plain answer to this objection. It is a known rule of law, "that such an account of a criminal deed must be given, as may distinguish the particular charge from all other instances of the same sort of crime;" and if this had been a charge of treason, unquestionably the prosecutor would have been bound to give the specification called for by the panel. But the fact is, that there is no treason charged, nor any other crime libelled, in the major proposition, except that whereof the whole facts are detailed in the subsumption. The crime is, the administering an oath, purporting to bind the person taking the same in a particular manner; and it is believed the administering of this oath is sufficiently distinguished from the administering of every other oath, and from every other act of administering the same oath. The object which that oath contained, or was intended to contain, an obligation to accomplish, was never carried into effect; and if it had, it would haye been a crime of a different description. Now, what can the prosecutor set forth of the purport or the intendment, which is the essence of the crime, except the terms of the oath itself, and such other eircumstances as accompanied the administration of it, as may throw light upon the meaning of the administrators and takers? AH this be has done, and more he cannot do. He cannot state more of the facts than he knows; nor can he state more than was actually perpetrated; and the oath is the whole fact, and only source of information. Still less can be be called upon to draw an inference in law from facts that have never existed. The minor proposition is a detail of facts, and has nothing to do with law; and if he had drawn the inference required by the panel, be would not have added one iota to the relevancy. He has told your lordships all that was done; the whole facts of the case; and it is the principal part of those facts, that there was an obligation to commit a crime. That this crime, if committed, would have been of a particular description, and effected in a particular way, is nothing to the purpose, as it is not the intended crime, but the obligation to commit it, that is the point of dittay.

The prosecutor has in fact done much more than he is bound to do in this respect; for he has specified the precise objects and acts intended to be done, which in many cases may not be within his power. Suppose the parties administer and take an obligation, binding to commit treason generally, or, in the words of the act itself, " any treason," or all the ten treasons enumerated at the debate, or such treason as may be necessary for the

* Hume, vol. 3, p. 310. VOL. XXXIII.

accomplishment of a particular end, or which they may be called upon to commit, by any individual or number of indivi duals, whose authority they bind themselves to obey; is it to be said that there is no relevancy, because the prosecutor cannot specify the particular description of the treason which it is intended to commit? Or, suppose an obligation to murder all those who stand in the way of some particular end: the individuals who may stand in the way, and the manner of their death, may be unknown both to the prosecutor and the conspirators; is it to be said that the statute libelled no operation in such a case?

The prosecutor points out what was actually done, and founds upon the law by which it is punishable; and here he apprehends his duty is discharged. He has nothing to do with the manner of an intended act, and far less with an inference in law from a fact that never had existence. He is bound to tell the panel the facts he intends to prove against him, and the law by which they are punishable, in order that he may be prepared for his defence; but he does not know how it can help the panel to shape his defence, to tell him what would have been the Tegal consequence of an act of which he is not accused, and which he only intended to commit. He might as well be required, in a case of an indictment for an attempt to poison, to specify the mode of death, and the legal consequences of murder. It is maintained, that this indictment would have been perfectly relevant, if it had merely libelled the wicked and malicios administration of the oath charged, without a syllable as to what its purport or intendment is; for, if the oath means what the prosecutor alleges, the prosecutor's gloss upon it is mere surplusage. If it did not mean any thing that comes under the act, then to be sure it would be necessary to libel the hidden meaning and purpose with which it is administered and taken, otherwise there would be no relevancy in the charge. But, if it openly express the unlawful meaning, as in the present case, it is itself the minor proposition, the connecting link between the major proposition and the conclusion; and the prosecutor knows no addition that can make the syllogism more perfect. Maj. The administering an oath of a particular description is a crime. Min. You did administer the following oath: Ergo, You ought to be punished.

It the libel rests upon the meaning of the oath itself, it is plain that the only question here is, whether the oath libelled falls under the particular description mentioned in the major proposition; and, so far as the case turns upon the meaning of the words of the oath, the Court will cer 2 C

tainly judge for themselves, without the least regard to any argument or inference of the prosecutor. In so far as the case turns upon a meaning not expressly conveyed by the words, the allegations of the prosecutor, as to the intendment, must enter into the relevancy. But here he maintains his charge upon the meaning of the words themselves; and, setting aside all the rest of the qualities affirmed of the oath as superfluous, he calls upon your lordships to say whether it falls under the statute or not; and denies that he is bound to set forth in the minor proposition any thing but what was actually done, and the time, place, and manner of the deed. He has accordingly described the time, and place, and a number of the circumstances under which the oath was administered; and, above all, he has stated the names of the individuals to whom it was administered, perhaps the most useful circumstance of the whole, in order to prepare the panel for his defence. But, as to detailing the time, place, and circumstances, of what existed in intention, it is obvious that such a specification is beyond his power. The oath may be administered before any part of the detail of the execution of the treason is arranged, -before any understanding among the conspirators as to their particular plan of operations and, by its nature, the oath is likely, in general, to be the preliminary to every thing else. Yet here he is asked, not only to detail facts that have not happened, but to draw from them an inference in law. Now, he must say, that he cannot conceive any thing more foreign from the nature of a minor proposition, than the detail of a deed in contemplation, unless perhaps it be an inference in law from a crime which never had an existence. In short, he has set forth the administering an oath, purporting to bind, as forbidden by the statute; and he submits, that it is travelling out of the case altogether, to ask any thing of him beyond the oath itself, and the time, place, and circumstances of the administration. He can know nothing of the guilty purpose more than the parties told him in the oath.

The prosecutor has attentively reconsidered this part of the argument for the panel; and, from the beginning to the end of it, he has not been able to discover a single piece of reasoning that directly meets the point. The whole of it, without exception, proceeds upon the erroneous assumption, that it is a charge of treason of which your lordships are now called upon to judge; and if this plain distinction is kept in view, he will venture to say, that the argument has not even the vestige of plausibility.

[Whether an offence against this act can

be tried, being treason.] Another objection to the relevancy of this indictment was derived from a principle of the English law, which it was attempted to apply to this case, that all felony merges in treason; from which it was said to follow, that if the facts set forth in the indictment amount to treason, they cannot be tried as an offence against the act libelled on. The learned gentleman who maintained that plea, was obliged to assume the fallacy of all the ingenious arguments that had gone before, to show that there is no treason in the case, and to abandon the whole of those rules of construction of the oath and the indictment, for which so great a struggle was made by the other counsel for the panel. He assumed, that treason was not only in the view of the parties, and intended to be committed, but that, by taking and administering the oath, they were guilty of treason by the act of the 36th of the king. It is necessary, therefore, before you can pay any attention to this alternative plea, that your lordships should come to be of the prosecutor's opinion as to the relevancy of the indictment on the meaning of the oath; for this part of the argument for the panel is totally inconsistent with, and destructive of the other.

One or two remarks were made, with much diffidence, at the time, on the long and learned argument by which this view of the subject was supported; but the prosecutor has since had the satisfaction to find, from a consideration of the English writers, and from the best authorities to which it was in his power to apply for information, that those remarks were perfectly well founded. Indeed, he is now totally at a loss to account for the respect with which he listened to this argument at the time when it was first delivered, upon any other ground than the impres sion on his mind, that what was prepared with so much labour, and maintained with so much confidence and parade of learning, must have had something to recommend it, which he was not able to discover. He has now, however, ascertained, that there was no discovery to make; and has accordingly again to state to your lordships, that the principle of the common law of England founded on, has no application to any trial in this Court according to the law of Scotland; and that, even in England, it has no application to a trial for an offence against the act of the 52nd of the king.

1st, It is understood to be a principle in English law, that if a man be tried for an offence as a felony, which in fact amounts to treason, he must be acquitted, and he may be tried over again for treason. But there is no authority for saying that a man cannot be tried for felony when

his offence amounts to treason; and it is obvious that this could never be law, because the jury alone can judge whether he has committed treason or not; and unless they are satisfied, upon the evi. dence, that he has committed treason, he cannot be acquitted, on this ground, of the felony. It is the law of England, that a man acquitted on such grounds may be tried again for the same fact under another denomination of crime; and the legislature, in favour of offenders, have thought fit to make a trial under this act, an exception from the general rule; and have declared, "That any person who shall be tried, and acquitted or convicted of any offence against this act, shall not be liable to be indicted, prosecuted, or tried again, for the same offence or fact, as high treason, or misprision of high treason." It is therefore submitted, that this objection, derived from the law of England, is one that can only be judged of by the jury, as the Court cannot try the fact, and is an objection to a conviction, and not to a trial, as the terms of the act show-which take for granted the possibility of a trial for an offence under the act, which offence may turn out to be treason. If no person can be tried for an offence against the act, which offence may at the same time be treason, this clause implies an absurdity.

2ndly, But the meaning of the legislature does not rest upon these words alone. For, considering that the offences against this act might often amount to treason, it occurred that it might be argued that this act, being the last declaration of the will of the legislature as to such offences, did, by appointing this mode of prosecution, abrogate all former laws against them; and it was further enacted,+ "That nothing in this act contained shall be construed to extend to prohibit any person guilty of any offence against this act, and who shall not be tried for the same as an offence against this act, from being tried for the same as high treason, or misprision of high treason, in the same way as if this act had not been made." Thus plainly showing that it was fully under the view of those who passed this law, to make it occasionally applicable to cases of treason which it should not be thought expedient to punish as such.

3dly, The act itself not only makes express provision for the trial of "any offence committed against this act," which of course includes cases that may amount to treason, before this Court, but the clause is expressed in such a manner, as to demonstrate that the offences are to be tried in the ordinary way. Provided also, and be it further enacted, That any * Sect. 8. + Sect. 8. Sect. 7.

offence committed against this act on the high seas, or out of this realm, or within that part of Great Britain called England, shall and may be prosecuted, tried, and determined, before any court of Oyer and Terminer, or gaol delivery, for any county in that part of Great Britain called England, in such manner and form as if such offence had been therein committed; and, if committed in that part of Great Britain called Scotland, shall and may be prosecuted, tried, and determined, either before the Justiciary court at Edinburgh, or in any of the circuit courts in that part of the united kingdom."

4thly, The whole enactment would be nugatory, as far as the binding to commit treason goes, if this argument be well founded; for every oath binding to commit treason may be maintained to be treason as well as the present. It may be said, that no oath can be administered to kill or to depose the king, or to overturn the government, that would not be an overt act of treason, in compassing or imagining the king's death. The treason would be the imagination or intention, and the oath the overt-act manifesting it. So, the administering an oath to levy war for a public purpose, might be said to be a conspiracy between the persons administering and taking the same to levy war, (though not treason as levying war); and the oath or conspiracy might be said to be an overt act of compassing the king's death, or to be treason under the 36th of the king. In England, the oath of one witness is sufficient proof of the statutory offence, but two witnesses are necessary for proof of treason; and suppose the evidence of only one witness to be had, if the offender could not be convicted of the statutory offence, he could not be convicted at all. Upon the statute, therefore, it is submitted to be quite clearly the meaning of this law, to make the administering or taking an oath, purporting to bind to commit treason, triable according to the ordinary course of justice, whether it be treason or not.

What has been already said, is such an answer as might be made in an English court to this objection; but though the preceding view of the subject be of itself quite conclusive and satisfactory, the prosecutor can by no means admit that it is necessary to have recourse to any part of it in the present case. For he maintains, that the statement formerly made is perfectly correct; that the principle of the law of England, as to the merging of felony in treason, has no application whatever to trials before the criminal courts of Scotland. It will not do to say generally, that the whole doctrines of the English law, as to treason, have been introduced into Scotland. Let us attend for a mo

ment to the expressions of the act of queen Anne, and we shall distinctly see what the legislature did. In the first place, they enact, that all crimes and offences which are treason in England, shall be treason in Scotland; and that no other crimes or offences shall be treason in Scotland. Does this compel the prosecution of any crime as treason, which may be tried under another and lower denomination? Certainly not. It is an established maxim of our criminal law, that a man may be tried for a crime under any denomination of which it is susceptible; and, particularly, that a prosecutor cannot be compelled to charge it by its highest denomination. If an act be passed, declaring a particular offence to be henceforth one of a higher description than it has formerly been, the prosecutor is only empowered, not compelled, to try it under its newly acquired character. Examples of this doctrine need not be given; they occur in daily practice. If, instead of declaring their meaning expressly, the legislature make reference to any particular law of England, or of any foreign country, which is quite the same thing, and declare, that what is a crime by that foreign law, in that foreign country, shall henceforth be a crime here, and punishable in the same way, this will not abrogate the previously existing common law of the land, by which the same offence is punishable as a lower or different description of crime. The great principles of our common law, sanctioned by the experience of ages, and founded on the immutable basis of reason and truth, are not to be taken away by implication. Your lordships have acknowledged this doctrine in a hundred instances, to which it is needless to refer; as, for example, in the remedy of suspension, which has been most properly held not to be taken away, even by a clause declaring the judgment of an inferior court final to all intents and purposes. But here there is no such implication of any interference with the rules of our common law. It is said, that such and such offences shall be treason; but it is neither said nor implied that they shall always be tried as such whenever they occur, notwithstanding any rule of law to the contrary. The law of treason, introduced by the act of queen Anne, is entirely statutory, and has nothing to do with the common law of England, of which every subject, and every lawyer, in this part of the kingdom, is presumed and entitled to be in total ignorance.

In the next place, the act of queen Aune appoints trials for high treason in

*7 Anne, c. 21, sect. 1. + Hume, vol. ii. p. 276. 1 Sect 3.

Scotland to be conducted “in the same manner" as in England. And certainly it can as little be maintained to be a consequence of this part of the statute as of the other, that the general principle of the common law of Scotland, shall be abolished, by which a man may be competently tried for an offence by a lower than the highest denomination of which it is susceptible and that a general principle of the common law of England, not peculiar to the law of treason, shall be substituted in its room. And who does not see that in this, as in other instances, our practice is the most favourable to the accused, as our law fixes only a maximum in the scale of legal responsibility, and leaves the rest to the prosecutor? Declaring, however, that of whatever form of charge he shall make his choice, the offence or fact which shall once have been submitted to the investigation of a jury, can never again, in any shape, or under any description, be made the subject of trial, whatever may be the result. Now, this circumstance at once explains the origin of the maxim of English law above-mentioned, and its total inapplicability to our criminal code, that whereas, in the English practice, a man may be tried over again for the same fact, under a different description of the crime, it therefore becomes essential to the ends of justice that he should be acquitted of the first charge, that he may not be twice convicted and twice punished for the same offence. In our practice, on the other hand, if the accused shall have once tholed an assize for a criminal deed, by whatever nomen juris it may be defined in his indictment, whether acquitted or convicted, he has made his atonement to the law, and is for ever free from all criminal prosecution on that account. The plain meaning of the act of queen Anne is, to make the same criminal deeds treason in both parts of the united kingdom, and to have them tried in the same manner; and it would have been going much further to have altered the law of Scotland, so as to make it imperative to try for treason, what, by a general principle of that law, might be less severely punished, and to prevent the trial of a man for a less offence, whose acts might amount to a greater.

In the present case, too, it will always be kept in remembrance, that the argument is not merely that the act of queen Anne has abolished a general principle of our common law, and introduced a general principle of the English common law, but that it has such force and validity as to destroy the express words of the subsequently declared will of the legislature in the 52nd of the king.

It is impossible to dispute that, in the legal definition of the crime of treason—

in the mode and form of process by which it is to be tried—in the rules of evidence by which it is to be established-in the mode and effect of conviction and punishment-in short, in the whole process, from the commencement to the termination, the law of England is transferred to Scotland. But, at this point, the transference of the English law, and the innovation upon the Scotch law, stopt short. If this, therefore, had been a prosecution for the crime of treason, your fordships must have looked to the rules of the law of England.

But, as has been already observed, the proposition upon which the counsel of the panel rest, is of a totally different description. This is the first occasion, it is believed, on which it has ever been hinted at or maintained by any lawyer in either kingdom; and it is impossible to contemplate the effects of it without the deepest alarm. The proposition is, that, by the articles of Union, a general principle of the English criminal law has been introduced into Scotland. It is a quality in the definition of felony-It is a defence against a charge of felony, that the facts from which it is inferred constitute the higher crime of treason. Nay, more, it is likewise a quality in the definition of every inferior crime, and is not pretended to be peculiar to felony. It must be admitted to be a principle inherent in, and diffused over, the whole common law of England relating to crimes. If the principle maintained by the counsel for the panel be correct, then murder, robbery, theft, assault, mobbing, or sedition, cannot be tried, if the facts from which these crimes are deduced can, by any construction, however forced, be proved to infer the crime of treason. The privilege of the public prosecutor in Scotland, by which he is entitled to prosecute for the lowest denomination of crime which the criminal act infers, would be destroyed by the introduction of this strange principle, and without any conceivable advantage. For, in England, private individuals being the prosecutors, they might occasionally be induced to favour the party, accused, by trying them upon a charge inferring too low a punishment; but here the invaluable institution of a public prosecutor prevents such a risk.

- On the whole, the answer to this plea is clear and irresistible; namely, that although the law of treason, as that crime is prosecuted, defined, and proved in England, was by the articles of the national union, transferred to Scotland; yet every other part of our criminal code was, in all the purity and simplicity of its systematic principles, secured inviolate.

It would be an easy task to point out Toth objections to this part of the argu

ment, and to expose various errors, both in the law and general reasoning by which it was supported; but enough has been said already to satisfy your lordships, that of all the reasonings which the consultations of the eight learned gentlemen of counsel for the panel have produced, this is that which is least deserving of your serious attention.

It shall only be observed further, before quitting this subject, that, in several of the cases of sedition which occurred some years ago, it was expressly stated, both at the bar and on the bench, that certain acts charged amounted to treason, and might have been so libelled ;* and yet no objection occurred on that ground to their relevancy.

The prosecutor trusts that he has now sufficiently answered all the objections to the relevancy of the indictment that are likely to appear deserving of any attention. At the same time as this indictment differs in some verbal alterations from the last, it is more than probable that it may suggest to the ingenuity of his learned friends some verbal criticisms, of which he is not aware. Of such he shall only say in general, that it is not for the purpose of affording an opportunity of discovering objections of this description that panels are served with copies of their indictments fifteen days before their trial, but in order to make them acquainted with the nature of the facts to be proved against them, that they may be adequately prepared for their defence. If a fair and candid statement has been given to the panel of the crime with which he is charged, so as he may know it from all other instances" of the same sort of crime," this is the essence of the relevancy; and the humane indulgence, in the previous service of the indictment, in which our practice differs from that of England, renders that critical and punctilious accuracy quite unnecessary here, which it is the genius of the English practice to observe, in slight and immaterial modifications of names and expressions. "I cannot find," says Mr. Hume, speaking of this peculiarity of the English practice," that in this respect we have ever been disposed to follow their example, but rather, and I think with as sound a judgment, to disregard such criticisms as unseemly niceties, which serve only to disappoint the course of justice, and bring the law itself into contempt." It cannot, however, be denied, that attempts have of late been made to encroach upon the general principles of sound reason, by which our criminal law in such matters has been in time past administered, and to substitute in their room a minute criticism, and technical construction of certain words

See the cases cited in the note, p 342. antè.