« PreviousContinue »
[The Counsel for the panel objected to before you last year, where a carrier was tried
the questions now put, and the witness for theit, the description of some of the stolen was withdrawn.]
goods was in general words, “cotton twist, and Lord Advocate.—The indictment charges the other goods;" and you were all clearly of oath to have been administered at a secret opinion, that the description was not sufficiently meeting held at the house of W. Robertson, particular and specific. innkeeper and stablerin Gallowgate of Glasgow, Lord Advocate.—My learned friends are misor elsewhere at Glasgow, or in the immediate taken in supposing that the general description vicinity thereof. The question I wish to put, given in the indictment applies merely to the is, whether or no, at any other place in Glas- persons to whom the oath was administered. gow, within the three months, the witness heard it applies also to the places; and your lordany oath administered, at which the panel was ships have found it, by your interlocutor of represent?
levancy, to be sufficiently specific. The quesMr. Jeffrey.-We must object to that question is, therefore, whether or not, your lordtion. If there be any use at all in the specifi- ships having found this part of the indictment cation, without which the relevancy of the libel relevant, the prosecutor is to be parrowed, in could not be sustained, it must be incompetent the course of his investigation of the facts so for the prosecutor, after the opportunity he has found to be relevantly set forth, by the objechad for deliberation upon this indictment, to
lion in question. put such general questions to the witness. In
The dates when the oath is alleged to have This case, particularly, where there is a specifi- been administered are given specifically in the cation of only one meeting, at which this wit- indictment, as well as generally, within two ness is stated to have been present (for he is months. Your lordships have already allowed not mentioned to have been present at Hunter's questions to be put as to meetings any day in or Leggat's, or at any other meeting), such a the months of January or February, without general question cannot be allowed. You adhering merely to the precise days in the have that meeting specified in the indictment: minute and specific statement of the previous and I submit, that, especially after the prose- clause of the indictment. Yet it is obvious, cutor has brought out that an oath was adminis- that the same objection now stated to putting tered (but which is not very available to him), a question as to meetings in other places than he cannot take an opportunity of putting a
those specially mentioned, but referring to general question to the witness, whether an
meetings at Glasgow or the vicinity thereof, oath was administered in Glasgow, or the
as stated in the indictment might have vicinity, at any time within the limitation of been urged with the same propriety to these months (for, as to Robertson's, the pro- referring generally to the dates condescended
a question general as to the time, and not secutor has not confined himself there).
This indictment is divided into five heads, on. Now, what I now wish to prove, relates charging, as so many acts, the administration
to a meeting at some place in Glasgow or its of the oath, at fixed dates and places, to a
vicinity. Your lordships have found, that the number of persons mentioned; and the advan- charge in the indictment laid in those terms, tage of specification would be lost, if a prac
and thus generally, is relevant; and you have tice were to be introduced, that after naming actually allowed me to put questions equally a day and place in his charge, the prosecutor general as the present, with respect to time. might, in his examination, go through many
The same principle, I submit, ought to prevent months and different places. The general ex- my being narrowed in my inquiries as to place. pressions added in an indictment are intended This, as I understand it, is the simple statefor any casual slip or inaccuracy in what must
ment of the case, and, I submit, your lordships be articulately stated, and not to give the pro- would not have remitted the indictment to an secutor such a range of inquiry as he now
assize without erasing that general statement wishes. To what is particularly charged and from the indictment, if Mr. Jeffrey's present specified alone he must confine himself. Were objection appeared to you to have been wellit to be otherwise, we might be mocked with founded. the appearance of a form of specification in an Lord Justice Clerk.—We certainly could not indictment, but we should be deprived of any repel this objection without the most deliberate benefit from it; and we might be condemned, consideration. I took it for granted, there in other hands, to suffer the perversion of all were four several occasions upon which, it is the forms considered indispensable to the alleged, the oath was administered ; and, safety of the subject. If this were to be per- although the general words in the indictment, mitted, any suspected places might be men- founded upon by the lord advocate, did not, tioned; and different places might be inten- among the multiplicity of points for considerationally put in to oppress prisoners, by the tion, strike me before, now that the objection most intolerable latitude of investigation. I to them is pointed out, I have to state, that I submit, therefore, that the question proposed think it is my duty to confine this examination hy the lord advocate cannot be put to the to the specific charges in the indictment.
Lord Hermand. I was a little misled at Mr. Grunt.--in a case in which I attended first, particularly as to the first charge. It says,
" At a secret meeting, held at the house of a different case. The charge is, that the panel Hugh Dickson, then weaver in Abercromby- at the bar was guilty of administering the oath street, in Calton of Glasgow, or elsewhere at specified in the indictment. It is true, by the Glasgow, or in the immediate vieinity thereof, other clause of the act of parliament, it is said, you, the said Andrew M'Kinley, did," &c. “That persons aiding and assisting at the ad But, upon looking at it again, and comparing ministering of any such oath or engagement, it with the statement of the next charge, it as aforesaid, and persons causing any such appears only a broad deseription of the habi- oath or engagement to be administered, though tation of the man. The words apply to a de- not present at the administering thereof, shall scription of the residence of Dickson, as the be deemed principal offenders, and tried as next to a description of that of Leggat. The such; and, on conviction thereof by due course lord advocate questioned as to what happened of law, shall be adjudged guilty of felony, and at Robertson's. Under this indictment, he is shall suffer death as felons, without benefit of entitled thus generally to establish the facts clergy, although the person or persons who acwhich have been found relevant.
tually administered such oath or engagement Lords Gillies, Pitmilly, and Reston, intimated it is necessary, that the fact to which this
shall not have been tried or convicted." But their agreement in opinion with the lord justice clause may apply should be specifically stated clerk.
in the indictment, to give to the lord advocate [The witness was recalled.]
the benefit of that special clause. Now, there Lord Advocate.—Do you know Hugh Dick- is no specific allegation in any one of these son ?-Yes, I think so.
charges, that the panel had caused the oath Do you know he has a house in Glasgow ? alleged to be administered. -No; I do not know that.
Mr. Drummond.—That is clearly charged. You never were in his house?-No. In the house of William Leggat ?—Not to
Mr. Clerk.— It is charged : you did so and my knowledge.
so, or did so and so. If there is an allegation Do you know Neill Munn ?-I have seen his that he did cause the oath to be administered, sign, but was never in his house.
what is it alleged that he particularly did at And, in none of the three months mention that house, and upon that occasion ? ed, you ever heard, in Robertson's house, any Lord Hermand.- That he administered the other oath?—There was never any other oath oath, or caused it to be administered, is in that house, either on the Saturday or Tues- | libelled. But the whole act of parliament is day.
libelled on; and the fourth clause is, (Here Court.- In that house, upon any other day his lordship read the clause above quoted by in that month, were you present when an oath
Mr. Jeffrey.] was administered ?-- Yes; but I do not re Lord Justice Clerk. There is no doubt of it member the day.
-look to the words of the act of parliament. In that month of February !--I think it was. The very words are repeated in this charge as
to Robertson's. Mr, Jeffrey.- This does not seem applicable to the particular charge against the panel. Mr. Clerk. But then it is not said in that
Lord Advocate.—There is no necessity for charge, that when he caused the oath to be adproving that M'Kinley was present, in order ministered he was at any other place. Now, to bring the charge home to him. He might well to allege the panel caused the oath to be ad
please attend. It may be true, that it is very be au accessary, though he was absent; and this is charged against him in the indictment. ministered; but then it is necessary to allege The witness says, there was an oath adminis- that at that place he caused the oath charged
where. And the allegation in the libel is, tered in Robertson's at a particular period ; and I presume we are entitled to have this to be administered, else no place whatever is fact investigated, as we may be able to prove
assigned. the panel's connection with the administration Lord Hermand. The allegation is, that the of this oath, and to establish against him the oath was administered in that house. “Further, charge in the indictment. Perhaps I may not you the said Andrew M‘Kinley did, upon the have fully comprehended the force or extent 5th day of February, 1817, or on one or other of my friend Mr. Jeffrey's objection; and be- of the days of that month, or of January imfore my friend the solicitor-general or myself mediately preceding, at a secret meeting held submit any observations upon it, I hope he at the house of John Robertson, then innwill state it more fully. I have given what ap- keeper and stabler in Gallowgate of Glasgow, pears to me a sufficient answer to the objec- or elsewhere at Glasgow, or in the immediate tion, as already brought forward.
vicinity thereof, wickedly, maliciously, and [The witness was withdrawn.]
feloniously administer, or cause to be admi
nistered, or did aid and assist at the adminisMr. Jeffrey.-My objection is two-fold. In tering an oath or engagement.” He may have the case of accession 10 crimes committed, the caused the administering of the oath in that first thiog to be proved is the crime. This is house, though he never entered it in his life.
Mr. Clerk.--I have one remark to make on, he be allowed to prove any thing about an the clause in the act of parliament. “ And oath, without proving the panel's connection persons causing any such oath or engagement with that oath? If the fact, as to an oath to be administered, though not present at the having been administered, be proved, without administering thereof, shall be deemed prin- | the prisoner's connection with it, would any cipal offenders, and shall be tried as such." | thing be established against the prisoner? To It is not libelled that the panel caused the oath prove the administration of an oath, or the to be administered, though he was not present. terms of any oath, can here be of no avail, On the contrary, it is alleged he was present, unless my client's connection with it be estaand so caused the administering of the oath in blished. Without this, there is no evidence that place. Neither time nor place is assigned against the prisoner. A case might happen, for the commission of the crime, unless this that goods were carried off by one man, and time and this place are assigned.
found in the custody of another, and to such a Mr. Solicitor General.-I am little disposed
case the principle of the solicitor-general might to trouble you, by prolonging this debate; apply. But such a case is of a different kind but, with your lord ships' permission, I beg tó from the present;-—and if it is hinted that, address a few words to you. It is necessary layson but the statement of an oath, and no
perhaps, you will get nothing from Mr. Finthat the precise nature of the objection now made, should be recalled to mind, before the afterwards get any thing to connect the pri
thing about the prisoner,-how could you answer to it can be understood. The form of the objection seems to be this: is the soner and the oath ? At any rate, what dispublic prosecutor entitled to prove the import
advantage does the public prosecutor suffer, of the oath, before proving the presence of the by being called upon first to prove the prepanel at the administration of it? The lord sence of the panel?' while I have a material advocate asks of the witness what is the import be prejudiced by any proof as to an oath ex
interest that tbe minds of the jury should not of the oath which was taken or administered by the witness, or in the presence of the traneous to the case of the prisoner. Are they witness, and the objection is, he is not entitled entitled to proceed so as to induce an impresto put this question, till the presence of the able nature, when, if they had begun at the
sion against the prisoner of the most unfavourpanel on that occasion be proved. I submit, ihat this is no objection at all, because it is end, to which they must go, and inquired as competent for the public prosecutor to prove,
to the relation of the prisoner with the facts, by one set of witnesses, that the oath was ad- they could have found' no proof of any guilt ministered at the time spoken to; and it is attachable to him? competent for him to prove, by other witnesses,
Lord Gillies.—This is a question of importthat the panel was present. I know of no
ance and difficulty. One objection bas been rule, in the law of evidence, which requires made, and have given rise to two questions.
stated, and two different answers have been that the nature of the oath, and the presence The answer made by the lord advocate is, that of the panel, should be established at the same moment, or by the same witnesses. Much M'Kinley may not have been present when the
the act of parliament entitles him, although light has already been lost by the real or pre- oath was administered, to prove that he caused tended failure of memory in witnesses. If the rule which the other side of the bar contend its being administered. The solicitor-general for were adopted, it would produce much in- again says, I may prove by another witness convenience, and a total impossibility of prov- that the oath was administered by the agency ing a crime in any instance.' In every criminal of the panel. We are bound to consider both charge, the public prosecutor may prove the
questions. corpus delicti, before proving the connection of
The lord advocate says, he is entitled to the panel with it; and he neither can be, nor prove that the panel caused the oath to be adought to be controlled in the course and order ministered, although he was not present when of adducing the proof and conducting the case. it was administered. That is the first and In this part of his duty, he acts upon informa- most important question. I think the lord tion, of which the Court and the prisoner indictment that the panel was not present at
advocate is not entitled to prove under this neither can nor ought to be in possession. the administering, but caused the administerThe objection by the panel rests on a principle ing of the oath here charged. You must have leading directly to absurdity, and creating im- the time when-the place where-(though practicability in business.
there may be some latitude as to both)—You Mr. Jeffrey.- I submit that this position is must have the species facti, the quo modo set untenable. The solicitor-general says, it is forth. The fact of causing, when absent, is competent to prove the administration of the different from causing when present. The oath and its tenor, by one set of witnesses, and fact that the panel caused the oath to be adthen by another set, to prove that the panel ministered in his absence, is not set forth in was present at or connected with the adminis- the indictment; and I must appeal to my own tration of the oath. If he has witnesses to recollection, and to that of every one who prove that the panel was present, should not hears me, whether it entered into your conhe first prove that? Upon what principle can templation that the lord advocate meant to
charge the causing without the panel's being I have some difficulty, from what the sopresent at the administering.
licitor general stated; for, it is possible this I am not talking of the major proposition- man may have caused that oath to be admimisbut, what I find defective is, that this species tered, and perhaps in a room among a crowd, facti, now stated by the prosecutor, is set and a particular witness may not have known forth in no part of the minor proposition, and the panel had been the cause of the administerI was led to conclude, that all that the lord ing. I think it is not incompetent to the public advocate meant to prove was, the administering prosecutor to prove as he was doing. 'If he of the oath, the panel being present at the fail, it will not go against the prisoner. time. If he meant to prove a species facti of a
Lord Reston concurred. different kind, that the panel, though not present, caused the administering, that species Lord Justice Clerk.—I agree, that though it facti should have been stated. And surely, is competent to charge the causing the oath to according to Mr. Hume's doctrine of specifi- be administered, as well as the administering cation, the fact whether the panel was present of the oath, yet the same precision is required or not at the administering of the oath should as to the species facti charged, and that time, have been stated. Then, is the lord advocate place, and manner, should be particularly entitled to bring an indictment without saying specified. But I own I am equally clear, that whether the panel was present at the admi- there is nothing that can prevent the public nistering, or a hundred miles off? His lord- prosecutor from proving the nature of the oath, ship's plea is competent, under the major, but and the place and time when it was adminisnot under the minor proposition. If you tered, and afterwards the panel's presence. adopted this view of the lord advocate's, you I am, therefore, for allowing the question to be would proceed on a species facti, taking for put. granted it is not necessary to state the quo modo of the species facti alleged to be committed.
[The witness was brought back.] As to the question raised by the solicitor Lord Advocate.—What were the terms of the general's answer, it is of a different nature ; oath put that other night at Robertson's, not the and I do not know by what principle of law oath of secrecy ?—It was the prisoner who adthe public prosecutor can be hindered from ministered that oath. proving the fact, and then the presence of the What were the words ?- It was the usual panel. But, I submit to the public prosecutor, one. I cannot repeat it. It was about that it is an inconvenient mode of proof. I do reform. not mean to sustain the objection upon this Do you remember how it began?_“In the ground; but, it can answer no purpose to awful presence of God.” prove, that any obligation was then adminis Was there any thing about swearing ?tered or taken; for it cannot, and ought not Yes. to affect the prisoner if he was not present. What were the words ?-I saw an oath, after And the only effect would be, to create a pre- I was put in prison, in a speech in parliament, judice in the minds of the jury.
which was the same as that then administered.
You said the oath began, “In the awful Lord Pitmilly.—My difficulty arises from presence of God.". Was there any thing about what has been stated by the solicitor-general. ihe word “swear ?"-If I had not seen the oath The crime charged is, that the panel admi- in a newspaper, I could not have remembered nistered the oath, or caused it to be adminis- a word of it. tered. It will be sufficient to prove that he administered the oath, or caused it to be ad
Mr. Clerk made some inaudible observa
tion. ministered—but then we must attend to the manner in which, the time when, the place Lord Advocate. I cannot lose the benefit where, he had done so, and I agree as to what of this witness's testimony, and I have no wish has been said by lord Gillies and Mr. Clerk, to put any questions but with a view to get that such particulars require to be specified. the truth from him of what he may know It is said in the indictment, that the panel did, actually to have taken place. I should be “ upon the 5th day of February, 1817, or on happy to prevent those interruptions from one or other of the days of that month, or of the other side of the bar if your lordships would January immediately preceding, at a secret take the examination of this witness into your meeting held at the house of John Robertson,' own hands. &c. Whether he administered the oath, or caused it to be administered, it must be upon tions to put after his last answer.
Mr. Grant.-We can have no further questhe 5th of February, or some day of that month, and at that secret meeting. It will Lord Justice Clerk.—Till you saw the oath not do, that he did it out of that meeting. I in a newspaper, you could not have repeated think we are bound strictly to fasten the pro- any part of it? - Nothing but the beginning. secutor down, both to the time and place Before I went out, you asked me whether there charged in the indictment. The proof must was an 'administration of any other oath in be as to February or January, and the panel must have been present.
# Vide 35 Hans, Parl. Deb. 729.
these housés. I recollect, after I read out of, that certainly would be an evil. But obo the oath in Robertson's, John Buchanan came serve how the fact stands. The witness adin and I read it to him—the secret committee mits, that, in point of fact, if the trial had prooath.
ceeded before he read the newspaper, or if he Lord Hermand.-Could you, without the
had never seen it, his memory would have been
an entire blank as to the terms of the oath ; and newspaper, have recollected the latter part of the question is, Can evidence from such a the oath -No.
source be received in a court of justice? [Witness withdrawn.]
What is it that a witness must speak to ?
The facts to which he was present; and if he Lord Advocate.-Although the witness read the oath in a newspaper, he did not swear the states, that, as to these facts, he has no recolreading in the newspaper gave him any new which he has derived any recollection of the
lection of himself, and that the source from impressions of it. The circumstance merely circumstances, is a newspaper, this is no evibrought it to his recollection. He has expressly dence at all. said the oath he then read was the same he
I distinguish this case from one where a heard administered in the meeting. Now, I beg leave to ask, what is there to prevent my person inay say, I had forgotten every thing laying a copy of the oath even now before him, mediately upon reading it, my memory was
but for a paper that I wrote myself, and, imand asking the witness whether that was the refreshed, and I could now positively swear to oath which was administered or no? I am not the circumstances. But only see the difference aware of any rule of law which should prevent here, and see the infinite incalculable danger my doing so, and it would in many cases be attended with the total loss of evidence if such to which a person might be exposed, para form of proceeding was held to be illegal. the case of this panel, on a trial upon charges
ticularly in a question with the Crown, as in Few persons have the power of repeating from of a crime against the government if a witness memory verbatim what they have read, although
were to be examined whose memory is gone, they can recollect it when laid before them, or and who is totally unable to give testimony on read over to them; and it would be to render the subject but from the accident of seeing an the statute under which this indictment is laid
unauthentic account in a newspaper. Such utterly inoperative, if it were held that it is in- witnesses will be subject to the delusions to competent to do more than ask the witnesses which the human mind is liable, from anything to repeat the ipsissima verba of the illegal oath bearing a resemblance to former objects of its charged to have been administered. Nothing, knowledge, and will think that they have seen in effect, more happened in this case. Indeed, before what only bears a resemblance to what I apprehend not so much has been done, when they had formerly known. Every one familiar the fact is merely that the witness saw acci- with dreams must know, that in them the vividdentally in a newspaper the oath which he had
ness of conception sometimes leaves an imbeard before, and which brought, he depones, pression almost of reality on the mind: A its terms to his recollection. In fact, the queso witness, who has altogether forgotten the terms tion is not how he came to remember the oath, of an oath which he had once read, and afterbut does he now recollect it; and, I submit, it is wards reads in a newspaper an oath which apof no consequence how that recollection was obtained (excepting always any undue pro- lieve it to be the same oath ; but if he be exa
pears of the same general description, will beceeding on the part of the public prosecutor, mined on the subject, all he can swear to will which is not here alleged to have taken place), be the tenor and recollection of what he read if it is clear and distinct. This is a question of great importance in witness swears he could not have recollected
in the newspaper. Even at this moment the deed; and if your lordships sustain this objec, anything of the nature or terms of the oath but tion, founded upon the witness having read for the newspaper. A witness whose memory the oath in a newspaper, it will go far to im- is revived by accident, may say, I now repede the course of justice. The same must in member. But this witness says he could not every case be sustained where the witness has have recollected but for the newspaper. He read the narrative of the previous proceedings, recals the oath to his imagination rather than before a magistrate, in the public prints, and his memory. If he says he has no recollection an end would therefore be put to convictions but from the newspaper, he has no recollection in the most atrocious cases, which are generally but of the newspaper, a source of information those on which the most public investigations which must exclude his evidence from being take place.
received. I submit, that, in a court of civil Mr. Jeffrey.-Nothing can be more fair or jurisdiction, evidence of this kind could not be candid than the statement of the lord advocate, received ; and to allow evidence of this quesand I agree with him in an observation which tionable sort to be taken in this court, and in he made, but it leads to a decision in my such a case as the present, would be an example favour. If the lord advocate had been correct of the most dangerous nature. in stating, that, in consequence of an innocent accident, the Crown was to be deprived of any Lord Advocate.--If the recollection of the thing they would otherwise have had the benefit witness depends altogether upon what he read