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At the same time, I have no hesitation in saying here, that the kind of treason which the parties bound themselves to commit, is plainly that of levying war against the King. I shall presently speak more particularly to the treason, and will shew, that the treason which the oath bound to commit is that now alluded to.
Before leaving the oath, I may make some farther remarks upon what, with such ingenuity and force, was stated by Mr. Cranstoun. Instead of taking the whole oath into view, he divided it into four parts, and drew separate conclusions from all those parts-a rule of construction quite out of the question. It might be as well pleaded to a jury, in a case of circumstantial evidence, that they are to judge of each circumstance by itself. Mr. Cranstoun set out in construing the oath, with stating, that a brotherhood of affection is an innocent, and even a laudable object, and somewhat quaintly added: "That it is a plea"sant thing for brethren to dwell together in unity." This may be very ingenious, but I say, with deference, that it is trifling with the case, to make such remarks to your Lordships. The oath is not to be torn piece-meal. The meaning is to be drawn from a fair consideration of the whole of it. I might as well take each word or letter of the oath individually, and say, that every word or letter taken by itself is not criminal, as thus break it into parts, and argue upon each without reference to the rest. Not that I think his conclusions, even as he took the clauses, were justified by the clauses themselves. I cannot admit any such thing-but I protest against this way of construing the oath, or construing any thing.
It was said, founding upon the other argument, the reservation of illegality, that we may petition for annual parliaments and universal suffrage-that these objects may be accomplished by lawful means—and, from this, the conclusion was drawn, that there was nothing illegal done or intended. But the question is, whether the end can justify any means that may be employed in obtaining it. It is the violent means which we charge as criminal, and these are left totally out of view, in the argument on the other side of the bar.
Then the word "strength" is taken up, and a construction is given to it to shew, that the term in the oath was applicable to an individual, and not to a number of individuals. There the learned gentleman lost sight of the beginning of the oath, where the brotherhood is mentioned. From this, however, and the whole context of the oath, I apprehend it to be perfectly clear, that in considering the meaning of the word strength," we are not to apply it to an individual, but to as many as could be brought to join in this society or conspiracy.
On the whole, I must confess that I have not been able to discover the distinction between force and strength in this oath. It would have conveyed the same conclusion to my mind, if the one word had been employed as well as the other. Physical strength has just as plain and obvious a meaning where it stands, as any words can have. It is not an uncommon expression among the lower orders of politicians; and, I am afraid, the idea is perfectly familiar to them. Now, notoriety is as good a rule of construction as could be had recourse to. It was said, that grammatical niceties are out of place here, and that strict rules of criticism would be misapplied in interpreting the language of such a man as the pannel at the bar, and I perfectly approve of the remark. I wish the oath to be taken in the meaning which men in the lower ranks of life would apply to it. Strength, as it here stands, can mean nothing else than the means, the power, or force, to be employed against the obstacle or contrary force that might stand in the way of the accomplishment of the objects in view, whatever they might be; and the united strength of numbers is plainly meant.
Supposing it were possible to put such a construction upon the words as that contended for on the other side of the bar, let us see the effect of it-let us attempt to insert such unambiguous words as would unquestionably give the oath what they say is the meaning of it; and, a fairer test it cannot be tried by. Thus: "But I bind myself to do nothing contrary to law, or to attempt any thing by force against any subsisting right;" I ask, if these words were stuck into the middle of this oath, if they would not stultify it, and make it quite contradictory, and palpably absurd.
A great deal was said about the presumption in favour of the innocence of the pannel. This is a common topic of declamation; but, I must confess, I never could understand the presumption of the innocence of a pannel. I am aware that the onus probandi lies upon the prosecutor, and that if he fail to make out his case, the pannel must be assoilzied; but I see no room for a presumption of any sort, but what arises from the want of contrary proof; and I know of no such doctrine in any work upon the criminal law of Scotland. The fact is, that in a question of relevancy, there is rather a presumption of guilt; or, to speak more correctly, an assumption of the truth of the libel. Every thing is supposed to be wickedly and maliciously done, as libelled; and the question is, supposing all this proved as charged, does it infer a punishment in law ? as, otherwise, it is impossible to allow a proof of what is alleged. -I might argue, that the presumption is against the man who
takes such an oath as that libelled, which even my learned friends admit to be contrary to law, and a punishable offence, though not of the description set forth in this indictment; and that, from the very circumstance of the pannel having taken such an oath, the onus lies no longer with the prosecutor to prove his guilty purpose, but with the pannel to reconcile his conduct to innocence if he can. But, upon any view of the subject, I should like to know what presumption, or what rule or principle calls for such a construction as that put upon the oath. Is it the protection of innocence, or that "sense of pub"lic duty" that was spoken of in the last debate, or any laudable principle under the sun, that makes it necessary to do such violence to language and common sense, to suppress the truth, or to pervert the plain sense and fair meaning of any thing?
I shall now beg leave to request your Lordships' attention to what the persons administering and taking this oath bound themselves to do; and, I have to submit, that it is plain, from all the authorities upon treason, that the accomplishment of universal suffrage, when carried into effect by the force of numbers, is treason, by levying war against the King. It infers the destruction of the British constitution; which could not subsist for a single day under such a system of things, in the present circumstances of this extensive empire. The accomplishment of any public purpose by violence is treason; but, to accomplish universal suffrage by violence, is undoubtedly a destruction of the constitution itself. I do not believe that there is a difference among any of the great authorities upon this point. In looking for authorities, I naturally had recourse to some of the late trials for treason in England, to see how the judges there laid down the law in such cases. Lord Loughborough, in the case of Lord George Gordon, said, "I am peculiarly happy that I 66 am enabled to state the law on the subject, not from any "reasonings or deductions of my own, which are liable to "error, and in which a change or inaccuracy of expression "might be productive of much mischief; but from the first authority, from which my mouth only will be employed in "pronouncing the law, I shall state it to you in the words of "that great, able, and learned judge, Mr. Justice Foster, "that true friend to the liberties of his country." I quote this, to shew to what authorities the English judges have recourse, when considering questions of this kind. At the end of this trial, the same law was laid down by Lord Mansfield; but I shall first read the passage from Foster himself, p. 208. Part of it was already read by the learned gentleman opposite, but, as he stopped exactly where I wished him to go on, I
shall be under the necessity of reading the whole of it. I request your Lordships' attention to the manner in which Foster differs from the opinion of Hale, on the very point on which Hale's authority has been so much rested on in the present case, and for which he has been called the " great father of "the law of treasons." Hale's opinion does not appear to me to be quoted as so completely conclusive on the question by the great authorities in England as is done here. They have recourse to more recent expositions of the law.
"Lord Chief-Justice Hale, (says Foster,) speaking of "such unlawful assemblies as may amount to a levying of "war within the 25th Elizabeth, c. 3, taketh a difference "between those insurrections which have carried the appear❝ance of an army, formed under leaders, and provided with "military weapons, and with drums, colours, &c. and those "other disorderly tumultuous assemblies, which have been "drawn together, and conducted to purposes manifestly un"lawful, but without any of the ordinary shew and apparatus "of war before mentioned.
"I do not think any great stress can be laid on that dis"tinction. It is true that, in case of levying of war, the in"dictments generally charge, that the defendants were armed "and arrayed in a warlike manner; and, where the case "would admit of it, the other circumstances of swords, guns, "drums, colours, &c. have been added. But, I think, the "merits of the case have never turned singly on any of these "circumstances.
"In the cases of Damaree and Purchase, which are the last printed cases that have come in judgment on the point of "constructive levying war, there was nothing given in evi"dence of the usual pageantry of war ;-no military weapons -no banners or drums-nor any regular consultation pre"vious to the rising. And yet the want of those circum"stances weighed nothing with the Court, though the prison"er's counsel insisted much on that matter. The number of "the insurgents supplied the want of military weapons; and "they were provided with axes, crows, and other tools of the "like nature, proper for the mischief they intended to effect: "Furor arma ministrat.”
"Sect. I.-The true criterion, therefore, in all these cases, "is quo animo, did the parties assemble? For, if the assembly be upon account of some private quarrel, or, to take re"venge of particular persons, the statute of treasons hath al"ready determined that point in favour of the subject.
"Sect. III. (p.210.)-But every insurrection which, in judg"ment of law, is intended against the person of the King, be
" it to dethrone or imprison him—or to oblige him to alter his "measures of government-or to remove evil councillors from "about him—these risings all amount to levying war within "the statute; whether attended with the pomp and circum"stances of open war or no. And every conspiracy to levy 66 war for these purposes, though not treason within the clause "of levying war, is yet an overt act within the other clause of "compassing the King's death. For those purposes cannot be "effected by numbers and open force without manifest danger to his person.
"Sect IV.-Insurrections, in order to throw down all en"closures, 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 construc"tion 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 66 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 ge"neral, or indeed any single nation living here under the pro"tection of the King, or for the reformation of real or ima"ginary 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 clause "of levying war; for they are levelled at the King's crown "and royal dignity."
Farther, in speaking of the case of Damaree and Purchase, formerly mentioned, he says, (p. 215.)" Upon the trial of Da66 maree, the cases referred to before, in sections 4th and 5th, "were cited at the bar; and all the judges present were of opi"nion, that the prisoner was guilty of the high treason charged upon him in the indictment. For here was a rising with "an avowed intention to demolish all meeting-houses in ge"neral; and this intent they carried into execution as far as "they were able. If the meeting-houses of the Protestant. "dissenters had been erected and supported in defiance of all "law, a rising to destroy such houses in general, would have "fallen under the rules laid down in Keiling, with regard to "the demolishing all bawdy-houses. But, since the meeting"houses of Protestant dissenters are, by the Toleration Act, "taken under the protection of the law, the insurrection, in "the present case, was to be considered as a public declara❝tion by the rabble against that act, and an attempt to ren