panel, that, though acquitted on this occasion, he might be afterwards tried for treason. If he were to be acquitted of this charge, and afterwards brought to trial for treason, I suspect we should hear from his counsel an effectual argument against such second trial. I. content myself with saying, that our view and interpretation of the statute is totally and absolutely different from that of my learned friend, Mr. Cranstoun, and that we conceive, from the terms of it, it is impossible such a second trial could be attempted. It is said, in the last clause, "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 or 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." is possible that when the oath was administered, not one circumstance was finally resolved upon as to the detail of the execution of the treason;-it is quite possible that no one circumstance may have been fixed on as to the mode in which it was to have been carried into effect;-and no resolutions adopted as to the course of proceeding to be followed for the accomplishment of the atrocious purposes of the parties. Different plans may have existed in the minds of different conspirators;-there may have been numerous disputes on the subject:—and therefore, from the very nature of the statutory crime, it is impossible that any such detail as the opposite party require could be given; and it is enough to say that the statute has not required it. The nature of the treason which the oath bound the parties to commit is as much specified as it is possible for the public prosecutor, or for any human being, to specify. He has said, that the treason contemplated was that which consisted in compelling an alteration in the established laws by force and violence. That this would be treason, who can doubt? Whether, in the actual accomplishment of it, the criminals would have levied war against the king, in the sense in which the law uses these terms, or whether they would have compassed or imagined the death of the king, or whether both these legal crimes would have been perpetrated in the actual consummation of their purpose, who can pretend to say? To demand, that the public should divine and specify the mode in which the treason was actually to be perpetrated, is absurd and impossible, because the modes are various. To demand that he should specify all the modes, in which the intended treason ought to be per petrated, is plainly unnecessary and useless. It is sufficient for him to satisfy your lordships, that the object contemplated by the oath could not be accomplished but by means of treason; and on this I have already stated my argument, in the words of the highest authorities of the law. But it was also rather inconsistently urged, that if we had stated treason to have been committed with all its circumstances, we should not have been entitled to offer any proof of this averment, or to give any detail of the facts here, as the panel is not on his trial for high treason; and one objection to the indict ment is to the narrative of details with which the statutory offence is introduced. On looking into the statute, I think it is hardly necessary to go into this question, because, it is not necessary that the commission of overt acts of treason should be alleged. I submit also, that what my learned friend, who immediately preceded me in behalf of the public prosecutor, stated on this part of the subject, was agree able to the law of Scotland, and sufficiently obviates all that was urged in the way of objection to this part of the case. In conclusion, it was strongly and powerfully urged, as a hardship in, the case of the This clause was intended to guard against two inconveniences. 1st, It was intended to protect the subject from being tried again as for treason upon the facts on which the statu tory crime shall have been already prosecuted.. In other words, it would be impossible to give in evidence, in any subsequent trial of this prisoner, any of the facts which have been admitted to proof in the present case. 2nd, It was intended to guard against the possibility of the enactments of this statute being construed to affect the principles of the law of treason previously established. If, therefore, the public prosecutor were to attempt to bring the prisoner to trial for treason after an acquittal in this case, he could not bring in evidence any one of the facts which were more or less connected with the present charge. This is the plain and necessary construction of the clause in the statute, and entirely removes the objection. I have to call your attention to an authority upon the question that has been started relating to the specification of the crime. It has been maintained, that we are bound to specify the general nature of the conspiracy before we can proceed to prove the criminal intention of the parties. On this subject I may refer to the general terms in which an English indictment has been laid and found relevant. Such a decision,, although it cannot affect the law of Scotland as a conclusive authority, yet is re spectable in its way, and worthy of consideration. I submit that in describing the illegal. societies, the terms used in this English indictment are more general than those which the prosecutor has employed on this occasion, and to which an objection has been taken. On the whole, I maintain that the indictment be * R. v. Moors and others, 6 E. 419, n; 1 Russ. 204; 2 Chit. Crim. Law, 102. fore you, in the form in which it is laid, ought to be found relevant. Mr. Clerk.-This indictment proceeds upon an act of parliament passed in the 52nd year of his majesty's reign, against administering unlawful oaths; and accordingly certain clauses of the act are set forth in the major proposition, as containing the description of the crime to be charged. This being the accusation, I need not remark that it would have been easy for the public prosecutor, if he had a case falling within the act of parliament, to confine himself to it in the minor proposition of his indictment, by stating in plain terms, that true it was and of verity, that the panel had administered such an unlawful oath as that which was prohibited by the statute-reciting the terms of the oath-averring that an oath in these terms fell under the statute as being a treasonable oath-stating how and in what respect it was treasonable, and to which of the different species of treason it appliedand specifying the time, place, and occasion of committing the crime. The relevancy of such an indictment might perhaps have been sustained. But the public prosecutor has not confined himself to the proper charge appear ing on the major proposition of his own indictment, but has attempted most illegally to introduce matters totally unconnected with it, for the purpose of embarrassing the prisoner with accusations of a kind totally different, and which cannot be the subject of inquiry with reference to this charge. In aid of his argument the public prosecutor has founded on an English case, in which one was convicted on evidence of circumstances to prove his intention in administering an unlawful oath. I mention this now, because it is proper to take an early opportunity of distinguishing that case from the present. I know very little of the English case referred to; but on hearing it read, I observed quite enough to perceive that it was a case totally different from the present-proceeding on another act of Parliament, different in its terms from the act which is now founded on by the public prosecutor. Under the former act it is competent to prove the intention of the unlawful oath by circumstances extraneous to the oath itself, though that is not competent in the present case, in which the Court and jury must consider the terms of the oath and nothing else. It has to-day been noticed more than once, that besides the act of parliament libelled on, there is another act relating to unlawful oaths. But when you attend to the language of that act, you will see the difference between the terms there used, and those which are employed in this act of the 52nd of the king, and you will see the reason of that difference, and how it ought to affect indictments founded on these acts. The indictment before the Court is founded on the act passed in the 52nd year of his majesty, directed against those 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." &c. These persons are liable to the punishment of death, and every person who shall take the oath is punishable by transportation. By the 4th section it is enacted, that persons aiding and assisting at the administering of any such oath, shall be deemed principal offenders, and liable to the same punishment of death. By section 5 it is not necessary to set forth the words of the oath, and it “shall be sufficient to set forth the purport of such oath, or some material part thereof." By section 6. " 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, &c. shall be deemed an oath, within the intent and meaning of this act." Now, by comparing this act with the former, it appears, that as the penalties are more severe, so the description of the crime is more limited than in the former act. It is necessary that the oath or engagement shall purport or intend to bind the person taking the same to commit the treason, or other crimes punishable with death, which plainly signifies, that the purport or intendment of the oath only, or, the true meaning of its words, shall be considered in any prosecution against those who administer it. The purport of an oath has no reference to the intention, criminal or otherwise, of the party who administers it. The words of the oath may be innocent, and yet the intention may be very criminal. On the other hand, the words may be very mischievous, and yet the intention may be otherwise. But the legislature imposes the penalty according to the purport of the oath; the intendment is the same with the purport in speaking of the oath; and either of these terms may be considered as synonymous with the true meaning of the oath separately considered, and without regard to the intention of the party who administers or takes it. In one view, this statute is uncommonly severe, inflicting, as it does, a capital punishment for administering an oath which may be followed by no crime whatever. And even in taking the oath according to its purport or intendment, there is much severity; because the notion or opinion of the party who administers or takes it, as to its meaning and object, may be very different from the opinion of a court of law as to its true construction, and so the real intent of the party may be much less criminal than the intent which is imputed to the oath itself, by the judgment of the Court. But, on the other hand, while the act is full of severity on these points, it is lenient, in so far as it restricts the charge to the purport, intendment, or true meaning of the oath, and does not admit of a proof (which might be very loose and unsatisfactory, and very hard upon the prisoner to be tried) of an intention on his part, that went beyond the true meaning of the oath which he administered. For this act does not allow it to be proved, that though the words of the oath were apparently innocent, yet that under colour of an innocent engagement the most criminal intentions were concealed or covered. In what way soever the public prosecutor may make a charge of that kind (which supposes, no doubt that a great crime had been committed), it is plain that he could not make such a charge under this act. And the statute tempers its own severity with lenity in another important circumstance. Those who aid and assist in administering the oath, are liable to the punishment of death; but those who were present at, and consenting to the administering the oath, are not liable as for administering it, and it seems to have been the intention of the legislature that they should not be so liable. This act may be contrasted with that which was passed in the 37th year of the king, in which, though the punishment to be inflicted upon offenders was less severe (transportation for seven years), there is a much greater anxiety to prevent them from escaping; and, accordingly, the cases in which that punishment may be inflicted are much more numerous and comprehensive. It is enacted, "That any person or persons who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at, or present and consenting to the administering or taking of any oath or engagement, purporting or intended to bind the person taking the same to engage in any mutinous or seditious purpose; or to disturb the public peace; or to be of any association, society, or confederacy formed for any such purpose; or to obey the orders or commands of any committee or body of men, not lawfully constituted, or of any leader or commander, or other person not having authority by law for that purpose; or not to inform or give evidence against any associate, confederate, or other person; or not to reveal or discover any unlawful combination or confederacy; or not to reveal or discover any illegal act done or to be done; or not to reveal or discover any illegal oath or engagement which may have been administered or tendered to or taken by such person or persons, or to or by any other person or persons, or the import of any such oath or engagement; shall, on conviction thereof," &c. And by the third section it is enacted, "That persons aiding and assisting at, or present at and consenting to the administering or taking" of the oath, &c. shall be deemed principal offenders. Here is a very numerous collection of crimes; and as to the oath itself, not only are the persons liable to the statutory punishment, who are present at and consenting to the administering or taking of it, but every oath is comprehended, where it is of the nature specified, either in its purport or meaning, or where it is intended by the party administering 37 Geo. 3rd, c. 123, s. 1. or taking it as an oath of that description, If the observations I have now made are well founded, the public prosecutor is entirely wrong in attempting to introduce in the minor proposition of the indictment a long detail of circumstances, with no other object than to establish the supposed wicked intent of the prisoner, by evidence that is extraneous to the administering of the unlawful oath. The prosecutor ought to have confined himself to that charge; and I must again observe, that he had it in his power to frame an indictment without objection, by the proper recitals of the statute and of the oath, with proper allegations that the oath was prohibited by the act of parliament. But instead of adopting this plain method of proceeding, he has charged the panel with an indictment that is exposed to innumerable objections. * Lord Alvanley; 6 E. 420, n. The objection which I have just referred to would be sufficient to cast the indictment, if no other could be stated. But I shall remark upon some of the other objections. A good deal was said upon the competency of a general charge of high treason made in an indictment, without pointing out any particular species of treason. There can be no doubt whatever, that where the party is to be tried for the crime of high treason, a general charge of high treason made against him in the indictment would be good for nothing, and would at once be dismissed. For there are so many different kinds of high treason, each of them distinguishable from all the rest, that it would be just as well to charge a man with having committed a crime, without saying what crime, as to charge him with having committed treason, without saying what treason. But it seems to have been thought by the prosecutor that in this indictment it is sufficient to refer to high treason generally without distinguish ing between one treason and another, because the panel is not to be tried for committing high treason, but for having administered an oath, purporting or intending to bind the person taking the same to commit high treason. In a charge of this kind, it has been thought unnecessary to specify the treason which the oath purported or intended to bind the person taking the same to commit. But it seems to be obvious, that there is precisely the same reason to specify the treason in this case as in a trial for high treason itself. If it be unnecessary to specify the treason in this case, would it be sufficient to allege, that the oath purported or intended to bind the person taking the same to commit a crime, without specifying what crime, or giving any notice whatever to the panel of the nature of that offence which the oath purported or intended to bind the person taking the same to commit? It is plain, that in such a case the panel would have no notice at all of the crime for which he was to be tried. An oath, binding the person taking it to commit a crime, may in every case be criminal; but an oath, leading to one crime, must always be distinguished from an oath leading to another and a different crime. A defence completely conclusive against the al-' legation, that the oath led to the commission of one crime, would be no defence at all, if the prosecutor should not insist on that, but on a different allegation, namely, that the oath led to the commission of another crime. The panel might be prepared to defend himself as to the application of the oath to one-half of the crimes in the Statute-book, and yet, having no distinct notice of the prosecutor's views, might be in no state of preparation to defend himself as to the application of the oath to another crime, of which he had no notice, and of which he had never thought. The same consideration shews, that among the different species of treason, that particular species should be pointed out in the indictment, to which the prosecutor is to insist that the oath was appli cable. It seems then to be indisputable, that the species of treason, should have been alleged or assigned in this indictment, and that the total want of the specification in it is as objectionable as it would be in a trial for high treason. The objection is founded on the great and indispensable rule in criminal justice, that the panel ought to have notice of the precise accusation against him; and the want of such notice in this indictment makes the case precisely the same as if the prosecutor had attempted to proceed without an indictment at all. Another objection to the indictment was strongly and eloquently urged by Mr. Cranstoun, that you cannot, for the proof of a crime that is charged, prove any other crime that is not charged. This was stated, on the authority of Mr. Burnet, and of long practice. But one or two cases were cited against us by the counsel for the prosecution. I do not admit that these cases were correctly stated; but, at all events, they do not establish that the prosecutor is entitled to prove the extraneous circumstances alleged in the present case. One of the cases related to the uttering of forged notes within Scotland, and it was said, that in order to prove the charge of uttering in Scotland, it was competent to prove the forgery of the notes, although that crime was committed in England. That was a case of crimen continuum, in which the criminal act was begun in one place, continued and completed in another. If I recollect right, a case occurred some years ago, in which evidence of one crime to prove another was allowed, and the panel was convicted on a proof of that description. But that conviction was not approved of in another quarter, and when the circumstances attending it were known, the man got a pardon, in respect of the manner in which his trial had been conducted. One of your lordships will probably support me in this account of the case to which I now allude. I do not recollect the name of the party. Lord Gillies.- My general recollection coincides with what Mr. Clerk has stated; but I do not particularly recollect the circumstances. Mr. Clerk.-There are no dicta in the work of Mr. Hume, nor in that of Sir George M'Kenzie, inferring that a crime may be proved by another crime which is not libelled; and the authority of Mr Burnet, who was a very attentive observer of the proceedings in criminal cases, is directly against the doctrine. He lays it down expressly, that one crime cannot be proved by another. Thus the authority as well as the justice of the case, is on the side of the accused. But there is another objection to a proof of the conspiracy here mentioned. The allegation is in substance a charge of high treason; and would your lordships allow such a charge to be proved, under this indictment, in direct contradiction to the Act of Parliament upon which you try crimes of treason? Without the inter 193] spiracy charged may be one of fifty supposed for Administering unlawful Oaths. To another objection, no sufficient answer Another objection is, that the requisite speci- VOL. XXXIII. 1 ment, though they may be less material, are The other objections to this part of the indictstill of very great importance, and their validity tions of this description. is recognized by Mr. Hume, who employs many pages of his valuable work upon ques reasonable notice of facts must be given, and The gentlemen opposite admit that fair and thority, they assert, that such notice is not that Mr. Hume says so. always necessary. How does this agree with so. But, although they acknowledge his auHe does indeed say that where the public prosecutor has it in his power to mention particulars, and where his the opinion of Mr. Hume, who says expressly, doing so may be essential to the information of a panel for his defence, the Court will not oblige the panel to answer without his getting against him. a full and particular statement of the charge the import of the oath. It is asserted, that an oath in certain terms was administered by the I come next to the argument maintained on panel. I do not profess to understand the precise meaning of this supposed oath. It is understand it precisely is, however, not absolutely necessary to the consideration of the rather loosely and indefinitely expressed. To lawful oath, is not the question. The oath may be extremely wicked, and perhaps there is no question before the Court. Whether this be a one who now hears me who does not think that there was a bad intention in it. But that is not the question before your Lordships. The question is, WHETHER THAT OATH AMOUNTS Where a man is indicted for the crime of murder, the question is not, Whether he has been TO AN OBLIGATION TO COMMIT HIGH TREASON? guilty in other respects? whether he has committed a robbery or any other crime?— he has only to answer to the indictment for murder. The question here is, Whether the oath did purport and intend an obligation to commit high treason? For the oath is not said to be an obligation to commit murder or other felony. It is alleged to be an obligation to commit treason, and to that allegation the question is confined. this point is expressed thus in the indictment, "which oath or obligation did thus purport The averment of the public prosecutor upon physical force the subversion of the Established or intend to bind the persons taking the Government, laws, and constitution of this same to commit treason, by effecting by kingdom." completely demonstrated the futility of this averment, both in its form and in its subMr. Cranstoun, in his excellent speech, much less complete and powerful would have been quite sufficient in such a case. For can stance; but it appears to me that an argument |