tion of this kind, an oath, when proposed was rejected by the most determined of the conspirators. 66 No, not an oath : what other bond Than secret Romans, that have spoke the word, it be possible to sustain an indictment alleging, with so little specification, an obligation to commit treason? Who does not know that there are a great variety of treasons distinguished from each other by difference of species, in the same manner and to the same effect as other crimes, which are known each by its species and so distinguished from other crimes which do not belong to that species? Yet the indict- The nature of a conspiracy is the same with ment contains nothing to mark the species of or without an oath, though an oath may be an treason which was to be committed. It ap- aggravation of its wickedness. In the quespears from his words, that the prosecutor tion whether the engagement was, to commit wishes to charge the prisoner with a delin- the crime of treason, I may therefore lay out quency that has a relation to some treason, but of consideration the circumstance that it was that is all. His meaning goes no further; in the form of an oath. Again, an oath of and such is not a legal meaning when express- secrecy may be wicked, even although the ined in an indictment, as the substance of a tention of the persons who take it is innocent charge to be tried. Indeed, it is so indefinite, in other respects; and it will not make an enthat I do not understand what it really imports.gagement or obligation treasonable or otherClearly it does not sufficiently describe any known treason. It seems to point at a treason to be committed by levying war. But is there any word about levying war in the indictment? Not one syllable; and yet it is acknowledged by every authority from Coke downwards, that where a man is tried for levying war against the king, the levying of war must be specially set forth in the charge; and however brief and general our neighbours may be in drawing their indictments (and they are more so than we), this specification is required, that the parties have conspired and actually engaged in levying war [Mr. Clerk here referred to Lord Coke and Sir Mathew Hale, and made some further observations relative to a charge of levying war.] All this shows, that if in the present case the treason to be committed was levying war, that species of treason should have been set forth. But in this indictment, though the oath is set forth, and certain words are used, intended as an averment of its criminal tendency, the averment is in terms so vague and general, that it cannot be gathered from them what the prosecutor means as to the species of treason which the prisoner had in view. wise, that the parties to it were sworn to secrecy. The question as to the true nature of the obligation, as being treasonable or not treasonable, evidently cannot depend upon the secrecy to which the parties were sworn. The form of an oath, and an oath too of secrecy, may and will greatly aggravate the offence that is committed by entering into any conspiracy, whatever its illegal object may be. But neither the oath itself, nor the obligation of secrecy, will make that treason which is not treason, nor change an obligation to commit any illegal act or crime, in itself not treason, into an obligation to commit the crime of high treason. Keeping these important considerations in view, that an engagement may be very criminal without being treasonable-that the intervention of an oath does not make it treasonable, and that even an oath of secrecy cannot have the effect to change a crime, how wicked and dangerous soever, into high treason, if the crime is not in itself high treason, but a crime of another character and description,—I shall offer some remarks upon the terms of this oath. And here I must repeat, that the oath may admit of no certain or precise construction. It may be understood in twenty different senses by twenty different persons. Perhaps no two men would agree with each other as to its precise meaning. But my present task is not to show the precise meaning of the oath, but a different and an easier task, namely, to show that it does not import an obligation to commit high treason. For this purpose I shall offer a very few remarks upon it. Thus the meaning of the oath, whatever it may be, is not sufficiently charged in an indictment proceeding upon the statute 52 of the king. And though an exposition of its actual meaning may be attended with difficulty (perhaps no certainty can be had in expounding it), it is easy to show, that it cannot be regarded as a treasonable obligation, however objectionable in other respects your lordships may think it. In considering this obligation, I shall lay aside for a moment two circumstances that are immaterial to the question, Whether it is an obligation to commit treason? one is, that it is an oath another, that it binds to secrecy; for these circumstances, though they are of an aggravating nature, do not make the obligation more or less treasonable. As an engagement may be treasonable, without being in the form of an oath, so an engagement may be confirm-will ed with an oath, without being treasonable or criminal at all. In one remarkable transac Nothing can be known of the nature of this engagement, but from the words of it. The party binds himself by an oath, and the first part of his obligation is expressed in these words: "That I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every description who are considered worthy of confidence; and that I persevere in my endeavours to obtain for * Shaksp. Jul, Cæs. Act 2, Scene 1. text, that the relative necessarily applies to former antecedents. But that is not the case here, There is a disjunction, not only in the sense, but in the grammatical construction, of the subject of annual parliaments and universal suffrage, from the previous part of the oath. The more natural construction of the obligation to "6 support the same" is obtained, therefore, by referring it to a support of the wished-for changes when recognized by law. And there is another consideration, which leads to the same determination of the question. There are many rules for the interpretation of words; but the great rule of interpretation in a criminal charge is, that in case of doubt, that construction which is most favourable to the accused must be adopted. And if the prisoner is entitled to the benefit of the rule I have just mentioned, I cannot see much difference between the interpretation offered on his part, and that which has been contended for by the prosecutor. For, whether the phrase, "support the same," shall be referred back merely to the proposed changes, when obtained, or to the endeavours to produce them, still it must be held, that the support to be given is intended as a legal, and not as an illegal support, and rather as a support of the law itself, to be appealed to in every stage of his endeavours by the person taking the oath, than as a support of illegal attempts to overturn it. 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." The purposes here expressed are, I presume, innocent of treason, though it would not be easy to tell the precise meaning of the words, and it is evident that they have no precise meaning. On the contrary, they are so extremely vague and indefinite, that every person taking such an oath seems to be at full liberty to put his own meaning upon it, without being at all exposed to the reproach of refusing to fulfil his obligation. Universal suffrage and annual parliaments are very naturally supposed to have been the objects in view; but still there is nothing in the engagement itself, nor in the manner of expressing it, that is treasonable or even illegal in any respect. If the obligation had stopped with the words to which I have just referred, a prosecution for administering a treasonable oath would have been utterly absurd. But the obligation proceeds with other words, which are supposed in the indictment to be treasonable," and that I will support the same to the utmost of my power, either by moral or physical strength as the case may require." These words are the foundation of this indictment, and the material, if not the only question, as to the relevancy, depends upon their meaning, or rather upon the question, whether they admit of no meaning or construction but one, the meaning alleged by the prosecutor, who argues., that they purport and intend to bind the party taking the oath to commit the crime of high treason. It is to be considered, whether the words have that treasonable meaning, or if that is not their meaning, it is evidently of no consequence what they mean. The words of the oath now under consideration bind the party to support the same; and there has been some argument as to the meaning of supporting the same, as the words occur in this part of the oath. It was said for the prisoner, that when taken along with the previous words of the oath, the meaning of the whole is, that the party should persevere in his endeavours, and in particular, his endeavours to obtain annual parliaments and universal suffrage, and also to support the same, namely, the annual parliaments and universal suffrage, when obtained and recognized by law. According to this construction, the oath intended any thing but treason. It was to support a legal establishment when it should be obtained, and not even to support an attempt, though legal, to obtain a change of the existing laws. And this view of the oath seems to be perfectly well-founded. On the one hand, there is an incongruity in saying, that the party will support his own endeavours; and, on the other, the expression," support the same," is a relative that can only apply to the last antecedent, unless it appears from the grammatical construction, or from the meaning of the con But the argument of the prosecutor is, that the clauses now under consideration do not merely bind the person taking the oath, to support his endeavours at innovation, but to "support the same to the utmost of his power, either by moral or physical strength as the case may require." The prosecutor seems to think, that these words complete the treasonable obligation, and leave no doubt whatever as to the meaning either of the party who administered, or of the party who took the oath. That there should be no doubt as to the meaning of these words, appears to be not a little extraordinary, when it is considered, that if they have any meaning at all, it is a meaning as vague, indefinite, and uncertain, as can be imagined. Yet the prosecutor thinks, that they can mean nothing but treason, and he will not allow that any other meaning can be put upon them.. Even the uneducated people, for whose use the oath was contrived, must, without all doubt, have understood, that it was the purport of these words to bind them to commit treason! These assertions are finely exemplified by the abortive attempt made in the indictment, to put any intelligible meaning upon the words. The prosecutor has not been able to apply them to any description of treason, excepting that constructive treason, which he would revive after it has been abolished for several centuries. And here it is proper to notice an inexcusable gloss in the indictment, as to the meaning of the words now under consideration. The words of the oath are, "I will support the same to the utmost of my power, either by moral or physical strength;" but it is alleged in the indictment, that the treason was to be committed, "by effecting by physical force, the subversion," &c. Here the word strength is changed into the word force, a word of a different meaning. It has been said, that the words are synonymous. If that is the case, why change the one for the other? But they are not synonymous. It is very true, that on some occasions either word may be used, without much, if any, difference of meaning. But the same thing may be said of words, that so far from being synonymous, have significations that are very different. The distinction between strength and force is quite obvious. Strength refers to power,-force to the violent use of that power. Force always implies violence, but strength does not. A precept in the Holy Scriptures is thus expressed, "Thou shalt love the Lord thy God with all thy heart, and with all thy strength." How would this passage read with the word force instead of the word strength? To support with moral and physical strength does not mean that violence is to be used at all. So far from meaning that violence is to be used in attacking others, it does not necessarily mean that violence which may be used in resisting the violent attacks of others. Thus, it has been assumed, with very little ceremony indeed, that the moral and physical strength referred to in this oath, was to be applied for the purposes of treason. It seems to be just as reasonable to take it for granted, that the moral and physical strength was to be employed in the commission of any other crime. Can a reform in parliament be promoted only by the commission of treason? No, it will be answered; but treason, if it was useful or necessary, was to be committed. Then, if the parties were not to shrink from the crime of treason if necessary for these purposes, it must be supposed that they would have been equally ready for the cominission of any other crimes. But, I ask, whether, according to the meaning of this oath, the parties who took it were bound to commit murders, robberies, thefts, every sort of crimes, in order to promote reform in parliament? Is it possible that any human being can be so destitute of charity and common sense as to put that construction upon the oath? When I bind myself to forward the purposes of reform to the utmost of my power, by moral and physical strength, am I bound to commit all or any one of the crimes which have been mentioned? Must I rob on the highway in order to promote annual parliaments and universal suffrage? And if the oath is not an obligation to commit crimes generally, is it not absurd to say, that it is an obligation to commit the greatest of all crimes, the crime of treason? To maintain a proposition so monstrous, is the best example to prove the danger and atrocity of charges of constructive treason. Suppose one of the persons who are stated in the indictment to have been engaged in a conspiracy, but whose names are not communicated, had been told that the oath being an obligation to support the plan of annual parliaments and universal suffrage to the utmost of his power, by moral and physical strength, so he was required to commit some great crime, an assassination for example. If such a conversation among these conspirators can be supposed, the person addressed might surely answer, I engaged to do every thing in my power to obtain annual parliaments and universal suffrage, but I have not engaged to do any thing that is against law-there is no such obligation in the oath. Could any one of the fraternity have replied, you are bound by the obligation, and must now perform the part you have undertaken: This assassination will support the cause of universal suffrage; and it is an act within your power. This reasoning would hardly serve; and if there is no obligation to commit a great crime, there is just as little to commit a small crime. The oath does not purport or intend to bind the party taking it to commit any crime whatever, or even to infringe the slightest rule of morality. Nor is there any difference between a mere paction in such a case and an obligation strengthened by an oath, how tremendous soever. As to the present question, the cases are quite the same. But it is said, that if the intentions of the parties were so innocent, why take an oath? Why this obligation to secrecy? I have answered that already. I do not know why there was an oath at all. I do not know why it was an oath of secrecy. I have heard, indeed, that some politicians have not the most absolute confidence in each other. There are animals known by the name of rats, of whom I sometimes read in the newspapers, who are said even to infest a certain great assembly. Some of those who were engaged in this association may perhaps have suspected that animals of that species might get amongst them, and, in order to prevent such an accident, they had recourse to the oath. Why was there an oath of secrecy? I see no reason why they should have bound themselves to secrecy. But is secrecy to imply the great est atrocity of conduct? If they wished for secrecy, does it necessarily follow that they were to commit treason? Many enterprises require secrecy. That there were persons whom they did not wish to offend, might be a sufficient reason for their secrecy. It would be very unsafe, indeed, to infer the illegality of any combination from the circumstance that it is held together by an oath of secrecy, but it would be still more unsafe to infer a treasonable conspiracy upon such flimsy grounds. But the question is not, Whether the obligation to secrecy was right or wrong? The only question is, Whether there is in this oath an obligation to commit treason? The question is not, Whether the panel committed treason in any way? but it is, Whether there is in the oath any obligation to commit trea→ son? On these questions, I think it unnecessary to trouble your lordships with any further observations. Lord Justice Clerk.-After the uncommonly able arguments which you have heard from both sides of the bar, the question for your lordships' consideration is, In what manner you are now to proceed in determining whether the present is a relevant indictment? Lord Hermand.-I had no doubt in my mind, when I first saw the Indictment, that it was relevant. But a great deal has been said to-day on the competency of alleging one crime in order to prove another. I have formed no opinion on the objections which have been stated to the indictment; and being desirous to understand them thoroughly, I wish to see them discussed in informations. Several authorities have been cited, particularly by Mr. Cranstoun, and it would be proper to have them fully stated, before giving any opinion with regard to them. Lord Gillies.-I am of the same opinion, and strongly wish to see Informations. Lord Pitmilly. I am particularly anxious to consider that point which we have heard debated, and which is of general importanceI mean, the question as to the admission of the narrative part of the indictment to proof. With regard to the other objections, I have read all the authorities, and should have been ready to give my opinion upon them. It does not appear to me, that the cases of forgery alluded to are analogous to this case. If special acts of treason had been stated, the introductory part of the narrative might have been admitted to proof. But as the minor charge is not treason, but a different crime, my mind is not yet made up to the opinion that the indictment is relevant. As far as I am able to judge, I cannot help thinking that the panel, if acquitted on this indictment, might be again tried for treason. Lord Justice Clerk.-I am much in the situation of my brother who has last spoken. In reference to the meaning of the oath, I have given great attention to what has been said; and I had looked into authorities, besides those referred to to-day. As to the other point, it has been most ably argued, and is deserving of most serious and deliberate attention-whether it be competent to let the public prosecutor into a proof of the narrative of this indictment. That is a point which, in reference to this important case, and all other cases of a similar nature, is deserving of the most mature consideration. This, too, is the first time that an indictment has been brought before us founded upon this statute. I am quite clear, therefore, that the solemn and regular manner of deciding the points in question is, to have Informations prepared, in which the arguments may be fully exhausted. INTERLOCUTOR. 9th April, 1817. "The Lord Justice-Clerk, and Lords Commissioners of Justiciary, ordain parties' procurators to give in Informations upon the relevancy of the Indictment, to see and interchange these Informations, and to print, and lodge the same with the Clerk of Court in order to be recorded, and that within three weeks from this date: Continue the diet against the panel till Monday the 19th day of May next, at ten o'clock forenoon, in this place; and ordain parties, witnesses, assizers, and all concerned, then to attend, each under the pains of law; and the panel in the mean time to be carried back to the Castle of Edinburgh. Rt. Hon. Alexander Maconochie, Lord Advo- H. Warrender, W. S. Agent. G. W. Boyd, W. S. Agent. to the indictment against you, which is now Lord Justice Clerk.-William Edgar, attend to be read. "William Edgar present prisoner in the Castle of Edinburgh, you are indicted and accused, at the instance of Alexander Maconochie of Meadowbank, his majesty's advocate, for his majesty's interest: That albeit, by an act passed in the fifty-second year of his present majesty's reign, intituled, 'An act to render more effectual an act passed in the thirty-seventh year of his present majesty, for, preventing the administer ing or taking unlawful oaths,' it is inter alia enacted, That every person who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at the administering, of any oath or engagement, purporting or intending to bind the person taking the same to commit any treason or murder, or any felony punishable by law with death, shall, on conviction thereof by due course of law, be adjudged guilty of felony, and suffer death as a felon, without benefit of clergy.' And further, by section fourth of the said act, it is enacted, That persons aiding and assisting at the administering of any such oath or engagement, as aforesaid, and persons causing any such oath or engagement to be administered, though not present at the administering thereof, shall be deemed principal offenders, and shall be tried as such; and on conviction thereof by due course of law, shall be adjudged guilty of felony, and shall suffer death as felons, without benefit of clergy; although the persons or person who actually administered such oath or engagement, if any such there shall be, shall not have been tried or convicted.' And further, by section sixth, of the said act, it is enacted, That any engagement or obligation whatsoever, in the nature of an oath, purporting or intending to bind the person taking the same to commit any treason or murder, or any felony punishable by law with death, shall be deemed an oath within the, intent and meaning of this act, in whatever form or manner the same shall be administered or taken, and whether the same shall be actually administered by any person or persons to any other person or persons, or taken by any other person or persons, without any administration thereof by any other person or persous: YET TRUE IT IS AND OF VERITY, that you, the said William Edgar, are guilty of the said crimes, or of one or more of them, actor, or art, and part: In so far as you, the said William Edgar, did, at secret meetings, and on other occasions, at Glasgow, or in the immediate vicinity thereof, in the course of the months of November and December 1816, and of January and February, 1817, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering, to a great number of persons, to the amount of several hundreds, an oath or, engagement, or an obligation in the nature of an oath, binding, or purporting or intending to bind, the persons taking the same to commit treason; which oath, engagement, or obligation, was in the following terms, or to the following purport, In awful presence of God, Ï, A B, do voluntarily swear, that I will per severe in my endeavouring to form a brotherhood of affection amongst Britons of every description, who are considered worthy of confidence; and that I will persevere in my endeavours to obtain for all the people in Great Britain and Ireland, not disqualified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation, and annual parliaments; and that I will support the same to the utmost of my power, either by moral or physical strength, as the case may require: And I do further swear, that neither hopes, fears, rewards, or punishments, shall induce me to inform on, or give evidence against, any member or members collectively or individually, for any act or expression done or made, in or out, in this or similar societies, under the punishment of death, to be inflicted on me by any member or members of such societies. So help me God, and keep me stedfast.' Which oath, or engagement, or obligation, to the foregoing purport, did bind, or did purport or intend to bind the persons taking the same to commit treason, by effecting by physical strength the subversion of the established government, laws, and constitution of this kingdom, and especially by obtaining annual parliaments and universal suffrage by unlawful and violent means. And, more particularly, you, the said William Edgar, did upon the 1st day of January 1817, or on one or other of the days of that month, or of December immediately preceding, or of February immediately following, at a secret meeting, held in the house of William Leggat, change-keeper in King-street, Tradeston, in the vicinity of Glasgow, or elsewhere at Glasgow, or in the immediate vicinity thereof, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering an oath or obligation in the terms above set forth, or to the same purport, to Peter Gibson, John M'Lauchlane, John Campbell, and Hugh Dickson, all present prisoners in the Castle of Edinburgh; as also to James M'Ewan, now or lately carding-master at Humphries Mill, Gorbals of Glasgow, and M'Dowal Pate, or Peat, now or lately weaver in Piccadillystreet, Anderson, in the vicinity of Glasgow, who, conscious of their guilt in the premises, have absconded and fled from justice; as also to John Connelton, or Congleton, now or lately cotton-spinner in Calton of Glasgow, or to one or other of them, and to other persons, whose names are to the Prosecutor unknown, the said oath, or engagement, or obligation, to the said purport, binding, or purporting to bind, the persons taking the same to commit treason, as said is. (2.) And further, you, the said William Edgar did, |