porting to bind persons to commit treason shall be a felony, and punished as such. If the general rule is, that the lesser crime merges in the treason, the lesser crime of administering the unlawful oath should merge in the treason in every case, where the crime alleged amounts to treason. But there are many cases in which the crime alleged does not amount to treason, and there are therefore various cases to which the act of the 52nd of the king applies; for, although the statute declares the criminal act of administering an oath binding to commit treason, to be punishable as a felony, without benefit of clergy; yet, in a subsequent part of the act, it is declared, that if not tried and punished as a felony, it may be tried and punished as a treason. This is declared by the last clause of the statute. An oath may be administered purporting to bind to commit high treason, without necessarily involving the person so administering the oath in a charge of high treason. There are many ways of committing high treason. An oath that purports to bind to commit high treason, does not necessarily involve the crime of treason itself. So that here there may appear two sorts of cases to which the act may or may not apply. There may be the case of an oath administered, purporting to bind to commit treason, and no treason at all be chargeable against the parties; and another case, in which, such an oath being administered, the very administration of the oath is an act of high treason. There are cases of both sorts, and it would be endless to enumerate them all. The law of England must be administered in all cases of treason tried in Scotland. When a crime is charged against an individual under a lower denomination, and it appears from the facts as stated in the indictment, or from the evidence in the course of the trial, that the case is one of treason, the crime of the lower denomination which is charged, merges in the crime of high treason. I cannot make that point clearer than it has been made by Mr. Grant, and I do not mean to argue it again. It seems to be part of the law of England as to all crimes, and it is here the law as to the crime of treason. In our law, this is not the case as to other crimes than treason; and we have many instances in which offences are tried by lower denominations, which might have been tried under higher 'deno minations. Here a difficulty meets us which may be soon disposed of, We are told, that though, by the law of England, this merging takes place, yet that the law of Scotland is otherwise; and we are asked, What have we to do with the law of England here? Are we not to follow our own law?-We do follow our own rules except in cases of treason. If we are asked, what have we to do with the law of England? I answer, we have to do with it, because it is our law of treason. And here I begl eave to remind your lord ships of the well-known decisions in the civil court on the plea of prescription founded on the English statute passed in the 31st year of queen Elizabeth. It had formerly been decided by the Court of Session, not long after the Union, that the 31st of Elizabeth was no part of the law of Scotland, and that the limitation of penal actions in the case of usury could not be pleaded on it. Afterwards, it was decided, that the 31st of Elizabeth operated as a limitation to these penal actions; but the Court had again returned to its first opinion, and decided against the limitation. But, last of all, the Court, in various cases that occurred some years ago, found that the English statute was to be considered as a part of the law of Scotland, and was pleadable as a limitation of penal actions founded on the act of queen Anne against usury. One of these judgments was affirmed in the House of Lords in the year 1814, and so the law is settled. Here, then, was an English statute which originally had no effect in Scotland, and which could not have been pleaded in any Scots penal action, if the act of queen Anne had not made it a part of the law of usury in Scotland as well as in England. It was introduced as part of the Scots law with much difficulty, contrary to former decisions, by a sort of equitable implication, without direct words. And yet we are told by the public prosecutor, in this case, that the most express words, giving us the benefit of the English law of treason, contained in a statute which must be considered as part of the treaty of Union between the two kingdoms, are to have no effect at all. For it is manifest, that, according to the doctrine of the public prosecutor, we have not the benefit of the English laws of treason in any one of those cases, in which the public prosecutor charges, under a denomination lower than that of high treason, a crime of so high a nature that it merges in treason. In other words, the public prosecutor may charge the most odious offences under any denominations he pleases; and, though the charges really amount to treason, the accused has no benefit from those laws, which, in every age, have been held so necessary to protect him against a charge of high treason. Your lordships will attend to another part of this statute of the 52nd of the king, from which it will be plain to you, that it must have been the intent of the enactment, that, in the case either of the inferior crime stated in that act, of a felony with benefit of clergy, punishable by transportation: or, of the higher crime of felony without benefit of clergy, punishable by death, the true meaning of the act is, that the inferior crime should merge in treason wherever it appears. Suppose an express and positive oath taken to kill the king, or to co:amit any other horrible treason, and an overt act committed, if you were not to hold Surtees and others, Appellants, v. Allan, Respondent, 2 Dow. 254, that the inferior crime, the felony of taking the oath, merged in the higher crime of treason, it would be in the power of the lord advocate, if a friend of the delinquen', to save him from a trial for the treason, by inflicting upon him only the punishment of transportation. Is it to be supposed, for one moment, that it was the intent and meaning of the act, that a person truly guilty of the most enormous crime that could be committed, should be entitled, by such a manœuvre, to escape the penalty of high treason? It is not conceivable. A friendly prosecution might be brought upon this act of parliament in order to save a traitor's life. It is usual to speak of such a statute as this with reference to people of a low description. But an offence might be committed, under this act, by men of the greatest importance in the land; and, supposing that every thing that was said of the Rye-House Plot, or any the most treasonable in our history, should be realized, and circumstances ten times more aggravated should occur, is it to be conceived that the friends of such parties should be able so far to protect them as to have their punishment made only transportation? To state such a thing is so absurd that you will not listen to it. If such is not the construction of the act as to the taker of the oath, it is impossible to put that construction as to the administrator of it-for, from the beginning to the end of it, the same words are used as applicable to both. They are both in pari casu-only, that as to the one the penalty is death, and as to the other, transportation. And, therefore, upon this argument alone, I should be entitled to say, that if the administrator of the oath is charged with treason, he is entitled to be tried by the treason law. There is another circumstance to be noticed. There is a clause at the end of the act which says, that if a party should be tried under this act, and should be acquitted, he should not be liable to be again prosecuted under the act for treason. It is not enough that he is brought under trial-he must be convicted or acquitted. That is a strong circumstance, as shewing the true meaning of this act. The act is extremely for the benefit of the panel in so far as he is only the taker of the cath. Let us see how it stands, if he were the administrator. I am sure there is no difference at all between the penalty of treason, and of felony without the benefit of clergy. It is much the same thing to a man whether he be hanged for treason or for any thing else. The punishment is death, and there is nothing more to be said about it. But there is a difference, whether a man is to be tried for treason or for felony. Where he is to be tried upon the act, it is held that he is not to be tried by the treason law. He is not entitled to the great benefits that follow from the forms of trial for treason. It is more difficult to convict for treason, than for any thing else. In this part of Great Britain the difference is not so great at first sight between the two modes of trial, because here (of which the present trial is an illustrious example), the panel has every benefit of counsel; and, by our law, although almost superseded in some instances, there must be two witnesses in order to establish a fact. I am sure, that, in England, the benefit of being tried by the treason law must be great. At the Old Bailey twenty or thirty may be tried in a short time for felonies, and a trial last only five minutes. A man there may be sent to the gallows before he knows his trial has commenced. Does it make no difference to him, whether he is tried in that method, or with all the benefit of counsel-and by a process under which where the greatest struggles are made for the prisonerfrom all which circumstances he has a much greater chance to escape? Does it make no difference to him in this country that he can be indicted only by a grand jury-that, when he comes to be tried, he has peremptory challenges-and that, after all, the jury so selected must be unanimous before he can be convicted? No man in his senses would hesitate in his choice, between such a trial, and the ordinary form of trial, however well regulated it may be. In fact, the advantage of the treason laws in Scotland is still greater than it is in England, for persons who are accused of treasonable practices. Nor need I enlarge on a proposition so completely self-evident. There is, therefore, the greatest hardship to the prisoner, in being deprived of this mode of trial; and the provisions of the law for his safety, in a trial for treason, must not be lost sight of in the present question. Under these circumstances, I contend, that if there is a charge of treason here, the trial ought to go forward according to the formalities provided for trials for treason in this country. It is said, there is no trial for treason here.' The prosecutor in saying so betrays inconsistency. There may be many oaths to commit treason, which are treason of themselves; and does not the charge in this indictment import, not merely that an oath was administered of the nature of an obligation to commit treason, but that an oath was administered that was in itself treasonable? I do not say that the oath itself was treason, or an oath to commit treason. I have been saying the contrary--that it was not an oath to commit treason, and I think it is far less an oath to commit treason by levying war against the king. But, as it is stated and expressed in the indictment, the prosecutor is not entitled to say it was not treason. He charges it as treasonable on the face of his indictment, and is he entitled to say he was mistaken? We cannot let him off in this way-for, first, he tells your lordships that this oath was administered; Secondly, that it was an oath binding to commit treason; and then, by way of explanation, he adds, that he means treason by levying war. Look at the words in the indictment itself. If treason is charged at all, it is such, that either to admi nister or take an oath to commit it under the circumstances alleged, is itself treason. It is a treason under the 36th of the king. The facts here, and the treason, are so loosely described, that it is merely a common law treason; but can any other meaning be put on the prosecutor's statements, than that there was not merely an oath to commit high treason, but that there was a conspiracy to levy war against the king, for the purposes expressed in the 36th of Geo. 3rd? and therefore the charge is treason. I thought I could have spoken to this point in fewer words, otherwise I would not have troubled you with it at all. But, upon the whole of this case, the prosecutor must withdraw his charge, otherwise you must deal with it as a treason according to the law of England. What remains is the other objection, pointed out by your lordships; and, I apprehend, no answer whatever has been made on the part of the public prosecutor to that objection. It cannot be answered. I stated formerly, that an allegation of an oath binding the persons taking it to commit treason, is an absurd allegation, because no oath can bind a man to commit treason. But, further, it does not state the crime declared to be punishable by the statute, nor that mentioned in the major proposition of the indictment. It agrees with neither. The words, "as said is," will never cure such a monstrous absurdity. What are we told in answer to this? First, your attention was drawn to the "at least" clause, where it is said, that the oath is one "purporting to bind." The statute says, "purporting or intending;" and thus, the "at least "clause is also bad. So much the worse for the indictment; and I do not see why Mr. Drummond should have bestowed so much time upon that clause. But, how does he cure the other objection? He says that it is to 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;" and that these words are surplusage. I deny they are surplusage. That is the very argument that has been so often over-ruled in cases, where an entail has been found insufficient, in consequence of the defect in the resolutive clause. In the case of Tillicoultry,* and many other cases, the prohibitory clause was expressed in the most ample manner against selling, contracting debt, and altering the order of succession. But the resolutive clause proceeded in some such form as this, "In case of contravention, either by contracting debt, or altering the order of succession, the contravener is to forfeit the estate;" by which form of words, the case of selling was omitted in the resolutive clause; and there was no resolutive clause applicable to selling. And thus the heir of entail could not be prevented from selling the entailed estate. Against * Jan. 1799: affirmed June 1801; Fac. Coll. No. 99. this conclusion, it was argued, that the resolutive clause contained general words, which were sufficient; and that the words either by contracting debt," &c. were surplusage. But the Court of Session, and the House of Lords, held that the words were not surplusage; and, accordingly, that the resolutive clause applied only to contracting debt, and altering the order of succession, and not to selling. It was held that a resolutive clause, declaring that contravention, either by contracting debt, or altering the order of succession, was not a resolutive clause in the case of selling, although the general words in the clause would have been good, if its meaning had not been restrained by the words which followed, either by contracting debt, &c. which necessarily had the effect to limit the operation of the clause, and to make it inapplicable to selling. In like manner, there are words in this indictment which would have been sufficient, if they had not been restrained by the words, "binding the persons taking the same to commit treason;" and, in the "at least" clause, there are general words which might have been good, if they had not been restrained by the previous words in the indictment, and by the words, "as said is," which necessarily restrain the meaning of the other words, and confine it to the meaning expressed in the previous branches of the minor proposition. I here conclude my remarks upon this case. able arguments, for seven hours and a half, I Lord Justice Clerk.-After having heard very wish to know what course of procedure ap pears to your lordships proper for us to follow. Lord Hermand.-When any difficulty occurs in this Court, it has always been the practice to order informations. I think there is the strongest reason to take all the assistance we can in this case. I give no opinion at present upon it. I wish, however, more attention paid to what was stated on the other side of said more. the bar. His majesty's counsel might have Some of the counsel find themselves in a new situation in this case. I do find myself so. I read many books of English law; but, since When I was young at the bar, I sat upon the bench, I never had occasion to resort to them. If I give an opinion against the panel in this case, it must be upon strong grounds that I do so. One Lord Gillies.-I concur in the course of proceeding suggested by lord Hermand. objection appears to me to be fatal to the indictment; that which was noticed by your lordship. In the part of the indictment, where the act charged should be set forth in the most particular manner; where, if there was any mistake in the preceding part, it should have been corrected; where every thing should be full and accurate, the oath is not libelled as purporting or intending to biud, but the oath is said to be one binding to the commission of treason. I have heard no answer made to this administer an oath purporting or intending to bind to commit treason; and, therefore, it is impossible for the public prosecutor to say, here was an oath administered on four different occasions, binding to commit treason. That is not the offence which it was the purpose of this act to provide against. I have heard no answer to this objection, and therefore it is difficult to order informations on this indictment. objection. I must take the words of the act, from which there is here a material deviation. The word "binding," may either mean, binding in law and morality to commit treasonwhich could never be ineant, being an absurdity; or that the oath binds in terminis to the commission of treason. But it appears to me, that the words in the oath do not expressly bind to commit treason. In these circumstances, I should wish the Court to give its opinion on this objection before ordering informations. Whatever your opinion may be on the other points, this objection probably appears to your lordships as it does to me, to be fatal to the indictment. I give no opinion" traitorously" ought not to be used in this at present on the other points. Lord Pitmilly.-I am much in the situation of lord Gillies. I should wish informations, or time to consider the argument of to-day, before giving my opinion on it. But, it appears to me clear, that the indictment is liable to the objection which was stated by lord Gillies, and also to that which was argued by Mr. Cranstoun, viz. that it charges that the oath was traitorously administered. The use of the term "binding," instead of "purporting or intending to "bind," appears to me to form an objection fatal to the indictment. That clause in the indictment does not appear to be surplusage, though I thought so at first. It is not necessary, in the ininor proposition of an indictment to repeat the major; it is not necessary, when murder is charged, and the facts are stated by which the murder is made out, to add "whereby the murder was committed." That would be surplusage. This, however, is not a repetition of the major proposition-it is a substitution of words which do not amount to the crime stated in the major proposition, and it is therefore inaccurate. It does therefore appear to me that the indictment is liable to this objection, and it is not upon that point that I wish for information, but upon the other arguments. Lord Reston.-I think the objection spoken to is a good one. Lord Advocate.-I will undoubtedly serve a new indictment; and the informations may be ordered upon the new indictment. Lord Justice Clerk.-I have not heard the objection obviated; and it appears to me to be fatal to the indictment. I go at present upon the distinction which was noticed; for here the question is not fairly raised as to the relevancy on the general grounds. The words employed in the minor proposition go to a limitation not warranted by the act of parliament. I am not called to say what is the effect of an oath that binds a person to commit treason. I am called to give my opinion on an oath which is averred to purport or intend to bind a person to commit treason. You have not before you an act of parliament that makes it criminal to bind to commit treason; but you have a statute which makes it criminal to If the public prosecutor mean to charge only the capital felony mentioned in this act of parliament, he must employ language applicable to that capital felony alone, and the word indictment. It ought not to be in it, in order to raise the question which we are called upon to try. should wish for information, is that as to the I own the part of the case upon which I positive averment as to the rule of the law of England. If the counsel for the prisoner are right, in stating what would be the rule of construction in England, and in affirming, that, on this occasion, the English rules and forms must be adopted, they must show this in a manner to enable us decidedly to form our opinions on the subject. We do wish for every aid and assistance, if we are to be told that such a mode of proceeding would be adopted in the court of King's-bench, and that it is our duty to follow the same mode of proceeding on this trial. When we are called upon to give our opinions upon the oath, we must proceed upon the general principles of construction, as to the import of the terms of it. I fairly confess, my difficulty is on the point which I have last mentioned. Lord Gillies.-I wish the informations to be full, upon all the branches of the case. The proceedings of the Court were entered on the record in the following terms. "His majesty's advocate represented, that, since the service of the indictment above mentioned, he had raised and executed a new indictment against the panel; the diet whereof also stands adjourned to this day. He therefore moved their lordships to desert the diet of the first indictment, reserving to him to insist upon the second indictment as accords." "The lord justice-clerk, and lord commissioners of justiciary, in respect of what is above represented, desert the diet of the first indictment against the said Andrew McKinley, reserving to his majesty's advocate to insist upon the second indictment, as accords. (Signed) D. BOYLE, I. P. D." And the second indictment being called, and "the panel being interrogated thereupon, he answered Not Guilty." After parties procurators had been heard at very great length, upon the relevancy of the indictment, His majesty's advocate moved the Court to desert the diet of the present indictment pro loco et tempore, as he meant to serve the panel with a new indictment. "The lord justice clerk, and lords commissioners of justiciary, in respect of what is above represented, desert the diet against the panel pro loco et tempore. (Signed) D. BoYLE, I. P. D." Thereafter a petition was presented to the said lords, in the name of his majesty's advocate, craving a warrant for recommitting the said Andrew M'Kinley to the castle of Edinburgh, till liberated in due course of law, which was granted accordingly. COURT OF JUSTICIARY. Rt. Hon. David Boyle, Lord Justice Clerk. Lord Gillies. Lord Pitmilly. Lord Reston. Counsel for the Crown. Rt. Hon. Alexander Maconochie of Meadowbank, His Majesty's Advocate [afterwards a lord of Session and Justiciary, with the title of Lord Meadowbank.] James Wedderburn, Esq. Solicitor-General. John Clerk, F.sq. Lord Justice Clerk.-Andrew M'Kinley, attend to the indictment against you which is now to be read. "Andrew M'Kinley, 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 administering 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 persons:" 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 feloniously 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 engagement or obligation in the nature of an oath, purporting or intending to bind, the persons taking the same to commit treason, by obtaining annual parliaments and universal suffrage by physical strength or force, and thereby effecting the subversion of the established government, laws, and constitution of this kingdom, by unlawful and violent means; which oath, or engagement, or engagement or obligation, in the nature of an oath, was in the following terms, |