The Sun.
London, England, 1840-01-09 00:00:00

MORNING EDIT EON.

with others, and others in concert with him. It is not
etieugh to prove that he has done all these acts, but they
must also prove that he levied war against the Queen and
her Government, Nor does what is required stop over.
here, for it must be further proved to you that he has
thus levied war against the (keen and her Government
with the intention and design Stated in this indict
ment; and moreover, to which I shed hereafter have to
cal your attention, these three things must be established
by the evidence for the Crown—not that the prisoner
mustbe called upon to disprove them, but that they. must
be es tablished before you in behalf of the prosecution, by
clear, direct, positive, affirmative evidence • and these threes
things must then be provcd—first, that the prisoner levied
war; next, that he levied tsar against her Majesty; and,
thirdly, that he levied war with the intention stated in the
indictment, which is, by force to alter the laws and to sub
vert and overturn the Constitution of this realm. To the
investigation of the proof as to these three points, then,
Gentlemen, I beg to implore your most careful attention.
It is, Gentlemen, extremely necessary, inasmuch as for
centuriesoiit?n,,assttmhbeauecotswhttrheu:egsrn,gle has existed on the law of high treason ;
manadn that
s thea
as to
ror uolstlvvgln3laeto,
shall
hv htahlelen
beoevnaedr
deemed
et
sidem heaadsnbhdei
high
e tsub-
jectrmadee_
r
oisnoungnTlitnit,tioisb,et
that swat
watched,
t,i
cshlexceedinglyead,s: acnfdtreason,
h ai
sr n
been
eo
err
more
important
at
tthchaiajt
watched,
nu shouldrtth jealous
er
ab law,oe
ua
and great caution, not mere‘ y by Judges, but more esp,. eially
by Juries, because to their protection only the subject can
look for safety against the otherwise overwhelming power
of the Crown. And it has happened in the course of cen-
turies that Englishmen who have Leen in vom.situation—
who have occupied the honourable post which you now oc-
cupy at this moment—l venture to say that, under
.Provi-
dence, to them, to a British Jury, to a Jury compors:d of
honest, bold, loyal, brave, uncompromisirg Englishinenn
that we are at this moment indebted for all the freedom
which we now enjoy. Yes, Gentlemen, to them, to their
discrimination, to their courage, to their justice—breast-
ing and opposing the power of the Crown--,o Juries,
your predecessors in eases of high treason, we owe that
the unhappy prisoner now at the bar, and all others who
may hereafter be in his situation, may stand forward and
claim the defence of the law, now rendered liberal, en-
lightened, and just, and may throw himself for his guilt or
his innocence, for his I.fe and death, upon the judgment
of a Jury of his peers and fellow-countrymen. And I
again call on you, as the Attorney-General has done,
and as I am sure you will do, to discharge that
duty committed to you fearlessly, firmly, and im
partially, as your predecessors have dune, and in
such a way as shall confer honour upon yourselves,
and ensure the safety and liberties of yell: fellow
countrymen. Having made these preliminary obsWations,
I now proceed to call
..our attention to the maunerin which
the law is laid down by those high authorities whose doc-
trines are not to he impugned, and who ought to guide
your mind in the consideration of this case ; and I do this
with the less reluctance, Gentlemen, for if ever there was
a case in which it became the duty of an advocate to press
the law upon the Jury, it is the ease now before us. For
I do not stand here to deny that Mr, Frost, the prisoner at
the bar, is guilty of a great and enormous offence—that
he had been party to a riot of the most eerious and alarm-
ing character—that, although he hirriselr .IM9 been guilt-
less of the fact, he has joined with those who afterwards
have shed human blood—Gentlemen, it is right to say that
Mr. Frost deeply deplores and deeply mourns the melan-
choly < ccurrences of that unhappy day, and perhaps even
those who have most severely suffered from it, and who
have increased it, cannot deplore them more. lie is
guiltless of the act himself; still it must be admitted that
he bore a part in forming and leading, if you please, those
men who afterwards, in the excitement and frenzy of
I the moment, committed the crimes which ail so deeply
laatent. It is because of the unfortunate part vehich Mr.
Frost bore in the transactions of that day—it is be-
cause of the deeds and outrage of the armed enulti--
tude—it is becausa of the destruction of peace, of p
perty, and of lives which then occurred—it is be"-
ro
cause you very naturaily feel that thOse concerned in such
outrages are deserving of serious punishment, and because
you may possibly confoued
in your own minds the guilt
which is admitted to be ascribable to the prisoner, with the
more serious guilt charged against him by this indictment,
that 1 am the more especially
enopelled to ask and be-
seech vou to bear in mind the distinction between this
species of guilt and treason, and to pa; your most careful
attention to the undoubted authorities betvhich this distinc-
tion is established between levying war not of a trea
against the
sonable character, and levying of war
the guilt
inriend the
of high treason. Gentlemen, my Learned
c,
Queen, so as to make the parties participate
Attorney- General, very accurately, and, as becom aaia ba:
meter and situation, very fairly and honourably ,declared
the law to you on the subject. I will not, therefore. :
cause I cannot in equally clear and emphatic language, re
peat to you how the law stood before the statute of Edvveral
111., by which you arc now to be guided, and which I arts ,
sorry to say, with frequent interruptions, has formed, and
at present forms, the great safeguard of the liberties of
this country. He truly told you that under that statute
elf past indefinite constructive treasons; were put an
end to, that the statute declared what the law of treason
was in such terms as that it was hoped by the honest Le-
gislature of that day that no Englishman who could read,
or who had organs to hear when another read, could even
through ignorance be betrayed into this serious crime, or
ever incur the guilt of it without knowingly -comneitting
the highest crime cognizable by law. This statute, i be-
lieve, has been strictly observed since its enactment, excepae
ing that part of it, under whieb this question now arises, as
relotes to the levy ing of war. Yon hod, Gentlemen, that
Lord Ila.le, after commenting in terms pf high approbation
on the statute of Edwardlll.; after dealing
with the question
of compassing and imagining the death of the Sovereign,
which does not arise here, it not being imputed to Mr. Frost—
proceeds to consider the question of levying of war. and
speaks of that act in a manner which becomes one of his high
character, learning, and humanity, and draws attentien to
the distinction between mere levying of war, which in-
cludes going and attackieg her Majesty's subjects with an
armed force, military array, and discipline, and that fur-
ther crime of levying war against the Sovereign which is
necessary to constitute treason. In his 14th • chapter, p.
130, lie says, that in order tc constitute the crime of trea-
son, and to bring the offender within the clauses Pf the
Statute, these three things must concur—First, it must
be a levying of war ; secondly, it must be a levying of was'
against the King ; thirdly, it must be a levying of sear
against the King in his own realm. So that, however,
war may be levied, Gentlemen—if a! man go at the bead
of 10,000 or 100,000 men—if he march across the country
ai:4 seize, imprison, or even put to death the Queen's
subjects, that is a levying of war certainly, but it is not
high treason, arid, to make it high treason, it must go
farther, and the war so levied must be levied against the So-
vereign. I now, Gentlemen, come to the question what
is a levying of war against the Sovereign? And here
we have undoubtedly to lament that from the time of the
passing of this statute, whereas all other treasons were
held strictly to be only treasons when they came within
the precise and definite words of the statute, from causes
to which I may perhaps briefly advert—from the power of
the Crown, from the corruption of Judges, end, what is
still more to be regretted, from the servility of Jurors—
what is called a constructive levying of war against the
Sover, inn has occasionally been admitted in direct con-
travention of the terms and spirit of this admirable statute.
Much is it to be lamented that the Crown should, during
the struggles of other days, have thus triumphed over the t
independence of Jurors and the clear duty of Judges.
13ut 1 will venture to say that had such Judges heretofore
presided on the Bench as we have been blessed with in
more modern times, no such construntnon would ever
have been recorded in our legal annals'. Gentlemen,
the point to which I am desirous to call your partleular
attention at this stage of the case is that there is a distinc-
tion between mere levying of war and treason agaost t'ne
Sovereign. You can all understand that to levy war against
the Sovereign of the country is not a riot. To constiSute
a levying of war there must be marchings of armed banela
—there must be military array and military discipline—
there must be the raising of regular forces to make war
against the forces of the Sovereign, as a foreign enemy
would do, or as has occurrsd in the rebellion of 1745, or
the rebellion of 1715, or any other civil war in which fumes
were drawn up. That is the adinary and plain meaning
of the levying of war. That is the.
.construction which a
ury would put on it, and I say that it ought always to have
er the acts
been left to a jury, as a question of fact, eieth
proved before them amounted to a le.vyiee of war a
; but
unhappily, Gentlemen, in the time of Henri Vi
ether
ber of misguided men rose up and combined tog
against a statute which had been passed regulati,'g the
11. num_
wages of labour. They thought, I suppose, their w.ll-75
were not high enough. They wished to have :ace
labour and high wages. They rose up, I will in):
say into rebellion, although it was afterwards held
so, but into open tumult, to oomph the audio-
ritics to alter the law, to repeal the statute, and that
which under such Judges as now preside upon our
bench would be called no more than a common offnice,
such as a mere assault upon a constable, was in those day's
held to be a levying of war against the Sovereign, and high
treason. There, Gentlemen, was laid the foundation of
constructive and interpretative treason ; and that shows
the danger ,which I know you will avoid in this case, of
stepping one hair's breadth beyond the strict law of reason ;
and justice. The facts of a case strained, perverted, dis-
torted, amounting to a mere tumult, was held to be a levy-
ing of war against the Sovereign. Whet was then fact is
now become doctrine. The foundation which was then laid
is now embodied, and so you must be guided. Gentlemen,
I shall not trouble you with other decisions that have been
pronounced of a similar nature. I believe in the next reign
meetings to pull down enclosures were held to have been
levying of war. Still in those days the Judges were not in-
dependent. They gave way, they yielded, they humblod
themselves for the Crown, upon which they were depen-
dent for their offices. The consequence was, that, as often
as the Crown required it, ay, and often by consulting with
the Judges before the cases were brought before a Jury,
they were held to be a levying of war; so the breaking
of inclosures was held to be a levying of war against the
Queen and high treason. Gentlemen, I have referred to
these cases for two purposes : first, for the purpose of urging
what I shall not again repeat, because I feel that in what I
have said I have not spoken in vain, for the purpose of urg-
ing upon your calm and dispassionate attention the grievous
danger to life and liberty which would arise from over-
straining law
idmopbojretcati
ae
n. d Ir
fhearl lynoouwt-
to
rt‘oieme
te dm,
aGn
ye nht
ul enme
re
end, t
yo e ma
rys'
straining law or fact in a case of such mighty and tremens
et toe subject v vh
after the passing of tile statute, and in some reigns after the
daC3.i s oo nn s h
ich lofhathees alluded,
nt the
Theat Lfiorrsdt Hale
reso-
lution
s
that I find of this interpretative levying of war, is a
resolution cited by my Lord Coke, P. C., page 10, in the
time of Henry VIII., for enhancing servants' wages ; and
the next in time was that of Burton, 39 Elizabeth, Coke,
P. C., page 10, for raising an armed force to pull down
inclosures generally. This is now settled by these instances
and some of the like kind hereafter mentioned. The
proceeding against Burton and his companions was not
upon the statute of the 25th of Edward 111., which
required that in new cases the Parliament should
be first consulted ; but u son the statute of the 13th
of Elizabeth, for conspiring to levy tear, which bath
not that clause of consulting the Parliament in new oases;
and therefore seems to leave a latitude to the Judges to