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699. Proceedings in the High Court of Justiciary at Edinburgh, on two successive Indictments, raised by his Majesty's Advocate, against WILLIAM EDGAR, for administering unlawful Oaths, April 9th, May 26th : 57 GEoRGE III.

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“William Edgar and John Keith, both resent prisoners in the Castle of EdinÉ. you are indicted and accused, at the instance of Alexander Maconochie of Meadowbank, his majesty's advocate, for his majesty's interest: That albeit, by an act passed in the fifty-second year of his present majesty's reign, intituled, “An act to render more effectual an act passed in the thirty-seventh year of his present majesty, for preventing the administering or taking unlawful oaths, it is inter alia enacted, “That every person who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at the administering, of any oath or engagement, pur. porting or intending to bind the person taking the same to commit any treason or

VOL. XXXIII.

murder, or any felony punishable by law with death, shall, on conviction thereof by due course of law, be adjudged guilty of felony, and suffer death as a felon, without benefit of clergy.” And further, by section fourth of the said act, it is enacted, “That persons aiding and assisting at the administering of any such oath and engagement, as aforesaid, and persons causing any such oath or engagement to be administered, though not present at the administering thereof, shall be deemed principal offenders, and shall be tried as such; and on conviction thereof by due course of law, shall be adjudged guilty of felony, and shall suffer death as felons, without benefit of clergy; although the persons or person who actually administered such oath or engagement, if any such there shall be, shall not have been tried or convicted,' And further, by section sixth, of the said act, it is enacted, “That any engagement or obligation whatsoever, in the nature of an oath, purporting or intending to bind the person taking the same to commit any treason or murder, or any felony punishable by law with death, shall be deemed an oath within the intent and meaning of this act, in whatever form or manner the same shall be administered or taken, and whether the same shall be actually administered by any person or persons to any other person or persons, or taken by any other person or persons, without any administration thereof by any other person or persons: YET TRUE. It Is AND of verity, that you, the said William Edgar and John Keith, are both and each, or one or other of you, guilty of the said crimes, or of one or more of them, actors or actor, or art and part: . In as far as you, the said William Edgar and John Keith, having, at Glasgow, and in the vicinity thereof, in the course of the months of November and December 1816, and of January and February, 1817, wickedly, maliciously, and traitorously conspired and agreed with other evil-disposed persons to break and disturb the public peace, to change, subvert, and overthrow the government, and to excite, move, and raise insurrection and rebellion, and especially to hold and attend secret meetings, for the purpose of obtaining annual parliaments, and

universal suffrage, by unlawful and violent means, did then and there, both and each, or one or other of you, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering, to a great number of persons, an oath or engagement, or an obligation in the nature of an oath, in the following terms, or to the following purport:—“In awful presence of God, | A B, do voluntarily swear, That I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every description, who are considered worthy of confidence; and that I will persevere in my endeavours to obtain for all the people in Great Britain and Ireland, not disqualified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation, and annual parliaments; and that I will support the same to the utmost of my power, either by moral or physical strength as the case may require: And I do further swear, that neither hopes, fears, rewards, or punishments shall induce me to inform on, or give evidence against any member or members, collectively or individually, for any act or expression done or made, in or out, in this or similar societies, under the punishment of death, to be inflicted on me by any member or members of such societies. So help me God, and keep me steadfast.” Which oath or obligation did thus purport or intend to bind the persons taking the same to commit treason, by effecting by physical force the subversion of the established government, laws, and constitution of this kingdom. And, more particularly, you, the said William Edgar and John Keith, did, upon the 1st day of January 1817, or on one or other of the days of that month, or of December immediately preceding, or of February immediately following, at a secret meeting held for that and other unlawful purposes, in the house of William Leggat, change-keeper in King-street, Tradeston, in the vicinity of Glasgow, or elsewhere at Glasgow, or in the intimediate vicinity thereof, both and each, or one or other of you, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering an oath or obligation in the terms above set forth, or to the same purport, to Peter Gibson, John M“Lauchlane, John Campbell, and Hugh Dickson, all present prisoners in the Castle of Edinburgh; as also to James M“Ewan, now or lately carding-master at Humphries Mill, Gorbals of Glasgow, and M“Dowal Pate or Peat, now or lately weaver in Piccadilly-street, Anderston, in the vicinity of Glasgow, who, conscious of their guilt in the premises, have absconded and tied from justice; as also to

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John Connelton, now or lately cottonspinner in Calton of Glasgow, or to one or other of them, and to other persons, whose names are to the prosecutor unknown, the said oath or obligation, thus binding, or [..."; to bind the persons taking the same to commit treason, as said is. (2.) And further you, the said William Edgar and John Keith, did, upon the 4th day of January, 1817, or on one or other of the days of that month, or of December immediately preceding, or of February immediately following, at the house of Neill Munn, innkeeper and stabler, in Ingram-street, Glasgow, or elsewhere at Glasgow, or in the immediate vicinity thereof, both and each, or one or other of you, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering an oath or obligation in the terms above set forth, or to the same urport, to the said Peter Gibson, John

‘Lauchlane, John Campbell, Hugh Dickson, M*Dowal Pate, or Peat, and James M“Ewan; as also to James Hood, Andrew Somerville, John Buchannan, and James Robertson, all present prisoners in the Tolbooth of Glasgow, or to one or other of them, and to other persons, whose names are to the prosecutor unknown, the said oath or obligation thus binding, or purporting to bind, the persons taking the same to commit treason, as said is. And you the said William Edgar having been apprehended and taken before Daniel Hamilton, esquire, one of the sheriffs-substitute of Lanarkshire, did, in his presence at Glasgow, on the 6th day of March, 1817, emit and subscribe a declaration; and having been taken before Robert Hamilton, esquire, Sheriff-depute of Lanarkshire, you did, in his presence, at Glasgow, upon the 7th and 8th days of March, 1817, emit and subscribe two several declarations: And you the said John Keith having been apprehended, and taken before the said Robert Hamilton, esquire, did, in his presence, at Glasgow, on the 6th and 7th days of March, 1817, emit and subscribe two several declarations: All which declarations, being to be used in evidence against each of you respectively, will be lodged in due time in the hands of the Clerk of the High Court of Justiciary, before which you are to be tried, that you may have an opportunity of seeing the same. At least, times, and places foresaid, the said oath or engagement, or an oath or engagement to the same purport, was wickedly, maliciously, and traitorously administered, or caused to be administered; and some persons did aid or assist at the administering thereof; and you the said William Edgar and John Keith are both and each, or one or

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James White, tobacconist in Dalkeith.
Robert Lyle, baker there.
John Wood, merchant there.
John Brown, farmer, Carrington.
Andrew Johnston, farmer, Primrose-barns.
County of Haddington.
William Aicheson, junior, of Drummore.
John Sommervill of Moreham.
William Hay, farmer, Howden.
John Brodie, farmer, West Fenton.
Robert Hope, farmer, Fenton.
County of Linlithgow.
William Glen of Mains.
William Dawson, younger, Bonnytoun.
John Trotter, farmer at Stacks.
Robert Taylor, residing at Blackness.
George Turnbull, farmer at Northbank.
City of Edinburgh.
Robert Fraser, jeweller in Edinburgh.
Thomas Richardson, merchant-tailor there.
David Whitelaw, watch-maker there.
Peter Peddie, trunk-maker there.
William Trotter, upholsterer there.
Alerander Russell, coach-maker there.
John Interarity, upholsterer there.
George Yule, merchant there.
Alexander Ainslie, saddler there.
John Steel, confectioner there.
James Innes, gunsmith there.
Daniel Forrest, hosier there.
Peter Sawers, saddler there.
George Hunter, merchant there.
William Ross, tailor there.
Charles M'Lean, draper there.
John Laing, saddler there.
John M'Pherson, tailor there.
Francis Davidson, confectioner there.
William Cooper, boot-maker there.
William Dumbreck, hotel-keeper there.

Town of Leith. John M'Kenzie, merchant in Leith. Archibald Cleghorn, corn-merchant there. Thomas Morton, ship-builder there. Robertson Paterson, painter there. Charles Robertson, merchant there. John Sanders, agent there. John Glover, wright there. AD. GILLIEs. D. Mony PENNY. - DAvid Douglas. Lord Advocate.—From certain circumstances, I find it proper to move the Court to desert the diet against John Keith pro loco et tempore. He will therefore be committed to prison upon a new warrant.

[This motion was accordingly agreed to.]

Lord Justice Clerk.-William Edgar, what do you say to this indictment —Are you guilty or not guilty of the charges contained in it?

William Edgar.—Not guilty, my Lord.

Mr. Cranstown.—I am of Counsel in this case for the prisoner at the bar. The indictment, which your Lordships have just heard read, charges the prisoner with a capital offence, that of administering an oath purporting or intending to bind the takers to commit the crime of treason. My lords, this is not a point of dittay recognized by the ancient and common law of Scotland; neither the nature of the offence itself, nor the manner in which it is to be charged, is pointed out by any precedents or authorities familiar to your Lordships. It is an offence recently introduced by a special statute; and, so far as I know, no trials have taken place hitherto upon that statute in Scotland, according to your forms. It will be admitted, that this crime is of a nature peculiarly delicate. The life of the prisoner at the bar may depend on the construction to be put on words, alone, without reference to overt acts by which they may receive a clear and unambiguous interpretation.

To administer an oath without judicial authority

is perhaps not a very commendable practice,” and in a moral point of view it may sometimes be improper, as tending to lessen the obligation of an oath, when thus applied to frivolous or improper subjects, or on frivolous and improper occasions. But, my lords, at the same time, it is not in itself an illegal thingt it is prohibited by no law; and I understand, and am well informed, that it is a common

* Lord Coke says (3 Inst. 165) “Oaths that have no warrant by law, are rather nova tormenta quan sacramenta; and it is an high contempt to minister an oath without warrant of law, to be punished by fine and imprisonment.” The court of King's Bench has often reprehended, and discouraged as much as possible, the taking of voluntary affidavits by justices of the peace, in extrajudicial matters. In the case of Bramah v. The-–Fire Insurance Company, Mich. T. 1800, in B. R. Lord Kenyon C.J. said “He did not know but that a magistrate subjects himself to a criminal information for taking a voluntary extrajudicial affidavit,” 3 Chetwynd's Burn, 529. “It is much to be questioned,” says Mr. Justice Blackstone, “how far any “magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion : since it is more than possible, that by such idle oaths a man may frequently in %. conscientia incur the guilt, and at the same time evade the temporal penalties, of perjury.” 4 Comm. 137. It must be regretted that the highly improper practice of administering what the learned commentator terms “idle oaths,” should be still continued by any magistrates, notwithstanding the reprehensions contained in those books with which they are generally supposed to be acquainted. + See the preceding note, and the observations of Le Blanc J. in Eadon's case, ante, Vol. 10, p. 1609.

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of the mere words used, may appear not per

haps altogether in unison with the mild and equitable spirit of British jurisprudence. Your lordships are well acquainted with the statute 1. Mary, chap. 1st, which swept away from the law that mass of constructive treasons by which it had been previously polluted—a statute held by the nation at the time it was enacted, as one of the greatest blessings ever conferred by the legislature, and still looked up to by their posterity with admiration and gratitude. Though constructive treason was thus abolished, yet the statute upon which the o indictment is founded tends to introuce a capital felony, which, though not punished as treason, is yet punished with death, the ultimum supplicium of the law. This statute was no doubt passed at a time when bands of armed men were committing evey species of atrocity, when they were burning, robbing, and murdering, and in particular when they were compelling persons by force to swear oaths, unquestionably and clearly imposing an obligation to commit felonies.” In this state of things, a speedy and efficacious remedy was necessary; and no doubt this statute was passed with the best intentions, and may have been productive of the most salutary consequences. All this being allowed, yet considered as a standing rule, incorporated in the criminal law of Scotland, and applied to other occasions than those contemplated by the legislature, it was not perhaps penned with all the caution requisite, and may involve principles which it would not be very safe to admit permanently into our system of jurisprudence. But it is not your lordships province to judge of the merits of the enactment, and far less am I entitled to pronounce an opinion upon that subject. It makes part of the statute law of Scotland, and that is enough. But although I am not entitled to inquire into the expediency of the law, it is my right, and it is my duty, to inquire in what manner the words of it shall be construed—in what manner, being part of the criminal law of Scotland, it shall be applied and accommodated to our form of judicial proceedings. And, after fully considering the subject in this more limited view, I trust I shall be able to satisfy your lordships that the libel in this case is not relevant, according to the principles of the criminal law of Scotland. This is a subject of the utmost importance, and to which the attention of your lordships is now most earnestly requested. In this indictment the major proposition sets forth, that, “Albeit, by an act passed in the fifty-second year of his present Majesty's reign intituled, “An act to render more effectual an act passed in the thirty-seventh year of his esent Majesty, for preventing the administering or taking unlawful oaths,’ it is, inter alia, enacted, That every person who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at the administering of any oath or engagement, purporting or intending to bind the person taking the same to commit any treason or murder, or any felony punishable by law with death, shall, on conviction thereof by due course of law, be adjudged guilty of felony, and suffer death as a felon, without benefit of clergy.’” There are then other clauses of the statute recited in this major proposition. I have no objections to make to the major proposition of this indictment. It is correct in reciting the clause of the act constituting the crime which is now to be tried; and, therefore, in considering this proposition, the only thing to be attended to is, the nature of the crime which is here stated to be punishable with death. It is the administering an oath, “purporting or intending to bind the person taking the same to commit treason or murder, or any felony punishable with death.” Upon reading this clause, your Lordships will be satisfied, that it is not sufficient to constitute this crime that an oath was administered—it is not sufficient that the person administering that oath had criminal intentions at the time—or that he was engaged at the time in criminal practices—it is not enough that the person who takes the oath intends to commit, or is in the course of committing eriminal practices. All that is insufficient to constitute the crime here set forth. It is necessary, it is the essence of the crime, that the oath administered shall itself purport or intend to bind the taker to commit the crimes specified in the statute. It is quite possible that two persons may be actually engaged in committing the crime of treason, and while thus occupied, that one of them, with a view of practising a deceit on those who were present, and of ensnaring them into the traitorous conspiracy, should administer an oath to his associate, under the pretence of binding him to commit the treason. But if that oath did not in fact impose the obligation, it could not warrant a conviction under this statute. It might be an overt act of treason, and all the persons present, he who administered the oath, he who took the oath, and the spectators, might be punishable as traitors, yet still an indictment under the presentstatute could reach none of them; for to make the statute apply, it is essential that the oath administered purports or intends to bind the party taking it *

* See the debate in the House of Commons on the motion for the introduction of this statute 23 Hans. Parl. Deb. 31.

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| detestable in itself, may be the ground of a

different prosecution, but it cannot be the ground othe charge now before your lordships. All this is too clear to require any illustration; it must be manifest to every one who reads the words of the statute. Having said thus much on the major proposition of the indictment, we now come to consider the minor proposition. Here, as in other cases, there are two subjects of inquiry; 1st, Whether the facts set forth in the minor amount to the charge in the major? and, 2nd, Supposing that they do, whether they are specified with that precision and minuteness which are required, by the law of Scotland, to constitute a relevant indictment? The minor begins in these terms: “Yet true it is and of verity, that you, the said William Edgar and John Keith, are both and each, or one or other of you, guilty of the said crimes, or of one or more of them, actors or actor, or art and part: In so far as you, the said William Edgar and John Keith, having, at Glasgow, and in the vicinity thereof, in the course of the months of November and December 1816, and of January and February 1817, wickedly, maliciously, and traitorously conspired and agreed, with other evil-disposed persons, to break and disturb the public peace, to change, subvert, and overthrow the government, and to excite, move, and raise insurrection and rebellion, and especially to hold and attend secret meetings for the purpose of obtaining annual parliaments and universal suffrage, by unlawful and violent means, did, then and there, both and each, or one or other of you, wickedly, maliciously, and traitorously, administer, or cause to be administered, or did aid or assist at the administering, to a great number of persons, an oath or engagement, or an obligation in the nature of an oath, in the following terms, or to the following purport.”—And then the words of the oath are recited.—“In awful presence of God, I, A B, do voluntarily swear, That I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every description, who are considered worthy of confidence; and that I will persevere in my endeavours to obtain for all the people in Great Britain and Ireland, not disqualified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation, and annual parliaments; and that I will support the same to the utmost of my power, either by moral or physical strength as the case may require: And I do further swear, that neither hopes, fears, rewards, or punishments, shall induce me to inform on, or give evidence against, any member or members, collectively or individually, for any act or expression done or made, in or out, in this or similar societies, under the punishment of death, to be inflicted on me by any member or members of such societies. So help me

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