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 acthe 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 proof, because the prosecutor has not given that information with regard to it, which according to the forms of the law of Scotland he was bound to give, that the prisoner might be enabled to prepare his defence. Where a conspiracy is charged against an individual, the other persons conspiring must be specified, or at least it must be stated, that those persons are unknown to the prosecutor, if even that is sufficient. If that remark is applicable to the charge of conspiracy, how much more so is it to that of treason? To convict a person of treason, many requisites must occur which are not found here. No man can be put upon trial for that crime unless a bill is found against him by a Grand jury; and after the bill is found, many forms must be observed unknown to the criminal law of Scotland in other cases. For example, the prisoner is entitled to challenge a certain number of his jury peremptorily, and without cause shewn. He has various other privileges unnecessary to be stated. But none of these privileges have been allowed to the prisoner here, because he is put upon his trial for a felony. It is impossible that your Lordships will allow him to be tried for treason by our forms of procedure, when it is enacted, by special statute, that treason can only be tried by the forms of the law of England. It is no answer to this argument, for the prosecutor to say, we are going to try the prisoner for treason, but we are not to punish him for treason. We ask for no other punishment but that which is applicable to the crime laid in the major proposition of the indictment. If the jury find the prisoner guilty of treason, though he escape the punishment, his character is blasted, he is a convicted traitor, and he suffers an injury which the prosecutor is not entitled to inflict. On the other hand, suppose him to be acquitted under this indictment, the acquittal is of no benefit to him, for not only might his character be ruined, but he may be again brought to trial for treason in a regular way. Lord Advocate. He cannot be again brought to trial. Mr. Cranstoun. The lord advocate thinks differently from me, but he is wrong. If the prisoner be acquitted of administering the unlawful oath, that act cannot be laid as an overt act of treason in an indictment for that crime. But here treasonable practices are stated for the purpose of proving, that the oath admini From these words it appears, that after a trial on this indictment the prisoner cannot be tried for treason on the ground of having administered this oath, but he may notwithstanding be tried for treason on account of any one of the acts which his lordship narrates in the minor proposition, as evidence that the prisoner and his associates were engaged in treasonable practices. This being the case, what would be the result of a trial under this indictment, supposing that the prisoner is acquitted? It would be just a precognition, and what is more, a public precognition taken, for the purpose of convicting him afterwards of high treason. And as he might be tried twenty times for administering unlawful oaths, all these trials might be with no other view than that of trying him for high treason at last. I put it to your lordships, if oppression of this kind could be endured in this country,-if there would not be an end of all liberty and all security? I lay it down therefore as clear law, that one crime cannot be used as proof of another. There is nothing set forth in this libel in order to prove the intent of the oath as contradistinguished from its purport, except facts which infer other crimes, and which, on that account, cannot be admitted to proof. The whole warrative of the minor proposition must be blotted out as incompetent, and that being done there is nothingleft but the words of the oath, and these words do not purport any obligation to commit treason. The prosecutor may aver the contrary he may say, that whatever may be the apparent purport, the real intendment was an unlawful obligation: but if he makes this averment something further is necessary; he must state specifically the facts and circumstances by which he is to prove, that words, innocent in themselves, were used with a guilty intent; and these facts and circumstances must be relevant to ground that inference, and competent in themselves to be proved. Further, as already said, it is not the intention of the parties, but the intendment of the words which must be criminal. But if the narrative of the minor proposition be struck out, and I have shown that it must be so, then there is no specification of facts whatever to establish an intendment different from the purport of the oath. What specification is necessary in the minor proposition of a criminal indictment according to the law of Scotland? All our authorities say that the minor proposition must set forth a full and accurate detail of all the circumstances material to the case. But if the lord advocate attempts to extract and elicit from innocent words a different meaning from that which they obviously bear, and does not specify the circumstances from which he infers that hidden meaning, then the minor proposition is imperfect for want of specification, and the libel is irrelevant. in our code, for it is a law regarding treason, and of consequence introduced along with all the other laws of England upon that subject by the 7th Anne, cap. 21. I pray your lordships to attend to the preamble of that statute of the 1st Mary. "Forasmuch as the state of every king, ruler, and governor of any realm, dominion, or commonalty, standeth and consisteth more assured by the love and favour of the subjects toward their sovereign ruler and governor, than in the dread and fear of laws made with rigorous pains and extreme punishment for not obeying of their sovereign ruler and governor: And laws also justly made for the preservation of the commonweal, without extreme punishment or great penalty, are more often for the most part obeyed and kept, than laws and statutes made with great and extreme punishments and in special such laws and statutes so made, whereby not only the ignorant and rude unlearned people, but also learned and expert people, minding honesty, are often and many times trapped and snared, yea, many times for words only, with out other fact or deed done or perpetrated: The queen's most excellent majesty, calling to remembrance, that many, as well honourable and noble persons as other of good reputation, within this her grace's realm of England, have of late (for words only, without other opinion, fact, or deed) suffered shameful death not accustomed to nobles; Her highness, therefore, of her accustomed clemency and mercy, mind I had formerly occasion to refer your lordships to the practice in trials for perjury: and it appears to me that there is a great affinity between trials for that crime, and the present. Perjury consists in taking an oath which purports falsehood: the present crime consists in administering one which purports an unlawful obligation. In both there is the use of an ordinary solemnity, with the criminal intention in the one case to deceive, and in the other case to bind to the commission of a crime. The crimes are analogous. In a case like the present, which is new, it is most desirable to refer to analogous cases, in order to gather what are the rules of proceeding. Let us consider then what is your proceeding when you try a person on a libel for perjury. Mr. Hume, in stating what are the specifications necessary in a libel for perjury, observes, that "it is more especially requisite, that in all process for perjury the prosecutor be not allowed to lay his libel generally, or in ambiguous terms; since otherwise he would take the cognizance of the relevancy of the charge to himself, outing to avoid and put away the occasion and of the hands of the Court, to whom of right it belongs. He has to explain, therefore, wherein it is that the falsehood lies, and must support (or as we say, qualify) his charge with such a statement of the circumstances of the fact, as justifies his averment of a false oath having been taken, and shall ground a clear inference (if they be proved) concerning the situation of the panel's conscience on the occasion." It thus appears, that in a charge of perjury, in order to make the libel relevant, it is not enough to assert that the prisoner has sworn a false oath. The prosecutor must point out in detail the circumstances on which he rests his averment, that what was sworn is false. If that be the case in a trial for perjury,-in the analogous crime now in question, if the prosecutor libels words in themselves innocent, he must specify facts relevant and competent to be proved, in order to make out the proposition that these words were used with a guilty intendment-an intendment understood by both parties. Therefore unless you require a specification of facts, which I apprehend is essentially necessary to extract a guilty intendment from the words of this oath, in themselves innocent, you depart from one of the best established rules of the law of Scotland. What is said by Mr. Hume as to trials for perjury, is equally applicable to a trial under this act. I have already taken occasion to observe, that one of the most valuable statutes in our code is the statute of 1st Mary, cap. 1. It is cause of like chances hereafter to ensue, trusting her loving subjects will, for her clemency to them shewed, love, serve, and obey her grace the more heartily and faithfully, than for dread or fear of pains of body, is contented and pleased that the severity of such like extreme, dangerous, and painful laws, shall be abolished, annulled and made frustrate and void." This preamble explains the extreme danger and mischief arising from laws inflicting the pains of treason on offences which are not accurately defined, and more particularly for words spoken, and accordingly the whole body of constructive treasons were swept away by that act. Now, the statute upon which the present indictment is founded introduced a constructive felony, on which it inflicts the same punishment as that which is inflicted in treason, at least in all material respects the same. I did not read the preamble of the act of queen Mary, to throw blame on the statute now under consideration, but to show the difficulty and danger attending the application of every law of this description, as the legislature itself has clearly expressed in that preamble. But the statute having been enacted, what is the proper corrective for the evils to which I allude? I do not know what is the practice on the other side the Tweed; for I do not know the details of criminal procedure there, but I know that in Scotland the corrective is to be found in our forms of can do, supply what I may happen to omit. The charge against the panel at the bar is for a statutory offence. He is charged with administering an oath of a particular description. The rules of law are clear with regard to the manner of describing a criminal act. The words of Mr. Hume are," That a libel is not good, unless it give such an account of the criminal deed as may distinguish this particular charge from all other instances of the same sort of crime, and thus bring the panel to the bar sufficiently informed of that whereof he is accused."* If this description of the duty of the prosecutor be correct, I apprehend this indictment must clearly go to trial; for it sets forth the crime charged in a manner to distinguish it from every other instance of the same sort of crime. The criminal deed is the administering of the oath, and the oath itself is set forth in the indictment. Even if it had not been in the power of the prosecutor to obtain the terms of the oath, yet, by this statute, it was competent to him to charge its purport. But the prosecutor has fortunately had more in his power, for he has obtained the oath itself, and he has recited it at length in the indictment, criminal procedure; and whatever defects there may be in the law of Scotland, there are some excellencies, and one of them is that minuteness of specification which the public prosecutor is bound to observe in his indictment. The proper precaution for preventing this statute from being made a source of oppression and injustice, is to observe our forms of criminal procedure; and I maintain that one of our best forms will be neglected, if you allow a proof of the minor proposition here to go to a jury, when there is no specification in the libel to show that the words of the oath were used in a sense different from their ordinary sense. Their ordinary sense as I have endeavoured to prove, or rather as I think must be manifest at first sight, is perfectly innocent; at least it is not an obligation to commit treason. If this libel be allowed to go to trial under other judges, the administration of any oath, of the oath of allegiance itself might be made the ground of a prosecution under this statute. The author whom I have already had occasion to quote, says, that the rule of the minor proposition containing a specification of all the facts on which the charge rests, was at tended to anxiously, even in the worst times. We know well what are the times to which he alludes, indeed they are pointed out by the decisions to which he refers; namely, the period between 1679 and 1688, when your books of adjournal are stained with the most atrocious murders perpetrated under the colour of law-by judges the most unprincipled that ever sat upon that bench. If in that period, and under these judges, the rule in question was not departed from even in the trial of state crimes, it will not be departed from in these liberal and enlightened days, and while your lordships preside in this Court. On these grounds, I relate to your lordships with confidence what is the genuine conviction of my own mind, that this is not a relevant indictment, and that if it be sent to a jury, a precedent will be established fraught with the greatest danger. [Mr. Cranstoun made an Mr. Hume proceeds afterwards to describe the manner in which the criminal deed should be set forth; and as the learned gentleman who went before me dwelt some time on this subject, I shall be under the necessity of quoting at length Mr. Hume's views of the duty of the prosecutor. [Mr. Drummond here read from vol. 3, p. 325, and subsequent passages, and maintained that the description of the offence in this indictment was sufficiently specific.] I apprehend that the prosecutor is correct as to the times and places, and the individuals to whom the oath was administered, as no objection has been stated to the indictment with regard to these points. And, considering the particular character of this crime charged, and that it is of a secret nature, and extremely difficult to detect, I think your lordships must be satisfied, that the prosecutor has given as pying the Court so long.pology for occu- full and particular a description of it as the Lord Justice Clerk.-I express the opinion of the Court, that there is no reason for such an apology. We have all heard the very able, eloquent, and argumentative pleading for the panel, with the most perfect satisfaction. Mr. Drummond.-A very difficult task has devolved itself upon me, that of answering one of the ablest arguments which I ever had occasion to hear; and I have this impression so strongly on my mind, that unless I had some confidence in the merits of the cause which I am to support, I should feel the greatest diffidence in attempting to answer the speech of the learned gentleman. I trust, however, that the case will speak pretty strongly for itself; and my learned friend who is to follow me, will, much more ably than I panel could expect. This is a crime, in many respects, of a very peculiar character. It is necessary, indeed, as was correctly stated by the learned gentleman, that the oath itself should bind to the commission of treason, or of some capital felony. It is not sufficient that the party administering the oath, or the party taking it, should have treasonable, or other criminal intentions; but it is necessary that the oath itself should bind to the commission of treason, or some other crime. This was most correctly laid down by the learned gentleman, and any inference which the prosecutor may think himself entitled to draw from the oath will not be sufficient, if it do not clearly appear that the oath itself is of the precise purport necessary to inculpate the 3 Comm. 310. panel on the statute founded upon in the indictment. On this part of the case I am ready to meet the learned gentleman; for it appears to me very clearly that this oath does contain an obligation to commit treason, and that, upon a fair construction of it, no man of good sense can fail to be of this opinion. The oath says, "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." The learned gentleman stated, that the oath binds the person taking it to support the endeavours made to obtain annual parliaments and universal suffrage, and he stated so correctly. He observed that the oath could not bind them to support what was not in existence, and that therefore it was to obtain, not to support, annual parliaments and universal suffrage, things not in existence, that the oath had been administered and taken. It remains for you to consider, whether the oath to support with moral and physical strength endeavours made to obtain annual parliaments and universal suffrage, is an oath which subjects those administering or taking it to the charge of administering or taking an oath purporting to bind those taking the same to commit treason? and upon that narrowed construction of the oath I join issue with the opposite counsel. It was said very ingeniously, that physical strength may be innocently employed in many ways for the support of endeavours to obtain universal suffrage and annual parliaments that it may be employed in the erecting of hustings for meetings to petition parliament on the subject that it may be employed in running about and soliciting members of the legislature to give their support to such petitions. These are certainly exercises of physical strength, but not of the kind referred to in the oath. The oath binds the persons taking it to use all their physical strength, as the case may require. The instances which have been mentioned of the application of physical strength are not the only ways in which physical strength may be employed in order to obtain the objects spoken of; yet, by the terms of the oath, there is no limitation as to the kind of physical strength which the parties were to use. They were to use the whole of their moral and physical strength; and the terms force and strength have here the same meaning. If an innocent purpose only had been in the view of these persons, then why were they anxious for concealment ?-What follows in the oath? "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 stedfast." This is a remarkable part of the oath, and surely such concealment was not necessary in erecting hustings, or doing any of the things which were suggested by the learned counsel in his illustrations. There can be no use for such concealment, where lawful means are to be employed for the attainment of lawful objects. Every person who reads the oath must see that it proves in the strongest manner, that illegal objects were in the view of the parties. This is obvious, without travelling beyond the four corners of the oath itself. It is so obvious, that no argument can prevent the indictment from going to trial. The oath alone, without going to any other article of evidence, is directly criminal, and implies that the purpose for which the meeting was assembled was an illegal purpose, and the association an illegal association. It was said by the learned gentleman, that the word "force" had been " artfully" substituted in the indictment for the word "strength.” But according to my construction, they have no different meaning-they are synonymous. But I may answer his statement by a remark of his own which is well founded, that any inference from the oath adjected in the indictment does not signify, unless the oath itself necessarily imply that inference. The artifice, therefore, if there had been any (and there was assuredly none), could have no effect, as your lordships are to judge of the oath itself, and not of the conclusions drawn from it by the prosecutor. It is also libelled in the indictment (and to the proof of that no objection has been stated), that this oath was administered at secret meetings. To a proof of this averment, no objection has or can be made; and if it shall be proved that this oath was administered at a secret meeting, this is an additional circumstance of evidence which must go to the assize, to show that the purpose of the oath was illegal and criminal. That the oath was administered at a secret meeting is charged, I observe, with regard to the meeting first libelled on in the indictment. It is argued, that the narrative of the indictment-the general statement of treasonable conduct which precedes the statement of the particulars founded on-is not relevant to be proved. I apprehend, however, that many examples might be given from the daily practice of the Court of such narratives as this going to a jury. One example that occurs to me (I am sorry that I am under the necessity of speaking from memory alone, as I am certain that if I had had time to make an investigation, I could have produced many examples on the point) an example, I say, occurs to me, which is probably in your recollection. The case I allude to was that of a charge for uttering forged notes. The forgery had been committed in England; that crime, therefore, particularly the last clause, proceeds on the understanding that we are entitled to go on as we are doing in this trial, although the crime tried be treason. "Provided also, and it is hereby declared, that any person who shall be tried and acquitted, or convicted of any offence against this act, shall not be liable to be indicted prosecuted, or tried again for the same offence or fact, as high treason, or misprision of high treason; and that nothing in this act contained shall be construed to extend to prohibit any person guilty of any offence against this act, and who shall not be tried for the same as an offence against this act, from being tried for the same as high treason, or misprision of high treason, in such manner as if this act had not been made." the Court had no jurisdiction to try. Yet you admitted the statement of the forgery in the narrative of the indictment in modum probationis of the crime of uttering the forged notes in Scotland, and as relevant to infer the knowledge of the forgery in the utterer. This is settled law; and the oath here charged is at least as intimately connected with the statement of treasonable practices mentioned in the narrative, as the crime of uttering forged notes was with the perpetration of the forgery. I am not going too far in saying that the oath is nothing else than an overt act of a general treasonable conspiracy, not now charged against the parties. The whole import and construction of the present charge, indeed, involves the existence of another crime. The administration of the oath is a criminal act, binding the takers to commit another crime; and how is it possible to separate the two? How can any circumstances regarding the one be explained without mentioning the other? We are bound to show that there was treason which would have been speedily matured, if the purposes of the persons who administered and who took the oath had been carried into effect. We are to prove what they were hatching-what they intended-and it is impossible to lay out of view the preparations they were making for committing treason, in speaking of what they bound themselves to accomplish. Thus the rule of not admitting proof of one crime in evidence of another, must be received with some qualification, and it has always been so in practice. [Mr. Drummond here referred to Hume's Com. vol. 3. p. 411, and to the case of Thomas Somerville, who was tried for perjury in 1813, as mentioned in the corresponding part of the supplement, p. 226.] There you have [evidence of one crime admitted to prove another, although the one was quite different from the other. But here the crimes are intimately and almost inseparably connected. It is an established rule in the English law books, in cases of treason, not only that one overt act not laid as a charge, may be adduced as proof of one that is laid, but that a general proof of rebellion or conspiracy is allowed before proceeding to the particular acts charged; and the well known case of Strafford* was quoted and received as an authority on this point in the trials of Watt+ and Downie,t-in which the existence of a treasonable plot was allowed to be proved before the overt acts charged. The principal question is, whether the matter offered in evidence be pertinent to the point in issue? It was said that we are not entitled to try a man for treason in this form, and that therefore we cannot indirectly try the treason as proof of another crime. I appeal, in answer to this, to the act of parliament under which we are now proceeding. The whole act, and 3 How. St. Tr. 1381. t2 How. Mod. St. Tr. 1167. 13 How. Mod. St. Tr. 1. Even if this act had never existed, I should have been prepared to maintain, on the ordinary rules of law, the competency of trying under a lower denomination of crime: what might have been tried as treason but the clause now quoted is quite conclusive. There is, therefore, nothing in the circumstance that the criminal proceedings set forth in the narrative of the indictment happen to be of a treasonable nature, that can make any difference in the case; and I submit, that as they form part of the res gesta at the time of administering the oath, and naturally enter into the history of the transaction, they ought to be admitted to proof, and found relevant with the rest of the libel. They are intimately and inseparably connected with the proof of the crime charged, and afford the clearest and most relevant indicia than can be imagined of the guilty purpose of the panel. It seems unnecessary to add that if it be relevant to introduce this statement narrative, the same specification is not requisite as if it had been made the subject of a substantive charge; and I should not have made this remark at all, unless there had appeared a disposition to argue upon this narrative, as if the relevancy of it were to be tried by the same rules as a charge in the indictment. It was said by the learned gentleman, that the particulars charged as what the parties bound themselves to commit, would not have amounted to high treason even if they had been carried into effect. But how it can be maintained that the employment of force to accomplish public measures of this description is not treason, I cannot conceive. It appears to me to be beyond the ingenuity of even the learned gentleman himself, to persuade any person, that a public measure of any sort may be accomplished, not to say the fundamental principles of the constitution subverted by force, by a number of persons conspiring together for that purpose without levying war agaist the king. According to my view of the law, I might have been entitled to charge the administration of the oath itself as high treason. The words of the statute 36 G. III, c. 7. seem completely in point, as to the treasonable nature of the association and the oath. |