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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 JUSTICLARY.

APRIL 9, 1817.

Present.
Rt. Hon. David Boyle, Lord Justice Clerk.
Lord Hermand.
Lord Gillies.
Lord Pilmilly.
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.
Geo. 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 bis 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 insurreca tion and rebellion, and especially to hold and attend secret meetings, for the pura

pose of obtaining annual parliaments, and L

universal suffrage, by unlawful and vio John Connelton, now or lately cottonlent means, did then and there, both and spinner in Calton of Glasgow, or to one each, or one or other of you, wickedly, or other of them, and to other persons, maliciously, and traitorously administer, whose names are to the prosecutor anor cause to be administered, or did aid known, the said oath or obligation, thus or assist at the administering, to a great binding, or purporting to bind the pernumber of persons, an oath or engage sons taking the same to commit treason, ment, or an obligation in the nature of an as said is. (2.) And further you, the said oath, in the following terms, or to the William Edgar and John Keith, did, upon following purport :--In awful presence the 4th day of January, 1817, or on one of God, 1, A B, do voluntarily swear, or other of the days of that month, or of That I will persevere in my endeavour December immediately preceding, or of ing to form a brotherhood of affection February immediately following, at the amongst Britons of every description, who house of Neill Munn, innkeeper and are considered worthy of confidence; and stabler, in Ingram-street, Glasgow, or that I will persevere in my endeavours to elsewhere at Glasgow, or in the immeobtain for all the people in Great Britain diate vicinity thereof, both and each, or and Ireland, not disqualified by crimes or one or other of you, wickedly, maliciinsanity, the elective franchise, at the age ously, and traitorously administer, or cause of twenty-one, with free and equal repre to be administered, or did aid or assist at senta:ion, and annual parliaments; and the administering an oath or obligation in that I will support the same to the utmost the terms above set forth, or to the same of my power, either by moral or physical purport, to the said Peter Gibson, John strength as the case may require : And I M'Lauchlane, John Campbell, Iługh Dickdo further swear, that neither hopes, fears, son, M‘Dowal Pate, or Peat, and James rewards, or punishments shall induce me M“Ewan; as also to James Hood, Anto inform on, or give evidence against any drew Somerville, John Buchannan, and member or members, collectively or indi James Robertson, all present prisoners in vidually, for any act or expression done the Tolbooth of Glasgow, or to one or or made, in or out, in this or similar so other of them, and to other persons, whose cieties, under the punishment of death, to names are to the prosecutor unknown, be inflicted on me by any member or the said oath or obligation thus binding, members of such societies. So help me or purporting to bind, the persons taking God, and keep me steadfast.' Which the same to commit treason, as said is. oath or obligation did thus purport or in And you the said William Edgar having tend to bind the persons taking the same been apprehended and taken before to commit treason, by effecting by physi Daniel Hamilton, esquire, one of the cal force the subversion of the established sheriffs-substitute of Lanarkshire, did, in government, laws, and constitution of his presence at Glasgow, on the 6th day this kingdom. And, more particularly, of March, 1817, emit and subscribe a deyou, the said William Edgar and John claration; and having been taken before Keith, did, upon the 1st day of January Robert Hamilton, esquire, Sheriff-depute 1817, or on one or other of the days of of Lanarkshire, you did, in his presence, that month, or of December immediately at Glasgow, upon the 7th and 8th days of preceding, or of February immediately March, 1817, emit and subscribe two sefollowing, at a secret meeting held for veral declarations : And you the said that and other unlawful purposes, in the John Keith having been apprehended, and house of William Leggat, change-keeper taken before the said Robert Hamilton, in King-street, Tradeston, in the vicinity esquire, did, in his presence, at Glasgow, of Glasgow, or elsewhere at Glasgow, or on the 6th and 7th days of March, 1817, in the inmediate vicinity thereof, both emit and subscribe two several declaraand each, or one or other of you, wickedly, tions: All which declarations, being to maliciously, and traitorously administer, be used in evidence against each of you or cause to be administered, or did aid or respectively, will be lodged in due time assist at the administering an oath or ob in the hands of the Clerk of the High ligation in the terms above set forth, or to Court of Justiciary, before which you the same purport, to Peter Gibson, John are to be tried, that you may have M‘Lauchlane, John Campbell, and Hugh an opportunity of seeing the same. At Dickson, all present prisoners in the least, times, and places foresaid, the said Castle of Edinburgh; as also to James oath or engagement, or an oath or enM'Ewan, now or lately carding-master at gagement to the same purport, was Humphries Mill, Gorbals of Glasgow, and wickedly, maliciously, and traitorously MDowal Pate or Peat, now or lately administered, or caused to be adminisa weaver in Piccadilly-street, Anderston, in tered; and some persons did aid or

the vicinity of Glasgow, who, conscious assist at the administering thereof; and 51

of their guilt in the premises, have ab you the said William Edgar and John sconded and fled from justice; as also to Keith are both and each, or

one

or

other of you, guilty thereof, actors or James White, tobacconist in Dalkeith.
actor, or art and part. All which or Robert Lyle, baker there.
part thereof, being found proven by the John Wood, merchant there.
verdict of an assize, before the Lord Jus- John Brown, farmer, Carrington.
tice General, the Lord Justice Clerk, and Andrew Johnston, farmer, Primrose-barns.
Lords Commissioners of Justiciary, you

County of Haddington.
the said William Edgar and John Keith
ought to be punished with the pains of William Aicheson, junior, of Drummore.
law, to deter others from committing the John Sommervill of Moreham.
like crimes in all time coming.”

William Hay, farmer, Howden. “H. HOME DRUMMOND, A. D."

John Brodie, farmer, West Fenton.

Robert Hope, fariner, Fenton,
LIST OF WITNESSES.

County of Linlithgow. 1. Robert Hamilton, Esq. sheriff-depute of

William Glen of Mains. Lanarkshire. 2. Daniel Hamilton, Esq. one of the sheriffs- John Trotter, farmer at Stacks.

William Dawson, younger, Bonnytoun. substitute of Lanarkshire. 3. Daniel M'Callun, clerk to John Drysdale, George Turnbull, farmer at Northbank.

Robert Taylor, residing at Blackness. sheriff-clerk of Lanarkshire. 4. Matthew Burns, clerk to George Salmond,

City of Edinburgh. procurator-fiscal of Lanarkshire.

Robert Fraser, jeweller in Edinburgh. 5. John Leslie, clerk to the said Johu Drys- Thomas Richardson, merchant-tailor there. dale,

David Whitelaw, watch-maker there. 6. Joseph Reid, writer in Glasgow.

Peter Peddie, trunk-maker there. 7. Alexander Calder, sheriff-officer in Glas- William Trotter, upholsterer there. gow.

Alexander Russell, coach-maker there. 8. James Thomson, clerk to the said John John Inverarity, upholsterer there. Drysdale.

George Yule, merchant there. 9. Alerander Hunter, change-keeper, Old Alerander Ainslie, saddler there. Wynd of Glasgow.

John Steel, confectioner there. 10. Marion M Laren, or M‘Lachlan, now or James Innes, gunsmith there.

lately servant to the said Alexander Daniel Forrest, hosier there.
Hunter.

Peter Sawers, saddler there.
11. John Robertson, innkeeper and stabler, Gal George Hunter, merchant there.
lowgate Glasgow.

William Ross, tailor there.
12. Agnes Campbell, wife of Thomas Dow, Charles M'Lean, draper there.

steam-boiler maker and smith at Gird- John Laing, saddler there.
wood and Company's foundry in Hutch- John M Pherson, tailor there.

esontown, in the vicinity of Glasgow. Francis Davidson, confectioner there. 13. Janet Rentoul, now or lately servant to William Cooper, boot-maker there.

Neill Munn, innkeeper and stabler in William Dumbreck, hotel-keeper there.

Ingram-street, Glasgow. 14. Alison Wilson, now or lately servant to the

Town of Leith. said Neill Munn.

John M.Kenzie, merchant in Leith. 15. Matthew Fyfe, spirit-dealer in Wilson- Archibald Cleghorn, corn-merchant there. street, Glasgow

Thomas Morton, ship-builder there. 16. Jean Boyd, wife of the said Matthew Fyfe. Robertson Paterson, painter there. 17. William Leggat, change-keeper, in King- Charles Robertson, merchant there.

street, corner of Centre-street, Trades- John Sanders, agent there.

ton, in the vicinity of Glasgow. John Glover, wright there. 18. Hugh Dickson, present prisoner in the

Ap. GILLIES. Castle of Edinburgh.

D. MONYPENNY. 19. Peter Gibson, present prisoner there.

David DOUGLAS. 20. John M. Lauchlane, present prisoner there.

Lord Advocate.-From certain circumstan21. William Simpson, present prisoner there. ces, I find it proper to move the Court to 22. James Hood, present prisoner in the Tolo desert the diet against John Keith pro loco et booth of Glasgow.

tempore. He will therefore be committed to 23. John Campbell, present prisoner in the prison upon a new warrant. castle of Edinburgh.

[This motion was accordingly agreed to. 24. Thomas Sinclair, present prisoner there. H. HOME DRUMMOND, A. D.

Lord Justice Clerk.-William Edgar, what do you say to this indictment ?--Are you

guilty or not guilty of the charges contained County of Edinburgh.

William Edgar.-Not guilty, my Lord.
Francis Carteret Scott, of Ballerno.
Richard Wooley, of Whitehouse.

Mr. Cranstown, I am of Counsel in this case

LIST OF ASSIZE.

in it

for the prisoner at the bar. The indictment, and daily practice. It is practised in many which your Lordships have just heard read, associations and fraternities; for example, in charges the prisoner with a capital offence, masonic meetings, when there is not the least that of administering an oath purporting or intention on the part, either of the persons who intending to bind the takers to commit the administer, or of the persons who take the oaths, crime of treason.

on the one part to impose, or on the other to My lords, this is not a point of dittay re- undertake an unlawful obligation. To make a cognized by the ancient and common law of common practice of this nature the ground of Scotland ; neither the nature of the offence a capital punishment, when the guilt or innoitself, nor the manner in which it is to be cence of the act depends on the interpretation charged, is pointed out by any precedents or of the mere words used, may appear not perauthorities familiar to your Lordships. It is haps altogether in unison with the mild and an offence recently introduced by a special equitable spirit of British jurisprudence. Your statute; and, so far as I know, no trials have lordships are well acq«ainted with the statute taken place hitherto upon that statute in Scot- 1. Mary, chap. 1st, which swept away from land, according to your forms.

the law that mass of constructive treasons by It will be admitted, that this crime is of a which it had been previously polluted—a stanature peculiarly delicate. The life of the tute held by the nation at the time it was en. prisoner at the bar may depend on the con- acted, as one of the greatest blessings ever struction to be put on words alone, without conferred by the legislature, and still looked reference to overt acts by which they may up to by their posterity with admiration and receive a clear and unambiguous interpretation. gratitude. Though constructive treason was To administer an oath without judicial authority thus abolished, yet the statute upon which the is perhaps not a very commendable practice, * present indictment is founded tends to introand in a moral point of view it may sometimes duce a capital felony, which, though not pube improper, as tending to lessen the obligation nished as treason, is yet punished with death, of an oath, when thus applied to frivolous the ultimum supplicium of the law. or improper subjects, or on frivolous and im This statute was no doubt passed at a time proper occasions. But, my lords, at the same when bands of armed men were committing time, it is not in itself an illegal thingt it evey species of atrocity, when they were is prohibited by no law; and I understand, barning, robbing, and murdering, and in and am well informed, that it is a common particular, when they were compelling persons

by force to swear oaths, unquestionably and * Lord Coke says (3 Inst. 165) “ Oaths that clearly imposing an obligation to commit have no warrant by law, are rather nova tor- felonies.* In this state of things, a speedy menta quam sacramenta ; and it is an high con- and efficacious remedy was necessary; and tempt to minister an oath without warrant of no doubt this statute was passed with the best law, to be punished by fine and imprisonment.” intentions, and may have been productive of the

The court of King's Benclı has often repre- most salutary consequences. `All this being hended, and discouraged as much as possible, allowed, yet considered as a standing rule, the taking of voluntary affidavits by justices of incorporated in the criminal law of Scotland, the peace, in extrajudicial matters. In the and applied to other occasions than those case of Bramah v. The-Fire Insurance Com- contemplated by the legislature, it was not perpany, Mich. T. 1800, in B. R. Lord Kenyon haps penned with all the caution requisite, C. J. said “He did not know but that a magis- and may involve principles which it would not trate subjects himself to a criminal information be very safe to admit permanently into our for taking a voluntary extrajudicial affidavit," system of jurisprudence. But it is not your 3 Chetwynd's Burn, 529.

lordships province to judge of the merits of “ It is much to be questioned,” says Mr. the enactment, and far less am I entitled to Justice Blackstone,“ how far any “magistrate is pronounce an opinion upon that subject. It justifiable in taking a voluntary affidavit in makes part of the statute law of Scotland, and any extrajudicial matter, as is now loo frequent that is enough. But although I am not entiupon every petty occasion : since it is more tled to inquire into the expediency of the law, than possible, that by such idle oaths a man it is my right, and it is my duty, to inquire in may "frequently in foro conscientia incur the what manner the words of it shall be construguilt, and at the same time evade the tem- ed-in what manner, being part of the crimiporal penalties, of perjury." 4 Comm. 137. nal law of Scotland, it shall be applied and

It must be regretted that the highly improper accommodated to our form of judicial propractice of administering what the learned ceedings. And, after fully considering the commentator terms" idle oaths," should be still subject in this more limited view, I trust continued by any magistrates, notwithstanding I shall be able to satisfy your lordships that the reprehensions contained in those books the libel in this case is not relevant, according with which they are generally supposed to be to the principles of the criminal law of Scotacquainted.

# See the preceding note, and the observa * See the debate in the House of Commons tions of Le Blanc J. in Eodon's case, antè, Vol. on the motion for the introduction of this sta10, p. 1609.

tute 23 Hans. Parl. Deb. 31.

land. This is a subject of the utmost impor- 1 commit treason or felony. An oath not contance, and to which the attention of your , taining that obligation, however nefarious and lordships is now most earnestly requested. detestable in itself, may be the ground of a

In this indictment the major proposition different prosecution, but it cannot be the sets forth, that, “ Albeit, by an act passed in the ground of the charge now before your lordfifty-second year of his present Majesty's reign ships. All this is too clear to require any intituled, 'An act to render more effectual an illustration; it must be manifest to every one act passed in the thirty-seventh year of his who reads the words of the statute. present Majesty, for preventing the administer Having said thus much on the major proing or taking unlawful vaths, it is, inter alia, position of the indictment, we now come to enacted, That every person who shall, in consider the minor proposition. Here, as in any manner or form whatsoever, administer, other cases, there are two subjects of inquiry; or cause to be administered, or be aiding or 1st, Whether the facts set forth in the minor assisting at the administering of any oath or amount to the charge in the major? and, 2nd, engagement, purporting or intending to bind Supposing that they do, whether they are spethe person taking the same to commit any cified with that precision and minuteness which treason or murder, or any felony punishable are required, by the law of Scotland, to constiby law with death, shall, on conviction thereof tute a relevant indictment? by due course of law, be adjudged guilty of The minor begins in these terms: “ Yet felony, and suffer death as a felon, without true it is and of verity, that you, the said benefit of clergy. There are then other William Edgar and John Keith, are both and clauses of the statute recited in this major pro- each, or one or other of you, guilty of the said position.

crimes, or of one or more of them, actors or I have no objections to make to the major actor, or art and part : In so far as you, the proposition of this indictment. It is correct said William Edgar and John Keith, having, in reciting the clause of the act constituting at Glasgow, and in the vicinity thereof, in the the crime which is now to be tried; and, course of the months of November and Detherefore, in considering this proposition, the cember 1816, and of January and February only thing to be attended to is, the nature of 1817, wickedly, maliciously, and traitorously the crime which is here stated to be punish- conspired and agreed, with other evil-disposed able with death. It is the administering an persons, to break and disturb the public peace, oath,“ purporting or intending to bind the io change, subvert, and overthrow the governperson taking the same to commit treason or ment, and to excite, move, and raise insurmurder, or any felony punishable with death." rection and rebellion, and especially to hold

Upon reading this clause, your Lordships and attend secret meetings for the purpose of will be satisfied, that it is not sufficient to con- obtaining annual parliaments and universal stitute this crime that an oath was adminis-suffrage, by unlawful and violent means, did, Lered—it is not sufficient that the person then and there, both and each, or one or other administering that oath had criminal intentions of you, wickedly, maliciously, and traitorously, at the time or that he was engaged at the administer, or cause to be administered, or time in criminal practices—it is not enough did aid or assist at the administering, to a that the person who takes the oath intends to great number of persons, an oath or engagecommit, or is in the course of committing ment, or an obligation in the pature of an eriminal practices. All that is insufficient to oath, in the following terms, or to the followconstitute the crime here set forth. It is ne- ing purport.”—And then the words of the oath cessary,– it is the essence of the crime,—that are recited.--"Jo awful presence of God, I, the oath administered shall itself purport A B, do voluntarily swear, That I will peror intend to bind the taker to commit the severe in my endeavouring to form a brothercrimes specified in the statute. It is quite hood of affection amongst Britons of every depossible that two persons may be actually en- scription, who are considered worthy of congaged in committing the crime of treason, and fidence; and that I will persevere in my enwhile thus occupied, that one of them, with a deavours to obtain for all the people in Great view of practising a deceit on those who were Britain and Ireland, not disqualified by crimes present, and of ensnaring them into the traitor. or insanity, the elective franchise, at the age ous conspiracy, should administer an oath to of twenty-one, with free and equal represenbis associate, under the pretence of binding tation, and annual parliaments; and that I him to commit the treasod. But if that oath will support the same to the utmost of my did not in fact impose the obligation, it could power, either by moral or physical strength not warrant a conviction under this statute. as the case may require: And I do further It might be an overt act of treason, and all swear, that neither hopes, fears, rewards, or the persons present, he who administered the punishments, shall induce me to inform on, oath, be who took the oath, and the spectators, or give evidence against, any member or memmight be punishable as traitors, yet still an bers, collectively or individually, for any act indictment under the present statute could reach or expression done or made, in or out, in this none of them; for to make the statute apply, or similar societies, under the punishment of it is essential that the oath administered pur- death, to be inflicted on me by any member ports or intends to bind the party taking it to or members of such societjes. So help me

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