is called, is introduced with the words In so far as;' and consists, to describe it generally, of a narrative of the alleged criminal act, with the due specification of the time, place, and manner of doing it, so as to justify the preceding affirmation of the panel's guilt, and distinguish likewise this particular charge from ALL OTHERS OF THE SAME SPECIES, and bring the panel to the bar, sufficiently informed of that whereof he is accused.

"I say, in the first place, that this part of the libel must give such a history of the deed that has been done, as shall warrant the preceding affirmation of the panel's guilt of the crime which is stated in the major, and is now referred to in the subsumption of the minor proposition." The author then goes on, at considerable length, to explain this point of law, that the fact must amount to the crime charged in the major proposition; and among other examples of the rule, he gives this: *On such a ground, among others, the Lords dismissed a libel for perjury, which set forth the several articles of the panel's deposition, and affirmed that they were contrary to the truth, but omitted to say, that the panel swore these things, knowing the same to be false." The informant shall presently take the liberty of quoting some other passages in a different part of Mr. Hume's work, on this very material - case of trial for perjury.

But after explaining this branch of the rule, he goes on to the other: "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."" Afterwards he says, “And indeed, so undeniable is the equity of this maxim, that it seems to have been uniformly observed in the trial even of crimes against the state, and in the times the least remarkable for mild or impartial decisions in that class of cases." Then follows a detailed illustration of the point. The informant can only select a few passages: "It is matter of substantial justice, and has been uniformly observed in the practice of later times, that the prosecutor shall not be held sufficiently to have explained himself in charging the crime by its technical appellation, and affirming that he, the panel, did commit or was

guilty of that crime against such a person, at such a time, and place; He shall further be obliged to support and justify this affirmation, with an account of the particular fact; an account which takes notice of those leading and peculiar circumstances of the deed, which serve to distinguish it from other deeds of the same class, and of which any spectator would naturally make mention, in relating what he had seen. In a case of murder, for instance, the libel shall not be good thus: Yet true it is and of verity, that you, the said A. B. panel, are guilty actor, or art and part, of the said crime of murder, in so far as, upon the 10th day of April, 1797, you did kill and murder C. D. merchant in Edinburgh, within his own dwelling-house, situated in the High Street of the said city of Edinburgh; and so conclude, without communicating either to the judge or the panel any further particulars of the story. The reason is obvious: A murder might be committed on the person of C. D. at the time and place libelled, in many various ways, as by shooting, stabbing, strangling, poisoning, and so forth; and, according as it is intended to prove one or another of these modes of slaughter, the panel may have to take a different course towards his defence and exculpation."

Afterwards, "I may add, that the prosecutor is obliged to enter into such a detail, for this further and equally substantial reason, that HE MUST OTHERWISE BE

VESTED IN EFFECT WITH THE ENTIRE COGNIZANCE OF THE RELEVANCY OF HIS

OWN LIBEL, a matter which belongeth not to him, nor even to the jury, BUT TO THE COURT ALONE: and that he might thus force on the trial of such a charge, which, to be dismissed as inept or irrelevant, needs only to be opened up and explained. For under these general terms of murder, rob, steal, and the like, the prosecutor may conceal some nice and disputable, or perhaps some fantastical and extravagant notions of his own, such as are unknown to the law and practice of the land, &c.'* Now, if the prosecutor be allowed thus to wrap up his case in mystery, and keep the fact to himself, which is the foundation of his charge, he, for certain, gains his object of having his libel remitted to an assize: with whom, if he can prevail to adopt his opinions on the subject, how false and erroneous soever they be, he may obtain a favourable verdict, and thus constrain the judge to pass sentence on the prisoner, contrary to the law and justice of the case.

"And if this be true of such crimes as theft and murder, much more does the same hold good of many other crimes, which are of a more complex or more subtile nature, and with respect to which, unless elucidated

* Hume, vol. 3, p. 318.

with a full detail of the circumstances of the fact, no notion can well be formed whether the charge be pertinent or not. Take, for instance, the crime of bribery." Among other examples under this head, the author states the case of perjury. "The like discussion took place in the case of Lawson of Westertown,* on that article of his indictment for the crime of perjury, wherein he was charged with swearing falsely, that his title as a freeholder, was not nominal or fictitious, nor created for the purpose of enabling him to vote for a member to serve in parliament. For, on this head, finding it advisable to be more reserved and cautious than on the other articles of the charge, the prosecutor had failed to set forth any such detail of facts and circumstances, from which it could be gathered, either what meaning he himself attached to this mystical and litigious phrase of a nominal and fictitious title, or which might enable the judge to discern, whether he were correct or not in his notions on that subject. In consequence, this part of the libel, and this alone, was found not to be so qualified as to import a relevant charge of perjury, upon which the panel may or can be remitted to the knowledge of assize.""

The author concludes the whole of this matter with observing,† "The truth is, that the best confirmation of the rule, next to the obvious justice of the thing itself, is the uniform observance of it in the practice of later times, which has hindered many controversies of this sort from arising in Court, and is itself a daily testimony to the tenor of the law."

Now, though it is true that there are some exceptions from the strictness of this rule, arising from the necessity of the case, and though there are also limits to the rule, so that an unreasonable degree of minuteness shall not be required, the rule itself is fixed and peremptory, and the principles on which it depends are both clear in themselves, and such as demonstrate the necessity of it to the substantial justice of every trial in this Court. The informant hardly thinks it necessary to make any apology for the fulness of his statement on the subject, because he apprehends that it 13 substantially denied (though indeed admitted in words) throughout the information of the prosecutor.

The major proposition of this indictment consists entirely in a recitation of the clauses of the statute of the 37th of the king. The material part is in these words, "that every person who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding and assisting Hume, vol. 3, p. 319. + Ibid. p. 320.

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."

The general crime here raised into the rank of a felony, consists in the administration of an oath. But the quality of the oath in which the essence of the crime consists, admits of the great varieties, and is described in the statute by a reference to certain other general denominations of crimes. It must be an oath purporting or intending to bind the party taking it to certain things; 1st, Purporting or intending to bind him to commit any treason; 2nd, Purporting or intending to bind him to commit murder; 3rd, Purporting or intending to bind him to commit any felony. The crime of the statute is not defined to any one of these obligations, nor does it require them all to make up the statutory offence. Each is a separate sort of offence of its own character, all under the same enactment of the statute, and all consisting in the administration of the oath.

But there are many sorts of treason; there are many hundreds of different felonies; there are murders which amount to petty treason, and murders of a different sort; but though the statute mentions murder, merely according to the uniform practice in all such English statutes, it does not speak of any murder as in the other cases. The statute does not distinguish the varieties of treasons and felonies. It provides, that the administration of an oath, purporting or intending to bind to commit any treason or any felony, shall be felony; and it leaves the precise definition of the particular crime to be settled according to the fact in each case. If the path purports or intends to bind to commit burglary, that is the crime in that case; or to commit rape; and so of all the numerous felonies existing in the law. In the same manner, if it purports or intends to bind to compass the king's death, the administration of the oath having this purport or intendment is the statutory crime in that case. If it imports or intends to bind to levy war, that is the essence of the crime in that case. If it purports or intends to bind to counterfeit the king's coin, that is the treason in that case, the obligation to commit which is the basis of the offence. And so of all the other eight treasons which exist in the law.

It may be known to your lordships, that the three great genera of crimes in the law of England are Treason, Felony, and Misdemeanour. Every thing falls under one or other of these denominations,

There are inferior classes; and sometimes the pleas of the crown are stated separately, as in this statute murder is put as distinguished from felony, the informant believes, according to the constant practice in such English acts, and perhaps in this case, with some view to the case of those murders which are petty treason. But, in general, treason, felony, and misdemeanour, are the genera, and comprehend every thing.

The same fact, which is properly a treason, may be also a felony. But as a treason, it is not comprehended under the denomination of felony. The same fact may be at the same time treason and felony; for example, to murder the king is an overt act of compassing the king's death, and so treason, and also felony in the murder. But the crime of high treason is an entirely distinct class; and your lordships will hereafter have to consider whether, in the case of the same fact involving both crimes, the felony does not necessarily merge in the treason. With this point the informant does not at present interfere. In the mean time, it is clear, that treason is used constantly throughout the English books as a generic term just in the same manner as the term felony, and one of the plainest illustrations is to be found in this statute, and in the very words founded on, where it speaks of any treason, or any felony, precisely on the same principle, referring to any one of the numerous treasons, or the still more numerous felonies, which exist in the law.

The informant shall venture, hereafter, 40 enter a little more fully into the subject of the treason law. But at present, he may be allowed to observe, that the separation of the different sorts of treason, or rather of the different treasons, is so clear, that the valuable statute of king William for regulating trials of treason, &c. lays down a rule now in strict observance, that no person shall be indicted, tried, or attainted of high treason, but upon the oaths of two lawful witnesses, either both to the same overt act, or one of them to one, and the other of them to another, overt act of THE SAME treason." And Sir Michael Foster + in quoting the statute, prints the words "the same treason" in italics, to mark his clear understanding, that it must be two witnesses to separate overt acts of the same species of treason as a distinct crime. In the same manner, it is provided, by the fourth section of the same statute, that if "two or more distinct treasons, of divers kinds," be alleged in one indictment, one witness produced to prove 66 one of the

* 7th William 3rd, c. 3.

+ Foster's Crim. Law, 233.

treasons," and another witness produced to prove another, shall not be deemed two witnesses" to THE SAME treason."

The statute of the 2nd and 3rd Anne, c. 20, makes it high treason for any officer or soldier to hold correspondence with any rebel or enemy, or to give advice, &c. to the king's enemies; and it makes it felony to raise mutiny or sedition in the army, &c. &c. And, by the 36th section of that act, it is provided, that the treasons and felonies before mentioned may be inquired of, &c. in the manner there pointed out. The treasons and the felonies are constantly spoken of in the plural number, as generic descriptions of two classes of crimes.

The statute of the 7th Anne, c. 21, § 3, the very act which extends the treason law of England to Scotland, speaks throughout of treasons in the plural number; and it specially provides, that the justice-court shall inquire of all high treasons, &c.

In general, therefore, there cannot be the smallest doubt, that, in the phraseology of the English law and statutes, treason is a generic term, descriptive of a class of crimes; and that, when the legislature speaks of a treason, or any treason, it means a particular sort or description of treason, or any one of all the particular species of the general crime.

But the plainest illustration for the present question is to be found in the other branch of the same clause of this statute," or any felony punishable by law with death;" which, in this statute, is put exactly on a footing with " any treason." There are some hundreds of felonies in the law of England, and there are very many felonies punishable with death in the law of Scotland. But it is impossible for any Court to imagine, that, when this statute speaks of any felony, it means any thing more than to describe generally the nature of the offence, the administration of the oath binding to commit which shall be deemed felony, assuming that the particular felony, or particular species of the crime meditated, shall be defined in the indictment on which the charge proceeds.

Thus, the major proposition of this indictment libels a crime, consisting in the administration of an oath, binding the party taking the same to commit certain generic crimes, of which there are a great variety of species. The essence of the statutory offence must always be resolved into the thing, which the oath administered purports or intends, or at least is alleged formally to purport or intend, to bind the party taking it to do. It is in that only that the criminality does or can lie; and it is quite apparent, that the statute is so very general in its descrip

tion of that thing or object, and comprehends so many particular cases, and particular descriptions of crimes, that it of necessity supposes a particularity of statement to be given in the indictment in each case.

The prosecutor has thought fit to pass over this part of the case altogether without notice. But your lordships, after attending to the true nature of the statute, which forms the whole major proposition of this indictment, will have no difficulty in perceiving the full force of it in relation to the material questions which remain on the minor proposition.

The informant is here immediately led into the several important questions, on which the relevancy of this indictment depends. If the reasoning of the prosecutor is well founded, it would be very unnecessary to enter on any such inquiry. For, as far as the informant understands the statement in the information, it is, according to him, quite unnecessary to give your lordships an opportunity of judging of the relevancy of the indictment at all. He gives your lordships his theory in a short compass. "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.”* And elsewhere ↑ the prosecutor says, that "in this stage of the process, every thing is presumed to be done wickedly and maliciously, as libelled. And the question is, if all these things are as stated by the prosecutor, ought they to be followed by punishment? So clear is this rule, that things in themselves of the most innocent description, if libelled to be done wickedly, and maliciously, or for the accomplishment of some illegal purpose, are daily found relevant to infer the pains of law." With all deference, the informant must be allowed to say, that, in his humble apprehension, a more complete confusion of legal ideas has been rarely expressed in the same number of words. According to the prosecutor's dialecticks, this would be a complete legal syllogism, which your lordships must of necessity remit to a jury. “ Major, The administering of an oath, purporting or intending to bind to commit any treason or, felony, is felony. Minor, You did wickedly and maliciously administer an oath of the following purport, which purpart is, that the party taking the same shall walk one mile every morning. Ergo, You must be punished with death." The prosecutor plainly assumes, that your fordships are not to judge of the relevancy of the minor proposition. If he shall

Prosecutor's Inf. p. 386. Inf. p. 375.

only be pleased to state, that that which he asserts to have been done was done wickedly and maliciously, your lordships must take it for granted that it amounts to the crime libelled in the major proposition, and is a sufficient description of the specific offence, and must leave it to the jury to determine whether the prosecutor shall prove any precise criminal act or not. If the informant has any comprehension of this, it is precisely a plea, directed to the object of taking the question of relevancy entirely out of the hands of the Court. It is just that case stated by Mr. Hume, where the prosecutor wraps his case up in mystery, in hopes of getting it passed to an assize; and then, if he can prevail on them, rightly or wrongly, to give him a verdict, compels your lordships to pronounce sentence against law and justice.

But an indictment under this statute cannot be framed on this principle. Your lordships must have the means of judging of the relevancy of the minor proposition: and you cannot send it to trial, on any such random assumption of what may by possibility turn out, as the prosecutor is pleased to present to you. It is perfectly true, that, in the question of relevancy, the facts averred in the indictment ought to be taken as true. But the mere averment of a felonious intention will not make relevancy, if the fact stated is either not in itself relevant, or not sufficiently specific, to enable your lordships to judge of its relevancy.

In order to sift more carefully the question concerning the relevancy of the minor proposition in this case, it is now necessary to consider the particular objections which the perusal of it immediately presents. And the informant shall here take the liberty of inverting the order adopted by the prosecutor, and of considering, 1, Whether the prosecutor was bound to state the particular treason, which he means to allege that the oath libelled on purported or intended to bind the parties taking it to perpetrate. 2. Whether there is any averment in this minor proposition, which can in law be taken as an averment that the panel did administer an oath, purporting or intending to bind the parties to commit any particular treason; and, 3, Whether the oath libelled on, is an oath purporting or intending to bind the party taking it to commit treason. The informant adopts this arrangement, for reasons which will presently be very evident to your lordships. For he apprehends, that the objection to the relevancy of this indictment is not an objection of mere form, but an objection which enters into the substance of the whole charge. The prosecutor knows, that he dare not state his indict

ment according to correct principles of relevancy, without shewing at once that, in the substance of it, it cannot be maintained. If he did not know this, it would be the easiest thing imaginable to frame a relevant indictment, as the informant will presently shew. But the prosecutor is now striving for the very object which has been uniformly reprobated in the history of the Court, to take the relevancy out of the hands of your lordships, and to obtain the chance of a verdict from a jury, on erroneous notions of the nature of the charge, and vague inferences from facts that are totally inapplicable to it. The question concerning the purport of the outh is a question of great importance; and if the informant does not mistake, the prosecutor has hazarded propositions on the subject of the most untenable and extravagant nature. But it seems to him to be first of all material, to see, what it was necessary for the prosecutor to state, in order to qualify and define the charge and allegation of fact in the minor proposition; and how far, independent of the terms of the oath, he has complied with the rules of law in that particular.

1. The informant humbly maintains, that it was incumbent on the prosecutor, in the minor proposition of the indictment to specify and define the particular treason to which he alleges the oath said to have been administered, purported or intended to bind the party taking it.

As the informant considers this to be a fatal objection to the indictment, and an objection which, though already twice distinctly explained, the prosecutor has found himself unable, by any amendment, to remove consistently, it must be presumed, with his knowledge of the facts of the case, the informant must beg the indulgence of your lordships in explaining it at considerable length.

If the foundation of this prosecution were the administration of an oath, alleged to purport or intended to bind the party taking it to commit a felony, the informant presumes that even the prosecutor would scarcely dispute that the particular felony must be specified in the indictment: He has indeed ventured to put the case of an oath," binding to commit treason generally, or, in the words of the act itself, "any treason," and has boldly maintained that it would be a sufficient libelling to state that fact. And he has also said a great deal about the impossibility of stating facts which were only in intention, and never took place. These doctrines the informant shall presently consider. But the prosecutor has entirely avoided the case of the bath alleged to purport to bind to commit a felony, and has not attempted an answer to the irresistible illustrations suggested in the hearing on

this point; and to this, in the first place the informant requests the attention of your lordships.

Supposing, then, that an oath had been administered, which the prosecutor thought purported to bind the party to commit a felony: How must he lay this in the minor proposition of the indictment? 1. If he were to lay it as the prosecutor suggests, in the words of the statute, would it not be manifestly no charge at all? "In so far as you did on the day of : &c. administer an oath, purporting, or intending to bind the party taking it to commit any felony punishable with death." By such a charge, the panel would be left to conjecture, which of five hundred felonies he was accused of having bound the party to commit; and it is quite unnecessary to say, that it would be utterly irrelevant. 2. If the prosecutor libelled, that the oath purported to bind "to commit felony," or "a felony," or "some felony," the indictment would in all these cases be plainly bad, as in fact containing no allegation of the panel having administered an oath, purporting to bind to the commission of any specific or

known crime.

When this is stated in a general view, the truth of the proposition cannot possibly be denied. No prosecutor would have the face to present such an indictment to the Court. But the sort of reasoning which the prosecutor here applies to the case of treason, ought to afford him an equally good plea, in the case of an oath alleged to bind to commit felony; and the informant does not know that he will not maintain it. He may be supposed to state, that, besides alleging that the oath purported to bind to commit felony, he had recited the purport of the oath itself, and that from that purport, or the meditated acts implied in it, the particular felony intended might by possibility be collected; and that it is the province of the jury to determine, whether it is an oath binding to commit felony or not. The informant firmly believes, that such reasoning, if applied to the case of felony, would only require to be stated to shew the impossibility of maintaining it. But the informant shall take the liberty of observing, that, even if the precise fact which the oath was alleged to bind the party to commit were set forth, the indictment would be clearly bad, if it did not state the nature of the felony, the obligation to commit which was to be proved by the contemplation of the fact, to the performance of which the bath purported to bind. The act which constitutes, or affords the evidence of a felony, is not the felony itself. There may be many qualities in the same act, which essentially vary the legal denomination of the crime