persons taking the same to commit treason. Assuming the fact, as to the oath being administered, which in this stage of the proceeding we are bound to assume, nothing remains for us but to interpret the oath said to have been administered, and the purport of which is set forth in this indictment. This we must do, in judging of the relevancy, and a most delicate task it is. Is it, or not, an oath purporting or intending to bind to commit treason? We have no alternative; we must return an answer to this question either in the negative or affirmativethe former if we reject, the latter if we sustain the relevancy of the indictment. And what is the consequence of a judgment to the last effect sustaining the relevancy of this indictment? By that judgment we declare, by our deliberate opinions, that the oath is of the import alleged in the indictment, and declared in the statute. And what is the consequence?-that the administrator of the oath ought to be punished with death. I do not question the right or power of the jury to return a verdict of not guilty although we find the indictment relevant, and although the fact of having administered the oath be proved; but such a verdict would directly contradict our judgment. The Court finds the oath purporting or intending to bind to commit treason, and the jury says it is not of that import. The case is different from other trials, where the direction given to the jury forms no part of the record. If we sustain the relevancy of the indictment, we put an interpretation upon this oath; and that interpretation is to be contradicted if the fact of administering be proved, and the jury find the panel not guilty. The solemn judgment of your lordships, pronounced under the sanction your oaths, is to be contradicted by a verdict of the jury pronounced by them, under the sacred sanction and obligation of their oaths. of Such is the situation in which we are placed, and it is one peculiar to ourselves; for in England there is no such proceeding as this there is there nothing analogous to the proceeding in which we are now engaged, nothing analogous to our judgment upon the relevancy. We are, as in former times, when by special indictments, and special findings upon the relevancy, the Court usurped the power of the jury. Certainly nothing could be further from the intention of the legislature than to occasion this; but England being chiefly contemplated by them, such is the effect of the statute in question, that by our deliberate recorded judgment, declaring the administration of the oath to be a capital crime, the jury cannot, if the facts adininistering the oath be proved, find the panel not guilty, without directly contradicting the solemn recorded decision of the Court. In a charge of Sedition, I sustain the relevancy without minutely or critically examining the words charged, because I send the whole to the jury, who judge of the seditious intention as well as of the nature of the words. In Sedition the essence of the crime is intention; and as the jury is to judge of that, the Court can seldom reject an indictment for sedition. Here the question is otherwise. All is before us that goes before the jury. The intendment of the oath is to be collected from the oath itself, and the intention of the party is out of the question. I can well conceive, as was pointed out by the public prosecutor, that an oath might be framed and administered, containing words in a different sense from the common one-a term might be used to denote war, and another to designate the king, &c. These terms might be explained by proof. But here there is nothing of that kind alleged. Here the natural and necessary purport is charged. There is here nothing to be supplied but proof of the administration of the oath. The words of the oath, taken in the natural sense, are said to import an obligation to commit treason. We are to say, whether the words, as set forth in the indictment, do so or not; and in this we are going into the proper province of the jury. The Court and jury are united in fact; and a judge who sustains the relevancy of this indictment must be prepared to say, that, as a juryman, if the fact of administering the oath be proved, he would return a verdict of guilty. Am I then prepared to return a verdict of guilty in this case? This is a very serious question, and, permit me to say, it is an awful and a difficult question. As to the oath itself, I agree with lord Hermand in saying it is abominable and shocking. It is impossible to look at it without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been, and is my impression. But the presumption in favour of innocence is not to be redargued by mere. suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from lord Hermand, he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a degree of conviction short only of absolute certainty. Here suspicion is not sufficient, there must be sufficient proof that this oath imports an obligation to commit treason, to entitle us to sustain the relevancy of this indictment. With this, I shall proceed to the consideration of this oath, for that is the principle upon which I am bound to proceed. Since this case came before us, a very material alteration has been made upon this oath or its purport. In the two former indictments against the panel, the word "force" did not appear. Here it is introduced, and does, in my opinion, make a very material alteration in the nature and import of the oath. I shall first consider it as without the word "force," and I have great doubts as to this oath falling within the act of parliament. I shall state the grounds of this doubt, after mentioning why I think the import given to the oath groundless. These considerations which indicate a criminal import here are obvious. First, The secret meetings. Second, Physical strength contrasted with moral. Third, The exertion of violence to obtain an alteration of law, particularly if by numbers. The oath shews, by a brotherhood, that a number of persons were to act. Therefore, taking the whole words together, I suspect the import is criminal. I am now talking of the oath as it stood; and I am considering it as any written instrument is considered. I take the whole of the oath together, and this I conceive to be the way to proceed. In the common case, we give the effect to a written instrument which appears agreeable to its general tendency. If A. and B. dispute about a will, I take what I conceive to have been the intention of the testator. But, here, the case is different. My opinion of the instrument must guide me in both cases; but the sort of proof which makes me prefer A. to B. is very different from that conviction which I must feel before I can declare a prisoner to be guilty of a capital crime. I cannot do this, if a meaning other than the one alleged can reasonably be ascribed to the words. I have great doubts, taking the oath as it originally stood, whether I be entitled to say it is an oath falling under this act of parliament. I agree with my brother, as to the consequences of the wild scheme of introducing universal suffrage and annual parliaments. They strike us as leading to anarchy, and issuing in military despotism. This feeling, as to the political expediency of the objects expressed in it, naturally creates in the mind a strong suspicion of its treasonable import. But I do not think it a legitimate ground of suspicion, and therefore it ought to be discarded from our minds. This object has been recommended by men of high name. It has been stated to be an essential part of the constitution by men of whose fidelity and loyalty there cannot be a doubt; and therefore our view of the object ought not to influence our determination on this occasion. It has appeared laudable and constitutional to men of upright intentions, and it may have appeared in the same light to the party here. In short, we are bound to make a distinction which is often very essential to the ends of justice, and which has not here been sufficiently attended to-we are bound to distinguish between the end and the means. Whatever opinion we entertain as to the end, we ought not from that to judge of the means. However ruinous the consequences of introducing universal suffrage and annual parliaments may be, the crime of wishing to introduce these is not charged against the panel. The object is not criminal, The means by which they proposed to attain it constitute the crime, and not the object itself; and, because we think the end would destroy the constitution, we must not infer that treason is the means employed for attaining it. This very end has been recommended by men of the highest name. The duke of Richmond introduced into Parliament a bill, stating that universal suffrage and annual parliaments are the birthright of the inhabitants of this country, and, until so constituted, the country could not be considered free. No man ever imputed to him treasonable intentions, or a desire to subvert the constitution. In short, in order to get at the import of the oath, we must separate the object in view of the parties from the means employed to attain it; for the means alone were criminal. Suppose that these men had come under a similar oath, and that their object had been to obtain a repeal of the law as to the slave trade; that it had been either to obtain the law abolishing the slave trade, or a repeal of it; or any other object, as a repeal of the coach tax-you cannot say this oath is an obligation to any crime unless you could say that the same oath for such purposes would be a capital crime. It is therefore our duty to separate all consideration of the object in view from the means employed to carry it into effect. We must look to the terms of the oath itself, and see whether the means would be criminal if employed to obtain any other alteration of any existing law of the country. Viewing the matter in this light, I may suspect, but how can I be sure any thing illegal was meant by the parties? If the oath had stopped at the obligation to obtain and support" the same to the utmost of my power," the meaning would have been the same. Then as to the words "physical strength," how could I know it was to be illegally exerted? How can I know violence was to be used, when strength does not denote violence? The question is not whether the oath may or docs import an obligation to commit a capital crime, but whether it necessarily does so. As to the material words of the oath engaging to exert physical strength, physical strength may be exerted for political purposes, or influencing the legislature, where nothing is done or contemplated at all of a criminal nature. There are instances of this which may be given. We lately have seen a case of a number of misguided and guilty men, setting out to wander on foot from Manchester to London. These were to exert physical strength, and no small share of physical strength, in that expedition. They were guilty, but that they were guilty of a capital crime I doubt. That is an instance of the exertion of physical strength. Higher instances may be found. When it was proposed to recognize the independence of Ame * Vide 21 New Parl. Hist. 686. rica, Chatham arose from a bed of sickness, came down to the House of Lords, and employed his voice against what he thought was fraught with disgrace to his country. He exerted intellect, he exerted physical strength, and the exertion proved fatal to him. I say, therefore, it is impossible for us to infer that the mere exertion of physical strength infers crime. It does not necessarily do so, and therefore I am not prepared to return a verdict of guilty against the prisoner. Such is the opinion I have formed upon the oath as it stood. It is now materially altered. The word "force" is introduced, and the terms of the oath, as it now stands, are: "I will support the same to the utmost of my power, either by moral or physical strength (or force), as the case may require," "Force" is within parenthesis; but this has not been sufficiently explained. It is said, the terms were used "not only synonymously but promiscuously." Whether they were used in the same sense, or sometimes the one and sometimes the other, I cannot tell, I must take it as in the indictment; and this oath does appear to me one which does fall under the act of parliament; one to which the statute does apply; for "force" necessarily denotes violence, and in such a case must have amounted to a capitalcrime. But while I say that, in this view, the oath falls under the statute, it yet remains to inquire, what is the crime to commit which this oath is an obligation? And this leads me to consider the second question, which is, If it shall appear the oath is, or may be, of the description alleged, is it incumbent on the prosecutor to specify in the indictment the crime to the commission of which he says the oath imports an obligation? The public prosecutor contends he is not bound to specify the crime. It is very true he has said the crime is treason; but this, according to his argument, was unnecessary and superfluous; and so far he is right and consistent. For if it be necessary to describe the crime at all, to call it treason is no description. Treason is a generic term as well as felony; and some treasons do not differ more from felony than one treason from another. The prosecutor is sensible of this; and though he has stated the crime to be treason, he says he is not bound to give it any further specifica tion. It is only necessary to look at pages 13 and 14 of the prosecutor's information, to find his doctrine on this subject. On the former page, he says: "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 circumstances as accompanied the administration of it, as may throw light upon the meaning of the administrators or takers? All this he 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 he 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, he 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." On page 14, the doctrine is explained in still clearer and more unambiguous terms: "Ile 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 legal 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 malicious 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." In consistency with this argument, the prosecutor in the commencement states, that "the prisoner's argument rested on the fallacy of treason being the crime charged;" and the prosecutor_says, "this is not a charge of treason. The crime of administering an oath alone is charged, and the crime contemplated in the oath is not charged, and need not therefore be specified." This argument is plain and intelligible, and states accurately the true question which is here raised, namely, whether an indictment under this statute is to be held relevant, because it sets forth the purport of the oath merely, without stating whether such oath intended the person taking it to commit murder, or treason, or felony, and still less stating the treason, or the felony contemplated. This is truly the question. The setting forth that, the oath bound to the commission of treason is surplusage. So the prosecutor says, and consistently says. For, if he is bound to explain whether it is treason or felony that is contemplated, he is bound on the same principle to explain what treason it is that is contemplated. ments-[Here his lordship quoted the doctrine of Mr. Hume on this subject]-It is true, the prosecutor says, that that which the oath bound to commit is treason. But can he be allowed to allege that an oath binds to commit treason, when he will not or cannot explain what the treason is which it binds to commit? How would this do, if a capital felony instead of treason were alleged, and Now I cannot hold an indictment on this the sort of felony were not described? But statute relevant which does not explain what the prosecutor says that the purport of the the crime is to which the oath binds. I oath supplies all the deficiencies. But how cannot do so upon any principle of reason, or can this be? Either the oath is quite clear, or any principle of law. The oaths contem- it is not. If the purport of the oath be plated by the statute, are oaths binding to perfectly clear, if that which it binds to do is do a certain act or acts, which, when done, so obviously an act of murder, or of treason, would be treason, murder, or felony. But is or of capital felony, why should not the it consistent with reason to allow the prosecu- prosecutor tell us what it is? If treason, what tor to tell us of the act which it is thus sworn treason it is?--If felony, what felony? It is a to commit, that he cannot or will not say rule of common sense, as well as of law, on whether it be treason, or murder, or felony, or the one hand not to require from the prosewhat treason, or what felony? Dreadful, cutor any information or explanation which, indeed, would be the import of this statute, from the nature of the case, it may be imwere the prosecutor's interpretation to be possible or difficult for him to give. But, on sanctioned. A man is to be put on trial for the other hand, he is certainly bound to give his life, because he administered an oath every information and explanation which is binding to do an act of which the public material to the case, and which he ean give prosecutor infers that it may be murder, or without difficulty. Now, if the purport of that it may be any of the numerous treasons, the oath be so clear, what prevents him or that it may be any of the numberless from doing that which he can have no difficulty felonies which are punished with death. At-in doing, namely describing the crime which tend for a moment to the consequences of it binds to commit? this doctrine. If a verdict of guilty be returned, what is found by such a verdict? That the prisoner administered an oath binding to commit any treason or murder, or any felony, punishable with death. A general verdict on this indictment is just an uncertain special verdict. The essence of the guilt of an offence against this statute consists not in the oath, but in the crime which the oath purports to commit. But here is a verdict of guilty, and neither from it, nor from the record can we learn what the crime is, the intention or instigation to commit which forms the essence of the prisoner's guilt. Now, is this consistent with any notions that are, or ever were entertained of criminal law and justice? But the matter does not end here, it involves consequences still more absurd and dreadful. Such a verdict of guilty may be returned, although there are not any two jurymen agreed in opinion as to the prisoner's guilt. One juryman may think the oath binds to felony or one treason, and another to a different felony or a different treason. In this very case this may happen. Treason is alleged; but this matters not, for there are ten differeut treasons, and of eight jurymen each may think a different treason contemplated in the oath. But the principle contended for, and truly at issue, is, that no crime need be specified or described, and such an indictment we must sustain, if we sustain this indictment. Can this doctrine be tolerated, or is it more consistent with law than with reason? Mr. Hume has well explained the law of indict one On the other hand, if the purport of the oath be not clear, if it does not distinctly appear from it what the crime is to which it bound, then it never can supply the deficiency in the indictment, or "form the connecting link between the major proposition and the conclusion," or render it unnecessary for the prosecutor to describe the crime to which it is alleged to bind. The prosecutor puts the case of an oath binding in terminis to commit treason. This is an extravagant supposition, and I cannot reason on it. An oath may, no doubt, be administered, binding to commit murder, treason, or felony, in terminis. But such an oath could not be in the contemplation of the legislature, and it would be a proof of lunacy rather than an instance of guilt; but, at any rate, this is not the case here. This oath makes no mention of murder, treason, or felony; and its terms, therefore, neither do nor can remove the necessity of explanation; and we recur to the true question, which is, whether it be necessary to specify in the indictment any crime at all, either murder, felony, or treason? I am clearly of opinion that it is. 3. But the prosecutor has specified treason, and this leads me to the third question which I have mentioned-whether the specification and description in this indictment, of the treason said to be contemplated, be accurate and correct, and such as the Court can sustain? The indictment sets forth, that the oath purported or intended to bind the persons taking the same to commit treason, by obtain will appear. A man is tried, convicted, and executed, and for what? Why for administering an oath binding to commit treason. And what is the treason? Why it is the treason of obtaining annual parliaments and universal suffrage by physical strength or force; or else it is a treason which the prosecutor cannot describe-a treason without a name. I come now to the fourth question which I propose to consider. This is the question treated in the supplementary information for the prisoner. There is nothing inconsistent in this argument. It proceeds on the assumption, that upon the other points of the case the prosecutor has been successful, and then it is said this difficulty remains, that if he have sufficiently described the oath as binding to commit high treason, then he has made out that the administering such an oath is in itself an act of high treason, and cannot be tried as a felony. ing 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. This is a description, and the only description contained in this indictment, of the crime charged. Then, as it appears to me, the treason of obtaining annual parliaments and universal suffrage by physical strength or force, is the treason to which the oath is alleged to bind. Now, is this a treason? The prosecutor says he has done what he was not bound to do. He has set forth the treason in the words I have read. If it be treason to obtain annual parliaments and universal suffrage, by physical strength or force, multo majus must it be treason to effect the subversion of the established government, laws, and constitution of this kingdom, by unlawful and violent means. Yet this latter has been solemnly adjudged not to be treason. The indictment is the same, as if it had said, that the oath bound to obtain annual parliaments, &c., and thereby to commit treason; or to effect the subversion of the established government, &c. and thereby to commit treason. In short, if we sustain this indictment, we must declare that it is treason to obtain annual parliaments, and so on; or to effect the subversion of the established government, and so on; we must find this to be treason, that is, we must declare a new treason. The case of Tresilian is familiar to us, I cannot speak of it so lightly as the learned judge who spoke last. Tresilian suffered most justly; and of this I am sure, there is not one of us but would rather suffer his punishment than incur his guilt. But the case of Strafford, at least, cannot be thus spoken of. He was impeached and attainted, as we all know, of high treason, for endeavouring to subvert the ancient and fundamental laws and government of his majesty's realms almost the identical words, and words of precisely the same import with those employed to designate treason in this indictment. We all know the result. The attainder of lord Strafford was reversed by parliament, and whatever may be the opinion entertained of the conduct of that unhappy nobleman, I believe there never has been but one sentiment as to the propriety of this act of reversal. Now the preamble of this act expressly bears, that "the late earl of Strafford was impeached of high treason, upon pretence of endeavouring to subvert the fundamental laws; that he was condemned upon accumulative treasons, none of the pretended crimes being treason apart." And for these and other causes, the act of attainder was repealed, revoked, and reversed: Consider the two questions I have stated under this head, combined together, and you will see that we are reduced to this dilemma; either we must find that this oath binds to commit a capital crime, when the prosecutor cannot tell what that crime is, or we must declare a new treason. See how your record VOL. XXXIII. Now, whether this indictment discloses a case of treason, I cannot tell, as the crime is not specified. It may, or it may not be treason, and this is a very powerful additional argument for the necessity of the prosecutor's specifying and describing in his indictment the crime, to the commission of which he states that the oath imports an obligation. Though the authorities on this point are English authorities, yet the question is one of Scotch law, and I cannot be permitted to say that I am ignorant of the law of England on this subject, for it is the law of Scotland also. It appears to me to be a point made out, that felony merges in treason. As to this, the authorities in pages 14 and 15 of the supplementary information for the prisoner are conclusive, particularly Foster's observation on the case in Dyer; and this being the law of England, I think that, in cases of high treason, it must be the law of Scotland. By the act of Anne, high treason must be tried in Scotland in the same manner as in England. That which is high treason may also be a felony. But if it be tried here as a felony, the act of Anne is violated. By that statute, any act or acts amounting to high treason must be tried as high treason is tried in England. The law has in view what the crime is, not what it may be denominated; and if the crime charged be treason, the trial of it must proceed in the manner directed by this statute. And further, the law of high treason in England is the law of high treason in Scotland. The law of high treason is the same in both countries. But the law of high treason in Scotland must be altogether different from the English law of high treason, if an offence may be tried as a felony in Scotland, which, in England, must and could only be tried as high treason. The mode of proceeding, no doubt, in such a case, in the two countries, is different. The case supposes, that if the offence is charged as a felony, consequently the procedure, in the first instance, will be according to the law of felony in each country, and their law of felony 2 L |