"der it ineffectual by numbers and open force.-According "ly, Damaree was found guilty, and had judgment of death, in cases of high treason." 66 as These were the passages quoted as authorities by Lord Loughborough in the trial I have mentioned. And in the charge to the jury by Lord Mansfield, at the close of the trial, a summary of the same doctrine is very clearly laid down. "There are two kinds of levying war; one against the per"son of the King; to imprison, to dethrone, or to kill him; "or to make him change measures or remove counsellors"the other, which is said to be levied against the majesty of "the King, or, in other words, against him in his royal capa"city; as when a multitude rise and assemble to attain by "force and violence any object of a general public nature, that "is levying war against the majesty of the King; and most "reasonably so held, because it tends to dissolve all the bonds "of society, to destroy property, and to overturn government, "and, by force of arms, to restrain the King from reigning ac"cording to law. 66 "Insurrections, by force and violence, to raise the price of wages, to open all prisons, to destroy meeting-houses, nay, "to destroy all brothels, to resist the execution of militia "laws, to throw down all enclosures, to alter the established "law, to change religion, to redress greivances real or pretend❝ed, have all been held levying war. Many other instances might be put. Lord Chief Justice Holt, in Sir John "Friend's case says,- If persons do assemble themselves, and "act with force in opposition to some law which they think in"consistent, and hope thereby to get it repealed, this is levy"ing war and treason.' In the present case, it does not rest upon an implication that they hoped, by opposition to a law, "to get it repealed; but the prosecution proceeds on the di"rect ground, that the object was, by force and violence, to "compel the legislature to repeal a law; and therefore, with"out any doubt, I tell you the joint opinion of us all, that if "this multitude assembled with intent, by acts of force and "violence, to compel the legislature to repeal a law, it is high "treason. Though the form of an indictment for this spe"cies of treason mentions drums, trumpets, arms, swords, "fifes, and guns, yet none of these circumstances are essenti"al. The question always is, whether the intent is, by force "and violence, to attain an object of a general and public na"ture by any instruments, or by dint of their numbers. "In like manner, Serjeant Hawkins thus expresses himself: "Those, also, who make an insurrection in order to redress a "public grievance, whether it be a real or pretended one, and "of their own authority attempt with force to redress it, are "said to levy war against the King, although they have no "direct design against his person, inasmuch as they insolent"ly invade his prerogative, by attempting to do that by pri"vate authority, which he by public justice ought to do, which "manifestly tends to a downright rebellion; as where great "numbers by force attempt to remove certain persons from "the King; or to lay violent hands on a privy counsellor; or "to revenge themselves against a magistrate for executing his "office; or to bring down the price of victuals; or to reform "the law or religion; or to pull down all bawdy-houses; or ❝ to remove all enclosures in general, &c. But where a num"ber of men rise to remove a grievance to their private inte"rest, as to pull down a particular enclosure, intrenching upon "the common, &c. they are only rioters." I am not afraid to place beside all these great names our own authority, Mr. Hume, in whose work you will find a most luminous and accurate summary of the doctrine which I have now been quoting from the English authors. In page 427, Mr. Hume says: "In the construction of law, the levy"ing of war against the King is not understood in those in"surrections only which have immediate relation to the per66 son of his majesty, as if the object be to dethrone or im"prison him, or to drive him out of the realm, or to cause him "alter his measures, or to remove evil counsellors from his "presence. It equally embraces all those risings, which, though "not aimed directly at the person of the King, are however "against his royal majesty, that is, against his crown or "royal dignity, against his prerogative, authority, or office. "Under this description, according to all authorities, falls an "insurrection for any of these objects,-to reform the esta“blished law, religion, or political constitution of the land; or "to obtain redress for national grievances, whether real or imaginary. For though they be real, the law and government "of the realm, as long as they subsist, cannot know any thing "of this course of correcting them, nor make account of it as "any other than rebellion against the King, who, as head of "the state, is bound to prevent all such forcible interference of "private persons with his own functions, or those of the legis "lative power." 66 By all the authorities, the same rules of law are clearly and distinctly laid down, and they are quite applicable to the present case. The treason which the oath binds those taking it to commit, if the public purpose in view had been carried into effect, viz. the establishment of universal suffrage, by force and violence, would have been levying war against the King. A passage was quoted from Lord Hale by the learned gentleman, in disapprobation of an expression in the indictment, "the subversion of the established government," as being too vague for a charge of treason. But, it would not escape your observation, that he read only three lines, and left out the subsequent part of the passage in the indictment, which is the example and explanation of what he did read, and contains every specification that is possible in the circumstances of the case. The statement in the indictment is, "which oath or engagement, or obligation to the foregoing " purport, did bind, or did purport or intend to bind, the per"sons taking the same to commit treason, by effecting, by "physical force, the subversion of the established government, "laws, and constitution of this kingdom, and especially by "obtaining annual parliaments and universal suffrage by un"lawful and violent means."—As to the word force, it was introduced merely to express our conception of the meaning of the oath, and to shew, that we understand strength, where it stands, to include every meaning that any person could suppose to be contained in force, had it been there; and it is for your Lordships to say whether we are right or not. There is another part of the indictment to which an objec tion was made-the passages at the end of each specific charge, which, it is said, are not exactly in terms of the expressions of the statute. The truth is, those clauses are altogether mere surplusage. There is, besides, a previous reference to the general clause at the commencement of the indictment. "Ad "minister or cause to be administered, or did aid or assist at the "administering, an oath, or engagement, or obligation, in the "terms above set forth, or to the same purport." But, above all, there is a most distinct reference in the phrase, "as said is," which takes back the attention to the whole preceding generality. This is the general mode of expression where many instances of a crime charged are stated as said is," being added to each instance that is given. Forgery and uttering forged notes, for example, are charged in a general clause at the beginning of an indictment, and then particular instances are given in much shorter terms, referring to the preceding generality; and, unless this is done, what precedes must be totally useless, and mere surplusage. Now, you will observe, the general charge is the only one in which the oath appears, and reference must be made to the clause containing the oath in which the words of the statute are exactly repeated. But, in any point of view, it never was the doctrine of our law to require the repetition of the precise same technical terms as are used in the major proposition. Hume, III. 304.-The act of Parlia ment libelled on, contains references in this manner, from one clause to another. There is another part of the indictment to which I am surprised the opposite counsel did not make an objection similar to that to which I am now speaking. It is in what is called the "at least" clause, where the word intend does not occur. But the answer is, that the word is of little value to the prosecutor in the present case, where the express meaning is so clear; and, at all events, the attention must be carried back to what precedes by the words, " as said is." "The said oath or "engagement," also, implies the whole of what goes before. But, in case this answer should not be satisfactory, I beg leave to read an opinion delivered from the chair of this Court by your Lordships' predecessors, in the case of M'Intyre, and others, tried for house-breaking, in 1809; and his Lordship did no more than illustrate the doctrine laid down by Mr. Hume. I read from Buchanan's reports, page 84. In addressing the jury, the learned judge said: "It was formerly held, that if the "public prosecutor did not succeed in proving the whole train "of circumstances stated in the indictment, the jury could "not convict the prisoners. This was felt to be a great evil; "since, in a long and minute statement, it was very often found, "that a few particulars were not reached by the evidence; "and therefore the act was passed, which declares it sufficient "for the public prosecutor to set forth in his indictment, that "the pannels were guilty actors, or art and part; not tying "himself down to prove the whole specific detail of the facts, "but simply, that the pannels were special actors of the crime, "or art and part, that is, accessary to it by participating in "it, or giving assistance either before or after the commission. "But there is nothing in the act which says in what part of "the indictment this charge shall be brought forward. It is "usual, indeed, to state it in that part of the indictment men❝tioned by the prisoner's counsel; but if not stated in the first 66 part, it must come in the last part-in the clause beginning "with at least.' But if it be stated in the first part of the "indictment as accompanying the direct charge, it is unnecessary to repeat it in the latter part." From this it appears, that the indictment would be perfectly relevant without this clause at all; and, on the other hand, if this clause be correct, it will supply every other defect of specification in the indictIn short, it is here entirely for the benefit of the proHume, Vol. III. 412, &c. 66 ment. secutor. One part of the case still remains unnoticed; that new view of it pleaded by Mr. Grant. I am not sure that I was successful in obtaining a distinct conception of the bearing of great part of that argument. But I must hazard one or two remarks upon it before I sit down. The first remark I shall make is sufficiently obvious, that it was quite contradictory of the argument held by Mr. Cranstoun, who maintained that there is no treason in the case; and your Lordships are reduced to the necessity of rejecting the one or the other. That point of view I need not enlarge upon. Your Lordships will next observe, that this statute, upon which the indictment is founded, is not an English statute. It is a Scottish statute to all intents and purposes, when before your Lordships in this Court; and I cannot conceive by what operation you can, in interpreting this Scottish act, introduce a rule of the common law of England. I may have misconceived the learned gentleman's argument; but I must state fairly the impression which it left upon my mind. You will observe, that, in this act, there is an express clause extending it to Scotland, and providing how it is to be carried into effect here. "Provided also, tha: any offence against this act, if commit❝ted in Scotland, shall and may be prosecuted, tried, and de"termined, either before the Justiciary Court at Edinburgh, or in any of the circuit courts in that part of the united "kingdom." And then follows the clause, "That any per❝son 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 nothing 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 trea 66 66 66 66 66 son, or misprision of high treason, in such manner as if this "act had never been made." How it is possible to get over these clauses of the act I know not. From this last clause, it clearly appears to have been in the view of the legislature, to make punishable under this act a crime that might have been punishable as treason. Now, if punishable here, it must be by our common forms, and cannot be otherwise. The statute of Queen Anne, in cases of treason, extended to Scotland the English statute law of treason, and regulated the forms for trials for treason; but it did not introduce any general principle of the common law of England for the interpretation of Scottish acts of Parliament. If this had been a trial for treason, that act would have required us to have recourse to the statute of Edward III; but this is a trial of a Scottish law offence; and it is impossible to maintain that the statute of Queen Anne, by implication, abolished the common law of Scotland L |