and affected even to the loss of speech, handed in the vérdict, with a recommendation to mercy, which was taken by the clerk.

The judge promised to lay their recommendation before government, and it was understood by some that he would represent his case favourably himself. But, on the following day, he mentioned in court that he had not pledged himself so to do, but had immediately transmitted by express the recommendation of the jury.

The prisoner heard the verdict without the smallest agitation, and was immediately remanded to gaol.

On Monday the 18th, Mr. Justice Chamberlaine, by desire of Lord Yelverton, assisted in court.

A motion was made by the prisoner's counsel in arrest of judgment, and argued at considerable length by Mr. Curran, followed by Mr. Sampson. The arguments consisted of two branches; 1st. That no crime was alleged upon the record of which the court have any cognisance, or upon which any judgment could be passed; 2dly. That the act of parliament upon which the prisoner was indicted was no longer in existence.

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As to the first point, it was said, that the charge in the indictment was, that the prisoner did contemptuously, maliciously, and feloniously administer a certain oath, or engagement, upon a book, which oath and engagement imported to bind said Wheatly to be of an association, brotherhood, and society, formed for seditious purposes.

Another count for procuring him by threats and persuasions to take like oath.

Another count was for contemptuously, maliciously, and feloniously administering an oath not to inform against a seditious confederacy.

And another for procuring him by threats and persuasions to take such oath.

Such were the several charges against the prisoner; but still it came to the same thing. The question was, whether

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there was any direct averment of the criminality of the obligation? It was now to be taken ex concessis, that every oath administered by a person not duly qualified by law, was not a capital felony within the insurrection act, for that would be to make felons guilty of death upon the gallows, not only all the free-masons and friendly brothers in the kingdom, who take oaths of secrecy as to the concerns of their respective institutions, but most certainly those persons who have associated secretly and mysteriously under the denomination of Orangemen in this unfortunate kingdom. This being the case, the criminality of the association was the only thing to be inquired into, and if this be not specifically and distinctly alleged upon the record, there can be no judgment; for the most incontrovertible principle of our law, both criminal and civil, is, that every judgment must be secundum allegata et probata. It is not enough that it be proved unless it be alleged, no more than it is enough to allege it without proving it; for, suppose the grand master of the masons of Ireland were to be indicted for seditiously, contemptuously, maliciously, and feloniously administering, or persuading any one to take an oath to keep secret what should be revealed to him, or to be present at the administering of an oath, binding any one to be of a society, or keep the secrets of a society, to which was to be tacked the words "formed for seditious purposes," and evidence were given of his being a free-mason, and having actually administered an oath of secrecy, and an ignorant or prejudiced jury to find him guilty, because it was clearly proved that he belonged to an association bound together by an obligation of secrecy, would any learned judge, even though there were such finding, caring for the laws, pronounce sentence of death upon that record, merely because there was the epithet "malicious," inserted, which is no more than a word of course; or because it was said to be a seditious association, without showing how or wherein it had been seditious?

If a man were to be indicted for "not having the fear of God before his eyes," and a jury were to find him guilty, surely no judge would pronounce any sentence against him; for, in the words of the law, no indictment would lie for not having the fear of God before his eyes, and, as surely, none would lie "for being seditious," much less "for binding another to be seditious." The law in most cases was so jealous of fanciful or constructive charges, and of multiplying offences indefinitely, that it expressed crimes by technical terms so precise, and definitions so exact, as to exclude all inference or construction. Thus, murder is a homicide of malice aforethought; burglary, a breaking of a dwelling-house in the night, with intent to commit a felony; and so of other offences. Now, when the law has appropriated any complex term to express a crime, no periphrasis can be admitted, because of the uncertainty; but, when there is no such term, the crime must be alleged as clearly as language can express it. Juries answer as to the matters of fact, the judges to the point of law; the jury is sworn to decide according to the evidence, the judge must look to the record, as the warrant of his judgment. If it do not state some distinct offence, let the verdict be as it may, he cannot take upon him to give judgment; for, though the grand jury may find facts, they cannot find cr mes not known to the law.

The rule of construction in all indictments is well laid down in 2 Hawk. 320. tit. Indictment, sect. 57. "That the special matter of the whole fact ought to be set forth with such certainty, that it may judicially appear to the court, that the indictors have not gone upon insufficient premises." And upon this ground it is agreed, that an indictment finding that a person hath feloniously broken prison, without showing the cause of his imprisonment, by which it might appear that it was of such a nature, that the breaking might amount to felony is insufficient. An indictment charging a man with a nuisance, in respect of a fact which is lawful in itself, as the erecting of an inn, and which only becomes

unlawful from particular circumstances, is insufficient, unless it set forth some particular circumstances which make it unlawful. An indictment for perjury must show in what manner, and in what court, the oath was taken; an indictment for procuring must show the false tokens.

Ir the same book, page 322. sect. 59. it is said, that every indictment must charge a man with some particular offence, or else with several particularly and certainly expressed, and not with being an offender in general; for no one can tell what defence to make to a charge so uncertain, or to plead it either in bar or abatement of a subsequent prosecution. Neither can it appear that the facts given in evidence against a defendant, on such a general accusation, are the same of which the indictors have accused him. Neither can it judicially appear to the court what punishment is proper for an offence so loosely expressed. Therefore, it is not sufficient to charge a man with being a common defamer, a disturber of the peace, or of being a man of evil behaviour, or a common conspirator. The only exception to this rule is a common barrator, and that because it is a term of art. And so cautious is the law of giving a dangerous latitude, even in a single instance, that it has rendered it necessary to give the defendant a note of the particular act of barratry intended to be proved against him. So, though in cases of libel, the words "malicious" and "seditious" be used, the purport or tenor must be set out. And, lastly, this rule, applicable universally to all cases, is emphatically laid down in the same author, page 324. "That in an indictment nothing material shall be taken by intendment or implication;" yet, on this record is no specification of the nature of that which is called sedition; all is inference, uncertainty, implication, presumption and intendment. To administer an oath, not being duly qualified by law, is a misdemeanor, the punishment of which, according to its circumstances, is intrusted to the discretion of the judge; but what the sedition is which should make this a crime worthy of death, to warrant

the judgment upon the record, is an inference which the judge must take upon himself to draw now, and posterity must inquire in vain.

Indeed, the statute explaining the insurrection act, 37 Geo. III. which states, that administering an oath to be of any association, brotherhood, society, committee, or confederacy whatsoever, was felony within that law, shows, that it was not so before; at least, that it was doubtful, and, if so, it should be an argument against taking away life, where that explanation was ex post facto. Secondly, it was argued, that the statute was expired, and being so, no proceedings could be had under it. 1 Hawk. 169. it is laid down, p. 40. sect. 6. if one commit an offence which is made felony by statute, and the statute be repealed, he cannot be punished as a felon in respect of that statute. And, 2 Hale, 291. where an offence is made felony by statute, and the act repealed, the offences committed before such repeal, and the proceedings are dis charged, and cannot be proceeded upon, after such repeal, unless a special clause in the act of repeal be made, enabling such proceedings after the repeal for offences committed before the repeal. Hale, 309. is to the same point. Now, though it might be possible to draw subtle distinctions between an act expired and an act repealed, yet, in substance, it is the same. In both cases, the law ceases to have any force; and as the penalties in all are supposed to warn rather than to revenge, it cannot be good policy to take away the life of a man, when the example can be of no use to deter others, inasmuch as thereafter, there can be no such offence against it. Where, prior to the statute 7 and 8 Wm. III. one was convicted of an offence before a commission of oyer and terminer, and the king died before judgment, no judgment could afterwards be, because the authority of the judge was determined. How much stronger is it where the law itself is determined.

It only then remained to show, that the act was expired, which it was argued would appear as well from the words of it, as from the circumstances under which it was made.

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