benefit of clergy, the judges conceived that this did not extend to him that should steal but one horse, and therefore procured a new act for that purpose in the following year. And, to come nearer our own times, by the statute 14 Geo. II. c. 6., stealing sheep, or other cattle, was made felony without benefit of clergy. But these general words, "or other cattle," being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And, therefore, in the next sessions, it was found necessary to make another statute 15 Geo. II. c. 34., extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.' Thus, your lordships will observe, that even where words sufficiently appropriate in their ordinary sense were employed, yet if it was possible to take the offender out of the operation of the statute by any construction however rigorous, that construction, though not consistent with the probable, I may say the manifest intention of the legislature, was allowed. I cannot give a more striking instance of the application of the rule which I am endeavouring to enforce, than this which is borrowed from the law of England. I shall afterwards call your attention to some determinations in our own law to the same effect. In the present instance it is obvious, that the application of the principle of strict construction is imperatively required. First, because this is a penal case; Secondly, because it is a case where the highest penalty of the law may be inflicted; Thirdly, because the crime charged consists in the use of words, upon the construction of which the prisoner's fate depends; and, Lastly, because these words are stated to have been used not by a person well educated, and critically acquainted with language, but by one who is in the lowest situation of life, and who must be presumed to be totally ignorant of the force and delicacy of terms. With regard to this proposition, I am ready to admit, that, in point of form, it is correct, by founding on and quoting the words of the statute on which the accusation is laid. It does not appear to me, that there is much room for interpretation here. If there be room for any, it is as to the meaning of the words " purporting and intending," that is, whether the legislature means the intention of the party administering or taking the oath, or the intendment of the oath itself. I apprehend it must be clear to you, without my saying any thing upon the subject, that the import of the word "intending," is, that it must be an oath, the intendment of which is to bind to the commission of the crime, and that it is of no consequence whether the person who administers had criminal intentions or not, provided the intendment of the oath is not criminal. If there be an ambiguity in the use of the term, the prisoner must have his choice in which sense it shall be taken. But there is no ambiguity. It could not have been the meaning of the legislature to punish the secret intentions of a person administering such an oath; for unless that intention had been communicated, the offence in contemplation, namely, the imposition of the unlawful obligation, could not have been committed. If the words of the oath do not express the unlawful obligation, no person could conceive that it was undertaken; and if it was not undertaken, a capital punishment could not be meant to be inflicted on the person who intended to administer, but who did not administer, an oath of that import. 66 On this subject, I may content myself, by recalling to your recollection Mr. Clerk's observations upon the term in question. In the act of the 37th of the king, it was the object of the legislature to punish a misdemeanour, and therefore the words employed are different from those of the statute on which the present indictment is founded. The words, Having made these observations, let me call in the 37th of the king, are purporting or your attention to the major proposition of this intended" to bind, the passive, instead of the indictment. It sets forth, that, "by an act active, participle being used. Observe the passed in the fifty-second year of his present difference of the phraseology. The term emmajesty's reign, entitled, An act to render ployed here is "intending," not intended;" it more effectual an act passed in the thirty-relates to an oath having the intendment to seventh year of his present majesty, for pre- bind to the commission of the crime. And, venting the administering or taking unlawful as I have already remarked, it is plain that oaths,' it is inter alia enacted, That every unless that interpretation was meant by the person who shall, in any manner or form what- legislature, the punishment which I have mensoever, administer, or cause to be administered, tioned would not have been inflicted,-for or be aiding or assisting at the administering where would have been the offence, if the adof an oath or engagement, purporting or in- ministrator did not by words communicate tending to bind the person taking the same to with the party taking the oath, in such a mancommit any treason or murder, or any felony ner that the taker should have a sense that punishable by law with death, shall, on con- such an obligation was imposed? It is needless viction thereof by due course of law, be ad- for me to insist more upon this subject; for judged guilty of felony, and suffer death as a in Edgar's case, Mr. Solicitor-General admitfelon, without benefit of clergy.'" And then ted, it was the purport or expression of the follow other two sections of the same act, words which the legislature had in view; and, which it is unnecessary for me to read. accordingly, the oath is recited verbatim in this indictment, and the subsumption is, that the words cited purport the obligation. 1 Comm. 88. I have but a single observation more to offer on this major proposition. The oath described is one "purporting or intending to bind the person taking the same to commit any treason." It is not treason in general, but any treason; the word being disjunctive, and referring to any one of the different treasons known in law I shall recur to this afterwards. Let us see next what is the minor proposition of this indictment:-"Yet true it is and of verity, that you the said Andrew M'Kinley 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 Andrew M'Kinley did, at secret meetings, and on other occasions, at Glasgow, and in the vicinity thereof, in the course of the months of November and December, 1816, and 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." Your lordships will recollect the objection which we stated to the former indictment, and which you thought deserving of consideration. It was, that the indictment involved a charge of treason. Now, I ask, does not this indictment involve the very same charge, when it sets forth, that the oath was wickedly, feloniously, and traitorously administered? If it were set forth, that a person had been guilty of carrying off an article feloniously, and a verdict was found accordingly, it would unquestionably be a conviction of felony. For the same reason a verdict of guilty, in this case, would be a conviction of treason. The very same objection, therefore, which occurred to the former indictment, on this ground, occurs here also. It is true, that the narrative of the former indictment was fuller; it detailed a number of circumstances respecting the treason alleged to have been committed; but it was not on the narrative that our objection rested, for if that had been the case, the prosecutor might have given up the narrative as matter of explanation only, which he was not bound to prove, and the defect of his libel would have been cured. The objection there, as in this case, rested upon the circumstance, that treason was a substantive part of the charge in the minor proposition, which could not be separated from it, and must therefore necessarily go to proof. If the prisoner was convicted under this libel, he would be convicted necessarily of treason, without the presentment of a grand jury, without the benefit of a peremptory challenge, without any one privilege which the law of England, as contradistinguished from our common law, in criminal matters, confers on the accused. It will be further attended to, that this is not one of those cases in which the lord advo cate can alter his charge after the prisoner has pleaded. If a person be accused of murder his lordship may restrict the libel to culpable homicide, and the jury may convict for that offence, though culpable homicide is not mentioned in the indictment. But that proceeds upon the ground that the one crime is of the same species and denomination as the other. Where the crimes are generically different, it is impossible to substitute the one for the other. Thus, in 1663, in the case of Graham, on a charge of theft, the jury brought in a verdict of reset of theft; but it was found that no sentence could pass on that verdict, because reset of theft is a crime radically different from theft. The same thing happened in the case of Charles Stewart, in 1800. Here the public prosecutor has charged the prisoner with treason, and therefore he cannot alter his libel into a charge of felony for, if that were the case, the prisoner, as Sir George Mackenzie observes, might come to the bar as unprepared to defend himself, as if he had never been served with an indictment at all. In like manner, Peddie was tried at the circuit at Perth alternately for a rape, and an assault with intent to ravish; the jury found him guilty of assault only; and the Court of Justi ciary here, to whom the case was remitted, decided that no punishment could pass upon that verdict.* If your lordships were of opinion that this point required to be argued upon informations in Edgar's case, there is the same necessity for informations here. For what reason the public prosecutor has thought fit to desert the former indictments, and to serve new ones, containing the very same defect, I cannot divine. Of one thing I am certain, that the same defect does exist, and that the mere omission of the narrative or preamble, cannot in the smallest degree change the substance of the charge. We come now to the consideration of the words of this oath, which we are told purports or intends to bind the persons taking it to commit felony. There are four clauses in this oath, upon each of which, separately, I shall beg to make a few observations. But, before doing so, let me again entreat you to keep in mind, and to apply the principles with which I set out. You have seen how statutes were interpreted, though composed by all the wisdom of Parliament, and when it must be presumable that the legislature knew the force of the words which they employed. But here you have men in the lowest situation of life, using words, of the force of which they might not be aware; à fortiori, therefore, must you construe these words with the utmost latitude in favour of the prisoner, and the utmost strictness against the prosecutor. I formerly gave some illustrations upon this subject from the law of England; permit me now to add one or two from our own law. 4 Hume, 308. There is a case mentioned by Mr. Hume, in which a person of the name of Janet Ramsay, when precognosced, emitted a declaration confessing the crime laid to her charge. When brought to trial, she pleaded Not Guilty; but, besides other satisfactory evidence her declaration was laid before the jury, who returned a verdict finding her guilty "in terms of her confession," meaning undoubtedly the declaration which she emitted when precognosced. Yet you found that no sentence could pass upon that verdict, because the prisoner had not confessed the crime at the bar; and an extrajudicial declaration of guilt, is not, technically speaking, a confession. Among other things, he had sworn that they addressed the revenue officers in a moderate and inoffensive manner, desiring them to walk soberly, and to make no disturbance.' Now, in this article, besides others, he was charged with perjury; inasmuch (said the libel) as it will be proved, that the persons accused went violently up to the officers, demanded their arms, and threatened to blow them up if they resisted. It was pleaded for the panel, that the two assertions were not absolutely inconsistent, for that in swearing to the one sort of address and course of behaviour, he did not absolutely exclude the other, which might be used at a different period of the fray, and without his attending to it at the time." And the Court held "the allegation in the second article of the said indictment charged, in these, words :- That the panel swore, that at the time there mentioned, the said James M'Kenzie desired the said Alexander Cook and Alexander, Thomson, to walk soberly and make no disturbance,' not relevant and refuse to admit the sume to probation." I do not ask of your lordships to construe the oath in this indictment more strictly--the mere possibility of innocence induced the Court to hold, that perjury was not relevantly charged. Let me intreat you, then, to apply the same principles to this oath, if it be necessary to apply them. I say, if necessary; for, I state, that if you were to construe it with the utmost latitude against the prisoner, with the same latitude as you would construe a last will, a marriage contract, or any other document the most favoured in law, it will not yield the sense ascribed to it by the prosecutor. But take a case more nearly resembling the present. When a person is accused of perjury, the prosecutor must establish that the oath sworn is contrary to the truth; and it is the province of the Court, in judging of the relevancy of the indictment, to determine whether the oath is reconcileable to the truth or not. Now, I entreat your lordships to observe how strictly the Court has been in use to construe the words of an oath in favour of a prisoner, attempting, by every possible means, to remove the inconsistency; and, if it can be removed, the libel is held not to be relevant, and the prisoner cannot go to trial upon it. In support of this observation, I must refer to the learned author, so often quoted. "The substance of the crime, and that which all the other particulars in the description of it only modify and limit is, that a plain falsehood be explicitly and wilfully affirmed. For, if either there is any doubt about the true state of the fact, or about the sense in which the panel's words are to be understood; or if they can in any reasonable way be reconciled with the truth, or with an The first is: "I will persevere in my eninnocent intention; or, in general, if it is not deavours to form a brotherhood of affection manifest and obvious, but matter of likelihood among Britons of every description, who are only, and of inference and comparison of considered worthy of confidence." Is there many particulars, that he had a false and cor- any thing in the smallest degree blameable, not rupt meaning, this shall save him from the to say treasonable, in this? May not a brotheraccusation of perjury. Indeed, it would be hood be formed of any set of persons, without very dangerous to convict any one upon such a criminal, without a treasonable purpose? constructive grounds; considering the imper- It was to be formed of persons worthy of confection of language, and the still more imper-fidence; it was to be a brotherhood of affection, fect use which so many persons have of it, and how unequal their degrees of intelligence in the affairs of life, and even their degrees of capacity for the observation of facts."* There is not one of these observations that would not apply in this case, where you have the words of an oath to construe; just as in a case of perjury. Now, observe the precedent to which Mr. Hume refers:-"This scrupulous and equitable caution was in particular observed in deciding on the relevancy of the libel against Archibald M'Killop. This man had been a witness in the trial of certain persons for a violent deforcement of the revenue officers, and had given a testimony which, in many points, was very favourable to the panels. 1 Hume, 127. VOL. XXXIII. It consists of four clauses. Let us consider each of them. "That I It may have been intended to have been criminal, tain them, provided they do so according to law? It is impossible for a moment to doubt that it is lawful so to do. There are those who think that an alteration of this kind-I mean the adoption of annual parliaments, and universal suffrage-would be a fundamental alteration of the constitution of Great Britian; but you know that it is laid down by the best authorities, that there is no law so fundamental that it may not be innovated-no principle so fixed that it may not be changed. Parliament may new-model the succession to the Crownit may alter the religion of the country-it may alter its own constitution. Parliaments, for instance, were not always septennial. There is no doubt that annual parliaments and universal suffrage may be obtained in a legal mode, in the same manner as any other change, by a parliamentary act; and those who hold these alterations to be in their nature injurious to the constitution, never doubted, notwithstanding, that they may be competently and legally introduced. In what respect is this country distinguished from every country upon the face of the earth, but that every subject of the land may approach parliament, the fountain of absolute power-may suggest alterations in the laws of the country-and may press, by solicitation and argument, the adoption of measures which he supposes to be advantageous? It is a libel upon the constitution to say there is any crime in this clause of the oath, provided the endeavours it alludes to are lawful. We come to the third clause, to which I call your attention more particularly, as it was a subject of much argument in the former discussion: "I will support the same to the utmost of my power, either by moral or physical strength, as the case may require." In this clause, you are, for the first time, as I conceive, called upon to exercise the power of interpretation. It is ambiguous in two respects; and surely it is not surprising that persons in the situation of those who formed this brotherhood should have fallen into ambiguous and incorrect modes of expression. The first ambiguity is in the use of a relative, without any means of discovering the antecedent. "I will support the same:" What is the same? There are three previous things mentioned, all, or any of which, may be the antecedent. How are you to choose which of these is the antecedent? If it be of importance to the prisoner, which it is not, he is entitled to choose the antecedent; and, if any one of them rendered the oath innocent, while the others inferred guilt, he would be entitled to choose that for his antecedent, and you must adopt the innocent interpretation. Fortunately, however, in the present instance, it is indifferent which of them you select, for they are all equally barmless. Let us try them one by one. The leading member of the sentence is, "I will persevere in my endeavours to form a brotherhood." That brotherhood may be the antecedent. It is the leading object in the sentence; after which follows an obligation to do certain things; and then comes the engagement to support the same, signifying, according to that construction an engagement to support the brotherhood. That will not infer any thing criminal; and, at all events, will never infer the crime charged against the prisoner. The brotherhood might be supported in many ways. When illegally attacked, it might with propriety be defended; and when legally attacked by the magistrates, the defence of it, though it might be criminal and a felony, is not treason; and, therefore, even if the oath were to support that brotherhood by illegal means, that would not be an obligation of the nature charged in the minor proposition; for there is no harm in supporting a brotherhood of affection among Britons of every description; at all events it is not the crime of treason. Take another view. He says, he will endeavour "to obtain the elective franchise, at the age of twenty-one, with free and equal representation, and annual parliaments." If you do not take the leading antecedent in the sentence, according to ordinary construction, you should take that immediately preceding the relative, namely, annual parliaments and universal suffrage. Is there any thing improper or criminal in supporting those? You can support nothing not in existence; they must be obtained before they can be supported. If, therefore, you take the first, or if you take the last members of the sentence for the antecedent, nothing like a criminal obligation can be extracted. Take the only other supposeable antecedent, "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." Is there any thing criminal in supporting one's endeavours to obtain? It infers a solecism, and is contrary to the ordinary forms of speech. To support endeavours, is just to endeavour; and, therefore, if there be any choice as to these antecedents, this is the one that ought to be rejected. But, suppose these ignorant people meant, "to support their endeavours to obtain these objects," "where is the illegality in that? If they supported their endeavours in a lawful manner, it is what every good subject, holding these opinions, should be inclined to do. But, the prosecutor observes, that the oath does not stop at supporting the endeavours, but engages to "support the same to the utmost of my power, either by moral or physical strength, as the case may require." Here, it seems to be thought, that the sting of the case lies.—I ask your lordships, when a person comes under an engagement to exert all his endeavours, or to act to the utmost of his power upon any one occasion, how that engagement should, in fairness, be construed. The construction adopted in every case is this, that he will exert his lawful endeavours. It is the maxim of law, as Mr. Clerk observed, when we were last here, id tantum facere possumus, quod de jure facere | then, construe the obligation to exercise phypossumus. There is no obligation which a man sical strength, so as to infer that it was to be undertakes to do, in this or any well-governed exercised in an unlawful manner? The one country, that does not imply, if it be not ex- interpretation is as much strained as the other. pressed, that what he engages to do is lawful. And if physical strength may be lawfully You may exclude that presumption by declaring exerted, the presumption ought to be, that the you will do it unlawfully; but, if not so ex- lawful exertion of it was in the view of the cluded, it is always understood. parties. Or, supposing even that they con❤ templated an unlawful act, it does not neces sarily follow that they contemplated an act of treason. The observations which I have made on these three antecedents separately, apply to them all when taken together; and if none of them singly infers criminality, they will not infer it when combined. But, it is the phrase physical strength which seems to have laid hold of the imagination of the public prosecutor; and he seems to think that the mere use of that term necessarily implies, that a rising in arms was in contemplation, and that the persons engaging to use their endeavours to obtain these things, were to rise in rebellion to obtain them. The lord advocate imagines all this, merely because the term "physical strength" is introduced. But I would observe, that this obligation was imposed on an individual, not upon a body; and there was no such thing as binding him to exert his endeavours in conjunction with the endeavours of others. It was upon each, in his individual capacity, that an obligation was imposed. But that is, comparatively speaking, of little -consequence: let it be granted that it was a collective obligation, what did it import? Is it that they shall exert their physical strength in an unlawful way? No; for, according to the maxim I stated, the presumption is, that the mode was to be a lawful one. Physical strength may be exerted in twenty ways which are lawful; and therefore you are to infer it was to be lawfully exerted to obtain the objects in view. To show the fallacy of any other construction, let us look a little into the nature of the alternative obligation to exert moral strength. In the last argument on this head, it was fairly admitted, that an obligation to endeavour to obtain these objects by moral strength would not have been in the smallest degree criminal, and never could have been construed to infer treason. But, you must observe, that treason may be committed in the exercise of moral, just as well as in the exercise of physical strength. For instance, an individual, in order to obtain these objects of annual parliaments and universal suffrage, so much desired by the brotherhood, might speak or write advisedly, that the present family has no right to the crown-or that parliament, without consent of the crown, is not entitled to alter the ́succession; which is high treason under the 6th of queen Anne. But, because a man binds himself to endeavour to procure annual parliaments and universal suffrage by moral strength, is he bound to commit these or any other treasons? That would be a construction so forced, that, even on the other side of the bar, it would not be listened to for a moment. Why, Physical strength might be exerted lawfully to obtain these objects, by forming this brotherhood-by collecting its members together by defending them against unjust attacks, by going by their orders over the country, canvassing members of parliament for their votes, and in a thousand other ways which may be easily figured. And it might be unlawfully exerted in as many ways-in resisting the magistrates coming to disperse a meeting-in rescuing members apprehended by law-in putting members of parliament under durance or restraint, and so forth. All these acts, however criminal, and amounting even to murder and felony, would not amount to treason. Now, because physical strength might possibly be exerted in a way to infer treason, are you therefore to conclude that that mode of its exertion was necessarily in the view of the parties? Just reverse the case, and see how you would construe an engagement to prevent innovation. Suppose a set of gentlemen in the country-whose politics are the reverse of those of the prisoner-were to enter into an association, and bind themselves by an oath, to support septennial parliaments and the elective franchise, as now established, by moral and physical strength. It would be a bold construction to call that treason. Yet it is precisely the construction employed by the public prosecutor in this case; for a man may compass the king's death or levy war against him in supporting septennial parliaments, as well as in endeavouring to obtain annual parliaments. I shall call your attention to one or two instances of oaths administered every day, and see how the principle of construction contended for by the lord advocate would apply to them. You know, that, when a soldier is inlisted, he is attested by a magistrate, and an oath is administered, which is prescribed by the Mutiny act. It is in these terms: "I swear that I will bear true allegiance to our sovereign Lord King George, and that I will as in my duty bound, defend him in his person, crown, and dignity, against all his enemies; and that so long as I shall remain in his majesty's service, I will duly observe and obey his majesty's orders, and the orders of the generals and officers set over me by his majesty." Is that an obligation to obey an unlawful order of an officer? I apprehend it is not. You will not go nicely to work in discriminating between right and wrong where the duty of a common soldier is concerned; but where an |