tions, the dread of future punishments. It highly then behoves those who are vested with authority to protect our holy religion, to persevere to protect it, and to punish those who are guilty of such offences. I cannot help adding, that the crime is farther aggravated by the motive in which it was conceived, as there can be no temptation for it; there can be no hope of gain, nor any sudden impulse of passion, to which man is so often exposed by the frailty of his nature: but it could have proceeded merely from a cool and malignant spirit. I must now make an observation or two upon the affidavit you have made. You state that the pamphlet which is the object of this prosecution was first published in the year 1794, and was publicly sold by several booksellers: this is, in effect, saying that because there are many men as wicked as yourself, you ought not to be punished: For my own part, I draw a direct contrary inference; for, if there are many who are so much more wicked than the others, as to publish so atrocious a lihel, it seems to me proper, that a severe example should be made; and it is a pity it had not been done sooner. You farther add, that you were not aware you were committing an offence against the law, or had any intention to detract from or vilify the established religion: Can any man who calls himself a Christian, pretend to say the publication of such a work was without that intention? A child who has had common attention shown to his education must know better: But it is fit I should tell you, that ignorance in no case can be allowed as an excuse; the moment a man engages in such a trade as you were carrying on, he contracts and enters into an obligation to see and know that every publication he sends out into the world, is consistent with religion, morality, decency and good manners; and if it is deficient in any of these, he is the person who must be answerable for, and take the consequences; and it is for the interests of all good governments that no such publications should be suffered to poison the minds of the people. This Court has taken the case into consideration and will not pass so severe a sentence as it perhaps would, only upon account of Mr. Erskine's suggestion, and had it not been that your attorney behaved so ill upon the occasion; they do not pass so severe a sentence as they would have found themselves bound to have done: Therefore the sentence they pass upon you is, that for this offence you be imprisoned in the House of Correction for the county of Middlesex, there to be kept to hard labour for the space of one year, and then to give security, on your own recognizance, in the sum of One Thousand Pounds, for your good behaviour for the term of your life. Mr. Williams.-I trust it will not be too great an indulgence that I may have a bed. Lord Kenyon.-I cannot order that: I dare say you will be treated properly. I wish to have it understood, that this sentence is a very great abatement of the punishment; as in modern times, within the period I have sat in Westminster-hall, three years imprisonment has been ordered for an offence of much less enormity than this; for this publication is horrible to the ears of a Christian. Saturday next after fifteen days from the Feast-day of Easter, in the thirty-eighth year of King George the Third. Middlesex.-The King against Thomas Williams. The defendant being brought here into Court in custody of the keeper of his majesty's gaol of Newgate by virtue a of Rule of this Court and being by a jury of the country convicted of certain trespasses contempts and grand misde meanors in publishing certain blasphemous libels whereof he is indicted it is ordered That he the said defendant for his offences aforesaid be imprisoned in the House of Correction in and for the county of Middlesex and there kept to hard labour for the space of one year now next ensuing And that he the said defendant do give security by his own recognizance in the sum of one thousand pounds for his good behaviour during his natural life And he the said defendant is now committed to the custody of the keeper of the said House of Correction to be by him kept in safe custody in execution of this judgment and until he shall have given such security as aforesaid. By the Court. 622. Trial of DAVID MACLANE for High Treason; before the Court holden under a Special Commission of Oyer and Terminer, at the City of Quebec in the Province of Lower Canada, on Friday the 7th day of July: 37 GEORGE III. A. D. 1797.* A Special Commission of Oyer and Ter- Jury, which was called over, and the follow miner, was issued on the 24th of May, 1797, under the Great Seal of the province of Lower Canada, impowering the justices thereby assigned, or any three of them (Quorum un' c.) to inquire, hear and determine all high treasons and misprisions of high treasons, committed within the district of Quebec. The Justices assigned were The hon. William Osgoode, his majesty's chief justice of the province; the hon. James Monk, chief justice of his majesty's Court of King's bench for the district of Montreal; the hon. Thomas Dunn, Jenkin Williams, and Pierre Amable Debonne, justices of his majesty's Court of King's-bench for the district of Quebec; the hon. Paulu Roc De St. Ours; the hon. Hugh Finley, the hon. François Baby, the hon. Joseph De Longueil, the hon. Pierre Panet, the hon. James Mac Gill, the hon. John Lees, the hon. Antoine Juchereau Duchesnay, the hon. John Young; members of the Executive Council. The chief justice of the province and the chief justice of the King's-bench of Montreal were of the quorum. ing gentlemen were sworn. Chief Justice Osgoode. of indictinent for the crime of high treason, Gentlemen of the Grand Jury;-The bills that have lately been found by the grand inquest of a neighbouring district, and the rethe same crime in the district of Quebec, afcent commitments that have taken place for ford abundant proof of the expediency of the The precept was signed by the chief justice, ture, for the better preservation of his maact passed in the last session of the legisla Mr. Justice Dunn, Mr. Justice Williams, and jesty's government, as by law happily estaMr. Justice Debonne; was tested the twenty-blished in this province.-On the present ocsixth day of May, returnable on Monday, the casion, however, it has not been necessary to twelfth day of June, which made fifteen days resort to any of the powers created under that exclusive between the teste and return. This act; and on account of the formalities and was ordered upon the precedent of the precept delays incident to the proceedings on an inissued for the trial of the Scotch rebels, indictment for high treason, as a considerable. 1746.t On Monday, the 12th of June, the Special Commission was opened at the Court-house in the city of Quebec. Present-The hon. chief justice Osgoode, the hon. Mr. Justice Dunn, the hon. Mr. Justice Debonne, the hon. Hugh Finlay, the hon. François Baby, the hon. Joseph De Longueil, the hon. Antoine Juchereau Duchesnay, the hon. John Young. The Commission was openly read. The sheriff then delivered in the panel of the Grand * Taken in short-hand, and printed at Quebec by W. Vondelvenden, Law printer to the King's most excellent majesty. + See Fost. 1, and, antè, Vol, 18, p. 329. VOL. XXVI. period of time must necessarily elapse before a trial could be had within the stated terms allotted for the administration of criminal justice;-His excellency the governor, has thought proper to direct the special commission you have now heard read, to issue.. This measure was adopted in tenderness to the parties committed-to relieve them from a long confinement should they be innocent, or for the benefit of a prompt example should they be guilty. It now becomes your duty, gentlemen, in consequence of this commission to inquire into such charges as shall be laid before you, respecting the crimes of high treason, or misprision of treason, within this district, and either to find or to ignore the same; and also to present any persons whom you may know to have cominitted the like crimes, 3 A should any such have come within your knowledge. crime under the term læse majesty, which he states to be, when a person attempts any In justice to the people of this province it thing against the king's life, or to raise sedishould be observed, that, from the first es- tion against him, or in the army, though tablishment of the British government in this what was designed be not carried into effect, colony, down to a certain period, the crime and that all those who give aid, counsel, or of high treason, so far from being committed, consent thereto, were equally involved in the had perhaps not been mentioned from the guilt. The law required an accusation of this bench, or even held a place in the enumera- crime to be made with all expedition, the intion of offences likely to be attempted. Till former was not to stay two nights, nor two this period, the Canadians, convinced by ex- 1 days in one place, nor to attend to the most perience that they had the full enjoyment of urgent business of his own: he was hardly, every privilege to which their ancestors had permitted, as is mentioned in the book, to been accustomed, and that they were also turn his head behind him, and the dissemexempted from many rigorous services inci- bling the charge for a time made him a sort dent to a government purely monarchical, of accomplice. contentedly lived under the king's mild dominion, and showed their satisfaction by a chearful submission to the laws. It need hardly be mentioned that the period to which I allude is that of the sanguinary revolution in France, since which time emissaries have been sent forth, as well native as proselytes, under the pretence of diffusing liberty, to disturb the quiet of all settled governments. Every symptom of disobedience, and the few instances of marked disaffection, that have appeared in this colony, may be traced to this cause of delusion. It is therefore some consolation to reflect that the evil is not of native growth, but has been introduced by the insidious arts of mischievous foreigners, practising on the minds of the ignorant and credulous natives. Since, then, commitments have taken place for crimes hitherto unperpetrated, and till of late unsuspected in this province, it becomes the duty of the bench to explain somewhat more fully, in the charge, the general heads of the offence imputed to the prisoners, that you, gentlemen, may be enabled to apply the principles laid down to the cases that may be brought before you. At the period when laws were framing, after the first formation of society, it must have occurred as a principle of natural justice, to those employed in reflecting on the subject, that the punishment to be inflicted on crimes should be proportioned to the enormity of the offence. To that end it became necessary to form a scale of crimes, of which the gradations should be regulated by the pernicious tendency of the act committed. The first object in framing laws is to establish certain rights and to secure them, as far as human sanctions may prevail, both for the preservation of the general body of society and for the protection of individual interests. As all crimes consist in the violation of some right the magnitude of the offence must depend on the nature of the right thereby violated; consequently, of crimes the greatest is that which is immediately destructive of government, and the smallest is the least possible injustice done to an individual. To this highly destructive crime different appellations have, at different times, been given. The earliest writer on the English law, has described this The crime, soon after, was designated by the term of high treason, and was described, by subsequent writers, according to the prevailing notions of the time it was generally understood to consist in a breach of the faith and allegiance due to the crown; which is a notion sufficiently correct; but the principal grievance arose from the want of a specific definition of those particular offences against allegiance which should constitute the crime of high treason. For, by a plausible kind of induction, many lawless acts of a criminal nature might, in those unenlightened times, be shown to offend against allegiance. It is therefore no wonder that piracy was understood to be classed among treasonable offences, as likewise the concealment of treasure trove. So was also an appeal to a foreign secular jurisdiction; for, this imported renouncing of the king's authority in his courts of justice. Counterfeiting the great seal, was, by some, held to be high treason, on account of the authenticity ascribed to the instrument, at a time when, from want of literature, some visible symbol was necessary to stamp a credit on public and private transactions of state; but, by others, the counterfeiting of the great seal, as well as of the king's money, was classed under a description of crime called fausonnerie or falsifying. The killing of a king's messenger was held to be treason, till at length the imputation of treason seemed to be affixed to every offence in which the king's name was mentioned. Among other extraordinary instances was the case of a person who had been sworn on the grand inquest, who, having revealed the evidence given upon an indictment for felony, was, for such disclosure, himself indicted of felony, and because he had not kept the king's counsel, according to the tenor of his oath, the offence was, by some held to be treason, but, of this the chief justice ventured to doubt. In those turbulent times it was customary for the powerful barons and other great men to redress their private grievances, and to en force what they thought their due by their own powers, this at length came to be construed into treason under the appellation of accroaching the royal power; thus in the case of a knight in the neighbourhood of London, who, with his followers, in a warlike manner, assaulted and detained another gentleman till he paid him ninety pounds and took away his horse, the knight was indicted" for accroaching the royal power within the realm, while the king was in foreign parts, by mani fest sedition against his allegiance." He was convicted and prayed his clergy, but it was refused him on account of the nature of the crime. This case happened in the 21st year of the reign of king Edward 3rd, and occasioned a petition in parliament, by the Com. mons, that it might be declared" in what cases they accroached the royal power;" to this petition, according to the custom of the times, an answer was given by the king, but the answer appears to be rather elusive and unsatisfactory. The grievances continued to be so oppressive, that the Commons would not be contented till some more precise and accurate declaration should be made on the subject, and accordingly they again petitioned the king in the 25th year of his reign, stating that many persons were adjudged traitors for divers causes unknown to the Commons to be treason, and therefore requesting, that the king would by his counsel and the great and wise men of the land, declare the points of treason in that present parliament." This petition gave rise to the celebrated statute of treasons, which has stood the test of succeeding ages without being altered in a single title to this day, on account of which and for other excellent laws passed by that parliament, it obtained the appellation of the blessed parliament. Hitherto I have been stating what was formerly held to be treason. I now proceed to show what is treason at this hour; for, on this statute it is that the indictments to be laid before you will be framed. The points or heads of treason declared by this act are seven in number. The first is the compassing of the death of the king, queen, or prince, and declaring the same by an overt act. The second is, the violation of the king's consort, the king's eldest daughter unmarried, or the prince's wife. The third, the levying of war against the king in his realm. The fourth is, the adhering to the king's enemies, giving them aid and assistance within the realm, or elsewhere. The fifth, the counterfeiting the great or privy seal. The sixth, the counterfeiting the king's coin, or bringing counterfeit coin into the realm. The seventh, the killing of the chancellor, treasurer, justice of the one bench or other, justices in Eyre, justices of assize, justices of Oyer and Terminer in their places doing their offices. In this statute it is observable, that an express exception is made, probably in reference to the case of the knight already stated to have given rise to the former petition, that if a man shall ride armed against another with intent to kill or imprison him, it shall not be adjudged treason, but felony or trespass, as the case may be, according to the ancient usages of the realm. The statute farther requires expressly, that the party accused of the different kinds of treason therein declared, shall be attainted upon sufficient proof of some open act, by men of his own condition. Some of the treasons thus specified do, of themselves import an open act, such as counterfeiting the seals or killing the chancellor. Others again respect the intention of the mind, such as compassing the king's death. But as, to discover the secret purposes of the heart is the attribute of Omniscience alone, as it would be highly presumptuous and dangerous in huẻ man tribunals, to take cognizance of the compassing of men's minds, without some substantial evidence of the intention. The law therefore requires that such compassing be proved by some open act. Farther, it has been determined that mere words alone, with out reference to some design on foot, or unaccompanied by some act, will not amount to treason; the observation being, that words may make an heretic, but not a traitor, without an overt act. Writings also of a treasonable tendency, while they remain unpublished and unconnected with any actual project, will not make a man a traitor, how pernicious soever their theory may be, but on the other hand, as all writings import a deliberate act, and more especially when published, so they may be produced as overt acts of different kinds of treason. Thus Cardinal Pole, who, though a subject of Henry 8th, and related to him in blood, wrote and published a book in which he incited the emperor Charles 5th, at that time preparing war against the Turks, to bend his force against England, and against Henry 8th the cardinal's natural sovereign and liege; the writing of this book is stated, by lord Coke, to be a sufficient overt act within the statute of compassing the king's death, but not of the branch of adhering to the king's enemies, because at the time of publishing the work as has been justly observed by sir Matthew Hale, the emperor was at peace with the king: from which it may be inferred that, had the emperor been at that time an enemy, it might have been charged as an overt act of giving aid and assistance to the king's enemies. Moreover, where papers relating to certain determinate treasonable purpose, proved to be the handwriting of the party accused, are found in his possession, they may be given in evidence against him though unpublished. For, it is admitted by sir Michael Foster one of the most intelligent and liberal of those who have discoursed upon high treason, that, had the papers found in Mr. Sydney's closet been plainly relative to the other treasonable practices, charged in the *Sec Sydney's trial, antè, Vol. 9, p. 817. indictment, they might have been read in evidence against him though not published. So likewise, if words are used with regard to some treasonable design, and are accompanied by an act tending to the same purpose, and proof thereof is given, the words coupled with the act will amount to treason. This has been adjudged in the case of one Crohagan, who, being at Lisbon, said, I will kill the king of England if I can come at him, the indictment having set forth the words, and it being charg ed that he came into England for that purpose, this overt act being proved, he was convicted of high treason. To show how religiously the words of this statute have been attended to, and fully to explain the nature of an overt act, I shall mention the most memorable case that ever occurred on this head of treason, which was that of the regicidest of Charles 1st; they were not indicted for murdering the king, but for compassing his death and his execution by warrant under their hands, was given as an overt act of such compassing. Another head of treason is that of levying war against the king in his realm; this is either positive, or constructive. It is positive so far as it applies to any rebellious insurrection by a pretender to the throne or factious demagogue, with drums or trumpets, in martial array, either to dethrone the king, or to take him into their power. under pretence of altering the measures of government, or of removing evil counsellors. By construction of law it extends to those cases where insurgents move not immediately against the king's person, but for the purpose of carrying into execution any general and illegal design, such as to pull down all turnpikes, to destroy all meeting houses, to expel all foreigners, to reform any real or imaginary grievance of a public nature, in which the insurgents have no particular interests (for the law has provided a peaceable mode of seeking redress in these cases by petition to either branch of the legislature). But, as it was solemnly resolved in a recent case, every attempt, by intimidation or violence to obtain the repeal of a law, comes within this branch of the statute, and is treason. Another head of treason is that of adhering to the king's enemies, and giving them aid and assistance within the realm or elsewhere. From the nature of the depositions taken on the commitment, it is probable that the indictments may have some reference to this charge. By the cases on this branch of treason it has been adjudged, that it is not neces sary the aid and assistance intended should actually be carried into effect. Lord Preston and two other gentlemen intending to join James the 2nd, after his abdication, were taken on the river Thames on their passage to France, with letters and papers to induce Antè, Vol. 5, p. 947. + See his case, untè, Vol. 12, p. 645. H Louis 14th, to promote a scheme for invading the kingdom in favour of king James. This setting off was determined to be an overt act of their intention to aid and assist the king's enemies, and although they were apprehended before any part of their traitorous design was carried into effect and before they had even quitted the realm, yet, the act of embarking with such intention being found by the jury, it was held to be a sufficient act of adhering to the king's enemies, and the parties were convicted much about the sametime, when there was a war between England and France; one Vaughan obtained a commission from France and went upon a cruise against the king's subjects, he was taken near the Downs, and though no other act of hostility was proved or charged against him, yet, the act of cruising was held to be a sufficient adherence to the king's enemies and he was convicted and executed. In queen Anne's time it was discovered that one Gregg,* a clerk in the secretary of state's office, gave notice by letter to the French ministry, of the number and destination of a body of troops going on some military enterprise; his letters were intercepted, and he was thereupon indicted of high treason for compassing the queen's death and adhering to her enemies; he pleaded guilty to the charge and was executed. Another case on this branch of the statute occurred towards the latter end of the reign of his late majesty George 2nd, and was that of Florence Henseyt a physician who was indicted of high treason for compassing the king's death, and for adhering to, aiding and corresponding with the king's enemies; the overt act charged against him was the writing of letters, soliciting a foreign prince to invade the realm; now, although these letters were intercepted, and never reached their place, from which to ordinary comprehensions it might seem that his offence was not very hurtful; yet, lord Mansfield laid it down as a point most undoubted that the offence of sending intelligence to the enemy of the destinations and designs of this kingdom and government, in order to assist them in their operations against us, or in defence of themselves, is high treason. From the principles of these adjudged cases it may therefore be concluded that, should any person being a confederate with, or employed by the king's enemies, declare an intention of coming into the province, at a given or any time, with a design of promoting an insurrection, either to surprise a king's fortress or to deliver any part of the province into the hands of the enemy, and he do actually come in with such intention, the same is unquestionably an overt act of adherence and is high treason. The same law was laid down in lord Preston's case, when he was told by lord C. J. Holt" Your lordship took * See his case, antè, Vol. 14, p. 1371. † See the case, antè, Vol. 19. p. 1841, |