entreat your lordships to turn to the present indictment, and see what it is that the public prosecutor calls upon you to declare to be treason in this case. One would suppose he had purposely used the very terms which sir Matthew Hale has branded with his stigma. "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 force, the subversion of the established government, laws, and constitution of this kingdom."

Are you not here called upon to declare, that subverting the realm, or the fundamental laws of the realm, is treason? Are you not called upon to enhance an act into treason by ambiguous and general words? When his lordship requires you to find this indictment relevant, he requires you to make the very same answer which the English judges did in the reign of Richard 2nd, and which sir Matthew Hale so strongly reprobates-an answer, on account of which one of those unhappy judges was dragged to the gibbet, and all of them held up to the execration of posterity.

I may illustrate this proposition in another way more familiar to your lordships, by referring to our own, instead of the English law. Mr. Hume expresses himself in the following words:" I have said in the second place 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; otherwise the purpose would not be fulfilled, which the law entertains, in ordering the panel to be served with a copy of his libel, and allowing him so many days to make preparation for his defence. In confirmation of this rule, M'Kenzie has rightly appealed to that statute respecting the crime of forestalling, which allows an offender in this sort to be indicted, generally, as known and reputed to be a common forestaller, without any more special detail of his transgression; thus plainly implying, that such a course of accusation is contrary to the tenor of our common law, and is justifiable only under the authority of a positive enactment. It is certain, accordingly, with respect to any article of dittay, which is stated quite at large, without any reasonable specification of the time, place, or manner of the thing which is alleged to have been done, that the panel cannot be put on his defence against it."

Now I should like to know what species of treason in the words of Mr. Hume, "what sort of the crime," the lord advocate had in view, under the description of effecting, by physical force, the subversion of the established government.

To obtain annual parliaments and universal suffrage by violent and unlawful means, may

* 3 Comm. 310. VOL. XXXIII.

1

be overt acts of compassing the king's death, or of levying war, or of conspiring to levy war to obtain an alteration of the law. If the public prosecutor may have in view three different treasons, distinct from each other, how is it possible, according to Mr. Hume, that this can be a relevant indictment, when it does not specify which of them he had in view? This argument, you will observe, is distinct from the other. Formerly I argued, that to libel an overt act of treason, is not to libel treason; now I contend, in addition to that plea, that to libel treason is insufficient, unless the sort or species of the treason is also laid. And whatever holds with regard to a libel for treason, necessarily holds with regard to a libel for administering an oath binding to commit treason.

But there is one consideration more, to shew you the extreme danger of admitting charges of constructive treason; and it is this, that the. facts here represented as overt acts of treason, do not in reality amount to treason, or afford any evidence of the existence of treason. In truth, the law, the constitution, and the government, may be subverted by violent means, and yet no treason be committed. It is no matter that the case is not very probable; it is quite sufficient for my present purpose, that it is merely possible. Suppose the case, that an individual robs the Bank, and bribes parliament to make the government despotic, where is the lawyer who will affirm this to be treason under the 25th Edward 3rd? Suppose that an individual compels a judge, by violence, to grant criminal warrants for arresting illegally certain members of parliament, in consequence of which they are prevented from voting against universal suffrage and annual parliaments. This is not levying war to put constraint upon parliament, under the 36th of the king; for the act of an unarmed individual, as we shall suppose him, cannot be the levying of war. Yet here the constitution is overturned by violent and unlawful means, without the commission of treason. These are examples to show the danger of departing from the salutary principle of the law of England, that where treason is charged, it shall be accurately specified. If you depart from that principle, and find the present indictment relevant, you overturn the whole law of treason-you let in all the constructive treason which existed before the 25th of Edward the 3rd and the security which the subjects of this kingdom derived from that excellent statute will be destroyed.

One circumstance I had nearly forgot to mention. It is only another instance of the extreme inaccuracy with which this indictment is framed. It was pointed out the last time we were before your lordships; but the public prosecutor has not corrected the error. The terms of the oath, as he has stated it, in the third clause, are, "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 yet, when he comes to mention the

X

import of the oath, in the subsequent part of the indictment, he says the obligation was, to use physical force. Now, you see he does not do this carelessly or unintentionally; for he repeats it after his attention had been expressly called to it by the prisoner and by your lordships; and his doing so is just saying he thinks himself entitled to substitute one word for another, although they are of an import materially different. If he is to be indulged with that liberty, it is in vain to talk of construction at all, for he may make any oath signify what he pleases. Strength and force are undoubtedly two different things, as was well illustrated by Mr. Clerk on a former occasion.*

The grounds then, I go upon, are these. First, I maintain that this is an accusation of treason, which cannot be tried in the present form. Secondly, That the obligation contained in this oath, with the exception of a misdemeanor, does not infer any thing criminal; and that even if it did, it does not necessarily infer any thing treasonable. Thirdly, That the meaning which the prosecutor extracts from the oath, is not the meaning that, by any fair construction, it can bear. And Lastly, Supposing it did bear his meaning, that the acts, which he says amount to treason, do not amount to it. The indictment is altogether erroneous; the obligation which it affirms the oath imposed, is not affirmed to be a specific treason properly defined; and, in fact, it may

be no treason at all.

There is another objection to this indictment of a nature a little more subtle, and which rests on a principle of the law of England applicable to this statute. If you give leave to one of my brethren to address you on the subject, that objection may be stated to you with more effect. On a former day, your lordships stated that it was your rule to allow several counsel for the panel to speak in succession at the commencement of the argument on the relevancy; and it is because I am not so well qualified to do justice to this point, that I would rather devolve it on another, who is more conversant in English law. The objection rests on two or three propositions. It is well established in common law, that felony merges in treason; and when, from the evidence in a trial on a charge of felony, treason appears to have been committed, the trial cannot proceed for the felony. Now here, the conclusion of the prosecutor is, that the oath was traitorously administered; and the overt act refers to an oath which would in itself, if administered or taken, amount, according to the prosecutor, to the crime of high treason. It is no answer to say, that the statute here enacts that an oath binding to commit treason should be held to be felony; for this reason, that it is another principle of the law, that where the legislature declares a certain act to be felony, it shall be held not to have been treason before the statute. There might be many oaths

* See the preceding case.

binding to commit treason which oaths might be taken without the taker actually committing treason by so swearing. An oath to levy war for destroying stocking-frames, may not be treason, whereas other oaths binding to commit a treason, in the very act of administration or of taking, form treason of themselves. The legis lature might have in view only the species of oaths, which binding to commit treason, do not, in the administrating of them, infer the commission of treason. Another rule is, that where there are two statutes relative to any matter, and the one does not repeal the other, they must be interpreted so that the one may be consistent with the other. Statutes, therefore, as to treason, which have passed since the statute of Edward 3rd, must be construed, if possible, so as to be consistent with the latter. This limits, therefore, the statute of the 52nd of the king, to those oaths only which are administered without the commission of treason at the time of administration; and, in common sense, it could not otherwise be interpreted without endangering the whole fabric of the constitution. What would be the consequence were the case otherwise? A person administering an oath, the very administration of which is treasonable, might be protected from a prosecution for treason, by an indictment being served upon him under the statute. It is plain, therefore, that this statute, in so far as treason is concerned, can only apply to oaths binding to that species of treason in which the taking of the oath is not of itself treason. These principles will be illustrated more at length to you by Mr. Grant, and supported by authorities.

Upon all these grounds taken together, we submit that this indictment is as objectionable as the former, and that the prisoner, therefore, should be dismissed from the bar.

Lord Justice Clerk.-Before Mr. Clerk is precluded from making any observations on the subject, I think it right to direct his attention to a circumstance which has occurred to the Court, as deserving the consideration of both parties. In reference to all the four particular charges, as to the administration of this alleged unlawful oath, this indictment concludes in these words:-"The said oath, or engagement, or obligation to the said purport, binding the persons taking the same to commit treason, as said is." These are not the words used in the conclusion of that part of the indictment which follows the recital of the oath : "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 force, the subversion of the established government, laws, and constitution of this kingdom, and especially by obtaining annual parliaments and universal suffrage, by unlawful and violen! means." In the four particular instances of the administration of the oath specified in the indictment, neither purporting," nor "in

tending," are mentioned, which are the words of the statute.

I think it right to bring this under the observation of the bar. The objection was already in your lordship's view.

Mr. Grant.-If in a case of this extreme anxiety, my attention could be directed to any thing personal to myself, I should certainly feel under the greatest embarrassment, in addressing your lordships, after the speech which you have just heard. I cannot, however, on the present occasion, feel the least concern for any thing that belongs to myself. Not only is this case one of great anxiety, as it involves the lives of the unfortunate men who are to be tried for the crimes which are charged in this

indictment; but I regard it as one of the greatest importance in point of law. It is, so far as I know, the first case in which the Court of Justiciary in Scotland has been called upon to decide on a question of treason, according to the principles of the law of England regarding treason, which were imported (if I may use the expression) into this country immediately after the act of Union between England

and Scotland.

upon

I am bound to believe that your lordships are conversant with the English authorities this subject, because you are bound to administer the law according to these authorities; and, therefore, when I refer to them, and when I address to your lordships the same sort of argument which I should address to the courts elsewhere, I am aware, that not only no apology is necessary for doing so, but that it is my bounden duty so to do, because these are authorities in the law of Scotland. When I say this, I do not mean to assert so unreasonable a proposition as that it can be expected from your lordships that you should be as intimately acquainted with the phraseology of this part of the law, and with the cases by which it is governed, as you are with the phraseology and established practice of the law of Scotland, as it applies to the cases which

generally come before you.

Therefore, when I request your attention to the argument which it is my duty to state to you, I am aware that I demand of your lordships an attention to a subject with which you cannot be so thoroughly familiar as you are with any other branch of the law which you administer; and I am also but too sensible, that I am not capable of either explaining or supporting my argument in the manner which the deep importance of the case demands.

I am bound to perform my duty in the best manner I can; but, I confess, I feel an uncommon degree of anxiety on the subject, because, having considered it with the utmost attention of which I am capable, I am satisfied, in my own mind, that I cannot fail in esta blishing the propositions which I have to announce, except from a want of that talent for explanation and exposition which the subject requires.

I have to lay down certain propositions; in supporting which, I hope that though I shall have occasion to refer to several authorities, I shall not have occasion to quote them at such length as to occupy very much of your time; and I am the more disposed not to encroach upon it, as your attention must be exhausted from what you have heard, and as I have the disadvantage of addressing you after so able and luminous a speech as that which Mr. Cranstoun has just delivered.

I am first to maintain, what I think will be conceded, that, whether this oath do or do not bind to the commission of treason, is a question of English law.

I shall next state to your lordships, and I is a maxim, in the law of England, that an act of think I shall satisfactorily prove to you, that it high treason cannot be tried as a felony.

applies still more strongly to cases tried in ScotI shall then state to your lordships, that this land-for, whereas, in England, a case amountbe tried as a felony, and no judgment can be ing to high treason upon the evidence, cannot cused is entitled to be acquitted upon such a given upon such a case, but the person actrial, although the form of trial in cases of felony does not differ so essentially from that in cases of high treason as it does in Scotland -how much more strongly must this apply in

Scotland, where the whole form of your procedure in cases of treason is distinguished by a positive statute, from your forms in trials for other crimes. By a positive statute, your lordships, sitting as you are now, cannot try an offence which amounts, according to the statement of the public prosecutor, to high treason, by the machinery which you are now employing-you cannot try it on the indictment of the lord advocate. You can try it by that course and form of proceeding which only on the indictment of a grand jury, and would be pursued by the court of King's-bench in England.

tion at present, unless it can be shewn that there is any thing in this act of the 52nd of the King, which has abrogated that rule of the common law, satisfy your lordships, that there is nothing in and repealed that statute; and, I think, I shall this act of Parliament that does so abrogate the nothing in this act from which we can infer common law, or repeal that statute. There is that it was the intention of the legislature to do either on the contrary, it is impossible to infer from this act any such intention without justice and wrong would be introduced by so the greatest absurdity; and the greatest indoing.

Then, I shall submit, that this is your situa

If I make out these propositions, I shall succeed in shewing to your lordships that this is not a relevant indictment; and that it is not a relevant indictment, not only because it does but because the public prosecutor is in this not sufficiently specify and charge any treason, dilemma, that, if it does, he cannot try the offence in this shape. I desire him to take his

Choice of the two propositions. He cannot maintain both. Either this which the oath bound to do is charged as treason or not-it is either a relevant charge as such, or not. It will not be said it is relevant to charge it as treason without words, which in their ordinary meaning amount to a description of some treason. Then I say, if they do not amount to a description of a treason, the libel is irrelevant, upon the grounds which my friend Mr. Cranstoun has stated. If, upon the other hand, the prosecutor says, that the specific treason is here sufficiently alleged and set forth, I desire him to say, by what law he can try this offence in this Court by this mode of proceeding.

Without going over again the argument of my learned friend, which I should only weaken by attempting to resume it, I must, in supporting my own views of the case for the sake of the argument, suppose that he has failed in his | proposition. My intention is, to direct you to the other branch of the dilemma. If this indictment does imply a charge of treason, although the specific words which we say ought to be in the indictment are not used; then we ask, What sort of treason or overt act of treason do they charge? It is said, that this oath was administered to a great number of persons, to many hundreds or thousands that it was traitorously administered to them --and bound these many hundreds of persons to commit treason, "by effecting, by physical force, 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." If this means any treason whatever, it can only mean the compassing and imagining the king's death; or the treason mentioned in the 36th of the king-levying war, in order to compel his majesty to change his measures, or to constrain one or both houses of parliament. Now the compassing and imagining to levy this war, is, by the act of the 36th of the king, declared to be a treason. The administering this oath, then, to give the prosecutor his own way, would be an overt act of such compassing, or of compassing the king's death. If so, it is an overt act of treason, and cannot be tried as a felony. (I would request of you, my lords, if I fail in any part of the argument which I am maintaining to make myself intellible, to intimate to me when I do so; for I wish to take up as little time, and to render myself as intelligible as possible.) I say it is a known rule of the law of England, that felony merges in treason-that treason drowns felony. If a person is accused of felony, and, upon the evidence, it comes out to be an overt act of treason, he must be acquitted upon that trial. He cannot, by the law of England, be convicted upon an indictment of felony, where the crime amounts to an overt act of treason.

This is a maxim in the law of England, of so ancient a date, that it is difficult to find it in the more modern authors, in other than gene

ral terms, because it is a proposition which nobody has ever ventured to dispute. If we turn to the Year-Book 31 Hen. 6th. we find that the greater offence drowns the less-And this is a general maxim. For instance, trespass is extinct in felony. Suppose goods are taken, and an action of trespass is brought for them, if, upon the evidence, it appears that the crime amounts to felony, the prisoner must be acquitted of the trespass, because the felony drowns the trespass-the trespass merges in the felony; and he must be acquitted of the trespass and re-indicted for the felony. The Year-Book 31 Hen. 6th. 15, says, "It was agreed that in case of a robbery, the person robbed shall not have an action of trespass for the goods, for the trespass is extinct in the felony, et omne majus trahit ad se minus.” Where an action of trespass was brought by a husband for beating his wife, whereby she died; the action was found not to lie, because the crime was a felony. The policy of the law is stated by Mr. Justice Jones in Dawkes v. Coveneigh. "If the party robbed may have his election, either to indict the felon, or to have his action of trespass; this would prove very dangerous." And the Chief Justice Roll gives the same reason. Many felonies would thus be smothered. By the law of England, your lordships know, these are popular actions. Where there are popular actions, persons, from many_motives, would indict for the lower offence. But the law says, No. If the evidence shew that a greater sort of offence has been committed than that which is charged, the person tried must be acquitted on the indictment for the lesser offence, and he must be re-tried for the greater offence, and the prosecutor shall not have power to choose the lower, so as to dispense with a trial for the higher.

You are aware, my lords, that treason, by. the law of England, is not confined to what we commonly call treason. It consists of two sorts, high and petit treason. Petit treason is the murder of a husband by his wife, or a master by his servant. It has been decided, where, upon an indictment of murder, it came out to be a case of petit treason, that the person must be acquitted on that indictment, because the felony is merged in the petit treason. If this is the case as to petit treason. still more must it be so as to high treason.

I am aware that Mr. Justice Foster (as to whose opinion I shall speak presently) doubts the authority of the case in which this was said to be determined; and, he says, that, because petit treason and murder are of the same nature, and petit treason is considered in law only as an aggravated species of murder, the murder shall not be merged in the petit treason. But what does he say he would do himself? Does he say he would direct a ver

* Quoted in Bro. Ab. 145, voce Trespass.
+ Huggins' Case, 4 Jac. 1; 2 Ro. Ab. 557,
↑ Sty. 247.

There is not a case in the books, of a verdict having been pronounced for murder when the facts amounted to petit treason. I have not found such a case alluded to; but I find the above opinion of this judge as to the case of petit treason, which is only an aggravated species of homicide. When other authorities say, generally, a person charged with the lower crime should be acquitted, that judge says, he would, in the case of petit treason, discharge the jury. He does not say he would desire him to be acquitted for the reason I have stated; but he says, though the two crimes are the same in substance, petit treason being an aggravated species of murder, he would not put the culprit to his trial where the prosecutor ought to have indicted for petit treason, and the prisoner is entitled to that mode of trial which is appointed for every species of treason.

All these arguments apply more strongly to high treason than to petit treason. It is true, in high treason, the penalty is greater-the forfeitures are different. But so they are in petit treason. In the case of a woman, the judgment in petit treason was, that she should be burned to death. But the principle is, that on account of the odiousness of the crime of high treason, the attention of government to put it down is more excited, than with regard to other crimes: and, in proportion as this operates on one side to increase the penalty, the law watches over the prisoner on the other, and gives him peculiar privileges in his trial. And the judges hold themselves bound not to balance between the two classes of cases-they hold themselves bound to execute the law as it stands; and they think that the law has judged wisely, and that it is a great advantage to the prisoner that he should be tried according to the mode of trial appointed by the law, though it be attended with the disadvantage of greater punishment in the event of his guilt being established.

On this subject, I think, I need do nothing more than shortly cite some authorities to your lordships. First, I shall cite a case where there was a trial for murder; and the circumstances having amounted to petit treason, the prisoner was acquitted, and a trial was ordered for the petit treason. That case is mentioned in the State Trials, vol. 6th, in the case of Coke and Woodburne. It was a case tried

I observe that the counsel for the Crown, in the case of Coke and Woodburne, three of them, very learned persons, admitted that the case cited, as decided in 1712, was good law. They admitted, that the killing a husband or a master could not be tried on an indictment of murder, because a different and distinct offence. The Chief Justice did not deny, but seemed to admit this as good law. Whether that case had been so decided, was a question of fact; and you will observe that this case of Coke and Woodburne, in which it was cited, was tried in 1721, between eight and nine years after the opinions of all the judges in the case cited, were supposed to have been given; so that it is not easily conceivable, that if there had been any error in point of fact, it would not have been noticed. But, having mentioned this case, it is proper to take notice of a passage in Mr. Justice Foster's second discourse on Crown Law, page 326. It is as follows:

"While the case of the King against Swan, reported before, was depending, and before the second bill was preferred, a question was made, whether Swan could be convicted on the indictment for murder, if it should come out in evidence that he was servant to the deceased at the time the fact was contrived or committed? and, consequently, that this offence was petit treason.

"There is a case cited (6 State Tr. 224.), in the printed trial of Coke and Woodburne' which (if such case there ever was) hath, as far as the authority of it goeth, determined that question. At the summer assizes at Dorchester, 1712, a woman was indicted before Mr. Justice Eyre, for the murder of another woman; upon evidence it appeared, that the person murdered was her mistress, which made the crime petit treason. The Judge directed this matter to be specially found; and, upon conference with all the Judges, it was holden, she ought to be acquitted upon this indictment, as she accordingly was, and was afterwards indicted for petit treason, and convicted and executed. This case is not to be found in any report printed or MS. that I have met with, or heard of; nor have I, upon a strict inquiry, met with any footsteps of such case, among the minutes of proceedings

16 How, St. Tr. 84.