[The Counsel for the panel objected to the questions now put, and the witness was withdrawn.]

before you last year, where a carrier was tried for theft, the description of some of the stolen goods was in general words, "cotton twist, and other goods;" and you were all clearly of opinion, that the description was not sufficiently particular and specific.

Lord Advocate.-My learned friends are mistaken in supposing that the general description given in the indictment applies merely to the persons to whom the oath was administered. It applies also to the places; and your lordships have found it, by your interlocutor of relevancy, to be sufficiently specific. The ques

ships having found this part of the indictment relevant, the prosecutor is to be narrowed, in the course of his investigation of the facts so found to be relevantly set forth, by the objection in question.

Lord Advocate.-The indictment charges the oath to have been administered at a secret meeting held at the house of W. Robertson, innkeeper and stabler in Gallowgate of Glasgow, or elsewhere at Glasgow, or in the immediate vicinity thereof. The question I wish to put, is, whether or no, at any other place in Glasgow, within the three months, the witness heard any oath administered, at which the panel was present? Mr. Jeffrey. We must object to that question is, therefore, whether or not, your lordtion. If there be any use at all in the specification, without which the relevancy of the libel could not be sustained, it must be incompetent for the prosecutor, after the opportunity he has had for deliberation upon this indictment, to 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 administered (but which is not very available to him), he cannot take an opportunity of putting a general question to the witness, whether an oath was administered in Glasgow, or the vicinity, at any time within the limitation of these months (for, as to Robertson's, the prosecutor has not confined himself there).

that the same objection now stated to putting a question as to meetings in other places than those specially mentioned, but referring to meetings at Glasgow or the vicinity thereof, as stated in the indictment might have been urged with the same propriety to a question general as to the time, and not referring generally to the dates condescended on. Now, what I now wish to prove, relates to a meeting at some place in Glasgow or its vicinity. Your lordships have found, that the charge in the indictment laid in those terms, and thus generally, is relevant; and you have actually allowed me to put questions equally general as the present, with respect to time. The same principle, I submit, ought to prevent my being narrowed in my inquiries as to place. This, as I understand it, is the simple statement of the case, and, I submit, your lordships would not have remitted the indictment to an

This indictment is divided into five heads, charging, as so many acts, the administration of the oath, at fixed dates and places, to a number of persons mentioned; and the advantage of specification would be lost, if a practice were to be introduced, that after naming a day and place in his charge, the prosecutor might, in his examination, go through many months and different places. The general expressions added in an indictment are intended for any casual slip or inaccuracy in what must be articulately stated, and not to give the pro-assize without erasing that general statement secutor such a range of inquiry as he now wishes. To what is particularly charged and specified alone he must confine himself. Were it to be otherwise, we might be mocked with the appearance of a form of specification in an indictment, but we should be deprived of any benefit from it; and we might be condemned, in other hands, to suffer the perversion of all the forms considered indispensable to the safety of the subject. If this were to be permitted, any suspected places might be mentioned; and different places might be intentionally put in to oppress prisoners, by the most intolerable latitude of investigation. I submit, therefore, that the question proposed by the lord advocate cannot be put to the

witness.

from the indictment, if Mr. Jeffrey's present objection appeared to you to have been wellfounded.

Lord Justice Clerk.-We certainly could not repel this objection without the most deliberate consideration. I took it for granted, there were four several occasions upon which, it is alleged, the oath was administered; and, although the general words in the indictment, founded upon by the lord advocate, did not, among the multiplicity of points for consideration, strike me before, now that the objection to them is pointed out, I have to state, that I think it is my duty to confine this examination 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,

charge the causing without the panel's being present at the administering.

I have some difficulty, from what the solicitor general stated; for, it is possible this man may have caused that oath to be administered, and perhaps in a room among a crowd, and a particular witness may not have known the panel had been the cause of the administering. I think it is not incompetent to the public prosecutor to prove as he was doing. If he fail, it will not go against the prisoner. Lord Reston concurred.

I am not talking of the major propositionbut, what I find defective is, that this species facti, now stated by the prosecutor, is set forth in no part of the minor proposition, and I was led to conclude, that all that the lord advocate meant to prove was, the administering of the oath, the panel being present at the time. If he meant to prove a species facti of a 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 not under the minor proposition. If you adopted this view of the lord advocate's, you would proceed on a species facti, taking for granted it is not necessary to state the quo modo of the species facti alleged to be committed.

As to the question raised by the solicitorgeneral's answer, it is of a different nature; and I do not know by what principle of law the public prosecutor can be hindered from proving the fact, and then the presence of the panel. But, I submit to the public prosecutor, that it is an inconvenient mode of proof. I do not mean to sustain the objection upon this ground; but, it can answer no purpose to prove, that any obligation was then administered or taken; for it cannot, and ought not to affect the prisoner if he was not present. And the only effect would be, to create a prejudice in the minds of the jury.

Lord Pitmilly. My difficulty arises from what has been stated by the solicitor-general. The crime charged is, that the panel administered the oath, or caused it to be administered. It will be sufficient to prove that he administered the oath, or caused it to be administered-but then we must attend to the manner in which, the time when, the place where, he had done so, and I agree as to what has been said by lord Gillies and Mr. Clerk, that such particulars require to be specified. It is said in the indictment, that the panel did, "upon the 5th day of February, 1817, or on one or other of the days of that month, or of January immediately preceding, at a secret meeting held at the house of John Robertson," &c. Whether he administered the oath, or caused it to be administered, it must be upon the 5th of February, or some day of that month, and at that secret meeting. It will not do, that he did it out of that meeting. I think we are bound strictly to fasten the prosecutor down, both to the time and place charged in the indictment. The proof must be as to February or January, and the panel must have been present.

and the place and time when it was administered, and afterwards the panel's presence. I am, therefore, for allowing the question to be put.

[The witness was brought back.]

Lord Advocate.-What were the terms of the oath put that other night at Robertson's, not the oath of secrecy ?-It was the prisoner who administered that oath.

What were the words ?-It was the usual
I cannot repeat it. It was about

one.

reform.

Do you remember how it began ?—"In the awful presence of God."

Was there any thing about swearing ?Yes.

What were the words?—I saw an oath, after I was put in prison, in a speech in parliament, which was the same as that then administered.

You said the oath began, "In the awful presence of God." Was there any thing about the word "swear ?"-If I had not seen the oath in a newspaper, I could not have remembered a word of it.

Mr. Clerk made some inaudible observation.

Lord Advocate.-I cannot lose the benefit of this witness's testimony, and I have no wish to put any questions but with a view to get the truth from him of what he may know actually to have taken place. I should be happy to prevent those interruptions from the other side of the bar if your lordships would take the examination of this witness into your own hands.

Mr. Grant. We can have no further questions to put after his last answer.

Lord Justice Clerk.-Till you saw the oath in a newspaper, you could not have repeated any part of it?-Nothing but the beginning. Before I went out, you asked me whether there was an administration of any other oath in

* Vide 35 Hans. Parl. Deb. 729.

these houses. I recollect, after I read out the oath in Robertson's, John Buchanan came in and I read it to him-the secret committee oath.

Lord Hermand.-Could you, without the newspaper, have recollected the latter part of the oath ?-No.

[Witness withdrawn.]

Lord Advocate.-Although the witness read the oath in a newspaper, he did not swear the reading in the newspaper gave him any new impressions of it. The circumstance merely brought it to his recollection. He has expressly

said the oath he then read was the same he heard administered in the meeting. Now, I beg leave to ask, what is there to prevent my laying a copy of the oath even now before him, and asking the witness whether that was the oath which was administered or no? I am not aware of any rule of law which should prevent my doing so, and it would in many cases be attended with the total loss of evidence if such a form of proceeding was held to be illegal. Few persons have the power of repeating from memory verbatim what they have read, although they can recollect it when laid before them, or read over to them; and it would be to render

of, that certainly would be an evil. But ob serve how the fact stands. The witness admits, that, in point of fact, if the trial had proceeded before he read the newspaper, or if he had never seen it, his memory would have been an entire blank as to the terms of the oath; and the question is, Can evidence from such a source be received in a court of justice?

What is it that a witness must speak to? The facts to which he was present; and if he states, that, as to these facts, he has no recollection of himself, and that the source from which he has derived any recollection of the circumstances, is a newspaper, this is no evidence at all.

I distinguish this case from one where a but for a paper that I wrote myself, and, imperson may say, I had forgotten every thing mediately upon reading it, my memory was refreshed, and I could now positively swear to the circumstances. But only see the difference here, and see the infinite incalculable danger to which a person might be exposed, parthe case of this panel, on a trial upon charges ticularly in a question with the Crown, as in of a crime against the government if a witness were to be examined whose memory is gone, and who is totally unable to give testimony on 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 to repeat the ipsissima verba of the illegal oath which the human mind is liable, from anything 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 imheard before, and which brought, he depones, pression almost of reality on the mind. A its terms to his recollection. In fact, the ques-witness, who has altogether forgotten the terms tion is not how he came to remember the oath, but does he now recollect it; and, I submit, it is of no consequence how that recollection was obtained (excepting always any undue proceeding on the part of the public prosecutor, which is not here alleged to have taken place),

if it is clear and distinct.

This is a question of great importance indeed; and if your lordships sustain this objection, founded upon the witness having read the oath in a newspaper, it will go far to impede the course of justice. The same must in every case be sustained where the witness has read the narrative of the previous proceedings, before a magistrate, in the public prints, and an end would therefore be put to convictions in the most atrocious cases, which are generally those on which the most public investigations take place.

of an oath which he had once read, and afterwards reads in a newspaper an oath which aplieve it to be the same oath; but if he be exapears of the same general description, will bemined on the subject, all he can swear to will be the tenor and recollection of what he read witness swears he could not have recollected in the newspaper. Even at this moment the anything of the nature or terms of the oath but for the newspaper. A witness whose memory is revived by accident, may say, I now remember. But this witness says he could not have recollected but for the newspaper. He recals the oath to his imagination rather than his memory. If he says he has no recollection but from the newspaper, he has no recollection but of the newspaper, a source of information which must exclude his evidence from being received. I submit, that, in a court of civil jurisdiction, evidence of this kind could not be received; and to allow evidence of this questionable sort to be taken in this court, and in such a case as the present, would be an example of the most dangerous nature.

Mr. Jeffrey.-Nothing can be more fair or candid than the statement of the lord advocate, and I agree with him in an observation which he made, but it leads to a decision in my favour. If the lord advocate had been correct 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