The oath alone, without going to any other article of evidence, is directly criminal, and implies that the purpose for which the meeting was assembled was an illegal purpose, and the association an illegal association.

It was said by the learned gentleman, that the word "force" had been "artfully" substituted in the indictment for the word "strength." But according to my construction, they have no different meaning-they are synonymous. But I may answer his statement by a remark of his own which is well founded, that any inference from the oath adjected in the indictment does not signify, unless the oath itself necessarily imply that inference. The artifice, therefore, if there had been any, (and there was assuredly none), could have no effect, as your Lordships are to judge of the oath itself, and not of the conclusions drawn from it by the pro

secutor.

It is also libelled in the indictment, (and to the proof of that there has been no objection stated), that this oath was administered at secret meetings. To a proof of this averment, no objection has or can be made; and if it shall be proved that this oath was administered at a secret meeting, this is an additional circumstance of evidence which must go to the assize, to shew that the purpose of the oath was illegal and criminal. That the oath was administered at a secret meeting is charged, I observe, with regard to the meeting first libelled on in the indictment.

It is argued, that the narrative of the indictment-the general statement of treasonable conduct which precedes the statement of the particulars founded on-is not relevant to be proved. I apprehend, however, that many examples might be given from the daily practice of the Court of such narratives as this going to a Jury. One example that occurs to me,-(I am sorry that I am under the necessity of speaking from memory alone, as I am certain that if I had had time to make an investigation, I could have produced many examples on the point),-an example, I say, occurs to me, which is probably in your recollection. The case I allude to was that of a charge for uttering forged notes. The forgery had been committed in England;-that crime, therefore, the Court had no jurisdiction to try. Yet you admitted the statement of the forgery in the narrative of the indictment in modum probationis of the crime of uttering the forged notes in Scotland, and as relevant to infer the knowledge of the forgery in the utterer. This is settled law; and the oath here charged is at least as intimately connected with the statement of treasonable practices mentioned in the

narrative, as the crime of uttering forged notes was with the perpetration of the forgery. I am not going too far in saying that the oath is nothing else than an overt act of a general treasonable conspiracy, not now charged against the parties. The whole import and construction of the present charge, indeed, involves the existence of another crime. The administration of the oath is a criminal act, binding the takers to commit another crime; and how is it possible to separate the two? How can any circumstances regarding the one be explained without mentioning the other? We are bound to shew that there was treason, which would have been speedily matured, if the purposes of the persons who administered and who took the oath had been carried into effect. We are to prove what they were hatching,what they intended,—and it is impossible to lay out of view the preparations they were making for committing treason, in speaking of what they bound themselves to accomplish. Thus the rule of not admitting proof of one crime in evidence of another, must be received with some qualification, and it has always been so in practice. (Mr Drummond here referred to Mr Hume, Vol. III. p. 411, and to the case of Thomas Somerville, who was tried for perjury in 1813, as mentioned in the corresponding part of the Supplement, p. 226.) There you have evidence of one crime admitted to prove another, although the one was quite different from the other. But here the crimes are intimately and almost inseparably connected. It is an established rule in the English law books, in cases of treason, not only that one overt act not laid as a charge, may be adduced as proof of one that is laid, but that a general proof of rebellion or conspiracy is allowed before proceeding to the particular acts charged; and the case of Strafford, a well known case, was quoted some years ago, and received as an authority on this point in the trials of Watt and Downie,-in which the existence of a treasonable plot was allowed to be proved before the overt acts charged. The principal question is, Whether the matter offered in evidence be pertinent to the point in issue?

It was said that we are not entitled to try a man for treason in this form, and that therefore we cannot indirectly try the treason as proof of another crime. I appeal, in answer to this, to the Act of Parliament under which we are now. proceeding. The whole Act, and particularly the last clause, proceeds on the understanding that we are entitled to go on as we are doing in this trial, although the crime tried be treason.

« Provided also, and it is hereby declared, that any person who shall be tried and acquitted, or convicted of any offence against this Act, shall not be liable to be indicted, prosecuted, or tried again for the same offence or fact, as high treason, or misprision of high treason; and that nothing in this Act contained shall be construed to extend to prohibit any person guilty of any offence against this Act, and who shall not be tried for the same as an offence against this Act, from being tried for the same as high treason, or misprision of high treason, in such manner as if this Act had not been made."

Even if this Act had never existed, I should have been prepared to maintain, on the ordinary rules of law, the competency of trying what might have been tried as treason, under a lower denomination of crime; but the clause now quoted is quite conclusive. There is, therefore, nothing in the circumstance that the criminal proceedings set forth in the narrative of the indictment happen to be of a treasonable nature, that can make any difference in the case; and I submit, that as they form part of the res gesta at the time of administering the oath, and naturally enter into the his tory of the transaction, they ought to be admitted to proof, and found relevant with the rest of the libel. They are intimately and inseparably connected with the proof of the crime charged, and afford the clearest and most relevant indicia that can be imagined of the guilty purpose of the pannel. It seems unnecessary to add, that if it be relevant to introduce this statement narrative, the same specification is not requisite as if it had been made the subject of a substantive charge; and I should not have made this remark at all, unless there had appeared a disposition to argue upon this narrative, as if the relevancy of it were to be tried by the same rules as a charge in the indictment.

It was said by the learned gentleman, that the particulars charged as what the parties bound themselves to commit, would not have amounted to high treason, even if they had been carried into effect. But how it can be maintained that the employment of force to accomplish public measures of this description, is not treason, I cannot conceive. It appears to me to be beyond the ingenuity of even the learned gentleman himself, to persuade any person, that a public measure of any sort may be accomplished, not to say the fundamental principles of the constitution subverted by force, by a number of persons conspiring together for that purpose, without levying war against the King. According to my view of the law, I might have been entitled to charge the

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administration of the oath itself as high treason. The words of the statute of the 36th of the King, c. 7. seem completely in point, as to the treasonable nature of the association and the oath. "If any person or persons, &c. shall compass, imagine, invent, devise, or intend death or destruction, &c. &c. or to deprive or depose him, &c. or to levy war against his Majesty, in order, by force or constraint, to compel him to change his measures or counsels, or in order to put any force or constraint upon, or to intimidate or overcome both Houses, or either House of Parliament—and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed." Even under the first head of the statute of Edward III. it might have been maintained to be treason to conspire for the accomplishment of universal suffrage and annual Parliaments by force; and the oath and secret meeting might have been offered in evidence as overt acts.

But it is unnecessary to enter upon the question, whether the acts libelled as having been done, might have justified a charge of treason. It is enough for the present purpose to say, that if the force which the parties bound themselves by this oath to use, for obtaining annual parliaments and universal suffrage, had been actually employed for those purposes, which are not only of a public nature, but utterly subversive of the whole frame of the constitution, this would clearly have been that species of treason which consists in levying war against the King.

It was said, that the concluding part of the indictment does not correspond with what goes before, as the charge of intending is omitted, and that of purporting only relied upon. It is true, that the prosecutor relies completely on the charge of purporting, because the purport and open meaning of the oath is so clear; but the proper answer to this critical objection is, that it is quite unnecessary and unusual to repeat in this part of an indictment the whole expressions previously used, as it always bears such a reference to what goes before, as to point the attention to the preceding_description as that which is here spoken of. "Times and places foresaid, the said oath or engagement," &c. This is the usual style, and it is not customary to repeat all the preceding epithets and qualifications, which are included and held repeated by the reference to what goes before.

Thus,

I am sensible that there are many things which I have omitted, but I will not detain your Lordships longer.

Mr SOLICITOR GENERAL.-In concluding the debate on the part of the Crown, I must be pardoned for observing in behalf of the prosecutor, that nothing is or can be more remote from his intention, than to introduce into the law of the land any of those constructive treasons to which reference was made by my learned friend at the commencement of his speech for the pannel. Nothing can be more remote from the intention of the public prosecutor in Scotland at any period. And if such a profligate design existed, it would meet with a sure and signal defeat from the independence of the Bar, and from the vigour and integrity of the Court.

The present prosecution does not involve any charge of constructive treason. It is founded upon a statute of recent introduction; a statute quite plain and explicit; a statute, which, very unfortunately for the country, the late corruption of the public mind and of the moral habits of some part of the population has rendered necessary for the protection of the state.

In answering the argument maintained for the pannel, I must take leave to recal to your Lordships' notice two of the species of treason, which were not introduced, but well defined, by the statute of Edward III. These two species of treason are,-first, Compassing the death of the King; secondly, Levying war against the King.

Your Lordships are all aware, that by declaring and defining the first species of treason, the Legislature bestowed upon a mental act-upon the imagining or compassing in the mind of the death of the King,-the character of a completed crime, punishable by a high sanction; and it provided, that in the case of this highest offence against the state, mere intention, (which in other cases is not cognizable by the criminal tribunals to that effect), should hold the same rank in the scale of guilt and of punishment with a completed act. It rendered the compassing or imagining, the mere conception or design of destroying the King, punishable with the pains of treason. There is a remarkable distinction, therefore, between this class of crimes and all others. It may be said generally, almost without exception, that the mere compassing of any other act, the mere compassing of murder, for instance, the criminally imagining of such a deed is not a cognizable crime, at least is not cognizable as the crime of murder. But in this department of the law the case is different. The imagination of the King's death is the statutory crime, and nothing more is