place. The legal inducia must run from the service of the second indictment. But the Court will never refuse any equitable delay which may be asked by the panel.

Lord Justice Clerk-I concur in opinion with all of your lordships, that when objections are taken and answered in the anxious manner adopted in the present case, with regard to a matter of form and practice in our procedure, we ought to take every means of information, and decide with deliberation; and so far from regretting the time which has been spent in this discussion, I have to express my satisfaction, that on the former occasion we adopted the course which was followed of ordering a search into the practice of the Court. But, now that we have the result of that search before us, we are called upon to say, whether the public prosecutor, having, during the dependence of an indictment which has been pleaded to, and upon the relevancy of which Informations were ordered, executed a new indictment, is entitled to proceed upon it against the panel. I concur with my learned brother on my right hand, that this is the fundamental and preliminary question, and that upon it it is necessary to form our opinions in deciding this case. But after the very clear and luminous statement from the learned judge to whom I allude, I should be guilty of undue encroachment upon your lordships' time if I were to enter into a detail of the grounds of my opinion as to that preliminary objection. I shall only say in one word, therefore, that upon a careful consideration of the argument upon the principle and train of practice now before us, I have formed a clear, and will venture to say, an unalterable opinion, that there is nothing in the law or practice of this Court to prevent a public prosecutor from serving a second indictment during the dependence of a prior one; and that when the legal period of inducia granted by custom to a panel has expired, the prosecutor may proceed upon that indictment. As to what he is to do upon the second, that is a different question. But as to the power of serving a second indictment in such circumstances, I do not entertain a shadow of doubt. It seems completely conceded by the learned counsel for the prisoner, that such has been the practice, and a practice to which no objec- | tion can be stated, where a panel has not pleaded to an indictment. It appears, however to me, that the moment that concession is granted, there is nothing to hinder a second indictment being served in all cases. For we are brought to very narrow ground indeed, if the whole objection be, that the first indictment has been read and pleaded to; as, after the most careful attention to the distinction taken, I can find no authority whatever for it in law. I am of the opinion already delivered to your lordships, that there is no foundation for assimilating what is called litiscontestation in this case, to what occurs in civil cases. That point, as far as it could apply, was ar

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gued, and in reality decided against the panel, in the case of Archibald. Your lordships see, from the report in Maclaurin, that the Court had every thing before them that could be urged as to litiscontestation precluding the desertion of diet, and the service of another indictment; but the decision there went in fact on the ground that there was no litiscontestation in the sense in which it occurs in civil cases; and, at all events, that it could only take place where an indictment has been remitted to the knowledge of an assize. If, therefore, the public prosecutor may raise a second indictment, and proceed upon it at the end of the inducia, it removes the only difficulty which occurs in this case, and the only solid argument stated in support of the objection. For I am clear that no prejudice could arise to the panel by the procedure objected to.

There is one view of this subject to which I beg your lordships' attention. Suppose the inducia of a new indictment raised in this case had run to the 20th of May, the diet of the former having been continued till the 19th, it is perfectly clear, that if there had been no meeting of Court on the latter day, the instance on the former indictment would have been extinguished, and no proceeding could have taken place upon it, and nothing would have been required to be entered upon your lordships' record. On the 20th of May, however, his majesty's advocate would be entitled to move the Court to take up the indictment, the inducia of which had run, and the diet must of course have been called. Now, could it have been said there was any thing of the nature of litiscontestation, or that the panel had a jus quæsitum which could have required the interference of your lordships? There is no authority for requiring it to be shown that the instance has been extinguished, and therefore to that extent the public prosecutor must be held to have abandoned his charge without the necessity of applying to your lordships. Your lordships neither have nor would have given the slightest impediment to that proceeding, but must have taken up the second indictment, and have held that with regard to the former indictment there was an end of the

case.

But it was said, where the diets happen to fall on the same day the case is altered, and your lordships are called upon to adopt a proceeding which the panel says may be favourable to him. If any ground were to be made out for supposing that a panel could be regarded as standing in the situation Charteris is said to have been placed in, then your lordships by your authority would afford a remedy for any such hardship. If you saw the public prosecutor (which I cannot suppose possible) attempting to harass a panel by raising against him a number of indictments in succession, and leaving him doubtful upon which he was to be tried, or take the supposition of several new ones being raised after his pleading to the first, you would exercise that power

objection, which would have merely led to a fortnight's delay, This same consideration may apply to other cases, and it is better to follow the straight forward course, without entangling ourselves with former doubtful cases not precisely in point.

with which you are entrusted for the good of the country, and afford immediate relief. But if, on the other hand, your lordships hold, as I do, that after service of a second indictment, both being regular, the public prosecutor has thereby declared, that it is upon the second, and that alone, he means to proceed, and is not entitled afterwards to turn round and say he will go back to the first, there is not only no injury which can arise to the accused, but he has a greater advantage than he could have upon the rule of law he now contends for, of both indictments being held to subsist, and that your lordships should interfere to have the desertion of the first recorded.

The case of Charteris, I think, has not been looked to with so narrow an eye as is proper. It appears from Mr. Hume, that Charteris had four indictments served upon him, and that he put in a printed petition stating the hardship of his case, before he was brought into Court for trial, praying for the authority of the Court to call upon the lord advocate to declare what was the course he meant to follow, and upon which indictment he meant to allege the guilt of the prisoner. The answer was made by the public prosecutor as to the one upon which he meant to rest, and it was after that that the trial proceeded, and the Court declared the others abandoned. The diet of none of them appears to have arrived. But if any such proceeding as this was to be attempted, your lordships would require no statute, no recourse to books, but only the dictates of your own consciences to know what you should do, as I have not a shadow of doubt in my mind, that a public prosecutor is not entitled to vacillate between his different charges, but that the service of a second must preclude him from going back to his first.

With regard to the practice, I am bound to say with your lordships, that when it is looked narrowly into, it does not appear to me to rest upon so clear and indisputable a basis as that it would be right for your lordships to adopt it at once as the rule of the Court. It was a fair observation, that in some cases a panel might wish to wave this or other objections; and in the case of Somerville I see an obvious ground upon which he wished to go to trial; as the second indictment being cleared of the objection stated to the first, he had no object to ask for fifteen days more. He had no palpable or tangible interest in view, his witnesses being present, and he might have suffered prejudice if delay had taken place. Mr. Clerk said he would have moved for delay on account of the absence of four witnesses at the first trial, but they were present at the last. He moved, however, for what was a substantial interest; namely, the expenses of the first indictment, but did not notice the propriety of doing away with it on the record; and there was an opinion given, that the question of expenses should be delayed till the issue of the second trial. I am clear, therefore, there was no interest in that case to insist upon the VOL. XXXIII.

Having formed a clear opinion, that there is no principle, authority, or dictum, to induce us to think that the inducia had not run from the period of service, merely from the circumstance of the two diets having occurred on the same day; I am for following that course as to which we have so clear an example in the conduct of a lawyer of the first eminence, I mean Mr. Duncan Forbes, who expressly consented that the diet should be deserted without prejudice to his right to insist on the new indictment which he had raised.

Although I have a clear opinion that the inducia here run from the date of service, in this and in every other case, if a person accused should state to the Court reasonable grounds for delay, I would attend to them. I am now only giving my opinion upon the law.

THE COURT THEN PRONOUNCED THE FOLLOWING INTERLOCUTOR :

"The Lord Justice Clerk and LordsCommissioners of Justicary having resumed consideration of the objection stated in bar of trial at last sederunt, with the answer thereto, minutes of search as to the practice in similar cases given in in obedience to the order of Court, and heard parties procurators further: Find that the service of the second indictment during the currency of the first indictment was competent; but in respect that his majesty's advocate has judicially declared that he has abandoned the first indictment, desert the diet of that indictment without prejudice to the Prosecutor insisting against the panel on the second indictment as accords: Find that the service of the second indictment upon the panel on the third day of May current, being fifteen free days before the day of compearance, gave him the benefit of the legal inducia and therefore repel the objection on that plea, and ordain the panel to plead to the second indictment."

(Signed) "D. BOYLE, I. P. D." Lord Justice Clerk.-William Edgar, are you guilty or not guilty?

William Edgar.-Not guilty.

Mr. Clenk. I hope you will permit me to say, that so much of our time and attention having been already occupied, it would be extremely hard upon us to proceed now to argue the relevancy, upon which we have a great many considerations to offer. I need not suggest a particular time for your lordships. I do not think it would be proper to attempt any encroachment upon your lordships. I think you cannot go on with the trial before Monday next. T

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 persons or person 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 murder, or any felony punishable by law with death, shall be deemed an oath within the intent and meaning of this act, in whatever form or manner the same shall be administered 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 Andrew McKinley are guilty of the said crimes, or of one or more of them, actor, or art and part: In sO FAR AS YOU, the said Andrew McKinley did, at secret meetings, and on other occasions, at Glasgow, and in the vicinity thereof, in the course of the months of November and December, 1816, and January and February, 1817, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering, to a great number of persons, to the amount of several hundreds, an oath or engagement, or an obligation in the nature of an oath, binding, or purporting or intending to bind, the persons taking the same to commit treason, which oath, engagement, or obligation, was in the 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 twenty-one, with free and equal representation, and annual parliaments; and that I will support the same to the utmost of my power, either by moral or physical strength, as the case may require: And I do further swear, that neither hopes, fears, rewards, or punishments, shall induce me to in form 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 engagement, or obligation, to the foregoing purport, did bind, or did purport or intend to bind, the persons taking the same to commit treason, by effecting, by physical force, the subversion of the established government, laws, and constitution of this kingdom, and especially by obtaining annual parliaments and universal suffrage by unlawful and violent means. AND, MORE PARTICULARLY, (1.) at a secret meeting held at the house of Hugh Dickson, then weaver in Abercromby street, or Calton of Glasgow, or elsewhere at Glasgow, or in the immediate vicinity thereof, you the said Andrew M'Kinley did, upon the 20th day of December, 1816, or upon one or other of the days of that month, or of November immediately preceding, or of January immediately following, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering an oath, or engagement, or obligation, in the terms above set forth, or to the same purport, to Peter Gibson, John M'Lauchlane, John Campbell, and Hugh Dickson, all present prisoners in the Castle of Edinburgh, or to one or other of them, and to other persons, whose names are to the prosecutor unknown, the said oath, or engagement, or obligation, to the said purport, binding the persons taking the same to commit treason, as said is. AND, FURTHER, (2.) you the said Andrew M'Kinley did, upon the 1st day of January, 1817, or on one or other of the days of that month, or of November or December immediately preceding, at a secret meeting, held in the house of William Leggat, change-keeper, King street, Tradestown, in the vicinity of Glasgow, or elsewhere at Glasgow, or in the vicinity thereof, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering, an oath or engagement, or obligation, in the terms above set forth, or to the same purport, to the said Peter Gibson, John M'Lauchlane, John Campbell, and Hugh Dickson; as also, to James M'Ewan, now or lately carding-master at Humphrie's Mill, Gorbals of Glasgow, and M'Dowall Pate, or Peat, now or lately weaver in Piccadilly street, Anderston, in the vicinity of Glasgow, who, conscious of their guilt in the premises, have absconded and fled from justice; as also, to John Connelton, or Congleton, now or lately cotton-spinner in Calton of Glasgow, or to one or other of them, and to other persons, whose names are to the prosecutor unknown, the said oath, or engagement, or obligation, to the said purport, binding the persons taking the same to commit treason, as said

is. AND, FURTHER, (3.) you the said Andrew M'Kinley did, upon the 4th day of January, 1817, or on one or other of the days of that month, or of November or December immediately preceding, at a secret meeting, held in the house of Neill Munn, innkeeper and stabler, in Ingram street, Glasgow, or elsewhere at Glasgow, or in the vicinity thereof, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering, an oath, or engagement, or obligation, in the terms above set forth, or to the same purport, to the said Peter Gibson, John M'Lauchlane, John Campbell, Hugh Dickson, M'Dowall Pate, or Peat, and James M'Ewan; as also, to James Hood and John Keith, both present prisoners in the Castle of Edinburgh, Andrew Somerville, John Buchanan, and James Robertson, all now or lately prisoners in the tolbooth of Glasgow, or to one or other of them, and to other persons whose names are to the prosecutor unknown, the said oath, or engagement, or obligation, to the said purport, binding the persons so taking the same to commit treason, as said is. AND, FURTHER, you the said Andrew M'Kinley 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, innkeeper and stabler in Gallowgate of Glasgow, or elsewhere at Glasgow, or in the immediate vicinity thereof, wickedly, maliciously, and traitorously administer, or cause to be administered, or did aid or assist at the administering, an oath, or engagement, or obligation, in the terms above set forth, or to the same purport, to the said James Hood, James Robertson, Andrew Sommerville, and John Buchanan, as also to James Finlayson, present prisoner in the Castle of Edinburgh, or to one or other of them, and to other persons, whose names are to the prosecutor unknown, the said oath, or engagement, or obligation, to the same purport, binding the persons taking the same to commit treason, as said is. And you the said Andrew M'Kinley having been present at a secret meeting, held for the purpose of administering, or causing to be administered, the said oath or engagement, or other purposes to the prosecutor unknown, at the house of Alexander Hunter, changekeeper in the Old Wynd of Glasgow, on the 22nd day of February, 1817, and having been there apprehended, conscious of your guilt in the premises, did assume the false name of John Brotherstone; and having been taken before Robert Hamilton, Esquire, Sheriff-depute of Lanarkshire, you did, in his presence at Glasgow, on the 28th day of February, 1817,

and on the 11th day of March, 1817, emit and subscribe two several declarations; and having been taken before Daniel Hamilton, Esquire, one of the Sheriffs-substitute of Lanarkshire, you did, in his presence, at Glasgow, on the 4th day of March, 1817, emit and subscribe a declaration; and having been taken before Hugh Kerr, Esquire, one of the Sheriff's substitute of Lanarkshire, you did, in his presence, at Glasgow, on the 5th day of March, 1817, emit and subscribe a declaration; and having been taken before James Wilson, Esquire, Sheriffs-substitute of the county of Edinburgh, you did, in his presence, at Edinburgh, on the 18th day of March, 1817, emit and subscribe a declaration ;—all which declarations, being to be used in evidence against you at your trial, will for that purpose, be lodged in due time in the hands of the Clerk of the High Court of Justiciary, before which you are to be tried, that you may have an opportunity of seeing the same. At least, times and places foresaid, the said oath or engagement, or an oath or engagement to the same purport, binding, or purporting to bind, the person taking the same to commit treason, as said is, was wickedly, maliciously, and traitorously administered, or caused to be administered, and some person or persons did aid or assist at the administering thereof; and you the said Andrew McKinley are guilty thereof, actor, or art and part. All which, or part thereof, being found proven by the verdict of an assize, before the Lord Justice General, the Lord Justice Clerk, and Lords Commissioners of Justiciary, you the said Andrew M'Kinley ought to be punished with the pains of law, to deter others from committing the like crimes in all time coming.

"H. HOME DRUMMOND, A. D.”