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place. The legal inducia must run from the gued, and in reality decided against the panel, service of the second indictment. But the in the case of Archibald. Your lordships see, Court will never refuse any equitable delay from the report in Maclaurin, that the Court which may be asked by the panel.
had every thing before them that could be
urged as to litiscontestation precluding the deLord JusticeClerk.-Iconcur in opinionwith all sertion of diet, and the service of another inof your lordships, that when objections are taken dictment; but the decision there went in fact and answered in the anxious manner adopted on the ground that there was no litiscontestain the present case, with regard to a matter of tion in the sense in which it occurs in civil form and practice in our procedure, we ought cases; and, at all events, that it could only to take every means of information, and decide take place where an indictment has been rewith deliberation; and so far from regretting mitted to the knowledge of an assize. If, therethe time which has been spent in this discus- fore, the public prosecutor may raise a second sion, I have to express my satisfaction, that indictment, and proceed upon it at the end of on the former occasion we adopted the course the inducia, it removes the only difficulty which was followed of ordering a search into which occurs in this case, and the only solid. tặe practice of the Court. Bui, now that we argument stated in support of the objection. have the result of that search before us, we For I am clear that no prejudice could arise are called upon to say, whether the public to the panel by the procedure objected to. prosecutor, having, during the dependence of There is one view of this subject to which I an indictment which has been pleaded to, and beg your lordships' attention. Suppose the upon the relevancy of which Informations induciæ of a new indictment raised in this case were ordered, executed a new indictment, is had run to the 20th of May, the diet of the entitled to proceed upon it against the panel
. former having been continued till the 19th, it I concur with my learned brother on my right is perfectly clear, that if there had been no hand, that this is the fundamental and preli- meeting of Court on the latter day, the instance minary question, and that upon it it is neces- on the former indictment would have been exsary to form our opinions in deciding this tinguished, and no proceeding could have taken case. But after the very clear and luminous place upon it, and nothing would have been statement from the learned judge to whom I required to be entered upon your lordships allude, I should be guilty of undue encroach- record. On the 20th of May, however, his meat upon your lordships' time if I were to majesty's advocate would be entitled to move enter into a detail of the grounds of my opi- the Court to take up the indictment, the innion as to that preliminary objection. I shall duciæ of which had run, and the diet must of only say in one word, therefore, that upon a course have been called. Now, could it bave careful consideration of the argument upon the been said there was any thing of the naprinciple and train of practice now before us, ture of litiscontestation, or that the panel had I have formed a clear, and will venture to say, a jus quæsitum which could have required the an unalterable opinion, that there is nothing interference of your lordships? There is no in the law or practice of this Court to prevent authority for requiring it to be shown that the a public prosecutor from serving a second in- instance has been extinguished, and therefore dictment during the dependence of a prior to that extent the public prosecutor must be one; and that when the legal period of inducia held to have abandoned his charge without granted by custom to a panel has expired, the the necessity of applying to your lordships. prosecutor may proceed upon that indictment. Your lordships neither have nor would have As to what he is to do upon the second, that given the slightest impediment to that prois a different question. But as to the power ceeding, but must have taken up the second of serving a second indictment in such circum- | indictment, and hare held that with regard to stances, I do not entertain a shadow of doubt. the former indictment there was an end of the It seems completely conceded by the learned case. counsel for the prisoner, that such has been But it was said, where the diets happen to the practice, and a practice to which no objec- fall on the same day the case is altered, and tion can be stated, where a panel has not your lordships are called upon to adopt a propleaded to an indictment. It appears, how- ceeding which the panel says may be favourever to me, that the moment that concession able to him. If any ground were to be made is granted, there is nothing to hinder a second out for supposing that a panel could be reindictment being served in all cases. For we garded as standing in the situation Charteris are brought to very narrow ground indeed, if is said to have been placed in, then your lorda
" ment has been read and pleaded to; as, after for any such hardship. If you saw the public the most careful attention to the distinction prosecutor (which I cannot suppose possible) taken, I can find no authority whatever for it attempting to harass a panel by raising in law. I am of the opinion already delivered against him a number of indictments in sucto your lordships, that there is no foundation cession, and leaving him doubtful upon which for assimilating what is called litiscontestation he was to be tried, or take the supposition of in this case, to what occurs in civil cases. several new ones being raised after his pleada That point, as far as it could apply, was ar- ing to the first, you would exercise that power with which you are entrusted for the good of objection, which would have merely led to a the country, and afford immediate relief. But fortnight's delay. This same consideration if, on the other hand, your-lordships hold, as I may apply to other cases, and it is better to do, that after service of a second indictment, follow the straight forward course, without both being regular, the public prosecutor has entangling ourselves with former doubtful cases thereby declared, that it is upon the second, and not precisely in point. that alone, he means to proceed, and is not Having formed a clear opinion, that there is entitled afterwards to turn round and say he no principle, authority, or dictum, to induce will go back to the first, there is not only no us to think that the induciæ had not run from injury which can arise to the accused, but he the period of service, merely from the circumhas a greater advantage than he could have stance of the two diets having occurred on the upon the rule of law he now contends for, of same day; I am for following that course as both indictments being held to subsist, and to which we have so clear an example in the that your lordships should interfere to have the conduct of a lawyer of the first eminence, I desertion of the first recorded.
mean Mr. Duncan Forbes, who expressly conThe case of Charteris, I think, has not been sented that the diet should be deserted withlooked to with so narrow an eye as is proper. out prejudice to his right to insist on the new It appears from Mr. Hume, that Charteris had indictment which he had raised. four indictments served upon him, and that he Although I have a clear opinion that the put in a printed petition stating the hardship induciæ here run from the date of service, in of his case, before he was brought into Court this and in every other case, if a person accusfor trial, praying for the authority of the Court ed should state to the Court reasonable grounds to call upon the lord advocate to declare for delay, I would attend to them. I am now what was the course he meant to follow, and only giving my opinion upon the law. upon which indictment he meant to allege the
THE COURT THEN PRONOUNCED THE FOLguilt of the prisoner. The answer was made
LOWING INTERLOCUTOR :by the public prosecutor as to the one upon which he meant to rest, and it was after that “ The Lord Justice Clerk and Lordsthat the trial proceeded, and the Court de- Commissioners of Justicary having resumo clared the others abandoned. The diet of ed consideration of the objection stated in none of them appears to have arrived. But if bar of trial at last sederunt, with the anany such proceeding as this was to be attempt
swer thereto, minutes of search as to the ed, your lordships would require no statute, no practice in similar cases given in in recourse to books, but only the dictates of obedience to the order of Court, and your own consciences to know what you should heard parties procurators further : Find do, as I have not a shadow of doubt in my
that the service of the second indictment mind, that a public prosecutor is not entitled during the currency of the first indictment to vacillate between his different charges, was competent; but in respect that his but that the service of a second must preclude roajesty's advocate has judicially declared him from going back to his first.
that he has abandoned the first indictment, With regard to the practice, I am bound to
desert the diet of that indictment without say with your lordships, that when it is looked prejudice to the Prosecutor insisting narrowly into, it does not appear to me to rest against the panel on the second indictupon so clear and indisputable a basis as that ment as accords : Find that the service of it would be right for your lordships to adopt
the second indictment upon the panel on it at once as the rule of the Court. It was a the third day of May current, being fifteen fair observation, that in some cases a panel
free days before the day of compearance, might wish to wave this or other objections ; gave him the benefit of the legal induciæ and in the case of Somerville I see an obvious and therefore repel the objection on that ground upon which he wished to go to trial; plea, and ordain the panel to plead to the as the second indictment being cleared of the
second indictment.” objection stated to the first, he had no object
(Signed) “D. Boyle, I. P. D.” to ask for fifteen days more. He had no pal- Lord Justice Clerk.-William Edgar, are you pable or tangible interest in view, his witnesses guilty or not guilty ? being present, and he might have suffered prejudice if delay bad taken place. Mr. Clerk
William Edgar.-Not guilty. said he would have moved for delay on ac- Mr. Clerk.--I hope you will permit me to count of the absence of four witnesses at the say, that so much of our time and attention first trial, but they were present at the last. having been already occupied, it would be He moved, however, for what was a substan- extremely hard upon us to proceed now to tial interest ; namely, the expenses of the first argue the relevancy, upon which we have a indictment, but did not notice the propriety great many considerations to offer. I need of doing away with it on the record ; and not suggest a particular time for your lordships. there was an opinion given, that the question I do not think it would be proper to attempt of expenses should be delayed till the issue of any encroachment upon your lordships. I think the second trial. I am clear, therefore, there you cannot go on with the trial before Monday was no interest in that case to insist upon the next. VOL. XXXIII.
“ The Lord Justice Clerk and Lords the panel in the mean time to be taken Commissioners of Justiciary continue from the bar back to the castle of Edinthe diet against William Edgar, panel, burgh." till Monday next at ten o'clock forenoon in this place, and ordain parties, witnesses, and assizers, and all concerned, then to attend, each under the pains of law, and
(See the pext case.)
700. Proceedings in the High Court of Justiciary at Edinburgh,
on two successive Indictments, raised by his Majesty's Advocate, against ANDREW M KINLEY, for administering unlawful Oaths, June 2ndJuly 19th : 57 Geo, III. A. D. 1817.*
COURT OF JUSTICIARY.
Lord Justice Clerk. Your lordships will just
make a similar order here to that made in the June 2, 1817.
case of Edgar. Present,
The following entry was then made
upon the record :Rt. Hon. David Boyle, Lord Justice Clerk. “ The Lord Justice Clerk and Lords Lord Hermand.
Commissioners of Justiciary, in respect of Lord Gillies.
what is above represented, desert the diet Lord Pitmilly.
of the first indictment against the said Lord Reston.
Andrew M‘Kinley, reserving to his MaCounsel for the Crown.
jesty's Advocate to insist upon the second
indictment, as accords." Rt. Hon. Alerander Maconochie of Meadow- Lord Justice Clerk.-Andrew M‘Kinley,
bank, His Majesty's Advocate (afterwards a attend to the indictment against you which is lord of Session and Justiciary, with the title now to be read. of Lord Meadowbank.]
“Andrew M‘Kinley, present prisoner Jumes Wedderburn, Esq. Solicitor-General.
in the Castle of Edinburgh, you are H. Home Drummond, Esq. Advocate. Depute.
indicted and accused, at the instance of Counsel for the Panel.
Alexander Maconochie of Meadowbank his John Clerk, F.sq.
majesty's advocate, for his majesty's inGeo. Cranstoun, Esq.
terest : That albeit, by an act passed in Tho. Thomson, Esq.
the fifty-second year of his present maFrancis Jeffrey, Esq.
jesty's reign, intituled, ' An act to render J. P. Grant, Esq.
more effectual an act passed in the J. A. Murray, Esq.
thirty-seventh year of his present majesty, James Moncrieff, Esq.
for preventing the administering or taking Henry Cockburn, Esq.
unlawful oaths, it is inter alia enacted,
"That every person who shall, in any manLord Advocate. Before your lordships call ner or form whatsoever, administer, or this diet, I have to state to the Court, that, upon cause to be administered, or be aiding or the 20th of March last, the panel was served assisting at the administering of an oath with an indictment to stand trial upon the 5th or engagement, purporting or intending of April. To that indictment he was never to bind the person taking the same to called upon to plead, and a new libel was commit any treason or murder, or any afterwards raised against him, the diet of which felony punishable by law with death, was continued on different occasions.
shall, on conviction thereof by due course The first of these indictments I have aban- of law, be adjudged guilty of felony, and doned; and though, according to my own un- suffer death as a felon, without benefit of derstanding of the import of the precedents clergy. And further, by section fourth which have been laid before the Court in the of the said act, it is enacted, “That persons case of Edgar, † there is no occasion for enter- aiding and assisting at the administering of ing this on the record, yet I have no objec- any such oath or engagement, as aforesaid, --tions to this being done, if it be desired.
or persons causing any such oath or en
gagement to be administered, though not See the preceding case.
present at the administering thereof, shall + See the preceding case.
be deemed principal offenders, and shall be tried as such; and, on conviction there- members of such societies. So help me of by due course of law, shall be adjudged God, and keep me stedfast :"-Which guilty of felony, and shall suffer death as oath, or engagement, or obligation, to the felons, without benefit of clergy; although foregoing purport, did bind, or did purthe persons or person who actually admi- port or intend to bind, the persons taking nistered such oath or engagement, if any the same to commit treason, by effecting, such there shall be, shall not have been by physical force, the subversion of the tried or convicted." And further, by established government, laws, and constisection sixth of the said act, it is enacted, tution of this kingdom, and especially by “ That any engagement or obligation obtaining annual parliaments and univerwhatsoever, in the nature of an oath, sal suffrage by unlawful and violent means. purporting or intending to bind the per- AND, MORE PARTICULARLY, (1.) at a seson taking the same
to commit any
cret meeting held at the house of Hugh treason or murder, or any felony punish- Dickson, then weaver in Abercromby able by law with death, shall be deemed street, or Calton of Glasgow, or elsewhere an oath within the intent and meaning of at Glasgow, or in the immediate vicinity this act, in whatever form or manner thereof, you the said Andrew M‘Kinley the same shall be administered or taken, did, upon the 20th day of December, and whether the same shall be actually *1816, or upon one or other of the days of administered by any person or per
that month, or of November immediately sons to any other person or persons, or preceding, or of January immediately taken by any other person or persons, following, wickedly, maliciously, and traiwithout any administration thereof by torously administer, or cause to be admiany other person or persons :" Yet true it nistered, or did aid or assist at the admiis and of verity, that you the said Andrew nistering an oath, or engagement, or obM‘Kinley are guilty of the said crimes, ligation, in the terms above set forth, or or of one or more of them, actor, or art to the same purport, to Peter Gibson, and part: IN SO FAR AS you, the said John M‘Lauchlane, John Campbell, and Andrew M‘Kinley did, at secret meetings, Hugh Dickson, all present prisoners in and on other occasions, at Glasgow, and the Castle of Edinburgh, or to one or in the vicinity thereof, in the course of other of them, and to other persons, the months of November and December, whose names are to the prosecutor un1816, and January and February, 1817, known, the said oath, or engagement, or wickedly, maliciously, and traitorously ad- obligation, to the said purport, binding minister, or cause to be administered, or the persons taking the same to commit did aid or assist at the administering, to a treason, as said is. AND, FURTHER, (2.) great number of persons, to the amount you the said Andrew M‘Kinley did, upon of several hundreds, an oath or engage- the 1st day of January, 1817, or on one ment, or an obligation in the nature of an or other of the days of that month, or of oath, binding, or purporting or intending November or December immediately preto bind, the persons taking the same to ceding, at a secret meeting, held in the commit treason, which oath, engagement,
house of William Leggat, change-keeper, or obligation, was in the following terms, King street, Tradestown, in the vicinity or to the following purport :-"In awful of Glasgow, or elsewhere at Glasgow, or presence of God, I, A B, do voluntarily in the vicinity thereof, wickedly, maswear, that I will persevere in my en- liciously, and traitorously administer, or deavouring to form a brotherhood of cause to be administered, or did aid or affection amongst Britons of every de- assist at the administering, an oath or scription, who are considered worthy of engagement, or obligation, in the terms confidence; and that I will persevere in above set forth, or to the same purport, my endeavours to obtain for all the peo- to the said Peter Gibson, John M‘Lauchple in Great Britain and Ireland, not dis- lane, John Campbell, and Hugh Dickqualified by crimes or insanity, the elec- son; as also, to James M‘Ewan, now or tive franchise, at the age of twenty-one, lately carding-master at Humphrie's Mill, with free and equal representation, and Gorbals of Glasgow, and M‘Dowall Pate, annual parliaments; and that I will sup- or Peat, now or lately weaver in Piccadilly port the same to the utmost of my power, street, Anderston, in the vicinity of Glaseither by moral or physical strength, as gow, who, conscious of their guilt in the the case may require: And I do further premises, have absconded and fled from swear, that neither hopes, fears, rewards, justice; as also, to John Connelton, or or punishments, shall induce me to in- Congleton, now or lately cotton-spinner form on, or give evidence against, any in Calton of Glasgow, or to one or other member or members, collectively or indi- of them, and to other persons, whose vidually, for any act or expression done names are to the prosecutor unknown, the or roade, in or out, in this or similar so- said oath, or engagement, or obligation, cieties, under the punishment of death, to the said purport, binding the persons to be inflicted on me by any member or taking the same to commit treason, as said
is. AND, FURTHER, (3.) you the said and on the 11th day of March, 1817, Andrew M'Kinley did, upon the 4th day emit and subscribe two several declaraof January, 1817, or on one or other of tions; and having been taken before the days of that month, or of November Daniel Hamilton, Esquire, one of the or December immediately preceding, at a Sheriffs-substitute of Lanarkshire, you secret meeting, held in the house of Neill did, in his presence, at Glasgow, on the Munn, innkeeper and stabler, in Ingram 4th day of March, 1817, emit and substreet, Glasgow, or elsewhere at Glasgow, scribe a declaration; and having been or in the vicinity thereof, wickedly, mali- taken before Hugh Kerr, Esquire, one of ciously, and traitorously administer, or the Sheriffs-substitute of Lanarkshire, you cause to be administered, or did aid or did, in his presence, at Glasgow, on the assist at the administering, an oath, or 5th day of March, 1817, emit and subengagement, or obligation, in the terms scribe a declaration; and having been above set forth, or to the same purport, taken before James Wilson, Esquire, to the said Peter Gibson, John M'Lauch- Sheriffs-substitute of the county of Edinlane, John Campbell, Hugh Dickson, burgh, you did, in his presence, at EdinM.Dowall Pate, or Peat, and James burgh, on the 18th day of March, 1817, M'Ewan; as also, to James Hood and emit and subscribe a declaration ;-all John Keith, both present prisoners in the whichdeclarations, being to be used in eviCastle of Edinburgh, Andrew Somerville, dence against you at your trial, will for that John Buchanan, and James Robertson, purpose, be lodged in due time in the all now or lately prisoners in the tol- hands of the Clerk of the High Court of booth of Glasgow, or to one or other of Justiciary, before which you are to be them, and to other persons whose names tried, that you may have an opportunity are to the prosecutor unknown, the said of seeing the same. At least, times and oath, or engagement, or obligation, to the places foresaid, the said oath or engagesaid purport, binding the persons so ment, or an oath or engagement to the taking the same to commit Treason, as same purport, binding, or purporting to said is.
AND, FURTHER, you the said bind, the person taking the same to comAndrew M‘Kinley did, upon the 5th day mit treason, as said is, was wickedly, maof February, 1817, or on one or other of liciously, and traitorously administered, the days of that month, or of January im- or caused to be administered, and some mediately preceding, at a secret meeting, person or persons did aid or assist at the held at the house of John Robertson, administering thereof; and you the said innkeeper and stabler in Gallowgate of Andrew M‘Kinley are guilty thereof, Glasgow, or elsewhere at Glasgow, or in actor, or art and part. All which, or the immediate vicinity thereof, wickedly, part ihereof, being found proven by the maliciously, and traitorously administer, verdict of an assize, before the Lord Jusor cause to be administered, or did aid tice General, the Lord Justice Clerk, and or assist at the administering, an oath, or Lords Commissioners of Justiciary, you engagement, or obligation, in the terms the said Andrew M.Kinley ought to be above set forth, or to the same purport, to punished with the pains of law, to deter the said James Hood, James Robertson, others from committing the like crimes in Andrew Sommerville, and John Buchanan, all time coming as also to James Finlayson, present prisoner in the Castle of Edinburgh, or to
“H. HOME DRUMMOND, A. D." one or other of them, and to other persons, whose names are to the prosecutor unknown, the said oath, or engagement, or
1. Robert Hamilton, Esquire, sheriff-depute obligation, to the same purport, binding of Lanarkshire, the persons taking the same to commit 2. Daniel Hamilton, Esquire, one of the treason, as said is. And you the said sheriffs-substitute of Lanarkshire. Andrew M'Kinley having been present 3. Hugh Kerr, Esquire, one of the sheriffsat a secret meeting, held for the purpose substitute of Lanarkshire. of administering, or causing to be admi. 4. James Thompson, clerk to John Drysdale, nistered, the said oath or engagement, or sheriff-clerk of Lanarkshire. other purposes to the prosecutor unknown, 5. Matthew Burns, clerk to George Salmond, at the house of Alexander Hunter, change- procurator-fiscal of Lanarkshire. keeper in the Old Wynd of Glasgow, on 6. Jahn Leslie, clerk to the said John Drysthe 22nd day of February, 1817, and
dale. having been there apprehended, conscious 7, Joseph Reid, writer in Glasgow. of your guilt in the premises, did assume 8. George Salmond, procurator-fiscal of Lathe false name of John Brotherstone; and
parkshire. having been taken before Robert Hamil- 9. James Wilson, Esquire, one of the sheriffston, Esquire, Sheriff-depute of Lanark. substitute of the county of Edinburgh. shire, you did, in his presence at Glas. 10. Archibald Scott, procurator-fiscal of the gow, on the 28th day of February, 1817, county of Edinburgh.
LIST OF WITNESSES.