cautious, explicit, unequivocal definition of what shall constitute this high offense. For, high treason consisting in the breach and dissolution of that allegiance which binds society together, if it were left ambiguous, uncertain, or undefined, all the other laws established for the personal security of the subject would be utterly useless; since this offense, which, from its nature, is so capable of being created and judged of by the rules of political expediency on the spur of the occasion, would be a rod at will to bruise the most virtuous members of the community, whenever virtue might become troublesome or obnoxious to a bad government.

A potent engine of tyranny if

(1.) To compass or imagine the death of the King: such imagination or purpose of the mind (visible only to its great Author) being manifested by some open act; an institution obviously directed, not only to the security of his natural person, but to the stability of the government; since the life of the Prince is so interwoven with the Constitution of the state, that an attempt to destroy the one is justly held to be rebellious conspiracy against the other.

(2.) (which is the crime charged in the indictment) To levy war against him in his realm: a term that one would think could require no explanation, nor admit of any ambiguous construction, among men who are willing to read laws according to the plain signification of the language in which they are written; but which has, nevertheless, been an abundant source of that constructive cavil which this sacred and valuable act was made expressly to prevent. The real meaning of this branch of it, as it is bottomed in policy, reason, and justice; as it is ordained in plain unambiguous words; as it is confirmed by the precedents of justice, and illustrated by the writings of the great lights of the law in different ages of our history, I shall, before I sit down, impress upon your minds as a safe, unerring standard by which to measure the evidence you have heard.

At present I shall only say, that

Injuries to the persons and properties of our neighbors, considered as individuals, which are the subjects of all other overstrained. criminal prosecutions, are not only capable of greater precision, but the powers of the state can be but rarely interested in straining them beyond their legal interpretation. But if treason, where the government is directly offended, were left to the judgment of its ministers, without any boundaries-nay, without the most broad, distinct, and inviolable boundaries marked out by the law-there could be no public freedom. The condition of an Englishman would be no better than a slave's at the foot of a Sultan; since there is little difference whether a man dies by the stroke of a saber, without the forms of a trial, or by the most pompous ceremonies of justice, if the crime could be made at pleasure by the state to fit the fact that was to be tried. Would to God, gentlemen of the jury, that this As a citizen I may disapprove of were an observation of theory alone, and that the them, but as advocate for the noble person at page of our history was not blotted with so many your bar, I need not impeach their authority. For melancholy, disgraceful proofs of its truth! But none of them have said more than this, "that war these proofs, melancholy and disgraceful as they may be levied against the King in his realm, not are, have become glorious monuments of the only by an insurrection to change or to destroy wisdom of our fathers, and ought to be a theme the fundamental Constitution of the government of rejoicing and emulation to us. For, from the itself by rebellious war; but, by the same war, to mischiefs constantly arising to the state from ev-endeavor to suppress the execution of the laws it ery extension of the ancient law of treason, the ancient law of treason has been always restored, and the Constitution at different periods washed clean; though, unhappily, with the blood of oppressed and innocent men.

I. When I speak of the ancient law of treason, High treason I mean the venerable statute of King defined. Edward the Third, on which the indictment you are now trying is framed-a stat ute made, as its preamble sets forth, for the more precise definition of this crime, which has not, by the common law, been sufficiently explained; and consisting of different and distinct members, the plain unextended letter of which was thought to be a sufficient protection to the person and honor of the Sovereign, and an adequate security to the laws committed to his execution. I shall mention only two of the number, the others not being in the remotest degree applicable to the

present accusation.3

3 In this statement of the law of treason, perfectly fair and accurate as it is, there is one thing which marks the consummate skill of Mr. Erskine. He shapes it throughout with a distinct reference to the

far and wide as judicial decisions have strained the construction of levying war beyond the warrant of the statute, to the discontent of some of the greatest ornaments of the profession, they hurt not me.

has enacted, or to violate and overbear the protection they afford, not to individuals (which is a private wrong), but to any general class or description of the community, by premeditated open acts of violence, hostility, and force."

66

Gentlemen, I repeat these words, and call solemnly on the judges to attend to what Criterion of I say, and to contradict me if I mis- high treason. take the law, By premeditated open acts of violence, hostility, and force," nothing equivocal, nothing ambiguous, no intimidations or overawings, which signify nothing precise or certain (because what frightens one man or set of men may have no effect upon another), but that which compels and coerces-open violence and force.

Gentlemen, this is not only the whole text; but I submit it to the learned judges, under whose correction I am happy to speak, an accurate exfacts of the case, as they were afterward to come out in evidence. The points made most prominent are the points he had occasion afterward to use. Thus the jury were prepared, without knowing it, to look at the evidence under aspects favorable to the prisoner.

planation of the statute of treason, as far as it re- | lates to the present subject, taken in its utmost extent of judicial construction; and which you can not but see, not only in its letter, but in its most strained signification, is confined to acts which immediately, openly, and unambiguously strike at the very root and being of government, and not to any other offenses, however injurious to its peace.

have been wisely repressed.

less he has levied war against the King in his realm, contrary to the plain letter, spirit, and intention of the act of the twenty-fifth of Edward the Third-to be extended by no new or occasional construction, to be strained by no fancied analogies, to be measured by no rules of political expediency, to be judged of by no theory, to be determined by the wisdom of no individual, however wise, but to be expounded by the simple, genuine letter of the law.

Such were the boundaries of high treason All attempts to marked out in the reign of Edward Gentlemen, the only overt act charged in the widen the crime the Third; and as often as the vices indictment, is the assembling the mulThe prisoner of bad princes, assisted by weak sub- titude, which we all of us remember responsible only for the origmissive Parliaments, extended state offenses be- went up with the petition of the As- inal object of the assemblage. yond the strict letter of that act, so often the vir- sociated Protestants, on the second tue of better princes and wiser Parliaments day of last June. In addressing myself to a hubrought them back again. A long list of new mane and sensible jury of Englishmen, sitting in treasons, accumulated in the wretched reign of judgment on the life of a fellow-citizen, more Richard the Second, from which (to use the lan- especially under the direction of a court so filled guage of the act that repealed them) "no man as this is, I trust I need not remind you that the knew what to do or say for doubt of the pains of purposes of that multitude, as originally assemdeath," were swept away in the first year of bled on that day, and the purposes and acts of Henry the Fourth, his successor; and many more, him who assembled them, are the sole objects which had again sprung up in the following dis- of investigation. All the dismal consequences tracted arbitrary reigns, putting tumults and riots which followed, and which naturally link themon a footing with armed rebellion, were again lev-selves with this subject in the firmest minds, eled in the first year of Queen Mary, and the statute of Edward made once more the standard of treasons. The acts, indeed, for securing his pres-rants their admission. If the evidence had been ent Majesty's illustrious House from the machinations of those very Papists, who are now so highly in favor, have, since that time, been added to the list. But these not being applicable to the present case, the ancient statute is still our only guide; which is so plain and simple in its object, so explicit and correct in its terms, as to leave no room for intrinsic error; and the wisdom of its authors has shut the door against all extension of its plain letter; declaring, in the very body of the act itself, that nothing out of that plain letter should be brought within the pale of treason by inference or construction, but that, if any such cases happened, they should be referred to the Parliament.

These restric

This wise restriction has been the subject of much just eulogium by all the most tions approved celebrated writers on the criminal by the highest authority. law of England. Lord Coke says the Parliament that made it was on that account called Benedictum, or Blessed; and the learned and virtuous Judge Hale, a bitter enemy and opposer of constructive treason, speaks of this sacred institution with that enthusiasm which it can not but inspire in the breast of every lover of the just privileges of mankind. Gentlemen, in these mild days, when juries are so free and judges so independent, perhaps all these observations might present case. have been spared as unnecessary. But they can do no harm; and this history of treason, so honorable to England, can not (even imperfectly as I have given it) be unpleasant to Englishmen. At all events, it can not be thought an inapplicable introduction to saying that Lord George Gordon, who stands before you indicted for that crime, is not, can not be guilty of it, un

Definition applied to the

must be altogether cut off, and abstracted from your attention, further than the evidence war

co-extensive with these consequences; if it had been proved that the same multitude, under the direction of Lord George Gordon, had afterward attacked the Bank, broke open the prisons, and set London in a conflagration, I should not now be addressing you. Do me the justice to believe that I am neither so foolish as to imagine I could have defended him, nor so profligate to wish it if I could. But when it has appeared, not only by the evidence in the cause, but by the evidence of the thing itself-by the issues of life, which may be called the evidence of Heaven-that these dreadful events were either entirely unconnected with the assembling of that multitude to attend the petition of the Protestants, or, at the very worst, the unforeseen, undesigned, unabetted, and deeply regretted consequences of it, I confess the seriousness and solemnity of this trial sink and dwindle away. Only abstract from your minds all that misfortune, accident, and the wickedness of others have brought upon the scene, and the cause requires no advocate. When I say that it requires no advocate, I mean that it requires no argument to screen it from the guilt of treason. For though I am perfectly convinced of the purity of my noble friend's intentions, yet I am not bound to defend his prudence, nor to set it up as a pattern for imitation; since you are not trying him for imprudence, for indiscreet zeal, or for want of foresight and precaution, but for a deliberate and malicious predetermination to overpower the laws and government of his country, by hostile, rebellious force.

The indictment, therefore, first charges that the multitude assembled on the 2d The indictment of June "were armed and arrayed here in a warlike manner;" which, indeed, armed.

charges that

if it had omitted to charge, we should not have troubled you with any defense at all, because no judgment could have been given on so defective an indictment. For the statute never meant to put an unarmed assembly of citizens on a footing with armed rebellion; and the crime, whatever it is, must always appear on the record to warrant the judgment of the court.

and levying

war.

on his followers, in person, to the avowed destruction of all the rest. There could, therefore, be no doubt of his purpose and intention, nor any great doubt that the perpetration of such purpose was, from its generality, high treason, if perpetrated by such a force as distinguishes a felonious riot from a treasonable levying of war. The principal doubt, therefore, in that case was, whether such an unarmed, riotous force was war, within the meaning of the statute; and on that point very learned men have differed; nor shall I attempt to decide between them, because in this one point they all agree. Gentlemen, I beseech you to attend to me here. I say on this point they all agree, that it is the intention of assembling them which forms the guilt of treason. I will give you the words of high authority, the learned Foster, whose private opinions will, no doubt, be pressed upon you as a doctrine and law, and which, if taken together, as all opinions ought to be, and not extracted in smug

contented to consider as authority.

It is certainly true that it has been held to be What consti. matter of evidence, and dependent on circumstances, what numbers, or species of equipment and order, though not the regular equipment and order of soldiers, shall constitute an army, so as to maintain the averment in the indictment of a warlike array; and, likewise, what kind of violence, though not pointed at the King's person, or the existence of the government, shall be construed to be war against the King. But as it has never yet been maintained in argument, in any court of the kingdom, or even speculated upon in theory, that a multitude, without either weapons offens-gled sentences to serve a shallow trick, I am ive or defensive of any sort or kind, and yet not supplying the want of them by such acts of violence as multitudes sufficiently great can achieve without them, was a hostile army within the statute; as it has never been asserted by the wildest adventurer in constructive treason, that a multitude, armed with nothing, threatening nothing, and doing nothing, was an army levying war; I am entitled to say that the evidence does not support the first charge in the indictment; but that, on the contrary, it is manifestly false false in the knowledge of the Crown, which prosecutes it-false in the knowledge of every man in London, who was not bed-ridden on Friday the 2d of June, and who saw the peaceable demeanor of the Associated Protest

ants.

Case of Dama. ree inapplica

ble.

But you will hear, no doubt, from the Solicitor General (for they have saved all their intelligence for the reply) that fury supplies arms; furor arma ministrat; and the case of Damaree will, I suppose, be referred to; where the people assembled had no banners or arms, but only clubs and bludgeons yet the ringleader, who led them on to mischief, was adjudged to be guilty of high treason for levying war. This judgment it is not my purpose to impeach, for I have no time for digression to points that do not press upon me. In the case of Damaree, the mob, though not regularly armed, were provided with such weapons as best suited their mischievous designs. Their designs were, besides, open and avowed, and all the mischief was done that could have been accomplished, if they had been in the completest armor. They burned Dissenting meetinghouses protected by law, and Damaree was taken at their head, in flagrante delicto [in the crime itself], with a torch in his hand, not only in the very act of destroying one of them, but leading

4 In this case, a mob assembled for the purpose of destroying all the Protestant Dissenting meeting houses, and actually pulled down two.-8 State Trials, 218. Foster, 208.

S s

constitutes the essence of the crime.

That great judge, immediately after supporting the case of Damaree, as a levy- The intention ing war within the statute, against the opinion of Hale in a similar case, namely, the destruction of bawdy-houses," which happened in his time, says, "The true criterion, therefore, seems to be-Quo animo did the parties assemble?-with what intention did they meet?" On that issue, then, in which I am supported by the whole body of the criminal law of England, concerning which there are no practical precedents of the courts that clash, nor even abstract opinions of the closet that differ, I come forth with boldness to meet the Crown. For, even supposing that peaceable multitude-though not hostilely arrayed-though without one species of weapon among them-though assembled without plot or disguise by a public advertisement, exhorting, nay, commanding peace, and inviting the magistrates to be present to restore it, if broken-though composed of thousands who are now standing around you, unimpeached and unreproved, yet who are all principals in treason, if such assembly was treason; supposing, I say, this multitude to be, nevertheless, an army within the statute, still the great question would remain behind, on which the guilt or innocence of the accused must singly depend, and which it is your exclusive province to determine, namely, whether they were assembled by my noble client for the traitorous purpose charged in the indictment? For war must not only be levied, but it must be levied against the King in his realm; i. e., either directly against his person to alter the Constitution of the government, of which he is the head, or to suppress the laws committed to his execution by rebellious force. You must find that Lord George Gordon assembled these men

To constitute a treasonable levying of war there must be an insurrection; there must be force accompanying that insurrection; and it must be for an object of a general nature. Regina v. Frost, 9 Carrington and Payne, 129. 61 Hale, 132.

pains to understand it. I am not stiff in opinions; but before I change any of those that I have given you to-day, I must see some direct monument of justice that contradicts them. For the law of England pays no respect to theories, however ingenious, or to authors, however wise; and therefore, unless you hear me refuted by a series of direct precedents, and not by vague doctrine, if you wish to sleep in peace, follow me. II. And now the most important part of our The evidence task begins, namely, the application brought to the of the evidence to the doctrines I have principles. laid down. For trial is nothing more than the reference of facts to a certain rule of action, and a long recapitulation of them only serves to distract and perplex the memory, without enlightening the judgment, unless the great standard principle by which they are to be measured is fixed, and rooted in the mind. When that is done (which I am confident has been done by you), every thing worthy of observation falls naturally into its place, and the result is safe and certain.

test of these

tions on the

Gentlemen, it is already in proof before you Reasons of (indeed it is now a matter of history), the restric that an act of Parliament passed in the Catholice, session of 1778, for the repeal of certain restrictions, which the policy of our ancestors had imposed upon the Roman Catholic religion, to prevent its extension, and to render its limited toleration harmless; restrictions, imposed not because our ancestors took upon them to pronounce that faith to be offensive to God, but because it was incompatible with good faith to man—being utterly inconsistent with allegiance to a Protestant government, from their oaths and obligations, to which it'gave them not only a release, but a crown of glory, as the reward of treachery and treason.

It is not my purpose to recall to your minds the fatal effects which bigotry has, in former days, produced in this island. I will not follow the example the Crown has set me, by making an attack upon your passions, on subjects foreign to the object before you. I will not call your attention from those flames, kindled by a villainous banditti (which they have thought fit, in defiance of evidence, to introduce), by bringing before your eyes the more cruel flames, in which the bodies of our expiring, meek, patient, Christian fathers were, little more than a century ago, consuming in Smithfield. I will not call up from the graves of martyrs all the precious holy blood that has been spilled in this land, to save its established government and its reformed religion from the secret villainy and the open foree of Papists. The cause does not stand in need even of such honest arts; and I feel my heart too big voluntarily to recite such scenes, when I reflect that some of my own, and my best and dearest progenitors, from whom I glory to be descended, ended their innocent lives in prisons and in exile, only because they were Protestants.

ed by Sir George

Gentlemen, whether the great lights of science and of commerce, which, since These laws very those disgraceful times, have illu- suddenly repeal minated Europe, may, by dispelling Saville's bill. these shocking prejudices, have rendered the Papists of this day as safe and trusty subjects as those who conform to the national religion established by law, I shall not take upon me to determine. It is wholly unconnected with the present inquiry. We are not trying a question either of divinity or civil policy; and I shall, therefore, not enter at all into the motives or merits of the act that produced the Protestant petition to Parliament. It was certainly introduced by persons who can not be named by any good citizen It was, indeed, with astonishment that I heard without affection and respect. But this I will the Attorney General stigmatize those wise reg-say, without fear of contradiction, that it was ulations of our patriot ancestors with the title of factious and cruel impositions on the consciences and liberties of their fellow-citizens. Gentlemen, they were, at the time, wise and salutary regulations; regulations to which this country owes its freedom, and his Majesty his crown-a crown which he wears under the strict entail of professing and protecting that religion which they were made to repress; and which I know my noble friend at the bar joins with me, and with all good men, in wishing that he and his posterity may wear forever.8

sudden and unexpected; that it passed with uncommon precipitation, considering the magnitude of the object; that it underwent no discussion; and that the heads of the Church, the constitutional guardians of the national religion, were never consulted upon it. Under such circumstances, it is no wonder that many sincere Protestants were alarmed; and they had a right to spread their apprehensions. It is the privi lege and the duty of all the subjects of England to watch over their religious and civil liberties, in order to enforce his next leading thought; name8 After the strong statements of Burke respectingly, that the Protestant Association originated in justthis law (see p. 299), the reader will be surprised at these assertions of Mr. Erskine. He was probably in fluenced by his feelings as a Scotchman whose ancestors had been cruelly persecuted by the Catholics. Twenty-six years after, when Lord Chancellor, he was opposed to allowing Catholic officers in England to hold commissions in the army, as they had been permitted to do in Ireland since 1793; declaring that on this subject he thought "religiously and morally exactly as the King did." He here gives great prominence to his views of the original necessity of the law, confirming them by pointed references in the next paragraph to the persecuting spirit of Popery,

ifiable feelings, a point which was important to the defense of his client. This mode of shaping one part of his speech to prepare the way for and sup port of another, is one of the most admirable quali ties of Mr. Erskine, and is worthy of being studied with great attention by the young orator.

The bill was brought in by Sir George Saville, and supported, among others, by Mr. Dunning, Mr. Thurlow, and Lord Beauchamp, and passed into an act without any opposition in the House of Commons, and with very slight opposition in the Lords, and the King was known to have been favorable to it.