« AnteriorContinuar »
to be perpetrated, is plainly unnecessary and useless. It is sufficient for him to satisfy your Lordships, that the object contemplated by the oath could not be accomplished but by means of treason; and on this I have already stated my argument, in the words of the highest authorities of the law.
But it was also rather inconsistently urged, that if we had stated treason to have been committed with all its circumstances, we should not have been entitled to offer any proof of this averment, or to give any detail of the facts here, as the pannel is not on his trial for high treason; and one objection to the indictment is to the narrative of details with which the statutory offence is introduced. On looking into the statute, I think it is hardly necessary to go into this question, because it is not necessary that the commission of overt acts of treason should be alleged. I submit also, that what my learned friend, who immediately preceded me in behalf of the public prosecutor, stated on this part of the subject, was agreeable to the law of Scotland, and sufficiently obviates all that was urged in the way of objection to this part of the case.
In conclusion, it was strongly and powerfully urged, as a hardship in the case of the pannel, that, though acquitted on this occasion, he might be afterwards tried for treason. If he were to be acquitted of this charge, and afterwards brought to trial for treason, I suspect we should hear from his Counsel an effectual argument against such second trial. I content myself with saying, that our view and interpretation of the statute is totally and absolutely different from that of my learned friend, Mr Cranstoun, and that we conceive, from the terms of it, it is impossible such a second trial could be attempted. It is said, in the last clause, "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 or 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."
This clause was intended to guard against two inconveniences. 1st, It was intended to protect the subject from being tried again as for treason upon the facts on which the statutory crime shall have been already prosecuted. In other words, it would be impossible to give in evidence, in
any subsequent trial of this prisoner, any of the facts which have been admitted to proof in the present case. 2d, It was intended to guard against the possibility of the enactments of this statute being construed to affect the principles of the law of treason previously established. If, therefore, the public prosecutor were to attempt to bring the prisoner to trial for treason after an acquittal in this case, he could not bring in evidence any one of the facts which were more or less connected with the present charge. This is the plain and necessary construction of the clause in the statute, and entirely removes the objection.
I have to call your attention to an authority upon the question that has been started relating to the specification of the crime. It has been maintained, that we are bound to specify the general nature of the conspiracy before we can proceed to prove the criminal intention of the parties. On this subject I may refer to the general terms in which an English indictment has been laid and found relevant. Such an authority, although it cannot affect the law of Scotland as a conclusive authority, yet is respectable in its way, and worthy of consideration. The case is to be found stated in Chitty on Criminal Law, vol. ii. relating to offences under statute 37. Geo. III. about administering oaths, &c. I submit to you, that in describing the illegal societies, the terms used in this English indictment are more general than those which the prosecutor has employed on this occasion, and to which an objection has been taken. On the whole, I maintain that the indictment before you, in the form in which it is laid, ought to be found relevant.
Mr CLERK.-This indictment proceeds upon an Act of Parliament passed in the 52d year of his Majesty's reign, against administering unlawful oaths; and accordingly certain clauses of the Act are set forth in the major proposition, as containing the description of the crime to be charged. This being the accusation, I need not remark that it would have been easy for the public prosecutor, if he had a case falling within the Act of Parliament, to confine himself to it in the minor proposition of his indictment, by stating in plain terms, that true it was and of verity, that the pannel had administered such an unlawful oath as that which was prohibited by the statute,-reciting the terms of the oath,-averring that an oath in these terms fell under the statute as being a treasonable oath,-stating how and in what respect it was treasonable, and to which of the different species of treason it applied,-specifying the time,
place, and occasion of committing the crime, the relevancy of such an indictment might perhaps have been sustained. But the public prosecutor has not confined himself to the proper charge appearing from the major proposition of his own indictment, but has attempted most illegally to introduce matters totally unconnected with it, for the purpose of embarrassing the prisoner with accusations of a kind totally different, and which cannot be the subject of inquiry with reference to this charge.
In aid of his argument the public prosecutor has founded on an English case, in which one was convicted on evidence of circumstances to prove his intention in administering an unlawful oath. I mention this now, because it is proper to take an early opportunity of distinguishing that case from the present. I know very little of the English case referred to; but on hearing it read, I observed quite enough to perceive that it was a case totally different from the presentproceeding on another Act of Parliament, different in its terms from the Act which is now founded on by the public prosecutor. Under the former Act it is competent to prove the intention of the unlawful oath by circumstances extraneous to the oath itself, though that is not competent in the present case, in which the Court and jury must consider the terms of the oath and nothing else.
It has to-day been noticed more than once, that besides the Act of Parliament libelled on, there is another Act re
lating to unlawful oaths. But when you attend to the language of that Act, you will see the difference between the terms there used, and those which are employed in this Act of the 52d of the King, and you will see the reason of that difference, and how it ought to affect indictments founded on these Acts.
The indictment before the Court is founded on the Act passed in the 52d year of his Majesty, directed against those "who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding and assisting at the administering of any oath or engagement, purporting, or intending to bind the person taking the same to commit any treason," &c. These persons are liable to the punishment of death, and every person who shall take the oath is punishable by transportation. By the 4th section it is enacted, "That persons aiding and assisting at the administering of any such oath, shall be deemed principal offenders, and liable to the same punishment of death." By section 5. it is not necessary to set forth the words of the oath, and it "shall be sufficient to set forth the purport of
such oath," or some material part thereof. By section 6. 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, &c. " shall be deemed an oath, within the intent and meaning of this Act." Now, by comparing this Act with the former one, it appears, that as the penalties are more severe, so the description of the crime is more limited than in the former Act. It is necessary that the oath or engagement shall purport or intend to bind the person taking the same to commit the treason, or other crimes punishable with death, which plainly signifies, that the purport or intendment of the oath only, or, the true meaning of its words, shall be considered in any prosecution against those who administer it. The purport of an oath has no reference to the intention, criminal or otherwise, of the party who administers it. The words of the oath may be innocent, and yet the intention may be very criminal. very criminal. On the other hand, the words may be very mischievous, and yet the intention may be otherwise. But the Legislature imposes the penalty according to the purport of the oath, the intendment is the same with the purport in speaking of the oath; and either of these terms may be considered as synonymous with the true meaning of the oath separately considered, and without regard to the intention of the party who administers or takes it. In one view, this statute is uncommonly severe, inflicting, as it does, a capital punishment for administering an oath, which may be followed by no crime whatever. And even in taking the oath according to its purport or intendment, there is much severity, because the notion or opinion of the party who administers or takes it, as to its meaning and object, may be very different from the opinion of a Court of law as to its true construction, and so the real intent of the party may be much less criminal than the intent which is imputed to the oath itself, by the judgment of the Court. But, on the other hand, while the Act is full of severity on these points, it is lenient, in so far as it restricts the charge to the purport, intendment, or true meaning of the oath, and does not admit of a proof, which might be very loose and unsatisfactory, and very hard upon the prisoner to be tried, of an intention on his part, that went beyond the true meaning of the oath which he administered. For this Act does not allow it to be proved, that though the words of the oath were apparently innocent, yet that under colour of an innocent engagement the most criminal intentions were concealed or covered. In what way soever the public
prosecutor may make a charge of that kind, (which supposes, no doubt, that a great crime had been committed), it is plain that he could not make such a charge under this Act. And the statute tempers its own severity with lenity in another important circumstance. Those who aid and assist in administering the oath, are liable to the punishment of death; but those who were present at, and consenting to the administering the oath, are not liable as for administering it, and it seems to have been the intention of the Legislature that they should not be so liable.
This Act may be contrasted with that which was passed in the 37th year of the King, in which, though the punishment to be inflicted upon offenders was less severe (transportation for seven years) there is a much greater anxiety to prevent them from escaping; and, accordingly, the cases in which that punishment may be inflicted are much more numerous and comprehensive. It is enacted, 37. Geo. I. cap. 12. "That any person or persons who shall, in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at, or present and consenting to the administering or taking of any oath or en gagement, purporting or intended to bind the person taking the same to engage in mutinous or seditious purpose; or to disturb the public peace; or to be of any association, society, or confederacy, formed for any such purpose; or to obey the orders or commands of any committee or body of men, not lawfully constituted, or of any leader or commander, or other person not having authority by law for that purpose; or not to inform or give evidence against any associate, confederate, or other person; or not to reveal or discover any unlawful combination or confederacy; or not to reveal or discover any illegal act done or to be done; or not to reveal or discover any illegal oath or engagement which may have been administered or tendered to or taken by such person or persons, or to or by any other person or persons, or the import of any such oath or engagement; shall, on conviction thereof," &c. And by the third section it is enacted, "That persons aiding and assisting at, or present at and consenting to the administering or taking" of the oath, &c. shall be deemed principal offenders. Here is a very numerous collection of crimes; and as to the oath itself, not only are the persons liable to the statutory punishment, who are present at and consenting to the administering or taking of it, but every oath is comprehended, where it is of the nature specified, either in its purport or meaning, or where it is intended by the party administering or taking