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charge the causing without the panel's being I have some difficulty, from what the sopresent at the administering.
licitor general stated; for, it is possible this I am not talking of the major proposition- man may have caused that oath to be adminisbut, what I find defective is, that this species tered, and perhaps in a room among a crowd, fucti, now stated by the prosecutor, is set and a particular witness may not have known forth in no part of the minor proposition, and the panel had been the cause of the administerI was led to conclude, that all that the lord ing. I think it is not incompetent to the public advocate meant to prove was, the administering prosecutor to prove as he was doing. If he of the oath, the panel being present at the fail, it will not go against the prisoner. time. If he meant to prove a species facti of a
Lord Reston concurred. different kind, that the panel, though not present, caused the administering, that species Lord Justice Clerk.—I agree, that though it facti should have been stated. And surely, is competent to charge the causing the oath to according to Mr. Hume's doctrine of specifi- be administered, as well as the administering cation, the fact whether the panel was present of the oath, yet the same precision is required or not at the administering of the oath should as to the species facti charged, and that time, have been stated. Then, is the lord advocate place, and manner, should be particularly entitled to bring an indictment without saying specified. But I own I am equally clear, that whether the panel was present at the admi- there is nothing that can prevent the public nistering, or a hundred miles off? His lord- prosecutor from proving the nature of the oath, ship's plea is competent, under the major, but and the place and time when it was adminisnot under the minor proposition. If you tered, and afterwards the panel's presence. adopted this view of the lord advocate's, you I am, therefore, for allowing the question to be would proceed on a species facti, taking for put. granted it is not necessary to state the quo modo of the species facti alleged to be committed.
[The witness was brought back.] As to the question raised by the solicitor- Lord Advocate.-- What were the terms of the general's answer, it is of a different nature ; oath put that other night at Robertson's, not the and I do not know by what principle of law oath of secrecy ?-It was the prisoner who adthe public prosecutor can be hindered from ministered that oath. proving the fact, and then the presence of the What were the words ?-It was the usual panel. But, I submit to the public prosecutor, one. I cannot repeat it. It was about that it is an inconvenient mode of proof. I do reform. not mean to sustain the objection upon this Do you remember how it began ?-" In the ground; but, it can answer no purpose to awful presence of God." prove, that any obligation was then adminis- Was there any thing about swearing ?iered or taken; for it cannot, and ought not Yes. to affect the prisoner if he was not present. What were the words ?-I saw an oath, after And the only effect would be, to create a pre- I was put in prison, in a speech in parliament, judice in the minds of the jury.
which was the same as that then administered.
You said the oath began, “In the awful Lord Pitmilly.-My difficulty arises from presence of God.”. Was there any thing about what has been stated by the solicitor-general. the word “swear ?"-If I had not seen the oath The crime charged is, that the panel admi- in a newspaper, I could not have remembered nistered the oath, or caused it to be adminis- a word of it. tered. It will be sufficient to prove that he administered the oath, or caused it to be ad
Mr. Clerk made some inaudible observa
tion. ministered—but then we must attend to the manoer in which, the time when, the place Lord Advocate. I cannot lose the benefit where, he had done so, and I agree as to what of this witness's testimony, and I have no wish has been said by lord Gillies and Mr. Clerk, to put any questions but with a view to get that such particulars require to be specified. the truth from him of what he may know It is said in the indictment, that the panel did, actually to have taken place. I should be “upon the 5th day of February, 1817, or on happy to prevent those interruptions from one or other of the days of that month, or of the other side of the bar if your lordships would January immediately preceding, at a secret take the examination of this witness into your meeting held at the house of John Robertson," own hands. &c. Whether he administered the oath, or caused it to be administered, it must be upon tions to put after his last answer.
Mr. Grant.-We can have no further questhe 5th of February, or some day of that month, and at that secret meeting. It will Lord Justice Clerk.-Till you saw the oath not do, that he did it out of that meeting. I in a newspaper, you could not have repeated think we are bound strictly to fasten the pro- any part of it? Nothing but the beginning. secutor down, both to the time and place Before I went out, you asked me whether there charged in the indictment. The proof must was an administration of any other oath in be as to February or January, and the papel must have been present.
* Vide 35. Hans. Parl. Deb. 729.
these houses. I recollect, after I read out of, that certainly would be an evil. But ob the oath in Robertson's, John Buchanan came serve how the fact stauds. The witness adin and I read it to him—the secret committee mits, that, in point of fact, if the trial had prooath.
ceeded before he read the newspaper, or if he
had never seen it, his memory would have been Lord Hermand.—Could you, without the
an entire blank as to the terms of the oath; and newspaper, have recollected the latter part of the question is, Can evidence from such a the oath -No.
source be received in a court of justice? [Witness withdrawn.]
What is it that a witness must speak to ? Lord Advocate.—Although the witness read The facts to which he was present; and if he the oath in a newspaper, he did not swear the states, that, as to these facts, he has no recol
lection of himself, and that the source from reading in the newspaper gave him any new impressions of it. The circumstance merely circumstances, is a newspaper, this is no eri
which he has derived any recollection of the brought it to his recollection. He has expressly I dence at all. said the oath he then read was the same he heard administered in the meeting. Now, I
I distinguish this case from one where a beg leave to ask, what is there to prevent my but for a paper that I wrote myself, and, im
person may say, I had forgotten every thing laying a copy of the oath even now before him, mediately upon reading it, my memory was and asking the witness whether that was the refreshed, and I could now positively swear to oath which was administered or no? I am not the circumstances. But only see the difference aware of any rule of law which should my doing so, and it would in many cases be here, and see the infinite incalculable danger attended with the total loss of evidence if such to which a person might be exposed, para form of proceeding was held to be illegal. the case of this panel
, on a trial upon charges
ticularly in a question with the Crown, as in Few persons have the power of repeating from
of a crime against the government if a witness memory verbatim what they have read, although they can recollect it when laid before them, or and who is totally unable to give testimony on
were to be examined whose memory is gone, read over to them; and it would be to render the subject but from the accident of seeing an the statute under which this indictment is laid utterly inoperative, if it were held that it is in- unauthentic account in a newspaper. Such competent to do more than ask the witnesses witnesses will be subject to the delusions to to repeat the ipsissima verba of the illegal oath bearing a resemblance to former objects of its
which the human mind is liable, from anything 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 the fact is merely that the witness saw acci- they had formerly known. Every one familiar dentally in a newspaper the oath which he had with dreams must know, that in them the vividheard before, and which brought, he depones, pression almost of reality on the mind. A
ness of conception sometimes leaves an imits 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 an oath which he had once read, and afterof no consequence how that recollection was
wards reads in a newspaper an oath which apobtained (excepting always any undue pro-lieve it to be the same oath ; but if he be exa
pears of the same general description, will be ceeding on the part
of the public prosecutor, mined on the subject, all he can swear to will which is not here alleged to have taken place), be the tenor and recollection of what he read if it is clear and distinct:
This is a question of great importance in- in the newspaper. Even at this moment the deed; and if your lordships sustain this objec
witness swears he could not have recollected tion, founded upon the witness having read anything of the nature or terms of the oath but the oath in a newspaper, it will go far to im- is revived by accident, may say, I now re
for the newspaper. A witness whose memory pede the course of justice. The same must in member. But this witness says he could not every case be sustained where the witness has have recollected but for the newspaper. He read the narrative of the previous proceedings, recals the oath to his imagination rather than before a magistrate, the public prints, and
his an end would therefore be put to convictions but from the newspaper, he has no recollection
memory. If he says he has no recollection in the most atrocious cases, which are generally but of the newspaper, a source of information those on which the most public investigations which must exclude his evidence from being take place.
received. I submit, that, in a court of civil Mr. Jeffrey.—Nothing can be more fair or jurisdiction, evidence of this kind could not be candid than the statement of the lord advocate, received ; and to allow evidence of this quesand I agree with him in an observation which tionable sort to be taken in this court, and in he made, but it leads to a decision in my such a case as the present, would be an example favour. If the lord advocate had been correct of the most dangerous nature. in stating, that, in consequence of an innocent accident, the Crown was to be deprived of any Lord Advocate.--If the recollection of the thing they would otherwise have had the benefit witness depends altogether upon what he read
in the dewspaper, I am not entitled to ask as circumstances that occurred through that day, to that recollection; but my question is, I could not say it was taken as an oath. It whether he can recollect the substance, not the might be the case. terms of it, without the newspaper? I wish In what form was it taken?—They stood up that to be further cleared up.
and held up their hands. I do not remember Lord Justice Clerk.— I think it right to state any words used at the time.
Part of the time it was read, they held up what I have taken down from the witness.
their hands ?-Yes. * That if he had not seen it in the newspapers he would not have remembered another word through the day ?-Being the first of January,
What were the circumstances that happened of it; and that, with the exception of the words I had got some liquor through the day. in the beginning he has stated, he could not have repeated on his oath any part of it, bad take upon me to speak with certainty as to
Did it affect your memory? – I could not he not so seen it in the newspapers." Under
that night. these circumstances, we are clear it would not
Were you at Munn's ?-On the 4th of Jabe consistent with any rules of justice to have
muary. the witness examined further as to the terms of
Was the prisoner there !-- Yes. that oath, for he could only give his recollection
Was the bond or oath read or administered from the newspaper.'
there?--One man read it and held up his hand. Lord Hermand.-In answer to my question, Who was he? I never saw him before or he said he could not without the newspaper since. have recollected the last part of the oath; so Was the prisoner present ?—I do not know. he cannot be examined further on the terms of Who read it?- The man himself. the oath,
And held his hand up? --Yes.
Was the prisoner present?-I could not say. [Witness brought back.]
The room was too small, and some withdrew. By whom was this oath administered at whether he was present at the administering.
He had been at the meeting, but I cannot tell Robertson's?-By' the prisoner. Mr. Jeffrey.-To whom was it administered?
Lord Advocate. · Withdraw the witness. -To a man whom we met upon the road.
Having now concluded the most material part What other persons were present ?- We of the evidence upon which I had expected to went in with John Buchanan and this man, establish the charges laid in the indictment, and John Buchanan went out to see another and finding that the witnesses have not given man, and then came in; and I am not sure
testimony corresponding to their previous exwhether the administering was done when he aminations, and on which I was most thoroughly returned.
persuaded I should have convicted the panel, No other person ?-No.
I deem it incumbent on me, in justice to your You do not know his name?-No.
lordships, whose time is 100 precious to be
needlessly wasted, not to take up a moment Hugh Dickson sworn.—Examined by the longer than necessary, by going into further Lord Advocate.
evidence, which I believe to be still less conDo you know the house of William Leggat? clusive, and without proceeding further in -Yes, I have been in the house.
which, I am now satisfied the panel is entitled Who were all there ?-A number of men.
to a verdict of acquittal. However much, Was the prisoner there ?-Yes.
therefore, I must regret a' result so different Was Peter Gibson there ? -Yes.
from what the truth of the case and public Was M‘Lachlane there?-Yés
justice demanded, my consolation will be, that Was John Campbell there ?-Yes.
I have discharged my own duty in submitting Was any oath taken or administered at that the investigation to the judgment of a jury. meeting ?- There was what we called a bond of union agreed among us at that meeting.
Mr. Jeffery:After what has been stated,
with so much candour and propriety, by his Can you repeat it?-No. read, I could give an idea if it was like it. I has been led. I should be infinitely to blame, Can you tell the import of it ?—Hearing it majesty's advocate, I should be to blame, if I
were to dwell on the course of evidence which never read the original. Did you hear it read that night ?—Yes.
if even any feeling of joy or triumph, excusaWho read it ? I could not be certain of his make any further observations. I shall be
ble on such an occasion, should lead me to name who read it.
satisfied with that verdict which the good Was it the prisoner?-No. Was he present when it was read ?-I think mine upon; and, in whatever terms that ver
sense and right feeling of the jury shall deterhe was. Did you take it? Was it given to you? ample justice to the whole case.
dict shall be contained, I am sure it will do Was it administered to you?- After it was agreed upon, it was taken by a vote. From Lord Justice Clerk..Gentlemen of the jury,
I am happy to think, that, after what has taken • Vide 1 Phill. Ev. 288, 5th, ed.
place, the panel can expect nothing but an acVOL. XXXIII.
quittal. Your duty is now an extremely light guard of a jury of your countrymen to watch and pleasant one, and very different from that over your interests, you have now an entire which must have been expected when we com- and perfect conviction of the happiness and menced this trial. It is your duty to return security under which the people of this counsuch a verdict as you may think due to the try at present live, that you are now fully co case, taking all the circumstances into con- vinced the constitution of your country affords sideration, and to find the panel either Not a complete safeguard to its subjects; and that Guilty, or the libel Not Proven.
there can be no risk of their lives or liberties I leave the case in your hands, you being being invaded, while the sanction of the law possessed of all the facts as hitherto disclosed, at all times extends its protection to them. I and quite able to discriminate the circum- hope, therefore, when you return to the society stances of the evidence. And as to the ver- in which you formerly lived, that, in whatever dict you return,
may be vivá voce, if you are proceedings you may have formerly been enunanimous; but, if not, we will sit with great gaged — whatever secret meetings you may pleasure to receive your verdict in writing, have attended – whatever description of perif you think it necessary to retire for that sons you may have been linked with by bonds purpose.
of union, oaths, or engagements, you will from The Jury, without retiring, unanimously
this time resolve to abstain from all such profound the libel Not Proven.
ceedings, and never render it even possible
that any such charge should again be exhibited Lord Justice Clerk.-Gen:lemen of the Jury, against you; that, on the contrary, you will you are now discharged from your fatiguing use your utmost endeavours, by holding out duty; and I have to express my entire con- the example of the protection of the law, which currence in the terms in which you have ex- you have experienced, to convince them that pressed your verdict.
they ought to unite with you in preserving unAndrew M-Kinley, -in consequence of what impaired that happy constitution and governhas passed this day, relative to the charge ment, under which the subjects of this country exhibited against you, the jury have returned a live ;-that, in short, you will act the part of a verdict, all in one voice, finding the libel Not good subject, justify the verdict in your favour, Proven. It is, therefore, the duty of the Court and prove, that, though you may have been to asso zie you simpliciter, and to dismiss you misled by the designs perhaps of other men, from that bar. But, Sir, I cannot help notic- you are not wicked in heart, and will live ing, upon this occasion, that the verdict of peaceably in time to come. I trust what I your countrymen has not pronounced you to have now said will have a due effect, and I be Not Guilty of the charge that was exhibited congratulate you upon the verdict you have against you; and I have already stated in received. your presence, that, in reference to the evi.
“ The Lord Justice Clerk and Lords dence, unsatisfactory and inconclusive as it
Commissioners of Justiciary, in respect of was with respect to the full measure of your guilt, and looking, above all, to those declara
the foregoing verdict, assoilzie the panel
simpliciter, and dismiss him from the bar. tions of yours, which were proved and made part of the evidence by a regular minute of
(Signed) “ D. BOYLE, J.P.D." admission by your counsel, I am decidedly of Andrew M'Kinley:-I am not able to stand, opinion the jury were bound to return the ver- from a weak state of body, to return my thanks dict now upon record-a verdict which leaves in long speech. But I wish to return my a mark upon your character, that nothing but sincere thanks to your lordships for showing a life of future rectitude in every respect can me such kindness ;-to the gentlemen of the wipe off. You are now to be delivered from jury for their attention, and the verdict they all risk of punishment for any degree of guilt have returned :—and to the Lord Advocate for you may have incurred relative to the trans. his kind attention during my imprisonment;actions mentioned in the indictment; and I and I wish publicly to declare, that I had all do hope and trust, that, after the full, fair, and the liberty and indulgence that man could impartial trial you have undergone, in which, possibly have in such circumstances. My while an attempt was made to establish the feelings of gratitude to my counsel are stronger charge against you, you had the protection of than I can express. the laws of your country, and the blessed safe
Proceedings against James M'Ewan, and others, at Glasgow. Extract from the Record, containing Pro- death, shall be deemed an oath within the in
murder, or any felony punishable by law with ceedings in the Circuit Court of Justiciary tent and meaning of this
act; and in whatever at Glasgow, against James M‘Ewan, form or manner the same shall be administered M'DOWAL PATE, or Peat, and JOHN CONNELTON, 23rd April, 1817, before
or taken, and whether the same shall be acLords Hermand and Gillies.
tually administered by any person or persons
to any other person or persons, or taken by The diet was then called of the criminal any other person or persons without any admiprosecution at the instance of his majesty's ad- nistration thereof by any other person or pervocate, for his majesty's interest against James sons." Yet true it is and of verity, that you, M‘Ewan, now or lately carding-master at Hum- the said James M'Ewan, M‘Dowal Pate, or phrie's Mill, Gorbals of Glasgow; M‘Dowal Peat, and John Connelton, are all and each, Pate, or Peat, now or lately weaverin Piccadilly, or one or other of you, guilty of the said street, Anderston, in the vicinity of Glasgow; crimes, or of one or more of them, actors or and John Connelton, now or lately cotton- actor, or art and part; in so far as you the spinner, in Calton of Glasgow, for ihe crime said James MʻEwan, M'Dowal Pate, or Peat, of administering unlawful oaths, as particularly and John Connelton, having at Glasgow, and mentioned in the indictment raised and pur- in the vicinity, thereof, in the course of the sued against
them thereanent bearing months of November and December, one James M‘Ewan, now or lately carding-master thousand eight hundred and sixteen, and of at Humphrie's Mill
, Gorbals of Glasgow; January and February one thousand eight M‘Dowal Pate, or Peat, now or lately weaver hundred and seventeen, wickedly, maliciously, in Piccadilly-street, Anderston, in the vicinity and traitorously conspired and agreed, with of Glasgow; and John Connelton, now or other evil-disposed persons, to break and dis, lately cotton-spinner in Calton of Glasgow: turb the public peace, to change, subvert, and You are indicted and accused at the instance overthrow the government, and to excite, of Alexander Maconochie of Meadowbank, his move, and raise insurrection and rebellion; and majesty's advocate, for his majesty's interest : especially to hold and attend secret meetings That albeit by an act passed in the fifty-second for the purpose of obtaining annual parliayear of his present majesty's reign,intituled, “Anments and universal suffrage by unlawful and act to render more effectual an act passed in the violent means, did then and there, all and thirty-seventh year of his present majesty, for each, or one or other of you, wickedly, preventing the administering or taking unlaw- maliciously, and traitorously administer, or ful oaths,” it is inter alia enacted, “ That every cause to be administered, or did aid or assist person who shall, in any manner or form what at the administering, to a great number of soever, administer, or cause to be administer- persons an oath or engagement, or ed, or be aiding or assisting at the administer- obligation in the nature of an oath, in the ing of any oath or engagement, purporting or following terms, or to the following purport : intending to bind the person taking the same “In awful presence of God, I, A. B. do voto commit any treason, or murder, or any luntarily swear that I will persevere in my enfelony, punishable by law with death, shall, on deavouring to form a brotherhood of affection conviction thereof by due course of law, be amongst Britons of every description, who are adjudged guilty of felony, and suffer death as considered worthy of confidence, and that I a felony without benefit of clergy." And will persevere in my endeavours to obtain for further by section fourth of said act, it is en- all the people in Great Britain and Ireland, acted, “ That persons aiding and assisting at not disqualified by crimes or insanity, the the administering of any such oath or engage- elective franchise at the age of 21, with free ment as aforesaid, and persons causing any and equal representation, and annual parliasuch oath or engagement to be administered, ments; and that I will support the same to though not present at the administering thereof, the utmost of my power, either by moral or shall be deemed principal offenders, and shall physical strength, as the case may require. be tried as such, and on conviction thereof by And I do further swear, that neither hopes, due course of law shall be adjudged guilty of fears, rewards, or punishments shall induce felony, and shall suffer death as felons without me to inform on, or give evidence against benefit of clergy, although the person or per- any member or members, collectively or insons who actually administered such oath or dividually, for any act or expression done engagement, if any such there shall be, shall or made, in or out, in this or similar societies, not have been tried or convicted." And under the punishment of death, to be inflicted further, by section sixth of the said act, it is on me by any member or members of such enacted, « That any engagement or obliga- societies. So help me God, and keep me stedtion whatsoever, in the nature of an oath, fast.” Which oath or obligation did thus purpurporting or intending to bind the person port or intend to bind the persons taking the same taking the same to commit any treason, or to commit treason, by effecting by physical force