state that the objects were to be accomplished by means of theft and house-breaking. It would be sufficient to state, that the act of parliament was violated by such an oath, bearing on the face of it an obligation intending to bind to commit a felony punishable with death. The prosecutor cannot be called on to define more precisely, what it must be impossible for him to do. act of parliament. In this instance, it is an absolute impossibility to say a correct special definition of the treason could be given. I always say this, under the qualification to which I formerly alluded, that the oath itself shall be one which purports or intends to bind to the commission of treason at least. If it were couched in such language as no mortal could understand, it would be just to hold it not sufficient that the prosecutor thought it bound to commit treason; but if this appears on the face of the oath itself, the charge must be held to be relevantly laid. I go a little further; for it is not merely in reference to treasonable, but to murderous, and felonious oaths, that this observation would be found strictly to apply. I take the case of an oath, as was put by lord Pitmilly: not that there is an obligation on the face of it, to murder an individual, but to preserve secrecy, and to persevere in endeavouring to accomplish certain objects, and even to put to death all those who should oppose the accomplishment of them. Here is an oath which might be charged as in violation of that part of the act of parliament directed against oaths purporting or intending to bind to commit murder. The prosecutor quotes the oath, which contains such an engagement as I have stated, to persevere, even to the risk of putting to death those who shall oppose the accomplishment of the end in view. If the prosecutor were called on to define the species of murder which this oath purported to bind to commit, would there not be the same impossibility attempted to be imposed as in the case formerly supposed, as to the species of treason? The parties themselves had not designated whom they intended to murder, or the manner of doing so, except generally those who should oppose them; and therefore the public prosecutor could not describe, in the charge, the particular sort of murder, as that does not appear on the face of the oath itself. But, if he narrates the act of parliament, and cites the oath, he does all that is incumbent upon him under this act of parliament. I say the same as to an oath binding to commit felony. Suppose parties (and nothing is more common, I fear, than associations in some parts of the kingdom, of persons to commit felonies), enter into a combination to commit a capital felony, and have resorted to an oath binding themselves to seize on the whole bullion in the coffers of the bank of England, or to possess themselves of the regalia in the Tower of London. The prosecutor discovers such an oath, and libels upon it, as purporting or intending to bind to commit a felony punishable with death. I think, on attending to this act of parliament, and to the circumstances under which such an oath must have been administered or taken, it would not be necessary to specify and define the obligation as one to commit the crime of burglary, or any particular capital felony; and, if such a charge was raised here, it would not be necessary to VOL. XXXIII. If the oath itself bears the construction which is alleged of it, and if the relative circumstances of time, and place of administering, be set forth in the indictment, the prosecutor has done all that is necessary for the advantage of the prisoner. The prisoner suffers no harm from its being stated in the indictment, that it is an oath intending to commit treason, for, if he can shew that such is not the proper construction of the oath, and that it does not so purport, his defence remains entire. That he suffers no hardship from the indictment being so framed, appears to me to be quite clear. An admission was made on the part of the panel at the bar, in clear terms, by Mr. Moncrieff, that this indictment would have been relevant if it had narrated all the different treasons alternatively, as bound by the purport of the oath to be committed by the takers of it. This is a truth of which I have no doubt whatever: But, if so, is it possible to say any benefit would have resulted to the panel from following such a proceeding? But, it has been said, that, esto, it is not incumbent to define the treason in an indictment on this statute; yet the prosecutor has undertaken the task, and has not performed it satisfactorily.-Now, we are all agreed, that, in a trial for treason, the particular species of it must be specifically set forth; but, I conceive, for one, that the present objection for the prisoner proceeds altogether on a mistake, and that there is no such thing, as is alleged, undertaken on the part of the public prosecutor. The passage founded on, is not to be found in that part of the indictment where you would have expected the prosecutor to have made such a charge. The words termed vague and unsatisfactory, are merely expressive of the prosecutor's opinion as to the nature of the oath; I shall not fatigue your lordships by reading that part of the indictment-I refer to it as familiar to all of your lordships. The prosecutor goes on to describe the oath as an obligation to obtain annual parliaments and universal suffrage, by physical strength or force, and thereby effecting the subversion of the government, laws, and constitution of this kingdom, by violent and unlawful means. This is clearly descriptive of the oath, not of the treason; for there immediately follows: "Which oath or engagement, or obligation in the form of an oath, was in the following terms." On this part of the case, it is obvious to me, that that which is alleged to have been an imperfect execution of a task undertaken by the public prosecutor, falls entirely to the ground; for the public 2 N Prosecutor has not entered into any such undertaking-he disclaims it; and the words of the indictment show he had not pledged himself to any such task. Agreeing, therefore, with the counsel for the panel, that, if this were a trial for treason, those words in the indictment would not be sufficient; I say, the rule requiring a specification of the treason does not apply to the present case, and has not been attempted to be acted upon by the public prosecutor. The case is quite different from that of lord Strafford. Without at all interfering with the law of treason, or asking us to find the indictment relevant, as charging treason, the public prosecutor makes the averment, that the oath here is one purporting or intending to bind to commit treason; and he says it was so by obtaining annual parliaments and universal suffrage by physical strength or force. This is his description of the oath, and we are referred by him to the oath itself; and if we are right in our construction of it, it is an oath purporting or intending to bind to commit treason, because it states that physical strength or force was to be employed in the accomplishment of those objects; which never can be accomplished without producing those consequences which the prosecutor states. Those words of the indictment are no more than the enlarged view the prosecutor gives of the consequences of his averment as to the nature of the oath itself. That they are not descriptive of the means to be employed, is obvious. Neither are they descriptive of the objects in view; for these are annual parliaments and universal suffrage. They are no more than an amplified detail of the evil result of the accomplishment of those objects, which cannot take off the effect of the treasonable nature of the oath. That the words, and thereby effecting the subversion of the established government, laws, and constitution of this kingdom, by unlawful and violent means," cannot therefore be viewed as any thing like an attempt to define the treason, is to me quite obvious. Suppose the indictment had specified the treason of Tevying war, and then these words had followed, "and thereby effecting the subversion of the established government, laws, and constitution of this kingdom, by unlawful and violent means;" will any one maintain, that the addition of these words, which are merely descriptive, could vitiate the rest of the indictment? That view of the import of these words is decisive, that the use of them in this case cannot amount to a vitiation of the charge, or render it in any respect irrelevant. 46 In all cases of this nature, it is right for the public prosecutor to deal fairly with the accused, and to put him in possession of what he bottoms his charge upon, specifying the time, manner, circumstances, and individuals, with regard to which the guilty acts are said to have been committed. When I look to this indictment, I find all this is done. The major proposition eites the act of parliament. It is then charged, that the panel was guilty of having administered an oath, the terms of which are set forth; the places, persons, and nature of the meetings at which it was administered are detailed; and the prosecutor, having done this, has done all that can be demanded of him, according to any principles with which I am acquainted for the formation of a criminal charge. But there does remain another objection which has attracted the attention of all your lordships, as brought under our consideration in an argumentative and learned manner, in a supplementary information for the panel. I have no inclination to find any fault with that course of proceeding; for, it was otherwise impossible to do justice to that argument, because it proceeds on the supposition that the other argument had altogether failed. But I have humbly to submit to your lordships a view upon this part of the case, which has not been taken by any of the Court, and which has appeared to me, on a thorough consideration, to be deserving of great attention. For, independently, altogether, of the weight of the answers which have been made to the preliminary objections, it is obvious that Mr. Grant's argument is bottomed on assuming this fact, that the administration of the oath itself, now before your lordships, does amount to an overt act of treason under the statute 36th of the king; that is an overt act of that particular treason of compassing or imagining to levy war for the purpose either of compelling the king to change his measures, or to over-awe either House of Parliament; and that administering to numbers at secret meetings such an oath, is to be held as a substantive overt act of this particular treason. Before I can, however, arrive at this conclusion, it must be made out to me, in a more satisfactory way than has hitherto been done, that, by giving my sanction to this assumption, I am not, in fact, proceeding to establish a constructive treason. Your lordships will perceive that what I allude to is this, that it is indispensably necessary, to the permitting such an oath as this to be received as an overt act of the particular treason to which I have referred, under the statute 36th of the king, that the conspiracy, the compassing, imagining, and devising to levy the war should be matured and specially directed to the levying of war, at a certain time, and at a certain place, and for a certain special purpose, such as the objects stated in this case the obtaining annual parliaments and universal suffrage, or any alteration of the law. This to me is clear from the principles we find applied to the statute of Edward 3rd; that, before any particular fact shall be founded on as an overt act of a compassing and imagining the death of the king, or levying war, it is necessary to make out satisfactorily that there was such a conspiracy devised and matured. This is a clear principle in the law of treason, and I shall be the last man to interfere with it. To make his argument on this point apply to the present case-to entitle him to raise the question, whether we can in this way try what is in itself a treason, it is incumbent on the panel at the bar to assume it as proved, that there was this matured, specified, fixed, and deliberate conspiracy and plan formed to levy war. This he must assume, before he can avail himself of the argument which his counsel has suggested. It is material, however, to observe, that the indictment does not state this to be the fact; and I ask, whether there is any one of your lordships, upon the principle which has been so strongly impressed upon you by lord Gillies, who can take this important fact for granted? I, for one, am not prepared to do so. In my conscience I am bound to say, that, though there appears on the shewing of the indictment to have been in contemplation, that which, if accomplished, would have amounted to high treason, I must give the parties credit in believing, that there was not a digested, specific, deliberate, fixed plan for a rising. And, having that clear opinion, and having seen nothing to shake it, the whole basis of the argument in this part of the case falls to pieces, and there remains no foundation for stating, that you have here an oath founded on in support of a charge of a capital felony which is itself an overt act of high treason. The object of the statute of the 52nd of the king, was to guard against the state of subserviency and subjection of men's mind to the influence of leaders, some of whom were even concealed from the persons who were concerned, both in taking and administering these oaths. It was to prevent the consequences of such dangerous influence over the minds of the people, and of their blind submission to these leaders. It contemplates, therefore, the cases of prospective conspiracies not yet matured, not brought into the shape of actual concert of rising into rebellion. It was to guard against those evils that the act was framed. It has a reference to what is to be committed, not to what is committed. If this be a correct view of the true intent of the act in question, that it was made to prevent the creation of such undue influence, and the subjection which seems to have been the object of the administrators in regard to those who took the oath; then it follows, that it is relevant, in forming a charge under this act, for the public prosecutor to set forth that this is an oath purporting or intending to bind to commit treason, in violation of the act of parliament. But, being of opinion, that it has not been made out in a clear and satisfactory manner, that the administering of this oath, as charged in the indictment, is an overt act of the nature taken for granted in Mr. Grant's argument, I have here nothing to do with the proposition that felony merges in treason, even if there were no such clause as the last one of the statute in question. As to the doctrine in general, that, without precedent, case, or opinion of any lawyer of authority, it is to be held at once and decided in this case, that, by the act of queen Anne, which renders the law of treason the same in both countries, we have imported the whole principles of the common law of England in reference to such a crime, it is a proposition to which I am not prepared to accede. Your lordships have already seen one marked distinction between the systems of the law of the two countries, which renders it impossible to hold, that the whole law of England has become a part of the common law of Scotland. I should have wished to have heard any authority given to your lordships, from which it could possibly be held that any judges who ever sat in this Court, could permit any man who has been sent to an assize on a charge of crime founded on an allegation of certain facts, to be remitted on the same facts to another assize, to be tried for a crime of higher denomination, without the express authority of parliament? I never can go any such length. This is one feature in our law which must show that we have not yet embodied into it the rules of the common law of England. It is clear, from Foster, that, if in the course of an investigation, as to a trial for felony, he, as a judge, should discover treason, he would discharge the jury, and direct a new indictment for treason to be raised. Such proceeding is, however, impossible, açcording to the law of Scotland. No instance of it has been produced to your lordships-no authorities have been founded on to establish such a rule; and I am certainly not prepared to adopt it here. If I understand the principle, it goes to the length that a judge should discharge the jury, whether they were about to convict or acquit the panel. That we should adopt so extraordinary a rule, without authority, is out of all sight; and, at present, I can only say, that I entertain the greatest doubts of the doctrine of felony merging in treason, being applicable in this Court. I am happy, however, to think, that from the view I have taken of the act of parliament, and the oath in question, there are on the face of this statute, the most invincible grounds for holding that the indictment which has been preferred ought to be remitted to a jury, and that we are, in fact, left no discretion by the legislature itself. The clause upon which this part of the case is rested, I need not again read; but I think it necessary just to advert to one circumstance which was strongly pressed, and seems to have had great effect upon the opinion of my brother, lord Gillies. I refer to the course of procedure which parliament is supposed to adopt, when it makes any deviation from former statutes, as is supposed to have happened in this case. The statute alluded to, was the 39th and 40th of the king. Mr. Grant, after referring to the statute 9 Geo. 1st, goes on to state, that it was not thought, that by this act, the shooting at the king could be prosecuted as felony. He goes on to recite T certain parts of the 39th and 40th of the king, and then calls your attention to the express statement in the latter part of the act; "that none of the provisions contained in the several acts of the 7th year of king William 3rd, and the 7th of queen Anne, respectively, touching trials in cases of treason, &c. shall extend to any indictment of high treason, in compassing, &c. where the overt act shall be such as aforesaid; but, upon conviction, judgment shall nevertheless be given, and execution done, as in other cases of high treason, any law, statute, or usage to the contrary notwithstanding." This reference to this particular statute led me to look to the act itself; and, I think, when your lordships attend to its terms, you will find there the clearest and most invincible reasons for those particular clauses being inserted in it. What is the title of the act? "An act for regulating trials for high treason, and misprision of treason in certain cases." It then proceeds to enact what is stated in the panel's information, and concludes with providing, that nothing in the acts touching trials for high treason, &c. shall affect that statute, because there is a new mode of trial prescribed; and that wherever the charge is, that of compassing and imagining the death of the king (the most detestable of all treasons), and the overt act, the actually shooting at him, &c. it shall be lawful and competent to proceed to try those guilty of that offence as for murder, and on the same evidence as in trials for murder. Such is the object of the act of parliament. That, however, clearly, was not to do away the crime of high treason and make it a felony, but to regulate the mode in which such acts of high treason might be tried; and the enactment is, that they shall be tried according to the form of trials for murder, and upon the same kind of evidence. Seeing this was a new regulation for the trial of what was actually high treason, was it not necessary, having made this new provision, to declare, that nothing contained in the two former statutes, with regard to trials for high treason, should be construed to extend to this act of parliament? This was the only course which could be followed, when a new regulation was to be made for the highest species of high treason. The whole weight and effect of this authority, therefore, is done way, upon looking to the act itself and its true object, which was to make a new system of trial for certain acts of treason. Such being the true object of the statute 39th and 40th of the king, it was necessary to subjoin that part of the clause which has been founded on, as so decisive in this case. There is another view that may be taken of this act which appears to me to afford an unanswerable reply to the statement made on the part of the panel, as to its being absurd and incredible to suppose that the legislature, in passing the statute 52nd of the king, could have contemplated the possibility of declaring that to be a capital felony which amounts to high treason. That act, 39th and 40th of the king, was passed, in order to regulate, as I have just said, the trial of the highest degree of treason which it is possible for a subject to commit. It enacts, that where the overt act shall be even theactual assassination of the king, the trial shall nevertheless proceed in the same manner, in every respect, and upon the like evidence, as in trials for murder. The act then inserts the clause founded on by Mr. Grant, and concludes with declaring, "Judgment shall, nevertheless, be given, and execution done, as in other cases of high treason, any law, statute, or usage, to the contrary notwithstanding." What, then, has the legisla ture here done? It has declared, that, in reference to this, the highest and most aggravated species of treason, all the privileges of treasontrial shall for ever be taken from the subject, and that he shall not have the usual benefit attending trial for treason. Where the overt act charged is the assassination of the king, the accused may be tried as for a common murder, and be convicted upon the same evidence as in a trial for murder. Here is a declaration of the legislature in regard to the highest species of treason; and yet it was pressed upon your lordships, as the most incredible and absurd of all propositions, that in reference to other treasons, as well as to this, the legislature should ever have intended to declare, that certain oaths, purporting or intending to bind to commit treason, should be declared a capital felony and liable to punishment as such; and that there would be the utmost danger to the subjects of this country, and to the person of the king himself, by the adoption of any such construction as is here contended for on the part of the prosecutor. This very act, founded upon by the panel, affords, however, a satisfactory proof, that, whenever the legislature thinks it necessary to to make an alteration of the law as to treason, it does so without hesitation, if it thinks such alteration is for the benefit of the public at large; and we see that it accordingly provides, not only that the cases of treasonable oaths and prospective treasons, but of overt acts of the highest kind of treason themselves, may be tried as capital felonies. But the clause in the 52nd of the king leaves no doubt as to the conclusion we ought to draw. Admitting the correctness of Mr. Grant's statement as to felony merging in treason, I say there is an authority before your lordships to which we must bend, and as to which we have no discretion. It is said to be an ambiguous clause, but we are bound to give a meaning to it: and I think it has declared expressly, that a fact, or an offence, which may be charged in violation of this act of parliament, may be charged as an act of high treason; under this qualification, however, that the accused has not been brought to trial before for the lesser offence. I cannot hesitate, or doubt, that the English lawyers who drew this act of parliament, must have had in view the possibility of oaths being administered, which, in certain circumstances, might amount to high treason; for they must have had before them the statute 36th of the king, as well as that of Edward 3rd. Having submitted to your lordships those observations, at perhaps too great a length (but in justice to the panel at the bar, to the law of the country, and in discharge of my duty, I wished to deliver my opinion fully and explicitly), I have no difficulty in saying, that, upon attending to every thing that has been urged with so much ability for the panel, I have no alternative but to find this indictment relevant, and remit it to an assize. There will, no doubt, remain an important and sacred duty to the jury to perform, and which they will discharge, I have no doubt, as uprightly and carefully as we have endeavoured to perform ours. They will have to take the whole case into consideration, and make up their minds upon the oath, as the Court has done, and will have to say whether the panel, if concerned in administering it, is guilty of the crime laid to his charge. It is possible the jury may differ from us as to the import of the oath, but I feel that as a difficulty of no magnitude in the case. There are many cases where we are bound to give our opinions to juries on the subjects upon which they have to return verdicts; and I should be the last man to wish that they should feel themselves in the least degree fettered in their judgment by our opinions. It is my duty, after stating the facts of a case, to explain my view of the law, and frequently to pronounce my opinion as to the import of the facts, after they are disclosed in evidence. In a late trial for sedition, I was called upon to state that there was sedition upon the face of the speech, in that case; but I, at the same time, told the jury that they were to make up their minds upon that point, and decide for themselves. Suppose the jury had found for the panel in that case, should I have felt any uneasiness? Being confident that I had done my own duty, I should have given them credit for uprightness and integrity in the discharge of theirs. Having performed my duty, to the best of my abilities, I care nothing, in any case, for the consequences. "The Lord Justice Clerk, and Lords Commissioners of Justiciary, having considered the criminal indictment raised and pursued at the instance of his majesty's advocate, for his majesty's interest, against Andrew McKinley, panel, with the informations given in for the prosecutor and panel in terms of the order of Court, dated the 23rd day of June last, and before recorded, and the supplementary information given in for the said Andrew M'Kinley, also before recorded; they repel the objections stated to the relevancy of the indictment: find the indictment selevant to infer the pains of law specified Lord Advocate. I am entitled to have a list of their witnesses the day before the trial. Trusting, however, to receiving this list and the defences (which have not yet been lodged) in the course of the evening; and to there being no discussion on any of these preliminary points in the morning, I should still beg leave to suggest that your lordships should not meet later than nine o'clock. Lord Justice Clerk.-Gentlemen of the jury, I have to repeat that the Court regrets extremely this case has been productive of so fault of the Court; and, I trust, you will not much trouble to you. This has been from no grudge giving yourselves a little further trouble in a case of such importance to the panel and to the country. "The Lord Justice Clerk, and Lords Comm'ssioners of Justiciary, continue the diet against the panel, and whole other diets of Court till to morrow morning, at nine o'clock, in this place; and ordain all concerned then to attend, under the pains of law; and the panel, in the mean time, to be carried back to the castle of Edinburgh." HIGH COURT OF JUSTICIARY. Rt. Hon. David Boyle, Lord Justice Clerk. |