charge the causing without the panel's being present at the administering. I have some difficulty, from what the solicitor general stated; for, it is possible this man may have caused that oath to be administered, and perhaps in a room among a crowd, and a particular witness may not have known the panel had been the cause of the administering. I think it is not incompetent to the public prosecutor to prove as he was doing. If he fail, it will not go against the prisoner. Lord Reston concurred. I am not talking of the major propositionbut, what I find defective is, that this species fucti, now stated by the prosecutor, is set forth in no part of the minor proposition, and I was led to conclude, that all that the lord advocate meant to prove was, the administering of the oath, the panel being present at the time. If he meant to prove a species facti of a different kind, that the panel, though not present, caused the administering, that species Lord Justice Clerk.—I agree, that though it facti should have been stated. And surely, is competent to charge the causing the oath to according to Mr. Hume's doctrine of specifi- be administered, as well as the administering cation, the fact whether the panel was present of the oath, yet the same precision is required or not at the administering of the oath should as to the species facti charged, and that time, have been stated. Then, is the lord advocate place, and manner, should be particularly entitled to bring an indictment without saying specified. But I own I am equally clear, that whether the panel was present at the admi- there is nothing that can prevent the public nistering, or a hundred miles off? His lord-prosecutor from proving the nature of the oath, ship's plea is competent, under the major, but not under the minor proposition. If you adopted this view of the lord advocate's, you would proceed on a species facti, taking for granted it is not necessary to state the quo modo of the species facti alleged to be committed. As to the question raised by the solicitorgeneral's answer, it is of a different nature; and I do not know by what principle of law the public prosecutor can be hindered from proving the fact, and then the presence of the panel. But, I submit to the public prosecutor, that it is an inconvenient mode of proof. I do not mean to sustain the objection upon this ground; but, it can answer no purpose to prove, that any obligation was then administered or taken; for it cannot, and ought not to affect the prisoner if he was not present. And the only effect would be, to create a prejudice in the minds of the jury. Lord Pitmilly.-My difficulty arises from what has been stated by the solicitor-general. The crime charged is, that the panel administered the oath, or caused it to be administered. It will be sufficient to prove that he administered the oath, or caused it to be administered-but then we must attend to the manner in which, the time when, the place where, he had done so, and I agree as to what has been said by lord Gillies and Mr. Clerk, that such particulars require to be specified. It is said in the indictment, that the panel did, "upon the 5th day of February, 1817, or on one or other of the days of that month, or of January immediately preceding, at a secret meeting held at the house of John Robertson," &c. Whether he administered the oath, or caused it to be administered, it must be upon the 5th of February, or some day of that month, and at that secret meeting. It will not do, that he did it out of that meeting. I think we are bound strictly to fasten the prosecutor down, both to the time and place charged in the indictment. The proof must be as to February or January, and the panel must have been present. and the place and time when it was administered, and afterwards the panel's presence. I am, therefore, for allowing the question to be put. [The witness was brought back.] Lord Advocate.-What were the terms of the oath put that other night at Robertson's, not the oath of secrecy?—It was the prisoner who administered that oath. What were the words ?-It was the usual one. I cannot repeat it. It was about reform. Do you remember how it began?" In the awful presence of God." Was there any thing about swearing ?Yes. What were the words?-I saw an oath, after I was put in prison, in a speech in parliament, which was the same as that then administered. You said the oath began, "In the awful presence of God." Was there any thing about the word "swear?"-If I had not seen the oath in a newspaper, I could not have remembered a word of it. Mr. Clerk made some inaudible observation. Lord Advocate.-I cannot lose the benefit of this witness's testimony, and I have no wish to put any questions but with a view to get the truth from him of what he may know actually to have taken place. I should be happy to prevent those interruptions from the other side of the bar if your lordships would take the examination of this witness into your own hands. tions to put after his last answer. Lord Justice Clerk.-Till you saw the oath in a newspaper, you could not have repeated any part of it?-Nothing but the beginning. Before I went out, you asked me whether there was an administration of any other oath in * Vide 35. Hans. Parl. Deb. 729. Lord Advocate.-Although the witness read the oath in a newspaper, he did not swear the reading in the newspaper gave him any new impressions of it. The circumstance merely brought it to his recollection. He has expressly of, that certainly would be an evil. But ob serve how the fact stands. The witness admits, that, in point of fact, if the trial had proceeded before he read the newspaper, or if he had never seen it, his memory would have been an entire blank as to the terms of the oath; and the question is, Can evidence from such a source be received in a court of justice? What is it that a witness must speak to? The facts to which he was present; and if he states, that, as to these facts, he has no recollection of himself, and that the source from circumstances, is a newspaper, this is no eviwhich he has derived any recollection of the 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, imperson may say, I had forgotten every thing laying a copy of the oath even now before him, and asking the witness whether that was the mediately upon reading it, my memory was oath which was administered or no? I am not the circumstances. But only see the difference refreshed, and I could now positively swear to aware of any rule of law which should prevent here, and see the infinite incalculable danger my doing so, and it would in many cases be 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 were to be examined whose memory is gone, they can recollect it when laid before them, or read over to them; and it would be to render and who is totally unable to give testimony on the statute under which this indictment is laid the subject but from the accident of seeing an utterly inoperative, if it were held that it is in- witnesses will be subject to the delusions to unauthentic account in a newspaper. Such competent to do more than ask the witnesses which the human mind is liable, from anything to repeat the ipsissima verba of the illegal oath bearing a resemblance to former objects of its charged to have been administered. Nothing, in effect, more happened in this case. Indeed, before what only bears a resemblance to what knowledge, and will think that they have seen I apprehend not so much has been done, when the fact is merely that the witness saw acci- with dreams must know, that in them the vividthey had formerly known. Every one familiar dentally in a newspaper the oath which he had heard 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, of an oath which he had once read, and afterbut does he now recollect it; and, I submit, it is wards reads in a newspaper an oath which apof no consequence how that recollection was obtained (excepting always any undue pro-lieve it to be the same oath; but if he be exapears of the same general description, will beceeding 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 in the newspaper. Even at this moment the anything of the nature or terms of the oath but for the newspaper. A witness whose memory is revived by accident, may say, I now remember. But this witness says he could not have recollected but for the newspaper. He recals the oath to his imagination rather than his memory. If he says he has no recollection an end would therefore be put to convictions but from the newspaper, he has no recollection in the most atrocious cases, which are generally those on which the most public investigations take place. if it is clear and distinct. This is a question of great importance indeed; and if your lordships sustain this objection, founded upon the witness having read the oath in a newspaper, it will go far to impede the course of justice. The same must in every case be sustained where the witness has read the narrative of the previous proceedings, before a magistrate, in the public prints, and witness swears he could not have recollected but of the newspaper, a source of information which must exclude his evidence from being received. I submit, that, in a court of civil jurisdiction, evidence of this kind could not be received; and to allow evidence of this questionable sort to be taken in this court, and in such a case as the present, would be an example of the most dangerous nature. Mr. Jeffrey.-Nothing can be more fair or candid than the statement of the lord advocate, and I agree with him in an observation which he made, but it leads to a decision in my favour. If the lord advocate had been correct in stating, that, in consequence of an innocent accident, the Crown was to be deprived of any Lord Advocate.-If the recollection of the thing they would otherwise have had the benefit witness depends altogether upon what he read circumstances that occurred through that day, I could not say it was taken as an oath. It might be the case. in the newspaper, I am not entitled to ask as to that recollection; but my question is, whether he can recollect the substance, not the terms of it, without the newspaper? I wish that to be further cleared up. Lord Justice Clerk.-I think it right to state what I have taken down from the witness. "That if he had not seen it in the newspapers he would not have remembered another word of it; and that, with the exception of the words in the beginning he has stated, he could not have repeated on his oath any part of it, had he not so seen it in the newspapers." Under these circumstances, we are clear it would not be consistent with any rules of justice to have the witness examined further as to the terms of that oath, for he could only give his recollection from the newspaper. * Lord Hermand.-In answer to my question, he said he could not without the newspaper have recollected the last part of the oath; so he cannot be examined further on the terms of the oath. [Witness brought back.] By whom was this oath administered at Robertson's?-By the prisoner. Mr. Jeffrey. To whom was it administered? -To a man whom we met upon the road. What other persons were present?- We went in with John Buchanan and this man, and John Buchanan went out to see another man, and then came in; and I am not sure whether the administering was done when he réturned. No other person?—No. You do not know his name?-No. Hugh Dickson sworn.—Examined by the Do you know the house of William Leggat? Who were all there ?-A number of men. Can you repeat it?-No. Can you tell the import of it?-Hearing it read, I could give an idea if it was like it. I never read the original. Did you hear it read that night?—Yes. Who read it?I could not be certain of his name who read it. Was it the prisoner?—No. he was. Did you take it? Was it given to you? Was it administered to you?-After it was agreed upon, it was taken by a vote. From * Vide 1 Phill. Ev. 288, 5th. ed. VOL. XXXIII. In what form was it taken ?-They stood up and held up their hands. I do not remember any words used at the time. Part of the time it was read, they held up their hands?—Yes. What were the circumstances that happened through the day?-Being the first of January, I had got some liquor through the day. Did it affect your memory? I could not take upon me to speak with certainty as to that night. Were you at Munn's?-On the 4th of Jamuary. Was the prisoner there?—Yes. Was the bond or oath read or administered there?-One man read it and held up his hand. Who was he?-I never saw him before or since. Was the prisoner present?—I do not know. And held his hand up?—Yes. Was the prisoner present?—I could not say. The room was too small, and some withdrew. He had been at the meeting, but I cannot tell whether he was present at the administering. Lord Advocate. Withdraw the witness. Having now concluded the most material part of the evidence upon which I had expected to establish the charges laid in the indictment, and finding that the witnesses have not given testimony corresponding to their previous examinations, and on which I was most thoroughly persuaded I should have convicted the panel, I deem it incumbent on me, in justice to your lordships, whose time is too precious to be needlessly wasted, not to take up a moment longer than necessary, by going into further evidence, which I believe to be still less conclusive, and without proceeding further in which, I am now satisfied the panel is entitled to a verdict of acquittal. However much, therefore, I must regret a result so different from what the truth of the case and public justice demanded, my consolation will be, that I have discharged my own duty in submitting the investigation to the judgment of a jury. Mr. Jeffery.-After what has been stated, with so much candour and propriety, by his majesty's advocate, I should be to blame, if I were to dwell on the course of evidence which has been led. I should be infinitely to blame, if even any feeling of joy or triumph, excusable on such an occasion, should lead me to make any further observations. I shall be satisfied with that verdict which the good sense and right feeling of the jury shall determine upon; and, in whatever terms that verdict shall be contained, I am sure it will do ample justice to the whole case. Lord Justice Clerk.-Gentlemen of the jury, I am happy to think, that, after what has taken place, the panel can expect nothing but an ac12 S guard of a jury of your countrymen to watch over your interests, you have now an entire and perfect conviction of the happiness and security under which the people of this country at present live, that you are now fully convinced the constitution of your country affords a complete safeguard to its subjects; and that there can be no risk of their lives or liberties being invaded, while the sanction of the law at all times extends its protection to them. I hope, therefore, when you return to the society in which you formerly lived, that, in whatever proceedings you may have formerly been engaged - whatever secret meetings you may have attended — whatever description of persons you may have been linked with by bonds of union, oaths, or engagements, you will from this time resolve to abstain from all such proceedings, and never render it even possible that any such charge should again be exhibited against you; that, on the contrary, you will use your utmost endeavours, by holding out the example of the protection of the law, which Lord Justice Clerk.-Gentlemen of the Jury, you are now discharged from your fatiguing duty; and I have to express my entire concurrence in the terms in which you have ex-you have experienced, to convince them that pressed your verdict. Andrew M'Kinley,-in consequence of what has passed this day, relative to the charge exhibited against you, the jury have returned a verdict, all in one voice, finding the libel Not Proven. It is, therefore, the duty of the Court to assoilzie you simpliciter, and to dismiss you from that bar. But, Sir, I cannot help noticing, upon this occasion, that the verdict of your countrymen has not pronounced you to be Not Guilty of the charge that was exhibited against you; and I have already stated in your presence, that, in reference to the evi. dence, unsatisfactory and inconclusive as it was with respect to the full measure of your guilt, and looking, above all, to those declarations of yours, which were proved and made part of the evidence by a regular minute of admission by your counsel, I am decidedly of opinion the jury were bound to return the verdict now upon record-a verdict which leaves a mark upon your character, that nothing but a life of future rectitude in every respect can wipe off. You are now to be delivered from all risk of punishment for any degree of guilt you may have incurred relative to the transactions mentioned in the indictment; and I do hope and trust, that, after the full, fair, and impartial trial you have undergone, in which, while an attempt was made to establish the charge against you, you had the protection of the laws of your country, and the blessed safe they ought to unite with you in preserving unimpaired that happy constitution and government, under which the subjects of this country live-that, in short, you will act the part of a good subject, justify the verdict in your favour, and prove, that, though you may have been misled by the designs perhaps of other men, you are not wicked in heart, and will live peaceably in time to come. I trust what I have now said will have a due effect, and I congratulate you upon the verdict you have received. "The Lord Justice Clerk and Lords Commissioners of Justiciary, in respect of the foregoing verdict, assoilzie the panel simpliciter, and dismiss him from the bar. (Signed) "D. BOYLE, J. P. D." Andrew M'Kinley.-I am not able to stand, from a weak state of body, to return my thanks in a long speech. But I wish to return my sincere thanks to your lordships for showing me such kindness;-to the gentlemen of the jury for their attention, and the verdict they have returned:-and to the Lord Advocate for his kind attention during my imprisonment;and I wish publicly to declare, that I had all the liberty and indulgence that man could possibly have in such circumstances. My feelings of gratitude to my counsel are stronger than I can express. 629] Proceedings against James M'Ewan and others. A. D. 1817. Proceedings against JAMES M'EWAN, and others, at Glasgow. EXTRACT from the Record, containing Proceedings in the Circuit Court of Justiciary at Glasgow, against JAMES M'Ewan, M'DOWAL PATE, or PEAT, and JOHN CONNELTON, 23rd April, 1817, before Lords Hermand and Gillies. The diet was then called of the criminal prosecution at the instance of his majesty's advocate, for his majesty's interest against James M'Ewan, now or lately carding-master at Humphrie's Mill, Gorbals of Glasgow; M'Dowal Pate, or Peat, now or lately weaver in Piccadillystreet, Anderston, in the vicinity of Glasgow; and John Connelton, now or lately cottonspinner, in Calton of Glasgow, for the crime of administering unlawful oaths, as particularly mentioned in the indictment raised and pursued against them thereanent bearing : -: [630 murder, or any felony punishable by law with death, shall be deemed an oath within the inform or manner the same shall be administered tent and meaning of this act; and in whatever or taken, and whether the same shall be actually administered by any person or persons to any other person or persons, or taken by any other person or persons without any administration thereof by any other person or persons." Yet true it is and of verity, that you, the said James M'Ewan, M'Dowal Pate, or Peat, and John Connelton, are all 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 James M'Ewan, M'Dowal Pate, or Peat, and John Connelton, having at Glasgow, and in the vicinity, thereof, in the course of the 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 dislately 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, "An ments 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 an 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 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 felony without benefit of clergy." And further by section fourth of said act, it is enacted, "That persons aiding and assisting at the administering of any such oath or engagement as aforesaid, and persons causing any such oath or engagement to be administered, though not present at the administering thereof, shall be deemed principal offenders, and shall be tried as such, and on conviction thereof by due course of law shall be adjudged guilty of felony, and shall suffer death as felons without benefit of clergy, although the person or persons who actually administered such oath or engagement, if any such there shall be, shall not have been tried or convicted." And further, by section sixth of the said act, it is enacted, "That any engagement or obligation whatsoever, in the nature of an oath, purporting or intending to bind the person taking the same to commit any treason, or following terms, or to the following purport: -"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 21, 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 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." Which oath or obligation did thus purport or intend to bind the persons taking the same to commit treason, by effecting by physical force |