for the prisoner at the bar. The indictment, which your Lordships have just heard read, charges the prisoner with a capital offence, that of administering an oath purporting or intending to bind the takers to commit the crime of treason.

My lords, this is not a point of dittay recognized by the ancient and common law of Scotland; neither the nature of the offence itself, nor the manner in which it is to be charged, is pointed out by any precedents or authorities familiar to your Lordships. It is an offence recently introduced by a special statute; and, so far as I know, no trials have taken place hitherto upon that statute in Scotland, according to your forms.

It will be admitted, that this crime is of a nature peculiarly delicate. The life of the prisoner at the bar may depend on the construction to be put on words alone, without reference to overt acts by which they may receive a clear and unambiguous interpretation. To administer an oath without judicial authority is perhaps not a very commendable practice, and in a moral point of view it may sometimes be improper, as tending to lessen the obligation of an oath, when thus applied to frivolous or improper subjects, or on frivolous and improper occasions. But, my lords, at the same time, it is not in itself an illegal thing+ it is prohibited by no law; and I understand, and am well informed, that it is a common

Lord Coke says (3 Inst. 165)" Oaths that have no warrant by law, are rather nova tormenta quam sacramentu; and it is an high contempt to minister an oath without warrant of law, to be punished by fine and imprisonment." The court of King's Bench has often reprehended, and discouraged as much as possible, the taking of voluntary affidavits by justices of the peace, in extrajudic al matters. In the case of Bramah v. The Fire Insurance Company, Mich. T. 1800, in B. R. Lord Kenyon C. J. said "He did not know but that a magistrate subjects himself to a criminal information for taking a voluntary extrajudicial affidavit," 3 Chetwynd's Burn, 529.

"It is much to be questioned," says Mr. Justice Blackstone," how far any "magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion: since it is more than possible, that by such idle oaths a man may frequently in foro conscientia incur the guilt, and at the same time evade the temporal penalties, of perjury." 4 Comm. 137.

It must be regretted that the highly improper practice of administering what the learned commentator terms" idle oaths," should be still continued by any magistrates, notwithstanding the reprehensions contained in those books with which they are generally supposed to be acquainted.

See the preceding note, and the observations of Le Blanc J, in Eaton's case, antè, Vol, 10, p. 1609.

and daily practice. It is practised in many associations and fraternities; for example, in masonic meetings, when there is not the least intention on the part, either of the persons who administer, or of the persons who take the oaths, on the one part to impose, or on the other to undertake an unlawful obligation. To make a common practice of this nature the ground of a capital punishment, when the guilt or innocence of the act depends on the interpretation of the mere words used, may appear not perhaps altogether in unison with the mild and equitable spirit of British jurisprudence. Your lordships are well acquainted with the statute 1. Mary, chap. 1st, which swept away from the law that mass of constructive treasons by which it had been previously polluted-a statute held by the nation at the time it was enacted, as one of the greatest blessings ever conferred by the legislature, and still looked up to by their posterity with admiration and gratitude. Though constructive treason was thus abolished, yet the statute upon which the present indictment is founded tends to introduce a capital felony, which, though not punished as treason, is yet punished with death, the ultimum supplicium of the law.

This statute was no doubt passed at a time when bands of armed men were committing evey species of atrocity, when they were burning, robbing, and murdering, and in particular when they were compelling persons by force to swear oaths, unquestionably and clearly imposing an obligation to commit felonies.* In this state of things, a speedy and efficacious remedy was necessary; and no doubt this statute was passed with the best intentions, and may have been productive of the most salutary consequences. All this being allowed, yet considered as a standing rule, incorporated in the criminal law of Scotland, and applied to other occasions than those contemplated by the legislature, it was not perhaps penned with all the caution requisite, and may involve principles which it would not be very safe to admit permanently into our system of jurisprudence. But it is not your lordships province to judge of the merits of the enactment, and far less am I entitled to pronounce an opinion upon that subject. It inakes part of the statute law of Scotland, and that is enough. But although I am not entitled to inquire into the expediency of the law, it is my right, and it is my duty, to inquire in what manner the words of it shall be constru→ ed-in what manner, being part of the criminal law of Scotland, it shall be applied and accommodated to our form of judicial proceedings. And, after fully considering the subject in this more limited view, I trust I shall be able to satisfy your lordships that the libel in this case is not relevant, according to the principles of the criminal law of Scot

* See the debate in the House of Commons on the motion for the introduction of this statute 23 Hans. Parl. Deb. 31.

commit treason or felony. An oath not containing that obligation, however nefarious and detestable in itself, may be the ground of a different prosecution, but it cannot be the ground of the charge now before your lordships. All this is too clear to require any illustration; it must be manifest to every one who reads the words of the statute.

land. This is a subject of the utmost importance, and to which the attention of your lordships is now most earnestly requested. In this indictment the major proposition sets forth, that," Albeit, by an act passed in the fifty-second year of his present Majesty's reign intituled, 'An act to render more effectual an act passed in the thirty-seventh year of his present Majesty, for preventing the administering or taking unlawful oaths,' it is, inter alia, enacted, That every person who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at the administering of any oath or engagement, purporting or intending to bind the person taking the same to commit any treason or murder, or any felony punishable by law with death, shall, on conviction thereof by due course of law, be adjudged guilty of felony, and suffer death as a felon, without benefit of clergy.' There are then other clauses of the statute recited in this major proposition.

1 have no objections to make to the major proposition of this indictment. It is correct in reciting the clause of the act constituting the crime which is now to be tried; and, therefore, in considering this proposition, the only thing to be attended to is, the nature of the crime which is here stated to be punishable with death. It is the administering an oath," purporting or intending to bind the person taking the same to commit treason or murder, or any felony punishable with death."

Upon reading this clause, your Lordships will be satisfied, that it is not sufficient to constitute this crime that an oath was administered-it is not sufficient that the person administering that oath had criminal intentions at the time or that he was engaged at the time in criminal practices-it is not enough that the person who takes the oath intends to commit, or is in the course of committing criminal practices. All that is insufficient to constitute the crime here set forth. It is necessary, it is the essence of the crime,-that the oath administered shall itself purport or intend to bind the taker to commit the crimes specified in the statute. It is quite possible that two persons may be actually engaged in committing the crime of treason, and while thus occupied, that one of them, with a view of practising a deceit on those who were present, and of ensnaring them into the traitorous conspiracy, should administer an oath to his associate, under the pretence of binding him to commit the treason. But if that oath did not in fact impose the obligation, it could not warrant a conviction under this statute. It might be an overt act of treason, and all the persons present, he who administered the oath, he who took the oath, and the spectators, might be punishable as traitors, yet still an indictment under the present statute could reach none of them; for to make the statute apply, it is essential that the oath administered purports or intends to bind the party taking it to

Having said thus much on the major proposition of the indictment, we now come to consider the minor proposition. Here, as in other cases, there are two subjects of inquiry; 1st, Whether the facts set forth in the minor amount to the charge in the major? and, 2nd, Supposing that they do, whether they are specified with that precision and minuteness which are required, by the law of Scotland, to constitute a relevant indictment?

The minor begins in these terms: "Yet true it is and of verity, that you, the said William Edgar and John Keith, are both and each, or one or other of you, guilty of the said crimes, or of one or more of them, actors or actor, or art and part: In so far as you, the said William Edgar and John Keith, having, at Glasgow, and in the vicinity thereof, in the course of the months of November and December 1816, and of January and February 1817, wickedly, maliciously, and traitorously conspired and agreed, with other evil-disposed persons, to break and disturb the public peace, to change, subvert, and overthrow the government, and to excite, move, and raise insurrection and rebellion, and especially to hold and attend secret meetings for the purpose of obtaining annual parliaments and universal suffrage, by unlawful and violent means, did, then and there, both and each, or one or other of you, wickedly, maliciously, and traitorously, administer, or cause to be administered, or did aid or assist at the administering, to a great number of persons, an oath or engagement, or an obligation in the nature of an oath, in the following terms, or to the following purport."-And then the words of the oath are recited." In awful presence of God, I, A B, do voluntarily swear, That I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every description, who are considered worthy of confidence; and that I will persevere in my endeavours to obtain for all the people in Great Britain and Ireland, not disqualified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation, and annual parliaments; and that I will support the same to the utmost of my power, either by moral or physical strength as the case may require: And I do further swear, that neither hopes, fears, rewards, or punishments, shall induce me to inform on, or give evidence against, any member or members, collectively or individually, for any act or éxpression done or made, in or out, in this or similar societies, under the punishment of death, to be inflicted on me by any member or members of such societies. So help me

God, and keep me stedfast." And it is said in the indictment, that this oath, or at least an oath of the same purport, was administered.

It is here set forth, that the prisoner at the bar was in the course of committing certain heinous crimes. These crimes, your lordships will observe, are not laid as a substantive charge against the prisoner; and it is impossible that they should be so laid in this indictment, for a prisoner can be charged with nothing in the minor, but what amounts to the crime laid in the major proposition. It is said, that the prisoner having committed those crimes, did administer the oath. But those crimes are not laid with a view to inflict punishment on him for them, though perhaps they are stated in modum probationis of another crime. It is incompetent in the minor proposition of the indictment to say that the prisoner is guilty of a felony not charged in the major, in order to punish him for that felony. The charge in this indictment is for administering an unlawful oath; and whatever facts connected with a separate crime are set forth in the minor only, they make no part of the charge against the prisoner at the bar.

I trust I shall afterwards show, though it is not at present the time to make inquiry into this, that however atrocious the crimes here affirmed to have been committed by the prisoner may be, as they are in themselves totally irrelevant to infer the crime with which he is really charged, so at the same time it is incompetent, according to the law of Scotland, to bring any proof of those crimes. This I shall postpone for after-consideration, proceeding, in the mean time, to consider the oath which was administered, which is said to purport an obligation on the taker to commit

treason.

The oath is in these words:" In awful presence of God, I, A B, do voluntarily swear, That I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every description, who are considered worthy of confidence; and that I will persevere in my endeavours to obtain for all the people in Great Britain and Ireland, not disqualified by crimes or insanity, the elective franchise, at the age of twenty-one, with free and equal representation, and annual parliaments; and that I will support the same to the utmost of my power, either by moral or physical strength, as the case may require And I do further swear, that neither hopes, fears, rewards, or punishments, shall induce mė to inform on, or give evidence against, any member or members, collectively or individually, for any act or expression done or made, in or out, in this or similar societies, under the punishment of death, to be inflicted on me by any member or members of such societies. So help me God, and keep me stedfast.". Then it is said, "Which oath or obligation did thus purport or intend to bind the persons taking the same to commit treason, by effecting

by physical force the subversion of the established government, laws, aud constitution of this kingdom."

Here the prosecutor recites the oath, and says that it purports an obligation on the per son taking it to commit treason, by effecting by physical force the subversion of the estab lished government, laws, and constitution of this kingdom. But it is not enough that the prosecutor says it has that purport, If, on considering the oath itself, your lordships are of opinion that it does not imply what the prosecutor alleges, his mere averment that it is an oath of a certain purport will not make it so; and he is not entitled to have that question sent to the jury, for that would be taking from the Court the question as to the relevancy of the indictment.

Suppose in an indictment for perjury, the prosecutor, after alleging in general terms that this specific offence has been committed, proceeds in the minor proposition to give the deposition of the prisoner in detail, and afterwards to contrast it with what he alleges to be the truth, asserting that there is such a manifest discrepancy as necessarily implies the commission of the crime charged still his mere assertion on this subject will not be sufficient ; and if the Court shall be satisfied, on comparing the alleged truth with the alleged falsehood, that there is not an absolute contradiction between them; in other words, that what the prisoner has sworn may be reconciled with what the prosecutor says he ought to have sworn, you will not hold the indictment to be relevant, nor send the charge to a jury to be tried. That being the case, if your lordships, on reading this oath, be of opinion, that it does not purport what the public pro, secutor says it purports, then I say this is an irrelevant libel.

It is true that, besides the word " purport, ing," there is another word used here, ins tending." What is the signification of the word intending I shall afterwards consider, and it is of material importance to this case; but let us see, in the first place, what is the signi fication of the term purport. This term, as every body knows, is applied to denote the meaning of words as gathered from the words themselves-the meaning as expressed in contradistinction to the meaning which may be conjectured from extrinsic facts or circumstances. Look then at the words of the oath, and see if it purports what the prosecutor says it does. No man who reads it can say so. The words of the oath are, "I will persevere in my endeavouring to form a brotherhood of affection amongst Britons of every description, who are considered worthy of confidence." Nobody will pretend to say that there is an obligation to commit treason here. There is an obligation to form a brotherhood of affection. All the subjects of this country are brothers; and it is becoming that they should dwell together in unity. This cannot purport any thing to be done that is improper. The

Read the oath from beginning to end, and say, does it impose any obligation to commit treason! Read the words a hundred times over, and still it will be impossible to say that such is its purport. For it may be explained to mean an obligation to endeavour to obtain lawful objects, and cannot fairly be explained to mean any thing else. I am speaking of the purport of the oath, and not of what might be the intention of the parties at the time; and if that oath does not purport treason, there is an end of the present indictment.

The public prosecutor immediately adds, "Which oath or obligation did thus purport or intend to bind the persons taking the same to commit treason, by effecting by physical force the subversion of the established government, laws, and constitution of this kingdom." No doubt the prosecutor makes that averment. But I say the averment is utterly unfounded, and that the oath does not purport the obligation which he says it purports. It is for your lordships to judge whether it does so or not; and if you are of opinion that it does not, then nothing that the prosecutor affirms on the subject can have the smallest influence, as he is not entitled to go to the jury, and leave it to them to determine what is the purport of the oath; for that would be to take the relevancy of the indictment out of your hands into his

own.

The prosecutor has given you a gloss or comment on the oath, and you will judge if it be correct. The civilians have a nickname, I forget what it is, for a gloss which extracts a meaning from the text exactly the reverse of what it naturally bears. This gloss is precisely of that nature.

In the oath there are the words, "I will support the same to the utmost of my power, either by moral or physical strength." In the prosecutor's comment the word force is substituted for strength. That may be thought immaterial, and to have proceeded from inattention, but it is not so. It has been introduced in order to insinuate something different from what the oath purports. Strength in common language applies to bodily exertion. Force applies to an assemblage of armed persons. Although you can speak of an armed force, you cannot speak of an armed strength; a circumstance which shows that the meaning of the words is not the same. The prosecutor by this clause means to insinuate, that the parties were to endeavour by an armed force to obtain their objects; a purpose which cannot be inferred from the words of the oath at all. It is further said, that the oath was to bind to the "subversion of the established government, laws, and constitution of this kingdom," but there is nothing from the beginning to the end of the oath about effecting any thing. The parties bound themselves to use endeavours to obtain annual parliaments and universal suffrage; and these, if obtained in a lawful manner, are not a subversion of the government, laws, and constitution of the kingdom. The gloss, there

fore, has extracted a meaning from the text exactly the reverse of what the words bear. The public prosecutor cannot be allowed to do this; and the libel on that account is irrelevant.

But I go further, and I request you to observe what may not at first sight be apparent, but which, on full consideration of the law, will immediately occur to all of you, that even on the supposition that this oath did purport what the public prosecutor says it does, yet it would not purport an obligation to commit treason. For I maintain, that persons bound to effect by physical force the subversion of the established government, laws, and constitution of the kingdom, are not necessarily bound to commit treason. It is well known to your lordships that there are two great species of treason in law. We shall dismiss from our consideration at present a great many treasons, such as debasing the coin, murdering judges, &c. with which the public prosecutor does not and cannot pretend that this oath could have any connexion whatever. There are just two kinds of treason specified in the statute of Edward 3rd, to which it could possibly refer; 1st, compassing the king's death; 2nd, levying war against him. I shall afterwards speak of a third treason, established by a subsequent act, the 36th of the king.

In order to make an indictment for either of these two kinds of treason relevant, it is not enough to say that the party intended to effect, or has effected by force, the subversion of the government, for that is not necessarily compassing the death of the king, or levying war against him. Though some of the acts performed in subverting the government might be overt acts of treason, they are not necessarily so.

In order to establish the first kind of treason, two things are necessary. You must have a wicked imagination in the mind, namely, the compassing of the king's death; and you must have overt acts, which the law considers as proof sufficient to establish that imagination. But it is not laid here that the oath bound those who took it to compass or imagine the death of the king. I cannot illustrate my argument as it applies to the case before you, better than by appealing to an extreme case, with which you are all well acquainted-the trials of the regicides in the 17th century. You will recollect how the indictments were there laid "for compassing and imagining the death of the king;" and the overt act of that treason was cutting off the head of the king. It would not have been relevant to have merely charged the act of putting the king to death, as the crime of treason-the crime consisted in the imagination of the heart; the death of the king was the evidence that that imagination existed. In the same manner, the subversion of the laws and constitution of the kingdom is not treason, though it is probable in effecting that subver sion overt acts may be committed, which afford evidence of treason.