would then be no reason to deny that assistance in cases where life is concerned, which yet is allowed in every petit trespass.' not wholly without ambiguity, endeavouring to ascertain the intention of the legislature in passing an act of parliament. The act creates two descriptions of felony; one without benefit of clergy, and capital; the other within benefit of clergy, and transportable. The legislature must, therefore, have been aware, not only that acts of high treason might be tried under the statute as a capital felony, but that acts of the same nature might be tried as a transportable felony." * And in another passage, "The prisoner readily admits, that to persons not accustomed to questions of legal construction, it may at first sight appear, as if the legislature had contemplated the possibility of trying the same offence, either as high treason or felony, at the pleasure of the prosecutor or the indictors, viz. the grand jury."+ Of that possibility we have only to read the act of parliament to have an absolute certainty. It is not however upon critical niceties, but upon the plain common sense construction of the acts of the legislature, that judges are entitled and bound to proceed. Indeed, much of the argument, however proper in the House of Commons, though even of that doubts may be entertained, comes in an irregular shape before this Court, who must apply the statute that has actually passed, without entering into speculations as to the propriety of the enactment itself. At the same time, I feel it incumbent upon me to declare, that in my apprehension, called for by the situation of the times, consummate wisdom and enlightened humanity are the genuine characteristics of the statute. Having said so much, I cannot conclude better than in the words of a great and excellent man: "In favour of life, great strictnesses have been in all times required in points of indictments; and the truth is, that it is grown to be a blemish and inconveniency in the law and the administration thereof. More offenders escape by the over easy ear given to exceptions in indictments, than by their own innocence; and many times gross murders, burglaries, robberies, and other heinous and crying offences, escape by these unseemly niceties, to the reproach of the law, to the shame of the government, and to the encouragement of villainy, and to the dishonour of God. And it were very fit that, by some law, this overgrown curiosity and nicety were reformed, which is now become the disease of the law; and will, I fear, in time grow mortal, without some timely remedy." The editor adds, in a note: "This advice of our author would, if complied with, be of excellent use: for it would not only prevent the guilty from escaping, but would likewise be a guard to innocence; for thereby would be removed the only pretence upon which counsel is denied the prisoner in cases of felony; for if no exceptions were to be allowed but what went to the merits, there + p. 487. 2nd Inf. P. 485. Lord Gillies.-I wish I could agree with the learned judge in thinking this a very easy and simple case. It has cost me much time and reflection to make up my mind upon it. The debate opens four important questions, each of considerable difficulty. I shall state them in what appears to me to be their natural order. It is a little different from that which has been adopted by the learned counsel for the panel, in the very able paper which has been drawn by Mr. Moncreiff. But this is of no consequence. I shall, in the course of delivering my opinion, take notice of each of the points which he has brought under our consideration. 1. The first question in the order in which I propose to consider them is, whether the oath, as set forth in the indictment, is of the description alleged? Does it purport or intend to bind to commit any treason, or murder, or any capital felony? 2. The second question is this, if it shall appear that the oath is, or may be of the description alleged, is it incumbent on the prosecutor to specify or describe in his indictment the crime, to the commission of which he states that the oath imports an obligation? 3. The third question is, whether the prosecutor was bound or not to specify the crime, has he in this indictment specified or described it? And, if so, is his specification or description of it accurate and correct, and such as your lordships can sustain as a proper definition of a capital felony, or of a treason? 4. The fourth and last question to which I propose to speak is, does the offence disclosed in this indictment, as explained by the prosecutor, amount to a case of treason? and, if so, can it, or ought it to be tried as a felony? This last is the question treated in the supplementary information for the prisoner. I shall speak to these questions in the order in which I have stated them. But first of all, I wish to call the attention of your lordships to the terms of the indictment itself, and to those rules and principles by which it appears to me that we must be guided in judging of its relevancy. I need not tell your lordships, that in all criminal cases, the crime which the prosecutor means to charge must be distinctly stated in the major proposition of the indictment; and in this, as in every other indictment, we must look, and have only to look at the major proposition in order to discover what the crime is of which the prisoner is accused. That crime, whatever it may be, statutory or not, malum prohibitum, or malum in se, so set forth in the major proposition of the indictment, is the crime charged, and that crime alone, and no other, can be proved by the public prosecutor. Now, in the major proposition of this in 2 Hale's P. C. 193. dictment, what is the crime set forth? The crime there set forth, so far as regards any acts done by the prisoner, is merely that of administering an oath. There is no other fact charged against him. The single solitary act charged is that of administering an oath of a certain description, viz. an oath "purporting or intending to bind the person taking the same to commit any treason, or murder, or any felony punishable by law with death." The mere act of administering this oath, is the crime charged. And for the trial of this charge there are just two points which this indictment brings under the consideration of the tribunal which has to judge of the guilt or innocence of the prisoner. It is to be considered first, whether the act was done-whether the oath was administered? and secondly, whether the oath be of the description alleged in the indictment? The purpose or intention of the party, except that he intended to administer the oath, is not charged here. Whether his intentions were guilty or innocent is not stated, and is therefore excluded from our inquiry as not essential to it. From the beginning to the end of the major proposition of this indictment, you will not find any thing alleged as to the criminal intention of the prisoner further than what the charge necessarily implies, namely, that he intentionally administered an oath of the description there mentioned. Such is the charge stated in the major proposition of this indictment, and I need hardly observe to your lordships, that this charge cannot be extended or rendered broader by any thing contained in the minor proposition, or subsequent part of the indictment. In this part of it the prosecutor's allegations must be confined to the charge contained in the major proposition, and to such facts as may be proved in support of that charge, and in so far as they go beyond that charge his allegations must be rejected and dismissed from our minds in judging of the present case in all its stages. In the minor proposition of this indictment it is stated, that the panel "wickedly, maliciously, and feloniously administered, or caused to be administered, an oath binding," &c. in the terms there set forth. The word "traitorously" which stood in the former indictments, is omitted here, and the omission is certainly a proper one; but the act is here said to have been done wickedly and feloniously. These words are very properly used with reference to the statute which declared this act to be a felony, and prohibits it under the sanction of a capital punishment, but not in reference to any thing extraneous to the statute, which the purpose and intentions of the party, except that he intended to administer the oath, certainly are. If the crime be described as it must be, and is set forth in the major proposition, the prosecutor is entitled to prove that the prisoner intended to administer the oath; that he did it intentionally; and this he justly calls a wicked and felonious intention; for, it is so, because he intends to do, and does, that which this act prohibits and punishes with death as a capital crime. The circumstances stated in the minor proposition, of doing it at secret meetings, &c. further than explanatory of administering the oath, are extraneous, as they are not ingredients of the crime charged in the major proposition. If murder be charged in the major proposition of an indictment, a proof of malicious intention stated in the minor proposition is allowable. If sedition be charged in the major proposition, you allow it to be proved that the party intended to excite disturbance, as that is an essential ingredient in the crime of sedition. But here the crime charged is different. The mere act of administering a certain oath constitutes the whole crime, if the oath is of the description alleged. I observe it stated, in the ingenious pleading for the public prosecutor, that the intention of the parties and not of the oath must be considered, and that it is absurd to ascribe intention to an oath, "As if there were any sense in personifying an oath and giving it the powers of the understanding and the will." But an oath, or the words of an oath, may be said to intend, with the same propriety as they are said to mean so and so, and there is no personification in the one case more than in the other. What the legislature refers to, is the intendment of the oath and not the intention of parties. They refer to an oath binding to do so and so; and this is clear from a former act of parliament in which the words employed are "purporting or intended." In the major proposition of the indictment, is any thing said as to the intention of parties except as to administering this oath? The intention of the panel to do any other thing than administer the oath is extraneous, and is not charged against him. Whether he can be allowed to prove that his intentions in what he did were innocent is another question. I must hold he is so entitled, because we cannot convict any man whose intentions are proved to be innocent. The words of the act of parliament say nothing of the intentions of parties; not that the legis lature held that where intention is innocent, any person is to be punished; but the legislature may hold, and seems here to hold, that the criminal intention is to be presumed from the commission of the fact which it prohibitsthat there is a presumption that any person who administers such an oath is actuated by a wicked and felonious intention. The view of the case which I have now taken, is supported by the terms of the indictment itself; for criminal intention, except as to administering the oath, is no where alleged; and this is right, as nothing else is comprehended in the major proposition. This brings me back to the major proposition, what is the crime? Administering an oath. What else is included in the charge? Only the nature of the oath or obligation. It must be one purporting or intending to bind the persons taking the same to commit treason. | In Sedition the essence of the crime is Assuming the fact, as to the oath being admi- intention; and as the jury is to judge of that, nistered, which in this stage of the proceeding the Court can seldom reject an indictment we are bound to assume, nothing remains for for sedition. Here the question is otherwise. us but to interpret the oath said to have been All is before us that goes before the jury. administered, and the purport of which is set The intendment of the oath is to be collected forth in this indictment. This we must do, in from the oath itself, and the intention of the judging of the relevancy, and a most delicate, party is out of the question. I can well contask it is. ceive, as was pointed out by the public proseIs it, or not, an oath purporting or intending cutor, that an oath might be framed and to bind to commit treason? We have no al administered, containing words in a different ternative; we must return an answer to this sense from the common one-a term might question either in the negative or affirmative-be used to denote war, and another to desigthe former if we reject, the latter if we sustain the relevancy of the indictment. And what is the consequence of a judgment to the last effect sustaining the relevancy of this indictment? By that judgment we declare, by our deliberate opinions, that the oath is of the import alleged in the indictment, and declared in the statute. And what is the consequence?—that the administrator of the oath ought to be punished with death. I do not question the right or power of the jury to return a verdict of not guilty although we find the indictment relevant, and although the fact of having administered the oath be proved; but such a verdict would directly contradict our judgment. The Court finds the oath purporting or intending to bind to commit treason, and the jury says it is not of that import. The case is different from other trials, where the direction given to the jury forms no part of the record. If we sustain the relevancy of the indictment, we put an interpretation upon this oath; and that interpretation is to be contradicted if the fact of administering be proved, and the jury find the panel not guilty, The solemn judgment of your lordships, pronounced under the sanction of your oaths, is to be contradicted by a verdict of the jury pronounced by them, under the sacred sanction and obligation of their oaths. Such is the situation in which we are placed, and it is one peculiar to ourselves; for in England there is no such proceeding as this -there is there nothing analogous to the proceeding in which we are now engaged, nothing analogous to our judgment upon the relevancy. We are, as in former times, when by special indictments, and special findings upon the relevancy, the Court usurped the power of the jury. Certainly nothing could be further from the intention of the legislature than to occasion this; but England being chiefly contemplated by them, such is the effect of the statute in question, that by our deliberate recorded judgment, declaring the administration of the oath to be a capital crime, the jury cannot, if the facts adininistering the oath be proved, find the panel not guilty, without directly contradicting the solemn recorded decision of the Court. In a charge of Sedition, I sustain the relevancy without minutely or critically examining the words charged, because I send the whole to the jury, who judge of the seditious intention as well as of the nature of the words. nate the king, &c. These terms might be explained by proof. But here there is nothing of that kind alleged. Here the natural and necessary purport is charged. There is here nothing to be supplied but proof of the administration of the oath. The words of the oath, taken in the natural sense, are said to import an obligation to commit treason. We are to say, whether the words, as set forth in the indictment, do so or not; and in this we are going into the proper province of the jury. The Court and jury are united in fact; and a judge who sustains the relevancy of this indictment must be prepared to say, that, as a juryman, if the fact of administering the oath be proved, he would return a verdict of guilty. Am I then prepared to return a verdict of guilty in this case? This is a very serious question, and, permit me to say, it is an awful and a difficult question. As to the oath itself, I agree with lord Hermand in saying it is abominable and shocking. It is impossible to look at it without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been, and is my impression. But the presumption in favour of innocence is not to be redargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly; he seems to think that the law entertains no such presumption of innocence. I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman; and I was happy to hear from lord Hermand, he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a degree of conviction short only of absolute certainty. Here suspicion is not sufficient, there must be sufficient proof that this oath imports an obligation to commit treason, to entitle us to sustain the relevancy of this indictment. With this, I shall proceed to the consideration of this oath, for that is the principle upon which I am bound to proceed. Since this case came before us, a very material alteration has been made upon this oath or its purport. In the two former indictments against the panel, the word "force" did not appear. Here it is introduced, and does, in 1 my opinion, make a very material alteration in the nature and import of the oath. I shall first consider it as without the word "force," and I have great doubts as to this oath falling within the act of parliament. I shall state the grounds of this doubt, after mentioning why I think the import given to the oath groundless. These considerations which indicate a criminal import here are obvious. First, The secret meetings. Second, Physical strength contrasted with moral. Third, The exertion of violence to obtain an alteration of law, particularly if by numbers. The oath shews, by a brotherhood, that a number of persons were to act. Therefore, taking the whole words together, I suspect the import is criminal. I am now talking of the oath as it stood; and I am considering it as any written instrument is considered. I take the whole of the oath together, and this I conceive to be the way to proceed. In the common case, we give the effect to a written instrument which appears agreeable to its general tendency. If A. and B. dispute about a will, I take what I conceive to have been the intention of the testator. But, here, the case is different. My opinion of the instrument must guide me in both cases; but the sort of proof which makes me prefer A. to B. is very different from that conviction which I must feel before I can declare a prisoner to be guilty of a capital crime. I cannot do this, if a meaning other than the one alleged can reasonably be ascribed to the words. I have great doubts, taking the oath as it originally stood, whether I be entitled to say it is an oath falling under this act of parliament. I agree with my brother, as to the consequences of the wild scheme of introducing universal suffrage and annual parliaments. They strike us as leading to anarchy, and issuing in military despotism. This feeling, as to the political expediency of the objects expressed in it, naturally creates in the mind a strong suspicion of its treasonable import. But I do not think it a legitimate ground of suspicion, and therefore it ought to be discarded from our minds. This object has been recommended by men of high name. It has been stated to be an essential part of the constitution by men of whose fidelity and loyalty there cannot be a doubt; and therefore our view of the object ought not to influence our determination on this occasion. It has appeared laudable and constitutional to men of upright intentions, and it may have appeared in the same light to the party here. In short, we are bound to make a distinction which is often very essential to the ends of justice, and which has not here been sufficiently attended to-we are bound to distinguish between the end and Whatever opinion we entertain as to the end, we ought not from that to judge of the means. However ruinous the consequences of introducing universal suffrage and annual parliaments may be, the crime of wishing to introduce these is not charged the means. against the panel. The object is not criminal. The means by which they proposed to attain it constitute the crime, and not the object itself; and, because we think the end would destroy the constitution, we must not infer that treason is the means employed for attaining it. This very end has been recommended by men of the highest name. The duke of Richmond introduced into Parliament a bill, stating that universal suffrage and annual parliaments are the birthright of the inhabitants of this country, and, until so constituted, the country could not be considered free. No man ever imputed to him treasonable intentions, or a desire to subvert the constitution. In short, in order to get at the import of the oath, we must separate the object in view of the parties from the means employed to attain it; for the means alone were criminal. Suppose that these men had come under a similar oath, and that their object had been to obtain a repeal of the law as to the slave trade; that it had been either to obtain the law abolishing the slave trade, or a repeal of it; or any other object, as a repeal of the coach tax-you cannot say this oath is an obligation to any crime unless you could say that the same oath for such purposes would be a capital crime. It is therefore our duty to separate all consideration of the object in view from the means employed to carry it into effect. We must look to the terms of the oath itself, and see whether the means would be criminal if employed to obtain any other alteration of any existing law of the country. Viewing the matter in this light, I may suspect, but how can I be sure any thing illegal was meant by the parties? If the oath had stopped at the obligation to obtain and support" the same to the utmost of my power," the meaning would have been the same. Then as to the words "physical strength," how could I know it was to be illegally exerted? How can I know violence was to be used, when strength does not denote violence? The question is not whether the oath may or does import an obligation to commit a capital crime, but whether it necessarily does so. As to the material words of the oath engaging to exert physical strength, physical strength may be exerted for political purposes, or influencing the legislature, where nothing is done or contemplated at all of a criminal nature. There are instances of this which may be given. We lately have seen a case of a number of misguided and guilty men, setting out to wander on foot from Manchester to London. These were to exert physical strength, and no small share of physical strength, in that expedition. They were guilty, but that they were guilty of a capital crime I doubt. That is an instance of the exertion of physical strength, Higher instances may be found. When it was proposed to recognize the independence of Ame * Vide 21 New Parl. Hist. 686. rica, Chatham arose from a bed of sickness, came down to the House of Lords, and employed his voice against what he thought was fraught with disgrace to his country. He exerted intellect, he exerted physical strength, and the exertion proved fatal to him. I say, therefore, it is impossible for us to infer that the mere exertion of physical strength infers crime. It does not necessarily do so, and therefore I am not prepared to return a verdict of guilty against the prisoner, Such is the opinion I have formed upon the gath as it stood. It is now materially altered. The word "force" is introduced; and the terms of the oath, as it now stands, are: "I will support the same to the utmost of my power, either by moral or physical strength (or force), as the case may require," "Force" is within parenthesis; but this has not been sufficiently explained. It is said, the terms were used "not only synonymously but promiscuously." Whether they were used in the same sense, or sometimes the one and sometimes the other, I cannot tell, I must take it as in the indictment; and this oath does appear to me one which does fall under the act of parliament; one to which the statute does apply; for "force" necessarily denotes violence, and in such a case must have amounted to a capitalcrime. But while I say that, in this view, the oath falls under the statute, it yet remains to inquire, what is the crime to commit which this oath is an obligation? And this leads me to consider the second question, which is, If it shall appear the oath is, or may be, of the description alleged, is it incumbent on the prosecutor to specify in the indictment the crime to the commission of which he says the oath imports an obligation? The public prosecutor contends he is not bound to specify the crime. It is very true he has said the crime is treason; but this, according to his argument, was unnecessary and superfluous; and so far he is right and consistent. For if it be necessary to describe the crime at all, to call it treason is no description. Treason is a generic term as well as felony; and some treasons do not differ more from felony than one treason from another. The prosecutor is sensible of this; and though he has stated the crime to be treason, he says he is not bound to give it any further specification. It is only necessary to look at pages 13 and 14 of the prosecutor's information, to find his doctrine on this subject. On the former page, he says: Now, what can the prosecutor set forth of the purport or the intendment, which is the essence of the crime, except the terms of the oath itself, and such other circumstances as accompanied the administration of it, as may throw light upon the meaning of the administrators or takers? All this he has done, and more he cannot do. He cannot state more of the facts than he knows; nor can he state more than was actually perpetrated; and the oath is the whole fact and only source of information. Still less can he be called upon to draw an inference in law from facts that have never existed. The minor proposition is a detail of facts, and has nothing to do with law; and if he had drawn the inference required by the panel, he would not have added one iota to the relevancy. He has told your lordships all that was done; the whole facts of the case; and it is the principal part of those facts, that there was an obligation to commit a crime. That this crime, if committed, would have been of a particular description, and effected in a particular way, is nothing to the purpose, as it is not the intended crime, but the obligation to commit it, that is the point of dittay." On page 14, the doctrine is explained in still clearer and more unambiguous terms: "IIe is bound to tell the panel the facts he intends to prove against him, and the law by which they are punishable, in order that he may be prepared for his defence; but he does not know how it can help the panel to shape his defence, to tell him what would have been the legal consequence of an act of which he is not accused, and which he only intended to commit. He might as well be required, in a case of an indictment for an attempt to poison, to specify the mode of death, and the legal consequences of murder. It is maintained, that this indictment would have been perfectly relevant, if it had merely libelled the wicked and malicious administration of the oath charged, without a syllable as to what its purport or intendment is; for if the oath means what the prosecutor alleges, the prosecutor's gloss upon it is mere surplusage. If it did not mean any thing that comes under the act, then to be sure it would be necessary to libel the hidden meaning and purpose with which it is administered and taken, otherwise there would be no relevancy in the charge. But if it openly express the unlawful meaning, as in the present case, it is itself the minor proposition, the connecting link between the major proposition and the conclusion; and the prosecutor knows no addition that can make the syllogism more perfect. Maj. The administering an oath of a particular description is a crime: Min. You did administer the following oath: Ergo, You ought to be punished." In consistency with this argument, the prosecutor in the commencement states, that "the prisoner's argument rested on the fallacy of treason being the crime charged;" and the prosecutor_says, this is not a charge of treason. The crime of administering an oath alone is charged, and the crime contemplated in the oath is not charged, and need not therefore be specified." This argument is plain and intelligible, and states accurately the true question which is here raised, namely, whether an indictment under this statute is to be held relevant, because it sets forth the purport of the oath merely, without stating whether such oath intended the person taking it to commit murder, or treason, or felony, and still less |