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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. A. D. 1817.

COURT OF JUSTICIARY.

APRIL 9, 1817.

Present.

Rt. Hon. David Boyle, Lord Justice Clerk. Lord Hermand.

Lord Gillies.

Lord Pitmilly. Lord Reston.

·Counsel for the Crown.

Rt. Hon. Alexander Maconochie, Lord Advo-
cate [afterwards a lord of Session and Justi-
ciary, with the title of Lord Meadowbank.]
James Wedderburn, Esq. Solicitor-General.
H. Home Drummond, Esq.

H. Warrender, W. S. Agent.
Counsel for William Edgar.
John Clerk, Esq.
Gen. Cranstoun, Esq.
Thos. Thomson, Esq.
James Moncrieff, Esq.
Francis Jeffrey, Esq.
J. P. Grant, Esq.
Henry Cockburn, Esq.
J. A. Murray, Esq.

G. W. Boyd, W. S. Agent. William Edgar and John Keith were placed at the bar.

Lord Justice Clerk.-William Edgar and John Keith, pay attention to the indictment against you, which is now to be read.

"William Edgar and John Keith, both present prisoners in the Castle of Edinburgh, 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.

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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 persous: 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 pur pose 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, 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 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 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 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 fled from justice; as also to

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 purporting 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 purport, to the said Peter Gibson, John M'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. 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

At

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.

other of you, guilty thereof, actors or actor, or art and part. All which or part thereof, being found proven by the verdict of an assize, before the Lord Justice General, the Lord Justice Clerk, and Lords Commissioners of Justiciary, you the said William Edgar and John Keith ought to be punished with the pains of law, to deter others from committing the like crimes in all time coming."

"H. HOME DRUMMOND, A. D."

LIST OF WITNESSES.

1. Robert Hamilton, Esq. sheriff-depute of

Lanarkshire.

2. Daniel Hamilton, Esq. one of the sheriffs

substitute of Lanarkshire.

3. Daniel McCallum, clerk to John Drysdale,

sheriff-clerk of Lanarkshire.

4. Matthew Burns, clerk to George Salmond, procurator-fiscal of Lanarkshire.

5. John Leslie, clerk to the said John Drysdale.

6. Joseph Reid, writer in Glasgow.

7. Alexander Calder, sheriff-officer in Glasgow.

8. James Thomson, clerk to the said John Drysdale.

9. Alexander Hunter, change-keeper, Old Wynd of Glasgow.

10. Marion M'Laren, or M'Lachlan, now or lately servant to the said Alexander Hunter.

11. John Robertson, innkeeper and stabler, Gal lowgate Glasgow. 12. Agnes Campbell, wife of Thomas Dow, steam-boiler maker and smith at Girdwood and Company's foundry in Hutchesontown, in the vicinity of Glasgow. 13. Janet Rentoul, now or lately servant to Neill Munn, innkeeper and stabler in Ingram-street, Glasgow.

14. Alison Wilson, now or lately servant to the said Neill Munn..

15. Matthew Fyfe, spirit-dealer in Wilsonstreet, Glasgow.

16. Jean Boyd, wife of the said Matthew Fyfe. 17. William Leggat, change-keeper, in Kingstreet, corner of Centre-street, Tradeston, in the vicinity of Glasgow. 18. Hugh Dickson, present prisoner in the Častle of Edinburgh.

19. Peter Gibson, present prisoner there. 20. John M'Lauchlane, present prisoner there. 21. William Simpson, present prisoner there. 22. James Hood, present prisoner in the Tol

booth of Glasgow.

23. John Campbell, present prisoner in the castle of Edinburgh.

24. Thomas Sinclair, present prisoner there. H. HOME DRUMMOND, A. D.

LIST OF ASSIZE.

County of Edinburgh.

Francis Carteret Scott, of Ballerno.

Richard Wooley, of Whitehouse.

William Aicheson, junior, of Drummore.
John Sommervill of Moreham.
William Hay, farmer, Howden.
John Brodie, farmer, West Fenton.
Robert Hope, farmer, Fenton.

William Glen of Mains.
County of Linlithgow.

John Trotter, farmer at Stacks.
William Dawson, younger, Bonnytoun.

George Turnbull, farmer at Northbank.
Robert Taylor, residing at Blackness.

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.
Alexander Russell, coach-maker there.
John Inverarity, 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.

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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.

and daily practice. It is practised in many associations and fraternities; for example, in masonic meetings, when there is not the least intention on the part, either of the persons who administer, or of the persons who take the oaths, on the one part to impose, or on the other to undertake an unlawful obligation. To make a common practice of this nature the ground of a capital punishment, when the guilt or innocence of the act depends on the interpretation of the mere words used, may appear not perhaps altogether in unison with the mild and equitable spirit of British jurisprudence. Your lordships are well acquainted with the statute

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 Scot-1. Mary, chap. 1st, which swept away from land, 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 thing 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 quam sacramenta; and it is an high contempt to minister an oath without warrant of Jaw, 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 foro 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, antè, Vol. 10, p. 1609.

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 present indictment is founded tends to intro duce a capital felony, which, though not pu nished 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 enti tled 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 Scot

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

land. This is a subject of the utmost impor-
tance, 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
present Majesty, for preventing the administer-
ing 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.'"
clauses of the statute recited in this major pro-
There are then other
position.

1 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 criminal 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. did not in fact impose the obligation, it could But if that oath 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 present statute 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 to

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A. D. 1817.

commit treason or felony. An oath not containing that obligation, however nefarious and [154 different prosecution, but it cannot be the ground of the charge now before your lorddetestable in itself, may be the ground of a ships. All this is too clear to require any illustration; it must be manifest to every one who reads the words of the statute.

position of the indictment, we now come to consider the minor proposition. Here, as in Having said thus much on the major proother cases, there are two subjects of inquiry; 1st, Whether the facts set forth in the minor Supposing that they do, whether they are specified with that precision and minuteness which amount to the charge in the major? and, 2nd, are required, by the law of Scotland, to constitute a relevant indictment?

true it is and of verity, that you, the said The minor begins in these terms: "Yet each, or one or other of you, guilty of the said William Edgar and John Keith, are both and actor, or art and part: In so far as you, the crimes, or of one or more of them, actors or 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 to change, subvert, and overthrow the government, and to excite, move, and raise insurpersons, to break and disturb the public peace, and attend secret meetings for the purpose of obtaining annual parliaments and universal rection and rebellion, and especially to hold 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 power, either by moral or physical strength will support the same to the utmost of my swear, that neither hopes, fears, rewards, or punishments, shall induce me to inform on, as the case may require: And I do further 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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