manifest difference between the statutory offence and that which is charged in the indictment. To administer an oath, purporting or intending to bind the person taking the same, is an act highly criminal, and accordingly, it is by the statute punishable with death. But the allegation against the pannel charges him with an act, which is