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not be permitted to have the smallest influ- | stered imposed an obligation to commit treason. ence in convicting him of a lesser offence Now the lord advocate cannot be prevented not supported by evidence applicable to itself. from trying the prisoner for these practices as
There is another reason why the narrative of treason, although the prisoner should be actbe minor proposition cannot be competently quitted of the present charge. The words of sent to proof. It is there stated that the pri- the act are “Provided also, and it is hereby soner was engaged in a treasonable conspiracy, declared, that any person who shall be tried but it is not stated with whom he was engaged and acquitted, or convicted of any offence in that conspiracy. Nay, it is not stated that against this act, shall not be liable to be indictthe other conspirators were persons to the pro- ed, prosecuted, or tried again for the same offence * secutor unknown. Even upon the supposition, or fact as high treason or misprision of high treatherefore, that this charge had been laid in the son.” major, which it is not, it could not be sent to From these words it appears, that after a proof, because the prosecutor has not given that trial on this indictment the prisoner cannot be information with regard to it, which according tried for treason on the ground of having admito the forms of the law of Scotland he was bound nistered this oath, but he may notwithstanding to give, that the prisoner might be enabled to be tried for treason on account of any one of prepare his defence. Where a conspiracy is the acts which his lordship narrates in the micharged against an individual, the other persons nor proposition, as evidence that the prisoner conspiring must be specified, or at least it and his associates were engaged in treasonable must be stated, that those persons are unknown practices. to the prosecutor, if even that is sufficient. This being the case, what would be the result
If that remark is applicable to the charge of of a trial under this indictment, supposing conspiracy, how much more so is it to that of that the prisoner is acquitted ? It would be treason? "To convict a person of treason, many just a precognition, and what is more, a public requisites must occur which are not found here. precognition taken, for the purpose of convictNo man can be put upon trial for that crime ing him afterwards of high treason. And as unless a bill is found against him by a Grand he might be tried twenty times for administerjury; and after the bill is found, many forms ing unlawful oaths, all these trials might be must be observed unknown to the criminal law with no other view than that of trying him for of Scotland in other cases. For example, the high treason at last. I put it to your lordprisoner is entitled to challenge a certain num- ships, if oppression of this kind could be ber of his jury peremptorily, and without cause endured in this country,-if there would not be shewn. He has rarious other privileges unne an end of all liberty and all security ? cessary to be stated. But none of these pri I lay it down therefore as clear law, that one vileges have been allowed to the prisoner here, crime cannot be used as proof of another. because he is put upon his trial for a felony. It There is nothing set forth in this libel in order is impossible that your Lordships will allow to prove the intent of the oath as contradistinhim to be tried for treason by our forms of guished from its purport, except facts which inprocedure, when it is enacted, by special fer other crimes, and which, on that account, statute, that treason can only be tried by the cannot be admitted to proof. The whole warforms of the law of Englan
rative of the minor proposition must be blotted It is no answer to this argument, for the pro- out as incompetent, and that being done there secutor to say, we are going to try the prisoner is nothingleft but the words of the oath, and these for treason, but we are not to punish him for words do not purport any obligation to commit treason. We ask for no other punishment but treason. The prosecutor may aver the contrary that which is applicable to the crime laid in the -- he may say, that whatever may be the appamajor proposition of the indictment. If the ju- rent purport, the real intendment was an unlawry find the prisoner guilty of treason, though ful obligation: but if he makes this averment he escape the punishment, his character is blast- something further is necessary; he must state ed, he is a convicted traitor, and he suffers an specifically the facts and circumstances by injury which the prosecutor is not entitled to which he is to prove, that words, innocent in inflict. On the other hand, suppose him to be themselves, were used with a guilty intent; acquitted under this indictment, the acquittal and these facts and circumstances must be is of no benefit to him, for not only might his relevant to ground that inference, and comcharacter be ruined, but he may be again petent in themselves to be proved. Further, brought to trial for treason in a regular way. as already said, it is not the intention of the
Lord Advocate.--He cannot be again brought parties, but the intendment of the words which to trial.
inust be criminal.
But if the narrative of the minor proposiMr. Cranstoun. The lord advocate thinks tion be struck out, and I have shown that it differently from me, but he is wrong. If the must be so, then there is no specification of prisoner be acquitted of administering the un-facts whatever to establish an intendment lawful oath, that act cannot be laid as an overt different from the purport of the oath. What act of treason in an indictment for that crime. specification is necessary in the minor proposiBut here treasonable practices are stated for tion of a criminal indictment according to the the purpose of proving, that the oath admini- law of Scotland? All our authorities say that
the minor proposition must set forth a full and in our code, for it is a law regarding treason, accurate detail of all the circumstances material and of consequence introduced along with all 10 the case. But if the lord advocate attempts the other laws of England upon that subject to extract and elicit from innocent words a ' by the 7th Anne, cap. 21. I pray your lorddifferent meaning from that which they obvi- ships to attend to the preamble of that statute ously bear, and does not specify the circum- of the 1st Mary. “ Forasmuch as the state of stances from which he infers that hidden every king, ruler, and governor of any realm, meaning, then the minor proposition is im- dominion, or commonalty, standeth and conperfect for want of specification, and the libel sisteth more assured by the love and favour of is irrelevant.
the subjects toward their sovereign ruler and I had formerly occasion to refer your lord- governor, than in the dread and fear of laws ships to the practice in trials for perjury: and made with rigorous pains and extreme punishit appears to me that there is a great affinity ment for not obeying of their sovereign ruler between trials for that crime, and the preseni. and governor : And laws also justly made for Perjury consists in taking an oath which pur- | the preservation of the commonweal, without ports falsehood : the present crime consists in extreme punishment or great penalty, are more administering one which purports an unlawful often for the most part obeyed and kept, than obligation. In both there is the use of an or- laws and statutes made with great and exdinary solemnity, with the criminal intention treme punishments and in special such laws in the one case to deceive, and in the other and statutes so made, whereby not only case to bind to the commission of a crime. the ignorant and rude unlearned people, but The crimes are analogous. In a case like the also learned and expert people, minding present, which is new, it is most desirable to honesty, are often and many times trapped and refer to analogous cases, in order to gather snared, yea, many times for words only, withwhat are the rules of proceeding. Let us con- out other fact or deed done or perpetrated : sider then what is your proceeding when you try | The queen's most excellent majesty, calling to a person on a libel for perjury. Mr. Hume, remembrance, that many, as well honourable in stating what are the specifications necessary and noble persons as other of good reputation, in a libel for perjury, observes, that “it is within this her grace's realm of England, have more especially requisite, that in all process of late (for words oaly, without other opinion, for perjury the prosecutor be not allowed to fact, or deed) suffered shameful death not aclay his libel generally, or in ambiguous terms; customed to nobles; Her highness, therefore, since otherwise he would take the cognizance of her accustomed clemency and mercy, mindof the relevancy of the charge to himself, out ing to avoid and put away the occasion and of the bands of the Court, to whom of right it cause of like chances hereafter to ensue, trustbelongs. He has to explain, therefore, wherein ing her loving subjects will, for her clemency it is that the falsehood lies, and must support to them shewed, love, serve, and obey her (or as we say, qualify) his charge with such a grace the inore heartily and faithfully, than for statement of the circumstances of the fact, as dread or fear of pains of body, is contented justifies his averment of a false oath having and pleased that the severity of such like exbeen taken, and shall ground a clear inference treme, dangerous, and painful laws, shall be (if they be proved) concerning the situation of abolished, annulled and made frustrate and the panel's conscience on the occasion.” It void." This preamble explains the extreme thus appears, that in a charge of perjury, in danger and mischief arising from laws inflictorder to make the libel relevant, it is not ing the pains of treason on offences which are enough to assert that the prisoner has sworn a not accurately defined, and more particularly false oath. The prosecutor must point out in for words spoken, and accordingly the whole detail the circumstances on which he rests his body of constructive treasons were swept averment, that what was sworn is false. If that away by that act. be the case in a trial for perjury,–in the analo Now, the statute upon which the present ingous crime now in question, if the prosecutor dictment is founded introduced a constructive libels words in themselves innocent, he must felony, on which it inflicts the same punishspecify facts relevant and competent to be ment as that which is inflicted in treason, at proved, in order to make out the proposition least in all material respects the same. I did that these words were used with a guilty in- not read the preamble of the act of queen tendment-an intendment understood by both Mary, to throw blame on the statute now parties. Therefore unless you require a speci- under consideration, but to show the difficulty fication of facts, which I apprehend is essenti- and danger attending the application of every ally necessary to extract a guilty intendment law of this description, as the legislature itselt from the words of this oath, in themselves in- has clearly expressed in that preamble. But Docent, you depart from one of the best es the statute having been enacted, what is the tablished rules of the law of Scotland. What proper corrective for the evils 10 which I is said by Mr. Hume as to trials for perjury, | allude? I do not know what is the pracis equally applicable to a trial under this act. tice on the other side the Tweed; for I
I have already taken occasion to observe, I do not know the details of criminal prothat one of the most valuable statutes in our cedure there, but I know that in Scotland code is the statute of 1st Mary, cap. 1. It is the corrective is to be found in our forms of
criminal procedure; and whatever defects there can do, supply what I may happen to omit. may be in the law of Scotland, there are some The charge against the panel at the bar is excellencies, and one of them is that minute- for a statutory offence. He is charged with ness of specification which the public prosecu- administering an oath of a particular descriptor is bound to observe in his indictment. The tion. The rules of law are clear with regard proper precaution for preventing this statute to the manner of describing a criminal act. The from being made a source of oppression and words of Mr. Hume are, " That a libel is not injustice, is to observe our forms of criminal good, unless it give such an account of the procedure; and I maintain that one of our best criminal deed as may distinguish this particuforms will be neglected, if you allow a proof of lar charge from all other instances of the same the minor proposition here to go to a jury, sort of crime, and thus bring the panel to the when there is no specification in the libel to bar sufficiently informed of that whereof he is show that the words of the oath were used in accused."* a sense different from their ordinary sense. If this description of the duty of the prose. Their ordinary sense as I have endeavoured to cutor be correct, I apprehend this indictment prove, or rather as I think must be manifest must clearly go to trial; for it sets forth the at first sight, is perfectly innocent; at least it crime charged in a manner to distinguish it is not an obligation to commit treason. If this from every other instance of the same sort of libel be allowed to go to trial under other crime. The criminal deed is the administerjudges, the administration of any oath, of the ing of the oath, and the oath itself is set forth oath of allegiance itself might be made the in the indictment. Even if it had not been in ground of a prosecution under this statute. the power of the prosecutor to obtain the terms The author whom I have already had occasion of the oath, yet, by this statute, it was compe. to quote, says, that the rule of the minor pro tent to him to charge its purport. But the position containing a specification of all the prosecutor has fortunately had more in his facts on which the charge rests, was at- power, for he has obtained the oath itself, and tended to anxiously, even in the worst times. he has recited it at length in the indictment, We know well what are the times to which he Mr. Hume proceeds afterwards to describe alludes, indeed they are pointed out by the the manner in which the criminal deed should decisions to which he refers ; namely, the pe- be set forth; and as the learned gentleman riod between 1679 and 1688, when your books who went before me dwelt some time on this of adjournal are stained with the most atroci- subject, I shall be under the necessity of ous murders perpetrated under the colour of quoting at length Mr. Hume's views of the law-by judges the most unprincipled that duty of the prosecutor. [Mr. Drummond here ever sat upon that bench. If in that period, read from vol. 3, p. 325, and subsequent pas. and under these judges, the rule in question sages, and maintained that the description of was not departed from even in the trial of the offence in this indictment was sufficiently state crimes, it will not be departed from specific.] in these liberal and enlightened days, and I apprehend that the prosecutor is correct while your lordships preside in this Court. as to the times and places, and the individuals On these grounds, I relate to your lord- to whom the oath was administered, as no obships with confidence what is the genuine jection has been stated to the indictment with conviction of my own mind, that this is not a regard to these points. And, considering the relevant indictment, and that if it be sent to a particular character of this crime charged, and jury, a precedent will be established frauglit ihat it is of a secret nature, and extremely with the greatest danger.
difficult to detect, I think your lordships must
be satisfied, that the prosecutor has given as [Mr. Cranstoun made an apology for occu- full and particular a description of it as the pying the Court so long.)
panel could expect. Lord Justice Clerk.-I express the opinion
This is a crime, in many respects, of a very of the Court, that there is no reason for such peculiar character. It is necessary, indeed,
as was correctly stated by the learned gentle an apology. We have all heard the very able, eloquent, and argumentative pleading for the man, that the oath itself should bind to the panel, with the most perfect satisfaction,
commission of treason, or of some capital
felony. It is not sufficient that the party ad. Mr. Drummond.—A very difficult task has ministering the oath, or the party taking it, devolved itself upon me, that of answering one should have treasonable, or other criminal inof the ablest arguments which I ever had oc- tentions; but it is necessary that the oath itself casion to hear; and I have this impression should bind to the commission of treason, or so strongly on my mind, that unless I had some other crime. This was most correctly laid some confidence in the merits of the cause down by the learned gentleman, and any inferwhich I am to support, I should feel the ence which the prosecutor may think himselfengreatest diffidence in attempting to answer the titled to draw from the oath will not be sufficieot, speech of the learned gentleman. I trust, if it do not clearly appear that the oath itself is however, that the case will speak pretty of the precise purport necessary to inculpate the. strongly for itself; and my learned friend who is to follow me, will, much more ably than I
3 Comm. 310.
panet on the statute founded upon in the in-, under the punishment of death, to be inflicted
your lordships are to judge of the oath itself,
the Court had no jurisdiction to try. Yet you particularly the last clause, proceeds on the admitted the statement of the forgery in the understanding that we are entitled to go on as narrative of the indictment in modum probationis we are doing in this trial, although the crime of the crime of uttering the forged notes in tried be treason. Scotland, and as relevant to infer the know “Provided also, and it is hereby declared, ledge of the forgery in the utterer. This is that any person who shall be tried and acsettled law; and the oath here charged is at quitted, or convicted of any offence against least as intimately connected with the state this act, shall not be liable to be indicted ment of treasonable practices mentioned in the prosecuted, or tried again for the same offence narrative, as the crime of uttering forged notes or fact, as high treason, or misprision of high was with the perpetration of the forgery. I treason; and that nothing in this act contained am not going too far in saying that the oath shall be construed to extend to probibit any is nothing else than an overt act of a general person guilty of any offence against this act, treasonable conspiracy, not now charged and who shall not be tried for the same as an against the parties. The whole import and offence against this act, from being tried for construction of the present charge, indeed, in the same as high treason, or misprision of high volves the existence of another crime. The treason, in such manner as if this act had not administration of the oath is a criminal act, been made." binding the takers to commit another crime; Even if this act had never existed, I should and how is it possible to separate the two ? , have been prepared to maintain, on the orHow can any circumstances regarding the one dinary rules of law, the competency of trying be explained without mentioning the other? under a lower denomination of crime: what We are bound to show that there was treason might have been tried as treason but the clause which would have been speedily matured, if now quoted is quite conclusive. There is, the purposes of the persons who administered therefore, nothing in the circumstance that the and who took the oath had been carried into criminal proceedings set forth in the narrative effect. We are to prove what they were of the indictment bappen to be of a treasonable hatching—what they intended—and it is im- nature, that can make any difference in the possible to lay out of view the preparations case; and I submit, that as they form part of ihey were making for committing treason, in the res gesta at the time of administering the speaking of what they bound themselves to oath, and naturally enter into the bistory of accomplish. Thus the rule of not admitting the transaction, they ought to be admitted to proof of one crime in evidence of another, proof, and found relevant with the rest of the must be received with some qualification, and libel. They are intimately and inseparably it has always been so in practice. (Mr. Drum- connected with the proof of the crime charged, mond here referred to Hume's Com. vol. 3. / and afford the clearest and most relevant indie p. 411, and to the case of Thomas Somerville, cia than can be imagined of the guilty purpose who was tried for perjury in 1813, as men- of the panel. It seems unnecessary to add tioned in the corresponding part of the supple- that if it be relevant to introduce this statement ment, p. 226.] There you have sevidence of narrative, the same specification is not requisite one crime admitted to prove another, although as if it had been made the subject of a subthe one was quite different from the other. stantive charge ; and I should not have made But here the crimes are intimately and almost this remark at all, unless there had appeared a inseparably connected. It is an established disposition to argue upon this narrative, as if rule in the English law books, in cases of trea- the relevancy of it were to be tried by the son, not only that one overt act not laid as a same rules as a charge in the indictment. charge, may be adduced as proof of one that It was said by the learned gentleman, that is laid, but that a general proof of rebellion or the particulars charged as what the parties conspiracy is allowed before proceeding to the bound themselves to commit, would noi have particular acts charged ; and the well known amounted to high treason even if they had case of Strafford* was quoted and received as been carried into effect. But how it can be an authority on this point in the trials of Wattt maintained that the employment of force to and Downie, i-in which the existence of a accomplish public measures of this description treasonable plot was allowed to be proved be- is not treason, I cannot conceive. It appears fore the overt acts charged. The principal to me to be beyond the ingenuity of even the question is, whether the matter offered in evi- learned gentleman himself, to persuade any dence be pertinent to the point in issue? person, that a public measure of any sort may
It was said that we are not entitled to try be accomplished, not to say the fundamental a man for treason in this form, and that there principles of the constitution subverted by fore we cannot indirectly try the treason as force, by a number of persons conspiring to. proof of another crime. Í appeal, in answer gether for that purpose without levying war 10 tbis, to the act of parliament under which agaist the king. According to my view of we are now proceeding. The whole act, and the law, I might have been entitled to charge
the administration of the oath itself as high * 3 How. St. Tr. 1381.
treason. The words of the statute 36 G. III, + 2 How. Mod. St. Tr. 1167.
c. 7. seem completely in point, as to the trea1 3 How. Mod. St. Tr. 1.
sonable nature of the association and the oath.